The problems of policing extend beyond the street and into areas of our lives that are often hidden from view. This Article focuses on how policing affects people in one such place where they are particularly vulnerable: the emergency room. It explores how the courts’ interpretation of the Fourth and Fifth Amendments has resulted in the criminalization of the emergency room. The ER is where people go when they are vulnerable and injured. ERs play a crucial “safety-net” function for those who do not have access to other types of medical care. Yet courts have interpreted the ER as an extension of the public street, generally permitting the police to engage in highly intrusive searches and questioning there. The doctrine cannot account for the unique characteristics of the ER and the medical vulnerability of patients. Further, police investigations in the ER are enhanced by the participation of medical professionals who have existing professional norms as well as their own history and current evidence of bias and discrimination. Finally, the courts’ treatment of the ER as an extension of the street raises the same concerns of racialized street policing because of the convergence of police and marginalized groups in safety-net emergency rooms. The presence of police in the ER has a particularly pernicious effect in emergency rooms that have large percentages of racial minority and poor patients. Especially in these ERs, the doctrine’s blind eye to medical vulnerability also renders invisible the race and class dynamics undergirding policing and access to healthcare. I conclude by suggesting that the reasonable expectation of privacy standard should incorporate considerations of medical vulnerability and medical privacy. Further, as we question the harm or necessity of police presence in communities, we should conceptualize ERs as patient sanctuaries to achieve a better balance between the rights of vulnerable patients and public safety.
Introduction
The past year has exposed in stark relief the age-old fissures of racial inequality in America. Every month of the COVID-19 pandemic has revealed how racial identity affects health and healthcare outcomes. The role of race reverberates in disparate rates of COVID-19 infection, treatment, and access to testing and vaccines. During this time of pandemic, the problems of race and policing have also come into intense focus. At the height of the first summer surge of the virus, protests against the killings of Black people at the hands of police, including the murder of George Floyd, swept across cities. A year after the first shelter-in-place orders, the trial and conviction of Derek Chauvin, punctuated by yet more police killings, resurrects the trauma and reminds us that much progress still needs to be made.
The problems of inequality, healthcare, and policing are not new. They are deeply embedded in our history. They are also not siloed. They are, in fact, deeply intertwined.
Commentators widely view the deaths of Black people at the hands of police as the product of overbroad criminal laws and the overwhelming discretion given to police to stop, arrest, and use force on people they encounter in the streets.1×1. Richard Fausset & Shaila Dewan, Police Decisions Are Scrutinized After Rayshard Brooks’s Fatal Encounter, N. Y. TIMES (Jan. 29, 2021), https://www.nytimes.com/2020/06/18/us/rayshard-brooks-police-tactics.html [https://perma.cc/7EQQ-2RJX]; Conor Friedersdorf, End Needless Interactions with Police Officers During Traffic Stops, THE ATLANTIC (July 8, 2016), https://www.theatlantic.com/politics/archive/2016/07/end-needless-interaction-with-cops-during-traffic-stops/490412 [https://perma.cc/4AY Y – P5J7]; Sean Illing, Why the Policing Problem Isn’t About “A Few Bad Apples,” VOX (June 6, 2020, 8:01 AM), https://www.vox.com/identities/2020/6/2/21276799/george-floyd-protest-criminal-justice-paul-butler [https://perma.cc/R8SK-4WP2]. Many agree that lawmakers criminalize too much routine activity and that the police should not be able to question, arrest, and use force against racial minorities suspected of only minor or vague misconduct.2×2. E.g., Issa Kohler-Hausmann, Misdemeanorland 1–5 (2018); Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 127–28 (2017); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1317–18 (2012); Ekow N. Yankah, Pretext and Justification: Republicanism, Policing, and Race, 40 Cardozo L. Rev. 1543, 1547–49 (2019).
