An Equal Protection Challenge to Heien v. North Carolina

In Heien v. North Carolina135 S.Ct. 530 (2014), the U.S. Supreme Court has issued forth its new edict asserting the Fourth Amendment is not disturbed if a constitutional deprivation occurs because of a police officer’s reasonable mistake of the law. This creates a scheme whereby divergent interpretations of the same statute may produce unequal outcomes, which may ultimately prove to be untenable under the due process and equal protection clauses of the Fourteenth Amendment. 

Heien stems from a routine traffic stop which escalated into a felony drug arrest after a law enforcement officer discovered cocaine in the defendant’s vehicle. The officer’s pretext for the stop was that he  believed state law prohibited driving a vehicle with a broken brake light. However, the statute in question only requires one working brake light. During the stop, the drugs were discovered after the defendant granted the officer consent to search his vehicle.

Prior to trial, the defendant filed a Motion in limine to suppress the evidence seized on the grounds that the officer’s erroneous pretext for the stop violated the Fourth Amendment. The Trial Court denied the motion to suppress and the defendant was convicted. The State Court of Appeals reversed, finding that the officer’s mistake of law meant that no probable cause existed for the initial stop. On appeal, the North Carolina Supreme Court upheld the Trial Court’s decision to deny defendant’s motion to suppress the evidence, ruling that the officer’s mistake of law was a “reasonable” one, thus the stop did not violate the Fourth Amendment. On appeal, the  U.S. Supreme Court granted certiori to hear the case.

The ACLU’s amicus curiae brief on behalf of the defendant, Nicholas Heien, argued the North Carolina Supreme Court’s decision should be overturned on the grounds that treating mistakes of fact and law in the same manner under the Fourth Amendment contravenes well established legal principles. Attorneys argued:

The legal standard against which the facts and circumstances are judged does not depend upon what was known to the officer. Instead, it is based on the “infraction itself.” Whren v. United States, 517 U.S. 806, 818 (1996); accord Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) (“Whether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law.”). The question is not whether the facts could have caused a law enforcement official to perceive a violation of a law he reasonably believed to exist; it is whether the facts could have given rise to reasonable suspicion of a violation of an actual law. See, e.g., United States v. Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”); Delaware v. Prouse, 440 U.S. 648, 661 (1979) (“When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations—or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered—we cannot conceive of any legitimate basis [for a stop.]” (footnote omitted)).

As a matter of public policy, the ACLU argues that adopting the rule crafted by the North Carolina Supreme Court has negative consequences on individual liberty. Their brief asserts, “[i]f the Fourth Amendment inquiry hinges on the reasonableness of police officers’ beliefs about the law … the rule will enable an expansive new category of government intrusions.” Put into practice, the rule could justify intrusions  “based on all manner of innocent conduct, so long as the state raises, post-hoc, a non-frivolous question of statutory interpretation.”

The ACLU further contends “allowing state intrusions that have no basis in law, undermines the legitimacy of law enforcement and threatens officer safety.” In support of their position, they put forward the argument that “the rule diminishes incentives to ensure that law enforcement officials receive thorough and up-to-date training in the law. See Nicholson, 721 F.3d at 1242 (“Permitting officers to excuse their mistakes of substantive law as ‘reasonable’ ‘would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.’” (quoting Lopez-Soto, 205 F.3d at 1106)).”  In addition, the ACLU argues “the rule may damage the public perception of law enforcement’s knowledge and authority, discouraging citizens from obeying or cooperating with police and alienating law enforcement officials from those they serve.” As a result, officer safety could be negatively impacted “by encouraging citizens to dispute the law with officers who are no longer presumed to understand it.”

The U.S. supreme Court disagreed. In an 8-1 majority opinion, the U.S. supreme Court adopted the North Carolina Supreme Court’s position as the new standard for “reasonableness” under the Fourth Amendment. The Court held, “Because [Officer] Darisse’s mistake of law was reasonable, there was reasonable suspicion justifying the stop under the Fourth Amendment.” Chief Justice Roberts, delivering the opinion of the Court, provided the following rationale:

Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.

