Amicus Curiae Brief — Casondra Pollreis, on Behalf of Herself and Her Minor Children, W. Y. and S. Y., Petitioner v. Lamont Marzolf

No. 21-901

In the Supreme Court of the United States

CASONDRA POLLREIS, ON BEHALF OF HERSELF AND HER

MINOR CHILDREN, W.Y. AND S.Y.,

Petitioner,

v.

LAMONT MARZOLF,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

MOTION FOR LEAVE TO FILE AND BRIEF OF

THE CATO INSTITUTE AS AMICUS CURIAE

SUPPORTING PETITIONER

_____________________

January 18, 2022

Clark M. Neily III

Jay R. Schweikert

Counsel of Record

Nicole Saad Bembridge

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 216-1461

jschweikert@cato.org

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE SUPPORTING PETITIONER

Pursuant to Supreme Court Rule 37.2(b), the Cato

Institute respectfully moves for leave to file the attached brief as amicus curiae supporting Petitioner.

All parties were timely notified of amicus’s intent to

file as required under Rule 37.2(a). Petitioner consented to this filing; Respondent withheld consent.

Cato was established in 1977 as a nonpartisan public policy research foundation dedicated to advancing

the principles of individual liberty, free markets, and

limited government. Cato’s Project on Criminal Justice was founded in 1999, and focuses 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 officers. Toward these ends, Cato holds conferences; publishes books, studies, and the Cato Supreme Court Review; and files amicus briefs in this

Court and courts around the country.

Amicus’s interest in this case arises from its mission to support the rights that the Constitution guarantees to all citizens. Amicus has a particular interest

in cases involving alleged misconduct by law enforcement officers and suits to vindicate constitutional

rights brought under 42 U.S.C. § 1983. Cato was recently granted leave by the Court to file an amicus

brief in another such case in Tucker v City of Shreveport, No. 21-569.

Cato has no direct interest, financial or otherwise,

in the outcome of this case.

For the foregoing reasons, Cato respectfully requests that it be allowed to file the attached brief as

amicus curiae.

Respectfully submitted,

Clark M. Neily III

Jay R. Schweikert

Counsel of Record

Nicole Saad Bembridge

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(202) 216-1461

jschweikert@cato.org

January 18, 2022

i

TABLE OF CONTENTS

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

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

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

I.

THE EIGHTH CIRCUIT’S HOLDING

REFLECTS A TROUBLING JUDICIAL

TREND FOR FOURTH AMENDMENT

EXCEPTIONS TO SWALLOW THE RULES. . 3

II.

EXCESSIVE DEFERENCE TO LAW

ENFORCEMENT UNDERMINES PUBLIC

TRUST IN THE POLICE. .............................. 10

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Gant, 556 U.S. 332 (2009) .......................... 9

Arizona v. Johnson, 555 U.S. 323 (2009) .................... 9

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) .. 10

Berkemer v. McCarty, 468 U.S. 420 (1984) ............. 4, 5

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

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

Colorado v. Bannister, 449 U.S. 1 (1980) .................... 9

Florence v. Bd. of Chosen Freeholders, 566 U.S. 318

(2012) ...................................................................... 10

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

Heien v. North Carolina, 135 S. Ct. 530 (2014) ........ 10

Illinois v. Caballes, 543 U.S. 405 (2005) ................... 10

Katz v. United States, 389 U.S. 347 (1967) ................. 3

Kentucky v. King, 563 U.S. 452 (2011) ........................ 3

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

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

Maryland v. King, 569 U.S. 435 (2013) .................... 10

Maryland v. Wilson, 519 U.S. 408 (1997) ................... 9

Michigan v. Long, 463 U.S. 1032 (1983) ..................... 9

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

Pollreis v. Marzolf, 9 F.4th 737 (8th Cir. 2021) .......... 5

iii

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

Terry v. Ohio, 392 U.S. 1 (1968) .............................. 1, 4

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

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

United States v. Escalante, 239 F.3d 678 (5th Cir.

2001) ..................................................................... 6, 7

United States v. Gil, 204 F.3d 1347 (11th Cir. 2000) . 5

United States v. Johnson, 874 F.3d 571 (7th Cir.

