What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force “continuum” that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself to defining appropriate police uses of force. People might assume that the U.S. Constitution protects citizens against completely unjustified uses of deadly force. They would be wrong to expect clear constitutional rules either, particularly in the wake of the U.S. Supreme Court’s ruling in Graham v. Connor. Can the Fourth Amendment doctrine be revitalized? This Article begins by excavating key lessons from an earlier moment in time when the Supreme Court did, after careful consideration, adopt in Tennessee v. Garner constitutional rules based on the then-new field of police tactics. Today, where can we turn to develop sound guidance for police use of force? Police tactics have advanced considerably in the decades since, as has policing technology. We conducted an empirical analysis of the force policies of the fifty largest policing agencies in the United States, and found that many agencies lacked guidance on key subjects, such as the need to provide verbal warnings before using force. However, we identify a consistent approach among prominent agencies that adopt detailed policies incorporating tactical methods to de-escalate and minimize the need to use force, some in response to Department of Justice consent decrees. We also find real promise in lower court rulings that rely on tactical research and policy when assessing liability of police. This Article develops a theory of police use of force grounded in the growing body of police-tactics research designed to accomplish law enforcement goals while protecting the lives of officers and citizens. The courts, law enforcement, and the public all desperately require a revitalized constitutional standard regulating police use of force: It is time that we adopt a tactical Fourth Amendment.
(Un)limiting Administrative Review: Wind River, Section 2401(A), and the Right to Challenge Federal Agencies
In eight federal circuits, a person’s right to sue a federal agency may be time-barred before it exists—an odd result made possible by the Wind River doctrine. This Note argues that the doctrine is wrong as a matter of interpretation, despite its widespread acceptance.
Jettisoning “Jurisdictional”: Asserting the Substantive Nature of Supremacy Clause Immunity
Under the doctrine of Supremacy Clause immunity, federal officers generally cannot be prosecuted for state crimes committed while carrying out their duties. This much is well established. What has escaped the notice of the courts, however, is the nature of the immunity. Though they refer to it as “jurisdictional,” it is in fact substantive.
This is no small error. There is a difference between substantive and jurisdictional immunities, yet the current characterization of Supremacy Clause immunity glosses over it. And this distinction runs even deeper: Substantive immunities go to the merits of a case, which in turn relate to the legislature’s power to enact laws. Jurisdictional immunities, by contrast, implicate only a court’s power to rule on the merits.
The extent of this mischaracterization has been missed because it is so deeply seated. There are three contributors to this problem: the Supreme Court’s once-expansive conception of jurisdiction, the lack of a unifying theory of immunities, and the nature of Supremacy Clause immunity’s founding cases.
This mischaracterization presents fundamental semantic difficulties, as well as four practical risks of harm to the parties. First, a court may incorrectly raise the immunity sua sponte. Second, a court may improperly refuse to consider matters of equity or fairness in determining whether the immunity applies. Third, a court may unduly revisit a state judgment on the immunity’s applicability. Finally, double jeopardy would not protect the officer should a court dismiss the prosecution based on Supremacy Clause immunity.