What we need are rules and policies to govern policing, written in advance, with public input. Sometimes we get them, particularly after policing hits the news in a big and troubling way, but usually we don’t. As we’ve seen, legislators and the police are not anxious to provide such rules, and the courts can’t. So, what is to be done?
It turns out the courts have a vital role to play here, one that they ought to find easier and more congenial than ruling on the constitutionality of police practices—they can force the rest of us to take responsibility for policing. This chapter closes out our discussion of democratic policing by illustrating how courts can prod legislative and executive bodies to do their jobs. Because policing that occurs without democratic authorization is simply unacceptable.
THE REPORT
Anyone who, in August 2014, picked up a newspaper or turned on a television, is all too familiar with the following events. They saw images so powerful it justified retrospectives in many publications a year later. What matters now, though, is not so much what happened that month as what preceded it. And what followed.1
On August 9, 2014, Officer Darren Wilson of the Ferguson, Missouri, Police Department shot and killed Michael Brown, an unarmed black teenager. Demonstrations began a day later, in and around West Florissant Avenue, in Ferguson. While many of the protesters were peaceful, some turned violent. Projectiles were thrown at the police. Looting occurred.2
Still, wrote Jamelle Bouie in Slate, capturing the dominant sentiment of the nation, “[t]he most striking photos from Ferguson, MO aren’t of Saturday’s demonstrations or Sunday night’s riots; they’re of the police.” There’s the picture of a sniper set up atop a military vehicle. There is the phalanx of soldiers—correction, make that police officers, but in the photographs they seem indistinguishable from images of American troops in Iraq or Afghanistan—decked out in camouflage, pointing automatic weapons at a tall, thin black guy in dreadlocks, his arms raised to the air. There are the Kevlar helmets, the night vision goggles, the rubber bullets raining on unarmed civilians. And everywhere the fog of tear gas fired indiscriminately.3
It looked, proclaimed voice after voice, like a war zone. All of the sudden, Ferguson was dropped in the same breath as places like Gaza or Ukraine, like—as The New York Times put it—“a chaos stricken corner of Eastern Europe, not like the American Midwest.” Prior to Ferguson, those who worried over the “militarization” of the police were voices in the wilderness. Overnight that changed. Republican State Senator Branden Peters of Minnesota said, “You get these pictures that just shock the conscience.” His fellow Republican, and libertarian, Senator Rand Paul of Kentucky, declared, “The images and scenes we continue to see in Ferguson resemble war more than traditional police action.4
Indeed, focus for just a moment on what a select few had to say, those in what one might call Ferguson’s political chain of command. The governor of Missouri, Jay Nixon, was “thunderstruck by the pictures we saw—the overmilitarization, the MRAPs rolling in, the guns pointed at kids in the street.” (MRAP stands for “mine resistant ambush protected”—the sorts of vehicles that were on everyone’s minds following the televised images from Ferguson, though what we saw on the street there was actually a BearCat.) The district’s Representative in Congress, William Lacy Clay, announced, with apparent outrage, “I witnessed firsthand, high-powered sniper rifles with night scopes being pointed at my constituents who were peacefully exercising their constitutional rights.” “We need to demilitarize this situation—this kind of response by the police has become the problem instead of the solution,” insisted Missouri Senator Claire McCaskill. “At a time when we must seek to rebuild trust between law enforcement and the local community,” weighed in Attorney General Eric Holder, “I am deeply concerned that the deployment of military equipment and vehicles sends a conflicting message.” Even the president spoke up, saying at a press conference at which Ferguson shared double billing with conflict in Iraq, “I know that many Americans have been deeply disturbed by the images that we’ve seen in the heartland of our country.”5
While their concern was undoubtedly sincere, they—among all others—should hardly have been surprised.
