The Constitution of Police Violence
58 Pages Posted: 6 Oct 2016
Date Written: September 30, 2016
Police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. From the 1960s to the present, federal courts have persistently endorsed a very expansive police authority to make seizures – to stop persons, to arrest them, and to use force if the arrestee resists. This Article reveals the full scope of this seizure authority. Of particular importance are the concepts of resistance and compliance. Demands for compliance with officers, and a condemnation of resistance that authorizes police to meet resistance with violence, run throughout constitutional doctrine. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) elsewhere protected in American law. Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire proposals to reduce and redistribute those risks.
Keywords: police violence, seizures, stops, use of force, constitutional criminal procedure, Fourth Amendment
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