CONCLUSION: THE CHALLENGES OF DEMOCRATIC POLICING

As must be clear by now, achieving democratic and constitutional policing is not going to be easy. Moving policing to a democratic footing means fundamental change. That sort of change comes neither quickly nor easily. Still, there are promising signs from around the country that some policing agencies are endeavoring to engage with their communities over matters of policing policy and practice—and by doing so enhancing the legitimacy of, and public trust in, policing.

But here’s the challenge: even as we move toward democratic engagement around policing, we still have to pause and reassure ourselves that is the correct path. Because democracy itself is fraught with dysfunction. Democratic governance has bequeathed us a destructive war on drugs. Democratic institutions tend to act precipitously under pressure—which has been all too evident at times in the fight against terrorism. And, importantly, majority rule does not always bode well for the treatment of minorities, racial, religious, or otherwise. The majority tends to want lower crime rates, and doesn’t care who is inconvenienced—or worse—to get them.

The failings of democracy are so substantial that some might be skeptical of democratic policing altogether. In the end, though, what better option do we have, really? We have to move forward fully aware of democratic policing’s challenges, as well as its benefits. That’s what this concluding chapter is about.

Here’s one last story, to bring us home. This one ended well. Still it, and its ironic aftermath, underscore both the possibilities and the cautions of democratic policing, within a framework of constitutional law.

WHO WILL WATCH THE WATCHERS?

At 7:00 a.m. on April 8, 2010, Anthony Graber—a twenty-five-year-old systems network engineer and reservist in the Air National Guard—was asleep in his parents’ house in Abingdon, Maryland. He was recovering from two recent surgeries. His father, a twenty-six-year veteran of the Air Force, was already at work; his mom was up and getting ready to leave the house herself.1

Just then, the Maryland State Patrol came knocking, some five officers strong. They waved an unsigned copy of a warrant and proceeded to search the house for ninety minutes, going through closets and drawers. Before departing, they seized all the electronics from Graber’s room, including a video recorder, four computers, and an external hard drive. They were supposed to have arrested Graber as well, but in light of his medical condition he was allowed to turn himself in a week later, at which time he spent a night in a Baltimore jail cell before posting the $15,000 bail that was set to assure his appearance.2

What crime had he committed that justified all of this? Graber, who never before had any brush with the law, had dared to record the police giving him a traffic ticket, and had posted the recording on YouTube. A month earlier Graber had been riding his motorcycle, testing out his new helmet-mounted video recorder. He had also been speeding—really speeding. As he exited the highway, a car cut him off and the driver jumped out, hollering at Graber and waving a pistol. It turns out the fellow brandishing the pistol was an off-duty member of the Maryland State Patrol, although the video shows a good five seconds of yelling and pistol-waving before the officer identifies himself as such. Graber was issued a speeding ticket and released. That would have been the end of it, but Graber’s mother urged him to file a complaint. Graber, who is mild-mannered and quiet by nature, did not want to rock the boat. So he simply posted the video on YouTube with the caption “Motorcycle traffic violation—cop pulls out gun.” (Note how factually accurate that is; Graber even concedes his own guilt.)3

A couple of weeks later the officer and other Maryland state troopers viewed the video—which someone unrelated to Graber had reposted, along with incendiary comments about the police—and launched a full-blown investigation. The result was that Graber was indicted by a grand jury on seven counts of violating Maryland law, including “unlawful interception of an oral communication” and possessing a device “primarily useful for the purpose of the surreptitious interception of oral communications.” He faced up to sixteen years in prison.4

When it comes to being punished for recording the police, Graber’s case is hardly an anomaly. Simon Glik, a lawyer with a Russian immigrant-makes-good story, was busted for video recording on his phone a police arrest he thought had gotten out of control. Kahliah Fitchette, a model student and junior class president at a Newark school, was hauled off a bus, handcuffed, had her cell phone erased, and was taken to an adult detention facility after she recorded police dealing with an apparently unwell bus passenger. In 2014, Karen Dziewit was arrested in Chicopee, Massachusetts, for drunk and disorderly, then charged with wiretapping for turning her smartphone on during the arrest.5

