By Cameron Bray

On April 20, 2022, attorneys and Justices of the United States Supreme Court sparred over whether Miranda warnings[1] are a constitutional right or a “judicially crafted prophylactic rule,”[2] as lawyer Roman Martinez argued in open court.  In the case of Vega v. Tekoh, the Court granted certiorari[3] of “whether a plaintiff may state a claim for relief against a law enforcement officer under Section 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda.”[4]The case centers around the Fifth Amendment right against self-incrimination[5] and the Civil Rights Act of 1871, 42 U.S.C. § 1983, which grants a damages remedy for violations of constitutional and statutory civil rights.[6]  At issue is the precedent case Dickerson v. United States,[7] which upheld Miranda in spite of Congress[8] in 2000 but described the doctrine as “constitutionally based”[9] and having “constitutional underpinnings”[10] rather than as a true-born, fundamental constitutional right, like the right to remain silent at trial.[11]

The facts of Vega v. Tekoh are in controversy, but the New York Times reports that respondent, Terence B. Tekoh, is “a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI.”[12]  On the flip side, petitioner, Carlos Vega, is a sheriff’s deputy in Los Angeles County who interrogated Mr. Tekoh in connection with a “credible report of sexual assault.”[13]  Accounts differ as to the nature of the interrogation—whether it was coercive or not[14]—but by all accounts, Deputy Vega did not Mirandize Mr. Tekoh prior to questioning, Mr. Tekoh signed a confession, a California trial court admitted the statement in evidence, and a jury acquitted Mr. Tekoh on the merits.[15]

The federal district court, in ruling on Mr. Tekoh’s § 1983 suit against Los Angeles County, held that the use of an un-Mirandized statement was insufficient to show a violation of his right against self-incrimination.[16]  However, the Court of Appeals for the Ninth Circuit, in a published opinion, reversed and held that a plaintiff may state a claim against the State under § 1983 where “the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding.”[17]  In so ruling, Judge Wardlaw on behalf of the panel vacated the court’s judgment and remanded for a new trial with orders to include Mr. Tekoh’s instruction on un-Mirandized confessions.[18]  The court of appeals then denied en banc review, with seven judges dissenting.[19]

Based on oral argument in Vega v. Tekoh, it remains to be seen whether the Supreme Court will rule Miranda a constitutional “right” or mere prophylactic rule under the Fifth Amendment.[20]  Either way, with police interrogations and misconduct increasingly under scrutiny, the decision will have a major impact on § 1983 lawsuits moving forward beyond the current Term.[21]  A rule in favor of Mr. Tekoh could create a world in which an un-Mirandized statement in evidence gives rise to liability not just in a few federal circuits, but in all courts across the United States.[22]

[1] In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Warren, C.J.), the Court held that “[p]rior to any questioning, the [arrestee] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  This American policing practice, as seen on shows like Cops and Law & Order, has come to be known as a “Miranda warning” or “Mirandizing” the suspect.

[2] Jordan S. Rubin, Miranda Warnings Probed by Supreme Court in Police-Suit Case, Bloomberg L. (Apr. 20, 2022),

[3] Vega v. Tekoh, 142 S. Ct. 858 (2022) (reviewing judgment of the Court of Appeals for the Ninth Circuit).

[4] Petition for Writ of Certiorari, Vega, 142 S. Ct. 858 (No. 21-499), 2021 WL 4553767.

[5] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added).  The relevant provision for Miranda warnings is called the Self-Incrimination Clause of the Fifth Amendment.

[6] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .” 42 U.S.C. § 1983.  Section 1983 is the go-to cause of action for civil rights plaintiffs against state actors such as police officers and sheriff’s departments.

[7] 530 U.S. 428 (2000).

[8] In the wake of Miranda, two years later, Congress enacted 18 U.S.C. § 3501 (1968), which made the admissibility of a custodial statement, or “confession,” turn solely on whether it was voluntarily given by the suspect.  This went against Miranda’s holding that an arrestee must be warned prior to questioning of his Fifth Amendment rights.

[9] Id. at 441 (Rehnquist, C.J.).

[10] Id. at 440 n.5.

[11] During oral argument, Justice Barrett observed that Dickerson “didn’t ever use the word ‘constitutional’ right.”  See Rubin, supra note 2.  The defendant’s right to silence as a constitutional matter was established by Griffin v. California, 380 U.S. 609 (1965), which held that neither the trial court nor the prosecutor may comment on the defendant’s failure to testify before a jury.  Id. at 615.  Chief Justice Rehnquist’s view of Miranda as a constitutional “rule” (not a “right”) was later endorsed by a plurality in Chavez v. Martinez. 538 U.S. 760, 763 (2003), which ruled against respondent because of qualified immunity.  Chavez, to be clear, is non-binding, and the federal circuits are split in whether they regard Miranda warnings as a constitutional right for purposes of § 1983 liability.  See Petition for Writ of Certiorari, supra note 4, at *2.

[12] Adam Liptak, Supreme Court Debates Whether Miranda Warnings Are a Constitutional Right, N.Y. Times (Apr. 20, 2022),

[13] Petition for Writ of Certiorari, supra note 4, at *4.

[14] According to Deputy Vega, “Tekoh quickly confessed to the assault, and later stood trial, where his confession was admitted into evidence.  A jury nevertheless acquitted Tekoh.” Id. at *4–5.  By contrast, Mr. Tekoh claims that: “Petitioner Vega investigated this allegation at the hospital.  He interrogated Respondent in a small windowless, soundproof room . . . [A]fter about an hour in the room with the door shut, Respondent wrote a vague, apologetic confession . . . While Petitioner insists that the statements Respondent gave were voluntary and immediate, Respondent testified to an interrogation replete with profanities and threats to have Respondent and his family deported, and refusing to allow Respondent to speak to a lawyer or one of his supervisors.”  Brief in Opposition, Vega v. Tekoh, 142 S. Ct. 858 (2022) (No. 21-499), 2021 WL 5864537, at *3.

[15] David G. Savage, Los Angeles Police Dispute at Center of Supreme Court Case on Miranda Warnings, L.A. Times (Apr. 20, 2022),

[16] See Tekoh v. Cty. of Los Angeles, 985 F.3d 713, 717 (9th Cir. 2021) (noting that the District of Central California failed to instruct the jury “that it should find in [plaintiff’s] favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him.”).

[17] Id. at 715.

[18] Id. at 726.

[19] 997 F.3d 1260 (9th Cir. 2021).

[20] Chief Justice Roberts, who once clerked for the Dickerson Court, noted that, “[former Chief Justice Rehnquist] was somebody careful with his words, he didn’t say Miranda is in the Constitution.  He talked about constitutional underpinnings, constitutional basis.”  Rubin, supra note 2.  However, he also asked petitioner’s attorney, Mr. Martinez, “So why isn’t that right one secured by the Constitution?”  Id.  By contrast, Justice Kagan said that Dickerson “understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution” and that undermining Miranda could hurt the Court’s legitimacy.  Id.

[21] LastWeekTonight, Police Interrogations: Last Week Tonight with John Oliver (HBO), YouTube (Apr. 18. 2022),

[22] In dissent, the late Justice Scalia dared the Dickerson Court to take the opinion “out of the realm of power-judging and into the mainstream of legal reasoning” by simply declaring that Miranda was in fact a federal constitutional right recognized by the Supreme Court.  Dickerson, 530 U.S. at 445–46 (Scalia, J., dissenting).


12 Wake Forest L. Rev. Online 24

Jeffrey Steven McConnell Warren, Esq.*

In North Carolina, a law enforcement officer’s career can be over with the stroke of a prosecutor’s pen.  Cloaked in prosecutorial immunity, district attorneys enjoy a little-known power to decide that a law enforcement officer’s character for truthfulness is materially impaired and that he or she will not be called as a witness in any future criminal proceeding in the state.  While the decision of whether to call an officer as a witness during a particular criminal prosecution is subject to the discretion of the prosecuting attorney, district attorneys often publish their decisions concerning an officer’s inability to testify at any future proceedings in a letter, known as a “Giglio letter,” to an officer’s employer.  Once a district attorney writes a Giglio letter about a particular officer, that officer is functionally unable to make arrests, handle evidence, or interview suspects.  As a result, law enforcement officers who receive Giglio letters are almost always terminated and forced to find new careers.  Even if a prosecutor’s determination is based on mistaken information or is the product of retaliation, there is no mechanism by which a law enforcement officer in North Carolina can present evidence in his or her defense, challenge a district attorney’s decision, or appeal a Giglio determination.

On September 2, 2021, North Carolina enacted a law (the “Giglio Bill”) that directs the North Carolina Criminal Justice Standards Division of the Department of Justice to obtain the identity of every officer in the state subject to a “Giglio impairment” and republish his or her Giglio status to any law enforcement agency who hires them.  Despite North Carolina’s strong tradition of robustly protecting the rights of its citizens to earn a living in their chosen profession, the Giglio Bill does not create any safeguards to ensure that Giglio determinations are accurately made in good faith after a complete review of all available evidence and fails to create any avenue for officers to appeal adverse Giglio determinations.  This Article explores the unique harm presented by a Giglio letter to law enforcement officers, the urgent need for due process, and ultimately argues that the Giglio Bill runs afoul of the North Carolina Constitution.


In 1972, John Giglio appealed his conviction for forging money orders to the Supreme Court of the United States on the basis of newly discovered “evidence.”[1]  His theory was novel: the government failed to disclose a promise made to its key witness that the witness would not be prosecuted if he testified for the government against Mr. Giglio.[2]  In Brady v. Maryland,[3] the Supreme Court had already determined that the state must disclose “exculpatory evidence” to criminal defendants.  Although not “evidence” in the traditional sense, Mr. Giglio asserted that the undisclosed promise of immunity was of such importance to the key witness’s credibility, and therefore to Mr. Giglio’s defense, that the government’s failure to disclose it violated Mr. Giglio’s constitutional right to due process of law.[4]

The Supreme Court agreed.[5]  In Giglio v. United States,[6] the Court held that prosecutors have a constitutional obligation to turn over evidence that can be used to impeach the credibility of a state’s witness “[w]hen the ‘reliability of [the] witness may well be determinative of guilt or innocence.”[7]  The prosecution does not, however, have to disclose its “entire file” to defense counsel to meet these obligations.[8]  Rather, information is constitutionally discoverable only if it is (1) favorable to the defendant because it is either exculpatory or impeaching, (2) known to a member of the prosecution team, (3) not otherwise publicly available, and (4) the information is “material,” which in turn depends on whether there is a “reasonable probability” that disclosure to the defense would yield a different result in the proceeding (the “Giglio Doctrine”).[9]  Examples of such “material evidence” include evidence showing bias, interest, perjury, prior inconsistent statements, and other willful acts of dishonesty that are admissible to impeach testimony within the meaning of a state’s rules of evidence.[10]

In light of Giglio, many prosecutors understandably decline to call witnesses who have impeachable testimony.[11]  A prosecutor’s decision not to call an officer to testify at trial due to the requirement of disclosure regarding an officer’s character is often referred to as the “Giglio impairment” of the officer.[12]  But prosecutors have transformed the Giglio decision—intended to be a shield for criminal defendants—into a sword, making prosecutors the ultimate arbiters of who can, or cannot, serve as a law enforcement officer in a particular state.[13]

Over the last five decades, district attorneys across the country have read into the Giglio Doctrine a nonexistent obligation to publish sweepingly broad letters summarizing the reasoning behind Giglio impairment decisions, known as “Giglio letters,” to officers’ employers.[14]  Even though prosecutors only have a constitutional obligation to disclose impeachment material under Giglio when the reliability of a witness “may well be determinative of guilt or innocence,”[15] Giglio letters are almost always preemptive in nature, meaning they are sent in the absence of a pending trial.[16]  These preemptive Giglio letters inform an officer’s employer of the state’s refusal to call an officer as a witness at any future hypothetical trial, regardless of what the officer’s role or testimony may be.[17]  These “preemptive” Giglio determinations frequently lack legal and factual justifications as it is impossible for a prosecutor to determine whether he or she will have disclosure obligations in reference to a particular officer without knowing the context of their future testimony.[18]

Although law enforcement agencies have an interest in knowing whether their employees can be called as witnesses, Giglio letters are colloquially referred to as “death letters” or “scarlet letters” by prosecutors and law enforcement officers because they are career killers.[19]  Being “Giglioed” is an official finding that an officer is too untrustworthy to testify.[20] When a district attorney decides not to utilize an officer as a witness for any future criminal trial, the officer is functionally unable to make arrests or be involved in handling evidence.[21]  Rendering them unable to perform basic duties, Giglio letters almost always result in the termination of officers or removal of their police powers.[22]  As such, even though they lack the authority to directly control the hiring and firing of law enforcement officers, prosecutors have utilized the Giglio Doctrine to become de facto personnel managers for law enforcement agencies across the country.

Prosecutors have been known to maintain lists of officers they deem to be subject to Giglio impairment.[23]  In light of the repeated killing of unarmed Black men and women across the United States by law enforcement officers,[24] the public has developed a keen interest in these so-called “Giglio” or “Brady[25] lists.[26]  Prosecutors generally keep these lists secret, but they often face withering criticism for doing so.[27]  In response to public outcry, some prosecutors are publishing the identities of officers who they have deemed to be too untrustworthy to testify.[28]  The public release of this information only raises the stakes for law enforcement officers, whose reputations can be permanently damaged by public accusations of dishonesty.[29]

In the last decade, pages of ink have been spilled explaining the failure of law enforcement officials, including prosecutors, to discover, report, and disclose “Giglio material” to criminal defendants, as well as the pitfalls and shortcomings of the Giglio Doctrine itself.[30]  Almost nothing has been written, however, about the application of the Giglio Doctrine to law enforcement officers and the problems presented when officers are not afforded an opportunity to be heard.  To that end, the purpose of this Article is to explain the grave problems presented by Giglio to law enforcement personnel, the roadblocks faced by officers in holding prosecutors accountable for abuse of Giglio, and the amplified harm presented to law enforcement officers by North Carolina’s Giglio Bill.

I. A Perpetrator Claiming Immunity

Considering the career-ending harm presented by Giglio letters, one might expect strong substantive and procedural safeguards to protect against “mistakenly or unfairly” subjecting an officer to an adverse Giglio determination.[31]  But this is not the case.  There is no process in North Carolina, or most other states, through which officers can present evidence in their defense, explain their actions, cross examine their accusers, or otherwise contest or appeal a Giglio impairment.[32]  There is no requirement that officers even be provided notice before a Giglio determination is made.[33]  Occasionally, officers are completely blindsided when, without warning, they receive a Giglio letter indicating they will never be called again to testify on behalf of the state.[34]  If a Giglio letter is false, unfair, made in bad faith, based on incorrect or mistaken information, or simply the product of a grudge, there is nothing an officer can do.[35]  Once officers are subject to a Giglio impairment, they are permanently unable to testify in criminal cases, and are frequently either terminated or relegated to restrictive duty status.[36]

Because officers have no recourse, prosecutors and other officials have often abused the Giglio Doctrine as a pretext for retaliation.[37]  For instance, in the District of Columbia, the police department asked the prosecutor’s office to make Giglio determinations to facilitate the firing of officers who were otherwise protected from termination by the statute of limitations on their misconduct.[38]  In Washington state, an officer claimed that he was improperly subject to a Giglio determination when the department wanted to punish him without navigating the obstacles of the formal disciplinary process.[39]  In Texas, “police officers accused the Ellis County district attorney of labeling one of their colleagues a [Giglio] cop in order to help the police chief fire the officer.”[40]  In Arizona, a district attorney was accused of using a Giglio letter to retaliate against two Phoenix officers to cover up the questionable actions of an investigator.[41]  In Oregon, a deputy was placed on a Giglio list despite being cleared of any wrongdoing after allegedly butting heads with prosecutors.[42]  In Tennessee, a district attorney issued a Giglio letter after two law enforcement officers blew the whistle on police department corruption.[43]  In Macon County, North Carolina, after purportedly making misstatements about his law enforcement experience during a campaign rally, a candidate for sheriff received a Giglio letter from his local district attorney, who happened to be a financial supporter of his opponent.[44]  With no avenue to challenge a prosecutor’s decision, and unable to afford an attorney, many officers are forced to leave law enforcement and find new careers.[45]

Law enforcement officers in other states have also sued district attorneys for sending false or inaccurate Giglio letters, but with mixed success.[46]  Prosecutors have “quasi-judicial” immunity, which bars claims arising from activities “intimately associated with the judicial phase of the criminal process.”[47]  This immunity applies even where a prosecutor acts maliciously or with an unlawful purpose.[48]  In defense of writing Giglio letters, district attorneys have leaned heavily on this immunity to defend against the publication of Giglio letters that would expose ordinary citizens to civil liability for defamation or tortious interference.[49]

In Savage v. Maryland,[50] an officer alleged that a district attorney sent a Giglio letter to his employer in retaliation for the officer raising concerns about the district attorney’s use of racial epithets.[51]  The Giglio letter allegedly resulted in the officer’s termination.[52]  Purporting to adhere to the Supreme Court’s decision in Imbler v. Pachtman,[53] the U.S. Court of Appeals for the Fourth Circuit in Savage determined that the district attorney’s conduct was entitled to absolute immunity because, in the court’s view, “[d]ecisions regarding witness testimony—which witnesses to call, whether potential witnesses are credible, and how to proceed in the face of credibility questions—are a core prosecutorial function, directly tied to the conduct of a criminal trial.”[54]

