Imagine a group of narcotics investigators decide to turn to a life of crime. They set up drug buys just as they normally would. They make their arrests based on probable cause, they search the dealers incident to arrest, and they recover the drugs. But then, instead of bringing the dealers in for charges, the officers release the dealers, sending them on their way. The officers then sell the seized drugs for a profit that they divide amongst themselves. In effect, the officers pretend to enforce the law but really just use their badges to help them steal drugs from criminals.
Next ask yourself what crimes the officers have committed. The most obvious crime is possessing and trafficking in narcotics. Although the courts have read an implied exception into the narcotics laws for police possession of narcotics in the ordinary course of their official duties, that exception would not apply if the officers are merely seeking to become illegal dealers themselves. But now consider this question: Did the officers also violate 18 U.S.C. 242, which prohibits willfully violating the constitutional rights of others, on the ground that the stop, arrest, and search of the dealers violated the dealers’ Fourth Amendment rights because officers were not engaging in a bona fide investigation?
In a decision handed down Friday, United States v. Sease, the Sixth Circuit ruled that the answer is “yes.” In an opinion by Judge Cole, joined by Judges Rogers and Griffin, the court held that that “where there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized.”
I think Sease is unpersuasive, and that its analysis reflects a misunderstanding of the Fourth Amendment and possibly also the criminal statute prohibiting willful constitutional violations, 18 U.S.C. 242. In this post, I’d like to explain why. I’ll begin with some background, both on the Fourth Amendment and Section 242.
I. Background on 18 U.S.C. 242 and the Fourth Amendment
18 U.S.C. 242 is a federal criminal statute that punishes willful violations of constitutional rights. It states in relevant part:
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both . . . .
Prosecutions under Section 242 are often difficult because the Government must satisfy two significant hurdles. First, to satisfy Due Process, the government must show that the government’s conduct violated a clearly established right — the same standard needed to overcome qualified immunity in civil suits against officers. See United States v. Lanier, 520 U.S. 259 (1997). Second, the Government must show that the violation was willful. The willfulness standard in Section 242 “requires the government to show that [the defendant] had the specific intent to deprive [the victim] of a right under the Constitution.” United States v. Epley, 52 F.3d 571, 576 (6th Cir. 1995). As the Supreme Court explained in interpreting the predecessor statute to Sec. 242, “the specific intent required by the Act is an intent to deprive a person of a right which has been made specific . . . by decisions interpreting” the Constitution. Screws v. United States, 325 U.S. 91, 104-05 (1945).
The relevant right in the Sease case is conferred by the Fourth Amendment, which punishes unreasonable searches and seizures. The critical point here is that the Supreme Court has emphasized that in almost all contexts, the reasonableness (and thus constitutionality) of a search or seizure is to be determined by objective criteria, not subjective intent. The most-often-cited case for this proposition is Whren v. United States, 517 U. S. 806 (1996), in which an officer pulled over a car based on probable cause to believe a traffic law had been violated. Whren argued that the search was unconstitutional because the officer wasn’t acting reaosonably, even thought he had probable cause. The ubiquity of traffic laws and the temptation to use traffic violations as a pretext required more than just probable cause when the traffic violation was likely a mere pretext for the stop really made for other reasons, including for reasons of racial discrimination. The Supreme Court disagreed:
We think [our] cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.
Under Whren, then, subjective motives don’t generally matter in Fourth Amendment law. What matters is whether the officer had the objective level of required cause, not whether he had a good-faith design to enforce the law.
II. The Sixth Circuit’s Analysis in United States v. Sease
The facts of Sease mirrored the hypothetical at the top of the post. Sease was prosecuted for drug crimes, Hobbs Act violations, and both conspiracy to and wilfully violating the dealers’ constitutional rights. Sease was convicted and received a whopper of a sentence: Life plus 255 years in prison. In his challenge to the Sixth Circuit, Sease has challenged the sufficiency of the evidence. He has argued that under Whren, he did not violate the dealers’ constitutional rights because he did in fact have probable cause to stop and arrest the dealers. Because Sease did not violate the dealers’ Fourth Amendment rights, he did not violate Section 242. The Sixth Circuit disagreed, reasoning that the Whren line of cases is not applicable for two reasons. First, Sease’s conduct was “thoroughly and objectively illegal from start to finish”:
Whren . . . presumes that the officers are engaging in bona fide law enforcement activities when they make the stops. However improper it may be to use a traffic violation as a pretext to look for drugs, there is no question that making traffic stops and looking for drugs are valid and appropriate law enforcement activities. It is only arguably improper if the officers lacked the required probable cause or reasonable suspicion under the specific facts of the situation. By contrast, it is inherently improper for officers to set up drug deals for the purpose of taking the money and drugs for themselves, regardless of the context. Sease’s actions are improper in an entirely different way and to an entirely different degree than the actions of the officers in Whren.
