WHY THE WORLD HATES
Circuit Judge Roberts, who reviewed issues in these matters, and later sat on the United States Circuit Court of Appeal for the District of Columbia, later yet sits today on the United States Supreme Court is very revealing, regardless of the details of the quaint rationale, and logic which was used as an excuse to justify his mindset which is so typical of tyrants, and dictators.
The American courts which expects a certain measure of comity, in regards to American law, they base on it grand sense of "logic", that (1) directly affects the jurisprudence of all countries on major issues of the day, which that judge and American Jurisprudence most often has decided with the most senseless, brainless, naive, stupid, pretentious, improper of means:
That the world most often can clearly see as the travesty it is when America's system of justice, and leaders are judged by what they decide on the most basic levels, where most often there is no money available to represent the poor, the under-privileged, and the lower economic classes of a society at war with a world, that begins by claiming it is always better, gentler, kinder, most just, most fair, and of course best country in the world:
When from those decisions insight is derived into how the American "leadership (sic) Democrat, and Republican, will decide the larger greater issues of war, peace, progress, heaven, hell, language, truth, and justice.
Typical people before the courts in the
- infringe on the dignity of the court
- act in contempt of court
Typical courts are supposed to have the appearances of propriety that allows decisions of those courts to stand as dignified impartial bodies, which can be depended upon as being fair, just, and good, based on some measure of truth and fairness.
What Justice Roberts starts with what I describe as insincere "crocodile tears" in his saying:
"No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later all for eating a single French fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the or-deal. The district court described the policies that led to her arrest as ''foolish,'' and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that hey did not, and accordingly we affirm."
The full body of the decision of that court:
Court of Appeals United States
CIRCUIT DISTRICT OF COLUMBIA
September 17, 2004
October 26, 2004
EDGEPETH, AS THE NEXT FRIEND TO
UTHORITY, ET AL.,
Appeal from the United States District Court
District of Columbia
Brian C. Duffy argued the cause for appellant. With him
on the briefs were Randal M. Shaheen and Jonathan S.
Donna M. Murasky, Senior Litigation Counsel, Office of
Attorney General for the
, argued the District of Columbia
cause for appellee the
. With her on the District of Columbia
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
brief were Robert J. Spagnoletti, Attorney General, and
Edward E. Schwab, Deputy Attorney General.
Gerard J. Stief,
Associate General Counsel, Washington
Metropolitan Area Transit Authority, argued the cause for
Metropolitan Area Transit Authority, Washington
et al. With him on the brief were Cheryl C. Burke, General
Counsel, and Mark F. Sullivan, Deputy General Counsel.
Robert J. Kniaz, Deputy General Counsel, entered an appear-
, Circuit Judges, and
, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge R
, Circuit Judge: No one is very happy about the
events that led to this litigation. A twelve-year-old girl was
arrested, searched, and handcuffed. Her shoelaces were
removed, and she was transported in the windowless rear
compartment of a police vehicle to a juvenile processing
center, where she was booked, fingerprinted, and detained
until released to her mother some three hours later all for
eating a single french fry in a Metrorail station. The child
was frightened, embarrassed, and crying throughout the or-
deal. The district court described the policies that led to her
arrest as ''foolish,'' and indeed the policies were changed after
those responsible endured the sort of publicity reserved for
adults who make young girls cry. The question before us,
however, is not whether these policies were a bad idea, but
whether they violated the Fourth and Fifth Amendments to
the Constitution. Like the district court, we conclude that
they did not, and accordingly we affirm.
It was the start of another school year and the
Metropolitan Area Transit Authority (WMATA) was once
again getting complaints about bad behavior by students
using the Tenleytown/American University Metrorail station.
In response WMATA embarked on a week-long undercover
operation to enforce a ''zero-tolerance'' policy with respect to
violations of certain ordinances, including one that makes it
unlawful for any person to eat or drink in a Metrorail station.
§ 35-251(b) (2001). ''Zero tolerance'' had more
fateful consequences for children than for adults. Adults who
violate § 35-251(b) typically receive a citation subjecting them
to a fine of $10 to $50.
