Amicus Curiae Brief — Atwater v. Lago Vista

Supreme Court, U.S.

C4) FILED

No. 99-1408 SEP ] j 2000

In The CLERK

Supreme Court of the United-States—.

o

GAIL ATWATER, Individually, and MICHAEL HAAS

as next friend of ANYA SAVANNAH HAAS and

MACKINLEY XAVIER HAAS,

Petitioners,

Vv.

CITY OF LAGO VISTA, BART TUREK and

FRANK MILLER,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

BRIEF OF THE INSTITUTE ON CRIMINAL JUSTICE

AT THE UNIVERSITY OF MINNESOTA LAW

SCHOOL AND ELEVEN LEADING EXPERTS ON

LAW ENFORCEMENT AND CORRECTIONS

ADMINISTRATION AND POLICY AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

¢

RICHARD S. Frase

Counsel of Record

229 19th Avenue South

Minneapolis, Minnesota 55455

(612) 625-0831

Attorney for Amici Curiae

COCKLE LAW BRIEF PRINTING CO., 225-6964

HY5.0

TABLE OF CONTENTS

Page

I

Statement of Interest of Amici.....................

Summary of Argument .......................0005.

I. A Balancing of the Interests Involved Shows

That a Custodial Arrest for a Non-Jailable Mis-

demeanor Offense Is Unreasonable............

A. An Individual’s Interest in Avoiding the

Trauma, Risks, and Consequences That

Result from a Custodial Arrest Is Very

1. The Arrest and Booking Process

Includes Many Administrative Tasks

That Are Psychologically Threatening

and Embarrassing to the Accused.....

Temporary Detention Carries Many Physi-

cal Risks, Including Risk of Assault, Expo-

sure to Infectious Diseases, and a

B. In Most Cases There Is No Legitimate Law

Enforcement Interest in Making a Custodial

Arrest for a Non-Jailable Misdemeanor

Not Only Does Arresting an Individual for a

Non-Jailable Misdemeanor Offense

ically Serve No timate Law Enforce-

ment Purpose, Such an Arrest Actually

Contradicts Government Interests ......... 11

II.

ITI.

i

TABLE OF CONTENTS - Continued

Page

1. Custodial Arrests of Non-Jailable Mis-

demeanants Present Serious Manage-

ment Problems for Jail Officials and

Produce Bottlenecks in the Booking

Areas of Jails, Which Are Costly, Dan-

gerous, and Staff-Intensive ............

2. Custodial Arrests in Non-Jailable Misde-

meanor Cases Burden Courts, Magistrates,

and Pre-Trial Release Programs .........

3. Arresting An Individual for a Fine-Only

Traffic Offense Is Contrary to Law

Enforcement Interests Because It Removes

an Officer from His or Her Duty Station

and Negatively Affects the Public’s Per-

ception of the Police .................4.

4. When a Custodial Arrest Results in Sig-

nificant and Avoidable Problems for the

Government, the Government’s Interest

in Making the Arrest Is Severely Weak-

Peres

A Custodial Arrest for a Non-Jailable Misde-

meanor Offense Violates the Proportionality

Principle of the Fourth Amendment...........

Model Standards Promulgated by Prominent

National Entities Require Police Officers to Issue

Citations in Lieu of Arrest for All Misdemeanor

12

14

15

17

17

Offenses Absent Exceptional Circumstances ... 21

TABLE OF CONTENTS - Continued

Page

IV. Amici Urge This Court to Adopt a Rule Barring

Custodial Arrest Absent Circumstances

in All Non-Jailable Misdemeanor Cases, in Keeping

With the Model Standards, Workable Laws in Many

States, and Good Police Practice ................

erie neSedecceséecctcceccoceces

iv

TABLE OF AUTHORITIES

Page

Cases

Carroll v. United States, 267 U.S. 132 (1925).......... 18

Graham v. Connor, 490 U.S. 386 (1989)............... 20

McDonald v. United States, 335 U.S. 451 (1948)....... 19

Michigan Department of State Police v. Sitz, 496 U.S.

GE QUE 66 ccc ncccsccnesuseoceceessesdecsssooaces 9

New York v. Burger, 482 U.S. 691 (1987).............. 10

Pennsylvania v. Mimms, 434 U.S. 106 (1977).......... 10

Skinner v. Railway Labor Executives’ Association, 489

eh Ge GUNES heesescdbsdedduacadssdbacebenndasie 9

South Dakota v. Opperman, 428 U.S. 364 (1976)........ y

State v. Bauman, 586 N.W.2d 416 (Minn. Ct. App.

SUUUb 660s cvcsvcenecesnpabddsecesacensencoessedene 29

State v. Martin, 253 N.W.2d 404 (Minn. 1977)........ 29

State v. Varnado, 582 N.W.2d 886 (Minn. 1998)....... 29

Tennessee v. Garner, 471 U.S. 1 (1985)............. 19, 20

United States v. Hensley, 469 U.S. 221 (1985) ......... 20

United States v. Robinson, 414 U.S. 218 (1973)......... 9

Welsh v. Wisconsin, 466 U.S. 740 (1984)....... 18, 19, 20

STATUTES AND RuLEs

Alaska Stat. § 12.25.180(b) (1999).................... 29

Ind. Code § 9-30-2-5 (2000) ..........ccccccccccccces 29

Minn.R.Crim.P., Rule 6.01, subd. 1 (1999)......... 28, 29

Vv

TABLE OF AUTHORITIES - Continued

Page

Minn.R.Crim.P., Rule 6.01, subd. 2 (1999)............ 29

Neb. Rev. Stat. § 60-684 (1999)...................... 29

N.M. Stat. Ann. § 66-8-123 (2000)................... 29

North Carolina Highway Patrol Policy Manual,

Directive 1.1., Sections III.A, III.B RRR 30

S.D. Codified Laws Ann. § 32-33-2 ee 29

eee Oe Oe i incdubbucescccsubessdsnte su. 29

OrtHeR AUTHORITIES

American Bar Association, Standards for Criminal

Justice, Standards 10-2.1, 10-2.2 (2d ed., 1980)

Pecos oucheneedasssedcebecetosocesecoeees 22, 23, 24, 25

American Bar Association, Standards Relating to

Pretrial Release, Standard 2.1 (1968)................ 22

American Law Institute, Model Code of Pre-Arraign-

ment Procedure, Section 120.2(4) (1975)............. 25

Julie Cart, As He Runs For 4th Term, Toughest Sheriff

is Ever Inventive, L.A. Times, Aug. 23, 2000, at

WT 6dndbceundesténcnsdpanscdmnaninadsenctesanees. 5

Richard S. Frase, Jails, in Handbook of Crime &

Punishment 493 (Michael Tonry ed., 1998) ........ 12

Halsbury’s Laws of England, vol. 9 ................... 18

L.M. Hayes & B. Kajdan, And Darkness Closes In,

National Center on Institutions and Alterna-

tives, Alexandria, Virginia, (1981).................. 8

L.M. Hayes, National Study of Jail Suicides: Seven

Years Later, 60 Psychiatric Quarterly 7 (1989)....... 8

vi

TABLE OF AUTHORITIES - Continued

Page

Patrick G. Jackson, Competing Ideologies of Jail Con-

finement, in American Jails: Public Policy Issues

30 (J.A. Thompson & G.L. Mays eds., 1991)....... 11

G. Larry Mays and Joel A. Thompson, The Political

and Organizational Context of American Jails, in

American Jails: Public Policy Issues 15 (J.A.

