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April 01, 2002

Protecting Constitutional Rights in an Age of Anxiety: A New Approach

by Laurence A. Benner

A growing disquiet is rumbling through the land regarding our constitutional system for protecting human rights. The astonishing numbers of wrongfully convicted citizens revealed by innocence projects through DNA testing, the statistical documentation of racial profiling across the country, and the disclosure of widespread perjury, abuse, and corruption throughout an entire law enforcement unit like the Rampart Division of the Los Angeles Police Department, are all signs pointing to a structural failure in constitutional protection for individual liberty. It is widely acknowledged, for example, that neither the Fourth Amendment nor the Equal Protection Clause provides a workable solution to the problem of racial profiling. In this post-September 11 era, as hydraulic pressures to diminish liberty and privacy increasingly press on our fragile system of checks and balances, the need to explore new and alternative solutions is even more acute.

This article looks at why the traditional "rights/remedy" paradigm has failed and proposes a fundamentally different approach. Employing the Privileges or Immunities Clause of the Fourteenth Amendment, this new approach would generate proactive rather than reactive solutions to the problem of maintaining constitutional protections for human rights. In particular, we will see how the right to travel, now firmly established as a privilege of national citizenship, could be used to address the problem of racial profiling.

Standards, Rules, and Sanctions

We often think of problem solving in terms of cause and effect. We seek to eliminate a problem by getting at its root cause. Problem solving in the context of constitutional restraints on police power, however, tends to employ a different paradigm. In recognition of the law’s inability to purge from human nature the root causes of arbitrary and discriminatory misuse of official power, constitutional law seeks to limit the opportunities to wield unbridled discretionary power. This is accomplished in the main through a combination of three devices: standards, rules, and sanctions. Standards control discretion by establishing criteria for exercising power, while bright-line rules limit the circumstances where such discretionary power exists. Sanctions, such as the exclusionary rule and tort liability under 42 U.S.C. § 1983, are thought to deter official misconduct by punishing violations of these rules and standards. While in theory a comprehensive framework thus exists to both prevent and remedy unconstitutional intrusions on individual liberty and privacy, this system is ineffective in practice because each component of the system has been undermined by crippling decisions of the U.S. Supreme Court.

Deconstitutionalizing Controls on Discretion

The Court’s treatment of the Fourth Amendment is a classic example. Under the traditional reading of the amendment’s text, the right to be free from unreasonable searches and seizures was protected by the probable cause standard and the warrant requirement. These text-based protections controlled the officer’s discretion to encroach on liberty or privacy unless there was individualized justification, determined by a neutral magistrate. Dominated by a "crime stopper" mentality, however, the Supreme Court has given a new reading to the amendment, which simply uses reasonableness as the touchstone of analysis. Under this new interpretation, the Court has systematically dismantled the traditional protections to give law enforcement greater discretion. The Court began this deconstruction by first substituting "reasonable suspicion" for the more robust probable cause standard. Initially, this exception was limited to only a few narrow categories. Exceptions to constitutional restraints on governmental power, however, are always subject to constant pressure to expand. Cut adrift from traditional textual moorings, the Court employed a simple balancing test to determine cases under the more flexible "reasonableness" analysis. Not surprisingly, the Court repeatedly found that "important" governmental interests "outweighed" the liberty or privacy claims of the solitary individual. As a result, an ever-expanding list of exceptions dramatically scaled back the application of the probable cause standard and reduced the warrant to a virtual artifact.

The Court even dispensed with any form of individualized justification in certain types of cases, upholding suspicionless searches and seizures under the so-called special needs doctrine. To be sure, in each of these cases there were attractive reasons for discarding traditional Fourth Amendment protections—from keeping drunk drivers off the road to keeping drug abusing students off the football field—but the "special needs" doctrine has threatened to become a runaway freight train, because there are an abundance of good causes that can be served by sacrificing protection for individual rights.

The Impact of September 11

Last Term, before September 11, the Court did attempt to apply the brakes, when it struck down narcotics checkpoints and the drug testing of pregnant women, holding that suspicionless searches and seizures must be justified by some immediate special need beyond the general interest in crime control. However, this Term, a unanimous Court has taken a different tack in two decisions that significantly broaden the use of the reasonable suspicion test. In United States v. Knights, 534 U.S. 112 (2001), the Court held that no "special need" for flexibility has to exist to make a warrantless search of a home on reasonable suspicion. The legality of such searches is to be determined by simply balancing the interests of the government against the privacy interests of the individual. In Knights, the fact that the homeowner was on probation was dispositive. Knights thus delivers the final coup de grace to the Framers’ text, making it possible now for the Court to balance away the protection of the warrant and probable cause standard even for privacy in the home—a core constitutional interest.