The conversation is shifting. As deaths of Black people at the hands of law enforcement continue unabated, the talk is no longer just about regulating police. Some are calling for abolition, many for varying degrees of defunding. People are questioning where police are deployed, how and how much they are being funded, and what roles they fulfill. Why should police be the school security guard, substance use and mental health crisis responder, traffic cop, as well as the agent who investigates and uses force?3×3. Boston Police Commissioner Gross: Officers “Wear Too Many Hats,” Duties Should Be Shared, CBS Bos. (June 12, 2020, 11:49 AM), https://boston.cbslocal.com/2020/06/12/boston-police-commissioner-william-gross-budget-overtime-walsh [https://perma.cc/VA3Z-SKY6]; Natasha Lennard, Her Former Colleagues Called in a “Wellness Check.” Then Police Shot Her to Death., The Intercept (Aug. 22, 2020, 7:00 AM), https://theintercept.com/2020/08/22/police-shooting-wellness-check-sandy-guardiola [https://perma.cc/TQV6-BQ39]; Brett Simpson, Berkeley Approves Goals to Cut Police Budget by 50%, Reduce Cops’ Role in Traffic Enforcement, S.F. Chron. (July 21, 2020, 8:46 PM), https://www.sfchronicle.com/crime/article/Berkeley-council-bans-police-from-traffic-15410326.php [https://perma.cc/JLC4-NJ4N]; Derek Thompson, Unbundle the Police, The Atlantic (June 11, 2020), https://www.theatlantic.com/ideas/archive/2020/06/unbundle-police/612913 [https://perma.cc/WZM5-6PF9].
Problems of policing, however, go beyond the streets and into areas that may be hidden from view. The emergency room replicates problems of policing in a place where people of color and those with lower socioeconomic means are particularly vulnerable. The ER can be viewed as a microcosm demonstrating the consequences of giving police multiple responsibilities that compound and expand their investigative and surveillance capacities. Yet police activity in the ER has largely escaped the scrutiny given to places like welfare offices, schools, and other public institutions.4×4. A note about the terminology is required. “Emergency department” and “emergency room” are used interchangeably, though I mostly use the latter. I use the term “police” generally to refer to law enforcement agencies that have the official power to investigate and make arrests for criminal violations. Defined this way, police include a diverse array of agencies including municipal and state police agencies, sheriff’s offices, and some hospital police departments. The terms “police” and “law enforcement” are used interchangeably unless specifically noted.
One reason may be that in contrast to street policing, many — including hospital professionals and staff — may view police presence in the emergency rooms as fully justified, even desirable. Police need to accompany gunshot wound victims and other victims of criminal activity to the hospital.5×5. Sara F. Jacoby et al., Police-to-Hospital Transport for Violently Injured Individuals: A Way to Save Lives?, 687 Annals Am. Acad. Pol. & Soc. Sci. 186, 187–88 (2020). They need to be present to gather evidence from crime victims,6×6. See, e.g., Decide on Core Membership, Off. of Just. Programs: SART Toolkit, https://www.ncjrs.gov/ovc_archives/sartkit/develop/build-decide.html [https://perma.cc/6Q3E-6579]. to protect medical personnel from the spillover effects of violence from the streets,7×7. Alyssa Rege, 17 Fatal Hospital Shootings Since 2002, Becker’s Hosp. Rev. (Nov. 21, 2018), https://www.beckershospitalreview.com/care-coordination/17-fatal-hospital-shootings-since-2002.html [https://perma.cc/MQW4-7DYY]. and to accompany those arrested and convicted of crimes.8×8. Pew Charitable Trs., State Prisons and the Delivery of Hospital Care 11–12 (2018), https://www.pewtrusts.org/-/media/assets/2018/07/prisons-and-hospital-care_report.pdf [https://perma.cc/BSG6-HQMD].