Unlike the officers in Whren, Sease and his co-conspirators were not engaging in bona fide law enforcement activities. Instead, they were using the appearance of law enforcement activities as an element of their conspiracy. A key component of Sease’s plan was to keep his activities from the attention of his superiors by not filing reports of his stops, acting outside of his assigned precinct, and failing to inform his superiors of the quantities of drugs and money seized. When the Memphis Police Department did find out about at least one of Sease’s arranged stops, via a complaint from victim Reggie Brown, they investigated the complaint and swiftly removed Sease from the police force. Unlike the actions of officers in cases such as Whren, Sease’s conduct was thoroughly and objectively illegal from start to finish.
The court next concluded that Whren was also distinguishable because Whren was really about the remedy of the exclusionary rule:
Allowing conviction where there is no “bona fide law enforcement purpose” does not implicate [Whren] because the purposes underlying the exclusionary rule and § 242 are different. The holding in Whren represents a careful balance in which the exclusionary rule’s goal of prospectively deterring police misconduct is outweighed by law enforcement purposes where there is objective evidence of probable cause. “[S]imply, the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren, 517 U.S. at 814. However, this balance shifts in the context of a § 242 prosecution. Section 242 is a punitive statute designed to punish officers who willfully violate constitutional rights under color of law. The punitive purpose would be undermined were the court to allow a corrupt officer to hide behind the policy goals of the exclusionary rule. Accordingly, although for the purposes of the exclusionary rule the subjective intent of the officer is irrelevant, in the context of a § 242 prosecution, the courts may inquire whethertheofficeractedwithacorrupt,personal,and pecuniary purpose. In addition, unlike in the exclusionary rule context, the court must already inquire into the subjective intent of the officer because willfulness is an element of an offense under 18 U.S.C. § 242. Accordingly, there is no additional evidentiary burden to justify ignoring subjective intent.
Because Sease involved a Section 242 prosecution and Sease had no bona fide law enforcement purpose, his stops and searches violated the dealers’ Fourth Amendment rights and Sease could be punished for it.
III. My View of the Reasoning in Sease
I find Judge Cole’s analysis unpersuasive. First, Judge Cole’s creative effort to distinguish Whren has no basis in the Whren opinion. Whren was not a case about “bona fide law enforcement purposes” or the exclusionary rule. Whren conceded that the officer had probable cause: His objection was that the officer was a racist cop who pulled him over because Whren was black. Intentional racial discrimination is not a bona fide law enforcement purpose. And I don’t see any hint in the opinion of it having anything to do with the exclusionary rule.
Even if you wanted to try to read Whren in this rather creative way, I would think that reading is foreclosed by the Supreme Court’s May 31, 2011 decision in Ashcroft v. Al-Kidd.
Al-Kidd was arrested and detained on a material witness warrant, which is used in criminal cases to ensure that certain witnesses will be present to testify at a criminal trial. Al-Kidd argued that his Fourth Amendment rights were violated because DOJ was not actually detaining him for the bona fide law enforcement reasons of holding him to testify at a a trial. Instead, he claimed, he was being detained because the government (mistakenly) thought he was a terrorist. Although Al-Kidd was a civil case, not an exclusionary rule case, the Court strongly reaffirmed Whren and vigorously rejected Al-Kidd’s effort to introduce the government’s alleged non-law-enforcement subjective intent into the picture:
Fourth Amendment reasonableness “is predominantly an objective inquiry.” We ask whether “the circumstances, viewed objectively, justify [the challenged] action.” Scott v. United States , 436 U. S. 128, 138 (1978) . If so, that action was reasonable “ whatever the subjective intent” motivating the relevant officials. Whren v. United States , 517 U. S. 806, 814 (1996) . This approach recognizes that the Fourth Amendment regulates conduct rather than thoughts, Bond v. United States , 529 U. S. 334 , n. 2 (2000); and it promotes evenhanded, uniform enforcement of the law, Devenpeck v. Alford , 543 U. S. 146, 153–154 (2004) .
Two “limited exception[s]” to this rule are our special-needs and administrative-search cases, where “actual motivations” do matter. United States v. Knights , 534 U. S. 112, 122 (2001) (internal quotation marks omitted). . . . . But those exceptions do not apply where the officer’s purpose is not to attend to the special needs or to the investigation for which the administrative inspection is justified. See Whren , supra , at 811–812. . . . Apart from those cases, we have almost uniformly rejected invitations to probe subjective intent. See Brigham City v. Stuart , 547 U. S. 398, 404 (2006) . . . . . In Whren , 517 U. S., at 813, and Devenpeck , 543 U. S., at 153, we declined to probe the motives behind seizures supported by probable cause but lacking a warrant approved by a detached magistrate. Terry v. Ohio , 392 U. S. 1, 21–22 (1968) , and Knights , 534 U. S., at 121–122, applied an objective standard to warrantless searches justified by a lesser showing of reasonable suspicion. We review even some suspicionless searches for objective reasonableness. See Bond , 529 U. S., at 335–336, 338, n. 2. If concerns about improper motives and pretext do not justify subjective inquiries in those less protective contexts, we see no reason to adopt that inquiry here.
