Many people seem to believe that it is the responsibility of judges to supervise law enforcement. In this view, the Constitution says what the police may and may not do, and the courts interpret the Constitution. As we saw in the prior two chapters, the real explanations for why policing escapes democratic regulation are in part historical (the corruption of policing and politics in the late nineteenth and early twentieth centuries) and in part because politicians just don’t want to do the job. But the widespread notion that courts are supervising the police has allowed the rest of us to avoid taking responsibility for policing.
It is time to face the facts. The courts are not up to the task of regulating policing. At best, all courts can do is declare, after the fact, whether what the police did was consistent with the Constitution. They can’t (and really shouldn’t) write detailed policing policies designed to keep things from going wrong in the first place. And even if they could—and did—write such rules, that still is not the same as democratic control of policing. Indeed, the courts are even less democratically accountable than the police themselves.
The courts are acutely aware of their shortcomings—maybe too much so. When it comes to regulating the police, judges are far more likely to roll over than they are to defend your rights. While the rest of us have been imagining that the courts are supervising the police, the judges actually have been letting policing agencies do mostly anything they want. That explains a lot of why we are where we are today.
THE STRIP SEARCH
Clayton County, Georgia, sits just south of Atlanta. On October 31, 1996, Officer Zannie Billingslea of the Clayton County Police was scheduled to teach the antidrug D.A.R.E. program to Tracey Morgan’s class of fifth-graders at West Clayton Elementary. As Billingslea arrived, a student reported to Morgan that an envelope of money containing $26 that he had brought in for a field trip had disappeared from the teacher’s table. When a search of the classroom failed to produce the money, Morgan, with permission from the assistant principal, turned her attention to the students. She had them empty out their desks, book bags, and pockets—still nothing.1
Morgan and Billingslea decided to take the students to the restrooms to search them more thoroughly. In the men’s room, Officer Billingslea undid his trousers and dropped them, in a demonstration of what he expected them to do. Then Billingslea “visually inspected the boys’ underwear to ensure the envelope was not inside.” In the girls’ room, “Morgan made them lower their pants and raise their dresses or shirts. Most of the girls were also asked to lift their brassieres and expose their breasts to ensure the envelope was not hidden under their bras.” Several of the girls said they were touched in the process. Other students, coming to use the restroom, stopped and watched. Several students said they were threatened with suspension or even jail time unless they complied.2
The federal judges who heard the case, Thomas ex rel. Thomas v. Roberts, found that the “highly intrusive” searches violated the students’ constitutional rights.3 That much seems obvious. But they also decided they would do nothing to hold anyone responsible for the unlawful searches. The judges concluded that the law was not clear enough to put Billingslea and school officials on notice that schoolchildren could not be strip-searched in this way. There was something more than a little puzzling about that conclusion, given that just four years earlier the very same court, in a quite similar case, had said the same thing: strip searches of schoolchildren violated the Constitution, but the law was too unclear to hold anyone responsible.4 What, after all, does it take for the law to become clear?
But here’s the truly remarkable thing. In February 2012, the very same lawyer who sued Clayton County in the Thomas case brought yet another lawsuit involving yet another strip search in yet another Clayton County school—this time of a seventh-grade boy named D.H. Three boys who themselves were strip-searched on accusations of possessing marijuana falsely accused D.H. of having drugs. When the police brought D.H. in and started to search him in front of the other boys, one of the boys admitted they were lying about D.H. The cop responded, “Why didn’t you tell me this before we brought him into the office?” but ordered D.H. to take off his clothes anyway. All of them. D.H. “begged to be taken to the restroom for the search,” but was forced to do it in front of his accusers, the vice principal, and the police. Nothing was found (of course).5
Police and school officials keep strip-searching students in violation of the Constitution because courts cannot bring themselves to impose a penalty upon them for doing so.6 It’s just that simple. The law books are bursting with reports of such searches. Kids from preschool to the twelfth grade get searched. Kids are searched in private, but also in front of other students, teachers, police, and administrators. They are searched for as little as three dollars that has gone missing, and searched because a teacher decides a student is “too well-endowed” and therefore “crotching” drugs. Children are humiliated, and their rights are violated, with no reason. This happens again and again.7
In 2011, the Supreme Court had a strip-search case of its own, and it, too, declined to provide any relief, despite finding a clear violation of rights. In that case, Safford Unified School District v. Redding, thirteen-year-old Savana Redding was told to unclothe, and then had her bra and underpants examined on the allegation that she had nonnarcotic painkillers. The Supreme Court voted 8–1 that “because there were no reasons to suspect the drugs presented a danger or were concealed in her underwear,” the search violated Redding’s Fourth Amendment rights. But once again the defendants paid no price, because—even after all these prior cases holding strip searches of schoolchildren unconstitutional—the law supposedly was still not clear enough to let them know they were doing anything wrong. Dissenting, Justice Stevens pointed out, somewhat facetiously, “‘It does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.” 8
If government officials pay no price for violating the Constitution, those violations will continue. Yet courts cannot bring themselves to do their job and impose these penalties. Indeed, contrary to popular impression, courts find it extremely difficult to regulate policing activity such as surveillance and the use of force at all. To be fair, it is not just that judges lack the will to do the job (though it certainly is partly that). They also realize they are ill suited to it.