§ 35-253. Id. District of Columbia
law, however, does not provide for the issuance of citations
for non-traffic offenses to those under eighteen years of age.
Instead, a minor who has committed what an officer has
reasonable grounds to believe is a ''delinquent act'' ''may be
taken into custody.''
§ 16-2309(a)(2). Committing an Id.
law, such as eating in a District of Columbia
Metrorail station, constitutes a ''delinquent act.''
§ 16- Id.
2301(7). The upshot of all this is that zero-tolerance enforce-
ment of § 35-251(b) entailed the arrest of every offending
minor but not every offending adult.
The undercover operation was in effect on October 23,
2000, when twelve-year-old Ansche Hedgepeth and a class-
mate entered the Tenleytown/AU station on their way home
from school. Ansche had stopped at a fast-food restaurant on
the way and ordered a bag of french fries to go. While
waiting for her companion to purchase a fare-card, Ansche
removed and ate a french fry from the take-out bag she was
holding. After proceeding through the fare-gate, Ansche was
stopped by a plainclothed Metro Transit Police officer, who
identified himself and informed her that he was arresting her
for eating in the Metrorail station. The officer then hand-
cuffed Ansche behind her back while another officer searched
her and her backpack. Pursuant to established procedure,
her shoelaces were removed. Upset and crying, Ansche was
transported to the
's Juvenile Processing District of Columbia
Center some distance away, where she was fingerprinted and
processed before being released into the custody of her
mother three hours later.
The no-citation policy was not, it turned out, carved in
stone. The negative publicity surrounding Ansche's arrest
prompted WMATA to adopt a new policy effective January
31, 2001, allowing WMATA officers to issue citations to
juveniles violating § 35-251(b). See Deposition of Capt. Mi-
chael Taborn at 28, 55. Zero tolerance was also not a policy
for the ages. Effective
May 8, 2001, WMATA adopted a new
Written Warning Notice Program, under which juveniles
eating in the Metro are neither arrested nor issued citations,
but instead given written warnings, with a letter notifying
their parents and school. Only after the third infraction over
the course of a year may a juvenile be formally prosecuted.
WMATA Written Notice Memorandum at 14.
April 9, 2001, Ansche's mother Tracey Hedgepeth
brought this action as Ansche's next friend in the United
States District Court for the
. The District of Columbia
complaint was filed under 42 U.S.C. § 1983 and named
WMATA, its General Manager, the arresting officer, and the
as defendants. It alleged that Ansche's District of Columbia
arrest violated the equal protection component of the Fifth
Amendment, because adults eating in the Metro were not
arrested. The complaint also alleged that the arrest was an
unreasonable seizure under the Fourth Amendment. The
complaint sought declaratory and injunctive relief against the
enforcement policies leading to Ansche's arrest, and expunge-
ment of Ansche's arrest record.
On cross-motions for summary judgment, the district court
ruled in favor of the defendants. Hedgepeth v.
Metro Area Transit, 284 F. Supp. 2d 145, 149 (D.D.C. 2003).
Addressing the equal protection claim, the court applied ''the
highly deferential rational basis test,'' id. at 156, because it
found that age is not a suspect class, id. at 15253, and that
there is no fundamental right to be free from physical re-
straint when there is probable cause for arrest.
at 155. Id.
The court then ruled that both the District's no-citation policy
for minors and WMATA's zero-tolerance policy survived ra-
tional basis review.
at 15658. The district court next Id.
rejected Ansche's Fourth Amendment claim, relying on Atwa-
ter v. City of Lago Vista, 532 U.S. 318 (2001), for the
The complaint also sought damages from the arresting officer in
his individual capacity. That claim has been dismissed and is not
before us on appeal.
proposition that '' '[i]f an officer has probable cause to believe
that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.' '' 284 F. Supp. 2d at 160
, 532 Atwater at 354). Given that it was undis- U.S.
puted that Ansche had committed the offense in the presence
of the arresting officer, the district court concluded it was
''without discretion or authority to reject the standards enun-
, despite the minor nature of the offense Atwater
and the harshness of the response. 284 F. Supp. 2d at 160.
Hedgepeth now appeals.
