WE CAN'T BREATHE: REIMAGINING EQUAL PROTECTION AS A COLLECTIVE RIGHT.

• Author: Raleigh, Alexandra L.

Introduction I. Performative Frame Analysis A. Frame Analysis 1. Rights Framing B. Performativity and Legal Framing C. Liberal Legalism as the Interpretive Context of Police Violence II. Police Violence and the Fourth Amendment Frame A. The Fourth Amendment Individual Rights Frame B. Performative Frame Analysis 1. Individualization of Police Violence's Victims and Harm 2. Reaffirmation of the Rights-Bearing Citizen as White 3. Distortion of the Causes of Police Violence III. Police Violence and the Equal Protection Frame A. The Equal Protection Individual Rights Frame B. Performative Frame Analysis IV. Recommendation: Reframe Equal Protection as a Collective Right A. Reconstructing the Nature of Police Brutality 1. Reframing Excessive Force as Gratuitous State Violence Police Brutality as the Deprivation of the Black Community's Entry Rights B. Broadening the Causes of Police Violence C. Reconceptualizing Equal Protection as Anti-Subordination D. Performative Analysis: The Enactment of Dissident Citizenship Conclusion: The Return of Injunctive Relief? George Floyd couldn't breathe.

We can't either.

We live in fear.

Fear of walking outside. Wearing a hoodie. Going for a jog. Sleeping in our own home. Existing.

Every day, a new hashtag. Every hour, a new injustice. Every second, more pain.

We don't deserve to live like this--and we continue to fight until white supremacy no longer permeates every corner of this country--until we can live full lives--freely.

--Black Lives Matter, "Rest in Power, Beautiful" (1)

INTRODUCTION

From Eric Garner (2) to Breonna Taylor (3) to George Floyd (4) to Tamir Rice (5) and Sandra Bland, (6) the seemingly endless deaths of Black individuals in the United States at the hands of the police recentered debates over the causes of police brutality in legal and popular commentary. Traditionally, police excessive force has been described in individualistic terms, as a problem of "bad apples" or rogue police officers who go beyond department regulation because of overt or implicit animosity towards Black people. (7) More recently, however, this narrative has been challenged by arguments that emphasize the structural dimensions of police brutality. Sociologists and socio-legal scholars in particular have highlighted the myriad ways in which structural forces such as gentrification, housing policies, environmental policies, and policing practices converge to increase Black Americans' exposure to police and risk of death at their hands. (8) Legal scholars further point to the nation's constitutional terrain as a structural dimension of excessive force, with a legal structure represented in Fourth Amendment jurisprudence that both enables and perpetuates state violence against communities of color by insulating officers via a "highly deferential" reasonableness standard and denying group-based remedies to its victims. (9)

At the heart of current debates over the causes of police excessive force are differing conceptions of the nature of police brutality, its causes, and its consequences. Is police brutality caused by intentional acts of prejudice of independent officers against communities of color? Or is such state violence the result of implicit biases or social forces? Further, what precisely is the harm that results when officer after officer kills a Black person? Is police brutality a harm confined to the individual victim, or is it a form of structural oppression, a harm experienced at and against the level of the collectivity? At a practical level, answers to these questions undoubtedly inform the legal vehicles by which victims of police brutality can secure justice and the types of remedies deemed necessary to redress the harm inflicted by state violence.

This Note critically analyzes the ways in which police brutality--as a rights violation--is currently framed by the Supreme Court and the implications of such rights framing for the pursuit of racial justice in the United States. Since Graham v. Connor, (10) the Supreme Court has largely framed police brutality through a Fourth Amendment individual rights frame, holding excessive force as a violation by a singular officer of a person's Fourth Amendment right against unreasonable seizure. (11) Increasingly dissatisfied with the Graham doctrine's inability to recognize and redress the structural dimensions of police brutality, scholars have called for a re-examination of the potential of the Equal Protection Clause of the Fourteenth Amendment as an alternative mechanism by which the courts can take the structural dynamics of excessive force into account. (12) Such calls, however, neglect the fact that police brutality under the Equal Protection Clause is similarly framed as a violation of an individual's right to equality before the law. That is, the Supreme Court has adopted individual rights framing of the right to equal protection of the law, solidified by the intentional-discrimination requirement of Washington v. Davis, (13) that constructs police brutality as an isolated harm caused by purposeful acts by individual officers motivated by racial prejudice.

