The incidental regulation of policing

Minnesota Law Review

Volumn 98, Issue 6, 2014, Pages 2179-2235

  Stoughton, Seth W ^a  

^a UNIVERSITY OF SOUTH CAROLINA   (United States)

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EID: 84902264949     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (186)

1. JAMES Q. WILSON, VARIETIES OF POLICE BEHAVIOR: THE MANAGEMENT OF LAW AND ORDER IN EIGHT COMMUNITIES 1-4 (1968).
2. There has been, of course, significant academic attention to laws and doctrines that are intended to have some specific effect on police practices. See, e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994) (addressing problems with Fourth Amendment doctrine);
3. Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Ba-sis" Rather than an "Empirical Proposition"?, 16 CREIGHTON L. REV. 565 (1983) (discussing the theoretical justification for the exclusionary rule);
4. Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 SAN DIEGO L. REV. 507 (2001) (seeking to change the doctrine governing consensual encounters). Legal scholars have also identified legal doctrines that, while primarily concerned with policing or criminal justice, have unintended and sometimes perverse consequences.
5. See WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 196-281 (2011) (describing how the constitutionalization of criminal procedure has precluded judicial review of substantive criminal law and raised the costs of legislative action);
6. Morgan Cloud, The Dirty Little Secret, 43 EMORY L.J. 1311, 1313 (1994) (arguing that the combination of constitutional criminal procedure and evidence law "create functional-if unintended-incentives for law enforcers" to commit perjury);
7. John C. Jeffries, Jr., Reversing the Order of Battle in Constitutional Torts, 2009 SUP. CT. REV. 115, 117 (pointing out how the current approach to qualified immunity has incidentally stymied the development of constitutional law and "degrade[d] existing rights to a least-common-denominator understanding of their meaning");
8. Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 372 (2000) (explaining that the remedial structure for constitutional torts may increase the incidents of violations when the perceived benefits make the monetary costs politically salable);
9. William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 781 (2006) (describing the perverse impact constitutional protections can have on the political protections of defendants). No shortage of scholars have observed that the sheer number of substantive criminal offenses has broadened the reach of the criminal justice system by giving police officers broad discretion to selectively stop, search, and arrest and prosecutors the power to cherry-pick from a buffet of criminal charges, creating a heightened potential for arbitrary and discriminatory enforcement.
10. See, e.g., DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW 21, 30-31 (2008);
11. HARVEY A. SILVERGATE, THREE FELONIES A DAY: HOW THE FEDS TAR-GET THE INNOCENT xxxii-xxvii (2009);
12. David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 557-59 (1997) (discussing specifical-ly law enforcement authority to stop people for traffic offenses);
13. Alex Kozinski & Misha Tseytlin, You're (Probably) a Federal Criminal, in IN THE NAME OF JUSTICE 43, 45-49 (Timothy Lynch ed., 2009);
14. William J. Stuntz, The Patho-logical Politics of Criminal Law, 100 MICH. L. REV. 505, 511 (2001).
15. Race, gender, and education are perhaps the most frequently dis-cussed sublegal attributes. E.g., James J. Fyfe, Who Shoots? A Look at Office Race and Police Shooting, 9 J. POLICE SCI. & ADMIN. 367, 369-81 (1981) (race);
16. Cara E. Rabe-Hemp, Female Officers and the Ethic of Care: Does Officer Gen-der Impact Police Behaviors?, 36 J. CRIM. JUST. 426 (2008) (gender);
17. Victor E. Kappeler et al., Police Officer Higher Education, Citizen Complaints and De-partmental Rule Violations, 11 AM. J. POLICE 37 (1992) (officer education). Scholars have, however, also identified other factors.