Al-Kidd would read our cases more narrowly. He asserts that Whren establishes that we ignore subjective intent only when there exists “probable cause to believe that a violation of law has occurred,” 517 U. S. , at 811—which was not the case here. That is a distortion of Whren . Our unanimous opinion held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive. See id., at 810, 813. In the course of our analysis, we dismissed Whren’s reliance on our inventory-search and administrative-inspection cases by explaining that those cases do not “endors[e] the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred,” id., at 811 But to say that ulterior motives do not in-validate a search that is legitimate because of probable cause to believe a crime has occurred is not to say that it does invalidate all searches that are legitimate for other reasons.
“[O]nly an undiscerning reader,” ibid. , would think otherwise. We referred to probable cause to believe that a violation of law had occurred because that was the legitimating factor in the case at hand. But the analysis of our opinion swept broadly to reject inquiries into motive generally. See id., at 812–815. . . . Because al-Kidd concedes that individualized suspicion supported the issuance of the material-witness arrest warrant; and does not assert that his arrest would have been unconstitutional absent the alleged pretextual use of the warrant; we find no Fourth Amendment violation. Efficient and evenhanded application of the law demands that we look to whether the arrest is objectively justified, rather than to the motive of the arresting officer.
After the civil case of Al-Kidd so strongly reaffirmed a broad reading of Whren, it seems impossible to describe Whren as a case about the exclusionary rule. (Footnote 1 of Sease does try to further distinguish a Section 242 prosecuton from a 1983 civil action, but the reasoning strikes me as incoherent.) Plus, I think Al-Kidd makes it very difficult to say that Whren does not apply when there is no bona fide law enforcement purpose. After all, Al-Kidd’s argument was that he wasn’t being detained for a law enforcement purpose; the Court still saw the case as covered by Whren.
One reading of Judge Cole’s opinion is that Sease is distinguishable because the jury ruled that he was engaged in criminal acts. What he did was “inherently improper,” in the court’s language. But even if that’s so, I don’t know why that makes any difference from a Fourth Amendment perspective. A Fourth Amendment violation is a Fourth Amendment violation: I’m not aware of a Fourth Amendment principle by which criminal activity makes an otherwise reasonable search or seizure violate the Fourth Amendment. More broadly, if Sease committed criminal acts, then punish him for those criminal acts. I don’t think it makes sense to engage in bootstrapping so those criminal acts also become Fourth Amendment violations that enable even more criminal punishment. Doing bad stuff doesn’t create a general aura of badness that means you should lose other legal claims, too.
Further, even if you think Sease violated the Fourth Amendment, it’s not clear to me how you can get passed the Lanier requirement that the right be clearly established or the Epley requirement of specific intent. Even if you want to read Whren to say that it doesn’t apply because there was no bona fide purpose, I don’t think that reading was clearly established in the law so as to overcome the qualified immunity standard required by Lanier. And while Sease was clearly acting with an illegal intent, I don’t know of any evidence in the case that he was acting with an intent to deprive the dealers of their constitutional rights — as opposed to depriving them of their drugs.
IV. Conclusion
For these reasons, I think the Sease court’s analysis of the Section 242 counts is pretty unpersuasive. It’s all the more puzzling because I don’t think the Court needed to reach the question: Sease had failed to preserve his sufficiency challenge, so the standard in the case should have been plain error. The panel decided to bypass the plain error standard and just decide the case on the merits, but if the panel wanted to affirm, I would think the wiser course would have been to at least try to do so on grounds that this was not plain error.
Finally, I should add that the Court was correct that Sease violated the narcotics laws, and that his conviction on those counts should have been affirmed. The panel gives almost no analysis on this point, seeing it as somehow derivative of the Section 242 counts. The panel writes: “Sease did not engage in bona fide law enforcement activities, and thus he had no legitimate reason to possess the drugs.” The more full analysis would delve into why police conduct is normally read to be implicitly excluded from the narcotics laws, something occasionally referred to as the Nardone doctrine, as well as the limits of that doctrine. See generally United States v. Singleton, 144 F.3d 1343 (10th Cir.1998) (discussing the doctrine). I think it would lead to the same result, but through a more satisfactory analysis.