The problem of policing

Michigan Law Review

Volumn 110, Issue 5, 2012, Pages 761-818

  Harmon, Rachel A ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 84858130195     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (440)

1. 365 U.S. 167 (1961).
2. 367 U.S. 643 (1961).
3. 389 U.S. 347 (1967).
4. 384 U.S. 436 (1966).
5. Monroe, 365 U.S. at 192.
6. Mapp, 367 U.S. at 655.
7. Katz, 389 U.S. at 353.
8. Id.
9. See, e.g., Oliver v. United States, 466 U.S. 170, 177 (1984) (quoting Katz, 389 U.S. at 360 (Harlan, J., concurring)).
10. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
11. Monroe v. Pape, 365 U.S. 167, 173-74, 183-87 (1961).
12. See Mapp v. Ohio, 367 U.S. 643, 651-52 (1961) (noting that remedies other than the exclusionary rule for Fourth Amendment violations "have been worthless and futile"). The Court in Mapp further stated as follows: The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Id. at 660.
13. The Court stated as follows: It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer....Searches conducted without warrants have been held unlawful notwithstanding facts unquestionably showing probable cause, for the Constitution requires that the deliberate, impartial judgment of a judicial officer be interposed between the citizen and the police. Over and again, this Court has emphasized that the mandate of the Fourth Amendment requires adherence to the judicial process....Katz, 389 U.S. at 356-57 (alterations omitted) (citations omitted) (internal quotation marks omitted).
14. See Miranda, 384 U.S. at 447 ("[Abuses in custodial interrogations] are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved... there can be no assurance that practices of this nature will be eradicated in the foreseeable future.").
15. See, e.g., Berghuis v. Thompkins, 130 S. Ct. 2250 (2010) (ruling that a suspect who receives Miranda warnings waives his right to remain silent by making a voluntary statement to the police absent evidence that he did not understand his rights, despite language in Miranda to the contrary).
16. Herring v. United States, 555 U.S. 135 (2009) (ruling that the exclusionary rule does not apply to constitutional violations resulting from police negligence rather than deliberate or reckless disregard for constitutional requirements or systemic error); Virginia v. Moore, 533 U.S. 164 (2008) (holding that the Fourth Amendment is not violated by a search incident to an arrest that violates state law); Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (concluding that qualified immunity protects police officers from § 1983 suits where no prior cases "squarely govern[ing]" the conduct clearly establish in a "particularized sense" that the conduct is unconstitutional).
17. See Hudson v. Michigan, 547 U.S. 586, 597 (2006) ("We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago."); id. at 599 ("[T]he extant deterrences against [knock-and-announce violations] are substantial-incomparably greater than the factors deterring warrantless entries when Mapp was decided.").
18. See infra Part II.
19. See, e.g., Illinois v. Caballes, 543 U.S. 405, 408-09 (2005); Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 444-45 (1990); Tennessee v. Garner, 471 U.S. 1, 8 (1985). Recently, the Court has suggested that balancing should occur only if history provides no conclusively applicable "traditional standards of reasonableness." See Moore, 553 U.S. at 171; Atwater v. City of Lago Vista, 532 U.S. 318, 345-46 (2001); Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999). But since history is rarely conclusive or uncontested, this trend has not avoided balancing the interests at issue.
20. Tracey L. Meares & Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure, 90 J. Crim. L. & Criminology 733, 736-737 (1998).
21. See Caballes, 543 U.S. at 409; id. at 411-13 (Souter, J., dissenting); Kyllo v. United States, 533 U.S. 27, 29-30 (2001); Smith v. Maryland, 442 U.S. 735, 741 (1979).
22. See United States v. Mendenhall, 446 U.S. 544, 554 (1980); Brown v. Texas, 443 U.S. 47, 50-51 (1979).
23. Compare Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009) (rejecting a permissive rule regarding the scope of a vehicular search incident to lawful arrest), with Terry v. Ohio, 392 U.S. 1, 26-30 (1968) (formulating a permissive rule regarding when a police officer may conduct a "stop and frisk").
24. Compare United States v. Robinson, 414 U.S. 218, 235 (1973) (establishing a rule permitting full searches of an arrestee's person incident to arrest regardless of the crime that triggers the arrest and without requiring reason to believe that the arrestee is armed or that evidence of the crime would be found), with Illinois v. Gates, 462 U.S. 213, 237 (1983) (favoring a totality-of-the-circumstances test for determining whether a tip establishes probable cause in part because the alternative two-pronged test would diminish the value of anonymous tips and therefore "seriously imped[e] the task of law enforcement").
25. 532 U.S. 318, 346-47 (2001).
26. Tennessee v. Garner, 471 U.S. 1, 11 (1985). See also Kyllo, 533 U.S. at 37-38 (finding thermal imagers to constitute a search and reasoning that "[t]he Fourth Amendment's protection of the home has never been tied to measurement of the quality or quantity of information obtained.... In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes."); United States v. Karo, 468 U.S. 705, 716 (1984) ("Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight."); United States v. U.S. Dist.
27. Court, 407 U.S. 297, 313 (1972) ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed...."); Schmerber v. California, 384 U.S. 757, 767 (1966) (requiring more stringent analysis of searches that intrude into an individual's body than other searches of the person because of the serious "human dignity and privacy" interests at stake).
28. United States v. Watson, 423 U.S. 411, 423 (1976). See also, e.g., Wilson v. Arkansas, 514 U.S. 927, 931 (1995) ("In evaluating the scope of [the Fourth Amendment] right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing."); California v. Hodari D., 499 U.S. 621, 624 (1991) (looking to common law meaning of arrest to determine whether Hodari had been seized within meaning of Fourth Amendment).
29. Frederick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415, 415 (1993)
30. "Rights matter, but rights are not all that matter. Even to those for whom rights loom large in personal and public decision making, consequentialist considerations of policy and prudence still occupy a significant proportion of the total decision-making picture.".
31. Garner, 471 U.S. at 19-20.
32. See, e.g., Atwater, 532 U.S. at 336-46 (considering historical evidence regarding a rule limiting custodial arrests and then continuing on to balance competing Fourth Amendment interests); Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999) (considering historical evidence regarding standards governing the search of a car passenger's belongings during a traffic stop and then continuing on to balance competing Fourth Amendment interests to reach a conclusion).
33. Miranda v. Arizona, 384 U.S. 436, 457 (1966).
34. Id. at 447.
35. Id. at 485-486.
36. See, e.g., Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (requiring an unambiguous invocation of the right to silence under Miranda in part because "if an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused's unclear intent and face the consequence of suppression if they guess wrong" (internal quotation marks omitted)).
37. Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (reasoning that Miranda should not be overruled in part because "Miranda has become embedded in routine police practice" and the proposed alternative "is more difficult than Miranda for law enforcement officers to conform to"); Michigan v. Tucker, 417 U.S. 433, 447-48 (1974) (refusing to exclude evidence obtained in violation of Miranda in large part because it would not deter future police conduct).
38. See Herring v. United States, 555 U.S. 135, 135 (2009); Owen v. City of Independence, Mo., 445 U.S. 622, 651 (1980). Section 1983 is an old and brief statute, and the Supreme Court exercises unusual control over its contours in the guise of statutory interpretation.
39. It uses that power to vindicate § 1983's purposes, including to deter illegal conduct by the police. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982) (outlining qualified immunity doctrine).
40. Elkins v. United States, 364 U.S. 206, 217 (1960), quoted in Mapp v. Ohio, 367 U.S. 643, 656 (1961).
41. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 367-368 (2000).
42. E.g., Hudson v. Michigan, 547 U.S. 586 (2006) (refusing to apply the exclusionary rule to knock-and-announce violations in part because of the significant costs to law enforcement); Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (reversing a refusal to grant qualified immunity and emphasizing that police officers should be protected from litigation unless a prior case "squarely governs" the facts at issue).
43. 468 U.S. 420 (1984).
44. Berkemer, 468 U.S. at 430 (citing Fare v. Michael C., 442 U.S. 707, 718 (1979)).
45. Id. (emphasis added).
46. Id. at 434.
47. Id. at 437.
48. Id. at 438.
49. Id. at 420.
50. The Supreme Court often acknowledges that it relies on intuition to predict the effects of its decisions on the police. See Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists.
51. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior."); Delaware v. Prouse, 440 U.S. 648, 658-60 (1979) ("Although the record discloses no statistics concerning the extent of the problem of lack of highway safety, in Delaware or in the Nation as a whole, we are aware of the danger to life and property posed by vehicular traffic, and of the difficulties that even a cautious and an experienced driver may encounter." (footnote omitted)).
52. Tracey L. Meares, Three Objections to the Use of Empiricism in Criminal Law and Procedure-and Three Answers, 4 Ill. L. Rev. 851, 873 (2002)
53. Arguing that empirical evidence is relevant to the Court's normative choices in criminal procedure doctrine.
54. Meares & Harcourt, supra note 19, at 735
55. "Call[ing] for a new generation of criminal procedure jurisprudence, one that places empirical and social scientific evidence at the very heart of constitutional adjudication," and noting that other scholars have also called for such use).
