Issue 6

The Fourth Amendment’s Hidden Intrusion Doctrine

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This Article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seeks to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This Article demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In doing so, I bring to light the Supreme Court’s “hidden intrusion doctrine.”

By failing to explicitly state that the degree of intrusion is a factor in the probable cause analysis, the Supreme Court injects ambiguity that has many consequences. Some lower courts and law enforcement agencies already balance the quantum or quality of evidence with the severity of intrusion, even without explicit Supreme Court guidance, but others do not. The ambiguity in the doctrine therefore fosters inconsistency and expands police discretion. Moreover, as technological advancements from facial recognition to digital searches reshape investigative techniques, the need for a clear articulation of the probable cause standard is increasingly urgent.

This Article suggests both doctrinal and policy-based proposals that would bring the Supreme Court’s intrusion doctrine out of the shadows and require deliberate consideration of the degree of intrusion in probable cause determinations. Such an approach would preserve law enforcement flexibility while safeguarding individual rights amidst evolving technological landscapes.

Introduction

In 2022, Alonzo Sawyer was arrested after facial recognition software generated a list of potential matches to surveillance images of a man who had recently assaulted a bus driver.1 1.Eyal Press, Does A.I. Lead Police to Ignore Contradictory Evidence?, New Yorker (Nov. 13, 2023), https://www.newyorker.com/magazine/2023/11/20/does-a-i-lead-police-to-ignore-contradictory-evidence.Show More Using the facial recognition software as the basis for probable cause, police arrested Mr. Sawyer and detained him for approximately a week with hardly any other investigation.2 2.Id.Show More After all, the image and software created a nexus between Mr. Sawyer and the crime. There was no question that the person depicted in the surveillance footage was the assailant.

The problem is that Mr. Sawyer was not the person in the image. After police arrested Mr. Sawyer, officers conducted several less invasive investigatory steps: police visited the house where he had been staying to search the premises for the clothing the assailant had been wearing in the surveillance photo and found nothing.3 3.Id.Show More They interviewed his relatives, who confirmed Mr. Sawyer’s alibi that he had been at home many miles away at the time of the assault.4 4.Id. Police also showed the surveillance photograph from the assault to Mr. Sawyer’s probation officer, who at first said he believed the photo was of Mr. Sawyer. Id. The probation officer, however, was told before he made the identification that Mr. Sawyer had been identified by facial recognition. Id. In addition, he had only met Mr. Sawyer wearing a COVID pandemic-era mask. Id. The probation officer later questioned his own identification and reached out to police to say that he had changed his mind—he no longer thought the surveillance image depicted Mr. Sawyer. Id.Show More These actions were not only far less intrusive than arresting Mr. Sawyer; they also revealed that the facial recognition software had been wrong.

Mr. Sawyer’s arrest turned on the definition of probable cause. Police used a match from new, relatively untested software to justify his arrest and detention for several days. Was that evidence enough to meet the probable cause standard to deprive him of his liberty, arguably the most severe intrusion implicated by the Fourth Amendment? What would have happened if police had been required to investigate further using less intrusive methods before arresting Mr. Sawyer? Could his week in jail have been avoided? Does the law require such an intermediate investigation when the only evidence is from new, untested technology?

This Article examines these questions through the lens of the Fourth Amendment’s probable cause standard, challenging the predominant understanding that the same quality or quantum of evidence—the evidentiary inputs—can satisfy the standard regardless of the degree of intrusion police want to exercise. The term probable cause comes directly from the text of the Fourth Amendment, which requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”5 5.U.S. Const. amend. IV (emphasis added).Show More Drawing on this text, probable cause has become the standard6 6.In this Article, I focus only on the Fourth Amendment intrusions that rely on probable cause to demonstrate how that analysis also includes the degree of intrusion, even though the Supreme Court does not explicitly acknowledge it as it does in the reasonable suspicion context. There are other types of search and seizure that do not require probable cause, such as searches incident to a lawful arrest, inventory searches, and sobriety checkpoints, which are not justified by any degree of suspicion that a specific person has committed a crime, see infra notes 16, 69, 104 and accompanying text, and so-called Terry stops, which are supported by reasonable suspicion, a lower standard than probable cause. See infra note 37.Show More by which law enforcement can, while investigating a crime, conduct three separate and distinct actions that implicate individuals’ privacy or liberty interests7 7.Law enforcement may also collect evidence through many different types of actions that require little, if any, individualized suspicion that evidence will be found in a particular place. See, e.g., United States v. Tuggle, 4 F.4th 505, 510–11 (7th Cir. 2021); Smith v. Maryland, 442 U.S. 735, 745–46 (1979); 18 U.S.C. § 2703(d) (allowing disclosure of certain electronic communications based on the government’s representation that records are “relevant and material to an ongoing criminal investigation”). Nevertheless, as discussed elsewhere in this Article, the probable cause standard is required for many of the actions law enforcement conduct that most deeply intrude into individuals’ privacy. See infra Section I.A.Show More: arrest,8 8.See, e.g., Maryland v. Pringle, 540 U.S. 366, 368 (2003). Notably, police do not need a warrant to arrest someone in public, as long as the arrest is based on probable cause. United States v. Watson, 423 U.S. 411, 423–24 (1976).Show More search of a constitutionally protected area,9 9.See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1983).Show More and seizure of evidence.10 10.See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). Probable cause is also the standard for many other iterations of these basic intrusions. See infra notes 20–25 and accompanying text.Show More

