Ansche Hedgepeth’s French Fry

Now that John Roberts has been nominated for Justice O’Connor’s seat on the US Supreme Court, his few opinions written on the DC Circuit Court of Appeals will be scrutinized line by line. In the main, they seem, so far as I have been able to tell on a quick scan, to deal with fairly specific and technical questions whose answers seem hard to generalize into major constitutional controversies.

But then there is the case of Ansche Hedgepeth.

Ansche Hedgepeth was, at the time of her crime, 12 years old. She was waiting for a friend to buy a Metrocard at the Tenleytown/American University Metrorail station in Washington, DC when she committed the fateful act.

She opened the fast food bag she was carrying and ate one French fry – in plain view of an undercover police officer.

The police officer placed her under arrest, handcuffed her and removed her shoelaces “pursuant to established procedure,” as the opinion tells us. She was held at the local police station for three hours until her mother could come to collect her.

Her offense? She violated a city ordinance against eating in Metro stations. The police had been instructed to adopt a “zero tolerance” policy in enforcing this ordinance, and Ansche Hedgepeth was one of 14 juveniles arrested for similar infractions during zero tolerance week.

The adults who ran afoul of the policy during zero tolerance week were merely given citations on the spot and were allowed to pay their fines later, as the local ordinance permitted. Minors were not eligible for such citations, however, and so were arrested because that was the only strategy available to police to enforce the ordinance. Given that police had been told that no infraction, however minor, was to be excused, any minor caught eating in the Metro was subject to mandatory arrest.

Her mother brought suit on Ansche’s behalf against the Washington Area Metropolitan Transit Authority asserting that Ansche’s arrest violated her equal protection right under the Fifth Amendment and her right to be free from unreasonable seizures under the Fourth Amendment. Both claims failed.

To the argument that age should be considered a suspect classification that would trigger heightened scrutiny in constitutional Fifth Amendment analysis, Judge Roberts wrote for a unanimous panel that it is not. As a result, the difference between the treatment of the adults and the treatment of children in the DC ordinance was subject only to a rational relation test, which Judge Roberts found it easily passed.

To the Hedgepeth argument that Ansche’s arrest burdened a fundamental right to be free from restraint, Judge Roberts wrote that no one has a right to be free from restraint when they have obviously violated a law under the very nose of the police:

The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest.. . .That is true even with respect to minor offenses.

And to the argument that such a minor crime could not produce a “reasonable” arrest, Judge Roberts cited the Supreme Court’s decision in Atwater v. City of Lago Vista which held that a police officer had not acted unreasonably in violation of the Fourth Amendment when he arrested a woman who had merely failed to fasten her seat belt. So too, Ansche Hedgepeth, could not rely on the Constitution to escape the consequences of her misdeeds. She clearly ate a French fry in clear violation of the city ordinance in the clear view of a police officer. No leniency for her.

(Poor Ansche!)

As a doctrinal matter, the Hedgepeth case might be of little interest. But it is one of the few decisions we have to go on to see how a future Justice Roberts would differ from the departing Justice O’Connor.

As it happened, Atwater was a 5-4 decision in which Justice O’Connor penned the dissent. If Justice Roberts were on the bench instead of Justice O’Connor, then, this is not one cases where the 5-4 vote would have gone the other way. But Justice Roberts’ opinion has a markedly different sensibility from that of Justice O’Connor, and given the similarity of the facts in the two cases, one can begin to get a sense of how Justice Roberts would alter doctrine in which he would be replacing Justice O’Connor’s crucial vote.

Justice O’Connor in Atwater was clearly disturbed by the prospects of someone being subjected to a full-blown arrest merely for not wearing a seat belt. So, she proposed a Fourth Amendment balancing test. As Justice O’Connor wrote:

There are significant qualitative differences between a traffic stop and a full custodial arrest. While both are seizures that fall within the ambit of the Fourth Amendment, the latter entails a much greater intrusion on an individual’s liberty and privacy interests. . . . Justifying a full arrest by the same quantum of evidence that justifies a traffic stop–even though the offender cannot ultimately be imprisoned for her conduct–defies any sense of proportionality and is in serious tension with the Fourth Amendment’s proscription of unreasonable seizures.

Proportionality analysis. This was the device through which Justice O’Connor was able to see the humanity in the problem. Had her view prevailed, the reasonableness of arrests for minor offenses would have to be determined in light of the state interest to be achieved through such an arrest:

Because a full custodial arrest is such a severe intrusion on an individual’s liberty, its reasonableness hinges on “the degree to which it is needed for the promotion of legitimate governmental interests.” [citation omitted] In light of the availability of citations to promote a State’s interests when a fine-only offense has been committed, I cannot concur in a rule which deems a full custodial arrest to be reasonable in every circumstance. Giving police officers constitutional carte blanche to effect an arrest whenever there is probable cause to believe a fine-only misdemeanor has been committed is irreconcilable with the Fourth Amendment’s command that seizures be reasonable. Instead, I would require that when there is probable cause to believe that a fine-only offense has been committed, the police officer should issue a citation unless the officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the additional] intrusion” of a full custodial arrest. [citation omitted]

Now this approach, had it been the holding in Atwater, would no doubt have created yet another field of constitutional law in which bright-line tests gave way to balancing with less predictable results. Police departments are no doubt grateful for the five votes on the other side. But those of us in the general public who are now subject to discretionary arrests for fine-only misdemeanors might feel differently.

Judge Roberts’ opinion, admittedly, was able to rely on the already decided Atwater case, in which Justice O’Connor’s views did not prevail. He could, therefore, be simply said to be following the rules laid down.

But there was wiggle room to distinguish Ansche Hedgepath’s case from Gail Atwater’s – wiggle room purposively left by the Atwater majority. Justice Souter’s opinion for the Court positively invites a future distinguishing case when he notes that the police officer in Atwater was “authorized (not required, but authorized)” to arrest Atwater and that police needed to be able to exercise this discretion in the heat of the moment to determine whether an arrest was necessary. (In Atwater’s case, her two children were sitting in the front seat, also without seat belts.) Had the police officer in Atwater been required to arrest the offender no matter how trivial the infraction, as the police officer was in Ansche Hedgepath’s case, a reasonable judge might have concluded the arrest itself was not reasonable. Eating one French fry does not endanger others as failing to buckle in one’s children would.

But Judge Roberts seems determined to draw bright lines. Even though his statement of facts in Hedgepeth begins with a lament that “No one is very happy about the events that led to this litigation,” he did not let his unhappiness divert him from what, in his view, the law required. And the law allows of no exceptions, no room for common sense to modify the strict operation of a strict rule.

Though many of us have railed against Justice O’Connor’s fact specificity and her predilection to decide cases on the narrowest possible grounds, I suspect that we are going to very much miss her humanity. Ansche Hedgepeth may be the first visible victim of the future Justice Roberts’ strict constructionism.