Policing the police has fallen on courts because no one else wants to do it. But leaving this job to courts has proven a distinct failure.
THE GOLDEN MOMENT
The common assumption that the courts are responsible for patrolling the police has its roots in one brief historical moment. That moment has come and gone, but apparently endures in the popular mind.
In the 1950s and 1960s, the Supreme Court—headed at the time by Chief Justice Earl Warren—set out to reform state criminal justice systems. In one landmark decision after another, the justices set benchmarks—minimal constitutional rules—that states would have to abide by. There were rulings on search and seizure, on the way police obtained confessions, and on the right to a lawyer for criminal defendants.9
There were two reasons the justices took this task upon themselves. First, and most obviously, it was because no one else would do it. Herbert Packer, one of the nation’s leading criminal law professors, deemed it “naive or disingenuous” to think the Court could sit by silently when “its hand is the only one raised or raisable.”10
Second, many of the defendants in the pathbreaking cases were black, and much of the Warren Court’s self-assigned mission was to eliminate gross inequality in American society. In the mind of some, the criminal procedure decisions were just one element of a much broader agenda of racial justice.11
These two reasons also explain why so much of this criminal justice “revolution” was surprisingly popular. When police complained about having to follow one of these decisions, The New York Times’s Anthony Lewis said the decision reflected “a national moral sentiment” that refused “to tolerate police misbehavior.” The decision in Gideon v. Wainwright, requiring lawyers for criminal defendants, was widely hailed as a matter of evident and simple justice. Even the governor of Florida, where Gideon was an inmate, conceded the point: “In this era of social consciousness, it is unthinkable that an innocent man may be condemned to penal servitude because he is … unable to provide counsel for his defense.”12
But the tide turned against the Supreme Court’s effort to reform the police and state criminal justice in the late 1960s. With the ghettos burning and violent offenses on the rise, “crime replaced communism,” remarked correspondent Fred Graham, “as the hobgoblin of American politics.” “Fear” was the word on everyone’s lips. Appointing his Crime Commission to study the matter, Lyndon Johnson said, “Fear haunts … too many American communities. It assails us all, no matter where we live, no matter how little we own.”13
Richard Nixon took advantage of this climate of fear in his campaign of 1968, running against the Court. “[S]ome of our courts and their decisions,” he argued, “have gone too far in weakening the peace forces as against the criminal forces in this country.” During the election, Congress also went after the Court: the leading visual display at congressional hearings was a graph that charted rising crime rates against the Warren Court’s major defendant-protecting decisions.14
After Nixon won, the justices began to dismantle and back away from the protections they had afforded us. While Nixon was president numerous vacancies opened up on the Supreme Court, and he filled them with people who had expressed concern about crime rates and the mollycoddling of criminal defendants. The law began to shift, gradually at first, but then faster. And almost always in the direction of leaving the police free to do as they would.15
REMEDYING THE CONSTITUTION
When it comes to how the Constitution applies to the police, two things matter. The first is what lawyers call “substantive law,” meaning the actual rules. Can police or school officials strip-search children, and under what circumstances? Equally important, though, as the story of the Clayton County schools makes clear, is the second, the “remedy.” What happens to the defendants if they have violated someone’s rights? In the eyes of many, a right without any remedy is no right at all. What does it matter if strip searches are prohibited if, because there is no penalty, they still continue?16
The story of the Supreme Court’s failure to regulate the police is as much about the remedies as the rights themselves.