Beginning in the 1990s, the U.S. government gave away to state and local law enforcement—or otherwise subsidized the purchase of—billions of dollars of military equipment. While the laws that enabled this giveaway originally were adopted as part of the war on drugs, the war on terror provided the primary justification after September 11. From 2009 to 2014 alone, some $18 billion of money or materiel was transferred from the military to domestic policing agencies. Nick Gragnani, of St. Louis’s Area Regional Response System, which did the acquisition for Ferguson, explained that “[t]he focus is terrorism, but it’s allowed to do a crossover for other types of responses … There was no restriction put on that by the federal government.” The primary vessel was the Department of Defense’s “1033” program, dispensed through the Defense Logistics Agency’s Law Enforcement Support Office (motto: “From warfighter to crimefighter”). But there were at least eleven others, including grants from the Department of Homeland Security and the Department of Justice.6
Although the vast majority of this equipment was uncontroversial—from binders to computers to desks—a large portion of it was military grade, what the federal government calls “controlled equipment.” Almost five hundred thousand pieces of it. Aircraft, armored vehicles, munitions, grenade launchers. MRAPs. Weapons above .50 caliber, which Stars and Stripes magazine says “can crack an engine block without breaking a sweat, so getting hit by one would ruin your day.” And bayonets—though what conceivable use law enforcement could have for bayonets on American streets was a question many felt worth asking.7
The equipment was distributed like Halloween candy. North Carolina got sixteen military helicopters and twenty-two grenade launchers; Tennessee got thirty-one MRAPs and seven grenade launchers; Florida did particularly well, garnering forty-seven MRAPs, thirty-six grenade launchers, and more than seven thousand rifles. Then there were the schools: five districts in Texas and five in California received materiel, including MRAPs and grenade launchers. Mississippi’s Hinds Community College and the University of Central Florida each got grenade launchers; Hinds got two M16s as well.8
The nation aghast, the president ordered a review of these programs. His office brought in representatives from federal agencies, law enforcement, the academy, and civil rights organizations. In December 2014, he issued a report. The report explained that, particularly in light of local budget cuts, the programs have “been valuable” in helping law enforcement “carry out their critical missions in helping to keep the American people safe.” But from there it went downhill fast.9
In a very few pages, and couched in bland bureaucratese, the report was nonetheless searing. There was “insufficient transparency” in the programs, which took place “outside of a local government’s standard budget process and without civilian (non-police) government approval.” One result: often local officials and the general public were in the dark. Another: “the proliferation of equipment in amounts … inconsistent with the size and training capacity” of law enforcement. The Department of Defense, dispensing the goods, could not assess what was necessary, as it “does not have expertise in civilian law enforcement operations.” Yet law enforcement itself expressed concern that “police chiefs” and others responsible “lack proper training to understand when and how” the equipment should be deployed. “[T]raining has not been institutionalized, specifically with respect to civil rights and civil liberties protections, or the safe use of equipment.” What training there was may have “unintentionally incentivize[d] the use of military-like tactics and equipment when unnecessary.” There was no effective coordination among the various federal programs; “[a]s a result, there may be no single entity in the federal government able to track” the equipment, and if a particular police force is cut off by one program because of “misusing funds or equipment or violating the Constitution” the force could simply go somewhere else.10
Perhaps it pays to simplify. The federal government spent billions of dollars putting military equipment in the hands of local law enforcement. It did it behind the backs of civilian authorities, and without assessing the need for the equipment. Local police authorities took the equipment even though they lacked proper training in how to deploy or use it. But deploy it they did; indeed, one of the all-too-few requirements of the program was “use it or lose it”: the equipment had to be deployed within a year of receiving it.11
POLICY CHANGES AFTER FERGUSON
Although for the most part the acquisition by local law enforcement of military-grade equipment had happened outside the public’s consciousness, in the aftermath of Ferguson that changed. “The August, 2014 clashes between protesters and heavily equipped police in Ferguson, Missouri,” explained the Bozeman (Montana) Daily Chronicle, “led to a national conversation about the militarization of police forces.” That national discussion was not nearly as consequential as the many local ones taking place in state legislatures and town councils, in neighborhood and community associations. American democracy is layered: absent some overriding national necessity, state and local governments are free to make their own choices. After Ferguson, many of those units started to do so, adopting policies that differed in significant ways from one locale to the next—the sign of a healthy democratic process at work.12
State Senator Nia Gill represents New Jersey’s 34th legislative district. She hails from Montclair, a suburban college town just outside of New York. Gill is African American and a Democrat. After graduating from law school she served as a public defender. Then she went into politics. She served seven years in the State Assembly before moving to the State Senate, where she is now President Pro Tempore.13
Following Ferguson, Gill asked the New Jersey Attorney General for information about what military-grade equipment was in the state, and where. It took a little persistence, but what she finally found out both troubled and surprised her. Not only was there a great deal of equipment “more suited to a war zone than community policing,” but “most of the military equipment like the assault rifles and grenade launchers … were in suburban communities, and the communities knew nothing about them.” So Gill set out to do something about that.14
As a result of Gill’s efforts, on March 16, 2015, Republican Governor Chris Christie signed into law S2364, which passed both houses of the New Jersey legislature unanimously. The trick to such bipartisan success? Her bill was agnostic on whether communities should possess 1033 material. Instead what it did was set up a requirement that before any police force registered for 1033 equipment or acquired any particular items, it “shall be approved by a resolution adopted by a majority of the full membership of the governing body of a local unit.” The “community local government factor,” she says, “was something everyone could agree with,” be it a rural Republican, a representative from a major urban area, and even the police themselves. Law enforcement, she explained, “wanted to have a system so if they needed training, or to have the equipment housed, they would know how it would happen. By making it transparent they were on board.”15
New Jersey was the first state in the nation to act; Montana was the second. There the primary mover was a free-market, small-government Republican from Superior, Representative Nicholas Schwaderer. His approach was different: the Montana law bans law enforcement from receiving any of a list of materials—including armed or weaponized drones, grenades and grenade launchers, silencers, militarized armored vehicles—from the federal government (though they can still buy the same with their own funds). In addition, if law enforcement “requests property from a military equipment surplus program,” public notice must be provided two weeks beforehand.16
What happened in New Jersey and Montana took place in other states and cities and towns throughout the United States. The Davis, California, City Council gave its police chief sixty days to come up with a plan to get rid of the city’s MRAP. “When it comes to help from Washington,” said Davis’s mayor, “we have a long wish list. But a tank, or MRAP, or whatever you choose to call it, is not on the list.” San Diego’s Unified School District returned its MRAP also. Superintendent Cindy Marten said school safety issues should be addressed with input from “students, staff, parents, community members, law enforcement and others.” The district’s police chief, Rueben Littlejohn, concurred: “The value that this defensive tool would bring cannot exceed the value of retaining the public’s trust, confidence, and perceptions of how we will protect our students.” The Town Board of Woodstock, New York, passed a resolution “declar[ing] it has never accepted, nor will accept or procure military arms and/or heavy armor for its police department now or in the future.” Cathy Mararelli, a board member, was “shocked” to learn that Ferguson, population twenty thousand, had $4 million worth of military-type equipment. “It’s ridiculous to have that much armor for a small town.”17
WHEN PEOPLE PARTICIPATE, POLICING CHANGES
The people can come together and make decisions about policing. And when they do, policy often changes.
