Amicus Curiae Brief — Randy Johnson, Petitioner v. United States

Supreme Court briefApr 25, 2018

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No. 17-1349

In the Supreme Court of the United States

RANDY JOHNSON,

Petitioner,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

BRIEF OF THE CATO INSTITUTE AS

AMICUS CURIAE SUPPORTING PETITIONER

_____________________

April 25, 2018

Jay R. Schweikert

Counsel of Record

Meggan DeWitt

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

jschweikert@cato.org

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ........................... ii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 1

ARGUMENT ................................................................ 3

THE FOURTH AMENDMENT WAS

DESIGNED TO PREVENT THE ARBITRARY

ABUSES OF POWER THAT EXISTED

UNDER GENERAL WARRANTS .................... 3

II.

WHREN’S SANCTION OF PRETEXTUAL

STOPS HAS ALREADY BROUGHT US

DANGEROUSLY CLOSE TO LIVING UNDER

GENERAL WARRANT CONDITIONS............ 6

III.

EXTENDING WHREN WOULD BE

ESPECIALLY DANGEROUS GIVEN THE

CURRENT STATE OF

OVERCRIMINALIZATION ............................ 10

CONCLUSION .......................................................... 14

TABLE OF CITED AUTHORITIES

Page(s)

Cases

Boyd v. United States, 116 U.S. 616 (1886) ............ 3, 4

Carroll v. United States, 267 U.S. 132 (1925) ............ 8

Chambers v. Maroney, 399 U.S. 42 (1970) .................. 8

Chimel v. California, 395 U.S. 752 (1969) .................. 3

District of Columbia v. Wesby, 583 U.S. ___, No. 151485, slip op. (Jan. 22, 2018) ............................. 3, 14

Florida v. Meyers, 466 U.S. 380 (1984) ....................... 8

Katz v. United States, 389 U.S. 347 (1967) ................. 8

Ker v. California, 374 U.S. 23 (1963) .......................... 9

Maryland v. Dyson, 527 U.S. 465 (1999) .................... 8

Michigan v. Tyler, 436 U.S. 499 (1978)....................... 9

New York v. Belton, 453 U.S. 454 (1981) .................... 9

Ohio v. Robinette, 519 U.S. 33 (1996) ......................... 9

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ....... 9

Stanford v. Texas, 379 U.S. 476 (1965) ....................... 6

Texas v. White, 423 U.S. 67 (1975) .............................. 8

United States v. Chadwick, 433 U.S. 1 (1977) ............ 3

United States v. Chhien, 266 F.3d 1 (1st Cir. 2001) ... 7

United States v. Escalante,

239 F.3d 678 (5th Cir. 2001) .................................... 7

United States v. Johnson,

874 F.3d 571 (7th Cir. 2017) ........................ 9, 10, 13

Whren v. United States, 517 U.S. 806 (1996).......... 1, 6

iii

Other Authorities

Al Baker, J. David Goodman & Benjamin Mueller,

Beyond the Chokehold: The Path to Eric Garner’s

Death, N.Y. TIMES, June 13, 2015,

https://nyti.ms/2uwur8y ......................................... 13

Alana Semuels, The Trash Man Is Watching You,

ATLANTIC, June 26, 2015,

https://theatln.tc/2vLAOX5.................................... 12

Brian J., O’Donnell, Note, Whren v. United States:

An Abrupt End to the Debate over Pretextual

Stops, 49 ME. L. REV. 207 (1997) ............................. 7

Christina Sterbenz & Melia Robinson, Here Are The

Most Ridiculous Laws In Every State, BUS. INSIDER,

Feb. 21, 2014, https://read.bi/2vIyLDb .................. 12

David A. Harris, “Driving While Black” and All Other

Traffic Offenses: The Supreme Court and Pretextual

Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544

(1997) ........................................................................ 7

