Fourth Amendment Archives – Southern California Law Review

Public Protest and Governmental Immunities

October 2024October 2024Timothy Zick*

This Article presents the findings of a quantitative and qualitative study of the application of qualified immunity and other governmental immunities in the context of public protest. Relying on three unique datasets of federal court decisions examining First Amendment and Fourth Amendment claims, the Article concludes that public protester plaintiffs face an array of obstacles when suing state, local, and federal officials for constitutional injuries. Quantitative findings show that protesters’ claims are frequently dismissed under qualified immunity doctrines and that plaintiffs also face strict limits on municipal liability, new restrictions on First Amendment retaliation claims, and the possible extinction of monetary actions against federal officials. Qualitatively, the study shows protesters’ rights are underdeveloped in several respects, including recognition of the right to record law enforcement and limits on law enforcement’s use of force. The study lends additional support and new urgency to calls for qualified immunity reform or repeal, as well as reconsideration of other governmental immunities. It also concludes that much more than money damages for injured plaintiffs is at stake. Lack of adequate civil remedies may significantly chill future public protest organizing and participation.

INTRODUCTION

Between January 2020 and June 2021, there were more than thirty thousand public demonstrations in the United States.¹ In what were perhaps the largest public protests in American history, an estimated fifteen to twenty-six million protesters gathered in the nation’s public streets after George Floyd’s murder.² Although the demonstrations were predominantly peaceful, state and local law enforcement used aggressive policing methods to restrict and suppress them.³ Officers beat protesters with batons, rammed them with bicycles, used dangerous crowd containment strategies, arrested protesters without probable cause, used tear gas and other “less-lethal” force against peaceful assemblies, and unlawfully arrested legal observers including members of the press.⁴ In several cities, including Portland and the District of Columbia, federal law enforcement and other agency personnel also engaged in aggressive and violent protest policing.⁵ Former President Donald Trump told state governors to “dominate” the protesters and send them to jail.⁶

Many of these law enforcement actions violated protesters’ First Amendment and Fourth Amendment rights. Protesters can sometimes obtain judicial injunctions preventing law enforcement from using such tactics in future protests.⁷ Police departments sometimes, though far too infrequently, discipline officers for violating constitutional rights and other misconduct.⁸ However, injunctive relief and departmental discipline do not compensate for the physical and emotional injuries protesters experience at the hands of aggressive and sometimes violent law enforcement officers. As Joanna Schwartz has observed, “for many people, filing a lawsuit [for damages] is the best available way to punish police when they violate the law and give police reason not to violate the law again.”⁹

Both 42 U.S.C. § 1983 (“section 1983”)¹⁰—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics¹¹ allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights). Section 1983 applies to state and local officials, while Bivens applies to federal officials. However, protesters face a daunting array of obstacles to recovering civil damages under these laws.¹² The constitutional standards that govern protesters’ underlying First Amendment and Fourth Amendment claims may offer less-than-robust substantive protection for protesters’ activities. But even with respect to some egregious violations of protesters’ constitutional rights, governments and government officials possess broad legal immunities that often prevent recovery of civil damages.

Under section 1983, unless officers violate what the Supreme Court has described as “clearly established law,” they cannot sue officials for money damages.¹³ The doctrine of “qualified immunity” shields “all but the plainly incompetent” law enforcement and other officials from liability.¹⁴ In general, plaintiffs cannot recover unless they can show that “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority” have recognized the underlying misconduct as a constitutional violation.¹⁵ Municipal employers, who have much deeper financial pockets than individual officers, cannot be held accountable unless plaintiffs can prove they adopted and enforced a “policy or custom” of violating protesters’ constitutional rights.¹⁶ Although this evidence is hard to come by, plaintiffs are required to present it as early as the pleadings stage of a lawsuit.¹⁷

In recent years, the Supreme Court has further narrowed the circumstances in which local and federal officials can be sued for civil rights violations under section 1983 and Bivens. For example, in Nieves v. Bartlett, a 2019 decision, the Court held that so long as officers have probable cause to arrest protesters for some criminal offense, however minor, they cannot pursue a First Amendment claim that the officer retaliated against them for exercising expressive rights—unless they can prove law enforcement singled them out and treated them unequally.¹⁸ With regard to Bivens suits against federal officials, the Court has assumed such claims can go forward, but has also strongly suggested they are unwarranted extensions of Bivens.¹⁹ If these claims are rejected, protesters will be barred from suing National Park Service officials, U.S. Capitol police officers, U.S. Secret Service agents, and other federal defendants for money damages in connection with protest policing.

Protesters whose constitutional rights are violated by law enforcement and other officials deserve to be compensated for their injuries. Further, as the 2020–2021 mass protests demonstrated, officials who violate First Amendment, Fourth Amendment, and other constitutional rights need to be deterred from doing so and held accountable.²⁰ To the extent protesters believe officials cannot or will not be held fully accountable for even egregious and abusive constitutional violations, they may be chilled from exercising protest-related rights.

Despite the importance of these remedial and other concerns, there has been no systematic effort to measure the effects governmental immunities have on protesters’ ability to obtain compensation for their constitutional injuries.²¹ To obtain a measure of these effects, this Article presents the findings of a unique quantitative and qualitative study. Unlike prior studies, which focused on qualified immunity across cases and contexts, this study focuses on the fate of First Amendment and Fourth Amendment claims brought by plaintiffs against state, local, and federal officials in public protest cases.²² The study is based on three datasets consisting of more than three hundred federal court decisions and four hundred claims. In addition to qualified immunity in section 1983 cases, the study examines governmental immunities in First Amendment retaliation cases and actions against federal officials. Decisions in each unique dataset were coded to assess defendants’ success in invoking immunities to defeat protesters’ damages claims. Finally, the study provides a qualitative analysis of protesters’ First Amendment and Fourth Amendment rights. This part of the study identifies the types of constitutional claims plaintiffs typically pursued in public protest cases and the substantive “law” as the Supreme Court and lower federal courts have developed it.

The study shows that individual officers had considerable success, particularly at the summary judgment stage, defeating protesters’ section 1983 claims, and municipal defendants had even greater success. Defendants also enjoyed substantial success defeating First Amendment “retaliation” claims under the standard adopted in Nieves, often based on arrests for minor offenses. Owing to the Supreme Court’s recent skeptical pronouncements regarding Bivens claims, the study concludes that defendants are likely to defeat future First Amendment and Fourth Amendment damages claims against federal defendants. While some of the study’s quantitative findings differ from those in prior studies, in general, the results support criticisms of qualified immunity and other immunity doctrines.²³ As applied in public protest cases, qualified immunity does not serve the policy goals the Supreme Court has ascribed to the doctrine, including providing a means of redress for constitutional injuries, deterrence of unlawful conduct, and shielding officers from the burdens of discovery.²⁴ Further, the qualitative portions of the study demonstrates the relatively weak rights protester plaintiffs possess and supports the criticism that qualified immunity doctrine has resulted in a lack of development of substantive rights.²⁵ Based on these findings, the study concludes that without repeal or reform of governmental immunities, public protest itself may be significantly imperiled.

From here, the Article proceeds in four parts. Part I describes the First Amendment and Fourth Amendment rights at stake in the public protest context and the governmental immunities that affect recovery of monetary damages for rights violations. Part II describes the study design and elaborates further on the content of the three unique datasets. Part III presents the study’s quantitative and qualitative findings regarding qualified immunity, municipal liability, First Amendment retaliation claims, and lawsuits against federal officials under Bivens. Part IV proposes several reforms and actions to strengthen protesters’ rights and remedies.

I. PROTESTER INJURIES AND GOVERNMENTAL IMMUNITIES

Protesters who are injured during a public demonstration or other event can bring various legal claims against those responsible for their injuries. The focus in this study is on alleged violations of First Amendment and Fourth Amendment rights by government officials and entities, which are the most common claims pursued by injured protesters. A variety of officials and governmental entities participate in policing public protests. Possible defendants in civil rights lawsuits include state and local law enforcement, U.S. Secret Service, National Park Service, and other federal agency officials, and state or local governments. Each type of defendant can rely on robust governmental immunities. Separately and in combination, these immunities are obstacles for protesters seeking compensation for constitutional injuries.

A. Protesters’ Rights and Remedies

Protesters can experience a variety of constitutional injuries when they participate in demonstrations and other public events. Although other rights may come into play, the two principal federal constitutional protections available to protesters are the First Amendment, which protects speech and peaceable assembly, and the Fourth Amendment, which generally prohibits unreasonable searches and seizures.²⁶

Protesters may be injured owing to a wide array of First Amendment violations.²⁷ For example, officials may unlawfully deny protesters access to “public forums,” including public parks, streets, and sidewalks, where they have recognized rights to speak and assemble.²⁸ Governments may rely on invalid content-based speech regulations or enforce unlawful speech zones and other regulations that unduly restrict speech and assembly.²⁹ Law enforcement officers may also unlawfully retaliate against protesters for exercising their First Amendment rights, confiscate their signs and displays, prohibit the recording of police officers at public demonstrations, and engage in abusive protest policing methods.³⁰

Protesters may also suffer physical and other injuries stemming from Fourth Amendment violations.³¹ They may be subject to arrest without probable cause or unlawfully detained.³² Protesters may also be injured when police officers use excessive force, including physical force used during an arrest, handcuffing and other types of restraints, and use of less-lethal munitions including tear gas, pepper spray, and projectiles.³³ These violations may cause physical and psychological injuries.

There are two general types of remedies protesters can pursue when they are the victims of these or other constitutional torts. They can seek injunctive relief against government actions and policies they allege violate the U.S. Constitution (or state constitutional provisions). For example, peaceful protesters expelled from a public park can seek a court order mandating they and others be allowed to protest there in the future. Or protesters could sue for an injunction preventing police from firing tear gas into crowds of peaceful protesters.³⁴

Enjoining current or future First Amendment or Fourth Amendment violations is an important remedy. However, injunctive relief is forward-looking and declaratory. It does not compensate protesters for physical and other injuries sustained during a demonstration or other protest event because of constitutionally tortious conduct.

The other kind of relief protesters can seek in the event of constitutional violations is an award for monetary damages against individual officials and their government employers. Both section 1983 and the Supreme Court’s decision in Bivens allow individuals to sue government officials for money damages for constitutional torts (personal injuries stemming from violations of constitutional rights).³⁵ Section 1983 applies to state and local officials, while Bivens applies to federal officials. Both section 1983 and Bivens protect against deprivations of rights secured by the U.S. Constitution. Section 1983 explicitly authorizes such claims, while Bivens implies such claims from constitutional rights provisions.

Civil rights suits for money damages are a critically important means of vindicating constitutional rights. Owing to the infrequency of prosecutions brought against law enforcement for civil rights violations and the reluctance of police departments to investigate and punish their own, a lawsuit for damages may be the only way for a protester who has been injured to obtain some measure of justice.³⁶ Monetary relief compensates injured protesters for physical, economic, and other kinds of tangible harm. It can also have deterrent effects in terms of individual officer actions and municipal policies. As in other legal contexts, damages awarded for constitutional violations are intended to make injured parties whole. The damages include not only monetary and out-of-pocket expenditures, but also recovery for pain, suffering, and emotional distress. When plaintiffs prevail in federal civil rights lawsuits, they are also entitled to recover attorneys’ fees.³⁷

Although my study focuses on federal constitutional claims, protesters can sue under state civil rights laws and precedents, which generally adopt similar qualified immunity restrictions in cases involving violation of state constitutional rights. They can also bring state common law personal injury claims including assault, battery, false arrest, damages to property, and infliction of emotional distress.

Protesters’ remedial menu sounds expansive. However, as this study confirms, protesters’ claims for monetary damages against government officials and municipal entities are substantially constrained by an offsetting menu of liability-limiting immunities and related doctrines. As a result, protesters injured while engaged in lawful and peaceful expressive activities often find it difficult or impossible to hold government officials accountable for their actions.

B. Section 1983 and “Qualified Immunity”

Government officials may be entitled to “qualified immunity” in section 1983 and Bivens lawsuits. Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations.³⁸ When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.) As a general matter, officials enjoy broad legal immunity from civil rights claims under this doctrine. As the Supreme Court has observed, qualified immunity “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”³⁹

Historically, under Supreme Court precedents, whether a defendant was entitled to qualified immunity turned on the subjective “good faith” of the official who committed the alleged violation.⁴⁰ In 1982, however, the Supreme Court replaced that subjective standard with a new test framed in “objective terms.”⁴¹ Under the new test, officials are personally immune from monetary liability “even if they act in bad faith, so long as there is no prior court decision with nearly identical facts.”⁴² As the Court has explained, as long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” police officers and other officials are not liable for money damages under section 1983.⁴³

The Court has made clear its new standard is intended to be more protective of government officials than the “good faith” test. At the same time, it has also stated that the standard provides “no license to lawless conduct.”⁴⁴ According to the Court, “[i]f the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”⁴⁵

However, as Joanna Schwartz has observed after close examination of section 1983 qualified immunity cases, “the Court’s decisions over the next forty years have created a standard that seems virtually impossible to meet.”⁴⁶ Since the Court adopted its objective test, it has applied the doctrine in several ways that have made it far more favorable to defendants.

First, the Supreme Court adopted a heightened pleading standard for complaints in civil cases. The new standard requires that to avoid having claims dismissed, plaintiffs must state facts supporting a “plausible” claim for relief.⁴⁷ Schwartz has observed that this standard “may be particularly difficult for plaintiffs in civil rights cases to overcome.”⁴⁸ In some kinds of cases, including those that focus on the intent of government actors or the existence of local government policies or practices, “[a] plaintiff will not likely have any evidence . . . until they get to discovery.”⁴⁹

Second, to show the law was “clearly established,” the Supreme Court has generally required plaintiffs to point to an already existing authoritative judicial decision (or perhaps multiple decisions), with substantially similar facts. The decisional landscape is narrow. Protester plaintiffs must identify “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.”⁵⁰ Unpublished decisions do not count, and courts are reluctant to consider district court decisions.⁵¹ The clearly established standard expands the scope of the qualified immunity defense by requiring that plaintiffs identify Supreme Court or published federal appeals court decisions that are identical, or nearly identical, to the one being litigated.⁵² For example, plaintiffs’ allegation that officers’ use of a particular protest policing method violated their constitutional rights would have to point to published appeals court precedents establishing that use of this method was a clearly established violation of the First Amendment or Fourth Amendment.

Third, the Court has instructed that in assessing clearly established law, courts should not define the inquiry “at a high level of generality.”⁵³ As a result, “[c]ourts have granted officers qualified immunity even when they have engaged in egregious behavior—not because what the officers did was acceptable, but because there wasn’t a prior case in which that precise conduct had been held unconstitutional.”⁵⁴

Fourth, in 2009, the Court altered the way in which courts apply qualified immunity doctrine in a manner that created another significant obstacle for civil rights plaintiffs.⁵⁵ In an earlier decision, the Court held that when assessing a qualified immunity defense, courts must first determine whether there was a violation of a constitutional right and then address whether the law was clearly established as to that right.⁵⁶ However, the Court’s current approach allows courts to grant qualified immunity based solely on whether the law in question was clearly established—that is, without determining whether there was a constitutional violation.⁵⁷ This creates a catch-22 for civil rights plaintiffs. If courts resolve cases based on the lack of clearly established authority, there will be fewer precedents defining constitutional violations.⁵⁸ That situation, in turn, results in decisions concluding that officials are not liable because of a lack of clearly established law.⁵⁹ According to critics, it also has the effect of rendering constitutional protections “hollow.”⁶⁰ By allowing courts to rely on a lack of clearly established law without ruling on the underlying constitutional claim, the Court “perpetuates uncertainty about the contours of the Constitution and sends the message to officers that they may be shielded from damages liability even when they act in bad faith.”⁶¹

Fifth and finally, the Court’s construct of a “reasonable officer” has shifted over time to grant government officials broader deference. In a 1986 decision, the Court famously wrote that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”⁶² Since then, the Supreme Court has stated that a defendant’s conduct is to be judged on the basis of “any reasonable officer”⁶³ or “every reasonable official.”⁶⁴ As one scholar observed, this shift implies “that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’ ”⁶⁵

As Joanna Schwartz has observed, the Court has “[created one additional qualified] immunity hurdle for plaintiffs: defendants’ right to immediately appeal any qualified immunity denial.”⁶⁶ Under normal procedural rules, a litigant would have to wait until the court enters a final judgment in the case to file an appeal. The special appeals process in qualified immunity cases can add “months or years to the case and dramatically increas[e] the costs of litigation” for plaintiffs.⁶⁷

The Supreme Court has offered some general justifications for its qualified immunity standards. It has asserted that qualified immunity achieves a “balance” between allowing victims to hold officials accountable and minimizing “social costs” to “society as a whole.”⁶⁸ Noting that “claims frequently run against the innocent as well as the guilty,” the Court has identified four “social costs.”⁶⁹

First, the Court has explained that the doctrine aims to avoid “the expenses of litigation” by allowing district courts to dismiss suits against officers at early stages in the litigation—and without making fact-intensive inquiries into a particular officer’s motivations.⁷⁰ Second, and relatedly, the Court expressed concern that requiring officials to respond to such litigation can “diver[t] . . . official energy from pressing public issues.”⁷¹ Third, the Court worried that the threat of litigation would “deter[] . . . able citizens from acceptance of public office.”⁷² Finally, the Court noted that the threat of lawsuits could chill lawful law enforcement conduct. It posited “there is the danger that fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’ ”⁷³ Along similar lines, the Court explained that the doctrine of “[q]ualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”⁷⁴

The Court has also defended qualified immunity’s focus on clearly established law on the basis that it would be unfair to hold government officials to constitutional rules they were not aware of at the time of the violation. It first articulated this idea in an early decision, stating that “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”⁷⁵ Later, the Court explained: “If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”⁷⁶ As the Court has observed, “the focus” of qualified immunity is “whether the officer had fair notice that her conduct was unlawful.”⁷⁷

Critics have offered strong challenges to these justifications and to qualified immunity generally.⁷⁸ Some have attacked qualified immunity as both bad law and bad policy.⁷⁹ However, at least for the time being, the Supreme Court appears committed to retaining the doctrine.

C. Municipal Liability

Qualified immunity doctrine applies to claims against individual government officials. However, protesters can also sue municipalities, counties, and other government bodies under section 1983.

Holding governmental entities liable for constitutional violations is important for several reasons. First, these entities have much deeper pockets than individual law enforcement officers.⁸⁰ Second, holding employers liable for constitutional violations caused by their actions or policies puts pressure on those employers to change their unconstitutional behavior.⁸¹ Third, assuming the unconstitutional harm emanated from the employer, it is just to hold it, as opposed to individual officers following the employer’s commands, directly responsible for the violations.⁸²

In Monell v. Department of Social Services, the Supreme Court held that a municipal government can be held liable under section 1983 for constitutionally tortious actions.⁸³ However, under Monell and subsequent precedents, the Court has significantly narrowed the path to recovery.⁸⁴

Local governments can be held liable under section 1983 for enacting unconstitutional policies.⁸⁵ They can also be held liable if an official with “final policymaking authority” violates the Constitution.⁸⁶ However, these theories are “uncommonly relied upon” because they require plaintiffs demonstrate constitutional wrongdoing “at the highest levels of government.”⁸⁷ “Final policy makers” such as local police chiefs are rarely directly involved in applying unconstitutional policies.⁸⁸ Moreover, as Schwartz has observed, “local governments do not usually adopt policies that are unconstitutional on their face—a policy requiring officers to use excessive force, for example, or requiring officers to arrest people who exercise their First Amendment free speech rights.”⁸⁹

Most commonly, to establish Monell liability, plaintiffs must demonstrate a deprivation of a federal right occurred because of a “policy or custom” of the local government’s legislative body or of those local officials whose acts may fairly be said to be those of the municipality.⁹⁰ The informal policy or custom alleged to have caused the constitutional injury must be “so persistent and widespread as to practically have the force of law.”⁹¹ Under the policy or custom theory of section 1983 liability, local governments cannot be held liable for the actions of their employees solely because of their employment status.⁹² Rather, an employee must be acting pursuant to a municipal policy or custom, and the employer can only be held liable if one of their employees has committed an underlying constitutional violation pursuant to the policy or custom.⁹³

One theory or basis of policy or custom municipal liability that is particularly germane to public protest cases is the charge that local governments failed to train and supervise law enforcement and other officers.⁹⁴ As with other theories, however, it is very difficult to prevail on this claim. Courts have essentially treated the way a police force chooses to train its officers as a matter of policy not generally subject to judicial second-guessing in civil rights lawsuits. As the Supreme Court has noted, “the inadequacy of police training may serve as the basis for § 1983 liability,” but “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.”⁹⁵

At each stage of litigation, protester plaintiffs face severe challenges in terms of alleging and proving a policy or custom sufficient to hold local governments accountable. At the complaint-drafting stage, plaintiffs often lack access to the facts necessary to allege an informal policy or custom.⁹⁶ Thus, they may not be able to survive a local government’s motion to dismiss for failure to meet basic pleading requirements. Even at later stages of litigation, plaintiffs are likely to struggle to adduce evidence not just that their constitutional rights were violated, but that any violations were caused by an informal policy or custom. Among other issues, the Supreme Court “has not clarified what can serve as evidence of prior constitutional violations sufficient to put police chiefs on notice that their officers need better training or supervision.”⁹⁷

The municipal liability standards have resulted in a complex, stringent, and “nonsensical” standard of municipal liability.⁹⁸ As one commentator observed, “[the] doctrine of municipal liability is convoluted and can require difficult inquiries into which city officials are ‘policymakers’ under state law on local government, into whether a[n] official was acting in a ‘local’ or ‘state’ capacity, into the extent of departmental ‘custom’ authorizing constitutional violations, into individual cities’ training and hiring processes, and into demanding questions about causation and fault.”⁹⁹

D. First Amendment “Retaliation” Claims

In addition to the many challenges posed by general qualified immunity doctrines under section 1983, the Supreme Court has recently adopted new liability limits on a specific type of claim based on retaliation for the exercise of First Amendment rights. The Court has recognized a general defense to such claims based on a finding of probable cause to arrest the speaker for any violation of law.

The First Amendment prohibits government officials from subjecting individuals to retaliatory actions because they engaged in protected speech.¹⁰⁰ To succeed on a First Amendment retaliation claim, plaintiffs must prove they engaged in a constitutionally protected activity, the defendant’s actions would “chill a person of ordinary firmness” from continuing to engage in the protected activity, and the protected activity was a substantial motivating factor in the defendant’s conduct—i.e., that there was a nexus between the defendant’s actions and the intent to chill speech.¹⁰¹

These claims have always been difficult to win. Proving retaliatory motive is difficult, but in any event not sufficient. The speaker must show that the adverse action would not have been taken absent the official’s retaliatory motive.¹⁰² For example, suppose participants arrested at a public protest claimed law enforcement restricted or suppressed their speech in retaliation for the message they conveyed. To prevail, plaintiffs must show the officer would not have arrested them or interfered with their protected speech “but for” the retaliatory reason. If the officer can show the protesters were obstructing traffic or there was any other non-retaliatory reason for the arrest, the First Amendment claim would fail.