18. See, e.g., TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988) (describing the effect of community perceptions of police legitimacy);
19. E. ALLAN LIND & TOM R. TYLER, WHY PEOPLE OBEY THE LAW (2006) (discussing citizens' concerns with legal authorities);
20. David N. Allen, Police Supervision on the Street: An Analysis of Supervisor/Officer Interaction During the Shift, 10 J. CRIM. JUST. 91, 95-96 (1982) (discussing the role of front-line supervision);
21. James A. Conser, A Literary Review of the Police Subculture: Its Characteristics, Impact and Policy Implications, 2 POLICE STUD.: INT'L REV. POLICE DEV. at 46, 51 (Winter 1980) (focusing on the police subculture);
22. Robin Shepard Engel, The Effects of Supervisory Styles on Patrol Officer Behavior, 3 POLICE Q. 262 (2000) (discussing the role of front-line supervision);
23. Robin Shepard Engel, Patrol Officer Super-vision in the Community Policing Era, 30 J. CRIM. JUST. 51, 53-54 (2002) (focusing on supervisory philosophies);
24. Stephen Mastrofski, Policing the Beat: The Impact of Organizational Scale on Patrol Officer Behavior in Urban Residential Neighborhoods, 9 J. CRIM. JUST. 343, 351-55 (1981) (identifying organ-izational dynamics);
25. Douglas A. Smith & Jody R. Klein, Police Control of In-terpersonal Disputes, 31 SOC. PROBS. 468, 477-79 (1984) (same);
26. Tom R. Tyler, Enhancing Police Legitimacy, 593 ANNALS AM. ACAD. POL. & SOC. SCI. 84 (2004).
27. Rachel A. Harmon, The Problem of Policing, 110 MICH. L. REV. 761, 785 (2012).
28. Id. For example, legal scholars have identified concerns with police practices that do not implicate the Constitution, such as the use of informants, undercover work, and private policing. In this vein, academic work focuses on the subconstitutional law, or the lack of law, governing police. See, e.g., ALEXANDRA NATAPOFF, SNITCHING: CRIMINAL INFORMANTS AND THE EROSION OF AMERICAN JUSTICE (2009) (informants);
29. Andrea L. Dennis, Collateral Dam-age? Juvenile Snitches in America's "Wars" on Drugs, Crime, and Gangs, 46 AM. CRIM. L. REV. 1145, 1161-73 (2009) (informants);
30. Elizabeth E. Joh, Breaking the Law to Enforce It: Undercover Police Participation in Crime, 62 STAN. L. REV. 155, 159 (2009) (undercover operations);
31. Elizabeth E. Joh, The Paradox of Private Policing, 95 J. CRIM. L. & CRIMINOLOGY 49, 90-93 (2004) (privately contracted police).
32. This is not to say that laws of general applicability are unproblematic in other areas of law or in society more generally. The first person to take a systematic approach to incidental regulation was not a legal scholar, after all, but a sociologist. See Robert K. Merton, The Unanticipated Consequences of Purposive Social Action, 1 AM. SOC. REV. 894, 894-98 (1936). In this Part, I contend that the unique aspects of policing, factors that establish what we might call "police exceptionalism" provide particularly pressing reasons to be wary about the incidental regulation of policing, but one need not go so far. If you agree with the proposition that police practices and tactics are im-portant-a proposition that seems relatively uncontroversial in light of the ac-ademic and popular attention given to the subject-then identifying the inci-dental regulation of policing, which can dramatically affect those practices and tactics, is worthy of study. One can accept this intermediate conclusion with-out necessarily agreeing with my broader premise that the incidental regula-tion of policing is more concerning than incidental regulation in some number of other areas.
33. Roger Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 IND. L.J. 329, 329 (1973).
34. Of course, it is always possible that a law will undermine the effect that it was intended to have or simply fail to have the intended effect. See Lev-inson, infra note 3, at 350-54 (contending that, in some cases, monetary dam-ages for constitutional torts may actually increase the number of violations); Seth W. Stoughton, Note, Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest, 97 VA. L. REV. 1727, 1729-30 (2011) (arguing that Gant would do little to narrow the scope or frequency of vehicle searches incident to arrest).
35. This is not to suggest that law-makers are entirely unaware that po-licing-neutral laws will have any effect on police practices. At times, law-makers may support or argue against a policing-neutral proposal because of the perceived effects on policing, which may be pointed out by police lobbyists or unions. See, e.g., Myriam E. Gilles, Reinventing Structural Reform Litiga-tion: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1400 (2000). Nevertheless, these effects often go unpre-dicted, and even when predicted they are incidental to the primary purpose of the law under consideration.