There have been so many prosecutions for recording the police that the United States Department of Justice ultimately felt compelled to weigh in. It filed a brief in 2013, in yet another Maryland case, Garcia v. Montgomery County. Garcia, a journalist, was placed in a chokehold, thrown to the ground, arrested, and had his camera confiscated—all for recording a public arrest he felt involved excessive force and other improprieties. In its brief, the DOJ argued that arrests and charges like these violate the First and Fourth Amendments. Their occurrence, the DOJ told the court, “erodes public confidence in our police departments, decreases accountability of our governmental officers, and conflicts with the liberties that the Constitution was designed to uphold.”6

The good news is that Graber’s story had exactly the ending it should. A Maryland judge, Emory A. Plitt, Jr., in a thoughtful opinion, dismissed all charges relating to the videotaping. He concluded that a public encounter involving the police could hardly be a private conversation subject to any of Maryland’s prohibitions against surreptitious recording. “Those of us who are public officials and entrusted with the power of the state are ultimately accountable to the public … we should not expect our actions to be shielded from public observation.” If people cannot observe and record the police, the judge asked, closing with the famous Latin phrase Qui custodiet ipsos custodes (“Who will watch the watchmen?”).7

Despite the appropriate ending, Graber’s story is ripe with instructive irony.

OF FORCE, AND SURVEILLANCE, AND POLICING OLD AND NEW

The first ironic thing about Graber’s story is the strong position taken by the United States Department of Justice regarding the propriety of recording the police. The DOJ’s brief in the Garcia case explained that the First Amendment both protects “the right to gather information critical of public officials” and “also prohibits government officials from ‘punish[ing] the dissemination of information relating to alleged government misconduct.’” Uncovering such misconduct, the DOJ proclaimed, “has traditionally been recognized as lying at the core of the First Amendment.”8

The DOJ’s position favoring law enforcement transparency is a laudatory one; regrettably, it is not the stance the DOJ always maintains when federal officials are the ones the citizenry would hold accountable. The DOJ’s filing in the Garcia case occurred just three months before Edward Snowden’s first revelations of widespread secret government surveillance, which the DOJ itself had worked hard to keep under wraps. Similarly, one cannot help but recall the DOJ’s cover-up of law enforcement use of Stingrays, or the Department’s persistent opposition to disclosures about the use of National Security Letters and other tools in the war on terror.9

There are differences one can point to between what happened to Graber and these other examples, of course. As the DOJ said in its filing in the Garcia case, photographing “officers engaged in their duties on a public street” is the “archetype of a traditional public forum” where the First Amendment holds most sway. These other examples all involved government activity secreted from public view, not policing on public streets.10

However, this seeming distinction between street and secret policing only serves to underscore the challenge we face regulating policing in the future. The police use of force that citizens are filming on the streets, and the surveillance at issue with Stingrays and bulk data collection, are not really different things. They both are means of controlling the citizenry, of making them behave as the government wishes. That was the point of Orwell’s 1984.

As technology advances, we can expect the role of surveillance to increase, while the use of force may well diminish as a result. Policing is, as we have seen time and again, transforming before our very eyes. It continues to move from a model that requires force to forestall and apprehend the bad guys, to one in which widespread surveillance is used to detect and prevent bad acts before they occur. The government, in ways it deems entirely benevolent, is keeping tabs on all of us. It is looking for—as predictive policing would put it—signs of “abnormal” behavior. The hope and expectation is that all this monitoring will deter crime from happening, or allow the government to shut it down quickly before it does.11

As more and more policing takes the form of secret monitoring, it becomes increasingly difficult for the citizenry to monitor the government itself. When force is used, it often happens out in the open. (Not always, as the victims of aggressive interrogation can attest.) Surveillance, on the other hand, typically is designed and put into place behind closed doors. The debate about whether Edward Snowden is a hero or a villain is not because anyone countenances the theft and disclosure of government secrets as a general matter: that sort of conduct puts us all at risk. It is because in a world in which policing moves behind closed doors and happens surreptitiously, these sorts of leaks may be the only clue we get about what the government is doing. And we cannot govern without knowing.