The first thing you notice about these many efforts is how they traversed the ideological spectrum. The Pew Charitable Trust observed that legislative responses to Ferguson were “backed by Democrats and Republicans, in red states and blue states.” The ACLU was a key player in New Jersey; Montana’s effort was publicized and promoted by the Tenth Amendment Center, a states-rights organization. (The Tenth Amendment Center also supported State Senator Gill’s measure.) The same phenomenon was true of another set of reforms occurring in Ferguson’s aftermath: limiting the funds municipalities can collect from traffic fines. When the Missouri legislature passed a bill doing so, the primary sponsor was a white Republican; another sponsor was an African American Democrat who’d been arrested during the protests in Ferguson. “If the St. Louis Tea Party coalition and the ACLU are on the same page,” said Bill Hennessy, a leader of the Tea Party coalition, “we must be going down the right path.”18
When people focus their attention on policing, vibrant policy conversations occur. In 2012, the City of Seattle bought two Draganflyer X6 drones with Homeland Security money. It was on the city’s consent calendar—intended for adoption without debate—but someone noticed and a firestorm erupted. Several public hearings then ensued, at which opponents called council members “idiots,” “crooks,” and even “Nazis.” Enough, cried Seattle’s mayor, and ordered disposal of the drones. This proved more difficult than expected—the manufacturer would not take them back—but eventually Seattle pawned them off on Los Angeles. Lesson learned? The Seattle Police Department’s spokesperson said, “It’s important to have an open conversation with the public on what your plans are when you’re talking about drones.”19
When Seattle’s drones moved to LA, the lesson about public discussion traveled with them. Police Chief Beck insisted the drones remain under lock and key until there was a public process. “The Los Angeles Police Department will never, ever give up public confidence for a piece of police equipment.” He handed the drones over to the LAPD’s inspector general, and the president of the LA Police Commission tweeted, “Putting the two hot potatoes in the freezer while we do public process.” That process proved contentious. The organization Drone-Free LAPD No Drones, LA! formed in response. A year and a half later, the drones remained grounded.20
Upstate from Los Angeles, in San Jose, a proper public process led to a very different result—one favoring law enforcement. As in Seattle, public anger grew on word of an impending drone acquisition. But the San Jose Police Department got the message fast, repeatedly apologizing for not having “done a better job of communicating” about the purchase of the drone. Ultimately, the San Jose Neighborhoods Commission, which initially had been very concerned, came around. It authorized a yearlong pilot project, concluding “the UAS [unmanned aerial system] can be a useful tool,” and “that if the department continues to work openly with the council, the commission and the public, the public’s concerns can be alleviated.” The Commission was proud of its involvement and its role in the eventual result. “We’re participating in a really important process here,” said Commissioner Nick Labosky. “We’re showing the template for how it’s done.”21
These conversations reinforce the proper political hierarchy: the people on top, governing, working with the police in making decisions. In Menlo Park, California, the police got upset at legislation limiting data retention from drones and red light cameras. Chief Robert Jonsen told the city council, “I personally do not feel an ordinance is necessary for this department. It’s a matter of trust.” Council member Ray Mueller shot back, “We’ve been aggressive when it comes to using technology. If we didn’t trust you, we wouldn’t give them to you. It’s about having a prudent check on power.” The city of Durham, North Carolina, adopted special rules for consent searches after data showed police were twice as likely to search blacks as whites, despite turning up no greater amount of contraband. Police Chief Jose L. Lopez, Sr., was frustrated. “You have a Puerto Rican police chief in the City of Durham, and you are going to accuse him of racism?” Replied Pastor Mark-Anthony Middleton, a leader in the Durham Congregations, Associations & Neighborhoods group, “[H]e has to understand who runs the city. He sure does now.”22