Most scholars would say that the same standard of probable cause applies11 11.See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.3(a), at 118 n.8 (4th ed. 2015) (“Thus, in Spinelli v. United States, 393 U.S. 410 . . . (1969), where the issue was whether the challenged search warrant had been issued on probable cause, the Court found its earlier decision in Draper v. United States, 358 U.S. 307 . . . (1959), involving grounds to arrest, to be a ‘suitable benchmark’ for resolving that issue. Similarly, Illinois v. Gates, 462 U.S. 213 . . . (1983), which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well. State v. Schroeder, 450 N.W.2d 423 (N.D. 1990).”). The treatise authors note that the question of “probable cause of what” will differ in various contexts, but the general quantum of evidence and the analysis is the same. Id. § 3.3(a). See also Craig S. Lerner, The Reasonableness of Probable Cause, 81 Tex. L. Rev. 951, 953–54 (2003) (“[P]robable cause is widely viewed in the legal community as a fixed standard.”).Show More regardless of whether police wanted to get a warrant for Mr. Sawyer’s phone records or arrest him. I argue that the law requires more, or stronger, evidence to justify a greater intrusion into an individual’s privacy or liberty than the evidence necessary to justify a lesser intrusion. Under such an approach, for example, the facial recognition match might, alone, provide probable cause to obtain phone records, but not to arrest Mr. Sawyer and deprive him of his liberty.

In this Article I show that, contrary to widespread assumptions, the Supreme Court has implicitly acknowledged that whether probable cause exists to justify any given search or seizure depends in part on the degree of intrusion the particular search or seizure entails. For example, the Court has required more or stronger evidence to justify the search of a home or a custodial arrest than it has for the search of a car, even though “probable cause” is the standard for all three. But the assumption that the degree of intrusion does not factor into the totality of the circumstances12 12.See Gates, 462 U.S. at 246.Show More test used to evaluate probable cause is understandable because the Supreme Court has failed to say so explicitly. This Article identifies and defines these considerations in what I term the Fourth Amendment’s “hidden intrusion” doctrine.

The Supreme Court’s vagueness on its intrusion doctrine and the ensuing failure of lower courts and law enforcement to consistently consider the degree of intrusion in determining whether probable cause exists have injected ambiguity that has many consequences,13 13.See Section I.C.Show More including arrests like Mr. Sawyer’s. It allows police to proceed less cautiously, moving straight to an arrest without any intermediate investigation. It gives cover to police who arrest when they could first search to confirm their suspicions, and it allows them to conduct a more intrusive search when a less intrusive search would suffice. It insulates police decision-making from judicial review and civil liability. It sows confusion for trial courts applying the probable cause standard, for judges reviewing warrant applications, and for officers on the street trying to conduct police work that comports with the Fourth Amendment. It undermines transparency and consistency in the application of the probable cause standard. It generally expands police power.

Though some scholars have argued that balancing the quantum or quality of evidence collected by police with the degree of intrusion involved in a search or seizure should be part of the Fourth Amendment analysis,14 14.See Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John’s L. Rev. 1053, 1053–54 (1998) [hereinafter Slobogin, Let’s Not Bury Terry] (“That framework, which I call the proportionality principle, is very simple: A search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action.”); Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1343 (2020). Over thirty years ago, Christopher Slobogin recognized the value of incorporating the degree of intrusion into search and seizure analysis in his article imagining how the government would consider a search and seizure doctrine if the Fourth Amendment did not exist. See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 49–50 (1991) [hereinafter Slobogin, The World Without a Fourth Amendment]. Slobogin argued that the “proportionality principle” was not part of existing Fourth Amendment doctrine but represented the proper balance of interests between the State and the populace. Id. (“Put another way, because the cost to individual interests of a mistake by the police is greatest when the intrusion is greatest, and diminishes as the intrusion lessens, the tolerance for such mistakes should vary inversely with the level of intrusion. Note further that the cost to the state of a police mistake is also greatest when the intrusion is greatest, because the public is more likely to perceive unnecessary police intrusions as illegitimate when they are significant.” (emphasis omitted)). This Article argues that Slobogin’s “proportionality principle” is already being applied by the courts, even if it has never been explicitly incorporated into Fourth Amendment doctrine.Show More this Article is the first to argue that such balancing is already part of the jurisprudence. The common, unitary understanding of probable cause—that one should entirely ignore the degree of intrusion in deciding whether probable cause exists to justify a particular search or seizure—misapplies important nuances in Supreme Court doctrine.

In addition, I show that there is no need for the Supreme Court’s intrusion doctrine to remain hidden and that bringing it to light would increase transparency and consistency in decisions made by lower courts and law enforcement. There is in fact broad understanding among system actors that the degree of intrusion is relevant in evaluating whether a search or seizure is justified. Some courts and police are already doing such balancing on an ad hoc basis,15 15.See infra Section II.A.Show More requiring more evidence to justify the search of a home than a car, or to justify a search of someone’s crotch than less private parts of their body. But without guidance from the Supreme Court sanctioning such consideration, they are merely acting on the instinct that the degree of intrusion should be part of the search and seizure calculus. The result is a hodgepodge legal doctrine of probable cause that rarely discusses degree of intrusion, even if it is implicitly part of the analysis. Police and judges are left with no coherent limiting principle—some follow their instinct that more or more reliable evidence should be necessary to justify a greater intrusion into individuals’ privacy, but others do not.

An examination of how the police apply the probable cause standard in two areas of emerging technology provides useful case studies for the necessity of a clear intrusion doctrine. As untested technologies, like the facial recognition technology used in Mr. Sawyer’s case, are used to develop leads that then justify searches, seizures, and arrests, courts and police need guidance to help understand how new technologies should be used in the probable cause analysis. A clear intrusion doctrine would guide courts and policy-makers as they respond to an ever-changing technological law enforcement landscape, providing guardrails that protect citizens from undiscovered flaws in new technology while still allowing law enforcement agencies to use new technology. An explicit understanding of how the degree of intrusion applies in the probable cause analysis would encourage police to tread carefully with untested technology. It would encourage them to search before they arrest and to minimize harm from unanticipated errors.