Policing involves the use of force and surveillance. Transparency is necessary for both these activities, distinct in some ways though they may be. The use of surveillance on Americans is every bit as much a matter of public concern as the use of force. Democratic policing requires that the use of both tactics be debated, authorized, and monitored by the body politic. And that goes for the federal government as well.

RECORDING OF THE POLICE IS NOT GOVERNANCE

The second irony can hardly escape anyone’s notice: in sharp contrast to what happened to Anthony Graber, cameras now seem to be the favored solution—including by many police officials themselves—for all the woes of street policing. Less than eighteen months after the DOJ filed its brief in the Garcia case defending the filming of the police, Michael Brown was killed in Ferguson, the militarized response to street protests began, and police use of force became a major and enduring media topic. To hear politicians tell it, the primary antidote to what is wrong with policing, and the best way for the police to regain trust, is body-worn cameras (BWCs).12

On the one hand, it’s great, this sudden interest in transparency. Early studies suggest the cameras result in less use of force, better police conduct, and perhaps even fewer arrests.13 When police officers in Rialto, California, were outfitted with body cameras, use of force by officers wearing cameras fell by almost 60 percent and complaints against officers plummeted by 87 percent compared with the year before. Mesa, Arizona, and San Diego reported similar dramatic reductions in citizen complaints and use of force. Whether these results will hold up under closer scrutiny is anyone’s guess, but social science research does suggest that when people know they are being recorded, they often respond by altering their conduct. (Of course, this fact can cut both ways if it deters police from taking actions they otherwise should—which some people claim is the case, though there at present is insufficient data to back up the claim.)14

Still, before going gaga over the latest technological answer, it’s important to pause and consider two things.

First, body-worn cameras are going to help with only a small percentage of perceived police misconduct. They’re not going to do a thing to solve the problems of transparency present when police operate behind closed doors. And unless cameras are on all the time—more on this in a moment—there is still plenty of policing we won’t catch on video.

More important, BWCs are not a substitute for democratic policing. Rather, they are a Band-Aid, yet one more after-the-fact substitute for regulating policing properly on the front end. Yes, the idea is that having the video available for after-the-fact review will cause the police to act better on the front end. That is precisely the theory of most after-the-fact solutions, be they judicial review, civilian complaint boards, or Inspectors General. None of these things is the same as the people regulating policing on the front end, the way all the rest of government is regulated. What is needed are rules and policies that are transparent, and formulated with public input. That say how things should be done. Body cameras don’t establish protocols: they simply are one other means to try to keep policing within bounds as it regulates itself.

No matter what the evidence proves over the long haul, the fundamental point is still the same: cameras are cameras; they are tools of assuring compliance, not governance.

GOVERNING CAMERAS

There’s even irony regarding body cameras themselves: for although they are no substitute for democratic governance, there has been more democratic debate and policy-making around BWCs than any other aspect of policing in recent memory.

From Carrboro, North Carolina (pop. 20,000), to San Francisco, California, municipal authorities have worked with police to develop the rules and regulations as to how and when cameras will be deployed. Some of the processes have been extraordinarily involved. San Francisco’s chief promised a body camera trial as early as 2011; in November 2015 a retinue of involved stakeholders—police officials, police unions, civic leaders, civil liberties advocates, and public defenders—still were fighting over the content of the BWC policy.15

There’s good reason for all this debate; body cameras have promise, but still they pose significant risks. Some civil libertarians are rightly a bit dubious: they observe that the cameras are pointed at the public, not at the police, and may become yet one more tool for monitoring by the police. “There’s a fine line between protection and surveillance,” pointed out Alderwoman Randee Haven-O’Donnell of Carrboro, discussing the value of having the police notify people they are being filmed. That’s one of the reasons some police have come to embrace BWCs: like cameras mounted on patrol car dashboards, these body cams can provide a trove of evidence to support the police. Indeed, some BWC policies allow officers to watch the video before they file an incident report or make a formal statement to investigators. The LAPD’s draft policy requires it. Critics rightly point out we don’t allow criminal defendants this opportunity to get their story “straight” before speaking—so why would we permit it of the police?16

