Remote Killing and the Fourth Amendment: Updating Constitutional Law to Address Expanded Police Lethality in the Robotic Age

Abstract

In the early morning hours of July 8, 2016, a loud boom echoed between the buildings in downtown Dallas, signaling both the end to a bloody massacre that took the lives of five Dallas-area police officers and the dawn of a new age in American law enforcement. Police officers had killed an armed suspect by affixing a bomb to a remotely controlled vehicle, driving it up to him from a position of relative safety, and detonating it. For the first time in American law enforcement history, police killed by remote control.

In the aftermath of the incident, much has been written on the evolving field of robotics and the moral, legal, and technological safeguards needed as autonomous, independent-decisionmaking robots are armed and begin patrolling American streets. While this scholarship is important for a future that is undoubtedly coming, the device used in Dallas was not such a robot; it was a remotely controlled vehicle, capable of nothing more than what its human operator commanded. In this Comment, I regard the remotely controlled vehicle as an extension of the officer controlling it and focus on the Fourth Amendment implications of the remote use of lethal force. I examine the current constitutional standard for analyzing the reasonableness of the use of force under Graham v. Connor, and I discuss why it falls short in situations in which the officer has time to consider her options, as any officer engaging an individual via remotely controlled vehicle undoubtedly does.

To address the shortfalls in current constitutional jurisprudence, I propose the Dallas test, an addendum to the Graham standard, that, while born of the analysis of the remote use of force, should be applied any time an officer has time to think and employs force. I argue that the deference courts give to the decisionmaking of officers on the scene must be tempered in circumstances in which an officer has time to consider her options and when alternative, less-lethal means of seizing the individual are available. In such circumstances, an officer’s considered decision to forgo nonlethal alternatives and employ deadly force must be scrutinized more strictly than the Graham standard currently prescribes. Finally, I examine the actions of Dallas police under the new standard I propose. Although I ultimately conclude their actions were reasonable and therefore constitutional, this Comment exposes the gaps in the current standard and proposes a new form that a reasonableness analysis should take when police use of force is not a split-second decision. It makes clear that remote policing is coming and that the current constitutional jurisprudence is ill-equipped to meet it.

65.4.4-Wanebo
By uclalaw