We are confronted at the outset with two jurisdictional
objections. First, Ansche's complaint seeks only prospective
and even in the absence of WMATA's change in
policy we are not willing to indulge the assumption that
she will violate D.C. C
§ 35-251(b) in the future and
thereby again be subject to the policies about which she
complains. This suggests the lack of an ongoing case or
controversy under Article III.
of See City v. Los Angeles
, 461 U.S. 95 (1983) (plaintiff subject to illegal arrest Lyons
procedure lacked standing to seek prospective relief because
At several points in the proceedings, plaintiff's counsel referred
to a request for damages from the District. See, e.g., Transcript of
June 19, 2003Summary Judgment Hearing at 3233, 109. The
Second Amended Complaint, however, contains no such demand.
While that complaint concludes with the standard request for ''such
other relief TTT as this Court deems just and proper,'' id. at 7, and
while Federal Rule of Civil Procedure 54(c) provides that a court
shall award a party relief to which it is entitled even if the party has
not demanded it, the law is settled in this circuit that ''Rule 54(c)
'comes into play only after the court determines it has jurisdic-
tion.' '' NAACP,
Jefferson v. County Branch Sugar United States
Corp., 84 F.3d 1432, 1438 (D.C. Cir. 1996) (quoting Dellums v. U.S.
Nuclear Regulatory Comm'n, 863 F.2d 968, 975 n.8 (D.C. Cir.
1988)). Accordingly, even if damages could be awarded pursuant to
judicial discretion under Rule 54(c), the possible availability of such
relief would not establish standing or defeat mootness objections.
he made no showing that he was likely to be arrested and
subjected to illegal procedure again); O'Shea v. Littleton, 414
U.S. 488, 49596 (1974) (''Past exposure to illegal conduct
does not in itself show a present case or controversy regard-
ing injunctive relief'').
Second, WMATA argues that its new policy for juvenile
offenders renders the case moot. There is no need for the
court to assess the legality of the policy to which Ansche was
subjected, WMATA argues, because that policy a combina-
tion of a no-citation rule for minors and zero-tolerance en-
forcement is no longer in effect.
The answer to both objections is found in the precise relief
sought by Ansche. In the complaint, Ansche sought not only
declaratory and injunctive relief with respect to the no-
citation and zero-tolerance policies, but also the expungement
of her arrest record. Second Am. Compl. ¶ 32(c). She
clarified in her summary judgment papers that this last
request included a judicial declaration deeming her allegedly
unlawful arrest a ''detention.'' See Memorandum in Support
of Motion for Summary Judgment (
Feb. 21, 2003) at 23.
Such an order would relieve Ansche of the burden of having
to respond affirmatively to the familiar question, ''Ever been
arrested?'' on application, employment, and security forms.
This court has approved such relief in the past. See Carter v.
, 795 F.2d 116, 136 (D.C. Cir. 1986); District of Columbia
Tatum v. Morton, 562 F.2d 1279, 1285 n.17 (D.C. Cir. 1977).
Ansche accordingly has Article III standing, and her effort to
secure such relief has in no way been affected by WMATA's
WMATA also argues that, as a state-level governmental entity
with sovereign immunity, it is not a ''person'' subject to liability
under 42 U.S.C. § 1983, citing Will v. Michigan Dept. of State
58, 71 (1989). Ansche, however, has also named as U.S.
a defendant WMATA's General Manager in his official capacity, and
''[o]f course a state official in his or her official capacity, when sued
for injunctive relief, would be a person under § 1983 because
'official-capacity actions for prospective relief are not treated as
actions against the State.' ''
at 71 n.10 (quoting Id. v. Kentucky
159, 167 n.14 (1985)). U.S.
This action is justiciable with respect to both the District of
and WMATA. Although each tries to blame the Columbia
other, Ansche alleges that neither defendant's policies alone
would suffice to cause the alleged violation: but for
WMATA's zero-tolerance policy, there likely would have been
no enforcement of § 35-251(b) against Ansche; but for the
law did not authorize citations District of Columbia
to minors, the zero-tolerance enforcement of § 35-251(b)
would not have required Ansche's arrest.
