Panopticism for police: Structural reform bargaining and police regulation by data-driven surveillance

Washington Law Review

Volumn 87, Issue 1, 2012, Pages 93-138

  Fan, Mary D ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 84859135625     PISSN: 00430617     EISSN: None     Source Type: Journal    
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References (183)

1. Consent Decree at paras. 29, 32, 36-37, United States v. New Jersey, No. Civil 99-5970 (MLC) (D.N.J. Dec. 30, 1999).
2. Consent Decree at paras. 55-69, 104-05, United States v. City of Los Angeles, No. Civil 00-11769 (C.D. Cal. June 15, 2001).
3. Consent Decree at paras. 10-13, New York v. Wallkill, No. 01-Civ-0364 (S.D.N.Y. Feb. 21, 2001).
4. Consent Judgment, Use of Force and Arrest and Witness Detention at paras. 78-90, 124-30, United States v. City of Detroit, No. 03-72258 (E.D. Mich. June 12, 2003).
5. There are many other similar examples. For example, New York City police report the race of people targeted for investigative stops and promulgate written policies forbidding profiling pursuant to a stipulation to settle a civil rights suit. Stipulation of Settlement at 5, 8-9, ex. B, Daniels v. City of New York, No. 99 Civ. 1695 (SAS) (S.D.N.Y. Sept. 24, 2003). Montgomery County, Maryland, police have agreed to implement a computer system recording traffic stop data, including race of people stopped and searched, to conduct regular data analyses, and to release the results in semiannual public reports. Memorandum of Agreement Between the U.S. Dep't of Justice, Montgomery County, Md., the Montgomery Cnty. Dep't of Police and the Fraternal Order of Policy, Montgomery Cnty. Lodge, Montgomery County Lodge 35, Inc., 11-12 (Jan. 14, 2000). Pittsburgh police must file a written report after each traffic stop that records the race of people stopped, whether the stop escalated to a search, and whether searches yielded any contraband or other evidence pursuant to a consent decree. Consent Decree at para. 16, United States v. Pittsburgh, No. Civil 97-0354 (W.D. Pa. Sept. 30, 2002). Virgin Islands police must document all uses of force in writing and develop a computerized risk management system that enables audits of such factors as each officer's uses of force and decisions to charge subjects with "resisting arrest, " "assault on a police officer, " "disorderly conduct, " or "obstruction of official business" in use-of-force cases. Consent Decree at paras. 32, 59-60, United States v. Territory of the Virgin Islands, No. 03-23-09 (D.V.I. Mar. 23, 2009), available at http://www.justice.gov/crt/about/spl/documents/VIPD_CD_03-23-09.pdf.
6. Bob Herbert, Police Predators, N.Y. Times, Jan. 25, 2001, at A23 (describing numerous reports of police abuse of power in Wallkill, New York); Letter from Loretta King, Acting Assistant Attorney Gen., U.S. Dep't of Justice, Civil Rights Div., to Sheriff Joseph Arpaio, Maricopa Cnty. Sheriff's Office (Mar. 10, 2009) (conveying allegations and notifying regarding investigation); Letter from Bill Lann Lee, Acting Assistant Attorney Gen., U.S. Dep't of Justice, Civil Rights Div., to James K. Hahn, City Attorney, City of L.A. (May 8, 2000) (detailing allegations and findings); Letter from Deval L. Patrick, Assistant Attorney Gen., U.S. Dep't of Justice, Civil Rights Div., to Jacquelyn Morrow, City Solicitor, City of Pittsburgh, City of Pittsburgh Investigative Findings Letter (date not specified), available at http://www.justice.gov/crt/about/spl/documents/pittspdfind.php (detailing civil rights violations).
7. Daniels v. City of New York, 198 F.R.D. 409, 422 (S.D.N.Y. 2001) (certifying class action in civil rights suit); Complaint at 1-7, United States v. City of Pittsburgh, No. 97-0354 (W.D. Pa. Feb. 26, 1997) (launching civil rights suit).
8. Joint Motion to Remove Case to the Inactive Docket and Stay Proceedings, United States v. Maricopa County, Ariz., No. 2:10-cv-01878-GMS (D. Ariz. June 2, 2011) (staying civil rights suit because of agreement to settle suit); Decision and Order Dismissing Defendant's Challenge to Subject Matter Jurisdiction, New York v. Wallkill, No. 01-civ-0364 (S.D.N.Y. Mar. 16, 2001), (finding subject-matter jurisdiction to enter proposed consent decree).
9. Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich. L. Rev. 2466, 2470 (1996) (explaining that constitutional criminal procedure doctrine is akin to criminal law for cops, prescribing police conduct rules).
10. A consent decree is akin to a contract in that it binds the parties, but it is "more than a mere contract" because it is in form an order of the court and requires court action for consummation. Recent Cases, 41 Harv. L. Rev. 538, 539 (1928).
11. Memorandum of Agreement Between the United States & the City of Villa Rica, Ga. 7 para. 4 (Dec. 23, 2003) ("This Agreement is enforceable through specific performance in Federal Court. "); Memorandum of Agreement Between the United States & the Village of Mt. Prospect, Ill. para. 43 (Jan. 22, 2003) ("This Agreement is enforceable through an action for specific performance in federal court. ").
