Reassessing Reasonable Rights of Redistributing Relative Risks

Connecticut lawyer and UConn adjunct lawprof Dan Klau, at his blog Appealingly Brief!, provides a remarkably clear and cogent explanation of the theory behind the rights v. utilitarian view of the Fourth Amendment.  The question arose from a discussion that he and Connecticut public defender Gideon had about an awful decision, State v. Kelly, where a stop was upheld on the basis of guilt by association.

Gid blew a gasket when the Kelly decision came down, but some questioned why it was such a big deal.  Essentially, the counter-argument to Gid’s doctrinal position was that it worked, the cops got the bad guy and, well, it just didn’t seem particularly unreasonable.  Reasonable, as a stand-alone concept, has gained traction as an antidote to the warrant clause, where the black letter law that a warrantless search and seizure are unconstitutional per se, absent an exception.  There is no shortage of exceptions, but the alternative approach, a shrug and “well, it seems reasonable to me,” isn’t one of them.

Non-lawyers and quite a few lawyers who don’t practice criminal defense seem untroubled by this.  Actually, they seem fairly amenable to the idea that police conduct that doesn’t strike them as particularly unreasonable, usually because it turns out to be effective in getting the bad guy, should be permissible.  Fourth Amendment?  Meh. Save it for the innocent dudes and the really bad police conduct. Otherwise, let’s not make a big deal of it.

It’s been a struggle to explain what the issue is with this, and a struggle for those to whom the touchstone of reasonableness overcomes all “technicalities” to understand.  That’s where Dan Klau’s excellent explanation comes in.

As I explain, the [Kelly] decision exemplifies a disturbing (at least to me) trend, dating back to 1968 and a U.S. Supreme Court case called Terry v. Ohio, in which the search and seizure provisions of the federal and Connecticut Constitutions have been transformed from: 1) rights-orientated provisions intended to protect personal privacy against police intrusions, into 2) utilitarian provisions that justify intrusions upon personal privacy as “reasonable” in light of the benefits to law enforcement and, presumably, society at large.

Terry was a watershed decision from a doctrinal perspective, though not so much from a practical perspective.  It’s not like the police ignored conduct they thought was criminal before Terry, but that they had to make up better stories to justify their seizure.  What Terry effectively did was provide the Supreme Court seal of constitutional approval on what was happening anyway, and what, to the justices, was just too normal and reasonable to prohibit.

But Terry also put constitutional doctrine on a slippery slope.  Dan runs through a hypothetical that makes this slope clear, and analyzes how relative risk can be shifted from the police to innocent people in order to get the bad guy.  As his hypo and analysis are rather long, it won’t be repeated here, but it’s required reading.  I’m picking it up at the end:

Clearly, under circumstances like the one I described above, the Fourth Amendment operates as an impediment–as an obstacle–to maximally effective law enforcement.  That makes some people angry.  It shouldn’t.  That is the point of the amendment.

From the utilitarian perspective, the broadest reading of reasonableness as its own exception to the Fourth Amendment would best serve society.  After all, it’s beneficial to society to eliminate crime and to arrest criminals.  Anything that makes the job of a police officer easier in doing so, then, should be permitted.  Indeed, allowing cops to stop and frisk at will, or enter homes at will, would greatly facilitate their ability to find crime and criminals.  It would enable maximally effective law enforcement.

The problem, of course, would be that they would also mean that individuals in society would forfeit their right to be left alone for the benefit of society at large. Not just the bad dudes, but everybody.  Some folks are willing to suffer that indignity, though most of the time they say that believing that it won’t be them getting tossed, but some other poor schmuck without a McMansion in Greenwich and a leased BMW.

The problem with the newfound touchstone of reasonableness as part of an accepted utilitarian approach to avoiding the warrant clause is two-fold: First, reasonableness is highly relative and subjective.  What’s reasonable to you may not be reasonable to me. What’s reasonable for the cops to do to a guy who they believe just murdered someone is different than a guy whose headlight is out.  The more we hate a guy or his crime, the greater latitude we give the cops under the guise of reasonableness.

Second, we shift our idea of reasonableness to a police officer, and ultimately a judge.  As we walk down the street, thinking we’re doing nothing to warrant someone tossing us against a wall, demanding at gunpoint we lie in the gutter and let some cop stick their finger in our anus to check for a hidden drug cache because we’re too callipygian for our own good, we think this is unreasonable.

But if the cop tells a decent story as to why this all seemed pretty darned reasonable to him, based on factors that we would know nothing about (an informant told him a guy with hair wearing pants and a shirt had a gun and drugs up his butt), we lose.  As the judge will pronounce, sorry about that digital cavity search thing (which sounds much more official than a finger up your butt), but hey, sometimes you just have to take one for the team.

As Dan says, the point of the Amendment is that cops can’t do this, no matter how good a story they tell.  So yes, it’s anti-utilitarian, depriving society of maximally effective law enforcement.  But no, you won’t have to suffer the arbitrary finger up your butt for reasons having nothing whatsoever to do with you.

Next time a situation arises where you say to yourself, well, that doesn’t really seem unreasonable to me, you may be absolutely right, and yet you still shouldn’t embrace reasonableness, the utilitarian theory, at the expense of rights.  That’s why we have this Constitution thingy in the first place, to protect our right to be left alone by making it more difficult for the police to do their job.  Yes, police will be less effective and society will be less safe.  Hey, it’s your butt too.

6 thoughts on “Reassessing Reasonable Rights of Redistributing Relative Risks

  1. Catherine Mulcahey

    Apparently there are people who have gone from “The search must be okay because it turned out that the cops caught a bad guy” to “Pumping a bunch of bullets into an unarmed teenager must be okay because it turned out that the kid was a suspect in a robbery.”

  2. Pingback: Rights v. Utility And The Fourth Amendment Ctd. | Appealingly Brief!

  3. John Barleycorn

    If the feeding of the uniformed utilitarians continues maximally callipygian proportions dictate that the smothering side-effects will eventually reach the civilian utilitarians.

    Will they then squeak under the weight or will it be too late?

  4. A. Wright Burke, M.Phil.

    There’s a trade-off: (1) no fingers up butts = more crime; (2) fingers up butts = less crime.

    Why is #1 any less “utilitarian” that #2? Why is “safety” utilitarian but “privacy” not?

    Does a regime of “rights trump utility” constitute an exception to the utilitarian idea of “the greatest good for the greatest number”?

    Why is it “utilitarian” to spare John Doe from being a crime victim but “not utilitarian” to spare John Doe from a loss of privacy?

    1. SHG Post author

      That’s an excellent point, but one that depends on perspective. The law views rights as individual, while it views safety as societal. That’s why they all it “public safety.” If your view, that the protection individual rights is utilitarian, it would be a very different legal landscape. Unfortunately, that’s not the case.

Comments are closed.