Thompson & G.L. Mays eds., 1991)............... 13

James M. McMahon, New York State Takes the Next

Step in Saving Lives, The Police Chief 34-39, July

DD ccssudceedusdtedndahdesusenseenchdebsonedesues 10

National Advisory Commission on Criminal Jus-

tice Standards and Goals, Corrections, Standard

Op GEE siduscacbaduathesdcennacs edudeatedausések 26

National Association of Pretrial Services Agen-

cies, Performance Standards and Goals for Pretrial

Release and Diversion: Pretrial Release, Standard

BED GEOG ccdccccccncccscessnsééeccencadaseséeses 26

National Conference of Commissioners on Uni-

form State Laws, Uniform Rules of Criminal Pro-

cedure, Rules 211(cy (1)-(4) (1974). ................. 25

National District Attorneys Association, National

Prosecution Standards, Standards 10.2(B),

SD CE, ccndecudounedadeusedadedeeesseac< 25

National Institute of Justice, Alleviating Jail Crowd-

ing: A Systems Perspective (1985) .............000+: 14

National Institute of Justice, Jailing Drunk Drivers:

Impact on the Criminal Justice System, Washing-

OO BG GIF cc cccccccceccscesescccscccescescees 13

National Sheriffs’ Association, Jail Classification

GS HED GIGS 0 0 cc ccccccvcscccencesaveceses 7, 8

Vii

TABLE OF AUTHORITIES - Continued

Thomas Rosazza, Jail Intake: Managing a Critical

Function; Part One: Resources, American Jails

Beeb SD CEU vaccedeductsccsccenvesscess

Thomas Rosazza, Jail Intake: Managing a Critical

Function; Part Two: Intake Task Analysis, Ameri-

can Jails 111, May/June, 1999..................

Joseph Rowan, Suicide Prevention, American Jails

Sy I I hi

Barbara C. Salken, The General Warrant of the Twen-

tieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses,

62 Temple L. Rev. 221 (1989) ...............05.

William Schroeder, Factoring the Seriousness of the

Offense into Fourth Amendment Equations — War-

rantless Entries into Premises: The Legacy of Welsh

v. Wisconsin, 38 U. Kan. L. Rev. 439 (1990).....

Arthur Wallenstein, Intake and Release in Evolving

Jail Practice, in Prison and Jail Administration:

Practice and Theory 50 (Peter M. Carlson &

ey Os EN in cin ccaceuenacees

Horace Wilgus, Arrest Without a Warrant, 22 Mich.

Sis Hee We EET Wentindccedednsccoscaccesce

L. Thomas Winfree, Jr., and John D. Wooldredge,

Exploring Suicides and Deaths by Natural Causes

in America’s Jails, in American Jails: Public Pol-

icy Issues 64 (J. Thompson & G. Mays eds.,

SOE Cec hbasddeddstncestdedcscéeneccssceseonss

Page

1

STATEMENT OF INTEREST OF AMICI?

This brief is filed on behalf of the Institute on Crimi-

nal Justice at the University of Minnesota Law School and

a group of intereste«! individuals with relevant expertise.

The Institute on Criminal Justice (“ICJ”) is part of the

University of Minnesota Law School.2 The Institute com-

bines its work on issues of current concern to criminal

justice practitioners and policymakers with the academic

research interests of the faculty. Its major objective is to

provide unbiased, practical information regarding emerg-

ing criminal justice issues to help guide policy decision

making. The ICJ also provides technical assistance to

government agencies on criminal justice matters, includ-

ing jail practices and evaluation of court programs. The

Institute’s Executive Director, Janet Wiig, JD, MSW, is a

former prosecutor; the Director of Research, Professor

Richard S. Frase, has expertise in criminal law and pro-

cedure, jails, and sentencing. Recent IC] projects have

focused on issues such as jail overcrowding and compara-

tive state sentencing practices. The IC] is filing this brief

to further its mission of providing unbiased, practical

information, and because the issues raised by this case

’ A list of the 11 individual amici who are filing this brief is

set forth in the Appendix. Counsel for a party did not author

this brief in whole or in part and no person or entity, other than

the amici curiae or counsel, have made a monetary contribution

to the preparation or submission of the brief. Pursuant to Rule

37 of the Rules of the Supreme Court, the parties have consented

to the filing of this brief, and copies of the consents have been

filed with the Clerk of the Court.

? The views of the Institute, expressed in this brief, do not

necessarily reflect the views of the University of Minnesota.

2

have implications for the effective administration of jus-

tice in this country.

The remaining amici have joined this brief in their

individual capacities; their biographical information

(including present and former affiliations) is provided in

Appendix A for identification and background purposes

only. This group includes present and former jail admin-

istrators, criminal justice system practitioners, academic

researchers with expertise on the administration of justice

and law enforcement issues, and nationally-regarded

experts on criminal law, jail operations, pretrial services,

court administration, and police issues. Each of these

individuals is widely known and highly respected in the

law enforcement, corrections, and research communities.

Every member of this group is committed to effective law

enforcement policy and shares in the view that the arrest

practice at issue in this case is contrary to law enforce-

ment interests.

By virtue of their expertise and long-standing

involvement with issues of jail management, law enforce-

ment practices, court administration, and citation release,

amici are uniquely equipped to provide the Court with

information and policy perspectives that bear on the con-

stitutional issues raised in this case. As a group, their

goal is to ensure that law enforcement interests are

addressed appropriately in this case, and that the Court is

aware of how its ruling could impact the work of law

enforcement officials around the country.

SUMMARY OF ARGUMENT

A full custodial arrest for a non-jailable misdemeanor

is rarely necessary or justifiable. An individual has a

substantial interest in avoiding the trauma and risks of a

3

custodial arrest; in most cases, no legitimate law enforce-

ment purpose is served by such an arrest that would not

be better served by the issuance of a citation; and unnec-

essary arrests are contrary to the interests of jail man-

agers, court administrators, and even the police. Any

balancing of the interests involved clearly favors the indi-

vidual arrested. The same result is reached when such an

arrest is examined under the proportionality standard of

the Fourth Amendment.

Model standards promulgated by prominent national

organizations such as the American Bar Association, the

American Law Institute, the National District Attorneys

Association, and the National Association of Pretrial Ser-

vices Agencies, offer valuable guidance with respect to

this issue. These standards all require the police to issue

citations in lieu of arrest in all misdemeanor cases unless

there are exceptional circumstances. The experience of

several states and law enforcement agencies shows such

standards to be workable and effective at meeting legiti-

mate police needs.

Amici urge the Court to adopt a rule barring custo-

dial arrest in all non-jailable misdemeanor cases absent

exceptional circumstances.

ARGUMENT

I. A Balancing of the Interests Involved Shows That a

Custodial Arrest for a Non-Jailable Misdemeanor

Offense is Unreasonable

A. An Individual’s Interest in Avoiding the

Trauma, Risks, and Consequences That Result

from a Custodial Arrest Is Very Strong

A clear understanding of what happens in the arrest

and jailing process is critical in order to assess the

4

strength of an accused’s interest in avoiding arrest. Per-

sons who have not been through it can hardly imagine

the full extent of the intrusiveness of an arrest. An arrest

is nothing less than a frontal assault on the dignity,

privacy, and safety of the accused. That trauma is magnif-

ied for an individual experiencing the criminal justice

system for the first time.

1. The Arrest and Booking Process Includes

Many Administrative Tasks That Are Psy-

chologically Threatening and Embarrassing

to the Accused

From the moment of arrest, an accused is subjected to

intensive physical scrutiny and psychological pressures.

Prior to placement in a patrol car, the individual will

typically be subjected to a routine, suspicion-less search

of her person, an action that, if properly done, involves

extensive touching of her entire body, including the most

private parts. This search may extend to any areas or

objects within the arrestee’s immediate control, the pas-

senger compartment of any vehicle she occupied when

arrested, and the contents of any clothing, purses, or

other containers located therein.

An arrestee is then typically handcuffed behind her

back and placed in the patrol car. This is a very public

exercise, and may be witnessed by bystanders, neighbors,

friends, and family.

At the police station or jail, the accused typically is

fingerprinted and photographed. Before being placed in a

3 Depending on the jurisdiction, an arrested person may be

taken to a police lockup, a municipal lockup, and/or a city,

county, or regional jail. Therefore, the practice at issue in this

case has implications for all such facilities. The word “jail” will

be used in this brief to include police and municipal lockups.

5

cell, the arrestee will again be searched, including a pat-

down of the genital areas and under and around a

woman’s breasts. An officer of the opposite sex may

conduct the search. In some jails, the accused may be

strip searched.