In the second case, United States v. Arvizu, 122 S. Ct. 744 (2002), the Court expanded the circumstances that constitute reasonable suspicion, holding that where a person lives can be used to color innocent conduct with suspicion. Thus, normal and wholly innocent conduct by a family in a minivan, driving through a national forest area in the afternoon on a public holiday, could be considered suspicious because they were traveling on a road that bypassed an immigration checkpoint and their minivan was registered to an address in an Arizona border town that had a reputation for smuggling activities.

This steady erosion of the standards that once controlled official discretion is just part of the picture, however. The Court has also significantly narrowed the reach of the Fourth Amendment by narrowly defining its operative terms, "search" and "seizure." Through the simple expedient of declaring that there is no "reasonable expectation of privacy" in an area, the Court can eliminate all Fourth Amendment protection whatsoever, because government intrusion into such an area is not deemed to be a "search." Thus, the Court has held that the Fourth Amendment does not restrict the government from rummaging through our trash, our phone records, or bank records, nor does it prevent prying into the privacy of our fenced backyards from the air. Moreover, instead of narrowly limiting discretion with its rulemaking power, the Court has crafted empowering bright-line rules that bestow wide discretion upon police to conduct suspicionless searches in a variety of settings. Finally, the Court has severely cut back sanctions for violating the Fourth Amendment by creating numerous exceptions to the exclusionary rule.

The Motive

The driving force behind all of these decisions has been the Court’s obvious distaste for the exclusionary rule, which lets the guilty go free, and an apparent fear that the Constitution will become a continuously flowing font of tort liability and federal intervention into matters best left to the states. It is, of course, a myth that significant numbers of guilty defendants go free because of the exclusionary rule, and concern over federalism issues would seem to be misplaced in view of the seemingly impenetrable barriers created by the doctrine of qualified immunity and the restrictive standing requirements attending equitable relief. Nevertheless, the practical effect of the Court’s Fourth Amendment jurisprudence has been to create a zone of largely unreviewable discretion within which police can operate without fear that evidence will be suppressed or personal liability incurred because of a constitutional violation. Unfortunately, a collateral consequence has been to substantially expand the zone in which citizens can be arbitrarily subjected to official power simply because of their race. Like the dog that didn’t bark in the famous Sherlock Holmes mystery, perhaps the most significant factor, never mentioned by the Court in Arvizu, was that the family in the minivan was Hispanic.

A Case in Point

Nowhere is the impact of deconstitutionalizing controls over police discretion more evident than in the Court’s decision last Term in Atwater v. Lago Vista, 532 U.S. 318 (2001). Although the Fourth Amendment was intended by the Framers to protect against the arbitrary exercise of power, in Atwater the Supreme Court, by the margin of a single vote, abdicated its role as guardian of that constitutional protection and upheld what all admit was arbitrary and unreasonable—the full custodial arrest of a soccer mom for a seat belt infraction, which under Texas law is punishable only by a $50 fine. Ms. Atwater was handcuffed with her hands behind her back, placed in a squad car, and transported (without a seat belt) to the police station. There, she was stripped of her shoes, her possessions, and her eyeglasses. After her mug shot was taken, she was placed in a holding cell for about an hour before being released by a judge on a $310 bond. When she returned to retrieve her car, she found it had been towed.

The record does not reveal any justification for making a custodial arrest instead of issuing a citation. There was no evidence that Ms. Atwater presented a flight risk or was a threat to either the officer or the public. Nor was there any evidence that she had provoked her arrest by being belligerent. It does appear, however, that this officer was on a zealous crusade to enforce the seat belt statute. Just three months earlier he had stopped Ms. Atwater because he mistakenly suspected that one of her children was not wearing a seat belt.

Believing that her warrantless custodial arrest for a nonjailable offense was arbitrary and unreasonable, Atwater filed suit against the officer under 42 U.S.C. § 1983. Over the dissenting voices of Justices O’Connor, Stevens, Ginsburg, and Breyer, the Court, in an opinion by Justice Souter, declared open season on motorists by refusing to place any restriction on an officer’s discretion to make a custodial arrest for a minor infraction. Atwater argued that absent circumstances where public safety required detention, a custodial arrest was unreasonable if the underlying offense itself did not carry any jail time. This seemingly straightforward bright-line rule, based on legislatively authorized punishment, was rejected by the majority, however, on the ground that such a rule would result in "increased litigation" that could result in the exclusion of evidence and personal liability of officers under § 1983 for making wrongful custodial arrests.

