Judicial Misreading of the Fourth Amendment Encourages Excessive Force and Institutional Discrimination

By: Samuel Goldsmith

With the subject of police brutality so prominent in the national consciousness, it is important to consider how judicial precedent enables and encourages the police to use excessive force in situations where no real threat presents itself.

The Fourth Amendment provides that “The right of the people to be secure in their persons…against unreasonable searches and seizures, shall not be violated….” Const. Amend. IV. The absolute right to be free from unreasonable seizures protects people from excessive force. See, e.g., Tennessee v. Gardner, 471 U.S. 1 (1985). But courts were left to decide when a police officer’s use of force crosses the threshold into an unreasonable seizure.

Rehnquist gave the currently prevailing answer in Graham v. Connor, 490 U.S. 386 (1989); see, e.g., Swann v. City of Richmond, 2009 WL 180291 (4th Cir. 2009). Unreasonable force, his majority opinion proclaimed, occurs when the severity of the constitutional violation (force) outweighs the government interest. Graham, 490 U.S. at 396. Rehnquist continued to use three factors to assess the government interest: (1) the severity of the victim’s suspected crime, (2) the victim’s amount of resistance to police authority, and (3) the level of immediate threat to officer safety. Id. at 396. These factors are designed to allow police officers to protect themselves in seemingly dangerous situations; they are not found in the Constitution. See Id. at 396.

Graham and its progeny rely on an invented limitation to the Fourth Amendment protection from excessive force that has no basis in the Constitutional text. The Fourth Amendment is best read from the victim’s perspective, not the police officer’s. Textually speaking, the Fourth Amendment does not contemplate a government need but instead confers a people-centric absolute right. See Const. Amend. IV (“The right of the people to be secure in their persons…against unreasonable seizures” (emphasis added)). It would be strange to read in the word “unreasonable” a sudden shift in perspective from an absolute right to a limit on the Government’s power; the Bill of Rights’ drafters demonstrated elsewhere their intention to limit Government’s powers directly. Compare Const. Amend. IV (“The right of the people to be secure in their persons…against unreasonable seizures, shall not be violated” (emphasis added)) with Const. Amend I (“Congress shall make no law respecting an establishment of religion….” (emphasis added)). “Unreasonable,” then, does not appear to bear on a government interest at all.

This analysis indicates that the Fourth Amendment’s protection must not be whittled away by balancing test. As Professor Kelman wrote, “We do not do cost-benefit analyses of freedom of speech or trial by jury…. The notion of human rights involves the idea that people may make certain claims to be allowed to act in certain ways, even if the sum of the benefits does not outweigh the sum of the costs.” Steven Kelman, Cost-Benefit Analysis: An Ethical Critique, 5 Regulation 33 (1981). Justice Scalia echoed this sentiment in finding an individual right to bear arms, proclaiming,

We know of no other enumerated constitutional right whose core protection has been subjected to a free-standing “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

Dist. of Columbia v. Heller, 554 U.S. 570, 634 (2012).

How did the Fourth Amendment’s protection against unreasonable seizures get left out? The policy driving Graham’s misreading depends on the premise that if police were forced to worry about strict constitutional controls they would be discouraged from actively preventing crime or keeping people safe in high-crime areas. Therefore, the argument goes, the police must receive constitutional protection for doing what they must.

This view is shortsighted. It assumes that a robust and enabled police force is indispensable for protecting the citizenry, or if dispensable it is the best option available. In fact the opposite might be true. High incarceration rates condemn people to a life in poverty and high-crime areas, and with astronomical recidivism rates there seems to be little crime reduction taking place. See, e.g., Adam Gopnik, The Caging of America, The New Yorker (2012). This is conventional wisdom. It takes imagination to argue that the Fourth Amendment requires this framework.

Instead, if protecting the citizenry by reducing crime is truly a mandate, perhaps the government must introduce wide-reaching social programs designed to reduce crime, from stable housing programs to social services and education to an effective economic safety net. Utah’s Housing First initiative has shown that this approach works—and saves the state a lot of money. See National Law Center on Homelessness and Poverty, No Safe Place 30 (2014), available at http://www.nlchp.org/documents/No_Safe_Place.

The current police and prison-centric vision, in contrast, segregates poor minorities and works to keep them poor. Perhaps that is why it is so popular.


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