The deaths of Michael Brown and Eric Garner, two unarmed African American men killed by white police officers in the summer of 2014, and the subsequent nonindictments of the officers who killed them, have ignited a firestorm of responses, many engaging with and critiquing the law of policing.1 On August 9, 2014, Officer Darren Wilson shot Michael Brown, an eighteen-year-old resident of Ferguson, Missouri, at least six times, resulting in Brown’s death.2 In the immediate aftermath, protests, and then riots, swept the streets of Ferguson3 — resulting in confrontations with the local police that in turn precipitated public debates on police militarization,4 as well as comparisons to the civil rights movement.5 On November 24, as President Obama publicly called for a peaceful response,6 a grand jury in St. Louis announced its decision not to indict Officer Wilson, reigniting tensions on the Ferguson streets.7 Nine days later, a grand jury in New York decided not to indict Officer Daniel Pantaleo for his involvement in the death of Eric Garner, a forty-three-year-old African American man killed during a street-corner arrest in Staten Island in July.8 A bystander had taken footage of Officer Pantaleo appearing to put Garner in an illegal chokehold, as well as taped his final words, “I can’t breathe.”9 Protests following the nonindictment quickly spread beyond Staten Island to Manhattan,10 spawning national discussions about accountability structures governing officer misconduct11 and renewed critiques of the increasing breadth of the criminal law.12 This protest movement — in concert with that in Ferguson — quickly attained national scope.13 Politicians from both parties responded with calls for policing reforms;14 debates erupted on social media platforms15 and engulfed university campuses;16 legal scholars,17 religious leaders,18 and conservative19 and liberal20 personalities added their voices to the mix; the Attorney General announced plans to create new Department of Justice guidelines to “end racial profiling and ensure fair and effective policing”;21 and, on December 18, 2014, President Obama announced the creation of a Task Force on 21st Century Policing,22 the first national commission on systemic policing reform in more than fifty years.23
Synthesizing this accumulation of protests, editorials, speeches, articles, and, surely, private debates, many have suggested we are currently having, or are about to have, a “national conversation” on policing.24 President Obama has gone so far as to promise that such a conversation will occur, seeing in it a mechanism not just for debate but also for reform.25 Putting aside the aptness of the term “conversation” to characterize events that have included protest movements and violent encounters with the police, there is surely something aspirational in this framing. Yet even as many commentators have called for a national conversation on policing, few have engaged with essential, unanswered questions about its contours, purpose, and potential: If there is to be such a conversation, what exactly will it be about? Who will it include, or exclude? And does it have any chance — as no doubt many of its proponents would hope — of changing the landscape of American policing?
The answer to the first question — what this conversation is about — may seem obvious, yet an analysis of the current discussion suggests otherwise. Much of the immediate national debate surrounding the nonindictment of Officers Wilson and Pantaleo pertained to what factually occurred on the streets of Ferguson and Staten Island and whether the officers should have been punished.26 Surely a meaningful conversation about policing must go beyond these initial, though significant, questions — and it has. Yet it remains unclear how far the conversation will reach. Some scholars have proposed reforms directly related to the violent interactions that killed Brown and Garner and the grand jury results that followed.27 President Obama has described the mission of his Task Force as seeking to investigate “how to . . . foster strong relationships between local law enforcement and the communities that they protect.”28 In so doing, he has focused the Task Force’s lens not just on the violent interactions themselves but also on the community dynamics that may help to precipitate them. Others have sought to frame the conversation with an even wider lens, seeing these nonindictments and ensuing protests as metonyms for broader struggles for racial and economic justice29 and accordingly connecting these events to calls for reform in other policy areas, such as voting rights.30 It is of course not necessary that a conversation restrict itself to any given lens or framing. Nevertheless, as a descriptive matter, these disparate lenses suggest a meta-debate is emerging over how to define the deaths of Brown and Garner, how to frame this conversation about policing, and what, accordingly, its outcome should be.
Second, who will have this conversation? There has long raged an extensive and critical conversation about criminal law, in the academy. The late Professor William Stuntz suggested that this extensive criticism, focusing on the normative incoherence of the law of policing, has failed to meaningfully sway legislators or enforcers: “Criminal law scholars may be talking to each other . . . but they do not appear to be talking to anyone else.”31 The current conversation may be different — it has surely evolved beyond the academy to include politicians and ordinary citizens — yet key questions of inclusion and exclusion remain. First, will this conversation involve the citizens protesting on the streets of Ferguson? Recent developments suggest that, absent dialogue between these citizens and the municipalities that police them, it is unlikely that such local governments will successfully address the core frustrations animating these protests.32 Second, will the conversation involve the police themselves? Conflicts in late 2014 and early 2015 between the New York City Police Department (NYPD) and Mayor Bill de Blasio over the Mayor’s comments in tacit support of protest movements33 suggest the importance of involving police in these conversations if they are to successfully precipitate reform.34 Indeed, insofar as Mayor de Blasio has struggled to balance support for both protestors and the NYPD,35 the conception of a “national conversation” as a singular phenomenon immediately seems problematic: it is perhaps more accurate to suggest that one conversation — between the Mayor and his citizens — has made another — between the Mayor and the police — far more challenging. The question of who will participate in this “national conversation,” then, speaks not only to potential exclusions but also to internal tensions. As disparate conversations interfere with one another in challenging ways, it may become increasingly inapt to describe them as part of the same overarching dialogue.
