Constitutional Interpretation Without Judges: Police Violence, Excessive Force, and Remaking the Fourth Amendment

The national conversation concerning the resurgence of White supremacy and anti-Semitism after the 2017 Unite the Right rally in Charlottesville emerged in the context of other anti-racist social movements—most notably, efforts to draw attention to police violence and excessive force used against communities of color. Yet, despite the visibility created by this social movement, the frequency of fatal force has hardly changed. Moreover, excessive use of force remains extremely racialized, with African Americans accounting for forty percent of people shot and killed by police while only constituting fifteen percent of the population. Blacks are five times more likely to be shot by police than a White person.

Too many times the justice system has failed to hold police accountable—a reality tied to the discriminatory roots of policing in America. Mainstream legal thought suggests that the Fourth Amendment and judicial interpretations of “what counts” as unconstitutional use of force can serve as legal mechanisms that can protect minorities from police brutality. This widespread belief stems from the idea that federal courts serve as an interpretive body that is exogenous or external to police departments and dictates to them, in a top-down manner, which practices are permissible and when lines have been crossed. However, in a separate article, we engaged in an empirical assessment of the use of force policies from the seventy-five largest cities in the United States and then examined how these policies were used in constitutional litigation regarding excessive force. Rather than defining the meaning and scope of unconstitutional excessive force, we found that federal courts often referenced, relied upon, or deferred to the meaning of excessive force created by police departments in their use of force documents. Such deference explains, in part, why courts fail to hold police officers accountable when they abuse citizens. By ceding to police understandings of excessive force in defining the scope of Fourth Amendment protections, federal courts essentially allow police to make constitutional rules for themselves—what we call the endogenous Fourth Amendment.

While this may partially explain the lack of accountability, it also creates an opportunity. If courts are going to defer to police in defining the constitutional meaning of excessive force, then grassroots efforts to change police behavior can not only positively impact individual communities, but perhaps “filter up” to have a more synergistic effect in reshaping the constitutional rule. In this Article, we will discuss how grassroots efforts at remaking Fourth Amendment excessive force jurisprudence might work. Drawing upon the empirical research giving rise to the reform theory of procedural justice, we will discuss how efforts to work with police to use principles of safety and human dignity to rethink and redefine their use of force with communities might, in the context of existing doctrinal rules and at a large enough scale, create new standards that federal courts can rely on, refer to, or defer to and thereby remake constitutional meanings of excessive force in a way that consistently holds police accountable. In Part II, we further describe legal endogeneity and the ways in which it provides an alternative understanding of how the meaning of excessive force is produced. Part III then examines the literature on procedural justice and its response to the problem of police accountability. Part IV explores how the endogenous nature of Fourth Amendment excessive force jurisprudence in combination with efforts of procedural justice at the local level might, at a large enough scale, give federal courts a different baseline from which to reference in conceptualizing what constitutes excessive force. We then briefly conclude in Part V.

Education as Property

In 2014, a Latino family living in Philadelphia, Pennsylvania conceded in a plea bargain that they had illegally enrolled their daughter in a suburban Philadelphia school district by faking residency. Risa Vetri Ferman, a suburban-Philadelphia district attorney, had previously concluded that the family “essentially stole from every hard-working taxpayer who resides within the Lower Moreland School District.” As a result, Ferman pursued charges against the Garcias, seeking that they reimburse the district for the cost of educating their daughter and serve jail time for their transgression.

Ferman is not alone. School districts and district attorneys across the country have pursued criminal or civil penalties against parents for enrolling their children in a school district in which neither the child nor parent resides. The concept that education can be stolen by outsiders brings together multiple strains of law—criminal, education, local government, and property—to allow private parties to think of public, geographically bound resources as their private property that deserves law enforcement protection. In this Article, I engage not with the fact that parents are illegally enrolling their children in school districts in which they do not reside, but with the notion that accusing a family engaged in this behavior of “stealing” allows the accusers to claim education as private. The end result is a regime of surveillance, discipline, and punishment that reproduces race and class stratification.

Procedural Justice, Legal Estrangement, and the Black People’s Grand Jury

In recent years, increased attention has been drawn to the violence and oppression communities of color experience at the hands of police. This is most evident when looking at the rise of Black Lives Matter. Despite historically going unnoticed, the movement has catapulted police killings of Black people into the spotlight. Due to the actions of dedicated activists, the names of Michael Brown, Eric Garner, Philando Castile, Alton Sterling, Freddie Gray, Sandra Bland, and many others have appeared in the news and on social media timelines, forcing society at large to become acutely aware of the atrocities committed by the police against people of color.

While there has been increased debate and scrutiny concerning the actions of police officers, there has been little in the way of justice or remedies. Black communities have watched time and time again as the police who killed Brown, Garner, Gray, and so many others have evaded justice. Police who kill Black civilians are rarely convicted for their actions. This has led to frustration on the part of Black communities, who have expressed disdain for the current system, which they do not believe will treat them fairly. This is particularly evident in Ferguson, Missouri, following the death of a Black teenager named Michael Brown, at the hands of White police officer Darren Wilson. Brown’s death resulted in social unrest, not only in the city of Ferguson but throughout the country. This tension was exacerbated after the grand jury failed to indict Wilson. Two months later, activists associated with the International People’s Democratic Uhuru Movement (“Uhuru Movement”) convened the “Black People’s Grand Jury” (“BPGJ”) in Ferguson, Missouri. The BPGJ was a response to the non-indictment of Wilson for the death of Brown. In stark contrast to the institutional grand jury, the BPGJ was composed of jurors chosen by the community, had proceedings that were open to the public, and provided a historical analysis for contextualizing Michael Brown’s death as a systematic occurrence.

By utilizing Ferguson as a case study, this Article seeks to provide an understanding of courts as important and central actors that produce and legitimize police misconduct, thus contributing to a sense of exclusion for communities of color. This entails a theoretical framework that does not assume courts are simply one entity of a broader legal system but, instead, seeks to situate courts as an integral body and state institution that legitimizes police violence against communities of color.

This Article also serves as an expansion of existing theoretical frameworks accounting for the fraught relationship between communities of color and formal legal structures. This analysis also acknowledges the agency demonstrated by the BPGJ, which emerged as a remedy for the community’s disillusionment with a formal legal structure that it felt was unjust. By developing a Critical Race approach that is attentive to notions of legal estrangement, procedural justice, and social movement theories, this Article develops an epistemological framework for understanding how communities of color, when faced with perceived illegitimate structures, seek to create their own. While the BPGJ had no legal standing, it would be a missed theoretical opportunity to not interrogate how it served as not only an indictment of Darren Wilson but, more importantly, as an indictment of the police, the courts, and—by extension—the legal system as a whole.