Don't Daze, Phase, or Lase Me, Bro! Fourth Amendment Excessive-Force Claims, Future Nonlethal Weapons, and Why Requiring an Injury Cannot Withstand a Constitutional or Practical Challenge

This article suggests that requiring an injury in a Fourth Amendment excessive force claim is neither constitutional nor practical. The article has two components. First, it examines the requirement that an arrestee allege an injury to have a valid Fourth Amendment excessive force claim. The article explores the de minimis injury exception’s genesis in Fourth Amendment jurisprudence and discusses whether and how the circuit and district courts have implemented an injury requirement. The article demonstrates that an injury requirement in some circuits has created contradictory and confusing tests and exceptions. It then argues why an injury requirement is not supported by the Supreme Court’s seminal Fourth Amendment excessive force case. Second, the article discusses the technology of future non-lethal weapons as well as the physical and psychological impact on the weapons’ targets. The article posits that a de minimis injury exception to Fourth Amendment excessive force claims is impractical in light of the deceptively minimal harm these non-lethal weapons will cause.