Body cameras pose serious privacy concerns, a point that often seems overlooked in the face of demands to disclose the footage. The ACLU in Southern California challenged the LAPD’s body camera policy on the grounds that it made no allowance for public viewing of the footage. In Hayward, California, the ACLU sued because it was charged almost three thousand dollars by the police to obtain video of police breaking up a demonstration. Whether that amount is right or not—and in the lawsuit the department documented its costs at great length—it can’t possibly be the case that all footage the police capture must simply be turned over to the media or others, without reviewing it to ensure no one’s privacy is at stake. What about when police enter private homes, interview rape and domestic violence victims, talk with confidential informants, or simply unwittingly capture people going about their private lives who would prefer it to remain that way?17

Beyond privacy, innumerable other issues loom. When should the cameras be turned on, and when may they be turned off? Giving individual officers the discretion to activate and deactivate the cameras won’t work: research suggests that when police are able to control recording, important evidence—particularly evidence unfavorable to the police—goes missing. Turning a camera on late in an incident may provide a misleading impression of what occurred. On the other hand, requiring cameras always to be on would heighten privacy concerns and raise questions about interviews with confidential informants and some crime victims.18

For all these reasons it is both notable and commendable that so much citizen energy has gone into developing policy around the use of BWCs. The questions are hard, the evidence uncertain, and the values at stake often in tension. These are precisely the sorts of issues with which democracy regularly has to grapple.

What’s unfathomable is why the same thing is not happening, then, with a host of other policing issues equally demanding of democracy’s attention. Use of force is all over the news, but we haven’t seen anything close to the same degree of formal public engagement with use-of-force policies. Facial recognition—and compiling recognition with other databases—is one of the looming privacy issues of our day. But the people of Carrboro and San Francisco have not organized to develop policies on these issues. And that doesn’t begin to speak to all the aspects of policing to which we are not privy, but should be.19

To be clear, some of these other issues occasionally are matters of general public discussion—but that is not the same as democratic decision-making. Public debate is healthy, and can have an indirect influence on policy. What distinguishes what is happening regarding body cameras is that the policy itself—the actual legal rules to govern cameras—is being made with the involvement of an engaged citizenry. The rules are written down, debated, rewritten, and only then formally adopted. That is what democratic governance looks like.

THE COSTS OF DEMOCRACY

Even if we are inclined to pursue the democratic governance of policing—as we must—it is still going to prove difficult. One should not be naïve about the transition.

The first challenge of democratizing policing is one of “scale.” Although it seems difficult to pinpoint the number with certainty—itself a telling fact—the Department of Justice’s Census of State and Local Law Enforcement Agencies in 2008 put the number of law enforcement agencies at close to eighteen thousand. The largest force is New York City’s with well over thirty thousand sworn officers. By contrast, Gaines Township, Michigan (pop. 7,000), has only one. (More than two thousand other communities have a single-member police department.) What’s really stunning is that roughly half the police forces in this country have fewer than ten full-time sworn officers, and three quarters in the country have fewer than twenty-five.20

When it comes to governance of a police department, Los Angeles is a leader. For years LAPD has had a Police Commission composed of lay citizens. Pursuant to a settlement order with the U.S. Department of Justice, the Commission was turned into a real governing body. Any significant police policy is run through it. The Commission holds weekly meetings that are open to the public, and it solicits public input through notice-and-comment rule-making. As a result, there has been widespread democratic engagement in Los Angeles around issues involving use of force and surveillance.21

It’s simply not realistic, though, to imagine every small hamlet and community in America engaging in quite the same degree of formal rule-making as Los Angeles. So what might be the best way to achieve local community governance of the police? Truth be told we have very little in the way of models. The President’s Task Force on 21st Century Policing called for a host of community involvement in police policy-making, on everything from technology to setting enforcement priorities. Where the Task Force was silent is in how this is going to happen.22

