Disability's Fourth Amendment

Abstract

The Supreme Court’s Fourth Amendment jurisprudence is under-theorized in terms of issues relating to disability. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to address substantively how the vast scope of police discretion the Fourth Amendment affords renders individuals with disabilities vulnerable to policing and police violence. Although there has been robust engagement with theories of criminalization and social control in critiques of Fourth Amendment doctrine that address race and racism, thus far, only limited engagement with disability and its intersections with other current and historically marginalized subordinated identities has occurred.

This article centers disability as a lens for analysis in Fourth Amendment jurisprudence. In the article, I discuss the ways in which disability mediates interactions with law enforcement and how Fourth Amendment doctrine renders disabled people vulnerable to police intrusions and police violence. More specifically, the focus of my critique is on the Terry doctrine, consensual encounters, consent searches, and the objective reasonableness standard under Graham. Applying a disability and critical race lens to each these doctrines, taken together, demonstrates how Fourth Amendment doctrine both fails to adequately protect the constitutional rights of disabled people and reinforces a “normative bodymind” by rendering vulnerable to police surveillance, suspicion, searches, and force those persons whose physical and psychological conditions, abilities, appearances, behaviors, and responses do not conform to the dominant norm. By focusing in on how Fourth Amendment doctrine both erases disability and fails to adequately protect disabled people’s privacy and security interests, I suggest how the doctrine itself renders disabled people more vulnerable to policing and police violence.

Keywords: disability, Fourth Amendment, policing