Dicta, Pretext, and Excessive Force: Toward Criminal Procedure Futurism

36 Pages Posted: 12 Feb 2024

See all articles by Frank Rudy Cooper

Frank Rudy Cooper

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: 2024

Abstract

Scholars have recently criticized Fourth Amendment pretext doctrine for leading to more police contact with Black and brown people and thus to racially disproportionate uses of excessive force. This Essay reveals the intersection of the Court’s pretext and excessive force doctrines by unearthing their shared roots in the 1973 United States v. Robinson search-incident-to-arrest opinion.

This Essay’s new insight is that Robinson contains what it calls a “dicta mine.” A dicta mine is (1) an unnecessary statement that (2) a Court silently recharacterizes as having already resolved an issue, (3) exploding it into a significant doctrine. The Robinson dicta mine claims, without support, that “it is of no moment that [officer] Jenks did not indicate any subjective fear of the Respondent or that he did not himself suspect that the Respondent was armed.” Citing Robinson’s dicta mine, the 1978 Scott v. United States. opinion takes Robinson’s aside and explodes it into a general principle that courts may not review officers’ subjective motivations. The 1989 Graham opinion then cites Scott, at the place where it cites Robinson’s dicta mine, for the proposition the anti-subjectivity principle is required in excessive force doctrine. Finally, the 1996 Whren opinion argues that Robinson and Scott had already “foreclose[d]” the possibility that the Fourth Amendment could consider police racial bias to be unreasonable. This Essay’s principal contribution to criminal procedure literature is being the first publication to demonstrate how excessive force and pretext doctrines are illegitimate because they rest upon the shaky foundation of Robinson’s dicta mine.

This Essay’s second contribution is its proposal that we should respond to the criminal procedure redemption—the systematic undoing of civil liberties, especially for racial minorities, that began in the early 1970s—by adopting a criminal procedure futurism perspective. The goals of this approach are to delegitimate anti-egalitarian doctrines in the present and create doctrinal principles for a second criminal procedure revolution in the future. To prepare for the future, law professors should discontinue teaching Robinson as a stand-alone search incident to arrest case. Instead, we should teach it contextually as an example of why and how to read opinions with a critical eye.

Keywords: Excessive Force, Dicta, Pretext, Fourth Amendment, Criminal Procedure

Suggested Citation

Cooper, Frank Rudy, Dicta, Pretext, and Excessive Force: Toward Criminal Procedure Futurism ( 2024). California Law Review, Vol. 112, Available at SSRN: https://ssrn.com/abstract=4709581

Frank Rudy Cooper (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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