56. Symposium, What Criminal Law and Procedure Can Learn from Criminology, 7 Ohio St. J. Crim. L. 1 (2009) (exploring lessons from social science research for constitutional criminal procedure)
57. Keith A. Findley & Michael S. Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev. 291, 331 (discussing institutional pressures on defense attorneys that discourage them from litigating defendants' cases aggressively)
58. Wayne R. LaFave & Frank J. Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987, 1006-1007 (1965).
59. Nor can judges independently investigate these matters, given the volume of suppression motions.
60. Orin Kerr notes some of these disadvantages in arguing that courts should defer to Congress in regulating high-tech, new search technologies.
61. Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004)
62. Hereinafter Kerr, New Technologies]. He points out that courts cannot easily understand new technologies or alter their rulings based on technological evolution, especially when that evolution is swift. Id. at 868-69. But Kerr assumes that in other Fourth Amendment contexts courts are expert fact finders acting well within their institutional core area of competence, id. at 863-64, and in this he is wrong.
63. See Herring v. United States, 555 U.S. 135, 144-48 (2009) (refusing to apply the exclusionary rule to negligent policy mistakes because doing so is not justified by its deterrent effect); United States v. Leon, 468 U.S. 897, 919-21 (1984) (refusing to apply the exclusionary rule when officers conducted an unconstitutional search in good faith reliance on a warrant because doing so is not justified by its deterrent effect).
64. See also Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998) (refusing to exclude evidence obtained in violation of the Fourth Amendment from a parole revocation hearing because doing so is unnecessary to deter and would provide only minimal additional deterrence); Michigan v. Tucker, 417 U.S. 433, 447-48 (1974) (refusing to exclude evidence obtained in violation of Miranda in large part because it would not deter future police conduct).
65. See Leon, 468 U.S. at 942 (Brennan, J., dissenting) ("[T]he Court's decisions over the past decade have made plain that the entire enterprise of attempting to assess the benefits and costs of the exclusionary rule in various contexts is a virtually impossible task for the judiciary to perform honestly or accurately.
66. Although the Court's language in those cases suggests that some specific empirical basis may support its analyses, the reality is that the Court's opinions represent inherently unstable compounds of intuition, hunches, and occasional pieces of partial and often inconclusive data.").
67. Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology 757, 758 (2009)
68. Contending that the Court in Herring "asserts as a foregone conclusion, without an iota of supporting analysis or evidence, the proposition that application of the exclusionary rule in the instance of a negligent violation of the Fourth Amendment has a reduced 'deterrent effect' ".
69. The same is true for § 1983 doctrine. The Court has limited § 1983 costs using qualified immunity doctrine, for example. See Anderson v. Creighton, 483 U.S. 635, 638 (1987). But no one-least of all courts-knows how many § 1983 suits for police misconduct are filed or settled each year; what municipalities regularly spend on § 1983 claims; or what effect these suits have on police practices, much less when § 1983 best deters or how qualified immunity, insurance, and indemnification affect how much it does so.
70. Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 Buff. L. Rev. 757, 760 (2004)
71. Attempting to determine how many tort suits are filed against police officers and noting that "the most important and revealing features of litigation against the police [are] hidden in the dark: who pays, and who is held accountable for the payments? Are payouts a significant portion of the police budget, or do settlements come out of the general revenues for the city? And even if settlements are a significant expenditure, are there mechanisms to translate judgments into changes in policy or personnel?".
72. Craig M. Bradley, The Failure of the Criminal Procedure Revolution 3-5, 62-94 (1993)
73. Kerr, New Technologies, supra note 48, at 863-867 (2004).
74. David A. Harris, How Accountability-Based Policing Can Reinforce-or Replace-the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149, 160 (2009).
75. Kerr, New Technologies, supra note 48, at 864-867.
76. Meares & Harcourt, supra note 19, at 750-793.
77. Eve Brensike Primus, Disentangling Administrative Searches, 111 Colum. L. Rev. 254, 309 (2011) (prescribing changes to Fourth Amendment administrative search doctrine)
78. Kerr, New Technologies, supra note 48, at 860-864
79. Arguing that in traditional cases-as opposed to cases involving new technologies-judges have the institutional capacity to create rules governing police behavior). I have been no exception.
80. Rachel A. Harmon, When is Police Violence Justified?, 102 Nw. U. L. Rev. 1119, 1120 (2008)
81. Hereinafter Harmon, Police Violence] (arguing "that concepts that structure justification defenses can and should be imported, subject to appropriate modifications into the Fourth Amendment doctrine regulating police violence".
82. Sherry F. Colb, What Is a Search?: Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 187 (2002) (criticizing the Court's normative judgments about what constitutes knowing exposure)
83. Meares & Harcourt, supra note 19, at 750-793 (criticizing the Court for failing to incorporate empirical research in criminal procedure cases)
84. Daniel J. Solove, Fourth Amendment Codification and Professor Kerr's Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747, 753 (2005) (describing the Court's third party doctrine as "one of the most serious threats to privacy in the digital age").
85. Barry Friedman, Trumping Rights, 27 Ga. L. Rev. 435, 459 (1993) (criticizing the Court for discounting evidence and deferring to other government decisionmakers)
86. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1218 (1978) (distinguishing between institutional and analytical reasons for limiting a "judicial construct of a constitutional concept").
87. Sager, supra note 58, at 1213.
88. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 346-47 (2001).
89. William J. Stuntz, Race, Class, and Drugs, 98 Colum. L. Rev. 1795, 1822 (1998) [hereinafter Stuntz, Race, Class, and Drugs].
90. Id. at 1822-1823.
91. Id.
92. Id.
93. Crime in the United States, 2008, Fed. Bureau of Investigation (Sept. 2009), http://www2.fbi.gov/ucr/cius2008/data/table_29.html. In Washington, D.C., for example, more than one in five adult arrests were for disorderly conduct in the year 2000.
94. Citizen Complaint Review Bd., Disorderly Conduct Arrests Made by Metropolitan Police Department Officers 2 (2003), available at http://newsroom.dc.gov/file.aspx/release/7250/disorderly_conduct_policy_recommendation.pdf. By 2009, this number was one in nine arrests. Metro. Police Dep't, Annual Report 2009, at 28 (2010), available at http://mpdc.dc.gov/mpdc/frames.asp?doc=/mpdc/lib/mpdc/publications/ar_2009_lowres.pdf.
95. Harry G. Levine & Deborah Peterson Small, N.Y. Civ. Liberties Union, Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City 1997-2007, at 4 (2008), available at http://www.nyclu.org/files/MARIJUANA-ARRESTCRUSADE_Final.pdf.
96. These arrests raise concerns about equality as well as liberty, since they disproportionately affect the African American community.
97. Jeremy Travis, President, John Jay Coll. of Criminal Justice, Race, Crime and Justice: A Fresh Look at Old Questions 5 (Mar. 19, 2008), available at http://www.jjay.cuny.edu/extra/speeches/racecrime_justice.pdf.
98. Levine & Small, supra note 66, at 35.
99. William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. Rev. 771, 797-801 (1993)
100. Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117, 1132-1134 (2008) (describing the process costs of arrests and demonstrating that they often dwarf plea prices).
101. Terry v. Ohio, 392 U.S. 1, 16-19 (1968); see also Adams v. Williams, 407 U.S. 143, 145-46 (1972) (characterizing an investigatory stop permitted by Terry as "an intermediate response" between arrest and ignoring the situation and describing a frisk for weapons authorized by Terry as a "limited search").
102. The Court described Terry frisks as "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment," Terry, 392 U.S. at 17, and as a "severe, though brief, intrusion upon cherished personal security... [and] an annoying, frightening, and perhaps humiliating experience," id. at 24-25.
103. The reasonable suspicion required for a stop is suspicion with respect to criminal activity. The suspicion required for the frisk is suspicion that the individual who has been stopped is armed and dangerous. See Adams, 407 U.S. at 146.
104. Al Baker & Colin Moynihan, Paterson Signs Bill Limiting Stop-and-Frisk Data, N.Y. Times City Room (July 16, 2010, 11:56 AM), http://cityroom.blogs.nytimes.com/2010/07/16/paterson-signs-bill-limiting-street-stop-data.
105. See, e.g., Bennis v. Michigan, 516 U.S. 442 (1995).
106. Though most of those individuals it affects are never charged with a crime.
107. Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda, 65 U. Chi. L. Rev. 35, 77 (1998).
108. See, e.g., 18 U.S.C. § 981(e) (2006) (providing for "equitable transfer... of any forfeited property to the appropriate State or local law enforcement agency so as to reflect generally the contribution of any such agency participating directly in any of the acts which led to the seizure or forfeiture of such property"); 21 U.S.C. § 881(e)(3) (2006) (directing the attorney general to transfer back to local law enforcement agency proceeds commensurate with the effort in producing forfeiture in order to "further cooperation between the... local agency and Federal law enforcement authorities").
