William H. Rehnquist: We'll hear argument now in Number 97-501, Randall Ricci v. The Village of Arlington Heights. Mr. Flaxman.
Kenneth N. Flaxman: Mr. Chief Justice, and may it please the Court: The petitioner was arrested because he was operating a business without having first obtained a license from the respondent. Respondent's policy required its police officers to make a full custodial arrest of petitioner. Although we challenge the mandatory nature of respondent's policy, our primary contention is that the Fourth Amendment does not permit a full custodial arrest for a fine-only infraction on the same basis as in felony cases. That is--
Ruth Bader Ginsburg: Mr. Flaxman, what do you mean by full custodial arrest? This man was not handcuffed, he wasn't fingerprinted, he wasn't put in a holding cell.
Kenneth N. Flaxman: --What I mean is what is what the Court said in Gustafson v. Florida, that a full custodial arrest is when you're taken into custody, when you can be subjected to an inventory search, when the area around you can be searched, when you're subject to up to 48 hours of post-arrest processing. In this case the arrest was not as severe as it could have been, but I don't think the Court has ever engaged in balancing the severity of an arrest. An arrest is an arrest is an arrest. The Court has never made distinctions between them.
Antonin Scalia: Well, if an arrest is an arrest is an arrest, your proposition that the commonlaw traditionally has not allowed arrests for misdemeanors is patently false. We've had several cases up here involving the arrest of motorists.
Kenneth N. Flaxman: In--
Antonin Scalia: I mean, arrest means to stop the person.
Kenneth N. Flaxman: --Well, in the most recent case--
Antonin Scalia: Isn't that a seizure, when they stop a car?
Kenneth N. Flaxman: --Well, that's temporary questioning. In Whren the Court was very careful, I think, not to say that Mr. Whren was being arrested. The Court said Mr. Whren was being subject to a temporary stop for questioning, and during that questioning evidence was found.
Antonin Scalia: Well, in your case do you think-- --You appeal to the common law. Do you think the common law makes that distinction between a seizure that is an arrest in the technical sense that you're telling us and the seizure that is not an arrest in that technical sense?
Kenneth N. Flaxman: Yes. I think the nightwalker statutes, allowing detention of suspicious people, is the detention for investigation that is... survives today in Terry v. Ohio, but the common law I think was very, very clear that an arrest as the way of initiating a prosecution was reserved for felony cases or for nonfelony cases where there was breach of the peace committed in the officer's presence.
Antonin Scalia: So you say the nightwalker statute was not an exception, then, to the misdemeanor--
Kenneth N. Flaxman: It was not an arrest provision. It was a detention provision, an investigative stop provision.
Anthony M. Kennedy: --Well, in your case, in the case we have before us, suppose the police officer did what you say he should do and told the man, now you're going to have to come down and I'm going to give you a citation, and the fellow said, I'm not interested, and started to walk away. Could the officer hold him long enough to fill out the citation?
Kenneth N. Flaxman: Oh, if... yes. If--
Anthony M. Kennedy: Well, then an arrest is an arrest is an arrest.
Kenneth N. Flaxman: --Well, no. If a person refuses to accept a field citation, or flouts the officer's authority, or continues to jaywalk, or continues to litter, or continues to deface public property--
Anthony M. Kennedy: No. The officer stays stop, I'm going to write you out a citation, and then he fumbles with his book and so forth. Isn't that an arrest?
Kenneth N. Flaxman: --That's not an arrest. He has... that's a detention for giving him the citation, and in the situation where the person refuses to cooperate with the officer who's writing the citation, then the person traditionally has been subject to arrest for not cooperating with the officer.
Antonin Scalia: Of course, the Fourth Amendment doesn't address arrest. It addresses seizures, and both of them are seizures.
Kenneth N. Flaxman: Well, the Court has differentiated between seizures which are arrests and seizures which are temporary detentions for investigation like of luggage, or of--
Antonin Scalia: Like a what?
Kenneth N. Flaxman: --Like of luggage, or a stop of a person for questioning at the scene of a motor vehicle incident. Getting back to Whren, the Court was not there talking about a full custodial arrest. The Court was talking about a detention, a stop to investigate, which is not--
William H. Rehnquist: Well, you... but I thought you replied to Justice Ginsburg's question a few minutes ago that the Court has never distinguished between kinds of arrests, and now you're distinguishing between them.
Kenneth N. Flaxman: --Well, Whren was not an arrest, is what our point is. Whren did not rise to that level. Whren was a detention for--
William H. Rehnquist: Okay. Well, what is the significance of the term arrest in Fourth Amendment connotation? As Justice Scalia says, the Fourth Amendment doesn't talk about arrest.
Kenneth N. Flaxman: --It talks about unreasonable seizures of people. When somebody is arrested they're taken into custody. They're subject to all of the post-arrest processing that the Court has approved.
William H. Rehnquist: Well, but how do you know that they're subject to all the post-arrest processing. How do you know they're not simply subject to what they were in fact subjected to?
Kenneth N. Flaxman: Well, when somebody's taken to the police station the Court has uniformly held that that's an arrest situation. In Berkemer, which was the motorist stop with Miranda warnings, the Court said you're not entitled to Miranda warnings when you've been stopped and we're investigating, but once you're in custody, you are entitled to Miranda warnings, which is what happened to the petitioner in this case. He wasn't just brought to city hall to buy a license. He was brought and locked in a room, and--
David H. Souter: Well, the distinction you're making is the distinction between simply stopping and keeping someone basically in the vicinity of the stop, and on the other hand taking the person away, as to the police station. Is that where you draw the line?
Kenneth N. Flaxman: --That's correct, and we don't have--
Antonin Scalia: Taking them into custody, I suppose.
Kenneth N. Flaxman: --Well, I--
Antonin Scalia: I suppose that you'd say if the officer told the person, you are under arrest, you'd say that that was an arrest even if--
Kenneth N. Flaxman: --That's true, but once you're under arrest you don't stay at the scene. You're taken away to someplace else for processing.
Ruth Bader Ginsburg: --Suppose the door weren't locked. Suppose the police said, we want a bond because the liability here could run into several thousands, considering how long you operated without a license, so we're going to take you in because we have no facilities to arrange for the bond in your workplace, and we'll put you in a waiting room and we'll see where you are but we won't lock the door.
Kenneth N. Flaxman: Well, if Mr. Ricci was free to leave, then he would not have been under arrest. But getting back to the bond question, the court of appeals discovered that aspect of what they believed the Village's policy was on their own. The Village had never urged that Mr. Ricci was facing more than a potential $500 fine. The officers who arrested Mr. Ricci knew that what was going to happen was that he would get a business license and, in fact, we know that the license was secured while he was under arrest and in custody. He wasn't facing this gigantic fine. He was facing the annoyance and the humiliation of being arrested, but he wasn't facing... there wasn't the realistic expectation that he was facing a fine. In those situations where there is a realistic expectation that someone is facing a huge fine and might not come to court, the officer should get a warrant. That's a tradition--
Ruth Bader Ginsburg: If in this case the officer had gotten a warrant, then everything would have been fine. Is that--
Kenneth N. Flaxman: --We would not be challenging the municipality's policy. There would be a question... I don't know how it could be raised, about whether a judge has the authority to issue a warrant, but I think traditionally and at common law judges could issue warrants for minor offenses. We have that in the--
Ruth Bader Ginsburg: --Is there a question about whether the police officer in a case like this, an infraction of an ordinance, could have gotten a warrant?