An officer will go through personal effects, including

wallets and purses, for inventory purposes. A full-cus-

tody arrest also typically results in impounding the

detainee’s car if she was arrested while in a vehicle,

which then permits routine, suspicion-less searches of

every part of the car, including the trunk, and any con-

tainers therein.

In Phoenix, the accused is videotaped during the

booking process through the Sheriff’s web camera, so that

anyone in the world with Internet access can view her

under these trying circumstances.

An individual requiring use of toilet facilities may

need to use them in full view of many other inmates and

staff. She may be made to shower in front of officers and

other inmates. And she may be sprayed for lice.

Intake officers ask the detainee very specific ques-

tions on topics of personal hygiene, health, and mental

health. Indeed, the better managed the jail, the more

intrusive these questions will be because of the screening

functions they serve.

* This website claims an average of 2.5 million viewers a

day. See Julie Cart, As He Runs For 4th Term, Toughest Sheriff is

Ever Inventive, L.A. Times, Aug. 23, 2000, at A-5. Although the

Phoenix practice is not the norm, it involves the nation’s fourth

largest jail, and therefore affects a substantial number of

detainees.

6

A pretrial services officer may telephone the

accused’s employers and associates to verify information

relevant to pretrial release.

The individual has only limited access to telephones

to make calls to secure her release or to arrange for the

care of her children. Calls typically must be made within

earshot of other detainees.

The arrest record may be permanent and can haunt

the person for years to come, even if charges are dis-

missed or never filed. The very fact of arrest, or simply

the time lost while involuntarily confined, can result in

lost wages or even loss of a job.

These indignities, deprivations, and hardships make

the arrest and booking process far more than a minor

inconvenience. A custodial arrest constitutes a serious

personal intrusion on an individual’s liberty and dignity.

2. Temporary Detention Carries Many Physical

Risks, Including Risk of Assault, Exposure

to Infectious Diseases, and a Heightened

Risk of Suicide

Corrections professionals agree that

[n]o other criminal justice activity can claim the

convergence of such potentially dangerous peo-

ple or circumstances which are present at [jail]

intake. Intake presents the most potential for

injury to staff and prisoners because of the

instability or uncertainty of the prisoners or the

circumstances in which they find themselves.

Thomas Rosazza, Jail Intake: Managing a Critical Function;

Part One: Resources, American Jails, Mar./Apr. 1999, at

108. Intake has been described as “the most critical area

of a jail operation.” Id. at p. 110.

7

During the booking process, individuals are often

housed in group cells with many other detainees. Amici

have personally seen as many as 40 arrestees in one cell.

Because individuals have not yet been classified (sepa-

rated by characteristics such as offense, risk, or health

needs), someone who has been arrested for a petty

offense can be confined with those accused of murder,

rape, or other violent crimes, mentally unstable persons,

and people with diseases such as tuberculosis, hepatitis,

and AIDS. See Arthur Wallenstein, Intake and Release in

Evolving Jail Practice, in Prison and Jail Administration:

Practice and Theory 50 (Peter M. Carlson & Judith Simon

eds., 1999). There is a real risk that an arrestee, even one

charged with a minor offense, will be assaulted or

exposed to infectious diseases.

Some physical and psychological conditions (includ-

ing chemical dependency, anxiety, and depression) are

likely to be seriously aggravated by incarceration. A

handbook distributed to jail officials cautions booking

officers to be “acutely aware that being arrested or incar-

cerated, especially for the first time, can be extremely

traumatic for many persons.” The National Sheriffs’

Association, Jail Classification and Discipline 34 (1988).

The first 24 hours in jail are considered the most

deadly. Many jail inmates arrive with an elevated suicide

risk, which increases during the first hours of custody. L.

Thomas Winfree, Jr., and John D. Wooldredge, Exploring

Suicides and Deaths by Natural Causes in America’s Jails, in

American Jails: Public Policy Issues 64 (J. Thompson & G.

Mays eds., 1991). Research shows that nearly 30 percent

of all jail and lockup suicides occur within 3 hours of

admission, and 50 percent of all jail and lockup suicides

occur within the first 24 hours of intake. See Joseph

8

Rowan, Suicide Prevention, American Jails, Nov./Dec.

1994, at 24; The National Sheriffs’ Association, supra, at 34

(citing L.M. Hayes & B. Kajdan, And Darkness Closes In,

National Center on Institutions and Alternatives, Alex-

andria, Virginia, (1981)).5 Furthermore, research suggests

that the group most likely to commit suicide includes

those inmates who are just “passing through,” or short-

term detainees. Winfree and Wooldredge, supra, at 77. A

minor offender faced with incarceration may be exposed

to a set of such terrifying and unfamiliar circumstances in

jail booking that her risk of suicide is particularly ele-

vated.

Amici note with concern that there are special risks

associated with lockup facilities, such as the one involved

in this case. See supra note 3. Police and municipal

lockups tend to be essentially unregulated facilities, and,

as such, they “fly under the radar screen” and may not

adopt operations policies designed to ensure inmates’

safety. Lockups, especially those in police stations, are

typically run by staff with little formal training in custo-

dial issues. Many are minimally staffed, and thus inmates

are inadequately supervised, or even unsupervised.

Many of these facilities have poor lines of sight and

inadequate safety procedures. As a result, the risks

described above may be even greater in lockup facilities.

5 In 1989, the national suicide rate in county jails was

approximately 107 per 100,000 inmates, almost 10 times the rate

in the general population. See L.M. Hayes, National Study of Jail

Suicides: Seven Years Later, 60 Psychiatric Quarterly 7 (1989).

6 Significantly, no major urban police department that runs

its own lockup facilities has been accredited by the Commission

on Accreditation for Law Enforcement Agencies (CALEA), due

to poor conditions in these lockup facilities.

9

In sum, amici believe an individual’s interest in

avoiding the traumas, risks, and indignities that result

from the arrest and booking processes is substantial,

especially for those who are unfamiliar with the process.

B. In Most Cases, There Is No Legitimate Law

Enforcement Interest in Making a Custodial

Arrest for a Non-Jailable Misdemeanor Offense

Respondents have a legitimate law enforcement

interest in ensuring that the state’s seat belt laws are

observed, and that violators pay the penalties authorized

by the Legislature for these offenses. However, except in

very unusual circumstances not present in this case, these

law enforcement interests are fully served by issuing a

citation. Thus, the police do not need, and should not be

given, unlimited discretion to make custodial arrests for

such offenses.”

” Respondents may seek to justify such unnecessary

custodial arrests by citing recent decisions of this Court,

upholding broad police powers to conduct investigatory or

safety measures without any showing of a case-specific need for

such measures. In the context of this case, however, such a

“bright line,” over-broad rule is unjustified. Some of the Court's

decisions of this type were based on the government's strong

need to routinely search or seize even in the absence of

individualized suspicion. See, e.g., Michigan Department of State

Police v. Sitz, 496 U.S. 444 (1990); Skinner v. Railway Labor

Executives’ Association, 489 U.S. 602 (1989); South Dakota v.

Opperman, 428 U.S. 364 (1976). There is no analogous need for

routine custodial arrest in cases of non-jailable crimes. Other

decisions were based on the difficulties which the police and

courts would have in making and evaluating case-specific

assessments of the need to search, exigent circumstances, etc.

See, e.g., United States v. Robinson, 414 U.S. 218 (1973). In

Petitioner's case, and in most cases like it, the need for custodial

10

A citation instructs the violator to appear in court on

or by a particular date, and specifies the penalties for the

offense and for failure to respond to the citation. Cita-

tions are a widely used and highly effective method of

ensuring that minor offenders pay the penalties associ-

ated with their offenses. Citations have also been shown

to be a highly effective deterrent. See, e.g., James M.

McMahon, New York State Takes the Next Step in Saving

Lives, The Police Chief, July 2000, at 34-39 (vigorous

enforcement by police using citations has significantly

increased seat belt compliance in New York State).

