theatlantic | Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, wrote
separately to attempt to limit the effect of the decision. It’s not a
question of whether he actually knew the law, but of whether the law was
really clear to everybody, she wrote. “If the statute is genuinely
ambiguous, such that overturning the officer’s judgment requires hard
interpretive work, then the officer has made a reasonable mistake,” she
wrote. “But if not, not.” All very well, but I can’t help concluding
that Heien makes it easier for police to find a reason to stop
anyone they think looks suspicious. And we as a society are learning
some very hard lessons about what can go wrong with police stops.
Roberts’s opinion takes not the slightest notice of the events of the
past year. The world he describes is a kind of happy valley were police
are polite, citizens know their rights, consent to search is always
freely given, and only evildoers feel dread when they see a blue light
in the rear-view mirror. “[R]easonable men make mistakes of law,” as
well as of fact, he says.
If only we all lived in the Chief’s empire of reason, and drove on
his celestial streets! Those of us in the sublunary world, however,
traverse streets where fear, not reason, is often the currency. Justice
Sonia Sotomayor, in a solo dissent, protested that the decision “means
further eroding the Fourth Amendment’s protection of civil liberties in a
context where that protection has already been worn down.” She pointed
out that “[g]iving officers license to effect seizures so long as they
can attach to their reasonable view of the facts some reasonable legal
interpretation (or misinterpretation) that suggests a law has been
violated significantly expands [their] authority.” And setting out a
standard that permits stops based on “reasonable” errors but not on
“unreasonable ones,” she argued, further confuses the world of criminal
procedure. Even a citizen who knows the law and conforms to it may be
subject to police seizure of the officer “reasonably” misunderstands
that same law. The Court’s new standard, she wrote, “will prove murky in
application.”
