How the Fourth Amendment Frustrates the Regulation of Police Violence

Abstract

Within policing, few legal principles are more widely known or highly esteemed than the “objective reasonableness” standard that regulates police uses of force. The Fourth Amendment, it is argued, is not just the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers themselves should recognize. Any other regulation of police violence is inappropriate and unnecessary.

The Constitution does not actually regulate the use of force, though. It regulates seizures. Some uses of force are seizures. A surprising number of others — including some police shootings — are not. Uses of force that do not amount to seizures fall entirely outside the ambit of Fourth Amendment regulation. And even when a use of force does constitute a seizure, the Fourth Amendment is a distressingly inapt regulatory tool. There is, in short, a fundamental misalignment between what the Fourth Amendment is thought to regulate and what it actually regulates, and there are good reasons to doubt the efficacy of that regulation even when it applies. Put simply, the Fourth Amendment provides a profoundly flawed framework for regulating police violence.

The Constitution is not the only option.; state law and police agency policies are often seen as promising regulatory alternatives. What has largely evaded academic attention, however, is the extent to which state courts and police agencies simply adopt or incorporate the constitutional standards into their own governing frameworks. In this way, the Fourth Amendment’s flaws have spilled over into the sub-constitutional regulation of police violence.

This Article details the substantial shortcomings in constitutional jurisprudence, describes the problem of Fourth Amendment spillage, and argues that the divergent interests underlying the various regulatory mechanisms should lead state lawmakers and administrative policymakers to divorce state law and administrative policies from constitutional law. It doing so, it advances both academic and public conversations about police violence.

Keywords: police, fourth amendment, use of force, police violence, seizures, policing