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The killing of George Floyd, along with other high profile cases of police officers using fatal force against Black Americans, has led to widespread protests and prompted calls for legal reform. One criticism of the legal system is that police officers often stop, interrogate, and arrest Black Americans for activities that would rarely lead to intervention if engaged in by white individuals. This disparity calls into question whether police officers have been arresting individuals with the quantum of suspicion of wrongdoing that should be required by law.

The Fourth Amendment requires police to have probable cause that a crime has been committed prior to conducting an arrest. The United States Supreme Court, however, has provided little guidance on exactly how much certainty of guilt is required to establish probable cause, stating only that probable cause is more than a mere suspicion of wrongdoing, but less than the level of proof needed to convict. This very broad standard was significantly narrowed and lowered in 1983 when Justice Rehnquist, speaking for the plurality in Texas v. Brown, opined that probable cause “does not demand any showing that such a belief be correct or more likely true than false.” Many lower courts have repeated Justice Rehnquist’s comment on probable cause as if it were settled law.

In Probable Cause with Teeth, Professor Cynthia Lee argues that lower courts should stop embracing this understanding of probable cause for several reasons. First, Justice Rehnquist was only able to get three other Justices to sign onto his opinion, therefore, his statement is not binding law. Moreover, a majority of the Court has never held that the standard for probable cause was as low as Justice Rehnquist claimed it to be. Second, Professor Lee argues that Justice Rehnquist’s view of probable cause is misguided as a matter of history, precedent, and logic. Third, Justice Rehnquist’s view of probable cause allows for, and perhaps even fosters, racial disparity in arrests because implicit or explicit bias can impact whether officers stop, arrest, or simply warn an individual. She concludes that a more robust showing should be required for probable cause.

GW Paper Series

GWU Law School Public Law Research Paper No. 2019-50; GWU Legal Studies Research Paper No. 2019-50

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