There are some shortcuts available. Despite the huge amount of policy-making around body cams, it is worth asking whether every single community really needs to develop a unique policy on every policing subject. Certainly it should if community members want it. But we don’t all write our own recipes; most of us pull something out of a cookbook or off the Internet, then alter it to shape our own tastes and dietary needs. What’s true with cooking can be true of policing policy as well. There are many instances in which state and local governments borrow one another’s legislation, tailoring it if necessary to a particular community’s requirements. Why not the same with the law governing policing? Organizations such as the International Association of Chiefs of Police have a large store of policing policies for consideration; the American Law Institute is now drafting its Principles of Policing, which could be put to wide use.

The one thing that is not acceptable, though, is to excuse policing from the requirement of making policy on the front end simply because it is difficult and time-consuming, or ungainly in small jurisdictions. In many of the smallest communities in America, we manage to have school boards and zoning boards and other government bodies. As well we should; these are the sorts of things that matter to residents. But surely the same is true of the security and privacy of all members of the community, which are implicated by policing policies. Park Ridge, Illinois, a suburb of Chicago with a population of fewer than forty thousand people, has more than twenty commissions and task forces, including a Civil Service Commission, Historic Preservation Commission, Liquor License Review Board, and a Library Board of Trustees. The Library Trustees announce their meetings on the library website, post board meeting agendas and information packets in advance, and welcome comments on policies and public attendance at the meetings. Its sessions are broadcast live on a government access channel and recorded for later viewing. If it is possible for this level of civic engagement around libraries, it must be equally possible for law enforcement. Rather than simply telling the police to go forth and enforce the law as they choose, it is essential that we partner with them in determining how.23

THE PERILS OF DEMOCRACY

The last few years have looked like a magic moment for democracy and policing. Concerns about policing, from unwelcome surveillance to militarization to the tragic use of force, have brought together many well-meaning people from across the ideological spectrum. The banner once carried mostly by the progressive left now is held aloft by conservative groups such as Right on Crime as well. Working together, they are leading a consensus that mass incarceration must be reduced, that policing must occur with greater care and attention.24

Still, we should not delude ourselves: many of the ills of policing today are the product of democracy itself. As we discussed in Part I, there is a constant pressure from the public to keep crime in check. When this happens, politicians and the police respond, typically by favoring more aggressive policing. And this aggressive policing is tolerated by the community in part because its costs tend to be borne by minorities, not the rest of society. So if the goal is keeping policing within constitutional and sensible bounds, it is important to acknowledge that democracy actually can exacerbate the problem.

Take the war on drugs. Many of the difficulties with policing we are grappling with today are a result of our ill-conceived notion that force and imprisonment would rid society of drugs. They have not. We have spent a king’s ransom in an attempt to reduce both supply and demand; yet data suggests drug usage has not responded significantly to these efforts, and where there is demand, there is supply as well. One tremendous cost of the failed drug war has been allowing policing tactics that are deeply destructive of our liberties. That is experienced by all of us to some extent, but in reality the burden of those tactics has fallen most heavily on racial minorities. We have imprisoned far too many of our youth, waged the drug war in a deeply racist way, and torn apart entire communities that already were marginalized. We would not have tolerated all this for so long if these costs were borne equally.25

The potential problem with democratic governance of policing is that policing does not fall equally on all parts of society. It never has. Whether it was plantation slave patrols, or union-busting Pinkertons, or Jim Crow police forces, policing often has been the tool of the ruling class. The Director of the FBI is but one of many public officials who have pointed out that policing can be an instrument of oppression. Even when it is not, the brunt of policing tends to land on the less well off, the disadvantaged, the marginalized, and racial minorities.26

When policing is not evenly distributed, there is the risk that democracy can be as much a problem as a solution. The people clamor for less crime, their leaders respond, the police enforce. And we are back in the same hole we’ve been trying to dig our way out of.

This challenge to the appeal of democratic policing is important. It requires a serious response. There are at least three.

WHAT DEMOCRACY ENTAILS

First, it is essential to distinguish between democracy at wholesale and democracy at retail. When it comes to policing, too often democracy has been at wholesale, offering no instructions to elected officials and the police other than to “reduce crime.”