The Constitution doesn’t say a word about what happens if the Fourth Amendment is violated, mostly because at the time the amendment was adopted, everyone knew. If someone violated your rights, you sued them—for money. If the conduct was particularly bad, you also could recover punitive damages. Back then they were called “exemplary” damages—meaning they made an “example” of the wrongdoer, warning others not to engage in the same conduct.17
The common law could be shockingly unforgiving when government officials violated people’s rights, even if they made honest mistakes or if the officials were just following orders—including those of the president himself. Captain George Little, commander of the U.S. frigate Boston, learned this the hard way. In 1799, the United States was in the middle of an undeclared naval war with France, and the president had issued a directive to ship captains like Little to seize any ships believed to be United States vessels that were headed to or from a French port. Following orders, Little seized the Flying Fish, traveling from a French port, and acting very suspiciously. But the president was implementing a congressional law that only allowed seizures of ships traveling to French ports that were undeniably United States vessels. The Flying Fish turned out to be Danish, so under Congress’s rules Little was twice in the wrong. In Little v. Barreme, the Supreme Court ordered Little to pay the sum of more than $8,000 (some $170,000 today) for his error. The Chief Justice acknowledged he had agonized over this, but the president’s orders “cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.”18
Pretty tough. But also pretty effective if you don’t want people’s rights violated. Ultimately, Captain Little got Congress to pick up the tab for him; governments then and now often indemnify their officers in this way. Still, indemnification was in those days by no means certain, and in any event someone had to pay the freight when rights were violated.19
By the middle of the twentieth century, though, for a variety of reasons that remain somewhat unclear to this day, the common law system of remedies was breaking down. The result was that the police were doing as they wished, with impunity—to the point that police would feel comfortable testifying brazenly at a criminal trial that they had kicked open the door to a home without a warrant.20
And so the Supreme Court decided to intervene.
ENTER THE EXCLUSIONARY RULE
The case on remedies that made Supreme Court history began in Cleveland, Ohio, on May 23, 1957. Two things were big in Cleveland in those days: the numbers racket and boxing. Their uncomfortable collision found the police breaking and entering the home of Dollree Mapp. Mapp was a unique and determined person. (“[C]unning” and “audacious” was how Sergeant Carl Delau, the lead officer in the operation, described her.) She’d been married to the Cleveland boxing legend Jimmy Bivens; she divorced him for abusiveness, but she still ran in boxing circles.21
On May 20, 1957, a bomb exploded at the home of Don “The Kid” King. King would go on to become one of boxing’s legendary promoters, but at the time he was deeply involved in Cleveland’s numbers (or “policy”) racket. Afraid for his life, King called the police, whose investigation led to one Virgil Ogeltree. Three days later, police received an anonymous tip that Ogeltree was staying at a particular address. That was where Dollree Mapp lived with her fifteen-year-old daughter; she rented out the first-floor apartment to boarders. So Sergeant Delau and two other members of Cleveland’s notorious “Special Investigations” squad set off to investigate.22
When the police showed up at Mapp’s house, she was alarmed and called her attorney. He told her not to let the officers in without a warrant. Delau had no warrant, so she didn’t. The lawyer rushed over to protect Mapp’s rights, but the police wouldn’t let him enter either. A few hours and more cops later, Sergeant Delau got tired of waiting and decided to end the standoff. The police pried open a screen and broke a window. When Mapp demanded a warrant, Delau waived a piece of paper in her face. Mapp grabbed it and shoved it down her bosom; Delau went in after it. (Only after much litigation did the government admit there never had been a warrant.)23
Because they viewed Mapp as “belligerent” in demanding to see a real warrant, the cops handcuffed her to another officer—and then to the bannister—while they searched her home. They eventually found their man—not in Mapp’s house, but in the renter’s apartment downstairs. That didn’t keep them from tearing Mapp’s place apart. Mapp describes the search: “They searched the drawers, the kitchen cabinets, the closets, in the pills—I had some diet pills. I guess they were looking there for some man in the pill package. They went all over.”24
The next thing Mapp knew, she was on trial herself. In a piece of luggage in Mapp’s bedroom the police found numbers paraphernalia and four “lewd” books, including Memoirs of a Hotel Man. The luggage was that of a former tenant; Mapp had simply cleared out his stuff, which is why she later was acquitted of possessing the numbers materials in the luggage. Strangely, although the books were in the very same suitcase, she nonetheless was convicted of possessing trashy literature, and sentenced to one to seven in the state reformatory.25
