When NFL star Colin Kaepernick was in the spotlight in 2016 for protesting police violence, the notion of “defund the police” was just a fledgling idea in criminal justice reform. At that time, he aligned with and amplified the Black Lives Matter movement, which had reached a zenith in the wake of George Floyd’s murder in 2020. This explosive moment put police practices under heavy scrutiny and thrust the notion of “defund” into mainstream debates on police reform. Some states have embraced aspects of the “defund” ideology, but unfortunately, have faced some unsavory consequences that produce the very problem sought to be prevented.
In (Non)Police Brutality, Shawn E. Fields explains the unintended consequences of moves to defund the police. Perhaps the most damaging of these have emerged due to the reality that non-police actors can be brutal too. The main justification for defunding the police, brutality, is sometimes one of the consequences of defunding—only now it is at the hands of EMTs, mental health workers, and other police substitutes. This paradox produces a most insalubrious outcome since civilians have less legal recourse against the acts of non-police responders, leaving victims in a worse position than if they had been brutalized by police.
The Article’s path to unveiling this paradox begins with the rise of the “alternate responder” as an antidote to police misconduct. To begin, the Article situates modern forms of police brutality within the broader context of police misconduct, noting at the outset that violence “is central to police work.” (P. 829.) Physical force, at some level, is inherent in a job that requires the seizing, searching and detaining of civilians. Hence, police misconduct builds from the raw blocks of violence, over which police enjoy a quasi-monopoly.
The brutality is not distributed evenly in society but instead focuses most severely on individuals with particular intersectional characteristics, as ethnic and racial minorities and poor people bear the bulk of brutality. The data on the racial disparities among victims of police shootings is devastating, revealing that an unarmed Black person was three and a half times more likely of being shot by police than an unarmed White person. Such findings have analogs throughout police practices, with police being more likely to draw weapons, use pepper spray, push an individual to the ground, use handcuffs, and employ other violent treatment against Black people than against White people. (P. 833.) The overall picture is one in which police brutality operates as a terrifying power that is deployed in racially determinant ways.
The problem of police misconduct and its concentration on racial minorities set the backdrop for the rise of the alternate responder. Municipalities across the country worked to remove police from the equation where possible, “replacing armed police with unarmed experts in addiction, mental health, homelessness, and other noncriminal matters…The direct motivation driving alternate response mechanisms is a desire to end police brutality.” (P. 838.) But what happens when non-police responders are the ones wielding violence?
The Article approaches this question from a Fourth Amendment perspective—and the results bode ill for victims of non-police violence. As the main constitutional restraint on police use of force, Fourth Amendment jurisprudence has shaped police practices and has been the primary legal regulation on police officers. Caselaw on police misconduct indicates that the Fourth Amendment is a weak protection against police misconduct. These scanty protections are further diminished when it comes to misconduct by non-police.
The Fourth Amendment analysis begins with the standards that guide use of police force, which the Article deems a “[j]urisprudence that facilitates violence.” The discussion includes classics like Tennessee v. Garner and Graham v. Connor, the latter of which “has worked to insulate officers from accountability while justifying heinous acts of police brutality…” (P. 843.) The caselaw sets a deferential tone for police conduct and produced the doctrine of qualified immunity, which shields officers from civil rights claims. As the Article describes, “excessive force jurisprudence does more to facilitate police violence than restrain or redress it.” (P. 844.)
While in theory, it might be reasonable to imagine that Fourth Amendment protections are more robust for victims of non-police brutality, the exact opposite is true. The Article highlights how the main cases that trigger scrutiny—sexual misconduct, medical personnel, and school officials—demonstrate time and again that when challenged conduct falls outside the law enforcement/investigation context, courts are reluctant to find that the non-police responders’ conduct constitutes a search or a seizure. Automatically then, such responders operate in a strange grey zone since they are capable of inflicting police-like violence but are held to an even lower standard than police.
Non-police responder cases run the gamut. There is the paramedic who pushed down a patient and forced ingestion of psychotic medication, an outreach specialist who forcibly packed up someone’s tent and pushed that person out of the park, and other examples of non-police uses of physical force. The fact that these non-consensual touchings “are both not as invasive as rape and not conducted by police officers only further compels the conclusion that courts will not apply the Fourth Amendment to them.” (P. 853.)
The Article concludes that courts should view non-police brutality as an unreasonable seizure and the subject of Fourth Amendment protections, what it describes as a “target theory of Fourth Amendment seizures.” This approach redirects the constitutional inquiry away from government actor who commits the violation and considers the objective intrusion into a person’s bodily and liberty interests: “This approach removes justiciability issues inherent in divining the intent of government actors and allows courts to more easily and consistently apply the Fourth Amendment to clear cases of excessive force.” (P. 880.) Thus, the turn to non-police responders, though a welcome change, is one that must be approached cautiously, and “rules governing these alternate responders must reflect the serious need to restrain non-police actors from engaging in the same violent acts as they replaced.” (P. 887.)
