The Problem With Pretext

By Sherry Colb

In my FindLaw column for this week, I discuss Kentucky v. King, a case that the U.S. Supreme Court has taken to decide under what circumstances police may lawfully enter a dwelling without a warrant on the basis of an "exigent circumstance" -- an emergency -- that the police have themselves created.  In the column, I discuss how the necessarily normative concept of "proximate cause" might bear on a court's decision to attribute an exigent circumstance to the police themselves (rather than to happenstance) and thus to deny police the benefit of that exigency.

In this post, I want to discuss a different issue that arises, somewhat tangentially, from Kentucky v. King, and that is the question of pretext.  To the extent that police -- in bad faith -- act in a manner that purposefully generates an exigent circumstance, with the goal of utilizing that exigency to pursue a warrantless entry, police have engaged in pretextual behavior.  They have pretended to be entering a home without a warrant in response to an exigency when, in fact, they were entering the home without a warrant because they had chosen all along to enter without a warrant (though in a manner that would appear to conform to the law's requirements).

When we discuss pretextual activity, we are always talking about dishonesty.  Sometimes the dishonesty is unambiguous -- police, for example, may pretend that they saw you speeding because they wanted to pull you over to search your car for drugs.  Other times, it is more subtle, as when police in fact did see you speeding but chose to stop you to search your car for drugs, with the speeding acting only as an excuse.  Had you been someone else speeding -- someone whom they did not suspect of drug crime, in other words -- the police would not have stopped you.

In the latter sort of case, in the Fourth Amendment context, the Supreme Court has shown little interest in interrogating police officers' true motivations when they otherwise have all that they need to perform a lawful stop.

Though dishonesty is always part of pretext, what is wrong with pretext sometimes has less to do with dishonesty than it does with emphasizing the wrong things.  If police want to search your car for drugs, then there is an argument that they should not be thinking about your speeding.  It is a cost of pretextual activity that drug enforcement officials are engaged in trying to identify traffic violations in their targets.  To state this differently, drug enforcement police should not care whether a drug courier is going four miles per hour over the speed limit, any more than they should care whether the drug courier was late in returning a novel to the library.

A very different context in which the problem with attending to the wrong thing came up at a presentation that I attended recently.  One of the topics that arose during the presentation was whether it is morally wrong, in the absence of a competing moral obligation, to violate the law.  The speaker, whom I'll call "Joe," suggested that it is not necessarily wrong to violate the law, and he gave the following hypothetical example to illustrate his point:

Consider a man who wakes up in the morning and realizes that he is out of milk.  He notices that his driver's license expired yesterday, but he did not realize it until now.  He decides to drive to the store to buy milk, notwithstanding the license expiration.  Joe explained that although what the man does is obviously illegal, it would feel contrived to suggest that what he did was immoral.

As people who have become conscious of the injustice of animal exploitation, Michael Dorf  -- who attended the presentation -- and I both noticed the missing piece in the moral calculus:  what made the trip to the store wrong had little to do with the the hypothetical man's expired license and much to do with his decision to buy the milk of a cow.

When the presentation was over, we approached Joe to say hello and to point out this gap in the hypothetical example.  (We both have known Joe for many years.)  Mike, in a friendly manner, said something like, "Of course it is immoral for the man to drive to the store to buy milk.  Milk is the product of the torture and slaughter of cows."

Joe responded, "Oh, you're veggies," a term that I have found as pervasive as it is unilluminating.  "We're vegans," Mike said.  "Oh," replied the commentator, "so how do you like Cornell and Ithaca?"

I found this entire reply startlingly dismissive, although admittedly in a way that does not distinguish Joe from many non-vegans who encounter a critique of animal exploitation.  Precisely because the response was not extraordinary, and because Joe is otherwise a very nice and thoughtful person, it is worth examining what made his comments troubling.

Mike had raised a significant challenge to the assumption -- embedded in the hypothetical example that Joe had provided in his otherwise very erudite presentation -- that a trip to the store to buy cow milk is a morally innocuous action, one that would accordingly give moral salience to the legal question of driving with a recently-expired license.