The lone dissenter, Justice Sotomayor reasoned:

The Court is, of course, correct that “‘the ultimate touchstone of the Fourth Amendment is “reasonableness.”’” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 5). But this broad statement simply sets the standard a court is to apply when it conducts its inquiry into whether the Fourth Amendment has been violated. It does not define the categories of inputs that courts are to consider when assessing the reasonableness of a search or seizure, each of which must be independently justified. What this case requires us to decide is whether a police officer’s understanding of the law is an input into the reasonableness inquiry, or whether this inquiry instead takes the law as a given and assesses an officer’s understanding of the facts against a fixed legal yardstick. I would hold that determining whether a search or seizure is reasonable requires evaluating an officer’s understanding of the facts against the actual state of the law.

In essence, Justice Sotomayer’s contention is over whether it should be considered “reasonable,” under  Fourth Amendment jurisprudence, for an officer to understand the law they are purporting to enforce. The Majority deemed the Fourth Amendment is not infringed by an officer’s good faith mistake of law, creating a likely scenario whereby police officers will be inconsistent in their enforcement of statutes and ordinances. Nevertheless, this stabs through the heart of the Fourteenth Amendment’s  guarantee against arbitrary enforcement of the law. Therefore, the vehicle for challenging the recent Fourth Amendment precedent established by the Court under Heien v. North Carolina may reside in the Fourteenth Amendment’s due process and equal protection clauses.

The void for vagueness doctrine is derived  from the due process clause of the Fourteenth Amendment which requires statutes to be drafted in such a manner that the average person, exercising ordinary common sense, is on fair notice of what conduct is being prohibited. The void for vagueness doctrine is also intended to curb the arbitrary and discriminatory enforcement of criminal statutes. Penal laws must be understood not only by those persons who are required to obey them but by those persons who are charged with the duty of enforcing them. Statutes that do not carefully outline detailed procedures by which police officers may perform an investigation, conduct a search, or make an arrest confer wide discretion upon each officer to act as he or she sees fit. Precisely worded statutes are intended to confine an officer’s activities within the boundaries of the law.

The first step in evaluating whether a law is unconstitutionally vague is to determine whether the statute provides adequate notice of the prohibited conduct. United States v. National Dairy Products Corp., 372 U.S. 29, 33 (1963) (citing United States v. Harriss347 U. S. 612, 618 (1954)). A regulation must be sufficiently clear to warn a party regarding what is expected of them before they can be sanctioned for failure to comply with the required regulation. Id. at 33.  A statute is facially invalid if the law’s prohibitions are stated in a manner that an ordinary person exercising common sense is unable to understand and comply. CSC v. Letter Carriers413 U.S. 548, 579  (1973).

Where conduct is not in and of itself blameworthy, however, a criminal statute may not impose a legal duty without notice. See, e.g. Lambert v. California, 355 U.S. 225 (1957) (invalidating a municipal code that made it a crime for anyone who had ever been convicted of a felony to remain in the city for more than five days without registering). In Lambert, the Court emphasized that the act of being in the city was not itself blameworthy, holding that the failure to register was

“unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.” Id. at 228, 229-30.

Under the Court’s related “overbreadth”  doctrine, a law is invalid if it is too vague for a reasonable person to understand what behavior is covered and what behavior is not.  Overbroad statutes are problematic because they discourage individuals from exercising fundamental rights out of fear of accidentally breaking the law. A statute may be so vague or threatening to constitutionally-protected activity that it can be pronounced “unconstitutional on its face.”  Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974).

Less vague statutes may be held unconstitutional, as applied to the defendant, where the vagueness in their application threatens a constitutionally protected right. Under these conditions, an otherwise facially valid statute may be struck down as applied to the defendant. See, e.g., National Dairy Corp., 372 U.S. at 31 (1963) (Court is permitted to consider not only the “terms of the statute ‘on its face’ but also in the light of the conduct to which it is applied”). Where the terms of a statute can be applied to both innocent and prohibited conduct, but the valuable effects of the law outweigh its potential general harm, such a statute can be held unconstitutional as applied to the defendant.

The next step in the vagueness inquiry is to determine whether the statute is drafted in a manner which fosters arbitrary or discriminatory enforcement. A law is unconstitutionally vague when it “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), quoted in Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982). The vagueness may be from uncertainty in regard to persons within the scope of the act, or in regard to the applicable tests to ascertain guilt. Winters v. New York, 333 U.S. 507, 515 -16 (1948); Cf. Colten v. Kentucky, 407 U.S. 104, 110 (1972). To prevent arbitrary and discriminatory enforcement, laws must provide explicit standards for those who apply them. See, e.g.Kolender v. Lawson, 461 U.S. 352, 358 (1983) (Loitering statutes which are triggered by failure to obey a police dispersal order are suspect, and may be struck down if they leave a police officer absolute discretion to give such orders).