These sorts of conversations are essential because the answers are not always easy, although they may seem so to committed partisans. As New Jersey’s Nia Gill points out, “I was not trying to eliminate participation in the program if the community felt it was necessary; maybe they want their police to have night goggles but not bayonets and assault weapons.” The Ferguson backlash caused many places to return their MRAPs. But those vehicles actually can serve valuable purposes. The chief of the University of Texas’s police force, Michael Heidingsfield, explained to the press that his community went through an elaborate process of discussing how to deal with armed shooters, and ultimately decided the MRAP was essential. “What we have here is really an armored container on wheels, it has no weapons associated with it whatsoever, it has our graphics on its side.” (“Emergency Rescue” is what it says.) Similarly, after Gill’s legislation was adopted, many New Jersey shore towns decided to acquire more military vehicles to help in high winds and water. Around the country, military vehicles have been credited with playing a critical role in rescuing flood victims during a storm.23
Indeed, it is a sign of a vibrant democracy that—after debate—jurisdictions reach different conclusions. Says Gill, “In fact we found that there was varying opinion. Some local people wanted to get certain things; some wanted to get others.” That proved true throughout the country. Davis gave up its MRAP, as did Sangamon County in Illinois, but the Edinburg Consolidated Independent School District in Texas kept its two Humvees, cargo truck, and M4 and AR-15 assault rifles. The Aledo, Texas, School District got rid of its M16 (and M14) rifles, while Utah’s Granite School District and Nevada’s Washoe County School District had no plans to get rid of theirs. The Los Angeles Unified School District held on to its rifles, but got rid of three grenade launchers, and eventually its MRAP.24
What matters, as UT’s Chief Heidingsfield makes clear, is an open process leading to reasoned outcomes. “The question that communities need to ask is how are their police agencies going to use this equipment and if there’s been a deliberative, thoughtful, rational process … I think that’s where the judgment should be made, not simply the fact that the agency received a certain piece of equipment.”25
What’s notable is that when there is transparency, when public dialogue occurs, policy unequivocally does change. We’ve now seem plenty of examples of this, but there are many more. For example, when citizens of Washington State learned that some of their police were using a Stingray cell phone tracker, the state legislature passed a law not only requiring a warrant, but specifically requiring that police describe the technology and its impact in detail to judges. It unanimously passed both houses. Stingray legislation also has passed in Virginia, Minnesota, and Utah. When news stories surfaced in Texas that officers were conducting roadside body cavity exams, the Texas legislature adopted a bill banning such searches without a judicially issued warrant.26
All of this suggests that the secrecy and lack of debate so common around policing is deleterious. If, given public discussions, things would be different, then democracy demands those discussions occur.
MOVING THE ELEPHANT
The problem is that sparking the sort of public action witnessed here is tough. The list of policing issues untouched in most places by any sort of public conversation and popularly vetted rules is long: the use of informants, the protocols for consent searches, the circumstances under which stop-and-frisk is appropriate, vehicle chases, the retention and collection of images from public cameras, deployment of roadblocks (sobriety and otherwise). One could go on and on.27
This should come as little surprise. As we have seen, left to their own devices, lawmakers who must stand for election would rather not regulate the police. So how to change this calculus? What will cause legislative bodies to take up their responsibilities, even if they would prefer not to?
The Policy Director for the ACLU of New Jersey, Ari Rosmarin, can give you one answer. Before Ferguson, Rosmarin had been working in New Jersey on the issue of militarization. His efforts even to get the basic information he needed—like what equipment was in the hands of New Jersey police forces—were stymied. He’d tried Freedom of Information requests only to have them denied.28
And then, he explained, Ferguson happened, and “it shifted the way we talked about it.” Before Ferguson the issue was “esoteric,” but “people now had a visual sense of the concern we talked about. The projection of the imagery from Ferguson undoubtedly shifted how people thought about the issue and changed the political calculus as well.” It became a “hot story” in New Jersey, and as it did the state “started releasing more data that it had refused to provide before. All this stuff came out: grenade launchers, bayonets, M16s—it became a local issue, people engaged with it in a way they had not before. It would not have, but for this idea of ‘militarization’ becoming a dominant narrative after Ferguson.”29
Rosmarin puts his finger on a primary lesson of legislative politics: salience is everything. Public attention is the lever that can pry loose many a stuck rock. Once the public cares, and the media is engaged, then legislators no longer can avoid the issue: they are forced to take positions, to listen, and perhaps to act.
