Legal Control of the Police Research Paper

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Police officers are granted immense authority by the state to impose harm. They walk into houses and take property. They stop and detain individuals on the street. They arrest. Sometimes they kill. The problem of policing the police is how to regulate police officers and departments to protect individual liberty and minimize the social costs the police impose while allowing them to do what is necessary to achieve the ends of policing: reducing fear, promoting civil order, and pursuing criminal justice. Constitutional law as interpreted by the United States Supreme Court provides the most well-known check on police conduct. In addition, many other federal, state, and local statutes, constitutional provisions, court decisions, and administrative regulations also govern the police. Since federal constitutional law cannot alone ensure that the benefits of policing are worth the harms it imposes, this participation by other government actors is essential to ensure adequate regulation of the police. However, the laws that presently govern the police are not tailored to balance the individual and societal interests at stake when police officers act, they lack coordination, and responsibility for regulating the police is haphazardly allocated. As a result, the present array of laws that polices American policing does not promote law enforcement that is maximally effective and protective of civil rights.

Policing The Police Through The Courts And Constitution

Constitutional law has long been a central component of legal efforts to police the police. In the early 1960s, under the leadership of Chief Justice Earl Warren, the United States Supreme Court authorized broad new remedies for violations of federal constitutional rights by local police. First, in 1961, in Monroe v. Pape, the Court interpreted 42 U.S.C. } 1983, a long-standing civil rights statute, to permit civil liability for police officers who violated federal rights even if those officials also violated state law. Later the same year, in Mapp v. Ohio, the Court imposed the exclusionary rule on states, mandating that state courts – like federal courts – exclude from state criminal trials evidence obtained in violation of the US Constitution’s Fourth Amendment ban on unreasonable searches and seizures. These decisions gave victims the incentive and means to challenge police conduct, the courts the opportunity to refine constitutional doctrine, and the police new reasons to comply with constitutional norms.

A few years after the Court broadened remedies for constitutional violations by the police, it expanded the constitutional standards that set limits on police conduct. In Katz v. United States and opinions following it, the Supreme Court eliminated technical requirements that previously limited the scope of the Fourth Amendment, reframed Fourth Amendment analysis to bring a broader array of police practices within the Amendment’s ambit, and emphasized the importance of warrants issued by neutral magistrates as a means of ensuring the constitutionality of police activity. In Miranda v. Arizona and its progeny, the Court applied the Fifth Amendment privilege against self-incrimination to police interrogations and imposed prophylactic rules and an exclusionary remedy to protect suspects during those interrogations. Like Katz, Miranda subjected additional police activity to judicial review, and, like Mapp, the case increased incentives for litigation and police compliance. Through these cases, the Court firmly established constitutional law as an important mechanism for regulating the police.

While the Supreme Court’s doctrines have changed over time, its enterprise has not. Since 1968, the Court has considerably loosened the constraints on the investigation and detection of crime imposed by the Fourth and Fifth Amendments, substantially narrowed the scope of the exclusionary rule, and, after expanding } 1983 liability significantly in the 1970s, contracted liability in more recent decades. Even so, the paradigm arising from the Warren Court doctrines remains largely intact. Courts continue to apply the Fourth Amendment and the Miranda doctrine to impose detailed regulations governing police searches of homes, cars, and people and defining the procedural protections defendants are entitled to during custodial interrogations.

Moreover, courts continue to require exclusion of evidence and to permit civil liability to remedy civil rights violations by the police. Thus, courts continue to delimit and protect constitutional rights through criminal cases and civil suits.

Although the judicial enterprise of defining and enforcing constitutional rights is and has been for many decades an important means to regulate the police, the judiciary cannot alone effectively prevent police misconduct, and the policy problem policing presents is not limited to constitutional rights. Courts suffer systematic limitations that inhibit them from undertaking the complex analysis of policing that effective regulation of the police demands, and constitutional rights are structurally unable to balance fully the harm police conduct imposes against its beneficial effects. Consequently, while courts and the Constitution play an important role in regulating the police, the judiciary and the Constitution can never successfully address the problem of policing without assistance.

Fourth Amendment doctrine makes apparent some of the limitations of courts. When courts evaluate whether a police search or seizure is “unreasonable” and therefore unconstitutional, courts frequently must appraise the nature of the intrusion on the individual, the strength of the government’s interest in the intrusion, and the consequences for law enforcement of various possible rules and then balance these interests against each other. Assessing these considerations requires courts to draw factual conclusions about matters beyond the circumstances of the particular case, such as whether law enforcement can achieve its ends by alternate means. Similarly, when courts seek to interpret the exclusionary rule and civil remedies to prevent future constitutional violations by police officers, they do so based entirely on the likely effects of doctrines on police behavior. Thus, in order to tailor remedies to encourage lawful police behavior, courts must make correct judgments about what police officers value and how particular legal decisions are likely translate into incentives for them.