Cf. Machesney v.
Larry Bruni, 905 F. Supp. 1122, 1134 (D.D.C. 1995) (''ordi-
narily when two tortfeasors jointly contribute to harm to a
plaintiff, both are potentially liable to the injured party for
the entire harm'') (internal quotation marks omitted).
By the same token, it appears that both WMATA and the
District would be implicated in the relief that confers stand-
ing and defeats mootness. Ansche was arrested by a
WMATA officer and detained and processed in a District
facility. Records concerning the episode have been generat-
ed by both WMATA and the District. See Transit Police
Event Report at J.A. 30407; Metropolitan Police Dept.
Delinquency Report at J.A. 30809. If redress in the form of
an order of expungement and a declaration that Ansche's
arrest was a detention were appropriate, such an order would
properly run against both WMATA and the District.
Ansche first contends that her arrest violated the equal
protection component of the Fifth Amendment. See Bolling
v. Sharpe, 347
497, 49899 (1954). Adults eating in the U.S.
Metrorail station during the undercover operation could be,
and almost uniformly were, given citations; similarly situated
It would be inaccurate to refer to the District's law as one of
''mandatory arrest.'' The statute itself says a minor violating the
law ''may be taken into custody.'' D.C. C
§ 16-2309(a)(2) (2001)
(emphasis added). A plain reading of this statute allows an officer
discretion to warn or even to look the other way. The arrest
provision only becomes mandatory when paired with a zero-
tolerance enforcement policy.
minors could only be and were subjected to the far more
intrusive invasion of arrest. During zero-tolerance week,
twenty-four adults violating § 35-251(b) at WMATA facilities
were issued citations, whereas fourteen juveniles were arrest-
ed. WMATA's Answers to Interrogatories at 7.
The first step in analyzing Ansche's claim that this dispa-
rate treatment violated equal protection is to determine the
proper level of scrutiny. Strict scrutiny demands that classi-
fications be narrowly targeted to serve compelling state inter-
ests and is reserved for suspect classifications or classifica-
tions that burden fundamental rights. Intermediate scrutiny
requires that classifications be substantially related to impor-
tant governmental interests; it is applied to so-called ''quasi-
suspect'' classifications. Under rational basis review, a classi-
fication need only be rationally related to a legitimate govern-
mental interest. See Kimel v.
Bd. of Regents, 528 Florida
62, 8384 (2000). U.S.
Ansche argues for heightened scrutiny strict scrutiny or,
more plausibly, intermediate scrutiny for two distinct
reasons: first, classifications based on status as a minor are
''quasi-suspect''; and second, her arrest burdened her funda-
mental right to be free of physical restraint by the govern-
ment. The district court correctly held that neither theory
supported heightened scrutiny.
Ansche acknowledges that the Supreme Court ''has said
repeatedly that age is not a suspect classification,'' Gregory v.
452, 470 (1991) (citing cases), and instead U.S.
has analyzed equal protection challenges to age-based classifi-
cations under rational basis review. She argues that those
cases are distinguishable, however, because they concerned
classifications discriminating against the elderly, as opposed
to the young. Youth, according to Ansche, bears many of the
hallmarks of a suspect classification: a history of discrimina-
tion, immutable characteristics, and political disenfranchise-
ment. See Lyng v. Castillo, 477
635, 638 (1986). Thus, U.S.
she concludes, there should be heightened scrutiny of distinc-
tions burdening the young, even if there generally is not of
distinctions based on age.
This court has noted in passing that youth is not a suspect
v. Cohen, 733 F.2d 128, 135 United States
(D.C. Cir. 1984) (en banc); see also Hutchins v. District of
Columbia, 188 F.3d 531, 536 n.1 (D.C. Cir. 1999) (en banc)
(plurality opinion). Other circuits have reviewed classifica-
tions based on youth under a rational basis standard. See
Stiles v. Blunt, 912 F.2d 260, 266 (8th Cir. 1990);
Stallings, 870 F.2d 1242, 1247 (7th Cir. 1989); Williams v.
, 642 F.2d 26 (1st Cir. 1981). We agree with Lewiston
the conclusions of these circuits.