109. ; Asset Forfeiture and Money Laundering Section, U.S. Dep't of Justice, Guide to Equitable Sharing for State and Local Law Enforcement Agencies (2009), available at http://www.justice.gov/usao/ri/projects/esguidelines.pdf (describing equitable sharing component of federal asset forfeiture program).
110. Our criminal justice system gives police enormous discretion with the expectation they will often "exercise discretion not to search and arrest."
111. William J. Stuntz, Virtues and Vices of the Exclusionary Rule, 20 Harv. J.L. & Pub. Pol'y 443, 445 (1997).
112. But asset forfeiture law gives police departments a direct financial stake in intruding upon individual property interests.
113. John L. Worrall, Addicted to the Drug War: The Role of Civil Asset Forfeiture as a Budgetary Necessity in Contemporary Law Enforcement, 29 J. Crim. Just. 171, 183 (2001).
114. As a result, it may considerably overincentivize many searches and arrests, disrupting the balance inherent in our system. Nevertheless, there has been little national effort to assess the full costs and benefits of forfeiture programs.
115. Eric P. Baumer, Evaluating the Balance Sheet of Asset Forfeiture Laws: Toward Evidence-Based Policy Assessments, 7 Criminology & Pub. Pol'y 245, 245 (2008).
116. E.g., Pscyhostyle, Columbia, MO SWAT Raid, YouTube (May 3, 2010), http://www.youtube.com/watch?v=RbwSwvUaRqc (showing police execution of search warrant).
117. Matt Pearce, Update: SWAT Raid Prompts Columbia Police Review of Policies, Missourian, May 9, 2010, http://www.columbiamissourian.com/stories/2010/05/06/updateswat-raid-prompts-police-review-policies
118. Matt Pearce, Columbia Police's Internal Investigation Finds No Wrongdoing by SWAT Officers, Missourian, May 20, 2010, http://www.columbiamissourian.com/stories/2010/05/20/police-internal-investigation-finds-nowrongdoing-swat-officers
119. Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America (2006) (discussing paramilitary drug raids and cataloging examples of intrusive warrant executions).
120. Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 206 (2007) (arguing that Fourth Amendment jurisprudence should no longer focus on "the traditional probable cause/individualized suspicion model")
121. Primus, supra note 56, at 261
122. Arguing that current administrative search doctrine should be changed because it "imposes few limits on government conduct and paves the way for indiscriminate searches and seizures".
123. Scott E. Sundby, "Everyman" 's Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 Colum. L. Rev. 1751, 1771-1785 (1994) (arguing for a move beyond physical privacy interests to the idea of government-citizen trust).
124. Bradley, supra note 52, at 3-4
125. Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 930-31 (1965).
126. Ronald Jay Allen et al., Comprehensive Criminal Procedure 333-34 (2d ed. 2005)
127. Donald A. Dripps, Justice Harlan on Criminal Procedure: Two Cheers for the Legal Process School, 3 Ohio St. J. Crim. L. 125, 129 (2005).
128. Stephanos Bibas, The Real-World Shift in Criminal Procedure, 93 J. Crim. L. & Criminology 789, 789-92 (2003) ("For four decades, criminal procedure scholars have focused on federal constitutional rulings by the Supreme Court.")
129. Elizabeth Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 Stan. L. Rev. 155, 160 (2009) [hereinafter Joh, Breaking the Law]
130. "[P]olice practices left mostly untouched by federal constitutional law lie beyond the focus of the legal academy as well."
131. David Sklansky, Democracy and the Police 5 (2008)
132. "Because thinking about criminal procedure has tended to focus on the questions taken up by courts, the unfortunate result has been not just that judges have largely failed to consider the systemic requirements for democratic policing, but that most of the rest of us have, too.".
133. Stephen Breyer, Regulation and Its Reform 5 (1982).
134. For just a few relatively recent examples in the Fourth Amendment context, see, for example, I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 36-37 (2011).
135. Arguing that the text of the Fourth Amendment supports a notion of Fourteenth Amendment and that from the 1920s to the 1960s the Court had "interpreted the Fourth, Fifth, and Sixth Amendments in a manner consistent with the promise of equal citizenship contained in the Fourteenth Amendment".
136. Colb, supra note 57, at 123
137. Suggesting a return to the foundations of the knowing exposure octrine in order to determine what is appropriately a search under the Fourth Amendment.
138. Christopher Slobogin, The Liberal Assault on the Fourth Amendment, 4 Ohio St. J. Crim. L. 603, 610 (2007)
139. Rejecting the assumption that the Fourth Amendment requires probable cause, individualized suspicion, or even the exclusionary remedy and instead suggesting that the reasonableness requirement could be met by the proportionality and exigency principles.
140. Russell Covey, Interrogation Warrants, 26 Cardozo L. Rev. 1867, 1890 (2005)
141. Concluding that the policy objectives of Miranda "seem virtually to demand that compulsory interrogation receive Fourth Amendment scrutiny".
142. Mark A. Godsey, Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings, 90 Minn. L. Rev. 781, 784 (2006)
143. Proposing revised Miranda warnings, a requirement that police reiterate the warnings throughout lengthy investigations, and videotaping of interrogations to "more effectively achieve the intended policy goals of the right to counsel warnings".
144. Christopher Slobogin, Toward Taping, 1 Ohio St. J. Crim. L. 309, 316 (2004)
145. Providing constitutional rationales for mandatory taping of interrogations in order to realize Miranda's goal of regulating interrogation.
146. Bibas, supra note 81, at 789-792.
147. Though Bibas believes that the paradigm is breaking down, he is too sanguine about constitutional criminal procedure scholarship and casebooks today. Although the literature incorporates more reference to "the real world," it continues to allow the Supreme Court to set the agenda, at least with respect to the police. Thus, the then-new casebooks that he describes as revamping criminal procedure are organized by almost precisely the same principles as their predecessors-that is, by the intellectual architecture of Supreme Court constitutional criminal procedure.
148. Ronald Jay Allen et al., Comprehensive Criminal Procedure (1st ed. 2001)
149. Marc L. Miller & Ronald F. Wright, Criminal Procedures: Cases, Statutes, and Executive Materials (1st ed. 1998) [hereinafter Miller & Wright, Criminal Procedures (1st ed.)]; infra text accompanying notes 105-106.
150. Bradley, supra note 52
151. Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), the Burger Court (Is It Really So Prosecution-Oriented?), and Police Investigatory Practices, in The Burger Court: The Counter-Revolution that Wasn't 62 (Vincent Blasi ed., 1983).
152. Symposium, The Warren Court Criminal Justice Revolution: Reflections a Generation Later, 3 Ohio St. J. Crim. L. 1 (2005).
153. Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561, 564 (2009) [hereinafter Kerr, Third-Party Doctrine] (defending the third-party doctrine)
154. Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843 (2004) (criticizing the Court's warrantless vehicle search doctrine).
155. Colb, supra note 57, at 184-187
156. Criticizing Supreme Court reasoning in cases like United States v. White that allows it to "classify the government's use of pretend friends and tracking devices as failing to implicate the Fourth Amendment" and contending that "on the logic of Kyllo, rummaging through Greenwood's garbage should therefore be considered a search").
157. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 163-64
158. Criticizing United States v. Drayton and Florida v. Bostick, arguing that "it does not follow that there was no seizure and no unconsented search for Fourth Amendment purposes" in each case.
159. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 763 (1994)
160. Consulting Fourth Amendment history as a basis for advocating contemporary interpretation of the Amendment, that it requires only that all searches be reasonable.
161. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 555-556 (1999)
162. Arguing that contemporary interpretations of the Fourth Amendment are inconsistent with the historical meaning of the Amendment for the Framers, but arguing that return to the original meaning "would subvert the larger purpose for which the Framers adopted the text".
163. David E. Steinberg, The Uses and Misuses of Fourth Amendment History, 10 U. Pa. J. Const. L. 581, 605-606 (2008)
164. Contending that "many scholars have misinterpreted Fourth Amendment history" and suggesting that adherence to the original understanding might improve upon the "chaotic and inconsistent state of current Fourth Amendment jurisprudence".
165. Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 964-974 (2002) (considering and expanding on existing literature on relationship between Fourth Amendment jurisprudence and race)
166. Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 Colum. L. Rev. 1456, 1459-1466 (1996) (considering and adding to literature on significance of guilt and innocence in Fourth Amendment jurisprudence).
167. A recent symposium on the Fourth Amendment, for example, considered three questions: "(1) How important is (should) history (be) to the resolution of Fourth Amendment questions, and how good (or bad) a job does the Supreme Court do in construing history?; (2) What value(s) is (are) the Fourth Amendment intended to serve?; and (3) Is the exclusionary rule a good (the best) way of enforcing these values?".
