INTRODUCTION: THE PROBLEMS OF POLICING

AN ANNIVERSARY TO REMEMBER

Charles and Etta Carter celebrated their fortieth wedding anniversary with the Maryland State Patrol.

Charles, sixty-five years old, worked for twenty-nine years at the same retail store. Etta, sixty-four, spent more than twenty-three years as a kindergarten assistant, helping kids with their “reading, writing, and math.” Their pride in their only child—who earned her PhD in developmental psychology—was abundant. So when their daughter married, moved into a new house, and started working long hours as a school psychologist, the Carters, ever the loving parents, loaded up a rental van with furniture and drove to Florida to help set up her new home. When they finished the job, they loaded up another rental van full of belongings they would store for the newlyweds, and headed back to their own home, in Philadelphia.1

It was just before noon on a hot July day, as the Carters were making their way north, when Corporal Paul Quill of the Maryland State Police pulled them over. He said that Charles—who had a perfect driving record and had made the trip to Florida frequently—was “wobbling” or “weaving.” Quill called in a K-9 unit, a drug dog. The elderly couple was ordered to sit on a slippery embankment in the hot sun while the officers unloaded all of their personal belongings from their rental truck onto the roadway. Another officer happened by and was invited to join in. The officers went through everything. They unscrewed panels of the van, took apart a small refrigerator, broke open a brand-new vat of detergent, inspected six boxes of wedding invitations, and opened a sealed bag of peanuts and a box of breakfast cereal. (Quill later described the van as filled with “junk.”) One of the officers even rested for a while in a chair the Carters were transporting. They found nothing—because there never was anything to find, and never any reason to believe otherwise.2

But that was not the half of it. As the drug dog, Spider, raced about, he relieved himself around the Carters’ luggage. The police tossed their daughter’s wedding dress on the ground. Had Etta not packed it so well, “it would have been ruined.” Etta required frequent bathroom stops, so the Carters carried a portable toilet in the van. After a while, Etta rose to ask permission to relieve herself. She was told that if she stood up again they would both be handcuffed. Forced to wait (unlike Spider), Etta urinated in her clothes and had to sit in them until the ordeal ended. Only her loose blouse spared her further embarrassment when they finally were released and could pull into a rest stop to collect themselves.3

In retrospect, no Maryland official could identify any problem with what the police officers had done. The Superintendent of the State Police testified he was not aware of any action the troopers had taken that was inappropriate, or inconsistent with state policy. An Internal Affairs investigation found no wrongdoing. Lieutenant Colonel Ernest Leatherbury, the head of the state patrol’s uniformed cops, likewise believed everything that happened was entirely justified.4

The lawyer for the State Police, fighting hard for her client when the Carters finally sought redress, was fixated on whether any damage had been done to the Carters’ property. But it was not property that got destroyed that July day—it was the Carters’ sense of security, faith in the integrity of the law, and confidence in law enforcement. In many sleepless nights and anxious moments afterward, turning the events of that day over and over in their heads, the word the Carters kept coming back to was “humiliated.”5

THE TIP OF THE POLICING ICEBERG

In his sworn affidavit, Charles Carter said, “It is inconceivable to us that, as American citizens of the late twentieth century, we would be treated in this manner by officers of the law on the day of our fortieth wedding anniversary.” But for anyone who has lived through the last few years, it is—unfortunately—not so hard to imagine. To the contrary, it is difficult to miss the fact that something is seriously amiss with policing in the United States.6

Policing is just one function of government, and yet it is special. Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. This is true not just of the police, the folks you see in uniform on patrol, but of all those who work hard every day to keep us safe, from the FBI to the analysts at the NSA.

Possession of these powers—of force and surveillance—is what defines policing, what sets it apart. Officials are granted these powers because policing is vital: Society cannot function in the absence of basic order. But the constant risk we face is that power of this awesome nature will be misused. As it has been.

In June 2013 the nation learned, courtesy of Edward Snowden, that for many years the federal government had surreptitiously gathered up the phone, email, and Internet transaction records of as many Americans as it could. Just two months later, a federal judge found that the NYPD had violated the rights of potentially hundreds of thousands of New Yorkers with its aggressive “stop, question, and frisk” policy. Some eight months later, in April 2014, the Los Angeles County Sheriff’s Department made headlines by deciding, without telling anyone until they got caught, to conduct aerial surveillance of an entire city, Compton, California.7

Then, in the summer of 2014, the issue of policing exploded in the national consciousness, etched there by the video of one African American after another—often unarmed—dying at the hands of the police. From street protests over the shooting of Michael Brown in Ferguson, Missouri—where the nation also witnessed a highly militarized police force training weapons on the civilian population—to Eric Garner being choked to death by a police officer on a Staten Island street while gasping, “I can’t breathe,” to a North Charleston officer slaying a fleeing Walter Scott by shooting him in the back repeatedly, to a police officer in Chicago firing at Laquan McDonald sixteen times in fewer seconds, even after he was down, and then officials hiding the truth about it for over a year, it’s fair to say the bloom had come off the rose. Scarcely a week would pass without some new revelation of policing gone awry. In a particularly horrific week in July 2016, the nation watched a live stream on Facebook of the aftermath of police shooting an African American man in Minnesota, a cell phone video of another such shooting in Baton Rouge—and then, shocking footage out of Dallas, where a lunatic (claiming retaliation) gunned down five police officers who were guarding a peaceful protest. What for so many years managed to escape unnoticed has now fully captured the country’s consciousness. It has spawned popular movements such as Black Lives Matter and Million Hoodies for Justice, congressional hearings, special investigations, town halls all over the country, and a presidential Task Force on 21st Century Policing.8

The fact that the misuse of policing power—from the beat cop to the NSA—has been in the news almost nonstop for the last three years suggests something must be done. What may be more difficult to grasp is that all of this is still but the tip of a very large iceberg.

