* Many thanks to Catherine Albiston, Khiara Bridges, and Tamara Rice Lave for reviewing earlier versions of this chapter. This chapter is an excerpt of an essay that originally appeared in the Northwestern University Law Review. See Osagie K. Obasogie and Zachary Newman, The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor, 112 Nw. U. L. Rev. 1465 (2018).
1 Aldina Mesic et al., The Relationship Between Structural Racism and Black-White Disparities in Fatal Police Shootings at the State Level, 110 J. Natl. Med. Assoc. 8 106–16 (2018). The authors note:
Among the state racism measure, racial residential segregation was the most robust indicator associated with state-level racial disparities in police shootings of unarmed victims. Many previous studies have shown that racial residential segregation is associated with a series of adverse health outcomes. Racial residential segregation is the primary basis for a range of social, economic, employment, educational, criminal justice and political inequalities between Blacks and Whites. Therefore, racial residential segregation may be the most fundamental indicator of longstanding structural racism, which could explain our finding that this measure was single best predictor of the racial disparity in fatal police shootings of unarmed victims.
Id. at 113.
2 Paul Butler, Chokehold: Policing Black Men 6 (2017).
3 490 U.S. 386, 388 (1989)
This case requires us to decide what constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person. We hold that such claims are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.
4 Here, we emphasize the word “potential,” as the Fourteenth Amendment, and equal protection in particular, currently has significant limitations that prevent it from being used in the liberating manner that we signal. This is discussed further in Part V.
7 Joyce A. McCray Pearson, The Federal and State Bills of Rights: A Historical Look at the Relationship Between America’s Documents of Individual Freedom, 36 How. L.J. 43, 45 (1993).
8 § 1:2. Origin and purpose of the Fourth Amendment, Cal. Search and Seizure § 1:2.
9 Louise I. Capen and D. Montfort Melchior, My Worth to the World: Studies in Citizenship 469 (1935) (“The first ten [Amendments] – commonly called the Bill of Rights – guarantee certain rights to the individual.”).
10 In the Fourth Amendment context, see Mapp v. Ohio, 367 U.S. 643 (1961).
11 Ronald J. Bacigal, Putting the People Back into the Fourth Amendment, 62 Geo. Wash. L. Rev. 359, 360 (1994) (“[M]uch of the amendment’s jurisprudence centers on the courts’ efforts to regulate law enforcement activity that intrudes upon protected rights of privacy and liberty.”); see, e.g., Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (classically framing it as the “right to be let alone”).
12 U.S. Const. amend. iv.
13 Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1177 (1991) (“Even more important, in the Fourth Amendment, as nowhere else in the Constitution, the collective-sounding phrase ‘the people’ is immediately qualified by the use and subsequent repetition of the more individualistic language of ‘persons.’”).
14 George C. Thomas III, Stumbling Toward History: The Framers’ Search and Seizure World, 43 Tex. Tech L. Rev. 199, 206 (2010) (“The history is clear that the colonists were hostile to British searches under the infamous writs of assistance. These searches required neither a warrant nor probable cause.”).
15 See, e.g., Olmstead v. United States, 277 U.S. 438, 463 (1928) (“The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man’s house, his person, his papers and his effects; and to prevent their seizure against his will.”); Thomas, supra note 23, at 206.
16 Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 765 (2012) (“By expanding constitutional rights, the Court brought constitutional law to bear directly on police officers and departments. By augmenting constitutional remedies, the Court facilitated court challenges to police conduct. And by justifying its sweeping action on the ground that local and state governments had failed to prevent police misconduct, the Court established the primacy of constitutional adjudication for regulating the police.”).
17 See Mapp v. Ohio, 367 U.S. 643, 660 (1961) (“Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.”) (emphasis added).
18 See Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)) (“‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’”) (emphasis added).
20 Id. at 765–67; Dan M. Kahan and Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1157–58 (1998) (“Rather than meet racism head on, the Court began to fight it indirectly through general constitutional standards that did not explicitly address race but that were nonetheless calculated to constrain racially motivated policies.”).
21 Thomas K. Clancy, The Fourth Amendment as a Collective Right, 43 Tex. Tech L. Rev. 255, 256 (2010) (“For most of the history of the United States, the view that the Fourth Amendment served to protect individual security – that it was an individual right – was so patently obvious that it needed no support.”).
22 Hon. M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief that Gave It Birth, 85 N.Y.U. L. Rev. 905, 921–22 (2010) (“The Fourth Amendment was thus adopted for the purpose of checking discretionary police authority, and that historical purpose should be kept in mind.”).