12. Consent Decree paras. 1, 4-8, United States v. New Jersey, Civil No. 99-5970 (MLC) (D.N.J. Dec. 30, 1999) (stating that the City denies the Justice Department's allegations of unconstitutional practices but has agreed to the reforms specified in the consent decree to avoid "the risks and burdens of litigation"); Consent Decree paras. 1, 4, United States v. Pittsburgh, Civil No. 97-0354 (W.D. Pa. Apr. 16, 1997) (similar).
13. Ross Sandler & David Schoenbrod, Democracy by Decree: What Happens When Courts Run Government 9-12, 153-61 (2003) (accusing courts of becoming embroiled in problems they are ill-equipped to solve, offering examples where courts found violations or issued preliminary injunctions based on probable violations, leading to judicially enforceable consent decrees to remedy the violations).
14. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1388 (1983) (explaining "the most 'powerful' remedies, criminal prosecutions for willful violation of the fourth amendment and actions for injunctions against large-scale violations, are rarely brought and rarely succeed" and "damage actions are also expensive, time-consuming, not readily available, and rarely successful").
15. David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1737-41 (2005) (analyzing the turn to judicial regulation to check police discretion); cf. Eric Miller, Putting the Practice into Theory, Ohio St. J. Crim. L. 31, 31 (2009) (arguing that criminal justice "law and legal scholarship have failed to keep up with real-world transformations that have seen law-based (and, in particular, court-centered) regulation become an increasingly marginal aspect of police regulation").
16. Mike Carter, Justice Department to Investigate Seattle Police Civil Rights Practices, Seattle Times, Mar. 31, 2011, at A1.
17. Letter from Mike McGinn, Mayor, City of Seattle, to Jonathan M. Smith, Chief, Special Litigation Section, U.S. Dep't of Justice, and Jenny Durkan, U.S. Attorney, U.S. Attorney's Office, (Dec. 6, 2011).
18. 517 U.S. 806 (1996).
19. at 813.
20. 532 U.S. 318 (2001).
21. at 323-24, 346-47, 355.
22. David Cole, No Equal Justice: Race and Class in the Criminal Justice System 38 (1999) (describing Whren as "formal sanction" permitting the practice of courts to "look the other way" when it comes to pretextual stops that disproportionately burden people of color); I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835, 862 (2008) (explaining that Whren "essentially green-lighted the police practice of singling out minorities for pretextual traffic stops in the hope of discovering contraband... [a] practice that minorities know as being penalized for driving while black, driving while brown... often fraught with intimidation, harassment, and disrespect"); Devon W. Carbado & Rachel F. Moran, The Story of Law and American Racial Consciousness: Building a Canon One Case at a Time, 76 UMKC L. Rev. 851, 873-74 (2008) (critiquing Whren as a "license to make racial distinctions"); Richard S. Frase, What Were They Thinking? Fourth Amendment Unreasonableness in Atwater v. City of Lago Vista, 71 Fordham L. Rev. 329, 331-32, 331 n.4 (2002) (collecting critiques of Atwater and noting that criticism comes from conservatives as well as liberals because of the substantial shield for abuse); Wayne A. Logan, Street Legal: The Court Affords Police Constitutional Carte Blanche, 77 Ind. L.J. 419, 465-66 (2002); Timothy P. O'Neill, Beyond Privacy, Beyond Probable Cause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests, 69 U. Colo. L. Rev. 693, 729 (1998) (explaining that "messy details of discrimination are irrelevant under a regime of supposed objectivity").
23. Brendlin v. California, 551 U.S. 249, 260 (2007) (explaining that the Court repeatedly rejected attempts to introduce subjectivity into Fourth Amendment analysis); Devenpeck v. Alford, 543 U.S. 146, 153-55 (2004) (holding that objective circumstances, rather than subjective police motives or knowledge, control analysis of reasonableness of arrest); Whren, 517 U.S. at 813 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. "); Scott v. United States, 436 U.S. 128, 136-37 (1978) (endorsing government's argument that "[s]ubjective intent alone... does not make otherwise lawful conduct illegal or unconstitutional"); United States v. Robinson, 414 U.S. 218, 221 n.1, 235 (1973) (holding that traffic-violation arrest is not invalid even if was "a mere pretext for a narcotics search").
24. Whren, 517 U.S. at 813 ("[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. ").
25. Wayne R. LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine, " Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1860-61 (2004) (discussing barriers).
26. United States v. Armstrong, 517 U.S. 456, 468-71 (1996).
27. McCleskey v. Kemp, 481 U.S. 279, 292-96, 293 n.12 (1987) (requiring proof of purposeful discrimination in the claimant's case and explaining that statistics failed to establish such proof in the defendant's particular case); United States v. Avery, 137 F.3d 343, 356 (6th Cir. 1997) (construing McCleskey to signify that "[o]nly in rare cases will a statistical pattern of discriminatory impact conclusively demonstrate a constitutional violation").
28. United States v. Robinson, 414 U.S. 218, 235 (1973) (reasoning that officers' "quick ad hoc judgments" on matters such as arrests should not be impeded by requirements of step-by-step justification to be second-guessed by courts); Terry v. Ohio, 392 U.S. 1, 17 n.15 (1968) (reasoning that officers "in the heat of an unfolding encounter on the street" and its dangers need intelligible and not overly constraining rules).