Kenneth N. Flaxman: --There's no question there are Illinois cases approving the obtaining of warrants to make arrests for minor offenses, and--
Ruth Bader Ginsburg: So it's not the idea that this is such a minor thing that somebody shouldn't be in custody. You say he could be in custody as long as there's a warrant.
Kenneth N. Flaxman: --Well, but in order to get a warrant in Illinois the officer, whoever applied for a warrant has to make a showing not only that there's a violation of the law but that the person will not obey a summons, or will not obey a citation. There's some likelihood that the person will flee unless they're arrested. And that's absolutely not present in this case, where the officers knew for 2 days that Mr. Ricci was operating his business and that he appeared not to have a license.
William H. Rehnquist: Well, what if Illinois law were otherwise and a warrant was obtainable on precisely the showing that the police had here. Would... do you think that would violate the Fourth Amendment?
Kenneth N. Flaxman: No. I think that would be consistent with the common law history of specific warrants for specific offenses, even for minor offenses.
Antonin Scalia: But it doesn't make sense to say... I thought your objection was that there was no good reason for taking this person down to the station. Now you're telling us it doesn't matter if there's any good reason, so long as you get a warrant, and a warrant doesn't... you don't need a good reason to get a warrant.
Kenneth N. Flaxman: Well--
Antonin Scalia: I would have thought your position would be, you need a good reason to get a warrant, too.
Kenneth N. Flaxman: --Well, I think a judge looking at a warrant application in this case would say, why do you want to arrest this man, give him... issue a summons.
Antonin Scalia: He doesn't have to say that. You just told the Chief Justice he doesn't have to say that.
Kenneth N. Flaxman: Oh, he doesn't have to say that, but I think that--
Antonin Scalia: So you're willing... so long as a warrant issues, it doesn't matter what the conditions for the warrant are.
Kenneth N. Flaxman: --Well, I think the Court has traditionally respected the warrant as legitimizing a seizure.
Antonin Scalia: Oh, we've also traditionally required a probable cause for a warrant to be a proper warrant.
Kenneth N. Flaxman: Well, there's no disagreement in this case that there was probable cause to believe that Mr. Ricci did not have a business license. The question is whether the officers without a warrant--
Antonin Scalia: Yes, but it was probable cause of an arrestable offense, is the probable cause that we'd normally have.
Kenneth N. Flaxman: --That's exactly the position that we're advocating here, but that is not what the court of appeals said, and that's not what some of the State courts have said, that if there's any kind of violation then police officers without a warrant can go and arrest someone for littering.
Stephen G. Breyer: What about... what's a misdemeanor?
Kenneth N. Flaxman: A misdemeanor is an offense punishable by incarceration.
Stephen G. Breyer: It's not in Massachusetts. Massachusetts defines misdemeanor in terms... and felony in terms of where you can be incarcerated. If you're incarcerated in State prison, then it's a felony. If it's not incarcerated in a State prison, it's not a felony. I've never been able to figure out... you'd have to go through the statute books, decide where you have to go to Concord, where you'd have to go to Walpole, where you could be imprisoned in a different place. I mean, my point is every State has a different definition.
Kenneth N. Flaxman: Every State has a different definition of--
Stephen G. Breyer: And Massachusetts is really complicated, so I just realized you can't tell me what it is in Massachusetts. You don't know.
Kenneth N. Flaxman: --I think it's clear... it's easy to look at the statutes in any State and determine what's a fine-only infraction.
Stephen G. Breyer: Oh, it is? In Massachusetts... I'll read you the statute. It says... I mean... it says what I said it says. It says a felony is... a crime punishable by imprisonment in the State prison is a felony. All other crimes are misdemeanors.
Kenneth N. Flaxman: But then the question which has been addressed in a number of courts is whether a fine-only infraction is a crime or if it's a civil infraction.
Anthony M. Kennedy: Do you take the position that this is a civil infraction?
Kenneth N. Flaxman: Absolutely. It--
Anthony M. Kennedy: What's a civil infraction?
Kenneth N. Flaxman: --It's something that's punishable by fine only, which is not even the level of--
Stephen G. Breyer: All right. So in other words now... because that's easier. In other words, what you're saying is, since... I mean, one of the terrible problems is you have 50 States and each has a different definition of misdemeanor and felony, so I didn't know where your rule applies, where it doesn't apply. Now, you say we look to the statute books and we say, you see, if it's punishable by fine only you can't arrest a person even if he's committing the crime, and if it's not punishable by fine only you can.
Kenneth N. Flaxman: --Unless the infraction is... involves a breach of the peace, or there's some emergency.
Stephen G. Breyer: Yes, okay. Then I guess a lot of things... you know, careless driving, reckless driving, false information to a police officer, a fish and game violation... I bet we went through a lot of those, you know, minor things, I bet we'd find in a lot of States that it's not just fine only, or maybe you've done it, and maybe you know.
Kenneth N. Flaxman: If it's not fine only then our rule doesn't apply.
Stephen G. Breyer: All right. Well then, are we really going to separate the... what you're trying to do is get the really trivial things from the more important ones, and will a fine-only rule do it?
Kenneth N. Flaxman: Oh, I think it will do it. I think things that are fine only are really, really trivial. I think if we look at... the... I mean, the Court has done that with the right to trial by jury with petty offenses.
William H. Rehnquist: Even fine-only offenses, you say, if they involve a breach of the peace are arrestable.
Kenneth N. Flaxman: That's correct.
William H. Rehnquist: That comes from the... the breach of the peace term comes from the common law? And what did it mean at common law?
Kenneth N. Flaxman: It meant a disturbance to public order, that there was some... some need to... that the arrest was necessary to preserve order.
Antonin Scalia: Oh, I think it doesn't mean that. I think it meant any violation of the law.
Kenneth N. Flaxman: In--
Antonin Scalia: That was--
Kenneth N. Flaxman: --It mean--
Antonin Scalia: --Any violation of the King's... any violation of the law was a violation of the King's peace.
Kenneth N. Flaxman: --It meant that in a different context. As it was consistently applied to arrest cases in the common law cases, a breach of the peace meant an affray, that that there was a disorder, an actual disorder or a potential for a future disorder.
David H. Souter: Well, does it add anything to your position to say that one can arrest in a fine-only case if there is also a breach of the peace, because if there's a breach of the peace in the modern sense, that would be a separate offense in virtually all States, I assume, and it would be committed in the officer's presence and so this issue wouldn't come up. We wouldn't be dealing with a fine-only situation. We would be dealing with somebody who was committing a breach of the peace in the officer's presence, isn't that right?
Kenneth N. Flaxman: That's correct.
David H. Souter: So you don't need that qualification. What you want to say is--
Kenneth N. Flaxman: It's--
David H. Souter: --if all you've got is a fine-only situation, no arrest without a warrant.
Kenneth N. Flaxman: --Well, I think it's hypothetically possible to envision, and maybe my opponent can, a fine-only ordinance which involves a breach of the peace for which the officer should be able to arrest where there is no misdemeanor or felony but it involves the same conduct.
William H. Rehnquist: How about reckless driving?
Kenneth N. Flaxman: Reckless driving involves a breach of the peace.
William H. Rehnquist: Why?
Kenneth N. Flaxman: Because it--
William H. Rehnquist: Is it an affray in that sense? An affray always seemed to me to involve more than one person.
