Document Type

Article

Publication Date

2023

Publication Title

Wisconsin Law Review

Publication Title (Abbreviation)

Wis. L. Rev.

Volume

2023

Issue

6

First Page

1871

Abstract

This Article unearths the pernicious effects of pretextual policing on civil rights and democratic principles. The Fourth Amendment’s pretext doctrine has faced widespread criticism for enabling police to shield the real reasons for searches and seizures from constitutional scrutiny. In its ruling on Whren v. United States, the Supreme Court established that police actions, not their motivations, are the relevant factor in determining constitutionality of searches and seizures. As a result, police can use ostensibly legal justifications as a cover for unconstitutional conduct. This article breaks new ground arguing that pretextual policing extends beyond searches and seizures. It reveals a broader alarming phenomenon in which police use existing laws as a pretext to avoid accountability and expand the state’s carceral power.

Drawing on surveys of police departments and judicial decisions, this Article traces how the police deploy pretext in new and different contexts to justify actions that would otherwise be unconstitutional. It proffers case studies from three distinct law enforcement practices to illustrate this trend. The first exposes that police pretextually claim crime victim status under laws that protect the confidentiality of victims’ identities to shield themselves from public accountability for misconduct. The second reveals police exploiting juvenile privacy laws to extend privacy protections to officers, thereby evading accountability and curtailing minors' due process rights. A third case study shows how the police abuse their authority by expanding criminal statutes intended to protect pregnant people to instead police conduct during pregnancy.

The Article thus brings to light new constitutional concerns with pretextual policing and calls for a reexamination of its constitutionality beyond the Fourth Amendment. It highlights how the expansion of pretext imperils civil rights and democratic principles, including separation of powers. By exploiting the constitutional irrelevance of pretextual motivations, police undermine free speech, access to information, and due process rights that empower individuals to scrutinize and hold state actors accountable. Ultimately, this Article raises the stakes of an already controversial doctrine and cautions that its continued expansion will further erode civil rights and police accountability.

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