29. As the Atwater Court put it: Often enough, the Fourth Amendment has to be applied on the spur (and in the heat) of the moment, and the object in implementing its command of reasonableness is to draw standards sufficiently clear and simple to be applied with a fair prospect of surviving judicial secondguessing months and years after an arrest or search is made. Courts attempting to strike a reasonable Fourth Amendment balance thus credit the government's side with an essential interest in readily administrable rules. Atwater v. City of Lago Vista, 532 U.S. 318, 347 (2001).
30. New York v. Quarles, 467 U.S. 649, 656 (1984) ("In a kaleidoscopic situation such as the one confronting these officers... spontaneity rather than adherence to a police manual is necessarily the order of the day" and in such situation officers may "act out of a host of different, instinctive, and largely unverifiable motives.... ").
31. Marc Mauer, Race to Incarcerate 43, 137-40 (1999) (analyzing larger social, economic, and structural factors as well as implicit biases behind disproportionality in incarceration); Craig Haney, Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathetic Divide, 53 DePaul L. Rev. 1557, 1557 (2004) (discussing "biographical racism, " defined as "the accumulation of race-related obstacles, indignities and criminogenic influences that characterizes the life histories of so many African-American capital defendants"); Research Working Grp., Task Force on Race and the Criminal Justice Sys., Preliminary Report on Race and Washington's Criminal Justice System, 87 Wash. L. Rev. 1, 9-10 (2012) (discussing "structural racism").
32. McCleskey, 481 U.S. at 315-18.
33. For a discussion of examples, text and sources at notes 1-9.
34. For a discussion of reasons why courts are awkwardly suited to the task, see, for example, Anthony G. Amsterdam, The Supreme Court and the Rights of Suspects in Criminal Cases, 45 N.Y.U. L. Rev. 785, 786-90 (1970) (exploring the challenges surrounding the judiciary taking an effective supervisory or disciplinary role over police); Richard E. Myers II, Detector Dogs and Probable Cause, 14 Geo. Mason L. Rev. 1, 29-31 (2006) (analyzing the limitations of courts in supervising police practices and the particular challenge posed by evolving techniques of investigation and collecting literature); compare Stephen J. Schulhofer, The Constitution and the Police: Individual Rights and Law Enforcement, 66 Wash. U. L.Q. 11, 19 (1988) ("In our constitutional mythology, the job of courts, after all, is to find law, to ascertain the rights of the individual, not to balance costs and benefits like a legislature, or even a construction engineer. ").
35. Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; or, Why Don't Legislatures Give a Damn About the Rights of the Accused?, 44 Syracuse L. Rev. 1079, 1088-93 (1993) (applying public choice theory to explain the barriers to legislatures protecting the interests of suspects).
36. Alice Ristroph, Proportionality As a Principle of Limited Government, 55 Duke L.J. 263, 272 (2005) ("father of utilitarianism"); Michael L. Siegel, Bringing Coherence to Mens Rea Analysis for Securities-Related Offenses, 2006 Wis. L. Rev. 1563, 1569 n.46 ("father of deterrence theory").
37. Miran Božovič, Introduction to Jeremy Bentham, The Panopticon Writings 13-17 (Miran Božovič ed., 1995).
38. Michel Foucault, Discipline and Punish: The Birth of the Prison 200-01 (Alan Sheridan trans., 1977) (extending Panopticon metaphor to one of management of modern society); Theorizing Surveillance: The Panopticon and Beyond 4-8, 14-17 (David Lyon ed., 2006) (extending metaphor to management of modern society); Larry Catá Backer, Global Panopticism: States, Corporations, and the Governance Effects of Monitoring Regimes, 15 Ind. J. Global Legal Stud. 101, 112 (2008) (tracing modern decentralized and globalized surveillance state); Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy, 53 Stan. L. Rev. 1393, 1415-16 (2001) (tracing influence in modern governance and discourse).
39. Foucault, at 200-09 (analyzing influence of idea on governance of modern society in diverse contexts).
40. Steiker, at 2470 (calling criminal procedure "a species of substantive criminal law for cops").
41. See generally, e.g., Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (1969); Kenneth Culp Davis, Police Discretion (1975); Wayne R. LaFave, Arrest: The Decision to Take a Suspect into Custody (Frank J. Remington ed., 1965); Samuel Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, at 21-50 (1993); James J. Fyfe, Structuring Police Discretion, in Handled with Discretion: Ethical Issues in Police Decision Making 183-201 (John Kleinig ed., 1996).
42. David Packman, How Lack of Transparency Enables Police Brutality, The Guardian (Oct. 25, 2011), http://www.guardian.co.uk/commentisfree/cifamerica/2011/oct/25/lacktransparency-enables-police-brutality (reporting that inaccessibility of data renders redress of police brutality difficult); cf. Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911, 914-16, 955-59 (2006) (arguing that information deficits between "insiders"-judges, police, and prosecutors-and "outsiders"-crime victims and the general public-could be ameliorated through better statistical information, particularly at the local level); Anne Bowen Poulin, Prosecutorial Discretion and Selective Prosecution: Enforcing Protection After United States v. Armstrong, 34 Am. Crim. L. Rev. 1071, 1119-22 (1997) (underscoring import of statistical information in providing a "a rough but valuable check" against selective prosecution and urging Congress to mandate the assembly of records so patterns may be detected).
