Sherry F. Colb

Does the Mere Existence of an Invalid Arrest Warrant Injure Its Target?

By SHERRY F. COLB
Wednesday, September 30, 2009

The U.S. Court of Appeals for the D.C. Circuit recently heard oral argument in the case of Ord v. District of Columbia. Robert L. Ord. brought the appeal after a district judge dismissed his lawsuit against the District of Columbia for issuing a warrant for his arrest without probable cause.

Ord sued the District under 42 U.S.C. §1983, a federal statute that allows damages awards for constitutional violations. He sought compensatory, punitive, declaratory, and injunctive relief, and he paired his federal claims with related state law claims.

The district judge dismissed the federal cause of action as unripe and therefore failing the "case or controversy" requirement of Article III of the U.S. Constitution – a predicate for suing in federal court. (In addition, the district court dismissed the state law claims, exercising its discretion to do so once the federal claims had been eliminated. Ord may pursue his state claims in state court if he chooses.)

On appeal, Ord now challenges the district court's finding that he lacked any "case or controversy." The trial court based its finding on Ord's not having actually been arrested and on the government's dismissal of the warrant and indication that it would not be prosecuting him.

But Ord contends that the simple issuance of the arrest warrant violated the Fourth Amendment and that he continues to suffer, as a result, from the fear that he could be arrested at any time.

The Facts as Alleged in Ord's Complaint

A number of background facts, alleged in Ord's complaint, explain how this case arose. Robert Ord runs a private security company called "Falken Industries." A resident of Virginia, he is designated as a Special Conservator of the Peace (SCOP) and has the status of a qualified law enforcement officer in Virginia, which authorizes him to carry a gun. Ord has business in Washington, D.C., which he is now deterred from conducting by the fear of arrest.

As Ord states in his complaint (and as the courts must accept as true for purposes of a motion to dismiss under Federal Rule of Civil Procedure 12), the Metropolitan Police Department (MPD) sent out a memo to all MPD Reserve Corps Members, warning that MPD Reserve Corps Members who also serve as SCOPs do not thereby have authority to carry a firearm in Washington, D.C. However, the memo was not sent to Ord (who is not a member of the MPD Reserve Corps, but only an SCOP).

After release of this memo, Ord learned that a warrant had been issued for his arrest on charges of possession of unregistered firearms and ammunition. In response to this information, Ord's attorney provided evidence of Ord's status as an SCOP to the District, and the Office of the Attorney General formally declared (after various motions in court by Ord's lawyer) that it would not execute the warrant and would not pursue prosecution of Ord at this time.

Is This a True Case or Controversy, Without An Arrest?

Because Ord was never actually arrested or otherwise "seized," the District of Columbia claims that he did not suffer a Fourth Amendment harm. As a result, it says, he fails to fulfill the "injury" requirement necessary to establish that a plaintiff may litigate a claim in federal court.

In the District's view, the fact that a warrant was issued did not ever mature into a violation of Ord's Fourth Amendment rights (or even a pre-enforcement threat to Ord's constitutional rights that was of sufficient magnitude to create a case or controversy). Therefore, the government argues and the trial court concluded, the federal courts lack jurisdiction over the claim and would be issuing an "advisory opinion" if they were to consider the merits of the case. (The case or controversy requirement is meant to focus the federal courts on resolving particular, existing disputes between parties, rather than merely advising the public on the constitutionality of legislation.).

Ord responds that he has suffered an injury and is under a significant threat of prosecution. At oral argument, his attorney observed that the text of the Fourth Amendment specifically prohibits the issuance of a warrant in the absence of probable cause and does not specify that a search or seizure must actually take place as a prerequisite to a finding of violation.

The relevant Fourth Amendment language is this: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In this case, according to Ord's complaint, a warrant did in fact issue without probable cause.

Ord suggests, too, that in addition to the arrest warrant, the memorandum describing as criminal the activities in which he happens to engage as part of his job chills him from doing business in Washington, D.C., even though he has violated no law. Therefore, he contends, the combination of the arrest warrant and the fact that D.C. law enforcement appears to consider activities like his to be criminal gives rise to a legitimate fear on his part of being arrested and prosecuted if he continues to carry out his (lawful) profession in Washington.