Kenneth N. Flaxman: --Well, reckless driving is the kind of misconduct that can involve more than one person. I think it depends on what kind of reckless driving we have. We have people drag-racing. That's a different kind of reckless driving, or somebody who's weaving over a yellow line.
William H. Rehnquist: Well, it seems to me that your criteria are very... they waver quite a bit. How about parking in a no parking zone?
Kenneth N. Flaxman: That... you should not be able to be arrested for--
John Paul Stevens: What if you think, though, it's an out-of-State vehicle and the driver may not show up for the hearing?
Kenneth N. Flaxman: --I think it's still unreasonable to make an arrest. I think we can't... I don't think it would be reasonable for the municipality to detain that person for it because that person didn't pay the parking ticket. I think that would just--
John Paul Stevens: What if he happened to check in at headquarters and found out he had 400 parking tickets that he'd never paid?
Kenneth N. Flaxman: --Well, parking... then the car can be seized and immobilized until he pays the parking ticket, which is the traditional way for dealing with that kind of infraction.
David H. Souter: Mr. Flaxman, I guess it's clear that the line-drawing is not going to be simple, assuming we draw a line at all. Why do we... why should we go through this effort? What, as you understand it, is the value that is going to be served by drawing this line and requiring the warrant? What's important to you?
Kenneth N. Flaxman: If there is no line drawn and police officers are free to make arrests for any violation that they observe, then we have gone back, I believe, to giving general warrants to police officers.
David H. Souter: Why are we giving general warrants? They've simply... they've got to justify the arrest by virtue of an offense and probable cause to believe the offense was... had been committed. That's the--
Kenneth N. Flaxman: The general warrant would authorize the officer to make an arrest of anybody that he believed had violated a law, which is--
David H. Souter: --Well, no, that's not so. I mean, if you say... depending on what you mean by believe, assuming that the normal arrest standard requiring probable cause to believe that an offense had been committed will be applied whether we have a warrant or don't have a warrant. The officer does not have a roving commission to go out and act upon unsupported belief. I don't see how that gets us into a general warrant situation. It gets us into a no-warrant situation where probable cause is nonetheless required.
Kenneth N. Flaxman: --But I think the general warrant also involved the officers having some belief that somebody was involved with the wrongdoing, the subject of the warrant.
David H. Souter: Well, sometimes when they had a general warrant, they could arrest without probable cause, the general warrant was abused. But we're not talking about that situation. We're talking about a situation in which there's no warrant but there is a probable cause requirement, and so on that assumption, what value is going to be served to make it worth the effort to go through this fairly... seemingly fairly subtle line-drawing exercise.
Kenneth N. Flaxman: Well, I disagree that a fine-only offense is a subtle line-drawing, but I think that the value of limiting the ability of the police to make arrests for fine-only infractions that do not involve a breach of the peace is that it promotes respect for the law, and it avoids the situations where police are using their powers in a unfair manner.
Stephen G. Breyer: I agree that you shouldn't... I mean, what you've done is, you've picked examples where, I totally agree with you, where it seems silly to have the policeman arrest somebody, but the difficulty for me is, you're asking the Court to draw a line that, while it would win you your case and deal with what we might think of as silly examples, might extend into a lot of other things, and that's what I'm trying to find out.
Kenneth N. Flaxman: Well--
Stephen G. Breyer: Is there anywhere in any of these briefs that anyone has gone through and figured out really what crimes would, in the different States, be encompassed by your rule? Let's take your second rule, which is the fine-only rule. Do I... how could I find that out? Is there any way for me to find that out, other than, you know, set my law clerk to work and look through 48... which you could do as easily as I.
Kenneth N. Flaxman: --Well, even if your law clerk went to do that--
Stephen G. Breyer: Yes.
Kenneth N. Flaxman: --I think it would be almost impossible to ascertain that, and that's not because your clerk isn't--
Stephen G. Breyer: All right, then if we can't ascertain it, then I'd ask you a second question. Is it your rule that if we get the fine-only set of circumstances, and if we look at all those crimes, it's your rule, your idea that the policeman cannot arrest the person without a warrant, assuming no breach of the peace, even if the policeman thinks he's going to run away, never show up.
Kenneth N. Flaxman: --No. If... that's a classic exigent circumstance, but again, fitting into the hypothetical--
Stephen G. Breyer: All right. So then the total rule you want is, you take the fine-only set of crimes, which we're not certain what that includes, and we say the policeman, even though he sees the crime, cannot arrest the person unless, A, breach of the peace or B, run away. Is there a C, or is that the whole thing?
Kenneth N. Flaxman: --No, and I think that the criteria for when the police officer should be allowed... should be able to exercise his or her discretion to make an arrest has been identified by the ALI in the model code, so you can set out--
Stephen G. Breyer: So you really want us to say, constitutionalize--
Kenneth N. Flaxman: --Well... no--
Stephen G. Breyer: --that six or eight part--
Kenneth N. Flaxman: --What I really want the Court to say is that the policy that we have in this case of requiring arrests in all trivial cases is unreasonable, and that unless there is a regulation or a statute or an ordinance which limits the discretion and which says, this is how you may use your discretion to make arrests, that the police can't have the roving commission, the absolute freedom to make arrests in trivial cases.
William H. Rehnquist: --Well, supposing that the Village of Arlington Heights had had a written policy and it permitted an arrest in this case, would that make it any different?
Kenneth N. Flaxman: Well, if they had--
William H. Rehnquist: Would it make it any different?
Kenneth N. Flaxman: --It depends on what the policy was. If they had Chicago's policy, then we would not be suing the municipality for its policy. The question would be whether the officer misused his authority for some... to deny equal protection for some--
William H. Rehnquist: Well, what case is authority for you to sue a municipality because of its policy, independent of what happened to your particular client?
Kenneth N. Flaxman: --Well, we're not suing independent. We're suing because of what happened. Mr. Ricci was arrested because of a municipal policy.
William H. Rehnquist: But so you're saying that even though he might have been arrested under a permissible policy, if that policy wasn't in effect, his arrest is no good?
Kenneth N. Flaxman: No. I... that's not what I'm saying. If Arlington Heights had the Chicago policy and the officers, for whatever reason, decided to arrest Mr. Ricci, we would not have a case against Arlington Heights. We would not have a Fourth Amendment case against the officers. We might have an equal protection case against the officers if they arrested him for an impermissible reason.
Sandra Day O'Connor: Mr.-- --What is the policy that you say Arlington Heights has that the officer must effect a seizure for any offense?
Kenneth N. Flaxman: That's... Arlington Heights tells us that their policy is, these minor violations have to be arrested. You can't give a field citation.
Sandra Day O'Connor: It takes the position, even in the case of, for instance, not wearing a seat belt in a car--
Kenneth N. Flaxman: Well--
Sandra Day O'Connor: --that no citation can be issued, that the person must be seized? Is that your understanding of the policy?
Kenneth N. Flaxman: --The policy is, there's an exception for parking violations, and I don't know if seat belts are a municipal ordinance violation or whether it's a State statute violation. I don't know if Arlington Heights has tried to regulate seat belts, but Arlington Heights says--
Sandra Day O'Connor: Is it the policy that any violation of a... an Arlington Heights ordinance requires a seizure?
Kenneth N. Flaxman: --Other than parking tickets and some other park violations Arlington Heights says, officers must make arrests, and I think that's why the officers did not treat Mr. Ricci to the full 48 hours of detention that's authorized for an arrest, because they realized that there was no need to do that, but they had to make the arrest and bring him down and lock him up.