Faith and Unfaithfulness

During oral argument, Justice Souter indicated his belief that the type of "horrible case" presented by Atwater was "very rare." He, therefore, viewed as "speculative" Justice O’Connor’s assertion that minor traffic stops would become a gateway for harassment of minorities. Justice Souter and the majority were content to rely on the "good sense (and failing that, the political accountability) of most local lawmakers and law enforcement officials" to prevent an "epidemic of unnecessary minor traffic arrests." This idealistic faith in democracy as a cure-all, however, is unfaithful to the Framers’ understanding of the role of the Constitution. The Fourth Amendment was intended to prevent abuses from occurring by constraining unlimited discretion precisely because arbitrary power is destructive of liberty.

This democratic idealism also sadly betrays a mindset far removed from the reality of racial stereotyping and the plight of the powerless in America. By placing the burden on the citizenry to prove there is an "epidemic" of abuse before it will act to curb unbridled discretion, the Court overvalues the corrective measures that exist in theory, and dramatically undervalues the human liberty and privacy interests at stake.

Unbridled Discretion to Impose a Severe Intrusion

Apart from the humiliation and stigma of being arrested and handcuffed, a custodial arrest is a severe intrusion that can inflict a substantial loss of physical liberty. Regardless of the duration of incarceration, it constitutes a serious disruption to the life of the person arrested and can have attendant social costs, extending to the arrestee’s dependents and employer. A custodial arrest also results in a substantial invasion of one’s privacy. The arresting officer is now authorized to conduct a full search of the arrestee’s person and any immediately adjacent property as an incident of that arrest. The passenger compartment of the arrestee’s car can be searched and the car impounded, permitting a full "inventory search" to be undertaken. The arrestee is also subjected to the degrading process of being "booked" and the not unfrightening experience of being locked in a holding cell with strangers until bail is posted or a magistrate orders release. The Court’s cavalier dismissal of the consequences of a full custodial arrest displays an appalling indifference to the values of individual dignity, liberty, and privacy protected by the Fourth Amendment.

The risk that a police officer’s unconstrained discretion will be abused must also be evaluated by the degree to which opportunities for abuse exist. It is estimated that nationwide, there are over nineteen million traffic stops annually, representing about 10 percent of licensed drivers. The exposure of such a considerable portion of the population to unfettered discretion to impose severe intrusions on liberty and privacy should give us pause. But there is an additional reason why uncontrolled discretion should not be sanctioned. This is because, as recent studies have now established, the risk of being the target of such unbridled discretion is not evenly distributed.

Racial Profiling

Statistics compiled by the U.S. Department of Justice and local studies, such as the San Diego Police Department’s Vehicle Stop Study, have shown that black and Hispanic drivers are more likely to be stopped than white drivers. Officers who harbor racial stereotypes about drug use by minorities may now, after Atwater, effect a full custodial arrest as a pretext in order to do a full-blown search of both driver and car. In a classic catch 22, the officer cannot be cross-examined regarding the pretextual reasons for the stop because, under Whren v. United States, 517 U.S. 806 (1996) , his subjective motivations are irrelevant for Fourth Amendment purposes. Under Washington v. Davis, 426 U.S. 229 (1976), on the other hand, a mere statistical showing that minorities are disproportionately stopped in relation to their percentage of the population is insufficient to trigger strict equal protection scrutiny without evidence of "purposeful discrimination." Ironically, as the San Diego study revealed, the overwhelming majority of searches of black and Hispanic drivers discover nothing incriminating. Thus, these incidents never come to the Court’s attention and the erroneous belief that this is not a serious problem will continue.

A New Approach

There is another way to combat racial profiling, however. This new approach is based on the Court’s recent decision in Saenz v. Roe, 526 U.S. 489 (1999), that breathed new life into the long dormant Privileges or Immunities Clause of the Fourteenth Amendment, and reaffirmed that the right to travel is one of the privileges of national citizenship.

