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Policing, Masculinities, and Judicial Acknowledgment

Posted by on Thursday, April 21, 2022 in Notes, Volume 75, Volume 75, Number 3.

Nicholas J. Prendergast | 75 Vand. L. Rev. 997 (2022) |

In the 1980s, the Supreme Court held that courts must consider the “totality of the circumstances” when deciding the reasonableness of a police officer’s conduct in an excessive force suit. To this day, the precise meaning of “reasonableness” remains elusive. For years, courts around the country have struggled to articulate what police conduct should and—equally as saliently— should not be considered during reasonableness determinations. Thus far, the Supreme Court has been unwilling to substantively clarify its reasonableness doctrine. This lack of clarity has led to an untenable patchwork of differing legal frameworks throughout the United States.

This issue exists in a cultural milieu of exacerbated police tensions and intersects issues of race, class, and gender. This Note focuses on the latter, centering the discussion on how gender increases the potential for police violence. In doing so, it considers how the Supreme Court’s Fourth Amendment jurisprudence has historically turned a blind eye to some of the predominant social forces that shape police culture in America, thereby insulating dangerous forms of police conduct from judicial scrutiny. This Note attempts to wed policy considerations with legal reasoning and argues that the Supreme Court should broaden its reasonableness inquiry for two key reasons: first, to resolve the current circuit split, and second, to acknowledge—and dismantle—the problematic policing culture that its own jurisprudence helped shape.

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Nicholas J. Prendergast