Ric Simmons
91 Geo. Wash. L. Rev. 817
In the wake of massive protests in the summer of 2020, many municipalities began to experiment with different ways to respond to 911 calls, while a number of school districts reversed a decades-long trend and began to take police officers out of their schools. The main purpose of these changes is to decrease the footprint of the police in the community, and hopefully de-escalate situations that might otherwise escalate into violence. Nevertheless, such interactions will result in a significant number of situations in which an alternate responder observes criminal activity or asks questions that—intentionally or unintentionally—elicit admissions of criminal activity. When alternate responders perform these actions, courts often apply conflicting—and generally quite lenient—standards in evaluating their constitutionality. Thus, one of the unintended consequences of reducing the police presence in our communities will likely be a significant reduction in individual constitutional protections.
This Article demonstrates that alternate responders are usually held to a lower constitutional standard than their law enforcement counterparts. Fourth and Fifth Amendment protections have largely been linked to the proximity between the government action and criminal prosecution. Others have already noted this link in the remedy context, but this Article demonstrates that our rights against intrusive searches and coercive interrogations is intertwined with the criminal justice system on a much more fundamental level. Simply put, when the government is not investigating crimes, Fourth and Fifth Amendment protections are weak or nonexistent. The Article then proposes reforms that could be made to eliminate this double standard and ensure that constitutional protections are consistent regardless of the status of the government agent who is interacting with the suspect.
