According to Professor Alice Ristroph, Brooklyn Law School; Visiting Professor, Harvard Law School police force is again under scrutiny in the United States. Several recent killings of black men by police officers have prompted an array of reform proposals, most of which seem to assume that these recent killings were not (or should not be) authorized and legal. Our constitutional doctrine suggests otherwise. Suspicion plays a critical and familiar role in authorizing seizures, but less attention has been given to the equally important concepts of resistance and compliance.
Demands for compliance with officers and condemnations of resistance run throughout constitutional doctrine. Courts have authorized police to meet resistance with violence. Ostensibly race-neutral, the duty of compliance has in fact been distributed along racial lines, and may be contrasted with a privilege of resistance (also race-specific) protected elsewhere in American law.
The probable cause is a standard so frequently and easily satisfied that the police could not possibly make a stop or arrest every time they have probable cause to do so. Instead, police have discretion to choose which instances of probable cause they will pursue, and in any given case, the fact of probable cause legitimates but does not necessarily determine or motivate the police action. The suspected violation can be a mere pretext for a stop designed to investigate the possibility of other crimes, crimes about which the officer has no legally cognizable suspicion at all. Officers regularly use traffic stops to look for evidence of drug trafficking, for example. Additionally, a seizure’s reasonableness is not dependent on the need to prosecute the suspected offense. Nor does reasonableness turn on an accurate understanding of the underlying substantive criminal law; an officer who mistakenly (but reasonably) believes that it is illegal to drive with only one brake light may stop a motorist on that ground. In short, the legality of the initial decision to make a seizure turns on one criterion—objectively reasonable grounds to suspect the person—and is decidedly not an all-things considered reasonableness inquiry.
Tracing resistance and compliance helps reveal the ways in which the law distributes risks of violence, and it may help inspire new proposals to reduce and redistribute those risks. Instead of condemning all resistance, constitutional doctrine could and should protect certain forms of non-violent resistance both in police encounters and in later court proceedings. Embracing resistance could help constrain police authority and mitigate racial disparities in criminal justice, and surprisingly enough, it may yet reduce violence.
Recent incidents of police violence are the products of deeply embedded constitutional choices—constitutive choices that shape the core political narratives of the nation. Rethinking those choices may prove even more difficult though also more important, than convicting a police officer for killing a suspect.
LAW REVIEW ARTICLE MAY BE FOUND AT https://www.uclalawreview.org/wp-content/uploads/securepdfs/2017/09/Ristroph-Article-64-5.pdf