The Constitution of Police Violence


Police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. From the 1960s to the present, federal courts have persistently endorsed a very expansive police authority to make seizures—to stop persons, to arrest them, and to use force. This Article reveals the full scope of this Fourth Amendment seizure authority. Suspicion plays a critical and familiar role in authorizing seizures, but less attention has been given to the equally important concepts of resistance and compliance. Demands for compliance with officers and condemnations of resistance run throughout constitutional doctrine. Police are authorized to meet resistance with violence. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) protected elsewhere in American law. Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire new proposals to reduce and redistribute those risks. Instead of condemning all resistance, constitutional doctrine could and should protect certain forms of non-violent resistance both in police encounters and in later court proceedings. Embracing resistance could help constrain police authority and mitigate racial disparities in criminal justice, and surprisingly enough, it may yet reduce violence.

About the Author

Professor, Brooklyn Law School; Visiting Professor, Harvard Law School (Fall 2017).

By uclalaw