Originally Published on SSRN.


The tragic death of Elijah McClain—a twenty-three-year-old, slightly built, unarmed African American male who was walking home along a sidewalk when he was accosted by three Aurora, Colorado police officers—epitomizes the problems with policing that have become a prominent topic of national conversation. Embedded within far too many police organizations is a culture that promotes aggressive investigative behaviors and a disregard for individual liberties. Incentivized by a Supreme Court that has, over the course of several decades, empowered the police with expansive powers, law enforcement organizations have often tested—and crossed—the constitutional limits of their investigative authorities. And too often it is people of color, and African Americans in particular, who bear the brunt of these practices. Through a review of the Supreme Court’s stop and frisk precedents and an examination of police practices in various contexts, this Article examines this phenomenon and explains why aggressive police practices, such as those observed in the McClain case, are unlikely to abate in the years to come.