Police officers should be obeyed, the orthodox view holds, and their authority should not be questioned except by after-the-fact litigation that gives courts, not suspects, the final word.
…The image of the thin blue line suggests that police do not themselves operate wholly within democratic society. The police officer, like the soldier or correctional officer or anyone else whose livelihood involves wielding physical force on behalf of the state, always stands at the periphery of civilized, law-bound society, and on that periphery, keeps one foot in a world of violence.
Thus, one implication of “the thin blue line” is a reminder that the modern
police officer is an agent of violence.
…Constitutional doctrine has steadily expanded the occasions in which it permits and even encourages police to interrupt, detain, and take custody of ordinary citizens. As police are asked to do more, they have been empowered to use more force, especially if they sense danger. The result is a different line, noticeable more for its shortness than its thinness—the line from an initial police-civilian encounter to an officer’s authorization to use deadly force.
…To put it simply, constitutional doctrine has simultaneously invited officers (1) to increase radically their potentially contentious investigative encounters, and (2) to prefer their own safety to the safety of the persons they investigate.
…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.75 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.
…Suspicion, as doctrinally relevant, means suspicion that a person has engaged in unlawful activity, even a minor or civil infraction. Racialized suspicion—an officer’s selection of a target on the basis of his or her race—is irrelevant if the officer can point to nonracial reasons to suspect an infraction.
…Given the broad authority that the police have to make seizures, it is inevitable that some of their targets will attempt to flee or resist. This reaction then authorizes the officer to use as much force as is “objectively reasonable.” …Individual interests are weighed against governmental ones. …In practice, if an officer acting on suspicion meets resistance from his target, the officer’s authority to use force expands rapidly and reaches a license to kill quickly. The target need not even actually resist. If the officer suspects nonsubmission—if he or she perceives a threat from the target—the officer becomes empowered to use force.
…In the absence of a precise test, the Court identified relevant factors to the reasonableness inquiry, “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Instead of asking what the actual officer was thinking, the question was whether a hypothetical reasonable officer could have concluded that the circumstances justified the use of force. And reviewing courts must not rely on “the 20/20 vision of hindsight,” but rather must make “allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.
…The doctrinal emphasis on objective reasonableness—on whether a hypothetical reasonable officer could have found adequate suspicion or could have believed the suspect likely to resist—produces a safe harbor in which police action actually motivated by bias, caprice, or some other non-constitutional criteria is constitutionally permissible.
…Nonsubmission—broadly understood to include noncooperation, flight,
and threats of harm as well as active resistance—has become the most important
consideration in use of force analysis. Importantly, it is the objectively reasonable
perception of nonsubmission that matters, thus creating another doctrinal safe
harbor. …Reasonable suspicion and probable cause function
as safe harbors for Fourth Amendment seizures, so that objectively reasonable
indicia of these suspicion thresholds immunize decisions to seize from further
scrutiny. Similarly, Fourth Amendment doctrine identifies relatively clearly for
police a simple factor, nonsubmission, that will shield the use of force from a
finding of unconstitutionality, whatever other particular facts may exist in a given
case. As the Graham Court emphasized, “[a]n officer’s evil intentions will not
make a Fourth Amendment violation out of an objectively reasonable use of
…The Graham Court’s other enumerated factor—the severity of the suspected crime—is now mostly ignored, as illustrated by the decision not to indict the officer who killed Eric Garner while trying to arrest him for selling loose cigarettes.
…To many officers, flight itself is sufficient to demonstrate that dangerto the public, and juries have often accepted this argument.
…Once deadly force is authorized, officers are permitted and expected to “empty their guns”—to use as much force as they can muster until the suspect is thoroughly, unquestionably incapacitated.
…The mere perception of nonsubmission will authorize an officer to use force, or more precisely, facts that would lead a hypothetical reasonable officer to perceive likely nonsubmission will generate the authority to use force. Actual nonsubmission is not required.
…If an officer perceives a threat, or later claims to have perceived such a threat, his use of force will almost certainly be found authorized.
…Constitutional doctrine draws a blueprint for police violence. It invites
officers to interrupt civilians, sometimes with minimal suspicion or no suspicion
at all. Once interrupted, the citizen must comply with the officer’s requests or
risk expanding the officer’s authority.120 Actual or perceived noncompliance
rapidly ratchets up the officer’s authorization to use force, and any noncompliance perceived to be dangerous empowers the officer to kill.
…The standard use of force continuum reflects and communicates the principle that disobedience is not to be tolerated, and force is the logical result of any resistance. It also sets the expectation of escalation: After the first resistance, force will escalate until the suspect issubdued or dead.