43. Dunaway v. New York, 442 U.S. 200, 213-14 (1979) (noting police officers "have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront"); Stephen A. Saltzburg, Terry v. Ohio: A Practically Perfect Doctrine, 72 St. John's L. Rev. 911, 952-53 (1998) (analyzing important crime prevention interests in giving police discretion in the Terry stop context).
44. United States v. Robinson, 414 U.S. 218, 235 (1973) ("A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. ").
45. United States v. Armstrong, 517 U.S. 456, 465 (1996).
46. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 210401, 108 Stat. 1796, 2071 (codified at 42 U.S.C. § 14141(b) (2006).
47. 42 U.S.C. § 14141(b).
48. Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (codified at 42 U.S.C. § 3789d (2006).
49. Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VI, 78 Stat. 252 (codified at 42 U.S.C. § 2000d (2006).
50. For example, New York City police report the race of people targeted for investigative stops and promulgate written policies forbidding profiling pursuant to a stipulation won by the Center for Constitutional Rights to settle a civil rights suit. Stipulation of Settlement at 5, 8-9, ex. B, Daniels v. City of New York, No. 99 Civ. 1695 (SAS) (S.D.N.Y. Sept. 24, 2003); see also Al Baker, New York Minorities More Likely To Be Frisked, N.Y. Times, May 13, 2010, at A1 (reporting findings revealed from the data collection and release that Blacks and Latinos were nine times more likely than Whites to be stopped by New York police in 2009).
51. Myriam E. Gilles, Representational Standing: U.S. ex rel. Stevens and the Future of Public Law Litigation, 89 Calif. L. Rev. 315, 365, 365 n.257 (2001) (arguing, six years after the enactment of § 14141, that the strategy has been ineffective in part because of filing of few suits); Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 20 n.72, 21 n. 73 (2009) (collecting critiques); cf. Brandon Garrett, Remedying Racial Profiling, 33 Colum. Hum. Rts. L. Rev. 41, 100-01 (2001) (noting that high-profile cases in high-profile cities may draw Justice Department attention but in a world of limited resources, smaller communities may remain relegated to private lawsuits).
52. Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489, 506 (2008) (discussing paradigm shift).
53. H.R. Rep. No. 102-242, pt. 1, at 135-36 (1991).
54. at 138.
55. Pub. L. 103-322, § 210401, 108 Stat. 1796, 2071 (1994).
56. H.R. Rep. No. 103-324, at 7-8 (1993).
57. at 7.
58. § 210401, 108 Stat. at 2071.
59. H.R. Rep. No. 102-242, pt.1, at 135-39.
60. at 135.
61. See generally, e.g., Complaint, United States v. New Jersey, No. 99-5970 (MLC) (D.N.J. Dec. 22, 1999), available at http://www.justice.gov/crt/about/spl/documents/jerseycomp.php; Complaint, United States v. City of Steubenville (S.D. Ohio Aug. 28, 1997), available at http://www.justice.gov/crt/about/spl/documents/steubencomp.php; Letter from Steven H. Rosenbaum, Chief, Special Litig. Section, U.S. Dep't of Justice, to Subodh Chandra, Dir., Law Dep't, Cleveland City Hall (July 23, 2002), (investigation letter); Letter from William R. Yeomans, Acting Assistant Attorney General, Civil Rights Div., U.S. Dep't of Justice, to The Honorable Anthony Williams, Mayor of D.C. & Charles H. Ramsey, Chief of Police, Metro. Police Dep't (June 13, 2001)
62. H.R. Rep. No. 102-242, pt. 1, at 135-39.
63. Davis v. Mason County, 927 F.2d 1473, 1478-79 (9th Cir. 1991) (describing incidents).
64. at 1478.
65. H.R. Rep. No. 102-242, pt. 1, at 138-39 (quoting Davis, 927 F.2d at 1482);
66. 461 U.S. 95 (1983).
67. at 105-06.
68. at 97-98.
69. at 115-16 (Marshall, J., dissenting).
70. For an analysis of the virtual certitude standard imposed by the Lyons Court, see Mary D. Fan, Comment, Risk Magnified: Standing Under the Statist Lens, 112 Yale L.J. 1633, 1635-36 (2003).
71. 42 U.S.C. § 14141 (2006) (authorizing suits by the Justice Department).
72. John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1420-21 (2007).
73. Bernard D. Reams Jr. & Michael P. Forrest, USA PATRIOT Act: A Legislative History of the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, Public Law No. 107-56 (2001) (Ser. 2, 2006), Doc. 58, at 144-45 (reporting to Congress that as of 2006, the Justice Department had received authorization to launch forty-one investigations); Special Litigation Section Cases and Matters, U.S. Dep't Just., http://www.justice.gov/crt/about/spl/findsettle.php#FindingsLetters (last visited Feb. 15, 2012) (collecting twenty-seven Conduct of Law Enforcement Agency Investigations but omitting several others).
74. Reams Jr. & Forrest, Doc. 58, at 145.
75. 42 U.S.C. § 2000d (2006) ("No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. "); § 3789d(c)(1) (similar).
76. § 2000d.
77. See, e.g., § 3789d(c)(2)(A), (C) (providing for warning process and suspension of funds on further noncompliance).
78. For an exposition, see, for example, Floyd Weatherspoon, Ending Racial Profiling of African-Americans in the Selective Enforcement of Law: In Search of Viable Remedies, 65 U. Pitt. L. Rev. 721, 732-38 (2004).