Finally and perhaps most pressingly, can this conversation result in meaningful change to the law of policing? The protestors, officials, and scholars who have publicly weighed in on the events in Ferguson and Staten Island have not done so merely to make an expressive point; they see in this conversation a mechanism for reform. If indeed reform is the goal, a vital question follows: can such a conversation possibly succeed in changing the law of policing? Reform in policing law is notoriously challenging. For decades, institutional incentives have compounded problems and prevented reform;36 political dynamics have historically rewarded politicians for taking stances that are tough on crime regardless of empirical realities;37 and crippling backlashes have either ended such conversations before they can result in reform,38 or subverted the effects of initially promising transformations.39 These formidable obstacles stand in the way of would-be reformers; less dramatically, however, it is just as possible that this conversation will simply fizzle out as the events that directly inspired it become more remote. It is not easy to retain the attention of the American people, if indeed this movement has it now.40
These questions are not meant to be cynical. They attempt, rather, to frame the challenges facing those who, in the wake of a number of significant deaths,41 seek to both engage in a national conversation about policing and use that conversation to catalyze a movement toward reform. This edition of Developments in the Law is not the place to answer these questions, if indeed such answers can be arrived at in advance. Instead, the edition speaks not to how this conversation may end, as important as that may be, but to where it must begin: with a clear explication of the state of the law and a nuanced understanding of the steps necessary to reform it. It is to this project that the Chapters are directed.
Individually, the following Chapters analyze four discrete developments in the law of policing, in some cases directly engaging with key issues at the heart of the present conversation, in other cases explicitly widening its scope.
Chapter I takes as its starting point the protests in Ferguson following the death of Michael Brown, suggesting that the community’s reaction to Brown’s death may in part be understood as an expression of frustration caused by a key development in modern policing: the emergence of profit motives in law enforcement. The Chapter suggests that this development is transforming the relationship between police departments and low-income communities from one of cooperation and protection to one of harassment and revenue generation.42 It further argues that certain structural innovations that are driving this shift may be unconstitutional.43
The Chapter begins by illustrating how for-profit policing operates in practice, focusing on three examples. Many cash-strapped municipalities have: (1) imposed extensive fees on arrestees and defendants,44 (2) sold their probation systems to private, for-profit corporations,45 or (3) employed civil forfeiture statutes to seize billions in assets that are purportedly linked to crime.46
The Chapter argues that this integration of profit motives into policing is normatively harmful and, in some cases, unconstitutional. Normatively, profit motives distort the incentives and enforcement priorities of courts and the police — the latter of which use their extensive discretion to disproportionately target low-income citizens through de facto regressive taxation regimes.47 Legally, the Chapter argues that profit motives produce punitive structures that can violate (1) the Due Process Clause,48 (2) the Equal Protection Clause,49 and (3) the Excessive Fines Clause of the Eighth Amendment.50
Chapter II examines the rising incorporation of law enforcement in schools. Over the past two decades, schools have increasingly turned to criminal law and its enforcers to help maintain order, while police departments have turned to school administrators to assist in the investigation of crimes — a dual trend resulting, in part, in the “wholesale incarceration” of low-income and minority American youth.51 Chapter II argues that an outdated Fourth Amendment framework facilitates and exacerbates this problem and should thus be reexamined.52
The Chapter begins by describing the rise of the “school-to-prison pipeline”53: seeking to maintain order in schools, to respond expressively to highly publicized school shootings,54 and to comport with new, more hard-line theories of policing,55 schools and municipalities have increasingly attached criminal consequences to breaking school rules,56 used police officers to respond to and investigate internal school disturbances,57 and created mandatory reporting requirements that transform school administrators into deputies for the police.58 These trends have collectively resulted in “a disturbing number of children . . . being pushed . . . into the criminal justice system,”59 despite little evidence that such policies have improved school safety.60 They have also had disproportionate effects on minority and low-income communities.61
