The Fourth Amendment's Reasonable People
November 04, 2005
If a police officer yelled at you, "Stop!" would you feel free to continue walking? If a police officer began chasing you, would you feel like you could ignore him? I'm being sincere. Would you really feel free to continue on your way?
I know my rights, and if a police officer told me to stop walking, I would, for fear that I might get shot in the back for disobeying him. Indeed, I don't know any person who, if told by police officers to freeze, would feel free to leave.
Yet courts continued to hold that when the police tell a citizen to stop walking, that the citizen is not seized for purposes of the Fourth Amendment, because a reasonable person would feel free to leave. What reasonable person would feel free to leave under such circumstances?
Indeed, if a police officer has probable cause to prevent you from moving, and you disobey, then you can be charged with obstructing a police officer. If a police officer does not have probable cause to tell you, e.g., to stop moving, and you do stop moving, you can't later vindicate your rights for the unlawful seizure. In other words, if you don't listen to the police, you might go to jail for obstruction; if you do listen to the police, you won't later be able to sue them for unlawfully seizing you. (Because, remember, a reasonable person would feel free to disregard a police officer's command to stop.) Heads they win, tails you lose.
The courts need to adopt a clear rule based on human experience. When a police officer tells someone to stop, that person does not feel free to leave, and is therefore seized. That the current rule even exists illustrates the current law-and-order activism that pervades our legal system. How else could courts reach the conclusion that a reasonable person would feel free to ignore a police officer's commands? Did the judges take a poll? Did they talk to their (non-DOJ-connected) friends? Did they even look deep within themselves?
Most legal matters are sufficiently ambiguous that men and women of reasonable minds can disagree. But there's no room room for any disagreement on this: Reasonable people, when told by the police to stop, will stop; and they won't feel like they had any choice in the matter.
Even writing that "point" makes me feel trite. "Do you really need to argue something so obvious?" Until courts get it right, and end the fiction of the reasonable person who feels free to disregard police orders, then something that should be banal will remain controversial.