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