One long-unsettled question in such cases was whether the existence of probable cause to arrest a speaker precluded a First Amendment retaliation claim brought under section 1983. In Nieves v. Bartlett, the Supreme Court answered this question in the affirmative.¹⁰³

In Nieves, the Court upheld the dismissal of a First Amendment retaliation claim brought by an individual arrested at a festival after he exchanged heated words with officers assigned to police the event. The Court held that when speakers allege officers arrested them in retaliation for the exercise of First Amendment activities, probable cause for the arrest is usually a complete defense.¹⁰⁴ Echoing its justifications for adopting the general qualified immunity standards, which were discussed earlier, the Court indicated it was concerned that officers who must often make “split-second” decisions when deciding whether to arrest will sometimes rely on the suspect’s protected speech in doing so.¹⁰⁵ The Court also reasoned that determining whether the arrest was in retaliation for the speech in such cases would often be difficult.¹⁰⁶ Thus, it concluded plaintiffs should be required in retaliation cases to plead and prove the arrest was objectively unreasonable before inquiring into the official’s subjective mental state.¹⁰⁷

The Nieves standard applies in a broad variety of contexts. However, the Court justified it using a protest-related example. The Court was concerned, it said, that “policing certain events like an unruly protest would pose overwhelming litigation risks” for officers who arrest participants.¹⁰⁸ “Any inartful turn of phrase or perceived slight during a legitimate arrest,” the Court worried, “could land an officer in years of litigation.”¹⁰⁹ The Court was concerned officers would be deterred from discharging their duties or “would simply minimize their communication during arrests to avoid having their words scrutinized for hints of improper motive—a result that would leave everyone worse off.”¹¹⁰

The Nieves rule is subject to an exception. The Court concluded “the no-probable-cause rule should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”¹¹¹ If a plaintiff produces this comparative evidence, the burden shifts to the official to show some non-retaliatory basis for the arrest.¹¹²

The Nieves rule makes it more difficult for protesters, reporters, and others attending or participating in a public protest to demonstrate they were arrested in retaliation for their communications or other First Amendment–protected activities.¹¹³ As the data from this study confirm, in most cases it will mean that probable cause to arrest a speaker for any offense, however minor, will negate a First Amendment retaliation claim.¹¹⁴

E. Damages Claims Against Federal Officials

In Bivens, the Court implied a cause of action for damages against federal officials who violate individuals’ rights under the Constitution.¹¹⁵ The claim in Bivens was based on a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures.¹¹⁶ The Court has also recognized Bivens actions for Fifth Amendment and Eighth Amendment violations.¹¹⁷ However, during the past four decades, the Court has not recognized any additional Bivens claims. It has become increasingly skeptical of Bivens lawsuits in general, and specifically in the context of First Amendment and Fourth Amendment claims.¹¹⁸ At this juncture, it is not clear protesters have any right to sue federal officials for damages relating to First Amendment or Fourth Amendment violations.

According to the Court, Bivens and its progeny “were the products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated.”¹¹⁹ The Court has criticized this “ancien regime,” noting that “[i]n later years, [it] came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power.”¹²⁰ Accordingly, the Court noted, “for almost 40 years,” it has “consistently rebuffed requests to add to the claims allowed under Bivens.”¹²¹

In 2017, the Court outlined a two-step framework intended to limit the expansion of Bivens remedies.¹²² Under this framework, a court must first consider whether a case “arises in a ‘new context’ or involves a ‘new category of defendants.’ ”¹²³ The Court’s “understanding of a new context is broad.”¹²⁴ The standard is whether “the case is different in a meaningful way from previous Bivens cases” decided by the Court.¹²⁵ If so, the court must “ask whether there are any ‘special factors that counsel hesitation’ about granting the extension.”¹²⁶

According to the Court, “special factors” are rooted in concerns about the separation of powers among the branches of federal government.¹²⁷ They include, but are not limited to, the existence of alternative remedies and respect for coordinate branches of government. Thus, a court must “consider the risk of interfering with the authority of the other branches, . . . ask whether ‘there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy’ . . . and ‘whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.’ ”¹²⁸ If any factor causes a court to hesitate, the court should “reject the request” to recognize the Bivens claim.¹²⁹ In general, the Court has described the expansion of Bivens as “a disfavored judicial activity.”¹³⁰

Although the Court has assumed First Amendment claims may be brought under Bivens, it has never expressly held as much and has sometimes expressed skepticism regarding such claims.¹³¹ In Egbert v. Boule (2022), the Court ruled that plaintiffs could not sue federal officials for money damages based on First Amendment retaliation and Fourth Amendment excessive force claims.¹³² The Court rejected both claims on the grounds that implied actions under Bivens do not extend to “new” contexts and Congress was in a better position to determine whether to recognize any such actions.¹³³ Although Egbert did not arise in the context of a public protest, the Court’s holding that First Amendment retaliation claims and Fourth Amendment excessive force claims are not viable under Bivens bodes ill for similar claims in other contexts.

II. STUDY DESIGN AND DATASETS

The purpose of this study is to assess how the foregoing governmental immunities have affected plaintiffs’ First Amendment and Fourth Amendment claims against government officials under section 1983 and Bivens for injuries sustained at public demonstrations and other events. The study tracks the disposition of more than 400 constitutional claims in over 300 federal civil rights cases.

Unlike other qualified immunity studies, which examined broad categories of decisions or dockets, my study focuses on a discrete set of activities—“public protest”—that gave rise to section 1983 and Bivens claims.¹³⁴ The decision to focus on public protest cases and claims required that the study define and identify “public protest.” For purposes of all three datasets, “public protest” was generally defined as a set of facts in which one or more individuals participated in a public march, rally, demonstration, parade, or other similar activity. Claims involving conduct related to public protest, including leafletting, public displays, and certain kinds of expressive conduct such as flag burning, were also included in the datasets. By contrast, the datasets excluded First Amendment and Fourth Amendment claims in areas including prisoner litigation, employment-related actions, conflicts involving K-12 student speech, and actions filed in connection with ordinary traffic stops or domestic disturbance calls. This definition obviously could be narrower or broader, and the public protest limit necessitated some judgment calls. Not all decisions involved large or mass demonstrations, but many did, and all included claims involving the kind of “out of doors” protest, hand-billing, and related activities typically engaged in during traditional public protest activity.¹³⁵

To conduct the study, I compiled three unique datasets. Each dataset consists of federal district court and appeals courts (including Supreme Court) decisions, which I read and coded. The first dataset, Qualified Immunity, includes 253 district and appellate court decisions, both published and unpublished, in which qualified immunity was raised as a defense to First Amendment or Fourth Amendment claims in the context of public protests.¹³⁶ In combination, these decisions addressed a total of 468 First Amendment and Fourth Amendment claims. The study examined cases from 1982, when the Supreme Court adopted its modern “two-step” qualified immunity approach, to December 2022.¹³⁷

Each of the 253 decisions in the Qualified Immunity dataset was coded for: (1) court; (2) date of decision; (3) whether the decision was published or unpublished; (4) type of constitutional claim (First Amendment or Fourth Amendment); (5) procedural posture in which a qualified immunity defense was raised (Summary Judgment, Motion to Dismiss, or Trial); (6) disposition of the motion to dismiss on qualified immunity grounds (granted or denied); (7) whether denials of summary judgment addressed the merits or were based on the existence of genuine issues of material fact; (8) whether a motion to dismiss or for summary judgment was granted based on Step One, Step Two, or Both steps of the qualified immunity analysis; (9) in appeals, whether the appellate court affirmed or reversed the district court’s qualified immunity disposition; (10) description of the First Amendment or Fourth Amendment claim; and (11) basis for the court’s conclusion on the qualified immunity motion. All decisions in the Qualified Immunity database were also coded for (12) whether plaintiffs pursued a claim for municipal liability under Monell; (13) whether a defense motion to dismiss or for summary judgment on the Monell claim was granted or denied; and (14) general grounds for the court’s disposition of the municipal liability claim.

The other two datasets are more limited in scope. The Nieves Retaliation Claims dataset includes forty-one published and unpublished federal court decisions from 2019 through December 2022.¹³⁸ Each decision was coded for (1) procedural posture; (2) disposition of a defense motion to dismiss or for summary judgment based on Nieves; (3) criminal offense(s) charged; (4) whether the decision addressed the Nieves unequal treatment exception and, if so, the court’s disposition of that part of the claim; (5) whether plaintiffs pursued a claim for retaliation against the municipality; and (6) disposition of the retaliation claim.

The Bivens Claims dataset includes twenty-six published and unpublished decisions between 1971 and the end of December 2022 in which courts addressed First Amendment or Fourth Amendment Bivens claims in the context of public protests.¹³⁹ Each decision was coded for (1) type of constitutional claim (First Amendment, Fourth Amendment, or both); (2) whether the court recognized a Bivens First Amendment or Fourth Amendment cause of action; and (3) in the event the court did not recognize the Bivens action, its reasoning (for example, claim arises in a “new context,” the presence of “special factors,” and so forth).

All three datasets have statistical and other limitations that narrow the study’s scope and findings. Most empirical qualified immunity studies have relied on decisions available on Westlaw.¹⁴⁰ However, as Joanna Schwartz has observed, because Westlaw omits many unpublished opinions as well as lawsuits resolved without any opinion, such studies can “say little about the frequency with which qualified immunity is raised, the manner in which all motions raising qualified immunity are decided, and the impact of qualified immunity on case dispositions.”¹⁴¹ However, as Schwartz acknowledges, such studies can “offer insights about the ways . . . courts assess qualified immunity . . . in a written opinion.”¹⁴² The study examines opinions accessible to courts when they analyzed qualified immunity and other defenses in protest cases.

There are some quantitative limitations. Since my study is limited to claims brought in “public protest” cases, it is not based on a random or complete sample of all qualified immunity decisions. Thus, quite intentionally, it does not purport to make claims about the dispositions of all qualified immunity motions. Moreover, because my study considers both district court and appeals courts decisions, and primarily claims addressed at both the motion to dismiss and summary judgment stages, it cannot account for all final dispositions of qualified immunity motions in the study.¹⁴³ For example, a qualified immunity motion denied at the motion to dismiss stage could be granted or denied later at summary judgment. Or the case may settle. The Retaliation Claims and Bivens Claims datasets, which are smaller samples, have similar quantitative limitations. In addition, the sample sizes in these two datasets are relatively small. The three datasets provide snapshots of how courts have disposed of qualified immunity and other motions in public protest cases during the relevant time periods.

Even with the foregoing limitations, the study offers a rare glimpse into how courts address qualified immunity in public protests cases. The data also provide information about the most common types of claims protesters pursued and how these different claims fared under qualified immunity, whether defense motions to dismiss or for summary judgment were successful, how courts applied the two-step qualified immunity analysis, whether Monell claims were pursued and sustained, the effect of Nieves on First Amendment retaliation claims, and whether protesters have been able to pursue Bivens actions. In addition, the study’s qualitative analysis helps reveal the extent to which First Amendment and Fourth Amendment law has developed—or failed to develop—in the public protest context and the extent to which courts have left important questions unanswered. In sum, the study offers an in-depth analysis of how qualified immunity has affected constitutional claims brought by protester plaintiffs.

III. DATA AND FINDINGS

This Part presents the study’s data and principal findings. It begins with a quantitative and qualitative examination of the largest dataset, Qualified Immunity. The Part then turns to the effect of governmental immunities and defenses on municipal liability, First Amendment retaliation claims, and protesters’ Bivens actions.

A. Section 1983 and Qualified Immunity

This Section presents findings from the Qualified Immunity dataset. It begins with a general overview of the dataset, and then discusses more detailed quantitative findings concerning First Amendment and Fourth Amendment claims. In connection with the discussion of these claims, the Section also presents qualitative assessments of the state of clearly established First Amendment and Fourth Amendment law in public protest cases.

1. Qualified Immunity Dataset: Overview

Table 1 contains general information about the overall number of cases, whether decisions were published or unpublished, and the distribution of federal district court and courts of appeals decisions in the Qualified Immunity dataset. As indicated, this dataset includes federal district and appellate court public protest decisions from 1982 through the end of 2022 in which defendants sought dismissal or summary judgment based on qualified immunity. It does not include state-level constitutional claims or qualified immunity decisions.

The Qualified Immunity dataset consists of 253 (published and unpublished) federal district court and appellate court decisions. As noted earlier, for purposes of establishing whether there is clearly established law regarding a constitutional right, courts look primarily to published courts of appeal decisions (although some will also look to published district court decisions). There are more than twice as many published (170) as unpublished (83) decisions in the database. In terms of precedents most likely to be considered controlling, there are eighty-six published appeals court decisions—including two decisions from the Supreme Court.¹⁴⁴

Table 1. General Case Data
Cases in the Dataset	253
Published Cases	170
Unpublished Cases	83
Appellate Cases (Including Supreme Court)	114
District Court Cases	139
Published Appellate Cases	86

The study of the Qualified Immunity dataset focused primarily on the disposition of First Amendment and Fourth Amendment claims subject to defense motions for dismissal or summary judgment based on qualified immunity. As indicated in Table 2, the dataset includes 468 distinct First Amendment and Fourth Amendment claims as to which defendants filed such motions. A claim was counted just once, even if brought against multiple defendants—unless the court disposed of the claim differently for certain defendants, in which case the claim was counted more than once. In general, courts tended to analyze qualified immunity motions by multiple defendants together.

There were slightly more First Amendment (253) than Fourth Amendment (215) claims in the dataset. More qualified immunity motions concerning these claims were decided by federal district courts (287) than by federal appellate courts (181). In many cases, no appeal appears to have been filed after the district court disposition of defense qualified immunity motions. Although it is possible appeals were filed but not noted on Westlaw, many cases appear to have terminated at the district court level without any interlocutory or other appeals.

The study examines constitutional claims subject to defense qualified immunity motions, again in cases that resulted in a published or unpublished opinion available on Westlaw. If, at the time the study period closed, an appellate decision was not available in Westlaw, then the district court decision was included in the dataset. In all other cases, the highest available appellate decision (Supreme Court or federal court of appeal) was coded instead of the district court opinion.

Table 2. General Claims Data
Claims in the Dataset	468
First Amendment Claims	253
Fourth Amendment Claims	215
Claims Considered in District Courts	287
Claims Considered in Appellate Courts (Including Supreme Court)	181

Like other studies, mine tracks the disposition and analysis of constitutional claims brought by protester plaintiffs.¹⁴⁵ A docket study focusing on public protest cases, as defined for purposes of the study, was not feasible. Even if all public protest cases could be identified through a review of court dockets, to get a substantial sample one would need to review complaints filed in a multitude of districts.¹⁴⁶ Focusing on defendants would provide some information about how many individual officers were sued and how many achieved dismissals, but it would not provide information about why they were sued or how courts analyzed constitutional claims in qualified immunity cases.¹⁴⁷ Focusing on case-level data, for example, how many cases resulted in dismissal on qualified immunity grounds, would likewise not tell us what kinds of claims protesters typically bring, the dispositions or success rates of defense motions to dismiss or for summary judgment regarding specific claims, and information about substantive First Amendment and Fourth Amendment law. My study focuses primarily on claim-level findings to learn how courts have analyzed motions to dismiss claims based on qualified immunity in the specific context of public protest.

Success rates overall and by claim for defense motions to dismiss or for summary judgment based on qualified immunity are reported in Figure 1. The Qualified Immunity dataset includes only cases in which defendants raised a qualified immunity defense as to one or more constitutional claims and courts explicitly addressed the defense. A defense qualified immunity motion was deemed “successful” if it was granted or dismissal of the claim was upheld on qualified immunity grounds. Motion success was not defined as disposing of all claims in the case, including Monell, state law, and other actions.¹⁴⁸ Rather, my study focused on the qualified immunity determination with respect to each claim of constitutional wrong.

Figure 1. Defense Q.I. Motion Success Rates

Although approximately a third of qualified immunity motions succeeded at the pleadings stage (53/152 for all claims), as in other studies defendants were far more likely to prevail at summary judgment.¹⁴⁹ Examination of qualified immunity decisions in protest-related cases thus adds some support for the claim that the defense does not generally serve the goal of weeding out cases at the earliest stages of litigation and sparing defendants the expenses of discovery.¹⁵⁰ Defense success rates at the motion to dismiss stage in my study are somewhat higher than those reported in some others, but generally consistent with dismissal findings across studies.¹⁵¹ In sum, in most protest cases plaintiffs were able to proceed to discovery on their claims.

As noted, courts were more likely to grant summary judgment on qualified immunity grounds than to dismiss at the pleadings stage. Across all claims, defendants prevailed on 58% (183/313) of their motions. That success rate was consistent across claims, with courts granting 60% (101/168) of defense qualified immunity motions in First Amendment cases and 57% (82/145) of summary judgment motions in Fourth Amendment cases. Again, these numbers are generally consistent with those reported in other studies.¹⁵²

Courts denied summary judgment as to 130 claims. In 53% of those cases (69/130), the defense motion was denied because there were genuine issues of material fact at issue. In the other 47% (61/130) of summary judgment motions, courts denied the motions on the merits (that is, held that plaintiffs had met their burden of showing a violation of clearly established law).

As shown in Figure 2, appellate courts were more likely than district courts to rule in defendants’ favor on qualified immunity. In published and unpublished decisions available on Westlaw, district courts granted 45% (128/287) of defense motions. Appellate courts ruled in defendants’ favor on 60% (109/181) of plaintiffs’ constitutional claims. These numbers are likely owing in part to defendants’ low rate of success at the pleadings stage, which in many instances were the last results coded. District courts, which faced more defense motions at the pleadings stage, were inclined to allow for some factual development before dismissing plaintiffs’ claims.

Figure 2. Q.I. Motion Success Rates by Court

Figure 3 shows that appellate court success rates were similar if one considers only the eighty-six published decisions. Courts granted or upheld defense qualified immunity defenses with respect to 57% (77/135) of all constitutional claims. In published appellate decisions, the rate of success for defendants was still lower (48% or 15/31) at the motion to dismiss stage than when the case had reached the summary judgment stage (60% or 62/103). However, in published decisions appellate courts ruled in defendants’ favor at the pleadings stage at a somewhat higher rate than did all courts at that stage.¹⁵³ Appellate courts may have been responding to the Supreme Court’s directive that non-meritorious cases should be dismissed at an earlier stage, or they may simply have been convinced that plaintiffs had not adequately pleaded a clearly established violation under applicable pleading rules.

Figure 3. Q.I. Motion Success Rates in Published Appellate Decisions

As discussed earlier, under qualified immunity doctrine, courts can dismiss or grant summary judgment for defendants if the plaintiff has not demonstrated a constitutional violation occurred (“Step One”) or if, despite the occurrence of a constitutional violation, the law was not “clearly established” at the time the violation occurred (“Step Two”).¹⁵⁴ Prior to 2009, the Supreme Court instructed lower courts to address these two steps in order.¹⁵⁵ In 2009, the Court held the sequence was not mandatory; thus, courts could skip Step One and base decisions solely on analysis at Step Two.¹⁵⁶

Grants of defense qualified immunity motions were coded for sequencing. If a claim was dismissed or defendants prevailed on summary judgment, the disposition was coded “Step One” when the basis for granting or upholding qualified immunity was the absence of a constitutional violation, “Step Two” if the sole basis for granting or upholding qualified immunity was the court’s conclusion that the law was not “clearly established,” and “Both” if the court granted or upheld qualified immunity on the basis that there was a constitutional violation but the law was not “clearly established” at the time. The few instances in which the court’s decision was unclear regarding which Step it was relying on were also coded as “Both.”

Figure 4. Sequencing and Success Rate

As indicated in Figure 4, when courts ruled in defendants’ favor in public protest cases, they did so at Step One 57% of the time (133/235). For Fourth Amendment claims, courts granted qualified immunity at Step One 63% (67/107) of the time. That percentage dropped to 52% (66/128) for First Amendment claims. The higher rate for Fourth Amendment claims may be attributable to the lenient probable cause and excessive force standards applied in Fourth Amendment cases, which make it more likely courts will conclude there was no constitutional violation. Of course, the higher success rates for defense motions may also be attributable to the relative weakness of the plaintiffs’ Fourth Amendment claims. Although not included in Figure 4, the number of overall Step One dispositions was somewhat higher (65% or 50/77) if one looks only at the eighty-six published appellate court decisions in the dataset.

Scholars have raised the concern that if courts proceed directly to Step Two there will be fewer opportunities to develop “clearly established” law, thus making it more difficult for plaintiffs to prevail in qualified immunity cases.¹⁵⁷ There is also a related concern that constitutional law will stagnate or fail to develop if courts do not rule on the constitutional question at Step One.¹⁵⁸

My data do not indicate courts are engaged in widespread avoidance of constitutional issues in public protest cases. But again, the findings may be driven in part by the constitutional standards courts are called upon to apply to First Amendment and Fourth Amendment claims. Those standards call for, among other things, consideration of context and assessment of the “reasonableness” of governmental actions. The constitutional doctrine may make it easier for courts to dispose of claims by concluding no violation has occurred, that plaintiffs have not satisfied their burden of providing evidence of a constitutional violation, or that the law is not sufficiently clear.

The data show that in a significant percentage of instances, 35% overall (82/235), courts relied on the Step Two conclusion that the law was not “clearly established.”¹⁵⁹ In these instances, courts did not address the substance of the constitutional claims. As discussed later, judicial reliance on a lack of clearly established law in public protest cases has probably limited development of substantive constitutional law regarding First Amendment and Fourth Amendment rights.¹⁶⁰ Consider that in 42% (54/128) of rulings in defendants’ favor on First Amendment claims, courts relied on the absence of clearly established law regarding issues ranging from the constitutionality of exclusions of protesters from public properties to the right to record law enforcement. Those rulings make it more difficult for plaintiffs in future cases to prove a violation or show the law is clearly established.¹⁶¹ Courts also avoided the constitutional question in motions addressing a quarter of Fourth Amendment claims.

Some commentators have suggested that qualified immunity doctrine allows for development of substantive law because it permits courts to find a constitutional violation at Step One but still hold the law was not clearly established at Step Two.¹⁶² My data show little evidence of such innovative judicial practice. Only 6% (8/129) of First Amendment claims were disposed of in this way, with a slightly higher percentage of Fourth Amendment claims (11% or 12/108). Again, these percentages track other studies’ findings.¹⁶³

Finally, my data show that appellate reversal or affirmance rates in protest-related qualified immunity cases were very low. Overall, appeals courts reversed lower court decisions on qualified immunity only 33% (59/181) of the time. For First Amendment claims, the reversal rate was 33% (36/108) and for Fourth Amendment claims it was 32% (23/73). These reversal rates are generally consistent with those reported in other qualified immunity studies.¹⁶⁴ A closer look at these data demonstrates that appellate courts reversed district courts 40% of the time (25/62) when they denied a qualified immunity motion, but only 26% of the time (30/114) when they granted a qualified immunity motion. This finding is consistent with the data in Figure 2, which show appellate courts were more likely to rule in favor of qualified immunity across a range of claims.

2. First Amendment Claims

In addition to the general claims data discussed above, the Qualified Immunity dataset includes more specific information about First Amendment claims. The data include the types of claims protesters pursued, the success rates for qualified immunity motions respecting different types of claims, and the substantive law as it pertains to the First Amendment rights of public protesters.

i. Types of Claims

There are 253 First Amendment claims in the Qualified Immunity dataset. Figure 5 shows the distribution and frequency of the six most common types of First Amendment claims.

Figure 5. Types of First Amendment Claims

Retaliation claims were the most frequently litigated type of First Amendment claim. Law enforcement or other government officials violate the First Amendment when they arrest, use force against, or otherwise restrict expressive activity in retaliation for the exercise of First Amendment rights.¹⁶⁵ To prevail on a retaliation claim, “the plaintiffs must show that they engaged in protected activity, that the defendants’ actions caused an injury to the plaintiffs that would chill a person of ordinary firmness from continuing to engage in the activity, and that a causal connection exists between the retaliatory animus and the injury.”¹⁶⁶

As discussed earlier, in Nieves v. Bartlett (2019), the Supreme Court modified the law with respect to retaliation claims.¹⁶⁷ The Qualified Immunity dataset includes decisions addressing seventy-eight retaliation claims subject to the standards that applied prior to Nieves.¹⁶⁸

Nearly half (124/253 or 49%) of the First Amendment claims pertained to protesters’ rights to access public properties and the doctrines that apply to speech and assembly in those places. Individuals and groups have a First Amendment right to speak and assemble in certain public properties, including public streets, parks, and sidewalks.¹⁶⁹ While governments can impose content-neutral time, place, and manner restrictions on speech and assembly in these “quintessential” public fora, they generally cannot restrict expression based on its content or prohibit access altogether.¹⁷⁰ Under the First Amendment, regulations of speech based on subject matter or viewpoint receive strict judicial scrutiny and must be narrowly tailored to further compelling governmental interests.¹⁷¹ Thirty-seven First Amendment claims asserted that government regulated speech based on its content. Time, place, or manner regulations are subject to a lower degree of judicial scrutiny. They must be content-neutral, supported by important governmental interests, narrowly tailored to burden no more speech than necessary, and must leave available alternative channels of communication.¹⁷² Fifty-three First Amendment claims involved application of this standard.