36. See, e.g., Daniel Gervais, The Regulation of Inchoate Technologies, 47 HOUS. L. REV. 665, 684-88 (2010) (expounding on the role of unintended con-sequences in policymaking);
37. Donald C. Langevoort, The Human Nature of Corporate Boards: Law, Norms, and the Unintended Consequences of Inde-pendence and Accountability, 89 GEO. L.J. 797, 816-18 (2001) (discussing the hidden costs of increasing director independence in corporate structures);
38. Wil-liam P. Marshall, The Last Best Chance for Campaign Finance Reform, 94 NW. U.L. REV. 335, 342-46 (2000) (discussing unintended consequences in the con-text of campaign finance reform);
39. Susan Ness, The Law of Unintended Conse-quences, 58 FED. COMM. L.J. 531, 532-35 (2006) (discussing the unexpected effects of the 1996 Telecommunications Act).
40. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
41. Janice Nadler & J.D. Trout, The Language of Consent in Police Encounters, in OX-FORD HANDBOOK ON LINGUISTICS AND LAW 326 (Peter M. Tiersma & Law-rence M. Solan eds., 2012) (challenging the judicial understanding of consent in the police context). Relatedly, there is a near-boundless body of work that seeks to improve the remedial structure for constitutional violations.
42. See 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 (1983) (discussing the criticisms and possible changes to the ex-clusionary rule).
43. Cf. Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. REV. 989, 1012 (2006) (discussing "criminal law exceptionalism" in the separation of powers context).
44. Alison McKenney Brown, Police as Symbols of Government and Justice, in POLICE MISCONDUCT 15, 15 (Michael J. Palmiotto ed., 2001).
45. David Benjamin Oppenheimer, Martin Luther King, Walker v. City of Birmingham, and the Letter from Birmingham Jail, 26 U.C. DAVIS L. REV. 791, 849 (1993).
46. See, e.g., Peter Hermann, City Putting Police Back on Foot Patrol, BALTIMORE SUN, Jan. 7, 2010, http://articles.baltimoresun.com/2010-01-07/news/ bal-md.hermann07jan07-1-foot-patrol-police-force-frederick-h-bealefeld-iii.
47. Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 LAW & SOC'Y REV. 513, 514 (2003).
48. Mike Hough et al., Procedural Justice, Trust, and Institutional Legit-imacy, 4 POLICING 203, 205 (2010).
49. ERIC J. FRITSCH ET AL., POLICE PATROL ALLOCATION AND DEPLOYMENT 103 (2009);
50. cf. Ronald Weitzer, White, Black, or Blue Cops? Race and Citizen Assessments of Police Officers, 28 J. CRIM. JUST. 313, 321-22 (2000).
51. Robert E. Worden, The Causes of Police Brutality: Theory and Evi-dence on Police Use of Force, in POLICE VIOLENCE 23, 24 (William A. Geller & Hans Toch eds., 1996).
52. See Robert J. Kane, Compromised Police Legitimacy as a Predictor of Violent Crime in Structurally Disadvantaged Communities, 43 CRIMINOLOGY 469, 492 (2005);
53. see also VICTOR M. RIOS, PUNISHED: POLICING THE LIVES OF BLACK AND LATINO BOYS xv (2011) (concluding that the negative relationship that young Black and Latino men have with police leads "many of them to ful-fill the destiny expected of them" by engaging in "crime and violence").
54. See MARK A. R. KLEIMAN, WHEN BRUTE FORCE FAILS 45-46, 103-04 (2009).
55. Robert J. Kane, The Social Ecology of Police Misconduct, 40 CRIMI-NOLOGY 867, 887 (2002).
56. Lawrence D. Bobo & Victor Thompson, Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System, 73 SOC. RES. 445, 457-58 (2006) (describing focus group interviews in which Black partici-pants expressed "a concern with abuse at the hands of police, general underpolicing, and then a sense of excessive or heavy-handed response to a situation allowed to fester until[] it was out of control");
57. Harlan Hahn, Ghetto Assessments of Police Protection and Authority, 6 LAW & SOC'Y REV. 183, 183 (1971) ("While many black citizens have complained about harsh or brutal po-lice behavior, they also have expressed intense criticism of a lack of police pro-tection.");
58. Cf. 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, 233-35 (2008) (arguing effective crime control requires commu-nity cooperation, which may be obtained by favorable perceptions about the institutional legitimacy of police).
