Thompson v. Clark and the “Reasonable” Policing of Marginalized Families


This Article uses the experience of Larry Thompson, the plaintiff in Thompson v. Clark, 142 S. Ct. 1332 (2022), to examine the absence of privacy for poor families, particularly poor Black, Latinx, and Native families, in the United States. Mr. Thompson may end up remembered in legal history as a victor, as the Supreme Court lowered the barriers to bringing malicious prosecution claims and reinstated Mr. Thompson’s own previously dismissed malicious prosecution claim. Yet before securing this victory, Mr. Thompson lost a slew of other Fourth Amendment claims against the police. Mr. Thompson’s claims arose from state agents’ warrantless and violent entry into his home late at night to investigate a baseless claim that he was sexually abusing his newborn daughter.

With Mr. Thompson’s story at its center, this Article argues that the deep- seated logic pathologizing poor parents—particularly poor Black, Latinx, and Native parents—intersects with an insidious carceral logic that relies on surveillance, coercive control, and punishment to maintain public safety and power hierarchies. These logics have fundamentally distorted society’s view of what is reasonable for marginalized parents to do and what is “reasonable” for state actors to do when marginalized parents refuse to conform to their demands. They underpin the functional and formal entanglement of policing and social services. At the same time, as Fourth Amendment doctrine has shifted away from a warrant requirement and toward more nebulous assessments of police “reasonableness,” a wide range of actors, from police and EMTs to judges and juries, can now fall back on these pathologizing and carceral logics to justify “reasonable” invasions into marginalized families’ homes.

Suggested Reading

Matthew I. Fraidin∞  This is a transcript of a speech given by Professor Fraidin at the N.Y.U. Family Defense Clinic’s 25th Anniversary Celebration Symposium, held on April 7, 2016. This is the life of a family defense lawyer: A 17-year-old