Under the First Amendment, protesters and other speakers also have a right to access other public forums, primarily depending on the extent to which governments intend to allow expressive activities in these places and the extent to which such activities would affect their ordinary functioning.¹⁷³ In places generally open to the public for expressive purposes, or so-called designated public fora, governments can impose content-neutral time, place, and manner regulations.¹⁷⁴ In “non-public” or “limited” public forums, regulations need only be viewpoint-neutral and reasonable.¹⁷⁵ Thirty-four First Amendment claims concerned government restrictions on access to various public properties.

Rounding out the First Amendment claims, protesters brought thirty-two claims challenging a variety of policing methods—for example, use of tear gas, herding or “kettling” of protesters, and surveillance of protest groups. Protesters claimed these actions chilled or prohibited expression. Plaintiffs also pursued a dozen claims relating to arrests or other adverse actions taken against protesters who were recording law enforcement at public demonstrations. As discussed below, whether there is a First Amendment right to record police is an issue on which courts remain somewhat divided.¹⁷⁶

ii. Claims Disposition Data

Figure 6 shows the success rates for qualified immunity motions respecting the five most common types of First Amendment claims.¹⁷⁷ Significant findings relate to the procedural posture of qualified immunity dispositions and the disparate success rates for qualified immunity motions challenging certain claims.

Figure 6. Q.I. Motion Success Rates by First Amendment Claim

Although some of the sample sizes are small, the data generally show that plaintiffs were able to keep claims alive at the pleadings stage. The success rate percentages for retaliation, content-based speech regulations, and access to forum claims were in line with the overall pleadings stage dismissal percentages reported earlier.¹⁷⁸

Two claims produced unanticipated results. In qualified immunity motions respecting challenges to time, place, and manner regulations, defendants prevailed 63% (10/16) of the time. The judicial balancing that applies to time, place, and manner regulations generally requires consideration of factual context not typically available at the pleadings stage. The high success rate may reflect the deferential standard applicable to content-neutral time, place, and manner regulations, the uncertain state of the law as it pertains to application of the standard, the relative strength or weakness of the claims in the dataset, or some combination of these factors.

The other unexpected finding is that only 7% (1/14) of motions to dismiss First Amendment challenges to protest policing methods were successful. However, several of these claims relied on allegations that police had used aggressive policing methods against compliant and peaceful protesters or dispersed assemblies without cause or warning.¹⁷⁹ Taking those allegations as true, courts concluded they stated a clear violation of the First Amendment.

At summary judgment, defendants substantially prevailed on their qualified immunity motions, winning 72% (26/36) of time, place, and manner claims, 62% (33/53) of retaliation claims, and 55% (11/18) of claims challenging protest policing methods. Again, there were a couple of exceptions. Defendants were granted qualified immunity as to only 44% (11/25) of claims involving content-based speech regulations and won only 50% (10/20) of motions relating to claims involving access to public property. This may reflect the fact that the law in both areas is longstanding and relatively clear. As discussed, under the First Amendment, laws or regulations based on content face a heavy presumption of invalidity. Similarly, protesters have a presumptive right to access certain public properties including public parks, streets, and sidewalks.

iii. First Amendment Law and Protesters’ Rights

The numbers paint an important, if only partial, picture when it comes to application of qualified immunity doctrine in First Amendment cases. The study was also designed to identify and critically analyze the substantive law that has developed—or failed to develop—during application of qualified immunity doctrine. The law that matters most is controlling authority in a specific jurisdiction. However, using a qualitative assessment, we can get a more general sense of the development of substantive standards concerning protesters’ First Amendment rights. The assessment that follows relies primarily on published appellate court decisions but, when useful in terms of filling some gaps, also considers published district court decisions.

Although retaliation claims were the most common in the Qualified Immunity dataset, the core First Amendment rights of protesters relate to access to public properties and the application of content neutrality standards there. Protesters rely on access to public forums such as public streets, parks, and sidewalks, as well as other public properties, to organize and participate in public demonstrations, rallies, and other events.

In public forum qualified immunity cases, several courts treated arbitrary, broad, and effective denials of access to public fora as First Amendment violations.¹⁸⁰ They also held that precedents clearly established protesters’ rights to distribute pamphlets and have access to an audience in a public forum,¹⁸¹ engage in peaceful residential picketing,¹⁸² protest on private property with the owner’s consent,¹⁸³ be present on State House grounds after 6:00 p.m.,¹⁸⁴ and engage in non-disruptive activity on a public sidewalk adjacent to a public school.¹⁸⁵

However, appellate courts upheld several bans on protest in government properties other than public streets, parks, and sidewalks.¹⁸⁶ In addition, they concluded the following actions did not violate clearly established First Amendment rights to access public properties:

Enforcing an invalid permit ordinance that violated the First Amendment, on the ground that the officer was entitled to rely on the ordinance;¹⁸⁷
Excluding a protester from state courthouse grounds and lands, because the “right of access to judicial proceedings” was not clearly established at the time;¹⁸⁸
Arresting a protester for refusing to move a rally from the sidewalk adjacent to Liberty Bell Center in Independence National Historic Park, because it was not clearly established at the time that the sidewalk was a public forum;¹⁸⁹
Promulgating and enforcing a curfew, since protestors did not have a clearly established right under the First Amendment to continuously occupy a plaza on state capitol grounds for an indefinite time;¹⁹⁰ and
Denying a state university student’s request to set up a table in the patio area outside the student union, since the right to access such space was not clearly established.¹⁹¹

As one might expect based on qualified immunity doctrine, the forum access precedents allow protesters to hold officials liable for egregious restrictions, including flat bans on access to traditional or quintessential public fora. However, they also permit officials to enforce otherwise unconstitutional permit requirements and exclude protesters from important venues on the ground that there is insufficient controlling authority addressing access to those places or no reasonable official would know this violated the First Amendment.

According to the decisions, it is difficult for protesters to prove a clearly established right to access a property unless that same property has been previously declared a public forum for First Amendment purposes. But when courts rely on the absence of controlling authority with respect to a public place, they fail to develop forum law. This is part of qualified immunity’s “vicious cycle.”¹⁹²

Protesters also rely on courts to enforce content neutrality rules in public places. The data suggest they have done so unevenly and inconsistently. The Supreme Court has admonished lower courts not to define constitutional issues at a high level of generality but to rely only on controlling precedent.¹⁹³ Nevertheless, in some contexts, courts applied general doctrinal rules to deny qualified immunity. In these instances, failure to follow the Court’s instructions benefitted protester plaintiffs.

For example, courts relied on the general principle that content-based regulations of expression violate the First Amendment. Based on that principle, they held that forcing abortion protesters to vacate a public sidewalk based on the content of their signs or arresting someone for, without more, burning an American flag violated clearly established First Amendment rights.¹⁹⁴ They also concluded, again based on general standards forbidding content-based speech regulations, that public university officials cannot prohibit student protests because of the content of their message and law enforcement officers violated the First Amendment when they made no serious effort to quell hecklers before shutting down a public protest.¹⁹⁵ Similarly, appellate courts held that it is clearly established that protesters cannot be arrested for communicating protected profanity.¹⁹⁶ Finally, one appeals court held that protesters cannot be arrested for engaging in an unusual form of dissent, on the ground that the First Amendment “protects bizarre behavior.”¹⁹⁷

By contrast, when courts followed qualified immunity law to the letter, they frequently upheld government actions that violated content neutrality rules. In several cases courts concluded defendants were entitled to qualified immunity even though they adopted or enforced content-based regulations. For example, courts held that the following actions and regulations did not violate clearly established First Amendment law:

Ordering anti-abortion activists displaying fetuses near a middle school to disperse under a law prohibiting disruptive presence at schools;¹⁹⁸
Arresting protesters for demonstrating publicly in thong underwear;¹⁹⁹
Arresting the driver of a truck who painted words on the side of his truck indicating he was “a fucking suicide bomber communist terrorist!” with “W.O.M.D. on Board”;²⁰⁰
Excluding a protester from a welcoming ceremony authorized by U.S. Senate resolution for carrying a sign objecting to the intended disposition of Olympic dormitories for correctional purposes;²⁰¹
Preventing a journalist from engaging with a counter-protester, under threat of arrest, at a public library children’s book reading event called “Drag Queen Story Hour”;²⁰² and
Excluding protesters from an official speech on private property because of the viewpoint of a message displayed on a bumper sticker on their car.²⁰³

In these instances, courts did not apply general content neutrality principles. Instead, they required that protesters identify controlling authority with facts similar or identical to those in the case under review—a case (or two) involving protesters in thong underwear or messages on bumper stickers, for example. With respect to novel claims, or at least claims courts viewed as such, they were quite strict about application of qualified immunity standards. To be fair to lower courts, even the Supreme Court has sometimes equivocated on the content neutrality point in the context of protests. The Court held in one case that it was not clearly established that Secret Service agents bore a responsibility to ensure that protest groups with different viewpoints had access to comparable locations during a presidential visit.²⁰⁴ Even so, looking for precedential twins and dead ringers in highly context-specific protest cases led courts to uphold qualified immunity.

Protesters’ speech and assembly rights are substantially affected by the enforcement of time, place, and manner regulations. Here, too, the data show very mixed success for protester plaintiffs. In several cases challenging time, place, and manner restrictions, courts concluded protesters had either not alleged or adduced evidence of a First Amendment violation.²⁰⁵ In others, courts concluded that the applicable law concerning time, place, and manner was not clearly established:

The Fourth Circuit held that a reasonable officer could have believed, in 2005, that prohibiting an abortion protester from displaying large, graphic signs depicting aborted fetuses at a major intersection was lawful because case law from the Fourth Circuit and Supreme Court was ambiguous on that issue.²⁰⁶
The Ninth Circuit concluded that denial of protestors’ application for a march permit without a promise on protestors’ part not to engage in civil disobedience was unlawful, but the condition did not violate clearly established First Amendment rights under controlling circuit and Supreme Court precedent.²⁰⁷
The D.C. Circuit held that a reasonable police officer could have believed that, given its proximity to the Capitol, a protest on the East Front sidewalk of the U.S. Capitol was subject to different First Amendment standards than apply in similar public properties.²⁰⁸ The court also agreed with the government’s assertion that because narrow tailoring is “ ‘not an exact science,’ a reasonable officer should not be expected to perform that analysis prior to arresting an individual for violating a time, place, and manner restriction governing expressive activity in a public forum.”²⁰⁹

As critics of qualified immunity doctrine have complained, in determining whether the law of time, place, and manner was clearly established, some courts engaged in factual parsing and line-drawing. For example, the Ninth Circuit concluded that relegation of a public prayer event to a “First Amendment area” burdened the plaintiffs’ speech to a substantially greater degree than necessary to achieve the government’s purposes.²¹⁰ However, the court held officials were entitled to qualified immunity because the relevant case law indicated that time, place, and manner doctrine, in particular the narrow tailoring requirement, distinguished between claims that an audience is essential to the message being conveyed and claims that location was essential for that purpose.²¹¹ Since plaintiffs were challenging the regulation based on locational as opposed to audience proximity, the court reasoned, a reasonable official would not have had sufficiently clear legal guidance to avoid violating the plaintiffs’ First Amendment rights.²¹² The Ninth Circuit’s “narrow tailoring” analysis highlights a central challenge plaintiffs face in terms of identifying clearly established law.

Protesters also brought First Amendment challenges to various protest policing methods, including issuance of unlawful dispersal orders, use of less-lethal weapons during protest events, and surveillance of protest groups. The Eleventh Circuit held that using cordons or barriers that prevent protesters from being seen or heard by anyone violates the First Amendment.²¹³ Several courts held that arbitrary dispersals of otherwise lawful public protests violate clearly established First Amendment law.²¹⁴ Courts also concluded that deploying tear gas and other less-lethal munitions against protesters who are not engaging in any illegal activity is unconstitutional.²¹⁵ Finally, the Ninth Circuit held that government officials violated clearly established First Amendment law when they conducted an eight-month investigation into a vocal, but entirely peaceful group.²¹⁶

However, results changed dramatically if courts discerned even an inkling of disruption or potential for violence at a public protest. In that event, they were far more likely to give law enforcement the benefit of the doubt in terms of protest-policing methods. For example, courts held that confiscating signs at demonstrations, using tear gas against protesters blocking egress from an industrial plant, arresting protesters who refused law enforcement directives to use a “free speech zone,” and making preemptive arrests did not violate the First Amendment or did not violate clearly established law.²¹⁷ In sum, while peaceful and compliant protesters were successful in pursuing challenges to protest policing methods, evidence or even allegations of disruption or potential for violence made success far less likely.

As noted earlier, the most frequently pursued First Amendment claim was that officials unlawfully retaliated against protesters for engaging in protected speech and assembly.²¹⁸ Lower federal court decisions in the Qualified Immunity dataset did not produce much law concerning First Amendment retaliation claims. Retaliation claims often turn on the motive of the defendant, thus making them poor vehicles for establishing bright line rules.²¹⁹ They are also fact-dependent in other ways.

In a typical case, the Eighth Circuit held that when protesters moved toward officers “in a threatening manner” and blocked traffic, “[a] reasonable officer could conclude that this conduct violated Minnesota law and was not protected speech.”²²⁰ Further, the court concluded that since there was no evidence the protesters had been singled out while other similarly situated speakers had not been arrested, “[t]he only reasonable inference supported by the record is that the group’s unlawful conduct, not the protected speech, motivated the officers’ actions.”²²¹

Nevertheless, a few retaliation decisions produced intriguing results. In one case, a district court held that retaliating against protesters for their speech by surveilling them and pointing a red laser from a sniper rifle at a group member during a speech violated the First Amendment.²²² In an unpublished decision, the Ninth Circuit concluded that a reasonable official would know that directing a train into the path of demonstrators, one of whom lost his legs as a result, to stop a protest violated the First Amendment.²²³ In these decisions, at least, the courts did not point to any prior precedent with similar facts. Perhaps when the facts are so egregious, courts are willing to bend the clearly established standard.

Finally, courts addressed claims that officers violated the First Amendment when they interfered with or prevented the recording of officers as they engaged in protest policing. As Joanna Schwartz has observed, “[c]oncerns that the Court’s qualified immunity jurisprudence renders the Constitution hollow are even more acute for constitutional claims involving new technologies and techniques.”²²⁴ Several courts have held that there is a First Amendment right to record police at a public protest and that right is clearly established.²²⁵ However, other courts have held that at the time of the alleged violation, the right to record was not clearly established or not apparent to all reasonable officers.²²⁶ Courts have also observed that the right is not unlimited, and that arresting protesters for recording officers in ways that interfere with their duties does not violate clearly established law.²²⁷

In sum, First Amendment decisions in the Qualified Immunity dataset demonstrate many of the pathologies of qualified immunity doctrine. While courts have held that egregious forms of governmental abuse can be the basis for a claim under section 1983, they have also upheld qualified immunity in cases involving denial of access to public fora, content discrimination, and questionable time, place, and manner regulations. Courts have applied the doctrine inconsistently, sometimes relying on general principles and in other instances demanding precise controlling authority.

We also learned that although wholly peaceful and compliant protesters can pursue claims for damages, at the first sign of disruption or potential violence, courts deferred to officers’ choice to use aggressive protest policing methods. In terms of retaliation, government actors probably cannot mow down demonstrators with a train—although the only opinion on this matter is unpublished and is not controlling authority concerning other types of conveyances. Again, in instances in which the facts are truly egregious, courts may apply the qualified immunity standard more flexibly. Finally, the cases indicate that not all appellate courts have concluded that there is a clearly established First Amendment right to record police at demonstrations.

3. Fourth Amendment Claims

The Qualified Immunity dataset includes court decisions in which 215 Fourth Amendment claims were the subject of defense qualified immunity motions. Although the data support some clear limitations on governmental actions under the Fourth Amendment in the protest context, they also demonstrate an overall lack of substantive development.

i. Types of Claims

Figure 7 shows the most common Fourth Amendment claims plaintiffs pursued in the cases in the Qualified Immunity dataset. The general standards governing these 215 Fourth Amendment claims are well-established.

Figure 7. Types of Fourth Amendment Claims

The Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.”²²⁸ To prevail on a claim for false arrest, a plaintiff must demonstrate that officers lacked probable cause to make the arrest. Probable cause to arrest exists when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.²²⁹ The existence of probable cause to arrest, even for a very minor offense, is a complete defense to a Fourth Amendment false arrest claim.²³⁰

In an excessive force claim, a plaintiff must show that the use of force was excessive under the facts and circumstances presented.²³¹ In making this determination, the Supreme Court has instructed lower courts to pay “careful attention” to factors such as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”²³² As the Court has emphasized, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”²³³

Finally, a seizure of the person occurs “when there is a governmental termination of freedom of movement through means intentionally applied.”²³⁴ To be valid under the Fourth Amendment, a seizure or detention must be reasonable under the circumstances. Under the Fourth Amendment, an officer may seize an individual’s property from a public area “only if Fourth Amendment standards are satisfied—for example, if the items are evidence of a crime or contraband.”²³⁵ Officers may also conduct searches incident to arrest when they have reasonable suspicion contraband is present.²³⁶

ii. Claims Disposition Data

The success rates for defense motions to dismiss or for summary judgment based on qualified immunity are shown in Figure 8. The same caveats that applied to determining successful disposition of defense motions respecting First Amendment claims apply to Fourth Amendment claims. The findings count granted motions to dismiss and for summary judgment, and appellate court rulings upholding those grants as successful whether or not plaintiffs amended their complaints or their claims were considered on remand after appeal. The success rates are, as indicated, snapshots of dispositions in reported decisions available on Westlaw.

Figure 8 shows that, like the First Amendment claims in the dataset, two-thirds or more of Fourth Amendment claims survived defense motions to dismiss. By contrast, at summary judgment, courts were much more inclined to grant or uphold qualified immunity for defendants for false arrest (61% or 48/79 claims) and unlawful search or seizure (71% or 15/21 claims).

Figure 8. Q.I. Motion Success Rates by Fourth Amendment Claim

As discussed earlier in the general data findings, when addressing qualified immunity respecting Fourth Amendment claims, courts were more likely to grant immunity at Step One. In those instances, courts held that no violation had occurred, instead of concluding that there was a lack of clearly established law at Step Two.²³⁷ As we have seen, courts were overall likely to grant defense motions for summary judgment. But the high rate of summary judgment for false arrest and unlawful search and seizure claims likely also reflects the deferential probable cause and reasonableness standards that apply to such claims.

The exception was defense motions for summary judgment on excessive force claims, which succeeded only 42% (19/45) of the time. As discussed below, several courts held that law enforcement uses of force against peaceful assemblies or compliant protesters constituted clear Fourth Amendment violations.²³⁸ In other cases, courts concluded that the degree or amount of force used against protesters violated clearly established Fourth Amendment standards.²³⁹ These decisions account for the lower defense success rates regarding excessive force claims at summary judgment.

iii. Fourth Amendment Law and Protesters’ Rights

Substantive Fourth Amendment law in the context of public protest has developed slowly in lower courts. Like the discussion of First Amendment law, the following analysis focuses primarily on published federal courts of appeals decisions to assess what substantive Fourth Amendment law has been established. However, it also considers district court decisions that apply circuit precedents in Fourth Amendment qualified immunity determinations.

Appellate courts consistently held that arresting protesters without actual or arguable probable cause violated clearly established Fourth Amendment law.²⁴⁰ They also concluded that it is a clear violation of the Fourth Amendment to arrest protesters without first issuing a dispersal order (although one district court held that officers are under no obligation to determine whether the order is lawful prior to enforcing it).²⁴¹ Notwithstanding these limits, courts applied a flexible probable cause standard and upheld arrests for various offenses, some very minor—using noise amplification near an abortion clinic,²⁴² falling asleep in a zipped tent in a public park,²⁴³ openly carrying firearms on a public fishing pier,²⁴⁴ burning the Mexican flag in public without a permit,²⁴⁵ and unfurling a banner outside a designated “speech zone.”²⁴⁶

Fourth Amendment law is unsettled when it comes to the validity of protesters’ arrests for engaging in protected expression. The Eighth Circuit held that arresting protesters solely for engaging in protected speech violates clearly established Fourth Amendment rights.²⁴⁷ Similarly, the Sixth Circuit held that the law was clearly established that a county fair patron could not be arrested for disorderly conduct based on his spewing profanities at police and a fairgrounds executive director when he was being escorted off the fairgrounds (apparently for wearing a shirt stating “Fuck the Police”).²⁴⁸

However, a federal district court applying circuit law concluded that officers who arrested a protester for anonymous comments made by others on his livestream after he posted the Chief of Police’s address did not violate clearly established Fourth Amendment law.²⁴⁹ Another district court held that officers did not act recklessly, negligently, or unreasonably in relying on a fellow officer’s determination that probable cause existed to arrest a protester for walking along the public sidewalks displaying “a gigantic Styrofoam middle finger emblazoned with the letters ‘Fuck cops.’ ”²⁵⁰ A district court also held that officers did not violate clearly established Fourth Amendment law when they arrested a protester for “interference” when he refused to relinquish a camera—something he otherwise had a right to possess under the circumstances—when ordered to do so.²⁵¹

As these decisions demonstrate, probable cause reasonableness standards make it difficult for courts to develop clearly established law concerning false arrest. As in other areas, egregious mass arrests and other actions not supported by any probable cause have been condemned as violating clearly established Fourth Amendment law. However, precedents show that even arrests closely related to, if not directly based on protected expression, have been the basis for qualified immunity for Fourth Amendment claims. The absence of precedents addressing similar or nearly identical circumstances has prevented courts from recognizing some clear constitutional violations.

In terms of excessive force claims, courts have consistently held that using less-lethal force, such as pepper spray and tear gas, against compliant and peaceful protesters violates clearly established Fourth Amendment law.²⁵² The same goes for using other types of force when arresting or subduing a compliant protester.²⁵³ Driving a train into a crowd of peaceful demonstrators may constitute excessive force, although the only decision reaching that conclusion is unpublished.²⁵⁴

However, as was true of some First Amendment claims, excessive force results sometimes hinged on whether the protest was wholly peaceful and non-disruptive. Courts held that the use of less-lethal munitions to disperse violent or unruly protests, tasing protesters in the context of “hostile” protest environments, and even kicking or choking protesters who refused to comply with officers’ commands did not constitute excessive force under the Fourth Amendment.²⁵⁵

Several district courts also rejected excessive force claims concerning the use of handcuffs or zip ties so tight they caused physical injuries to protesters. In some cases, courts reasoned that under circuit precedent, only force sufficient to break a person’s wrist violated clearly established Fourth Amendment law.²⁵⁶ The handcuffing/zip tie decisions demonstrate how the requirement that plaintiffs identify controlling precedent with the same facts undermines constitutional rights and prevents plaintiffs from being compensated for injuries. Absent a particular circuit court or Supreme Court decision (or perhaps more than one) holding that inflicting pain through bindings short of breaking the person’s wrist violates the Fourth Amendment, a protester plaintiff cannot recover even for serious injuries.

Several decisions in the Qualified Immunity dataset addressed the law as it relates to seizures under the Fourth Amendment. Some courts have held that warrantless seizures of protesters’ signs and other possessions violated the Fourth Amendment.²⁵⁷ By contrast, when officers had probable cause to believe the item was unlawful, or reasonable suspicion it could be dangerous, courts have upheld seizures of items including shofars and firearms.²⁵⁸ The fact that a shofar could “reasonably” be considered dangerous highlights the deference officers enjoy under Fourth Amendment cause and suspicion standards.

