Balkinization  

Monday, July 27, 2009

Arrest as Punishment

Alice Ristroph

Remember Gail Atwater? She was the soccer mom pulled over in 1997 in Lago Vista, Texas, and, after an ugly verbal exchange with the police officer, placed under arrest and taken to the police station. Gail Atwater was white. The offense for which she was arrested—a seatbelt violation—carries no jail time. Yet the Supreme Court held 5-4 in Atwater v. Lago Vista that police officers may, if they choose, make custodial arrests even for non-jailable offenses. The Court acknowledged that in this particular incident, “the physical incidents of arrest were merely gratuitous humiliations imposed by an officer who was (at best) exercising extremely poor judgment.” But such gratuitous humiliation was within the scope of a police officer’s discretion, the Court held. I don’t know if Sergeant James Crowley would have arrested Professor Henry Louis Gates even if Gates were white. As Atwater’s case makes clear, though, the offense of disrespecting an officer is not enforced solely against racial minorities.

This offense isn’t necessarily codified. Many jurisdictions—including Massachusetts—provide explicitly that a tirade against a police officer does not itself justify a conviction, fine, or jail sentence. (Adam Winkler reviews the Massachusetts law here.) But when police officers have the broad arrest powers protected by cases like Atwater, they have the ability to use an arrest itself as de facto punishment for disrespect. The Fourth Amendment requirement that an arrest be based on probable cause to believe that the arrestee committed some crime arguably limits this power—and arguably should have prevented Gates’s arrest. In practice, though, the broad scope of substantive criminal laws means that the probable cause requirement does very little to curtail the arrest power, and thus very little to curtail the power to punish via arrest.

Whether Gates actually was disrespectful to the officer is, of course, a matter of dispute. Some commentators have suggested that Crowley was more inclined to interpret Gates’s demands for his name and badge number as rude because they came from a black man. At the time Atwater was decided, civil libertarians worried that the broad arrest power vindicated in a case with a white female defendant would, in practice, be used disproportionately against black males. These racial implications of police discretion shouldn’t be overlooked. But it’s also worth considering a separate question: should police have the discretion to punish disrespect via arrest, even if they use that discretion against as many white soccer moms as black men?

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