Here are a few alternative responses I would have preferred:  (1) "Hmmm.  I had not thought about the morality of milk consumption.  I will give that some more thought, but in the meantime, I think I'll alter the hypothetical example to have the man going to the store to buy apples."  (2) "I have a plane to catch now, so I cannot get into a long discussion, but I want to talk more about this question of the morality of purchasing cow milk.  It never occurred to me that anyone would find it morally objectionable, and I'd like to hear what you have to say about that."  (3) "What do you mean "torture"?  Don't cows naturally "give" milk?  I understand the objection to meat (although I still eat meat), but what could be harmful to cows about consuming dairy?"

What I found discouraging about the actual response was, first, that it classified Mike (and then me) -- and our objection to the morality of dairy consumption -- as operating from a different jurisdiction.  It was as though Mike had said it was wrong to drive to the store because the man in the example was on the right side of the road, and you're supposed to drive on the left side of the road (a confusion that we brought to the table because, by hypothesis, we live in the U.K.).

Joe suggested, by his "you are veggies" reply that our objection reflected our being vegans rather than being an actual response to anything morally problematic -- and worthy of discussion -- about dairy.  Because Mike and I are vegans, we would find the purchase of milk objectionable, in this framework, but our objections would have no relevance to Joe, because he is not a vegan.

Joe then went on to confirm, by asking how we like Cornell, that he believed he had nothing worthwhile to learn from us -- either then or later -- about the moral question of milk consumption that Mike had raised.  The important point in Joe's hypothetical example, to his mind, remained that it is plainly not immoral to drive with a recently-expired license.  The implication was that we were focusing on beside-the-point nonsense.

To get a sense of what I am talking about, consider a different hypothetical example that Pete, a different presenter -- one who is unaware of or indifferent to a different set of moral concerns -- might have given:  A man wakes up one morning and feels sexually aroused.  He has no new violent pornography in the house, but he likes to use such pornography as part of his morning masturbation routine.  He gets into his car and realizes that his license has recently expired, but he nonetheless continues his journey to the "Hard Core" store, buys a magazine with photos of (non-obscene) sexual violence, and returns home to satisfy himself.

Assume that I approach Pete after he has offered such a hypothetical example, and I tell him that purchasing violent pornography, as his hypothetical man does, contributes to injustice and the subordination of women (even though it is, by hypothesis, legal and even constitutionally protected under First Amendment doctrine).  Pete smiles and responds, "Oh, you're a feminist" and then asks me how I am enjoying Cornell.  The implication here -- that my concern about the consumption of violent pornography has no moral relevance to Pete, because he is not a feminist -- would obviously be question-begging.  If it is wrong to support the production of violent pornography through the consumption of it, then it is just as wrong for the man in the hypothetical case (or for Pete) as it is for me.

In the same vein, the view that consuming dairy is morally wrong is a view that it is wrong for anyone to consume dairy (or other animal products) because of the animal torture and slaughter that one supports by doing so. It is not the view that it is wrong for vegans to consume dairy.  The fact that I am a vegan reflects my view of animal consumption as wrong; it is not the source for my understanding that it is wrong.  Indeed, if an omnivore or lacto-ovo vegetarian were to say "I think it is fine to buy milk," it is far more plausible to characterize that opinion as an artifact of the speaker's consumption habits (which may well have preceded any awareness or consideration of the moral question) than it is to characterize my view that it is not fine to buy milk to my having become vegan, a change that I made after concluding that consuming animal products wrongfully supports violence.

To state this slightly differently, the consumption of animal products is far more likely to be the result of upbringing and unthinking habit (with the rationalizations coming only after the fact) than is the consumption of only plant-based products.

One response to all of this is to say, "Well, morality is so subjective that we cannot really engage in helpful discussions about it.  We can talk only about what's right for me, and what's right for you.  Let's respect the choices that each of us makes, take a deep breath, and say together: "I'm okay.  You're okay."

The problem with this response, however, is that it assumes a premise that most people reject -- that morality does not really mean anything and that it is all just subjective.  When people say that genocide, child abuse, and the subordination of women are wrong, people mean that they truly are wrong, despite the fact that otherwise "normal" people have engaged in all of these activities over the centuries.  We say that we have come to realize that human slavery is wrong; we do not say that "human slavery is wrong for us, but it was not wrong for people who used to do it without any moral discomfort."  Similarly, when I and another conscientious objector to violence against animals say that consuming the milk of a tortured mother cow is wrong, we mean that the practice is wrong, period.