Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag. Or who can help but feel humbled by the courage of Rosa Parks, a seamstress, who was willing to be arrested rather than sit in the back of the bus?
But while these stories of everyday individuals acting with remarkable courage inspire us, we would hesitate to say that before a citizen can enjoy his or her constitutional rights, he or she must exhibit a similar fortitude. A close examination of Supreme Court cases, however, shows that the Court has imposed exactly such an expectation when it comes to the Fourth Amendment. The Court has repeatedly turned to the archetype of an idealized citizen—the “rugged individual” who will unflinchingly stand up to government authority—to define Fourth Amendment rights, and it has had disastrous consequences. The Court’s use of the rugged individual has created an unrealistic threshold for exercising one’s Fourth Amendment rights, which is a primary reason current Fourth Amendment doctrine has proven so impotent in addressing the violent police-citizen encounters that have erupted in cities across the country including Seattle, Chicago, Ferguson, and Baltimore, with each day’s headlines seemingly adding another city to the list.
This Article examines the Court’s use of the rugged individual archetype in its Fourth Amendment jurisprudence, demonstrating how instead of promoting values like dignity and autonomy that the archetype was intended to represent, it has actively undermined those values to devastating effect. Not only does the empirical evidence show that acting like the rugged individual is beyond the reach of most citizens when confronted by the police, but it also shows that, when applied to minority communities, the archetype creates an especially dangerous situation that alienates and effectively disenfranchises a large swath of citizens from their rights. The Article concludes by examining the various reasons the Court continues to rely on the rugged individual and why that reliance must change. In its place, the Article proposes a rights-bearing citizen as an archetype that far better promotes the Fourth Amendment’s underlying values—an archetype that presumes that every citizen, whatever their race, income, or neighborhood, desires to exercise their Fourth Amendment rights and aligns Fourth Amendment jurisprudence with the realities of a police-citizen encounter.65.3.3-Sundby