79. See, e.g., 42 U.S.C. § 3789d(c)(2)(A), (C) (providing mechanism for suspension of funds).
80. § 3789d(c)(3).
81. 463 U.S. 582 (1983).
82. at 608 n.1 (Powell, J., concurring) (counting votes).
83. see also Larry P. v. Riles, 793 F.2d 969, 981-82 (9th Cir. 1984) (explaining dichotomy); David Rudovsky, Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. Pa. J. Const. L. 296, 330 (2001) ("Since Guardians and Choate, federal courts of appeals have consistently found that Title VI implementing regulations prohibiting practices that cause an unjustified disparate impact provide a basis for private plaintiffs to sue recipients of federal funds on a discriminatory effects theory, without a showing of discriminatory intent. ").
84. 28 C.F.R. § 42.104(b)(2) (2010).
85. William M. Carter, Jr., A Thirteenth Amendment Framework for Combatting Racial Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 44-45 (2004).
86. Wilson v. Dep't of Pub. Safety, 66 Fed. App'x 791, 796 (10th Cir. 2003) (reversing motion to dismiss on defendant's racial profiling claim involving traffic stop and reinstating suit, including Title VI claim); Rodriguez v. Cal. Dep't of Highway Patrol, 89 F. Supp. 2d 1131, 1139 (N.D. Cal. 2000) (rejecting defendant's motion to dismiss the complaint and allowing suit, including Title VI claim, to proceed).
87. 89 F. Supp. 2d 1131.
88. at 1134; see also Press Release, ACLU, California Highway Patrol Bans Consent Searches Following Review of Data Collection Showing Discriminatory Pattern (Apr. 22, 2001) [hereinafter ACLU, California Press Release], (noting ACLU involvement).
89. Maura Dolan & John M. Glionna, CHP Settles Lawsuit over Claims of Racial Profiling, L.A. Times, Feb. 28, 2003, at A1.
90. Rodriguez, 89 F. Supp. 2d at 1137; ACLU, California Press Release.
91. Weatherspoon, at 737 n.91; Dolan & Glionna, at A1.
92. 42 U.S.C. § 14141 (2006).
93. For a history, see generally David Achtenberg, A "Milder Measure of Villainy": The Unknown History of 42 U.S.C. § 1983 and the Meaning of "Under Color of" Law, 1999 Utah L. Rev. 1.
94. Eric Schnapper, Civil Rights Litigation After Monell, 79 Colum. L. Rev. 213, 229 (1979) (detailing history).
95. Monroe v. Pape, 365 U.S. 167, 180 (1971), overruled by Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658 (1978).
96. 42 U.S.C. § 1983 (2006).
97. Myriam E. Gilles, Breaking the Code of Silence: Rediscovering "Custom" in Section 1983 Municipal Liability, 80 B.U. L. Rev. 17, 23-24 (2000) (providing history).
98. 193 U.S. 430 (1904).
99. at 437-39 (citing Virginia v. Rives, 100 U.S. 13 (1879).
100. See Monroe, 365 U.S. at 213-14 (Frankfurter, J. dissenting) (so arguing based on past precedent).
101. Barney, 193 U.S. at 438 ("[I]t is for the state courts to remedy acts of state officers done without the authority of, or contrary to, state law. ").
102. Monroe, 365 U.S. at 188-91.
103. 365 U.S. 167.
104. 411 U.S. 693 (1973).
105. at 709-10.
106. Wolf v. Colorado, 338 U.S. 25, 28-29, 32-33 (1949), overruled by Mapp v. Ohio, 367 U.S. 643 (1961).
107. See Mapp, 367 U.S. at 652-53 (describing "the obvious futility of relegating the Fourth Amendment" to toothless remedies in the states absent incorporation of the exclusionary rule).
108. For articles regarding the rampant violations, see, for example, J.A.C. Grant, The Tarnished Silver Platter: Federalism and Admissibility of Illegally Seized Evidence, 8 UCLA L. Rev. 1, 4-13 (1962) (discussing cases involving searches in violation of constitutional protections without remedy); Yale Kamisar, Wolf and Lustig Ten Years Later: Illegal State Evidence in State and Federal Courts, 43 Minn. L. Rev. 1083, 1101-08 (1959) (similar); Roger J. Traynor, Mapp v. Ohio at Large in the Fifty States, 1962 Duke L.J. 319, 321-22 (1962) (similar). 131 367 U.S. 643. 132. Mapp, 367 U.S. at 659-60.
109. at 652. 134. Monroe v. Pape, 365 U.S. 167, 184-87 (1971), overruled by Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658 (1978).
110. 403 U.S. 388, 395-97 (1971).
111. Civil Rights Attorney's Fees Award Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (codified at 42 U.S.C. § 1988(b) (2006).
112. 42 U.S.C. § 1988(b).
113. Monell, 436 U. S at 679-82.
114. Stipulation of Settlement at 5, 8-9, ex. B, Daniels v. City of New York, No. 99CIV1695 (SAS) (S.D.N.Y. Sept. 24, 2003).
