I recall the Watergate hearings in 1973. It was hard to ignore them. They were chaired by Senator Sam Ervin of North Carolina. From time to time, he reached into his jacket pocket to take out a well-worn copy of the United States Constitution. He was a strict constructionist. He thought all the answers – at least all the answers that mattered – about the structure and function of the government were right there at his fingertips.
It took a law-school education and a couple of decades of being knocked around in a courtroom for me to learn just how naïve Senator Ervin was.
The Constitution is not a document that stands on its own, speaking eternal truths. It requires interpretation. Nowhere is that as clear as in the case of the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Consider the rolling waves of protests about police treatment of African-American men.
There is no epidemic of police shootings. About 1,000 Americans were shot to death by police officers each year in the United States, according to data assembled by The Washington Post, since 2015. In very few incidents were unarmed black men shot by the police. In 2019, there were 14 such shootings; in the majority of such shootings, the men were either attacking, or attempting to attack, officers. Almost all of the shootings were examined and found to be justified.
But there is still outrage. I think people want new rules about policing.
The outrage was on display nationwide this week, when protests erupted in response to the decision of a grand jury not to indict officers in the shooting death of Breonna Taylor earlier this year in Louisville, KY. She was killed while standing next to her boyfriend, who had opened fire on police officers entering his home to execute a search warrant. The officers claimed to have fired in self-defense, and there is really no dispute that they did fire in self-defense.
No one who understands that law of policing could seriously entertain the possibility that the police were unjustified in shooting back. It really is that simple. But when actors like George Clooney express outrage over the lack of criminal charges, and the City of Louisville pays Ms. Taylor’s estate $12 million, something fundamental is being signaled. I suggest the Fourth Amendment’s shape and contour is changing before are very eyes.
Police had a warrant to enter the apartment in which Ms. Taylor was killed. It was a “no-knock” warrant, permitting officers to enter without announcing their presence, although, in this case, the officers did announce their presence. The law permits officers to shoot back when fired upon.
So what’s the solution? How to avoid another incident like that involving Ms. Taylor?
We could craft new rules, new constitutional rules, about what constitutes a reasonable search of a residence. Perhaps we conclude as a matter of law that police cannot enter a private dwelling with or without a warrant unless the owner consents. The new Fourth Amendment might simply say such entries are unreasonable. Period.
I kind of like that rule. A man’s house is his castle, right?
And what of the shooting of Jacob Blake in Kenosha, Wisconsin? There was a warrant for his arrest. He resisted officers when they tried to take him into custody. He reached into a car as officers followed him. Again, there is no serious question about whether the use of deadly force in that case was justified. It was.
But perhaps we need a new rule.
If a person refuses to be taken into custody, officers are currently permitted to use force to overcome the person’s resistance. Should the new rule be that officers must stand down if a person resists? We could decide that is reasonable. I actually saw folks post online that since officers knew where Blake lived, they could have gone to his house later.
This sort of rule strikes me as silly, and creates an incentive to flee. But, who know knows, maybe that’s what we want. The crowd seems to suggest so.
Finally, what about the shooting of Rayshard Brooks in Atlanta earlier this summer? Police questioned him, apparently suspecting that he might be unable to operate the motor vehicle in which he was found asleep, in a line of cars awaiting service at a fast-food takeout window. They sought to take him into custody. He fought back, grabbing an officer’s Taser and firing it at officers. Mr. Brooks was shot and killed. A justified shooting.
Maybe officers ought never to seek to take folks into custody unless the person presents an imminent threat to themselves or others. Perhaps the new rule should be to call a cab for a person suspected of being incapable of driving.
It sounds crazy, perhaps. But we could decide that is reasonable.
I’ve spent years litigating police misconduct claims.
We’re setting officers up for failure and inviting unrest and violence every time the public misunderstands just how violent the streets are. Why ask officers to face death or violence and then explode in rage when they defend themselves?
Defund the police? All right. And maybe defang the Fourth Amendment, too.
We get the government we deserve.
If the demand is for policing in which no one gets hurt, then let’s change the rules of engagement. Let’s require the Fourth Amendment to mean that the police can never enter a private dwelling, with or without a warrant; the police can never attempt to take a resisting person into custody; the police must avoid at all costs offending a person who may be incapable of driving, and should, instead, give such persons alternative transportation.
There’s nothing in the Constitution that says these rules aren’t reasonable. It seems to be what the protestors are asking for.
No, it’s not the Constitution Sam Ervin would have recognized. But the country is changing. So, too, are conceptions of what is reasonable.
Law and order? Nah. Let’s just return to the state of nature. It’s probably better to let scofflaws walk than watch cities burn.