Become a Patron! 



excerpted from: Osagie K. Obasogie and Zachary Newman, The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham V. Connor, 112 Northwestern University Law Review 1465 (2018) (142 Footnotes) (Full Document)


osagie obasogieRecent social movements, such as Black Lives Matter, have forced racialized police violence into public view. While an entrenched problem for communities of color, police officers' use of excessive force that maims and kills briefly became visible in the media and public discourse due to protest and public mourning. Nonetheless, the numbers remain staggering even after the massive outpouring of activism and discussion over the past few years. And the issue is not improving as time goes on.

The data that have been recently collected, along with the history of police engagement with communities of color, highlight how the problem of excessive force is an iteration of the racial subordination that these communities experience across a host of social, political, and economic issues. For example, researchers at Boston University School of Public Health developed a structural racism index that took into account residential segregation, incarceration rates, educational attainment, economic indicators, and employment status and found that states with higher racial disparities in these areas also had greater Black/White disparities in fatal police shootings of unarmed victims. Thus, there is a link between the structural and environmental conditions that minorities experience and the ways in which these communities are policed. As Paul Butler notes in his book Chokehold: Policing Black Men, "what happens in places like Ferguson, Missouri, and Baltimore, Maryland--where the police routinely harass and discriminate against African Americans--is not a flaw in the criminal justice system. Ferguson and Baltimore are examples of how the system is supposed to work."Zachary Newman

Yet, what is puzzling about the legal and public discourse on police violence is that it has largely been framed as a problem of individual "bad apples"-- rogue officers who harbor animosity or fail to adhere to department regulations--or departmental shortcomings such as poor training or lack of clear policies. The primary narrative surrounding the issue of police excessive force appears to be one of differential legal and policy compliance: police enforce use of force policies and norms in a largely humane manner for Whites, and in more brutal ways for racial minorities.

This understanding of police brutality treats issues of race, racism, and differential compliance as matters that exist outside of the (presumably) otherwise benign legal structures that shape how police operate. However, this construction fails to acknowledge how our constitutional structures channel the issue of police excessive force into particular legal terrains while signaling that other terrains are not viable. The prescriptive power of the Supreme Court has entrenched a knowledge and discourse around police violence that confines it solely to the territory of what we term the individualizing Fourth Amendment, which is a constitutional terrain that stands in opposition to acknowledging the pervasive racialized tensions between police and racial minorities that underlie many violent police interactions.

Specifically, through the pivotal police excessive force case of Graham v. Connor, the Court made a particular and consequential choice by funneling the diverse means by which federal courts had been adjudicating excessive force claims into one singular avenue. This holding dictated, as a matter of legal doctrine, that the constitutional standard for addressing all matters of police violence and excessive force is found solely in the Fourth Amendment, which frames the issue of excessive police force as one between the state and aggrieved individuals and eschews other relevant constitutional avenues such as the Fourteenth Amendment--an approach that has the potential to be more capable of dealing with group-based harms and structural forms of oppression. By individualizing police violence and scaling it down from a structural matter steeped in centuries of racial tensions to an individual dispute between officer and citizen, the Fourth Amendment has been used to depoliticize, deracialize, decontextualize, and ahistoricize a distinctive racial justice issue concerning the disproportionate use of force against people of color. This individualizing dynamic not only warps our understanding of the causes and consequences of police violence, but often leaves victims without any remedy.

With this Essay, we engage in an empirical examination of how Graham v. Connor led federal courts to have a reductionist understanding of police excessive force, and what this means for victims and plaintiffs.

Part I briefly describes the history of the Fourth Amendment and how its individualist leanings were "baked in" by the Framers.

Part II outlines both Supreme Court case law and the scholarly literature concerning police violence and use of force, which positions Graham as a transformative case that filters all matters pertaining to excessive police force through a Fourth Amendment lens.

Part III discusses our original qualitative study of federal police violence cases pre- and post-Graham. This suggests that, with Graham, the Court effectively cordoned off other areas of constitutional law that have the potential to take structural dynamics into account (e.g., the Equal Protection Clause), yet nonetheless suffer from their own limitations.

In our conclusion, we contend that Graham v. Connor, in combination with key equal protection cases of the era--namely, Washington v. Davis and McCleskey v. Kemp a broader ideological shift toward constitutional individualism when adjudicating matters dealing with race and racism. A more thoughtful engagement with social science methods and data across constitutional spaces dealing with racial disparities may lead to jurisprudential reconsiderations that can provide relief in the areas of police excessive force and beyond.

. . .

