Inequitable Enforcement: Introducing the Concept of Equity into Constitutional Review of Law Enforcement

44 Pages Posted: 28 Jan 2010

See all articles by Hadar Aviram

Hadar Aviram

University of California, Hastings College of the Law

Daniel L Portman

affiliation not provided to SSRN

Date Written: January 27, 2010

Abstract

This Article addresses a series of situations in which the exercise of police discretion, while passing current constitutional thresholds, seems unfair and unforeseeable. We call this problem “inequitable enforcement.” Current constitutional review of police action assesses all stops, searches, and arrests - regardless of how minor the offense - by focusing on the officer’s level of suspicion and the officer’s compliance with equal protection standards. In this Article, we argue that these existing constitutional mechanisms are flawed and fail to provide an appropriate remedy in cases of arbitrary and disproportionate enforcement for minor infractions. We begin by discussing the necessity of police discretion and the factors that guide officers in exercising it. After tracing the recent development of Fourth and Fourteenth Amendment law in the context of police discretion, we explain why these constitutional protections are inadequate for addressing the problem of inequitable enforcement. This inadequacy, we argue, is a result of the narrow and myopic lens through which the Supreme Court assesses reasonableness in its Fourth Amendment analysis, and discrimination in its Equal Protection analysis. We then suggest a set of considerations for assessing inequitability and present some ways in which those considerations can be integrated into constitutional doctrine. We conclude by discussing the promises and pitfalls of addressing inequitable enforcement through constitutional review.

Keywords: Policing, Law Enforcement, Fourth Amendment, Equal Protection, Privacy

Suggested Citation

Aviram, Hadar and Portman, Daniel L, Inequitable Enforcement: Introducing the Concept of Equity into Constitutional Review of Law Enforcement (January 27, 2010). Hastings Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=1543306

Hadar Aviram (Contact Author)

University of California, Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Daniel L Portman

affiliation not provided to SSRN

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