Heien v. North Carolina: As the rest of the country worries about police overreach, the Supreme Court gives cops yet more latitude.

The Supreme Court Ignores the Lessons of Ferguson, Gives Cops Yet More Latitude

The Supreme Court Ignores the Lessons of Ferguson, Gives Cops Yet More Latitude

The law, lawyers, and the court.
Dec. 16 2014 2:51 PM

The Supreme Court Ignores the Lessons of Ferguson

As the rest of the country worries about police overreach, the justices give cops yet more latitude. 

police latitude in the interpretation of the law.
The Supreme Court ruled that although a police officer stopped a car for having only one working brake light, which was legal, the stop was “reasonable” under the Fourth Amendment.

Photo by Thinkstock

Monday morning, the Supreme Court handed down an 8–1 ruling in a case that appeared on the surface to resolve the arcane question of how many rear “stop lamps” (in the parlance of an antiquated traffic statute) need to be working on a carriage on a North Carolina highway. In reality, the new ruling is crucially important if not particularly illuminating, adding yet another layer of ambiguity about the boundaries on policing at precisely the moment in which more ambiguity is what we don’t need.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Heien v. North Carolina was the first big criminal case to come down this term, and it involved a question of whether a cop’s mistaken understanding of a state traffic law—a misunderstanding that led to a traffic stop for wholly innocent behavior—should be used to throw out a drug conviction that resulted from that stop. On Monday, eight justices ruled that although the police officer stopped a car for having only one working brake light, and having only one working brake light is actually legal in North Carolina, the stop was “reasonable” under the Fourth Amendment. Thus, the baggie of cocaine the officer found in his resulting search of the car was admissible in court.

Here’s what happened, according to the officer’s own testimony at the suppression hearing. Early one morning in 2009, Nicholas Heien and Maynor Javier Vasquez were driving down I-77 through Surry County, North Carolina. Vasquez was driving while Heien napped in the back seat. Officer Matt Darisse of the Surry County Sheriff’s Department was “observing traffic on the interstate” in order to “look for criminal indicators of drivers [and] passengers” when he noticed Vasquez driving by. Vasquez’s “criminal indicators” were that he looked “stiff and nervous” to the officer, insofar as he was “gripping the steering wheel at a 10 and 2 position, looking straight ahead.” Darisse decided to follow him. When Darisse noted one of the rear brake lights wasn’t working, he pulled the car over, mistakenly believing that state law requires two working tail lights. He gave the driver a citation, got permission to search the car from Heien, and eventually found a baggie of cocaine. Heien was sentenced to two consecutive prison terms of 10 to 12 months for drug trafficking.


Heien has argued that since ignorance of the law is never an excuse for citizens accused of crimes, it defies logic to create that double standard for police. This week, that argument lost by a wide margin. As Chief Justice John Roberts wrote for the majority: “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”

Why does any of this matter? Because Vasquez wasn’t stopped by the cops for having a broken tail light. He was trailed by an officer because he was driving while looking “stiff and nervous” and for “gripping the steering wheel at a 10 and 2 position, looking straight ahead.” In other words, he was a Hispanic man driving a beat-up car in North Carolina, and the officer followed him for doing what the rest of us do every single day: driving while holding on to a steering wheel and looking forward.

Justice Sonia Sotomayor tried in vain to bring up this underlying concern at oral argument when the case was argued in October. Questioning Robert C. Montgomery, a senior deputy attorney general representing North Carolina, Sotomayor interrupted him to point out that the stop for the brake light was purely pretextual. The officer used it as an excuse to pull over and confront the driver. As the justice put it at the time: “There is a problem, however, I’m sorry. The police officer wasn’t stopping him because of the brake light. The police officer was involved in criminal interdictions and admitted that this was a pretext, a lawful pretext, he thought.” Sotomayor went on: “So how many citizens have been stopped for one brake light who are asked to have their car searched? And is that something that we as a society should be encouraging?”

Montgomery was unbothered by that fact that Vasquez was doing nothing wrong when he was stopped, responding to Sotomayor that “wholly innocent people are stopped quite often for mistakes of fact. … There turns out times that citizens have not committed any kind of offense, and yet they are stopped.” Then Roberts changed the subject.


You would think that we had not just lived through a summer in which we were painfully reminded of the realities of militarized police, civil asset forfeiture, racial profiling, relentless police harassment of citizens, and frivolous stops for trivial infractions. These infractions can lead to mounting debts which in many minority communities turn the criminal justice system into something like a series of debtors’ prisons. The discussion in Heien never reflects the fact that a long, sordid history of pretextual and harassing traffic stops have fostered fear and anxiety in minority communities. As President Obama put it, there is a “simmering distrust that exists between too many police departments and too many communities of color.” But from the perspective of the high court, it’s as if the summer of 2014 was happening in an alternate universe.

As ThinkProgress reported in August, the Bureau of Justice Statistics reported that 13 percent of black people and 10 percent of white people in their survey reported that their most recent contact with police had been during traffic stops. Seven percent of black drivers were ticketed, compared with 5 percent for white drivers. A brief filed in this case by the Rutherford Institute argued that allowing police yet more latitude in their interpretation of the law will disparately harm minorities, because their evidence shows that blacks and Hispanics are more likely than whites to be searched. But from the court, silence.

This decision barely even acknowledges that, by giving police officers license going forward to claim that they were confused about this law or that law, there will be even more distrust and error. It is unclear based on the majority opinion and the concurrence by Justice Elena Kagan how much more actual confusion will be infused into daily policing. Time will tell, I suppose. But the fact that police will now likely be encouraged to choose the broadest possible range of plausible readings of any traffic law seems like the worst possible outcome at a moment when police overreach, particularly in poor and minority communities, is such a pressing issue.

There is no “ripped from the headlines” quality to the Heien opinion. You have to look very hard to find any hint of such concerns in the briskly worded decision. It’s buried in bits of Sotomayor’s dissent. Writing for herself alone, Sotomayor notes that the old rule used to be that “when an officer acts on pretext, at least that pretext would be the violation of an actual law.” After today, she writes, “one wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.” Sotomayor delicately refers to these “human consequences—including those for communities and for their relationships with the police.”

Sotomayor doesn’t fully articulate what she said aloud at argument in Heien: that in fraught police interactions between minorities and law enforcement, the court has just put another thumb on the scale for law enforcement. “One is left to wonder,” she writes archly, “why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.” In her view, which was painfully borne out in racially charged event after racially charged event this summer, the notion that the law “is definite and knowable sits at the foundation of our legal system. … And it is courts, not officers, that are in the best position to interpret the laws.”

Sotomayor took a lot of heat for injecting personal discussions of race into last year’s affirmative action decision out of Michigan, and it’s clear that she feels the need to be careful when she talks about matters of race that are obvious to most Americans yet apparently invisible to the court. So what she barely hints at in Heien is something transparently true to anyone who’s been paying attention in 2014: Changing the rules around police encounters and pretextual traffic stops will surely affect poor and minority citizens in ways the justices seem unwilling to fathom.