The Supreme Court originally took Mapp’s case to decide whether Ohio’s obscenity law—which didn’t require proof that she’d even looked at the stuff—was constitutional. But prompted by a stray paragraph in the brief of the Ohio and American Civil Liberties Unions, the justices decided the time was ripe to answer a long-standing question: whether state courts should have to throw out any evidence that was seized by police in violation of the Constitution. Memoirs of a Hotel Man and the other “lewd” books plainly were seized in violation of Mapp’s rights; if they were inadmissible into evidence for that reason, Ohio had no case against Mapp.26
This rule barring from evidence anything unlawfully seized—called the exclusionary rule—had been applied in federal courts since 1914. As the justices explained when adopting the rule, if evidence can be seized in violation of the Fourth Amendment and then entered in court, “the protection of the Fourth Amendment … is of no value, and … might as well be stricken from the Constitution.” Here again is the idea we’ve seen, that rights without remedies are meaningless. But applying the exclusionary rule to the federal courts was one thing; making all the states follow suit was going to be a big deal. And so even as late as 1949, in a case called Wolf v. Colorado, the justices refrained from imposing the exclusionary rule on the states, hoping they would work to adopt their own effective remedies for unlawful search and seizure.27
By the time Mapp v. Ohio made its way to the Supreme Court, in 1961, the justices had given up on the notion that states were going to take responsibility for reining in their cops. Writing for the Court, Justice Clark said it was now time “to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right.” So in Mapp the justices imposed the exclusionary rule on the states.28
WHAT’S WRONG WITH THE EXCLUSIONARY RULE?
Remedies are difficult to calibrate. If there is no adequate remedy, police and the governments for which they work will violate rights at will. But if the penalty imposed seems too harsh, judges will shy away from applying it. Either of these alternatives speaks poorly to protecting our rights. Indeed, the perceived problems with the exclusionary rule have led judges to approve a lot of bad policing just to avoid imposing it.
People—including some judges—hate the exclusionary rule. Despise it. And it is not difficult to see why. The police catch someone with a carload full of drugs—or worse yet, nab a rapist or murderer—and a judge tosses out the evidence because the police broke a rule, often described in these circumstances as a “technicality.” The very fact that otherwise good evidence is being tossed out only goes to show that the defendant is guilty—and yet without that evidence likely will walk.29
What people seem to miss, consistently, is that the price they are paying in letting these defendants off is not because of the exclusionary rule—it is the cost of having a Fourth Amendment in the first place. When Mapp v. Ohio was decided, police officials were outraged. New York’s police commissioner Michael J. Murphy was notably blunt: “I can think of no decision in recent times in the field of law enforcement which had such a dramatic and traumatic effect as this … Retraining sessions had to be held from the very top administrators down to each of the thousands of foot patrolmen.” But why, after Mapp, did the police require any police retraining? Mapp didn’t change the Fourth Amendment, which already bound the state and local police. All Mapp held was that the government could not use evidence seized in violation of that amendment. What these outraged officials really were saying was that before Mapp they were violating people’s rights willy-nilly—and getting away with it without consequence. Commissioner Murphy’s Deputy Commissioner Leonard Reisman was candid about this to The New York Times, perhaps more so than he meant to be. Describing Mapp as a “shock” that required the police to “reorganize our thinking,” he said, “Before this, nobody bothered to take out search warrants … the feeling was, why bother?”30
It’s true that the exclusionary rule lets off some bad people, but it’s supposed to. As the Supreme Court tells us, it works by “deterrence.” The idea is that the threat of depriving society of convictions that everyone agrees should stick will cause the police to clean up their act. Or lead the rest of us to make them do so. If you don’t want evidence thrown out, follow the constitutional rules. If the exclusionary rule were taken seriously, and convictions were tossed out regularly when the Constitution was violated, problematic actions and policies would be changed.31
There are serious problems with the exclusionary rule; they are just different than what bothers most people about it. All these problems emerge from the fact that in exclusionary rule cases, judges see a biased sample. Think of it this way: Cops are out in the world doing what they do. Sometimes it works, sometimes it doesn’t. But in an exclusionary rule case the judges see only an instance in which the cops’ tactic worked. They got the bad guy. Judges almost never see any of the cases in which the tactic proves ineffective.32