District courts applying circuit precedents disagreed concerning whether law enforcement uses of less-lethal weapons such as tear gas, pepper spray, and projectiles constituted “seizures” under the Fourth Amendment.²⁵⁹ Some decisions suggested that the answer turns on whether the protester’s movement was otherwise constrained, which implies that the use of less-lethal munitions by itself does not constitute a “seizure.”²⁶⁰ Other courts expressly held that the use of tear gas and other munitions can constitute a “seizure.”²⁶¹ At present, there is a lack of consensus or appellate authority on this important issue.²⁶²

Courts have also upheld brief detentions and searches incident to detention during public protests.²⁶³ They considered such actions justified as means of maintaining public safety and order. In some decisions, courts again relied on narrow factual distinctions relating to the detentions in determining whether they violated clearly established law. For example, although prior precedents in a circuit had established that a two-hour detention in which the plaintiff was handcuffed and detained in the back of a police cruiser was an unlawful seizure, a district court observed that in the case before it, protesters were not handcuffed, were not placed in the back of police vehicles, and were released after approximately one hour.²⁶⁴ Thus, the district court held, circuit precedents did not make clear to “every reasonable official” that detaining witnesses to a crime, without handcuffs and without moving them to a police vehicle, violated the Fourth Amendment.²⁶⁵

Fourth Amendment qualified immunity decisions exhibited some of the same pathologies as First Amendment decisions. While courts condemned some egregious law enforcement practices, they declined to recognize others as violations of clearly established law. Courts relied on narrow factual distinctions and the absence of controlling authority. Together the decisions have resulted in a largely under-developed law of public protest in the Fourth Amendment area.

B. Municipal Liability – Monell Claims

The Qualified Immunity dataset also collected information about plaintiffs’ claims against municipal defendants. Recall that to successfully hold a municipal defendant liable under section 1983, plaintiffs must demonstrate that the municipality directly violated their constitutional rights by, among other things, adopting and enforcing an unconstitutional “policy or custom.”²⁶⁶ In order to sue the municipality, plaintiffs must demonstrate that an official has violated their constitutional rights because of the municipal policy or custom.²⁶⁷

As shown in Figure 9, defendants were not successful at the motion to dismiss stage, as courts granted or upheld only eighteen of seventy-five (24%) dismissal motions. However, once cases reached the summary judgment stage, defendants were remarkably successful: 78% (113 out of 145) of municipal defendants’ motions for summary judgment were granted or upheld on appeal. Thus, although courts were inclined to allow plaintiffs to pursue discovery on Monell claims, they were overwhelmingly rejected at summary judgment.

Figure 9. Defense Motion Success Rates for Monell Claims

The data show that in most instances, municipal liability was rejected, owing to a lack of evidence of a “policy or custom.” Courts also frequently relied on a lack of underlying constitutional violation and plaintiffs’ failure to identify a policymaking official who acted in a manner that violated their constitutional rights.

Although municipalities represent deep financial pockets and are responsible for making law enforcement and other policies, the data confirm that Monell claims are among the most difficult for plaintiffs to pursue. Defendants’ efforts to defeat these claims were largely successful.

C. First Amendment Retaliation Claims

As discussed earlier, in Nieves, the Supreme Court adopted a probable cause standard for determining whether plaintiffs could bring a First Amendment retaliation claim.²⁶⁸ It also recognized a narrow exception for plaintiffs who could demonstrate they had been subject to unequal treatment. Concurring and dissenting Justices sounded various alarms about the Court’s reliance on probable cause. In general, the Retaliation Claim dataset, which includes all public protest retaliation claims subject to the Nieves standard, supports the dissenters’ objections and concerns.

A significant concern is that law enforcement officers possess broad discretion to charge protesters with even minor public disorder offenses. Under Nieves, an officer who can show a protester’s arrest for disorderly conduct, breach of peace, or other minor crimes is likely to have a complete defense to a First Amendment retaliatory arrest claim. As Justice Gorsuch observed in his partial dissent:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. The freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.’²⁶⁹

Justice Gorsuch noted an additional shortcoming of the majority’s approach. When it folded the free speech claim into the unreasonable arrest inquiry, he asserted, the Court made a category error. As Justice Gorsuch explained, “the First Amendment operates independently of the Fourth and provides different protections. It seeks not to ensure lawful authority to arrest but to protect the freedom of speech.”²⁷⁰ By hanging so much on probable cause to arrest protesters and other speakers, the Court elided important free speech claims and interests.

In her dissent, Justice Sotomayor took aim at the exception to the Nieves rule, which requires protesters to produce “objective evidence that [they were] arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”²⁷¹ She characterized the exception as unclear and irrational and argued it will lead to perverse results. Which protesters, she asked, are “otherwise similarly situated” to the plaintiff, and who is engaged in the “same sort of protected speech”?²⁷² Further, under the Court’s approach, protesters who have more direct evidence of retaliatory motive, including officers’ own statements, cannot rely on that evidence, but must instead produce hard-to-come-by comparison-based evidence.²⁷³

Justice Sotomayor surmised that plaintiffs who can satisfy the Nieves exception “predominantly will be arrestees singled out at protests or other large public gatherings, where a robust pool of potential comparators happens to be within earshot, eyeshot, or camera-shot.”²⁷⁴ However, she failed to consider that even those plaintiffs would be hard-pressed to gather such evidence in chaotic mass protest environments. Among other complications, during mass protests, ideological and other affiliations can be difficult to discern. Moreover, the exception incentivizes protest policing activities that data show to be already prevalent, including “herding” or “kettling” all participants regardless of specific offense, using tear gas and other force indiscriminately, and engaging in mass arrests. No officer can be accused of singling anyone out if everyone is subject to the same dragnets and other abuses. For a few reasons, there will, as Justice Sotomayor warned, be “little daylight between the comparison-based standard the Court adopts and the absolute bar it ostensibly rejects.”²⁷⁵

Finally, Justice Sotomayor worried that the majority’s approach would “breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly.”²⁷⁶ For example, “a particularly brazen officer could arrest on transparently speech-based grounds and check the statute books later for a potential justification.”²⁷⁷ She and the other dissenters might also have raised the possibility that racial disparities in protester arrests might affect First Amendment retaliation claims.²⁷⁸

The Retaliation Claim dataset confirms many of the dissenters’ objections and concerns. Counting Nieves itself, there have been forty-one federal court decisions that applied the probable cause defense in protest-related cases. In twenty-seven of those decisions, or more than 65%, courts granted defendants’ motions to dismiss or for summary judgment with respect to First Amendment retaliation claims. An “absolute bar” may not have materialized. However, thus far, post-Nieves retaliation claims have not fared well at all in reported decisions. Courts granted or upheld dismissal at the pleading stage 56% of the time (10/18) and granted summary judgment to defendants 74% (17/23) of the time.

Table 3. Defense Motions in Post-Nieves Retaliation Cases
Posture	Motion Granted	Motion Denied	Total
MTD	10 (56%)	8 (44%)	18
SJ	17 (74%)	6 (26%)	23

The nature of the charges underlying dismissal or summary judgment substantiates Justice Gorsuch’s concern that “criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.”²⁷⁹ The criminal charges that ultimately defeated First Amendment retaliation claims included disorderly conduct (6), trespass (5), failure to disperse (4), disturbing the peace (3), violation of a curfew order (2), obstructing vehicular or pedestrian traffic (3), obstructing government functions (1), and jaywalking (1). As Justice Gorsuch predicted, probable cause to arrest protesters for even very minor or trivial offenses was enough to defeat the retaliation claims.

What about the exception based on evidence of unequal treatment? Courts addressed the exception on the merits in only 24% (10/41) of cases. In six of those decisions (60%), courts concluded there was insufficient evidence of unequal treatment or that the plaintiff was not “similarly situated” to the comparator class. In three decisions, courts concluded there were sufficient allegations or evidence of disparate treatment to defeat defendants’ motions to dismiss or for summary judgment. In one decision, the court concluded that the plaintiff had produced evidence that “similarly situated” speakers had not been arrested under the narrow exception Nieves recognized.²⁸⁰ In that case, plaintiffs demonstrated that no one had ever been arrested for the offense (chalking public property).²⁸¹

The post-Nieves results suggest courts are engaging in a wooden application of the probable cause standard, rather than a “commonsensical[]” analysis.²⁸² They have generally been willing to accept officers’ claims that arrests for minor offenses were reasonable under the circumstances, a conclusion that in most cases defeated protesters’ First Amendment retaliation claims.

Review of post-Nieves decisions also supports other criticisms. Justice Gorsuch criticized the majority opinion in Nieves for failing to recognize the First Amendment and Fourth Amendment as independent sources of rights.²⁸³ As he predicted, Nieves has encouraged lower courts to focus on the legitimacy of the arrest to the exclusion of free speech, press, and assembly concerns.²⁸⁴ While courts have been hyper-focused on probable cause to arrest, they have had little to say about the effects of the arrests on collecting petition signatures, public preaching and singing, videorecording protest arrests, and participation in protests involving LGBTQ rights, Occupy Wall Street, the Dakota Access Pipeline, Black Lives Matter, Juneteenth, and the removal of Confederate monuments.

The data do not provide a basis for assessing Justice Sotomayor’s concern about rogue officers suppressing speech. However, post-Nieves decisions have dismissed retaliation claims in which protesters were arrested while singing anti-LGBT songs, confronting public officials at public events, and videotaping protest policing. In these and other cases, there is at least the possibility that officers have targeted or suppressed speech based on its content.

Finally, commentators have warned that Nieves may have negative effects on newsgatherers.²⁸⁵ Even if reporters have a First Amendment right to record government officials at public demonstrations, the decisions show that probable cause to arrest reporters for some minor offense may effectively negate press rights by allowing officials to target newsgatherers.

Prior to Nieves, the Supreme Court recognized another possible exception to the probable cause requirement. If a municipality adopts an official policy of retaliation against a speaker or group, the Court held, it may be held liable even if there is probable cause to arrest the speaker.²⁸⁶ Assuming this exception survives Nieves, it applies only in exceptional situations when a governmental body adopts a policy of retaliating against an individual or group for protected expressive activities.²⁸⁷

The Retaliation Claims dataset suggests plaintiffs are not likely to pursue this type of claim. Only five of the forty-one decisions (12%) addressed such a claim. Three claims were dismissed for failure to allege or provide sufficient evidence of a policy or custom of retaliation or failure to establish an underlying constitutional violation.²⁸⁸ One district court concluded that the plaintiff had alleged sufficient facts in the complaint to demonstrate a policy or custom of retaliation or harassment.²⁸⁹ Another district court concluded genuine issues of material fact concerning whether a defendant had final policymaking authority precluded summary judgment on the municipal retaliation claim.²⁹⁰

Lower courts have not had much time to adjust to and apply the Nieves standard. However, evidence indicates that concerns about how the probable cause and other aspects of the decision will be applied have already surfaced in early cases.

D. Claims Against Federal Officials

As discussed, the Supreme Court has never formally recognized a First Amendment claim under Bivens for monetary damages against federal officials.²⁹¹ Recent decisions have expressed general skepticism concerning Bivens claims and rejected certain types of claims under the First Amendment and the Fourth Amendment.²⁹² The twenty-six decisions included in the Bivens Claims dataset suggest that while lower courts have long recognized protest-related claims against federal officials, the Supreme Court’s recent decisions have placed such claims in jeopardy.

The data show that lower courts have long recognized protesters’ ability to pursue First Amendment and Fourth Amendment Bivens claims. Courts recognized a cause of action for First Amendment or Fourth Amendment violations against federal defendants under Bivens in 81% (21/26) of protest-related decisions.

However, twelve, or nearly half, of these decisions are from the D.C. Circuit and D.C. district courts. The D.C. Circuit first recognized a First Amendment protest-related Bivens claim in Dellums v. Powell, which was decided in 1977.²⁹³ The District of Columbia is the site of iconic protest venues, including the grounds near the U.S. Capitol and Lafayette Park near the White House. National Park Service, U.S. Marshals officials, U.S. Capitol Police, Secret Service, and other federal officials are involved in policing and managing mass and other protest events in the District.

In addition to the D.C. Circuit, the Third, Fourth, Eighth, Ninth, and Tenth Circuits have also recognized First Amendment and Fourth Amendment Bivens claims in protest-related cases.²⁹⁴ Constitutional claims in these cases have run the gamut from violation of protesters’ right to speak and assemble in a public forum under the First Amendment to allegations of excessive force, false arrest, and unreasonable seizure under the Fourth Amendment. One might assume decisions recognizing these Bivens claims long predated the Court’s recent turn against expanding Bivens. However, ten out of fifteen lower court decisions (67%) recognizing such claims or assuming they are viable were decided during the last decade, when the Court was expressing increasing skepticism about them.

There is some evidence that the Court’s Bivens negativity is starting to affect lower court decisions in protest cases. In the four most recent decisions, including one by the D.C. Circuit regarding the clearing of Lafayette Park during the 2020 Black Lives Matter protests, courts expressly rejected protesters’ First Amendment and Fourth Amendment Bivens claims.²⁹⁵ The courts emphasized the Supreme Court’s admonition not to expand Bivens into “new” contexts and to apply a “special factors” analysis to prevent expansion of Bivens claims. Applying those standards, only one recent federal district court decision has upheld a protest-related Fourth Amendment claim and none have recognized a First Amendment claim.²⁹⁶

The loss of a Bivens remedy would leave protesters without full recourse against federal officials who violate their First Amendment or Fourth Amendment rights. Officials with the National Park Service, Secret Service, and other federal agencies would be immunized from damages claims. As the 2020 racial justice protests demonstrated, holding federal officials liable for protest policing that violates individuals’ constitutional rights remains critically important.

IV. STRENGTHENING PROTESTER RIGHTS AND REMEDIES

This study confirms that protesters face steep obstacles in terms of holding government officials accountable for constitutional injuries. If protesters cannot be made whole in the event of serious injuries, they may be deterred from organizing and participating in public demonstrations. Thus, what is at stake is not just the important compensation owed to injured protesters but also broader injuries to our culture of public dissent. This final Part offers five proposals to strengthen protesters’ rights and remedies.²⁹⁷

First, as other scholars have advocated, qualified immunity should be abandoned or reformed.²⁹⁸ This study confirms that courts are disposing of a significant percentage (approximately 60% at summary judgment) of protesters’ First Amendment and Fourth Amendment claims based on qualified immunity. The data also show that qualified immunity shields officials from liability in all but the most egregious cases (and even in some egregious cases), is based on an impossibly narrow standard of controlling authority and reduces opportunities for courts to innovate and develop substantive law. The Court or Congress should abolish qualified immunity or reform it by, for example, changing the liability standard or doing away with the “clearly established law” requirement.²⁹⁹ Protesters and others would then be better able to recover for patently unconstitutional content-based regulations, abusive uses of force, invalid arrests, and other unconstitutional behavior.

Second, also in the realm of qualified immunity reform, the Supreme Court or Congress should revisit Nieves v. Bartlett. This study shows that First Amendment retaliation claims are frequently pursued in protest cases. Early lower court applications of Nieves’s probable cause rule confirm the objections raised by Justices Gorsuch and Sotomayor. The Supreme Court should at least clarify that probable cause is not an absolute bar to retaliation claims. Some commentators have also urged Congress to overturn Nieves.³⁰⁰ If neither institution is willing to act, civil rights lawyers will need to focus on collecting the necessary evidence of disparate treatment to defeat the probable cause bar. As Justice Sotomayor has urged, lower courts can also adopt a “commonsensical[]” interpretation of the standard.³⁰¹

Third, as this study confirms, courts need to strengthen constitutional protections under the First Amendment and Fourth Amendment. The lack of strong First Amendment and Fourth Amendment rights reduces and undermines protesters’ constitutional protections. Applications of qualified immunity doctrine show that First Amendment doctrines allow officials to exclude protesters from public properties, enforce restrictive speech zones, and significantly displace demonstrations. Joanna Schwartz has criticized substantive Fourth Amendment law, specifically the “reasonableness” standard that allows officers to “stop, arrest, beat, shoot, or kill people who have done nothing wrong without violating their constitutional rights.”³⁰² Similarly, she argues, the Court’s “excessive force” doctrine has “left officers with few limits on their power.”³⁰³ The First Amendment and Fourth Amendment doctrines addressed in this study are longstanding. However, the Supreme Court should more clearly establish the limits they place on government officials when they regulate protest activity and lower courts should apply these limits in ways that better protect the rights of protesters.

Fourth, and relatedly, courts must publish more decisions elaborating on applications of First Amendment and Fourth Amendment rights. Figure 10 shows the number of published qualified immunity protest-related decisions over time available on Westlaw. The Qualified Immunity dataset covers four decades but includes only eighty-six published federal appellate court decisions. To be sure, there are likely more such decisions; but if they are not accessible, they cannot be used to analyze qualified immunity. If published appellate decisions are to be the primary sources of clearly established law, it is obvious that litigants and courts need significantly more guidance. The uptick in published decisions during the last five years is encouraging, even if it may partially be related to the 2020–2021 mass street protests. More published decisions should produce more clearly established limits on protest policing and other activities. The Supreme Court could also take steps such as loosening the requirement of controlling circuit precedent and allowing courts to consult other decisions or to rely on general principles, rather than requiring plaintiffs to identify in-circuit cases involving the same or similar factual circumstances.

Figure 10. Published Qualified Immunity Protest Decisions over Time

Fifth, and finally, governmental immunity doctrines must allow injured plaintiffs to hold all parties that cause injuries accountable. This means reducing or repealing municipal immunities and allowing injured protesters to sue federal officials under Bivens for First Amendment and Fourth Amendment violations. In my study, although plaintiffs frequently sued municipalities, nearly 80% of their Monell claims failed at summary judgment.³⁰⁴ As Joanna Schwartz has argued, “[o]ne way to make sure that people are paid what they are owed is to do away with Monell standards and hold cities legally responsible for the constitutional violations of their officers—just as private companies are held vicariously liable for the acts of their employees.”³⁰⁵ Protester plaintiffs must also have the opportunity to hold Secret Service, National Park Service, and employees of other federal agencies accountable. Lower courts have traditionally perceived no impediment to recognizing and adjudicating such claims.³⁰⁶ As some recent decisions demonstrate, the Supreme Court’s negativity regarding Bivens threatens to undermine the fundamental right to express political dissent.³⁰⁷ Although the Supreme Court has not expressly rejected protest-related First Amendment claims against federal officials, it has crept ever closer to doing so. As the Court itself has urged, Congress should codify Bivens by creating civil damages claims against federal officials who violate First Amendment, Fourth Amendment, and other constitutional rights.

CONCLUSION

Governmental immunities have had a profoundly negative effect on public protesters’ ability to obtain compensation for constitutional harms. This study’s quantitative analysis shows defendants’ significant success using qualified immunity to defeat a variety of First Amendment and Fourth Amendment claims. Its qualitative analysis illustrates how application of qualified immunity and other doctrines have defeated protesters’ claims, even when defendants have engaged in egregious constitutional violations.

The study lends additional support to general criticisms of qualified immunity and related doctrines. More broadly, it shows that failure to reform or abolish governmental immunities will affect the right to protest peacefully, safely, and with high confidence that officials who regulate and police protests will respect constitutional rights.

This Article offers several proposals for strengthening protesters’ remedies or at least limiting obstacles to monetary recovery. These include judicial or legislative repeal of qualified immunity, developing stronger substantive First Amendment and Fourth Amendment protections, abandoning municipal liability restrictions, and retaining civil liability for federal officials. Without serious reform, in most cases protesters will continue to be un- or under-compensated, public officials will continue to escape liability, and traditionally valued public protest activity will be encumbered and chilled.

97 S. Cal. L. Rev. 1583

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Timothy Zick*

* John Marshall Professor of Government and Citizenship, William & Mary Law School. I would like to thank Paul Hellyer for his outstanding assistance with the study design and the research supporting this Article. Special thanks also to Rebecca Roberts for her help updating the study databases. Any errors are, of course, my own.

Filtered Dragnets and the Anti-Authoritarian Fourth Amendment

July 2024July 2024Jane R. Bambauer*

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities.

However, filtered dragnets imperil society precisely because they detect crime too well. Sudden increases in the detection of criminal conduct will intensify the pathologies of American criminal justice: namely, that too many marginally harmful acts are criminalized, crimes are punished too harshly, and police and prosecutors have too much discretion. If nearly everybody commits some technical violation of criminal law that can be easily detected and harshly punished, all Americans will be at the mercy of the constable’s pity.

These threats are not well constrained by current Fourth Amendment jurisprudence, based on privacy rights, because filtered dragnets detect crime without revealing irrelevant details. Thus, Fourth Amendment theory and doctrine must strengthen the anti-authoritarian objectives endowed in its roots. A search conducted with a filtered dragnet should be considered reasonable only if it is administered in an evenhanded manner, and a subsequent seizure of a person is reasonable only when the misconduct is abhorrent enough to justify arrest and imprisonment.

INTRODUCTION

Nearly forty years ago, Justice Brennan asked his colleagues, who had just given a constitutional stamp of approval to the drug-sniffing dog, to imagine a device “that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine.”¹ If the device could detect the presence of cocaine inside a building, “there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present.”² He believed the prospect of police having a tool of near-perfect detection presented a catastrophic threat that the courts have a duty to stop.

We are not too far off from this scenario anymore,³ and some strategies already in use by law enforcement and intelligence agencies are similar to Brennan’s machine. Examples include DNA matching, facial recognition from photographs or video of a crime when it was in progress, automated child sexual abuse material detection, and reverse digital searches (where police use information known about the crime, such as location, timing, or special instrumentalities, to cross-check against service provider data in order to identify a suspect). Many more of these investigative techniques are sure to come, especially if or when the Internet of Things reaches its potential by placing increasingly powerful sensors on nearly every machine.

Twenty-first century policing will increasingly use data collected from tracking and sensing technologies to conduct investigations that work backwards. Law enforcement will use the particulars of a crime as a “fingerprint,” so to speak, to determine who should belong in the pool of suspects. Unlike the standard dragnet, which permits law enforcement to observe large amounts of data and to choose their targets, filtered dragnets force investigations to focus on the evidence of a crime. Computers will automatically scan through data without exposing it and will make a disclosure only when there is probable cause to believe that a person’s data matches the signature of the crime. Moreover, even when data is disclosed, filtered dragnet programs can be designed so that the only data revealed is potentially relevant data; extraneous details can be withheld.

When surveillance technologies meet all these benchmarks—that is, when (1) they are used to find an individual related to a crime (rather than to find a crime related to an individual), (2) when they report details from an otherwise private database only after meeting a high threshold of confidence (e.g., probable cause or higher), and (3) when they withhold details that are ex ante unlikely to be relevant to the current criminal investigation, the nature of that surveillance is different from other types of police work. Filtered dragnets, as I will call them, are structured to avoid many problems traditionally associated with mass surveillance.

Fourth Amendment theory and reasoning is just starting to find its legs in digital search cases,⁴ but filtered dragnets will destabilize criminal procedure law again. They will whittle down most of the privacy rationales for Fourth Amendment protection. Mounting a Fourth Amendment defense will require a litigant to convincingly argue that even though the defendant very likely committed a crime, and even though the police did not see or have discretionary access to data for any other persons and did not even have irrelevant data about the defendant for that matter, the search was nevertheless unreasonable. That sort of privacy über alles argument might work for crimes of questionable legitimacy—drug possession, for example—but it won’t work in the context of universally reviled conduct like murder.

What is more, filtered dragnets may reduce privacy intrusions on net, as compared with current investigation techniques, because they can remove many people from the scope of suspicion who would otherwise become targets of investigation. In other words, filtered dragnets break the privacy-security trade-off because they simultaneously increase criminal detection and privacy. As Bennet Capers has explained, they may be a useful tool to simultaneously tackle under-protection and over-policing problems.⁵ Outright bans of these technologies, as have been advocated in many corners,⁶ would be irresponsible.⁷

Nevertheless, even if filtered dragnets detect crime and nothing else, they pose serious social risks that Fourth Amendment law and scholarship are ill equipped to handle: What happens to Fourth Amendment theory and the practice of criminal justice if nearly every crime could be detected?

In the late 1990s, Larry Lessig asked this very question.⁸ He anticipated that digital technologies may create a wedge between the privacy and anti-authoritarian rationales for criminal procedure. But most Fourth Amendment scholars do not even recognize a schism between privacy and anti-authoritarian goals. Instead, they continue to focus on privacy as the key constraint on any police activity that leverages large amounts of personal data. The scholars who have recognized liberty and anti-authoritarianism as a Fourth Amendment lodestar have insisted that all technology-assisted surveillance is a tool of abusive state power per se.⁹ As a result, Fourth Amendment scholars lump filtered dragnets with all other surveillance and advocate for the strictest access controls, guaranteeing the continuation of a low rate of criminal detection.

