An Argument Against Unbounded Arrest Power: The Expressive Fourth Amendment and Protesting While Black

Protesting is supposed to be revered in our democracy, considered “as American as apple pie” in our nation’s mythology. But the actual experiences of the 2020 racial justice protesters showed that this supposed reverence for political dissent and protest is more akin to American folklore than reality on the streets. The images from those streets depicted police officers clad in riot gear and armed with shields, batons, and “less than” lethal weapons aggressively arresting protesters, often en masse. In the first week of the George Floyd protests, police arrested roughly 10,000 people, and approximately 78 percent of those arrests were for nonviolent misdemeanor offenses or criminal violations. Moreover, troubling figures regarding the racial breakdown of protest-related arrests, along with anecdotes from activists, suggest that just as with routine policing, the experiences of Black and white people differ during protests—even when they protest side by side—with police potentially targeting Black activists for arrest. This Article exposes how police officers’ easy access to a wide arsenal of criminal charges serves to trample on expressive freedoms and explains how a new and clearer understanding of the Fourth Amendment’s application to expressive conduct should curb the police’s seemingly unbounded power to arrest protesters. In Part I of this Article, I revisit and review the roots and rationale of the Expressive Fourth Amendment doctrine, which posits that there is an expressive component to Fourth Amendment protection. In Part II, I discuss the criminal statutes that police often use to make arrests during protests and then focus more narrowly on the arrests in New York City in the early days of the George Floyd demonstrations, including the racial makeup of arrestees. In Part III, I explain how the presiding understanding of the Fourth Amendment places minimal limits on a police officer’s ability to arrest, regardless of an individual’s engagement in expressive political conduct. Thereafter, I describe how the Expressive Fourth Amendment should apply to arrests and serve to curtail an officer’s ability to engage in warrantless arrests of protesters for nonviolent misdemeanors.