This Article argues that even in the ER, where police presence may appear at first blush fully justified, their presence has a dark side. Policing in the ER encompasses more than accompanying injured people to the hospital or gathering evidence from victims. Sociologists have described how police monitor those who come to hospitals and emergency rooms9×9. Alice Goffman, On the Run: Fugitive Life in an American City 34 (2014). Professor Alice Goffman’s account has drawn criticism. See James Forman, Jr., The Society of Fugitives, The Atlantic (Oct. 2014), https://www.theatlantic.com/magazine/archive/2014/10/the-society-of-fugitives/379328 [https://perma.cc/P6HP-LZ9A]. Goffman’s ethnographic methods and conclusions have been criticized for the claim that police routinely check patients for outstanding warrants. Steven Lubet, Ethics on the Run, New Rambler (2015), https://newramblerreview.com/book-reviews/law/ethics-on-the-run [https://perma.cc/K2LF-HN7Z]. Though there is no empirical data on this point, anecdotal evidence from physicians and health workers in cities other than Philadelphia (the subject of Goffman’s study) reveal at least the informal practice of police checking warrants of patients. In interviews with medical staff from different metropolitan areas, the issues of police checking patients’ backgrounds and seizing belongings repeatedly came up as routine occurrences. See Telephone Interview with Hospital Divest/Defund Organizer (Sept. 17, 2020) (notes on file with author); Telephone Interview by Michael Smith with EW, Hospital Program Manager (Nov. 18, 2020) (transcript on file with author); Telephone Interview by Michael Smith with KH, Working Group Manager (Dec. 18, 2020) (transcript on file with author); Telephone Interview by Michael Smith with MS, Hospital Social Worker (Dec. 22, 2020) (transcript on file with author); Telephone Interview by Michael Smith with MT, Working Group Manager (Dec. 22, 2020) (transcript on file with author); Telephone Interview by Carly Loughran with MO, Working Group Manager (Dec. 22, 2020) (transcript on file with author); Telephone Interview by Michael Smith with MM, Working Group Manager (Dec. 22, 2020) (transcript on file with author). These interviews are part of a larger survey by the Working Group on Policing and Patient Rights, co-led by me. Michael Smith and Carly Loughran assisted with these interviews. The names of the interviewees and hospitals have been withheld for confidentiality. See also Reports from Hospital Professionals (Apr. 7, 2019) [hereinafter Hospital Reports] (on file with author) (name of hospital withheld for confidentiality) (collecting reports from medical providers of how law enforcement interactions affected patient care). and how nurses in a public emergency room allocate medical care based on perceptions of patients’ criminality.10×10. See Armando Lara-Millán, Redistributing the Poor: Jails, Hospitals, and the Crisis of Law and Fiscal Austerity 112 (2021); Armando Lara-Millán, Public Emergency Overcrowding in the Era of Mass Imprisonment, 79 Am. Socio. Rev. 866, 874–77 (2014). Hospital professionals have observed officers jotting down patient names and birthdates even when they were not in police custody.11×11. This information was compiled by medical professionals in response to concerns of law enforcement effects on patient care. See Hospital Reports, supra note 9. The hospital is a safety-net Level 1 Trauma facility in an urban metropolitan area. Doctors in an urban hospital witnessed security routinely handing over patient cell phones to police, also when they were not in police custody.12×12. Telephone Interview with Trauma Surgeon and Hospital Social Worker (Sept. 2, 2020) (notes on file with author) (names withheld at request of interviewees). At yet another hospital, the sheriff’s office providing security installed license plate readers at the ER entrance without the hospital’s knowledge.13×13. Darwin BondGraham, Highland Hospital Surveillance Stirs Concerns, E. Bay Express (Nov. 22, 2017), https://eastbayexpress.com/highland-hospital-surveillance-stirs-concerns-2-1 [https://perma.cc/399U-5LFZ]. Police execute warrants and make arrests in hospitals.14×14. See Mark Berman, Jacob Blake Is No Longer Handcuffed in Wisconsin Hospital, Attorney Says, Wash. Post (Aug. 29, 2020, 6:10 PM), https://www.washingtonpost.com/nation/2020/08/29/jacob-blake-is-no-longer-handcuffed-wisconsin-hospital-attorney-says [https://perma.cc/Q4RA-JHR6]. Police ask doctors and nurses about injuries and diagnoses. They stand watch during procedures. Meanwhile, doctors, nurses, and other hospital staff become part of police investigations. Beyond helping police by performing procedures and testing, they pass on information about patients. They direct police officers to patients and attest to their capabilities for questioning.15×15. See infra Part I, pp. 2654–64.
