The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor
Graham v. Connor established the modern constitutional landscape for police excessive force claims. The Supreme Court not only refined an objective reasonableness test to describe the constitutional standard, but also held that the Fourth Amendment is the sole avenue for courts to adjudicate claims that police violated a person’s constitutional rights in using force. In this Essay, we ask: What impact did this decision have on the nature of police excessive force claims in federal courts? To address this, we engaged in a qualitative examination of 500 federal cases (250 in the twenty-six years before Graham and 250 in the twenty-six years after) and coded for the types of claims brought by plaintiffs and recognized by federal courts. We find that prior to Graham, federal courts infrequently relied upon the Fourth Amendment in assessing police excessive force claims, a pattern that dramatically changed after the decision: only 28% of the pre-Graham cases include a discussion of the Fourth Amendment whereas 90.4% of the post-Graham cases do. These findings suggest that the Supreme Court in Graham made a particular doctrinal choice in analyzing constitutional questions regarding police violence under the Fourth Amendment (which has an individualizing effect) instead of the Fourteenth Amendment’s Equal Protection Clause and its potential to allow group-based and structural analysis—a move that did not reflect a preexisting trend or consensus in the federal courts. The Court’s doctrinal choice in Graham has contributed to the perpetuation of police excessive use of force in many communities of color.
Osagie K. Obasogie and Zachary Newman,
The Futile Fourth Amendment: Understanding Police Excessive Force Doctrine Through an Empirical Assessment of Graham v. Connor,
Nw. U. L. Rev.
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