Similarly, in Roe v. City & County of San Francisco,[55] a police officer alleged that after he circulated a legal memorandum criticizing prosecutorial conduct, the prosecutor stopped calling him as a witness, determined that there would be no prosecutions of the officer’s cases without corroborating evidence, and communicated that decision to the officer’s state employer—all of which led to the officer being reassigned because he no longer could “complete [his] duties.”[56]  The officer sued, alleging retaliation for speaking out in violation of the First Amendment.[57]  But that claim, the U.S. Court of Appeals for the Ninth Circuit concluded, was barred by absolute prosecutorial immunity.[58]  The prosecutor’s failure to prosecute the officer’s cases, the court reasoned, was fully protected: “[t]here can be no question that the nature of the decision not to prosecute is ‘intimately associated with the judicial phase of the criminal process.’”[59]  The prosecutor’s assessment of the officer’s credibility would be similarly protected, whether “accurate or not.”[60]

Because Giglio letters essentially end an officer’s career, extending absolute immunity to the publication of Giglio letters weaponizes Giglio and transforms prosecutors into the ultimate arbiters of who can, or cannot, be law enforcement officers in a particular jurisdiction.  What the courts in Roe and Savage failed to acknowledge is the important difference between a prosecutor deciding who to call as a witness in a pending or identifiable prosecution and communicating with an officer’s supervisor before a criminal proceeding even exists.  The key difference is whether the prosecutor’s actions concern case-related advocacy.  While the former is a necessary task directly tied to a judicial proceeding, the latter is inherently administrative and advisory in nature and is, by definition, not intimately associated with the “judicial phase” of a criminal process before a “judicial phase” exists in the first instance.[61]  In recent years, courts have correctly identified this distinction and accordingly declined to extend absolute immunity to the publication of Giglio letters.[62]

In Beck v. Phillips,[63] a former police officer sued the county district attorney for defamation.[64]  The district attorney issued a Giglio letter claiming that the officer had lied about the circumstances surrounding the officer’s wife’s death.[65]  The Iowa Supreme Court concluded that while the prosecutor’s decision not to prosecute cases involving the officer was entitled to absolute immunity, sending a Giglio letter to the officer’s employer was not.[66]  The court characterized the latter as an “administrative function” of “merely advising local law enforcement authorities on how future criminal prosecutions should be conducted and how his office would deal with those cases.”[67]  Because Giglio letters are “advis[ory]” in nature, the court determined that the publication of Giglio letters is “not a function to which absolute immunity attaches.”[68]

The Supreme Court of North Dakota reached a similar conclusion in Krile v. Lawyer.[69]  In that case, the district attorney sent a Giglio letter to the chief of police after finding two letters of reprimand and several poor performance evaluations in the officer’s personnel file.[70]  The Giglio letter indicated that the officer would not be called in any future prosecutions.[71]  The police department immediately terminated the officer.[72]  The officer sued the district attorney for defamation, but his complaint was dismissed.[73]  On appeal, the North Dakota Supreme Court determined that while a district attorney has immunity in deciding who to call as a witness, publishing Giglio letters to an officer’s employer does not fall “within the proper discharge of [a district attorney’s] duties as a [state attorney].”[74]  The court reasoned that “not every activity of a prosecutor is within a prosecutor’s official duties simply because it is performed by a prosecutor.”[75]  The court held that the district attorney’s Giglio letter amounted to an advisory letter on how she might act in future hypothetical prosecutions, and therefore, the court declined to extend absolute immunity to this “administrative” action.[76]

One of the latest federal appellate decisions concerning prosecutorial immunity for civil damages in the context of a Giglio letter is Stockdale v. Helper.[77]  There, two police officers sued a district attorney who emailed a Giglio letter to the city manager.[78]  The U.S. Court of Appeals for the Sixth Circuit described the letter as the result of an “old grudge” against two officers who blew the whistle on department corruption.[79]  The officers were immediately terminated.[80]  Once again, because “[n]o identifiable trial loomed” when the prosecutor sent the email, the court found that the district attorney was not entitled to immunity.[81]  Both sides appealed the Sixth Circuit’s decision on competing grounds, but the Supreme Court denied each party’s certiorari petitions.[82]

Unlike the Beck and Krile courts, the Stockdale court went one step further by attacking the substance of the Giglio letter itself.[83]  In Stockdale, the district attorney based her Giglio determination on an allegation that one of the officers used a credit card to enter a home and assault someone—events that purportedly occurred ten years before the operative Giglio determination.[84]  Despite extensive briefing, the district attorney failed to justify “how these musty accusations—upon which she did not act in bringing a prosecution—would amount to [Giglio] material in all future cases.”[85]  The Stockdale court explained that a district attorney’s obligations under Giglio do not apply to “generic evidence about prior bad acts with only a ‘tenuous connection’ to a pending case.”[86]  No less importantly, the court stated, the accusations against the officers were already public, and prosecutors are under no constitutional obligation to disclose information that is “readily available to the defense from another source.”[87]  Protecting such communications, the court reasoned, risks stretching prosecutorial immunity “beyond reasonable bounds.”[88] 

No North Carolina state court—or statute—has addressed what liability can attach from the publication of a preemptive Giglio letter.  But the North Carolina Court of Appeals has tacitly acknowledged that preemptive Giglio letters may not be subject to prosecutorial immunity.  The recent In re Washington County Sheriff’s Office[89] decision is instructive.  In that case, a trial court judge issued an order sua sponte directing the State to disclose investigative materials concerning a particular officer in “any criminal matter” in which the State intended to call the officer as a witness.[90]  On appeal, the Court of Appeals vacated the trial court’s ruling, concluding that it was an improper advisory opinion made in anticipation of future “theoretical” criminal prosecutions involving the officer.[91]  While the decision in In re Washington County was limited to a Giglio determination made by a trial court (as opposed to a prosecutor), the decision stands for the proposition that preemptive Giglio letters are advisory in nature and are therefore not sufficiently associated with the “judicial phase of the criminal process” to give rise to prosecutorial immunity.[92]

II. North Carolina’s Giglio Bill

In the aftermath of the brutal murder of George Floyd,[93] North Carolina signed Senate Bill 300 into law on September 2, 2021.[94]  The Giglio Bill’s overriding objective is to combat police violence and hold officers accountable for unreasonable uses of force.[95]  To that end, the Giglio Bill places an affirmative obligation on law enforcement officers to intervene when unreasonable force is utilized by another officer,[96] encourages alternative methods of conflict resolution,[97] and places mental health and the use of force at the forefront of officer training.[98]  Its comprehensive reforms allowed the Giglio Bill to garner support from across the political spectrum, including the North Carolina Conference of District Attorneys.[99]  These reforms are well taken and represent a step in the direction towards meaningful reform of policing in North Carolina.

Among other provisions, the Giglio Bill directs the North Carolina Criminal Justice Standards Division of the Department of Justice (the “Division”) and the North Carolina Criminal Justice and Training Standards Commission (the “Commission”) to collect and maintain information about officer conduct, including, for example, uses of force (the “Critical Incident List”).[100]  The Giglio Bill also directs the Division to collect reports identifying any officer subject to a Giglio impairment (the “Giglio Database”).[101]

In a section entitled “Requirement to Report Material Relevant to Testimony,”[102] any officer who has been informed that he or she “may not be called to testify at trial based on bias, interest, or lack of credibility” must notify the Division within thirty days.[103]  The official making the Giglio determination must also notify and provide a copy of the Giglio letter to the Division within thirty days.[104]  Once notified, the Division is directed to provide written notice of an officer’s Giglio status to the head of any future law enforcement agency to which an officer’s certification is transferred, as well as the district attorney in that agency’s prosecutorial district.[105]  If an officer subject to a Giglio impairment has his or her certification transferred to a state agency, the Division is directed to notify every elected district attorney in every prosecutorial district in North Carolina of the officer’s Giglio impairment.[106]  These notification obligations extend until the Giglio impairment is withdrawn,[107] which almost never occurs.[108]

The Giglio Bill does not create any standardized procedures for deciding when to issue a Giglio determination, what factors or evidence to consider, or whether to allow an officer to present evidence in his or her defense.  There is no requirement that officers be provided notice before a Giglio determination is made, thereby eliminating any opportunity to contest accusations of Giglio impairment.  Even if an officer is afforded a meeting, the Giglio Bill does not require that an officer be informed of the evidence being considered by an official in anticipation of a Giglio determination.  There is also no requirement that the Division be informed of the reasoning behind a Giglio impairment.  Instead, the Giglio Bill permits officials to make Giglio determinations in complete secrecy without notifying officers that Giglio impairments are being considered.

Rather than create a uniform set of Giglio guidelines or define “Giglio material,”  each district attorney’s office, sheriff’s office, and police department must develop its own policies and procedures relating to Giglio determinations.[109]  These policies and procedures are generally not made available either to the public (absent a public records request) or to the officers involved in a Giglio investigation.[110]  Without a transparent set of uniform procedures governing the Giglio process or an overriding definition of “Giglio material,” Giglio determinations are left to the “eye of the beholder,” creating situations where some officers may be subject to Giglio determinations, while others may not—even if they engage in the same or similar conduct.[111]  Furthermore, the lack of clear Giglio procedures leaves officers without any means to ensure that Giglio determinations are made in good faith after impartial consideration of the relevant evidence.[112]

The Giglio Bill also expands the number of individuals permitted to make Giglio determinations.  Pursuant to N.C. Gen. Stat. § 17C-16 and § 17E-16, “agency heads”—meaning police chiefs and sheriffs, in addition to district attorneys and judges—are permitted to make Giglio determinations about their officers and report those officers to the Division without ever notifying their subordinates that Giglio determinations were ever being considered.[113]  On one hand, police chiefs and sheriffs need to report untruthful conduct on behalf of their officers to the appropriate authorities in order to hold those officers accountable and to ensure that district attorneys are able to fulfill their constitutional obligations under Giglio.  Being untruthful is not the same as being Giglio impaired, however, and most police chiefs and sheriffs are not lawyers and do not have formal legal education concerning the North Carolina Rules of Evidence, the Federal Rules of Evidence, or the Giglio decision and its progeny.[114]  Without that educational foundation, the Giglio Bill creates an environment ripe for erroneous Giglio decisions.

Compounding the harm presented by this complete lack of safeguards, the Giglio Bill creates no avenue through which an officer can challenge either a Giglio impairment decision or the Division’s republication of a Giglio decision to future employers.  In fact, the omission of any sort of due process from N.C. Gen. Stat. § 17C-16 and § 17E-16 appears to be intentional.[115]  Pursuant to the newly created N.C. Gen. Stat. § 17E-15, law enforcement officers are able to challenge decisions placing them on the Critical Incident List, but officers are inexplicably unable to challenge a Giglio determination or contest the Division’s future Giglio notifications.[116]  Instead, the Division is instructed to republish Giglio determinations—even if those determinations are defamatory, retaliatory, or otherwise erroneous—to an officer’s future employers with no oversight or any way for the officer to appeal.[117]

North Carolina’s failure to include any safeguards or judicial oversight to the Giglio determination process is incomprehensible because an explicit avenue for appeal was included for the Critical Incident List, and because, as proof it can be done, at least two other states have adopted laws or procedures that provide protection against the impact of a Giglio determination.[118]  For example, a California statute[119] mandates that an adverse employment action “shall not be undertaken by any public agency against any public safety officer solely because that officer’s name has been placed on a Brady list, or [because] the officer’s name may otherwise be subject to disclosure pursuant to Brady v. Maryland.”[120]  Similarly, in New Jersey, the Attorney General’s Office issued a law enforcement directive that discourages general-purpose Giglio determinations and allows police officers to seek review of a prosecutor’s determination from the prosecutor or the Office of the Attorney General.[121]  Importantly, the New Jersey directive makes clear that such review “shall not interrupt or interfere with the prosecutor’s obligation to disclose information in the ongoing case.”[122]

Giglio letters do not appear to have any analogue in any other public employment setting in North Carolina.  In fact, pursuant to N.C. Gen. Stat. § 150B-43, every licensed professional in North Carolina, from barbers to foresters, has a statutorily guaranteed mechanism by which to obtain judicial review of an occupational licensing board’s decision affecting their employment.[123]  Now, even though Giglio letters almost always result in their termination, law enforcement officers may be the only exception to the rule guaranteeing judicial review of state-sanctioned decisions affecting a person’s employment.

III.  The Giglio Bill and North Carolina’s Constitution

Given the glaring absence of due process, transparency, or safeguards, the Giglio Bill is likely unconstitutional.  

Article I of the North Carolina Constitution declares thirty-seven rights to its citizens, some of which have no analogue in the United States Constitution and predate those declared in the Bill of Rights.[124] 

Article I, Section 19 of the North Carolina Constitution provides:

No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.[125]

North Carolina’s “law of the land” clause is synonymous with due process of law, both in terms of substance and procedure.[126]  It is well established that “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and opportunity to be heard are essential.”[127]  This is especially true where a state attaches a “badge of infamy” to a citizen.[128]

The creation of Giglio databases with no mechanism for appeal or removal has already been deemed constitutionally problematic by courts in other jurisdictions.  In 2017, the Philadelphia district attorney began compiling a “Do Not Call List” of officers who, in the district attorney’s view, were “tainted” and subject to Giglio impairments.[129]  With no avenue to challenge the district attorney’s determination, the officers filed a lawsuit arguing that their placement on the “Do Not Call List” served as a stain on their professional reputations and violated their rights to due process.[130]  Labeling the “Do Not Call List” a “blacklist of sorts,” the Commonwealth Court of Pennsylvania determined that the officers had a constitutionally protected interest in their professional reputation, which required notice and an opportunity to be heard prior to their placement on the “Do Not Call List.”[131]  The court explained that “Giglio [does not] eliminate the right of innocent officers to be afforded a meaningful opportunity to argue why they should not be placed on the List or why they should be removed.”[132]

There is no greater “badge of infamy”[133] for law enforcement officers than a Giglio letter.  Not only do N.C. Gen. Stat. § 17C-16 and § 17E-16 serve to perpetuate and memorialize “badges of infamy” on citizens in perpetuity without providing them any opportunity to be heard, but the Giglio Bill directs the state to take action and affirmatively republish Giglio determinations, even if those determinations are plainly erroneous, defamatory, or the product of mistaken information.  With no avenue to present evidence in their defense or challenge a Giglio determination, law enforcement officers, unlike every other licensed professional in North Carolina, are not afforded any opportunity to defend their good name, reputation, honor, or integrity.  This arbitrary and intentional omission of basic due process runs afoul of North Carolina’s strong traditions of robustly protecting the rights of its citizens to work, earn a living, and defend their reputations.

Unlike other states’ constitutions, the North Carolina Constitution also contains an—until very recently—often overlooked provision protecting the right of North Carolinians to enjoy the “fruits of their own labor.”[134]  Article I, Section I of the North Carolina Constitution provides:

We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.[135]

The “fruits of labor” provision, as it is often called, was added to the North Carolina Constitution in 1868, shortly after the Civil War.[136]  Passed the same year that North Carolina ratified the Fourteenth Amendment to the United States Constitution, the “fruits of labor” provision was likely intended to “strike an ideological blow at the slave labor system.”[137]  North Carolina courts, however, largely ignored this provision until the mid-twentieth century, when it was applied to the State’s professional licensing powers.[138]  The “fruits of labor” provision then lay dormant again until 2014, when the North Carolina Supreme Court applied it to a city ordinance capping towing fees.[139]

In 2018, the North Carolina Supreme Court published a precedent-setting decision in Tully v. City of Wilmington,[140] expanding the “fruits of labor” provision into the public employment context.[141]  In that case, a Wilmington police officer was denied a promotion after he failed a mandatory examination that tested an officer’s knowledge of the law.[142]  His exam answers were correct based on the current state of the law, but he failed the exam because the answer key was outdated.[143]  Written department policy laid out the promotion and examination procedures and provided that candidates could appeal any portion of the selection process, so the officer sought to appeal his test results.[144]  The City of Wilmington refused to hear the officer’s appeal, determining the test results “were not a grievable item” and that nothing could be done.[145]  The North Carolina Supreme Court determined that this decision violated the officer’s constitutional rights under Article I, Section 1, reasoning that the “fruits of labor” provision applies “when a governmental entity acts in an arbitrary and capricious manner toward one of its employees by failing to abide by promotional procedures that the employer itself put in place.”[146]

But Tully has far broader implications.  The Tully court indicated that the “fruits of labor” clause protects a person’s “right ‘to engage in any of the common occupations of life,’ unfettered by unreasonable restrictions imposed by actions of the state or its agencies.”[147]  In addition to failing to follow promotional policies, the North Carolina Supreme Court has stated that the “fruits of labor” clause is violated where the State “unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities.”[148]  For these reasons, the North Carolina Court of Appeals suggested that the North Carolina Constitution is more protective of the rights of North Carolinians than the United States Constitution.[149]

The mandated republication of an officer’s Giglio status directly to all future employers undoubtedly imposes “some stigma or disability” on an officer that will “foreclose the freedom to take advantage of employment opportunities.”[150]  A Giglio determination is a scarlet letter for any law enforcement officer.  The lack of procedural safeguards, due process, judicial review, or any requirement that notice be provided to an officer before a Giglio determination is made, creates an environment ripe for erroneous Giglio determinations, and renders the republication of Giglio decisions unfair to the officers involved.  With no avenue to challenge the Division’s republication of a Giglio determination, even where a Giglio decision is premised on mistaken information, officers are unable to remove (or even contest) the stigma and disability placed upon them by the state and are deprived of their right to pursue their chosen profession free from unfair governmental interference.


The citizens of North Carolina have an undeniably compelling interest in identifying dishonest officers, holding them accountable, and prohibiting them from serving as agents of the state.  There is no place in law enforcement for dishonest officers.  In light of the ongoing epidemic of police violence in the United States, the Giglio Bill makes important reforms to policing in North Carolina.  These measures are well-taken and represent a step in the right direction, although there remains much work to be done to repair the relationship between law enforcement and communities across North Carolina and the United States.