LOOKING BELOW THE SURFACE

Physics tells us that 90 percent of an iceberg is below the water’s surface. It’s a lot harder to say how much of what goes on with policing is obscured from view. It is difficult to get firm data—or often any data at all. After the shooting in Ferguson, FBI Director James Comey asked his staff a seemingly simple question: “How many people shot by police were African-American?” They could not answer. Despite the country’s vast administrative machinery, you can’t learn how often police discharge their weapons or how frequently, where, and against whom force is used. Part of the difficulty, to be sure, is antiquated recordkeeping and the sheer volume of the task.9

But let’s face it: A good deal of the problem is that many officials prefer that policing occur outside the public eye. At every level of government, they have made a fetish of secrecy. When the government gets a court order for cell site records from a telecom company, it usually insists the order be kept secret. The disciplinary records of police officers are often protected from disclosure by special state laws, even though police early intervention systems rely on records of prior instances of abuse to predict future problems. The FBI and police forces nationwide have engaged in a massive conspiracy to cover up the use of Stingray cell phone tracking technology, which scoops up data on countless Americans with no cause. The problem goes all the way to the top. President George W. Bush—discussing national security surveillance—assured the country that “any time you hear the United States Government talking about wiretap, it … requires a court order. Nothing has changed … constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.” That was in 2004. In 2005 the nation learned of the National Security Agency’s secret wiretapping program doing just what the president said it was not.10

Eight Million Searches a Year … and More

Despite the veil of secrecy, state legislation and court decrees have forced police to reveal some small bit of information about what they do, why they do it, and how successful they are. The picture that emerges is not pretty.

In a country of just over 300 million people, a rough analysis suggests state and local police conduct more than 8 million searches annually of pedestrians and automobiles alone. That sizable number doesn’t include searches of homes or workplaces, or searches by the federal government.11

The number also doesn’t include a vast amount of police activity people commonly would call a “search” or “seizure,” but that doesn’t get labeled that way by the courts. For example, it is a typical practice in some states—like Florida—for officers to board interstate buses to perform drug interdiction. Basically it goes like this: With the passengers seated and ready to depart, sheriff’s department officials show up at the door. The driver hops off, the officers climb on, the door is shut. One officer stands in front, hand on his holstered weapon, facing the passengers. Another officer asks passengers to identify their carry-on luggage. All the while, the passengers are forced to sit, waiting. One Florida police officer testified that “during the previous nine months, he, himself, had searched in excess of three thousand bags.”12 Another court record indicated some 78,000 bus passengers had been searched this way.13

Courts say incidents like these are not “searches” or “seizures” because people unhappy with these encounters are free to simply disregard the officers and go about their business. In legalese, they say people have “consented” to the intrusion, a notion that is one of the single greatest farces of the law today. People “consent” to being searched by police in such high numbers that even some judges cannot bring themselves to use that word to describe what is happening. Take Los Angeles. In one six-month period in 2006 the LAPD asked 16,228 drivers for consent to search their vehicles: 16,225 said yes, while just 3 said no. Over the same period, 99.9 percent of pedestrians who were stopped consented to searches when asked. People “consent” when they have nothing incriminating on them. They also “consent” when they have trunks full of drugs.14

People succumb to these intrusions because they feel they have no choice. One bus interdiction officer conceded that it was “very rare for passengers to decline to be searched” and that “the overwhelming number … feel it is their duty to cooperate.” When Charles Carter said he was “ordered” out of his car, Maryland’s lawyer challenged the description, asking: “[W]hy do you perceive a question … ‘Would you please step out of the van?’—to be the same as an order?” Carter’s reply mirrors what most of us think: “If a policeman is to ask me something or tell me something, that’s an order.”15

The Use of Force

The use of force is arguably the most serious thing the government can do to its citizens. Force is central to policing; it is part of what cops are asked to do, part of the job. But today we have a culture of using force now, asking questions later. High-profile shootings have alerted us all to the issue, but the full extent of the problem sits hidden from our view.

For shootings alone, the numbers are far too high. In 2015, police killed almost one thousand people, 10 percent of whom were unarmed. Take Houston, where on- and off-duty police killed some thirty-two people between 2013 and 2015, including four teenagers. A twenty-six-year-old student wearing a hoodie, who fled from an off-duty cop, was shot and killed. An officer with a prior shooting in his past killed a wheelchair-bound double amputee holding only a pen.16

The problem goes well beyond guns, however. Lieutenant John Pike of the University of California Police became an Internet meme after coolly pepper-spraying peaceful protesters at UC Davis. He’s hardly alone. High school officials regularly pepper-spray students; a lawsuit in Alabama charges the use, on more than three hundred high school students, of a spray designed to cause “severe pain,” including “coughing, burning, blindness, [and] skin peeling.” Tasers can be a sensible alternative to lethal force; still, hundreds of Taser deaths occur, in part because police use them—against the manufacturer’s directions—on pregnant women, the disabled, and people lying in water. A babysitter called South Dakota police because an eight-year-old had a paring knife and supposedly had stabbed herself in the leg (she hadn’t); with four officers present, including a training instructor, they fired a Taser into the eight-year-old’s chest, the electrical charge throwing her against a wall.17