Likewise, bringing the Supreme Court’s hidden intrusion doctrine into the light—by making clear that whether probable cause exists depends in part on the degree of intrusion of a particular search or seizure—could help solve the vexing problems around seizure and search of cell phones. As with any physical evidence they seize in an investigation, police must generally have probable cause to seize a cell phone that they believe contains evidence of a crime.16 16.See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). There are some limited circumstances in which the seizure of physical evidence need not be based on probable cause, such as in the course of an inventory search. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987).Show More As the Supreme Court recognized in Riley v. California, “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”17 17.Riley v. California, 573 U.S. 373, 403 (2014).Show More Police may have reason to believe that some particular type of evidence may be stored in a cell phone, but does that give them license to search every part of the phone? And if it does, should it? Courts authorizing search warrants have grappled with this question and have come to differing opinions on whether the same evidence to seize a phone or search part of it would justify a search of the entire phone.18 18.See infra notes 239–41.Show More Recognition of the Fourth Amendment’s hidden intrusion doctrine would help resolve this tension, requiring more evidence to justify a search of a phone than a seizure of a phone.

In a world in which emerging technologies like facial recognition technology are implemented quickly, often before any meaningful analysis of their reliability or risks, or where such technologies allow police to glean an entirely different degree of information about individuals’ private lives as done through phone searches, courts and policy-makers should be willing to move more slowly. This Article argues that in light of the Supreme Court’s hidden intrusion doctrine, they must move more slowly, and it proposes an approach that I call “graduated probable cause.” Under this approach, to comply with the (previously hidden, now explicit) intrusion doctrine, police would have to collect more or stronger evidence to justify greater intrusions like an arrest or a search of a home. If they had less evidence, or less reliable evidence, they could conduct a lesser intrusion, such as the search of a car or seizure of a cell phone, as an intermediate step. Such a process would maintain law enforcement flexibility, but also protect individuals’ privacy and liberty interests in the face of a constantly changing technological landscape.

This Article proceeds in four Parts. In Part I, I provide an overview of probable cause, examining both how the Supreme Court has defined the standard and how previous scholars have attempted to untangle that messy doctrine, to illustrate that Supreme Court probable cause precedent already implicitly considers the degree of intrusion a particular search or seizure makes into an individual’s privacy or liberty. In Part II, I examine case law from lower federal courts and state courts to demonstrate how, despite broad statements about a unitary standard, courts have already drawn distinctions in practice about the quantum of evidence necessary to provide probable cause based on the degree of intrusion. I also demonstrate how police trainings and policies can either reinforce the idea of a unitary standard to preserve police discretion or provide a model demonstrating the workability of a probable cause analysis that does include consideration of the degree of intrusion. In Part III, I examine in depth the case studies of facial recognition software and phone searches to demonstrate the confusion created by a unitary probable cause standard and the ways in which explicit consideration of the degree of intrusion could improve probable cause analysis in a rapidly changing digital environment. In Part IV, I articulate possible doctrinal and policy solutions for rearticulating the probable cause standard based on the degree of intrusion. Acknowledging that the degree of intrusion is already implicitly part of the analysis, I argue for explicitly incorporating it into the totality of the circumstances analysis that courts already apply. In other words, the courts do not need a new framework; they just need to honestly articulate the interest balancing that already drives decisions. I also set forth policy proposals for police, based on a graduated approach to investigation already endorsed by some law enforcement agencies, that would direct police to first conduct less intrusive searches and seizures in circumstances where they are relying on less, or less reliable, evidence.