Anthony M. Kennedy: Mr. Flaxman-- --Now, you said this is a civil fine, so that if he went to trial he doesn't get the protection of beyond a reasonable doubt--
Kenneth N. Flaxman: That's correct.
Anthony M. Kennedy: --a unanimous jury and so--
Kenneth N. Flaxman: He gets a clear preponderance. He has under the State constitution a right to trial by jury. He can't get his costs if he wins on appeal. The State can appeal. Excuse me, the Village can appeal if it loses after trial. There's no double jeopardy. It's in the nature of a fine.
Antonin Scalia: --Mr. Flaxman, when you responded to Justice Souter, Justice Souter's question about, you know, what's the harm, I thought you were going to say that the harm of allowing arrests for misdemeanors is that for the most minor of offenses somebody can be detained for 48 hours.
Kenneth N. Flaxman: That is--
Antonin Scalia: That's what you might have answered, anyway. [Laughter] But what's wrong with that? Suppose you have a real law-and-order State which simply adopts a law that says, all misdemeanor... we're serious about all our offenses, and even for a misdemeanor you are subject to incarceration for 48 hours.
Kenneth N. Flaxman: --Well, I think the Framers rejected that and intended to put barriers between the people and the police.
Antonin Scalia: Well, I mean, would it be unconstitutional for a State to impose 48 hours of detention for jaywalking?
Kenneth N. Flaxman: Well, if this Court upholds respondent's policy, it would not be, and it would be absolutely permissible.
Antonin Scalia: Never mind what the Court does in this case-- --It would be permissible on probable cause rather than on proof beyond a reasonable doubt.
Kenneth N. Flaxman: That's correct.
Antonin Scalia: No, I don't mean whether it would be permissible under the Fourth Amendment.
Kenneth N. Flaxman: No. If this Court--
Antonin Scalia: The law says that the punishment for jaywalking is 48 hours in... of detention. Would that be unconstitutional?
Kenneth N. Flaxman: --That's an entirely different question than what we're arguing here.
Antonin Scalia: No. I know it's an entirely different question. What's the answer to it?
Kenneth N. Flaxman: I'm not sure what the answer is, and in an appropriate case--
Antonin Scalia: Well, I'm saying if the answer is that a State can do that if it wishes, then the asserted harm that you're coming forward with, well, somebody could be detained for as long as 48 hours, is a harm which in another fashion, at least, is fully achievable by the State.
Kenneth N. Flaxman: --The distinction, though, is that when the State, when the legislature has said we're going to lock people up for 48 hours, then it's the elected people, the elected representatives of the people who are saying that. In this case, it's the police department that's saying that.
Sandra Day O'Connor: That's one distinction, and another distinction, of course, is that it would only be the guilty who would be detained for 48 hours. Well, I thought it was the city legislative body that said there would be a seizure, not... that's the group that said police officers will affect a seizure--
Kenneth N. Flaxman: No, the... this--
Sandra Day O'Connor: --for a violation of our ordinances.
Kenneth N. Flaxman: --This is a police department unwritten practice, which is the custom of the whole Village, but there's no ordinance saying to do this. This is the police department.
Sandra Day O'Connor: This is a police department practice only?
Kenneth N. Flaxman: That's correct.
Sandra Day O'Connor: Not authorized by city ordinance.
Kenneth N. Flaxman: That's correct.
Antonin Scalia: I thought you were suing the city. Weren't you suing the city?
Kenneth N. Flaxman: That's correct. In this--
Antonin Scalia: Even though the city didn't order any of it?
Kenneth N. Flaxman: --Well, the city's policy--
Antonin Scalia: That doesn't seem right.
Kenneth N. Flaxman: --The city admitted that its policy was as the police department--
Antonin Scalia: So it was the city's policy, then.
Kenneth N. Flaxman: --It was, but it was not adopted by an ordinance by the--
Antonin Scalia: All right, but it's the city's policy.
Kenneth N. Flaxman: --Oh, it absolutely is the city's policy.
David H. Souter: So-- --Mr. Flaxman, there's one thing one of your answers suggested that makes me more puzzled by the case. Why don't you ask that the line be drawn between criminal and noncriminal offenses?
Kenneth N. Flaxman: I think that's what finally is the same thing--
David H. Souter: Well, certainly there are criminal fines.
Kenneth N. Flaxman: --Excuse me?
David H. Souter: There are certain... certainly there are criminal misdemeanor offenses under the law of most States which are punishable only by fine, but they are criminal. I thought you... this is a case, as I understood what you said a moment ago, in which the State has defined the offense as being a civil offense. It does not carry criminal stigma, and you agreed that... I think you agreed that the criminal process would not be required constitutionally.
Kenneth N. Flaxman: That--
David H. Souter: All right. Then why don't you... why aren't you arguing that there should be no arrest without a warrant for a noncriminal offense in the absence of a failure to respond to process, or something of that sort?
Kenneth N. Flaxman: --I thought that's what I was arguing, and I had envisioned that dimension of the--
Anthony M. Kennedy: Well, no. You argued the breach of the peace hypothetical, or the breach of the peace distinction, the misdemeanor felony line, but if this is just a civil offense it may be that arrest is simply not permitted. Do you have any authority which would help you in... if that were to be the line?
Kenneth N. Flaxman: --Well--
Anthony M. Kennedy: Do we have authority which says that you can arrest for a civil offense? I assume that's--
Kenneth N. Flaxman: --Well, the common law rule--
Anthony M. Kennedy: --a stable category. I'm not sure.
Kenneth N. Flaxman: --The common law rule allowed arrests to begin civil prosecutions of this nature, but there was a warrant to do that. There wasn't--
Sandra Day O'Connor: Mr. Flaxman, I thought your question presented asked whether the Reasonableness Clause of the Fourth Amendment incorporated the common law rule prohibiting warrantless arrests in misdemeanor cases not involving breach of the peace. I didn't read into that an allegation that a civil offense which is not a misdemeanor, not a crime, can justify a seizure.
Kenneth N. Flaxman: --That ques--
Sandra Day O'Connor: You seem to be changing what's presented.
Kenneth N. Flaxman: --Well, the question was phrased in an a fortiori situation. If the rule... we know what the rule was in misdemeanors. At common law there was no rule at all allowing arrest in ordinance violation cases. Ordinance violation cases--
Sandra Day O'Connor: Well, do we assume this is a misdemeanor offense--
Kenneth N. Flaxman: --Oh--
Sandra Day O'Connor: --or not?
Kenneth N. Flaxman: --No. It's a--
Sandra Day O'Connor: No, even though that's the question you raised.
Kenneth N. Flaxman: --Well, I raised that in an a fortiori way of doing it, that if it's not true for misdemeanor cases, certainly it shouldn't be true for anything less than misdemeanor cases.
Stephen G. Breyer: I'm still trying to figure out where it's likely to have bite. I mean, would you say... because you have an odd case, no doubt about that. The... speeding. I suppose speeding offenses. Isn't that the normal thing? Should a policeman, when he finds somebody speeding, be able to arrest him?
Kenneth N. Flaxman: No.
Stephen G. Breyer: You'd say no.
Kenneth N. Flaxman: No, you shouldn't.
Stephen G. Breyer: All right. Now, why not? Suppose I said, highways are dangerous places. People who go around speeding kill a lot of people. If the policeman sees somebody speeding and thinks he should arrest him, he ought to be able to arrest him. At least the State should have the power to make that determination. Why not?
Kenneth N. Flaxman: Because that's just a civil infraction. That is not enough to justify an arrest.