115. Settlement Agreement at 2-4, Md. State Conferenceof NAACP Branches v. Md. State Police, No. 98-1098 (D. Md. Mar. 28, 2008), available at http://www.aclu.org/files/pdfs/racialjustice/mdnaacp_v_mdstatepolice.pdf (providing for payment of $300,000 to plaintiffs, hiring of consultant to ensure effective implementation of 2003 consent decree, and progress on disclosure of records); Md. State Conference of NAACP Branches v. Md. Dep't of State Police, 72 F. Supp. 2d 560, 569 (D. Md. 1999) (clearing initial standing, motion to dismiss, and summary judgment hurdles in earlier suit).
116. White v. Williams, 179 F. Supp. 2d 405, 409, 413-19 (D.N.J. 2002).
117. First Amended Complaint at 26-27, Ortega-Melendres v. Arpaio, No. CV 07-025 13-PHXMHM (D. Ariz. July 16, 2008), available at http://www.aclu.org/files/pdfs/immigrants/filedfirstamdcm071608%282%29.pdf.
118. Pearson, 129 S. Ct. at 816-21.
119. at 816-20.
120. For accounts of cutbacks, see, for example, Charles D. Weisselberg, Mourning Miranda, 96 Calif. L. Rev. 1519, 1525-93 (2008); Owens, at 565-71 (2010).
121. Weisselberg, at 1525-93; Owens, at 565-71.
122. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 90, 95, 97-100 (1989).
123. at 97-98 (explaining how penalty defaults give incentive to at least one party to contract around the default).
124. Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 Buff. Crim. L. Rev. 818, 847 (1999).
125. Compare, e.g., Consent Decree at para. 12, United States v. Pittsburgh, Civ. No. 97-0354 (W.D. Pa. April 16, 1997) (requiring implementation of an early-warning system and statistical model for identifying problematic officers), and Consent Decree at paras. 71-77, United States v. Steubenville, Civ. No. 97-0966 (S.D. Ohio Aug. 28, 1997) (requiring implementation of an information system that allows for regular audits with the goal of supervising officer behavior and preventing constitutional violations), with sources cited, (explaining the exclusionary rule is the principal remedy of constitutional criminal procedure doctrine).
126. Cf. Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 840-70 (2004) (examining the comparative disadvantages of courts in regulating in areas in rapid flux, in part because of difficulties in updating and changing judicial interpretation of constitutional doctrine and the lag time in changes).
127. Spallone v. United States, 493 U.S. 265, 267-73 (1990) (detailing saga of recalcitrant city board members opposing judicial desegregation mandate and judicial coercion against city and legislators to implement reforms through the imposition of penalties for contempt); Coleman v. Schwarzenegger, Nos. CIV S-90-0520 LKK JFM P, C01-1351 TEH, 2009 WL 2430820, at *12-13 (E.D. Cal. & N.D. Cal. Aug. 4, 2009) (chronicling long history of state noncompliance with judicial orders mandating improving provision of healthcare for prisoners to remedy unconstitutionality of inadequate services).
128. Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 106-09 (2011).
129. Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489, 524 (2008); see also Livingston, at 848-52 (noting "a conclusion drawn by many police scholars-namely, that efforts at police reform will be most effective when the police organization itself is involved in the process and, ultimately, when reform involves not simply adherence to rules in the face of punitive sanctions, but a change in the organizational values and systems to which both managers and line officers adhere").
130. Simmons, at 524.
131. New Orleans Investigation, (detailing, based on interviews with officers, how excessive use of force is aggravated by a departmental culture that condones and even encourages retaliation and internal practices that avoid investigating officer uses of force).
132. Ayres & Gertner, at 97-100 (arguing that penalty defaults should be set against parties who strategically withhold information that, if shared, would increase the size of pie because they want bigger slice of pie).
133. Herring v. United States, 555 U.S.__, 129 S. Ct. 695, 700-02 (2009) (holding that costs of exclusion are too high to offer remedy for negligent police error leading to wrongful arrest and search); Hudson v. Michigan, 547 U.S. 586, 591-94 (2006) (refusing to apply exclusionary remedy for knock-and-announce violation prior to entry into home). For recent commentary on the cutback, see, for example, Owens, at 565-69.
134. See generally, e.g., Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 Chi.-Kent L. Rev. 191 (2010) (predicting demise of, or at least substantial limits on, exclusionary rule); Donald Dripps, The Fourth Amendment, the Exclusionary Rule, and the Roberts Court: Normative and Empirical Dimensions of the Over-Deterrence Hypothesis, 85 Chi.-Kent L. Rev. 209 (2010) (predicting retention of exclusionary rule or revival if discarded).
135. Justice Cardozo framed the iconic refrain in People v. Defore, 150 N.E. 585, 587 (N.Y. 1926). The concern has steered recent cases. David A. Harris, How Accountability-Based Policing Can Reinforce-or Replace-the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149, 190 (2009) (analyzing critique).
136. Hudson, 547 U.S. at 591.
137. Herring, 129 S. Ct. at 702 (no remedy for wrongful arrest and search incident to arrest); Hudson, 547 U.S. at 594 (no remedy for knock-and-announce violation prior to entry into home).
138. 129 S. Ct. 695.
139. at 702.
140. Compare Hudson, 547 U.S. at 597-98 (writing that § 1983 suits are now a more potent remedy than in the days when the Court extended the exclusionary rule to the states for lack of a viable alternative remedy to effectuate Fourth Amendment protections), (Breyer, J., dissenting) (arguing that § 1983 suits remain inadequate as an alternative remedy to deter rights violations).