Although Ansche is correct that the Supreme Court cases
applying rational basis review to classifications based on age
all involved classifications burdening the elderly, see Ramos v.
, 353 F.3d 171, 181 n.4 (2d Cir. 2003), she has Vernon
presented us with no persuasive reasons to conclude that
classifications burdening children should be treated different-
ly. Heightened scrutiny is reserved for classifications based
on factors that ''are so seldom relevant to the achievement of
any legitimate state interest that laws grounded in such
considerations are deemed to reflect prejudice and antipa-
thy.'' City of
v. Cleburne Living Center, Inc., 473 Cleburne
432, 440 (1985). Youth is not such a factor young age U.S.
is quite often relevant to valid state concerns, as the Constitu-
tion itself attests. See
. art. I, § 2 (minimum age
for House of Representatives); id. § 3 (minimum age for
Senate); id. art. II, § 1 (minimum age for President). Mini-
mum age requirements for voting, marriage, driving, drink-
ing, employment, and the like cannot be dismissed as reflect-
ing ''prejudice and antipathy'' toward the young. Youth is
not ''so seldom relevant'' to legitimate state concerns that we
should assume that any law singling out the young is proba-
bly the result of anti-youth animus. Youth is more often
relevant than old age, which we know does not trigger
Nor are the characteristics that define the young markedly
more obvious or distinguishing than those that define the old.
In fact, the characteristics are simply opposite sides of the
same coin age. Youth is also far less ''immutable'' than old
age: minors mature to majority and literally outgrow their
prior status; the old can but grow more so.
Ansche does point to one relevant difference between old
age and youth: political power. Older Americans can vote;
children cannot. A finding of ''political powerless[ness],''
at 638, however, even if defined solely in U.S.
terms of voting rights, is not enough to trigger heightened
scrutiny. Compare City of Cleburne, 473
at 442 (apply- U.S.
ing rational basis scrutiny to distinctions based on mental
retardation) with id. at 464 (Marshall, J., concurring in part
and dissenting in part) (observing that in most states the
mentally retarded cannot vote). Political powerlessness is
also not measured solely in terms of access to the ballot box,
for the broad array of laws and government programs dedi-
cated to protecting and nurturing children combined with
the large numbers of voters who are parents or otherwise
concerned about children belies the argument that children
and their needs cannot attract the attention of the legislature.
See id. at 445. We are rightly skeptical of paternalistic
arguments when it comes to classifications addressing adults,
see, e.g., Mississippi University for Women v. Hogan, 458
U.S. 718, 72425 (1982), but the concern that the state not
treat adults like children surely does not prevent it from
treating children like children. WMATA's haste to abandon
its challenged policy in the wake of adverse publicity confirms
that the interests of children are not lightly ignored by the
For all these reasons, we conclude that classifications based
on youth like those based on age in general do not
trigger heightened scrutiny for equal protection purposes.
Ansche alternatively argues that her equal protection claim
is subject to heightened scrutiny because the challenged
classification burdens a fundamental right. It has been point-
ed out often enough that, in considering such a claim, much
turns on the level of generality at which the asserted funda-
mental right is defined. Compare Hutchins, 188 F.3d at 538
(plurality opinion) (''We think that juveniles do not have a
fundamental right to be on the streets at night without adult
supervision.'') with id. at 557 (Rogers, J., concurring in part
and dissenting in part) (''the contested right should be de-
fined more abstractly TTT first without regard to age, and
second without regard to the manner in which it is exer-
Ansche defines the right at issue as the right to freedom
from restraint, see Zadvydas v. Davis, 533
678, 690 U.S.
(2001) and Foucha v.
, 504 Louisiana 71, 86 (1992) U.S.
(plurality opinion), a right burdened by the defendants' poli-
cies compelling the arrest of minors for trivial offenses. The
defendants, not surprisingly, define the right at issue far
more narrowly: for the defendants, the asserted right is the
right of a minor to be free from arrest when there is probable
cause, if the arrest is pursuant to a policy that precludes less
intrusive enforcement options.
9. See also See District Br.
id. at 12 (alternatively defining right as the right to eat within
the public transit system).