  1.  Eyal Press, Does A.I. Lead Police to Ignore Contradictory Evidence?, New Yorker (Nov. 13, 2023), https://www.newyorker.com/magazine/2023/11/20/does-a-i-lead-police-to-ignore-contradictory-evidence. ↑
  2.  Id. ↑
  3.  Id. ↑
  4.  Id. Police also showed the surveillance photograph from the assault to Mr. Sawyer’s probation officer, who at first said he believed the photo was of Mr. Sawyer. Id. The probation officer, however, was told before he made the identification that Mr. Sawyer had been identified by facial recognition. Id. In addition, he had only met Mr. Sawyer wearing a COVID pandemic-era mask. Id. The probation officer later questioned his own identification and reached out to police to say that he had changed his mind—he no longer thought the surveillance image depicted Mr. Sawyer. Id. ↑
  5.  U.S. Const. amend. IV (emphasis added). ↑
  6.  In this Article, I focus only on the Fourth Amendment intrusions that rely on probable cause to demonstrate how that analysis also includes the degree of intrusion, even though the Supreme Court does not explicitly acknowledge it as it does in the reasonable suspicion context. There are other types of search and seizure that do not require probable cause, such as searches incident to a lawful arrest, inventory searches, and sobriety checkpoints, which are not justified by any degree of suspicion that a specific person has committed a crime, see infra notes 16, 69, 104 and accompanying text, and so-called Terry stops, which are supported by reasonable suspicion, a lower standard than probable cause. See infra note 37. ↑
  7.  Law enforcement may also collect evidence through many different types of actions that require little, if any, individualized suspicion that evidence will be found in a particular place. See, e.g., United States v. Tuggle, 4 F.4th 505, 510–11 (7th Cir. 2021); Smith v. Maryland, 442 U.S. 735, 745–46 (1979); 18 U.S.C. § 2703(d) (allowing disclosure of certain electronic communications based on the government’s representation that records are “relevant and material to an ongoing criminal investigation”). Nevertheless, as discussed elsewhere in this Article, the probable cause standard is required for many of the actions law enforcement conduct that most deeply intrude into individuals’ privacy. See infra Section I.A. ↑
  8.  See, e.g., Maryland v. Pringle, 540 U.S. 366, 368 (2003). Notably, police do not need a warrant to arrest someone in public, as long as the arrest is based on probable cause. United States v. Watson, 423 U.S. 411, 423–24 (1976). ↑
  9.  See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1983). ↑
  10.  See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). Probable cause is also the standard for many other iterations of these basic intrusions. See infra notes 20–25 and accompanying text. ↑
  11.  See 2 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 3.3(a), at 118 n.8 (4th ed. 2015) (“Thus, in Spinelli v. United States, 393 U.S. 410 . . . (1969), where the issue was whether the challenged search warrant had been issued on probable cause, the Court found its earlier decision in Draper v. United States, 358 U.S. 307 . . . (1959), involving grounds to arrest, to be a ‘suitable benchmark’ for resolving that issue. Similarly, Illinois v. Gates, 462 U.S. 213 . . . (1983), which significantly altered the probable cause formula in a search warrant context, has readily been deemed applicable to arrest warrants as well. State v. Schroeder, 450 N.W.2d 423 (N.D. 1990).”). The treatise authors note that the question of “probable cause of what” will differ in various contexts, but the general quantum of evidence and the analysis is the same. Id. § 3.3(a). See also Craig S. Lerner, The Reasonableness of Probable Cause, 81 Tex. L. Rev. 951, 953–54 (2003) (“[P]robable cause is widely viewed in the legal community as a fixed standard.”). ↑
  12.  See Gates, 462 U.S. at 246. ↑
  13.  See Section I.C. ↑
  14.  See Christopher Slobogin, Let’s Not Bury Terry: A Call for Rejuvenation of the Proportionality Principle, 72 St. John’s L. Rev. 1053, 1053–54 (1998) [hereinafter Slobogin, Let’s Not Bury Terry] (“That framework, which I call the proportionality principle, is very simple: A search or seizure is reasonable if the strength of its justification is roughly proportionate to the level of intrusion associated with the police action.”); Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1343 (2020). Over thirty years ago, Christopher Slobogin recognized the value of incorporating the degree of intrusion into search and seizure analysis in his article imagining how the government would consider a search and seizure doctrine if the Fourth Amendment did not exist. See Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 49–50 (1991) [hereinafter Slobogin, The World Without a Fourth Amendment]. Slobogin argued that the “proportionality principle” was not part of existing Fourth Amendment doctrine but represented the proper balance of interests between the State and the populace. Id. (“Put another way, because the cost to individual interests of a mistake by the police is greatest when the intrusion is greatest, and diminishes as the intrusion lessens, the tolerance for such mistakes should vary inversely with the level of intrusion. Note further that the cost to the state of a police mistake is also greatest when the intrusion is greatest, because the public is more likely to perceive unnecessary police intrusions as illegitimate when they are significant.” (emphasis omitted)). This Article argues that Slobogin’s “proportionality principle” is already being applied by the courts, even if it has never been explicitly incorporated into Fourth Amendment doctrine. ↑
  15.  See infra Section II.A. ↑
  16.  See, e.g., Chambers v. Maroney, 399 U.S. 42, 51–52 (1970). There are some limited circumstances in which the seizure of physical evidence need not be based on probable cause, such as in the course of an inventory search. See, e.g., Colorado v. Bertine, 479 U.S. 367, 371 (1987). ↑
  17.  Riley v. California, 573 U.S. 373, 403 (2014). ↑
  18.  See infra notes 239–41. ↑

Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine

The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial relief in the upcoming election cycle; the provisions of federal law that would normally safeguard voting rights, govern redistricting, and supervise how a state can conduct its elections are paralyzed until after election day. Born and raised on the shadow docket, the Principle has been underdeveloped by the Supreme Court. The Court has provided little guidance as to what triggers the Principle or how it will be applied in future cases. And, in recent years, the doctrine has become increasingly powerful in shaping election law. With the 2024 elections quickly approaching, this Note seeks to shed light on Purcell.

The goals of this Note are twofold. First, I suggest that courts and scholars have been thinking about Purcell incorrectly. I argue that Purcell cannot be justified on the grounds of preventing voter confusion—as the case law and scholarship have suggested—but instead is better explained by federalism. Under this conception, the Court’s historic applications of the doctrine make more sense. Second, I provide a new framework for understanding what triggers Purcell. In deciding whether the Purcell Principle should be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. I provide four conditions for courts to consider in determining whether injunctive relief is disruptive. But these conditions can also provide insight to future litigants making decisions about where, when, and how to bring their election claims to avoid running into Purcell’s snare.

Introduction

On January 24, 2022, two decisions1 1.Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam),aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487.Show More of the U.S. District Court for the Northern District of Alabama held that the districting plan adopted by the State of Alabama for its 2022 congressional elections was “substantially likely” to violate Section 2 of the Voting Rights Act (“VRA”).2 2.Singleton, 582 F. Supp. 3d at 936.Show More The court preliminarily enjoined Alabama from using that map in the forthcoming election and required the state legislature to enact a new plan with a second Black-majority congressional district.3 3.Id.Show More

Two weeks later, and some nine months before the general election, however, the U.S. Supreme Court stayed the district court’s decision, authorizing Alabama to nevertheless move forward with its tarnished map in November.4 4.Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.).Show More The only rationale provided for this stay came not from the Court—which issued an unexplained, unsigned order on its shadow docket5 5.Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”).Show More—but a concurrence from Justice Kavanaugh.6 6.Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More His basis for lifting the injunction rested on the Purcell Principle, a “bedrock tenet of election law” instructing that “federal district courts ordinarily should not enjoin state election laws in the period close to an election” and “federal appellate courts should stay injunctions when . . . lower federal courts contravene that principle.”7 7.Id. at 879–80.Show More

The effect of the Court’s order was to allow the map to apply to the 2022 elections, but with future elections governed by its decision on the merits.8 8.Id. at 882.Show More The map, enacted by a Republican-controlled legislature and signed by a Republican governor,9 9.Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR].Show More produced a safe Republican seat as opposed to one that likely would have elected a Democrat.10 10.Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG].Show More So on election day—as expected without the additional Black-majority district—six Republicans and one Democrat were elected to the U.S. House of Representatives from Alabama.11 11.State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD].Show More