141. Herring, 129 S. Ct. at 707 (Ginsburg, J., dissenting).
142. (quoting Arizona v. Evans, 514 U.S. 1, 18 (1995) (Stevens, J., dissenting).
143. (recalling "'a more majestic conception' of the Fourth Amendment and its adjunct, the exclusionary rule" and expressing concern about its erosion (quoting Evans, 514 U.S. at 18 (Stevens, J., dissenting); United States v. Caceres, 440 U.S. 741, 763, 769-70 (1979) (Marshall, J., dissenting) (lamenting the majority's decision declining to apply the exclusionary rule and neglect of the larger values served by the rule); United States v. Calandra, 414 U.S. 338, 356 (1974) (Brennan, J., dissenting) (deploring "downgrading" of the exclusionary rule).
144. Ronald J. Rychlak, Replacing the Exclusionary Rule: Fourth Amendment Violations As Direct Criminal Contempt, 85 Chi.-Kent L. Rev. 241, 241-42 (2010) (observing that now that a majority of justices have expressed dissatisfaction with the exclusionary rule and interest in alternative means of deterrence of violations, the question is what remedial regime should be adopted).
145. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 364-68 (proposing a smarter monetary penalties regime).
146. Jeffries, Jr. & Rutherglen, at 1408 (discussing judicial reluctance to award money damages, particularly for borderline errors, because of fears of "overdeterrence-more precisely, unintended deterrence of legitimate acts").
147. Dripps, at 209, 235.
148. Jane Fritsch, Four Officers in Diallo Shooting Are Acquitted of All Charges, N.Y. Times, Feb. 26, 2000, at A1.
149. Consent Decree, United States v. City of Los Angeles, No. Civil 00-11769 (C.D. Cal. June 15, 2001).
150. Christopher Stone et al., Harvard Kennedy Sch., Policing Los Angeles Under A Consent Decree: The Dynamics of Change at the LAPD 2-5 (May 2009), available at http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centers-programs/programs/cri minal-justice/Harvard_LAPD_Report.pdf.
151. at 25, 33, 35; at 19 (Officers interviewed expressed worries about de-policing and policing being less proactive in tasks like investigation and arrests because of paperwork burdens and fear of disciplinary action). While subjective accounts are worth considering, the objective measurement of arrests and percentage of stops resulting in arrests suggests caution may not be a bad thing for accuracy.
152. Michael E. Buerger & Amy Farrell, The Evidence of Racial Profiling: Interpreting Documented and Unofficial Sources, 5 Police Q. 272, 273-74 (2002).
153. at 273.
154. For some of the abundant and rich literature on implicit biases, see generally, for example, Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. Rev. 1241; Joshua Correll et al., The Police Officer's Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314 (2002); Jennifer L. Eberhardt et al., Seeing Black: Race, Crime and Visual Processing, 87 J. Personality & Soc. Psychol. 876 (2004); Anthony G. Greenwald et al., Targets of Discrimination: Effects of Race on Responses to Weapons Holders, 39 J. Experimental Soc. Psychol. 399 (2003); Scott W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45 Wm. & Mary L. Rev. 2083 (2004); Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016 (1988); Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005); Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008); Rory K. Little, What Federal Prosecutors Really Think: The Puzzle of Statistical Race Disparity Versus Specific Guilt, and the Specter of Timothy McVeigh, 53 DePaul L. Rev. 1591 (2004); Jeffrey J. Pokorak, Probing the Capital Prosecutor's Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811 (1998); L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 235 (2011), Yoav Sapir, Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. Blackletter L.J. 127 (2003).
155. Foucault, at 201-02 (developing, as a metaphor for control, the notion of panoptic prison in which prisoners arrayed in transparent cells self-police).
156. Heron Marquez Estrada, Focus of Profiling Shifts from St. Paul: Minneapolis Officials Say They'll Soon Reveal New Plans for Traffic Stops and Searches, Minneapolis Star Trib., June 22, 2001, at A1; David Shaffer & Heron Marquez Estrada, St. Paul Police Search Black, Hispanic Drivers at Higher Rate, Minneapolis Star Trib., Jan. 10, 2001, at A1.
157. Shaffer & Estrada, at A1.
158. See generally, e.g., Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration by Race and Ethnicity (2007) (presenting disparity data across jurisdictions); Research Working Grp., Task Force on Race and the Criminal Justice Sys., (summarizing data on racial disparities in Washington state); Robert D. Crutchfield et al., Wash. State Minority & Justice Comm'n, A Study on Racial and Ethnic Disparities in the Prosecution of Criminal Cases in King County Washington: Final Report (1995) (presenting findings on disparities in Washington State).
159. Livingston, at 820; cf. Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L.J. 543, 552 (1960) (discussing low-visibility police decisions not to invoke criminal process).
160. Press Release, ACLU, Maryland Court Orders State Police to Turn Over Racial Profiling Records (Feb. 10, 2011) [hereinafter ACLU, Maryland Press Release], available at http://www.aclu.org/racial-justice/maryland-court-orders-state-police-turn-over-racial-profilingrecords (describing settlement).
161. Md. State Conference of NAACP Branches v. Md. Dep't of State Police, 72 F. Supp. 2d 560, 563-64 (D. Md. 1999) (describing what the suit is based on).
