Something is missing from the debate over police reform. Though police killings of black men have sparked a nationwide movement to stop police violence, the police can fairly ask whether they deserve all of the blame.
That’s not because current levels of police violence are warranted (they aren’t), or because policing is race neutral (it isn’t). It’s because the chief architects of American policing are not police departments; they’re courts. The movement for police reform should be joined by an equally ambitious movement for court reform.
Courts have shaped American policing by defanging the fourth amendment’s prohibition on “unreasonable searches and seizures”. Because the term “unreasonable” is unclear, courts have had to decide which police intrusions, beyond the blatantly arbitrary, go too far. And the US supreme court’s consistent answer has been that scarcely anything goes too far.
Perhaps most important, the court held in Whren v United States that the fourth amendment permits officers to use any violation, like a broken tail light, as a pretext to stop people they deem suspicious. This decision, which just reached its 20th anniversary, helped cement modern-day racial profiling.
Other rulings license the police to escalate the encounters they choose to initiate. In Atwater v Lago Vista, the court held that the police can arrest and jail people for any offense, no matter how minor. This decision authorizes routine physical force, instead of citations or summonses, for seatbelt violations, broken tail lights or Eric Garner’s sale of loose cigarettes.
The court has also held, in Graham v Connor and Tennessee v Garner, that officers can use serious force whenever they could reasonably fear for their safety. These rulings effectively sanction violence based on lenient suppositions about how a hypothetical officer could have felt, even if the actual officer who pulled the trigger acted recklessly or malevolently.
Finally, the supreme court has created doctrines that limit the consequences for violating the fourth amendment and, accordingly, undermine incentives for officers to honor it in the first place. These doctrines include qualified immunity from civil liability and permission to use some illegally obtained evidence.
Meanwhile, roughly 800 supreme court cases that mention the fourth amendment, precisely zero mention de-escalation.
So when a traffic stop results in tragedy, like the recent death of Philando Castile, court rulings lurk behind it like code in The Matrix. The Whren case helps to explain why the police stopped Castile 46 times. The Garner case helps to explain why, when Mr. Castile reached for his wallet, an officer reached for his gun. It is no exaggeration to say that, but for regrettable Fourth Amendment case law, Philando Castile might still be alive.
And for every police encounter that results in death, there are countless others that erode respect for law and increase civilian risk. As a criminal defense and civil rights lawyer, I have seen these cases first-hand. I’ve represented a man who was stopped after the police disabled their own radar and then “visually determined” that my client’s car was speeding; a man stopped by an officer who claimed to have received an anonymous face-to-face tip about my client, but who could not remember the gender of the supposed tipster; and a man stopped by an officer who claimed to have seen a “bulge” in his pocket, but who didn’t search the pocket supposedly containing the bulge.
In each case, my clients were black. In each case, courts sanctioned the police conduct. And in each case, sanctioning that conduct meant gambling with the bodies of everyone who seeks the fourth amendment’s protection, but especially black and brown people.
This is why we must seek to tear down existing fourth amendment architecture and replace it with cases more capable of deterring police violence. Public defenders and private lawyers should challenge existing precedent at every turn, and government lawyers should help. Instead of reflexively siding with police, federal and state solicitors general should tell courts that existing precedents should be reconsidered because they endanger people.
Although changing supreme court precedent might take time, a call for all courts to reckon with police violence can pay immediate dividends. For example, a federal appeals court in Boston recently confronted the case of a Swat officer who claimed that he had not violated the fourth amendment when he shot and killed Eurie Stamps, a black man who was lying on the ground with his hands up, because he hadn’t meant to pull the trigger.
Several civil rights groups, including the ACLU and the NAACP’s New England Area Conference, submitted an amicus brief that bluntly told the court how denying fourth amendment protection for reckless (though accidental) police killings would “imperil public safety,” especially in communities of color. The court agreed; it ruled against the officer, and its very first sentence described Stamps as an “innocent, elderly, African American man”.
Each new legal brief that adds to this call can, like a tweet marked #BlackLivesMatter, amplify the point that the lives of people confronted by the police really do matter, and that the obligation to value those lives does not fall only on the police. But the message to courts must be clear: “Every moment that fourth amendment law remains unchanged risks people’s lives.”