But months after the election had been held, the Supreme Court reversed course. A majority affirmed the district court’s decisions and agreed that Alabama’s plan was indeed unlawful.12 12.See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023).Show More As a result, the invocation of Purcell provided the State with a one-time get-out-of-jail-free card; the Court allowed Alabama to use its map in the 2022 midterms before an adverse decision later on the merits. Scholars have criticized the Court’s use of the Purcell Principle—both on theoretical grounds and its application in this case specifically.13 13.See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021).Show More Indeed, some have even argued that the Republican Party owes its control of the House of Representatives in the 118th Congress to the Supreme Court’s intervention in redistricting actions like this one leading up to the 2022 elections.14 14.Murray & Vladeck, supra note 10.Show More

That the Purcell Principle is controversial is perhaps unsurprising. When the Principle operates, it creates a “presumptive categorical bar”15 15.Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More to federal judicial relief in the upcoming election cycle. The provisions of both federal constitutional and statutory law that would normally protect voting rights, govern redistricting, and otherwise supervise how a state can conduct its elections are essentially put on hold until after the election at hand. Given the severity and categorical nature of its effect, great weight is thus placed on what triggers application of the Purcell Principle.

I argue that what should trigger Purcell is disruption to a state’s administration of its elections. This conception is different from that of other scholars and jurists, who claim that the Principle is guided by concerns of voter confusion. But disruption alone does not tell the full story either. Understanding Purcell also requires bringing to light the constitutional theory that is underlying the doctrine: federalism16 16.Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019).Show More (as applied here, the idea that decisions about election procedures are primarily the province of the states).

Even though Purcell is supposedly about confusion—indeed, everyone says as much—this Note will demonstrate that rationale does not adequately explain the case law. In practice, the Supreme Court’s applications of the Principle are better rationalized by federalism and disruption; both are necessary to trigger Purcell. Viewing Purcell as a part of the Court’s commitment to federalism is important not only to explain when and why the Principle should be invoked, but it also harmonizes this doctrine with the Roberts Court’s jurisprudence in other areas of election law and beyond. Further, because application of the Principle will effectively neuter election law in the federal courts for a given election cycle, my proposed disruption framework is useful to future litigants making strategic decisions about where, when, and how to bring their claims.

On their face, the Supreme Court’s applications of Purcell may seem partisan. Professor Steve Vladeck, for example, has characterized the Purcell Principle as “[h]ow the [c]urrent Court [u]ses the Shadow Docket to [h]elp Republicans.”17 17.Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8].Show More And Professor Wilfred Codrington has described it as “an empty vessel for unprincipled decisionmaking and inconsistent rulings.”18 18.Codrington, supra note 13, at 941.Show More But this Note suggests there may be an unarticulated rationale that better accounts for the Court’s decisions in this area. In doing so, I do not purport that this is the “true” motivation guiding Purcell or what individual Justices are necessarily thinking. Rather, this Note offers federalism as an alternate, novel ground in a framework that seeks to make the Court’s applications of the Principle more coherent. If you reconsider Purcell as a federalism principle with me and read these cases through the lens of disruption, you just might be disabused of your cynicism.

This Note proceeds in three Parts. Part I introduces the origins of the Purcell Principle and its professed rationales: preventing voter confusion, providing clear guidance to the states, and deferring to the district court. It then surveys the development of the doctrine by reviewing each case in which the Supreme Court has applied the Purcell Principle or otherwise discussed it. Part II then analyzes whether the three rationales announced in Purcell are supported by the subsequent case law. (This Note contends they aren’t.) Having chipped away at those rationales, Part III argues that the Principle is better understood as being justified by the Court’s concerns with federalism. Federalism requires insulating to some degree the ability of the state to dictate the rules that govern its elections. If Purcell is defined by the power of federal courts vis-à-vis the states, the Court’s historic applications of the Principle and the Principle’s limits make more sense. Reconceptualizing the doctrine in this way, I propose a new framework to explain what should trigger Purcell. In deciding whether the Principle ought to be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. If an order changing the election rules or procedures would be disruptive, the Principle is invoked and operates as a near-total bar on judicial relief. But where intervention wouldn’t be disruptive, Purcell does not govern and a federal court’s decision to enjoin that state procedure is permissible. I conclude by proposing four conditions necessary for finding disruption, which courts can look to in determining whether the Principle should be applied in a given case.

  1.  Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam), aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487. ↑
  2.  Singleton, 582 F. Supp. 3d at 936. ↑
  3.  Id. ↑
  4.  Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.). ↑
  5.  Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”). ↑
  6.  Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  7.  Id. at 879–80. ↑
  8.  Id. at 882. ↑
  9.  Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR]. ↑
  10.  Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG]. ↑
  11.  State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD]. ↑
  12.  See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023). ↑
  13.  See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.

    359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021). ↑

  14.  Murray & Vladeck, supra note 10. ↑
  15.  Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  16.  Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019). ↑
  17.  Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8]. ↑

  18.  Codrington, supra note 13, at 941. ↑

Police Vigilantism

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit legal gray areas. Police wield the state’s coercive power under the color of law, enjoying immunities and legal protections unavailable to private individuals. Yet, simultaneously, they can invoke their identity as private individuals to circumvent constitutional constraints on their conduct.

The resulting rupture of accountability frameworks is a significant design flaw that harms policed individuals and communities while undermining the institution of policing from within. Where these frameworks presume a clear divide between state and private action, officers instead navigate a liminal space, leveraging state-sanctioned power while exploiting doctrinal ambiguities to subvert legal constraints. The Article critically evaluates how the state action doctrine, designed to delineate state and private conduct, fails to account for this reality. So, too, does the qualified immunity doctrine, which often shields vigilante conduct that exceeds constitutional bounds. To address this pressing problem, the Article advocates for a radical reconceptualization of police authority and accountability. It proposes reinterpreting the state action doctrine to break down the dichotomy between state and private action. It suggests implementing comprehensive statutory regulations to constrain police identity shopping. Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself.