Custodial arrest is needed only when it could further

an investigation, prevent some serious harm, or ensure

the violator’s appearance in court. Amici believe that

such legitimate needs rarely exist in cases involving

minor, non-jailable offenses. Most of these suspects, and

almost all traffic offenders, can be fully identified from

drivers license and/or vehicle records, and thus are

unlikely to permanently evade justice. No further evi-

dence-gathering is usually required; the investigation is

complete at the scene. Nor, in most cases, is there any

reason to fear imminent harm to anyone, immediate

resumption of the offense, or failure to appear in court.

Logic also tells us that minor traffic offenders are unlikely

arrest will rarely be present, and can be easily assessed on a

case-by-case basis (as is demonstrated by the numerous model

standards and state laws providing for such case-specific

assessments, see Parts III and IV below). Finally, some broad

police-powers decisions were based on the limited nature of the

intrusions or privacy interests involved. See, e.g., New York v.

Burger, 482 U.S. 691 (1987); Pennsylvania v. Mimms, 434 U.S. 106

(1977). As was shown in Part A above, custodial arrest is not a

brief or relatively minor intrusion.

11

to flee the community to avoid paying a fine. Thus, not

only in this case but in most cases of non-jailable misde-

meanors, the alternative of issuing a citation fully meets

all legitimate government interests in ensuring effective

enforcement of the law.

In most non-jailable misdemeanor cases, a custodial

arrest serves only one purpose: to impose unofficial

“punishment” on offenders who cannot legally be sen-

tenced to incarceration. Patrick G. Jackson, Competing

Ideologies of Jail Confinement, in American Jails: Public

Policy Issues 30 (J.A. Thompson & G.L. Mays eds., 1991).

This is a flagrant abuse of the arrest power.

C. Not Only Does Arresting an Individual for a

Non-Jailable Misdemeanor Offense Typically

Serve No Legitimate Law Enforcement Purpose,

Such an Arrest Actually Contradicts Law

Enforcement Interests

Subjecting a minor traffic violator to a custodial

arrest is not only unnecessary, it actually creates more

serious problems for law enforcement. Short-term

detainees such as Ms. Atwater cause significant manage-

ment problems for jail administrators. They also burden

the courts and magistrates with additional workload in

the hours immediately following arrest. Moreover, arrests

such as this remove the arresting officer from patrol duty,

thus compromising public safety, and reduce the public’s

confidence in the law enforcement community. These

problems must be taken into account in any balancing

test of the reasonableness of the arrest.

12

1. Custodial Arrests of Non-Jailable Misde-

meanants Present Serious Management

Problems for Jail Officials and Produce Bot-

tlenecks in the Booking Areas of Jails

Which Are Costly, Dangerous, and Staff-

Intensive

Jail managers and those who study jail operations

have long known that short-term detainees place the

most significant strain on the jail’s resources. As noted

above, every detainee must be booked, searched, photo-

graphed, and fingerprinted, and extensive paperwork

must be completed. The American Jail Association’s

training course on intake procedures includes a checklist

of more than 350 tasks to be completed during the intake

process. See Thomas Rosazza, Jail Intake: Managing a Criti-

cal Function; Part Two: Intake Task Analysis, American Jails,

May/June, 1999, at 112-116. These administrative tasks

can be time-consuming and staff-intensive. In larger jail

facilities, the sheer numbers of individuals brought to the

jail can result in processing delays of up to 48 hours.®

High inmate turnover increases these administrative

costs and processing delays. Richard S. Frase, Jails, in

Handbook of Crime & Punishment 482, 493 (Michael

Tonry ed., 1998).

Crowding in the booking areas of jails and lockups is

exacerbated by the all-too-frequent problem of crowding

in permanent housing areas in jails. Put simply, there is

sometimes no place to move arrestees whose paperwork

has already been processed. This is called the “booking

8 In a jurisdiction with no evening or weekend magistrate,

a person arrested on a Friday evening for a non-jailable offense

may well spend over 65 hours in jail prior to their first court

appearance.

13

bottleneck.” Booking areas of jails are ill-equipped in

most cases to handle significant numbers of inmates.

Large numbers are confined in group cells that are poorly

ventilated and have exposed toilets. As noted above, the

risk of assault, suicide, and spread of infectious diseases

in booking areas is uncomfortably high, and affects both

staff and detainees. Any minor misdemeanant brought to

the booking area simply aggravates the crowding prob-

lem and escalates the risks involved, by burdening staff

with additional administrative tasks and diverting them

away from critical tasks such as monitoring suicide and

assault risks.

A 1984 National Institute of Justice study showed

that law enforcement policies, such as decisions to crack-

down on particular offenses, can have immediate and

significant impacts on jail populations and thus on jail

conditions. See National Institute of Justice, Jailing Drunk

Drivers: Impact on the Criminal Justice System, Washington

D.C. (1984). In a jurisdiction with a crowded jail or

lockup facility, this can mean even more rapid deteriora-

tion of the facility. See G. Larry Mays and Joel A.

Thompson, The Political and Organizational Context of

American Jails, in American Jails: Public Policy Issues 15

(J.A. Thompson & G.L. Mays eds., 1991).

In sum, there are exceptional management problems

associated with arresting these high-turnover inmates.

® Amici do not challenge the practice of arresting drunk

drivers because these are usually jailable offenses, and there are

typically significant law enforcement interests supporting the

arrest (e.g., the need to prevent further impaired driving, and to

collect reliable blood or breath samples). The research in this

field is nevertheless useful because it documents the connection

between law enforcement practices and jail population.

14

Correctional professionals accordingly discourage the

practice of arresting misdemeanor offenders, and encour-

age a reduction in the number of transient inmates

brought to the jail.

A ruling by this Court supporting the power of

police to subject fine-only traffic offenders to a full custo-

dial arrest could have major implications for jail man-

agers, by increasing the number of transient inmates

brought to jails around the country. This includes not

only small rural municipal lockups, such as the one

involved in this case, but large metropolitan jails as well.

As a result, administrative costs would increase, and the

ability of jail managers to protect arrestees would be

hampered. Amici would predict a significant increase in

the number of suicides, assaults, mental health problems,

and inmates with communicable diseases, and an

increase in lawsuits against jail managers, other officials,

and local governments.

2. Custodial Arrests in Non-Jailable Misde-

meanor Cases Burden Courts, Magistrates,

and Pre-Trial Release Programs

Most jurisdictions have implemented a variety of

programs and methods to assist in reducing the number

of minor, low-risk detainees held in the jail. In addition to

citation release by the police, techniques include recogni-

zance and other pre-trial release programs; bail reform

measures allowing for easier-to-meet financial conditions;

added availability of judges during evenings and week-

ends; and earlier prosecutorial screening, to give just a

few examples. National Institute of Justice, Alleviating Jail

Crowding: A Systems Perspective (1985). These programs

are traditionally managed by court personnel. Use of

15

these programs can reduce the time an arrestee charged

with a misdemeanor spends in jail to only a few hours.

However, whenever an arrestee is processed through

the jail prior to release, even if that release comes quickly,

the resources of the courts are tapped. For each detainee

not released directly by the police, a magistrate will

review the case and make bonding and other release

decisions. In most jurisdictions, a pretrial service officer

will also be involved at this early stage, and valuable staff

time will be diverted from more important cases. Most

jurisdictions already have overworked court officials and

overly long dockets for magistrates. These administrators

can ill-afford the additional burden that comes from hav-

ing to process minor traffic offenders as well.

3. Arresting An Individual for a Fine-Only

Traffic Offense Is Contrary to Law Enforce-

ment Interests Because It Removes an Offi-

cer from His or Her Duty Station and

Negatively Affects the Public’s Perception

of the Police

In balancing the state’s interest in making an arrest

against the individual’s interest in avoiding arrest, coun-

tervailing law enforcement concerns counsel against mak-

ing an arrest and thus reduce the strength of the

government interest. Whenever an officer makes a full

custodial arrest, he or she must transport the individual

to the booking location, and must complete a significant

amount of paperwork. This process removes the officer

from patrol duty for up to several hours.!° As a result,

10 Moreover, the arrest may lead either to increased

overtime costs for the department or to an officer’s missing a

16

fewer officers are available to handle law enforcement

duties and to deal with emergencies. Public safety may be

compromised. In other words, the importance of making

an arrest must also be balanced against the importance of

the officer’s remaining on patrol duty. For fine-only traf-

fic offenders and other misdemeanants charged with non-

jailable offenses, the weighting of those factors clearly

tips in favor of issuing a citation in lieu of arrest except in

very unusual circumstances."!

