When Does a Warrant Clause Violation Accrue: Ord v. District of Columbia

Are a citizen's Fourth Amendment rights violated when a warrant is issued for the citizen's arrest - even if the citizen is never arrested?  That is the issue in Ord v. District of Columbia, a case pending before the Court of Appeals for the District of Columbia.  (You will find excellent coverage from the Legal Times Blog here; and here.)

In Ord, a warrant was issued for Ord's arrest.  After issuing the warrant, police realized that they lacked probable cause to believe that Ord had committed any crime.  Police then withdrew the warrant.  Ord was never arrested. 

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause []."  A plain-text reading of the Fourth Amendment leads one to conclude that Ord's rights were violated.

Still, Ord is an unusual case.  Usually, a party suing under the Warrant Clause was arrested pursuant to an arrest warrant.  Thus, the arrest served as the basis of the rights violation.  It's hard to determine what the Court will decide.

As a factual matter, having a warrant sworn out for your arrest would be traumatic.  You would live in fear.  You would be afraid of leaving your home.  You would know that, if you were stopped while driving your car, you'd be arrested and have your car impounded.  You'd be thrown into jail.  You'd also need to hire a lawyer to clear the warrant.  Even without an actual arrest, an arrest warrant puts a meaningful restraint on your physical liberty.  It also causes subject fear, and emotional distress.

A Warrant Clause violation should therefore accrue at the time the warrant is issued.  At the very least, a citizen who knows an arrest warrant has been issued should be able to sue.

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