We have argued that the primary constitutional mechanism used to protect citizens from excessive use of force by the police--the Fourth Amendment, as interpreted by Graham--actually produces racialized police violence by failing to engage the racialized group dynamics that underlie police violence in communities of color. The doctrinal insistence that excessive force exists as an isolated and individual dynamic apart from broader racial inequalities renders the Fourth Amendment a relatively futile constitutional terrain from which to adjudicate these matters, allowing police excessive force to fester and reproduce without any check from the judiciary. The Fourth Amendment, as interpreted post-Graham, simply operates at the wrong level; its individualist nature cannot address a fundamentally structural problem. For this reason, the existing jurisprudence does more harm than good by standing as a proxy for protection and remediation while ultimately providing little to communities of color.

Recognizing the futility of the Fourth Amendment is just the beginning of understanding the persistent problem of excessive force by the police. A full social, legal, political and ethical engagement with police brutality and excessive force requires interventions at multiple levels beyond Supreme Court decisions. But the issues this Essay explores and the empirical findings herein are consequential in that they highlight how constitutional framings can be a legal determinant for injustice on the ground and the health disparities that often result from the injuries that stem from these violent encounters. Thus, we hope that these data can be the beginning of a broader conversation concerning police violence as a social and legal determinant of health and how police reform can improve minority health outcomes.

Throughout this Essay, we have suggested that the Fourteenth Amendment and its greater conceptual sensitivity to and awareness of group dynamics (as opposed to the Fourth Amendment's one-dimensional individual rights framework) might be a more appropriate vehicle through which to adjudicate matters concerning excessive police force. While other scholars have suggested that aspects of the Fourteenth Amendment might be more appropriate than the Fourth Amendment in examining criminal procedure matters such as "stop and frisk," our empirical contribution is to demonstrate (1) the indeterminacy of the constitutional standard before Graham (where the Fourth Amendment did not play a prominent role in shaping excessive force doctrine) and (2) the radical and exclusive shift toward individualism facilitated by Graham. We contend that a more group-conscious framework aligned with the Fourteenth Amendment might be more appropriate in both remedying individual violations and creating the conditions for reform. Our hope is that this Essay will stimulate a conversation that can produce models that draw upon Fourteenth Amendment sensibilities that highlight the role of racial inequality and structural racism in precipitating excessive force by the police.

Yet, we also understand how the current jurisprudence surrounding the Fourteenth Amendment, and specifically equal protection, is not unproblematic. Namely, the existing emphasis in equal protection doctrine on individual discriminatory intent instead of disparate impact or group harm--arising from Washington v. Davis, and exemplified by McCleskey v. Kemp the effective remediation of racialized phenomena like police violence. To be sure, Graham's positioning of police excessive force as an individualistic matter is troublesome unto itself. Yet, there is an interaction effect above and beyond jurisprudential silos of the Fourth and Fourteenth Amendments when we read Graham alongside the individualist, intent-driven equal protection cases.

As they currently stand, the individualism embedded in Graham, Davis, and McCleskey creates a doctrinal triad that precludes any kind of structural analysis of race and disparate impact, in police excessive force cases and beyond. Thus, the problem lies in the Court's conceptualization of race and racism as well as the diminished role of social science evidence in helping us understand patterns and mechanisms of discrimination. We must be attentive to how the Court established its approach to police excessive force in Graham as being within the sole domain of the individualist Fourth Amendment and "objective reasonableness" at the same post-civil rights moment it was revising how race and equal protection were to be addressed with Davis and McCleskey. This suggests a deeper ideological and political shift in how the Court thinks about race, racism, and state culpability.

Finally, it must be noted that, while constitutional law can seem lofty and abstract, it has real, material consequences that implicate everyday interactions between police and citizens. Police excessive force is a life-or-death area of the law, dictated by the constitutional standards discussed in this Essay and materialized through the everyday interpretations of that law by police when they engage various communities. Graham and the contemporary constitutional law framework for police violence is part of the web of law, custom, and culture that enables police violence to remain an ingrained and routinized form of structural harm that communities of color are subjected to. Specifically, flawed constitutional law is an important determinant of health. By enabling normalized police violence and framing it as a series of disconnected individual disputes, constitutional law is liable for the broken bodies; loss of life and premature death; stress, anxiety, and depression; and community fragmentation that results from police excessive force. Thus, defective constitutional law--including the futile Fourth Amendment--combined with use of force policies developed by police departments that implement it, enables the violence done to individuals, communities, and public health.

In sum, the constitutional matrix surrounding racialized police violence--which includes the Court's conceptions of race and racism as well as Fourth Amendment jurisprudence--actively produces and perpetuates this violence by avoiding the structural nature of this problem and permitting police excessive force and killings to persist despite social movement and media attention. In order to address police violence--and all of the harms it creates--we must simultaneously critique Davis and McCleskey, while critically attending to Graham to render these constitutional individualisms an unsustainable terrain from which to address such deeply racialized problems.

Osagie K. Obasogie, Haas Distinguished Chair and Professor of Bioethics, University of California, Berkeley, Joint Medical Program and School of Public Health.

Zachary Newman, Visiting Scholar, University of California, Berkeley, Haas Institute for a Fair and Inclusive Society.

End of document