Nothing is so revealing as the frequent use of SWAT raids—some 50,000 to 80,000 a year (again, no one can say for sure). Iraq War vet Alex Horton awoke on a Sunday morning to find himself on the muzzle end of the sort of raid he conducted in a war zone, simply because his landlord failed to notify suspicious neighbors that Horton was sleeping in another apartment while his was repaired. Why not investigate before bursting in, Horton asked the shift commander later. The reply? “It’s not standard to conduct investigations beforehand because that delays the apprehension of suspects.” Responding to a report of a drug deal, a Georgia SWAT team rammed their way into a home, unintentionally tossing a “flash-bang grenade into a playpen” of a baby. There was no suspect there (he was apprehended elsewhere without the use of SWAT). The child has undergone countless operations and is scarred for life. “Is it going to make us more careful in the next one?” the police said to a reporter. “Yes ma’am it is.”18

Surveillance (and the Double Edge of Technology)

Surveillance, too, has always been essential to police work. But government spying poses an enormous threat to liberty and free expression. Aided by the same advancing technology that makes it easier for us to communicate with one another, government snooping has become pervasive.

The NSA has been collecting our phone call data for years, invoking national security as justification. However, it emerged in 2013 that, as part of Operation Hemisphere, the Drug Enforcement Administration (DEA) was doing the same, working closely with AT&T to access records for every call made through the AT&T system since as early as 1987.19

Today, the government is able to track you through the cell phone in your hand, record your most private thoughts via the computer on your desk, and keep tabs on you from the skies above. Cops can extract the contents of cell phones in minutes, and download them into FBI-managed “kiosks.” Government spies use malware to hack and monitor computers, or watch people after secretly activating their webcams. Police forces use aircraft to spy on entire neighborhoods, with cameras able to track individual pedestrians. Pilotless aircraft soon will be omnipresent, from battlefield-tested Predator drones to hummingbird and mosquito drones, which can take a DNA sample without you knowing it. Closed-circuit television cameras and license plate readers are common; the use of facial recognition software is on the rise.20

The product of all this surveillance is vast, barely regulated government databases storing records on all of us. The federal government has spent $2 billion to build an NSA data storage facility roughly five times larger than the U.S. Capitol Building. With federal money, state and local police forces have been creating “fusion centers” to collect and merge together existing databases that have our credit history, driver information, real estate information, criminal records (for those who have them), and more.21

The Really Crazy Stuff

All this is part of the humdrum, everyday policing; it doesn’t even begin to deal with the truly outrageous stuff—much of which flies entirely below the radar. Two professors, conducting a “ride-along” study with the police in the anonymous town of “Middleburg,” estimated that some 6–7 illegal searches per 100 residents happen each year. In one case, officers stopped a bicycle rider for no reason whatsoever and threatened to “fuck up his balls” unless he consented to a cavity search.22

The invasions of people’s bodies are revolting. Officers throughout the country have conducted roadside digital anal and vaginal exams on the thinnest of pretexts. Two twenty-something women were cavity searched with children in the backseat. Another pair of women received the same treatment, the officer not bothering to change gloves between searches; nothing was found. People suspected of being under the influence who could not or would not urinate on demand have been tied to gurneys and forcibly catheterized. One man who would not sit still for catheterization was Tased into submission.23

People are needlessly humiliated and their lives inappropriately endangered. An NYPD helicopter filming a nighttime, unpermitted group bike ride paused to shoot four minutes of a couple making love on a rooftop. The man involved said he was “usually in favor of surveillance”—it was “more the sensibility that the police think it’s O.K. that they do that—it’s about their professionalism.” Police have taken teenagers caught in possession of drugs and scared them into being informants, only to have them end up dead in grotesque gangland killings. Federal agents obtained a cell phone from a woman complicit in a drug offense and without her knowledge used her photos, including a picture of her in underwear and a photo of her minor son, to create a fake Facebook account to catch other suspects.24

One wishes things like this could be attributed solely to bad apples, but incidents like these are all too common.

Policing for Profit

It’s important not to lose sight of a troubling motive for much of this conduct, something that is the antithesis of what policing should be about: raising money.

The events in Ferguson brought to the country’s attention the extent to which municipalities use police to obtain funds, often from the least well-off. In Ferguson, the U.S. Department of Justice (DOJ) found that “law enforcement practices are shaped by the City’s focus on revenue rather than by public safety needs.” Missouri’s Attorney General has since sued thirteen suburbs, claiming they were raising revenue beyond what state law permitted, by imposing undue traffic fines; Normandy, Missouri, brought in almost 40 percent of its revenue that way. What’s happening in Missouri goes on throughout the country.25

But municipal fund-raising doesn’t hold a hat to the disgrace that the nation’s forfeiture laws have become. The original rationale behind forfeiture was that crime would be deterred if the government deprived the bad guys of their ill-gotten gains. So the law allows police forces to grab the goods and keep a share of the proceeds themselves. In the usual criminal case the government must prove guilt beyond a reasonable doubt. With forfeiture the standard is much lower, and the burden generally falls on the victim to get the property back. These laws have been subjected to extraordinary abuse; property has been seized on the thinnest of pretenses, feathering the pockets of law enforcement agencies. A twenty-two-year-old man left Michigan bound for a new career in Los Angeles carrying his life savings of $16,000 in cash; DEA agents took the money away with absolutely no evidence of wrongdoing. The DEA explained, “We don’t have to prove that the person is guilty. It’s the money that is presumed to be guilty.”26