A delicate balance exists between a prosecutor’s constitutional obligation to produce exculpatory impeachment evidence to criminal defendants and an officer’s constitutional rights to due process and to enjoy the fruits of his or her labor.  The notion that this balance cannot be struck, or that a prosecutor’s decision must always be afforded the greatest deference, is unsupported by current law and common sense.

Even though other states have created at least temporary solutions to the constitutional problems presented by Giglio, North Carolina failed to follow their example.  The push for holding law enforcement accountable should not stop with the “blue line.”  District attorneys, all the way down to the newest beat cop, need to answer for their actions and omissions.  Without providing an opportunity to be heard or rebut an adverse Giglio determination, even where that determination is based on mistaken information or is a transparent pretext for retaliation, the Giglio Bill deprives officers of a central tenet of North Carolina’s organized system of justice: the right to be free from arbitrary and unfair government action.  The provisions enacted by the Giglio Bill need meaningful reform to ensure that police officers receive the same constitutional protections as every other citizen in North Carolina.

      *.   B.A., Rhodes College; J.D., University of North Carolina School of Law.

      [1].   Giglio v. United States, 405 U.S. 150, 150–51 (1972).

      [2].   Id. at 151.

      [3].   373 U.S. 83 (1963).

      [4].   Giglio, 405 U.S. at 151–53.

      [5].   Id. at 154–55.

      [6].   405 U.S. 150 (1972).

      [7].   Id. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).

      [8].   United States v. Bagley, 473 U.S. 667, 675 (1985).

      [9].   Id. at 682; see Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743, 748 (2015).

     [10].   Bagley, 473 U.S. at 678–81.

     [11].   See John G. Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 Emory L.J. 437, 495 (2001) (explaining the exculpatory nature of a witness’s testimony that is both “inculpatory and critically important to the prosecution’s case”).

     [12].   See Krile v. Lawyer, 2020 ND 176, ⁋ 5, 947 N.W.2d 366, 371 (2020) (defining “Giglio impairment” and citing other cases referencing the phrase).

     [13].   See The Implications of Brady-Giglio for Law Enforcement, Nat’l Inst. for Jail Operations, (last visited Feb. 26, 2022); John V. Berry, Giglio Issues for Law Enforcement Officers, Police L. Blog (Feb. 4, 2014),

     [14].   See Letter from Randy Hagler, President, N.C. State Lodge Fraternal Order of Police, to Reps. Kristen Baker, Howard Hunter, III, & John Szoka (Dec. 7, 2020) [hereinafter Letter from Randy Hagler], (addressing “[t]he issue of the increased issuance of Giglio letters by district attorneys nationwide”); see also Krile, 2020 ND at ⁋⁋ 6–7, 947 N.W.2d at 371 (discussing the “Giglio letter” at issue in the case).

     [15].   Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)).  Giglio only applies to “key” witnesses rather than “minor witnesses.”  See, e.g., Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1355–56 (11th Cir. 2011); United States v. Buchanan, 891 F.2d 1436, 1444 (10th Cir. 1989).

     [16].   See, e.g., Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021); Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *12–13 (N.D. Okla. Feb. 12, 2014); Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021); see also David Sinclair, After Being Fired From Moore County Sheriff’s Office, Ex-Deputy Wins ‘Vindication’, Pilot (Feb. 4, 2020),; Jessi Stone, Former Deputy Sues DA Over Giglio Order, Smoky Mountain News (Dec. 1, 2021),

     [17].   See Letter from Randy Hagler, supra note 14 (noting that after a Giglio violation is alleged and reported, “the only hearing is after the fact and on the issue of disqualifying the officer from serving” and requesting that “procedures be established by statute that will allow an officer an investigation into the factual basis of the alleged dishonesty and a hearing”); see also NC Watchdog Reporting Network, DAs Warn Police About Untrustworthy Officers but Won’t Share with Public, Carolina Pub. Press (June 3, 2021), (describing the secret nature of Giglio letters).

     [18].   See United States v. Lujan, 530 F. Supp. 2d 1224, 1255 (D.N.M. 2008) (“The precise time at which Brady or Giglio evidence must be disclosed will thus depend on the specific nature of the evidence at issue.”).

     [19].   Shea Denning, Sheriffs’ Association Releases Report Recommending Giglio-Related Reforms, Among Others, Univ. N.C. Sch. Gov’t: N.C. Crim. L. (Nov. 18, 2020, 6:15 AM),; Alan J. Keays, Tarnished Badge: Dishonesty and Ethical Issues Dog Dozens of Vermont Police Officers, VTDigger (Dec. 16, 2020),

     [20].   Keays, supra note 19.

     [21].   See        Denning, supra note 19; Keays, supra note 19; see also Letter from Randy Hagler, supra note 14 (“For working officers, [a Giglio letter] is a career ender.”).

     [22].   See, e.g., Tracee Wilkins, Prince George’s State’s Attorney Keeps List of Officers Not Credible to Testify for the State, NBC Wash. (Apr. 14, 2021),

     [23].   Id.

     [24].   Khaleda Rahman, Full List of Black People Killed by Police in 2021, Newsweek (Dec. 28, 2021, 7:00 AM),

     [25].   Brady v. Maryland was the initial Supreme Court decision holding that a state must produce exculpatory evidence to criminal defendants.  373 U.S. 83, 87 (1963).  This holding was expanded by Giglio to include evidence that could be used to impeach a witness’ character for truthfulness.  Giglio v. United States, 405 U.S. 150, 153–55 (1972).

     [26].   See, e.g., Brady List, Brady List,; Denning, supra note 19; NC Watchdog Reporting Network, supra note 17.

     [27].   Steve Reilly & Mark Nichols, Hundreds of Police Officers Have Been Labeled Liars. Some Still Help Send People to Prison., USA Today (Oct. 14, 2019, 8:20 PM),; Wilkins, supra note 22.

     [28].   See, e.g., Helen Greenia, Baltimore Publishes Police ‘Do Not Call List’ – Officers Not to Be Called to Testify Because of Misdeeds, Davis Vanguard (Nov. 1, 2021),

     [29].               The Implications of Brady-Giglio for Law Enforcement, supra note 13.

     [30].   See Riley E. Clafton, Comment, A Material Change to Brady: Rethinking Brady v. Maryland, Materiality, and Criminal Discovery, 110 J. Crim. L. & Criminology 307, 309–11, 332 (2020); Jerry P. Coleman & Jordan Lockey, Brady “Epidemic” Misdiagnosis: Claims of Prosecutorial Misconduct and the Sanctions to Deter It, 50 U.S.F. L. Rev. 199, 224 (2016); David Crump, Brady v. Maryland, Attorney Discipline, and Materiality: Failed Investigations, Long-Chain Evidence, and Beyond, 45 Hofstra L. Rev. 515, 527 (2016); David Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Existing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121 Yale L.J. Online 203, 209 (2011); Jason Kreag, The Jury’s Brady Right, 98 B.U. L. Rev. 345, 345–46 (2018); Christopher T. Robertson & D. Alex Winkelman, Incentives, Lies, and Disclosure, 20 U. Pa. J. Const. L. 33, 43–45 (2017); Joel B. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies that Prove That Assumption Wrong, 80 Fordham L. Rev. 537, 539–40 (2011); Somil Trivedi & Nicole Gonzalez Van Cleve, To Serve and Protect Each Other: How Police-Prosecutor Codependence Enables Police Misconduct, 100 B.U. L. Rev. 895, 920 (2020).

     [31].   Abel, supra note 9, at 781.

     [32].   Id.

     [33].   See id.

     [34].   See, e.g., Jessi Stone, Macon Sheriff Candidate Gets Giglio Order, Smoky Mountain News (Sept. 19, 2018), (describing an officer in Cherokee County who was “caught off-guard” after receiving a Giglio letter).

     [35].   See Abel, supra note 9, at 781.

     [36].   See, e.g., Complaint, Aquino v. City of Charlotte, No. 3:21-cv-00618 (W.D.N.C. Nov. 12, 2021) (discussing case of an officer unable to testify after receiving a Giglio letter).

     [37].   See Abel, supra note 9, at 781; Singer v. Steidley, No. 13–CV–72–GKF–TLW, 2014 WL 580139, at *13 (N.D. Okla. Feb. 12, 2014).

     [38].   Abel, supra note 9, at 782; Conviction Integrity Project, Establishing Conviction Integrity Programs in Prosecutors’ Offices 26 n.16 (2012).

     [39].   Abel, supra note 9, at 782 (citing Wender v. Snohomish County, No. C07-197Z, 2007 WL 3165481 (W.D. Wash. Oct. 24, 2007)).  Officer Wender’s federal civil rights suit resulted in reinstatement and a $812,500 settlement.  Id.

     [40].   Id. (citing Telephone Interview with Patrick M. Wilson, Cnty. & Dist. Att’y, in Ellis Cnty., Tex. (Apr. 8, 2014)).

     [41].   Patti Epler, Cop Chop, Phoenix New Times (Oct. 9, 2003, 4:00 AM),

     [42].   Whitney Woodworth, Marion County Prosecutor’s List Questions Honesty, Reliability of More than 40 Officers, Statesman J. (Apr. 17, 2019, 4:00 PM),

     [43].   Stockdale v. Helper, 979 F.3d 498, 501–02 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).

     [44].   Stone, supra note 34.  In August 2018, Eric Giles, a sheriff’s deputy running to be sheriff of Macon County, was issued a Giglio letter by District Attorney Ashley Welch, who happened to be a financial supporter of his opponent.  Id.  According to the Smoky Mountain News, Mr. Giles made misstatements about his prior law enforcement experience during his campaign for sheriff.  Id.  District Attorney Welch’s Giglio letter made vague references to internal “procedures” which governed her decision, but Mr. Giles was not given an opportunity to be heard prior to District Attorney Welch’s decision.  Id.  According to District Attorney Welch, her office’s Giglio “procedures” were voluntarily put in place by her in 2015 after she attended a training conference for district attorneys in Raleigh.  Id.  Mr. Giles has now filed a lawsuit against Ashley Welch in Clay County Superior Court, and District Attorney Welch removed to the Western District of North Carolina.  Stone, supra note 16; see Notice of Removal, Giles v. Hindsman, No. 1:21-cv-00256 (W.D.N.C. Sept. 27, 2021).

     [45].   Abel, supra note 9, at 780–81.

     [46].   See, e.g., Beck v. Phillips, 685 N.W.2d 637 (Iowa 2004) (dismissing claims arising from the decision not to prosecute cases involving a former officer but allowing tort claims arising from the content of a Giglio letter); Singer v. Steidley, No. 13-CV-72-GKF-TLW, 2014 WL 580139, at *54 (N.D. Okla. Feb. 12, 2014) (dismissing defamation claims but allowing First Amendment retaliation claim).

     [47].   Imbler v. Pachtman, 424 U.S. 409, 420, 430 (1976).

     [48].   Id. at 427.

     [49].   See, e.g., Stockdale v. Helper, 979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (holding that prosecutor was protected by qualified immunity).

     [50].   896 F.3d 260 (4th Cir. 2018).

     [51].   Id. at 266.

     [52].   Id.

     [53].   424 U.S. 409 (1976).

     [54].   Savage, 896 F.3d at 270 (citing Imbler, 424 U.S. at 426.

     [55].   109 F.3d 578 (9th Cir. 1997).

     [56].   Id. at 580–82.

     [57].   Id.

     [58].   Id. at 583.

     [59].   Id. (citations omitted).

     [60].   Id. at 584.

     [61].   Stockdale v. Helper, 979 F.3d 498, 502–03 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).  Furthermore, in Kalina v. Fletcher, the Supreme Court emphasized the importance of limiting prosecutorial immunity only to those actions undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his or her role as advocate for the state.  See 522 U.S. 118, 127 (1997).  The Court has held that, when determining whether an action is entitled to prosecutorial immunity, a court must examine the “nature of the function performed, not the identity of the actor who performed it.”  Forrester v. White, 484 U.S. 219, 229 (1988).  To that end, in Kalina, the Court evaluated each act in filing criminal charging documents separately, explaining how a prosecutor could be immune for filing the “information and the motion for an arrest warrant” but not for “personally attesting to the truth of the averments in the certification.”  Kalina, 522 U.S. at 129.  This principle is perhaps best illustrated by the determination that the senior law enforcement official in the nation—the Attorney General of the United States—is protected only by qualified, rather than absolute, immunity when engaged in the performance of national defense functions rather than prosecutorial functions.  Mitchell v. Forsyth, 472 U.S. 511, 520 (1985).

     [62].   Stockdale, 979 F.3d at 502–03.

     [63].   685 N.W.2d 637 (Iowa 2004).

     [64].   Id. at 641.

     [65].   Id.

     [66].   Id. at 645.

     [67].   Id.

     [68].   Id. (citations omitted).

     [69].   947 N.W.2d 366 (N.D. 2020).

     [70].   Id. at 370.

     [71].   Id. at 371.

     [72].   Id.

     [73].   Id. at 374.

     [74].   Id. at 379.

     [75].   Id.

     [76].   Id.

     [77].   979 F.3d 498 (6th Cir. 2020) cert. denied, 211 L.Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021).

     [78].   Id. at 501–02.

     [79].   Id. at 500.

     [80].   Id. at 501–02.

     [81].   Id. at 503.

     [82].   Stockdale v. Helper, 979 F.3d 498, 504 (6th Cir. 2020), cert. denied, 211 L. Ed. 2d 21 (2021), and cert. denied, Helper v. Stockdale, 142 S. Ct. 90 (2021) (quoting Hogan v. Hanks, 97 F.3d 189, 191 (7th Cir. 1996)).

     [83].   Id. at 502–05.

     [84].   Id. at 504.

     [85].   Id.

     [86].   Id.

     [87].   Id.

     [88].   Id.

     [89].   843 S.E.2d 720 (N.C. Ct. App. 2020).

     [90].   Id. at 721.

     [91].   Id. at 723.

     [92].   Stockdale, 979 F.3d at 502–03.

     [93].   Travis Fain, NC Legislature Approves Raft of Criminal Justice Reforms,, (Aug. 25, 2021, 11:52 AM).

     [94].   Act of Sept. 2, 2021, 2021 N.C. Adv. Legis. Serv. 138 (codified in sections of N.C. Gen. Stat. chs. 14, 15A, 17A, 17C, 17E, 122C, 132, 143B, 150B, 153A, 160A). The rest of this Article will cite to the relevant sections of the North Carolina General Statute accordingly.

     [95].   Danielle Battaglia, Cooper Signs 3 Laws Focused on Police Accountability but Says North Carolina Needs to Go Further, Times News (Sept. 3, 2021, 12:46 PM),

     [96].   N.C. Gen. Stat. § 15A-401(d1).

     [97].   See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer training on specific issues such as community policing and minority sensitivity); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same); see also N.C. Gen. Stat. § 14-4(c) (effective Oct. 1, 2021) (providing for alternatives to punishment for violations of certain local ordinances when a person charged produces proof of a good-faith effort to seek assistance to address underlying factors related to mental health, homelessness, unemployment, or substance abuse).

     [98].   See generally N.C. Gen. Stat. § 17C-6(a) (effective Oct. 1, 2021) (requiring officer educating and training to develop knowledge and increase awareness of mental health and wellness strategies); N.C. Gen. Stat. § 17E-4(a) (effective Oct. 1, 2021) (same).

     [99].   See Emily Schmidt, Gov. Cooper Signs Bipartisan Police Reform Bill, but Some Say More Needs To Be Done, Daily Tar Heel (Sept. 7, 2021, 5:21 PM),; Battaglia, supra note 95.

   [100].   See N.C. Gen. Stat. § 17C-15 (effective Oct. 1, 2021).

   [101].   Id. § 17C-16(a), (f).  While the Giglio Bill does not explicitly create a “database” for officers subject to Giglio impairments, the Division will have to create some system for logging and recording the names of all officers who are Giglio impaired in order to carry out its statutory directive.

   [102].   N.C. Gen. Stat. § 17C-16(a) (effective Oct. 1, 2021).

   [103].   Id.

   [104].   Id. § 17C-16(b)–(c).

   [105].   Id. § 17C-16(d).

   [106].   Id.

   [107].   Id. § 17C-16(e).

   [108].   See Abel, supra note 9, at 788 (noting that any concessions prosecutors give officers regarding being on the Brady list, including reversing the decision altogether, are entirely voluntary).

   [109].   See N.C. Gen. Stat. § 17C-16 (effective Oct. 1, 2021) (providing no guidelines, procedures, or definitions relating to Giglio guidelines or material).

   [110].   Some larger prosecutorial districts have released their Giglio policies and procedures.  See Disclosure of Exculpatory Evidence in Charlotte NC, Carolina Att’ys: Carolina L. Blog (Jan. 12, 2019),  For instance, the Mecklenburg County District Attorney’s Office has established a Giglio committee to make decisions concerning whether a particular officer is Giglio impaired.  Id.  But their policy does not contain any provisions allowing an officer to challenge or appeal a Giglio determination.  See id.  North Carolina is not alone in its lack of a statewide policies and procedures for making Giglio determinations.  For instance, Oregon’s Giglio rules vary county to county, which results in prosecutors “continually adjusting what it takes to label an officer a ‘Brady [or Giglio] cop.’”  Whitney Woodworth & Hannah Kanik, ‘Brady Lists’ of Untruthful Oregon Police Officers Inconsistent County to County, Statesman J. (July 13, 2020, 6:59 AM), (emphasis on “Brady” added).

   [111].   John V. Berry, Due Process for Officers Placed on Giglio or Brady Lists, Police L. Blog (Jan. 29, 2018, 9:29 PM),

   [112].   Id.

