For more than half a century, documented police brutality has affected communities of color and the American legal system has largely failed to address it. Beginning with Rizzo v. Goode, Supreme Court decisions have allowed local police departments nearly unlimited discretion in their policies and practices. That decision and others demonstrate that the Supreme Court is misaligned with governmental initiated reforms. The Violent Crime Control and Law Enforcement Act of 1994, which allows the U.S. Attorney General and the U.S. Department of Justice (“DOJ”) to investigate law enforcement agencies’ practices and seek injunctive relief against agencies found to have engaged in unconstitutional policing, has more adequately addressed the problem. The legislation has resulted in nearly seventy local law enforcement investigations, which in turn have resulted in forty consent decrees. While the DOJ has made progress in its attempts to combat police brutality, the Supreme Court is misaligned with its efforts in three significant ways. First, the Court’s prevailing Fourth Amendment stop, search, and arrest analysis encourages rule or policy violations and law breaking by police officers. Second, despite the Court’s permissive response to officers who disregard departmental policies and local law, many law enforcement agencies have engaged in DOJ-initiated reform processes. Finally, the Court disregards the impact that arbitrary and discriminatory policing has on the ability of police departments to perform their jobs effectively while police experts and departments are focused on building legitimacy with marginalized communities. The dangers posed by this misalignment threaten the progress that DOJ initiated reforms strive to make.
fourth amendment, policing
100 Boston University Law Review 1193 (2020)
Hardaway, Ayesha B., "The Supreme Court and the Illegitimacy of Lawless Fourth Amendment Policing" (2020). Faculty Publications. 2094.