The news and the media can affect salience; but so too can interest groups. If they are prominent enough they can start the legislative ball rolling. Take the federal law that governs law enforcement use of electronic surveillance, the Electronic Communications Privacy Act. We’d never have that legislation except for the fact that the telecommunications industry did not want to continue spending time and money responding to government data requests. So they made an issue of the problem and they lobbied hard for the legislation.30
Of course, interest groups can stop legislation also, and in that regard, as we’ve discussed, law enforcement is a powerful player. When the Electronic Communications Privacy Act needed updating, even the tech lobby found it difficult to get action, because significant elements of law enforcement continued to oppose the proposed fixes.31
It takes pretty solid momentum to overcome law enforcement resistance. Rosmarin notes there are other bills pending in New Jersey that interest the ACLU—from an independent prosecutor for police shootings, to police training, to body cameras. But in the hearings on these measures, “every gradation of policing, from police unions, to superior officers, to patrolmen” will come to talk about the “threat to public safety, the damage to police morale” if the bill is passed. There are the “optics: guys with badges coming into the hearing room telling you there will be blood in the street.”32
The police unions, in particular, are a potent force—perhaps even more so than police chiefs. They bring “endorsement, money, votes,” explains Rosmarin. “They will do canvassing, phone banks, they are engaged in a way the police reform movement isn’t and cannot be.” As a legislator, you don’t want the “average voter to get a mailer saying Senator X voted against the police, who are trying to protect you.” That sort of pressure is “difficult to stand up to absent an upsurge of momentum in the other direction.”33
By now, the nub of the problem should be screamingly evident. There’s lots of room for rule-making on policing. But it’s difficult to gather the sort of “momentum” to get the ball rolling, to generate consensus, to overcome law enforcement opposition. In part, Senator Gill accomplished it by cleverly framing her bill as simply moving the issue down the legislative ladder. But in part it took a Ferguson. And a Ferguson is a rare event.34
It turns out, though, that there may be an entirely different solution. A surprising one.
PRODDING THE LEGISLATURE
Several years ago, two law professors had a disagreement. Both taught at the same law school—George Washington University, in the District of Columbia. Both are experts in criminal procedure.35
The disagreement was over how to handle the rules for government searching in a world of rapidly changing technology. Orin Kerr, who had spent time at the Department of Justice working on computer crime issues, argued that courts should step out and let the legislature do the job. Technology is complicated, it changes quickly, courts aren’t competent to know what to do, and they can’t fashion the sort of broad rules we need to regulate matters. Not so, responded his colleague Daniel Solove, whose specialty is privacy law: courts can get all the information they need from the parties before them, and besides, legislatures are not doing a very good job of keeping up anyway.36
Their debate was reminiscent of a 1980s advertising campaign. A disagreement breaks out in a bar. Over beer. But not, as you’d think, over which beer is better—no, this is a fight over what attributes made a particular beer (Miller Lite) best. “Less filling,” hollered one part of the crowd. “No,” the others shouted back, “tastes great.”37
The answer, of course—for Miller Lite, and for Kerr and Solove—is, why can’t it be both? Why shouldn’t courts and legislatures work together on policing?
This, in fact, is how some of our most important legislation on policing has been made. Here’s an example. In 1928, in a case called Olmstead v. United States, the Supreme Court held that the Fourth Amendment had nothing to say about government wiretapping. As far as the Constitution was concerned, the government could do as it wished. “Congress soon thereafter, and some say in answer to Olmstead, specifically prohibited the interception without authorization, and the divulging or publishing of the contents of telephonic communications.” That was the Supreme Court talking, in the 1967 decision in Berger v. New York, referring to congressional enactment of a provision in the Federal Communications Act of 1934. The point was that the Supreme Court’s refusal to regulate wiretapping forced Congress into the act.38
It turns out the Berger decision had the same effect of provoking legislation as Olmstead. In Berger the Supreme Court struck down New York’s wiretapping and eavesdropping law, holding that it flunked the Fourth Amendment in a number of ways. The response to Berger was to trigger one of the more important federal statutes in this area ever adopted, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, commonly referred to as the Wiretap Act. Title III comprehensively regulates police wiretapping practice throughout the nation. The statute uses the Supreme Court’s opinion in Berger as a road map, though it exceeds in some aspects what the Supreme Court said the Fourth Amendment required.39
There are three very interesting lessons to this pattern of judicial-legislative interaction. They relate directly to the problem of how difficult it is to motivate a legislative body, and why.
First, although the courts have proven disappointing at protecting constitutional liberties and regulating the police, they can play an important role in forcing democratic action around these same issues.
Second, as the Court’s opinions in Berger and Olmstead indicate, what seems to trigger legislative action in response to a judicial decision is for the judges to take somewhat of an extreme position. It almost doesn’t matter in which direction. Olmstead left wiretapping entirely unregulated by constitutional standards. Berger, on the other hand, took a stringent view regarding wiretaps under the Constitution. Both caused—in a sense forced—Congress to enact legislation in response.40
But finally, although an extreme decision in either direction may work to elicit legislation, given the nature of interest-group politics around policing, there is reason to think the best tool will be rights-protective rulings that limit what government can do. That’s because, as we’ve seen, the most focused and successful interest group around policing is the police themselves—and their partners in crime prevention, prosecutors.41
Stated directly: If the courts say the police cannot do something, at least absent some sort of legislative regulation, and if the police think it is important that they have this power, they will come to the legislature and demand action. Gore the government’s ox, and it will rise and respond. And then we will have the democratic debate that is so desperately needed in this area.
While this strategy works to motivate legislative action, there’s a big problem with it. We’ve already seen how courts are extremely reluctant to rule against the police, concerned that they lack a certain amount of information and expertise. But it is worse yet.42
The difficulty is that with constitutional rulings—including those under the Fourth Amendment—legislatures can’t move them out of the way, even if those court rulings prove silly or counterproductive. We are stuck with constitutional rulings unless and until we pass a constitutional amendment, or the Supreme Court changes its own mind and reverses itself. The first almost never happens and the second is pretty rare as well.
