04/26/01

Justice Anthony M. Kennedy 
Supreme Court of the United States
1 First Street NE
Washington, District of Columbia 20543

Dear Justice Kennedy:

Since beginning to follow court decisions of individual Justices, I have often held your decisions in exceptional esteem.  For this reason I chose you as a member of the Court to whom I respectfully direct the following short critical commentary in reference to Justice Souter's and the majority decision in Atwater v. Lago Vista, which you joined.

The majority position that “[T]he Framers did not address warrantless intrusions at all in the Fourth Amendment or in earlier state provisions; thus, they never anticipated that ‘unreasonable’ might be read as a standard for warrantless intrusions” is open to much more than semantically based argument.  Opinioned historical record support of Justice Powell’s observations not withstanding, it appears the Court furthermore acknowledged in its opinion, historical record directness, “suggesting that courts look with ‘disfavor’ on such legislative enactments ‘as interfering with the constitutional liberties of the subject’.”  States’ right to statutorily enlarge particulars of common-law authority, “Extending warrantless arrest power to misdemeanors without limitation to breaches of the peace”, is not firmly limiting to any portion of Atwater’s Fourth Amendment claim. 

The Court’s opinion plainly states, but regrettably fails to elucidate, “If we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail.” Admittedly, “Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government’s side with an essential interest in readily administrable rules.” Nevertheless, as the dissent elucidated, “probable cause” and “extraordinary” circumstances as delineated in Terry v. Ohio,  Whren v. United States, etc., have proved less than problematic.  Strong argument to the contrary also remains as to the merit of the majority opinion that “personal § 1983 liability for the misapplication of a constitutional standard…would guarantee increased litigation.”  The clear fact remains that respondents failed to substantiate any demonstrable merit for the arrest decision.

The majority’s opinion that “Multiplied many times over, the costs to society of such under-enforcement could easily outweigh the costs to defendants of being needlessly arrested and booked” is most disturbing.  The Court’s opinion appears particularly insulated when it not only asks in Oral Argument, but also quotes the question, “how bad the problem is out there.”  Furthermore, it also seems gravely inconsistent to suggest, “warrantless misdemeanor arrests [may not] need constitutional attention.”  To imply “It is of course easier to devise a minor-offense limitation by statute than to derive one through the Constitution” would seem to come critically vulnerable as constitutional negligence. 

Finally, the Court’s majority position lacks vision when it introduces Atwater’s counsel’s failure to provide “indications of comparably foolish, warrantless misdemeanor arrests.”  Our presently overburdened justice system and its administratively generated limitations on due process can only serve as testimony to the severity of a problem. Recent riots in our inner cities provide further evidence of the seemingly growing, widespread national sentiment of excessiveness and/or arbitrariness in law enforcement.  Not minimizing the intrusions on Ms. Atwater and her children with an appropriately less indiscriminant “bright-line rule” in this exemplary case could have served to strongly dispel much such sentiment.  As Justice O’Connor lucidly stated in minority dissent, “The Court’s error, however, does not merely affect disposition of this case. The per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans.”