59. See Louis D. Bilionis, Process, the Constitution, and Substantive Crim-inal Law, 96 MICH. L. REV. 1269, 1322 (1998) (contending that, with regard to substantive criminal law, the Supreme Court typically reinforces legislative process, but that the Court's process concerns are reduced in the "absence of deliberative legislative choice").
60. United States v. Watson, 423 U.S. 411, 431 (1976).
61. Whether the Court is the best judge of what constitutes "effective law enforcement" and whether it can correctly predict the effects of a particular rule are separate questions. For more on the former, see Harmon, supra note 5, at 768-80 (contending that constitutional rights are insufficient protection from police intrusion and that courts are unable to independently protect constitutional rights). For more on the latter, see Seth Stoughton, Policing Facts, 88 TUL. L. REV. 847 (2014).
62. See BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, STATE AND LOCAL LAW ENFORCEMENT TRAINING ACADEMIES, 2006, at 7 (2009).
63. In the right circumstances, of course, a private citizen can exercise some aspect of police powers; citizen's arrest remains part of the common law, individuals can use force in self-defense, and businesses can take steps, including detaining and searching, to protect their property. Nevertheless, it is true that police officers can exercise police powers with more latitude than can civilians. A police officer, for example, is protected from liability for false arrest if he had probable cause to believe that the subject of the arrest committed a crime, where a civilian is protected only if a crime has actually been committed. Compare, e.g., CAL. PEN. CODE § 836(a)(3) (2014) (giving police officers authority to arrest when they have "probable cause to believe that the person to be arrested has committed a felony"), with CAL. PEN. CODE § 837(3) (2014) (giving private persons authority to arrest "when a felony has been in fact committed, and [the private person] has reasonable cause for believing the person arrested to have committed it").
64. George E. Dix, Undercover Investigations and Police Rulemaking, 53 TEX. L. REV. 203, 216 (1975) ("One of the sad but indisputable characteristics of the development of legal limitations on law enforcement activity is that it compels looking initially to federal constitutional law, the source most likely to supply applicable rules.").
65. See, A. Kenneth Pye, The Warren Court and Criminal Procedure, 67 MICH. L. REV. 249, 249 (1968) ("[T]here can be little doubt that the [criminal law] developments of the [Warren Court] have unalterably changed the course of the administration of criminal justice in America.").
66. See BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 2008, at 1-2 (2011) [hereinafter REAVES, CENSUS], available at http://bjs.gov/content/pub/pdf/csllea08.pdf.
67. Cf. DONALD BLACK, THE MANNERS AND CUSTOMS OF THE POLICE 86 (1980) (describing arrest as a relatively infrequent facet of policing).
68. This is particularly true when police respond to constitutional pressures by shifting to less regulated practices. Gary T. Marx, The Interweaving of Public and Private Police in Undercover Work, in PRIVATE POLICING 172, 184-86 (Clifford D. Shearing & Phillip C. Stenning eds., 1987) (describing how restrictions on police action encourage officers to leverage private partners-"detectives and informants"-who are "less accountable and not as subject to such limitations").
69. Suppression is only warranted in cases where it would deter future malfeasance. Davis v. United States, 131 S. Ct. 2419, 2426-27 (2011).
70. 42 U.S.C. § 1983 (2006); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
71. John C. Jeffries, Jr., What's Wrong with Qualified Immunity?, 62 FLA. L. REV. 851, 852 (2010).
72. Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986);
73. Carey v. Piphus, 435 U.S. 247, 262-64 (1978).
74. Barbara E. Armacost, Qualified Immunity: Ignorance Excused, 51 VAND. L. REV. 583, 584 (1998).
75. WILSON, supra note 1. Later studies provided some support to his the-sis, finding that officers in jurisdictions with a professional city manager were more likely to adopt a legalistic approach to police patrol. Robert H. Langworthy, Wilson's Theory of Police Behavior: A Replication of the Con-straint Theory, 2 JUST. Q. 89 (1985).