That’s yet another reason judges are so cautious about saying no to the police on the basis of the Constitution. We can see how rights-protective rulings can spur legislative action. But judges are reluctant to do it very often, because it may tie the hands of the police in ways that prove troubling.
AUTHORIZING THE POLICE
What, though, if instead of saying “aye” or “nay” to the police, the courts could somehow require popularly accountable bodies to consider the issue themselves? In other words, what if the courts could simply insist that before the police act, the lawmakers adopt democratically accountable rules regulating police behavior?
That’s what happened in Utah v. Sims.43
At about 9:30 a.m. on July 27, 1988, Louie Sims was tooling down Highway 15 just outside Nephi, Utah, when he encountered an “all purpose” roadblock being run by the Utah Highway Patrol. UHP Sergeant Paul Mangelson, a somewhat hyperactive drug enforcer, was in charge. Sims stopped, and was asked for his license and registration. At that point, Trooper Carl Howard smelled alcohol and saw an open container in the backseat. He had Sims exit the car, and asked permission to search. Sims consented. In the rear passenger ashtray Howard found the remains of a couple of joints, so he asked to search the trunk, too. There, in a suitcase, Mangelson found two plastic bags of marijuana. At that point Sims said “no more,” but—believing he now had sufficient probable cause—Mangelson kept going. In the spare tire well he found a kilogram brick of cocaine.44
Sims argued that no Utah law authorized the roadblock, so it was invalid and all the evidence against him had to be thrown out. In most other jurisdictions, Sims would be on his way to the hoosegow. The roadblock was stopping everyone to check license and registration; Sims was plainly in violation of an open container law; he consented; and it was a pretty big haul. This is precisely the situation in which courts are reluctant to toss out evidence, and so they bend over backward to approve what the police have done. As the Utah Supreme Court noted, courts in other states had inferred permission to maintain such roadblocks from the sorts of general authority given to the police to enforce the criminal law that we have seen are common.45
But not only did Sims walk, the Utah Supreme Court ruled he did not even have to pay the $400,000 tax bill imposed by the state. The Utah courts—there were opinions from the Utah Court of Appeals and the Supreme Court—noted that other sorts of roadblocks in the state had specific legislative approval. Whether it was to search large trucks carrying livestock, or all cars to enforce the fish and game laws, “the collective will of the people is expressed” through “their elected representatives.” But here, there was no law whatsoever in place, a complete lack of “political accountability.” Thus: search invalid.46
In striking down the search of Sims, the Utah courts stressed how important it was to have some sort of check on law enforcement. The courts pointed out that the requirement that police obtain warrants before searching was taken seriously in that state as a way to curb police excesses. But roadblocks typically happen without warrants, because there is no “probable cause” to believe that anyone has done anything wrong. Thus, said the Utah courts, it was doubly important to have a preexisting statute in place. “Both warrants and statutes originate outside the executive branch, serving to check abuses of that branch’s law enforcement power.” The Court of Appeals made much of the fact that “no written policy, from the Highway Patrol or from any other source, existed to guide the conduct of the roadblock.” 47
These sorts of decisions requiring legislative authorization of policing are all too rare here in the United States, although they are hardwired into the system in other countries. In R. v. Spencer, for example—a decision of the Canada Supreme Court—the defendant was caught with gobs of child pornography on his hard drive. At that point, though, all the police had was an anonymous user account they knew held unlawful images. The question in the case was whether the police needed a warrant before going to the account holders’ Internet service provider (ISP) to find out who the actual user was. In analyzing the question, the Spencer court set out the standard approach in Canada. There, a search is “reasonable” if (a) it was authorized by law; (b) the law itself was reasonable [i.e., constitutional]; and (c) the search was carried out in a reasonable manner. Note the critical first inquiry.48
Skipping over the initial question—whether what the police did was authorized by law—is strange in a country like ours that’s so full of pride about its democratic heritage, so ostensibly reliant on the will of the people. There’s little explanation for it save force of habit. Courts are so used to ruling in constitutional terms that they don’t stop to ask whether what policing agencies are doing has any clear authorization.
Rather than cluttering up policing with a lot of ill-considered constitutional rules, courts should force democratic deliberation and legislative action. That is easy enough to do if they would just stop to ask the simplest of questions: “Is what happened here authorized by some existing, democratically accountable rule?” If there is clear authorization, then courts must move to the constitutional question. But if not, that alone is sufficient basis to invalidate what the police did. Not for all time, as a constitutional ruling would. But until the policing agency has obtained clear democratic authority—either from the legislature, or by promulgating its own rule with popular input.
