Can Justice Kagan Narrow Heien v. North Carolina?

Yesterday, the Court decided Heien v. North Carolina by an 8-1 vote. Both the holding–that police act constitutionally when they make certain mistakes of law–and the lopsided outcome in Heien call to mind Davis v. United States, which involved the good-faith exception to the exclusionary rule and was resolved 7-2. Heien provides the most recent example of the “other” rule of lenity–that is, the newly ascendant principle that police should get the benefit of the doubt when it comes to ambiguous laws. Heien also shrinks the gap between Fourth Amendment rights and remedies, which now both include consideration of the police’s “good faith.” And then there’s the historical dimension of Heien. So, as expected, Heien is a big decision.

For now, I’d like to focus on how lower courts will construe Heien in light of Justices Kagan’s concurrence, which was joined by Justice Ginsburg. Because she asked the government several skeptical (and characteristically insightful) questions at argument, Justice Kagan’s decision to join the majority may seem somewhat surprising. But the content of Justice Kagan’s concurrence, along with the fact that her vote was unnecessary for the creation of a majority, suggests that she might have been motivated to concur to put her own spin on the decision for the Court. In other words, Justice Kagan’s concurrence might be an example of “aspirational narrowing.” It’s less clear that Justice Kagan’s efforts will be successful.

Justice Kagan points out three ways in which the Court’s holding is limited. Two points appear in the main text of her opinion and another comes up in a footnote. The two main-text points are that the majority relies on an objective inquiry and that it imposes a more demanding requirement than would apply in a qualified immunity case. The footnote asserts that a reasonable mistake as to the content of the Fourth Amendment itself cannot be reasonable for Fourth Amendment purposes. Let me take up these points in turn.

1. The inquiry is objective, not subjective. This basic point is well supported, as the majority expressly endorses an “objective” inquiry. But Justice Kagan’s cashing out of this point is surprising. As she puts it:

[T]he government cannot defend an officer’s mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. [C]ontrary to the dissenting opinion in the court below, an officer’s reliance on ‘an incorrect memo or training program from the police department’ makes no difference to the analysis.

But the majority says nothing about police memos or training. Moreover, Justice Kagan’s conclusions are questionable on their own terms. Objective inquiries often incorporate relevant facts, including things like training and advice. Indeed, the Supreme Court recently said just that in a qualified immunity case. Even though the qualified immunity standard is quite expressly “objective,” the Court in Messerschmidt v. Millender found it relevant that “officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate.” If the advice of superiors is relevant, then why not training and guidance documents?

2. The Heien inquiry is stricter than qualified immunity. Here, too, Justice Kagan’s point starts out seeming well-founded. After all, the majority expressly states–in a sentence that looks like it might have been added to secure Justice Kagan’s vote–that its inquiry “is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation.” However, as Joshua Block has observed, this point is unexplained and so might not actually pose a serious bar for police. Indeed, the difference between Heien‘s standard and qualified immunity might be so small as to be irrelevant.

Justice Kagan tries to flesh out the majority’s cryptic assertion, but her effort only raises more questions. As she recounts, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” By contrast, Justice Kagan explains, the Heien majority’s “test is satisfied when the law at issue is ‘so doubtful in construction’ that a reasonable judge could agree with the officer’s view.” Justice Kagan also explains that “both North Carolina and the Solicitor General agreed that such cases will be ‘exceedingly rare.'”

But Justice Kagan’s statement of the Heien test–“that a reasonable judge could agree with the officer’s view”–sounds very similar to the test for qualified immunity. As Messerschmidt and many other cases put it, qualified immunity protects “reasonable” officers. And, as Messerschmidt and other cases show, the conclusion that no reasonable judge could agree with the officer already seems key to determining whether the officer’s action was “plainly incompetent” for qualified immunity purposes.

Justice Kagan’s analysis also raises a lot of questions. For instance, does Justice Kagan mean to draw a distinction between reasonable officers and reasonable judges? Does she mean to exclude cases like Messerschmidt that consider things like oversight by district attorneys? Finally, and perhaps most provocatively, is Justice Kagan’s “reasonable judge” standard satisfied whenever a case involves jurisdictional splits or even dissenting opinions, since the judges at issue are presumably “reasonable” ones?  If so, then Justice Kagan is saying not only that the Heien standard is satisfied in connection with splits and dissents, but also that the relatively lax qualified immunity standard is as well.