Introduction

In the law of policing, where the expansive authority of the state often intersects and clashes with the boundaries of individual liberty, the dual role of a police officer as both state actor and private citizen presents a unique and currently unidentified legal challenge. Consider this scenario: a police officer, driving home from his night shift, crosses from the city where he works into the township where he lives. Moments later, he observes a young man with a backpack jumping a fence between two residential properties. Acting with probable cause under the citizen’s arrest statute,1 1.These statutes, often codifications of common law, are abundant across jurisdictions. See infra Section II.B. For the concept and history of these statutes and consequent arrests, see generally Ashish Valentine, What Is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud Arbery’s Death?, NPR (Oct. 26, 2021, 10:39 AM), https://www.npr.org/2021/10/26/‌1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://‌perma.cc/5L5V-SXAK]; Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 How. L.J. 161 (2020); Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 Cornell J.L. & Pub. Pol’y 557 (2016); Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles and Darrell A. H. Miller, Pointing Guns, 99 Texas L. Rev. 1172 (2021), 100 Tex. L. Rev. Online 1 (2021) (surveying citizen’s arrest laws around the country).Show More but not the Fourth Amendment,2 2.U.S. Const. amend. IV.Show More the officer pursues the young man, unholsters his department-issued gun, pins him to the ground, and forcibly opens the backpack.3 3.This fictional example is not so fictional, as variations of it have come up in countless cases across jurisdictions. See, e.g., State v. Phoenix, 428 So. 2d 262, 265 (Fla. Dist. Ct. App. 1982) (“In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen’s arrests.”); State v. Slawek, 338 N.W.2d 120, 121 (Wis. Ct. App. 1983) (“An extensive line of cases from other states, however, upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest when the place of arrest authorizes a private person to make a citizen’s arrest under the same circumstances.”); State ex rel. State v. Gustke, 516 S.E.2d 283, 290 (W. Va. 1999) (“Even if the officers were without statutory arrest powers as policemen, they retained power as citizens to make an arrest . . . .” (quoting Dodson v. State, 381 N.E.2d 90, 92 (Ind. 1978))); Commonwealth v. Harris, 415 N.E.2d 216, 220 (Mass. App. Ct. 1981) (citing with approval “[a]n extensive line of cases from other states uphold[ing] the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a ‘citizen’s arrest’ under the same circumstances”).Show More His use of force breaks three of the young man’s ribs. When the young man files a civil rights lawsuit, the officer contends he was acting as a private individual, not a state officer.4 4.See, e.g., Budnick v. Barnstable Cnty. Bar Advocs., Inc., No. 92-1933, 1993 WL 93133, at *3 (1st Cir. Mar. 30, 1993) (“But, ‘a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction . . . .’” (quoting Commonwealth v. Dise, 583 N.E.2d 271, 274 (Mass. App. Ct. 1991))); State v. Miller, 896 P.2d 1069, 1070 (Kan. 1995) (“An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer’s actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.”).Show More The court agrees, dismissing the civil rights claims.5 5.See, e.g., United States v. Layne, 6 F.3d 396, 398–99 (6th Cir. 1993) (finding arrest made by sheriff outside his geographical jurisdiction valid under private citizen’s arrest statute and thus did not violate Fourth Amendment); State v. Furr, 723 So. 2d 842, 845 (Fla. Dist. Ct. App. 1998) (“[T]he trial court erred by concluding that a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.”).Show More

Another night, another town. Two officers respond to a report of an older man shouting outside a local apartment complex. When they arrive, the man whom they believe to be the subject of the call is waving a medium-sized object in the air. The officers’ approach seems to set off the man, and he yells at a higher volume, still waving the object in his hand. At that moment, one of the officers pulls a gun, fires at the man, and kills him. As the man lies dead on the pavement, the officers find headphones still playing music in his ears and an air gun by his arm. When the state attorney brings an indictment for homicide, the officer invokes the state’s stand-your-ground law. He argues that, regardless of the laws governing officer use of force, he had rights as a private citizen to shoot in self-defense.6 6.Unfortunately, this is another not-so-fictional example. For a similar case, see State v. Peraza, 259 So. 3d 728, 729–30 (Fla. 2018).Show More The court agrees and quashes the indictment.7 7.Id. at 733.Show More

Both cases bring to light the ambiguous and often controversial nature of police authority when the roles of state actor and private citizen converge, raising questions of accountability in law enforcement. This Article is the first to systematically identify the existence of these dual identities and the consequent discretionary legal space granted to police officers. I term this phenomenon “identity shopping,” denoting a significant problem in current policing law and doctrine which profoundly impacts accountability structures.8 8.See infra Section II.A.Show More Identity shopping refers to the strategic maneuvering by police officers between their roles as state agents and private citizens, depending on which identity offers the most advantageous legal position in a given situation.9 9.See infra Section II.B.Show More Think of it as a light switch on a dimmer, with “state actor” on one end and “private citizen” on the other. Officers can often slide the switch back and forth, selecting which rules apply to them––the rules governing state actors or those applicable to private individuals.

Identity shopping reflects a deeper systemic issue arising from the inherent structures of policing that allow, and perhaps even encourage, officers to shift between roles to minimize legal repercussions or maximize authority. Drawing from historical insights, this Article traces the evolution of policing from its origins as informal vigilante groups to formally recognized and state-sanctioned law enforcement.10 10.See infra Section I.A.Show More The midcentury professionalization movement and subsequent regulation of the police contributed to the reconceptualization of police from vigilantes to formal state actors.11 11.See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2004–05 (2017).Show More This transformation has endowed officers with distinct responsibilities, leading courts to also grant them unique rights, including expanded civil immunities and criminal defenses.12 12.See infra Section II.B.Show More However, this transformation of policing has not been linear but rather a tapestry of conflicting identities and roles, an intersection of past and present, informal authority and formal legitimacy.