168. Arnold H. Loewy, The Fourth Amendment: History, Purpose, and Remedies, 43 Tex. Tech L. Rev. 1, 1 (2010).
169. For just a few creative proposals out of the vast literature on the exclusionary rule.
170. Guido Calabresi, The Exclusionary Rule, 26 Harv. J.L. & Pub. Pol'y 111 (2003)
171. Proposing a pairing of punishing police illegalities and reducing defendants' sentences if they are victims of those illegalities.
172. Donald Dripps, The Case for the Contingent Exclusionary Rule, 38 Am. Crim. L. Rev. 1 (2001) (proposing enforcing exclusion only when police departments refuse to pay damages set by the court as a penalty for illegality)
173. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363 (proposing an administrative damages scheme for Fourth Amendment violations).
174. Harmon, Police Violence, supra note 56, at 1122
175. "Criminal procedure scholars have largely focused on a set of police activities-searches, seizures of property, interrogations, and techniques of community policing-other than the use of force.".
176. Joh, Breaking the Law, supra note 81, at 159, 198
177. Noting that scholars have paid inadequate "attention to areas where the Court has paid very little attention: undercover policing, police discretion, and police corruption, to name a few"). Of course, some scholars-especially more junior ones-defy this trend.
178. Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice (2009) (considering law enforcement practice of offering deals to criminal offenders in exchange for information)
179. Joh, Breaking the Law, supra note 81 (considering undercover policing)
180. Elizabeth E. Joh, The Paradox of Private Policing, 95 J. Crim. L. & Criminology 49 (2004) [hereinafter Joh, Private Policing] (considering private policing).
181. Nat'l Research Council, Fairness and Effectiveness in Policing: The Evidence 58 (Wesley G. Skogan & Kathleen Frydl eds., 2003). Although most police contacts with citizens are initiated by calls for service, more face-to-face encounters are traffic-related, either the product of a stop by an officer or an officer responding to the scene of an accident.
182. Matthew R. Durose et al., Bureau of Justice Statistics, Contacts Between Police and the Public, 2005, at 3 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp05.pdf
183. Indicating that, in 2005, 56.3 percent of face-to-face contacts were traffic-related and 29.9 percent involved either an individual reporting a problem to the police or receiving assistance from them).
184. See infra text following note 128 & Section III.B.
185. There are exceptions to this conventional scholarship. Elizabeth Joh, for example, self-consciously goes beyond constitutional methodology and constitutional subject matter in considering the police, and thus constitutes a counterexample to some of the limitations I describe in contemporary scholarship.
186. Joh, Breaking the Law, supra note 81, at 158 (discussing authorized criminality by undercover police officers and considering legal regulation beyond constitutional law)
187. Joh, Private Policing, supra note 92, at 51 (discussing private police and the nonconstitutional law that regulates them).
188. Friendly, supra note 79, at 930-932 (arguing that the complexity of criminal procedure calls for legislative compromise and lamenting the settling of issues for all time by the Court)
189. Wayne R. LaFave & Frank J. Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987, 991-995, 1000-1002, 1003-1004 (1965) (discussing limitations of judicial governance of law enforcement decisions).
190. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 80-84, 222-224 (1969) (advocating that police discretion should be governed by detailed administrative rules)
191. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 417-419 (1974) (same).
192. Bibas, supra note 81, at 789-792
193. Noting that while scholars continue to focus primarily on constitutional doctrine, "a shift is afoot," with new scholars writing about politics, race, and other nontraditional topics.
194. See supra note 83.
195. In Massiah v. United States, 377 U.S. 201 (1964), the Supreme Court prohibited the use of incriminating statements against a defendant at trial because they were obtained in the absence of his attorney after the Sixth Amendment right to counsel attached. The Massiah doctrine prohibits the police from deliberately obtaining information from a defendant after formal charges are brought in the absence of counsel or a knowing, voluntary, and intelligent waiver of the right to counsel. See Brewer v. Williams, 430 U.S. 387, 397-406 (1977).
196. Kerr, Third-Party Doctrine, supra note 87, at 590-594.
197. Kerr, New Technologies, supra note 48, at 840-857.
198. Id. at 838.
199. Kerr, Third-Party Doctrine, supra note 87.
200. Miller & Wright, Criminal Procedures (1st ed.), supra note 85
201. Bibas, supra note 81, at 794 (describing Miller and Wright's book as representing a "huge" and "welcome" shift in emphasis)
202. Robert Weisberg, A New Legal Realism for Criminal Procedure, 49 Buff. L. Rev. 909, 909 (2001)
203. "Marc Miller and Ronald Wright have produced perhaps the most original criminal procedure book in many years, because it departs more than any other casebook from the conventional model of building all material around United States Supreme Court cases.".
204. Even where Miller and Wright most depart from traditional doctrine, in their first chapter addressing "Daily Interaction Between Citizens and Police,"
205. Marc L. Miller & Ronald F. Wright, Criminal Procedures: Cases, Statutes, and Executive Materials (2d ed. 2005), at 3-31
206. Hereinafter Miller & Wright, Criminal Procedures (2d ed.)], the materials are largely organized around Supreme Court doctrines, including community caretaking and vagueness. Another innovative casebook, Christopher Slobogin, Criminal Procedure: Regulation of the Police Investigation, Legal Historical, Empirical, and Comparative Materials (2007), also pushes the bounds of the traditional paradigm by conceiving of the police expressly as a distinctive subject of legal regulation. However, this book too is organized by Supreme Court doctrine.
207. See supra note 85. Of course, since Criminal Procedures is a casebook, one might argue that the authors have pedagogical rather than scholarly reasons to tie themselves to the conventional paradigm. Nevertheless, the book has been fairly treated by other scholars as an innovation in scholarship as well as teaching.
208. Weisberg, supra note 105, at 909. 108.
209. Bernard Harcourt, Against Prediction: Profiling, Policing and Punishing in an Actuarial Age 21-24 (2007) (referencing economic models of profiling, probability, and actuarial science)
210. Sklansky, supra note 81, at 3-9 (describing project of drawing insights from political science literature on democratic theory for contemporary policing)
211. Meares & Harcourt, supra note 19, at 749, 786, 773 (referencing sociological theory, demographic surveys, and police professionalization)
212. William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 523-543 (2001)
213. Hereinafter Stuntz, Pathological Politics] (focusing on political economy and institutional dynamics of policing). Other notable legal scholars contributing to a nonlegal understanding of the police are Jeffrey Fagan and Tom Tyler.
214. Jeffrey A. Fagan et al., Street Stops and Broken Windows Revisited, in Race, Ethnicity, and Policing (Stephen K. Rice & Michael D. White eds., 2009) (assessing the economic and demographic impact of "broken windows" policing strategies)
215. Tom R. Tyler & Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts (2002).
216. Fagan and Tyler, like Harcourt, have academic training in other disciplines as well as law.
217. William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 794 (2006) [hereinafter Stuntz, Political Constitution]
218. Stuntz, Race, Class, and Drugs, supra note 61, at 1799.
219. William J. Stuntz, Local Policing After the Terror, 111 Yale L.J. 2137 (2002)
220. Hereinafter Stuntz, Local Policing] (arguing for changes to the Fourth Amendment and Miranda doctrine in order to improve crime control while improving protections of liberty and privacy in the face of concerns about terrorism.
221. William J. Stuntz, O.J. Simpson, Bill Clinton, and The Transsubstantive Fourth Amendment, 114 Harv. L. Rev. 842 (2001)
222. Arguing that defects in Fourth Amendment law caused problems in the O.J. Simpson and Bill Clinton cases and that improvements to Fourth Amendment law could mitigate such problems.
223. Stuntz, Pathological Politics, supra note 108 (arguing that constitutional doctrine causes pathological tendencies in policing, prosecution, and punishment)
224. William J. Stuntz, Miranda's Mistake, 99 Mich. L. Rev. 975 (2001) (arguing that the Miranda doctrine has been an ineffectual way to regulate police conduct).
225. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1159 (1998) (discussing relationship between community policing and current criminal procedure doctrine)
226. Tracey L. Meares, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 110 (2005) (critiquing the Court for failing to emphasize fundamental fairness in crafting constitutional criminal procedure)
227. David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 Ohio St. J. Crim. L. 567, 580 (2008)
228. Suggesting that in spite of vast changes in policing over the past four decades the exclusionary rule still plays a significant role in governing police under our system of criminal procedure.
229. While scholars have called before for incorporating insights from criminology into criminal procedure.
230. Robert Weisberg, Criminal Law, Criminology, and the Small World of Legal Scholars, 63 U. Colo. L. Rev. 521, 529 (1992).
231. This new literature takes policing rather than criminal procedure as its subject.
232. Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing 8-11, 57-180 (2001).
233. Tyler & Huo, supra note 108, at 14-15
234. Arguing that "the way in which members of the public are treated by legal authorities-process-based policing... can enhance their willingness to cooperate with and defer to those legal authorities" and that by reinforcing legitimacy, police officers can increase long-term legal compliance.
