Tuesday, May 17, 2022
Osagie K. Obasogie (University of California), Anna Zaret (University of California), Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Cal. L. Rev. (2021):
Police use of force is a persistent problem in American cities, and the number of people killed at the hands of law enforcement has not decreased even as social movements raise greater awareness. This context has led to reform conversations on use of force that seek less violent ways for police to engage the public. One example of how this might occur is through partnerships between police and medical professionals to use chemical restraints—drugs traditionally used in hospital settings to calm agitated or aggressive patients—to sedate people who refuse or are unable to comply with law enforcement. The injury and, at times, death that can result gives rise to a key yet unexplored constitutional issue: does the Fourth Amendment allow medical professionals to collaborate with police and use chemical restraints during routine arrests? When, if at all, does the use of powerful sedatives by paramedics to facilitate an arrest become an unreasonable use of force? Federal courts have been inconsistent on these issues and overly deferential to medical professionals and law enforcement. In this Article, we provide the first scholarly analysis of how Fourth Amendment rules concerning use of force apply to medical practitioners who partner with law enforcement to chemically subdue arrestees—not for their medical benefit, but to assist police. After analyzing the legal, medical, and ethical contours of this novel constitutional issue, we argue that Fourth Amendment limits on chemical restraints in policing should mirror existing federal regulations on using such drugs in healthcare settings found in Title 42 of the Code of Federal Regulations. In this way, medical necessity, individual autonomy, and the person’s wellbeing would be prioritized over convenience to law enforcement. This approach might also clarify medical practitioners’ role during police stops and arrests and provide guidance on how they may participate in a way that conforms with both Fourth Amendment norms and their professional commitment to promoting patient health and safety.