Municipalities increasingly rely on nonpolice public safety experts—from substance abuse counselors and mental health interventionists to homeless outreach teams and violence interrupters—to address safety issues once solely within the purview of armed police. These “alternate responders” aim to resolve public safety concerns with less unnecessary conflict, violence, and death. But what happens when these nonpolice agents themselves engage in acts of unjustified brutality? The answer: not much. Police face at least the theoretical threat of sanction when employing excessive force for having committed an “unreasonable seizure” under the Fourth Amendment. But nonpolice alternate responders operate largely free from such constitutional restraints for their violent acts for three primary reasons. First, courts consistently limit the Fourth Amendment’s excessive force jurisprudence to seizures involving criminal investigations and arrests, activities in which alternate responders definitionally do not engage. Second, the Supreme Court’s narrow definition of “seizure” excludes violent dispersal tactics designed to compel citizens to leave an area, a legal loophole with particular relevance to nonpolice homeless outreach personnel increasingly called upon to break down encampments and relocate unhoused persons. Third, the one constitutional provision that applies equally to police and nonpolice government activity—the Due Process Clause— fails to restrain illegitimate violent acts unless they “shock the contemporary conscience,” a standard infected with outdated conceptions of what types of bodily invasions constitute shocking behavior, especially in the nonpolice context.
Virtually no scholarly literature has explored the violent acts of nonpolice alternate responders in general, much less the lack of constitutional safeguards protecting citizens from them. This Article provides the first sustained treatment of what I call “nonpolice brutality,” evaluates the troubling reasons why such unreasonable seizures operate outside the Fourth Amendment’s excessive force jurisprudence, and charts the unintended implications for the police reform movement. The time is right for this discussion. Alternate responders play an increasingly prominent role in public safety, with crisis interventionists, social workers, and others responding directly to 911 calls in tandem with or in place of armed police. Following the murder of George Floyd in 2020, pilot programs around the country proliferated authorizing medical technicians, mental health workers, and other conflict resolution professionals to replace law enforcement entirely in responding to emergencies. But the risk of violent confrontation, illustrated by recent high-profile cases involving alternate responders brutalizing the unhoused18 and violently sedating a motionless victim to death, highlights the need to address the near impunity with which these alternate responders operate. This Article proceeds in three Parts. Part I provides context for the police brutality epidemic and explores the rise of alternate responders as a proposed solution to this epidemic. Part II evaluates why excessive force jurisprudence so rarely applies to noncriminal, nonpolice activity and charts implications of that reality for a present and future public safety relying increasingly on alternate responders. This Part also highlights the limitations of the Due Process Clause to meaningfully constrain nonpolice violence. Part III offers jurisprudential solutions to subject more nonpolice brutality to constitutional scrutiny—solutions that are grounded in the text and purpose of the Fourth Amendment and which should find supporters across the ideological spectrum.
To read this Article, please click here: (Non)Police Brutality