Annually, local, state, and federal police seize homes, cars, and millions of dollars in cash, much of it from innocent people. For many, these seizures are debilitating; this isn’t extra cash, it’s the sole means of transportation, hard-earned wages earmarked for medical procedures, the family home. At the same time departments have spent forfeiture proceeds on a range of remarkable things, including a $90,000 sports car; a quarter of a million dollars in donations to a sheriff’s alma mater; $20,000 for campaign ads; football tickets; and liquor and kegs for an employee barbecue.27

Who Gets Policed

You may be sitting there thinking, “This isn’t about me; I’m not a criminal.” Neither were the Carters nor most of the people you’ve read about thus far. That sort of complacency is a big part of the problem. The way policing is conducted today, everyone is a target, and we should all take it seriously.

Of course, we’d be lying to ourselves if we do not recognize that policing often falls hardest on racial minorities, on the lower classes. Study after careful study confirms this. Perhaps this is the right moment to point out that the Carters were African American. They also were salt-of-the-earth, hardworking people who did not deserve what happened to them. Lieutenant Colonel Leatherbury—the supervisor who defended the actions of the cops in that case (and who was African American himself)—conceded that the racial disparities in traffic stops in Maryland were “glaring.” He did not think they were defensible. As FBI Director Comey recently had the courage to say, it’s time to face the “hard truths”—pointing to the role that unconscious (and conscious) racial bias has played in policing. If the head of the FBI can acknowledge this publicly, it is time we all do.28

While this book is primarily about policing as it applies to all of us, it should be impossible to read the pages that follow and miss the undeniable role race and class play in policing. One chapter is devoted to the problem of racial profiling, and racial issues are omnipresent elsewhere. Still, as my beloved colleague the critical race theorist Derrick Bell, who passed away in 2011, would have said, the best way to tackle racism in policing may well be to understand that the problems of policing can and do affect everyone. What Bell recognized—he called this “interest convergence”—is that many more people get engaged to address a problem if they see how it has an impact on them directly.29

It is simply naïve to think the sort of policing described here is something happening to “other” people, that it can’t affect you. You don’t ride the Greyhound bus, and aren’t worried about those searches? How about Amtrak? The mathematician Aaron Heuser was taking an Amtrak sleeper from his old position at the National Institutes of Health to a new job. The DEA came by and insisted he allow them to search his compartment. When he would not agree, they forced him to leave the room, certain he was transporting drugs. How did they “know”? (They were wrong.) Because he booked a sleeper car and traveled alone without checking luggage. Isn’t that what sleepers are for? When this story was published in The Atlantic, numerous other people wrote in to say the same sort of thing had happened to them.30

Much of policing today is intentionally indiscriminate: it is aimed at all of us. The NSA’s data collection is in “bulk,” meaning the agency wants everyone’s information. We all are subjected to drunk-driving roadblocks and airport security; our location is recorded by license plate readers as we drive around town. Even when supposedly targeting just the guilty, law enforcement’s lack of care ensnares countless innocents. Millions of Americans are being subjected to this sort of policing.31

The “war on drugs” has accounted for a great deal of aggressive policing, some of it utterly misguided. For example, the DEA’s “Operation Pipeline” emboldened state and local police to conduct as many ordinary vehicle stops as possible to try to ferret out drug couriers.32 Kansas’s Operation Pipeline manual is particularly eyebrow-lifting. It tells officers to rely on “high volume traffic stops” to catch those carrying drugs, and explains it “puts excitement into ordinary patrol.” Officers are instructed not to “profile” but to look for “indicators” of drug use or transportation, including “luggage,” “fast food wrapper[s],” “car phone/pager everyone has them” (how the fact that “everyone has them” helps identify traffickers is mystifying), and affixed “disclaimers” such as “police or religious symbols.” Officers are told to be watchful for “visual indicators” such as “eyes: the window to the soul.” Yet it seems almost anything you do with your eyes signals involvement with drugs: “eyes wide open (bug-eyed)” or “closes eyes hopes you’ll go away.” There is also “dry mouth,” “tugs at ears” or “plays with mustache,” and so on. A California legislative report—based on videotape of stops relying on just this sort of amateur psychology—concluded: “It was not uncommon to see travelers spending 30 minutes or more standing on the side of the road, fielding repeated questions about their family members, their occupations, their marital status, their immigration status, their criminal histories and their recreational use of drugs and alcohol.”33

The war on terror has led to equally unjustified and undiscriminating intrusions. The federal government encourages local officials to file SARs—suspicious activity reports—that get fed into a nationwide database. Among the criteria utilized in Los Angeles are “using binoculars,” “taking notes,” and “drawing diagrams.” An accomplished photographer was stopped for trying to capture a piece of famous public art near Boston; a journalism student was interrogated in New York after taking photographs in front of a Veterans Affairs building, which the police erased.34

In countless cases, law enforcement officials subject ordinary citizens to these sorts of personal invasions, based on little or no evidence. In protesting their treatment to those who seemed to think the Maryland State Police had done nothing wrong, the Carters felt compelled to volunteer “to submit to lie detector tests and furnish a legion of character references to attest to [their] reputation.” This seems to have the burden of proof rather backward, doesn’t it?35

POLICING, OUT OF (POPULAR) CONTROL

The question is, what should be done about all of this?