2017) (en banc) ........................................... 7, 8, 9, 10

United States v. Taylor, 716 F.2d 701 (9th Cir. 1983) 5

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

Other Authorities

Aimee Ortiz, Confidence in Police Is at Record Low,

Gallup Survey Finds, N.Y. TIMES (Aug. 12, 2020) 11

Ben Poston, Alene Tchkmedyian, Sheriff’s

Department bike stops: How we reported the story,

L.A. TIMES (Nov. 4, 2021) ......................................... 7

Clark M. Neily III, Police Accountability Is a Matter

of Life and Death, CATO AT LIBERTY (May 25, 2021),

https://www.cato.org/blog/police-accountabilitymatter-life-death .................................................... 13

Fred O. Smith, Abstention in a Time of Ferguson, 131

HARV. L. REV. 2283 (2018) ..................................... 12

Inst. on Race and Justice, Northeastern Univ.,

Promoting Cooperative Strategies to Reduce Racial

Profiling (2008)................................................. 12, 13

Laurie L. Levenson, Police Corruption and New

Models for Reform, 35 SUFFOLK U. L. REV. 1 (2001)

................................................................................ 13

iv

Mark A. Godsey, When Terry Met Miranda: Two

Constitutional Doctrines Collide, 63 FORDHAM L.

REV. 715 (1994)......................................................... 5

Mike Baker, et al., Three Words. 70 Cases. The Tragic

History of ‘I Can’t Breathe.’, N.Y. TIMES (June 29,

2020) ....................................................................... 11

Rich Morin et al., Pew Research Ctr., Behind the

Badge (2017) ..................................................... 11, 13

Stephen Rushin & Griffin Edwards, An Empirical

Assessment of Pretextual Stops and Racial

Profiling, 73 SLR 637 (2021) ................................... 6

U.S. Dep’t of Justice, Investigation of the Ferguson

Police Department (Mar. 4, 2015) .......................... 12

Wayne A. Logan, An Exception Swallows a Rule:

Police Authority to Search Incident to Arrest, 19

YALE L. & POL’Y REV. 381 (2001) ............................. 4

William J. Stuntz, Warrants and Fourth Amendment

Remedies, 77 VA. L. REV. 881 (1991) ....................... 4

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice focuses on the scope of substantive

criminal liability, the proper role of police in their communities, the protection of constitutional safeguards

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

This case concerns Cato because the lower court’s

decision represents an extension of the Terry doctrine

beyond its constitutional or historical scope. In recent

years, courts have expanded Terry to permit more

force and more policing discretion than this court’s

original holding permits, and in doing so, have contributed to the public’s declining trust in law enforcement.

SUMMARY OF ARGUMENT

When the Supreme Court created an exception to

the Fourth Amendment’s warrant requirement in

Terry v. Ohio, 392 U.S. 1 (1968), it took great care to

carve it narrowly. Terry allows brief, relatively unintrusive investigative stops based on reasonable suspicion of criminal activity. Id. at 27. Additional intrusions are strictly circumscribed by the exigencies presented by the case. Id. at 30. This individualized reasonable-suspicion requirement prevents police from

1 Rule 37 statement: All parties were timely notified. Petitioner

consented to the filing of this brief; Respondent withheld consent.

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.

2

stopping individuals based merely upon whims or prejudices—a critical judicial bulwark against the unreasonable searches and seizures the Fourth Amendment

proscribes. Without this requirement, law enforcement would wield virtually unlimited discretion to

stop, search, and use force against citizens.

Yet in its decision below, the Eighth Circuit flouted

these principles by holding that an officer may handcuff, search, and point a gun at suspects after reasonable suspicion had already dissipated. By the time Officer Marzolf handcuffed the two boys, they had been

lying on their stomachs for minutes, had already complied with all his commands, and had already been

identified by their parents and grandparents. Enough

time transpired since the initial stop for Marzolf to notice the boys did not even match the description of the

suspects he was looking for. Regardless, Officer Marzolf proceeded to handcuff and search while keeping a

gun pointed at them. Because he failed to meet the reasonable suspicion requirement, Officer Marzolf’s de

facto arrest of the boys was unlawful.

The Eighth Circuit’s contrary decision was no mere

isolated legal error, but rather part of a troubling pattern of lower courts disregarding Terry’s limited application. More generally, this decision illustrates how

decades of excessive judicial deference to the judgment

of law enforcement have led to increasingly capacious

exceptions to baseline Fourth Amendment rules. The

warrant requirement, which presumptively applies to

all searches and seizures, has itself become the exception, rather than the norm.

