Posted by Eugene Volokh:
Memo to Police: Your Power To Coercively Stop People Shouldn't Be Used for
Tourism Gimmicks:
http://volokh.com/archives/archive_2009_09_20-2009_09_26.shtml#1253576596
The [1]Chicago Tribune reports:
Last week [Kalona, Iowa's] Chamber of Commerce and Washington
County sheriff pulled over people with out-of-state license plates
and offered them an all-expense paid visit ... to the town of
2,300, about 20 miles southwest of Iowa City....
[L]ast Thursday chamber member Larry Moeller and Sheriff Jerry
Dunbar set out to find a tourist to "arrest."
"We'll go up to the car and ask them if they have about 20 hours to
spend with us here in Kalona," Moeller said.
Armed with binoculars and flashing red lights, the pair began
looking for an unsuspecting passer-by....
It didn't take long before [one couple] were persuaded to take the
detour into Kalona, where they were given a basket full of goodies
from local businesses, toured the local attractions and met the
town's mayor.
They also were treated to dinner and even a night's stay.
"It's interesting, it's fun. He probably pulled over the right
people. We didn't really have an agenda," said Cheri Cunningham.
"Everybody's been so nice, so friendly, and the little downtown
area here is darling."
Well, I'm pleased that the Cunninghams aren't personally upset by
this. But it seems like an abuse of power, and a Fourth Amendment
violation. As I wrote [2]about a similar program, a police officer's
flashing red lights at a driver, which causes the driver to support,
constitutes a seizure -- a situation "[3]when the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen." Under the Fourth Amendment, such seizures must
be reasonable, which generally means (for brief seizures) either that
there's reasonable suspicion that the seized person has committed a
crime (including a traffic infraction), or that there's some
administrative need mandating a particular non-law-enforcement search
or seizure system (such as airport screening). Neither is present here
-- the desire to promote tourism is surely not enough of an
"administrative need" to justify seizures -- so the stop violates the
Fourth Amendment.
More broadly, a police officer is giving you a fright, taking up your
time, and likely slowing down other drivers (who are concerned about
safety, or who are stuck behind other drivers who are gawking). As
importantly, the police officer is exercising his coercive authority
over you. That he's doing it for a good motive doesn't change the fact
that for the few moments that you're being pulled over, your liberty
is being restrained, however briefly. Some such restraints on liberty
have to be tolerated, but it seems to me that for each there should be
a very good reason. An invitation to stay in town, even combined with
free goodies does not, I think, qualify as a very good reason.
For yet another similar story from five years ago, see [4]here. Thanks
for the pointer to [5]PopeHat, which has more thoughts on the case.
References
1. http://www.law.ucla.edu/volokh/volokh.tif
2. http://www.volokh.com/posts/1198085280.shtml
3.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=392&invol=1#f16
4. http://volokh.com/2002_07_21_volokh_archive.html#85276225
5.
http://www.popehat.com/2009/09/20/criminal-conspiracies-to-violate-civil-rights-are-not-in-fact-amusing/
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