Somewhat greater guidance comes from the Solicitor General’s presentation during oral argument, which Justice Kagan cites. Here’s the cited passage:

JUSTICE SOTOMAYOR: How is your standard differed from qualified immunity standard of reasonableness?

KOVNER: Sure. We think that an officer, in order to have reasonable grounds for a stop, needs to be able to point to something in the statute that affirmatively supports his view, whereas the qualified immunity standard seems to require essentially the opposite. It seems to require that there’s a precedent that forecloses what the officer does in order to protect only those who were acting to protect everybody except for those who are clearly incompetent.

This statement doesn’t appear in Justice Kagan’s concurrence, much less in the majority, so we are getting pretty far from settled law. Moreover, it’s quite unclear what it means to have “something in the statute that affirmatively supports [the officer’s] view,” if that is supposed to mean something other than that the statute is ambiguous. Perhaps the idea is that the statute actually seems to have been intended to support the officer (as in the exclusionary rule case Illinois v. Krull), but the state courts for some reason misread the provision. Or perhaps not.

Justice Kagan’s effort at narrowing here calls to mind Justice Sotomayor’s similar effort in Davis v. United States. Like Justice Kagan, Justice Sotomayor concurred in a lopsided decision in the hope of highlighting the majority opinion’s limitations. In particular, Justice Sotomayor emphasized that Davis applies only where police action has been “affirmatively authorized” by precedent. That move is similar to the government’s (and, therefore, Justice Kagan’s) in the passage above. Yet circuit courts have read Davis quite a bit more broadly. Will Justice Kagan’s effort fare better?

3. Searches based on reasonable Fourth Amendment errors are always unconstitutional. Justice Kagan’s final effort to narrow Heien appears in a footnote.

Here is what Justice Kagan’s footnote says (with some cites omitted):

I note in addition, as does the Court, that one kind of mistaken legal judgment—an error about the contours of the Fourth Amendment itself—can never support a search or seizure. See ante, at 10 (“An officer’s mistaken view that” conduct does “not give rise to” a Fourth Amendment violation, “no matter how reasonable,” cannot change a court’s “ultimate conclusion” that such a violation has occurred). As the Solicitor General has explained, mistakes about the requirements of the Fourth Amendment “violate the Fourth Amendment even when they are reasonable.” Brief for United States as Amicus Curiae 30, n. 3; see Brief for Respondent 29 (stating the same view).

Once again, Justice Kagan asserts a fairly bright-line rule based in part on the statements of the parties.

But here is what the relevant passage of the majority says (with most cites omitted):

Heien is correct that in a number of decisions we have looked to the reasonableness of an officer’s legal error in the course of considering the appropriate remedy for a constitutional violation, instead of whether there was a violation at all. In those cases, however, we had already found or assumed a Fourth Amendment violation. An officer’s mistaken view that the conduct at issue did not give rise to such a violation—no matter how reasonable—could not change that ultimate conclusion. See Brief for Respondent 29–31; Brief for United States as Amicus Curiae 30, n. 3. Any consideration of the reasonableness of an officer’s mistake was therefore limited to the separate matter of remedy.

While the majority opinion provides support for concurrence’s conclusions, Justice Kagan’s statement and the majority’s are not identical. The basic gap between them is that the majority is distinguishing cases, not expressly establishing a bright-line rule for the future. True, the majority asserts that, in the relevant cases, police officers’ reasonable mistakes about the Fourth Amendment “could not change” the Fourth Amendment result. And the majority cites the same party briefs that Justice Kagan does. However, the majority opinion doesn’t actually say that reasonable mistakes about the Fourth Amendment will always be irrelevant to the Fourth Amendment analysis. In future cases, police might make novel errors about what the Fourth Amendment generally requires, and, in reviewing the specific officer’s action, the Court might not “assume” or “already” have found a violation. In such a situation, it is unclear whether the majority’s statement applies.

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In sum, Justice Kagan’s concurrence seems like an attempt to narrow the majority, rather than neutrally interpret it. Put another way, Justice Kagan’s goal is to inject clarity into the majority opinion’s ambiguities. On its face, however, the majority leaves open some issues that Justice Kagan hopes to resolve. And some of Justice Kagan’s attempted clarifications actually raise new questions. It will be interesting to see whether Justice Kagan’s reading of Heien prevails in the circuit courts and, eventually, in later Supreme Court decisions.