162. ACLU, Maryland Press Release.
163. Md. Dep't of State Police v. Md. State Conference of NAACP Branches, 988 A.2d 1075, 1078 (Md. Ct. Spec. App. 2010).
164. For example, Pittsburgh police must file a written report after each traffic stop that records the race of people stopped, whether the stop escalated to a search, and whether searches yielded any contraband or other evidence pursuant to a consent decree. Consent Decree at paras. 16-17, United States v. Pittsburgh, Case No. Civil 97-0354 (W.D. Pa. Sept. 30, 2002).
165. Jeffries, Jr. & Rutherglen, at 1421. They argue: An action brought by federal officials represents a political endorsement of the need for structural relief, usually to remedy pervasive constitutional violations. Furthermore, when the litigation is settled, it serves as an acceptable form of bargaining between governments, outside the ordinary political processes of revenue sharing and legislation but still under political control.... Unlike court orders obtained by private plaintiffs, those obtained by federal officials involve some degree of political accountability in the decision to sue and to seek structural relief. The democratic deficit is rapidly resolved when the real attorney general, not a private attorney general, decides to sue.
166. Complaint at 6, 9, United States v. Maricopa County, Ariz., No. 2:10-cv-01878-GMS (D. Ariz. Sept. 2, 2010); see also Letter from Loretta King to Sheriff Joseph Arpaio, (conveying allegations).
167. Joint Motion to Remove Case to the Inactive Docket and Stay Proceedings, United States v. Maricopa Cnty., Ariz., No. 2:10-cv-01878-GMS (D. Ariz. June 2, 2011), available at http://www.justice.gov/crt/about/spl/findsettle.php#FindingsLetters.
168. Agreement at 6, United States v. Maricopa County, Ariz., No. 2:10-cv-01878-GMS (D. Ariz. June 2, 2011).
169. Consent Decree at para. 60, United States v. Virgin Islands, No. 03-23-09 (D.V.I. Mar. 23, 2009), available at http://www.justice.gov/crt/about/spl/documents/VIPD_CD_03-23-09.pdf.
170. Buerger & Farrell, at 273-74 (summarizing reforms).
171. Consent Decree at paras. 104-05, United States v. Los Angeles, No. Civil 00-11769 (C.D. Cal. June 15, 2001); Consent Decree at paras. 29, 32, 36-37, United States v. New Jersey, Case No. Civil 99-5970 (MLC) (D.N.J. Dec. 30, 1999).
172. Memorandum of Agreement Between the United States & the City of Villa Rica, Ga. 7 para. 4 (Dec. 23, 2003) ("This Agreement is enforceable through specific performance in Federal Court. "); Memorandum of Agreement Between the United States & the Village of Mt. Prospect, Ill. 9 para. 43 (Jan. 22, 2003) ("This Agreement is enforceable through an action for specific performance in federal court. ").
173. Steve Miletich, Seattle Police Plan Major Changes in Oversight of Use of Force, Seattle Times (Dec. 6, 2011), http://seattletimes.nwsource.com/html/localnews/2016950243_doj07m.html (discussing reforms Seattle Police Department is pursuing after announcement of Justice Department investigation into a potential pattern and practice of excessive force).
174. Letter from Mike McGinn, Mayor of Seattle, to Jonathan M. Smith, Chief, Special Litig. Section, U.S. Dep't of Justice, and Jenny Durkan, U.S. Attorney for the Western District of Wash., Re: United States' Investigation of the Seattle Police Department-Garrity Protections (Dec. 6, 2011) [hereinafter Letter from Mayor McGinn].
175. at 1-2.
176. Buerger & Farrell, at 273.
177. Andrew Gelman et al., An Analysis of the New York City Police Department's "Stop and Frisk" Policy in the Context of Claims of Racial Bias, 102 J. Am. Stat. Ass'n 813, 815-17, 820-21 (2007) (collecting and analyzing data).
178. see also Baker, (reporting findings revealed from the data collection and release that Blacks and Latinos are nine times more likely than Whites to be stopped by police in 2009).
179. See for some of the abundant and rich literature on implicit bias in policing and other legal contexts involving judgment and decision making.
180. U.S. Dep't of Justice, Civil Rights Div. & U.S. Attorney's Office, W. Dist. of Wash., Investigation of the Seattle Police Department 4 (Dec. 16, 2011) [hereinafter Investigation of the Seattle Police].
181. New Orleans Investigation, at v (finding that "too many officers of every rank either do not understand or choose to ignore the boundaries of constitutional policing" and structurally and culturally entrenched problems with the department that "undermine trust within the very communities whose cooperation the Department most needs").
182. at 23. For example, a red flag is not triggered and departmental intervention does not occur unless there are seven uses of force in a period of six months or fourteen uses of force in a year. at 22.
183. at 5, 15, 18 (finding that lack of supervisory analysis of uses of force, "appalling[ly]" low-quality investigations of citizen complaints, and nonreporting of uses of force by officers contributes to the problem of excessive force); Puerto Rico Investigation, at 32 (finding that "[l]ack of reporting requirements and objective supervisory review" and "[i]nadequate systems to review critical incidents" as well as "[c]ondoned fear and violence by tactical units" contribute to longstanding problems with excessive force).