David A. Moran, The New Fourth Amendment Vehicle

Doctrine: Stop and Search Any Car at Any Time,

47 VILL. L. REV. 815 (2002) ...................................... 7

DOUGLAS HUSAK, OVERCRIMINALIZATION: THE

LIMITS OF THE CRIMINAL LAW (2008) ..................... 11

HARVEY A. SILVERGLATE, THREE FELONIES A DAY:

HOW THE FEDS TARGET THE INNOCENT (2009) ....... 11

Joe Dziemianowicz, Your kid’s lemonade stand might

be illegal, here are the rules, N.Y. DAILY NEWS,

July 13, 2017, http://bit.ly/2vMAqru ..................... 12

Jonathan Witmer-Rich, Arbitrary Law Enforcement is

Unreasonable: Whren’s Failure to Hold Police

Accountable for Traffic Enforcement Policies,

66 CASE W. RES. L. REV. 1059 (2016) ....................... 7

Niko Koppel, Are Your Jeans Sagging? Go Directly

to Jail., N.Y. TIMES, Aug. 30, 2007,

https://nyti.ms/2r0PFHL ........................................ 12

Patrick Johnson, Holyoke woman, sick with cancer,

arrested on warrant issued after she failed to renew

dog license, MASSLIVE, Mar. 25, 2014,

http://bit.ly/2vM2paE ............................................. 12

Paul J. Larkin, Jr., Public Choice Theory and

Overcriminalization, 36 HARV. J. L. & PUB. POL’Y

715 (2013) ............................................................... 11

Radley Balko, General Warrants, NSA Spying, And

America’s Unappreciated Founding Father, James

Otis, Jr., HUFFINGTON POST, July 4, 2013, updated

Dec. 6, 2017, http://bit.ly/2vLAmrR ......................... 4

RADLEY BALKO, RISE OF THE WARRIOR COP: THE

MILITARIZATION OF AMERICA’S POLICE FORCES

(2013) .................................................................... 4, 5

Sarah A. Seo, The New Public, 125 YALE L.J. 1616

(2016) ...................................................................... 10

Thomas K. Clancy, The Framers’ Intent: John Adams,

His Era, and the Fourth Amendment, 86 IND. L.J.

979 (2011) ................................................................. 4

United States of Crazy Laws, Olivet Nazarene

University, Jan. 14, 2016, http://bit.ly/2vFoM1s .. 12

WILLIAM CUDDIHY, THE FOURTH AMENDMENT:

ORIGINS AND ORIGINAL MEANING (2009) .................. 5

WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN

CRIMINAL JUSTICE (2011) ....................................... 11

William J. Stuntz, Warrants and Fourth

Amendment Remedies, 77 VA. L. REV. 881 (1991) ... 8

INTEREST OF AMICUS CURIAE1

The Cato Institute (“Cato”) is a nonprofit, nonpartisan public policy research foundation that was established in 1977 to advance the principles of individual

liberty, free markets, and limited government. Cato’s

Project on Criminal Justice was founded in 1999, and

focuses in particular on the scope of substantive criminal liability, the proper and effective role of police in

their communities, the protection of constitutional and

statutory safeguards for criminal suspects and defendants, citizen participation in the criminal justice system, and accountability for law enforcement.

Cato’s concern in this case is the continuing vitality

of the Fourth Amendment and its ability to act as a

meaningful restraint on the exercise of government

power. In the modern era of rampant overcriminalization, an extension of the ability to make pretextual

stops for violations of minimal, fine-only offenses

threatens to expose any American to search and seizure on a daily basis.

SUMMARY OF ARGUMENT

The Petition presents a crucial question that goes to

the heart of the Fourth Amendment and raises serious

concerns about government power. Should the logic of

Whren v. United States, 517 U.S. 806 (1996)—permitting pretextual searches and seizures whenever there

is probable cause for a traffic offense—be permitted to

cover any and all trivial violations? If the Court per-

1 Rule 37 statement: All parties were timely notified and con-

sented to the filing of this brief. No part of this brief was authored

by any party’s counsel, and no person or entity other than amicus

funded its preparation or submission.

mits such an extension, then it will effectively resurrect the power of the general warrant—227 years after

the Fourth Amendment was ratified.