The first problem with the biased sample is that because judges don’t want to let a bad guy go, they bless what the police did in that case, no matter how out of line it was. Take as an example the 1988 decision in Murray v. United States. In that case, officers suspected that the defendants had drugs in a warehouse. So they—as the Supreme Court tells us—“forced entry.” Seeing that drugs were indeed there, only then did they do what they should have done beforehand: they went to a judge for a warrant to search the warehouse. The initial entry was an egregious violation of the law and the Constitution, and the evidence should have been tossed out. But the courts didn’t: they approved the subsequent search based on the warrant. Faced with the fact that the defendants had 270 bales of marijuana, you can see why the judicial system, especially at the height of the war on drugs, was reluctant to toss all this evidence out and let the defendants walk. But still.33
The second problem is worse: once a court approves what the police did in the case, it effectively grants permission to the police to keep using the same tactic in all subsequent cases. Each of these cases is not just one instance of bending over backward to send a bad guy to jail. It serves as a precedent for the next case. The Murray decision effectively told cops: Sure, go ahead and peek without a warrant, what the heck. Or, as the dissent pointed out, the Court “emasculates the Warrant Clause and undermines the deterrence function of the exclusionary rule.”34
What’s unsettling is that because judges are ruling in these cases based on a biased sample, they have no clue whatsoever whether the tactic they are blessing really works, or whether police are using it to invade the liberty of countless unknown and unseen people and in this one instance just happened to get lucky. All the judge sees is that it worked to catch this bad guy. As you’ll recall from the Introduction, cops often are using these tactics on countless people with little success. When police admit they search fifteen hundred bus passengers per week, and have caught no one in months, that is a whopping lot of people intruded upon for no apparent return. But judges don’t see aggregate data like this in most exclusionary rule cases; they just see the one guy who happened to get caught. If they saw how ineffective the tactics were overall, their rulings might differ substantially.35
Not only does judicial distaste for the effect of the exclusionary rule lead to bad decisions, it also is leading the Supreme Court to systematically dismantle the exclusionary rule itself. For example, if the police seize evidence illegally but can argue that they would have found it anyway had they not broken the law—as in the Murray warehouse case—courts will admit it. And if the police violate the law but can persuade the court it was just a “good faith” mistake, often the evidence they seize will be admitted. In 2011, in Davis v. United States, the justices referred to the exclusionary rule as a “bitter pill” that society should swallow only as a “last resort”—and that is certainly the trend of the Court’s decisions.36
MONEY DAMAGES, AND WHY THEY FAIL
So what about the old-fashioned remedy: sue the cops for money damages? A lot of notable people who purport to care about the underlying constitutional rights—including some prominent judges—argue money damages is a better alternative than the exclusionary rule. By forcing cops, police forces, and governments to pay the victim of errant policing, we will ensure the police don’t violate the rules in the first place. And at least now the winner in court can be someone who wasn’t guilty of anything.37
On paper at least, there is a federal money damages remedy. Around the same time the justices were deciding Mapp v. Ohio, they also decided that if state law was an obstacle to the innocent recovering money damages in court, they’d create a way to do this under federal law.38
In reality, though, the Supreme Court has made it almost impossible to get these money damages.
One wants to be careful before imposing money damages on cops. It’s that familiar problem of calibrating the remedy. On the one hand, if we don’t attach meaningful penalties to misconduct, then, as we’ve seen, the misconduct won’t stop. On the other hand, if the penalties are too harsh we will “overdeter” the police—someone will be screaming “help” inside a building and the cops will think, “Gosh, if I run in and a court later decides I should not have, I could lose the family house.” We don’t want that, either. Like Goldilocks’s porridge, when it comes to deterring police misconduct, one wants to get it exactly right.39
The Supreme Court has tried to deal with this problem by giving government employees who are bound by the Fourth Amendment (be they cops or school officials) what is called “good faith” immunity—the very thing that has let off the hook all those people who conducted strip searches. If individual officials violate a rule that is “clearly established,” then they pay money damages; but if the law was uncertain at the time they acted, then it seems unfair to make them pay.40
The problem is that, as we saw in the strip-search cases, the judges’ discomfort with punishing the police leads them frequently to claim that the law was not clear enough to award money damages. It turns out that before an official can be held liable there has to be a decision dealing with virtually the exact same facts from an appellate court in the exact same jurisdiction. And even here, courts bend over backward not to hold the cops liable.
