LAWS9100 · Law

Race, Policing, and the Constitution

Boston College Law School

The well documented phenomenon of police violence against African-Americans and other people of color now stands out as one of the most vexing and intractable social justice issues in the United States. Viral videos have shined a light on the pervasive brutality of racialized policing, a problem that once was visible only to the victims and the communities where it occurred. Legal scholars and practitioners have been drawn into the lively public debate about how, under a legal system ostensibly guided by principles of equal justice under the law, such behavior is allowed to continue without consequences for the perpetrators. The question central to this debate is whether the Constitution and established legal procedures provide a sufficient and reliable restraint on racialized police violence against people of color. Some activists, distrustful of a legal system that too often fails to hold police officers accountable for conduct that violates a persons civil and human rights, doubt the vitality of existing legal and policy responses to the issue. In the alternative, they tout remedies that include defunding or abolishing the police altogether. Others, advocating a more moderate approach, insist that by reforming existing law, policy and practices, the problem of police violence can be sufficiently mitigated. In this course, the readings and discussion will focus broadly on this debate over the role of the law in combating racialized policing. First, students will consider the extent to which the Fourth Amendment (which defines the rules of engagement for threshold encounters between the police and civilians) and the Equal Protection Clause (which prohibits discrimination based on race) offer viable protections from racialized police violence. For this segment of the course, the class discussion will highlight Terry v. Ohio and Whren v. United States as students consider whether neutral Fourth Amendment principles like reasonable suspicion to justify a stop and frisk may be implicated in the prevalence of racial profiling and other forms of racialized policing. In the second segment of the course, students will explore established accountability measures, including criminal prosecutions under state and federal law, departmental discipline, civil rights actions under 42 U.S.C. 1983 and federal consent decrees under 34 U.S.C. 12601, with the goal of understanding the limitations of each as a check on racialized police violence. In the last segment of the course, students will review a sampling of the post-George Floyd proposals for reimagining policing and insuring accountability for wrongful conduct. Here, the discussion will challenge students to critique the broad expanse of ideas emanating from the reform movement, the proposals for defunding the police and the demands for abolition of the police altogether.