As urgent as that question is, we cannot begin to answer it until we can see the problem clearly. And we do not. Despite all the media attention to the issues described here, all the task forces and government reports, the television talk shows, community forums, and academic gatherings, we remain blind to the central difficulty with policing today.

We don’t even think about all these various practices, troubling as they are, as a single phenomenon. Each is a pinprick, an isolated issue, looking for its own solution. Officers involved in shootings of civilians draw attention to racial bias. Drones and cell phone tracking raise questions about individual privacy and technology. The events in Ferguson caused consternation about the militarization of policing. Forfeiture highlights the problem of policing for financial gain. The NSA’s activities are considered an entirely different thing altogether.36

And yet, if we “connect the dots”—to use a phrase popularized by the 9/11 Commission report regarding intelligence gathering—we can see something fundamental that unites all of this.37

It is a complete failure of democratic governance.

Consider this: In California, there is an entire code of regulations for barbers and barbers’ colleges. Similarly, the Golden State heavily regulates “Roadside Rest Areas and Vista Points,” with precise rules for newspaper dispensing machines. Across the country in Florida, there is an administrative code devoted to (you might have guessed it) the Department of Citrus, which describes the allowable coloration of “Midseason Varieties,” and several provisions set out guidelines for distinguishing a Murcott Honey Tangerine from a Sunburst Tangerine or a Tangelo.38

In neither of these states, though, is there much on the books about warrantless searches. Most policing happens without a warrant, but neither state legislature has seen fit to give anything but cursory guidance to the police, who are left to decide when and how to thrust themselves into people’s lives.39

So ask yourself, which is more important: regulating vaginal and anal searches of citizens by the side of the road, or specifying the size of newsstands and classifying Sunburst Tangerines?

To put it plainly, policing in the United States—from the overzealous beat cop all the way to the NSA—is out of control. That’s not intended as hyperbole; it’s a careful and deliberate statement of fact. And it is assuredly not aimed at the police, who have an incredibly difficult job to do, often without the support they need to do it. The problem is the rest of us.

Call the problem policing without permission. We have categorically failed to offer clear guidance to policing agencies as to what they are to do (or refrain from doing). If anything, we’ve sent mixed messages. We insist that above all we want safety and low crime. But then, when the police do their best to deliver, we start casting blame about the way they went about it. It is we who are at fault, for failing to specify how we wish to be policed, for largely ducking the question altogether.

There is nothing—nothing—more destructive of individual liberty than unbridled executive power, and no greater and more terrifying executive power exists than the power to conduct surveillance and exercise coercive force. The entire history of democratic governance and constitutionalism throughout the world has been one long struggle to devise systems to keep such power in check. That is why, although lumping together the NSA’s intelligence gathering and metropolitan forces’ stop-and-frisk under the rubric of “policing” may seem to be mixing apples and oranges, it’s not. The authority to use force and conduct surveillance is, again, what sets policing apart from the rest of government.

When it comes to policing and its governance, our much-admired system of democratic accountability and transparency is largely cast aside. Policing agencies in this country—from your local police force to the Federal Bureau of Investigation—operate with very little democratic guidance. The typical enabling statute of a policing agency simply authorizes it to enforce the criminal law—but says little or nothing about how to do so. We have adopted a few laws on the “how” of policing—such as federal rules governing wiretapping or the occasional state or local regulations of drones or drunk-driving roadblocks—but these form a woefully incomplete framework.40

You might think that policing is special, different in some way that justifies this shortcut on democracy. But you’d be wrong. To be sure, there are times—though fewer than you think—when secrecy is essential to policing. To the extent that is the case, policing may demand some special procedures. For the most part, though, the free pass on democratic governance given to policing agencies is habit, not necessity. Some police forces, in places such as Chicago or Seattle, have their manuals readily available to the public on the Internet. And there are even cities, like Los Angeles, where policing policy is set by a board of commissioners with regular public input. Just like the rest of government operates.41

Democratic policing can be done; we just don’t do it.

HOW WE GOT HERE

It is not entirely an accident that policing today is left largely free from democratic governance. And yet it’s not like we planned it that way either. Rather, a series of occasional and not fully thought-out decisions, reacting to historical, social, and technological developments, has resulted in the highly militarized and intrusive Leviathan over which we exercise far too little control.

Until the mid-nineteenth century, we didn’t have anything that remotely resembled the organized police forces of today. But soon after the advent of large metropolitan departments, the police became entwined in the sort of municipal graft and corruption that was all too common at the turn of the twentieth century. Cops collected the money that fed the political machine. And so, in order to address that problem, we decided that policing should be separated from politics, and professionalized. Police departments took on their military bearing, and police officers came within the civil service.42

By the 1960s, though, the ill effects of disconnecting law enforcement from adequate public control were so glaring that the idea of community policing—about which we hear so much today—was born. As ghettos burned, and civil rights and Vietnam War protesters battled officers on urban streets and university campuses, it became clear that the police were altogether too autonomous, and insufficiently professional. A presidential commission appointed by Lyndon Johnson concluded that what was needed was a closer connection between the police and their local communities. Many agreed. Cops should get out of their patrol cars and walk the beat, get to know the people they served, help them solve problems. And listen to the local residents.43

But community policing was never entirely popular in cop culture, and was easily displaced. When financial times got tight, and police budgets were cut, community policing officers often were the first to go. Nixon declared the war on drugs in the 1970s; law enforcement agencies went into full battle mode during the crack cocaine epidemic of the 1980s. Just as the drug war appeared to be falling out of popular favor, terrorism provided yet another justification for policing agencies maintaining a war footing.44

And during all of this—over the last three decades or so—a fundamental shift occurred in how we are policed.