This is the wrong course. The threat from filtered dragnets is tyranny, and the Fourth Amendment will be more effective and coherent if we recognize that. Filtered dragnets will dramatically increase the detection of crime, and this will intensify existing pathologies in American criminal justice that have little to do with privacy. Namely, we have too many crimes, too much punishment, and too much police and prosecutorial discretion. These problems jointly produce the risk of authoritarian power. An overly expansive criminal code paired with harsh penalties ensures that nearly everybody could be subjected to incarceration.¹⁰ When the state also has unchecked power to choose where and when to investigate within the ocean of criminal-but-typically-ignored conduct, the populace is at the mercy of the state’s will.¹¹

Today, the criminal justice equilibrium rests on an unspoken compromise. The state has broad substantive law, harsh punishment, and unchecked discretion, it is true, but the populace has privacy rights that nearly guarantee low detection, even when police are highly motivated. When filtered dragnets give police near-perfect detection, the bargain has to be renegotiated.

This Article proposes a new grand bargain for Fourth Amendment law: the Supreme Court should recognize filtered dragnets as a legitimate and even desirable tool for criminal investigations. But constitutional rules should guarantee that the substance of American criminal law will be limited to conduct that is commonly recognized as heinous, that the severity of the punishment fits the reprehensibility of the crime, and that the enforcement of criminal laws is equitable and nonarbitrary.¹² Without these civil rights, if the substance of criminal law is left as broad and vague as it is today,¹³ and if penalties and the impact of prison are as debilitating as they are now, filtered dragnets would give the government the means of exercising tyrannical control through the omnipresent threat of criminal enforcement and the power of discretionary clemency.

This Article proceeds as follows: Part I describes some filtered dragnets that are already in use and lays out the essential features that distinguish them from other investigation tools.

Part II describes the potential social benefits that can be gained from the responsible use of filtered dragnets.

Part III describes the scholarship and caselaw challenging the constitutionality of filtered dragnets on privacy grounds and disagrees with it. By most common-sense meanings of privacy, filtered dragnets are in fact much more private than the sorts of investigations that routinely occur.

Part IV shows that the threat of filtered dragnets comes not in the form of privacy but in the form of tyranny. Perfect detection of crime in a system where criminal statutes are sprawling and criminal penalties are harsh will either create a country of convicts or will give government too much power to engage in selective leniency.

Part V reinterprets the Fourth Amendment prohibition of unreasonable searches and seizures to fit the criminal justice problems that emerging surveillance technologies will cause. The reasonableness of a seizure should depend on whether the defendant’s conduct truly warrants criminal liability and penalties. The reasonableness of a search should depend on both expectations of privacy and on evenhanded investigation practices.

Part VI explains why the Constitution, and the Fourth Amendment in particular, are well suited to carry out this shift even though it would mark a departure from twentieth century precedent.

The agenda laid out in this Article is ambitious—almost embarrassingly so. What I propose here would require a seismic shift in Fourth Amendment principles that would cross the procedural/substantive divide.¹⁴ Given that, I take comfort in the fact that I am not painting on blank canvas. This project is a remix of themes developed by Bill Stuntz,¹⁵ Bennett Capers,¹⁶ Elizabeth Joh,¹⁷ Bernard Harcourt and Tracey Meares,¹⁸ Chris Slobogin,¹⁹ Mark Kleiman,²⁰ and many others. Even so, it is awfully presumptuous to suggest courts might start invalidating criminal laws or sentencing rules using a new-fangled conception of the Fourth Amendment. But I will suggest it anyway because it is the only desirable and realistic option. The criminal justice system needs to be transformed in a manner that accepts much greater levels of detection in exchange for many fewer criminal prohibitions and punishments. It is a trade that has to be executed simultaneously in order to avoid disastrous consequences.²¹ No legislative or local government process could pull off a massive rights horse trade of the sort that is required. It can only be accomplished through the style of landmark constitutional cases that, every generation or so, help realign Fourth Amendment operational rules with the ultimate purpose of Fourth Amendment protection.²²

I. WHAT ARE FILTERED DRAGNETS?

The progenitors of filtered dragnets have been around for a while. Fingerprinting analysis is a well-known and time-honored method of backwards investigation where the facts from the scene of a crime (the fingerprint markings) are cross-checked against a large stockpile of information in order to make a fairly confident match to a particular suspect.²³ Police dogs are another example.²⁴ We know that the mind-boggling sensitivity of a dog’s nose is such that, if it could talk, it could reveal vast amounts of information about a person—what is inside their bag, how their health is, whether they’ve been in recent contact with other people—that are unobservable to we mere humans. In some sense, the mind of a police dog is a treasure trove of personal information that remains inaccessible to police most of the time. But when they are trained to alert to contraband or to specific scents sampled from a crime scene, the dog and the training combine to create a “binary search”—a mechanism that tells the police nothing unless there is probable cause that a crime is being committed.²⁵

These crime-driven, quasi-filtered investigations are the outliers in a system of police investigation that relies much more heavily on witnesses, confessions, and physical searches.²⁶ But we can expect the practice to rapidly expand because of the greater amounts and variability of data available for cross-checking the facts of a crime against data from the population of potential suspects.

This Part lays out the two required features of filtered dragnets that will cause an unprecedented shock to Fourth Amendment theory. We will then visit examples of techniques that are already in use that either already satisfy the definition of filtered dragnets or soon will.

A. Required Elements to Qualify as a Filtered Dragnet

Filtered dragnets provide a suspect’s data to police only if (a) their data matches uniquely criminal details such that there is a high probability they have engaged in criminal conduct; and (b) their data has been pared down to provide only relevant details about the suspected crime to the police. When combined, these features make filtered dragnets a qualitatively different style of police investigation.²⁷

1. Automated Matching of Uniquely Criminal Details

Filtered dragnet investigations will trawl through and process large amounts of data. There is no doubt that they are a dragnet. But to qualify as a filtered dragnet, the filter of the dragnet must constrain the system’s ability to leak information. A filtered dragnet must be programmed to alert police only if an individual’s data matches a unique fingerprint of a crime.²⁸ In other words, the system blinds the police until at least probable cause (and hopefully more suspicion) is established.

Filtered dragnets are a subset of the category of investigations that Christopher Slobogin calls “suspectless searches.”²⁹ But they are a narrow subset. Very few of the suspectless searches that Slobogin analyzes (many of which I describe below) have the potential to become filtered dragnets. As they are practiced today, they will not meet the heightened standards for filtered dragnets because they do not use unique signatures of criminal behavior. For example, geofencing and familial DNA-matching procedures often allow police today to access data about a handful of individuals, all but one of whom are necessarily innocent, in order to help the police create leads for traditional follow-up investigation. To find the Golden State Killer, the FBI found a genetic match to a family member, and then used traditional genealogy to trace from that family member to the suspect.³⁰ The revelation of that family member’s identity would not qualify as matching to “uniquely criminal detail.”

Slobogin argues that even when a small number of people, some of whom are guaranteed not to be the perpetrator (such as somebody whose DNA only partially matches that of the sample from a crime scene), are identified to the police, the intrusion into privacy is fairly minimal and should be handled through Fourth Amendment doctrines that allow for warrantless searches and seizures, like checkpoints.³¹ I agree with nearly all of Slobogin’s proposals about how courts should interpret the Fourth Amendment with respect to these examples. But they still do not meet the criteria I am setting—criteria that, when met, challenge the most basic conceptions of Fourth Amendment privacy. To meet the definition of a filtered dragnet for my purposes, police will remain ignorant to details and identities until there is a high probability that the information identifies and pertains to the perpetrators and no one else.

2. Nondisclosure of Irrelevant Details

The first requirement on its own ensures that filtered dragnets are analogous to “binary searches” like drug-sniffing dogs—the sort that alert only if there is probable cause of a crime. But there is an additional affordance that should be exploited: filtered dragnets must refine the information that is ultimately disclosed to police by filtering out personal, irrelevant details even about a suspect. This is equivalent to a drug-sniffing dog that could magically produce a suspect’s drugs without any of the rifling through cars and pockets that are necessary today. Thus, the suspect will retain privacy over details that are not relevant to the criminal investigation at hand.

To be clear, neither of these requirements are meant to be absolute guarantees. All systems have error, and even if police are able to set very demanding thresholds for false positives, police will occasionally access licit, irrelevant details when a filtered dragnet falsely identifies a suspect who is then subjected to an arrest or probable cause–based search. But the requirements for disclosure in a filtered dragnet system can be calibrated to fit societal needs and expectations: the chance of false accusation error can be driven down to practically zero if we would like, if we are willing to tolerate the consequences that there will be more false negatives (more crimes that are not detected) or that police departments will need to access more data in order to maintain the same level of detection.

A. Examples

Next, we will visit a set of backwards investigation techniques that are in use today. These use the particularities of a crime to lead police to a suspect. While most cannot meet the demanding definition of “filtered dragnet” formalized above, with time and additional data resources, they will surely get there.

1. DNA Matching

DNA-matching investigations use parts (non-revelatory portions) of a DNA sequence produced from a sample collected at a crime scene or from a crime victim in order to identify a suspect using DNA databases. They are an obvious extension of fingerprinting analyses with some souped-up features. First, DNA matching can set a very high threshold of statistical probability of true match (or, in other words, a very low probability of a false match) because each DNA sequence has a large amount of data.³² Second, they can make use of popular commercial and ancestry databases for cross-checking and are therefore not limited to identifying individuals who have a history with the criminal justice system.

Third, familial or partial DNA matches are very useful for police investigations in a way that partial fingerprint matching is not. In familial DNA-matching investigations, such as the one that eventually led to the arrest of the Golden State Killer, police departments recover the identity not of the suspect but of one or more of the suspect’s genetic relatives.³³ This raises privacy concerns for the relatives whose identities are revealed to law enforcement in the course of finding the perpetrator.³⁴ So, as practiced today, familial DNA searches do not fit the definition of a filtered dragnet. They fail the second element (filtering out innocent and irrelevant details) by revealing identities and information about family members who are definitely not the perpetrator of the crime.³⁵ However, it is conceivable that in the future, if multiple databases are able to be accessed and triangulated, familial DNA matching can be part of a filtered dragnet system that automatically finds a familial match, trawls other data sources in order to identify the correct relative of familial match (based on, e.g., age, location, or personal history of the relatives), and discloses the identity of the suspect and the relevant details only when and if there is sufficient confidence that the correct suspect has been identified.³⁶ All of this can be automated.

DNA evidence holds an esteemed place in criminal justice and public perception. DNA evidence is durable (as long as it is handled properly) and judges and juries can justifiably place a high degree of confidence in the reliability of DNA-matching investigations.³⁷ Other types of data beyond DNA can have these qualities, too, but they provoke much more suspicion and dissent. Distinguishing them from DNA matching will become increasingly untenable.

2. Facial Recognition

Facial recognition uses large databases of identified photographs (often scraped from the public Internet) to discover the identity of a person who would otherwise be anonymous.³⁸ The technology can be used as a filtered dragnet when police departments deploy facial recognition on photographic evidence from the scene of the crime.³⁹ For example, law enforcement has used facial recognition to pin identities to individuals who appeared in surveillance footage from the Capitol on January 6, 2021, as well as to robberies and street crimes.⁴⁰ Although facial recognition algorithms are less accurate for female and non-white faces,⁴¹ industry members claim this is not the case for top-performing algorithms in active use.⁴²

3. Automated CSAM Detection

Last year, Apple unveiled a program that would automatically scan iPhoto images and cross-check them against a library of known child pornography when the images were uploaded to the iCloud. Apple had planned to use a hashing technique to check all files sent from Apple devices to be stored on iCloud servers. Essentially, every image received by an Apple phone is converted to a code that corresponds to the visual image.⁴³ When a person’s iPhoto images produce ten matches, Apple employees would automatically be alerted and would share the information with authorities. Thus, while every image would be hashed and cross-checked against child pornography, only the images that matched could lead to a disclosure to law enforcement. Apple has since abandoned its plans in response to criticism,⁴⁴ but the technological capability still exists.

4. Geofences and Other Reverse Searches

In 2019, a spate of arsons involving vehicles parked in commercial lots was committed in short succession.⁴⁵ Based on the locations, surveillance footage, and similar modi operandi, police had reason to believe that a single set of co-conspirators was involved in all six arsons. When federal investigators requested that the court issue a warrant requiring Google to search its time-logged geolocation records for cellphones that were at or near the scenes of the arsons during the times that they were committed, a U.S. magistrate judge complied.⁴⁶ This type of process—where police start with the location, approximate time, and other details of a crime and ask service-providers to find a matching account—is known as a “geofence warrant,” and magistrate judges have issued orders authorizing their use under certain conditions. Judges have refused to issue warrants (without deciding whether warrants are actually necessary) when the request cast too wide a net—that is, if too many devices are likely to be identified as matching the search criteria.⁴⁷ For example, if police are investigating a crime that took place during a Beyoncé concert, even a geofence with a small radius, during a fairly precise window of time, will draw in too many false matches—too many phones of innocent bystanders. But this concern falls away if police can use multiple details or the intersection of several geofences in order to create a search criteria that will be unique to the perpetrator.⁴⁸ For example, in one recent case, a perpetrator who was suspected to have cased the location of a murder on the day before he committed it was identified using overlapping geofences from the day before and the day of the murder.⁴⁹ License plate readers, drone footage, Internet of Things data, and satellite surveillance imaging could also be sources of geolocation information in the likely circumstance that criminals begin to leave their devices at home.⁵⁰

Geolocation data can be combined with other types of information, too, to form a signature of crime that is more likely to be unique. As an illustration, US intelligence agencies located Osama bin Laden in part by looking for locations where they would expect to find Internet and cell service but in fact found none.⁵¹ There are data sources outside of location data that can create a signature for reverse searching. For example, while investigating an arson case, the Denver police department sought and received a “keyword warrant”—a court order requiring Google to reveal the account information of users who had recently searched for the address of the arson during a fifteen-day period leading up to the crime.⁵² Cyberstalking, child pornography, and many other online crimes have used forms of reverse searches in order to identify the accounts associated with IP addresses that were used to engage in those crimes.⁵³

5. Scanners, Sensors, Cameras, and Microphones

Red light cameras were one of the first ventures into automated policing and were also much despised.⁵⁴ These systems used sensors to detect if a car entered an intersection after the light had turned red, took a photograph of the car, and later used the image of the car (and its license plate) to track down the owner and mail a ticket. These systems are not dragnets per se (they do not make use of pre-existing collections of data), but they set the stage for Automatic License Plate Readers that do capture an abundant amount of data in case some particular parts of it are useful later, as when police are searching for a stolen vehicle.⁵⁵

Patterns that are highly suggestive of crime can also be automatically detected using recording devices with cameras, microphones, or sensors that operate in “always on” mode.⁵⁶ One example in use today is ShotSpotter microphones that are constantly “listening” in a public setting but alert the police and save data long term only when the noises captured by the shot-spotter match the sounds of gunshots.⁵⁷ In theory, Alexa, which also constantly records to respond to watchwords like “Hey Alexa,”⁵⁸ could be designed to detect sounds that are particular to domestic violence or home invasion and automatically alert the authorities.

Other sensitive devices like terahertz scanners can detect when naturally occurring radiation is blocked by metal objects. When the blocking metal objects are gun shaped, the scanners can be programmed to alert.⁵⁹ But this is nothing compared to what quantum magnetometry will be able to do in the near future.⁶⁰ Quantum sensing is so sensitive to minute differences in magnetic fields that the sensors will be able to detect trace amounts of chemicals, even when they are concealed behind walls. So, Justice Brennan’s nightmare scenario is here: we will soon have contraband detection devices.

This survey of suspicionless searches and backwards investigations demonstrates that there is increasing viability and interest in using these types of techniques. The practices currently in use do not usually meet the two formal requirements for “filtered dragnets,” but it is useful to assume they eventually will. By assuming investigations will eventually meet the demanding definition of filtered dragnets, we will be able to state with more rigor precisely why it is we are nervous about these law enforcement technologies, and what the policy or constitutional response should be.

II. THE ADVANTAGES OF FILTERED DRAGNETS

This Article will eventually explain why filtered dragnets impose serious risks on society that are not adequately (or even nominally) addressed in Fourth Amendment theory. But first, we will explore reasons to embrace, rather than resist, the integration of filtered dragnets into policing.

Filtered dragnets offer several advantages over the investigation practices in common use.⁶¹ These include decreased exposure of innocent details, increased accuracy and efficacy of criminal investigations, increased detection and deterrence of crime, decreased discretion for suspect selection, and decreased risk to witnesses and victims. In combination, these advantages contribute such compelling benefits to society that courts and attorneys should feel a moral obligation to harness their powers as much as possible.

A. Decreased Exposure of Innocent and Irrelevant Details

Filtered dragnets protect the privacy of innocent individuals, as well as the innocent-and-irrelevant details of a suspect. They protect innocent individuals whose data is scanned in the process by allowing police and courts to set a high standard for false match error. That is, filtered dragnets can be programmed to alert and reveal personal information only when the statistical probability that the person has engaged in crime is greater than 50%, or 80%, or 99%. This would ensure that the number of innocent individuals who are initially approached and investigated will be only a fraction of the number of criminals who are found.⁶²

Moreover, filtered dragnets limit the type of information that is revealed even about the proper subjects of investigation who have committed a crime. This is a game-changer. If police could have searched a house or a car in a manner that blinded them to everything except contraband or criminal evidence, the text and interpretation of the Constitution would probably differ from what we have today. The closest analogy we have to filtered dragnets, as I have mentioned before, are drug-sniffing dogs. Police dogs are allowed to sniff and alert based on the (mostly defensible) assumption that they will be trained well enough to have a low error rate.⁶³ The dog sniff and subsequent alert are, controversially, treated as a non-search in Fourth Amendment law unless the dog has trespassed into the home or curtilage of a resident.⁶⁴ But once the dog alerts, the police have probable cause to perform an entire human-conducted unfiltered search of a person’s vehicle, home, or effects, thereby revealing intimate and innocent details while they look for contraband. Filtered surveillance is more privacy-protective than drug-sniffing dogs because it can restrict the sort of data that is revealed even as police are verifying that the alert is accurate.

I do not mean to suggest that filtered dragnets avoid all revelations about innocent people or activities. Relevant data disclosed to police as a result of a high probability match will frequently, maybe even usually, reveal information that is not directly tied to wrongdoing. For example, if in the future the police used a system that combines familial DNA matching with other records to identify a sexual assault offender, police may see and use the identity of the family member in order to confirm that the identification is sound and to show how the case was solved to a jury. This could reveal the identity of estranged parents or children of the suspect or could uncover paternity that was not previously known.⁶⁵ But this is a consequence of the fact that all successful investigations impose some irreducible privacy costs on the innocent. Even using traditional strategies, police will occasionally and appropriately question a spouse in a manner that reveals the suspect is having an affair or may make other similar sensitive revelations. If the revelations are in service of pursuing a probable cause–backed investigation, these will be innocent-but-relevant details.⁶⁶ The advantage I describe here pertains to the shielding of innocent-and-irrelevant information.

B. Increased Accuracy

By definition, filtered dragnets identify suspects and reveal information only when there is a high probability of crime. This is a form of increased accuracy—a reduction in false positive error. (In the next subsection, I will discuss the other form of increased accuracy—the reduction in false negative error—which would allow filtered dragnets, if deployed consistently, to solve more crimes and increase clearance rates.)

If filtered dragnets are held to higher probability standards than standard investigation techniques, they will cause proportionally fewer false starts and erroneous arrests and searches along the way.⁶⁷ In time, a shift toward filtered dragnets should decrease the dangers and anxiety that come from false suspicion and conviction at every stage of criminal investigation. Indeed, facial recognition systems that identify a suspect based on photographs or surveillance footage from a crime already outperform the accuracy rates of average eyewitnesses and PC-based warranted searches by a large margin.⁶⁸

Skeptics will have at least two critiques of my optimistic prediction: all systems have some error, and the sort of error that comes from a highly technical and data-driven system might be particularly worrisome since a falsely accused defendant will have to go up against a trusted and more accurate system.⁶⁹

It is true that no investigation tool is free from error, and it is also possible that police, prosecutors, and juries could be at risk of reflexively trusting the results of a filtered dragnet system because they are so reliable. But the premise of the critique might be plain wrong. When a filtered dragnet produces a spurious result, the error could very well be easier to catch than when an informant or witness makes a spurious identification. For example, when a man named Michael Usry was the target of an investigation based on his father’s partial genetic match to crime scene DNA, Usry was cleared as soon as his own DNA sample was collected and analyzed because it did not match the sample collected at the scene of the crime.⁷⁰ This should generalize: the more independent sources of data there are, the more protection there should be for innocent.⁷¹ A person wrongly identified by facial recognition is more likely to have a credible digital alibi (e.g., geolocation data that puts them in an entirely different state at the time of a crime) than a wrongly identified person who was accused by a confidential informant.

The facts of United States v. Chatrie⁷² illustrate the propensity for the erroneous targets of filtered dragnets to be cleared earlier and easier than erroneous targets in traditional investigations. In that case, police used a geofence warrant to access the deidentified location data of individuals who were near the scene of a bank robbery during the hour that the crime took place.⁷³ The geofence produced the deidentified location records of nineteen individuals, only one of whom was the perpetrator.⁷⁴ These facts do not fit the requirements of a filtered dragnet because law enforcement accessed and manually examined information related to the eighteen individuals who were not the perpetrator, but we can think of these eighteen as stand-ins for those who are wrongly targeted by filtered dragnet. One hour of anonymous geolocation data conclusively ruled out sixteen of them, and an additional hour ruled out the other two. None of the eighteen were identified (by name or other direct identifier) to the police, and none were questioned.⁷⁵ By contrast, consider the experiences of two individuals who were briefly implicated in the investigation before the FBI used geofence technologies. Using traditional policing methods, the FBI first investigated the ex-boyfriend of a woman who saw news reports about the bank robbery and called the police to offer a false tip. They also investigated somebody who owned the same kind of car that was used as the getaway vehicle when a bank employee reported the possible tip, but that, too, was a dead end.⁷⁶ It is not clear from the opinion what sorts of encounters and information-gathering the police used to rule out these two, but I suspect the anxiety and privacy burden absorbed by them was greater, by almost any measure, than the burden to the eighteen individuals whose approximate movements in public during one to two hours were disclosed in deidentified form. If this case is representative, the geofence warrant process should be a method of first resort, rather than last resort, because it is likely to lead more quickly to both the identification of the right suspect and the elimination of wrong ones.

A second skeptical critique is that I am describing the positive qualities of filtered dragnets under the assumption that the systems will be deployed as intended and will not be manipulated or tampered with. This is a legitimate concern to which the long history of flaws in forensic labs can attest.⁷⁷ But as a comparative matter, data-driven techniques of this sort might be more accountable and auditable than old-school forms of criminal investigation. When the same level of scrutiny and doubt is applied to traditional investigations that would have to continue in the absence of new technologies—the risks of error and manipulation present in eyewitness testimonies, suspect interrogation, or warrant affidavits⁷⁸—the prediction that filtered dragnets will be more corrupt and error-prone is hard to believe.⁷⁹

C. Increased Detection and Deterrence

The accuracy and efficiency of filtered dragnets can help tackle longstanding social problems of chronically unsolved crime, assuming filtered dragnets are used regularly.⁸⁰ About twenty-five million Americans—8% of the population—suffer from a violent felony or a felony-level theft each year.⁸¹ These events are of course disproportionately likely to beset low-income households. While violent crime rates today are still down compared to the high-water marks in the 1980s and early 1990s,⁸² the statistics are still grim, particularly for communities of color. In the U.S., about five people in every 100,000 are murdered each year.⁸³ For African-Americans, the rate is above six per 100,000.⁸⁴ (By comparison, the rates in France and Italy are 1.28 and 0.52 per 100,000, respectively.)⁸⁵ In addition to the trauma and losses to crime victims, society also absorbs a range of economic costs and psychological distress in the course of guarding against crime.⁸⁶ It is all too easy for scholars, lawmakers, and others who live in safe neighborhoods to forget: serious crime is just awful.