Stephen G. Breyer: That's not a crime, you say.
Kenneth N. Flaxman: That's not a crime.
Stephen G. Breyer: And in most States, can they or can't they?
Kenneth N. Flaxman: Most States that have actually considered that--
Stephen G. Breyer: Mm-hmm.
Kenneth N. Flaxman: --and there's a recent decision from Hawaii who said you can detain someone and search them and talk to them, but you can't arrest them.
William H. Rehnquist: Thank you, Mr. Flaxman.
Kenneth N. Flaxman: Thank you.
William H. Rehnquist: Mr. Strauss, we'll hear from you.
David A. Strauss: Thank you, Mr. Chief Justice, and may it please the Court:
Sandra Day O'Connor: Would you please tell us what this is? Is it a civil offense in the City of Arlington, or is it a criminal offense? Is it a misdemeanor? What is it?
David A. Strauss: --This is treated by Illinois law as a civil offense. It's not subject to the panoply of criminal protections. That point, however, is something that petitioner never raised throughout these proceedings until the reply brief in this Court after an amicus raised it, so that--
Anthony M. Kennedy: I think you're right about that, but could you tell us, is there authority which allows an arrest for a so-called civil offense, I suppose just to start the proceeding?
David A. Strauss: --In a sense, Justice Kennedy, the text of the Constitution is that authority. The text of the Constitution grants legislators an immunity from arrest which is phrased in a way that leaves... that denies immunity in criminal cases, so the immunity, the limit of legislative immunity in the Constitution applies to arrest in civil cases, and this Court has so held on at least two occasions, in Williamson and Brewster.
David H. Souter: That was the old arrest for debt, wasn't it, arrest on so-called mean process?
David A. Strauss: I think it was the capias, the initiation of private civil proceedings by means of seizing the... seizing the defendant.
David H. Souter: It was a general civil process.
David A. Strauss: Right. Right, but as far as--
David H. Souter: But those arrests always required warrants, didn't they?
David A. Strauss: --Well--
David H. Souter: In other words, I didn't think there could ever be a warrantless arrest on a civil capias. I mean, by definition capias is the written document, which is an arrest warrant.
David A. Strauss: --There was a writ, Justice Souter. I'm not sure what showing was required. But my real point is that a hard civil-criminal line can't be imported into the Fourth Amendment, given that the... as far as when are arrests allowed, given that the Constitution itself quite clearly envisions arrests in civil cases.
David H. Souter: Well, it may be that there can be no line drawn between civil and criminal for purposes of arrest, but there may very well be a line drawn between civil and criminal for purposes of a warrant requirement, and if the reference is, as you said, to the capias process, that was by definition one in which there was a written warrant. It was called a capias in civil cases, but it was still an arrest warrant.
David A. Strauss: Well, Justice Souter, just, I want to preserve the point that they waived... that both courts below found that they waived any right--
Stephen G. Breyer: So what are we supposed to decide, because let's assume that not having... as once I did look into that, I think that the point about arresting legislatures is irrelevant, something totally different. On that assumption, what are we supposed to do with this case? I thought the case was here to decide this question of whether or not an undoubted crime, something that everybody concedes is criminal, but it's called a misdemeanor, or it's a crime punishable only by a fine, whether or not you could arrest someone without a warrant. Now, what we're saying is that isn't this case. This case is perhaps not an undoubted crime. This case is perhaps a civil offense or something that's not a crime, so what in your view, are we supposed to do?
David A. Strauss: --Justice Breyer, we've litigated the case throughout on your assumption that this is a crime, and that the civil nature of this offense has simply not been a part of the proceedings.
William H. Rehnquist: Well, Mr. Strauss, where did you say respondents first raised the contention that this was a civil offense?
David A. Strauss: In their reply brief in this Court, after an amicus raised it in the opening round of briefing. So far as I am aware there's no reference to the Illinois statutes--
Ruth Bader Ginsburg: But surely the Village knew that it was dealing with. The Village and its police should have known that they were dealing with a civil offense, and wouldn't that be quite worrisome if the police think that all these civil offenses are occasions to arrest someone and lock them up?
David A. Strauss: --Justice Ginsburg, absolutely. We understand it's a civil offense. Our position, Justice Ginsburg, is that if officers have probable cause to believe that someone is guilty of an offense, they may seize him, and as long as the seizure is reasonable in manner and duration the Fourth Amendment is satisfied. Where they process the arrest, whether they process it on the scene, process it in a patrol car, process it in another office, or process it at the station house is not a Fourth Amendment question.
Antonin Scalia: And we're going to have all sorts of different tests for duration, a 48-hour rule will not apply in some cases?
David A. Strauss: Well, the--
Antonin Scalia: This person could have been held for 48 hours?
David A. Strauss: --The test in the County of Riverside... there's... the County of Riverside establishes a 48-hour--as I read it, Justice Scalia, establishes a 48-hour presumption, but it's quite clear that that doesn't give the authorities a free 48 hours, that it's still open to the arrestee to say, after an hour, in this case, you've done everything you needed to do, why didn't you release me, which is what would have happened and what he could have said in this case had we held him even for 2 hours. I think County of Riverside is quite clear that it's a presumption only.
Ruth Bader Ginsburg: Mr. Strauss, could the police in this case have handcuffed him, put him in a holding cell with a lot of tough guys?
David A. Strauss: Justice Ginsburg, I think at some point the conditions become so onerous as to be unreasonable, and this Court in another case... I think it was Bell v. Wolfish... used the example of putting someone in shackles. At some point--
Anthony M. Kennedy: Because it's unreasonable based on the type of offense?
David A. Strauss: --The type of offense I think can enter the calculus of what is a reasonable manner of restraint.
Anthony M. Kennedy: What authority is there for that?
David A. Strauss: Well, I don't know that the Court has ever... has ever limited the manner of confinement based on the nature of the offense.
John Paul Stevens: Mr. Strauss, I have a different concern that I'd like you to comment on, not going to the burdensomeness of the arrest, but is it clear to you that in a... incident to this arrest the police could have searched this man and his vehicle and his luggage and everything else if they happened to stop him in a car for this kind of offense? Would they have had all those powers?
David A. Strauss: Justice Stevens, as... well, as... if they'd... I should just say, as for a traffic offense under Illinois law they would have had to accept his license. They could not have arrested him for a traffic offense under Illinois law.
John Paul Stevens: Well, see, we don't have a traffic offense.
David A. Strauss: But... I understand.
John Paul Stevens: If this... take this sort of financial crime.
David A. Strauss: I understand.
John Paul Stevens: Yes.
David A. Strauss: Justice Stevens, as I read Robinson and Gustafson they settled that question and the answer is yes. Now, if that rule is too harsh, it's--
John Paul Stevens: If this is a full arrest, then that's one of the consequences that follow, is that the... the total search power. Search the car, search the luggage, search the trunk and everything else.
David A. Strauss: --That Robinson and Belton control the scope of search--
John Paul Stevens: So it seems to me that's really what we ought to be concerned about, rather than whether he has to spend 24 hours instead of 48 hours.
David A. Strauss: --Well, this... in this case there's no evidence there was a search incident to the arrest, even a pat-down.
John Paul Stevens: No, I understand, but there could have been. There could have been.
David A. Strauss: So far as I read it, that's controlled by Robinson and Belton.
William H. Rehnquist: Yes. Well, Robinson would control as to the search of the--
David A. Strauss: Of the person.