This Court should grant certiorari to reverse this

trend, reestablish that Terry’s reasonable suspicion requirement is meant to be narrowly applied, and clarify

3

that arrests based on anything less than probable

cause are per se unreasonable. That correction is especially urgent today, at a time when public trust in law

enforcement has fallen to record lows. A rash of highprofile incidents of police misconduct has sent Americans to the streets in protest. Law-enforcement officers, in turn, report serious concerns about their ability

to safely and effectively discharge their duties without

the confidence of those they are sworn to protect. By

telling the public that police are permitted to hold at

gunpoint and handcuff children without probable

cause, the Eighth Circuit is not only misapplying this

Court’s precedent—it is fueling a crisis of confidence in

our nation’s law-enforcement officers.

ARGUMENT

I. THE EIGHTH CIRCUIT’S HOLDING REFLECTS A TROUBLING JUDICIAL TREND

FOR FOURTH AMENDMENT EXCEPTIONS

TO SWALLOW THE RULES.

It is an axiom of Fourth Amendment jurisprudence

that, “[a]lthough the text of the Fourth Amendment

does not specify when a search warrant must be obtained,” a “warrant must generally be secured” for a

search to be “reasonable.” Kentucky v. King, 563 U.S.

452, 459 (2011). 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); see also

4

Wayne A. Logan, An Exception Swallows a Rule: Police

Authority to Search Incident to Arrest, 19 YALE L. &

POL’Y REV. 381, 384 (2001).

When the Supreme Court announced the reasonable suspicion standard in Terry, it understood the delicate ground it trod upon. The Court carved out a limited exception to the Fourth Amendment’s warrant requirement, allowing “a carefully limited search” only

“where a police officer observes unusual conduct which

leads him reasonably to conclude . . . that criminal activity may be afoot and that the persons with whom he

is dealing may be armed and presently dangerous . . .

and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or

others’ safety.” 392 U.S. at 30.

But Justice Douglas dissented, despite the limited

nature of the holding, expressing his belief that it was

a “mystery” how the Court could dilute the probable

cause requirement consistent with the Fourth Amendment. Id. at 35 (Douglas, J., dissenting). If Terry itself

was a mystery, Justice Douglas would likely find the

expansion of Terry that would follow the decision befuddling.

Arrests were once clearly distinguishable from

Terry stops. In Berkemer v. McCarty, this Court held

that Miranda warnings are not required during Terry

stops. 468 U.S. 420 (1984). This statement made perfect sense for a time when Fourth Amendment doctrine cleanly distinguished Terry stops from arrests.

See Mark A. Godsey, When Terry Met Miranda: Two

Constitutional Doctrines Collide, 63 FORDHAM L. REV.

715 (1994). Terry stops were brief, less intrusive than

a formal arrest, and “substantially less ‘police dominated.’” Berkemer, 468 U.S. at 439.

5

In the decades that followed, however, lower courts

have dramatically expanded the scope of permissible

force under Terry, blurring the distinction between

stops and arrests. Courts like the Eighth Circuit now

permit police officers to employ highly intrusive “arrest-like” force under Terry, including handcuffs and

drawn weapons, which creates confusion about which

seizures only require reasonable suspicion and which

require probable cause. Pollreis v. Marzolf, 9 F.4th 737

(8th Cir. 2021) (police may draw weapons on and handcuff suspects who are lying on the ground); United

States v. Gil, 204 F.3d 1347 (11th Cir. 2000) (police

may detain handcuffed suspects for 75 minutes in police cars); United States v. Taylor, 716 F.2d 701 (9th

Cir. 1983) (police may detain handcuffed suspects on

the ground). With such a permissive reading of Terry,

officers may get away with warrantless exertions of

“arrest-like” force simply by labeling their actions a

Terry stop instead.

Unfortunately, such steady erosion of Fourth

Amendment protections is not limited to the Terry context. To the contrary, decades of excessive deference to

the judgment of law enforcement have led to virtually

unlimited “limited circumstances” in a wide variety of

contexts. From intrusive searches incident to arrest, to

the “good-faith” exception to the exclusionary rule, to

exceedingly permissive interpretations of Terry, courtcreated exceptions to the warrant requirement have

almost completely swallowed the warrant rule.

Consider, for example, the practical evolution of this

Court’s case law on pretextual traffic stops. In

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

Court “foreclose[d] any argument that the constitutional reasonableness of traffic stops depends on the

actual motivations of the individual officers involved.”

6

Id. 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.

