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.
Issue 2
Waiver by Removal? An Analysis of State Sovereign Immunity
The Supreme Court has never definitively outlined the theoretical un- derpinnings of state sovereign immunity. The unresolved circuit split over whether a state waives immunity that it would otherwise retain by removing a case from state court to federal court provides a helpful lens to consider the broader doctrinal strands of state sovereign immunity. Under any conception of sovereign immunity, courts should reject a blanket waiver by removal rule that would require states to give up all immunity upon removal. It is imperative that courts make a distinction between substantive immunity and jurisdictional immunity. Even if removal is sufficient to waive jurisdictional immunity, it should not affect the underlying presence (or absence) of a cause of action. Additionally, courts should be careful to distinguish between personal jurisdiction and subject matter jurisdiction aspects of immunity, because the way courts conceive of sovereign immunity can impact how they answer the waiver by removal question. Correspondingly, states must take care to protect their sovereign immunity. Merely forbidding state courts from hearing causes of action brought against a state may not be sufficient to protect state immunity upon removal to federal court. States need to protect their immunity with both substantive and jurisdictional means.
When Thirteen is (Still) Greater Than Fourteen: The Continued Expansive Scope of Congressional Authority Under the Thirteenth Amendment in a Post-City of Boerne v. Flores World
This Note argues that any disconnect between the Supreme Court’s jurisprudence regarding Congress’s broad power to enforce the Thirteenth Amendment and its much narrower power to enforce the Fourteenth Amendment does not compel a reduction in the former. Several scholars have observed such tension, and they claim that it requires curbing Congress’s Thirteenth Amendment authority. This Note contends that even if that viewpoint is correct, focusing solely on the disjunction misses fundamental factors that preserve the Thirteenth Amendment as a vibrant font of congressional authority.
This Note grounds its argument in several sources. First, it discusses Congress’s broad authority, under any regime, to legislate against direct violations of the Thirteenth Amendment, and how this authority has gone unutilized. Next, it argues that unlike the Free Exercise Clause context that spawned the famed “congruence and proportionality” test for Congress’s Fourteenth Amendment power, which saw Congress and the Court literally clashing over that provision’s meaning, no such adversarial clash exists over the Thirteenth Amendment. Third, it demonstrates how the Thirteenth Amendment, due to the lack of a state-action requirement, presents fewer federalism problems than its counterpart.
Finally, this Note uses a case study to make the argument come to life. Examining the federal civil remedy for victims of gender-based violence that the Court struck down in United States v. Morrison, in part because it exceeded Congress’s Fourteenth Amendment authority, this Note argues how Congress, even under a congruence and proportionality test, could adopt that same legislation under the Thirteenth Amendment.