(Constitutional Cases for Justice Warriors: October 12, 2022 Edition)
Other than a hard-fought loss from McKenzie Scott PC’s criminal / white-collar practice, it was a slow week for relevant Ninth Circuit civil cases.

So we turn our attention to unexpectedly powerful language—and ideas—from the Fifth Circuit. In Crane v. City of Arlington, the Fifth Circuit examined a completely pretextual traffic stop this week that, tragically, ended with an officer shooting the driver in front of his pregnant partner and two-year-old daughter.

Then, on a lighter note, we share some delightful (real) Supreme Court litigation from online satire publication The Onion.

“Traffic stops and the use of deadly force are too often one and the same”

Fifth Circuit Suggests Antidote to Whren

Crane v. City of Arlington
2022 WL 5073278 (5th Cir. Oct. 4, 2022)

Much of Crane v. City of Arlington 2022 WL 5073278 (5th Cir. Oct. 4, 2022), is dedicated to resolving he-said, they-said disputes between the shooter (Officer Roper) and two adult passengers who were in the car when Roper shot 22-year-old Tavis Crane. But the shooting was unreasonable by anyone’s account. Another officer tried three times to stop the unnecessary escalation, telling Officer Roper repeatedly to “get out” of Tavis’s car. Id. at *3.

But what makes Crane a worthy read for criminal practitioners is its express challenge to Whren and suggestion that the traffic stop should never have occurred at all. It carries the useful reminder that there may be other ways to push back against pretextual stops, even when a direct Fourth Amendment motion would be an uphill battle.

Whren, of course, held that the Fourth Amendment is not concerned with officers’ subjective intentions when they execute traffic stops. It gave police carte blanche to investigate hunches so long as they first obtain (manufacture?) probable cause for a traffic violation. With probable cause established, only searches and seizures done in an “extraordinary manner” implicate the Fourth Amendment. 517 U.S. at 818 (1996).

In the decades since, “pretextual stops have become a cornerstone of law enforcement practice.” Crane, 2022 WL 507327 *1. The Crane court calls that longstanding development into question and suggests a way forward. The Fifth Circuit notes that, “these stops create grounds for violent—and often deadly—encounters that disproportionately harm people of color.” Id.

And “[w]hen Whren was decided, the Court did not have what we have now—twenty-five years of data on the effects of pretextual stops. Indeed, the Whren Court differentiated pretextual stops from ‘extreme practices’ like the use of deadly force. Today, traffic stops and the use of deadly force are too often one and the same—with Black and Latino drivers overrepresented among those killed—and have been sanctioned by numerous counties and major police departments.” Id. (emphasis provided).

Accordingly, Crane permits a local government’s liability under Monell when a policy of pretextual stops foreseeably and disproportionately results in death among people of color.

Recall that Whren left open situations when the pretextual seizure was performed in an “extraordinary manner,” notwithstanding probable cause. Also recall, Whren is a Fourth Amendment case, which leaves open “selective enforcement” challenges (under the Equal Protection Clause) to pretextual stops. Whren, 517 U.S. at 813. Cf. United States v. Sellers. 906 F.3d 848 (9th Cir. 2018) (holding that discovery on claims of selective enforcement in a stash house reverse-sting operations context are governed by a less rigorous standard than that applied to claims of selective prosecution.)

So, building on the gaps that Whren left, Crane’s post-Whren historical analysis, and the selective-enforcement discovery that Sellers allows, perhaps there is a way forward here to battle pretextual stops, even in criminal cases.

The Onion Brings Tears to Police Department’s Eyes

There were some lighter developments in civil rights this week as the Supreme Court received briefing in Novak v. Parma. Mr. Novak was charged with (and acquitted of) a crime for mocking his local police force on a satirical Facebook account he made in their name. “[H]e published half -a-dozen posts ‘advertising’ the Department’s efforts, including free abortions in a police van.” Novak v. City of Parma, 932 F.3d 421, 426 (6th Cir. 2019). Now in the Supreme Court, The Onion submitted a hilarious amicus in support of Novak’s civil rights lawsuit noting “The Onion intends to continue its socially valuable role bringing the disinfectant of sunlight into the halls of power . . . And it would vastly prefer that sunlight not to be measured out to its writers in 15-minute increments in an exercise yard.” Check out their brief here.