Policing & The Problem of Physical Restraint

Abstract

The Fourth Amendment of the U.S. Constitution prohibits unreasonable “seizures” and thus renders unlawful police use of excessive force. On one hand, this definition is expansive. In the U.S. Supreme Court’s 2021 Term, in Torres v. Madrid, the Court clarified that a “seizure” includes any police application of physical force to the body with intent to restrain. Crucially, Chief Justice Roberts’ majority opinion emphasized that police may seize even when merely laying “the end of a finger” on a layperson’s body. And yet, the Supreme Court’s Fourth Amendment totality-of-the-circumstances reasonableness balancing test is notoriously imprecise—a “factbound morass,” in the famous words of Justice Scalia. Such breadth and imprecision in the Court’s Fourth Amendment jurisprudence create a problem: it under-specifies forms of deleterious police conduct. In particular, while scholarship has explored police firearm use, less research has considered the role of police putting “hands on” a civilian and its potential to escalate toward lethal physical encounters. This is regrettable, given that such a “hands on” scenario occurs millions of times a year. At worst, it has escalated into high-profile police killings in cases like those of George Floyd, Eric Garner, Rayshard Brooks, and Michael Brown. Simply put, when police lay “hands on” laypeople, they may hurt or even kill them. This Article calls this “the problem of physical restraint” and systematically considers this problem in constitutional criminal procedure, law, and policy. As an initial matter, it shows how this problem is inevitable in both reformist and abolitionist agendas. It then shows how judges, policymakers, and police departments alike have overlooked such physical restraint due to legal under-specification, the political economy of policing, and a cultural-historical contingency that includes anti-Asian attitudes. It thus argues for robust intervention—judicial, legislative, and police training—to redress this oversight in pervasive police use of force.