23 See Clancy, supra note 23 at 255 (“[T]he Amendment has been traditionally interpreted to safeguard the rights of individuals in atomistic spheres of interests.”) (emphasis added).
24 Tennessee v. Garner, 471 U.S. 1, 7 (1985).
27 471 U.S.at 11–12; see Franklin E. Zimring, When Police Kill 19 (2017) (“As a matter of constitutional principle, the Garner case was a decisive rejection of generalized law enforcement authority to use force as also a justification for killings by police.”).
28 Garner, 471 U.S. at 3, 11 (“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”).
29 Brandon Garrett and Seth Stoughton, A Tactical Fourth Amendment, 103 Va. L. Rev. 211, 216 (2017) (calling Garner “a high-water mark” for police violence case law).
30 Garner, 471 U.S. at 29 (O’Connor, J., dissenting); Garrett and Stoughton, supra note 42, at 217 (describing how the flexible “totality of the circumstances” standard, including the discussion of “split-second” decisions from Graham, “originat[ed] in Justice Sandra Day O’Conner’s dissent in Garner, has animated the Court’s excessive-force case law ever since”).
31 Garner, 471 U.S. at 29 (O’Connor, J., dissenting).
32 Id. at 23 (O’Connor, J., dissenting)
By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.
33 Marcus, supra note 44, at 82–83 (describing the progression of police violence case law from Garner through Scott v. Harris in 2007 as never actually abrogating or overruling Garner).
34 Graham v. Connor, 490 U.S. 386 (1989).
37 Id.; Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (The test used in Glick noted: “In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.”), overruled by Graham, 490 U.S. 386.
39 Id. at 388. The Court notes that in excessive force claims made in response to an arrest, the Fourth Amendment is the exclusive mechanism. For excessive force claims made by someone who is incarcerated, the Eight Amendment applies. See id. at 394.
42 Scott v. Harris in 2007 only furthered this trend. 550 U.S. 372, 383 (2007) (“Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of ‘reasonableness.’ Whether or not Scott’s actions constituted application of ‘deadly force,’ all that matters is whether Scott’s actions were reasonable.”) (emphasis added). See Garrett and Stoughton, supra note 48, at 217 (“The turn away from Garner was cemented by the Court’s 2007 decision in Scott v. Harris, which reinforced the approach in Graham by holding that there are no clearly impermissible uses of deadly force.”).
43 The Court decided Graham v. Connor on May 15, 1989. Since this was a midyear decision, we excluded 1989 from our search to facilitate a more precise understanding of how courts approached police violence matters before and after the decision.
44 We randomly sampled 500 qualifying cases during this period in order to have a reasonable number of cases from which to draw inferences about the entire dataset. For the dataset of cases decided before Graham, we searched for “police,” “police officer,” and “excessive force or excessive use of force” for the given time period for reported federal cases, resulting in 1,029 hits. For the dataset comprised of cases decided after Graham, we conducted the same search, and it resulted in 2,708 hits. We chose to use the term “excessive force” for both time periods for continuity. Finally, for each time period, cases that did not have to do with police use of force in the context in which we are discussing it were excluded. Specifically, cases involving subjects like pretrial detention in jail or incarceration in prison or a medical facility were excluded because – in terms of the temporality of the criminal justice process – there are different constitutional analyses that arise that would affect our research question, which is solely focused on police use of force during their everyday patrols.
45 Section 1983 provides a civil right of enforcement for a violation of a constitutional right. It is generally held to not confer any substantive rights, but rather is a “method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). However, as the Court in Graham observed, “many courts have seemed to assume, as did the courts below in this case, that there is a generic ‘right’ to be free from excessive force, grounded not in any particular constitutional provision but rather in ‘basic principles of § 1983 jurisprudence.’” Graham v. Connor, 490 U.S. 386, 393 (1989) (quoting Justice v. Dennis, 834 F. 2d 380, 382 (4th Cir. 1987), vacated, 490 U.S. 1087 (1989) (remanding the case in light of Graham)). The Graham court explicitly rejects this approach in favor of funneling all excessive force claims through the Fourth Amendment standard. Id. at 393–94. However, given that Section 1983 was one of the many ways in which federal courts understood the boundaries of these claims, we coded for it.
46 These codes were used because they are the concepts that we are interested in comparing between the pre- and post-Graham datasets.