Moreover, when police abuse their discretion by

making inappropriate arrest decisions, it has significant

implications for public relations and public support for

law enforcement activities. Ordinary citizens begin to fear

the police rather than respect their professionalism, and

shift due to required court appearances the day following an

arrest. Either of these possibilities contradicts law enforcement

interests, and is easily avoided by the issuance of a citation.

11 Although many police chiefs would respond to an

officer's abuse of discretion in such cases through

administrative means (e.g., disciplinary proceedings or

warnings), that alone is insufficient to protect citizens from

harmful, unnecessary arrests. In the first place, some law

enforcement departments may not be sufficiently professional,

and citizens need protection from these departments even more

than from well-managed ones. Second, officers sometimes get

mixed messages from their superiors; they are simultaneously

told to cite traffic violators but also to find as much contraband

as possible. The officer therefore arrests traffic violators to

search cars and perhaps find illicit drugs. Of course, if

contraband is found, the decision to arrest seems reasonable in

retrospect. Finally, the reality is that police executives cannot

always control the ground-level decisions of their officers.

Therefore, it cannot be left solely to police departments to

sanction officers for making inappropriate arrest decisions that

hurt law enforcement interests.

17

this affects the ability of police to do their work, not to

mention the quality of life in a community.

4. When a Custodial Arrest Results in Signifi-

cant and Avoidable Problems for the Gov-

ernment, the Government’s Interest in

Making the Arrest Is Severely Weakened

Whatever the arresting officer’s interest purports to

be when arresting an individual for a non-jailable traffic

offense, it must be counter-balanced by the significant

problems that this practice creates for jail managers -

who are also government officials - and for police and

court administration interests generally. These problems

are entirely avoidable if officers simply use the long-

standing, effective, and widely accepted practice of cita-

tion release for misdemeanor traffic violations.

Amici are deeply concerned about the potential for

any ruling that widens the net for minor offenders who

can be brought to a jail by police officers. The police

practice at issue in this case also shows a lack of concern

for jail staff, who have no control over the individuals

brought to the jail, who are required to conduct unnecess-

ary and degrading searches of these individuals, and who

are placed at risk by the additional crowding caused by

these unnecessary arrests. Such arrests also weaken the

public’s confidence in law enforcement. In sum, amici

believe that the government's overall interest in this case

is entirely consistent with the interest of the traffic viola-

tor in not being arrested.

Il. A Custodial Arrest for a Non-Jailable Misdemeanor

Offense Violates the Proportionality Principle of

the Fourth Amendment

The proportionality principle of the Fourth Amend-

ment bars the use of intrusive measures in minor cases.

18

This principle is reflected not only in this Court’s deci-

sions, but also in common law rules; it thus pre-dates the

Court’s recent “balancing” approach to Fourth Amend-

ment issues, and represents a distinct basis for finding a

search or seizure to be unreasonable. Moreover, because

the proportionality principle focuses primarily on the

serious nature of the intrusion and the minor nature of

the crime, it bars the use of certain measures even when

the police have probable cause, and even if police inabil-

ity to use such measures may prevent prosecution and

conviction of the offender.

At common law, misdemeanor arrests were prohib-

ited unless the offense was committed in the officer’s

presence, and involved an actual or threatened breach of

the peace. See Carroll v. United States 267 U.S. 132, 156

(1925) (quoting Halsbury’s Laws of England, vol. 9, part III,

at 612). A breach of the peace typically meant a violent or

destructive act, see Horace Wilgus, Arrest Without a War-

rant, 22 Mich. L. Rev. 541, 572-77 (1923-24), and would not

include minor regulatory violations such as the seat belt

offense at issue in this case. These common law arrest

limitations strongly support the proportionality principle

embodied in the decisions of this Court discussed below,

that intrusive police measures — including custodial arrest

—- cannot be used to enforce minor crimes. Indeed, the

custodial arrest in this case is even more disproportionate

than the arrests prohibited at common law, because many

of the latter involved more serious, jailable offenses.

In Welsh v. Wisconsin, 466 U.S. 740 (1984), this Court

held that the police could not make a warrantless entry of

a person’s house to effect an arrest for a non-jailable, civil

offense of drunk driving, even though the officers had

probable cause to arrest, and despite a very plausible

19

claim that delaying the arrest until a warrant was

obtained would have resulted in the loss of crucial evi-

dence of intoxication. The Court noted that many lower

courts have viewed the seriousness of the offense as an

important factor in assessing the reasonableness of a war-

rantless entry on exigent circumstances; the Court also

cited Justice Jackson’s view that warrantless entry to

arrest for a minor offense would display “a shocking lack

of all sense of proportion.” Id. at 751 (citing McDonald v.

United States 335 U.S. 451, 459 (1948) (Justice Jackson)

(concurring)). Although drunk driving poses major risks

to persons and property, the Court considered the legisla-

tive classification of these violations as non-jailable, civil

offenses to be the best indication of the extent of the

state’s interest in making an arrest and enforcing this law.

Id. at 754.

Petitioner’s case is a much stronger vehicle than

Welsh for applying the proportionality standard of the

Fourth Amendment, because it involved a highly intru-

sive full-custody arrest, and a seat belt violation that

carried less risk of public harm than drunk driving, a

lower authorized fine, and no potential loss of evidence.

In Tennessee v. Garner, 471 U.S. 1 (1985), this Court

held that police may not employ deadly force to arrest a

fleeing, unarmed suspect who is not reasonably believed

to pose a significant threat of death or serious physical

injury to the officer or others. Recognizing that such a

rule might permit some suspects to escape and perhaps

even permanently evade capture and prosecution, the

Court nevertheless concluded that the use of deadly force

to arrest a suspect not believed to be dangerous or to

have committed a violent crime would constitute an

unreasonable seizure under the Fourth Amendment.

20

Thus, as in Welsh, the Court implicitly recognized that the

Fourth Amendment reasonableness standard incorpo-

rates a requirement of proportionality between the intru-

siveness of the arrest and the seriousness of the offense or

offender.

Admittedly, a full-custody arrest is much less intru-

sive than the use of deadly force. However, the govern-

ment’s interest in making such an arrest for a non-jailable

traffic offense is also far less than was the government's

interest in apprehending and prosecuting the burglary

suspect in Garner. Moreover, unlike the situation in Gar-

ner, limiting police power to make full-custody arrests for

non-jailable offenses will have little adverse effect on the

enforcement of such crimes, because most minor

offenders, and almost all traffic offenders, can be fully

identified from drivers’ license and/or vehicle records,

and thus are unlikely to permanently evade justice.

Several other decisions of this Court have also recog-

nized the principle that police powers are more limited in

minor cases. In Graham v. Connor, 490 U.S. 386 (1989), the

Court held that the severity of the crime is one of three

factors to be considered in assessing a claim that exces-

sive force — deadly or non-deadly — was used to make an

arrest. And in United States v. Hensley, 469 U.S. 221, 229

(1985), the Court suggested (but did not decide) that

completed crimes less serious than the felony at issue in

that case might not permit the use of Terry stop-and-frisk

powers. Finally, numerous decisions of lower courts, in a

variety of contexts, have considered the seriousness of

the offense to be an important factor in determining

issues of Fourth Amendment reasonableness, particularly

with regard to the use of intrusive police powers. See

William Schroeder, Factoring the Seriousness of the Offense

_— ee nial we

21

into Fourth Amendment Equations — Warrantless Entries into

Premises: The Legacy of Welsh v. Wisconsin, 38 U. Kan. L.

Rev. 439, 444, n. 26 (1990).

Taken together, the decisions summarized above

demonstrate an important principle: even where the

police have probable cause, an arrest may be found to be

unreasonable when it involves intrusive police measures

that are disproportional to the seriousness of the offense.