William H. Rehnquist: --who was arrested. I don't think it would control at all as to a search of the car.
David A. Strauss: No. That would be Belton.
William H. Rehnquist: Or the luggage.
David A. Strauss: If... and--
John Paul Stevens: It would be Belton, yes.
David A. Strauss: --And Chimel.
Sandra Day O'Connor: What is the policy with which we're dealing in this case? Would you articulate it?
David A. Strauss: Yes, Justice--
Sandra Day O'Connor: It does not include minor traffic offenses?
David A. Strauss: --Justice O'Connor, yes. Our policy applies... first of all applies only to local ordinances. Traffic offenses in Illinois are governed by State law. This applies only to local ordinances. It does not apply to parking violations, even when those are local ordinances, so those are not in the picture. The policy is not that the police must arrest everyone who violates a local ordinance. They have the ordinary discretion in giving someone a warning, or just letting him go. But if they initiate proceedings against the person, they must bring the person to the station house, where the sergeant on duty makes the decision whether this person is to be bonded out or is to be released on his recognizance. What Arlington Heights tells its officers on the beat is, when you make an arrest, you don't make the call about whether this person just gets to sign a citation and leave or must post bond. That's a call to be made at the station house. You bring him in, where we will process him. That's the nature of the policy, and that's why he was brought in for this offense.
David H. Souter: As I understand it... this may not count in the decision of the case, but I thought the reason that Arlington Heights had for its policy was a... to be candid, a rather superficial one. They said, well, we just simply don't have a documentary process for field summonses, and... which doesn't really cut much if we get to that issue. You're now saying that they feel that the discretion should be... as to how far to go, to bond or not to bond, should be made by a superior officer and that's the reason that they do not have this field processing scheme?
David A. Strauss: Yes, Justice Souter, and there's testimony to that effect in the record. The point... the citations is the way we enforce the policy. The officers are not given citation books where they can write a citation in the field.
David H. Souter: Okay.
David A. Strauss: That's how the policy's enforced, but the reason for the policy is--
Ruth Bader Ginsburg: Mr. Strauss, isn't this unusual? I think in many places a summons in lieu of an arrest is common even for a misdemeanor that carries jail time, and here you've told us that this is a civil category and that the police have only two choices, either let him go with a warning or, if they want to pursue this civil process, they have to take him into full custody. That seems rather extreme.
David A. Strauss: --Justice Ginsburg, for purposes of the Fourth Amendment I think the choice about whether to proceed by citation, which I agree is often allowed by municipalities, or whether to proceed in this way I think has to be left to local circumstances. We happen to be in a position where we can process people quickly and where, for whatever reason, we want these decisions not to be made by officers on the beat, whether it's because we think they'll be vulnerable to accusations of shakedowns and intimidation, or because we want them back out on the street and not processing applications, or for whatever reason, and we can process them quickly. In a large metropolitan area, where there are many, many arrests, the policy is likely to be a different one.
William H. Rehnquist: Mr. Strauss, let me get back again to the point that you say was raised only for the first time in the reply brief. In the... the second question presented in the petition for certiorari says, may a municipality require its police officers to make full custodial arrests for an alleged violation of a fine-only license ordinance. Now, it seems to me if... the fine-only license ordinance is fairly raised by that question presented.
David A. Strauss: Justice Rehnquist, when I said it wasn't raised, what I meant is this. At no point until... so far as I'm aware, until the reply brief, did petitioner ever even mention the civil nature of the offense or cite the Illinois statutes in cases that established that it's civil.
William H. Rehnquist: So you say a fine-only license ordinance doesn't suggest civil rather than criminal?
David A. Strauss: Violation of a fine-only license ordinance, it seems to me the natural reading of that is criminal, but my real point, Mr. Chief Justice, is not so much about what the question can be read to include, as the premise on which the case has been litigated throughout, and that premise has undoubtedly, I'm certain of this, been that this was--
Sandra Day O'Connor: A criminal-- --Well, but do you take the position that if we assume now that it is a civil offense, and not a criminal misdemeanor offense, that the Fourth Amendment does not prevent the city's policy of seizure and removal to the station house?
David A. Strauss: --Yes, I do take that position, Justice O'Connor.
Sandra Day O'Connor: And what do you rely on in terms of authority for that?
David A. Strauss: The... my... the basis for my position is that the Fourth Amendment cannot be read to draw a sharp line between criminal and civil arrests, and the authority for that is the Court's statement, Justice Brandeis' statement in Long v. Ansell that civil arrests were common at the time of the framing, and the inclusion in the Constitution of an immunity that applies only to civil arrests, confirming that, in fact, civil arrests are contemplated by the Constitution.
David H. Souter: Yes, but if you're going to appeal the history, I think you've got the problem that was raised earlier. There is undoubted history that there could be arrests for civil offenses, but I think there is not undoubted history, and I think there is not any history that there could be arrests for civil or... for civil offenses without some written arrest warrant, whether you call it capias or some other term, and that's the issue here, not whether you can arrest or not.
David A. Strauss: Well, Justice Souter, before I assent to or disagree with that proposition I think neither case that was litigated about civil rights--
David H. Souter: Let's do it... I just want to work out the answer that you just gave to Justice O'Connor.
David A. Strauss: --Mm-hmm.
David H. Souter: And I take it that you do not have any authority, know of any authority, traditionally, at common law, for arrest for a purely civil offense without some written process issued by a magistrate, i.e., like a capias.
David A. Strauss: Well, Justice Souter, at common law the line between criminal and civil, especially when you're dealing with so-called public nuisances... that is, civil affronts to the Government as opposed to a private party... was a very indistinct line. It was--
David H. Souter: Maybe it was, but leaving aside the problem of indistinction, I take it you don't have any authority with respect to cases that were on the civil side of the line, in which the common law recognized a valid arrest without some written process issued by a third party like a magistrate.
David A. Strauss: --I think our argument, Justice Souter, would be that a civil offense against the Government--
David H. Souter: I don't want to cut off your argument, but I don't want to lose my question.
David A. Strauss: --Whether there's--
David H. Souter: Do you have any authority for that, or don't you have authority?
David A. Strauss: --We would have authority for the proposition that certain categories of offenses that we believe are the ancestors of civil offenses against the Government could be subject to... at common law to... on occasion to warrantless arrests. I think we have authority for that.
David H. Souter: What are they?
David A. Strauss: Well, that's the night-walking category of offenses, where there were minor nuisances committed that by certain statutes under certain circumstances could be proceeded against--
David H. Souter: So like the Terry stop, in other words.
David A. Strauss: --Well, it was like a Terry stop except it explicitly could last overnight, and in that sense it really resembles more what goes on with the rest of the minor offenses.
David H. Souter: But in order to prevail here, you've got to take the law beyond Terry.
David A. Strauss: This was an arrest. We don't quarrel with that.
Antonin Scalia: And you don't quarrel that there is a distinction in the Fourth Amendment between a seizure that is not an arrest and a seizure that is an arrest?
David A. Strauss: I think Terry establishes that, Justice Scalia.
Stephen G. Breyer: Is there... can you give me an example, so I know what I'm talking about here... would you just give me an example of a fine-only criminal offense? Is there... just give me one... this one apparently isn't clear, because we think maybe this isn't criminal, so what's an example of something that is a criminal offense that is punishable only by a fine, some bad ones if you can think of some. Are there any?