76. James P. McElvain & Augustine J. Kposowa, Police Officer Character-istics and the Likelihood of Using Deadly Force, 35 CRIM. JUST. & BEHAV. 505, 514 (2008) (finding that college-educated officers were less likely to use deadly force);
77. Eugene A. Paoline III & William Terrill, Police Education, Experience, and the Use of Force, 34 CRIM. JUST. & BEHAV. 179, 179 (2007) (finding that officers with any amount of college education used less verbal coercion, while officers with a 4-year degree used less physical force).
78. But see Lawrence W. Sherman & Mark Blumberg, Higher Education and Police Use of Deadly Force, 9 J. CRIM. JUST. 317, 317 (1981) (finding that education level may not actually make a significant difference among officers who used deadly force).
79. See Karl Etters, Law Enforcement Beefs Up Security for Homecoming, THE FAMUAN, Oct. 2, 2011, http://www.thefamuanonline.com/news/law-enforc ement-beefs-up-security-for-homecoming-1.2643404#.UxOHPNiYaP9.
80. BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, FEDERAL LAW ENFORCEMENT OFFICERS, 2008 at 1 (2012), available at http://bjs.gov/content/pub/pdf/fleo08.pdf.
81. BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, LOCAL POLICE DEPART-MENTS, 2007 at 6 (2010) (patrol officers make up between sixty and ninety percent of sworn employees in any given police department), available at http://bjs.ojp.usdoj. gov/content/pub/pdf/lpd07.pdf;
82. MICH. COMP. LAWS § 764.2a (2002).
83. See, e.g., PA. CONS. STAT. § 8953(6) (2007).
84. See, e.g., GA. CODE ANN. § 17-4-23(a) (2013) (traffic offenses);
85. CA. PE-NAL CODE § 830.1(3) (2013) (any crime when "there is immediate danger to person or property, or of the escape of the perpetrator").
86. The assumption that local governments are concerned with their own citizens is a familiar one. See Alan Williams, The Optimal Provision of Public Goods in a System of Local Government, 74 J. POL. ECON. 18, 19 (1966).
87. This, of course, is a general statement that has any number of specific, if limited, exceptions. The New York Police Department's infiltration into and surveillance of Muslim communities in New Jersey is a recent and particularly controversial example of extraterritorial action. Arguably, this was not police action; Andrew Schaffer, a deputy commissioner at the NYPD, defended the spying program in part by explaining that the officers involved were "'not acting as police officers in other jurisdictions.'" Matt Apuzzo & Adam Goldman, NYPD Spying: How a 911 Caller Outed NYPD Surveillance of Muslims in New Jersey, HUFFINGTON POST (July 25, 2012, 12:52 PM), available at http://www.huffingtonpost.com/2012/07/25/nypd-spying-new-brunswick-muslim -surveillance-new-jersey-n-1701340.html (emphasis added).