Up until the 1980s, policing was largely reactive. It was about finding the bad guys, and locking them up when you did. It was all pretty familiar, and a lack of democratic governance is a lot less glaring when nothing new or different is happening. Police would conduct searches of people and homes, they would take individuals into custody and question them. Even when things went wrong, it didn’t occur to anyone to think an elaborate rule book was needed to try to get them under control.45

Today, though, policing is increasingly complex, and proactive in a way that affects all of us, every day. It is about deterring anyone from even thinking about committing a bad act. That means conducting widespread surveillance, and wielding massive force. Which is why closed-circuit television (CCTV) cameras are omnipresent, we snake through airport security lines and wait our turn at drunk-driving roadblocks, and the NSA collects our data in bulk. In the new policing, departments across the country are ramping up to employ automatic license plate readers and facial recognition software—and soon enough drones—to be able to track us everywhere we go. They are utilizing software to predict where crime will occur next, and by whom. It is also why it has become utterly commonplace to see the police dressed in military fatigues, carrying heavy armament. Policing today is regulatory: it is about shaping behavior on the front end, not capturing crooks after the fact—and we have all become its targets.46

Let’s be clear: Some of these policing practices may be altogether appropriate; others may not. The point is that we cannot begin to know the difference—indeed, as a matter of democratic governance there is no difference—until the citizenry is given a chance to weigh in.

That is what has gotten lost almost entirely from policing.

THE CONSTITUTION OF POLICING

The lesson here is not simply that policing without popular input is a bad idea—though it certainly is. Rather, I argue that as a matter of constitutional law, policing without permission is altogether illegitimate.

For most people, to mention the Constitution and policing in the same breath is to conjure up images of the courts, and judicial enforcement of the Bill of Rights. It is commonly believed that when it comes to the Constitution and policing, the judges are in charge—and should be.

It ought to be evident by now that I believe that common understanding to be a huge mistake.

Our Constitution is about popular control of government. The Bill of Rights was an afterthought, ratified four years following the Constitution itself, because some refused to support the original Constitution without a promise to add these additional protections. What is central under our constitutional scheme, what matters most, is the will of the people—as implemented by the officials we elect and appoint.

In three related parts, this book explains how the Constitution (and, for that matter, many state constitutions as well) should be understood to regulate policing.

Part I of this book is about what I call democratic policing. I suggest that too much of policing today is misguided because we, the people, have failed to take responsibility for it. Undue secrecy and a lack of democratic regulation have led to the poor use, and misuse, of policing power. And I offer some ways to address this.47

Only then, in Part II, will we turn to the Bill of Rights (as well as other amendments to the Constitution that place limitations on policing). And even here, the argument will be that enforcing those rights is not the sole job of courts, which have made a muck of their responsibility. The restrictions on government imposed by the Constitution must be respected by all government officials—under the watchful eye of the citizenry—no matter what courts say is permissible.

Finally, Part III integrates these two aspects of American constitutionalism, popular control and individual rights, explaining how they can help us tackle the great challenges faced by policing in the twenty-first century: technology and terrorism.

WHAT POLICING “ACCOUNTABILITY” SHOULD LOOK LIKE

Despite all the talk about making police “accountable,” policing officials would tell you they already are awash in rules and oversight. Increasingly, Inspectors General, civilian complaint boards, and special monitors oversee policing agencies, both local and federal. And of course there are the courts. Judges have written many of the rules that regulate the police—on matters such as search and seizure, or interrogation.

While all these are forms of accountability, every one of them suffers from at least one of two serious defects. The goal of the first part of the book, on democratic policing, is to make this clear, and explain how to fix the problem.

First, most of what passes for accountability in policing today is not democratic control. There is an altogether appalling lack of transparency; we have far too little information on what the rules of policing even are. In the all-too-rare instances in which policing rules are open to public view, the public’s input simply has not been solicited in formulating them. Civilian complaint boards involve at most a minuscule part of the public, and mostly limit themselves to investigating complaints of police misconduct. Inspector Generals’ offices are not democratic bodies at all. Nor are courts, which are supposed to be independent of democratic control. Even the mayors who can hire and fire police chiefs are no substitute for democratically adopted rules about how policing is to take place.

Closely related, most of the oversight in policing today is after-the-fact review, when what we need are policies put in place before things go wrong. Most oversight is about misconduct, when it is the regular conduct of policing agencies that needs attention as well. That’s how the rest of government runs. Yes, when a police officer shoots and kills a civilian, some official body should look into it. And when a group of government officials decide on their own to start collecting information on all our private telephone or Internet communications, there darn sure should be an inquiry.

But what is urgently needed—and is glaringly absent from much of policing—is not reviews but rules: rules that are written before officials act, rules that are public, rules that are written with public participation.