We think the proper degree of generality lies somewhere
between the two extremes offered by the parties. Like the
district court, we think the right at issue in this case is the
right of freedom of movement when there is probable cause
for arrest. Unlike the defendants' proposal, this definition
does not depend on the challenged classification minority
status itself. Unlike the plaintiff's proposal, it does not
ignore the plainly pertinent fact that we are dealing with a
conceded violation of a valid law, a fact that historically has
carried implications for the asserted right of free movement.
The plaintiff goes so far as to cite the Magna Carta in
claiming the fundamental freedom against ''being taken [or]
imprisoned,'' see Reply Br. 6 (quoting M
, ch. 39),
but the very same provision of that historic charter recog-
nized an exception when the restraint on freedom was pursu-
ant to ''the law of the land.'' M
, ch. 39.
The law of this land does not recognize a fundamental right
to freedom of movement when there is probable cause for
arrest. Gerstein v. Pugh, 420
103 (1975). That is true U.S.
even with respect to minor offenses.
, 532 Atwater at U.S.
354. Ansche argues that these cases under the Fourth
Amendment do not resolve the equal protection claim, and
that is surely correct: simply because a practice passes
muster under the Fourth Amendment (arrest based on proba-
ble cause) does not mean that unequal treatment with respect
to that practice is consistent with equal protection. But the
assertion here is that heightened scrutiny under equal protec-
tion is required because the right affected is fundamental, and
Ansche has made no effort to establish that there is a
fundamental right, ''deeply rooted in this Nation's history and
tradition,'' Washington v. Glucksberg, 521
702, 72021 U.S.
(1997) (quotation omitted), to free movement when there is
probable cause for arrest. The fact that the Fourth Amend-
ment specifically addresses when freedom of movement may
be restrained, and permits such restraint upon probable
cause, makes any such effort exceedingly difficult. Cf. Gra-
ham v. Connor, 490 U.S. 386, 395 (1989).
Rational basis review applies and we accord the challenged
policies a strong presumption of validity. We will uphold
them ''if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.''
FCC v. Beach Communications, 508 U.S. 307, 313 (1993).
What is more, ''those attacking the rationality of the legisla-
tive classification have the burden 'to negative every conceiva-
ble basis which might support it.' '' Id. at 315 (quoting
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364
(1973)). We therefore need not review all the reasons given
by the defendants in support of the challenged distinction
between children and adults; it is enough that we find one
reason rational. We conclude that the no-citation policy for
minors is rationally related to the legitimate goal of promot-
ing parental awareness and involvement with children who
commit delinquent acts.
Issuing a citation to a child is complicated by the fact that
there is often no ready way to ensure that the child is
providing truthful or accurate identifying information. A
child often will not be carrying a form of identification, and
there is nothing to stop one from giving an officer a false
name an entirely fanciful one or, better yet, the name of
the miscreant who pushed them on the playground that
morning. In this situation parents would be none the wiser
concerning the behavior of their children. The correction of
straying youth is an undisputed state interest and one differ-
ent from enforcing the law against adults. Because parents
and guardians play an essential role in that rehabilitative
process, it is reasonable for the District to seek to ensure
their participation, and the method chosen detention until
the parent is notified and retrieves the child certainly does
that, in a way issuing a citation might not. The district court
had and we too may have thoughts on the wisdom of this
policy choice it is far from clear that the gains in certainty
of notification are worth the youthful trauma and tears but
it is not our place to second-guess such legislative judgments.
See City of New Orleans v. Duke, 427 U.S. 297, 303 (1976)
(per curiam) (rational basis review does not authorize the
judiciary to sit as a ''superlegislature'').
Ansche finally challenges her arrest on the ground that it
was an unreasonable seizure in violation of the Fourth
Amendment. This claim quickly runs into the Supreme
Court's recent holding in Atwater. There, a woman chal-
lenged the constitutionality of her arrest for violating a state
statute requiring all motorists and front-seat passengers to
wear seat-belts. As in this case, there was no dispute that
the plaintiff had violated the statute in the presence of the
arresting officer and that state law authorized her arrest,
even though the offense was punishable by a fine no greater
than $50. Unlike the present case, by statute the officer in
Atwater had the option of issuing a citation instead of effect-
ing an arrest. 532 U.S. at 32324.
