The Law on Police Use of Force in the United States

15 Pages Posted: 23 Feb 2021

See all articles by Brandon L. Garrett

Brandon L. Garrett

Duke University School of Law

Christopher Slobogin

Vanderbilt University - Law School

Date Written: December 11, 2020

Abstract

Recent events in the United States have highlighted the fact that American police resort to force, including deadly force, much more often than in many other Western countries. This Article describes how the current regulatory regime may ignore or even facilitate these aggressive police actions. The law governing police use of force in the United States derives in large part from the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures. As construed by the United States Supreme Court, the Fourth Amendment provides police wide leeway in using deadly force, making custodial arrests, and stopping and frisking individuals. While state and local police departments can develop more restrictive rules, they often do not. Additionally, the remedies for violations of these rules are weak. The predominant remedy is exclusion of evidence, the impact of which falls primarily on the prosecutor and in any event only has a deterrent effect when evidence is sought. Civil and criminal sanctions have been significantly limited by the Supreme Court, particularly through the doctrine of qualified immunity (applied to individual officers) and the policy or custom defense (applied to municipalities). This minimal regulatory regime is one reason police-citizen encounters in the United States so often result in death or serious bodily harm to citizens, in particular those who are Black. The Article ends with a number of reform proposals.

Keywords: Policing; deadly force; arrests; stop and frisk; exclusionary rule; qualified immunity; consent decrees

Suggested Citation

Garrett, Brandon L. and Slobogin, Christopher, The Law on Police Use of Force in the United States (December 11, 2020). German Law Journal (2020), 21, Duke Law School Public Law & Legal Theory Series No. 2021-16, Available at SSRN: https://ssrn.com/abstract=3747215

Brandon L. Garrett (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7090 (Phone)

HOME PAGE: http://www.brandonlgarrett.com/

Christopher Slobogin

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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