This Article demonstrates that this transition from vigilantes to state-sanctioned law enforcement has not fully extinguished the initial ethos of vigilantism within policing. Despite their formal designation as state actors, police maintain a bifurcated identity, traversing the line between public servants and private individuals. This duality permits a latent form of vigilante behavior, now cloaked under state authority.13 13.See id.Show More Termed as “shadow vigilantism,”14 14.See Paul H. Robinson, The Moral Vigilante and Her Cousins in the Shadows, 2015 U. Ill. L. Rev. 401, 453. Robinson juxtaposes “shadow vigilantism” with “classic vigilantism.” Id. at 404. Unlike classic vigilantism, which involves explicitly unlawful or unauthorized action, shadow vigilantism refers to the less obvious and potentially more damaging ways individuals may resist and subvert the legal system. Id. at 453. To be sure, for several scholars vigilantism connotes illegality, but the way this paper defines vigilantism through the use of the term “shadow vigilantism” is wider and can include lawfully authorized activity. See Ekow N. Yankah, Deputization and Privileged White Violence, 77 Stan. L. Rev. (forthcoming 2025) (manuscript at 3–5) (on file with author) (distinguishing between vigilantism and deputization); Regina Bateson, The Politics of Vigilantism, 54 Compar. Pol. Stud. 923, 925–27 (2021) (providing various conceptions of vigilantism).Show More this phenomenon might seem paradoxical: How can those entrusted with upholding the law operate in a way that undermines it? Yet police vigilantism thrives in the gray areas between state action and private conduct, where officers morph into citizens still empowered by their official identity, and private citizens assume the mantle of law enforcement, invoking a privilege to use force.

Officers may use public authority symbols like uniforms and badges to make off-duty arrests, employ deadly force on duty while invoking defenses intended for civilians, or engage in extralegal activities adjacent to law enforcement, all while retaining the ability to choose the most favorable legal identity when confronted with legal accountability.15 15.See infra Section II.B; see, e.g., Laughlin v. Olszewski, 102 F.3d 190, 192 & n.1 (5th Cir. 1996); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999); Swiecicki v. Delgado, 463 F.3d 489, 490–91 (6th Cir. 2006); Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47 (5th Cir. 2001); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1427–28 (10th Cir. 1984).Show More This interplay of identities thus fosters a dynamic where the imprints of vigilante origins intermittently resurface. As a result, contemporary policing operates within a unique nexus, merging state-sanctioned power with discretionary—sometimes unilateral—approaches reminiscent of its vigilante roots.

This Article contends that the dual identity available to police officers is a significant design flaw in the accountability structures of law enforcement.16 16.See infra Part III.Show More Police accountability frameworks are fundamentally misaligned with the dynamic nature of police identity and are thus inadequate to address the complexities of identity shopping and shadow vigilantism. This systemic oversight creates a gap in police accountability that undermines its efficacy from within.

The existing police accountability system is based on clear demarcations of legal identity and fails to account for entities capable of selecting between private citizenry and state agency. Its basis, the state action doctrine, dictates that only certain actions undertaken by certain actors qualify as state actions and must thus conform to the specific legal constraints but also enjoy the legal immunities of the state.17 17.See infra Section III.A.Show More Yet, identity shopping exploits the cracks in this doctrine, leveraging the nebulous space between official authority and private action. The result is a legal Gordian knot, one that strands victims of police vigilantism in a quagmire of uncertainty and often leaves the very concept of police accountability beyond reach.

Correcting this misalignment requires a radical reconceptualization of police authority and existing accountability frameworks to address the phenomenon of identity shopping and end police vigilantism. This Article proposes reinterpreting the state action doctrine to break down the dichotomy between state and non-state action. It also suggests implementing comprehensive statutory regulations to constrain police identity shopping.18 18.See infra Section III.B.Show More Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself.19 19.For discussions of fundamentally reevaluating or abolishing policing, see, for example, Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 125 (2021); Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023, 1052, 1082 (2023); Sandy Hudson, Building a World Without Police, 69 UCLA L. Rev. 1646, 1649 (2023); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1448 (2022); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1203 (2022); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1532–34 (2019); Brandon Hasbrouck, Reimagining Public Safety, 117 Nw. U. L. Rev. 685, 692 (2022); Tiffany Yang, “Send Freedom House!”: A Study in Police Abolition, 96 Wash. L. Rev. 1067, 1077–79 (2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550–51 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1842 (2020) [hereinafter Akbar, An Abolitionist Horizon]; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 460 (2018) [hereinafter Akbar, Toward a Radical Imagination of Law].Show More

In addressing these points and the challenging terrain of the police’s dual identity, my argument proceeds in three Parts. Part I traces the historical evolution of policing from its vigilante roots to its status as a formal state apparatus. This Part posits that despite the development of a formalized legal status, police often employ a dual identity, combining public servant duties with private discretion in a way that hearkens back to policing’s vigilante origins. Understanding this development is pivotal to identifying how the vestiges of vigilantism continue to influence modern policing practices.

Part II introduces the novel concept of identity shopping. It delves deeper into the practice, arguing that identity shopping results in a form of shadow vigilantism within the modern police force. This Part further demonstrates how our legal system has sanctioned identity shopping across various policing forms, including on-duty and off-duty policing, private policing, and citizen’s arrests. This juxtaposition of sanctioned law enforcement with remnants of vigilante conduct presents a distinct challenge to conventional structures of government oversight and legal accountability.

Part III proposes a radical rethinking of the dual identities of police officers in order to address this unique challenge. It argues that this legal characterization of police officers is a significant design flaw in the frameworks of police accountability and proposes strategies to address this issue, including a way to reconceptualize the state action doctrine, qualified immunity, statutory reforms, and police abolition.