In effect, though, Whren-created a doctrinal loophole for racially-motivated policing. Allowing pretextual traffic stops led to a statistically significant increase in traffic stops of drivers of color relative to

white drivers, especially “during the daytime, when officers could more easily ascertain a driver’s race”

through visual observation. Stephen Rushin & Griffin

Edwards, An Empirical Assessment of Pretextual Stops

and Racial Profiling, 73 SLR 637, 644 (2021).

Law enforcement has certainly not hesitated to take

full advantage of the power to make pretextual stops

and push the boundaries of Whren ever further. 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 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

7

to “look beyond the traffic ticket,” and use “routine

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

Moreover, law enforcement officers today engage

in more than just the pretextual traffic stops of automobiles. According to a Los Angeles Times investigation, deputies frequently stop and search bike riders,

especially Latino cyclists, often with no reason to suspect criminal activity. Ben Poston, Alene Tchkmedyian, Sheriff’s Department bike stops: How we reported

the story, L.A. TIMES (Nov. 4, 2021). Under Whren, Los

Angeles deputies use obscure, rarely enforced bicycle

traffic laws as pretexts for stops that often tend to end

with a search of the rider and any belongings they

have with them. Id. The Times’ analysis of more than

44,000 bike stops logged by the Sheriff’s Department

since 2017 found that 7 of every 10 stops involve Latino cyclists, and bike riders in poorer communities

with large nonwhite populations are stopped and

searched far more often than those in more affluent,

whiter parts of the county. Id. Most bicyclists were

held in the backseat of patrol cars while deputies rummaged through their belongings or checked for arrest

warrants. Id.

Several lower courts have even gone so far as to extend the Whren doctrine to parking violations—and effectively, to any and all fine‐only infractions, no matter

how trivial. For example, in United States v. Johnson,

874 F.3d 571 (7th Cir. 2017) (en banc), the Seventh

Circuit affirmed the denial of a motion to suppress

where “[f]ive officers in two police cars seized the passengers of a stopped car” by “swoop[ing] in on the car,

suddenly parking close beside and behind it with

bright lights shining in from both directions, opening

the doors, pulling all the passengers out and handcuffing them.” Id. at 575 (Hamilton, J., dissenting). The

8

only basis for this supposed “investigatory stop” under

Terry was a suspected violation for parking too close to

an unmarked crosswalk. But the majority nevertheless held that this plainly pretextual stop did not violate the Fourth Amendment. Id. at 573-74.

The deleterious impact of expansive understandings of Terry and Whren is compounded by those doctrines’ intersection with other increasingly expansive

exceptions to the warrant requirement. 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, 6869 (1975) (upholding search of seized car despite it 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

9

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.” Johnson, 874 F.3d at 577. Judge Hamilton’s

dissent from the Seventh Circuit’s en banc decision in

Johnson explains how Terry and Whren enable a cascade of severe consequences for anyone committing

even a trivial traffic infraction:

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).

...

10

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.

Thus, the Eighth Circuit’s decision below should

not be seen as an isolated misapplication of this

Court’s Terry doctrine. Rather, it is a troubling illustration of how easily Fourth Amendment “exceptions”

can expand until they very nearly eclipse the baseline

rules they were originally meant to modify.

II. EXCESSIVE DEFERENCE TO LAW ENFORCEMENT

UNDERMINES

PUBLIC

TRUST IN THE POLICE.

By holding, in effect, that Officer Marzolf cannot be

held accountable for arresting two innocent children at

gunpoint without probable cause, the Eighth Circuit

not only misapplied this Court’s Fourth Amendment

precedent, it is also hurting the law enforcement community itself, by reinforcing the public’s perception

11

that police are held to a far lower standard of accountability than ordinary citizens.

In the aftermath of many high-profile police killings—most prominently, the murder of George Floyd

at the hands of Minnesota police officers in May

2020—Gallup reported that trust in police officers had

reached a twenty-seven-year low. Aimee Ortiz, Confidence in Police Is at Record Low, Gallup Survey Finds,

N.Y. TIMES (Aug. 12, 2020)2 (Source: GALLUP). For the

first time ever, fewer than half of Americans place confidence in their police force. Id.

This drop in confidence has been driven in large part

by videos of high-profile police killings of unarmed suspects, but as well by the public perception that officers

who commit such misconduct are rarely held accountable for their actions.3 Indeed, according to a recent

survey of more than 8,000 police officers themselves,

72 percent disagreed with the statement that “officers

who consistently do a poor job are held accountable.”