The general warrant, which historically gave officers broad discretion to search wherever and whatever

they deemed necessary, began to rapidly lose favor in

Britain by the beginning of the 18th century. Contempt for those arbitrary practices in the American

colonies was a major cause for the Revolutionary War

itself, and the Fourth Amendment was passed to obliterate the possibility that Americans might be subject

to such behavior.

Unfortunately, the Court’s decision in Whren—in

conjunction with the many exceptions to the warrant

requirement—has severely undermined those exact

protections that the Framers sought to enshrine. By

authorizing pretextual stops whenever a police officer

has probable cause to believe any traffic violation has

occurred, Whren gives enormous discretion to law enforcement to stop anyone driving a car anytime, for

any reason. After all, it is a truism that in practice, no

one can actually operate a motor vehicle for an extended period of time without running afoul of some

traffic regulation.

But as dangerous as Whren is already, extending

the doctrine to parking violations—and presumably,

trivial, fine-only offenses of any sort—would be far

worse. With malum prohibitum criminalization of

every aspect of life growing rapidly, extending Whren

beyond moving violations, and with no limiting principle, will effectively subject every individual to the

whims of any law enforcement officer, at any time.

This case is an ideal vehicle for the Court to follow

Justice Ginsburg’s recent suggestion that Whren itself

should be reconsidered. See District of Columbia v.

Wesby, 583 U.S. ___, No. 15-1485, slip op. at 2 (Jan. 22,

2018) (Ginsburg, J., concurring in the judgment in

part). But at the very least, the Court should grant the

Petition to reverse the decision below, and clarify that

Whren will not be extended beyond its current parameters. In 2018, Americans should not find themselves

again in the position that James Otis, Jr. railed

against 257 years ago, in which “the liberty of every

man [is] in the hands of every petty officer.” Boyd v.

United States, 116 U.S. 616, 625 (1886).

ARGUMENT

I. THE FOURTH AMENDMENT WAS DESIGNED TO PREVENT THE ARBITRARY

ABUSES OF POWER THAT EXISTED UNDER GENERAL WARRANTS.

As the Court has acknowledged many times, “[i]t

cannot be doubted that the Fourth Amendment’s commands grew in large measure out of the colonists’ experience with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power

to customs officials and other agents of the King to

search at large for smuggled goods.” United States v.

Chadwick, 433 U.S. 1, 7-8 (1977). As described in another decision, “[t]he Amendment was in large part a

reaction to the general warrants and warrantless

searches that had so alienated the colonists and had

helped speed the movement for independence.” Chimel

v. California, 395 U.S. 752, 761 (1969).

The general warrant that colonists found particularly bedeviling was the writ of assistance—a tool is-

sued to aid the British in combatting the colonial reaction to new and increased taxes by giving law enforcement carte blanche authority to search for smuggled

goods. RADLEY BALKO, RISE OF THE WARRIOR COP: THE

MILITARIZATION OF AMERICA’S POLICE FORCES 8 (2013).

A few notable cases in particular stoked the colonists’

hatred of these expansive and arbitrary powers during

“the period of 1761-1791 [which] was characterized by

aggressive British search and seizure practices,” and

during which time “the principles that found their way

into the Fourth Amendment crystallized.” Thomas K.

Clancy, The Framers’ Intent: John Adams, His Era,

and the Fourth Amendment, 86 IND. L.J. 979, 980

(2011).

In Paxton’s Case, James Otis, Jr. represented a

group of Boston merchants in a lawsuit designed to

publicize and coalesce public opinion against the practice of utilizing writs of assistance to arbitrarily invade

the lives of colonists. Radley Balko, General Warrants,

NSA Spying, And America’s Unappreciated Founding

Father, James Otis, Jr., HUFFINGTON POST, July 4,

2013, updated Dec. 6, 2017, http://bit.ly/2vLAmrR. In

his “impassioned, wide-ranging, five-hour polemic

against the practice of general warrants,” id., Otis

called writs of assistance “the worst instrument of arbitrary power, the most destructive of English liberty[]

and the fundamental principles of law, that ever was

found in an English law book” because they placed “the

liberty of every man in the hands of every petty officer.” Boyd, 116 U.S. at 625.