235. Jeffrey Fagan, Legitimacy and Criminal Justice, 6 Ohio St. J. Crim. L. 123, 139 (2008)
236. Explaining that erosion of legitimacy harms cooperation and legitimizes the rejection of "legal and social norms".
237. Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271 (2006)
238. Erik Luna, Transparent Policing, 85 Iowa L. Rev. 1107 (1999)
239. David Alan Sklansky, Not Your Father's Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. Crim. L. & Criminology 1209 (2006).
240. As I have noted, there are counterexamples of legal scholars on policing who defy many of these limitations. See supra notes 92, 95.
241. Paul G. Cassell & Richard Fowles, Handcuffing the Cops?: A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stan. L. Rev. 1055, 1059-1060 (1998) (using regression analysis to conclude that clearance rates have declined as a result of Miranda)
242. Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621, 652-665 (1996) (tentatively concluding that Miranda results in lower conviction rates but noting that police have adapted to its requirements).
243. Thomas Y. Davies, A Hard Look at What We Know (and Still Need to Learn) About the "Costs" of the Exclusionary Rule: The NIJ Study and Other Studies of "Lost" Arrests, 1983 Am. B. Found. Res. J. 611 (1983)
244. Reviewing a National Institute for Justice study and others and concluding that the effect of the exclusionary rule on disposition of felony arrests was exaggerated.
245. Jon B. Gould & Stephen D. Mastrofski, Suspect Searches: Assessing Police Behavior Under the U.S. Constitution, 3 Criminology & Pub. Pol'y 315 (2004) (reporting results of direct observation of police behavior to determine compliance with Fourth Amendment)
246. Craig D. Uchida & Timothy S. Bynum, Search Warrants, Motions to Suppress and "Lost Cases:" The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. Crim. L. & Criminology 1034 (1991) (studying incidence of "lost" exclusionary rule cases when police acquire a search warrant).
247. See, e.g., Complaint at 2, Floyd v. City of New York, No. 08 Civ 1034, 2011 WL 3856515 (S.D.N.Y. Aug. 31, 2011), available at http://ccrjustice.org/files/Floyd_Complaint_08.01.31.pdf.
248. Stephen J. Schulhofer et al., American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. Crim. L. & Criminology 335, 350 (2011).
249. See, e.g., id.
250. Ray Rivera & Al Baker, Police Cite Help From Stop-and-Frisk Data in 170 Cases, N.Y. Times, July 16, 2010, at A15
251. Describing the New York police commissioner's contention that data collected through stop and searches provided a "breakthrough for detectives" in solving crimes.
252. Report of Jeffrey Fagan at 4, Floyd v. City of New York, No. 08 Civ 1034, 2011 WL 3856515 (S.D.N.Y. Aug. 31, 2011), available at http://ccrjustice.org/files/Expert_Report_JeffreyFagan.pdf.
253. See id. at 22, 56.
254. Compare Charlottesville Police Department, Biased Based Policing General Order, 06-02 (2005) (on file with author), with Schneckloth v. Bustamonte, 412 U.S. 218, 232 (1973) (noting that a search request may be the logical result of police investigatory procedures and not requiring individualized suspicion to initiate one).
255. Though some scholars have pointed out the aggregate costs of particular aggressive policing policies.
256. Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control: Should One Make Us More Comfortable with the Others?, 34 Ga. L. Rev., 1253, 1285-87 (2000)
257. Better analysis requires more fully fleshed theoretical work on how to evaluate such policies.
258. See Nat'l Research Council, supra note 93, at 228-229
259. David Weisburd & John E. Eck, What Can Police Do To Reduce Crime, Disorder, and Fear?, 593 Annals Am. Acad. Pol. & Soc. Sci. 42, 50-51 (2004).
260. But this literature is often devoted to assessing the effects of these harms on crime control.
261. Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 262 (2008)
262. Considering public evaluations of police decisionmaking and arguing that study results show that "legitimacy shapes willingness to cooperate with the police in fighting crime"). Harcourt, supra note 113, at 7, 57-121 (contending that "there is no good evidence to support the broken windows theory").
263. Anthony A. Braga & David Weisburd, Problem-Oriented Policing: The Disconnect Between Principles and Practice, in Police Innovation 117 (Anthony A. Braga & David Weisburd eds., 2006)
264. David Kennedy, Old Wine in New Bottles: Policing and the Lessons of Pulling Levers, in Police Innovation, supra, at 155
265. Dennis P. Rosenbaum, The Limits of Hot Spots Policing, in Police Innovation, supra, at 245.
266. Research on the High Point Drug Market Intervention Strategy developed by David Kennedy and Sue-Lin Wong provides an example. While the "High Point Strategy" is primarily justified as a means of reducing violent crime and closing public drug market areas, its supporters also note that "[i]t does not produce the community harms that our traditional street-sweeping, unfocused efforts of the past have.".
267. David M. Kennedy & Sue-Lin Wong, John Jay Coll. of Criminal Justice, The High Point Drug Market Intervention Strategy, at v (2009), available at http://www.cops.usdoj.gov/files/RIC/publications/e08097226-HighPoint.pdf
268. Quoting a police department chief commenting on the impact that the High Point Strategy has had in the local community). While the strategy's effectiveness and ability to mobilize communities have been subject to considerable evaluation, its claims about being less harmful to individuals and communities than alternatives have been less well examined, in part because the theoretical grounds for evaluating harm efficiency are not in place.
269. Jeffrey J. Noble & Geoffrey P. Alpert, Managing Accountability Systems for Police Conduct 286-88 (2009)
270. Samuel Walker, The New World of Police Accountability 100-101 (2005)
271. Samuel Walker & Morgan Macdonald, An Alternative Remedy for Police Misconduct: A Model State "Pattern or Practice" Statute, 19 Geo. Mason U. C.R. L.J. 479, 508-510 (2009)
272. Describing the mechanisms of early warning systems required by consent decrees and memoranda of agreement negotiated under Section 14141 interventions.
273. See Bd. of the Cnty. Comm'rs v. Brown, 520 U.S. 397, 403-405 (1997).
274. See, e.g., City of Canton v. Harris, 489 U.S. 378 (1989); City of Okla. City v. Tuttle, 471 U.S. 808 (1985); Sutton v. Utah State Sch. for Deaf and Blind, 173 F.3d 1226, 1239-41 (10th Cir. 1999); Larez v. City of L.A., 946 F.2d 630, 646 (9th Cir. 1991); Brandon v. Allen, 645 F. Supp. 2d 1261, 1265-70 (W.D. Tenn. 1986).
275. See Vineyard v. County of Murray, 990 F.2d 1207, 1212-13 (11th Cir. 1993) (affirming finding of liability for inadequate policies of supervision, discipline, and training that amounted to deliberate indifference toward unconstitutional conduct); Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir. 1992) (affirming liability for police chief in light of system in which reports of physical and sexual assault by officers were discouraged or even covered up); Gentile v. County of Suffolk, 926 F.2d 142, 145-47 (2d Cir. 1991) (affirming liability for a pattern or practice of refusing to investigate incidents of misconduct or to discipline officers).
276. I am using the term "civil service law" broadly to include other state and local laws that provide adjudicative mechanisms to appeal the hiring, demotion, reassignment, or firing of police officers on either substantive or procedural grounds.
277. th ed. 2009).
278. David Armstrong, Conduct Unbecoming: Second Chance for Bad Cops; Chiefs Say Civil Service Thwarts Discipline, Bos. Globe, May 21, 2000, at A1
279. Describing the difficulty of firing police officers accused of misconduct). Although Massachusetts may be an extreme case, it is hardly unique in making efforts to discipline officers costly. Mandatory arbitration for discipline appeals provided for by collective bargaining can have similar effects and is perhaps even more favorable to officers.
280. Aitchison, supra note 137, at 98
281. Jane Prendergast & Kevin Aldridge, Ex-Cop May Be Rehired: Evidence Ruled Insufficient in Owensby Death, Cin. Enquirer, May 6, 2004, at 1C
282. Jane Prendergast & Robert Anglen, 10 Fired Officers Returned to Force: City Lost All Cases Taken to Arbitration, Cin. Enquirer, Jan. 18, 2001, at 1A
283. Aitchison, supra note 137, at 107-186
284. Describing dozens of civil service or arbitration appeals of internal discipline in which the appeal resulted in less discipline than was imposed by the department.
285. Unfortunately, data about police misconduct and its remedies are presently too limited to say how well constitutional remedies deter.
286. Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 28-34 (2009)
287. Hereinafter Harmon, Proactive Policing] (noting that data on police misconduct is limited and describing how the absence of mandatory data collection limits the effectiveness of efforts to enforce 42 U.S.C. § 14141). Moreover, there are many obstacles to deterring police misconduct with constitutional remedies other than the costs imposed by other legal doctrines.
288. Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023, 1028 (2010) (contending that law enforcement agencies lack basic information about lawsuits against their cities and officers)
289. Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 475 (2004)
290. Arguing that chiefs of police may tolerate police brutality because the political gains of aggressive policing outweigh the financial costs of liability.
291. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 345 (2000) (contending that government actors do not internalize financial costs against cities in the same manner as private actors).
292. Armstrong, supra note 138.
293. Civil service rules may discourage police officers as well as supervisors from action.
294. John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 Yale L.J. 259, 267-268 (2000)
295. Explaining how officers face vastly greater risk of liability for wrongful acts than for failing to act and noting that civil service protections, which generally prevent workers for being fired for merely doing a bad job, further discourage action.
296. Noble & Alpert, supra note 132, at 207-208.
297. A city that is not directly liable for failing to prevent misconduct may still face costs if the officer is held liable for the misconduct and the city has indemnified the officer. See, e.g., Wilson v. City of Chicago, 120 F.3d 681 (1997) (finding the City of Chicago responsible for paying damages awarded against a police officer pursuant to a state indemnification statute even though the claims directly against the city had been dismissed). Where indemnification is mandated by statute or is widespread and is also broadly construed, one would not expect departments to have a strong incentive to diminish internal accountability to avoid external liability.
298. See City of Canton v. Harris, 489 U.S. 378, 385-92 (1989) (holding that failure to adequately train police officers can create § 1983 liability if it "amounts to deliberate indifference to the rights of persons with whom the police come into contact").
299. The tax imposed by civil service laws can have other effects as well. To avoid the costs of a civil service appeal, departments will often negotiate with an officer to resign rather than be fired.
300. Roger L. Goldman & Steven Puro, Revocation of Police Officer Certification: A Viable Remedy for Police Misconduct?, 45 St. Louis U. L.J. 541, 559, 560 n.116 (2001) [hereinafter Goldman & Puro, Revocation].
301. Once he resigns, however, he is free to apply to any of hundreds of other law enforcement agencies in the same state, so long as he is not decertified. Most states have restrictive decertification mechanisms that do not permit decertification for many kinds of misconduct.
302. Roger L. Goldman, Nat'l Ass'n for Civilian Oversight of Law Enforcement, The Case for Peace Officer Decertification (2011) (on file with author) (describing the limits on state revocation of certification).
303. Of course, we might not fear this as much if the second department could learn the circumstances of the resignation from the first, but in many cases, the first department will avoid conveying any information for fear of a defamation suit or a suit for depriving the employee of his Fourteenth Amendment due process rights.
304. Goldman & Puro, Revocation, supra, at 548-549
305. see also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 566-69 (1972). Thus, nonconstitutional law may promote an unfortunate result: officers with a history of misconduct who move from department to department.
306. John M. Collins, Thirteen Ways To Lose a Labor Case, Police Chief (Nov. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1940&issue_id=112009.
307. Some states and local governments allow, but do not require, collective bargaining, and in many of those jurisdictions, contracts with public employees require such bargaining. In 2007, Congress considered H.R. 980, which would have required all states and local governments to collectively bargain with public safety employees, including police officers. Forty-one percent of local police departments, employing seventy-one percent of all officers, authorized collective bargaining for sworn personnel. Collective bargaining is apparently effective. The average starting salary for entry level officers was $ 8,900 higher in departments that authorized collective bargaining than in those that did not.
308. Matthew J. Hickman & Brian A. Reaves, Bureau of Justice Statistics, Local Police Departments, 2003, at 12 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/lpd03.pdf.
309. For both civil service and collective bargaining, the timing is aggravated by the fact that police chiefs have a limited expected tenure, and that tenure is dependent in part on the costs they incur for the department and city while on the job. As a result, they will more heavily discount future costs and more heavily count immediate costs than other actors.
310. Harmon, Proactive Policing, supra note 139, at 47
311. Noting that police chiefs heavily discount future costs and benefits "because they may be out of office when those costs and benefits are felt, whereas the near-term costs and benefits will often dictate their political futures".
312. See, e.g., Americans with Disabilities Act of 1990, Pub. L. No. 101-336, §§ 101-07, 104 Stat. 327, 330-36 (codified as amended at 42 U.S.C. §§ 12111-17 (2006)); Civil Rights Act, 42 U.S.C. § 2000 (2006).
313. Martin J. Mayer, ADA and the Hiring Process, Police Chief (Sept. 2009), http://policechiefmagazine.org/magazine/index.cfm?fuseaction=display&issue_id=92009&category_ID=3.
314. Karen J. Kruger, When Does an Employment Disciplinary Action Violate the Fourteenth Amendment's Protection of the Liberty Interest?, Police Chief (Mar. 2008), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1107&issue_id=22007.
315. Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers' Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 200-201 (2005).
316. They often limit the timing, location, circumstances, and content of disciplinary interviews. Id. at 217. Many other state laws affect the hiring and management of police officers. New York, for example, has Civil Service Law, Public Officers Law, Military Law, Town and Village Law, state human rights and general employment laws, and the Public Employees Fair Employment Act (The Taylor Law), all of which affect the hiring and management of the police. New York City has additional rules, including the Municipal Civil Service Rules.
317. N.Y. State, Dep't of Civil Serv., Summary of New York State Civil Service Law ii, 1 (2008), available at http://www.cs.ny.gov/pio/publications/summofcsl.pdf.
318. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 535-48 (1985); Washington v. Davis, 426 U.S. 229 (1976)
319. Kruger, supra note 148.
320. See O'Connor v. Ortega, 480 U.S. 709, 718 (1987) (holding that "whether [a public] employee has a reasonable expectation of privacy must be addressed on a case-bycase basis".
321. Kim Wilson, When Does an Employer's Search of Employee Work Areas Violate Privacy Rights?, Police Chief (Aug. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1568&issue_id=82008.
322. This, of course, the Supreme Court has realized, see City of Ontario v. Quon, 130 S. Ct. 2619 (2010), though not in conjunction with the incentives created by § 1983 and the exclusionary rule.
323. Martin Schiff, The Age Discrimination in Employment Act: Whither the Bona Fide Occupational Qualification and Law Enforcement Exemptions?, 67 St. John's L. Rev. 13, 14 (1993).
324. See, e.g., EEOC v. City of Janesville, 630 F.2d 1254 (7th Cir. 1980) (remanding for consideration of whether the ADEA exemption applied to the forced retirement of a police chief at fifty-five); EEOC v. City of Minneapolis, 537 F. Supp. 750 (D. Minn. 1982) (holding that the ADEA exemption did not apply to the forced retirement of a police chief at sixty-five).
325. Schiff, supra note 152, at 14-15.
326. Kopec v. City of Elmhurst, 193 F.3d 894, 897 (7th Cir. 1999).
327. Age Discrimination in Employment Act of 1967, Pub. L. No. 104-208, § 119(1), 100 Stat. 3009, 3009-23 to -24 (codified as amended at 29 U.S.C. § 623(j)(1) (2006)).
328. Julie Risher, Supervisory Law Basics for New Chiefs and Other Supervisors, Police Chief (Aug. 2006), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=976&issue_id=82006.
329. Craig D. Uchida, The Development of the American Police: An Historical Overview, in Critical Issues in Policing: Contemporary Readings 17, 26-27 (Roger G. Dunham & Geoffrey P. Alpert eds., 6th ed. 2010).
330. Hickman & Reaves, supra note 146, at 12.
331. Quite to the contrary, the Supreme Court has sometimes assumed the effectiveness of internal accountability mechanisms. See, e.g., Hudson v. Michigan, 547 U.S. 586, 598-99 (2006) (describing internal departmental discipline as an effective alternative to the exclusionary rule for deterring civil rights violations).
332. Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (entered into force Mar. 19, 1967); Vienna Convention on Diplomatic Relations, opened for signature Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (entered into force Apr. 24, 1964); S.F., Cal., Administrative Code ch. 12H (2007).
333. These include the Wiretap Act, the Stored Communications Act, the Drivers Privacy Protection Act, the Electronic Communications Privacy Act, the Pen Register Act, the USA-PATRIOT Act, the Fair Credit Reporting Act, the Right to Financial Privacy Act, the Family Education Right to Privacy Act, the Cable Communication Policy Act, the Video Privacy Protection Act, the Health Insurance Portability and Accountability Act, and the Privacy Protection Act, among others.
334. Solove, supra note 57, at 763-778 (discussing federal statutes regulating police investigation using new technologies).
335. Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, § 802, 82 Stat. 197, 212-23 (codified at 18 U.S.C. §§ 2510-20 (2006)).
336. Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 201[a], 100 Stat. 1848, 1861 (codified at 18 U.S.C. § 2703(c)(1) (2006)).
337. The Health Insurance Portability and Accountability Act, for instance, restricts law enforcement access to medical marijuana prescriptions permitted under local or state law. See 42 U.S.C. §§ 1320d to 1320d-6 (2006).
338. Deedee Correll, Privacy Act Hinders Police Investigations: Federal Law Stops Cops from Getting Patient Details Quickly, Colo. Springs Gazette, May 11, 2003, at A1
339. Kim Wilson, HIPPA and Law Enforcement Access to Medical and Mental Health-Care Records, Police Chief (Aug. 2009), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=1854&issue_id=82009.
