This submission is most egregious with regard to the Fourth, Fifth, and Sixth Amendments—the parts of the Constitution that govern the basic rules by which law-enforcement officers must operate.
Start with the Fourth Amendment’s prohibition of “unreasonable” use of force by police officers. The Supreme Court has narrowed the scope of this protection by determining that claims of excessive force must be evaluated “from the perspective of a reasonable officer on the scene” (emphasis my own). The Court has also said that the use of force may not have been unreasonable “even if it may later seem unnecessary in the peace of a judge’s chambers.”
Eric Schnurer: Congress is going to have to repeal qualified immunity
Rather than setting clear boundaries within which law-enforcement officers must act, the Supreme Court has thus decided that the protective scope of the Fourth Amendment depends on what law-enforcement officers themselves find reasonable, and that lower courts should not trust their own judgment to determine whether use of force is excessive. It’s as though the Court has taken Chief Justice John Roberts’s famous quip that it’s the judiciary’s job to call “balls and strikes,” and granted the pitchers a strike zone twice as large as normal without so much as asking why.
Perhaps, then, it’s little surprise that so many police officers have become so callous and indifferent to use of force that they feel comfortable brutalizing protesters and journalists live on camera. Not to mention the nearly 1,000 police killings every year—the highest rate and total in the developed world by an order of magnitude; the constitutional landscape developed by the courts has largely permitted this kind of violence whenever police officers can offer even the thinnest justification.
The Court has extended similarly extreme deference to law-enforcement officers in other Fourth Amendment contexts. For example, the Court has consistently held that as long as a police officer has “probable cause” to believe that a person has violated any one of the thousands of criminal offenses that govern Americans’ lives, the officer’s motivations are immaterial to the constitutionality of the stop. In doing so, the Court declared ongoing, incessant police harassment, no matter how extreme, of communities of color for loitering, failing to use turn signals, “drifting” across lane markings on the highway, using vehicle air fresheners, and other extremely minor offenses to be “reasonable” under the Fourth Amendment. The Court has also determined that the Constitution permits police officers a nearly unlimited arrest power, because they may arrest and jail a person for committing any misdemeanor offense, even if it is punishable only by a fine.
The Sixth Amendment is what guarantees the right to defense counsel in all criminal prosecutions, and it too has been all but eviscerated by the Supreme Court. Courts have limited the right to counsel for defendants who may face years in prison for parole or probation violations. The Supreme Court has determined that some of these defendants, the incarceration of whom is a major driver of prison-population growth, have no right to counsel because it would impose “direct costs” and “collateral disadvantages” on the carceral system.