0.  See, e.g., Dripps, “Criminal Procedure,” supra note 38, at 1089; Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (2007), 3–12; Rachel E. Barkow, “Administering Crime,” UCLA L. Rev. 52 (2005): 751 (“[P]oliticians respond to the perception of rising crime rates created by the media and sensational cases … They must appear to be taking direct action against a perceived crime problem—and harsh sentencing creates the appearance of an immediate response.”); Rachel E. Barkow, “Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law,” Stan. L. Rev. 61 (2009): 880; William J. Stuntz, “The Political Constitution of Criminal Justice,” Harv. L. Rev. 119 (2006): 807.

0.  Even today, the name of “Willie Horton … is enough to make a politician blanch.” Beth Schwartzapfel and Bill Keller, “Willie Horton Revisited,” The Marshall Project, May 13, 2015, www.themarshallproject.org/2015/05/13/willie-horton-revisited. William Horton was an African American man who committed rape while on furlough from a Massachusetts prison. During the 1988 presidential campaign, opponents of Governor Michael Dukakis of Massachusetts ran commercials featuring Horton and painting Dukakis as weak on crime. Eleanor Randolph, Op-Ed, “The Political Legacy of Baaad Boy Atwater,” N.Y. Times, Sept. 19, 2008, www.nytimes.com/2008/09/20/opinion/20sat3.html. The Horton commercials likely contributed to what became a landslide defeat for Dukakis. Barkow, “Administering Crime,” supra note 40, at 747.

0.  See Debra Livingston, “Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing,” Colum. L. Rev. 97 (1997): 657 (“Policing is a risky business, and distance between politicians and the police helps the former avoid blame when the latter become ensnared in controversy.”).

0.  Act of May 19, 2009, ch. 542, 2009 Md. Laws 3034, http://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/017000/017812/unrestricted/20131824e-004.pdf (abrogated 2014) (requiring law enforcement agencies to report, every six months, the number of SWAT team deployments, the locations of the deployments, the reason and legal authority for each deployment, and the result of each deployment); Phillip Smith, “Reining in SWAT—Towards Effective Oversight of Paramilitary Police Units,” Drug War Chronicle, May 27, 2010, http://stopthedrugwar.org/chronicle/2010/may/28/feature_reining_swat_towards_eff (quoting Eric Sterling); Justin George, “Police Agencies No Longer Need to Report Race, SWAT Deployments,” Balt. Sun, July 5, 2014, http://articles.baltimoresun.com/2014-07-05/news/bs-md-sun-investigates-race-law-20140705_1_law-enforcement-agencies-deborah-jeon.

0.  See Constitutionality of Legislation Extending the Term of the FBI Director, 2011 WL 2566125, at *4 (O.L.C. June 20, 2011).

0.  See Stuntz, “The Pathological Politics of Criminal Law,” supra note 36, at 529–30 (“[C]rime is one of those matters about which most voters care a great deal. Today it is regularly a major issue in elections at all levels of government, and it has been an issue in local elections for more than a century. If there is any sphere in which politicians would have an incentive simply to please the majority of voters, it’s criminal law.”); id. at 532 (“Rising crime generates demands from voters for legislative action, and often there is little in the way of legislative action that would be productive in the near term.”); Herman Goldstein, Policing a Free Society (1977), 135 (noting that “[m]ayors often take pains to disassociate themselves from decisions upon which controversial police actions are based” and that as a result police often “have greater autonomy than other agencies of government that exercise much less authority.”); Samuel Walker, The New World of Police Accountability, 1st ed. (2005), 8 (arguing that most elected officials are not very knowledgeable about police matters and are reluctant to provide guidance to law enforcement officials); Livingston, “Police Discretion,” supra note 42 at 657 (explaining that by distancing themselves from police administration, politicians are able to insulate themselves from controversial police practices).

