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Michael Mannheimer: Police Violence and the Original Meaning of 'Due Process of Law'
Michael Ramsey

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posed Police Violence and the Original Meaning of 'Due Process of Law' (Northern Kentucky Law Review, forthcoming) (28 pages) on SSRN.  Here is the abstract:

Two different sources of law constrain police violence: state substantive law and the Constitution. State criminal law provides defenses – self-defense, defense of others, and the law enforcement defense – when police use of violence would otherwise constitute assault, murder, or other crimes. The Fourth Amendment constrains police use of violence to seize people. Lawyers, judges, and legislators often conflate the two, believing that, because the Supremacy Clause typically makes federal law supreme over state law, the constitutional standards must be woven into, or even displace, state law.

This is problematic for at least two reasons. First, the Fourth Amendment applies only where a person has been “seized.” Thus, preemption of state law by the Fourth Amendment might result in virtually no protection at all for victims of unjustified police violence in non-seizure situations. Second, state law criminal defenses have for centuries permitted violence only as a last resort, through the requirements of necessity, imminence, and proportionality, which are necessary to a successful justification claim. But the Fourth Amendment standard does not contain these constraints, at least not explicitly. As a result, judges who treat the Fourth Amendment as supplying the relevant standard for justifiable police use of violence have unwittingly abrogated this central idea that violence is justified only if absolutely necessary. This has led some state courts to impliedly reject 700 years of Anglo-American law with the stroke of a pen, a result that can be characterized, without hyperbole, as not just wrong but monstrously wrong.

One solution is to stop thinking about police violence as a Fourth Amendment issue and think of it instead as a Fourteenth Amendment “due process of law” issue. Although virtually every lawyer and judge alive today has been taught that the Fourteenth Amendment incorporates the Fourth “jot-for-jot,” that notion is problematic when one looks at what the framers and ratifiers of the Fourteenth Amendment actually thought and said. They contemplated instead that the Due Process Clause would require police to obey state law, and state prosecutors and judges to hold them to account when they don’t. Thus, a separate body of Fourth Amendment constraints is superfluous. The question in every case, regardless of whether it involves a “seizure,” should be whether police obeyed state law in using violence – and, if not, whether they have been prosecuted and punished. Instead of state law tracking the Constitution, we should think of the Constitution as tracking state law.