Tuesday, February 18, 2020
Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.
One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes, and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?
The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive. The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups. The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.
This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?
Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry. Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.
 United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).
 United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).
 See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).