0.  Michael Barbaro and David W. Chen, “De Blasio Is Elected New York City Mayor in Landslide,” N.Y. Times, Nov. 5, 2013, www.nytimes.com/2013/11/06/nyregion/de-blasio-is-elected-new-york-city-mayor.html; Rebecca Kaplan, “Bill de Blasio Wins New York City Mayoral Race in Landslide,” CBS News, Nov. 6, 2013, www.cbsnews.com/news/bill-de-blasio-wins-new-york-city-mayoral-race-in-landslide/; Adam Gabbatt, “Bill de Blasio Wins by a Landslide to Become New York City Mayor,” The Guardian, Nov. 6, 2013, www.theguardian.com/world/2013/nov/06/bill-de-blasio-wins-new-york-mayoral-election; J. David Goodman and Kirk Semple, “Another Silent Protest of Mayor de Blasio as Officer Liu Is Laid to Rest,” N.Y. Times, Jan. 4, 2015, www.nytimes.com/2015/01/05/nyregion/police-officers-gather-for-the-funeral-of-wenjian-liu-killed-in-an-ambush.html; Dean Schabner, “Hundreds Turn Their Back on de Blasio at NYPD Officer’s Funeral,” ABC News, Dec. 27, 2014, http://abcnews.go.com/US/nypd-officers-turn-back-de-blasio-cops-funeral/story?id=27851746.

0.  John F. Manning and Matthew C. Stephenson, Legislation and Regulation, 2nd ed. (2013), 351; Richard J. Pierce, Administrative Law Treatise, 5th ed. (2010), 1: § 8.1; Rachel A. Harmon, “The Problem of Policing,” Mich. L. Rev. 110 (2012): 763; Christopher Slobogin, “Panvasive Surveillance, Political Process Theory, and the Nondelegation Doctrine,” Geo. L.J. 102 (2014): 1721; Richard B. Stewart, “The Reformation of American Administrative Law,” Harv. L. Rev. 88 (1975): 1671–76.

0.  Tracey Maclin, “The Central Meaning of the Fourth Amendment,” Wm. & Mary L. Rev. 35 (1993): 248–49; Carl McGowan, “Rulemaking and the Police,” Mich. L. Rev. 70 (1972): 673 (“semi-military tradition”).

0.  Samuel Walker, “Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953–1969,” Just. Q. 9 (1992): 50–52, 57–59 (1992).

0.  Id. at 56–58, 64–65; The Challenge of Crime in a Free Society: A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967), 103–06.

0.  The Challenge of Crime in a Free Society, supra note 50, at 94, 104.

0.  See Kenneth Culp Davis, Police Discretion (1975), 98–120 (arguing that rule-making is necessary to curb police discretion); Anthony G. Amsterdam, “Perspectives on the Fourth Amendment,” Minn. L. Rev. 58 (1974): 416–28 (arguing in favor of police rule-making for searches and seizures); Sheldon Krantz et al., Police Policymaking: The Boston Experience (1979); Model Rules: Warrantless Searches of Persons and Places (Project on Law Enforcement and Rulemaking 1974) (Arizona State University); A Model Code of Pre-Arraignment Procedure (Am. Law. Inst. 1975); Standards Relating to the Administration of Criminal Justice (Am. Bar Ass’n 1974); Symposium, “The American Bar Association Standards Relating to the Administration of Criminal Justice,” Am. Crim. L. Rev. 12 (1974): 251.

0.  See, e.g., Samuel Walker, “Controlling the Cops: A Legislative Approach to Police Rulemaking,” U. Det. L. Rev. 63 (1986): 361–63 (detailing the history of efforts to control police behavior and noting that “[d]espite the broad consensus over the potential effectiveness of administrative rulemaking, progress in that direction has been sporadic at best”); David A. Sklansky, “Quasi-Affirmative Rights in Constitutional Criminal Procedure,” Va. L. Rev. 88 (2002): 1272–73 (noting limited progress on administrative or legislative rule-making).