What is needed, what democratic policing requires, is a retail version of democratic policing, one in which the people must debate and decide—and take responsibility for—the actual practices that will be used to keep us safe. It is always more comfortable to set broad goals, and not ask messy questions about how they will be achieved, nowhere more so than when the government is being authorized to use force on someone else. But asking hard questions and directing policy is what responsible citizenship requires. People can’t just demand the police “reduce crime” and then duck the question of how. They have to stand up and be counted on the tactics, be they aggressive use of stop-and-frisk, or SWAT, or racial profiling, or drones and facial recognition and predictive policing. The people, not the police, must decide as an initial matter if these things are in or out.

As we have seen time again, particularly in Chapter 4, when the people are asked to weigh in about the specifics of policing—which is to say, the question of what is permissible and what is not—policy changes dramatically. The difference between wholesale and retail democratic policing is palpable. New York City Mayor Michael Bloomberg credited aggressive stop-and-frisk for getting guns off the streets; despite this, in 2012 polls showed a majority of New Yorkers opposed the practice.27 Similarly, polls show enormous public discomfort with police use of drones. And the public plainly opposed the use of indiscriminate power in the hands of the NSA to collect our data.28

In short, we don’t think policing officials should be given the discretion to employ whatever tactics they choose in order to keep us safe. We care about the costs to our communities and our privacy. It is these retail views that must be translated into law, not the general preference we all share for being safe.

Indeed, one ray of sunshine here, ironic in itself, is that the new policing tends to affect all of us more often, rather than falling quite so unequally on minority and marginalized communities. Batons may land only on some heads, but CCTV—at least if distributed throughout the city—captures everyone. So do roadblocks on major highways and bulk collection of our data. To the extent that policing affects us personally, we all will be a bit more careful about the form it takes. We will ask harder questions about the benefits and the costs. We will engage more with what policing agencies are doing.

Still, the fact of the matter is, policing will follow crime, and crime does not necessarily distribute itself evenly. There is always the risk of inequality of treatment when it comes to policing. And to the extent that risk exists, at times democratic policing may aggravate it.29

WHAT IS THE ALTERNATIVE TO DEMOCRACY?

This brings us to the important second point about democracy, which is to ask precisely what those who are worried about the popular aspect of democratic policing would suggest as an alternative. It can’t be that those who are concerned about minority rights would prefer to leave unconstrained, discretionary power in the hands of policing officials themselves. The system of very loose democratic supervision that we’ve had for some hundred years has not worked out so well for minority populations.

It may be trite to recur to Winston Churchill here, but Churchill had it right. “No one pretends,” he said in Britain’s House of Commons in 1947, “that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.”30

It simply cannot be that because democracy can go astray at times, we should turn matters over to relatively unaccountable policing officials to decide how our laws will be enforced. Churchill’s comment was made in the course of reflecting on how some of the world had for a time trusted in all-powerful totalitarian leaders rather than democratic governance. One hopes that by now the answer to that sort of claim is clear.

At bottom, we really have no good choice but to make democracy work, warts and all. Fortunately, we as a society are making progress: when debate happens in the open, publicly, as it should, politicians find it less acceptable to turn a blind eye to practices that have a discriminatory impact. That impact becomes a matter of public concern. Democracy may only be crawling its way toward equality, but that at least is the right direction.

THE ROLE OF COURTS (AGAIN)

Still, it bears recalling that policing does not rest in the hands of popular majorities alone. We live in a constitutional democracy in which the courts, and the state and federal constitutions, play an essential role. The suggestion—or rather, the insistence—that popular governance be given pride of place in policing in no way diminishes the important role that courts and constitutions must play. We need to restore democratic policymaking to policing; but we also need to do our best to ensure that after-the-fact remedies like judicial review work.