When, as in this case, the state has declared that an

offense is not punishable with incarceration, the use of

custodial measures prior to trial is clearly disproportio-

nate to the state’s determination of the seriousness of the

offense. Therefore, such arrests violate the Fourth

Amendment in all but the exceptional case.

III. Model Standards Promulgated by Prominent

National Entities Require Police Officers to Issue

Citations in Lieu of Arrest for All Misdemeanor

Offenses Absent Exceptional Circumstances

Some of the most prominent national associations

dealing with administration of justice issues have issued

model standards governing the use of citation release.

Each organization’s standards require or recommend that

police officers issue citations in lieu of arrest in most

misdemeanor cases, and specific exceptions guide the

officer’s discretion in those rare cases when an arrest

would be appropriate. Those exceptions include when an

arrest would further a legitimate investigative need,

when an arrest is necessary to avoid imminent bodily

harm, or when the officer reasonably believes that an

accused will refuse to respond to a citation. These are

reasonable and appropriate exceptions that adequately

address legitimate law enforcement interests and provide

22

police with sufficient flexibility to respond to case-speci-

fic circumstances.

The American Bar Association’s standards set forth a

policy strongly favoring citation release whenever possi-

ble:

It should be the policy of every law enforcement

agency to issue citations in lieu of arrest or

continued custody to the maximum extent con-

sistent with the effective enforcement of the law.

This policy should be implemented by statutes

of statewide applicability.

American Bar Association, Standards for Criminal Justice,

§ 10.2-1 (2d ed., 1980). The accompanying commentary

notes that no substantive change was intended from the

standard previously in force, which provided:

A law enforcement officer having grounds for

making an arrest should take the accused into

custody or, having already done so, detain him

further only when such action is required by the

need to carry out legitimate investigative func-

tions, to protect the accused or others where his

continued liberty would constitute a risk of

immediate harm or when there are reasonable

grounds to believe that the accused will refuse

to respond to a citation.

Id., History of Standard (quoting American Bar Associa-

tion, Standards Relating to Pretrial Release, Standard 2.1

(1968)). The commentary explains that the purpose of this

standard is to avoid a period of “wholly unnecessary

incarceration” when possible. American Bar Association,

Standards for Criminal Justice, Commentary, § 10.2-1 (2d

ed., 1980). The commentary continues:

[Standard 10-2.1] requires jurisdictions to estab-

lish a policy favoring citation release in all cases

in which such release is not inconsistent with

SE a

23

other legitimate. law enforcement objectives.

This policy is consistent with most other

national standards, which recommend that juris-

dictions use citations to the maximum extent

possible. . . . [A]rrest ought not to be the auto-

matic response to every criminal law violation.

When arrest serves no legitimate purpose,

police ought to be authorized - and in clear

cases required - to utilize the less restrictive

alternative of citation release. Id.

Whereas Standard 10-2.1 encourages citation use in

general, Standard 10-2.2, entitled “Mandatory Issuance of

Citation,” is directed to police officers, and focuses on

misdemeanor cases. It states in relevant part:

(a) Except as provided in paragraph (c), a

police officer who has grounds to arrest a per-

son for a misdemeanor should be required to

issue a citation in lieu of arrest or, if an arrest

has been made, to issue a citation in lieu of

taking the accused to the police station or to

court.

(c) The requirement to issue a citation . . . need

not apply and the defendant may be detained:

(i) when an accused subject to lawful

arrest fails to identify himself or herself satisfac-

torily;

(ii) when an accused refuses to sign the

citation after the officer explains to the accused

that the citation does not constitute an admis-

sion of guilt and represents only the accused’s

promise to appear;

(iii) when an otherwise lawful arrest or

detention is necessary to prevent imminent

bodily harm to the accused or to another;

(iv) when the accused has no ties to the

jurisdiction reasonably sufficient to assure

24

accused’s appearance and there is a substantial

likelihood that the accused will refuse to

respond to a citation; or

(v) when the accused previously has inten-

tionally failed to appear without just cause in

response to a citation, summons, or other legal

process for an offense other than a minor one,

such as a parking violation.

Id., Standard 10-2.2.

Commentary following this standard observes that:

for many defendants, arrest involves a needless

and wasteful invasion of personal freedom. . . .

[T]he decision concerning the necessity for

arrest should not be left to the untrammeled

discretion of the arresting officer. A standard

that permits officers to arrest or not according to

their personal assessment of a defendant is

bound to lead to unequal enforcement of the

laws.

American Bar Association, Standards for Criminal Justice,

Commentary, § 10.2-2 (2d ed., 1980).

Standard 10-2.2 applies to all misdemeanors, even

those punishable by over six months in jail. As the com-

mentary observes, “(t]he penalties for misdemeanors are

not so severe that a large number of defendants will be

motivated to flee in order to avoid them, and the acts

punished are not so serious that the public safety

demands immediate incarceration.” Id. The standard and

its rationale apply with even more force to a case such as

Petitioner’s: a non-jailable traffic offense with a maxi-

mum penalty of a $50 fine.

Other prominent organizations have also written

model standards supporting mandatory citation in most

minor cases. The American Law Institute’s Model Code of

25

Pre-Arraignment Procedure calls for issuance of regula-

tions “designed to provide the maximum use of citations,

so that persons believed to have committed offenses will

be taken into custody only when necessary in the public

interest.” American Law Institute, Model Code of Pre-

Arraignment Procedure, § 120.2(4) (1975).

The Uniform Rules of Criminal Procedure require

citation release for all offenses in the absence of disqual-

ifying conditions. National Conference of Commissioners

on Uniform State Laws, Uniform Rules of Criminal Pro-

cedure, Rule 211(c). Arrest is permitted only when the

offense involves violence or a risk of bodily injury; the

offense is being committed in the officer’s presence and

the person will deliberately continue committing the

offense unless arrested; the offense is punishable by

incarceration and the person would not respond to a

citation; or when arrest is necessary for protection of the

arrestee or to obtain medical aid. Id., Rules 211(c) (1)-(4)

(1974).

The National Prosecution Standards of the National

District Attorneys Association call for mandatory issu-

ance of citations in lieu of arrest in all minor cases, with

limited exceptions similar to those found in the ABA

Standards. See National District Attorneys Association,

National Prosecution Standards, § 10.2(B) (1977); American

Bar Association, supra, Standard 10-2.2. The NDAA Stan-

dards go on to state that “[e]ach law enforcement agency

should promulgate regulations designed to increase the

use of citations to the greatest degree consistent with

public safety.” National Prosecution Standards, supra,

§ 10.2(C)(2).

Standards issued by the National Association of Pre-

trial Services Agencies (NAPSA) similarly indicate that

26

an officer should be required to issue a citation in lieu of

arrest to all persons charged with misdemeanors unless

certain circumstances exist. Those circumstances include

most of the previously articulated exceptions, along with

an exception for “legitimate investigative action.”

National Association of Pretrial Services Agencies, Perfor-

mance Standards and Goals for Pretrial Release and Diversion:

Pretrial Release, Standard II.A (1978). The accompanying

commentary notes that citation release benefits “both the

accused and the criminal justice system” and that “[c]osts

to the jurisdiction are reduced in that no additional per-

sonnel are required to effect release and the police offi-

cer’s time out of service is minimized by avoiding the

need to transport the arrestee to a central booking facil-

ity.” Id., Commentary at 11.

Finally, the model standards adopted by the National

Advisory Commission on Criminal Justice Standards and

Goals (NAC), a commission appointed by Attorney Gen-

eral John Mitchell in 1973, are similar to those of NAPSA.

The NAC standards urge jurisdictions to adopt imme-

diately policies requiring citation in lieu of arrest in

minor cases, absent specified circumstances. National

Advisory Commission on Criminal Justice Standards and

Goals, Corrections, Standard 4.3 (1973).

For each of the above-discussed model standards,

law enforcement interests were well-represented at the

drafting table. Each committee that prepared the stan-

dards included prosecutors, as well as representatives

from the police, sheriffs departments, and associations

representing law enforcement interests, among their

membership or on Advisory Committees, Task Forces, or

review groups.