The Chapter argues that current Fourth Amendment jurisprudence facilitates the collusion between law enforcement and schools — de facto permitting officers and administrators to conduct the great majority of searches in schools with merely reasonable suspicion.62 It further suggests that this jurisprudence is both outdated and doctrinally flawed for two reasons: (1) it ignores the way that “entangle[ment]” of schools and police departments blurs the distinction between educational and investigatory purposes;63 and (2) it undervalues students’ privacy interests — interests made far more powerful by the increasing probability of criminal consequences for even minor rule-breaking.64 Given these problems with the status quo, the Chapter argues for a more robust probable cause standard for all police-conducted searches in schools, as well as for searches conducted by school officials when the official is required to report evidence found to law enforcement.65
Chapter III examines key developments in immigration policing, a topic that thus far has played a subordinate role in this national conversation. The Chapter argues that the increasingly blurred lines between civil and criminal immigration consequences — in concert with the diffusion of immigration enforcement across multiple parties, including federal, state, and local enforcers — have left massive accountability gaps in the policing of immigrant communities.66 The Chapter suggests that consolidating the enforcement of immigration law into the hands of the federal government could mitigate these accountability concerns and thereby help end enforcement practices that are subverting the relationships between local police and the communities they serve.67
The Chapter begins by highlighting the effects of two key trends in the law of “crimmigration”68: (1) the increasing attachment of immigration consequences to criminal offenses and criminal consequences to immigration offenses;69 and (2) the increasing use of state policing regimes to enforce immigration policy.70 The blurred lines between civil and criminal enforcement, the diffusion of enforcement power across both federal and state actors,71 the de jure paucity of constitutional safeguards in removal proceedings, and the de facto paucity of such safeguards in criminal immigration adjudications72 combine to create an “accountability deficit.”73 This deficit, in turn, permits practices that drive a wedge between police and immigrant communities, subverting trust and thereby undermining competing law enforcement aims.74
The Chapter offers a solution: consolidation of immigration enforcement at the federal level. Centralizing policymaking and enforcement within one governmental entity could create opportunities for political reform, make it easier to acquire effective court orders, and permit local police to repair their relationships with Latino communities.75 Legally, such consolidation could be effected through preemption: the Supreme Court’s 2012 opinion in Arizona v. United States76 strongly suggests that current state enforcement practices and human-smuggling laws subvert federal policies and should be struck down accordingly.77
Chapter IV turns its lens back to the events in Ferguson and Staten Island, engaging directly with a key policy proposal at the heart of this national conversation: in the wake of Michael Brown’s death, numerous politicians and commentators have publicly called for police to wear body cameras78 — a reform that many believe would create greater accountability and transparency in policing. The Chapter suggests that a careful examination of the benefits and detriments of such a fundamental transformation is necessary before municipalities pursue this reform.79
Having framed the context, the Chapter turns to the examination it recommends. First, it investigates four interrelated benefits that together demonstrate how body cameras could improve the accountability and transparency of modern policing: body cameras could (1) reduce rates of police misconduct;80 (2) reduce frivolous and expensive civilian complaints; (3) improve officer training; and (4) help provide clearer evidence for trials and negotiations.81
These potential benefits, however, provide only half of the story. The Chapter next examines five policy issues and unanswered questions that hint at the potential side effects of body cameras: (1) officers and departments will likely retain power over cameras and footage, creating issues of access and control that may transform body cameras into enabling devices for the police;82 (2) extensive public footage could undermine the privacy rights of ordinary citizens and arrestees;83 (3) adoption may be expensive, pushing cash-strapped municipalities to recoup costs through programs that extract revenue from the very low-income citizens such reforms are implemented to protect;84 (4) widespread camera use could, under the guise of a transparency regime, transform communities into surveillance states;85 and (5) purportedly objective evidence may skew courtroom adjudications by causing jurors to dismiss other testimony that could paint a fuller picture of events.86
On the whole, the Chapter cautions against reflexive adoption of such powerful technology. It suggests instead that policymakers should carefully consider the legal contours of any such reform and remember that, while such cameras could serve as a limitation on police misconduct, so too could they ultimately enable and empower the very enforcers they are designed to restrain.87
Individually, then, these Chapters examine discrete and often problematic ways that policing law has changed in recent decades and offer tailored reforms (or in the case of Chapter IV, a cautious admonition). Collectively, they paint a broader picture, highlighting four overarching themes that reveal key challenges at the heart of modern policing.