   [113].   See N.C. Gen. Stat. § 17C-16(a)(1) (effective Oct. 1, 2021); N.C. Gen. Stat. § 17E-16(a)(1) (effective Oct. 1, 2021); see also Roy Cooper, N.C. Dep’t of Just. Mutual Aid Agreements Between Law Enforcement Agencies in North Carolina 3 (rev. ed. 2014) (explaining that the head of an agency could be “the chief or sheriff”).

   [114].   Christie Gardiner, Policing Around the Nation: Education, Philosophy, and Practice 32 (2017),   In 2017, “17.1% of CEOs (chiefs and sheriffs) ha[d] a high school diploma, 19.0% ha[d] a two-year degree, 28.7% ha[d] a four-year degree, 32.1% ha[d] a master’s degree, and 3.0% ha[d] a doctorate or other terminal degree (for example, J.D or Psy.D.).”  Id.  What’s more, the Giglio Bill does not require that police chiefs or sheriffs undergo any training concerning Giglio and its progeny.

   [115].   Notably, the North Carolina Sheriff’s Association recommended that officers be afforded an administrative hearing to challenge a Giglio determination.  See N.C. Sheriffs’ Ass’n, Report on Law Enforcement Professionalism 9–10 (2020),

   [116].   N.C. Gen. Stat. § 17E-15(d) (effective Oct. 1, 2021).  In In re Washington County Sheriff’s Office, the North Carolina Court of Appeals had an opportunity to opine whether any due process is required before the issuance of a Giglio determination but declined to address the question as it was not necessary to the resolution of the case.  In re Washington Cnty. Sheriff’s Off., 843 S.E.2d 720, 721 (N.C. Ct. App. 2020).  On appeal, the officer asserted that his due process rights were violated because the trial court failed to conduct any hearing prior to unilaterally directing the state to turn over investigative materials about the officer in all future criminal trials where the officer is called as a witness.  Id. at 721–22.  Instead, the Court of Appeals vacated the trial court’s order as an improper advisory opinion.  Id. at 723.

   [117].   N.C. Gen. Stat. § 17C-16(d) (effective Oct. 1, 2021).

   [118].   See, e.g., Cal. Gov’t Code § 3305.5(a) (2014) (mandating that officers cannot be fired solely for being on a Brady list); Attorney General Law Enforcement Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States from Gurbir S. Grewal, N.J. Att’y Gen., to Cnty. Prosecutors 8–9 (Dec. 4, 2019) [hereinafter Directive Establishing County Policies], (directing New Jersey prosecutors to make a Giglio decision on a case-by-case basis and allowing officers to review the determination).

   [119].   Cal. Gov’t Code § 3305.5(a) (2014).

   [120].   Id. (emphasis added).

   [121].   Directive Establishing County Policies, supra note 118, at 8–9.

   [122].   Id. at 8.

   [123].   See        N.C. Gen. Stat. § 150B-43 (1973) (“Any party or person aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies made available to the party or person aggrieved by statute or agency rule, is entitled to judicial review of the decision under this Article . . . .”).

   [124].   Grant E. Buckner, North Carolina’s Declaration of Rights: Fertile Ground in A Federal Climate, 36 N.C. Cent. L. Rev. 145, 149–53 (2014).

   [125].   N.C. Const. art. I, § 19.

   [126].   Johnston v. State, 735 S.E.2d 859, 870 (N.C. Ct. App. 2012) aff’d, 749 S.E.2d 278 (N.C. 2013).

   [127].   Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

   [128].   Id. (quoting Wieman v. Updegraff, 344 U.S. 183, 191 (1952)).

   [129].   Fraternal Ord. of Police Lodge No. 5 ex rel. McNesby v. City of Phila., No. 1295 C.D. 2019, 2021 WL 5182646, at *1, *4 (Pa. Commw. Ct. Nov. 9, 2021).

   [130].   See id. at *6–7.

   [131].   Id. at *33–37.

   [132].   Id. at *27.

   [133].   Constantineau, 400 U.S. at 437 (quoting Wieman, 344 U.S. at 191).

   [134].   N.C. Const. art. I, § 1.

   [135].   Id.

   [136].   Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (citing John V. Orth, The North Carolina State Constitution with History and Commentary 38 (1993)).

   [137].   Orth, supra note 136, at 38.

   [138].   See Mole, 866 S.E.2d at 777.  These decisions recognized a person’s ability to earn a livelihood as a protected constitutional right and struck down licensing restrictions not rationally related to public health, safety, or welfare and not reasonably necessary to promote a public good or prevent a public harm.  See, e.g., Roller v. Allen, 96 S.E.2d 851, 854 (N.C. 1957); State v. Ballance, 51 S.E.2d 731, 735 (N.C. 1949).

   [139].   King v. Town of Chapel Hill, 758 S.E.2d 364, 371 (N.C. 2014).

   [140].   810 S.E.2d 208 (N.C. 2018).

   [141].   Id. at 213.

   [142].   Id. at 211.

   [143].   Id.

   [144].   Id.

   [145].   Id.

   [146].   Id. at 215.

   [147].   Id. at 214 (quoting Presnell v. Pell, 260 S.E.2d 611, 617 (N.C. Ct. App. 1979)).

   [148].   Presnell, 260 S.E.2d at 617 (citing Board of Regents v. Roth, 408 U.S. 564, 573 (1972)).

   [149].   Mole’ v. City of Durham, 866 S.E.2d 773, 777 (N.C. Ct. App. 2021) (“We must again consider whether the analogous clause in the North Carolina Constitution is more protective and extends the guarantee of equal protection in the public employment context.  As with due process, the fact that the Fourteenth Amendment does not provide a cause of action for Sergeant Mole’ does not necessarily foreclose the possibility that our state Constitution could yield a remedy: the United States Constitution is the floor of constitutional protections in North Carolina, not the ceiling.”).

   [150].               Presnell, 260 S.E.2d at 617.

By: Nick Christopherson

On August 30, 2019, twenty-three year old Elijah McClain died[1] from injuries sustained during a police welfare check.[2]  On the night of the encounter, police responded to a report of a man (McClain) who “look[ed] sketchy,” and after perceiving McClain to be resisting arrest, the officers quickly initiated a takedown.[3] An independent report of the incident stated that it was unclear whether “McClain’s movements, interpreted by the officers as resisting, were attempts to escape or simply an effort . . . to avoid the painful force being applied on him, to improve his breathing, or to accommodate his vomiting.”[4] Paramedics later injected McClain with a sedative, the misapplication of which caused McClain to suffer a heart attack and die several days later.[5]

Police departments dispatch thousands of welfare checks per year in response to a variety of requests submitted by the community.[6] These calls are unpredictable and require talented and flexible responses. Some callers report that their neighbor’s home is being burgled,[7] others worry about unresponsive grandparents,[8] others call to report “sketchy” or sick-looking individuals in the community.[9] For this reason, courts have described police officers as “a ‘jack-of-all emergencies,’” who are “expected to aid those in distress, combat actual hazards, prevent potential hazards from materializing, and provide an infinite variety of services to preserve and protect community safety.”[10] Courts describe this police function as “community caretaking.”[11]

When an officer acts “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,” she acts in her capacity as a community caretaker.[12] However, the doctrine of community caretaking also acts as an umbrella term that covers other exceptions to the Fourth Amendment’s protections against unreasonable searches and seizures. For instance, the doctrines of exigent circumstances,[13] emergency aid,[14] public servant,[15] and warrantless entry[16] all fall under the community caretaking doctrine and are often analyzed simultaneously by courts.

Nevertheless, in rare instances, the community caretaking doctrine is applied by itself—unaccompanied by other exceptions—to justify instances of abusive discretion. For example, in Tinius v. Carrol Cnty. Sheriff Dept.,[17] officers observed a man, named Tinius, walking along the highway in the middle of winter without a coat.[18] After suspecting Tinius was on drugs, the officers cuffed Tinius and took him to the hospital, where medical staff recommended admitting Tinius to the hospital’s psychiatric facility.[19] Admission required a urine sample, which the officers obtained through a physically forced catheterization.[20] Tinius was never suspected of any crimes, nor did he give his consent to the detainment and forced catheterization.[21]

On appeal, the court stated that the officers “were exercising their community caretaking functions when they transported Tinius to the hospital and later restrained him” while obtaining the urine sample, and that the officers’ actions did not create the basis for a tort claim.[22] Courts have justified other tortious conduct by officers under similar reasoning. For example, a man crying on the sidewalk ended in a physical encounter with police during which the man sustained serious injuries.[23]

The topic of police accountability has dominated recent news cycles, and a legal doctrine that enables officers to initiate stops, obtain evidence, and utilize force without a warrant and probable cause is dangerous. All Tinius did to suffer detention and forced catheterization was walk along the side of the road without a coat during the winter. Currently under the community caretaking doctrine, courts allow intrusive police conduct meant to protect citizens from potential self-harm. But is this right?

In response to this question, the Supreme Court recently limited the scope of the community caretaking doctrine in Caniglia v. Strom.[24] There, the Supreme Court stated that officers’ “caretaking duties” do not create “a standalone doctrine that justifies warrantless searches and seizures in the home.”[25] The Court reasoned that officer conduct must satisfy one of the four exceptions to the Fourth Amendment’s prohibition of unreasonable searches—(1) possessing a valid warrant, (2) entering amidst exigent circumstances, (3) rendering emergency aid to injured or imminently threatened individuals, and (4) acting as any normal citizen might act (ex., knocking on door)—but that the community caretaking doctrine by itself is insufficient to justify otherwise unexcused tortious conduct by an officer in a private home.[26]

Caniglia’s holding aims to limit the abusive nature of the community caretaking doctrine by preventing its application to home entry.[27] However, the effects of Caniglia are still uncertain, and the doctrines application to tortious police conduct outside the home remains unresolved.  Given the state of unrest in America today and the Supreme Court’s recent interest in this topic, it is likely these ambiguities will be fleshed out in coming jurisprudence.[28]

[1] Claire Lampen, What We Know About the Killing of Elijah McClain, The Cut, (last updated Sept. 1, 2021).

[2] Welfare checks, also called wellness checks, occur when police dispatch to determine if an individual is safe and healthy. While the term encompasses police responses to a variety of non-criminal activity, one example might be a family member calling to request an officer check on an elderly relative whom the caller suspects is ill, fallen, or even dead in their home, However, sometimes police initiate their own checks on individuals they feel are sick, mentally ill, or pose a danger to themselves or the community. See generally State v. Brumelow 289 So.3d 955, 956 (Fla. Dist. Ct. App. 2019).

[3] Lampen, supra note 1.

[4] Jonathan Smith et al., City of Aurora, Investigation Report and Recommendations 18 (Feb. 22, 2021),

[5] Id. at 10.

[6] Andrea L. Steffan, Law Enforcement Welfare Checks and the Community Caretaking Exception, 53 Loy. L.A. L. Rev. 1071, 1072 (2020) (“[A]t least one suburban police department made around 2,000 welfare checks in 2017.”)

[7] See, e.g., State v. Alexander, 124 Md.App. 258 (1998) (involving neighbors who called police suspecting their neighbor’s house had been burgled and officers entered home and discovered a large marijuana growing operation).

[8] See, e.g., Craig v. County of Santa Clara, No. 17-CV-02115-LHK, 2018 WL 3777363, at *1 (N.D. Cal. Aug. 9, 2018) (Involving officers checking on an unresponsive grandmother with welfare check resulting in grandfather being shot and killed by police).

[9] See, e.g., United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) (involving reports of a man who had been sitting slumped over in a field outside an apartment complex for hours and police later tackled and arrested after he attempted to flee officer’s detainment.).

[10] United States v. Rodriguez-Morales, 929 F.2d 780, 784 (1st Cir. 1991).

[11] Id.

[12] Cady v. Dobrowski, 413 U.S. 433, 441 (1973).

[13] See United States v. Rohrig, 98 F3d 1506 (6th Cir. 1996) (holding that loud music created exigent circumstances that justified warrantless entry into home).

[14] See Randall v. State, 101 N.E.3d 831 (Ind. App. 2018) (holding that man slumped over in his car created the need for emergency aid from officer).

[15] See Wilson v. State, 975 A.2d 877, 888 (2009) (“When the police act to protect the public in a manner outside their normal law enforcement function, many courts have applied the [public servant] doctrine to validate many warrantless searches.”).

[16] Id.  See also United States v. Jackson, 189 F.3d 502 (1999); Ermini v. Scott, 249 F.Supp.3d 1253 (2017); State v. Deneui, 775 N.W.2d 221 (S.D. 2009); State v. Pinkard, 785 N.W.2d 592 (Wis. 2010); United States v. Johnson, 410 F.3d 137, (4th Cir. 2005); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000). The vast majority of community caretaking cases involve warrantless searches, seizures, and entries.

[17] 321 F. Supp. 2d (N.D. Iowa 2004).

[18] Id. at 1069.

[19] Id.

[20] Id. at 1070.

[21] Id. at 1068–1070.

[22] Id. at 1084.

[23] Gallegos v. City of Colo. Springs, 114 F.3d 1024 (10th Cir. 1997).

[24] 141 S. Ct. 1596 (2021).

[25] Id. at 1598.

[26] Id.

[27] Id.

[28] For further reading on the community caretaking doctrine, see Matthew C. Shapiro, The Road to Fourth Amendment Erosion Is Paved with Good Intentions: Examining Why Florida Should Limit the Community Caretaker Exception, 6 FIU L. Rev. 351 (2011); David Fox, The Community Caretaking Exception: How the Courts Can Allow the Police to Keep Us Safe Without Opening the Floodgates to Abuse, 63 Wayne L. Rev. 407 (2018); Valerie Moss, The Community Caretaking Doctrine: The Necessary Expansion of the New Fourth Amendment Exception, 85 Miss. L.J. (2017); Mark Goreczny, Taking Care While Doing Right by the Fourth Amendment: A Pragmatic Approach to the Community Caretaker Exception, 14 Cardozo Pub. L. Pol’y & Ethics J. 229 (2015); Alyssa L. Lazar, Protecting Individuals’ Fourth Amendment Rights Against Government Usurpation: Resolutions to the Problematic and Redundant Community Caretaking Doctrine, 57 Duq. L. Rev. 198 (2019); Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U. Chi. Legal F. 261 (1998); Michael R. Dimino, Sr., Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L. Rev. 1485 (2009); Andrea L. Steffan, Law Enforcement Welfare Checks and the Community Caretaking Exception to the Fourth Amendment Warrant Requirement, 53 Loy. L.A. L. Rev. 1071 (2020).

By Itané O. Coleman 

On November 21, 2006, Kathryn Johnston was ninety-two. Police entered her home. They shot her six times. Killing her.[1]

On May 16, 2010, Aiyana Jones was seven. Police entered her grandmother’s home. They shot the child while sleeping. Killing her.[2]

Though Black men are often the face of police violence for a number of reasons, Black women and girls are susceptible to violence as well. Black women are only 13 percent of the female population, but account for 28 percent of unarmed deaths in the U.S.[3] The rise of campaigns, such as #SayHerName and #BlackLivesMatter, have attempted to curtail ignorance surrounding violence against Black women and girls, but their stories remain on the fringes of justice and accountability.

Since 2015, about 250 women have been fatally shot by the police in their homes or place of residence.[4] At least forty-eight of those women were Black,[5] and Breonna Taylor was one of them. The fatal events leading to her death are a viable starting point for noting the implications of a contributor to the unarmed deaths of Black women: no-knock warrants.

On March 13, 2020, plain-clothed police officers executed a no-knock search warrant, to enter Taylor’s Louisville, Kentucky, apartment.[6] Though the actual location officers were looking for was more than ten miles away from Taylor’s home,[7] they were under the belief that her apartment was being used for drugs. Taylor and Kenneth Walker, her boyfriend, were asleep when they heard banging at the door.[8] Fearing that their home was being burglarized, Walker grabbed a legal firearm and fired one shot in self-defense, injuring an officer.[9] The officers’ response to Walker’s warning shot manifested in the form of twenty-two rounds, eight of which fatally wounded Taylor.[10] No drug evidence was found[11] and the suspect the officers were looking for was in police custody at the time Taylor’s home was raided.[12]

As a result of these events, the Louisville Metro Council voted 26-0 in favor of Breonna’s Law, an ordinance that bans the enforcement of no-knock warrants. Louisville Metro Police Detective Joshua Haynes was also placed on administrative leave for executing the warrant that led to Taylor’s death,[13] but no officers have been charged for this unarmed killing. Many states have proposed bans on no-knock warrants as an attempt of policing reform. One victim of a no-knock raid gone wrong stated, “This is about race. You don’t see SWAT teams going into a white-collar community, throwing grenades into their homes.”[14] The 2013 death of Alberta Spruill as a result of police breaking into her apartment and setting off grenades is one of countless examples of Black lives being treated as criminal and disposable.[15]

According to David Alan Sklansky, a Professor of Criminal Law at Stanford, no-knock warrants disproportionately impact Black people and other people of color.[16] This policing tactic is a racialized product of the War on Drugs.[17] During the 1960s and 70s, no-knock warrants were disproportionately enforced in Black communities, reaffirming the perception that Blackness was synonymous with criminality.[18] In fact, no-knock warrants became so problematic that Congress repealed the statute authorizing their use due to reports of mistaken violent, and often illegal raids.[19] Despite the problematic nature of no-knock warrants, Supreme Court cases in the 1990s and early 2000s paved the way for their reemergence.[20]

In deciding the parameters of no-knock warrants, the Supreme Court ruled that the Fourth Amendment incorporates a knock-and-announce requirement.[21] In Wilson v. Arkansas,[22] the Court held that knock and announce is a factor in a reasonableness test of the Fourth Amendment, but not a requirement.[23] The Court did not specify instances that would make unannounced entries reasonable.[24] Instead, it delegated the task of determining the reasonableness of unannounced entries to state courts,[25] opening the door for unpredictable enforcement of no-knock warrants. In Richards v. Wisconsin,[26] the Supreme Court expanded the likelihood of unannounced entries by “explicitly approv[ing] of states giving magistrates the authority to issue no-knock warrants.”[27] Richards became the national standard for upholding searches conducted with no-knock warrants[28] because the Court imposed a reasonable suspicion standard that would allow officers to utilize discretion in announcing their presence.[29] The Court’s reasonableness standard “amounted to reasonable suspicion, meaning that a relatively low quantum of evidence was necessary for an action.”[30]

Though most states have a knock-and-announce statute on the books, state and federal courts often interpret exceptions to these statutes, such as the destruction of evidence and danger to police officers.[31] As a result of widespread judicial discretion regarding these warrants, they are routinely issued and are easier to get than most people would think.[32] Coincided with the rate of gun ownership in this country, no-knock warrants tend to result in violent and fatal outcomes.[33] As a result, public recognition of no-knock warrants as an aggressive and intrusive practice has grown. [34] Part of the problem is that no-knock warrants are often executed at night and fail to ensure the safety of civilians and officers.[35]

The death of Breonna Taylor is one of many examples of unarmed Black women impacted by no-knock warrants. Racialized police tactics require an understanding of the ways in which Black and Brown lives are balanced against police discretion. More often than not, the loss of Black and Brown lives do not outweigh implicit bias in U.S. policing. Though the path to racial injustice is long, 2020 has seen a heightened demand for learning and change. Thus, the death of Breonna Taylor should encourage interrogation of no-knock warrants and equitable reform.[36]

[1] Regina Jennings, From Slavery to Contemporary Genocide: A Literary and Linguistic Analysis of Why American Blacks Deserve Reparations, 18 Race, Gender, and Class 73, 75 (2011).

