DISABILITY’S FOURTH AMENDMENT

Jamelia Morgan*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

7 Scopus citations

Abstract

Issues relating to disability are undertheorized in the Supreme Court’s Fourth Amendment jurisprudence. Across the lower courts, although disability features prominently in excessive force cases, typically involving individuals with psychiatric disabilities, it features less prominently in other areas of Fourth Amendment doctrine. Similarly, scholars have yet to substantively address how the Fourth Amendment’s vast scope of police discretion renders individuals with disabilities vulnerable to policing and police violence. Although scholarship has engaged robustly with theories of criminalization and social control in critiques of Fourth Amendment doctrine that address race and racism, thus far, its engage-ment with disability and its intersections with other current and historically marginalized subordinated identities is limited. This Essay centers disability as a lens for analysis in Fourth Amendment jurisprudence. This Essay discusses the ways in which disability mediates interactions with law enforcement and how Fourth Amendment doctrine renders disabled people vulnerable to police intru-sions and police violence. More specifically, this Essay critiques the Terry doctrine, consensual encounters, consent searches, and the objective rea-sonableness standard under Graham v. Connor. Applying a disability and critical race lens to each of these doctrines, taken together, demonstrates how Fourth Amendment doctrine both fails to adequately protect the constitutional rights of disabled people and reinforces a “normative bodymind” by rendering vulnerable to police surveillance, suspicion, searches, and force those persons whose physical and psychological condi-tions, abilities, appearances, behaviors, and responses do not conform to the dominant norm. By focusing on how Fourth Amendment doctrine both erases disability and fails to adequately protect disabled people’s pri-vacy and security interests, this Essay suggests how the doctrine itself renders disabled people more vulnerable to policing and police violence.

Original languageEnglish (US)
Pages (from-to)489-580
Number of pages92
JournalColumbia Law Review
Volume122
Issue number2
StatePublished - 2022

ASJC Scopus subject areas

  • Law

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