The Court in Atwater undertook a two-step inquiry in
addressing the plaintiff's argument that a warrantless arrest
for a fine-only offense was unreasonable under the Fourth
Amendment. It first concluded that Atwater's argument that
such arrests were not supported by the common law at the
Founding, ''while by no means insubstantial,'' ultimately
failed. Id. at 327. The Court then declined the plaintiff's
invitation ''to mint a new rule of constitutional law'' based on
a balancing of competing interests and an assessment accord-
ing to ''traditional standards of reasonableness.'' Id. at 345
46. Reasoning that ''the standard of probable cause 'applie[s]
to all arrests, without the need to ''balance'' the interests and
circumstances involved in particular situations,' '' the Court
concluded that ''if an officer has probable cause to believe
that an individual has committed even a very minor criminal
offense in his presence, he may, without violating the Fourth
Amendment, arrest the offender.'' Id. at 354 (quoting Duna-
way v. New York, 442 U.S. 200, 208 (1979)).
On the basis of this passage, the defendants argue that
Ansche's arrest does not violate the Fourth Amendment, for
it is undisputed that the arresting officer had probable cause
to believe Ansche had committed a criminal offense, however
minor. No balancing or inquiry into whether Ansche's proba-
ble cause arrest was otherwise reasonable is permitted.
Ansche reads Atwater quite differently. In her view, the
Court's analysis can only be understood in terms of the
Court's concern to avoid interfering with the discretion of
police officers called upon to decide, ''on the spur (and in the
heat) of the moment,'' id. at 347, whether to arrest or to issue
a citation. The Court acknowledged that ''if we were to
derive a rule exclusively to address the uncontested facts of
this case, Atwater might well prevail.'' Id. at 346. But
because a rule allowing ad hoc reasonableness review of an
arrest decision, even when there is probable cause, would
hobble the officer's discretion, the Court declined to engage in
any inquiry beyond probable cause.
The present case is different, Ansche reasons, because here
there was no exercise of discretion by the arresting officer.
The officer did not have the choice of issuing a citation;
arrest was the only enforcement option. Inquiring into the
reasonableness of the arrest would not intrude upon the
officer's discretion, and therefore Atwater should not preclude
such an inquiry. Indeed, the Court's comments about how it
would view Atwater's claims were it free to balance the
competing interests strongly suggest that it would find the
regime in this case constitutionally unreasonable. See id. at
347 (''Atwater's claim to live free of pointless indignity and
confinement clearly outweighs anything the City can raise
against it specific to her case.'').
Although this argument is a creative one, we are ultimately
unpersuaded, and do not read Atwater as permitting us to
engage in an evaluation of the reasonableness of the decision
to arrest Ansche, given the existence of probable cause. It is
certainly true that the Court in Atwater voiced concern that
imposing Fourth Amendment reasonableness standards above
and beyond probable cause would unduly intrude upon ''dis-
cretionary judgment in the field'' and interfere with ''an
officer on the street'' called to act ''on a moment's notice.''
Id. at 347, 348, 350. That was the factual situation in that
case. At the same time, however, law enforcement discretion
is also exercised at more removed policymaking levels, as
with the no-citation and zero-tolerance policies at issue here.
There is no reason to suppose that the Atwater Court's
conclusion that the benefits from additional reasonableness
standards beyond probable cause were not worth the burden
on law enforcement discretion was restricted to the burden
on the officer in the field. In fact, when the Atwater Court
dismissed the arguments for additional reasonableness stan-
dards as attempts to impose ''something akin to a 'least-
restrictive-alternative' limitation'' that was ''generally thought
inappropriate in working out Fourth Amendment protection,''
id. at 350, the two cases the Court cited Skinner v.
Railway Labor Executives' Ass'n, 489 U.S. 602, 629 n.9 (1989)
and United States v. MartinezFuerte, 428 U.S. 543 (1976)
both rejected least-restrictive-alternative arguments in situa-
tions not involving the discretion of officers in the field.