88. STEVE HERBERT, POLICING SPACE: TERRITORIALITY AND THE LOS ANGELES POLICE DEPARTMENT 9-11, 21-23 (1997).
89. Richard T. Ford, Law's Territory (A History of Jurisdiction), 97 MICH. L. REV. 843, 843 (1999).
90. GERALD E. FRUG, CITY MAKING: BUILDING COMMUNITIES WITHOUT BUILDING WALLS 167 (1999)
91. Letter from Sarah L. Mehta, Staff Attorney, American Civil Liberties Union, to Barbara L. McQuade, U.S. Attorney (Apr. 18, 2013), available at http://www.aclumich.org/sites/default/files/ DOJ%20Complaint%20re%20Police%20Abuse%20of%20Homeless.pdf
92. In 1994, the ACLU filed a lawsuit against the City of Cleveland, alleging that the police department engaged in similar activity. Jean Taddie, Law-suit Claims Homeless Dumped by Police, NORTHEAST OHIO COALITION FOR THE HOMELESS (June 19, 2012, 10:28 AM), available at http://www.neoch .org/issue-10-articles/ 2012/6/19/lawsuit-claims-homeless-dumped-by-police.html
93. There have been more recent accusations of police removing homeless people from their jurisdiction. See, e.g., Kathleen McGrory, Other Miami-Dade Cities Deny 'Dumping' Homeless People in Downtown Miami, MIAMI HERALD, July 1, 2013, http://www.miamiherald.com/2013/06/30/3479202/other-miami -dade-cities-deny-dumping.html;
94. Rebecca Ferrar, Knox Sheriff Ends Homeless Transfers from Other Counties, KNOXVILLE NEWS, July 14, 2010, http://www.knoxnews.com/news/2010/jul/14/ homeless-transfers-end/
95. See U.S. DEP'T OF JUSTICE, OFFICE OF COMMUNITY ORIENTED POLIC-ING SERVICES, THE IMPACT OF THE ECONOMIC DOWNTURN ON AMERICAN PO-LICE AGENCIES 28-30 (2011), available at http://www.cops.usdoj.gov/files/RIC/Publications/ e101113406-Economic%20Impact.pdf (providing examples of cities that have consolidated or eliminated police departments to mitigate budget deficits);
96. see also Jesse McKinley, In a Beachside Tourist Town, a Wrenching Decision to Outsource, N.Y. TIMES, Apr. 3, 2011, http://www.nytimes.com/2011/04/ 04/us/04halfmoonbay.html?-r=0(reporting on the decision of the California city of Half Moon Bay to eliminate its police department due to budget issues)
97. See, e.g., Caley Cook, Proposal to Merge Elko Law Enforcement Ser-vices Draws Police Union Criticism, ELKO DAILY FREE PRESS, May 28, 2013, http://elkodaily.com/news/proposal-to-merge-elko-law-enforcement-services -draws-police-union/article-7f501aea-c7fc-11e2-a4f2-0019bb2963f4.html (reporting on police unions attempts to convince city council to preserve inde-pendent city police force)
98. For a recent example, consider the arguments made by the chief of the Bergen County, New Jersey, Police Department, which has had to defend itself from consolidation proposals. Chief Brian Higgins argued that the county police increases patrol presence, engages in more community policing than other agencies, and provides services that other local police agencies do not, such as having a K-9 unit, bomb squad, and SWAT team. S.P. Sullivan, What Do County Police Do? Bergen Force, Under Fire, Explains Its Role at Forum, NJ.COM (Apr. 10, 2013, 5:00 AM), available at http://www.nj.com/bergen/index .ssf/2013/04/what-do-county-police-do-bergen-force-under-fire-explains-its-role- at-forum.html
99. The Chicago Police Department, for example, will not dispatch an officer to citizen complaints about crime when "the offender is no longer at the scene and no one is in immediate danger." Hal Dardick & Jeremy Gorner, More 911 Calls Won't Get In-Person Response, CHI. TRIB., Feb. 3, 2013, http://articles.chicagotribune.com/2013-02-03/news/chi-more-911-calls-wont -get-inperson-response-starting-sunday-20130202-1-Police-officer-crime-scene -officers. As a hypothetical, consider how long that policy would last if the CPD found itself in serious competition with the Cook County Sheriff's Office