Although courts can define and vindicate constitutional rights only if they are capable of these kinds of empirical assessments and predictive analyses, they are notoriously ill suited to these tasks. For one thing, courts act with grossly inadequate data. Most Fourth Amendment questions are contested in state criminal cases in which neither party is likely to have adequate resources or incentives to effectively litigate significant empirical questions, and even a civil plaintiff hoping for compensation after a violent arrest cannot cost-effectively litigate many matters. As a result, courts deciding constitutional criminal procedure matters have no effective mechanism to obtain evidence about policing and incorporate it into their normative judgments. Even when courts are able to engage in effective empirical analysis, they have little opportunity or ability to adjust a doctrine as the facts and social science underlying it evolve, since they are bound by precedent and limited to deciding questions presented by the cases before them. As a result, courts have systematic difficulty formulating effective rules for the police and structuring remedies to prevent constitutional violations.

Even if courts could overcome these barriers, a major objective of police regulation would still remain beyond their reach. Ideal regulation of the police would take into account considerations such as how harmful any police action is to individuals and communities, as well as how it compares to other means of producing law and order in terms of cost, harm, effectiveness, and officer safety, in order to specify the conditions under which the police should harm individual interests for the greater good. If courts regulate the police, then the legal problem of policing is limited to constitutional violations. Constitutional rights are, however, ill-suited to balance societal interests in law enforcement and individual freedom.

While constitutional rights accommodate both individual and societal interests, the well-known process by which constitutional rights are articulated and enforced dictates that rights provide only a limited tool for shaping police conduct. First, rights establish only minimum standards for law enforcement. Because individuals assert rights against the police rather than the other way around, constitutional criminal procedure rights are always framed as a ceiling on government action. They thus cannot reflect a full analysis of how to balance competing interests when the police enforce the law and individuals are harmed. Constitutional criminal procedure rights are therefore commands about what the police cannot do, not standards for what they should do. Second, because constitutional criminal procedure rights set unbreakable rules for police officers in advance, the rights themselves must be defined to permit law enforcement flexibility in pursuing societal aims even if this produces societally undesirable results in individual cases. That is, the “ceiling” set by constitutional rights must be higher – more generous to law enforcement – than would result from a full balancing of the interests at stake. Third, because rights are held and enforced by individuals, usually with respect to specific actions, they do a poor job of measuring aggregate costs and benefits of law enforcement activity. Intrusions by the police, such as stopping and frisking pedestrians to investigate crimes, may be constitutionally justified, and yet when multiplied thousands or hundreds of thousands of times, those intrusions may impose total costs that substantially undermine the quality of life in a community in a manner the Constitution cannot check.

Because of these characteristics, constitutional rights are structurally incapable of encouraging law enforcement to impose only necessary, fair, and efficient harms on legitimate interests in privacy, equality, autonomy, and the like. Instead, the Constitution provides only a rough measure of whether police conduct is justified. Adequately protecting individual and communal interests therefore requires nonconstitutional regulation of the police.

The Law Of The Police

Government actors other than the courts, using legal tools other than the Fourth and Fifth Amendment, already create, empower, influence, and constrain the police and those that supervise them. There exists a vast web of law regulating the police, which can be divided into four categories: (1) law that authorizes or restricts the conduct in which police may engage; (2) law that remedies, punishes, or disincentivizes violations of the first category of law; (3) law that governs the hiring, management, and organization of police officers and departments; and (4) law that governs the availability of information about police activities.

Laws Authorizing And Restricting Conduct

Laws that regulate police conduct come from sources ranging from the Vienna Conventions on Consular and Diplomatic Relations, which limit police power to engage in searches, seizures of property, and arrests involving diplomats, to a San Francisco ordinance that prohibits police officers from questioning people about immigration status. Federal law, for example, contains more than a dozen statutes that regulate police searches, electronic surveillance, and access to private information. These statutes range from Title III, which governs federal wiretaps, to the Health Insurance Portability and Accountability Act, which restricts law enforcement access to and use of medical records. And federal law concerning the police is not limited to statutes governing searches and seizures. For instance, the Illegal Immigration Reform and Immigrant Responsibility Act provides for local police enforcement of federal immigration law, and the Law Enforcement Officers Safety Act allows qualified active and retired law enforcement officers to carry a concealed firearm anywhere in the United States, even if forbidden by state law. In addition to federal statutes, federal constitutional doctrines outside of the Fourth Amendment and Miranda also affect the police. Most notable among these, the First Amendment limits the conditions under which police officers may make arrests for breach of the peace, disorderly conduct, and resisting arrest. As these examples suggest, federal regulation of police conduct beyond constitutional criminal procedure doctrine is considerable.

