Read on Twitter
My paper, How the Fourth Amendment Frustrates the Regulation of Police Violence, has been published in the @EmoryLawJournal.
https://scholarlycommons.law.emory.edu/elj/vol70/iss3/1/
Part I describes relevant 4A law.
Part II offers four reasons why the 4A isn't an effective form of regulation.
https://scholarlycommons.law.emory.edu/elj/vol70/iss3/1/
Part I describes relevant 4A law.
Part II offers four reasons why the 4A isn't an effective form of regulation.
A: The 4A regulates seizures. A surprising number of UoF incidents aren't seizures.
@brooklynlaw Prof. Alice Ristroph made a similar point in prior work ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2847300).
@brooklynlaw Prof. Alice Ristroph made a similar point in prior work ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2847300).
B: The Graham factors do not provide nearly the guidance it is assumed they do.
@UVALaw Prof. Rachel Harmon made a similar observation in prior work ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1129022).
@UVALaw Prof. Rachel Harmon made a similar observation in prior work ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1129022).
C: The Graham framework excludes relevant information, with the factors too often treated as exhaustive when they were never intended to be.
@brandonlgarrett & I wrote on this point earlier ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754759).
@brandonlgarrett & I wrote on this point earlier ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754759).
D: Unlike many other areas of 4A law, where the Court has defined sometimes squishy terms with care, the Court does not define important modifiers (like "significant," "substantial," and "immediate") in the UoF context.
These limits to 4A jurisprudence kinda make sense--the law was developed to regulate *seizures,* not UoF specifically. And state law and agency policy can always clean up at the margins.
Except, as Part III explains, state law & agency policy sometimes *adopt* the 4A standard.
Except, as Part III explains, state law & agency policy sometimes *adopt* the 4A standard.
States sometimes look to 4A law to determine the scope and contours of state UoF law. Florida, Maryland, Ohio, and Vermont, for example, basically incorporated the 4A standard as a matter of state law.
Police agencies sometimes do the same as a matter of policy.
@brandonlgarrett & I previously talked about this ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754759), as have @UCBerkeley Prof. Osagie Obasogie and scholar Zachary Newman ( https://www.law.berkeley.edu/wp-content/uploads/2018/03/Paper-Obasogie.pdf)
@brandonlgarrett & I previously talked about this ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2754759), as have @UCBerkeley Prof. Osagie Obasogie and scholar Zachary Newman ( https://www.law.berkeley.edu/wp-content/uploads/2018/03/Paper-Obasogie.pdf)
Part IV explains why that is a problem. The legal interests and policy concerns that underlie state law or agency policy are--or should be--*different* than those that underlie the 4A rules.
4A law is about limited gov't power. It isn't about violence by or against ofcs or the physical well-being of ofcs and comm'y members. *State law* is often concerned with such matters, though.
And police agencies have a set of interests that are distinct from the interests underlying the 4A standard.
The article concludes that state law and agency policy is critical to effectively regulate police UoF, but that the 4A has problematically "spilled over" into the sub-constitutional frameworks.
The solution is straight-forward (but not simple as a political or cultural matter): state law and agency policy should develop independently of 4A jurisprudence.
Happy to chat as time allows, but don't be surprised if you @ me and I tell you to read the article!
@EmoryLawJournal link: https://scholarlycommons.law.emory.edu/elj/vol70/iss3/1/
@SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561238
@EmoryLawJournal link: https://scholarlycommons.law.emory.edu/elj/vol70/iss3/1/
@SSRN link: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3561238