First, the Chapters explore how police practices alienate police from the communities they protect. “Community policing” has become the dominant orthodoxy of modern law enforcement, focusing reform efforts around creating “closer and more personal working relationships between police officers and citizens.”88 Beyond symbolic benefits, departments emphasize that such relationships help officers work with witnesses and victims89 and may reduce tensions that can lead to violent encounters with the police.90 These Chapters — joining an array of related literature91 — detail the enormous costs that modern enforcement practices have on low-income and minority communities,92 just as they hint at the political dynamics that produce — or allow — these disparate effects.93 In exposing these disparate burdens, the Chapters reveal how police practices alienate such communities, illuminating the wide gap between the ideals of community policing and the realities of modern enforcement.94
Second, these Chapters highlight two problematic, interrelated trends in the modern law of policing: the increasing proliferation of criminal law and the increasing use of police officers to solve problems that would once have been dealt with through civil enforcers. Stuntz suggested that the institutional politics of criminal justice create a one-way ratchet toward more and more criminalization of conduct.95 This overcriminalization, in turn, provides enforcers extraordinary discretion to decide whom to arrest, transferring to the police — rather than the legislature — the true power to define the criminal law.96 Other scholars have described a related trend: modern society “overreli[es] on the criminal justice system,”97 forcing the police to use the “crude tools of criminal law enforcement” to address a myriad of social problems for which such tools are ill suited.98
These Chapters speak to both trends: Chapters II and III detail ways in which infractions that would even recently have been civil in nature are increasingly becoming criminal99 and describe the increasing use of the police to solve problems once addressed by civil authorities.100 This latter narrative is further enhanced by Chapter I’s chronicle of for-profit policing — the de facto use of police officers in a new civil capacity, not as traditional enforcers but as debt collectors. In describing these interrelated trends, the Chapters discuss key dangers of both forms of proliferation, highlighting: (1) how extensive enforcement discretion can result in racially biased enforcement101 or empower specific departments to bend the purpose of the criminal law;102 and (2) how the conflation of civil and criminal enforcers and purposes can subvert constitutional rights designed to restrain the police in their conventional investigatory roles.103 Finally, Chapter IV — in suggesting that body cameras could lead to a de facto surveillance state — intersects with these narratives in a vital way: in a world in which almost every act is criminal, such surveillance could provide police officers unprecedented power over the populace.104
Explicating a third theme, these Chapters push us to think critically about the relationship between democracy and policing, in particular by highlighting ways in which modern police practices may undermine ideals of participatory democracy.105 Collectively, the Chapters elucidate the disparate racial burdens of policing, burdens that themselves have clear democratic implications.106 Beyond this broad narrative, Chapter I asks whether for-profit policing can truly be consistent with democratic ideals;107 Chapter II details how policing in schools can have psychological effects on citizens’ inclination to participate in democratic institutions;108 and Chapter IV worries that a tool designed to create more democratic accountability may itself result in the creation of a surveillance state.109 Together, these Chapters illuminate the potential of certain police practices to subvert effective democratic participation in complex, sometimes unanticipated, ways.110
Finally, having clarified discrete problems with the current state of policing, the Chapters illuminate the complexity of reform. Reform efforts in the law of policing invariably confront steep institutional and political hurdles.111 Yet even if reform is possible, these Chapters reveal key difficulties in selecting effective mechanisms for that reform. One such difficulty lies in determining which agents are best positioned to effect change.112 This question, on the one hand, is one of institutional competency.113 On the other, it is an empirical question, turning on the politics of the moment.114 Another difficulty lies in predicting the consequences of such change. History demonstrates how well-meaning changes to the law of policing can have disastrous side effects.115 So too does it suggest that reforms designed to limit the police can have the opposite effect, further increasing their discretion.116
Chapter IV’s ultimate admonishment is of particular significance to the present national conversation: the Chapter describes our “human tendency, in times of tragedy, to latch on to the most readily available solution to a complex problem.”117 It may be that the events of 2014 will indeed lead to changes in the law of policing. Yet it is vital to remember that such changes, however well-intentioned, can have unintended effects — shaping the law for decades to come.
In a 2009 essay, Professor Michael Scott assessed the way that American policing has changed since President Lyndon Johnson famously inaugurated a 1967 national commission to address it.118 On the one hand, Scott suggested, the law and practices of the police have changed tremendously, often in positive ways.119 On the other, key problems identified by the 1967 commission — in particular, the problems of extensive police discretion and the “strained and distrustful relationship between police and minority-group citizens” — have persisted, suggesting that, “in some deeper respect, little has changed.”120
The Chapters in this edition of Developments in the Law echo Scott’s thesis. Even as they describe modern legal developments — the emergence of the profit motive, policing in schools, immigration policing, and the ramifications of new technologies on police accountability — they return to seemingly timeless themes: the problems of unfettered discretion and the burdens such discretion imposes on minority communities.
Taking a broad view of history, Scott suggested that “every thirty or forty years,” usually in response to “widespread police misconduct of one sort or another,” Americans become “intensely interested in the local police institution.”121 A few years behind schedule, President Obama has created a Task Force on 21st Century Policing. The purpose of the task force seems clear: to frame an emerging national conversation around defining the policing of the future. It will take careful examination of the state of the law if we are to succeed in fixing the problems of the past.