Ultimately, this Note argues that reconstructing police brutality under an equal-protection frame will fail to acknowledge and redress the structural causes and consequences of police excessive force until both equal protection and police brutality are reframed in collective terms. In other words, only when the nature of police brutality against individuals in the Black community is understood as a violation of the Black community's collective right to equal protection, caused by structural practices and resulting in collective harms, can the Fourteenth Amendment offer Black people any kind of legal vehicle for the pursuit of racial justice in the context of state-sponsored violence.

Importantly, as many scholars aptly note, the potential of the Fourteenth Amendment in responding to police excessive force against communities of color is constrained by the current hold the Graham and Washington v. Davis doctrines have on Supreme Court jurisprudence. (14) While recognizing the apparent impracticality of equalprotection claims prevailing in court when such claims are framed as a collective right, particularly in light of the individualist, liberal-legalist cultural context in which Supreme Court reasoning is embedded, this Note asserts that reframing police brutality as a violation of the Black community's collective right to equality is not a futile endeavor. Adopting a performative perspective to rights framing, this Note argues that by declaring that Black people, as a community, have a right to equality, plaintiffs engage in a fundamentally political activity whose instrumental value extends beyond the realm of the courts. Rather, such rights claiming is, at its core, a political practice with constitutive and transformative effects on conceptions of issues related to identity, citizenship, and state-citizen relations. Thus, this Note examines not only the practical impact of framing police brutality in individual versus collective rights terms, but also the performative potential of such rights frames.

Part I of this Note briefly describes the performative approach to rights framing, which is then adopted in the subsequent analysis. A performative approach shifts focus from whether a particular rights claim reflects legal or moral reality to what is done in and by making a rights claim.

Part II examines the content of the dominant frame in current excessive-force jurisprudence--the Fourth Amendment individual rights frame solidified by the Court in Graham, which construed [section] 1983 (15) excessive-force claims as a violation of an individual's right to be free from unreasonable seizure. This Part's performative-frame analysis of the Graham doctrine and subsequent jurisprudence reveals the ways in which the causes and consequences of excessive force are framed in individualistic, ahistorical, and decontextualized terms that distort the lived reality of police brutality. The Court's reliance on the Fourth Amendment individual rights frame reinforces an atomized, colorblind conception of police brutality, its perpetrators, and victims.

Part III responds to scholarly calls to re-examine the potential of the Fourteenth Amendment's Equal Protection Clause, concluding that the Supreme Court treats equal-protection claims in similarly individualistic and decontextualized terms.

Part IV recommends that the legal community adopt an understanding of police brutality and the right to equal protection that is grounded in collective terms. This results in a reframing of the individual rights to be free from unreasonable seizure and equal protection of the law as the collective right to be free from gratuitous, racialized state violence. In doing so, this Part reconceptualizes the organizing beliefs of the equal protection frame in terms of structural racism, eschewing the individualistic focus of traditional racism that drives contemporary Fourth Amendment and equal-protection rights frames. Rather than locating the impetus for police excessive force in individual overt racial animus or implicit racial bias, a collective rights frame holds as the catalyst for excessive force a confluence of racially motivated structural practices that disproportionately expose communities of color to police use of force. While a discussion of the array of structural forces that contribute to the heavy burden of state violence experienced by the Black community is beyond the scope of this Note, this Part highlights the causal role of policing practices in driving contemporary police brutality. This Part also reconstructs the resultant harm of police brutality under a collective rights frame, drawing on interdisciplinary research to demonstrate the collective dimensions of such state violence within the Black community. The performative implications of such a collective rights framing are...