When police go into emergency rooms, they are also entering places where society’s vulnerable and marginalized groups seek medical care. Emergency rooms reflect many of this country’s deepest and most entrenched problems. ERs catch people with mental and/or chronic illnesses and others who fall through the gaps. The people who use the emergency room as a safety net come into contact with police in the same way scholars have described in other important public institutions like welfare offices,16×16. Kaaryn S. Gustafson, Cheating Welfare: Public Assistance and the Criminalization of Poverty 2, 6–7 (2011). schools,17×17. Kimberlé Crenshaw et al., Black Girls Matter: Pushed Out, Overpoliced and Underprotected 5 (2015); Alexis Karteron, Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools, 18 Nev. L.J. 863, 872–73 (2018); Catherine Y. Kim, Policing School Discipline, 77 Brook. L. Rev. 861, 862–63 (2012). public housing,18×18. Alexis Karteron, When Stop and Frisk Comes Home: Policing Public and Patrolled Housing, 69 Case W. Rsrv. L. Rev. 669, 681–86 (2019). and other medical settings.19×19. See Khiara M. Bridges, The Poverty of Privacy Rights 120–21, 127 (2017) (Medicaid); Michele Goodwin, Policing the Womb 80–81 (2020) (prenatal care); Dorothy Roberts, Killing the Black Body 58 (1997) (access to birth control); Priscilla A. Ocen, Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners, 100 Calif. L. Rev. 1239, 1252–53 (2012) (reproductive healthcare for incarcerated women). In poor communities, disproportionately composed of racial minorities, police presence in the ER can have a net-widening effect as in these other contexts. Because of the significant discretion given to police to conduct searches and interrogations in the ER, police have the ability to surveil and monitor poor people and racial minorities with the help of the very medical professionals who are also tasked with treating them.
Although police are present in other healthcare settings, police in the emergency room merit particular attention for a number of reasons. First, the ER by definition receives urgent cases, the nature of which may overlap with law enforcement concerns. These cases include assaults, stabbings, gunshot wounds, and arrests relating to drug and alcohol use. The ER becomes a portal for police to these types of cases by virtue of their security, emergency response, and investigative roles. Second, ERs now occupy an outsized role in healthcare itself, acting as a gatekeeper for hospital admissions and playing a particularly important part in providing primary healthcare to people of lower socioeconomic means. Lastly, the ER presents us with a specific, unique, and defined doctrinal area to explore the criminal procedure doctrine’s ability — or inability — to cabin police overreach.
The Article centers itself on this last point. It engages in a doctrinal critique of Fourth and Fifth Amendment jurisprudence from the perspective of the criminalization of poverty. Courts treat the emergency room as an extension of the street despite the vulnerability of the marginalized populations that rely on the ER for their medical care. Their decisions legitimize and, as a result, incentivize police investigatory activities in the ER. Judges are not merely interpreters of preexisting police practices that occasionally appear for ratification within their courtrooms; their decisions play a role in the overbroad actions of police in the ER by conceiving many of its facets as lawful activity, often comfortably within the doctrinal boundary lines of constitutional criminal procedure.