47 In evaluating excessive force claims, 79.6% of the cases mention Graham in some fashion.
48 See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 183–84 (2012) (“Our understanding of racism is therefore shaped by the most extreme expressions of individual bigotry, not by the way in which it functions naturally, almost invisibly (and sometimes with genuinely benign intent), when it is embedded in the structure of a social system.”); Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America 2 (4th ed. 2014) (describing the “ideology” of “color-blind racism” as explaining “contemporary racial inequality as the outcome of nonracial dynamics”).
49 The Graham Court noted:
Today we make explicit what was implicit in Garner’s analysis, and hold that all claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.
Graham v. Connor, 490 U.S. 386, 395 (1989).
50 Janicsko v. Pellman, 774 F. Supp. 331, 341 (M.D. Pa. 1991) (emphasis added).
51 Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1053 (S.D. Ala. 2007) (emphasis added).
52 McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir. 1992) (emphasis added); see also Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992) (“Claims of excessive force under section 1983 are properly analyzed under the fourth amendment’s [sic]prohibition against unreasonable seizures of the person, and its corresponding reasonableness standard.”).
53 Graham, 490 U.S. at 393.
54 Id. at 393–94 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
In addressing an excessive force claim brought under Section 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force … In most instances, that will be either the Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth Amendment’s ban on cruel and unusual punishments, which are the two primacy sources of constitutional protection against physically abusive government conduct.
Id. at 394.
The court goes on to state that the Fourth Amendment is applicable to claims of excessive force when police are trying to make an arrest, while the Eighth Amendment applies to excessive force claims made by a person who is incarcerated. Id. at 389–91.
56 See infra Section III.B.3.
57 Of all 250 cases, this only occurred 2.8% of the time.
58 A further 6.3% accounted for when the court or the defendant(s) brought up the Fourteenth Amendment without the plaintiff doing so. In addition, to clarify the 4.7% statistic, this code included the situation wherein the court would not address the Fourteenth Amendment claim, but would not end up explicitly applying the Fourth Amendment either. For this reason, we separately coded for this instance.
59 See, e.g., Estate of Lopez ex rel. Lopez v. Torres, 105 F. Supp. 3d 1148, 1155 (S.D. Cal. 2015) (“Excessive force claims relating to police conduct during an arrest must be analyzed under the Fourth Amendment and its reasonableness standard.”) (emphasis added); Stevens v. Metro. Transp. Auth. Police Dep’t, 293 F. Supp. 2d 415, 420 (S.D.N.Y. 2003) (while the case included the Fourteenth Amendment, it stated: “[plaintiff] Stevens’s claim that the police officers used excessive force to effect his arrest is analyzed under the Fourth Amendment’s prohibition against unreasonable seizures of the person”).
60 Hamilton v. City of Jackson, 508 F. Supp. 2d 1045, 1053 (S.D. Ala. 2007).
63 Chappell v. City of Cleveland, 584 F. Supp. 2d 974, 976, 989 (N.D. Ohio 2008).
66 Green v. Saenz, 812 F. Supp. 798, 801 (N.D. Ill. 1992).
68 Id. (quoting Graham v. Connor, 490 U.S. 386, 388 (1989)).
70 Phebus v. City of Memphis, 340 F. Supp. 2d 874, 882 (W.D. Tenn. 2004).
73 See, e.g., Robins v. Harum, 773 F.2d 1004, 1007 (9th Cir. 1985) (“The Robinses argue that the right to be free from excessive use of force by the police is a substantive due process right protected by the Fourteenth Amendment …”); United Steelworkers of Am. v. Milstead, 705 F. Supp. 1426, 1436 (D. Ariz. 1988) (“A claim of excessive use of force in making an arrest is actionable under § 1983 as a violation of the Fourteenth Amendment right to substantive due process …” (citation omitted)); Kedra v. City of Philadelphia, 454 F. Supp. 652, 666 (E.D. Penn. 1978) (“Another recurring aspect of the complaint is the repeated allegation of physical beatings. Such conduct is actionable as a civil rights violation since it deprives a person of his liberty interest in personal security without due process of law.”) (citation omitted); Campbell v. Buckles, 448 F. Supp. 288, 290 (E.D. Tenn. 1976) (“The use of an excessive and unreasonable amount of force by state law enforcement officers in effectuating an arrest is a violation of the victim’s right to due process of law, Constitution, Fourteenth Amendment.”) (citation omitted).