In addition, the ''very fact that [Fourth Amendment] law
has never jelled the way Atwater would have it'' led the Court
to doubt ''whether warrantless misdemeanor arrests need
constitutional attention.'' 532 U.S. at 35152. The Court
enumerated a number of protections, both constitutional and
practical, that it thought obviated the need for reasonableness
scrutiny above and beyond probable cause. Id. at 35153.
The Court concluded that ''[t]he upshot of all these influences,
combined with the good sense (and, failing that, political
accountability) of most local lawmakers and law-enforcement
officials, is a dearth of horribles demanding redress.'' Id. at
353 (emphasis added). The Atwater Court even cited
WMATA's decision in this case to change its policy, and to
provide for citations in lieu of arrest for ''subway snackers,''
as an example of the efficacy of the ''practical and political
considerations'' supporting the absence of a need for a rea-
sonableness balancing beyond probable cause. Id. at 353
While we can inquire into the reasonableness of the manner
in which an arrest is conducted, see, e.g., Whren v. United
States, 517 U.S. 806, 818 (1996) (''Where probable cause has
existed, the only cases in which we have found it necessary
actually to perform the 'balancing' analysis involved searches
and seizures conducted in an extraordinary manner, unusually
harmful to an individual's privacy or even physical inter-
ests.''); Graham, 490 U.S. at 394 (excessive force unconstitu-
tional conduct actionable under § 1983); Tennessee v. Gar-
ner, 471 U.S. 1, 3 (1985) (use of deadly force reasonable only
when officer has probable cause that fleeing suspect poses
harm), the most natural reading of Atwater is that we cannot
inquire further into the reasonableness of a decision to arrest
when it is supported by probable cause. That is true whether
the decision to arrest upon probable cause is made by the
officer on the beat or at a more removed policy level.
Even if Atwater were not controlling, Ansche has not made
the case that her arrest was unconstitutional. Her claim that
a policy of mandatory arrest for certain minor offenses is
unconstitutional boils down to an assertion that officer discre-
tion is a necessary element of a valid seizure under the
Fourth Amendment, at least for some minor offenses. She
has not made an effort to defend that assertion under the
usual first step of any analysis of whether particular govern-
ment action violates the Fourth Amendment asking
''whether the action was regarded as an unlawful search or
seizure under the common law when the Amendment was
framed.'' Wyoming v. Houghton, 526 U.S. 295, 299 (1999).
See Atwater, 532 U.S. at 32645.
Moreover, insisting on the exercise of discretion by an
arresting officer would be an unfamiliar imperative under the
Fourth Amendment. ''The essential purpose of the proscrip-
tions in the Fourth Amendment is to impose a standard of
'reasonableness' upon the exercise of discretion by govern-
ment officialsTTTT'' Delaware v. Prouse, 440 U.S. 648, 65354
(1979) (footnote omitted). See also Whren, 517 U.S. at 81718
(requirement of individualized suspicion ''necessary to ensure
that police discretion is sufficiently constrained''); United
States v. BrignoniPonce, 422
873, 882 (1975) (''To U.S.
approve roving-patrol stops of all vehicles in the border area,
without any suspicion that a particular vehicle is carrying
illegal immigrants, would subject the residents of these and
other areas to potentially unlimited interference with their
use of the highways, solely at the discretion of Border Patrol
officers.''); McDonald v. United States, 335
451, 45556 U.S.
(1948) (''The right of privacy was deemed too precious to
entrust to the discretion of those whose job is the detection of
crime and the arrest of criminals.''). It is the high office of
the Fourth Amendment to constrain law enforcement discre-
tion; we see no basis for turning the usual Fourth Amend-
ment approach on its head and finding a government practice
unconstitutional solely because it lacks a sufficient role for
* * *
Nothing requires that the no-citation policy for minors be
subjected to heightened scrutiny. That policy is rationally
related to the legitimate governmental interest in ensuring
parents are notified of their child's transgressions. Given the
undisputed existence of probable cause,
further inquiry into the reasonableness of Ansche's arrest
under the Fourth Amendment.
The judgment of the district court is affirmed.