John Adams—a man to whom responsibility for the

language and structure of the Fourth Amendment has

been attributed—was thoroughly inspired by James

Otis’ arguments against arbitrary power. See Clancy,

supra, at 981. Adams famously recalled that “[e]very

man of an immense crowded audience appeared to me

to go away as I did, ready to take arms against writs

of assistance.” BALKO, supra, at 10. Adams felt that

Otis’ passionate attack sparked the revolution, recalling that “[t]hen and there was the first scene of the

first act of opposition to the arbitrary claims of Great

Britain. Then and there, the child Independence was

born.” Id.

Another major incident that raised colonial ire

against general warrants and writs of assistance was

the Wilkes Case. See WILLIAM CUDDIHY, THE FOURTH

AMENDMENT: ORIGINS AND ORIGINAL MEANING 440-465

(2009). Despite occurring in England, it was publicized

and followed closely in the American colonies. Id. John

Wilkes, a radical English journalist, stated in Issue

No. 45 of The North Briton that the British secretaries

of state were “the tools of corruption and despotism,”

even going as far as to criticize the King. Id. at 440.

While carrying out a general warrant issued to find

the authors, printers, and publishers of the despised

No. 45, officials broke hundreds of locks, dozens of

trunks and at least 20 doors while “promiscuously”

dumping thousands of books, charts, and manuscripts—indeed, “[t]he zealous invaders even seized

Wilkes’ will, pocket book, and prophylactics.” Id. at

442-43. A single general warrant had provided for the

arrest of 49 people (who were mostly innocent) and the

search of at least five houses, all in 30 hours’ time. Id.

at 443. For deciding to fight against the practice of the

general warrant and abuses that accompanied them,

Wilkes became a household name in the American colonies, and a hero on both sides of the pond.

These abuses at the hands of officials acting under

the authority of a general warrant and aided by writs

of assistance were “vivid in the memory” of the Framers as the Fourth Amendment was crafted. Stanford v.

Texas, 379 U.S. 476, 481 (1965). Though there was

some discussion of various options, and “the framingera sources did not always agree on the details of the

criteria for regulating searches and seizures, they

were united in seeking objective criteria to measure

the propriety of government actions.” Clancy, supra, at

980. The language selected was “precise and clear,”

“reflect[ing] the determination of those who wrote the

Bill of Rights that the people of this new Nation should

forever ‘be secure in their persons, houses, papers, and

effects’ from intrusion and seizure by officers acting

under the unbridled authority of a general warrant.”

Stanford, 379 U.S. at 481.

II. WHREN’S SANCTION OF PRETEXTUAL

STOPS HAS ALREADY BROUGHT US DANGEROUSLY CLOSE TO LIVING UNDER

GENERAL WARRANT CONDITIONS.

In Whren, this Court “foreclose[d] any argument

that the constitutional reasonableness of traffic stops

depends on the actual motivations of the individual officers involved.” 517 U.S. at 813. In other words, even

where the alleged probable cause is merely pretext for

a stop motivated by an entirely separate concern—

even pretext for unlawful motives, such as “selective

enforcement of the law based on considerations such

as race,” id.—such stops are nevertheless still “reasonable” under the Fourth Amendment.

The practical effect of this decision has been to give

police officers nearly unfettered discretion to stop any

person they choose at any time. This is because, “on

any given day, one or more of these [minor] violations

[such as driving less than five miles an hour over the

speed limit, turning or changing lanes without signaling, or swerving slightly out of one’s lane] are surely

committed by the majority of drivers on the road.”

Brian J., O’Donnell, Note, Whren v. United States: An

Abrupt End to the Debate over Pretextual Stops, 49 ME.