Crime clearance rates (that is, the proportion of crimes actually reported to the police that have led to an arrest or otherwise been considered solved) for violent crime is 42%, and the rate is under 15% for property crimes.⁸⁷ Only about half of violent crimes and one-third of property crimes are ever reported to the police, and many arrests and convictions are erroneous. The low likelihood of reporting a crime, the low clearance rates, and the somewhat sizable chance of false arrest altogether mean that the probability a criminal will be prosecuted for any particular violent crime is probably under 20%.⁸⁸

Clearance rates in black neighborhoods are even worse. The events over the last decade validate Bill Stuntz’s observation that “poor black neighborhoods see too little of the kinds of policing and criminal punishment that do the most good, and too much of the kinds that do the most harm.”⁸⁹ Dampening crime in lower income black communities is a civil rights goal of longstanding stature.⁹⁰ Bennett Capers described underenforcement as the criminal justice problem that gets short shrift,⁹¹ and that was before George Floyd’s murder made police violence and over-policing problems an issue of pressing global salience. There is some squeamishness today in discussing crime in black neighborhoods (and certainly in referring to that crime as “black on black”), but it is foolish to expect criminal justice reform to be lasting and meaningful if it does not tackle both of the scourges of inner-city policing: harsh policing and civilian violence.

The most obvious and natural way to curb future violent crime is to increase the detection of very serious crimes today.⁹² Some scholars, Tom Tyler chief among them, have made the case that in the long run, law-abiding behavior has less to do with criminal law enforcement tactics than with cultural, economic, community, and norms-based factors.⁹³ Occasionally, this insight has been oversimplified and distorted to leave the impression that law enforcement detection rates have nothing to do with crime rates.⁹⁴ This is a mischaracterization of the evidence.⁹⁵ While there are multiple “root causes” of crime,⁹⁶ data and common sense confirm that holding other factors steady, criminal behavior is sensitive to the probability of law enforcement detection. The relevant criminology studies consistently find evidence that detection reduces the incidence of future crime.⁹⁷ There is also some evidence that the swiftness of enforcement—the “celerity”—makes a difference.⁹⁸

Increased detection of crime not only reduces crime rates, but also improves other measures of social mobility and security as well. Greater crime detection increases the likelihood that offenders will seek and find employment, enroll in education, and live in a stable family environment, and it reduces school absenteeism in the community.⁹⁹ Indeed, given how dramatic the impact of detection is on increasing pro-social behavior, it is not at all clear that law enforcement should even be distinguished from the so-called “root causes” of crime. Fear that crime will not be well controlled is a root of many of the root causes of crime.¹⁰⁰

So, an enduring and well-documented fact is that an increased likelihood of detection and enforcement drives crime rates down. This is much less true, and possibly not true at all, for the severity of punishment, where increasing the length of prison sentences is found to have no impact or even criminogenic effects.¹⁰¹ Thus, the state’s essential duty to protect its constituents from the violence and exploitation of others is well served by good detection. Unfortunately, crime rates are currently under the management of the American criminal justice system’s haphazard style of enforcement: occasional, error-prone, and harsh.¹⁰²

D. Decreased Discretion for Suspect Selection

Filtered dragnets are crime-driven rather than suspect-driven. In suspect-driven investigations, police have developed suspicion—or a hunch—around a particular individual and focus their observations in an attempt to develop a case.¹⁰³ Suspect-driven investigations are propelled by the theories of police officers and proceed within their discretionary control. Police also have some control over filtered dragnet investigations (e.g., over where and when to deploy them), but once they are put into service, police lose control over the results. If facial recognition or reverse searches identify a wealthy or politically connected individual as the suspect of a crime, it will be much more difficult for police and prosecutors to avoid pursuing investigation and prosecution, as compared to cases where police use informants or witnesses as the main source of identification.

In later Parts, this Article describes the ways in which police can still exercise too much discretion by, for instance, using a filtered dragnet tool preferentially to solve some crimes and not using it on others that are substantially similar. But we should not lose sight of the ways filtered dragnets do constrain discretion. One of the greatest risks from mass surveillance (that is, dragnets) is its potential to create a resource for selecting the suspect first and then finding a crime, or for using legal but sensitive information to discredit political enemies and personal foes.¹⁰⁴ Police cannot exert this type of control over filtered dragnets.¹⁰⁵

The Supreme Court caselaw that has found fault with Big Data policing has involved digital searches in which the police first selected their target and then accessed long histories of their target’s whereabouts without a warrant.¹⁰⁶ The Court is right to constrain investigations that permit police to access sensitive and detailed information without any justification or checking mechanism. Even when police have developed suspicion against a target, the low-tech factors that go into building up suspicion about a particular individual (e.g., testimony from an informant or presence in a “high crime neighborhood”) can impose an indirect racial tax on innocent minorities that could mostly be avoided with filtered surveillance programs that have very low error.¹⁰⁷

Not all agree with this assessment. Kiel Brennan-Marquez has argued that “nothing about the logic or practice of data-driven law enforcement makes [] redistributive impulses necessary. On the contrary, they will be hard fought—and particularly in our current political climate, unlikely.”¹⁰⁸ I share a certain degree of Brennan-Marquez’s cynicism (I have wondered, for example, if law enforcement’s sloth-like speed in adopting crime-driven investigation practices rather than suspect-based practices are related to the loss of control over defining the pool of suspects),¹⁰⁹ but he goes too far. There already is some evidence that data-driven policing has redistributed the costs of law enforcement and will continue to do so. DNA-based exonerations, for example, have proven the innocence of disproportionately more minority convicts than whites.¹¹⁰ This suggests that, going forward, DNA-based investigations will shift police focus not only toward the guilty, but also away from wrongfully accused Black and minority suspects.

E. Decreased Risk to Victims, Witnesses, and Suspects

Police investigations cause a range of problems that are not captured in the variables I have discussed so far—privacy intrusions, erroneous arrest, et cetera. When police have to rely on old school methods of case investigation, the system necessarily puts victims, witnesses, and suspects at risk of physical or economic harm.

Let us start with crime victims and witnesses. Cooperating with the government is a perilous activity for these individuals, as captured by the saying “snitches get stitches.”¹¹¹ By one theory, clearance rates for serious crimes are low in the U.S. because proving homicide or robbery cases requires victims and witnesses to testify and put themselves at risk.¹¹² Bill Stuntz hypothesized that police forces increased their focus on drug and gun possession charges because these crimes were “self-proving” once contraband was discovered, and therefore did not necessitate the cooperation of a victim or witness.¹¹³ As a result, more serious crimes were harder to clear than low-level crimes. But, of course, those are the crimes that are more damaging to the community. If reverse searches, facial recognition, and other filtered dragnets could allow police to prove cases independently, without exposing victims and witnesses to the risk of social stigma and retaliation, they would contribute benefits to society that are not accounted for in the usual privacy-versus-security debates.

As for the suspects, the manner in which traditional policing builds up cases leave much to be desired. Police stops and searches are often vectors for bias and disrespect where swearing, insults, unwarranted accusations and suspicion, and unjustified physical contact lead to demoralization and distrust.¹¹⁴ Traditional investigations are costly in terms of time, fear, property damage, and general unpleasantness. A person who is pulled over for a secondary inspection when a police dog alerts to her car may very well have no recourse when the police slash open the seats of her car to try to find drugs. Home searches and interrogations cause additional physical, emotional, and economic strain to suspects, irrespective of what sorts of private information is revealed. These costs will become more obvious and more salient when technology obviates the need for a government agent to tear open the upholstery of a suspect’s car, dishevel a dresser, and “grope[] and grab[] our children” at the airport.¹¹⁵

***

In combination, these factors show that filtered dragnets should be part of any responsible law enforcement program. They extend the “pareto frontier” by allowing privacy and crime detection to increase at the same time.¹¹⁶ It would be counterproductive for law to prohibit their use based on a formalistic or expansive notion of Fourth Amendment protection. And yet, as the next Part shows, there is some risk that courts and lawmakers may do just that.

III. FILTERED DRAGNETS AND PRIVACY

Most of the courts, scholars, and civil society organizations that have considered the societal impact of filtered dragnets such as geofencing and reverse keyword searches have concluded that they pose serious threats to privacy.¹¹⁷ Putting aside for a moment whether filtered dragnets are consistent with the full set of Fourth Amendment principles, this Part argues that filtered dragnets pose almost no threat to Fourth Amendment privacy. What I mean is, among all of the meanings and purposes that the right to privacy is meant to capture, the only ones that are meaningfully violated by filtered dragnets are related to abuses of power. The privacy expectations of the non-offender, which are the ones that predominate Fourth Amendment analysis, suffer at most a technical violation. If we separate out the anti-authoritarian goals of privacy, nothing is left of the privacy critique of filtered dragnets.

This does not mean that filtered dragnets are harmless—to the contrary, as Part V will argue, they pose significant dangers to civil liberties. But by ruling out privacy as the vector of abuse, courts can harvest the benefits of analytical precision and adjust Fourth Amendment law to better match the problems. This Part describes how courts and scholars have responded to filtered dragnets so far and then explains why Fourth Amendment principles are so poorly suited to address the negative reactions.

A. Judicial Reactions to Filtered Dragnets

Courts are not prepared for the challenges that filtered surveillance pose to Fourth Amendment jurisprudence. Indeed, they are struggling as it is to find principled limits in more common and straightforward digital dragnet cases.¹¹⁸

So far, lower court opinions are surprisingly unfriendly to technologies and practices that will be the predicates to filtered dragnets. For example, Baltimore tried to set up a program called Aerial Investigation Research (“AIR”) in which its police department collected and retained 45 days’ worth of aerial surveillance footage, but would not be allowed to access the footage unless a violent crime occurred and was likely to be caught on camera.¹¹⁹ Civil liberties organizations successfully challenged the program, arguing that the Fourth Amendment should constrain the government from amassing data that can be used for longitudinal location tracking no matter how constrained the Baltimore Police Department’s access and use of the data might be.¹²⁰ The Fourth Circuit used the theoretical possibility of government access to information as a sufficient reason to find that a Fourth Amendment search on all Baltimore residents took place, regardless of the design, practice, and risk of abuse for the program.¹²¹ If this reasoning is adopted throughout the judiciary, law enforcement will not be able to collect their own information for filtered dragnets and will have to rely on data that is collected and held by private industry.

Many courts have expressed similar reservations when the government asks a private company like Google to trawl through its data to conduct reverse searches, too.¹²² But these opinions suggest that a warrant process that is sufficiently narrow and “particularized” so as to avoid disclosing data of innocent bystanders to the police would satisfy Fourth Amendment requirements.¹²³ This leaves an opening for filtered surveillance. It suggests that the automated scan that Google or another third party would perform of all its data in the process of identifying responsive records would not be a search in and of itself. In other words, the focus of the courts that have analyzed geofence warrants is not on the data that is scanned at all, but on the data that is ultimately revealed to police.

Courts might begin to clamp down on third-party scanning for law enforcement purposes following the logic of the Fourth Circuit’s decision in the Baltimore AIR case. Many scholars are advocating for this, as I describe next. But it is still not clear that filtered dragnets will be understood to be a search at all given that they are designed to alert only when probable cause of a crime has been established. Even if police use computing technologies to automatically scan through large amounts of personal data, the constitutionally relevant event is the revelation and use of information to the government agents who are making decisions.¹²⁴

This is best captured by the binary search doctrine—the rule establishing that, for example, a drug dog’s alert is not a search under the Fourth Amendment because it reveals only the presence of contraband and criminal wrong-doing. There is little reason to believe the Supreme Court will backpedal. The Court has found that a universal fingerprinting database, possibly even one that requires involuntary contributions of fingerprints by individuals who are not yet in the database, could be justified, given that fingerprinting is an “inherently more reliable and effective crime-solving tool than eyewitness identification or confessions.”¹²⁵ More recently, in Maryland v. King, the Supreme Court found that police can forcibly swab an arrestee and cross-check his DNA against the database of DNA samples from unsolved crimes.¹²⁶ The opinion focused almost entirely on the physical act of swabbing and took for granted that the cross-checking of a DNA sample to a crime database will not be a search because it reveals either nothing at all or reveals only a high-confidence match to a crime.¹²⁷

That said, some of the Supreme Court decisions in the last ten years written by Justice Scalia incorporated a strong property-based formalism. In United States v. Jones, the use of a GPS device was a search not because of the sensitivity of the information gathered, but because of the touching of the suspect’s car.¹²⁸ And in Florida v. Jardines, use of a drug-sniffing dog on a front porch was a violation of the Fourth Amendment because the practice involved a trespass with information gathering.¹²⁹ The fact that the information gathering was in the form of a binary search did not alleviate the flaw, according to the majority.¹³⁰ If Scalia’s formalism for real and tangible property is extended to personal data, filtered dragnets could be considered a search of all individuals whose data is mechanically scanned in the process, irrespective of how trivial the invasion to them may be.

Even if courts come to agree that mechanically processing data is a Fourth Amendment search, this would still not guarantee the death of the filtered dragnet. They might be reasonable searches under the special needs or checkpoints doctrines.¹³¹ In the context of checkpoints, bulk searches, and other dragnets, the Supreme Court has articulated the factors that it would use to determine whether the searches are “reasonable” despite a lack of individualized suspicion. These factors include the intrusiveness of the search, the public and government interest that is served by the dragnet, and the degree of oversight or limitations on discretion that are involved.¹³²

Thus, judicial reasoning seems to be on a collision course between (a) cases that are eager to expand the recognition of privacy rights to cover all data subjects in large databases whose information is theoretically accessible to police and (b) cases that find highly probative “binary searches” are outside the ambit of Fourth Amendment prohibition.

B. Scholarly Reactions to Filtered Dragnets

Lawrence Lessig saw this train wreck coming. In Code, he pointed out that the Internet and digital information technologies will allow police to identify a perpetrator with high confidence while remaining blind, by design, to the intimate details of the innocent. He explained that this will cause the privacy rationale for Fourth Amendment protection to lose relevance, at least when filtered dragnet investigations are possible. He expected these technologies would force a wedge between privacy and anti-authoritarian justifications for criminal procedure, when in the past, the two types of arguments traveled together.

Fourth Amendment scholars have doubled down on privacy.¹³³ They have lumped filtered dragnets together with all other digital surveillance in order to hinder police access. Dragnets of every sort, including the filtered sort, still suffer from analytical chaos because of value judgments and predictions that too often stay latent in the scholarship.¹³⁴ As a result, scholars are all over the map in terms of the proper treatment of digital dragnets, and none have focused on the right factors.

A few examples. Daphna Renan has argued that the collection, retention, and theoretical capability for law enforcement to access data is alone sufficient to constitute a privacy harm. Consent or a warrant should be required before the government collects any privately held data, and even before they access or request machine scanning of that data by third parties, irrespective of how limited and careful the readout is.¹³⁵ Natalie Ram has approvingly held up Maryland’s law prohibiting law enforcement from using genomic databases to solve crimes unless they have received consent from all individuals whose data is in the genomic dataset.¹³⁶ More generally, this brand of scholars use access to data, rather than how it is used, as the sine qua non for Fourth Amendment analysis and ask why anybody should be under “lifetime surveillance.”¹³⁷

Scott Sundby and Nadine Strossen take the more moderate position that dragnets (of any sort) should be used only as a last resort,¹³⁸ though it is not clear they would apply their conclusions to filtered dragnets in particular. Eldar Haber, in considering how the Internet of Things can become a rich source of police investigatory data for reverse searches, advocates for a warrant requirement that goes beyond the “super-warrant” requirements of the current Wiretap Act to create an “ultra-warrant” requirement.¹³⁹ Since the super warrant requires police to exhaust all other means of investigating before securing a wiretap warrant, the effect and objective of Haber’s recommendation is similar to Sundby’s and Strossen’s—to ensure that the criminal justice system strongly disfavors use of Internet of Things data in investigation.¹⁴⁰

Continuing down the spectrum, some scholars appreciate the potential benefits of filtered dragnets and have advocated for a style of restraint that differs from prohibition or PC-based warrant requirements. Stephen Henderson and Kiel Brennan-Marquez argue that police departments should have a budget for searches and seizures (including digital investigations that, at least right now, operate outside the formal definition of a Fourth Amendment search) so that they are incentivized to use the most efficacious practices rather than the most expedient ones.¹⁴¹ Christopher Slobogin has explicitly called for a more nuanced understanding of dragnets and suspicionless surveillance. He would allow dragnets that meet a standard of “generalized reasonable suspicion” where their efficacy outweigh the privacy intrusion enough to merit their use in criminal investigations.¹⁴² Jeffrey Bellin recommends locating the Fourth Amendment interest in databases with the owner or holder of data, rather than the subject of the data searches, which would give a company the right to either consent to a search or to demand a warrant.¹⁴³ Andrew Ferguson would allow the use of dragnets as long as the legislative branch explicitly authorizes their use.¹⁴⁴

Reaching the other end of the spectrum, some scholars (myself included), see the use of filtered dragnets as a move toward justice rather than away from it.¹⁴⁵ The prohibition of a highly reliable investigation tool is unethical when the prohibition would push police toward more invasive and less accurate investigation techniques and when serious crime would too often go undeterred. David Kaye and Michael Smith have made this argument with respect to DNA matching.¹⁴⁶

Where does this leave us? Hopefully with an open mind and a hunger for reasoning from first principles.

C. The Pointlessness of Fourth Amendment Privacy

Filtered dragnets will disrupt the equilibrium between the government, criminals, victims, and bystanders. That is obvious enough. Orin Kerr has made the descriptive and normative claim that courts intuitively adjust Fourth Amendment rules to strike a new balance between privacy and security whenever the government gains a significant new surveillance capability.¹⁴⁷ Filtered dragnets implicate only a few Fourth Amendment interests, and those few are not well served by the reasonable expectations of privacy test, by the warrant requirement, or even by intuitive adjustments. We are in new terrain in which a technology increases both privacy and crime control.

1. Theoretical Dimensions of Fourth Amendment Privacy

Borrowing from a rich literature that catalogues and elucidates the concept of privacy,¹⁴⁸ the following arise most frequently in the context of government intrusions and surveillance:

i. Freedom from Embarrassing Revelations, Social Dislocation, and Harassment

Perhaps the most common and robust form of privacy is the recognition that everybody has some legitimate, pro-social reason to want to keep licit details about their lives away from at least a subset of people.¹⁴⁹ They want the freedom that comes from relative obscurity,¹⁵⁰ where their decisions and behavior are not under the scrutiny and judgment of others.¹⁵¹ Everybody deserves to be shielded, at least to some degree, from embarrassment over the things they have said or done that did not cause any lasting harm to others and that can be misunderstood.¹⁵²

The scope of this interest ranges from trivial embarrassments (the regrettable hairstyle, the piece of toilet paper stuck to a shoe) to the truly life-changing (the ostracism of an HIV diagnosis, the physical attack carried out with the help of location information).¹⁵³ Much of the time, the sensitivity of a piece of information will depend greatly on context,¹⁵⁴ but the point is that “everyone has facts about themselves that they don’t want shared, disclosed, or broadcast indiscriminately.”¹⁵⁵ When information is permitted to leap from one context to another and to be used in unexpected ways, it will cause harm.¹⁵⁶

Filtered dragnets relieve, rather than exacerbate, these concerns. By shielding data from police (and everyone else) unless and until they match the fingerprint of a crime, filtered dragnets keep as much information private as practically possible.¹⁵⁷ Indeed, if more police investigations were conducted through filtered dragnets, members of the community would be much more obscure and unknown vis-à-vis the state as compared with programs that involve heavy use of interviews, street patrols, traffic stops, and home searches.

ii. Freedom from Manipulation

An actor can exploit access to another person’s data by discovering their vulnerabilities or gaps in rationality and then using those to persuade, cajole, or threaten the data subject into doing something.¹⁵⁸ Again, as with freedom from embarrassment, filtered dragnets present a lower, rather than higher, risk of this sort because law enforcement and other government actors are blinded from nonrelevant information. The only use to which the dragnet data are put involves solving a crime.

iii. Freedom from Indignity

The privacy literature prizes at least two forms of dignity that are not captured in other concepts on this list. First, privacy intrusions sometimes bring about an indignity from being singled out for suspicion.¹⁵⁹ Dragnets, whatever their faults, do not have this intrusion. Nearly everybody suffers the same indignity when bulk data is scanned, just as they do at TSA checkpoints and DUI roadblocks.¹⁶⁰ Another form of dignity concerns being treated as a human rather than being processed as a faceless line of data. This has some overlap with the concept of “individualized suspicion,” which I will discuss below, and which (in my opinion) filtered dragnets more than adequately should meet. Nonetheless, it is undeniable that filtered dragnets are entirely mechanical up until the point when a limited set of information is disclosed to police. Whether this should make a difference in the moral and legal status of filtered dragnets, though, is debatable.¹⁶¹

iv. Freedom from Anxiety

A common theme throughout the discourse revolves around the idea of loss of control and the uncertainty and anxiety that arises from it.¹⁶² When the government has personal information about a subject, the subject is uncertain how the information could be used and fears that it may be used against them. This fear is, in and of itself, a social cost. Kiel Brennan-Marquez has argued that new data-gathering technologies create, and to some extent have already created, an omnipresent low-level form of anxiety similar to the feeling one gets when seeing a patrol car in the rear-view mirror and “feeling your pulse quicken; awareness heightened and senses alert, as you try not to break any traffic rules.”¹⁶³

A natural follow-up question is: What havoc can the government cause with data?¹⁶⁴ The greatest risk posed by filtered dragnets is to offenders, and it is the risk that their offense (and nothing more) will be detected. Thus, for filtered dragnets, freedom from anxiety calls for a freedom from law enforcement itself. It vindicates the rights of the supposedly “guilty” rather than the innocent. Fourth Amendment privacy recognizes no such interest.

2. Routine Compliance with Reasonable Expectations of Privacy

Data-driven policing has inspired a series of gloomy articles that predict the Fourth Amendment’s reasonable expectations of privacy test has become irrelevant.¹⁶⁵ As long as the third-party doctrine stands, permitting police to access data held by third-party companies without justification or oversight, privacy will be insufficiently protected. I agree with these scholars.¹⁶⁶ But courts are already addressing this problem. Cases like Carpenter v. United States—in which the Supreme Court found that police access to several days’ worth of geolocation data constitutes a search that would require a warrant or appropriate warrant exception—have proven that for suspect-driven searches, Fourth Amendment privacy is not yet irrelevant and is becoming more powerful by the day.¹⁶⁷

Nevertheless, the reasonable expectations of privacy test is very unlikely to impede the adoption of filtered dragnets. That test has repeatedly been interpreted to deny privacy interests of the guilty. “[A]ny interest in possessing contraband cannot be deemed ‘legitimate,’ and thus government conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.’ ”¹⁶⁸ Jed Rubenfeld’s synthesis of Fourth Amendment caselaw seems to get it right: the Fourth Amendment aspires to support “a justified belief that if we do not break the law, our personal lives will remain our own.”¹⁶⁹ Filtered dragnets pass this test.¹⁷⁰

To be clear, there are reasons, independent of privacy, to protect law-violators-as-violators. These arguments, which I describe in depth in the next Part, are critical for understanding the threat from filtered dragnets. But they are only loosely related to “privacy” as the term is typically used, and they will not be incorporated into the reasonable expectations of privacy unless that test is changed beyond all recognition.

3. The Irrelevance of the Warrant Requirement

In U.S. v. Chatrie, the geofence case described earlier, the court suggested it would approve a geofence warrant process if a magistrate or court got to make a probable cause determination before the geolocation data of a target were de-anonymized.¹⁷¹ Generalizing to other filtered dragnets, law enforcement would seek a warrant after the filtered dragnet system alerts, but before any identifying data is revealed.