27

In summary, these model standards demonstrate that

citation release is the appropriate law enforcement

response in misdemeanor cases, absent any exceptional

circumstances. The exceptions that have been carved out

by these model standards are entirely reasonable and

adequately serve all legitimate law enforcement interests.

Moreover, the existence of these long-standing model

standards makes clear that channeling a police officer’s

discretion in these ways is workable and causes no threat

to law enforcement.

IV. Amici Urge This Court to Adopt a Rule Barring

Custodial Arrest Absent Exceptional Circum-

stances in All Non-Jailable Misdemeanor Cases, in

Keeping With the Model Standards, Workable

Laws in Many States, and Good Police Practice

The model standards cited above offer excellent

guidance to this Court. They have been in place for three

decades without challenge or need for significant revi-

sion. They are thoughtful, workable standards - drafted

with the input of law enforcement representatives — that

meet the legitimate needs of law enforcement officials

while respecting the rights of all citizens to be free from

unreasonable arrests.

The exceptions set forth in the standards strike an

appropriate balance between the rights of individuals

and law enforcement interests. The policy in favor of

citation in lieu of arrest is qualified by exceptions allow-

ing for arrest in cases when there is a legitimate investi-

gative need, a need to avoid imminent harm, or a

substantial risk that the individual will not respond to a

citation. Such legitimate law enforcement interests should

be respected.

28

This Court need not attempt to specify all the excep-

tional circumstances that could justify a custodial arrest

in a non-jailable misdemeanor case. It would be sufficient

to rule that there may not be a custodial arrest in non-

jailable misdemeanor cases absent exceptional circum-

stances, and that no such circumstances existed in this

case. Lower courts can decide whether “exceptional cir-

cumstances” exist in future cases coming before them.

A ruling by this Court along these lines would strike

a middle ground between allowing untrammeled police

discretion and removing all police flexibility to deal with

case-specific circumstances. If this clear standard is put in

place, there would be no further need for a complicated

balancing test with regard to these minor offenses.

Amici also do not believe that the Court should limit

its ruling to traffic offenses. The standard adopted should

apply to all non-jailable misdemeanor cases.!? Of course,

the need to apply such a rule in fine-only traffic offenses

is even more compelling.

Several states already have arrest limitations at least

as restrictive as those proposed here. Experience in these

states shows that the limitations are reasonable and

workable. In Minnesota, for example, the police have

been required since 1975 to issue a citation in all misde-

meanor cases with a maximum penalty of 90 days in jail

or less “unless it reasonably appears to the officer that

arrest or detention is necessary to prevent bodily harm to

the accused or another or further criminal conduct, or

that there is a substantial likelihood that the accused will

12 The proposed standard is less strong than the standards

set forth in the models cited, many of which apply the policy to

all misdemeanor cases carrying sentences of less than six

months in jail. The Court may choose to adopt this broader

approach instead.

29

fail to respond to a citation.” Minn.R.Crim.P., Rule 6.01,

subd. 1 (1999). The Rule’s text and commentary indicate

that arrest is almost never permitted for non-jailable mis-

demeanors. Moreover, these limits on the arrest power

are enforced through exclusionary rules. See State v. Mar-

tin, 253 N.W.2d 404 (Minn. 1977) (non-jailable misde-

meanors); State v. Varnado, 582 N.W.2d 886 (Minn. 1998)

(misdemeanors). But, recognizing the fundamental pro-

portionality principle discussed in Part II above, as well

as the more frequent need for arrest in serious cases, the

Minnesota rules grant much broader arrest powers for

gross misdemeanor and felony crimes. Minn.R.Crim.P.

Rule 6.01, subd. 2 (1999); State v. Bauman, 586 N.W.2d 416

(Minn. Ct. App. 1998) (gross misdemeanor charge, maxi-

mum penalty of one year in jail).

Other states also impose substantial limitations on

arrest powers in minor cases.'? Many states require issu-

ance of a citation in lieu of arrest for most misdemeanor

traffic violations. See, e.g., Ind. Code § 9-30-2-5 (2000);

Neb. Rev. Stat. § 60-684 (1999); N.M. Stat. Ann. § 66-8-123

(2000); S.D. Codified Laws Ann. § 32-33-2 (2000). A

number of states also require citations for certain non-

traffic offenses, see, e.g., Alaska Stat. § 12.25.180(b) (1999)

(infractions); Vt. R. Cr. P. 3(c) (1999) (misdemeanors).

Moreover, standards adopted by numerous law enforce-

ment agencies express a clear preference for the issuance

13 The most recent national survey found a large number of

states with statutes encouraging the use of citations for traffic

and other minor offenses. See Barbara C. Salken, The General

Warrant of the Twentieth Century? A Fourth Amendment Solution to

Unchecked Discretion to Arrest for Traffic Offenses, 62 Temple L.

Rev. 221, 251 n. 189 (1989) Additional limits are found in state

rules of procedure (e.g., the Minnesota and Vermont Rules cited

in text).

30

of citations in lieu of arrest in most misdemeanor cases.

See, e.g., North Carolina Highway Patrol Policy Manual,

Directive 1.1, Section III.A (1999) (barring arrest for all

infractions); id., Section III.B (limiting the circumstances

in which arrests can be made in misdemeanor cases).

The experience of these states shows that strict lim-

itations on police powers to arrest for minor offenses are

workable in practice and pose no threat to law enforce-

ment’s ability to protect public safety and enforce the law.

CONCLUSION

Whether this Court applies a test balancing the indi-

vidual and government interests involved, or relies on

the proportionality requirement of the Fourth Amend-

ment, a custodial arrest for a non-jailable misdemeanor is

unreasonable and unjustifiable absent exceptional cir-

cumstances. No such circumstances existed in this case.

A ruling in petitioners’ favor would simply recognize

existing good law enforcement practice around the coun-

try. In contrast, a ruling in respondents’ favor could cause

unintended difficulties for those who deal with the

administration of justice, especially jail managers, pretrial

service agencies, and the courts.

This Court should reverse the decision below, and

announce a standard barring custodial arrest in all non-

jailable misdemeanor cases absent exceptional circum-

stances that reflect legitimate law enforcement needs.

Respectfully submitted,

RICHARD S. FRASE

Counsel of Record

229 19th Avenue South

Minneapolis, Minnesota 55455

(612) 625-0831

Attorney for Amici Curiae

September 11, 2000

Appendix-1

APPENDIX A:

INFORMATION ABOUT AMICI

Following are brief biographies of the individuals who

have joined as amici in their individual capacities:

Dr. James Austin is the co-director of the Institute on

Crime, Justice, and Corrections at the George Washington

University in Washington, D.C. He has over 25 years of

experience in criminal justice planning and research, and

is one of the country’s leading experts on correctional

classification programs. He serves, or has recently served,

as director for several large U.S. Department of Justice-

funded research and evaluation programs. Some of his

most recent studies have included national evaluations of

“Three Strikes and You’re Out” laws, the privatization of

prisons, juveniles in adult corrections, and prison classi-

fication systems. He has also conducted evaluations of

local jail systems (New York City, Los Angeles, Phila-

delphia, Chicago, and D.C.) and how they have been

impacted by various law enforcement drug control pro-

grams.

David Bogard is an attorney with over 20 years of

experience managing and advising on the operations of

correctional facilities. He served as the Director of Cor-

rections for Arlington County, Virginia from 1988 to 1994,

and prior to that as Special Assistant to the Superinten-

dent of the Philadelphia, Pennsylvania jail system. Mr.

Bogard is a Commissioner on the Commission on Accred-

itation for Corrections of the American Correctional

Association, where he reviews jail facilities nationwide to

determine if they meet correctional standards. Mr. Bogard

has also conducted jail management training for the

Appendix-2

National Institute of Corrections-Jail Division, an arm of

the United States Department of Justice. He has been an

adjunct law professor at Howard University Law School.

Mr. Bogard is currently a principal in the criminal justice

planning firm of Pulitzer/Bogard and Associates, which

consults on projects throughout the country dealing with

jail operations and management.