[2] 7-Year-Old Girl Accidentally Shot By Swat Team, ACLU, (last visited October 22, 2020).

[3] Marisa Iati et al., Nearly 250 Women Have Been Fatally Shot by Police Since 2015, Wash. Post, (Sept. 4, 2020),

[4] Id.

[5] Id.

[6] Aliss Higham, Breonna Taylor: Who Was Breonna Taylor? What Happened to Her?, Express, (June 5, 2020),

[7] Pilar Melendez, Louisville Cop Placed on Leave After Applying for Search Warrant in Breonna Taylor Case, Daily Beast, (June 10, 2020),

[8] Id.

[9] Id.

[10] Higham, supra note 6.

[11] David A. Sklansky & Sharon Driscoll, Stanford’s David Sklansky on the Breonna Taylor Case, No-Knock Warrants, and Reform, Stan. L. Sch., (Sept. 28, 2020),

[12] Melendez, supra note 7.

[13] Melendez, supra note 7.

[14] Brian Dolan, To Knock or Not to Knock? No-Knock Warrants and Confrontational Policing, 93 St. John’s L. Rev. 201, 226 (2019).

[15] Jennings, supra note 1, at 75.

[16] Sklansky & Driscoll, supra note 11.

[17] Dolan, supra note 14, at 211.

[18] Carl Suddler, The Color of Justice Without Prejudice: Youth, Race, and Crime in the Case of the Harlem Six, 57 Am. Stud. 57, 58 (2018).

[19] Dolan, supra note 14, at 211.

[20] Id. at 212.

[21] Adina Schwartz, Homes as Folding Umbrellas: Two Supreme Court Decisions on “Knock and Announce,25 Am. J. Crim. L. 545, 546 (1998).

[22] 514 U.S. 927 (1995).

[23] Schwartz, supra note 21, at 550.

[24] Id.

[25] Id.

[26] 520 U.S. 385 (1997).

[27] Dolan, supra note 14, at 213.

[28] Id.

[29] See Richards, 520 U.S. at 394.

[30] David M. Jones, What Does “Knock And Announce” Mean? An Analysis of Wilson v. Arkansas and Its Progeny, 26 Am. J. Crim. Just. 287, 293 (2002).

[31] Dolan, supra note 14, at 214.

[32] See id. at 223–24.

[33] Id. at 220.

[34] Id. at 207.

[35] Id. at 216.

[36] Several cities, such as San Antonio, Texas, and Santa Fe, New Mexico, have followed Louisville’s lead in banning no-knock warrants. Ray Sanchez, Laws Ending No-Knock Warrants After Breonna Taylor’s Death Are A ‘Big Deal’ But Not Enough, CNN, (October 10, 2020, 6:03 AM), Though most states allow no-knock warrants, Breonna’s Law has inspired a ban on the national level. Chantal Da Silva, Where Are No-Knock Warrants Legal? Bipartisan Bill Seeks Ban After Breonna Taylor’s Death, Newsweek., (June 12, 2020, 10:30 AM), After speaking with Taylor’s family concerning the tragedy, Senator Rand Paul introduced a bill called the Justice for Breonna Taylor Act, which if passed, would end no-knock raids in the United States. Id.

By: Hailey Cleek & Mike Garrigan

In 2014, David E. Abbott, a detective with the Manassas City Police Department in Virginia, investigated allegations that seventeen-year-old Trey Sims used his cell phone to send sexually explicit photographs and video recordings of himself to his fifteen-year-old girlfriend.[1] Detective Abbott obtained a search warrant authorizing photography of Sims’ naked body, including his erect penis. When Abbott executed the warrant, he allegedly demanded that Sims manipulate his penis to achieve an erection. Sims unsuccessfully attempted to comply with Abbott’s order. Detective Abbott died before the present case was filed. Sims therefore initiated this action against Kenneth Labowitz, the administrator of Abbott’s estate.

Suspect Sims brought a 42 U.S.C. § 1983 action[2] against the administrator of Detective Abbott’s estate, alleging that this search violated his Fourth Amendment right of privacy and that, as result of search, he was victim of manufactured child pornography. Traditionally, public officials are granted either absolute or qualified immunity from lawsuits when performing their official duties.[3] Qualified immunity is generally extended to police officers or other officials. Yet, actions taken by these officials with a “deliberate indifference” may impose liability.[4] The district court determined that the administrator was entitled to qualified immunity on the § 1983 claims. The Fourth Circuit heard arguments on whether a reasonable police officer would have known that attempting to obtain a photograph of a minor child’s erect penis, by ordering the child to masturbate in the presence of others, would unlawfully invade the child’s right of privacy under the Fourth Amendment.

Plaintiff’s Arguments

Plaintiff argued that while the Fourth Amendment does at times protect sexually invasive searches, Detective Abbott clearly violated personal privacy rights. In examining sexually invasive searches under the Fourth Amendment, courts balance “the invasion of personal rights caused by the search against the need for that particular search.”[5] Factors to determine this balance are: (1) the scope of the particular intrusion; (2) the manner in which the search was conducted; (3) the justification for initiating the search; and (4) the place in which the search was performed.[6] Courts have described such sexually invasive searches, including strip searches, as humiliating and demeaning.[7] In  King v. Rubenstein,[8] the Fourth Circuit previously held that sexually invasive searches relate to deep “interest[s] of bodily integrity,” which “involves the most personal and deep-rooted expectations of privacy.”[9]

Using these factors, Plaintiff-Appellant Sims illustrated the severe Fourth Amendment violations by Detective Abbott. Although Detective Abbott sought to obtain photographs of Sims’ erect penis for an evidentiary purpose, the Commonwealth ultimately agreed not to use the photographs of Sims’ body as evidence.[10] There was no need to take these photographs. Instead, Detective Abbot executed the search warrant by ordering teenager Sims to masturbate to obtain an erection in the presence of three armed officers.[11] Such alleged conduct would necessarily invade Sims’ bodily integrity, regardless if Sims’ body was not penetrated or physically harmed.[12] Plaintiff was humiliated throughout the reckless disregard of his bodily privacy; he deferred applying for college, despite his outstanding academic and extracurricular records.[13] Throughout the investigation and prosecution, he was mortified to face his peers.[14]

Plaintiff strongly asserted that Detective Abbott was not entitled to qualified immunity. Qualified immunity only protects public officials from constitutional violations when resulting from “reasonable mistakes.”[15] It does not protect “the plainly incompetent or those who knowingly violate the law.”[16] A Virginia police detective is properly charged with knowledge of laws criminalizing the creation of child pornography.[17] There is no exception for police officers. While there were fortunately no other related cases on point to illustrate a lack of exception, the Fourth Circuit has previously held that some facts of abuse are so clear that they do not require case law justification.[18] Beyond a passive excuse of following orders, Detective Abbott had no reason to believe that this search was reasonable. Yet, even with a warrant, Detective Abbott was not bound to seek or execute a plainly unconstitutional warrant.[19] The request of a prosecutor for a search is not nullifying to the responsibility to act reasonably. An officer cannot receive the protections of qualified immunity when asking a teenager to masturbate in front of three armed guards.

Defense’s Arguments

Labowitz asserted that Sims failed to state enough facts to support a Fourth Amendment violation.[20] Here, Labowitz argued that Abbott’s search neither placed Sims at risk of bodily harm nor physically invaded Sims’ body,[21] and therefore fell outside of Fourth Amendment protection. The defense used four arguments to assert that this search fell outside of Fourth Amendment protection. First, Labowitz cited several cases where valid search warrants were issued in similar circumstances–namely involving identifying scars, moles, and/or tattoos on a suspect’s genitalia.[22] Second, Labowitz observed that Abbott took no action that aimed to bring about an erection by Sims.[23] Third, Labowitz cited multiple cases that validate warrantless custodial strip searches of juveniles.[24] Finally, Labowitz argued that a photograph is not invasive, but even if it were, case law supports warrantless searches of a defendant’s physical person in certain circumstances.[25]

Labowtiz also argued that the district court properly recognized Abbott’s immunity. Qualified immunity protects government officials from civil liability as long as their conduct does not “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[26] Here, the key question was whether Abbott “acted as an objectively reasonable police officer would have acted under similar circumstances.”[27]  Labowitz offered three reasons why Abbott behaved as a reasonable police officer.[28] First, a reasonable officer would rely on a warrant an attorney directed him to seek. Second, a reasonable officer would conclude that strip search conducted at a detention center under a warrant is appropriate. Third, no reasonable officer would have thought that he was producing child pornography when acting under a search warrant.

Sexually Intrusive Search Jurisprudence Addresses Questions for Immunity

While the majority for the Fourth Circuit strongly condemned Detective Abbott’s actions and held that such alleged conduct necessarily invaded Sims’ bodily integrity and privacy rights,[29] Judge King, in a dissenting opinion, notes that the case raises distinct questions for qualified immunity.[30] He notes that Detective Abbott was acting pursuant to the advice of counsel and adhering to a court order.[31] It is a foundational rule to the legal system and independent judiciary that court orders should be respected, complied with, and obeyed among law enforcement officers.[32] Court orders ensure compliance with the rule of law in society, and public officials are bound by both the cultural and institutional weight afforded to judge’s decisions.[33] When a judicial officer, Judge King suggests, has issued a search warrant upon probable cause, it is “unreasonable to require the officer charged with executing the warrant to reject the judicial decision and disobey the court’s directive.”[34] Generally, citizens want officers to comply and follow court orders in respect for the rule of law

Although the rule of law encourages officers to comply with and follow warrants accordingly, an entire body of sexual search jurisprudence has emerged to establish limits on sexually invasive searches. In Illinois v. Lafayette,[35] the Supreme Court held that an officer cannot disrobe an arrestee publicly without justifying factors. In United States v. Edwards,[36] the Fourth Circuit held that an officer’s sexually invasive search was unlawful because the dangerous manner in which he removed the contraband outweighed the interest in retrieving contraband. Likewise, in Amaechi v. West,[37] the Fourth Circuit found no justification for an officer’s pat-down search to include touching arrestee’s buttocks and penetrating her exposed genitalia. While these cases involved warrantless searches, they highlight the plainly unreasonable nature of the present case, as sexually invasive searches generally only happen in exigent circumstances.[38] Officers are encouraged to follow the boundaries of the search warrant, yet citizens cannot be expected to tolerate an officer acting beyond the guided parameters of sexual search warrants. Here, the warrant did not authorize Abbott’s conduct of requiring Sims to masturbate in the presence of the officers.[39] There was neither an evidentiary justification nor valid reason to demand Sims to masturbate in the presence of others.[40]


A little over a month after the Fourth Circuit heard Sims v. Labowitz, the Children’s Justice Fund (“CJF”), a nonprofit organization dedicated to aiding victims of child sex abuse, filed an amicus brief in support of a rehearing.[41] CJF argued that the Fourth Circuit panel erred by defining “sexually explicit conduct” in a way that could have “potentially profound implications for this case and future plaintiff victims.”[42] The Court, CJF argued, eschewed four objective terms for a subjective term. “Sexual intercourse,” “bestiality,” “masturbation,” and “sadistic or masochistic abuse” are more or less objective while “lascivious exhibition of the genitals or pubic area” relies on subjective “Dost factors.”[43] CJF contended that masturbation is per se explicit conduct under 18 U.S.C. § 2256(2)(A) and bringing Dost factors into the analysis was “unnecessary and unwarranted.”[44]

On March 14, 2018, the Fourth Circuit granted the motion for rehearing. While the rehearing will likely only correct the definitional scope of “sexually explicit conduct,” Sims reinforces the limits of police immunity. Moving forward, public officials in Maryland, South Carolina, North Carolina, West Virginia, and Virginia are officially on notice that such unreasonable sexual search conduct is not permissible. In line with previous sexual search jurisprudence, the Fourth Circuit has reaffirmed the bodily integrity of individuals.




[1] Sims v. Labowitz, 877 F.3d 171 (4th Cir. 2017).

[2] This refers to lawsuits brought under Section 1983 of Title 42 of the United States Code. See 42 U.S.C. § 1983. Section 1983 provides an individual the right to sue state government employees and others acting “under color of state law” for civil rights violations.

[3] Janell M. Byrd, Rejecting Absolute Immunity for Federal Officials, 71 Cal. L. Rev. 1707, 1713 (1983).

[4] See Farmer v. Brennan, 511 U.S. 825, 843 (1994).

[5] Bell v. Wolfish, 441 U.S. 520, 559 (1979).

[6] Id.

[7] See, e.g., Mary Beth v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983).

[8] 825 F.3d 206 (4th Cir. 2016).

[9] Id. at 215.

[10] Brief for Appellant at 10–11, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[11] Id. at 8.

[12] Id. at 38 (“Manifestly, this amounts to ‘state intrusion[] into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience of a court.’”)(quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980)).

[13] Id. at 12.

[14] Id.

[15] Saucier v. Katz, 533 U.S. 194, 206 (2001).

[16] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[17] Brief for Appellant at 36, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[18] Clem v. Corbeau, 284 F.3d 543, 553 (4th Cir. 2002) (“[W]hen the defendants’ conduct is so patently violative of the constitutional right that reasonable officials would know without guidance . . .  closely analogous pre-existing case law is not required to show the law is clearly established.”).

[19] See Graham v. Gagnon, 831 F.3d 176, 183 (4th Cir. 2016)(“I]f no officer of reasonable competence would have requested the warrant… [t]he officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.”).

[20] Sims v. Labowitz, 877 F.3d 171, 177 (4th Cir. 2017).

[21] Id.

[22] Response Brief for Appellee at 10, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[23] Id. at 11.

[24] Id. at 12.

[25] Id. at 13.

[26] Harlow v. Fitzgerald, 457 U.S. 800 (1982).

[27] Defendant Estate of David Abbott’s Memoradum in Support of Motion to Dismiss Second Amended Complaint at 17, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[28] Response Brief for Appellee at 30, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[29] Sims v. Labowitz, 877 F.3d 171, 178 (4th Cir. 2017).

[30] Id. at 183 (J. King, dissenting).

[31] Id.

[32] Id.

[33] See Stephen G. Breyer, Judicial Independence in the United States, 40 St. Louis U. L.J. 989, 994-96 (1996)

[34] Sims v. Labowitz, 877 F.3d 171, 184 (4th Cir. 2017) (J. King, dissenting).

[35] 462 U.S. 640 (1983).

[36] 666 F.3d 877 (4th Cir. 2011).

[37] 237 F.3d 356 (4th Cir. 2001).

[38] Sims v. Labowitz, 877 F.3d 171, 182 (4th Cir. 2017).

[39] Id. at 182, n. 3.

[40] Id. at 180.

[41] Under Federal Rule of Appellate Procedure 27(b)(2), “[t]he United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.”

[42] Amicus Brief of the Children’s Justice Fund and Child USA in Support of the Plaintiff-Appellant Trey Sims at *4, Sims v. Labowitz, 877 F.3d 171 (2017) (No. 16-2174).

[43] Id. at *3.

[44] Id. at *8.

By: Matthew Welch & Gilbert Smolenski

On March 1, 2018, the United States Court of Appeals for the Fourth Circuit published an opinion for United States v. Brian Bowman.  The court held that Bowman’s Fourth Amendment right, freedom from unreasonable seizures, was violated and reversed the district court ruling.

I. Facts and Procedural History

In the predawn hours the morning of June 20, 2015, Officer Waycaster was patrolling on Route 25 in Henderson County, North Carolina.  He received a tip from the DEA that two individuals driving a red, older model Lexus could be narcotics runners.  The DEA also provided a license plate number for the car.  At 3:40 a.m., Officer Waycaster spotted an older red Lexus.  Rather than stopping the vehicle based on information from the DEA, Officer Waycaster followed the car “looking for [his] own infractions . . . for [his own] reason to stop the vehicle.”  When the vehicle weaved over a fog line and accelerated to 10 mph over the speed limit, Officer Waycaster pulled the vehicle over, suspecting that the driver may have been under the influence.  The government agrees that the DEA tip should not be considered in any legal analysis.