This process might be a good component for accountability and oversight, and to ensure that filtered dragnets are performing at or above the expected “hit rate,” but it is hard to imagine why a warrant could ever be denied. A warrant is valid as long as it is issued by a neutral judge or magistrate, is based on probable cause, and states with sufficient particularity what is to be searched or seized.¹⁷² The standards for both probable cause and particularization will be met—more than met—given that the definition of filtered dragnets I am using requires them to withhold information until the probability that the target has engaged in the investigated crime meets a high standard. As for particularization, because the filtered dragnet procedure begins with the signatures of a crime and works backwards to find the perpetrator, the profile for matching (what I have been calling the “fingerprint” of the crime) is as particularized to a crime as it can be.¹⁷³

Privacy advocacy groups have argued that warrants issued for reverse searches are tantamount to general warrants because they do not identify (or even anticipate) a particular suspect before they are issued.¹⁷⁴ But the only similarity that geofence warrants have to general warrants from the Colonial Era is the lack of a named suspect. In every other way, geofence warrants restrict the information that is revealed to that which is closely linked to a particular crime. By comparison, general warrants authorized agents of the colonial government to look for stolen or untaxed goods anywhere the agent “[should] think convenient to search.”¹⁷⁵ The only manner in which the geofence warrant is unconstrained—by allowing police to discover who the suspect is rather than requiring police to come with a suspect in mind—is a feature of geofence warrants that should be praised, as it limits the discretion of the police to select their targets in advance. This is the critical distinction between filtered dragnets like geofence warrants or DNA searches and suspect-driven searches—one that scholars and commentators too frequently gloss over.¹⁷⁶

Thus, a warrant requirement is irrelevant to the adoption of filtered dragnets, apart from the time, resources, and general system friction involved, because they should routinely be granted.

***

Privacy scholars are courting disaster by lumping filtered dragnet techniques in with other types of dragnets and digital searches. Even if there are court victories in the short term, they will be pyrrhic. The very concept of “privacy” will become increasingly vulnerable to the “I have nothing to hide” argument that is loathed by the field (and rightly so).¹⁷⁷ Courts might fail to sufficiently constrain unfiltered dragnets and suspect-driven investigations because of the utility and low harm of filtered dragnet techniques that happen to share the same Fourth Amendment bucket.

Arguments against mass surveillance often start with the observation that surveillance fundamentally shifts power from the surveilled to the surveillor.¹⁷⁸ This is true as far as it goes, but if the surveillor is constrained and can only see evidence of a crime, that power shift will often be a desirable one. In fact, assuming that the law is legitimate, the enforcement of a law is one of the most legitimate acts the government can do. The burden is therefore on surveillance scholars to explain why those who have violated the law may have justified interests in being protected from state detention and prosecution, even when their law-abiding conduct remains private. There are answers to this challenge, but they sound in tyranny rather than invasions of privacy. There is a virtue to being precise about the problems of filtered dragnets without reliance on capacious notions of privacy that would implicate nearly every law enforcement function.

IV. FILTERED DRAGNETS AND TYRANNY

Filtered dragnets will provide a highly concentrated dose of criminal detection. Even though, in theory, the whole point of having law enforcement departments is to detect and prosecute crime, a drastic increase in criminal detection can have toxic effects on society. The dynamics and interaction of other criminal justice factors have come of age in a time of low detection and only make sense if detection continues to be difficult.

This Part begins by revisiting the interests that privacy scholars have identified that would be affected by filtered dragnets. Each of them is really an anti-tyranny concern garbed in the language of privacy. If we are more explicit about the goals and analyze the risks of authoritarianism that filtered dragnets may drag along with them, the problems (and, therefore, the remedies) become much more obvious.

The true threats from filtered dragnets are that: (1) many Americans will confront a real risk of criminal liability based on our overbroad criminal codes; (2) prosecutions of those crimes could lead to life-altering detentions in our inhumane prison systems; and (3) without the shield of abysmally low detection rates, the only protection is lenity, which is no protection at all from a government that attempts to exert authoritarian power.

A. Privacy as a Stalking Horse for Anti-Authoritarianism

Neil Richards claims that privacy is a necessary bulwark “if we want political freedom against the power of the state.”¹⁷⁹ But privacy is inadequate on its own to protect the broad range of liberty and equality interests that arise with abuse of power. Filtered dragnets prove it. They can be used to trample liberties and to serve the public unequally even though the government will not know any irrelevant details about licit activities.

Instead of trying to expand the meaning of “privacy” to tackle every possible state abuse, courts and criminal justice scholars alike should seize the moment and force constitutional theory to shift its focus from privacy to anti-authoritarian constraint. To be sure, courts should continue to refine the conception of Fourth Amendment privacy interests to address unfiltered digital dragnets. But if we have any hope of harnessing the great potential of filtered dragnets without creating a despot’s playground, the Supreme Court will need to simultaneously cultivate an anti-authoritarian strand of Fourth Amendment rules.

When surveillance scholars use the concept of privacy to curb abuses of power, they are concerned about unnecessary social control and abuses of discretion.¹⁸⁰

1. Unnecessary Social Control

Law enforcement serves the obvious and highly valued function of social control. As Kiel Brennan-Marquez explains, “we want people to worry about breaking the rules”¹⁸¹—at least, when the rules are good rules, and when the consequences for breaking rules are proportional and fair. However, Brennan-Marquez is concerned that data-driven policing tools will leave the police “awash in probable cause,” allowing them to stop, search, or arrest nearly anybody.¹⁸² This concern gets to the heart of the matter. But it is ultimately a critique of the substance of criminal law and the discretion of criminal justice decisionmakers. These are the same themes that Bill Stuntz repeatedly raised when he critiqued Fourth Amendment cases and scholars for allowing privacy to be a distraction from more pressing threats.¹⁸³

Let us return for a minute to Brennan-Marquez’s metaphorical driver who has just discovered a patrol car in the rearview mirror. If the government had done a massive purge of its penal codes and the only crimes left on the books were murder, rape, arson, armed robbery, and aggravated assault, and if false positive police error was vanishingly small, would the driver feel anxiety? For a time after the change, yes of course. There will be a short-term period of distrust and adjustment when technologies or rules change suddenly and dramatically.¹⁸⁴ But in the long run, anxiety will ebb under the pressure of persistent feedback of non-events and the absence of harm.

Public opinion surveys find that attitudes about privacy are mediated through attitudes about the substantive criminal law that is being enforced: a dog that is sniffing for bombs is perceived as less privacy-invasive than a dog that sniffs for drugs even though the experience is identical for the investigation target (at least, up until the moment that the dog alerts, that is).¹⁸⁵ If assessments of privacy change not because of the revelations or techniques that are used but because of the crimes that are prosecuted, the concept of privacy is standing in for objections to the substance of the law.

The concern about unnecessary social control is better addressed by defining, as best we can, which types of antisocial conduct rise to the level of being worthy of criminal punishment and which do not. And the concern raises important questions about whether criminal violators are treated too harshly. Privacy is a blunt instrument for these purposes. It draws lines that have only a vague relationship to the distinctions we mean to draw.

2. Selective Attention

Another serious concern is that police might make use of a system of surveillance to rifle around for something to use against a specific person or group.¹⁸⁶ Motivations could range from political persecution to racism to personal vengeance to simply wanting to make a quota or appear well in performance metrics within a bureaucratized police department.

As with unjustified social control, the problem of discretion and selective attention is only indirectly related to privacy. Indeed, it is not even clear that privacy has any positive influence on police discretion. Privacy steers police toward information sources that disproportionately expose low-income and minority groups: if police cannot bring a drug-sniffing dog to a house, they will bring it to apartments and cars.¹⁸⁷ If police cannot search the full set of government and commercial DNA databases for a match to a crime scene sample, they will just use the government’s database of arrestee DNA data.¹⁸⁸ At the same time, police can also engage in selective inattention by avoiding leads that could cause problems for friends or powerful people and by failing to give crimes perpetrated against low-status victims the same attention as the ones inflicted on high-status victims. When communities are under-protected, it is a form of too much privacy vis-à-vis the government.

The policy antidote to government discretion and bias is to directly limit discretion and bias. Filtered dragnets already do this, to some extent, because once they are employed, police lose control over who will ultimately be identified as a suspect. But law enforcement can still deploy filtered dragnets unfairly when selecting the neighborhoods or cases in which filtered dragnets will be deployed.¹⁸⁹

Thus, in the context of filtered dragnets, “privacy” concerns are attempting to capture and curb something bigger: too much social control at the discretion of the government.

B. Filtered Dragnets and the Risks of Tyranny

An authoritarian regime thrives when it has unlimited discretion to issue stiff punishment based on criminal behavior that has negligible negative consequences (and possibly even positive consequences) to society. This threat is blunted if the state lacks the means to acquire evidence of criminal behavior, but with reliable surveillance mechanisms, law enforcement officials will be able to exert as much social control as they please, because nearly every person can be charged with a crime.¹⁹⁰

Thus, filtered dragnets present risks that run along three vectors: (1) overbreadth of criminal law; (2) overly harsh punishment of criminals; and (3) overly discretionary investigations and enforcement. If these three forces remain unchecked, filtered dragnets could cause more harm than good. In the wrong hands, filtered dragnets could cause catastrophic risks of the sort that the Constitution is meant to prevent.

1. Overbreadth of Criminal Law

A government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care when it promulgates or maintains its criminal laws. If we wince at the thought that everybody who commits a minor offense will get caught and will be prosecuted if they do not seem to qualify for a privilege or defense, this is a sign that the conduct is a poor fit for criminal law, and legislators must consider alternatives (e.g., warnings, civil fines, or positive incentives for pro-social conduct) instead.¹⁹¹

Right now, constitutional case law does very little to constrain the creation of criminal laws. Outside criminal statutes that would intrude upon specific individual liberties recognized in the Bill of Rights, the courts hold legislatures to very low standards of care (the rational basis test).¹⁹² This latitude on substance has a curious relationship with the procedural restrictions imposed by the Fourth Amendment: as long as police have probable cause to believe that a person is violating or has violated a criminal law, police can make an arrest or initiate a search, no matter how trivial the offense. Thus, in Atwater v. Largo Vista, the Supreme Court found that the government acted within the bounds of the constitution when a police officer arrested a woman who was driving with two small children for the violation of a seatbelt law.¹⁹³

Even if the Court is reluctant to interfere with legislators’ management of criminal codes, common sense dictates that some crimes are much worse than others. The state’s attention should focus on conduct that causes serious harm to others. There is a reason, for example, that the states that have regulated familial DNA-matching programs have allowed their use only for serious offenses like murder and rape,¹⁹⁴ and Baltimore’s Aerial Investigation Research (“AIR”) system, before it was dismantled, was restricted to use in investigating a limited set of very serious crimes.¹⁹⁵ It is the same reason that the federal Wiretap Act permits courts to issue wiretap orders only when there is probable cause to investigate one of the explicitly listed serious criminal offenses.¹⁹⁶ The same impulse explains why there is scholarly criticism and public outrage when a surveillance system adopted for the purpose of detecting one set of serious criminal violations (like smuggling or terrorism) is simultaneously used to detect violations of drug laws.¹⁹⁷ The unstated assumption is that some crimes should be detected as well as possible (terrorism, for instance) and some should not.¹⁹⁸

The fact that state and federal criminal law has dramatically expanded in quantity and complexity is not in dispute.¹⁹⁹ And yet, curiously, responses to the problem tend to focus on procedural rather than substantive limits.²⁰⁰ The unchecked growth of substantive criminal law ironically creates a problem for public safety because the fear of prosecution prompts a demand for privacy and law enforcement obstruction.²⁰¹

The first and most obvious reason to place limits on criminal liability is to reduce the opportunity for unnecessary social control. The relationship between the government and the governed changes profoundly when a crime has been committed. The defendant in Atwater should have put a seatbelt on her children, and the government has an interest in encouraging, even requiring, that behavior. But not through criminal law.²⁰² A second reason to constrain the substance of criminal law is to increase compliance with the rules we care about most.²⁰³ Overstuffed criminal codes also bleed into the problems of law enforcement discretion (discussed at greater length below) because the government has too much power to decide which members in the nation of criminals to send to prison.

Consider two examples that illuminate the problem through opposite ideological lenses. First, abortion will be criminalized in many states in light of Dobbs v. Jackson Women’s Health Organization.²⁰⁴ Some states are considering criminal liability for women who seek out an abortion.²⁰⁵ For liberals and progressives, criminal liability for abortion-seekers represents an intolerable overreach of the state. To combat the substance of these laws, organizations such as the ACLU have already issued warnings about the risk that geofence searches could facilitate arrests and prosecutions of a law that a sizable portion of the state’s constituents believe is unjust.²⁰⁶

By contrast, conservatives might be concerned about overzealous enforcement of gun restrictions.²⁰⁷ Geolocation and credit card transaction data could be used to create a filtered dragnet that finds individuals without a gun license who cross state lines, attend a gun show, make a sizable purchase, and immediately return to their state.

In both cases, perceived flaws in the substance of the law would not be so troubling if the laws carried only modest punishments—warnings or fines, for example, rather than the incarceration and downstream labor and housing problems that inevitably follow conviction.²⁰⁸ But given the breadth and severity of criminal law, plus the mostly unchecked discretion that police departments have when deciding which among an ocean of technical criminal violations to investigate, the prospect of near-perfect detection takes on a more sinister character. Thus, when people have reservations about, for example, Alexa devices being used to detect the sounds of domestic violence, the reservations stem not from the specific use case but the general capabilities. They wonder, for good reason, what mischief can be made from such a technology when the set of conduct that is forbidden and harshly punished is sprawling and unevenly enforced.²⁰⁹

Criminal codes are often expanded when the state has not gotten a handle on crimes of violence and property theft. The criminalization of vice (alcohol and drugs) was supported by the community not necessarily out of concerns that the drugs themselves cause to users but because of the “unconscionable violence” that came along with trafficking and addiction.²¹⁰ In other words, substantive criminal law is expanded to compensate for deficiencies in the detection and prosecution of crimes that were already on the books so that police could arrest for lower level crimes and (stochastically) reduce the incidence of more serious crimes.²¹¹ If detection of the serious crimes were more functional, this should relieve the need for sprawling criminal codes.

Hence the dilemma: better crime detection could help stop the pattern of an upward ratchet, but as long as the criminal codes are already sprawling, there will be resistance to increasing detection.

2. Overly Harsh Punishment

On severity of punishment, the United States stands out among developed nations. We use incarceration intensively. In France and the U.K., a criminal who punches a person in the nose would be sentenced to less than six months in jail.²¹² The same conduct in the U.S. would result in a sentence of about three years.²¹³ Moreover, no outsider would mistake our prisons for institutions of rehabilitation: the entire sentence is usually carried out in a facility that is punishing, with drab quarters, humiliating toilet and bathroom facilities, and rancid food.²¹⁴ Once released, the negative consequences continue as the housing and labor markets penalize criminal convicts.²¹⁵ Long sentences also create risks of abuse by giving police officers and other state agents leverage to extract bribes, pleas, and false confessions.²¹⁶

The harshness of our sentences is the byproduct of a low detection rate. Communities that at various times have been disfigured from crime waves tend to demand more and harsher criminal penalties.²¹⁷ The intuitive appeal of using long prison sentences to make up for low detection rates became the explicit policy of federal and local governments following the landmark work of Gary Becker. Becker modeled crime with a simple formula determined by the probability of conviction and the severity of punishment.²¹⁸ Because it is much easier and cheaper for the state to ratchet up punishment than to catch more perpetrators, his work persuaded many politicians to manage crime through tough sentencing.²¹⁹

The sparseness of Becker’s model for crime rates leaves much to be desired for anybody looking for a comprehensive explanation for crime—crime, of course, has a range of social and economic causes²²⁰—but as Part II explained, there is little doubt that detection has a significant influence over the amount of crime in a given community.²²¹ Punishment, by contrast, seems to have a U-shaped relationship to recidivism, where no punishment and long, harsh punishment both tend to increase the odds that a perpetrator will recidivate.²²²

I do not want to overstate the case for reducing prison time. Roughly half of the inmates in prison are individuals with such consistent sociopathic and antisocial behaviors that for those inmates, long-term incapacitation has positive externalities. Not only does incapacitation prevent these particular individuals from committing additional crimes (specific deterrence), but their families and particularly children may benefit from having less, rather than more, exposure to them.²²³ Nevertheless, the social costs of harsh punishment do not seem to serve deterrence or otherwise be justified outside the context of heinous or repeated criminal activity.

Over-punishment and criminal detection are inextricably connected. We cannot expect to find a political will to reduce punishment unless the police have—and use—new means to detect and root out crime. Filtered dragnets can jolt and resettle the criminal justice system in a new equilibrium where detection, rather than harsh punishment, is the key mechanism for crime control.

3. Discretionary Application

Once the police have committed to investigating a particular crime, filtered dragnets take discretion away from the police to drive the investigation. But there are other points in time before and after a filtered dragnet may be used when government agents can exert control over the process:

i. Selective Protection

When it comes to serious crimes of violence and theft, American police forces have a troubling history of systematically ignoring the suffering of minority communities. Police once actively conspired to deprive former slaves of their right to protection by joining the murderous mobs.²²⁴ Over the subsequent century, police started to exhibit a more passive form of selection by simply not investigating and pursuing crimes committed against African-Americans as zealously as crimes committed against whites.²²⁵ This is a form of inequality that is not adequately addressed in constitutional caselaw.²²⁶ Thus, courts must prevent police from using filtered dragnets to solve crimes committed against one set of privileged crime victims while failing to use the same tools to solve comparable (and comparably detectable) crimes committed against others.

ii. Selective Crackdowns

Police also decide which crimes to target,²²⁷ and when and where to focus their resources.²²⁸ For example, police will decide which crime scene images should be subjected to facial recognition. There is no guarantee that they will pursue arrest and prosecution of violent or destructive participants at Black Lives Matter protests or at a pro-Trump rallies with the same vigor.

iii. Controlling the Data

Whether police use government-held data or data held by private companies to operate a filtered dragnet, they can exert some influence over the process if they are allowed to use a subset of available information to run through the filtered dragnet.²²⁹ For example, if the government were able to limit DNA-matching to the data collected from ex-convicts only, or if a geofence warrant could direct a service provider to look for matching records only among customers who live in a certain precinct, the police could do an end run around the discretion-reducing function of filtered dragnets.

iv. Downstream Decisions

After a suspect is identified by a filtered dragnet, police and prosecutors still have unchecked power to use leniency and to simply not pursue the leads that they do not like.²³⁰

The unifying theme across these decision-making practices is that the Supreme Court has avoided interfering with law enforcement discretion any time it has a plausible connection to judgment about the best use of resources. In Whren v. United States, the Supreme Court rejected a constitutional challenge by a criminal defendant who was pulled over for making an illegal U-turn. The defendant argued that the police would not have pulled over a white person, or any person about whom the police did not have a pre-existing “hunch,” under similar circumstances.²³¹ The court believed that the defendant’s theory of unequal enforcement of minor traffic infractions was irrelevant and unworkable.²³² At the time it probably was.²³³ But it is not anymore and will be even less so in the future. Today, a defendant bringing a case like Whren might have the data, thanks to GPS tracking of police and civilian cars, to demonstrate that police pull over only a small fraction of the illegal U-turns and other traffic infractions that they observe, and that the enforcement disproportionately targets minority drivers (if this is so).²³⁴

If police are able to use filtered surveillance to solve crimes at minimal expense, there will be even less need for discretion. So, if police have a filtered dragnet, courts must make sure they have an acceptable response to the question: “Why did you enforce the criminal law here and not there?”²³⁵

In summary, a government that has the capacity to detect criminal behavior at very high rates must come under heightened standards of care with respect to the promulgation of criminal laws, the use of incarceration and punishment, and the application of detection tools.

V. THE ANTI-AUTHORITARIAN FOURTH AMENDMENT

Anti-authoritarianism, rather than privacy, should be the benchmark for the Fourth Amendment when police develop cases using filtered dragnets. What makes facial recognition or a geofence or some other form of filtered dragnet “reasonable” is not that the privacy of the innocent is protected—they will all do that. Rather, an “unreasonable” use of these technologies means the state is misusing its power to punish and control.

The current trajectory of Fourth Amendment caselaw suggests that we are headed for one of two suboptimal endpoints: either the state will be able to use filtered dragnets with little to protect its citizens from the perils of broad criminal laws, harsh criminal sentences, and selective enforcement, or the state will effectively be prohibited from using filtered dragnets, leaving a criminal justice status quo that nobody would devise and few would defend.²³⁶ But if the courts start to take seriously the fundamental differences between filtered dragnets and other investigation techniques—if they recognize that technology can explode longstanding assumptions about the nature of risk when police increase the detection of crime—courts can harness the disruptive technology and help society land in a better equilibrium.

Thus, the Fourth Amendment must evolve to demand “reasonableness” when detection is easy. The thrust of my proposal is that the phrase “reasonable searches and seizures” should be understood as a more expansive and robust guarantee of reasonableness.²³⁷ Specifically, the requirement of “reasonable” seizures should guarantee that the consequences of a seizure (e.g., carceral arrest and a possible prison sentence) are fitting and proportionate to the gravity of the suspected crime. The requirement of “reasonable” searches should guarantee not only that the search is conducted based on probable cause and in line with established warrant requirements, but also that the decision to search or not search is reasonable and non-arbitrary. The former ensures that the criminal law being enforced is serious enough to justify the loss of rights that comes along with an arrest or a long sentence. The latter ensures that criminal detection tools are used in an even-handed manner.

A. Reasonable Seizing—Restricting the Substantive Criminal Law

The prospect of near-perfect detection requires more care in defining a reasonable seizure. In order for a carceral seizure of a person to be reasonable, state uses of force and coercion involved must be justified by the harm that the arrestee has imposed on society. “Freedom from unreasonable . . . seizures” should be interpreted to protect the interests of individuals who have engaged in conduct that is technically illegal but not morally reprehensible.²³⁸ Thomas Jefferson’s unfinished vision laid out in the Declaration of the Rights of Man and of the Citizen provides the blueprint. Article 4 states, “Liberty consists in the power to do anything that does not injure others”; Article 5 states, “The law has the right to forbid only such actions as are injurious to society”; and Article 8 states, “The law ought to establish only penalties that are strictly and obviously necessary.”²³⁹

A seizure should only be reasonable if the underlying criminal conduct and the resulting punishment are also reasonable. While substantive due process rights and the Eighth Amendment provide some absolute constitutional limits against unreasonable criminal codes or punishments, these rights must be bolstered in the face of near-perfect detection. An analysis of reasonable seizures in light of filtered dragnets has two aspects to it: (1) whether the behavior is sufficiently blameworthy to belong in the criminal code at all, and (2) if so, whether the punishment fits the risks and harms of the crime.

Is the conduct crime-worthy? The first inquiry asks whether the suspect’s conduct is bad enough to justify arrest and incarceration at all.²⁴⁰ This is a threshold issue. Criminal conviction needs to be blameworthy and stigmatizing. Defining what sort of conduct is “blameworthy” raises deep philosophical questions, but there is an aspect of the question that is empirical: it needs to be rare. If the conduct captured by the scope of the criminal codes is commonplace, the actor’s community evidently has not incorporated restraint deeply into its moral fabric.²⁴¹ In those cases, government intervention short of criminal liability (including expressive law, civil fines, or positive reinforcement for its opposite) should be used.²⁴²

This is at odds with cases like Atwater, where the court refused to second-guess a local government’s decision to criminalize a minor driving infraction,²⁴³ but Fourth Amendment case law does occasionally break rank with Atwater and peeks at the substance of the criminal violation in order to gauge the reasonableness of a procedure. For example, when analyzing whether a warrantless traffic checkpoint is constitutional as a reasonable warrantless seizure, the Supreme Court explicitly considers “the gravity of the public concerns served by the seizure” as one of the factors.²⁴⁴ And the Court has refused to allow exigent circumstances to excuse the failure to secure a warrant for a home search and arrest when the underlying crime is a minor offense.²⁴⁵ And Atwater is ahistorical: a quick tour of the notorious cases the Crown directed against colonists that inspired the Bill of Rights are offensive, in large part, because of the substance of the crimes. These included crimes such as writing or publishing “gross and scandalous reflections and invectives upon his majesty’s government” or the crimes of illegal trade and inadequate record-keeping.²⁴⁶

Is the punishment too harsh? If the suspect’s conduct is reprehensible enough to pass the initial threshold test, a post-conviction seizure could still be unreasonable if the quality and length of detention is disproportionately harsh.²⁴⁷ The sentences of many crimes, even violent crimes, could probably be reduced to weeks or days, or even converted to non-carceral forms of punishment (like public service or surveillance-enabled supervised release) without increasing crime rates if detection rates were much higher than they currently are. Long-term prison sentences can be reserved for murder, treason, severe sexual assault, severe child abuse, and for the incapacitation of repeat criminals.²⁴⁸ For other crimes, detection through filtered dragnets, rather than a small chance of very harsh punishment, can be the door jamb that stops the metaphorical revolving door of recidivism.