State constitutions, statutes, and regulations regulate police conduct even more extensively. Local police officers are created by state law, which both grants power to police officers and restricts its exercise. Thus, state statutes permit police officers to engage in community caretaking and criminal law enforcement, allow officers to use force, require police to aid citizens in limited circumstances, mandate that officers arrest suspects in domestic violence cases, and forbid the police from asking questions unrelated to the subject of a traffic stop, for example. State constitutional law frequently mirrors federal law, regulating searches, seizures, and interrogations, but it is often interpreted more expansively to control police behavior that is beyond federal constitutional protection. Local ordinances further restrict police conduct, limiting the use of race in police actions, for example. Finally, departmental administrative rules – often known as general orders – provide the most important and extensive guidance to police officers about what they must, may, and may not do.

Laws To Remedy And Punish Violations

The second category, laws that provide remedies for violations of rules governing police conduct, includes federal constitutional decisions mandating that evidence illegally obtained by the police be excluded from federal criminal trials, as well as federal statutes that authorize criminal prosecution and private civil suits against local officers, departments, and municipalities. States provide similar remedies that supplement federal law, including statutes authorizing criminal prosecution, evidentiary exclusion, civil suits for damages and other relief, and sometimes, structural reform of departments. States, municipalities, and departments themselves often also provide other remedies, without analogs in federal law, for police conduct that is unconstitutional, illegal, or merely against administrative regulations. For example, most states authorize revocation of police officer certification for some kinds of misconduct, which prevents officers from reentering law enforcement in the same state. Municipalities frequently provide for civilian review of citizen complaints concerning police misconduct. And internal administrative rules within police departments establish procedures for taking, investigating, and resolving complaints and impose punishments for misconduct, often through an internal affairs unit. These internal administrative processes provide the most commonly used remedy for misconduct and, in many jurisdictions, are also subject by local ordinance, charter amendment, or public referendum to external review by an auditor or civilian oversight agency.

Laws Governing Hiring, Management, And Organizational Requirements

Some of the most important rules and laws governing the police are laws that set standards for hiring, training, and managing police officers. Policing is usually organized as a function of municipal or county government. Municipal ordinances, city charters, and other local laws dictate matters such as who hires and fires the police chief and thus often who ultimately controls policy in the police department. Although local governments largely oversee policing, federal and state laws check local political control of the police.

For example, every state has a peace officer standards and training commission (“POST”) that establishes minimum qualifications and training requirements for police officers as well as a process for licensing them. These commissions control how old and how educated police officers must be and what kind of criminal record they can have, factors that may affect whether officers are likely to engage in misconduct. They regulate the hiring process for officers, including whether officers must pass psychological or medical screening. Finally, they are the primary determinant of what kind and how much training police officers receive.

Other statutes affecting the police may impose less direct standards of police qualifications. The Lautenberg Amendment to the Gun Control Act of 1968, for example, changed federal gun laws to prohibit individuals convicted of misdemeanor domestic violence crimes from possessing a firearm. The Gun Control Act also applies the prohibition to those subject to a restraining order or dishonorably discharged from the military. As a result of this law, individuals in these categories cannot serve as sworn police officers in most jurisdictions, even if state law would otherwise allow them to serve. These federal requirements also affect the size of the pool of potential officers as well as who becomes an officer and therefore constitute one more piece of the web of laws that governs American policing.

In addition to laws mandating qualifications and training for police officers, federal and state laws constrain the organization of police departments and management of police officers. Federal law imposes constraints on how police officers are hired and fired through statutes and constitutional doctrines that prohibit employment discrimination. In addition, federal laws influence how officers are managed: The Fair Labor Standards Act, for example, influences when police work, including how shifts are structured to address overtime thresholds, a major financial and administrative issue for police departments. And the Fifth Amendment privilege against self-incrimination has a distinctive application to government employees that frequently restricts the use of statements compelled in administrative investigations of police officers against them in criminal prosecutions. State law is even more significant. State laws and regulations do everything from authorizing the existence of police departments to setting qualifications for the police chief. And state employment and labor laws, including civil service law, collective bargaining law, employment discrimination law, and law enforcement officer bills of rights, constrain most employment decisions by police departments and local governments.

