“Discretion is the better part of valor,” is a slight misquote of a line from Shakespeare’s Henry IV. If you want a full rundown of the Bard’s nuance, you can find it here. The phrase is modernly used to mean it is better to be careful than to do something dangerous and unnecessary.
Discretion is important in policing. Just because you may legally act, doesn’t mean you should. Whether approaching, contacting, stopping, searching, seizing, ticketing, arresting, using force, or any other police action — you generally exercise discretion (with some exceptions like mandatory arrests for domestic violence).
The case
When 69-year-old Susan Porter drove by a protest outside her congressman’s office in 2017, she honked her car horn in support. The next thing she knew, she was stopped by a deputy sheriff and ticketed. When she asked what for, the deputy said, “Illegal use of horn.” She responded, “There’s a law for that?”
There is — in 41 states — although it’s rarely enforced. Imagine enforcing such a law after the home team won a state championship and fans began emptying the sports arena’s parking lot and formed a spontaneous parade. California’s law, where Porter was driving, prohibits the use of a horn except to warn of a safety hazard.
Porter’s ticket was dismissed after the citing deputy failed to show up for court. But that wasn’t the end of it for Porter. She feared she might be cited again if she honked her horn in support of other demonstrations or rallies. Accordingly, her attorneys filed a lawsuit against the California Highway Patrol (CHP) and the San Diego County Sheriff’s Department, claiming her First Amendment right was being unconstitutionally infringed.
The First Amendment doesn’t protect all speech — for example extortion, threats, harassment and slander. Also, how people express themselves can be limited by reasonable time, place and manner considerations like noise ordinances and large demonstration permit requirements. The question is whether horn honking not to warn of a hazard poses a risk to public safety that outweighs a citizen’s First Amendment right to political expression by such means.
The decision — so far
If you want a full rundown of the Ninth Circuit’s nuance regarding horn honking, you can find it here. The opinion is 60 pages long. To be fair, 20 pages are a dissent. Still, such verbosity makes one wonder if the judges and their clerks get paid by the word.
So far, Porter is 0 for 2. Both the district and circuit court found limits could be placed on horn honking as political speech in the interest of public safety. In disagreeing, the dissenting circuit judge wrote,
“[T]here is no evidence in the record (or elsewhere, as far as I can determine) that such political expressive horn use jeopardizes traffic safety or frustrates noise control.”
The case is now on the U.S. Supreme Court’s docket, awaiting a decision as to whether our nation’s highest court will accept it.
The lesson
Valorous discretion requires thinking ahead. Consider the resources that have been expended on this case where the citing deputy was a no show. I’m not judging. Illness? Sick kid? Testifying in a homicide case? Forgot? We don’t know.
I do know from reading the Ninth Circuit opinion that the deputy reported they cited Porter because they saw no danger the horn was warning against. There was also no evidence that Porter’s honking presented any of the dangers a 24-year-veteran of the CHP testified could be caused by improper horn use.
Horn honking as political expression finds rare bipartisan agreement. As a candidate during the pandemic, President Biden organized car rallies to avoid close person contact and encouraged attendees to honk their support. In 2020, former President Trump described the honks from a protesting convoy of truckers as “a sign of love.” Such political agreement and a long history of expressive horn honking are not likely to be lost on the Supreme Court.
What if the deputy had instead seen the incident as an opportunity for some education and given a warning? Porter might still beep her horn as an expression of political speech, but she might take care to honk in a time, place and manner that minimized the safety risk.
If the Supreme Court accepts the case and I was arguing for the state of California, I’d wish for more compelling facts — at least some evidence that Porter’s honking presented some actual risk. Absent that, 41 states stand to lose a tool that helps, however rarely, cops keep the public safer.
Then there’s a widely reported case where police discretion was trumped by protocol. In 2019, California officers pulled over 83-year-old Elise Brown, believing — mistakenly — she was driving a stolen car. Ms. Brown was just over 5 feet tall and weighed 117 pounds. The officers drew their handguns, handcuffed her and forced her to her knees. They said they were following agency protocol.
This year a federal appeals court waived qualified immunity for the officers and ruled Brown could sue for excessive force. In December, the Supreme Court let that lower court ruling stand, keeping Brown’s lawsuit alive. Assuming the officers were following protocol, what training had they received in its discretionary use?
Discretion requires officers to think ahead to possible, unintended consequences. It’s incredibly challenging and important with attendant high stakes in policing. Are we adequately training officers in the valor of its use?