L. REV. 207, 210 (1997). It is therefore hardly surprising that Whren has been subjected to extensive criticism, mainly on the grounds that it invites arbitrary

exercises of power and unequal application of the law.2

Law enforcement has certainly not hesitated to take

full advantage of the power to make pretextual stops.

For example, in United States v. Escalante, 239 F.3d

678 (5th Cir. 2001), the Fifth Circuit upheld a search

and seizure where the purported probable cause was

that the defendant violated Mississippi’s careless driving statute by “weav[ing] across the lane divider lines

two or three times.” Id. at 679. But this justification

was almost certainly pretextual, as the officer “candidly acknowledged at the suppression hearing that he

suspected drug smuggling when Escalante passed

him.” Id. at 682 (Stewart, J., dissenting). As the dissent noted, the officer here went beyond even a pretextual stop, and effectively “manufacture[d] probable

cause by tailgating a motorist.” Id. See also United

States v. Chhien, 266 F.3d 1, 4 (1st Cir. 2001) (upholding search and seizure by member of an elite police

team trained to “look beyond the traffic ticket,” and

2 See generally Jonathan Witmer-Rich, Arbitrary Law Enforce-

ment is Unreasonable: Whren’s Failure to Hold Police Accountable

for Traffic Enforcement Policies, 66 CASE W. RES. L. REV. 1059

(2016); David A. Moran, The New Fourth Amendment Vehicle

Doctrine: Stop and Search Any Car at Any Time, 47 VILL. L. REV.

815 (2002); David A. Harris, “Driving While Black” and All Other

Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,

87 J. CRIM. L. & CRIMINOLOGY 544 (1997).

use “routine traffic patrols” to “ferret out serious criminal activity”).

The impact of Whren is compounded by the doctrine’s intersection with other increasingly expansive

exceptions to the warrant requirement. In theory,

“searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment—subject

only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347,

357 (1967). In practice, however, these “exceptions”

have become so expansive that “warrants are the exception rather than the rule.” William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV.

881, 882 (1991).

Most notable among these is the vehicle exception,

first articulated in Carroll v. United States, 267 U.S.

132 (1925). The professed theory for this doctrine is

that it often “is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be

sought.” Id. at 153. But over time it has been extended

to include “vehicles” that are not functionally mobile,

in situations that do not appear to implicate any of

Carroll’s practical concerns. See Maryland v. Dyson,

527 U.S. 465, 466-67 (1999) (upholding warrantless

search despite lack of exigency); Florida v. Meyers, 466

U.S. 380, 382-383 (1984) (approving warrantless

search of impounded car in secured area); Texas v.

White, 423 U.S. 67, 68-69 (1975) (upholding search of

seized car despite being parked at police station);

Chambers v. Maroney, 399 U.S. 42, 51-52 (1970) (approving warrantless search and seizure despite car being impounded and occupants jailed).

Exigency, another exception to the warrant requirement, has likewise been applied liberally in favor of

police expediency. See, e.g., Michigan v. Tyler, 436 U.S.

499, 509 (1978) (to fight fire and investigate cause);

Ker v. California, 374 U.S. 23, 40-41 (1963) (to prevent

imminent destruction of evidence). The same can also

be said of the circumstances necessary to obtain consent to search. See, e.g. Ohio v. Robinette, 519 U.S. 33

(1996); Schneckloth v. Bustamonte, 412 U.S. 218, 24849 (1973) (upholding “consent search” of vehicle despite consenter’s lack of knowledge that he could refuse). Police likewise have authority to conduct broad

searches incident to lawful arrests. See New York v.

Belton, 453 U.S. 454, 462-63 (1981).

The aggregation of these and other doctrines “already enables a host of aggressive and intrusive police

tactics.” United States v. Johnson, 874 F.3d 571, 577

(7th Cir. 2017) (en banc) (Hamilton, J., dissenting).