The government responds that because the memo in question was not addressed to Ord, and because the government specifically dismissed his arrest warrant and officially decided not to prosecute him, his experience does not distinguish him from that of others who worry that government officials might mistakenly arrest and prosecute them for violating laws which they have not in fact violated. To accept such a claim, the government says, would thus vitiate the standing requirement (which is meant to prevent people from going to federal court just to clarify the law).

The Argument that There Is No Injury or Threat of Injury, and Thus No Case or Controversy

The district court's arguments regarding the case's lack of ripeness and the plaintiff's lack of standing fit well within Article III precedents. To distinguish oneself from the crowd (here, the crowd of people who do not like what the government is doing) and become a federal litigant, one must have suffered a distinctive injury (or face a credible imminent threat of injury). And the injury of knowing that the government has engaged in unconstitutional conduct does not, alone, qualify under the doctrine.

Though a warrant was issued, and though the issuance may itself have violated the Fourth Amendment, one might nonetheless say "no harm, no foul," because the government realized the error of its ways before it actually interfered with Ord's liberty. The essence of the Fourth Amendment, after all, is about "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

Granted, the warrant clause that follows this language in the Constitution provides the requirements for a valid warrant. But the ultimate objective of the Fourth Amendment, including the limits it places on access to warrants, is to protect people from unreasonable searches and seizures. Where no seizure has taken place, there cannot – by definition – have been an unreasonable one.

Furthermore, to the extent that Robert Ord is worried about being arrested in the future, his worries seem no more justified than those of any other SCOP who operates within Washington, D.C. That is, the fact of the wrongfully-issued warrant, given its later withdrawal, does not suggest any distinctive danger for him. And a person who has not yet been injured must generally, under existing doctrine, be in greater danger of prosecution to bring a challenge.

The Argument that There Might Be an Injury, or Threat of Injury, Here

Yet there is something about having an arrest warrant issued against you that "feels" like an injury, and it is worth considering what that something might be.

If you found out that police had just now obtained a warrant for your arrest and were heading over to your house or office to execute the warrant, you might well feel harmed, even before any officers have arrived. You would likely feel anxiety, impending doom, fear of what might ensue, etc.

Indeed, such fear might actually be worse than the arrest itself. Psychologists have found, for example, that many torture victims describe the psychological anguish involved in anticipating the pain as even worse than the excruciating pain itself. It therefore seems false to suggest that having a warrant issued for your arrest does not injure you in any way.

Yet interestingly, Ord could have been one of the many people who do not know (and therefore cannot feel anxiety) about the warrants that issue for their arrest. Warrants are generally issued ex parte (outside the presence of the defendant and his attorney). Any harm, then, seems tied to the fact of what Ord knew, rather than the fact of the issuance of the warrant. Is the injury, then, a product of what Ord believed (and thus spent money avoiding), rather than of the reality of the police obtaining an invalid warrant?

Ironically, of course, if Ord had not learned of the warrant, then his attorney would not have had the opportunity to intervene and argue that he should not be arrested, and he might then have actually been arrested (in which case he would indisputably have had standing to complain about the Fourth Amendment invalidity of the arrest).

Is Fourth Amendment Harm About Police Conduct or Victims' Beliefs?

This question raises an intriguing possibility: Perhaps every Fourth Amendment violation is experienced as such only if there is knowledge of the violation on the part of the "victim." Perhaps any such violation is accordingly about the victim's beliefs, rather than about the actual conduct of the police.

To take an example from the search context, imagine that police – lacking probable cause and a warrant – enter your home and look around. Assume that they are careful and do not disturb the property, and you are not present and never learn of the invasion. Have you, in such a case, been injured?

Current doctrine would say yes, despite the fact that you do not know and might never learn of what the police did. It is true that they have carried out an unlawful search of your premises. But have they truly injured you, absent your finding out about the search?

The 1993 film Sliver took up this question. In the movie, the owner and landlord of an apartment building in Manhattan sets up surveillance equipment throughout the building and is thereby able to monitor what goes on inside each of his tenants' homes. He does not speak with others about the personal information that he has learned from his surveillance. On occasion, however, when he discovers criminal or otherwise predatory behavior taking place in one of the apartments, he intervenes to stop it, by contacting the perpetrator and issuing a warning. I left the film wondering exactly how to characterize the harm in watching people's private and personal actions, if the watcher does nothing destructive with the information and if no one ever learns of the intrusion.