…In official policy, mere lack of respect for authority is not identified as a form of resistance that warrants a use of force. But in practice, many officers view a lack of respect in just that way.
…The state claims authority to use violence for the purpose of controlling and reducing private violence.
…The Supreme Court has long been aware of the burdens that Fourth Amendment doctrine imposes on persons of color. Instead of alleviating those burdens, the Court has directly increased them, effectively placing on minorities a duty of compliance with the police.
…“Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.”
Over the next several decades, however, it has become clear that Justice White’s protection of noncooperation during a stop is at odds with official doctrinal standards. The Court eventually upheld a “stop-and-identify” statute that requires at least some cooperation with police during a Terry stop, dismissing Justice White’s assertion of a right not to comply as dicta.174 And various federal courts have held that noncooperation can serve as a basis for increased suspicion, extended detention, and in some instances, the use of additional physical force. The Supreme Court occasionally refers to a right to refuse to cooperate with police but only in the context of entirely suspicionless encounters. Even in that context, noncooperation may serve as one factor among others that triggers the suspicion necessary to make a seizure. And once police have that minimal suspicion (objectively determined, without regard for any actual or race-based motivations), noncompliance is no longer protected.
…Those who advocate community policing focus on the cultivation of compliance.
…These commentators seek voluntary compliance with the police—with the state agents who are the usual entry point into prosecution, conviction, and punishment. That we are asking individuals to cooperate in their own prosecutions and punishments is sometimes obscured, or deliberately minimized, in the literature, especially by community policing proponents.
…As the discussion of near-seizures in Part I illustrated, cooperation with the police will often be taken as evidence that the entire encounter was consensual and thus not subject to Fourth Amendment suspicion requirements. A young black man approached by an officer on the sidewalk, airport concourse, or bus should comply to maximize his physical safety, but in doing so he may lose any hope of a successful subsequent constitutional challenge to the police encounter.186 Compliance may also facilitate the suspect’s own prosecution and punishment, and this is true for innocent suspects as well as guilty ones.
…The zero-tolerance approach to resistance, which shapes police training and is endorsed by Fourth Amendment doctrine, is deeply at odds with purported American commitments to individual agency and limited government. Moreover, given the pronounced racial disparities among the targets of police suspicion and the eventual recipients of punishment, a zero tolerance approach to resistance also suggests indifference to very real complaints that might be lodged against the front line of the criminal justice system. No, worse than indifference—the zero-tolerance approach knowingly penalizes those who are already most burdened by the criminal law and who have the most reason to resist its enforcers.
… In many segments of American society, and in normative academic studies of criminal law and policing, the expectation is that individuals should comply with the police. Particular officers may be abusive or act unlawfully, it is acknowledged, but the remedy for such abuses should come from the state itself. Self-help against police authority is seen as itself a mark of bad character. Individuals are expected to trust that the state will fix its own mistakes down the road through post-arrest review.
…Individuals must never resist state agents, but rather must wait for the
state to correct its own mistakes. We hear an appeal to this perfectionist view in
the immediate aftermath of each police shooting when city officials and police leaders plead with citizens to remain calm, to wait for information, to “respect the
process” and to await the state’s own conclusions about what, if anything, went
wrong and what, if anything,should be done.
…Individuals should comply, even if compliance leads to injustice down the road,
and simply trust that remedies for that injustice will lie still farther down the road. Indeed, individuals should comply even if compliance produces an immediate injustice—even if the police officer acts without legal authority. Again, the state must be given time to correct its own mistakes; the illegally arrested individual should seek relief through later judicial review of the officer’s actions. Of course, the perfectionist view does not emphasize the reality that judges often decline to “second-guess” an officer’s decisions, and that compliance by an individual may be viewed by courts as demonstrating that state agents never did anything wrong in the first place.
…This would mean many traffic offenses—broken taillights, illegal lane changes—will be addressed simply by recording the license plate and sending the registered owner a notice of violation. Limiting near-seizures and traffic stops may not immediately seem important to those concerned with police killings, but we have traversed the continuum too many times; we know that the littlest intrusions turn into the biggest ones.
…The idea that suspicion thresholds are too low and too easily satisfied is already
widely accepted among criminal law scholars. The idea that nonsubmission
might be protected is less likely to win ready agreement. Except in rare instances—
standoffs with white militia members, for example—resistance to law enforcement
is not widely viewed as a principled or political act. It is framed as a bad guy trying
to save his own skin, or harm an officer, or both.
The Constitution of Police Violence