Ultimately, scrutinizing the practices of identity shopping and shadow vigilantism reveals a critical gap in our understanding of policing. It raises fundamental questions about the role of police in a democratic society, the nature and limits of state authority, and the responsibilities of those who wield it. It grapples with the complex dynamics between formal policing roles and individual discretion, revealing the implications for governance and individual rights. And it contributes to the abolitionist discourse by demonstrating that modern policing and the legal frameworks that govern it continue to permit the unchecked use of state-sanctioned violence akin to the vigilantes of the early republic or the street vigilantes of today.

  1.  These statutes, often codifications of common law, are abundant across jurisdictions. See infra Section II.B. For the concept and history of these statutes and consequent arrests, see generally Ashish Valentine, What Is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud Arbery’s Death?, NPR (Oct. 26, 2021, 10:39 AM), https://www.npr.org/2021/10/26/‌1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://‌perma.cc/5L5V-SXAK]; Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 How. L.J. 161 (2020); Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 Cornell J.L. & Pub. Pol’y 557 (2016); Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles and Darrell A. H. Miller, Pointing Guns, 99 Texas L. Rev. 1172 (2021), 100 Tex. L. Rev. Online 1 (2021) (surveying citizen’s arrest laws around the country). ↑
  2.  U.S. Const. amend. IV. ↑
  3.  This fictional example is not so fictional, as variations of it have come up in countless cases across jurisdictions. See, e.g., State v. Phoenix, 428 So. 2d 262, 265 (Fla. Dist. Ct. App. 1982) (“In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen’s arrests.”); State v. Slawek, 338 N.W.2d 120, 121 (Wis. Ct. App. 1983) (“An extensive line of cases from other states, however, upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest when the place of arrest authorizes a private person to make a citizen’s arrest under the same circumstances.”); State ex rel. State v. Gustke, 516 S.E.2d 283, 290 (W. Va. 1999) (“Even if the officers were without statutory arrest powers as policemen, they retained power as citizens to make an arrest . . . .” (quoting Dodson v. State, 381 N.E.2d 90, 92 (Ind. 1978))); Commonwealth v. Harris, 415 N.E.2d 216, 220 (Mass. App. Ct. 1981) (citing with approval “[a]n extensive line of cases from other states uphold[ing] the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a ‘citizen’s arrest’ under the same circumstances”). ↑
  4.  See, e.g., Budnick v. Barnstable Cnty. Bar Advocs., Inc., No. 92-1933, 1993 WL 93133, at *3 (1st Cir. Mar. 30, 1993) (“But, ‘a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction . . . .’” (quoting Commonwealth v. Dise, 583 N.E.2d 271, 274 (Mass. App. Ct. 1991))); State v. Miller, 896 P.2d 1069, 1070 (Kan. 1995) (“An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer’s actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.”). ↑
  5.  See, e.g., United States v. Layne, 6 F.3d 396, 398–99 (6th Cir. 1993) (finding arrest made by sheriff outside his geographical jurisdiction valid under private citizen’s arrest statute and thus did not violate Fourth Amendment); State v. Furr, 723 So. 2d 842, 845 (Fla. Dist. Ct. App. 1998) (“[T]he trial court erred by concluding that a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.”). ↑
  6.  Unfortunately, this is another not-so-fictional example. For a similar case, see State v. Peraza, 259 So. 3d 728, 729–30 (Fla. 2018). ↑
  7.  Id. at 733. ↑
  8.  See infra Section II.A. ↑
  9.  See infra Section II.B. ↑
  10.  See infra Section I.A. ↑
  11.  See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2004–05 (2017). ↑
  12.  See infra Section II.B. ↑
  13.  See id. ↑
  14.  See Paul H. Robinson, The Moral Vigilante and Her Cousins in the Shadows, 2015 U. Ill. L. Rev. 401, 453. Robinson juxtaposes “shadow vigilantism” with “classic vigilantism.” Id. at 404. Unlike classic vigilantism, which involves explicitly unlawful or unauthorized action, shadow vigilantism refers to the less obvious and potentially more damaging ways individuals may resist and subvert the legal system. Id. at 453. To be sure, for several scholars vigilantism connotes illegality, but the way this paper defines vigilantism through the use of the term “shadow vigilantism” is wider and can include lawfully authorized activity. See Ekow N. Yankah, Deputization and Privileged White Violence, 77 Stan. L. Rev. (forthcoming 2025) (manuscript at 3–5) (on file with author) (distinguishing between vigilantism and deputization); Regina Bateson, The Politics of Vigilantism, 54 Compar. Pol. Stud. 923, 925–27 (2021) (providing various conceptions of vigilantism). ↑
  15.  See infra Section II.B; see, e.g., Laughlin v. Olszewski, 102 F.3d 190, 192 & n.1 (5th Cir. 1996); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999); Swiecicki v. Delgado, 463 F.3d 489, 490–91 (6th Cir. 2006); Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47 (5th Cir. 2001); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1427–28 (10th Cir. 1984). ↑
  16.  See infra Part III. ↑
  17.  See infra Section III.A. ↑
  18.  See infra Section III.B. ↑

  19.  For discussions of fundamentally reevaluating or abolishing policing, see, for example, Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 125 (2021); Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023, 1052, 1082 (2023); Sandy Hudson, Building a World Without Police, 69 UCLA L. Rev. 1646, 1649 (2023); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1448 (2022); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1203 (2022); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1532–34 (2019); Brandon Hasbrouck, Reimagining Public Safety, 117 Nw. U. L. Rev. 685, 692 (2022); Tiffany Yang, “Send Freedom House!”: A Study in Police Abolition, 96 Wash. L. Rev. 1067, 1077–79 (2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550–51 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1842 (2020) [hereinafter Akbar, An Abolitionist Horizon]; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 460 (2018) [hereinafter Akbar, Toward a Radical Imagination of Law]. ↑

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