Laws Governing Information About The Police

Finally, a variety of state and federal laws govern the production and distribution of information about the police. Most of the information that exists about policing is collected by police officers themselves pursuant to internal administrative policies demanding that officers complete form reports about arrests, uses of force, responses to citizen calls, and other interactions with the public. Other information is produced by departmental practices, such as installing video cameras in police cars or recording interrogations that occur at the station house. While these local practices are driven in significant part by departmental concerns, external legal constraints on departments influence them substantially. Thus, a department may collect data about the race of those targeted in traffic stops to fulfill the terms of a lawsuit settlement over racial profiling or in response to a local ordinance or state law. Of course, internal policies and state and local law can inhibit as well as facilitate the production of information about policing. Some departments collect little information on daily police activities, a practice that makes scrutinizing those activities difficult. And some states have applied laws governing recorded communications to prohibit private citizens from videotaping or audiotaping their interactions with the police.

Access to information about police conduct is often similarly shaped by a combination of departmental practice, state law, and civil settlements. State statutes and rules of civil and criminal procedure mandate government disclosure of some kinds of information about police conduct and departmental policies to civil plaintiffs and criminal defendants. Open records laws permit the broader public to obtain some information about police departments and their management, and some states expressly require departments to collect and disclose data about policing. But many states restrict public access to data about police misconduct, either through generally applicable statutory exemptions, such as exemptions for personnel records or for criminal investigations, or through specific exceptions for law enforcement. As a result, for example, internal disciplinary records and citizen complaints against an officer can be unavailable to the public, limiting political accountability for police practices.

Weaknesses Of The Law Governing The Police

As this description suggests, local, state, and federal actors use a range of legal mechanisms to influence policing. Although this participation by institutions other than courts and regulation outside constitutional law is essential to effective governance of the police, the existing web of laws governing the police has arisen organically, the product of institutional arrangements and historical contingencies that have little to do with policing. As a result, these laws are often not tailored to serve the end of making law enforcement worth its costs, they are inadequately coordinated to promote efficient police practices, and responsibility for generating and enforcing them is haphazardly allocated among governmental institutions. As result, American policing does not fully ensure that police effectively control crime, fear, and disorder without imposing unjustifiable and avoidable costs on individuals and communities, despite extensive legal regulation.

First, existing law is not well designed to promote harm-efficient policing and cannot easily be made to do so. Legal regulation of the police should promote harm-efficient policing – that is, policing that imposes harms only when, all things considered, the benefits for law, order, fear reduction, and officer safety outweigh the costs of those harms. Presently, harm efficiency is largely left to the local political process, and police departments and local and state governments already take it into account in governing policing, at least to some degree. Some departments adopt, for example, internal regulations forbidding consent searches without reasonable suspicion of criminal activity, even though constitutional law demands no individualized suspicion before requesting consent to search. Nevertheless, public debates about police practices often focus on whether their conduct is constitutional or effective, not whether it is harm efficient, distracting political actors from this central question. Moreover, in order for regulatory actors to promote harm-efficient means of policing, they must have a basis for doing so, including an account of what the relevant harms and benefits of policing practices are and empirical work measuring and comparing harms and policing efficacy. Presently, however, insufficient data is collected about policing to provide the basis for harm analysis, and no substantial academic literature exists that can be used to compare policing techniques with respect to both effectiveness and harm. Until regulators mandate the necessary data production and collection, and scholars lay the conceptual and empirical groundwork for understanding harm efficiency, institutional actors will be stymied in their efforts to regulate the police toward this end.

Second, existing laws regulating the police interact in ways that may undermine the goal of ensuring that policing practices adequately protect individuals and communities. For example, courts have tailored civil remedies for unconstitutional policing to encourage departmental reforms likely to reduce misconduct, such as careful hiring practices and adequate training and supervision of police officers, but these judicial efforts cannot achieve their aim because state collective bargaining and civil service laws create countervailing incentives discouraging departments from implementing the same reforms. In a majority of states, civil service laws heavily regulate the treatment of public employees, including police officers. These laws allow costly legal battles when police departments demote, transfer, or fire an officer and thus impose significant additional costs on police departments trying to manage officers who commit misconduct. They therefore disincentivize precisely the same conduct that civil remedies are intended to encourage. Collective bargaining rights similarly deter department-wide changes intended to prevent constitutional violations. In states that mandate collective bargaining before a department changes its disciplinary process or promotion standards, departments face significant additional costs for increasing internal accountability for police officers, a key means of preventing police misconduct.

