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.
Article
Crackdowns
The crackdown is the executive decision to intensify the severity of enforcement of existing laws or regulations as to a selected class of offenders or offenses. Each year, federal, state, and local prosecutors and agencies carry out thousands of crackdowns on everything from trespassing to insider trading to minimum-wage violations at nail salons. Despite crackdowns’ ubiquity, legal scholarship has devoted little attention to the crackdown and to the distinctive legal and policy challenges that crackdowns can pose.
This Article offers an examination and a critique of the crackdown as a tool of public law. The crackdown can be a benign and valuable law enforcement technique. But crackdowns can also stretch statutory authority to the breaking point, threaten to infringe on constitutional values, generate unjust or absurd results, and serve the venal interests of the law enforcer at the expense of the interests of the public. Surveying a spectrum of crackdowns from the criminal and administrative contexts, and from local, state, and federal law, this Article explores the many ways that crackdowns may quietly subvert democratic values.
The obvious challenge, then, is to discourage the implementation of pathological crackdowns, while also preserving the needed flexibility to enforce the law, within the context of a legal and political system that imposes sparse restraints on the crackdown choice. This Article locates a foundation for tackling this challenge in the requirement of “faithful” execution in Article II’s Take Care Clause and its cognate clauses in the state constitutions. The crackdown decision should be faithful—to statutory text and context, to the interests of the public, and to constitutional and rule-of-law values. By elaborating the content of this obligation, this Article supplies a novel normative framework for evaluating the crackdown—and a much-needed legal platform for governing it. Cutting sharply against the grain of modern law, this Article calls for a broad rethinking of the principles and constraints that should frame the executive’s power to selectively and programmatically augment enforcement.
Sovereign Immunity and the Constitutional Text
Despite the opprobrium heaped on the Supreme Court’s modern doctrine of state sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule—a “backdrop”—that is not directly incorporated into the Constitution, but is shielded by the Constitution from most kinds of change.
That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt, the Court nearly overruled Hall, and its future hangs by a single vote. The backdrop theory suggests that Hall is rightly decided, consistent with modern doctrine, and should not be overruled.