Constitutional Interpretation Without Judges: Police Violence, Excessive Force, and Remaking the Fourth Amendment

Article — Volume 105, Issue 2

105 Va. L. Rev. 425
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The national conversation concerning the resurgence of White supremacy and anti-Semitism after the 2017 Unite the Right rally in Charlottesville emerged in the context of other anti-racist social movements—most notably, efforts to draw attention to police violence and excessive force used against communities of color. Yet, despite the visibility created by this social movement, the frequency of fatal force has hardly changed. Moreover, excessive use of force remains extremely racialized, with African Americans accounting for forty percent of people shot and killed by police while only constituting fifteen percent of the population. Blacks are five times more likely to be shot by police than a White person.

Too many times the justice system has failed to hold police accountable—a reality tied to the discriminatory roots of policing in America. Mainstream legal thought suggests that the Fourth Amendment and judicial interpretations of “what counts” as unconstitutional use of force can serve as legal mechanisms that can protect minorities from police brutality. This widespread belief stems from the idea that federal courts serve as an interpretive body that is exogenous or external to police departments and dictates to them, in a top-down manner, which practices are permissible and when lines have been crossed. However, in a separate article, we engaged in an empirical assessment of the use of force policies from the seventy-five largest cities in the United States and then examined how these policies were used in constitutional litigation regarding excessive force. Rather than defining the meaning and scope of unconstitutional excessive force, we found that federal courts often referenced, relied upon, or deferred to the meaning of excessive force created by police departments in their use of force documents. Such deference explains, in part, why courts fail to hold police officers accountable when they abuse citizens. By ceding to police understandings of excessive force in defining the scope of Fourth Amendment protections, federal courts essentially allow police to make constitutional rules for themselves—what we call the endogenous Fourth Amendment.

While this may partially explain the lack of accountability, it also creates an opportunity. If courts are going to defer to police in defining the constitutional meaning of excessive force, then grassroots efforts to change police behavior can not only positively impact individual communities, but perhaps “filter up” to have a more synergistic effect in reshaping the constitutional rule. In this Article, we will discuss how grassroots efforts at remaking Fourth Amendment excessive force jurisprudence might work. Drawing upon the empirical research giving rise to the reform theory of procedural justice, we will discuss how efforts to work with police to use principles of safety and human dignity to rethink and redefine their use of force with communities might, in the context of existing doctrinal rules and at a large enough scale, create new standards that federal courts can rely on, refer to, or defer to and thereby remake constitutional meanings of excessive force in a way that consistently holds police accountable. In Part II, we further describe legal endogeneity and the ways in which it provides an alternative understanding of how the meaning of excessive force is produced. Part III then examines the literature on procedural justice and its response to the problem of police accountability. Part IV explores how the endogenous nature of Fourth Amendment excessive force jurisprudence in combination with efforts of procedural justice at the local level might, at a large enough scale, give federal courts a different baseline from which to reference in conceptualizing what constitutes excessive force. We then briefly conclude in Part V.

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  Volume 105 / Issue 2  


By Risa Goluboff
105 Va. L. Rev. 263

On Charlottesville

By Dayna Bowen Matthew
105 Va. L. Rev. 269

Reconceptualizing the Harms of Discrimination: How Brown v. Board of Education Helped to Further White Supremacy

By Angela Onwuachi-Willig
105 Va. L. Rev. 343

Procedural Justice, Legal Estrangement, and the Black People’s Grand Jury

By Brie McLemore
105 Va. L. Rev. 371