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Harvard Civil Rights-Civil Liberties Law Review

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Most Fourth Amendment cases arise under a basic fact pattern. Police decide to do something--say, stop and frisk a suspect. They find some crime--say, a gun or drugs--they arrest the suspect, and the suspect is subsequently charged with a crime. The suspect--who is all too often Black--becomes a defendant and challenges the police officers' initial decision as unconstitutional under the Fourth Amendment. The defendant seeks to suppress the evidence against them or perhaps to recover damages for serious injuries under 42 U.S.C. § 1983. The courts subsequently constitutionalize the police officers' initial decision with little or no scrutiny. Effectively, the standards that the police--consciously or unconsciously-- adopted for their own behavior are enshrined in law. Unlike legislators--constitutionally sanctioned lawmakers--police officers are usually unelected and are insulated from any democratic process. Yet police officers regularly make law by this process, fed in large part by racially discriminatory policing. No legislature could so precisely target Black people without running afoul of the Equal Protection Clause; yet police officers are protected by their status. No other executive could make laws absent an intelligible principle without violating the separation of powers. And no other executive could violate individual rights without prior legislative or judicial authorization and call it due process. This Article examines the methods of police lawmaking and its fundamental problems. Then, it explores why police lawmaking is unconstitutional on equal protection, separation of powers, and due process grounds. Police should not be able to act as both lawmaker and enforcer, let alone carry out both roles at the expense of Black people--our lives, humanity, and rights. The courts have a duty to rein in unconstitutional police lawmaking. Considering the courts' historical indifference to Black Americans' problems and deference to police, police lawmaking is likely to continue--unless the courts come to see that Black lives matter.



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