Legislative bodies could write these rules—and undoubtedly should do more of it—but the policing agencies also could do it themselves. Yes, the police. They are, after all, the experts. That is how much of administrative government operates, by having the relevant agency write its own rules. But most agency rules are both public and fashioned with public participation. Which is to say, after the agency drafts a preliminary version of the rules, the public is invited to comment—and then agency officials revise the final rules to take account of what the public has had to say. There is no reason policing agencies should not act in the same way.48

CONSTITUTIONAL LIMITATIONS ON POLICING

Of course, under our Constitution—and the constitutions of the states as well—democratic rule is not the end of the matter. Which brings us to the second part of the book, about constitutional policing.

Other parts of our federal and state constitutions—typically in a bill of rights—limit what policing officials can do. Chief among these in the federal Constitution is the Fourth Amendment, which governs “searches” and “seizures.” Also relevant are the free speech and assembly provisions of the First Amendment, the Due Process Clause (no person “shall be deprived of life, liberty, or property without due process of law”), and the Constitution’s fundamental guarantee of equality and against discrimination, the Equal Protection Clause.

In Part II I argue that when it comes to interpreting how the Constitution applies to policing, the courts have made an utter hash of things. They’ve failed to require warrants when they should, they’ve watered down the “probable cause” standard in the Fourth Amendment to the point that it fails to serve as an appreciable restraint on who is a proper target of policing and who is not, they’ve allowed the most blatant invasions of person and property, and they’ve done little to address pervasive racial profiling. More than anything else, though, the courts simply have failed to come to grips with how policing has changed over the last decades, from a time when policing was reactive and all about catching bad guys, to today’s proactive monitoring of all of us in the name of deterring crime. In some ways the courts are stuck back in the halcyon days of The Andy Griffith Show, when present-day policing increasingly looks more like the sci-fi thriller Minority Report.49

And so, in a sense, Part II is a prescription to courts on how to get right the limitations and restraints the Constitution imposes on policing. It is about things like warrants, and probable cause, and racial profiling, stop-and-frisk, drug interdiction, roadblocks, and even airport security.

The limits in the Constitution become all the more important given the first part’s argument for more involvement by popular majorities in policing. That is because while democratic governance has its strengths—and is a fundamental requisite under our Constitution—majorities also at times step on minority rights. Indeed, it is fair to ask whether democratic policing will improve things for those minorities—a question tackled in the Conclusion.50 For now, though, two points should suffice. First, leaving policing in the hands of the police and the courts, rather than insisting on democratic participation, has not worked out so well for minorities as it is. It’s time to give democracy a chance, while always remembering that basic constitutional liberties cannot be infringed by majorities.

And second, it’s essential to remember that the prescriptions in Part II are not just for courts, not by any measure. Enforcing the Constitution is the responsibility of all the branches of government: legislatures and executive officials as well. More to the point, the Framers wrote our state and federal constitutions precisely so that we all would understand and be watchful for our liberties. The idea was that when elected officials violated those liberties, the people themselves would serve as a restraint, sounding the alarm and voting those officials out of office.51

WHAT WE GET WRONG ABOUT POLICING IN THE TWENTY-FIRST CENTURY

Finally, Part III puts this all together to tackle the twin problems of twenty-first-century policing: technology and terrorism. It explains how we can make headway on seemingly intractable challenges by combining the ideas of democratic and constitutional policing.

Central to the third part of the book is recognizing that we are off base in some of the most basic ways that we discuss the Constitution and policing. Although these themes resonate most strongly in discussions about safeguarding our national security, the truth is they pervade almost every aspect of policing today.

Security over Privacy

It is often assumed that the Fourth Amendment, the primary constitutional provision governing policing, guarantees privacy. One of the big breakthroughs in Fourth Amendment law supposedly happened in the 1960s, when the Supreme Court concluded that your rights didn’t depend simply on whether the police happened to trespass on or damage your property. “[T]he Fourth Amendment protects people, not places,” the justices said, noting for the first time that what a person “seeks to preserve as private” is worthy of protection as well.52

Unfortunately, this focus on privacy has done more harm than good. It leads people to say, as they often do when arguing that police should not be fettered, “I’ve got nothing to hide.” The British government relied on this logic in a campaign to rouse public support for its vast closed-circuit television network. Their slogan: “If you’ve got nothing to hide, you’ve got nothing to fear.” Or, as Eric Schmidt, the CEO of Google, offered, “If you have something that you don’t want anyone to know, then maybe you shouldn’t be doing it in the first place.”53

None of us should feel guilty for wanting privacy. Some argue that privacy simply can’t be protected in a world in which we give it all up to Facebook, Instagram, and others. As early as 1999 the then-CEO of Sun Microsystems, Scott McNealy, famously said, “You have zero privacy anyway. Get over it.” But polls show that people haven’t gotten over it. Majorities of Americans don’t want stores and online retailers to monitor their online activity or collect data on them. They want more control over their information. And this instinct is right. Lots of things we do, and want to do, and are entitled to do, still may look maudlin or foolish or embarrassing when made public beyond our intended audience. It’s one thing to decide what you want to post on Facebook and another to resist the great personal data grab that is American society. There’s no crime in that, and you should not be made to feel like a criminal for wanting to keep your personal life to yourself.54