As these examples suggest, departments enter a legal minefield whenever they take employee action or make new policies. This is not to say that we should eliminate civil service laws or collective bargaining: These laws have complicated goals and effects that go beyond facilitating harm-efficient policing. Nor does it mean that civil remedies should not be used to incentivize reform. But until courts and legislatures consider the interactions among the myriad laws governing the police, legal efforts to regulate the police may not promote effective reform.

Third, although police departments, local governments, states, and the federal government all influence police conduct, as the example of the courts suggests, government institutions are not equally well suited for the tasks governing the police demands. Courts cannot, for example, determine the consequences of the real-world trade-offs between effective policing and individual freedoms that policing puts at stake. Regulating policing effectively therefore requires allocating institutional responsibility for regulating the police and choosing the best legal mechanisms for influencing police conduct. The existing allocation of responsibility and existing choice of mechanisms are unlikely to serve the goal of effectively regulating the police because they reflect historical and political contingencies rather than a considered choice about the best institutional approaches to regulation of the police. Unfortunately, reassigning responsibility for regulation to institutional actors with adequate capacity and incentive to ensure that the communal benefits of policing are worth its costs to individuals and communities cannot be done easily.

Police departments have enormous influence over the conduct of police officers, but they are nevertheless imperfect regulators of policing. Departments have difficulty engaging in broader causal analysis about how effective and harmful alternative law enforcement practices are. Moreover, police chiefs and local political actors lack sufficient incentive to ensure that individual interests are adequately vindicated in policing, because they are usually better rewarded for maintaining order and reducing crime than for protecting civil rights of the minority of residents targeted by police activities. Thus, police departments and local governments cannot be counted on to produce consistently harm efficient policing.

Although states are critical in shaping police conduct, much of state regulation governing the police is aimed solely at ensuring law enforcement effectiveness rather than balancing effectiveness and civil rights. In addition, state law provides numerous mechanisms for remedying misconduct, but they seem uniformly weak. This state of affairs suggests that state actors have inadequate incentives to promote harm efficient policing.

Thus, while local and state actors already promote civil rights to some degree and they could do so more, they likely cannot be expected to take adequate account of individual constitutional rights and constitutional interests that extend beyond them: They cannot and do not have sufficient reason to reach the appropriate trade-offs between effective policing and individual freedoms.

By contrast, federal actors can engage in thorough analysis about how to reduce harms to constitutional interests while engaging in effective law enforcement and may be able to encourage local and state action toward these ends. Congress already plays an active role in regulating the police. It has long regulated some police uses of private information deferentially regulated by the Court. It funds the Department of Justice’s significant civil rights efforts, including criminal prosecution of abuses by local law enforcement, funding for nonprofits that promote civil rights in law enforcement, and technical assistance to police departments. And it is responsive to change: After court decisions restricted federal civil suits for injunctive relief against police departments, Congress passed 42 U.S.C. } 14141 authorizing the Department of Justice to bring suits for equitable remedies against police departments that engage in a pattern or practice of unconstitutional misconduct.

Though federal actors are capable of regulating the police, congressional attention to civil rights is piecemeal and irregular, and federal intervention in policing has long been politically controversial. Congress has not yet required even mandatory data reporting for local police departments, though the need for such data as a foundation for the regulation of the police is obvious, and though this could easily be carried out by existing Department of Justice components. More comprehensive regulation of the police, including the administrative analysis of the consequences of alternative law enforcement practices for individual and societal interests, is therefore unlikely and in any case may not justify its costs. As this analysis suggests, reaching a combination of government institutions with both the ability and the motive to regulate police officers and police departments effectively represents an ongoing challenge to efforts to ensure that police practices are carried out to promote law and order while minimizing harm.

Conclusion

The police have always represented both hope and harm. They contribute to social order but also threaten it. Though courts can judge the moral and historical imperatives that underlie constitutional rights, they cannot assess conditions on the ground or predict the consequences of legal rulings on civil rights and law enforcement. The project of defining and protecting constitutional rights inevitably requires input from other institutional actors. Although other government institutions have long participated in regulating the police, these efforts cannot approach ideal regulation of the police. First, political actors lack sufficient incentive and an adequate basis for determining when law enforcement should harm individual interests for societal ends, given the risks to human dignity and the costs and benefits of law enforcement activity. Second, because existing efforts to regulate the police operate without coordination, the multiple efforts to govern policing sometimes conflict and undermine rather than reinforce the policy goals of balancing the costs and benefits of law enforcement. Finally, various political institutions face structural limitations and incentives that may be incompatible with effective regulation of the police. Future efforts to improve law governing the police must address these substantial challenges.

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