After stopping the vehicle, Officer Waycaster noticed two men in the vehicle: Bowman, the driver, and Alvarez, the passenger.  Officer Waycaster testified that Bowman appeared nervous because his hands were shaking, he failed to make eye contact with Waycaster, and that his carotid artery was moving, indicating an elevated heart rate.  Officer Waycaster did not see any alcohol or firearms in the vehicle, but he did notice an energy drink in the center console, food wrappers, and a suitcase in the back seat.  Officer Waycaster explained why Bowman was stopped and then asked Bowman to exit the vehicle and go to the patrol car so that Officer Waycaster could check his information.  Alvarez remained in the passenger seat the entire time.

After Bowman exited the vehicle, he consented to a weapons frisk.  Officer Waycaster found no weapons.  Officer Waycaster then told Bowman to sit in the patrol car while Waycaster ran his driver’s license and registration.  While Officer Waycaster was running Bowman’s information, he asked Bowman where he was coming from.  Bowman said that he was heading home after picking up Alvarez from Alvarez’s girlfriend’s house.  He said he was returning the favor because Alvarez had done the same for him in the past. When questioned about the address of Alvarez’s girlfriend’s house, Bowman said he did not know it but that it was in his car’s GPS.  Officer Waycaster also asked Bowman what he did for a living.  Bowman replied, saying that he was a welder but was currently unemployed.  Bowman also said that he recently bought the Lexus off Craigslist.  Officer Bowman testified that this was a suspicious activity because “it was a known practice with narcotics traffickers to either use rental vehicles or use multiple, different vehicles, or buy and sell vehicles to transport narcotics.”  Officer Waycaster, believing that Bowman was not under the influence, then issued Bowman a ticket for speeding and unsafe movement of the vehicle.

Bowman then began to exit the vehicle but Officer Waycaster asked if he could speak further with Bowman.  Bowman consented.  After another round of questions about what Bowman and Alvarez had been doing that night, Officer Waycaster, who was seated in the patrol car with Bowman said that he “was going to ask [Alvarez] questions if you don’t mind, okay?”  Bowman responded, “okay,” and remained in the vehicle.  As Officer Waycaster exited the patrol car he told Bowman, “just hang tight right there, okay.”  Bowman responded with, “oh, okay.”  Office Waycaster testified that at this point, Bowman was not free to get out of the patrol car because Waycaster had developed, from the traffic stop alone, reasonable suspicion of criminal activity.

Office Waycaster then went back to the Lexus and interviewed Alvarez about what had transpired before the two men were pulled over.  Alvarez’s story conflicted with Bowman’s.  Officer Waycaster then return to the patrol car and asked Bowman if there was meth in the Lexus, to which Bowman responded no.  Bowman then refused to let Officer Waycaster search the Lexus.  Thereafter, Officer Waycaster removed Alvarez from the Lexus and placed him in the patrol car with Bowman.  Then Office Waycaster summoned a K-9 team.  The K-9 team passed around the outside of the Lexus.  The dog alerted an officer that illegal narcotics were present in the vehicle.  Thereafter, Office Waycaster and the K-9 handler searched the interior of the car.  They found meth, digital scales, and containers of ammunition.

Bowman was charged with possession with intent to distribute methamphetamine.  Bowman filed a motion to suppress the methamphetamine evidence, arguing that Officer Waycaster unlawfully prolonged the completed traffic stop without consent or reasonable suspicion.  The district court followed the recommendation of the magistrate judge in denying the motion to suppress.  The magistrate judge admitted that Bowman was not free to leave the patrol car but that the prolonged detention was permissible because “Waycaster had a justified, reasonable suspicion that Defendant Bowman was engaged in criminal activity.” The judge said that the totality of the circumstances supported this finding.  Bowman then filed an appeal.

II. Standard of Review

The Fourth Circuit reviews the district court’s determination that the officer had a reasonable suspicion to prolong the traffic stop de novo.

III. Reasoning

First, a traffic stop must be reasonable.  Here, Bowman does not challenge the reasonableness of the traffic stop.  Bowman was swerving and traveling 10 mph over the speed limit.  Instead Bowman’s Fourth Amendment challenge rests on the unreasonableness of his prolonged detention in the patrol car. The Fourth Amendment allows an officer to conduct an investigation unrelated to the reasons for the traffic stop as long as it does not lengthen the roadside detention.  To extend the length of the detention beyond the time necessary to accomplish the traffic stop’s purpose, an officer must have reasonable suspicion or receive the driver’s consent.  Here, the officer did not receive Bowman’s consent or have a reasonable suspicion.

The government argued that Bowman consented to the prolonged detention when he said “okay” after Officer Waycaster asked him to “hang tight right there, ok?”  However, under a reasonable person standard, the court said that this was not consent by Bowman.  Bowman never had time to respond to Officer Waycaster before Waycaster exited the vehicle and many would feel they were not free to leave in a similar situation. Furthermore, Waycaster was not asking a question, instead he was instructing Bowman what to do.  Thus, when Bowman remained in the patrol car as the officer went to question Alvarez, the encounter was no longer a consensual one but instead became a non-consensual seizure.

After the Fourth Circuit concluded the search constituted a non-consensual seizure, the Court then analyzed whether Waycaster’s “prolonged seizure was justified by reasonable suspicion.”  The Court noted there is no precise definition for what constitutes reasonable suspicion.  Instead, reasonable suspicion is a commonsense, nontechnical standard that considers the realities of everyday life.  The bar for reasonable suspicion is less than the probable cause standard and the facts articulated by the stopping officer and trial court must be taken in their totality.  However, each factor can be analyzed separately by the court before being taken together in a full consideration of the circumstances surrounding the traffic stop.

The Fourth Circuit focuses on four specific factors in its analysis.  First, Waycaster noted that both Bowman and Alvarez appeared to be nervous.  However, a driver’s nervousness is not a good indicator since most citizens are nervous when dealing with police.  The record indicated that Bowman and Alvarez did not exhibit any signs of nervousness above the norm, and the government conceded Bowman was calm once exiting the vehicle.  Moreover, although a suspect’s increased heart rate, which can be evidenced by a suspect’s throbbing carotid artery, can help support there was a reasonable suspicion of criminal activity, the present facts do not show Bowman demonstrated nervousness beyond the norm. The fact that Bowman remained calm in the patrol car and failed to make eye contact with an officer is not indicative of criminal behavior.  Thus, the first factor weighed in favor of the Bowman.

Second, Waycaster stated that several articles in the car, specifically clothes, food, and an energy drink, helped give rise to a reasonable suspicion.  However, these items are consistent with innocent travel and “in the absence of contradictory information,” cannot reasonably imply criminal activity.  While Bowman may have made false statements about his travel plans, the government failed to connect that fact to any wrongdoing in the case.  Therefore, just the articles alone cannot be used to established untruthfulness, and subsequently reasonable suspicion.

Third, the district court noted that Bowman’s inability to recall Alvarez’s girlfriend’s address contributed to Waycaster’s reasonable suspicion.  But, the Fourth Circuit stated this was entirely reasonable, as it is clear from the video recording that Bowman repeatedly said he used the car’s GPS to find the house, and Waycaster could find the address by looking at the car’s GPS history.  The government failed to connect Bowman’s response with criminal activity, and the Fourth Circuit stated it is reasonable that Bowman did not know the address and was relying on GPS in a dark, unfamiliar area.

Finally, Waycaster believed Bowman’s vehicle purchases gave suspicion of criminal activity since he thought it was strange Bowman could afford to purchase multiple vehicles while unemployed and the use of multiple cars was a known practice of drug traffickers.  The Fourth Circuit readily disposed of Bowman’s vehicle purchasing habits, noting that Waycaster made “unsubstantiated assumptions.”  Even though Bowman was unemployed, there are numerous possible explanations to explain the car purchases that are all within the confines of the law.  Likewise, innocent travelers may use multiple vehicles, some of which they could buy from Craigslist, and that fact is entitled to little weight.

Consequently, none of the factors alone provide a basis for reasonable suspicion.  Even when looking at the totality of the circumstances, as mandated by precedent, the Fourth Circuit similarly found that the “combination of wholly innocent factors” did not give rise to reasonable suspicion.  Therefore, the Fourth Circuit reversed the district court, as Bowman’s motion to suppress should have been granted.


By Sophia Blair

On March 30, 2017, the Fourth Circuit issued a published criminal opinion, United States v. Hill. Donald Hill (“Hill”) pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). However, he appealed the district court’s denial of his motion to suppress his statements and a firearm seized during a traffic stop because he alleged that the police officers’ actions exceeded the scope of the stop. Specifically, he alleged that the stop continued beyond the justifiable amount of time needed, thereby violating his Fourth Amendment rights. The Fourth Circuit affirmed the district court’s dismissal of Hill’s motion to suppress because the stop’s duration was reasonable to complete the tasks incident to the stop.

Facts of the Stop

On October 20, 2014, two police officers patrolling in Richmond, pulled over a car because it was driving over the speed limit and crossed a double-yellow line. The officers recognized both Jeremy Taylor (“Taylor”), the driver, and Hill, the passenger from previous interactions. After Taylor produced his driver’s license, one of the officers returned to the police cruiser to confirm the identity of both men in the Department of Motor Vehicles database, and to check whether either of the men had outstanding warrants on the National Crime Information Center database. The officer discovered that Taylor’s license was suspended. The officer briefly interrupted writing the relevant summons to check for both men in the PISTOL system, which tracks individuals’ prior contacts with the police. There he found that both men were connected with drug activity and were “likely armed.” The officer in the patrol car called for a K-9 unit and continued writing the summons.

The second officer made small talk with both men while the first officer wrote the summons and asked them three times whether they had drugs or firearms in the car. After the third question, Hill admitted that he had a firearm on his person. The officer shouted “gun” and the K-9 unit arrived on the scene almost simultaneously. The district court determined that twenty minutes elapsed between the initiation of the stop and the time the gun was discovered.

Hill’s Claims

Hill argued that the length of the stop exceeded a lawful duration because the second officer talked to him and Taylor instead of helping the first officer search the databases. He also challenged the call to the K-9 unit and searching the PISTOL database. Hill argued that the cumulative effect was to deprive him of his Fourth Amendment Rights under Rodriguez v. United States, 135 S. Ct. 1609 (2015).

The Duration and Scope of the Stop Did Not Violate the Fourth Amendment

In order to be reasonable under the Fourth Amendment, a traffic stop must be legitimate at its inception and the officers’ actions during the stop must be reasonably related in scope to the basis for the stop. Because Hill did not contest that the stop was legitimate at its inception, the Fourth Circuit limited its analysis to whether the officers’ actions were reasonably within the scope of the basis for the stop.

Determining the reasonable length of a stop is not a mathematical endeavor; instead a court determines reasonableness by looking at what police in fact do and whether the officers acted reasonably under the totality of the circumstances. Additionally, officers may undertake investigative techniques unrelated to the underlying traffic infraction without offending the Fourth Amendment as long as the activity does not prolong the duration of the stop.

In analyzing the unfolding of the stop at issue, the Fourth Circuit did not observe any evidence that suggested that either of the officers delayed the completion of the traffic stop. The officers accounted for eighteen minutes of the twenty minute stop, and the Fourth Circuit did not find that the additional two minutes unlawfully extended the duration of the stop. Moreover, the first officer had not finished writing the summons when the second officer yelled “gun.”

The Fourth Circuit also held that the officer’s decision to search PISTOL did not violate the Fourth Amendment because the Fourth Amendment does not require the officers to use the least intrusive means possible to complete a stop. Searching PISTOL was material to the officers insuring their safety in furtherance of their duties. Because of the inherent safety risks  during a traffic stop, the Fourth Circuit also held that the second officer’s choice to stand by the stopped vehicle instead of helping to search the database was reasonable. Finally, requesting the K-9 unit did not violate the Fourth Amendment because the call did not extend the duration of the stop.


Because the officers exercised reasonable diligence in executing the traffic stop, the stop was not impermissibly prolonged. The Fourth Circuit affirmed the district court’s denial of Hill’s motion to suppress evidence.


By Sophia Blair

On October 27th, 2016, the Fourth Circuit reversed and remanded a civil case, Makia Smith v. Baltimore City Police Dep’t, to the District of Maryland after determining that the district court improperly admitted evidence under Federal Rule of Evidence 404(b) and the admittance resulted in reversible error.

Summary of the Facts and District Court Proceedings

On May 8, 2013, appellant Makia Smith (“Smith”) filed this action in the District of Maryland against the Baltimore City Police Department as well as individual officers Campbell, William Pilkerton, and Nathan Ulmer in their official capacity (collectively, “Appellee”). Smith alleged excessive force, deprivation of property without due process, and violations of the First and Fourth Amendments pursuant to 42 U.S.C. § 1983. Smith made additional state claims under Maryland law including intentional inflictions of emotional distress.

Smith claimed that, on March 8, 2012, two police officers observed her filming them as they arrested a juvenile in the middle of a street, and then battered and unlawfully arrested her. In a prior related criminal case, Smith was charged with second-degree assault of an officer, resisting or interfering with arrest, failing to display a license on demand, willfully disobeying a lawful order of the police, and causing a vehicle to obstruct a free vehicle passage of a roadway. The charges were dropped via a nolle prosequi disposition in January 2013.

The arresting officer, Nathan Church (“Church”), and Smith gave conflicting reports of the events that led to Smith’s arrest. Church testified that he received a call for back up at Hartford Road in Baltimore. When he arrived, there were juveniles running through the streets, and another officer, Talmadge Jackson (“Jackson”), was attempting to arrest a juvenile. As Church assisted Jackson in his efforts, he heard tires screech as multiple cars came to a stop. When he looked up, he saw Smith’s car blocking traffic and Smith standing behind her car holding her phone up, as if she was videotaping. Church and Smith’s account of events diverged from here: Church testifying that Smith was verbally aggressive, combative, and non-compliant, and Smith testifying that Church menaced and threatened her because he saw her videotaping.

On March 9, 2015, Smith filed a motion in limine to exclude all evidence of her prior arrests: second degree assault in 2005, fleeing and eluding in 2006, and second degree assault in 2010, none of which resulted in convictions. The district judge granted the motion, however the case was reassigned to a new judge prior to trial.

At trial, Appellee successfully introduced evidence of Smith’s three prior arrests as relevant to her claim for damages. Smith’s mother testified that the March 8, 2012 arrest had a significant emotional impact on Smith, supporting Smith’s claim of intentional infliction of emotional distress. Following the mother’s testimony, Appellee’s counsel argued that she had “opened the door” and gave Appellant’s counsel notice that they might bring the prior arrests in. Calling the mother’s testimony “overemotional” and “tainted with hearsay,” the district judge said he would let the prior arrests in;­ he felt they went to whether this arrest did cause Smith emotional distress.

When Appellee’s counsel introduced the prior arrests at trial, the district court gave limiting instructions and clarified that the prior arrests should only be considered with respect to the amount of damages awarded, not Smith’s credibility. At the conclusion of the trial, the jury returned a verdict in favor of the police officers on all counts.

Abuse of Discretion and Harmless Error

This issue on appeal was whether the district court erred in admitting evidence of Smith’s prior arrests. The Fourth Circuit analyzed whether there was an abuse of discretion and reversible error. An abuse of Discretion occurs where a district court “arbitrarily or irrationally” admits evidence. Additionally, citing United States v. Madden, the test for harmless error is whether “after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” The appeal turned on whether Smith’s prior arrests, which did not involve struggles with police, made it more or less probable that she suffered emotional damage.

Admittance of Prior Acts under FRE 404(b)

Federal Rule of Evidence 404(b)(1) prohibits the admission of evidence of prior arrests to prove a person’s character or to demonstrate that someone acted in accordance with that character on a particular occasion. Prior acts are admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident,” under Federal Rule of Evidence 404(b)(2). Pursuant to United States v. Garcia-Lagunas, the Fourth Circuit employs a four-part test to determine whether prior-act evidence is admissible: “(1) the prior-act evidence must be relevant to an issue other than character, such as intent; (2) it must be necessary to prove an element of the [claim]; (3) it must be reliable; and (4) its probative value must not be substantially outweighed by its prejudicial nature.” In this case, the Fourth circuit limited its analysis to relevance and prejudicial nature because they were the only elements that Smith raised on appeal.

Under FRE 404(b), admission of evidence of prior acts is admissible to help the jury determine the extent of damages as a non-character based purpose, but it must still have probative value on the question of damages. The alleged relevance of the prior arrests to damages in this case is whether those prior arrests were responsible, in whole or in part, for the emotional distress experienced by Smith. The Fourth Circuit stated that, because Smith’s emotional distress claim was based on the specific interactions with officers in this case, and because she testified that she had never had a similar experience with an officer before this case, the prior arrests were not relevant.

Furthermore, because Appellee’s counsel asked Smith if this was her “first rodeo” when introducing the prior arrest evidence, it was clear that the evidence was being offered for character and propensity, and not the extent of damages. Additionally, Appellee’s counsel made no record of the nature of Smith’s prior arrests, none of which included altercations with police officers. Therefore, the Fourth Circuit held that the evidence was barred from admittance by FRE 404(b).

Additionally, the Fourth Circuit held that the evidence of prior arrests here was too prejudicial, noting that this type of evidence “generally impugns character.” The court doubted that the jury drew the distinction between the significance of an arrest and a conviction. While the district court attempted to curtail prejudice by giving limiting instructions, the Fourth Circuit doubted the effectiveness of limiting instructions and the sufficiency with which they were explained to the jury. The district judge gave a limiting instruction when the evidence was admitted, but did not do so prior to jury deliberations. Also, the instructions did not mention “character” or “propensity,” nor did they confine the use of the evidence to damages. As a result, the Fourth Circuit determined that prejudice outweighed any possible probative value.