Still, despite what everyone says, the Fourth Amendment is not just about privacy, it’s about security. Read it. It says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” To say that forcing you to sit in your own urine, collecting the data on all the phone calls you make, or piling into your home with a heavily armed SWAT team is about “privacy” trivializes what the Constitution is supposed to guard against. It’s about your personal security, and your sense of it. Even if we have, as a society, given a lot of our privacy up to Facebook, Google, and their ilk, they aren’t going to use the information to come take you away. But the government might. And it is just that sense of personal security that must be kept in mind when regulating policing.55

Security v. Security

One of the great dangers of talking about the Fourth Amendment in terms of privacy is that it leads to discussions about whether we should or must trade that privacy for greater security. This sort of talk about a privacy-security or liberty-security tradeoff is common, and yet it is far too simpleminded. Sometimes there is a tradeoff, and to the extent this is true then obviously we need to take our security seriously. “The Constitution,” as wise judges have observed, “is not a suicide pact.” Nor should it be. To insist upon constitutional principles that limit the ability of the government to protect us from serious threats would be sheer folly.56

But constitutional rules are not there to hobble us; they were designed to enhance our security by preventing precipitate or foolish action. The Framers were neither stupid nor reckless, and many had risked their lives fighting for independence. They fundamentally understood the value of liberty, and equally well understood the necessity of government’s ability to act decisively, out of expedience.57

Let’s put emergencies aside and consider how the ordinary rules of constitutional law actually aid sensible decisions. Things like separation of powers and checks and balances, judicial review, warrants and probable cause—these are not simply obstacles to getting the job done. They are tools to make sure the job gets done properly. Our constitutional system was designed to slow down intemperate thinking on the notion that most of the time deliberation—public deliberation—would lead to better ideas and results. It is human nature to act rashly at times, and it is particularly understandable with policing, which is mission-oriented and aimed at our greatest threats. That’s what these constitutional systems are designed to guard against.

Even in real emergencies, though, constitutional procedures can be enabling rather than crippling. In making this very point, my colleague Stephen Holmes—a political scientist specializing in constitutionalism and national security—tells the gripping story of his daughter’s horrific accident, after which she was rushed to the emergency room. She needed blood fast and he was eager to see the infusion started. Instead, the emergency room personnel went through an elaborate and time-consuming ritual of reading her name and blood type from her wristband, and comparing it with the donor blood. Then, maddeningly (hurry up!), they switched roles and did it all again. To the uninitiated this looked like a foolish, potentially deadly delay. But these seemingly annoying protocols exist because careful decision-makers had come to realize that more people die from transfusions with the wrong blood type than they do during the delay to get it right. It is precisely in times of emergency that people act rashly, make mistakes, injure people, or even get themselves killed. This is why emergency responders are encumbered by detailed rules and procedures, in which they drill endlessly. In emergencies, preplanned and broadly agreed-upon procedures are more important, not less so. Really protecting our liberty—our security from government—means having rules in place that guide (and, yes, limit) government, so that it does not react badly, or overreact, when things are going wrong.58

Efficacy

Finally, one of the strongest arguments for taking the Constitution seriously insofar as it relates to policing is that doing so might actually make us safer. This, too, is a point that often gets missed in the usual privacy v. security debates. Does allowing the government to collect all our phone information bolster security? Or is it a hugely costly and time-consuming exercise that seems appealing given modern technology, but actually is of very little value? There are experts—people who, like the rest of us, don’t want their families blown to bits—who believe it is the latter. Given the secrecy surrounding policing, it is often hard to assess whether what is being done is working. In the rest of government, we rely on cost-benefit analysis (CBA) to evaluate policy. Yet, as the Vera Institute of Justice, a respected think tank, said in a 2014 report, “Although CBA is a well-established economic method, it has not been widely used in criminal justice.” 59

The question that should concern all of us is efficacy. Are those responsible for policing this country doing so in the most effective and efficient way? In a way that is most calculated to keep us safe and secure, while intruding into our liberty no more than necessary? No one expects perfection by the police, but are we even coming close? It is precisely for this reason that we need democratic examination of policing up front, and a set of constitutional rules that work to ensure efficacy, not simply giving police a blank check. A constant theme of what follows is that democratic and constitutional policing may well make us more safe.60

FIXING POLICING, TOGETHER

Given the extent of government overreaching—which by now should be plainly apparent, and there is much more to come—and serious questions about the efficacy of these practices, it is time to set aside labels and politics and join together to fix the problem. Powerful voices, usually on opposite sides of the political divide, today are unified in expressing concern about our criminal justice system. This is a healthy sign.61

Fixing policing is the responsibility of all of us—including the police. One of the most hopeful aspects of the current situation is that increasingly a growing number of thoughtful, dedicated law enforcement personnel are acknowledging the problems and challenges we face. They realize that for policing to work best, it must have the trust of the people. To have that trust, the people must participate in policing decisions. But it is also the case that the people cannot possibly make sensible decisions about policing without respectful and serious conversations with the police themselves.

This, ultimately, is the lesson: It’s time we all take responsibility for governing policing. For too long now, we’ve been cowed by threats (real and imagined) to our safety and security, and beguiled by overwrought assertions of the need for secrecy and flexibility. We’ve chosen not to be bothered by the grimy task of figuring out where the lines of proper policing rest. By failing to do so, we have jeopardized our liberty and security both. It’s time to take the Constitution seriously when it comes to policing—not just as a baseline set of rules for what is and is not allowed, but as a guidebook on the democratic governance of one of society’s most vital functions.