Policing the Emergency Room

75 Pages Posted: 11 Jun 2021 Last revised: 23 Jun 2021

See all articles by Ji Seon Song

Ji Seon Song

University of California, Irvine School of Law

Date Written: June 10, 2021

Abstract

The problems of policing extend beyond the street and into areas of our lives that are often hidden from view. This Article focuses on how policing affects people in one such place where they are particularly vulnerable: the emergency room. It explores how the courts’ interpretation of the Fourth and Fifth Amendments has resulted in the criminalization of the emergency room. The ER is where people go when they are vulnerable and injured. ERs play a crucial “safety-net” function for those who do not have access to other types of medical care. Yet courts have interpreted the ER as an extension of the public street, generally permitting the police to engage in highly intrusive searches and questioning there. The doctrine cannot account for the unique characteristics of the ER and the medical vulnerability of patients. Further, police investigations in the ER are enhanced by the participation of medical professionals who have existing professional norms as well as their own history and current evidence of bias and discrimination. Finally, the courts’ treatment of the ER as an extension of the street raises the same concerns of racialized street policing because of the convergence of police and marginalized groups in safety-net emergency rooms. The presence of police in the ER has a particularly pernicious effect in emergency rooms that have large percentages of racial minority and poor patients. Especially in these ERs, the doctrine’s blind eye to medical vulnerability also renders invisible the race and class dynamics undergirding policing and access to healthcare. I conclude by suggesting that the reasonable expectation of privacy standard should incorporate considerations of medical vulnerability and medical privacy. Further, as we question the harm or necessity of police presence in communities, we should conceptualize ERs as patient sanctuaries to achieve a better balance between the rights of vulnerable patients and public safety.

Keywords: Criminal Law, Criminal Procedure, Race and the Law, Policing, Criminalization of Poverty, Fourth Amendment, Fifth Amendment, Health Law, Poverty Law

Suggested Citation

Song, Ji Seon, Policing the Emergency Room (June 10, 2021). 134 Harvard Law Review 2646 (2021), Available at SSRN: https://ssrn.com/abstract=3864225

Ji Seon Song (Contact Author)

University of California, Irvine School of Law ( email )

401 E Peltason Dr.
Irvine, CA 92697
United States

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