Should a 12-year-old be Sent to Jail for Eating a French Fry?
Judge John Roberts' opinion begins thus (emphasis is mine):
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 ordeal. 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 is reassuring to hear that sort of sentiment from a judge. After her arrest for eating a french fry in a subway station, Ansche Hedgepeth filed suit alleging that her civil rights had been violated. Judge Roberts summarized the District Court's holding as follows:
On cross-motions for summary judgment, the district court ruled in favor of the defendants. Addressing the equal protection claim, the court applied "the highly deferential rational basis test," because it found that age is not a suspect class, and that there is no fundamental right to be free from physical restraint when there is probable cause for arrest. The court then ruled that both the District's no-citation policy for minors and WMATA's zero-tolerance policy survived rational basis review. The district court next rejected Ansche's Fourth Amendment claim, relying on Atwater v. City of Lago Vista for the 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.' " Given that it was undisputed 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 enunciated" in Atwater, despite the minor nature of the offense and the harshness of the response. Hedgepeth now appeals.After dismissing the defendants' claims that there was no jurisdiction, Judge Roberts addressed the girl's constitutional claims:
After addressing the arguments raised by the plaintiff in support of rejection of the well-established rule that classifications based on age are reviewed under a "rational basis" standard, Judge Roberts concluded:
Ansche first contends that her arrest violated the equal protection component of the Fifth Amendment. Adults eating in the Metrorail station during the undercover operation could be, and almost uniformly were, given citations; similarly situated 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 arrested. . . .
Ansche acknowledges that the Supreme Court "has said repeatedly that age is not a suspect classification," and instead has analyzed equal protection challenges to age-based classifications 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 discrimination, immutable characteristics, and political disenfranchisement. Thus, she concludes, there should be heightened scrutiny of distinctions 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. Other circuits have reviewed classifications based on youth under a rational basis standard. We agree with the conclusions of these circuits.
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.
As far as I know, no commentator has challenged any of the four judges for this particular holding of the opinion.
Judge Roberts then moved on to Ansche's second claim for relief: a claim that her rights to equal protection under the laws were violated by her arrest because the regulation requiring arrest burdened a fundamental right:
Ansche alternatively argues that her equal protection claim is subject to heightened scrutiny because the challenged classification burdens a fundamental right. It has been pointed out often enough that, in considering such a claim, much turns on the level of generality at which the asserted fundamental right is defined.
Ansche defines the right at issue as the right to freedom from restraint, a right burdened by the defendants' policies 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. . . .
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. . . .
The law of this land does not recognize a fundamental right to freedom of movement when there is probable cause for arrest. That is true even with respect to minor offenses. 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 probable 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 protection 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," to free movement when there is probable cause for arrest. The fact that the Fourth Amendment specifically addresses when freedom of movement may be restrained, and permits such restraint upon probable cause, makes any such effort exceedingly difficult.
In other words, the four judges were faced with the question of whether a person has a fundamental right to freedom movement where a police officer has probable cause to believe that a crime has been committed by that person. All of the judges came to the conclusion, based on the applicable Supreme Court precedent, that there is no right to freedom of movement where a police officer has reason to believe a crime has been committed. As with the first claim, I haven't heard any commentator criticize the judges for this particular holding.
Having held that the regulation was subject to the "rational basis" test, rather than the "strict scrutiny" test, Judge Roberts then had little discretion as to whether or not the regulation violated the constitution:
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.
Judge Roberts then moved to the third and final claim made by the girl:
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 challenged 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 effecting an arrest. . . .
Now, I have heard Roberts and his fellow judges criticized for this portion of the holding. Although it's pretty much black letter law that age is not a "suspect classification" and that there is no fundamental right to freedom of movement where an officer has a reasonable suspicion that a crime has occurred, it seems that the broad, no exceptions, "always arrest" policy in question could reasonably have been considered to amount to a policy requiring "unreasonable seizures." Then again, Judge John Roberts was joined in the holding by two other appellate justices and a district court judge, so it wasn't some wacko, right-wing decision. Further, the district judge made the decision to refrain from overruling the government regulation and the appeals court made the decision to refrain from overruling the district court, which are examples of judicial restraint, which is a lesser threat than judicial activism.
While we can inquire into the reasonableness of the manner in which an arrest is conducted, 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 discretion 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 government 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."