WHEN SPECIFIC AUTHORITY IS REQUIRED
To the extent there is no law at all giving policing officials authority to do something, it is obvious courts should refuse to allow them to do it. After all, no government official can act without formal authority. But as we’ve seen, there typically are extremely broad grants of authority to police agencies that tell them to go forth and enforce the criminal law. Ought these to suffice, or is there still room for courts to step in?49
The question courts should be asking themselves in each case is whether an existing blanket authorization is sufficient to cover what the police did. For familiar policing tactics with a long pedigree—such as traffic stops based on probable cause—the answer likely is yes. But there are a number of situations, increasingly common, in which such age-old authorizations dubiously cover what has happened. For example, when police employ invasive technologies, such as drones and heat sensors, that were beyond the wildest imagination of anyone, including the legislators, at the time the general authority was conveyed, it seems entirely plausible to require the government to go back to the legislature and get specific permission. Similarly, all the vehicles of the new programmatic, proactive, deterrent policing—roadblocks, CCTV, administrative searches—these, too, could not have been in the minds of those who authorized policing in the most general of terms. So, yet again—as the Utah courts concluded in Sims—legislative authorization should be obtained, or at least the police should develop public rules.
What courts in the United States often do in circumstances like these—at least outside the area of policing—is express “constitutional doubt” that the seemingly broad statute covers the specific circumstances in question. They say, in effect, we’re not sure if the Constitution allows this, so absent clear evidence that the action was democratically authorized we aren’t going to allow it. In Kent v. Dulles, for example, the Supreme Court was asked whether a law that left the authority to issue passports “to the discretion of the Secretary of State” included the Secretary’s decision to deny a passport on the ground someone was a Communist. Kent argued that denying him a passport on this basis violated his First Amendment right to associate with any political movement he chose. Rather than answer this First Amendment question, the Supreme Court ducked it by denying the power the administration wanted, saying it would not “readily infer that Congress gave the Secretary of State unbridled discretion to grant or deny” passports on this basis. In other words, unless and until Congress came out explicitly and gave the power to the Secretary of State to deny passports to Communists, the Supreme Court would just assume there was no such power.50
This same tactic—of narrowly construing authority until a legislature speaks clearly—was evident in the Canadian child pornography case. There was a statute on the books that allowed “lawful authority” to get the information about who the anonymous user was, but did that reference to “lawful authority” include asking the ISP without getting a warrant first? In resolving that question, the court realized it needed to look beyond the scoundrel in that particular case. “[T]he issue is not whether Mr. Spencer had a legitimate privacy interest in concealing his use of the Internet for the purpose of accessing child pornography, but whether people generally have a privacy interest in subscriber information with respect to computers which they use in their home for private purposes.” Given the privacy interests at stake, the court decided it must interpret “‘lawful authority’ as requiring more than a bare request by law enforcement” to the ISP. If that was wrong, then the government could go back to the Parliament and get clear authorization first.51
Note the favor this sort of ruling—based on a narrow interpretation of the existing statute rather than on the Constitution—does for all of us. To conclude that no warrant was required would put everyone’s privacy in Internet use at risk. On the other hand, to insist on a warrant as a constitutional matter might strike the balance the wrong way, for the court only has in front of it one case and can’t imagine all the others where warrants might be a real problem. By simply interpreting the law on the books in a narrow way, and nothing more, the legislature is free to think through the problem, and if necessary or appropriate come up with a set of circumstances in which a warrant is required, and those in which it is not—or even adopt some other sort of procedure for decoding ISP addresses.
The constitutional law of policing is chock-a-block with examples in which it would seem to make abundant sense to ask what the legislature has in mind. Yet the Supreme Court disregards or ignores the views of rule-making bodies as often as it respects them. For example, in order to even invoke the Fourth Amendment, something must be a “search” or “seizure.” In Virginia, police arrested a man for something that was not an arrestable offense; they then searched him “incident to a lawful arrest” and found drugs. One would think the arrest was not “lawful” and thus the search invalid. Instead, the Supreme Court said, “We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted.” What? One would think what the “legislature enacted” specified precisely what was reasonable and what was not.52
Similarly, the Supreme Court’s test for whether police surveillance constitutes a “search” governed by the Fourth Amendment is whether a person has a “reasonable expectation of privacy” in the situation. It would seem that if the state said particular prying conduct—like trespassing on someone’s property or digging through someone’s trash—was forbidden, that would be a pretty clear statement about what privacy rights we have, and thus what the police may or may not do. Instead, in ruling on police activity the Supreme Court explicitly ignores state law protecting privacy in favor of its own view of what the police should and should not be allowed to do.53
The Supreme Court’s fetish for governing policing through constitutional rulings, rather than putting the ball in the legislature’s court, is radically inconsistent with the democratic principles on which this Republic rests. Here, the People are to rule. Not the police, and not the courts either. When policing issues arise, the first role of courts must be to ensure that the people have had their voice, and if not, then insist that they do.
ENCOURAGING DEMOCRATIC POLICING
What’s needed is for courts to see themselves not as the final word on policing, but as partners with rule-makers—be they legislatures, administrative bodies, or the police themselves—in ensuring that policing not only is constitutional but is democratic. Rather than being so quick to jump in and declare something unconstitutional or constitutional, the courts should focus instead on helping the democratic process work to reach sound rules for governing the police.