B. Reasonable Searching—Minimizing Discretion

A police department’s use of filtered dragnets will be fair if it avoids gaps in the protection from crime as well as gaps in leniency from enforcement.

1. Duty to Search

All cases of reported or otherwise known crimes that are equally suitable for filtered dragnets should be investigated.²⁴⁹ For example, if a police department can use filtered dragnets to detect gun violence or robberies, and it fails to investigate daytime violence and robberies taking place near low-income schools even though it investigates every daytime robbery or assault that takes place near high-income schools,²⁵⁰ the uneven use of filtered dragnets would render it an unreasonable search. As a practical matter, while it would make more sense for a constitutional challenge to come in the form of a § 1983 claim brought by a resident who is harmed by a detectable or deterrable crime, the challenge is more likely to emerge when a criminal defendant brings a claim similar to the claim brought in Whren (arguing that although they committed an offense, the crime is unequally enforced).²⁵¹ Courts should be open to a claim and evidentiary proof of this sort.

2. Duty to Cast a Large Dragnet

Law enforcement should not have undue control defining the search pool that will be used by a filtered dragnet. The database that will be used to cross-check against the facts of a crime should include everyone possible whose data is accessible and whose participation in the crime would not be an impossibility. This reduces the risk of arbitrariness or bias that could result if police search for potential leads and matches in one population while ignoring another.

By this standard, facial recognition systems like Clearview AI are more legitimate (in the sense of being less susceptible to bias or discretion, at least) when they match surveillance footage at a crime scene against the largest possible set of publicly available portraits on the open web. Contrast this with DNA filtered dragnets: it is increasingly common and popular to restrict local law enforcement who are running DNA searches to CODIS, the federally maintained database of arrestee or convict DNA samples.²⁵² Whatever rationale might justify subjecting convicts to greater likelihood of being caught in their own future crimes, the logic does not follow to arrestees or to individuals whose crimes are detected through familial DNA.²⁵³

The principle of evenhanded enforcement is consonant with what Bennett Capers meant when he argued that equitable policing may require “redistributing privacy.”²⁵⁴ But it may require courts to enforce subpoenas or issue warrants in order to pierce through corporate policies that resist law enforcement access.²⁵⁵ These policies are already in place at some companies.²⁵⁶ Of course, there may be times when law enforcement resources really are constrained so that investigating every trackable crime or casting the widest possible dragnet will not be possible, but the police should be able to offer some reasonable explanation. And an explanation that would not be reasonable is that too many individuals would be caught: if the availability of filtered dragnets forces law enforcement to confront the problem that there are too many criminal acts, the proper government response is to revisit and narrow or purge some of the substantive criminal laws.

C. Police Culture: The Era of the Nerdy Police Force

The adoption of filtered dragnets will require law enforcement agencies to become more technocratic. Much of the initial investigation work is likely to be centralized, in upper management working at desks, and their compliance with Fourth Amendment restrictions will require competence, if not expertise, in statistical methods and data auditing procedures. To some extent, this change in operations is already happening with the gradual introduction of DNA forensic labs, facial recognition, and now, reverse searches. With clear Fourth Amendment guidance for filtered dragnets, police forces could rapidly adopt filtered dragnets and divest somewhat from traditional techniques. Police operations would shift away from self-initiated patrols and field-based investigation toward data-driven initiation and investigation. This will change who is qualified for and attracted to a policing job. Police investigators who are used to solving cases through interrogations and informants will begin to feel like the baseball scouts who still visit high school and college teams looking for “good legs” while their younger, nerdier, and (eventually) better paid colleagues use Bill James-style statistics to prioritize the team’s recruiting efforts.²⁵⁷

This may prove to be a feature—a way to achieve the reform of police culture by working backwards from shared ends that are appealing to both suburban families and Black Lives Matter activists (lowering crime, reducing false convictions, and achieving even-handed enforcement). The cultural shift can provide counterpressure to a problem that currently plagues police recruitment—that the people most interested in working for law enforcement have stronger-than-average preferences for meting out punishment.²⁵⁸ All the more reason civil liberties organizations should reconsider their instinctive negative reactions to filtered dragnets.

The criminal defense bar may get transformed, too. Andrew Ferguson has made the case that law enforcement data-collection and data-mining practices can be inverted to discover negligent or abusive practices within police departments.²⁵⁹ Defendants can make use of “blue data” to prove their cases that, for example, law enforcement had used an unreasonably narrow dragnet.²⁶⁰ This may offend a police department’s sense of agency and self-determination, but this is a reasonable price to pay for the power and efficiency of filtered dragnets.²⁶¹

VI. ADDRESSING FRIENDLY OBJECTIONS

Some readers will no doubt disagree with my description of the looming opportunities and problems that will arise with filtered dragnets, and as a result will reject the policy solutions offered in Part V. I addressed doubts about the upsides of filtered surveillance or the downsides of near-perfect detection as best I can in those earlier Parts. Whatever disagreements about the policy implications remain will have to be aired in other fora. Here, I address some objections that will be raised even by readers who agree that the policies advanced in this Article are sound.

“Friendly” critics will wonder why it is necessary to constitutionalize these policies rather than advocating for a legislative response. The answer, in brief, is that constitutional protections are the only viable tools when several criminal justice rules must be changed at the same time.

Friendly critics may also wonder why the Fourth Amendment is the right vehicle for course correction even if all agree that constitutional law must be pressed into service. On this question, I am more neutral. If the Eighth Amendment and Due Process clauses can be interpreted to reach the same anti-authoritarian objectives, there is little reason to insist on the Fourth Amendment as the primary source of these rights. But since filtered dragnets will inevitably cause seismic activity in Fourth Amendment law, and since highly efficient searches are the reason that the threat of government tyranny will become more pronounced, it is at least fair to say that the Fourth Amendment could be the right constitutional source for the anti-authoritarian rights described in Part V.

A. Why the Courts? (Or, Why Not the Legislature?)

Not every problem in law enforcement needs to be solved through the constitution, but this one does. The political process is exceedingly unlikely to get us out of our criminal justice rut, where low detection rates are messily compensated through criminal liability for minor infractions. Political winds bob from too much lenity to authoritarian severity,²⁶² and as a result, surveillance restrictions and decriminalization usually rise and fall together depending on whether the mood is pro-rights or anti-crime. Political institutions do not have the tools to break surveillance and substantive criminal law apart and to work out a criminal justice horse trade. But a horse trade is what we need: we simultaneously need the police to detect more violent crime while also ensuring that no person who is caught with a $10 baggie of drugs could ever be in a position to go to prison for the rest of their life.²⁶³

This trade—reduced criminal liability in exchange for greater detection—can only be accomplished through constitutional adjustment. If criminal liability and punishment are reduced without a simultaneous increase in detection, crime rates will rise and the ballot box consequences for political actors will be harsh. If detection capacity is increased without any change to the criminal codes, the political actors’ constituents will be justifiably nervous about how the newfound power of detection will be used. But if the two reforms happen at the same time—if the state is constrained by constitutional interpretation from detaining or imprisoning individuals based on minor infractions, or from levying long sentences for anything other than the most serious and violent offenses—surveillance is defanged because the threat of unjust prosecution is reduced.²⁶⁴

Put another way, the political pressure to limit or ban surveillance tools might make sense as a second-best solution if decriminalization and reduced sentencing is politically infeasible, but the risk is that the strategy can lock out the first best solution—the low penalty/high detection solution. Indeed, in the wake of rising murder rates, the decriminalization and police reform movements are already more politically controversial than they were just a couple years ago. If crime rates continue to rise while detection is capped or suppressed through new legal constraints on technology, politically accountable decisionmakers will continue to use mass incarceration to manage crime.

To be fair, many luminaries in the field of criminal justice have seen roughly the same patterns of dysfunction and technological disruption that I have recounted and have recommended solutions in the form of legislation, administrative regulation, and restoring the role of local government. Bill Stuntz, for example, argued that many of the abuses of power in the criminal justice system would be avoided if local governments (rather than states) were the primary promulgators of criminal law and if juries (rather than prosecutors) were the decisionmakers who most often determined whether a defendant should be convicted or serve time.²⁶⁵ Chris Slobogin, Barry Friedman, Maria Ponomarenko, Catherine Crump, and Andrew Ferguson have argued that legislatures and regulatory agencies should be more active in structuring how (non-filtered) dragnet and surveillance technologies should and should not be used in the field.²⁶⁶ But they also acknowledge that politically accountable bodies always run the risk that their decisions will disproportionately benefit the politically powerful and will be relatively indifferent to problems of under-protection and prejudiced enforcement.²⁶⁷

Daphna Renan has argued, convincingly in my opinion, that political processes alone cannot be expected to produce the sort of basic rights and counter-majoritarian protections that the Constitution should guarantee.²⁶⁸ Our agreement ends there, though, because Renan advocates for a Fourth Amendment superstructure, or set of principles, that would set requirements and boundaries on administrative agencies (such as the Privacy and Civil Liberties Oversight Board) tasked with creating law enforcement surveillance programs.²⁶⁹ But no board, no matter how independent, could actually make the grand maneuver that I’m asking readers to consider here—where filtered dragnets are permitted, but in exchange for protection from bad laws, harsh punishment, and discretionary application. Renan’s proposal may be a good second-best solution, but a dramatic reorientation of constitutional priorities can only be done by the Supreme Court. It is time for constitutional renewal in search of a better equilibrium.²⁷⁰

B. Why the Fourth Amendment?

The harder question, and I confess this is where I am on shakier ground, is why the anti-authoritarian principles that I claim are so important during this inflection point are the responsibility of the Fourth Amendment to solve rather than other parts of the Bill of Rights or notions of substantive due process.²⁷¹ The case is somewhat easier for the principle that reasonable searching requires evenhandedness. At the founding, the Fourth and Fifth Amendments were meant to prevent the government from being able to rummage through a disfavored target’s things looking for evidence of a crime, so equal and non-arbitrary treatment was always a goal.²⁷²

The case for using the Fourth Amendment to put constraints on substantive criminal law and sentencing is a bit harder. After all, the Supreme Court has repeatedly authorized law enforcement agencies to execute stops, searches, and arrests, no matter how trivial the law-violating behavior may be to overall public safety.²⁷³ As early as Boyd v. United States, decided in 1886, the Court found that Fourth Amendment protections do not apply to those who have committed a public offense, and courts have declined to second-guess whether the public offense was valid in the course of a Fourth Amendment analysis.²⁷⁴ And one may reasonably think that if courts are going to invalidate an overly harsh prison sentence on constitutional grounds, as I argue they should under the guise of protecting against unreasonable seizures, they would have already imposed these limits under the Eighth Amendment’s cruel and unusual punishment clause.²⁷⁵

Perhaps it would make as much sense to make Eighth Amendment or Due Process protections more robust to ensure that criminal liability is not overbroad and sentences aren’t overlong.²⁷⁶ But a long view of the Fourth Amendment can support a shift from the protection of the property, privacy, and autonomy of non-offenders to the protection of those same interests of those who are innocent in the more platonic sense.

In many ways, the history of Fourth Amendment caselaw shows a faltering and incoherent attempt to get to the main point: to make sure the state does not have too much power to enforce silly crimes and scare its constituents into submission.²⁷⁷ Silly crimes have been at the center of the original construction of the Fourth Amendment and each of its major reforms. Shortly after the American Revolution, sedition laws motivated creative lawyers like Alexander Hamilton to use procedure in order to correct flaws in the substantive criminal law that were not, at that time, adequately constrained by the First Amendment.²⁷⁸ In the context of that time, when states had nearly full rein to search for physical evidence and when prosecutions were proved primarily using witnesses, the thought that constitutional protections could get in the way of convicting rapists and murderers would have been preposterous.²⁷⁹ After all, the founders did not expect the Fourth Amendment to constrain how local law enforcement investigated crimes, and group searches executed without particularized warrants were tolerated.²⁸⁰ Thus, at that time, the buildup of procedure to help protect against crimes of belief and thought had little cost to the control of more conventional crimes.

Courts again increased Fourth Amendment procedural protections during two subsequent periods when the substance of criminal law was directed at questionable, arguably victimless vice crimes like gambling, alcohol (during prohibition), obscenity, and recreational drugs.²⁸¹ In the twentieth century, new information technologies changed the nature of police investigation by enabling wiretapping and forms of long-term tracking of suspects without reliance on trespass or witness cooperation. The standard story is that these technologies unsettled the balance between conflicting societal goals related to police investigations, which is true enough. But another important factor is that the test cases involved the detection and enforcement of gambling, bootlegging, and drug distribution crimes. Katz v. United States, the Fourth Amendment case that developed the reasonable expectations of privacy test, involved bugging a phone a bookmaker was using.²⁸² And it followed the logic of Justice Brandeis’s dissent in an earlier case, Olmstead v. United States,²⁸³ which involved the wiretapping of a bootlegger.²⁸⁴ Katz marked the end of a primarily property-based conception of Fourth Amendment rights and ushered in the privacy phase. When test facts making their way to the Supreme Court involved more serious crimes, like stalking, the Supreme Court avoided finding a privacy violation.²⁸⁵

To be clear, there are other reasons, separate from the substance of the criminal law being enforced, that justify a focus on privacy. Twentieth century surveillance capabilities certainly left Americans—criminals and the innocent alike—at greater risk of unwanted observation of licit activities. But there is also a clear pattern: courts have used criminal procedure to frustrate the enforcement of controversial criminal statutes that cover activities in which a sizable proportion of Americans willingly participate.²⁸⁶ Once privacy posed a significant obstacle to police investigations, procedural rights became the default defense against a tyrannical state. There was less pressing need to press the Constitution into service to challenge whether conduct should even be considered criminal in the first place or whether the police are protecting communities fairly. For better or worse, the Fourth Amendment privacy rule created a tractor beam for public defenders and civil liberties organizations to concentrate their anti-authoritarian efforts.

Scholars have occasionally attempted to refocus the Fourth Amendment on a more general purpose to create a constraint on power.²⁸⁷ Bill Stuntz faulted Fourth Amendment’s turn to privacy because it “tend[ed] to obscure more serious harms that attend police misconduct.”²⁸⁸ More recently, Thomas Crocker has argued that the Fourth Amendment should be understood as a substantive right, not just a procedural one, that follows in the vision of the First, Second, and Ninth Amendments.²⁸⁹ But ultimately, Crocker advocates for the use of this substantive right to argue for a more thorough protection against surveillance.²⁹⁰ Naturally, I think this misses the point. A citizen whose government makes nearly all conduct and action illegal will never feel secure no matter how many restrictions on surveillance are in place. And conversely, a government that is rigidly constrained from expanding its criminal laws beyond the conduct that is nearly universally reviled will be limited in its ability to threaten a citizen’s sense of liberty no matter how much surveillance is in place.

The happenstance of technology provides another reason to prefer the Fourth Amendment over other constitutional sources to redress the problems of overcriminalization and uneven protection. The privacy of the innocent was mediating the clash between American values in freedom and security. Increasing use of filtered dragnets will make this arrangement untenable. If we expect the role of the Fourth Amendment to be meaningful—to be something other than a brief paperwork requirement in the process of securing warrants for filtered dragnets—it is both necessary and appropriate that Fourth Amendment caselaw starts to look for its root function and embrace its substantive as well as procedural dimensions.

CONCLUSION

In 1967, Alan Westin, a leading light among privacy scholars, said that “the modern totalitarian state relies on secrecy for the regime, but high surveillance and disclosure for all other groups.”²⁹¹ This is probably a true statement, but highly incomplete. Surveillance is a necessary condition for authoritarian control, but not sufficient on its own. Indeed, all modern states need surveillance. Modern systems of taxation, public benefits distribution, medical services, and public health could not function without copious amounts of personal data. Thus, surveillance is necessary for all states, not just despotic ones. Moreover, surveillance is no more unique to totalitarianism than are weapons, prisons, and other tools the state must use to carry out the most basic obligations to support social order and security.

The tools that live exclusively in the toolbox of despots are repressive substantive criminal laws, harsh punishment, and discretion to choose when to enforce the law. Even in George Orwell’s dark depiction Nineteen Eighty-Four, Big Brother was oppressive partly because of the substance of the law: the wrong thought could land a person in jail.²⁹²

Against this threat of uncontrolled surveillance, many privacy scholars recommend the dismantling of the surveillance apparatus. This Article focused instead on the “uncontrolled” quality of uncontrolled surveillance. Filtered dragnets are a highly controlled dragnet that reveal only criminal violations. Thus, they are only as threatening to society as the criminal statutes that they enforce and the discretion of the government agents who use them. With the right alignment of Fourth Amendment rules to authoritarian threats, the state can be made to heel—to detect crimes fairly without burdening any communities with under-protection or over-punishment. This will require some intrusion of the traditionally procedural domain of the Fourth Amendment into the substantive realm of criminal law and punishment. If the state can suddenly detect every violation, prison must be reserved for truly awful behavior, and law enforcement should have less latitude to seek out or avoid the investigations of members of certain groups.

These are radical proposals. They go well beyond the privacy framework that has dominated Fourth Amendment theory for over half a century. But they respond to a radical tool that will shock a criminal justice system that is already in crisis and deserves rescue.

97 S. Cal. L. Rev. 571

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Jane R. Bambauer*

* University of Arizona James E. Rogers College of Law. The author is grateful for the advice and invaluable feedback from Jordan Blair Woods, Tracey Maclin, Farhang Heydari, Toni Massaro, Tammi Walker, John Villasenor, Andrew Woods, Lilla Montagnani, Kiel Brennan-Marquez, Jeffrey Fagan, Christopher Slobogin, Derek Bambauer, Mark Verstraete, Xiaoqian Hu, Andrew Coan, Niva Elkin-Koren, Uri Hcohen, and Tal Zarsky.

Familial Searches, the Fourth Amendment, and Genomic Control

July 2023February 2024Jacob S. Sherkow, Natalie Ram & Carl A. Gunter

In recent years, police have increasingly made use of consumer genomic databases to solve a variety of crimes, from long-cold serial killings to assaults. They do so frequently without judicial oversight per the Fourth Amendment’s warrant requirement by using consumer genomic platforms, which store hundreds of thousands or millions of user genomic profiles and enable law enforcement to infer the identity of distant genomic relatives who may be criminal suspects. This Essay puts this practice into context given recent legal and technological developments. As for the law, the Supreme Court in United States v. Carpenter has suggested that technologically driven and expansive datasets may be entitled to the full suite of Fourth Amendment protections. As for technology, we describe here the development of a novel technology that allows users to engage in genomic analysis in a secured environment without making such information available to a third party. Taken together, we present a possible technological solution to ensuring Fourth Amendment protections for direct-to-consumer genomic data.

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Get a Warrant: A Bright-Line Rule for Digital Searches Under the Private-Search Doctrine – Note by Dylan Bonfigli

January 2017February 2018Colleen Bazak

From Volume 90, Number 2 (January 2017)
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A girlfriend hacks her boyfriend’s computer and discovers evidence of tax evasion. She contacts a local law enforcement officer who arrives at her house and looks at the files she found. Without a warrant, the officer opens other files in the same folder the girlfriend had searched. The officer notices another folder labeled “xxx.” He opens the folder and discovers child pornography. The officer seizes the computer based on what he found. The boyfriend is indicted for possession of child pornography and tax evasion. Before trial, the boyfriend moves to suppress all evidence obtained pursuant to the officer’s warrantless search of the computer. What evidence should the judge suppress?

The answer turns on the Fourth Amendment’s private-search exception. Under this exception, a government agent may recreate a search conducted by a private individual so long as the agent does not “exceed the scope” of the prior private search. The question under the existing framework is: at what point did the officer exceed the scope of the prior search—if at all? Was it when he viewed files the girlfriend had not viewed, when he opened files in a different folder, or did he stay within the scope of the girlfriend’s search by only searching the computer’s hard drive? This is what I will refer to as the denominator problem, which asks what courts should use as the unit of analysis to measure the scope of a digital search.

There are at least four competing approaches to the denominator problem, discussed in Part II, and the Supreme Court has provided little guidance on how the private-search doctrine applies to digital searches, resulting in a circuit split. Until this issue is resolved, law enforcement has little guidance on when to obtain a warrant following a private search and can unknowingly subject individuals to unreasonable invasions of privacy, which may result in suppression of relevant evidence. One recent example is United States v. Lichtenberger.

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INTRODUCTION

I. PROTESTER INJURIES AND GOVERNMENTAL IMMUNITIES

A. Protesters’ Rights and Remedies

B. Section 1983 and “Qualified Immunity”

C. Municipal Liability

D. First Amendment “Retaliation” Claims

E. Damages Claims Against Federal Officials

II. STUDY DESIGN AND DATASETS

III. DATA AND FINDINGS

A. Section 1983 and Qualified Immunity

1. Qualified Immunity Dataset: Overview

2. First Amendment Claims

i. Types of Claims

ii. Claims Disposition Data

iii. First Amendment Law and Protesters’ Rights

3. Fourth Amendment Claims

i. Types of Claims

ii. Claims Disposition Data

iii. Fourth Amendment Law and Protesters’ Rights

B. Municipal Liability – Monell Claims

C. First Amendment Retaliation Claims

D. Claims Against Federal Officials

IV. STRENGTHENING PROTESTER RIGHTS AND REMEDIES

CONCLUSION

97 S. Cal. L. Rev. 1583

INTRODUCTION

I. WHAT ARE FILTERED DRAGNETS?

A. Required Elements to Qualify as a Filtered Dragnet

1. Automated Matching of Uniquely Criminal Details

2. Nondisclosure of Irrelevant Details

A. Examples

1. DNA Matching

2. Facial Recognition

3. Automated CSAM Detection

4. Geofences and Other Reverse Searches

5. Scanners, Sensors, Cameras, and Microphones

II. THE ADVANTAGES OF FILTERED DRAGNETS

A. Decreased Exposure of Innocent and Irrelevant Details

B. Increased Accuracy

C. Increased Detection and Deterrence

D. Decreased Discretion for Suspect Selection

E. Decreased Risk to Victims, Witnesses, and Suspects

III. FILTERED DRAGNETS AND PRIVACY

A. Judicial Reactions to Filtered Dragnets

B. Scholarly Reactions to Filtered Dragnets

C. The Pointlessness of Fourth Amendment Privacy

1. Theoretical Dimensions of Fourth Amendment Privacy

i. Freedom from Embarrassing Revelations, Social Dislocation, and Harassment

ii. Freedom from Manipulation

iii. Freedom from Indignity

iv. Freedom from Anxiety

2. Routine Compliance with Reasonable Expectations of Privacy

3. The Irrelevance of the Warrant Requirement

IV. FILTERED DRAGNETS AND TYRANNY

A. Privacy as a Stalking Horse for Anti-Authoritarianism

1. Unnecessary Social Control

2. Selective Attention

B. Filtered Dragnets and the Risks of Tyranny

1. Overbreadth of Criminal Law

2. Overly Harsh Punishment

3. Discretionary Application

i. Selective Protection

iii. Controlling the Data

V. THE ANTI-AUTHORITARIAN FOURTH AMENDMENT

A. Reasonable Seizing—Restricting the Substantive Criminal Law

B. Reasonable Searching—Minimizing Discretion

1. Duty to Search

2. Duty to Cast a Large Dragnet

C. Police Culture: The Era of the Nerdy Police Force

VI. ADDRESSING FRIENDLY OBJECTIONS

A. Why the Courts? (Or, Why Not the Legislature?)

B. Why the Fourth Amendment?

CONCLUSION

97 S. Cal. L. Rev. 571

From Volume 90, Number 2 (January 2017) DOWNLOAD PDF

From Volume 90, Number 2 (January 2017)
DOWNLOAD PDF