Excerpted From: Shawn E. Fields, The Fourth Amendment Without Police, 90 University of Chicago Law Review 1023 (June, 20230 (359 Footnotes) (Full Document)


ShawnEFieldsWhat role would the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to police, it bears asking whether the amendment tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. The U.S. Supreme Court has emphasized that the “primary purpose” of the Fourth Amendment is to restrain criminal investigations by law enforcement. Outside that context, courts are reluctant to grant protections from government searches or seizures, and they are even more reluctant to require probable cause or a warrant for such conduct.

Herein lies a major, unexplored challenge for the police abolition movement. By removing most public safety functions outside the criminal sphere, reformers would also move intrusive government conduct outside these traditional strictures and guardrails. The unintended consequences of this diminution in constitutional privacy protections might frustrate many of the objectives of abolitionists seeking to reduce the role of the carceral state. This Article provides the first sustained evaluation of the Fourth Amendment's limited applicability in a postpolice world and examines the implications of this reality.

The time is right to consider the constitutional dimensions of an abolitionist, postpolicing world. The police-reform conversation has intensified in the wake of George Floyd's murder and subsequent worldwide protests against police brutality and racial injustice. The nature and scope of the reforms advocated have changed as well: prior moments of reflection on America's police violence problem resulted largely in calls for increased training and education, minor modifications to policing tactics, and more funding for more cops.

This moment is different. Demands to drastically reduce, or even abolish, police presence in America have gained widespread traction. While the theoretical seeds of police abolition predate the current “defund the police” movement, never before have so many lawmakers and activists seriously considered the notion of a world without police. Pilot programs replacing police with mental health first responders, social workers, and violence interrupters have proliferated since 2020. Existing crisis-intervention teams, who once acted as co-responders with police, are increasingly separating themselves from law enforcement. And the Biden administration has committed millions in funding to similar public safety alternatives.

Reflecting the urgency of the moment, a growing body of legal scholarship has begun wrestling not just with why, but how to implement abolitionist reforms. But the race to abolish police and reimagine the nature of public safety has yet to account for the postpolice role of the Fourth Amendment, which is designed to protect unwarranted government intrusion and yet aimed primarily at “the conduct of law enforcement officials engaged in [the very] criminal investigations” that abolitionists seek to eliminate. This accounting is critical, as application of the Fourth Amendment unlocks the important remedies of exclusion of illegally obtained evidence in criminal trials and civil rights redress pursuant to 42 U.S.C. § 1983.

This Article proceeds in three parts. Part I surveys the landscape of police abolition proposals, with particular attention paid to the types of activities abolitionists seek to remove from the policing function and the types of public and private actors proposed to assume these activities. Many of these proposals replace an armed government actor intruding into the often private, often intimate conduct of citizens with an unarmed actor doing largely the same things. While these agencies would remain limited to noncriminal investigations, their actions would continue to significantly intrude upon the very privacy and liberty interests of citizens protected by the Fourth Amendment.

Would nonpolice conduct implicating the search and seizure threshold of the Fourth Amendment remain subject to that amendment's traditional probable cause and warrant requirements? No. Part II explores why. The Court has shown great hesitancy to apply the Fourth Amendment to nonpolice searches and seizures where the primary intent of the actor is noncriminal. And when it has done so, the Court has created a two-tiered rubric in which noncriminal investigative conduct is governed by significantly relaxed reasonableness standards even when evidence found during a noncriminal search is used for criminal prosecution. In addition to evaluating Fourth Amendment thresholds and standards, Part II charts the implications of applying such thresholds and standards to a world without police. Here, I highlight the inefficacy of subconstitutional postpolice checks on nonpolice actors and illustrate how the root of mistrust between citizens and postpolice entities will likely persist without greater constitutional accountability.

Having identified problems with adapting current Fourth Amendment jurisprudence to a postpolice regime, Part III suggests three Fourth Amendment reforms that may prove necessary for abolitionists to achieve their stated objectives. First, this Article posits that subconstitutional checks on public actors' power (i.e., implementing state and local regulations that restrain the authority of nonpolice alternate responders) can and should inform Fourth Amendment doctrine. For an amendment driven by value-laden reasonableness balancing inquiries, the lawfulness of an actor's search or seizure is relevant to the determination that the conduct was or was not reasonable. At a minimum, a true commitment to unshackling public safety from the carceral state will require judicial acknowledgement that state and local restrictions on search and seizure also elevate the constitutional floor for unreasonable search and seizures.

Second, as nonpolice internal regulations gain a sizeable foothold in America's public safety apparatus, the protocols governing these agencies can begin to redefine the contours of the Fourth Amendment's reasonableness inquiry even in the absence of positive subconstitutional law. This bottom-up form of constitutional interpretation may seem strange to those who assume a top-down hierarchy in which the Constitution dictates to government agencies what policies and practices are permitted. But the opposite has proven true for some Fourth Amendment doctrine, particularly use of force law, where the Court defers to police departments to define through their own protocols what constitutes reasonable force. This sort of legal endogeneity lacks credibility when the actors subjected to constitutional scrutiny work to insulate themselves at the expense of others' constitutional rights. But where public actors seek to raise reasonableness standards through increased self-regulation, either through internal nonpolice agency protocols or through state or municipal regulations, limited endogeneity may prove more appropriate.

Third, the inconsistent and often arbitrary Fourth Amendment rules governing noncriminal searches and seizures do more than create a confusing subset of “special needs” Fourth Amendment law. They highlight the need for a more capacious reimagining of Fourth Amendment analysis, one which measures the reasonableness of an intrusion not from the perspective of the government actor but from the citizen whose peace has been disturbed. While the amendment's “reasonable expectation of privacy” test does consider the subjective and objective privacy interests of the citizen, that test applies consistently only in a traditional criminal investigation. Outside that core Fourth Amendment context, the Court often focuses on the subjective intent and the uniform worn by the government actor with little regard for the severity of the intrusion. This approach has it exactly backwards. The original design of the Fourth Amendment restricted oppressive and unwanted government intrusion of all kinds, and early special needs cases acknowledged as much. A return to these first principles is warranted and may prove necessary for abolitionists seeking a more just and secure world without police.

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This Article sought to accomplish three objectives. First, Part I catalogued recent comprehensive and detailed abolitionist proposals to replace traditional police with unarmed nonpolice agencies. That Part also contextualized these proposals by discussing the various strands of semipermanent and permanent abolitionist thought animating them. Second, Part II provided the first examination of current Fourth Amendment doctrine to these burgeoning postpolice agencies and explored the troubling implications of nonpolice public safety entities operating largely free of the amendment's search and seizure restrictions. Third, Part III charted a logical and necessary path for postpolice Fourth Amendment reforms that both reflects the underlying purpose of the amendment's reasonableness function and provides sufficient legal scaffolding to ensure continued protection of privacy and liberty interests for all citizens in a future world without police.

Assistant Professor of Law, Campbell University School of Law.