Abstract

Excerpted From: Harvey Gee, “Don't Shoot!”: Racialized Policing, Gunshots, and the Fourth Amendment: Unreasonable: Black Lives, Police Power, and the Fourth Amendment15 Georgetown Journal of Law & Modern Critical Race Perspectives 117 (2023) (307 Footnotes)(Full Document)

“Fourth Amendment law has effectively turned Black people into a criminalized corporal complex over which police officers can exercise enormous power.”

As seen with the killings of Michael Brown, George Floyd, Tyre Nichols, and too many others, racism and brutal police violence against Black people is unrelenting. What is the root cause? In Unreasonable, Professor Devon Carbado argues that it is the Fourth Amendment that allows the police to target Black youth via frequent contacts on the streets, explaining:

The truth is that many forms of policing that people find troubling are perfectly legal under a particular body of constitutional Fourth Amendment doctrine. Over the past five decades, the Supreme Court has interpreted the Fourth Amendment to allocate enormous power to police: to surveil, to racially profile, to stop-and-frisk, and to kill.

Police are authorized to have frequent contact with Black people. Because of the Supreme Court's colorblind approach in applying constitutional law, Professor Carbado continues, “Black people are vulnerable to police contact and surveillance through a variety of converging factors, including racial stereotyping, de facto racial segregation, and Fourth Amendment law ....” Thus, Professor Carbado argues that these abuses are not simply caused by “bad cops,” but rather the result of Fourth Amendment jurisprudence.

Professor Christopher Slobogin's Virtual Searches responds to emerging surveillance technologies and illustrates the need for Fourth Amendment jurisprudence to evolve so that the interests of law enforcement can be balanced with the need to protect our civil liberties. Surveillance tools like ShotSpotter and HunchLab, though designed to prevent crime, ultimately allow law enforcement to chip away at the right to privacy. Virtual Searches tracks the drastic reduction in our reasonable expectation of privacy under the Fourth Amendment due to surveillance technology and engages the ways in which that same technology enables racism.

Unreasonable focuses on analyzing how the Fourth Amendment allows the police to target Black people, without any mention of surveillance technology. Virtual Searches is focused on how Fourth Amendment jurisprudence needs to evolve to accommodate new police surveillance tactics, and the issue of how racial bias in the criminal justice system is relatively downplayed. These books shine a broader spotlight on the Court's need to provide clearer guidance in its Fourth Amendment jurisprudence and the corresponding need for new local, state, and federal legislation governing surveillance technology. Reading these two books together reveals how the Fourth Amendment's language has granted law enforcement the broad ability to develop such invasive surveillance technology that the rights of Black people can be more easily infringed upon. Current Fourth Amendment jurisprudence fails to meaningfully protect Black people, and the advent of new policing technology exacerbates these deficiencies. To address this issue, there must be a change on the legislative level, a process that should involve public discourse and the voice of community stakeholders who are ultimately the ones affected by these policing techniques.

Drawing on the themes presented in Unreasonable, Part I evaluates how the Supreme Court's colorblind approach to Fourth Amendment jurisprudence fails to address the reality that policing facilitates the constant surveillance and interrogation of Black people. Part II argues that ShotSpotter, one of many powerful surveillance tools used by local police departments to purportedly help fight crime, actually infringes upon privacy rights and civil liberties upon application. This analysis adds to the emerging scholarship about ShotSpotter and adjacent Fourth Amendment issues emanating from its use in so-called “high crime areas,” where law enforcement increasingly relies on ShotSpotter to create reasonable suspicion where it does not exist.

Too often, the use of ShotSpotter increases the frequency of police interactions which in turn increases the risk of Black and Latino people becoming victims of police brutality or harassment in stop and frisks. Such racialized policing facilitates the status quo of violence and bias against communities of color. Part II also evaluates HunchLab, another predictive policing technology owned by ShotSpotter that was designed to purportedly make policing more efficient but also disproportionately harms communities of color. Part II further includes an analysis of federal and state cases addressing the issue of whether the sound of gunshots detected by ShotSpotter technology can serve as reasonable suspicion for officers to stop and subsequently search individuals.

Part III evaluates Slobogin's typology for policing techniques and focuses on his “proportional principle” as an alternative to the traditional probable cause requirement for warrantless searches. Under Slobogin's “proportionality principle,” an investigative technique should be permitted under the Constitution only if the strength of the government's justification for the technique is roughly proportionate to the level of intrusion it causes. Part III then evaluates Slobogin's idea of replacing the probable cause requirement with proportional analysis and his adjoining call for a new Fourth Amendment that respects democratic policymaking and holds police accountable.

Part IV argues that spending more money on ineffective ShotSpotters placed in “high crime” neighborhoods across America is not the answer to reducing gun violence. To the contrary, ShotSpotters are part of the problem. Police misuse and overuse of surveillance technologies are factors that certainly weigh against trusting law enforcement with using ShotSpotter with little to no oversight or restriction. Yet there are innovative ways to simultaneously build trust in communities and curb gun violence.

Properly designed group violence reduction strategies foster and maintain dignity for participants in a program tailored to save lives and promote community healing. Part IV further argues against the use of costly surveillance technologies and explores important alternatives to reduce harm for both victims and perpetrators. Much has been written about the general gun control debate, mass shootings, and gun violence in high crime neighborhoods, but less attention has been paid to efforts to prevent shootings before they happen. Part IV suggests that preventative efforts such as group violence reduction strategies and gun violence restraining orders are more effective than police surveillance, and that these strategies can be structured to better protect civil liberties.

[. . .]

In sum, Fourth Amendment law currently allows police officers to target and engage Black pedestrians without any evidence of wrongdoing. As Unreasonable illustrates, and police use of technologies such as ShotSpotter and HunchLab confirms, the daily policing and interrogating of Black people contradicts the Supreme Court's colorblind approach to Fourth Amendment jurisprudence and proves that race has always mattered. In a similar vein, Virtual Searches shows how new policing technologies, such as predictive policing, are accelerating the continual erosion of the Fourth Amendment. Given the corresponding reality that a new Fourth Amendment is not likely to be created anytime soon, a more realistic pathway to protect constitutional rights and civil liberties is to approach these issues on the legislative level, after engaging with them in public forums, and involving community stakeholders. Local and state legislative efforts to promote alternatives to costly policing technologies are already underway and have shown significant promise. Unreasonable and Virtual Searches, timely and well-researched books, contribute to the ongoing debate about balancing the needs to address gun violence while also protecting our civil liberties and acknowledging our country's legacy of racialized policing.

Author is an attorney in San Francisco. He previously served as an attorney with the San Jose City Attorney's Office, Office of the Federal Public Defender in Las Vegas and Pittsburgh, and the Federal Defenders of the Middle District of Georgia. B.A., Sonoma State University; J.D., St. Mary's University School of Law; LL.M., The George Washington University Law School. The views expressed are solely those of the author, and do not reflect the opinions of past or present employers. © 2024, Harvey Gee.