Examples of judges’ unwillingness to call a spade a spade abound. When Seattle police officers tased pregnant Malaika Brooks three times for refusing to leave her vehicle after a speeding violation, the federal appellate court held that the officers were entitled to good faith immunity because the relevant case law did not establish that “every reasonable official would have understood … beyond debate that tasing Brooks in these circumstances constituted excessive force.” When an Idaho state trooper suspected Jason Miller of driving under the influence, he had a catheter forcibly inserted into him, with no warrant to back that up. Yet the trooper was not liable because “American search-and-seizure law is undeveloped as to when an officer may administer an involuntary warrantless catheterization on a suspect.” When seventeen-year-old Demarius Steen sped away from a Florida police officer on his bike, the officer tased Steen from his moving window. Steen crashed his bike, fell under the tires of the police car, and was killed. Although Steen’s death was “tragic and unfortunate,” a federal court nonetheless granted the officer immunity because there was no case “stak[ing] out a bright line and holding that it is excessive force for a police officer in a vehicle to tase someone who is fleeing on a bicycle.” In a case strikingly similar to the Supreme Court’s Stafford strip-search decision, Kansas school officials in 2011 responded to a “tip” from a student that another student, a fifteen-year-old tenth-grader, was hiding marijuana in her bra. Against the student’s protests, officials touched her breasts, and coerced her to “lift up her shirt and bra away from her body exposing her breasts.” No drugs were found. The federal court found that neither Stafford, nor other precedent, “clearly establish[ed] this more particularized issue.” What does that even mean?41
This all seems nuts—right? Now you see the heart of the problem. Courts just can’t face holding officers liable, no matter how outrageous the conduct or how clear the law that prohibited it. But cops are only human: if courts are willing to sign off on what they do, then they keep doing it. This is precisely how policing gets out of control.
You’d think that even if the courts are unwilling to stick individual police officers with money damages, they’d be willing to hold the departments responsible—or maybe the state or city itself. In the world of private employment, if your employee runs over me with a truck, you pay. You hired the guy, you gave him the truck, and if you have to pay to make things right, you and all other employers will make sure their employees are more careful in the next case. That is how deterrence works.
Unfortunately, the Supreme Court has largely given the employers of police a free pass as well. The justices have decided that under the Constitution state governments for the most part cannot be forced to pay money damages at all. And before a local government entity—a town or a police force itself—can be held liable, it has to have an official policy in place. Now, there’s a Catch-22 if ever one existed. As we’ve seen time and again, these policies don’t exist, which is why the bad stuff keeps happening. But under the Supreme Court’s rules, the governments are rewarded for not having policies by not having to pay. (Maybe this is part of the reason we don’t have the policing policies we so desperately need.)42
INSECURE JUDGES AND UNCLEAR RESTRICTIONS
It may seem at this point like the judges just don’t care about our rights, or want to protect the police at any cost. But that’s not it—or one hopes that is not it. It is just that the judges find themselves in a very difficult position. Policing is complicated, and judges lack information to know whether their tactics are necessary or not. So, in the name of public safety, and uncertain what is right, they let the cops do as they wish.
The problem is that when judges refuse to say no, the police are left without the regulations they so desperately need. Or that the rest of us need them to have. All of government needs rules to operate, but especially the police. For a paramilitary organization, clear rules—what the law sometimes calls “bright line” rules—are of the utmost importance. Confronted with one difficult emergency situation after another, the police need to know what they can and cannot do.
