Legal Commentary

Imagine that you're driving on a road where the maximum speed allowed is 55mph. You assume that you won't be stopped by the police unless you exceed, say, 65mph. You choose to drive, say, 58mph, and, to your surprise, you are stopped by a cop and she issues you a ticket.

What do you feel? Surprise? Indignation? Are you upset with the police? And if so, why? And can this indignation be framed as a constitutional argument in court?

The complex relationship between regulation and de-facto enforcement, and its connection to fairness, has intrigued me for quite a while, and recently I've started looking at it more closely, with my collaborator, Dan Portman. Our hope is to come up with a systematic analysis of this phenomenon, which we call "inequitable enforcement", to link it to the existing literature on police discretion, underenforcement, and pretextual arrests/stops, and to examine the possibility of making a successful legal argument against enforcement that may be legal, but feels unfair.

We've chosen the term "inequitable enforcement" because we really like how it ties to the concept of equity; in this respect, we've been immensely helped by my fabulous new colleague, Darien Shanske, and his work on equity. The term captures several aspects of the phenomenon. First, the problem is certainly not one of black-letter law. After all, under the existing caselaw, no one (or, as you'll see in a minute, almost no one) can require "more" of the police beyond adherence to the formal legal requirements. As we learned recently in VA v. Moore (2008), even if the police break local state laws by arresting you, you do not have a Federal constitutional case against them, provided that their performance did not fall under the constitutional minimum.

Second, our instinct is that a substantial part of the inequitability comes from a sense of unequal enforcement. Having the law enforced against you when you do not expect it stems, often, from engaging in what Margaret Raymond calls "penumbral crimes"; that is, crimes in which both the enforcement agency and the citizens share an assumption of unenforcement. Therefore, if the law is suddenly enforced against you, you feel discriminated against.

One of the first questions we hope to tackle in this inquiry is the possibility to create guidelines for distinguishing situations in which enforcement can, and should be viewed, as inequitable. Some pertinent criteria would be the type of law broken; the extent to which we can assume public knowledge of underenforcement standards (how would we measure such knowledge? Police regulations? Would there need to be an explicit communication between the enforcement agency and the citizens? Are there circumstances in which we can assume an implicit 'contract' between the police and the citizens, and if so, may the latter rely on it?); the extent to which we can, and should, rely on consensus about the "common sense" level of enforcement; how deep the illegality is located within the "penumbra" of crime; or how intense and intrusive the enforcement has been (i.e. a full arrest v. a Terry stop). The demographics of the citizen in question might also be an issue. Is it more "equitable" to enforce on recidivists?

Then, we hope to move on and assess the potential of constitutional arguments against inequitable enforcement. We can think of two possible paths: 4th Amendment arguments and equal protection arguments. If a petitioner chooses the former road, she will have to challenge and problematize the way in which probable cause has become the be-all, end-all parameter of reasonability for 4th Amendment purposes, but we do not think it inconceivable to incorporate a problem of inequitability into a "totality of the circumstances" assessment of reasonability.

The latter road is quite interesting in light of the court's examination of pretextual arrests and stops, such as in Whren et al v. US (1996). Is an argument of inequitability more palatable to the legal system in cases in which the defendant can point out to a clear "underlying agenda" behind the arrest or the stop? That is, would it be easier for us to recognize inequitability when the injured party is a member of a suspect class?

Finally, there's the question of remedies. If the court does recognize inequitability, would it be willing to uphold a motion to suppress or to dismiss? If not, could inequitable enforcement have legal meaning in other contexts, such as enriching the dossier of a zealously-enforcing cop? And can we count on the organizational culture of the police to instill in officers not only lawfulness, but common sense?

We'd be really interested to hear what you all think about this; not just about the viability of the constitutional argument, but also about the implications that an "inequitable enforcement" doctrine might have on compliance, police organization, and 4th Amendment interpretation.

Also, if there's any pertinent literature you think we should look at, let us know. We'll be much obliged.