Introduction: Interest Convergence and the Limits of Law Enforcement: Developments, Prospects, and Distractions

In a New York Times Op Ed released yesterday, Professors Devon Carbado, Kimberlé Crenshaw, and Cheryl Harris reacted to Judge Scheindlin's opinion that the New York City Police Department's "Stop-and-Frisk" policy violated the Fourth and Fourteenth Amendments.  (That opinion is available in two parts: here and here).

Carbado, Crenshaw, and Harris focus on how this decision makes little difference to the status quo where the Supreme Court's approach to the Fourth Amendment permits police officers' use of race as a factor in stopping, frisking, and pulling over African-Americans and Latinos.  The government's law enforcement power remains characterized by the vast discretion afforded to officers.

This article is a very good primer on police discretion under existing Fourth Amendment law.  It effectively outlines the various parts of police searches and seizures and does so in a very approachable manner.  The article does not explore how these problems can be solved.  This is not surprising because virtually all of the practices the article discusses have been upheld by the United States Supreme Court.  This means that short of legislative action or systemic changes to police enforcement policies, changes to the status quo face a very difficult uphill battle.

My next project will be to argue that there may be a solution within reach.  Drawing on Derrick Bell's theory of interest convergence, I will outline how recent developments in the Supreme Court's Fourth Amendment jurisprudence indicate that the Court may be willing to give new force to this often-neglected safeguard.  I will then note that current discussions of government surveillance practices and the executive's use of lethal force present an excellent opportunity for a paradigm shift in Fourth Amendment law.  Finally, I warn against potential distractions that may undermine the coalition of interests that the current political climate can foster.

My hope is to have this written and sent out by the end of the current law review slating cycle.  At the same time, I will plan to write a number of posts that correspond to the various parts of the essay I will be writing in order to summarize and outline the arguments I intend to make.  This post is dedicated to the introduction, a more developed version of which appears after the jump.

          Recent revelations about federal surveillance programs, the government’s increasing use of drones, and recent Fourth Amendment jurisprudence have created a dynamic atmosphere for discussions of the government's power of law enforcement.  The Snowden leak revealed widespread surveillance practices by the National Security Agency – practices that have touched, or at least concerned, anybody with an email account or a telephone.  The federal government has increasingly used unmanned aerial vehicles to pursue its military goals abroad, with the killing of Anwar al-Awlaki generating heated debate over when the executive branch of the government may unilaterally use lethal force against a United States citizen.  And the Supreme Court, in a line of decisions starting with United States v. Jones, has introduced a new, intrusion/trespass-based approach to Fourth Amendment jurisprudence which has so far broadened scope of Fourth Amendment protections.

            These developments have created heated discussion of government law enforcement power in the academic realm, the national media, and the blogosphere.  The mass coverage of these developments, coupled with the universal impact of the government’s policies, creates an environment where the interests of diverse parties are likely to converge.  This dynamic atmosphere facilitates new ideas, and those interested in voicing critical concerns must take advantage of this window.

            Part I of this essay discusses the recent developments in the Supreme Court’s Fourth Amendment jurisprudence as illustrated by United States v. Jones and Florida v. Jardines.  I argue that these developments exemplify Derrick Bell’s theory of interest convergence whether they are approached from a cynical or historical perspective.  In Part II of this essay, I note that recent discussions of the government's law enforcement powers illustrate an alignment of interest policy discussions of government law enforcement power, specifically in the fields of surveillance and the government’s use of lethal force.  In Part III, I warn against distractions that may detract from the breadth of change that these events may facilitate, and propose how current discussions of law enforcement can effectively capitalize on recent developments to maximize positive policy outcomes.

UPDATE - 1/24/2014

I have revised the title of this post and the content to eliminate my references to the government's "police power" -- opting for the phrase "law enforcement power" -- in light of the broader connotations of the term, "police power" in legal areas other than law enforcement.