The Privileges or Immunities Clause declares that "No state shall make or enforce any law that shall abridge the Privileges or Immunities of citizens of the United States." It is important first to understand that the text of this clause differs in significant ways from both the Equal Protection Clause and the Fourth Amendment, each of which protects only against the denial or violation of a defined right. The Privileges or Immunities Clause, like the First Amendment, mandates broader protection by forbidding any abridgment (to reduce or interfere with full enjoyment) of fundamental rights. In the First Amendment context, abridgment can be found if the government practice only "chills" a person’s freedom of speech. Thus, abridgment does not require a complete denial of the right in question. Saenz, for example, involved no denial of the right to travel to California. The mere disincentive to travel and take up residence there, created by the reduced welfare benefits payable to newcomers, was deemed sufficient to make the plan unconstitutional.

If it is common knowledge that black citizens will be stopped and frisked if they walk on the beach at night in a certain affluent area, will this not chill their right to walk there? Similarly, if it is known that Hispanic drivers are routinely pulled over for "speeding" on a particular stretch of highway, will this not chill their right to travel in that area? Thus, where it is documented that traffic laws are enforced disproportionately against certain racial minorities, this should constitute an abridgment of the right to travel protected by the Privileges or Immunities Clause. In contrast to equal protection analysis, proof of disparate racial impact alone should be sufficient to establish abridgment because this circumstance chills the right to travel.

The Remedy

The next question is, what to do about it? To avoid succumbing to the pressures that deconstitutionalized Fourth Amendment protections, we must find a remedy that eschews sanctions such as the exclusionary rule and tort liability. These sanctions, of course, would remain available for violations of Fourth Amendment rights. It makes sense, however, not to impose the exclusionary rule as a sanction for abridgment of the right to travel, because it removes what would otherwise become a strong motivation to restrict the definition of abridgment and limit the scope of the Privileges or Immunities Clause. It can also be argued that abridgment of a privilege should not be subject to § 1983 tort liability because that statute requires a deprivation of the right or privilege in question.

Taking a lesson from Brown v. Board of Education, 347 U.S. 483 (1954), and building on the suggestion made over a decade ago by noted criminal procedure authority Professor Wayne LaFave, the remedy for abridgment by police of the right to travel could instead be for courts to require that police departments promulgate their own standards to control police discretion.

Thus, for example, neutral criteria could be established for determining which drivers in the sea of traffic violators will be plucked out for official retribution. Likewise, in the Atwater context, the department could establish standards for deciding when custodial arrests should be made for minor offenses.

A Federal Ombudsman

Although a police department’s failure to implement adequate standards might be handled through injunctive relief and contempt of court powers, the failure of individual officers to obey such internal standards raises a broader issue. As the bogus drug busts in the Dallas "Sheetrock" scandal and the Rampart police scandal in Los Angeles have demonstrated, one of the glaring deficiencies of the present system has been its failure to instill respect for constitutional standards in rank and file officers. Because the exclusion of evidence is seen as too high a price, gamesmanship, distortions of the truth, and outright perjury currently make a mockery of integrity in our criminal courtrooms.

Having the police (with judicial oversight) establish their own standards will have a salutary effect. However, neither the police nor local prosecutors have the necessary credibility to act as enforcers of those norms. What is needed is an independent investigative agency that citizens can turn to. One solution is to establish a federal Ombudsman. The virtues of this independent government watchdog have been recognized and duplicated by nations throughout the world. The concept has also increasingly been employed in the medical community.

It is proposed, pursuant to § 5 of the Fourteenth Amendment, that a federal Ombudsman be created in each federal judicial district to receive and investigate citizen complaints regarding allegations of police misconduct that abridge the Privileges or Immunities Clause. The Ombudsman should have full authority, including subpoena power, to thoroughly investigate complaints and make recommendations to the state and local agencies concerned. He or she should also have the power under certain specified circumstances to seek judicial enforcement. The ultimate power of the Ombudsman, however, would be the power of the press, public opinion, and democratic action at the polls. With such a system in place, Justice Souter’s faith in democratic accountability might then become a more realistic vision.

This is not to say there are no problems with this approach. To be sure, many details remain to be worked out. Chief among them would be how to ensure that the Ombudsman is selected in a manner that guarantees his or her independence. The restoration of the Privileges or Immunities Clause to its intended purpose to protect all fundamental rights would also have to be undertaken. But it is a new beginning and one that should at least be considered if human rights are to remain a treasured value in this land of the free.

Laurence A. Benner

Laurence A. Benner is a professor of constitutional law and criminal procedure at California Western School of Law and former chief counsel to the Ombudsman Commission of Papua New Guinea.