In the case of a police officer’s reasonable mistake of law, the void for vagueness doctrine provides sufficient legal ammunition for challenging the statute utilized to justify the investigatory stop on the grounds that it is capable of being enforced in an arbitrary or discriminatory manner. By deeming a police officer’s mistake of law as reasonable, what the Court has inadvertently established is that the law in question is capable of being applied on an “ad hoc and subjective basis,” which in turn fosters arbitrary and discriminatory application. This deprives an individual of their Fourth Amendment right against unreasonable seizure by making it impossible for the average person, exercising ordinary common sense, to comply with the statute in such a manner that would protect them from being targeted. See, e.g.Kolender, 461 U.S. at 358.

In terms of legal strategy, an appeal to the Court’s void for vagueness jurisprudence transforms a Fourth Amendment inquiry over the reasonableness of the officer’s actions, into a Fourteenth Amendment due process inquiry into the reasonableness of the statute, as applied to the defendant. The legal dichotomy this creates is that either the officer’s understanding of the law was unreasonable, causing a Fourth Amendment deprivation, or that the law was arbitrarily and mistakenly enforced, hence, is unconstitutionally vague and overbroad, as applied to the defendant. As a result, the defendant has suffered a Fourteenth Amendment deprivation of due process through the arbitrary or discriminatory enforcement of the law, regardless of the reasonableness of the officer’s actions under the Fourth Amendment. Hence, any evidence gained as a result of the constitutional deprivation becomes fruit of the poisoned tree.

The void for vagueness claim should be supplemented with a selective enforcement challenge arising under the Court’s equal protection jurisprudence. The legal reasoning here, is that you are not actually contending that the language of the statute is unclear, but rather that an officer’s mistake of law has caused the statute to be applied in an arbitrary and/or discriminatory manner.

Under the equal protection clause, the arbitrary or discriminatory enforcement of an otherwise facially valid law is still deemed to be unconstitutional. Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (a law which is “fair on its face and impartial in its appearance” may nonetheless constitute “illegal discrimination between persons” “if it is applied and administered by public authority with an evil eye and an unequal hand.”); see alsoHolder v. City of Allentown, 987 F.2d 188, 197 (3d Cir. 1993) (applying Yick Wo to a claim of discriminatory enforcement of a residency ordinance).

Generally, to establish a selective enforcement claim, a party must show (1) that they were treated differently than other similarly situated individuals, and (2) that this selective treatment was motivated by an unjustifiable standard, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith attempt to injure the person. See, Hill v. City of Scranton, 211 F.3d 118, 125 (3d Cir. 2005); Holder, 987 F.2d at 197 (citingUnited States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 546, 107 L.Ed.2d 543 (1989)).

A selective enforcement claim may also be brought by a “class of one,” where the defendant alleges that they have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); see also Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, 488 U.S. 336, 345-46 (1989). In Olech, the Court reaffirmed, “The purpose of the equal protection clause is to secure every person within a State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” 528 U.S. at 564 (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923) (quoting Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 352 (1918))).

A law that neither burdens a fundamental right nor targets a suspect class will be upheld so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. Heller v. Doe, 509 U.S. 312, 319-320 (1993). However, when government action infringes upon a fundamental right (such as the Fourth Amendment), the Court applies a strict scrutiny standard of review which requires a the government to show a “compelling state interest” which has been narrowly tailored to achieve its end. Roe v. Wade410 U.S. 113, 155-56 (1973) (citations omitted).

Here, a police officer’s mistaken enforcement of a law certainly qualifies  as an “improper execution through duly constituted agents.” Therefore, a mistake of law, no matter how reasonable, subjects a defendant to different treatment than similarly situated individuals, without a rational basis for the difference in treatment. A reasonable mistake of law which touches upon a Fourth Amendment protection should trigger strict scrutiny.

As for the public policy argument, Justice Sotomayer provides a persuasive individual rights justification by asking “why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.” This argument can be supplemented with the ACLU’s contention that the rule undermines respect for authority by inviting the public perception that police officers are unfamiliar with the law that they are seeking to enforce and will be held unaccountable for their mistakes.

Lawrence Christopher Skufca (2015)

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