The Expressive Fourth Amendment
53 Pages Posted: 22 Mar 2021 Last revised: 12 Apr 2021
Date Written: 2021
After the eight minute and forty-six second video of George Floyd’s murder went viral, cities across the country erupted in mass protests with people outraged by the death of another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police – like warriors against enemy forces – confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under Section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first part of the article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second part of this article discusses how courts currently evaluate, in § 1983 actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor by reviewing circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation. This part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third part of this article argues that the Fourth Amendment mandates that courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the framer’s intent and the Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth part discusses the difference an expression-specific Fourth Amendment – the expressive Fourth Amendment – reasonableness test would have made in a protest case.
Keywords: Section 1983, Civil Rights Act, civil rights, Graham v. Connor, protest, policing, fourth amendment, criminal procedure, first amendment, expressive conduct, George Floyd, protest policing, police brutality, Black Lives Matter, BLM, excessive force
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