In this examination of the intersection of policing and the emergency room,20×20. Policing in healthcare encompasses a broad range of actors and settings. A growing number of scholars have begun to explore policing at this intersection. Emergency (EMT/EMS) medical workers are important parts of police investigations. Professor Osagie Obasogie has written about the relationship between police and paramedic partnerships in the context of police use of force, the Fourth Amendment, and use of sedatives by paramedics in prehospital settings. See Osagie K. Obasogie & Anna Zaret, Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Calif. L. Rev. 1 (2021). Professor Sunita Patel examines the role of the Veterans Affairs Police Force in VA Medical Centers and how policing in veterans medical care settings constitutes a broad surveillance web beyond policing those with mental illness. See Sunita Patel et al., National Association of Minority Veterans (NAMVETS) and UCLA Veterans Legal Clinic Advisory: The U.S. Department of Veterans Affairs Police Force 4 (2020); Sunita Patel, The Healthcare Policing Web 5–7 (Feb. 12, 2021) (unpublished manuscript) (on file with the Harvard Law School Library). the Article connects literature on race and policing,21×21. E.g., I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 44 (2009) [hereinafter Capers, Policing, Race, and Place] (situating the importance of racialized spaces in examining policing and race); I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 30 (2011) (arguing that the Supreme Court’s criminal procedure jurisprudence between the 1920s and 1960s reveals a goal of “equal citizenship”); Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) [hereinafter Carbado, (E)racing the Fourth Amendment] (arguing that the Supreme Court’s Fourth Amendment case law is a “jurisprudential site” where the Court “constructs” and “reifies” race, legitimizing and reproducing racial inequality in policing, id. at 967); Devon W. Carbado, From Stop and Frisk to Shoot and Kill: Terry v. Ohio’s Pathway to Police Violence, 64 UCLA L. Rev. 1508, 1513 (2017) (arguing that Fourth Amendment stop-and-frisk jurisprudence not only contributes to but also facilitates police violence against African Americans); Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 340 (1998) [hereinafter Maclin, Race and the Fourth Amendment] (criticizing the Court’s decision in Whren v. United States, 517 U.S. 806 (1996), and arguing that race matters when assessing the legitimacy of police-citizen encounters); Tracey Maclin, Terry v. Ohio’s Fourth Amendment Legacy: Black Men and Police Discretion, 72 St. John’s L. Rev. 1271, 1283 (1998) (arguing that Terry v. Ohio, 392 U.S. 1 (1968), represents a capitulation by the Warren Court by authorizing police practice used to subvert rights of Black people); Alice Ristroph, The Constitution of Police Violence, 64 UCLA L. Rev. 1182, 1189–90 (2017) (arguing that viewing Fourth Amendment seizure authority through the lens of resistance and compliance reveals how law redistributes risks of violence and offers new ways of redistributing those risks). policing and healthcare,22×22. E.g., Caitlin E. Borgmann, The Constitutionality of Government-Imposed Bodily Intrusions, 2014 U. Ill. L. Rev. 1059, 1075; Erin Murphy, The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions, 111 Mich. L. Rev. 485, 504–05 (2013); Elliot B. Oppenheim, May the Police Practice Medicine?, 8 J. Med. & L. 35, 41 (2003–04). See generally Radhika Rao, Property, Privacy, and the Human Body, 80 B.U. L. Rev. 359 (2000) (accounting for when the human body is treated as having property or privacy interests in the law and how that different categorization might change legal rules). and the criminalization of Black motherhood and poverty.23×23. See Priscilla A. Ocen, Birthing Injustice: Pregnancy as a Status Offense, 85 Geo. Wash. L. Rev. 1163, 1195–96 (2017); Dorothy E. Roberts, Prison, Foster Care, and the Systemic Punishment of Black Mothers, 59 UCLA L. Rev. 1474, 1476 (2012); Dorothy E. Roberts, Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy, 104 Harv. L. Rev. 1419, 1420–21 (1991) [hereinafter Roberts, Punishing Drug Addicts]; sources cited supra note 19. For discussions on the criminalization of poverty, see generally Gustafson, supra note 16 (delving into the welfare system’s policies and actors to demonstrate how the welfare system replicates and employs punitive measures in the criminal legal system); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (2009) (connecting rise in punitive policy in the United States to social insecurity and describing a new government regime of insecurity integrating welfare and criminal justice policies). I draw largely upon case law as well as a variety of other materials, including sociological studies, medical literature, and my own interviews with medical professionals. Through an analytical sampling of cases, I examine how the doctrine speaks to the complex socio-legal dynamics at play in the emergency room. The arguments presented here apply to emergency rooms as a whole. But police presence has a particularly pernicious effect in those emergency rooms that serve high numbers of racial minorities and the poor. In these emergency rooms especially, I argue that the courts can interpret the emergency room as an extension of the street only by rendering invisible the race and class dynamics undergirding policing and access to healthcare.
