Thursday, September 21, 2017
Lael Daniel Weinberger (University of Chicago, Division of Social Sciences, Department of History) has posted Making Mistakes About the Law: Police Mistakes of Law between Qualified Immunity and Lenity (University of Chicago Law Review, Vol. 84, 2017) on SSRN. Here is the abstract;
The Supreme Court held in Heien v North Carolina (2014) that police can have “reasonable suspicion” for a search or seizure even when that suspicion is based on a mistake of law, so long as the mistake is reasonable. But lower courts have applied the Heien rule inconsistently - as it turns out, it is far from self-evident how a court is to recognize when a mistake of law is reasonable. This Comment proposes an analytical approach for courts to apply in considering whether a police mistake of law was reasonable. On this approach, a court confronted with an alleged instance of a reasonable mistake of law should ask, first, whether the predicate criminal statute (on which the police officer mistakenly relied) would be held ambiguous for purposes of lenity. Only if the statute would be ambiguous in that context should the police officer be able to get the benefit of Heien’s reasonable mistake rule. Linking Heien to the rule of lenity provides a way to draw on an already-developed jurisprudence about ambiguity in the criminal law. And it also develops the Heien doctrine in such a way as to limit the police discretion about which the Heien decision’s critics have been worried.