Judge Hamilton’s dissent explains how Whren enables

a cascade of severe consequences for anyone committing even a trivial traffic violation:

Officers who have probable cause for a

trivial traffic violation can stop the car

under Whren and then order all occupants out of the car, Maryland v. Wilson,

519 U.S. 408 (1997), often frisk them, Arizona v. Johnson, 555 U.S. 323 (2009),

question them in an intimidating way,

visually inspect the interior of the car,

Colorado v. Bannister, 449 U.S. 1, 4 & n.3

(1980), often search at least portions of

the vehicle’s interior, Arizona v. Gant,

556 U.S. 332 (2009); Michigan v. Long,

463 U.S. 1032 (1983), and hold the driver

and passengers while a drug-detection

dog inspects the vehicle, Illinois v. Caballes, 543 U.S. 405, 406-08 (2005).

...

The Fourth Amendment also allows police to arrest suspects for minor traffic infractions even if a court could impose only

a fine, Atwater v. City of Lago Vista, 532

U.S. 318 (2001), and arrested persons can

be strip-searched, Florence v. Board of

Chosen Freeholders, 566 U.S. 318, 339

(2012), fingerprinted, photographed, and

perhaps even subjected to a DNA test, see

Maryland v. King, 569 U.S. 435, 481

(2013) (Scalia, J., dissenting). Moreover,

a Terry stop can even be justified by an

officer’s mistake of either law or fact.

Heien v. North Carolina, 135 S. Ct. 530,

536 (2014).

Johnson, 874 F.3d at 577-78. Whren’s authorization of

pretextual stops therefore effectively amounts to “‘the

twentieth-century version of the general warrant.’” Id.

at 575 (quoting Sarah A. Seo, The New Public, 125

YALE L.J. 1616, 1669 (2016)).

III. EXTENDING WHREN WOULD BE ESPECIALLY DANGEROUS GIVEN THE CURRENT STATE OF OVERCRIMINALIZATION.

Pretextual searches might not be quite so concerning if it were a serious and meaningful hurdle that police establish probable cause to believe that some crime

has occurred. If the scope of criminal liability were reasonably limited in the first place, then the Whren doctrine would at least have the virtue of not giving such

broad, unfettered discretion to law enforcement. The

problem under Whren, of course, is that it is nearly impossible for anyone to operate a motor vehicle for an

extended period of time without committing some traffic offense. But as broad as such liability already is,

upholding the decision below—and extending Whren

to any and all of even the most trivial “criminal” violations—would be even more concerning.

The explosion of laws, rules, regulations, and ordinances governing the lives of individual Americans is

overwhelming and deeply disconcerting to those intent

on living as free people. See generally WILLIAM J.

STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE (2011); DOUGLAS HUSAK, OVERCRIMINALIZATION:

THE LIMITS OF THE CRIMINAL LAW (2008). Forty percent

of the roughly 4,500 federal criminal offenses contained in the federal code have been enacted since

around 1980. HARVEY A. SILVERGLATE, THREE FELONIES A DAY: HOW THE FEDS TARGET THE INNOCENT 202

(2009). The number of potential federal crimes swells

to an estimated 300,000 when regulations that are incorporated into the criminal code by reference are included. Paul J. Larkin, Jr., Public Choice Theory and

Overcriminalization, 36 HARV. J. L. & PUB. POL’Y 715,

729 (2013).

And that, of course, is just on the federal level. It is

hard enough for the average person to operate a motor

vehicle without committing a moving violation of some

sort—speeding by any amount, traveling too far under

the speed limit, excessive lane changing, tailgating,

failure to signal a turn soon enough, etc. How much

more difficult would it be for average Americans to remain free of humiliating seizures and searches if the

extraordinarily power bestowed on law enforcement by

Whren were extended to permit pretextual stops based

on any other trivial violation an officer believes has

been committed?