David A. Strauss: In... in Illinois, any municipalities have the authority to make their fine-only offenses civil. They could, in some jurisdictions--
Stephen G. Breyer: What I want to know is if anybody here has an example of what it is we're talking about? I thought when we started this we were talking about misdemeanors. Now we're not. We're talking about fine-only offenses, and then I thought maybe there were some fine-only offenses that are criminal, and so I'd have to face that constitutional question. Now I have one that may be criminal, may not be criminal. It's an odd animal. Is there one, if we write an opinion, that I'd at least know it affects that one, and what is it? What's a fine-only criminal offense that's undoubtedly criminal, that's... you apparently don't have an example--
David A. Strauss: --I can't cite you to any in--
Stephen G. Breyer: --and I haven't found it in the brief, so I'm not--
David A. Strauss: --I can't cite you to any in Illinois.
Ruth Bader Ginsburg: --But it certainly isn't the one before us, and I think you told us that most of the... in Arlington most of the offenses in this category are civil offenses. These, not having a license to do something or other.
David A. Strauss: Local ordinances that provide only for fines are treated as civil. I should say this isn't... this is in large measure a benefit to the accused as well, who now does not have a criminal record by virtue... would not have a criminal record by virtue of being found to have committed a civil infraction.
Ruth Bader Ginsburg: Does... I wanted to ask you about the booking and the record. Is it the same as in an arrest in a criminal... for a criminal prosecution, the way the person is booked and the record, the police record that that person... the arrest record that the person will have?
David A. Strauss: I think the answer is no, Justice Ginsburg, to the extent that the record will reflect that this is a civil offense, and if he is asked, have you ever been convicted, he's not... he was not convicted. The charges were dismissed. But had he been convicted, were he asked, have you ever been convicted of a crime, he could say no.
Anthony M. Kennedy: Suppose he was asked, was he ever arrested?
David A. Strauss: He would have to say yes. He was arrested. He was arrested on probable cause. We had a right to arrest him.
Ruth Bader Ginsburg: And that would be the same, so he would have to answer that question the same, and it wouldn't make any difference whether it was a misdemeanor with jail time, he has an arrest record.
David A. Strauss: He has an arrest record.
Ruth Bader Ginsburg: Yes.
David A. Strauss: Now, he could go... explain the charges were dismissed. The charges were only civil.
Ruth Bader Ginsburg: Mr. Flaxman said that this business about the bond requirement, on the face of it it looks like there could be several thousand dollars involved, and so it would be reasonable to require a bond before letting this person go, but Mr. Flaxman said that that was an afterthought.
David A. Strauss: Justice Ginsburg, the reason... the subjective reason these officers arrested him was that we tell our officers, you don't make the decision whether to release the person on the basis of a citation or not, you bring them down. That was all the officers were thinking. They weren't thinking about the size of the infraction.
Antonin Scalia: Mr.--
David A. Strauss: Were I called upon to explain objectively why this was reasonable, one of the factors I would say if I needed to say it was the one you just mentioned, that in fact he'd been, by his own admission, operating for 6 months and did face a very substantial fine. He had a person on his premises who was subject to an arrest warrant, and various other circumstances.
Antonin Scalia: --Mr. Strauss, Terry aside, do you know any basis in common law for the distinction between an arrest that enables you to be taken down to the station house and a traffic stop, or whatever you want to call it, that does not allow you to be taken down to the station house?
David A. Strauss: No. Justice Scalia, so far as I know, if there is probable cause, then the person can be seized, can be arrested, and whether he is... where he is taken for processing I think can't be regulated by a constitutional rule. There are just too many variables, too many factors that affect that. They vary from jurisdiction to jurisdiction, situation to situation, and even the ALI which disapproved of... which emphasized the need for citations, suggested a code and then said, but the fact is we really can't prescribe guidelines about when citations are needed because the situations are just too variable.
John Paul Stevens: No, but even if there's no common law category such as Terry, we surely have recognized many, many situations in which police are authorized to stop and interrogate, even without probable cause, and those are all seizures.
David A. Strauss: Yes.
John Paul Stevens: You would agree with that.
David A. Strauss: If it's a stop, then it's a seizure.
John Paul Stevens: Yes.
David A. Strauss: But so far as I know, Terry--
John Paul Stevens: And it doesn't require probable cause.
David A. Strauss: --It doesn't require probable cause, but if it's... if there's no probable cause the stop is very limited in duration and purpose.
Stephen G. Breyer: But we have here... all we have here is taking him to the police station to book him. There's nothing more. Like, they didn't... do we have to consider whether 48 hours, and searches and that sort of thing?
David A. Strauss: No. He was released in an hour, Justice Breyer, and there's no claim here that the detention went beyond the amount of time needed to process the necessary papers.
William H. Rehnquist: Thank you, Mr. Strauss.
David A. Strauss: Thank you, Mr. Chief Justice.
William H. Rehnquist: Ms. Millett.
Patricia A. Millett: Mr. Chief Justice, and may it please the Court: Justice Breyer, you asked for examples of criminal fine-only offenses, and we list a number of these on page 20 of our brief which are, of course, Federal ones, and this is just the tip of the iceberg. This is not an exhaustive list, but they include such things as exclusion of jurors on account of race, interference with aids to navigation, vandalism at national monuments and military parks, and as I said, this is the tip of the icebergs. Our initial cut at how many Federal fine-only criminal offenses there are was around... I think I got around 60 to 70, and I don't know if that's exhaustive.
Antonin Scalia: What makes them criminal rather than civil, just saying so?
Patricia A. Millett: Well, certainly a legislative decision, the community judgment to label behavior criminal, is a big factor in whether it's a crime or not, but certainly then whether traditional criminal processes attend the prosecution of the case.
Antonin Scalia: Well, that's a consequence of its being criminal--
Patricia A. Millett: Right.
Antonin Scalia: --not a cause of its being criminal. I mean, so it's up to the State to say, we're going to impose this fine and make it a civil fine, and therefore you don't get beyond a reasonable doubt--
Patricia A. Millett: Oh, I think this Court has long recognized that it is primarily the job of States and Congress within its authority to define what is criminal or not, whether or not this Court or one particular jurisdiction thinks that's a wise thing to make criminal or not, and if--
Sandra Day O'Connor: --Well, if this is not a criminal offense, then what is the Government's position?
Patricia A. Millett: --I don't know if we have a position on what happens to ordinance in particular. I think our position is very clear that there is no--
Sandra Day O'Connor: Does the Federal Government have some civil offenses that are not criminal?
Patricia A. Millett: --Plenty of civil offenses that are not criminal, and--
Sandra Day O'Connor: What is your position with regard to those--
Patricia A. Millett: --Our position--
Sandra Day O'Connor: --as to the Fourth Amendment requirements?
Patricia A. Millett: --Our position is the Fourth Amendment does not draw a bright line banning seizures, arrests, for civil offenses, such things as deportation, extradition, civil commitment, if a police officer finds someone who is a danger to himself. There are categories of violations, offenses... I'm not even sure what to call them... civil violations for which arrest has traditionally been recognized to be appropriate. I mean--
David H. Souter: The issue, if--
Patricia A. Millett: --conveyances and traffic may be another one.
David H. Souter: --May I interrupt you? The issue is not whether arrest may comport with the Fourth Amendment, but arrest without any process issued by a magistrate or some third party.
Patricia A. Millett: Right, and I think the analysis... the mode of analyzing whether proceeding without a warrant or whatever process would be appropriate may be different between criminal and civil cases under the Fourth Amendment.