James J. Fyfe is a Professor of criminal justice and

senior public policy research fellow at Temple University,

and is one of the nation’s leading police scholars. Fyfe

served as a New York City police officer, sergeant, and

lieutenant during 1963-79, and held a variety of patrol,

supervisory, training, and command positions. He was a

Commissioner of the Commission on Accreditation for

Law Enforcement Agencies, and helped to draft, review,

and enforce that organization’s standards. He has pub-

lished five books and more than one hundred articles and

chapters on police issues, and has testified as an expert

on police issues in approximately 300 cases in state and

federal courts in 33 states, the District of Columbia, and

Canada, as well as in the U.S. Senate and House of

Representatives, and in state and local legislatures across

the U.S. Fyfe has consulted with police and law enforce-

ment agencies throughout the world, and was a Senior

Fellow of the Police Foundation, for which he drafted the

amicus brief that was cited approvingly in the U.S.

Supreme Court’s majority decision in Tennessee v. Garner.

M. Kay Harris is an Associate Professor and former

Chair of the Department of Criminal Justice at Temple

University in Philadelphia. She is widely recognized as

Appendix-3

one of the country’s leading scholars on community cor-

rections issues. Since 1991, she has worked with the City

of Philadelphia and the local courts as a consultant in the

federal court case dealing with overcrowding in the Phil-

adelphia jail system. In the early 1970s, Professor Harris

served as Assistant Director to the National Advisory

Commission on Criminal Justice Standards and Goals

(NAC), convened by Attorney General John Mitchell. In

that position, she helped draft the NAC Standards on

Corrections, including those standards dealing with cita-

tion release in lieu of arrest, which are of direct relevance

in this case. She has also held positions with the Ameri-

can Bar Association, the Office of the United States Attor-

ney General, the National Institute of Law Enforcement

and Criminal Justice, and the Federal Bureau of Prisons.

Professor Harris has provided technical assistance to cor-

rections agencies throughout the United States, and has a

long-standing commitment to helping criminal justice

system stakeholders improve the administration of justice

in their communities.

Alan Henry is Executive Director of the Pretrial Ser-

vices Resource Center, a position he has held since 1984,

and is widely considered the country’s foremost expert

on pretrial services programs. The Center is the national

clearinghouse for information about pretrial laws,

research, and program practices, and was established

with funding from the United States Department of Jus-

tice in 1976. Besides directing the ongoing projects of the

Center, Mr. Henry is a member of the American Bar

Association’s Task Force on Pretrial Release, serves on the

Research Feedback Group of the International Associa-

tion of Chiefs of Police, and chaired the Ad-Hoc Pretrial

Appendix-4

Release Committee of the American Correctional Associa-

tion. He has also served on the Board of Directors for the

National Association of Pretrial Services Agencies

(NAPSA), which drafted standards dealing with citation

release in lieu of arrest. Those standards are of direct

relevance in this case. Mr. Henry has conducted

numerous training programs, and has helped the

National Institute of Corrections develop training mate-

rials and provide technical assistance on jail overcrowd-

ing. The National Criminal Justice Association honored

him for his “Outstanding Contribution to the Field of

Court Administration” in 1986, and he continues to use

his expertise to improve the administration of justice in

the courtroom and in jails.

Michael Jacobson, Ph.D., was the New York City

Corrections Commissioner from 1995 to 1997 and was the

New York City Commissioner of Probation from 1992 to

1996. Before being appointed Probation Commissioner, he

worked for nine years at the City Office of Management

and Budget, where he was a Deputy Budget Director. He

is currently a professor of sociology and criminology at

the Graduate Center of the City University of New York

and the John Jay College of Criminal Justice. Professor

Jacobson also was an adjunct assistant professor at the

Wagner School at NYU from 1985 to 1997 teaching

courses on governmental budgeting, public policy anal-

ysis and organization theory.

Kenneth Kerle, Ph.D., has been the managing editor

of the American Jail Association since 1986. He was asked

to initiate the publication of American Jails magazine

based on his experience in the field of corrections. His

Appendix-5

book, “American Jails: Looking to the Future,” (Butter-

worth-Heinemann, 1998) covers his jail odyssey to 48

states and visits to over 700 jails. Dr. Kerle has also

visited over 150 prisons, jails, probation offices, police

departments, and halfway houses in 20 foreign countries

in Europe, Asia, and Australia. He has worked as a

consultant to the National Sheriffs’ Association (NSA),

where he served as senior auditor of 66 jails in 20 states,

producing full-length evaluation reports which measured

jail operations policies and procedures against national

accreditation guidelines. Dr. Kerle was also the co-author

of the NSA publication “The State of Our Nation’s Jails -

1982.” He has written over 100 papers and articles about

local corrections and lectures on the subject of jail in

universities across the country.

Steve Martin is one of the country’s leading experts

on corrections litigation and correctional facility opera-

tions, with almost 30 years of experience working in the

criminal justice system. An attorney and consultant, he is

often called by the United States Department of Justice as

an expert witness. He currently serves as a co-monitor for

the federal court in the litigation involving Riker’s Island

in New York. Mr. Martin previously served as General

Counsel to the Texas Department of Corrections and was

the third-ranking official for that agency. He also previ-

ously worked as an Assistant District Attorney, a Special

Assistant Attorney General in Texas, a U.S. Probation and

Parole Officer, and a prison guard. Mr. Martin also held a

gubernatorial appointment to the Texas Punishment Stan-

dards Commission, which-revised the state’s Penal Code

and Code of Criminal Procedure.

Appendix-6

Thomas Rosazza is an expert on police and correc-

tional custudial care standards. The author of several

training manuals, he has worked with such agencies as

the American Correctional Association, the National

Institute of Corrections, the American Medical Associa-

tion Jail Standards Project, and Americans for Effective

Law Enforcement. He conducts the American Jail Asso-

ciation’s training course on jail intake procedures. Mr.

Rosazza has held various positions in correctional admin-

istration, and has served as Assistant Executive Director

of the Maryland Police and Correctional Training Com-

missions. There he began the development of the nation’s

first legislatively mandated training programs for state

and local correctional personnel. He was also appointed

Inspector General of Maryland’s Commission on Correc-

tional Standards, where he helped develop jail standards.

Eli B. Silverman, Ph. D, is Professor in the Depart-

ment of Law, Police Science and Criminal Justice Admin-

istration at John Jay College of Criminal Justice, City

University of New York. He has previously served with

the U.S. Department of Justice and the National Academy

of Public Administration in Washington, D. C. He has

served as consultant to numerous criminal justice agen-

cies, and has expertise in the areas of police management,

community policing, and comparative policing. His

numerous publications on policing include: NYPD Battles

Crime: Innovative Strategies in Policing, Northeastern Uni-

versity Press, 1999; “Reigning in the Police,” Criminal

Justice Ethics, Vol. 17, No. 2, Summer/Fall 1998; “The

NYPD’s New Strategies,” with Paul O’Connell in Crime

and Justice in New York City, Andrew Karmen, ed.,

McGraw Hill, 1998; “Below Zero Tolerance: The New

Appendix-7

York Experience,” in Zero Tolerance Policing, Roger Hop-

kins Burke, ed., Perpetuity Press, 1998; “Crime in New

York: A Success Story,” The Public Perspective, Vol. 8, No. °

4, June/July 1997; and “Revolutionizing the Police: Fight-

ing Crime in New York City,” with Paul O’Connell, Secu-

rity Journal, 9, 1997.

Arthur Wallenstein is the Director of the Montgom-

ery County (Maryland) Department of Corrections and

Rehabilitation. He previously served for 9 years as the

Director and Jail Administrator of the King County

(Washington) Department of Adult Detention, and for 13

years as Warden/Director of the Bucks County (Pennsyl-

vania) Department of Corrections. Widely respected for

his professionalism and knowledge about jail operations,

Mr. Wallenstein was honored with the “Jail Administrator

of the Year” Award by the American Jail Association in

1988. Mr. Wallenstein has also served on the National

Institute of Corrections Advisory Board since 1994, and

previously chaired the Board’s Jails Committee. He has a

particular interest in issues involving jail intake, mental

illness, and health care, and is deeply concerned with the

management problems caused by transient inmates.