Posted by Sherry F. Colb
In my column for this week, I discuss the U.S. Supreme Court case of Heien v. North Carolina. In Heien, a police officer stopped the petitioner for driving with only one working brake light. As it turned out, however, according to a later state court of appeals decision, North Carolina law allows people to drive with one working brake light. The state supreme court nonetheless ruled that the police officer complied with the Fourth Amendment when he stopped the driver, Nicholas Brady Heien, because the ambiguous language of the statute at issue could have led a reasonable person to conclude that two working brake lights were required. The question faced by the U.S. High Court was whether such a reasonable mistake about the law (which led to a stop for a non-offense, after which the officer, conducting a consent search, found cocaine, for which Heien was charged with attempted trafficking) meant that the officer who conducted the stop did or did not violate the Fourth Amendment.
In his opinion for the Court, holding that suspicion based on a reasonable mistake of law constitutes "reasonable suspicion" and therefore authorizes a Fourth Amendment stop, Chief Justice Roberts, among other arguments that he invoked for this result, contended that because it is utterly uncontroversial to conclude that there is reasonable suspicion when an officer turns out, after the fact, to have been (reasonably) mistaken about the facts, it ought to be no different when the officer has the correct facts but is (reasonably) mistaken about the law.
There are a number of reasons to quarrel with the Chief Justice's equation between these two sorts of reasonable errors, some of which I discuss in my column, referenced above. It may be useful, however, in thinking about this difference to consider the more general difference between errors of fact (whether reasonable or not) and errors of law (also regardless of reasonableness).
Consider what happens when a criminal defendant, John, turns out to have been mistaken about the facts. He believed that his next door neighbor, James, was aiming a gun at him and, for that reason, John shot James, hoping to kill the latter but instead placing James in an irreversible coma. In reality, James was holding a hockey stick and walking toward his own car. If the attempted murder statute requires the intent to kill one's victim, (a typical requirement for proving an attempt offense) then this defendant--on these facts--cannot be convicted of attempted murder.
Consider now what happens if John understood the facts perfectly. He knew that James was carrying a hockey stick, not a gun, and that James was in no way threatening John's safety. At the same time, however, John did not know the law of attempted murder (or of attempts liability more generally). He believed that the law punishes only successful attempts at killing people, not unsuccessful ones. (And assume that the law is unambiguous in rejecting his position). No matter how sincerely he believed that this was the law, he would have no defense for his behavior. In the common parlance, "ignorance of the law is [generally] no defense."
This seems like the right result here. If you do not have the facts right (in the way that John did not, in the first scenario), this tends to mitigate your culpability. You may pose a danger to the community (and are perhaps subject to civil commitment), but you do not prove yourself to have a bad character by being inclined to kill your neighbor in self-defense, even if it turns out that your belief that he was threatening you was both wrong and unreasonable.
The same would hold true for a man who believed that ignoring his date's attempts to make him stop touching her and ignoring her screams as he forcibly had sex with her were lawful, because she agreed to go out on a date with him. To the extent that the criminal law reflects normative judgments about bad behavior or behavior that reflects a bad character, a man who forces a woman to have sex has seriously violated those norms, regardless of whether he happens to believe (erroneously) that the law supports his misogynistic violence.
On the other hand, if the man above believed that his date had expressed an interest in having sex and indicated her consent through her words and actions, then unless his belief was tantamount to thinking that rape is legal (e.g., if he thought that going on a date and then saying "stop" and screaming indicate that the woman is "asking for it"), that belief does, to some degree, mitigate his culpability (whether or not it actually reduces the offense).
Though most of us do not have occasion to read and digest the entire criminal code of the state where we live, we are nonetheless held responsible for conforming our conduct to that code, no matter how ignorant we and the rest of the population might be. At the same time, if we misunderstand the facts that we encounter, it is understood that that misunderstanding is very different from legal mistakes and can substantially affect the culpability of our conduct. Giving someone poison because you believe the substance is tea is quite different from giving someone poison because you think it is legal to give someone poison.
Given the line between errors of law and of fact that exists more generally, in the law and in our normative intuitions, it seems disingenous for the Supreme Court to find that distinction so puzzling and bizarre when it comes to a police officer's mistakes of facts and law and how each implicates the Fourth Amendment. It is quite obvious that factual mistakes, so long as they are reasonable, are consistent with reasonable suspicion or probable cause if such facts (when true) would implicate the suspect in a crime. It should be equally obvious that the same need not hold true when the police officer reasonably (but mistakenly) believes that what a suspect is doing is criminal. If it is not criminal, then the better approach at most admits the evidence under the good faith exception (but perhaps should not even do that) but, in any event, acknowledges that without a criminal statute that prohibits what the suspect is (or appears to be) doing, there is no reasonable suspicion. The Fourth Amendment is parasitic on the law that an officer is enforcing; if there is no law in place, then we should recognize that and deem the officer's searches or seizures to be Fourth Amendment violations.