Suspicion as Safe Harbor

The Fourth Amendment is supposed to protect civilians from the police. Ironically, the Fourth Amendment also protects police by creating a safe harbor that insulates them from constitutional speech and race discrimination challenges. Satisfying the Fourth Amendment’s requirement of individualized suspicion goes far in foreclosing claims under the First Amendment and Equal Protection Clause. This is odd given the entirely different purposes the three constitutional provisions serve. The Fourth Amendment protects privacy and liberty while the First and Fourteenth Amendments protect speech and equality, respectively. This Article demonstrates that the safe harbor’s existence rests on two premises. The first premise is that police deserve a presumption of regularity because they generally rely on race and speech in a narrowly instrumental way to achieve crime control. The second premise is that the police exist to control crime and that this supremely important state interest justifies discrimination that might be actionable without a safe harbor. Both premises are incorrect. Police discrimination based on speech and race is pervasive and harmful to people of color, the poor, iconoclasts, and other disfavored groups. The police’s putative crime control mission cannot justify those harms. The safe harbor ought to be eliminated as a matter of principle. Doing so is likely to have only modest practical effect because of the police’s ability to evade judicial review. This suggests deeper constitutional problems with policing that can only be addressed through institutional redesign.