100. Elinor Ostrom et al., Do We Really Want to Consolidate Urban Po-lice Forces? A Reappraisal of Some Old Assertions, 33 PUB. ADMIN. REV. 423, 428 (1973) (providing examples of communites with extensive formal and in-formal control over the local police force)
101. CONSOLIDATING POLICE SERVICES, AN INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE APPROACH 1 (2003), available at http://www.ncjrs.gov/App/Publications/ abstract.aspx?ID=207077 ("Opponents [of consolidation] also assume that the personal nature of policing in their community will be lost, that response times may not be lowered, and that costs to the smaller community may increase.");
102. see Edward J. Tully, Regionalization or Consolidation of Law Enforcement Services in the United States, NAT'L EXEC. INST. ASSOCS. (Jan. 2002), http://www.neiassociates.org/-consolidation-law-enforcement/(suggesting that law enforcement organizations "give consideration to placing the consolidation of small, rural law enforcement agencies into regional police forces")
103. Will Carless, To Shore Up the Force, SDPD Bails Out of Task Forces, VOICE OF SAN DIEGO (Apr. 9, 2007), http://voiceofsandiego.org/2007/04/09/to-shore-up- the-force-sdpd-bails-out-of-task-forces-2/
104. Elizabeth Larson, Lakeport Police, Sheriff in Dispute Over Access to Law Enforcement Records System, LAKE COUNTY NEWS (Apr. 25, 2013, 3:18 PM), http://www.lakeconews.com/index.php?option=com-content&id=30923: lakeport-police-sheriff-in-dispute-over-access-to-law-enforcement-records -system&Itemid=197
105. Consider briefly the choice of Home Rule, which permits local govern-ments the flexibility to adopt local ordinances so long as they are consistent with state and federal law, or Dillon's Rule, which gives local governments only the powers expressly granted by state law. In a Home Rule state, police can engage with local political figures to advocate for legal changes that would re-quire state legislation in a Dillon's Rule state. See, e.g., Lori Hall, City Eases Up on Noise Ordinance, WESTLINN TIDINGS (Apr. 11 2013, 10:00 AM), http://www.pamplinmedia.com/wlt/95-news/135789-city-eases-up-on -noise-ordinance (describing a local police department's successful lobbying to change the time at which a city noise ordinance went into effect every evening);
106. Katie Lopez, Police Try Passing Synthetic Drug Ordinance for Second Time, VALLEYCENTRAL.COM (Jan. 23, 2013, 6:46 PM), http://www.valleycentral.com/news/ story.aspx?id=851514#.UxDxgmhc-zK (describing a local police chief's attempts to use local law to ban synthetic drugs)
107. U.S. COMMISSION ON CIVIL RIGHTS, POLICE PRACTICES AND CIVIL RIGHTS IN NEW YORK CITY, 3 (Aug. 2000), available at http://www.usccr.gov/pubs/nypolice/ch3. htm
108. DEFLECTING BLAME: THE DISSENTING REPORT OF MAYOR RUDOLPH W. GUILIANI'S TASK FORCE ON POLICE/COMMUNITY RELATIONS 43 (1998), available at http://nycivilirights.org/wp-content/themes/civilrights/pdf/Report5.pdf
109. Kit R. Roane, Merit Pay for Police Officers Is Overruled by Labor Board, N.Y. TIMES, Mar. 3, 1999, http://www.nytimes.com/1999/03/03/ny region/merit-pay-for-police-officers-is-overruled-by-labor-board.html
110. See Richard B. Freeman, Unionism Comes to the Public Sector, 24 J. ECON. LIT. 41, 43 (1986) (comparing the number of public sector unions)
111. Today in Labor History: 1919 Boston Police Strike, PEOPLE'S WORLD (Sept. 9, 2013), http://www.peoplesworld.org/today-in-labor-history-1919-bost on-police-strike/
112. See generally Laura Huey & Danielle Hryniewicz, "We Never Refer to Ourselves as a Lobby Group Because 'Lobby Group' Has a Different Connota-tion": Voluntary Police Associations and the Framing of Their Interest Group Work, 54 CANADIAN J. CRIMINOLOGY & CRIM. JUST. 287 (2012)
113. Richard B. Freeman & Eunice S. Han, Public Sector Unionism With-out Collective Bargaining, 54 J. OF INDUS. REL. 386 (2012)