74 Dobson v. Green, 596 F. Supp. 122, 124 (E.D. Penn. 1984).
75 Id.; see also Reed v. Phila. Hous. Auth., 372 F. Supp. 686, 689 (E.D. Penn. 1974)
This right [to be free from intentional and unprovoked assault by a police officer] is thought to arise from the due process clause of the Fourteenth Amendment, a right to be secure in one’s person which stands separate and apart from any specific right found in the Bill of Rights. Application of undue force by law enforcement officers thus deprives the individual of liberty without due process of law (citation omitted).
76 Dobson, 596 F. Supp. at 125.
77 Taylor v. Canton, Ohio Police Dept., 544 F. Supp. 783, 785 (N.D. Ohio 1982).
80 Keyes v. City of Albany, 594 F. Supp. 1147, 1151 (N.D. N.Y. 1984).
81 Id. at 1154 (citation omitted).
83 See, e.g., Hornung v. Vill. of Park Forest, 634 F. Supp. 540, 544 (N.D. Ill. 1986) (“Claims of excessive force during arrest are cognizable under § 1983, and are generally analyzed as fourteenth amendment claims wherein the use of force is considered a potential deprivation of liberty without due process of law.”) (citation omitted); Starstead v. City of Superior, 533 F. Supp. 1365, 1368 (W.D. Wis, 1982) (“[W]hile the alleged facts do not appear sufficient to sustain a cause of action arising out of the Eighth Amendment … they are sufficient to sustain a finding of a Fourteenth Amendment violation.”) (citation omitted).
84 See supra Section III.B.2.a.
85 While equal protection claims were not exactly common before Graham (10.4%), the point here is to show the rarity of equal protection after Graham regardless of how often these claims were made pre-Graham. By increasing the prominence of the Fourth Amendment, the Court impeded the viability of the Equal Protection Clause as part of the Fourteenth Amendment.
86 This means that the plaintiff did not necessarily win, but the court did not outright reject the claim at that stage.
87 See, e.g., Lockett v. New Orleans City, 607 F.3d 992 (5th Cir. 2010); McElroy v. City of Birmingham, 903 F. Supp. 2d 1228 (N.D. Ala. 2012); Pryor v. City of Clearlake, 877 F. Supp. 2d 929 (N.D. Cal. 2012); Loharsingh v. City and County of San Francisco, 696 F. Supp. 2d 1080 (N.D. Cal. 2010); Jackson v. City of Pittsburgh, 688 F. Supp. 2d 379, 395 (W.D. Pa. 2010).
88 Jackson, 688 F. Supp. 2d at 395.
89 Pryor, 877 F. Supp. 2d at 935, 950.
90 McElroy, 903 F. Supp. 2d at 1231, 1254.
91 Loharsingh v. City of San Francisco, 696 F. Supp. 2d 1080, 1106 (N.D. Cal. 2010). The fifth case: Lockett v. New Orleans City, 607 F.3d 992, 1002 (5th Cir. 2010) (“We conclude that he has not demonstrated facts sufficient to demonstrate a conspiracy to deprive him of equal protection and the required act in furtherance of the conspiracy that caused injury or deprivation of any right.”)
92 Hardy v. Emery, 241 F. Supp. 2d 38, 49–50 (D. Me. 2003) (survived summary judgment).
98 426 U.S. 229 (1976). The intent doctrine creates an extremely truncated paradigm of how race and racism function in the present. For a discussion of its doctrinal evolution, see Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779 (2012).
99 McCleskey v. Kemp, 481 U.S. 279 (1987).
100 For a discussion of post-civil rights racial backlash and its impact on the federal courts, see Ian Haney López, A Nation of Minorities: Race, Ethnicity, and Reactionary Colorblindness, 59 Stan. L. Rev. 985 (2006).
101 In a genealogy of these decisions, an ideological pattern emerges: Graham was decided just two years after McCleskey. Chief Justice Rehnquist – joined by Justice O’Connor – delivered the opinion in Graham (1989); joined Justice Powell in the opinion in McCleskey (1987); joined Justice O’Connor’s dissent in Garner (1985); and joined Justice White in Washington v. Davis (1976).
102 See Osagie K. Obasogie and Zachary Newman, Police Violence, Use of Force Policies, and Public Health, 43 Am. J. L. and Med. 179 (2017) (contending that use of force policies are an important site in disrupting police violence because they are the main domain for police departments to articulate and reify the constitutional law standards, and that this process has profound implications for public health).
103 See Sirry Alang et al., Police Brutality and Black Health: Setting the Agenda for Public Health Scholars, 107 Am. J. Pub. Health 662 (2017).