William H. Rehnquist: Well, didn't the Seventh Circuit rule that the petitioner had waived his argument under the Warrant Clause?
Patricia A. Millett: Yes, they did, Justice... Mr. Chief Justice. But for purposes of what would be required in the civil arena, our position is, if it's a crime, probable cause justifies an arrest. You know, probable cause plus. If it's civil, I think this Court has recognized that under the Fourth Amendment when you get into civil seizures, which take a variety of forms, that a balancing analysis is generally appropriate, and of course we want to--
Ruth Bader Ginsburg: Every example that you gave involved the risk of absconding or fleeing. You want to deport someone, extradite someone, there's a high risk that person won't be there if you let them out on the street.
Patricia A. Millett: --That's right, so that's why--
Ruth Bader Ginsburg: But here we're talking about, I didn't get a license for my business, that my wife got while I was in the police station. It was that easy. So when you don't have a breach of the peace, and when you don't have the risk that the person will flee, then what is the justification? What is the reason for permitting an arrest?
Patricia A. Millett: --I guess I'm... if you're assuming that this is a criminal offense, then... I'm sorry, civil?
Ruth Bader Ginsburg: I thought we asked you... you were giving examples of civil proceedings--
Patricia A. Millett: Okay.
Ruth Bader Ginsburg: --where an arrest would be recognized as reasonable, and they were all... fall in the "exigent circumstance" category.
Patricia A. Millett: Right. I think a balancing would be appropriate in a civil case, and certainly whether or not someone is likely to abscond or... I'm not sure someone who's a danger to himself is the same as a likelihood of absconding, but that could be another factor.
Stephen G. Breyer: Someone about to commit suicide, for example.
Patricia A. Millett: About to commit suicide or other civil... just to harm themselves, if not suicide, but there's going to be a balance--
Ruth Bader Ginsburg: But this... what's in front of us doesn't seem to fit. What would be... now, we have... the kind of offense that's involved is failure to get a license to operate some kind of business. What circumstances would justify an arrest for such an infraction?
Patricia A. Millett: --I think it may be fair for a legislature to... for a legislature or a police department to conclude that as a class there is a... and the Fourth Amendment analysis may permit this, that there is as a class a risk of absconding or injury. For example, when we think... it's harder to conceive of it in this particular case in the established business, but you'd think of push-carts and vendors along the street who are operating without licenses, and whether in a particular case I know this person, I know where they live, I don't know whether I would be able to find them again, is not the appropriate analysis. This Court has recognized that at some points when you have an established level of suspicion you need not have--
William H. Rehnquist: Yes, well-- --We're talking about a civil case. --that's one of the virtues of the Robinson opinion, I say perhaps because I wrote it-- [Laughter] --that it lays down a flat rule. Now, you say... are you balancing in every individual case--
Patricia A. Millett: --Well--
William H. Rehnquist: --whether you can make an arrest? That's hardly workable.
Patricia A. Millett: --No, certainly not for crimes. The question is whether, once it's a civil violation, Robinson wouldn't cover that by its own terms.
William H. Rehnquist: No.
Patricia A. Millett: That dealt with a crime. I mean, it does get complicated because you can have traffic violations that are a crime in one case... Maryland v. Wilson dealt with speeding, where it's a crime. It is not a civil infraction. Whren v. United States was speeding and it was a civil infraction. So it... jurisdiction by jurisdiction the same conduct may, in fact, be either a crime or a civil offense, and I think again when it's... Robinson wouldn't cover it if it's... necessarily if it's civil, but there may be either... either through a balancing analysis or a recognition of historical categories such as conveyances, deportation, immigration control, that they may be the types of civil seizures that are permitted on a... you know, without balancing in individual cases because of... the interests are going to apply generally across the board in making a seizure in those cases to enforce the civil or criminal law, but--
Anthony M. Kennedy: Is it fair to say that you briefed this case on the assumption that we were dealing with a criminal offense?
Patricia A. Millett: --Yes, we did, and I apologize if we don't have a completely thorough analysis of the issue. We did not read the second question presented to render the first question presented an advisory question, but we certainly are emphatic that there is not a bright civil-criminal line in the Fourth Amendment, that there are classes of seizures, and whether... that are permissible in the civil arena, as I said, deportation, conveyances, or the maritime, or traffic, and whether those--
Antonin Scalia: That's all irrelevant for this case, right? I mean--
Patricia A. Millett: --I guess it depends on whether this Court reads the second question presented differently from whether we did. I think it certainly has not been briefed, briefed other than at a very late stage, and it wasn't addressed by the courts below.
Ruth Bader Ginsburg: --But now we know we are dealing with a civil infraction, so how can we pretend that it's criminal when it's... we're told that it's civil?
Patricia A. Millett: Well, if this Court concludes that it is civil and it needs to address it, then we think it would be better to--
Ruth Bader Ginsburg: We don't have to conclude that. We were told that by Mr. Strauss, that this is in fact in the City of Arlington a civil offense.
Patricia A. Millett: --We think that it may be preferable for this Court to remand to allow a case to come up, or else the courts below to address what either the common law or the practices are for civil arrests on these types of ordinances, which hasn't been briefed and addressed below, and we certainly would be very concerned about having a decision issued without the information provided to this Court that is necessary about civil offenses.
Antonin Scalia: We should forgive the waiver? I mean, the point wasn't raised below. Should we instruct the lower court to give the defendant another... or the plaintiff another swing?
Patricia A. Millett: Well, the Court could certainly dismiss cert as improvidently granted simply on the question that either--
Stephen G. Breyer: Well, I thought you were saying we should read the second question, in light of the record, as saying is this particular criminal offense one for which you could arrest someone. Wasn't that your position, or not?
Patricia A. Millett: --Our position is, we read the second question presented in light of the first question presented.
Stephen G. Breyer: Which is criminal. In other words, I take it--
Patricia A. Millett: Right, absolutely. Absolutely.
Stephen G. Breyer: --So I take it you're not... I thought... you think we should do the same, I take it, as you did.
Patricia A. Millett: We--
Ruth Bader Ginsburg: It would be a hypothetical question when we know it is not criminal.
Patricia A. Millett: --If... the Court--
Ruth Bader Ginsburg: How can we then say, well, we'll assume that it's waived, that we'll treat something that the city says is civil as criminal?
Patricia A. Millett: --That is the danger that you're essentially issuing an advisory opinion in a case that just does not present the question. That's again why cert may have--
Antonin Scalia: It's not an advisory opinion in this case if that issue was not raised below. It's been tried on the assumption that it's criminal. Why is it advisory in this case? I, for one, would certainly not send it back to let this new point be dredged up when it was simply foregone in the trial below, so I don't see why it's an abstract case. I mean, we have a real case before us that's been tried on this assumption, and it seems to me we can decide it on that assumption. It just doesn't conform to the facts. [Laughter]
Patricia A. Millett: --I think you were not--
Ruth Bader Ginsburg: I thought I heard you say that we should dismiss the writ as improvidently granted, because we thought we were dealing with a criminal offense and it turns out to be civil.
Patricia A. Millett: --Our only position... may I answer, Mr.--
Ruth Bader Ginsburg: Yes.
Patricia A. Millett: --Our only position is that if the Court wishes to address, or... wishes to address the issue and wishes not to address the criminal issue, that it may... it's certainly within this Court's prerogative to decide that the question it thought it was going to be deciding is not, in fact, now presented to the case in light of the respondent's admissions.
William H. Rehnquist: Thank you, Ms. Millett. The case is submitted.