Sunday, January 07, 2007






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 US are censured, and censored, by claims that they:


  1. infringe on the dignity of the court
  2. 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:


United States Court of Appeals


Argued September 17, 2004

Decided October 26, 2004

No. 03-7149



V. H





















Appeal from the United States District Court

for the District of Columbia

(No. 01cv00759)

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 District of Columbia, argued the

cause for appellee the District of Columbia. With her on the

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

of time.

Page 2


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

appellees Washington Metropolitan Area Transit Authority,

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-


Before: H


and R


, 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 Washington

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

Page 3


violations of certain ordinances, including one that makes it

unlawful for any person to eat or drink in a Metrorail station.

D.C. C


§ 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. Id. § 35-253. 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.'' Id. § 16-2309(a)(2). Committing an

offense under District of Columbia law, such as eating in a

Metrorail station, constitutes a ''delinquent act.'' Id. § 16-

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 District of Columbia's Juvenile Processing

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-

Page 4


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 1–4.

On April 9, 2001, Ansche's mother Tracey Hedgepeth

brought this action as Ansche's next friend in the United

States District Court for the District of Columbia. The

complaint was filed under 42 U.S.C. § 1983 and named

WMATA, its General Manager, the arresting officer, and the

District of Columbia as defendants. It alleged that Ansche's

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. Washington

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 152–53, and that

there is no fundamental right to be free from physical re-

straint when there is probable cause for arrest. Id. at 155.

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. Id. at 156–58. The district court next

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.

Page 5


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

(quoting Atwater, 532 U.S. at 354). Given that it was undis-

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-

ciated'' in Atwater, despite the minor nature of the offense

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. See City of Los Angeles v.

Lyons, 461 U.S. 95 (1983) (plaintiff subject to illegal arrest

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, 2003 Summary Judgment Hearing at 32–33, 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 County Branch v. United States Sugar

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.

Page 6


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, 495–96 (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.

District of Columbia, 795 F.2d 116, 136 (D.C. Cir. 1986);

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

policy change.



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

Police, 491 U.S. 58, 71 (1989). Ansche, however, has also named as

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.' '' Id. at 71 n.10 (quoting Kentucky v.

Graham, 473 U.S. 159, 167 n.14 (1985)).

Page 7


This action is justiciable with respect to both the District of

Columbia and WMATA. Although each tries to blame the

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

fact that District of Columbia law did not authorize citations

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. 304–07; Metropolitan Police Dept.

Delinquency Report at J.A. 308–09. 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 U.S. 497, 498–99 (1954). Adults eating in the

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.

Page 8


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. Florida Bd. of Regents, 528

U.S. 62, 83–84 (2000).

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.

Ashcroft, 501 U.S. 452, 470 (1991) (citing cases), and instead

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 U.S. 635, 638 (1986). Thus,

she concludes, there should be heightened scrutiny of distinc-

Page 9


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

classification. See United States v. Cohen, 733 F.2d 128, 135

(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); Douglas v.

Stallings, 870 F.2d 1242, 1247 (7th Cir. 1989); Williams v.

City of Lewiston, 642 F.2d 26 (1st Cir. 1981). We agree with

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.

Town of Vernon, 353 F.3d 171, 181 n.4 (2d Cir. 2003), she has

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 Cleburne v. Cleburne Living Center, Inc., 473

U.S. 432, 440 (1985). Youth is not such a factor — young age

is quite often relevant to valid state concerns, as the Constitu-

tion itself attests. See U.S. C


. 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

heightened scrutiny.

Nor are the characteristics that define the young markedly

more obvious or distinguishing than those that define the old.

Page 10


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],''

Lyng, 477 U.S. at 638, however, even if defined solely in

terms of voting rights, is not enough to trigger heightened

scrutiny. Compare City of Cleburne, 473 U.S. at 442 (apply-

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, 724–25 (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

political process.

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

Page 11


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 U.S. 678, 690

(2001) and Foucha v. Louisiana, 504 U.S. 71, 86 (1992)

(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. See District Br. 9. See also

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.

Page 12


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 U.S. 103 (1975). That is true

even with respect to minor offenses. Atwater, 532 U.S. at

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 U.S. 702, 720–21

(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.

Page 13


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 323–24.

Page 14


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.

Page 15


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. Martinez–Fuerte, 428 U.S. 543 (1976) —

both rejected least-restrictive-alternative arguments in situa-

tions not involving the discretion of officers in the field.

Page 16


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 351–52. 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 351–53.

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

Page 17


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 326–45.

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, 653–54

(1979) (footnote omitted). See also Whren, 517 U.S. at 817–18

(requirement of individualized suspicion ''necessary to ensure

that police discretion is sufficiently constrained''); United

States v. Brignoni–Ponce, 422 U.S. 873, 882 (1975) (''To

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 U.S. 451, 455–56

(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

discretionary judgment.

* * *

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, Atwater precludes

Page 18


further inquiry into the reasonableness of Ansche's arrest

under the Fourth Amendment.

The judgment of the district court is affirmed.


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