340. See 8 U.S.C. § 1357(g) (2006) (added as § 287(g) of the Immigration and Nationality Act by § 133 of the Illegal Immigration Reform and Immigrant Responsibility Act) (authorizing the federal government to enter into agreements with state and local law enforcement agencies to permit those agencies to enforce federal immigration law).
341. 18 U.S.C. §§ 926B-C (2006). There are two narrow exceptions. The statute does not override state laws that permit private landowners or state or local governments from restricting concealed firearms on private or government property. Id.
342. See, e.g., City of Houston v. Hill, 482 U.S. 451, 463 (1987); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87-88 (1980); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990); Jones v. State, 798 So. 2d 1241, 1248 (Miss. 2001); State v. Janisczak, 579 A.2d 736 (Me. 1990); see also Wright & Miller, Criminal Procedures (1st ed.), supra note 85, at 15.
343. See Kyles v. Whitley, 514 U.S. 419, 437-38 (1995); Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Blanco, 392 F.3d 382, 388 (9th Cir. 2004).
344. See, e.g., Alaska Stat. § 18.65.530(a) (2010); Colo. Rev. Stat. § 18-6-803.6(1) (2001); Kan. Stat. Ann. § 22-2307(b)(1) (1996); N.Y. Crim. Proc. Law § 140.10(4)(a) (McKinney 2009).
345. Marc L. Miller & Ronald F. Wright, Leaky Floors: State Law Below Federal Constitutional Limits, 50 Ariz. L. Rev. 227, 232-237 (2008) [hereinafter Miller & Wright, Leaky Floors].
346. See, e.g., N.Y.C., N.Y. Administrative Code § 14-151 (2010).
347. To say that there are many legal rules regulating police conduct is not to argue that existing law covers the field. Some matters-such as what suspect identification procedures are used or whether interrogations must be recorded-are now at least arguably inadequately regulated. But this is not because there are no legal rules governing these activities. It is instead a question of which institutions make the rules, and whether those institutions make the right ones.
348. State and federal civil and criminal suits are also subject to defenses, such as self defense, the public authority defense, and entrapment, all of which can set limits on police conduct. These defenses may therefore fall into the first category of laws.
349. See, e.g., People v. Town of Wallkill, No. 01-Civ-0364, 2001 U.S. Dist. LEXIS 13364 (S.D.N.Y. Mar. 16, 2001)
350. Walker & Macdonald, supra note 132, at 482 n.15 (citing People v. City of Riverside, No. 355410 (Cal. Super. Ct. Mar. 5, 2001), available at http://www.riversideca.gov/rpd/AGTF/stipjdg.pdf.
351. This approach to reform is not entirely neglected. Roger Goldman and Steven Puro have long advocated the use of decertification (also called revocation) to discourage police misconduct.
352. Roger Goldman & Steven Puro, Decertification of Police: An Alternative to Traditional Remedies for Police Misconduct, 15 Hastings Const. L.Q. 45, 47 (1987).
353. State laws often control police complaint, investigation, or disciplinary proceedings. See, e.g., N.J. Stat. Ann. § 40A:14-181 (West 2011).
354. Samuel Walker, Alternative Models of Citizen Oversight, in Citizen Oversight of Law Enforcement 1, 11-13 (Justina Cintrón Perino ed., 2006) (describing alternative models of citizen oversight and noting ways they interact with internal disciplinary mechanisms).
355. 405 U.S. 150, 153-54 (1972).
356. Of course, as I have already suggested, employment, labor, and civil service laws may make it expensive to transfer such an officer. See supra text accompanying notes 136-139.
357. Some big departments effectively designate "liars' squads" for such officers, an unattractive administrative assignment for officers whom prosecutors do not want to use. Lisa A. Judge, Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?, Police Chief (Nov. 2005), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display&article_id=744&issue_id=112005.
358. See Indep. Comm'n on the L.A. Police Dep't, Report of the Independent Commission on the Los Angeles Police Department 37-39 (1991), available at http://www.parc.info/client_files/Special%20Reports/1%20-%20Chistopher%20Commision.pdf.
359. Hans Toch, The Violence-Prone Police Officer, in Police Violence 94 (William A. Geller & Hans Toch eds., 1996).
360. Richard C. Lumb, Standards of Professionalization: Do the American Police Measure Up?, 17 Police Stud. 1, 3-4 (1994) (describing the history and activities of POSTs).
361. Id. at 8-10
362. Matthew J. Hickman, Bureau of Justice Statistics, State and Local Law Enforcement Training Academies, 2002, at 10 (2005), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/slleta02.pdf.
363. For an overview of Peace Officer Standards and Training Commissions, see IADLEST Model Minimum Standards, Int'l Ass'n of Dirs. of Law Enforcement Standards and Training, http://www.iadlest.org/Projects/ModelStandards.aspx (last visited Oct. 9, 2011) (noting that an overwhelming majority of police academies develop the content of basic training pursuant to state commissions and that more than half of academies used state tests). In some jurisdictions, the standards are recommended rather than mandatory.
364. Hickman, supra note 184, at 9.
365. David W. Murphy & John L. Worrall, Residency Requirements and Public Perceptions of the Police in Large Municipalities, 22 Policing: Int'l J. Police Strategies & Mgmt. 327, 331 (1999)
366. Noting that many departments oppose residency requirements because they reduce the quality of officers that a department can attract.
367. Kevin Johnson, Police, Firefighters Challenge Residency Rules, USA Today, Oct. 2, 2006, at 5A.
368. Police officers with a college education use significantly less force than other officers
369. Jason Rydberg & William Terrill, The Effect of Higher Education on Police Behavior, 13 Police Q. 1, 19 (2010).
370. Pub. L. 104-208, § 658, 110 Stat. 3009, 3009-371 to 3009-372 (codified at 18 U.S.C. §§ 921-22, 925 (2006)).
371. See, e.g., Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (holding that statements made by police officers and other government employees upon threat of termination cannot be used in subsequent criminal proceedings consistent with the Fifth Amendment's privilege against self-incrimination). Police departments and officers can use Garrity as a shield as well as a sword. If departments or officers release compelled statements by defendant officers, they can significantly hinder state and federal prosecutions.
372. See, e.g., Taylor v. Crane, 595 P.2d 129, 133 (Cal. 1979) (addressing the interaction between a charter that gave the city manager sole power to discipline employees and a police union's assertion that any dispute could be submitted to an arbitrator under the collective bargaining agreement). Other laws affect the management of the police officers more indirectly.
373. Some-such as the Uniformed Services Employment and Reemployment Rights Act of 1994, which grants individuals who leave civilian jobs for military service reemployment rights-are laws of general application that disproportionately impact police departments. Pub. L. 103-353, 108 Stat. 3149 (codified at 38 U.S.C. §§ 4301-33 (2006), 5 U.S.C. § 8432b (2006)).
374. See, e.g., Kirwan v. Diamondback, 721 A.2d 196, 199 (Md. 1998); Federated Publ'ns, Inc. v. Boise City, 915 P.2d 21 (Idaho 1996).
375. See, e.g., Cal. Penal Code § 832.7 (West 2011) (expressly excepting law enforcement personnel records from freedom of information disclosure); State v. Garrison, 711 N.W.2d 732 (Iowa Ct. App. 2006) (unpublished table decision) (exempting disclosure of police disciplinary proceedings under personnel file exemption).
376. Jenny R. Macht, Should Police Misconduct Files Be Public Record? Why Internal Affairs Investigations and Citizen Complaints Should Be Open to Public Scrutiny, 45 Crim. L. Bull. 5 (2009).
377. See, e.g., Commonwealth v. Hyde, 750 N.E.2d 963, 967 (Mass. 2001) (holding that state wiretapping statute was intended to prohibit secretly recording the speech of anyone, including police).
378. For an exception considering one piece of this landscape
379. Macht, supra note 192.
380. Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, in Police Violence, supra note 182, at 247, 251
381. Dripps, supra note 91, at 18 (listing proposed alternatives to the exclusionary rule but noting that none has ever been adopted by a state legislature)
382. Slobogin, supra note 91, at 394-400
383. Arguing that a modified administrative damages regime would be a more effective deterrent mechanism than the exclusionary rule or internal sanctions.
384. Richard H. Fallon, Jr., Individual Rights and the Powers of Government, 27 Ga. L. Rev. 343, 375-376 (1993)
385. Eric Rakowski, Conceptual Interdependence and Comparative Competence, 27 Ga. L. Rev. 391, 403-404 (1993).
386. Goldman & Puro, Revocation, supra note 145, at 545-550, 577-579 (advocating for more active state regulation of policing through decertification)
387. Walker & Macdonald, supra note 132, at 481-482
388. Proposing a model state statute analogous to § 14141 in order to "significant[ly] increase... police reform efforts directed at patterns or practices of police abuse of rights".