As it happens, the Supreme Court is happy to fashion clear rules telling the police what they can do, but terrified of telling them what they cannot. There are all kinds of clear-line rules giving the police leeway to search. When police stop a car they can order everyone out, even if there is no reason to suspect any of them of wrongdoing. If the driver of a car has violated the law—even in the most trivial of ways, such as driving without a seat belt—police may arrest her. When police choose in their discretion to arrest someone—again, no matter how minor the offense—they can search the person’s body. When the person is put into a facility, a strip search, including visual cavity search, is always fine. And so on.43
When fashioning these “yes” rules, the justices tell us (as is true) that the police need clear rules to know what they are allowed to do. They say things like “A single, familiar standard is essential to guide police officers, who have limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” 44
But when asked to formulate a rule for what police may not do, the justices invariably choke. All of a sudden, clear rules are a problem. The justices tell us what the police did can only be evaluated after the fact, after the harm is done, based on the “totality of all the circumstances.” Do police have to tell people they needn’t consent to having their person or property searched? No. The facts of each case must be examined to determine “from the totality of all the circumstances” whether consent was voluntary. Are there specific training guidelines or records that must be kept before treating the alert of a drug dog as probable cause to search? No. “We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach.” 45
The consequence of this failure to adopt clear rules is all around us. Take the so-called consent searches, where as we have seen tens if not hundreds of thousands of people each year agree to be searched. As Justice Stevens said in one case—in which his colleagues refused even to require the police to tell drivers they are free to go before asking them to consent to searches—“Repeated decisions by ordinary citizens to” agree to the searches “cannot be satisfactorily explained on any hypothesis other than an assumption that they believed they had a legal duty to do so.” 46
Ironically, Supreme Court justices seem most unable to say no; their colleagues on the state high courts sometimes do, only to find their decisions restricting the police reversed by the justices. Perhaps the justices’ reluctance is understandable: they make law for the entire country in one fell swoop, and plainly are concerned that with their limited knowledge they not handicap the cops. But it is sheer delusion to believe the courts are regulating the police when no one else does. The courts aren’t either.47
THE NEW WORLD OF POLICING
Whatever capacity the courts once had to regulate police behavior has been seriously undermined by fundamental changes in how policing takes place today. Well into the twentieth century, policing was reactive—the goal was to apprehend people who violated (or were about to violate) the law. But now, aided by technology, policing is increasingly proactive, increasing its reach deep into society, and making it extremely difficult for courts to draw lines about what is permissible and what is not. And so, once again, they mostly say yes.48
Policing today often relies on what law professor Christopher Slobogin calls “panvasive” surveillance, by which he means it is aimed at “keeping tabs on the citizenry routinely … across huge numbers of people, most of whom are innocent of wrongdoing.” Closed-circuit television (CCTV) cameras stare down at us in public spaces, and license plate readers capture us on the roads, while aircraft—and soon drones—patrol the skies. We are stopped at all sorts of roadblocks, from drunk-driving to immigration to license-and-registration checks. “Administrative” searches—by surprise and without cause—are conducted on bars, nightclubs, junkyards, and even barber shops. Our data is collected in bulk by all levels of government and “fused” together to create dossiers on us. The new policing is focused on surveillance and intelligence gathering to a degree unimaginable even a generation ago.49
Under reactive catch-the-criminals policing, what the police did was based on suspicion—was there sufficient reason (“probable cause”) to think this or that person was up to no good. But under the new policing, because there are no suspects and thus no suspicion, constitutional protections such as probable cause are of no value. Instead, courts have concluded it is their job simply to balance competing values. Courts consider (on the one hand) how much the police tactics intrude upon an individual’s privacy. On the other, they assess the degree to which the intrusion helps the government deter or ferret out crime.50
Making the tradeoffs of the new policing is a deeply value-laden endeavor. Are drug testing of students or employees, or dog sniffs in public places, bulk data collection, or highway roadblocks worth it to protect public safety, or conduct the war on drugs, or the war on terror? The things being weighed against one another often are “incommensurable”—apples and oranges. In the law, these types of balancing tests often are derided as notoriously subjective. If values are to be weighed like this, isn’t the democratic process better than leaving the decision in the hands of the judges? That sort of thinking is doubly correct when policing is at issue, because there’s no reason to think judges have adequate data or can evaluate either side of this balance.51