The Supreme Court has done this to great effect in some critical cases by explicitly inviting legislative action, and even providing a bit of a road map about what can be done. In the Berger case discussed previously, even though the Supreme Court struck down New York’s wiretapping law as lacking in sufficient constitutional protections, the justices made it clear that wiretapping had its place, and they were quite specific about what needed to be done. In another case, called Keith, the government had spied on the defendant as part of a national security investigation, but without a warrant. Keith held that domestic security investigations still required warrants, but the justices were responsive to the government’s arguments about what was special about national security. They even offered particular suggestions as to what might work, leading to adoption of the Foreign Intelligence Surveillance Act (FISA).54
When it happens, this sort of interbranch interaction has been extremely successful. Federal statutes like the Wiretap Act and FISA—though perhaps outdated today—were in their time great bipartisan victories of sensible lawmaking. They occurred precisely because the justices, while acting as a prod, still were open to a cooperative decision-making process to ensure guidelines for the police that met constitutional muster.55
Indeed, courts can provide incentives to the police to seek democratic authorization. As we have seen, courts often simply “defer” to what the police have done. Deference, however, should not be dispensed so liberally. Granting or withholding it can serve as a powerful vehicle for getting the police to obtain popular input before proceeding.56
It is one thing for courts to defer to governmental decisions adopted transparently with an opportunity for public input; it is quite another to defer to the often nontransparent decisions of police officials. There are some aspects of policing in which deference may be appropriate. For example, the Supreme Court has said that judges should give “due weight” to an officer’s “experience and expertise” on whether a particular set of facts are suspicious enough to equal probable cause to search. On the other hand, it hardly makes sense to defer to decisions by policing agencies about things like whether to put drones in the sky, employ SWAT teams to serve most warrants, set up roadblocks on public highways, or collect the phone records of all Americans. Although we certainly want to hear from policing agencies on these issues, ultimately they are questions crying out for public judgment, not police diktat.57
The courts should learn to use deference as a tool—to create a safe harbor for the police when they adopt rules before acting. A 1970s case decided by the District of Columbia federal appellate court shows how the job should be done. The question in the case was whether the police were correct to bring a suspect back to the scene of a crime for an identification by witnesses. Such identification evidence is extremely unreliable, and only gets more so as time wears on. Still, because the police had taken the trouble to put a rule into place that seemed reasonable enough, the judges were happy to defer and not substitute their own judgment. Said the judges:
[A]fter this case arose, [the police] put into operation a regulation restricting on- and near-the-scene identification confrontations” to sixty minutes. “We see in this regulation a careful and commendable administrative effort to balance the freshness of such a confrontation against its inherent suggestiveness, and to balance both actors against the need to pick up the trail while fresh if the suspect is not the offender. We see no need for interposing at this time any more rigid time standard by judicial declaration.58
If legislatures or the police are aware courts will defer to well-reasoned public rules, they are more likely to draft them. If they get deference all the time, no matter what, then any incentive to write publicly accountable rules is lost.
There’s a real opportunity here, and legislatures as well as courts should seize it. When asked about which legislation governing policing tends to get through the New Jersey legislature and which gets gummed up, Senator Nia Gill gave a surprising answer. “You know, we don’t really deal with policing issues,” she said. Rather than “direct regulation of policing,” all the state legislature typically does is adopt criminal laws and policies; for example: “If we say that it is a third-degree crime, then … there is this penalty.” For that reason, she concludes, “we don’t necessarily have the opportunity to have these broader conversations about policing.”59
This—from the woman who declares her “abiding faith in government that is close to the people”—represents a lost opportunity. Although much policing is the responsibility of local government and should be regulated there, the same is true at the state level. Local government is, after all, the creature of state law. Laws are needed on a host of subjects, from body cameras and CCTV to roadblocks and SWAT team deployment. The list is very long, and the underlying rights at stake are extremely important. Local government often lacks the capacity to address all these issues, and so it, too, defers to the police. The state legislature needs to step up at times, but something must force it to do so.60
We’ve gotten into a bad, bad habit in this country. We leave policing to the police and, occasionally, to the courts. We’ve now seen how poor courts are at regulating the police. But they could make a sound contribution if they just began to ask the one simple question: Was this authorized? And if they then refused to allow the police to act without such authorization. In this way, courts can help foster democratic policing.
* * *
It should now be apparent both what is needed, and how courts can help us get there. We all need to take responsibility for what the police do, to participate in making policing policy, to give direction. In order for that to happen, the decisions policing agencies make must be public and transparent. And we need to insist that there be rules in place, before police act, that are adopted with democratic input.
Because politicians are so reluctant to take this responsibility, courts can play an important role. They can force politics to operate by refusing to allow the police to act without democratic authorization. And they can reward the police for obtaining public approval before the fact by then deferring to the rules that are put in place.
None of this is to say that every democratically authorized policing rule will be acceptable. Some of those rules still might violate the Constitution. That’s the other half of the policing equation, and one we’re about to explore. We’re going to examine what the Constitution says about how policing agencies must operate. But that question should not even arise unless and until the people have spoken up on the issue. That has been the point of this first part: to make clear how essential it is that we have democratic policing, governed by transparent rules that the public participates in writing.