One answer is that we simply do not (and should not) trust the good will of either the police or our neighbors. Though it is, in theory, possible for someone to watch everything we do and not act on that information in a harmful manner, the possibilities for abuse are legion, and it is therefore appropriate to call the conduct presumptively harmful across the board. Whether or not a tree falling in an empty forest makes a sound, there is good reason to worry that the forest may not be empty.

One could say the same of drunk driving, which some have described as an inchoate crime (a crime that has not – without more – victimized anyone) that should nonetheless be punished severely, because the risk of harm is too great to countenance.

But this answer seems not to capture everything that is wrong with invasions of privacy. In watching Sliver, I immediately found myself conflicted despite the fact that the protagonist (who watches his neighbors) seems like a trustworthy person who wants only to help protect the weak against violence and predation. I felt that even when he was not doing anything improper with the information, his watching his neighbors was itself and independently a real injury – and would have represented an injury even if no one ever learned of his actions.

Though there was a risk that the watcher would misuse information that came into his hands, the presence of that risk did not seem to exhaust the harm associated with his invasion of his neighbors' privacy. His very knowledge of others' personal facts seemed wrong.

One might say that if knowing about an event would induce actionable distress in the target of that event, then we ought to view the event as independently harmful to its target, even if the target never finds out about it.

Inchoate Versus Concrete Harms

Part of what the standing and ripeness inquiries in Article III doctrine are intended to capture is the distinction between an inchoate injury – one that has not yet come to fruition – and an actual injury. To bring a case to federal court, one's injury cannot be purely hypothetical.

In the case of a search that takes place without the target's knowledge, the harm is not hypothetical – private places have actually been exposed to police without justification – even if the target is unaware of the harm. In the case of a warrant's issuance without probable cause, by contrast, no search or seizure has yet taken place. It does seem, then, that although knowledge may be a necessary part of experiencing the injury inflicted by an unreasonable search, though there is an injury either way, an actual search or seizure (supported by an invalid warrant) might be a necessary precondition to there being an injury, whether experienced or not.

At oral argument, Ord's attorney suggested that if Ord does not have standing to challenge the issuance of an invalid arrest warrant against him, then there will be no mechanism for stopping the government from obtaining invalid arrest warrants at will, despite the fact that the Fourth Amendment explicitly prohibits their issuance.

One potential response to this complaint is that as soon as police execute an invalid warrant and arrest a person unlawfully, they will have triggered the target's right to bring them to court for violating the Fourth Amendment. And if they never act, then the issuance of the warrant may seem irrelevant.

But is this response persuasive? It may be difficult to appreciate the harm in Ord's case, because the government subsequently withdrew the warrant, but imagine that it had not done so. Imagine instead that the police obtained the warrant and held onto it, planning to execute it at some future point, if the desire arose. We could then see more clearly that the potential arrest (and the warrant authorizing that arrest) would be hanging over the plaintiff's head and threatening his liberty for the duration of its existence.

The injury, in other words, would be real, but perhaps would end at the point that the warrant was withdrawn. On this logic, the plaintiff should be able to bring his damages suit for the injury that was inflicted by the issuance of the warrant and that continued until the point at which the warrant was withdrawn. The withdrawal of the warrant might signal the end of the injury, but it does not thereby negate the injury that was previously inflicted. Ord might have difficulty proving any substantial monetary damages for this injury, to be sure, but it would be an injury nonetheless.

Standing and Physical Injury: Why Abstract Injuries May Count, Too

In many contexts, the sorts of injury that might be inflicted by one person on another are quite concrete. A wrong-doer commits violence against or steals from his target, for example. But the Fourth Amendment inherently recognizes that injuries can be more abstract than that and still constitute real injuries.

When police carry out illegal searches and seizures, they may do so without ever alerting their target – especially if the target turns out to be innocent of any wrongdoing (and therefore unlikely to confront the results of the searches in a later criminal prosecution). But what the Fourth Amendment guarantees is "[t]he right of the people to be secure," and it seems inaccurate to say that a person is truly secure from unreasonable seizures when the police are presently in possession of an invalid warrant for his arrest. One might even describe that state of affairs as the very opposite of security.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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