0.  See, e.g., Samuel Walker, “The New Paradigm of Police Accountability: The U.S. Justice Department ‘Pattern or Practice’ Suits in Context,” St. Louis U. Pub. L. Rev. 22 (2003): 17 (“Many critical areas of police work remain ungoverned by rules (e.g., the use of informants, other undercover tactics, deployment of the canine unit, etc.). Many departments, meanwhile, have rules on the use of force that are not as comprehensive as they could be…”); ACLU of N. Cal., Stun Gun Fallacy: How the Lack of Taser Regulation Endangers Lives (2005), www.aclunc.org/publications/stun-gun-fallacy-how-lack-taser-regulation-endangers-lives (noting gaps in police regulations governing use of tasers); John Rappaport, “Second-Order Regulation of Law Enforcement,” Calif. L. Rev. 103 (2015): 214 (noting that 84 percent of law enforcement agencies lack rules on lineup procedures). For example, the Chicago Police Department (CPD) has guidelines governing the use of both deadly and nondeadly force, the seizure and forfeiture of vehicles, vessels, and aircraft in the event of an arrest, and the strip searches of arrestees (which require reasonable suspicion). See Chi. Police Dep’t, General Order Nos. G03-02 to G03-02-07, http://directives.chicagopolice.org/directives/ (last visited Aug. 16, 2015) (use of force); Chi. Police Dep’t, Special Order No. S07-03-06 (2014), http://directives.chicagopolice.org/directives/data/a7a57bf0-1348fc77-5f913-4901-b8eedf1b08ca4714.pdf (confiscated property); Chi. Police Dep’t, General Order No. G06-01-03 (2012), http://directives.chicagopolice.org/directives/data/a7a56e4b-12ccbe26-df812-ccbe-2c1daf267a24daeb.pdf (strip search of an arrestee). Yet the CPD places virtually no limits on the use of informants, has no policy on drones or aerial surveillance, and specifically exempts consent searches during routine traffic or pedestrian stops from department rules and regulations. See Chi. Police Dep’t, General Order No. G02-01-01 (1989), http://directives.chicagopolice.org/directives/data/a7a57be2-12be97cf-78912-bea6-a75df41ea0024729.pdf (informants); Chi. Police Dep’t, Special Order No. S04-19-01 (2015), http://directives.chicagopolice.org/directives/data/a7a57be2-12a76ce1-24512-a773-3e562b92ee0b017f.pdf (consent searches). It is worth noting, though, that Illinois recently adopted a statute regulating drone use. Freedom from Drone Surveillance Act, 2013 Ill. Legis. Serv. 3930 (West) (codified at 725 Ill. Comp. Stat. Ann. 167/1 (West 2008 & Supp. 2015)).

0.  Int’l Assoc. of Chiefs of Police, Recommended Guidelines for the Use of Unmanned Aircraft (2012), www.theiacp.org/portals/0/pdfs/IACP_UAGuidelines.pdf.

0.  Adam Liptak, “A Ticket, 3 Taser Jolts and, Perhaps, a Trip to the Supreme Court,” N.Y. Times, May 14, 2012, www.nytimes.com/2012/05/15/us/police-taser-use-on-pregnant-woman-goes-before-supreme-court.html; 2011 Electronic Control Weapon Guidelines (Police Executive Research Forum & Office of Community Oriented Policing Services, U.S. Dep’t of Justice, 2011), 20; ACLU of Nebraska, Dangerously Out of Bounds: Taser Use in Nebraska (2014), 5. www.aclunebraska.org/sites/default/files/field_documents/dangerously_out_of_bounds_tasers_2014.pdf.

0.  U.S. Dep’t of Justice, The Attorney General’s Guidelines for Domestic FBI Operations (2008), 8, www.justice.gov/sites/default/files/ag/legacy/2008/10/03/guidelines.pdf (hereinafter 2008 AG Guidelines); Fed. Bureau of Investigations, Domestic Investigations and Operations Guide (DIOG), Nov. 7, 2011, http://vault.fbi.gov/FBI%20Domestic%20Investigations%20and%20Operations%20Guide%20%28DIOG%29.

0.  See Office of the Inspector General, U.S. Dep’t of Justice, A Review of the FBI’s Investigations of Certain Domestic Advocacy Groups (2010), 30, 34 (describing the memo on “Pittsburgh anti-war activity”) (hereinafter OIG, Review); FBI Oversight: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Sen. Patrick J. Leahy); John O’Neil, “F.B.I. Director Is Bombarded by Stinging Questions at Senate Hearing,” N.Y. Times, May 3, 2006, www.nytimes.com/2006/05/03/washington/03fbi.html.

