Protest Policing and the Fourth Amendment

Shawn E. Fields, Campbell University School of Law


Police crowd control techniques have come under increased scrutiny after viral videos of unprovoked violence against protesters dominated airwaves in 2020. Many demonstrators, and at least two state attorneys general, pursued civil rights claims claiming excessive use of force under the Fourth Amendment. While debate rages over the merits of those claims, surprisingly little scholarly literature exists to examine an important related threshold question: does the Fourth Amendment apply at all to police violence against protesters? This Article provides the first sustained treatment of the issue, highlighting how the United States Supreme Court's narrow definition of "seizure" and cramped notion of Fourth Amendment "standing" cast doubt on demonstrators' ability to sustain claims of excessive force under the Fourth Amendment. The Court has long defined a "seizure" as requiring an intent to submit a suspect to an officer's grasp, but crowd control techniques are designed to disperse rather than restrain protesters. Moreover, questions abound regarding whether actual submission or physical force are required to constitute a seizure, as well as what one means by "submission" or a physical touching in a crowd dispersed by chemical munitions. As to standing, while some individuals may assert personal claims, more recent attempts to aggregate protester claims through class actions or State-led parens patriae actions seem to contravene the Court's strict rejection of vicarious standing in Fourth Amendment cases. This Article critiques both the Court's seizure and standing jurisprudence as contrary to the original purpose of the amendment, articulates a novel "restraint on liberty" theory of seizures that incorporates the command to leave as equivalent to the command to stay, and charts a principled path forward for class action and state representative actions limited to the mass demonstration context.