Even aside from the most bizarre and outlandish instances of criminalization,3 every jurisdiction includes

code enforcement provisions against trivial, malum

prohibitum behavior. In addition to parking violations,

such regulations would include, for example, prohibitions against jay-walking, littering, riding bicycles on

the sidewalk, wearing saggy pants,4 and placing recycling and trash bags in incorrect locations for collection.5 Some jurisdictions require that all bicycles and

pets be registered with the city or county.6 Many have

criminal prohibitions on broad, vaguely defined activities like “loitering” or “disturbing the peace.” Most

have extensive “health and safety” regulations for anyone selling food, drink, or other consumables—from

restaurants, to food trucks, to children operating lemonade stands.7

Most Americans assume that their daily lives are

not open to the possibility of invasion by police for the

3 See United States of Crazy Laws, Olivet Nazarene University,

Jan. 14, 2016, http://bit.ly/2vFoM1s; Christina Sterbenz & Melia

Robinson, Here Are The Most Ridiculous Laws In Every State,

BUS. INSIDER, Feb. 21, 2014, https://read.bi/2vIyLDb.

4 See Niko Koppel, Are Your Jeans Sagging? Go Directly to Jail.,

N.Y. TIMES, Aug. 30, 2007, https://nyti.ms/2r0PFHL.

5 See Alana Semuels, The Trash Man Is Watching You, ATLAN-

TIC, June 26, 2015, https://theatln.tc/2vLAOX5.

6 See Patrick Johnson, Holyoke woman, sick with cancer, arrested

on warrant issued after she failed to renew dog license, MASSLIVE,

Mar. 25, 2014, http://bit.ly/2vM2paE.

7 Joe Dziemianowicz, Your kid’s lemonade stand might be illegal,

here are the rules, N.Y. DAILY NEWS, July 13, 2017,

http://bit.ly/2vMAqru.

most mundane and insignificant infractions. The vast

majority of the time, such harmless legal violations

lead to no consequences whatsoever—or at most a

warning or minor ticket. But by permitting pretextual

stops for any and all of the above, the Seventh Circuit’s

decision subjects every citizen not just to the risk of

prosecution for trivial offenses, but to the risk that police may leverage this staggering breadth of substantive overcriminalization as pretext for whatever other

motives they might have.

“With authority to stop comes the authority to require the subject to submit to the stop, and to use reasonable force in doing so,” and “[i]n these encounters,

the danger of further escalation is always present.”

Johnson, 874 F.3d at 578 (Hamilton, J., dissenting).

One need only have paid glancing attention to the

news for the last few years to know that it is easy for

interactions between civilians and law enforcement to

escalate rapidly, and that deadly force may be employed.

In 2014, for example, Eric Garner was killed by a

police officer who decided to arrest and place Garner

in a department-prohibited chokehold for the nefarious offense of selling cigarettes on the street. Al Baker,

J. David Goodman & Benjamin Mueller, Beyond the

Chokehold: The Path to Eric Garner’s Death, N.Y.

TIMES, June 13, 2015, https://nyti.ms/ 2uwur8y. That

tragedy vividly illustrates the potential consequences

when the full force of stops and seizures is permitted

for the most trifling legal violations. If the Seventh

Circuit’s opinion is upheld, such tragedies will only become more commonplace.

CONCLUSION

Writing separately in District of Columbia v. Wesby,

583 U.S. ___, No. 15-1485, slip op. (Jan. 22, 2018), Justice Ginsburg recently called into question Whren’s absolute sanction on pretextual stops, noting that “[t]he

Court’s jurisprudence . . . sets the balance too heavily

in favor of police unaccountability to the detriment of

Fourth Amendment protection,” that “[a] number of

commentators have criticized the path we charted in

Whren v. United States,” and that she would “leave

open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.” Id. (Ginsburg, J., concurring in the judgment

in part), slip op. at 2.

This is exactly such a “future case.” For all of the

reasons given above, Whren ought to be reconsidered

and revised—or at the very least, the Court should ensure that lower courts do not extend it any further

than current precedent demands. For the foregoing

reasons, and those set forth by the Petitioner, the

Court should grant the Petition.

Respectfully submitted,