It cannot be gainsaid that the judges have made an embarrassment of their assignment. Throughout this account we’ve seen the reasons why it is difficult for the judiciary to police the police. And yet we should not be so quick to excuse them. The fact of the matter is that judges have had one job to do—to enforce the Constitution—and they have done it badly. Putting aside disagreement over the outcomes of particular cases, it is hard to miss the fact that too many judges have tried too hard to uphold some deeply unacceptable things the police have done.31

Hopefully, now, it is clear that the judges have an alternative. They need not, in the name of the Constitution, either bless police tactics or rule them absolutely out of bounds. Instead, they can act as agents of democracy, in effect forcing policing officials to get democratic approval before they proceed. Judicial review can—and should—force democracy and deliberation. The very form of democratic deliberation that will occur at retail, where we all will be required to come to grips with specific policing tactics. At the least, one can hope this will eliminate most of the crazy stuff.

When push comes to shove, though, if democracy goes off the rails, it is the job of the judges to step up, and here they simply need to do better. Part II made clear the relevant protections against errant policing. The judges need to insist on warrants when obtaining warrants is possible. They need to take the probable cause standard seriously. They need to learn to tell the difference between suspicion-based and suspicion-less searches, and to make sure adequate protections are in place for each.

And above all, sensitive and intelligent judging is needed when policing’s heavy hand falls on racial and other minorities. The fact is that the judiciary’s performance around issues of criminal justice and race has been altogether disappointing. Like a game of Go Ask Mom, Go Ask Pop, when discrimination is raised in policing cases the courts say that the Fourth Amendment’s prohibition on unreasonable searches and seizures has no role; look to the equality principles of the Equal Protection Clause. But when the Equal Protection Clause is invoked, the proof presented to the courts is almost never enough to satisfy judges—even when the discrimination would be wildly obvious to anyone else.

It’s not easy being a judge in a constitutional case. Courts are asked to do something that will be unpopular: rein in the police. But that’s the job. People should not put on the robe if they aren’t prepared to wield the gavel.

WE ARE THE POLICE

Ultimately, we have to recognize—and take responsibility for—the fact that we are the police. What is done by the police is done by all of us.

The patron saint of policing is Sir Robert Peel. He’s why, as we learned in Chapter 3, English police are called “bobbies.” It was his vision that gave birth to some of our larger metropolitan forces. In 1829, Peel authored Principles of Law Enforcement, a set of basic guidelines that remain remarkably germane to policing today.32

Peel’s Principle 7 sounds the note on which we ought to conclude: “[T]he police are the public and the public are the police.” (That is his emphasis.) He elaborated: “the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen, in the interests of community welfare and existence.”33

In a world drenched in vitriol and finger-pointing it is easy to lose sight of this all-important fact. “[T]he police are the public.” Which is to say, when those men and women put on their blue uniforms and walk the streets, or sit at their desks as intelligence analysts, or conduct surveillance, they still are part of our body politic. We should not forget that, but they should not forget it either. On both sides of the divide—and the divide is the point—there is too much of an “us-them” perspective that interferes with the necessary empathy and judgment policing requires in order to do the job right.

We’ve seen a great deal of irresponsible policing, but we’ve also seen a real willingness to listen, and to engage in innovation. There is a new breed of policing leadership. It was policing’s leaders who in 2015 called on Congress and the state legislatures to reform the criminal and sentencing laws to stop sending so many Americans to prison unnecessarily. It was that same leadership that huddled together to get militarized weapons off the streets. To be sure, these sorts of policing leaders may be too few, and times might change. But that leadership deserves our attention and support as it tries to do the right thing.34

Peel’s admonition is two-sided, although it is easy to lose sight of the other half as well. “[T]he public are the police.” By that he meant it is essential for all of us to pay attention to what the police do. “Incumbent” is the exact word he used, meaning we have no choice. Because when the police act, they do so in our name. We are the police—each and every one of us—and we are responsible for the turns policing takes.

Policing is one of the most dangerous jobs anyone in government does. It is also the most vital. It is fair to say that without policing, the rest of government would be for naught. And yet—to end where we began—policing has the capability to undermine the values of autonomy, liberty, and security it is pledged to protect. The very reasons we have government in the first place. That is what we must work together to avoid.