Part I begins by describing the stratified state of emergency medicine in the United States. I describe how certain hospitals, known as “safety-net hospitals,” bear responsibility for serving low-income and minority populations, largely through their ERs. I then provide an overview of the ways police investigate in the emergency room.
Part II describes the Fourth and Fifth Amendment doctrines regarding searches, seizures, and interrogations in the ER and presents three critiques of the current doctrinal approach. First, the doctrine cannot account for the unique medical context of the ER and allows police to take advantage of the medical vulnerability of patients. Second, the courts enable police officers to exploit the assistance of medical professionals, even when their assistance conflicts with medical professional norms and responsibilities. Third, the relaxed privacy protections in the ER also raise concerns about the potential for race-based policing practices, such as heightened surveillance of people of color and pretextual investigations. I argue that the criminal procedure protections are inadequate because they fail to account for the vulnerability of patients who are experiencing medical crises, while emphasizing the participation of patients’ medical providers to help police. These inadequate protections instead create the potential for race-based policing when racial minorities and police converge in safety-net ERs.
Lastly, in Part III, I argue that police presence in the ER must be reexamined. Even if some police presence may be justified, police should not operate in a way that can heighten the surveillance and policing of marginalized groups and disproportionately funnel them into the criminal justice system. I suggest a potential reimagining of the doctrinal approach to privacy grounded in medical definitions and notions of patient privacy. I conclude by offering an approach conceptualizing the emergency room as a place of sanctuary to achieve a better balance of patient privacy and dignity on the one hand and legitimate public safety and security concerns on the other.
* Thomas C. Grey Fellow and Lecturer in Law, Stanford Law School. I am grateful for helpful conversations, support, and comments from Yonina Alexander, Michelle Wilde Anderson, Ralph Richard Banks, Rabia Belt, Guy-Uriel Charles, Matthew Dengel, Meredith Desautels, Carrie Ellis, George Fisher, Trevor Gardner, Kaaryn Gustafson, Kristin Henning, Randy Hertz, Eisha Jain, Stephen Lee, Medha Makhlouf, Anna Mance, Jonathan Masur, Michelle Mello, Julia Mendoza, Alexandra Natapoff, Sunita Patel, Andrea Roth, Jonathan Simon, Shirin Sinnar, Chris Slobogin, Ock Joo Song, Avani Mehta Sood, Seth Stoughton, Andrea Wang, Justin Weinstein-Tull, and Kate Weisburd. This Article benefitted from the NYU Clinical Law Review Writers’ Workshop, Grey Fellows Forum, CrimFest, Emerging Scholars Workshop, and faculty workshops at Brooklyn, Denver, Elon, Georgia, Irvine, Lewis & Clark, McGeorge, Michigan State, Northwestern, Pepperdine, Temple, Tulane, Wayne State, and Wisconsin. I owe special thanks to Bob Weisberg and David Sklansky for their encouragement and guidance from the very beginning of this project. Aryn Frazier, Jake Sonnenberg, Rebecca Wong, Alyssa Wright, and the editors of the Harvard Law Review provided excellent research assistance and valuable suggestions. Many thanks to the physicians, nurses, lawyers, and advocates who shared their expertise and stories, including fellow members of the Working Group on Policing and Patient Rights. Finally, this article is for C.D., whose experiences sparked this journey.