Rich Morin et al., Pew Research Ctr., Behind the

Badge 40 (2017).4

Policing is difficult and sometimes dangerous work.

Without the trust of their communities, officers cannot

safely and effectively carry out their responsibilities.

“Being viewed as fair and just is critical to successful

policing in a democracy. When the police are perceived

as unfair in their enforcement, it will undermine their

2 Available at https://www.nytimes.com/2020/08/12/ us/gallup-

poll-police.html.

3 See Mike Baker, et al., Three Words. 70 Cases. The Tragic

History of ‘I Can’t Breathe.’, N.Y. TIMES (June 29, 2020),

https://www.nytimes.com/interactive/2020/06/28/ us/i-cantbreathe-police-arrest.html.

4 Available at https://pewrsr.ch/2z2gGSn.

12

effectiveness.” Inst. on Race and Justice, Northeastern

Univ., Promoting Cooperative Strategies to Reduce Racial Profiling at 20-21 (2008).5

In other words, “when a sense of procedural fairness

is illusory, this fosters a sense of second-class citizenship, increases the likelihood people will fail to comply

with legal directives, and induces anomie in some

groups that leaves them with a sense of statelessness.”

Fred O. Smith, Abstention in a Time of Ferguson, 131

HARV. L. REV. 2283, 2356 (2018); accord U.S. Dep’t of

Justice, Investigation of the Ferguson Police Department 80 (Mar. 4, 2015) (A “loss of legitimacy makes individuals more likely to resist enforcement efforts and

less likely to cooperate with law enforcement efforts to

prevent and investigate crime.”).6

When properly trained and supervised, the vast majority of officers follow their constitutional obligations,

and they will benefit if the legal system reliably holds

rogue officers accountable for their misconduct. Indeed, “[g]iven the potency of negative experiences, the

police cannot rely on a majority of positive interactions

to overcome the few negative interactions. They must

consistently work to overcome the negative image that

past policies and practices have cultivated.” Inst. on

Race and Justice, supra, at 21.

In a recent survey, a staggering nine in ten law-enforcement officers reported increased concerns about

their safety in the wake of high-profile police shootings. Pew Research Ctr., supra, at 65. Eighty-six percent agreed that their jobs have become more difficult

5 Available at https://www.ojp.gov/ncjrs/virtual-library/

abstracts/promoting-cooperative-strategies-reduce-racialprofiling.

6 Available at https://perma.cc/XYQ8-7TB4.

13

as a result. Id. at 80. Many looked to improved community relations for a solution, and more than half

agreed “that today in policing it is very useful for departments to require officers to show respect, concern

and fairness when dealing with the public.” Id. at 72.

Responding officers also showed strong support for increased transparency and accountability, for example,

by using body cameras, id. at 68, and—most importantly for these purposes—by holding wrongdoing

officers more accountable for their actions, id. at 40.

The public knows that police are rarely held accountable for their misconduct. Clark M. Neily III, Police Accountability Is a Matter of Life and Death, CATO AT LIBERTY (May 25, 2021), https://www.cato.org/blog/policeaccountability-matter-life-death. And the widespread

perception that law enforcement act is if they are

above the law is one of the major causes of this crisis

of confidence in police today. Id. But decisions like the

Eighth Circuit’s below “allow police misconduct to

thrive” by expanding officers’ discretion to use force

and reducing the standard of suspicion needed to do

so. Laurie L. Levenson, Police Corruption and New

Models for Reform, 35 SUFFOLK U. L. REV. 1, 16 (2001).

“The relatively few avenues available to challenge police misconduct under traditional search and seizure

law make it easy for police misconduct to go undetected.” Id.

There is no panacea for the problem of declining public trust in law enforcement; it is a serious structural

issue that exceeds the bounds of any one case or doctrine. But by reversing the decision below and ensuring that Terry is not expanded beyond its original

scope, this Court can take a small but significant step

toward ensuring police accountability and restoring

confidence in the rule of law.

14

CONCLUSION

For the foregoing reasons, and those set forth by the

Petitioner, the Court should grant the petition.

Respectfully submitted,

January 18, 2022

Clark M. Neily III

Jay R. Schweikert

Counsel of Record

Nicole Saad Bembridge

CATO INSTITUTE

1000 Mass. Ave. N.W.

Washington, D.C. 20001

(202) 216-1461

jschweikert@cato.org