389. Bradley, supra note 52, at 144-145 (advocating congressional commission to create a code of criminal procedure)
390. Myriam Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 Colum. L. Rev. 1384, 1417-1419 (2000) (proposing an amendment to 42 U.S.C. § 14141 to allow private citizens a voice in regulating police).
391. Dripps, supra note 80, at 147-150
392. David A. Sklansky, Quasi-Affirmative Rights in Constitutional Criminal Procedure, 88 Va. L. Rev. 1229, 1243 (2002).
393. William Stuntz came closest to avoiding this problem. For example, he helpfully explored some of the local political-economic influences on police officers and departments, and how they compare to federal law enforcement.
394. William J. Stuntz, Terrorism, Federalism, and Police Misconduct, 25 Harv. J.L. & Pub. Pol'y 665, 671-673 (2002)
395. Observing that local police behavior is constrained by local political accountability and by budgetary limitations, which leave police with little time to harass citizens for harassment's own sake). But even Stuntz focused much more on the political economy of crime control than the political economy of policing, and he never meaningfully included state actors in his analysis.
396. Stuntz, Pathological Politics, supra note 108, at 510.
397. Neil Komesar, Imperfect Alternatives 3-50 (1997) (calling for comparative institutional analysis in law)
398. William W. Buzbee, Sprawl's Dynamics: A Comparative Institutional Critique, 35 Wake Forest L. Rev. 509, 511 (2000) (using institutional choice frameworks to analyze sprawl and smart growth policy)
399. Nancy J. Knauer, The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice, 28 U. Haw. L. Rev. 23, 24 (2006) (applying comparative institutional analysis to examine the same-sex marriage movement)
400. Timothy D. Lytton, Lawsuits Against the Gun Industry: A Comparative Institutional Analysis, 32 Conn. L. Rev. 1247, 1248 (2000) (using comparative institutional analysis to argue that gun violence should be reduced through the tort system).
401. Harmon, Proactive Policing, supra note 139, at 37.
402. Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 459 (2004).
403. Harmon, Proactive Policing, supra note 139, at 37 (noting that police departments often do not have the expertise to develop adequate reforms to prevent misconduct).
404. Brian A. Reaves, Bureau of Justice Statistics, Census of State and Local Law Enforcement Agencies, 2004, at 4-5 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/csllea04.pdf.
405. See, e.g., Int'l Ass'n of Chiefs of Police, Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement (2006), available at http://www.cops.usdoj.gov/files/ric/Publications/e06064100.pdf (noting that law enforcement chiefs have recognized the value of organization commitments to civil rights).
406. Marc L. Miller & Ronald F. Wright, Secret Police and the Mysterious Case of the Missing Tort Claims, 52 Buff. L. Rev. 757, 781-782 (2004)
407. Hereinafter Miller & Wright, Secret Police] (noting that police departments do not bear the political or financial costs of monetary judgments in police tort cases).
408. Harmon, Proactive Policing, supra note 139, at 8. The short run matters disproportionately to political actors. See id. at 46-47.
409. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L. Rev. 47, 74 (1998) ("When a police department authorizes searches, it generates diffuse benefits and concentrated harms.")
410. Stuntz, Local Policing, supra note 110, at 2145-2146 (noting the tradeoff between more police power and the harms that come with it, and the harms of crime)
411. Stuntz, Race, Class, and Drugs, supra note 61, at 1822 (describing high costs to police of intervening in upscale drug markets and relatively low costs of street encounters).
412. Andrew Golub et al., The Race/Ethnicity Disparity in Misdemeanor Arrests in New York City, 6 Criminology & Pub. Pol'y 131, 1155 (2007)
413. Patricia Warren et al., Driving While Black: Bias Processes and Racial Disparity in Police Stops, 44 Criminology 709, 731 (2006), reprinted in Race, Ethnicity, and Policing, supra note 108, at 264
414. Michael D. White & Jessica Saunders, Race, Bias, and Police Use of the TASER: Exploring the Available Evidence, in Race, Ethnicity, and Policing, supra note 108, at 382.
415. Stuntz, Political Constitution, supra note 109, at 786-814
416. Describing increasing harshness of substantive criminal law and the fact that the groups with the most interest in that law are often small and less sympathetic.
417. Roger L. Goldman, The Case for Peace Officer Decertification, Address at the Annual Conference of the National Association for Civilian Oversight of Law Enforcement (Sept. 14, 2011)
418. On file with author) (stating that six states-California, Hawaii, Massachusetts, New Jersey, New York, and Rhode Island-have no mechanism for decertification and that sixteen more permit decertification only following a criminal conviction.
419. Roger L. Goldman, State Revocation of Law Enforcement Officers' Licenses and Federal Criminal Prosecution: An Opportunity for Cooperative Federalism, 22 St. Louis U. Pub. L. Rev. 121, 122 (2003) (describing the existing state of decertification laws and practices of states in decertifying officers).
420. Cheh, supra note 195, at 251.
421. Miller & Wright, Secret Police, supra note 207, at 768 (noting statutory caps on state civil suits)
422. Sklansky, supra note 111, at 580-81 (discussing California's exclusionary rule).
423. Cheh, supra note 195, at 260-61 (describing, but not characterizing, state civil liability for uses of force).
424. Miller & Wright, Leaky Floors, supra note 171, at 230.
425. The Public Safety Employer-Employee Cooperation Act of 2009 would change this, mandating collective bargaining arrangements with public safety employees, regardless of state and local laws. See H.R. 413, 111th Cong. (2009).
426. Goldman & Puro, Revocation, supra note 145, at 564
427. Describing California union opposition to expanding the powers of the state police officer standards and training agency to increase revocation); id. at 566-67 (describing Florida union opposition to increasing state control over police discipline.
428. Steven Puro et al., Police Decertification: Changing Patterns Among the States, 1985-1995, 20 Policing: Int'l J. Police Strategies & Mgmt. 481 (1997) [hereinafter Puro et al., Police Decertification]
429. Dan Walters, Police Panel Deadlocked on Oversight, Fresno Bee, Nov. 7, 2000, at A13 (illustrating union efforts to resist expansion of state revocation).
430. Armstrong, supra note 138 (alleging that the Massachusetts Civil Service Commission is captured by the interests of government union employees).
431. Goldman & Puro, Revocation, supra note 145, at 547, 574 (noting that most states have adopted revocation statutes, including six states between 1987 and 1996 and four more since 1996)
432. Puro et al., Police Decertification, supra note 217.
433. For example, Minnesota and Alaska require videotaping by judicial opinion. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994); Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985). Other states have passed statutes. See, e.g., Me. Rev. Stat. Ann. tit. 25, § 2803- B(1)(k) (2009); Neb. Rev. Stat. § 29-4503 (2008); N.M. Stat. § 29-1-16 (2006).
434. See, e.g., Right to Financial Privacy Act of 1978, Pub. L. 95-630, 92 Stat. 3697 (codified at 12 U.S.C. §§ 3401-22 (2000)); Fair Credit Reporting Act, Pub. L. 90-231, 84 Stat. 1128 (1968) (codified at 15 U.S.C. §§ 1681-1681x (2000)); Pen/Trap Statute (Pen Register Act), Pub. L. 99-508, 100 Stat. 1868 (1986) (codified at 18 U.S.C. §§ 3121-27 (2000)); Communications (Dill-Rayburn) Act of 1934, ch. 652, § 631, 48 Stat. 1064 (codified at 47 U.S.C. § 551 (2000)); Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104-191, 110 Stat. 1936 (codified in scattered sections of 18 U.S.C., 26 U.S.C., 29 U.S.C., and 42 U.S.C.); see also Solove, supra note 57, at 763-67.
435. See City of Los Angeles v. Lyons, 461 U.S. 95, 105-10 (1983) (barring injunctive relief for plaintiff harmed by the use of a chokehold by the Los Angeles Police Department ("LAPD") because plaintiff did not face a realistic threat of being put in another chokehold by the LAPD); Rizzo v. Goode, 423 U.S. 362, 371-73 (1976) (striking down injunctive relief because the plaintiffs lacked a personal stake in the court-ordered change to police disciplinary procedures); O'Shea v. Littleton, 414 U.S. 488, 493-99 (1974); United States v. City of Philadelphia, 644 F.2d 187, 199 (3d Cir. 1980) (holding that the federal government does not have implied statutory authority to enjoin local officials who are violating citizens' constitutional rights).
436. Harmon, Proactive Policing, supra note 139, at 12.
437. Solove, supra note 57, at 748.
438. For example, while President George W. Bush was running for office, he stated, "I do not believe the Justice Department should routinely seek to conduct oversight investigations, issue reports or undertake other activity that is designed to function as a review of police operations in states, cities and towns.".
439. Eric Lichtblau, Bush Sees U.S. as Meddling in Local Police Affairs, L.A. Times, Jun. 1, 2000, at A5.
440. Harmon, Proactive Policing, supra note 139, at 29-34.