Harmless Error

The Fourth Circuit found that there was reversible error, as there was no assurance the improperly-admitted evidence did not substantially sway the jury. Because this was a classic “he-said-she-said” case, the jury’s view of the Smith’s credibility and character was central to the verdict. Additionally, because the limiting instructions given by the district court were inadequate, they were not sufficient to cure an error.


Therefore, the Fourth Circuit found abuse of discretion and reversible error, and reversed and remanded to the District Court of Maryland.




By Taylor Anderson

On January 11, 2016, the Fourth Circuit issued its published opinion regarding the civil case Estate of Ronald Armstrong v. Village of Pinehurst. The estate of Ronald H. Armstrong (“Appellant”), appealed the district court’s order granting summary judgment to various appellees, including the Village of Pinehurst, North Carolina (“Pinehurst”), Lieutenant Jerry McDonald (“Lieutenant McDonald”), Sergeant Tina Sheppard (“Sergeant Sheppard”), and Officer Arthur Gatling, Jr. (“Officer Gatling”). The Fourth Circuit affirmed the grant of summary judgment in appellees’ favor, holding that the appellees were entitled to qualified immunity in this case.

Police Intervene After Ronald H. Armstrong’s Hospital Incident

On April 23, 2011, Ronald H. Armstrong (“Armstrong”), who suffered from bipolar and paranoid schizophrenia, had been off of his prescribed medication for five days and was acting strange. His sister, Jinia Armstrong Lopez (“Lopez”) convinced Armstrong to accompany her to Moor Regional Hospital (“Hospital”) in Pinehurst, North Carolina. Armstrong willingly went to the Hospital and checked in, but during the course of evaluation, Armstrong became frightened and fled the emergency department. The examining doctor determined Armstrong to be a danger to himself and issued involuntary commitment papers to compel Armstrong’s return.

Lieutenant McDonald, Sergeant Sheppard, and Officer Gatling (collectively, “Appellees”) responded to this dispatch. When the Appellees arrived at Armstrong’s location, they engaged in conversation with Armstrong because the commitment order had not yet been finalized. As soon as the Appellees learned that the commitment papers were complete, they surrounded and advanced toward Armstrong. Armstrong reacted by sitting down and wrapping himself around a post that was supporting a nearby stop sign. The Appellees struggled to remove Armstrong from the post.

After about thirty seconds or so after struggling to remove Armstrong from the post, Appellees tasered Armstrong five separate times over a period of approximately two minutes. Shortly after the tasing ceased, Appellees removed Armstrong from the post and laid him facedown on the ground. During the struggle, Armstrong complained that he was being choked; however, no witness saw the police apply any chokeholds. Because of Armstrong’s continued resistance, Appellees handcuffed Armstrong and shackled Armstrong’s legs too. Appellees stood up to collect themselves and left Armstrong facedown in the grass. When the Appellees flipped Armstrong over, they saw that Armstrong’s skin had turned a bluish color and he did not appear to be breathing. Two of the Appellees administered CPR and the other radioed dispatch to send Emergency Medical Services. Armstrong was pronounced dead shortly after arriving to the hospital.

Based on the foregoing event, Appellant filed a complaint, suing each police officer involved in Armstrong’s seizure, pursuant to 42 U.S.C. § 1983, alleging that Appellees used excessive force. The district court granted summary judgment to Appellees, reasoning that “[i]t is highly doubtful that the evidence establishes a constitutional violation at all, but assuming it does, the defendants are entitled to qualified immunity.” Appellant filed a timely notice of appeal.

Appellant Established the Violation of a Constitutional Right

The Fourth Circuit began its “qualified immunity analysis” by pointing out that this analysis involves two inquires: (1) whether the plaintiff has established the violation of a constitutional right, and (2) whether that right was clearly established at the time of the alleged violation. Appellant’s case would survive summary judgment only if the Fourth Circuit answered both questions in the affirmative.

Turning to the first inquiry, the Fourth Circuit held that the Appellees conduct violated Armstrong’s Fourth Amendment right. Using the “objective reasonableness” standard as well as the factors enunciated in Graham v. Connor, the Fourth Circuit held that the level of force Appellees chose to use was not objectively reasonable because Appellees were merely confronted with a situation involving a few exigencies that justified only a limited degree of force. Tasing Armstrong exceeded this permissible, limited degree of force. The Fourth Circuit stated, “[i]mmediately tasing a non-criminal, mentally ill individual, who seconds before had been conversational, was not a proportional response.” For this reason, Appellees were not entitled to summary judgment on the question of whether they violated the Constitution because, viewing the record in the light more favorable to Appellant, Appellees used excessive force in violation of the Fourth Amendment. Therefore, the Fourth Circuit answered the first question of its “qualified immunity analysis” in the affirmative.

Appellees Entitled to Qualified Immunity

Turning to the second inquiry, the Fourth Circuit held that Armstrong’s specific Fourth Amendment right was not “clearly established” at the time of Appellees’ alleged violation. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity; therefore, the Fourth Circuit nevertheless affirmed the district court’s grant of summary judgment to Appellees.

Using Fourth Circuit precedent, the court stated that qualified immunity shields government officials from liability for civil damages, provided that their conduct does not violate “clearly established” statutory or constitutional rights within the knowledge of a reasonable person. The inquiry into whether a constitutional right is “clearly established” required that the Fourth Circuit first define the precise right into which it was inquiring. After defining that right, the court had to determine whether that right was clearly established at the time Appellees acted. A right satisfies this standard when it is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Therefore, if the constitutional right was “clearly established” at the time Appellees acted, Appellees were not entitled to qualified immunity.

The Fourth Circuit had no trouble in defining the precise right into which it was inquiring. The constitutional right in this case was Armstrong’s right not to be subjected to tasing while offering stationary and non-violent resistance to a lawful seizure.

However, once the Fourth Circuit turned to the second question as to whether this constitutional right not to be tased was “clearly established,” it held that the defined constitutional right was not so settled at the time that Appellees acted such that every reasonable official would have understood that tasing Armstrong was unconstitutional. The Fourth Circuit looked to tasing cases from other circuits when discussing how the law—in relation to tasing and excessive force—was unsettled at the time Appellees tased Armstrong; thus, not every reasonable official would have understood tasing was unconstitutional in this situation. For this reason, the Fourth Circuit concluded that Armstrong’s right not to be tased while offering stationary and non-violent resistant to a lawful seizure was not “clearly established” on the date he was seized. For this reason, the Fourth Circuit held that Appellees were entitled to qualified immunity.

Judgment Affirmed

The Fourth Circuit held that Appellees used unconstitutionally excessive force when seizing Armstrong, but the Fourth Circuit, nevertheless, agreed with the district court that Appellees were entitled to qualified immunity. For this reason, the Fourth Circuit affirmed the district court’s order granting Appellees’ motion for summary judgment.

One judge concurred in part as to the majority’s analysis of the Appellees’ qualified immunity defense; however, this judge wrote a concurring opinion to express his concern over the majority’s discussion on the merits of the excessive force claim. This judge felt as though the excessive force discussion was unnecessary and unwise.

The Coming Crisis in Law Enforcement and How Federal Intervention Could Promote Police Accountability in a Post-Ferguson United States[1]

Kami Chavis Simmons*


Officer Darren Wilson’s fatal shooting of Michael Brown has reignited a fierce debate about the issue of racial bias in law enforcement.[2] Although tensions between racial minorities and police officers have long existed in our nation, the civil unrest in Ferguson, Missouri following Michael Brown’s death has catapulted the issue to the forefront of the criminal justice reform agenda. The small St. Louis suburb has become synonymous with tanks, tear gas, and rubber bullets after many people gathered in the street and marched to express outrage at the shooting of the unarmed teen.[3] In the days that followed, supporters of Michael Brown, and even the journalists covering the unfolding events, experienced first hand the aggressive police tactics that many inner city urban residents have complained about for years.[4] The proliferation of aggressive, and sometimes militarized, police tactics represents the “coming crisis” in law enforcement, although many residents of these communities might argue that the crisis arrived long ago. Even more disturbing is that these heavy-handed police strategies are employed almost exclusively against racial and ethnic minorities.[5]

This crisis in policing will not only negatively impact police departments and hinder their efforts to keep the public safe, but this crisis will also have negative and lasting effects on the communities experiencing these tactics.[6] After decades of discussion devoted to “community policing,” the events surrounding Michael Brown’s shooting and the police treatment of supporters in the initial days following the shooting are symptoms of a larger endemic within local police departments in the United States.[7] Criminal justice advocates would agree that police brutality, racial profiling, and over-militarization of police forces represent core civil rights issues of the twenty-first century and deserve immediate attention.[8] Aggressive police strategies are typically reserved for marginalized members of society, and there is a consensus that minorities experience a greater rate of police brutality and misconduct than their white counterparts.[9] For example, one expert explains that “police are more likely to engage in force when dealing with members of outgroups (those who are poor or minority or gender non-conforming) than when dealing with members of ingroups.”[10] The existence and severity of biased policing and its detrimental impact on racial minorities are well documented.[11]

The recalcitrance of local police departments and municipalities to implement meaningful changes is equally well documented, and many jurisdictions with serious police accountability issues have required federal intervention.[12] Policing experts have identified several characteristics of organizational police culture, including group loyalty, aggressive police tactics, and ineffective supervision and discipline of police officers, that lead to a lack of accountability and exacerbate police-community tensions.[13] These institutional factors make it difficult to properly investigate allegations of wrongdoing, including racial profiling and police brutality.

This Essay argues that in order to alleviate racial bias in policing and gain the trust and legitimacy of police officers in racially and ethnically diverse communities, local police departments must not only ensure that they are hiring police officers capable of implementing community policing, but must also focus on institutional reforms of the larger police organization. Increased transparency and accountability, as well as meaningful involvement of community members, will be hallmarks of any reform agenda aimed at curing the coming crisis in law enforcement. This Essay also addresses the important role that the federal government can and should play in achieving these goals.

I. The Importance of Addressing Bias in the Criminal Justice System

A.     Perceptions of Biased Policing Create Distrust

Given the history that our nation’s racial and ethnic communities have had with law enforcement, it is not surprising that there is widespread distrust among racial minorities when it comes to law enforcement.[14] Nearly every major moment of civil unrest in the last sixty years—including those in the Watts section of Los Angeles in 1965, Los Angeles in 1992, Cincinnati in 2001, Oakland in 2009, and most recently Ferguson, Missouri—can be linked to an incident sparked by allegation of police misconduct. Even more sobering is that each of the victims of the purported misconduct has invariably been a black male.[15] These historical events live alongside the countless anecdotal experiences with police officers that many blacks share with each other.[16] These experiences undoubtedly contribute to the negative views that blacks have regarding law enforcement. For example, a 2014 study showed that seventy percent of blacks say that police officers do a poor job of treating racial and ethnic groups equally.[17] An identical percentage of blacks say police departments around the country do a poor job in holding officers accountable for misconduct.[18] Unfortunately, even police officers themselves have acknowledged some degree of racial bias among their colleagues. For example, the Christopher Commission found that in Los Angeles, 24.5% of the 650 officers surveyed believed that “racial bias on the part of officers toward minority citizens currently exists and contributes to a negative interaction between police and the community.”[19] There is also empirical evidence to suggest that these biases are not merely perceptions, given that racial minorities are disproportionately the victims of police brutality.[20]

B.     Negative Implications of Distrust

The recent unrest in Ferguson underscores the need to address the underlying issues that sparked the community’s outrage. Unfortunately, the issues surrounding the Michael Brown shooting are not unique to Ferguson, and many residents of racially diverse communities have perceptions of racial bias in policing. For example, in New York, the stop-and-frisk policy has faced fierce criticism with many arguing that the policy is implemented in a racially discriminatory manner.[21] The full impact that this practice has had on police-community interactions is yet to be seen, but there is evidence that stop-and-frisk, as implemented by the New York Police Department, has alienated many residents of neighborhoods where it has been enforced.[22] A recent study by the Vera Institute for Justice found that young people who have been stopped more than once are less willing to report crimes to police, even when they are the victims.[23] Also, only four in ten people surveyed for the study said that they would be comfortable seeking help from the police if they were in trouble.[24] These troubling findings show that the people in communities where stop-and-frisk policies have been implemented not only distrust police when they are the subjects of stops or investigations, but they also do not even trust police to adequately help them when they are in need.

Furthermore, numerous studies demonstrate how poor police-community relations may negatively impact a community. In order to engage in effective crime detection and prevention, police officers need the trust and cooperation of residents.[25] It can be difficult to form those helpful partnerships if residents have no faith in the legitimacy of the law enforcement institution.[26] In addition to the negative implications for the communities as a whole, perceptions of racial bias in policing negatively impact individuals as well. The stigma and marginalization of the victims of racial bias exact a heavy psychological toll.[27] Despite many studies and the findings of several independent commissions charged with examining and addressing the issues of racial disparity in law enforcement,[28] the realities and perceptions of racial bias in policing persist. However, there are several concrete policy solutions the federal government could use to alleviate police-community tension and increase the transparency that is often lacking in law enforcement agencies.

II. The Federal Government’s Critical Role in Police Reform

In the wake of the Michael Brown shooting in Ferguson, there were calls for the federal government to initiate an investigation. The symbolism of a federal investigation into allegations of police misconduct and civil rights abuses should not be underestimated.   Criminal justice issues are typically viewed as “local issues,” but federal intervention is sometimes necessary where the local government has neither the resources, nor the resolve to ensure a fair proceeding or the implementation of sustainable reforms.[29] Furthermore, federal intervention can be particularly symbolic where the local community does not trust the local officials to conduct a complete investigation.[30]

While federal intervention can have a powerful symbolic impact in restoring faith and trust, there are several tangible solutions the federal government could offer to alleviate racial bias and increase transparency. The federal government could be a powerful engine to encourage reform by offering technical assistance to local jurisdictions, ensuring they meet minimum standards of accountability, and by providing monetary support to local communities, incentivizing innovation in the development of effective and sustainable reforms.

A.     Federal Dollars Should Incentivize Local Police Departments to Improve Hiring Practices and Promote Diversity

Community policing requires more than just investigating and responding to crime. This form of policing requires police officers to engage the community to set criminal justice priorities and to form partnerships that serve public-safety goals.[31] One of the primary tenets of community policing is for the community and police to work alongside each other toward the mutual goal of improving public safety.[32] Therefore, local police departments should pay attention to the types of officers they hire, and should focus on whether these officers have the “soft” skills necessary to engage with the community, while still providing effective law enforcement. This model of policing requires a different skill set than just effectuating arrests and arming someone with paramilitary equipment. Effective community policing requires good communication, interpersonal skills, and the ability to engage in problem solving.[33]

Furthermore, it is important that police departments make efforts to diversify their ranks such that the department reflects the diversity of the community it serves. During the unrest in Ferguson, many commentators focused on the fact that while the city was sixty-seven percent black, there were only three nonwhite members of the police force.[34] Such lack of racial diversity unsurprisingly sends the wrong message to residents. For example, as Paul Frymer and John D. Skrentny have noted, “to police a minority community with only white police officers can be misinterpreted as an attempt to maintain an unpopular status quo rather than to maintain the civil peace.”[35]

Thus, there has been much focus on increasing the diversity of local police departments. The view is that “minority officers can break down prejudice and stereotypes in the minds of majority officers, and . . . minority officers are better able to police a minority community because of their familiarity with the culture.”[36] Moreover, studies show that black officers “get more cooperation than white officers from black citizens and that black officers are less prejudiced against blacks and know more about the black community.”[37]

The federal government has provided funding to local law enforcement agencies for developing innovative programs designed to recruit and retain police officers to implement community policing, and many of these efforts have specifically funded projects that engage community members in the hiring process. Hiring in the Spirit of Service (“HSS”) was a federally funded project in which police departments recruited community residents to assist the department in the hiring process.[38] Participating agencies included: Burlington, Vermont; Sacramento, California; Detroit, Michigan; Hillsborough County, Florida; and King County, Washington.[39] The HSS program should be reevaluated and present in other jurisdictions to encourage police departments to involve community members in the hiring process. Involving the community at this early stage might encourage strong partnerships and help rebuild trust and legitimacy where it is lacking.

However, it is important to note that there is also conflicting evidence on whether more diverse police forces actually improve police-community relations. For example, there are studies finding that

black officers shoot just as often as white officers; that black officers arrest just as often as white officers; that black officers are often prejudiced against black citizens; that black officers get less cooperation than white officers from black citizens; and that black officers are just as likely, or even more likely, to elicit citizen complaints and to be the subject of disciplinary actions.[40]

This evidence suggests that black officers are subject to the same strong institutional factors that other officers experience. Therefore, it is important to ensure that the police organizational culture reflects standards of integrity and accountability regardless of the level of diversity within a police department.[41]

B.     The Federal Government Must Vigorously Enforce Its Pattern or Practice Authority to Require Reform of Local Law Enforcement Agencies

There is widespread consensus among police experts that police officers are operating within a larger organization, and that the organizational culture of a local police department can have a powerful impact upon individual officers.[42] Prior to 1994, it was not legally possible for the government to require a local police department to institute reforms directed at the organizational culture.[43] However, with the enactment of 42 U.S.C. § 14141, the federal government now has the authority to address the institutional factors that lead to distrust and a lack of public accountability. The “pattern or practice” authority of the U.S. Department of Justice (“DOJ”) has been used to implement organizational reforms in several jurisdictions, and the government currently has an investigation pending in Ferguson.[44] DOJ has reached agreements with several local police departments, and many of these agreements specifically include provisions to develop and implement written policies against discrimination in policing, including: nondiscrimination in traffic stops; documentation of all traffic stops by recording the driver’s race, ethnic origin, and gender; the reason for the stop and the nature of any post-stop actions; improved supervisory review of traffic stops; implementation of early warning tracking systems to identify officers who receive multiple complaints; and development and review of “use of force” policies.[45] These reforms are all aimed at increasing transparency and accountability within the department. In addition to training and developing policies to increase transparency, future agreements should squarely address issues related to promoting a diverse police department, as well as to implementing community policing.