0.  OIG, Review, supra note 58, at 46–47.

0.  Id. at 31.

0.  Id. at 36–38, 42–47, 63–65, 190.

0.  Id. at 189–90; Eric Lichtblau, “Justice Dept. Completes Revision of F.B.I. Guidelines for Terrorism Investigations,” N.Y. Times, Oct. 3, 2008, www.nytimes.com/2008/10/04/washington/04fbi.html; 2008 AG Guidelines, supra note 57, at 16 (“critical information”). In promulgating the 2008 Guidelines, there was some limited public participation. An earlier draft was circulated, and met opposition from civil liberties groups. In response, the Justice Department included in the final rule “restrictions on the tactics that agents can use in handling large-scale demonstrations and civil disturbances” and required that such investigations be limited to thirty days. Civil rights groups still opposed the final rule, and controversial provisions remained unchanged between the draft and final guidelines. Lichtblau, “Justice Dept. Completes Revision,” supra.

0.  See generally 2008 AG Guidelines, supra note 57, at 17; Emily Berman, Brennan Ctr. for Justice, Domestic Intelligence: New Powers, New Risks (2011), 2, 17, 22, 28. On the episode in Orange County, see Berman, Domestic Intelligence, supra, at 4; Victoria Kim, “Federal Judge Throws Out Lawsuit Over Spying on O.C. Muslims,” L.A. Times, Aug. 15, 2012, http://articles.latimes.com/2012/aug/15/local/la-me-mosque-spying-20120815; Paul Harris, “The Ex-FBI Informant with a Change Of Heart: ‘There Is No Real Hunt. It’s Fixed,’” The Guardian, Mar. 20, 2012, www.theguardian.com/world/2012/mar/20/fbi-informant.

0.  First Amendment Rights and Police Standards Act of 2004, 52 D.C. Reg. 2296 (2005); Mary M. Cheh, “Legislative Oversight of Police: Lessons Learned from an Investigation of Police Handling of Demonstrations in Washington, D.C.,” J. Legis. 32 (2005): 4; Emily Berman, “Regulating Domestic Intelligence Collection,” Wash & Lee L. Rev. 71 (2014): 25 (DIOG); Berman, Domestic Intelligence, supra note 63, at 24 (LAPD).

0.  The federal Administrative Procedure Act (APA) authorizes courts to set aside agency action found to be “arbitrary, capricious”—not the product of reasoned decision-making. 5 U.S.C. § 706(2)(A); see also Manning and Stephenson, Legislation and Regulation, supra note 47, at 669.

0.  2008 AG Guidelines, supra note 57, at 17. On the shift from the old rules to the new rules, see Berman, Domestic Intelligence, supra note 63, at 22; OIG, Review, supra note 57, at 8–9 (“detecting and interrupting”).

0.  Berman, Domestic Intelligence, supra note 63, at 21. On concern whether unfocused antiterrorism efforts are making us safer, see infra Chapter 12.

0.  See, e.g., ACLU, Excessive Militarization, supra note 21, at 1; Harwood, “One Nation Under SWAT,” supra note 22; “Paramilitary Police: Cops or Soldiers?: America’s Police Have Become Too Militarised,” The Economist, Mar. 22, 2014, www.economist.com/news/united-states/21599349-americas-police-have-become-too-militarised-cops-or-soldiers.

0.  See Carl Matthies, Vera Inst. of Justice, Advancing the Quality of Cost-Benefit Analysis for Justice Programs (2014), 40; ACLU, War Comes Home, supra note 21, at 27 (“[D]ata collecting and reporting in the context of SWAT was at best sporadic and at worst virtually nonexistent.”); Joanna Schwartz, “Police Indemnification,” N.Y.U. L. Rev. 89 (2014): 903–904 (detailing problems author encountered in gathering data on police settlements and indemnification policies).

0.  ACLU, War Comes Home, supra note 21, at 23 (knock and wait); Wilson v. Arkansas, 514 U.S. 927, 930, 933 (1997) (same); Kevin Flynn and Lou Kilzer, “No-Knocks Net Little Jail Time,” Rocky Mountain News, March 12, 2000 (on file with author).

0.  Balko, Overkill, supra note 21, at 27; Smith, “Reining in SWAT,” supra note 43 (“contain and call-out”).

0.  Gerald M. Caplan, “The Case for Rulemaking by Law Enforcement Agencies,” Law & Contemp. Probs. 36 (1971): 509.