Take the question of how to weigh the intrusiveness of a given police practice, like a dog sniff or a search of one’s trash. Professor Christopher Slobogin and a colleague decided to test how much the Supreme Court’s intuitions in this regard matched what ordinary people think, by administering a survey to a variety of students and citizens (including, somewhat inexplicably, some Australian students). Many of the Supreme Court’s and popular impressions matched—looking in the bushes in a public park is not a big deal, nor is having to go through the metal detector at the airport, while a body cavity search is very serious. Still, on some things that are a familiar part of the new policing, the justices’ intuitions are way off from that of the public at large. In a variety of cases, the justices have deemed a dog sniff not even a “search” triggering Fourth Amendment protections. They have called the intrusion of compelled urine tests for drugs “negligible.” Yet, on a scale of 1 (not serious) to 100 (serious), the public found being forced to urinate while someone listened to be a 72.49 and even the dog sniff is a 58.33.52
As for efficacy—whether these tactics are necessary, or work—as we’ve seen, judges rarely have sufficient evidence to decide, and so they just favor the government. For example, the justices signed off on the drug testing of all students in Tecumseh, Oklahoma, schools who participated in extracurricular activities. On what evidence? Under federal law, the school district was required to fill out paperwork to get federal drug-free-schools money. That paperwork indicated that between 1994 and 1996 “[l]ess than five percent” of the students said they’d used any illegal drugs, and between 1996 and 1998 “drugs were present but [were] not identified … as major problems.” The evidence of a drug problem was flimsy at best, largely based on the testimony of a few teachers who felt some students were acting oddly. Still, that was enough for the justices to say compelled drug testing was fine.53
The justices seem so eager at times to approve the new police practices that rather than even trying to balance apples against apples, or even oranges, they balance one apple against the whole orchard. In the school drug testing case, the Supreme Court weighed the “minimally intrusive nature of the sample collection” for one person against “[t]he drug abuse problem among our Nation’s youth.” In a drunk-driving roadblock case the court weighed the intrusion on the (single) “average motorist” against the “magnitude of the drunken driving problem [and] the State’s interest in eradicating it.”54
Rapid technological advance has only made the Supreme Court’s job more impossible. In 1971, Justice William O. Douglas observed that “[w]hat the ancients knew as ‘eavesdropping,’ we now call ‘electronic surveillance’; but to equate the two is to treat man’s first gunpowder on the same level as the nuclear bomb.” Justice Douglas was talking about an informant wearing a wire. If a wired informant was a “nuclear bomb,” it is hard even to come up with an apt metaphor to describe the NSA scooping up all our phone records, or a drone planting itself over someone’s backyard.55
The tactics and technology of today’s policing cry out for detailed data-driven rules. In what circumstance is Taser use appropriate or not? How long should CCTV video be stored, and who may view it? When should SWAT teams be deployed, and with what equipment? What is a policy for drones that accommodates privacy concerns while maximizing their value? Courts can bite around the edges here, but that is about it. And so, yet again, they tend to defer to the police and no one is left minding the shop.
A FAILURE OF DEMOCRATIC ACCOUNTABILITY
Even if courts could resolve these intricate policy-oriented questions, there is one requirement of democratic policing they can never fulfill: a popular pedigree. Rules on things like the strip-searching of school children, the use of Tasers, the deployment of SWAT teams, and the recording of people on the street, all are (at least in the first instance, which is to say as a matter of policy and before we even get to questions of constitutional law) properly the responsibility of the people, not their courts. Most federal judges and many state and local judges are not elected by the people. And even when judges are elected, their job still is to rule after the fact on the constitutionality of policing actions. Judges are never paid to write rules in the first instance.
California’s governor, Jerry Brown, has had some trouble appreciating this critical lesson. Twice in three years he vetoed legislative measures aimed at regulating policing, arguing the job should be left to the courts and the Constitution, not the people. In 2011, the California legislature passed a law overturning a decision by the California Supreme Court allowing police to search the cell phones of arrestees. Why veto that? Because, Brown explained in his veto message, “courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizure protections.” Then, in 2014, the legislature passed a measure prohibiting the use of drones without a search warrant, absent certain specified exceptions. No good, said the governor. While “[t]here are undoubtedly circumstances where a warrant is acceptable,” this law “could impose requirements beyond what is required” by the federal or state constitutions.56
This tendency to turn policing over to the courts is one of our unhealthiest habits of a country that deems itself a democracy. If the governor thought the measures were wrongheaded on the merits, he should have said so, instead of playing coy and putting it off on courts. Policing agencies pry into our private lives and use force to coerce compliance of our friends, neighbors, and families. This use of force and surveillance may well be necessary in an orderly society of our size, but they are necessary evils and should never be used lightly or without forethought. It is our responsibility to regulate these things. We do not meet that responsibility by trying to foist the job off on judges—and in particular on judges who lack the capacity and will to do the job.
The challenge we face, in light of the political logjam discussed in Chapter 2, is how to get ourselves—as a society—to take up the job of regulating the police. It is a tough, tough problem. But as we are about to see, despite all their other shortcomings, it turns out there may well be a way for the judges to help us all out here.