One critique of this legislation, because it is enforced at the discretion of the Attorney General, is that enforcement may vary based upon changes in political whims, enforcement priorities within DOJ, or resource allocations.[46] Similarly, it is practically impossible for the small group of attorneys at DOJ to investigate, sue, or negotiate agreements with all of the departments nationwide that might warrant this intervention. Typically, the government has initiated investigations after a high-profile case brings attention to underlying problems. For example, the Michael Brown shooting death, although perhaps the most serious allegation of police misconduct, was not the first in Ferguson. Prior to the shooting, there had been evidence that the department disproportionately stopped black residents.[47] However, it was not until the public outcry that the federal government initiated the investigation.

While the federal government can wield a powerful weapon in the battle against police misconduct, it should not bear the sole responsibility for holding local police departments accountable. States should be encouraged to enact pattern or practice legislation based upon the federal pattern or practice legislation. In the absence of such legislation at the state level, the federal government can still play a vital role in encouraging reform and experimentation at the local level. Since 1994, the Office of Community Oriented Policing Services (“COPS”) has distributed over $12 billion of federal money to states.[48] Similarly, the federal government can also use its spending power to withhold federal funds from departments that consistently demonstrate patterns of unconstitutional conduct. Furthermore, COPS funding can be used to incentivize local police departments to create innovative training, recruitment, and reform agendas.[49]


While it is important to increase diversity within local police departments, it is perhaps more important to have officers who demonstrate the skills necessary to implement a policing model that engages rather than alienates the community. Police departments must focus on the types of officers they hire. It is logical that psychological testing of police department candidates should include tests that seek to determine the level of implicit biases an officer may harbor against particular groups. Police departments should also focus on the interpersonal skills of their officers. For example, can the officer communicate effectively with residents? Will the officer develop, or at least attempt to implement, creative solutions for crime detection and prevention? Most importantly, regardless of the officers a department hires, it is imperative that these officers are working in an organizational culture that does not tolerate or cultivate police misconduct.

            *Professor of Law and Director of the Criminal Justice Program at Wake Forest University School of Law. J.D., Harvard Law School. B.A., The University of North Carolina at Chapel Hill. The Author would like to thank Ashley Brompton and Kelsey Kolb for their invaluable research assistance.

[1].   I have borrowed a portion of my title from the 1998 essay by Dan M. Kahan and Tracey L. Meares published in the Georgetown Law Journal entitled The Coming Crisis of Criminal Procedure. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1153 (1998). In this essay, Kahan and Meares argued that the continued adherence to antiquated rules of criminal procedure that initially were developed to protect previously disenfranchised groups represented the “coming crisis in criminal procedure.” Id. Kahan and Meares argued that it was no longer necessary to adhere strictly to certain rules in criminal procedure because these groups had achieved an increased level of political power and now could determine the scope of their own rights. Id. at 1154. Nearly fifteen years later, I contend, instead, that the crisis in criminal procedure has arrived and it can be characterized by aggressive police tactics, racial bias in policing, and a lack of accountability of law enforcement officers, all of which are largely due to a continued lack of political power of underrepresented groups.

      [2].   On August 9, 2014, Officer Darren Wilson fatally shot an unarmed teen, Michael Brown, in Ferguson, Missouri, sparking several vigorous protests and clashes with police. See Julie Bosman & Emma G. Fitzsimmons, Grief and Protests Follow Shooting of a Teenager, N.Y. Times, Aug. 11, 2014, at A11; Adeel Hassan, Your Friday Briefing, N.Y. Times (Aug. 15, 2014), (identifying the officer responsible for the shooting).

      [3].   Monica Davey et al., Missouri Tries Another Idea: Call in Guard, N.Y. Times, Aug. 19, 2014, at A1.

      [4].   Abby Phillip, Police in Ferguson Arrest and Threaten More Journalists, Wash. Post (Aug. 18, 2014),

      [5].   For example, it is widely known that “[r]esidents of poor neighborhoods are more frequently subject to searches of their person in the form of overly aggressive stop and frisk tactics.” Amelia L. Diedrich, Secure in Their Yards? Curtilage, Technology, and the Aggravation of the Poverty Exception to the Fourth Amendment, 39 Hastings Const. L.Q., 297, 317 (2011).

      [6].   See Kami Chavis Simmons, Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem, 18 Wash. & Lee J. Civil Rts. & Soc. Just. 25, 41–43 (2011) (detailing the harms of racially biased policing and aggressive law enforcement tactics).

      [7].   Community policing has been defined as a form of policing that “emphasizes problem-solving and partnerships between police and the communities they serve.” Kami Chavis Simmons, Stakeholder Participation in the Selection and Recruitment of Police: Democracy in Action, 32 St. Louis U. Pub. L. Rev. 7, 8 (2012).

      [8].   See, e.g., Michael R. Smith, Depoliticizing Racial Profiling: Suggestions for the Limited Use and Management of Race in Police Decision-Making, 15 Geo. Mason U. C.R. L.J. 219, 219 (2005) (arguing that “racial profiling, a term virtually unheard of five years ago, is now part of the national lexicon” being that “[t]he last several years have seen a growing crescendo of voices concerned over racial discrimination by America’s law enforcement agencies”); Sheila A. Bedi, Seeking Transformative Justice in Ferguson, Dearborn, and Beyond, Huffington Post (Sept. 3, 2014, 12:07 PM), (finding that both “the over-militarization of our police,” and “cops around the country behav[ing] with impunity, despite national movement-based efforts to integrate transparency and accountability into policing” are to blame for the events in Ferguson); Kara Dansky, The Real Reason Ferguson has Military Weapons, CNN (Aug. 19, 2014, 6:03 PM), (“What we’re witnessing is the militarization of policing,” which “has become commonplace in towns across America.”). Another related issue is the school-to-prison pipeline, which represents a phenomenon where students go directly from school into the prison system, as well as the vast racial disparities in the U.S. education and criminal justice systems. Chauncee D. Smith, Deconstructing the Pipeline: Evaluating School-to-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework, 36 Fordham Urb. L.J. 1009, 1018–20 (2009).

      [9].   See, e.g., Human Rights Watch, Race as a Factor, in Shielded from Justice: Police Brutality and Accountability in the United States (1998), available at; Charles J. Ogletree, Jr. et al., Beyond the Rodney King Story: An Investigation of Police Conduct in Minority Communities 6–7, 16–17 (1995) (discussing police officers’ disproportionate use of excessive force against inner city residents and minorities, which has become “commonplace” and is often caused by “the forces of racism and police militarism”); Ronald Weitzer & Steven A. Tuch, Race and Policing in America: Conflict and Reform 71–72 (2006) (finding that “blacks and Hispanics are at heightened risk of mistreatment by police,” with “[y]oung minority males [being] significantly more likely” to report having experienced mistreatment by police than their older minority male, same-age minority female, and white male counterparts); Clifford L. Broman et al., The Experience and Consequences of Perceived Racial Discrimination: A Study of African Americans, 26 J. Black Psychol. 165, 174–75 (2000) (examining data that suggests younger blacks are more likely to experience discrimination from the police than older blacks, and black males are more likely than black women to perceive discrimination from the police); Craig B. Futterman et al., The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department’s Broken System, 1 DePaul J. for Soc. Just. 251, 283 (2008) (finding that among a sample of police officers from the Chicago Police Department, abuse against civilians was more prevalent with those who were working in “certain parts of the City—generally lower-income African American and Latino communities”); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 388–90 (1998) (providing an example of the New York City police force, which claims to be “the nation’s most professional and well-trained police force,” and yet “deadly force, brutality, and abuse of power by officers remains a problem in [the city’s] minority communities”).

    [10].   I. Bennett Capers, Crime, Surveillance, and Communities, 40 Fordham Urb. L.J. 959, 982 (2013) (citing statistical evidence presented in Tennessee v. Garner, 471 U.S. 1 (1985), that showed “significant disparities in the use of deadly force based on the race of the shooting victim/suspect and that virtually all of this disparity occurs as a result of the Memphis policy that allows officers to exercise their discretion to shoot fleeing property crime suspects”).

    [11].   For example, in 1968, The National Advisory Commission on Civil Disorders (also known as the Kerner Commission), found that “[a]lmost invariably the incident that ignites disorder arises from police action. Harlem, Watts, Newark and Detroit—all the major outbursts of recent years—were precipitated by arrests of Negroes by white officers for minor offenses.” Otto Kerner et al., Report of the National Advisory Commission on Civil Disorders 93 (1968). As a result, “to many Negroes police have come to symbolize white power, white racism, and white repression.” Id. Yet, “many police do reflect and express these white attitudes. The atmosphere of hostility and cynicism is reinforced by a widespread perception among Negroes of the existence of police brutality and corruption and of a ‘double standard’ of justice and protection—one for Negroes and one for whites.” Id.

    [12].   The U.S. Department of Justice has intervened in Seattle, New Orleans, Los Angeles, and Oakland, among others. Justin Worland, These 4 Cities Show What Federal Intervention Could Look Like in Ferguson, Time (Aug. 15, 2014), available at

    [13].   See Kami Chavis Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 373, 381–89 (2010) (describing police organizational culture).

    [14].   I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 2 (2011) (noting that underenforcement, overenforcement, and “testilying” in cases involving minority defendants is pervasive and that these methods of policing contribute to racial tension and continuing high levels of distrust between minorities and police).

    [15].   See Cynthia Lee, “But I Thought He Had a Gun”: Race and Police Use of Deadly Force, 2 Hastings Race & Poverty L.J. 1, 23 (2004) (noting that the 2001 riots in Cincinnati were incited by citizen indignation of perceived brutality against African American males after six years of police shootings killed fifteen African American males); Bryce Clayton Newell, Crossing Lenses: Policing’s New Visibility and the Role of “Smartphone Journalism” as a Form of Freedom-Preserving Reciprocal Surveillance, 2014 U. Ill. J.L. Tech. & Pol’y 59, 66–67 (noting that riots in Oakland, California started after a white officer was convicted of involuntary manslaughter, rather than murder, in the shooting death of Oscar Grant, a young, black man, who was shot for “resisting restraint”); L. Darnell Weeden, Johnnie Cochran Challenged America’s New Age Officially Unintentional Black Code; A Constitutionally Permissible Racial Profiling Policy, 33 T. Marshall L. Rev. 135, 148 (2007) (noting that the Watts Riots started after eye witnesses reported that white police officers used excessive force in arresting two African American suspects).

    [16].   See, e.g., Michaela Angela Davis, Black Moms Shouldn’t Have to Have ‘The Talk,’ CNN (Aug. 25, 2014, 10:03 AM),

    [17].   Pew Research Ctr., Few Say Police Forces Nationally Do Well in Treating Races Equally 2 (2014), available at

    [18].   Id.

    [19].   See Indep. Comm’n on the L.A. Police Dep’t, Report of the Independent Commission on the Los Angeles Police Department 69 (1991) [hereinafter The Christopher Commission], available at

    [20].   See I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 846 (2008) (citing statistical information that blacks and Hispanics are disproportionately victims of police violence); see also Amnesty Int’l, United States of America: Police Brutality and Excessive Force in the New York City Police Department 27 (1996), available at (reporting that nearly all victims who died in New York City police custody between 1988 and 1995 were racial minorities).

    [21].   See Steven Zeidman, Whither the Criminal Court: Confronting Stops-and-Frisks, 76 Alb. L. Rev. 1187, 1195, 1197 (2012–2013) (“[T]he NYPD brazenly uses Terry to defend, and perpetuate, vast numbers of stops-and-frisks and enormous racial disparities in who gets stopped.”).

    [22].   See Jennifer Fratello et al., Coming of Age with Stop and Frisk: Experiences, Self-Perceptions, and Public Safety Implications 16 (Vera Inst. for Justice 2013), available at (discussing public perceptions of New York City police, in light of the stop-and-frisk policy wherein only fifteen percent of those polled believed that the police were honest and only twelve percent believe that residents of their neighborhood trust the police).

    [23].   Id. at 17.

    [24].   Id. at 15–16.

    [25].   Tom R. Tyler & Jeffery Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities, 6 Ohio St. J. Crim. L. 231, 233 (2008).

    [26].   Id. at 238–39.

    [27].   See, e.g., Fratello et al., supra note 22, at 19 (citing two studies that found an increase in “deviant persona and behavior” by individuals who were frequently stopped by police officers).

    [28].   See, e.g., William J. Bratton, Neighborhood Policing: A Plan of Action for the Boston Police Department 29 (1992), (examining the Boston Police Department and its relation to racial tensions in the community); The Christopher Commission, supra note 19, at 3–4 (explaining that the Christopher Commission was formed in 1991 to study the Los Angeles Police Department in the wake of the Rodney King beating); Milton Mollen et al., Report of the Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department 1 (1994), (explaining how the Mollen Commission was formed in 1992 to study the New York City Police Department and racial tensions that had been a major issue).

    [29].   See 42 U.S.C. § 14141 (2006) (authorizing the Attorney General to conduct investigations and, if warranted, file civil litigation to eliminate a “pattern or practice of conduct by law enforcement officers . . . that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States”); see also Special Litigation Section Cases and Matters, U.S. Dep’t of Just., (last visited Sept. 25, 2014) (linking to cases and matters in Los Angeles, the District of Columbia, Portland, East Haven, and several other cities that have experienced federal intervention into criminal justice issues).

    [30].   Robert N. Driscoll, Don’t Expect the Feds to Find Much in Ferguson, Nat’l Rev. Online (Aug. 16, 2014, 4:00 AM), (“The community in Ferguson . . .  demand[s] ‘justice,’ including the prosecution of the officer for murder, or in the alternative, prosecution by the United States Department of Justice Civil Rights Division for violation of Brown’s civil rights.”).

    [31].   Simmons, supra note 7.

    [32].   Id.

    [33].   David L. Carter, Human Resource Issues for Community Policing, Mich. St. U. Sch. Crim. Just. 1, 1 available at (last visited Sept. 28, 2014) (describing some of the characteristics necessary for police officers doing community policing); Ellen Scrivner, Innovations in Police Recruitment and Hiring: Hiring in the Spirit of Service, U.S. Dep’t of Just. 81, 87–96 app. A, available at (last visited Sept. 28, 2014) (explaining the various competencies that should be evaluated during the hiring process within police departments, as well as positive and counterproductive behaviors of potential officers, as outlined by the California Commission on Patrol Officer Psychological Screening Dimensions).

    [34].   Glenn E. Rice & Tony Rizzo, Like Ferguson, Area Police Departments Lack Racial Diversity, The Kansas City Star (Aug. 25, 2014, 1:46 PM),

    [35].   Paul Frymer & John D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the New Significance of Race in America, 36 Conn. L. Rev. 677, 691 (2004).

    [36].   Id.

    [37].   David Alan Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209, 1224–25 (2006).

    [38].   See Ellen Scrivner, U.S. Dep’t of Just. Off. of Cmty. Oriented Policing Servs., Innovations in Police Recruitment and Hiring: Hiring in the Spirit of Service 16 (2006), available at

    [39].   Id. at 11.

    [40].   Sklansky, supra note 37, at 1124.

    [41].   See Simmons, supra note 6, at 46–47.

    [42].   See Simmons, supra note 13, at 381 (noting that the basis of police misconduct is the organizational culture of police departments); see also Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 455 (2004) (asserting that it is a mistake to view misconduct as the result of the flawed judgments of individual officers rather than as induced by an organizational culture); Samuel Walker, The New Paradigm of Police Accountability: The U.S. Justice Department “Pattern or Practice” Suits in Context, 22 St. Louis U. Pub. L. Rev. 3, 24 (2003) (noting that it is the organizational culture of law enforcement agencies and not the conduct of individual officers that breeds police misconduct).

    [43].   See 42 U.S.C. § 14141 (2006).

    [44].   Pete Williams, Justice Department to Investigate Ferguson, Missouri, Police, NBC News (Sept. 3, 2014, 8:32 PM),

    [45].   See, e.g., Memorandum of Understanding Between, The Montana Attorney General, The Missoula County Attorney’s Office, Missoula County, and The United States Department of Justice (June 10, 2014), available at (listing the different procedures the police department was required to implement pursuant to the written policy).

    [46].   See Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489, 515–19 (2008) (citing lengthy investigation periods, lack of aggressive enforcement, and lack of political will among critiques of § 14141).

    [47].   In 2013, the Ferguson Police Department stopped 686 whites compared to 4632 blacks. Mo. Att’y Gen.’s Office, Racial Profiling data: Ferguson Police Department 1 (2013), available at
/2013/reports/161.pdf. According to the Missouri Attorney General’s Office, the disparity index (the proportion of stops divided by the proportion of the population) is .38 for whites and 1.37 for African-Americans. Id. A disparity index value greater than 1 indicates over-representation and a disparity index value less than 1 indicates under-representation. Id.

    [48].   See Drew Diamond & Deirdre Mead Weiss, Dep’t of Cmty. Oriented Policing Servs. U.S. Dep’t of Just., Community Policy: Looking to Tomorrow 38 (2009), available at

    [49].   See generally Kami Chavis Simmons, Cooperative Federalism and Police Reform: Using Congressional Spending Power to Promote Police Accountability, 62 Ala. L. Rev. 349 (2011) (explaining of how the federal spending power might be used to encourage police reform at the local level).

PDF, Coming Crisis in Law Enforcement, Kami Chavis Simmons