The Fourth Amendment Without Police
Abstract
What role will the Fourth Amendment play in a world without police? As academics, activists, and lawmakers explore alternatives to traditional law enforcement, it bears asking whether the amendment primarily tasked with regulating police investigations would also regulate postpolice public safety agencies. Surprisingly, the answer is often no. Courts are reluctant to recognize protections from government searches or seizures outside criminal investigations, and they are even more reluctant to require probable cause or a warrant for such conduct. Thus, by removing most public safety functions outside the criminal sphere, abolitionists also move intrusive government conduct outside these traditional strictures and guardrails.
This Article provides the first sustained evaluation of the Fourth Amendment’s limited role in a postpolice world and examines the implications of this reality. In doing so, it makes three contributions to existing scholarship. First, Part I catalogues comprehensive abolitionist proposals to replace traditional police while situating these proposals within the various semipermanent and permanent abolitionist perspectives animating them. Second, Part II applies current Fourth Amendment “special needs” doctrine to these burgeoning postpolice agencies and explores the troubling implications of nonpolice public safety entities operating largely free of the amendment’s search and seizure restrictions. Third, Part III suggests three novel lenses through which to view a postpolice Fourth Amendment—abolition subconstitutionalism, abolition endogeneity, and objective intrusion theory—that accord with the core purpose of the amendment and respond to potential privacy and liberty concerns in a world without police.