How the Fourth Amendment Frustrates the Regulation of Police Violence

JurisdictionUnited States,Federal
Publication year2021
CitationVol. 70 No. 3

How the Fourth Amendment Frustrates the Regulation of Police Violence

Seth W. Stoughton

HOW THE FOURTH AMENDMENT FRUSTRATES THE REGULATION OF POLICE VIOLENCE


Seth W. Stoughton*


Abstract

Within policing, few legal principles are more widely known or highly esteemed than the "objective reasonableness" standard that regulates police uses of force. The Fourth Amendment, it is argued, is not only the facet of constitutional law that governs police violence, it sets out the only standard that state lawmakers, police commanders, and officers should recognize. Any other regulation of police violence is inappropriate and unnecessary.

Ironically, though, the Constitution does not actually regulate the use of force. It regulates seizures. Some uses of force are seizures. This Article explains that a surprising number of others—including some police shootings—are not. Uses of force that do not amount to seizures fall entirely outside the ambit of Fourth Amendment regulation. And when a use of force does constitute a seizure, the Fourth Amendment is a distressingly inapt regulatory tool. There is, in short, a fundamental misalignment between what the Fourth Amendment is thought to regulate and what it actually regulates, and there are good reasons to doubt the efficacy of that regulation even when it applies. Put simply, the Fourth Amendment is a profoundly flawed framework for regulating police violence.

The Constitution is not the only option. Police reformers have offered state law and police agency policies as promising regulatory alternatives. What has largely evaded academic attention, however, is the extent to which state courts and police agencies simply adopt or incorporate the constitutional standards into state law or agency policies. In this way, the Fourth Amendment's flaws have spilled over into the sub-constitutional regulation of police violence.

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This Article details the substantial shortcomings in constitutional jurisprudence, describes the problem of Fourth Amendment spillage, and argues that the divergent interests underlying the various regulatory mechanisms should lead state lawmakers and administrative policymakers to divorce state law and administrative policies from constitutional law. In doing so, it advances both academic and public conversations about police violence.

Introduction.............................................................................................523

I. The Fourth Amendment Regulation of Police Violence.......528
II. Fourth Amendment Flaws...........................................................534
A. Nothing to Seize Here: When Police Uses of Force ? Seizures ..................................................................................... 535
1. Attempts to Use Physical Force that Fail to Connect ........ 536
2. Physical Contact with an Unintended Person .................... 538
3. Physical Contact without the Intent to Restrain ................. 540
4. Physical Contact that Fails to Restrain.............................. 542
B. Crumbling Graham Factors ..................................................... 545
1. Analytical Red Herrings ..................................................... 546
2. Lack of Operational Definition .......................................... 550
3. Incompleteness ................................................................... 553
C. Getting Bogged down in the "Fact-bound Morass" ................ 556
D. Inconsistent and Undefined: The Reasonableness of Deadly Force ........................................................................................ 559
III. The Regulation of Police Violence & Fourth Amendment Spillage...........................................................................................561
A. State Law .................................................................................. 561
B. Agency Policy ........................................................................... 568
C. Police Culture ........................................................................... 572
IV. Cleaning Up The Spillage.............................................................577

Conclusion.................................................................................................584

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Introduction

Within policing, few legal principles are more widely known or highly esteemed than the "objective reasonableness" standard that regulates police uses of force. Over the last thirty years, Graham v. Connor1 has not only been quoted and cited thousands of times in litigation and judicial opinions, it has also featured prominently in police training and police-oriented publications.2

Today, Graham v. Connor is a clear example of police orthodoxy. When the Police Executive Research Forum (PERF) suggested in 2016 that police "[a]gencies should continue to develop best policies, practices, and training . . . that go beyond the minimum requirements of Graham v. Connor,"3 the backlash was swift and vehement. The International Association of Chiefs of Police (IACP) and the Fraternal Order of Police—organizations that are not typically bedfellows when it comes to positions on police policy—promptly released a joint statement "reject[ing] any call to require law enforcement agencies to unilaterally, and haphazardly, establish use-of-force guidelines that exceed the 'objectively reasonable' standard set forth by the U.S. Supreme Court . . . ."4 Police-oriented publications printed articles criticizing PERF's recommendations.5 Officers and union officials denounced police chiefs who supported those recommendations, with at least one union going so far as to call a vote of no confidence because of a chief's interest in implementing some of the PERF-backed reforms.6

There was a similar reaction in 2018 when California legislators proposed the Police Accountability and Community Protection Act, which would have authorized the use of deadly force only when it was "necessary to prevent

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imminent death or serious bodily injury to the officer or to another person."7 The California Peace Officers Association criticized the proposal for "rais[ing] the legal use of force standard" above that laid out in Graham v. Connor.8 As the president of the San Diego Police Officers Association wrote, "Abandoning the 'reasonableness' standard pertaining to a police officer's use of force set by [Graham] would greatly hinder law enforcement officers and therefore endanger the communities they serve"; anything other than continued reliance on the constitutional standard established in Graham would be "unrealistic and unacceptable . . . ."9

The message was clear: the Fourth Amendment is not only the source of constitutional law that governs police violence;10 it sets out the only standard that state lawmakers, police commanders, and officers themselves should recognize. Any additional regulation is unnecessary, if not dangerously counterproductive.

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Ironically, though, the Constitution does not actually regulate the use of force, at least not directly. The Fourth Amendment regulates seizures, and the relationship between seizures and uses of force is more complicated than it first appears. An officer seizes someone when the circumstances are such that a reasonable person would not feel free to terminate the encounter, either by leaving,11 or, in situations where leaving is not feasible, by disregarding the officer and going about their business.12 Such circumstances exist when officers intentionally acquire a degree of physical control over the subject through the subject's submission to a show of police authority or through the initiation of physical contact with the subject.13 Uses of force are regulated as seizures because they involve intentional physical contact.

But not always. Some uses of force are, indeed, seizures. Others are not. This Article is the first to point out the extent to which police uses of force are not seizures. While Fourth Amendment search jurisprudence can be quite sophisticated—or painfully over-complicated, depending on how charitable one is feeling—the line between seizures and uses of force has been so badly drawn as to have passed the point of absurdity. An officer who shoots at someone, but misses, for example, has unquestionably used force, but has not seized the subject (unless the subject submits).14 More problematically, appellate courts have held that even uses of force that physically connect with someone are not necessarily seizures. An officer who shoots someone other than their intended target has used force, but may not have seized anyone for Fourth Amendment purposes.15 Even when an officer shoots the intended target, courts may conclude that there has been no seizure if the subject is able to flee after being shot.16 Sometimes even a use of physical force that connects with and has the desired effect on the intended target does not constitute a seizure.17 In each of these cases, and many more, officers are intentionally using physical force, but their actions are not subject to Fourth Amendment regulation.

When a use of force does constitute a seizure, the Fourth Amendment is a distressingly inapt regulatory tool. As Rachel Harmon has observed, constitutional jurisprudence "regulating the use of force by police officers is

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deeply impoverished."18 The oft-cited "Graham factors"—the severity of the crime, whether the subject is actively resisting or attempting to flee, and whether the subject is threatening officers or others—were specifically offered by the Court as a guide to judicial evaluation of use-of-force incidents, but those factors have limited analytical value.19 At best, they serve as weak and potentially misleading proxies for the governmental interests that can justify the use of force by police, offering no guidance on what type of force or how much force officers can legitimately use in any given situation.20 Worse, although the Grah...

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