114. BRIAN A. REAVES, U.S. DEP'T OF JUSTICE, LOCAL POLICE DEPART-MENTS, 2007, at 13 (2010), available at http://bjs.gov/content/pub/pdf/lpd07.pdf (reporting that 38%of local police departments, which employ 66%of all officers, engage in collective bargaining with police unions)
115. THE COMMITTEE OF SEVENTY, PHILADELPHIA POLICE DEPARTMENT GOVERNANCE STUDY 17 (1998), available at http://www.seventy.org/Down loads/Policy-&-Reform/ Governance-Studies/1998-Police-Governance-Study.pdf
116. Collective Bargaining Agreements, New York City, Office of Labor Relations, available at http://www.nyc.gov/html/olr/html/collective-bargaining/ police-contracts.shtml (last visited Apr. 21, 2013)
117. CITY OF LOS ANGELES, DIRECTORY OF EMPLOYEE ORGANIZATIONS AND REPRESENTATIVES AUTHORIZED TO REPRESENT CITY EMPLOYEES (Apr. 2013), available at http://cityclerk.lacity.org/cps/PDF/DirectoryOfEmployeeOrgan.pdf
118. THE COMM. OF SEVENTY, PHILADELPHIA POLICE DEPARTMENT GOV-ERNANCE STUDY 17 (1998), available at http://www.seventy.org/Downloads/Policy-&-Reform/ Governance-Studies/1998-Police-Governance-Study.pdf
119. Chicago also has collective bargaining agreements with a sergeants' union, a lieutenants' union, and a captains' union. Collective Bargaining Agreements, CITY OF CHICAGO, https://www.cityofchicago.org/city/en/depts/dol/ supp-info/city-of-chicago-collectivebargainingagreements.html (last visit-ed Apr. 21, 2013)
120. CITY OF CHICAGO, AGREEMENT BETWEEN THE CITY OF CHICAGO DE-PARTMENT OF POLICE AND THE FRATERNAL ORDER OF POLICE CHICAGO LODGE NO. 7 (2007), available at https://www.cityofchicago.org/content/dam/city/depts/dol/ Collective%20Bargaining%20Agreement2/FOP2007-2012FINAL.pdf [hereinafter CHICAGO DEPT. POLICE AGREEMENT]
121. CITY OF BOSTON, COLLECTIVE BARGAINING AGREEMENT BETWEEN CITY OF BOSTON AND BOSTON POLICE PATROLMEN'S ASS'N, INC. (2002), available at http://www.cityofboston.gov/labor/agreements.asp (follow "BPPA 2002-2006 CBA" hyperlink) [hereinafter BOSTON COLLECTIVE BARGAINING AGREE-MENT];
122. CITY OF BOSTON, MEMORANDUM OF AGREEMENT, CITY OF BOSTON AND BOSTON POLICE PATROLMEN'S ASS'N, INC., 2006-2007 (2007), available at http://www. cityofboston.gov/labor/agreements.asp (follow "BPPA 2006-2007 MOA" hyperlink) [hereinafter BOSTON COLLECTIVE BARGAINING AGREEMENT AMENDMENT 1];
123. CITY OF BOSTON, MEMORANDUM OF AGREEMENT, CITY OF BOSTON AND BOSTON POLICE PATROLMEN'S ASS'N, INC., 2007-2010 (2007), available at http://www. cityofboston.gov/labor/agreements.asp (follow "BPPA 2007-2010 MOA" hyperlink) [hereinafter BOSTON COLLECTIVE BARGAINING AGREEMENT AMENDMENT 2]
124. CITY OF NEW YORK, PATROLMEN'S BENEVOLENT ASS'N 2002-2004 AGREEMENT (2006), available at http://www.nyc.gov/html/olr/html/collective-bargaining/ police-contracts.shtml (follow "Police Officers, CBU 79, 2002-2004" hyperlink)
125. John M. Magenau & Raymond G. Hunt, Police Unions and the Police Role, 49 HUM. REL. 1315, 1317 (1996)
126. Mark Iris, Police Discipline in Chicago: Arbitration or Arbitrary?, 89 J. CRIM. L. & CRIM. 215, 216 (1998)
127. Anthony Cormier & Matthew Doig, Special Report: How Florida's Problem Officers Remain on the Job, SARASOTA HERALD-TRIBUNE, Dec. 4, 2011, http://www.heraldtribune.com/article/20111204/article/111209980
128. Michael A. Fuoco, Officer Fired over Cocaine Reinstated by Arbitrator, PITTSBURG POST-GAZETTE, June 25, 1991, at 6
129. Arbitrator Reinstates Fired Police Officer, THE BLADE, Feb. 14, 2006, http://www.toledoblade.com/Police-Fire/2006/02/14/Arbitrator-reinstates-fired -police-officer.htm
130. See generally Erik Luna, The Overcriminalization Phenomena, 54 AM. U. L. REV. 703 (2005)
131. See generally Theodore N. Ferdinand, Police Attitudes and Police Or-ganizations, 3 POLICE STUD.: INT'L REV. POLICE DEV. 46 (1980) (investigating the effect of roles, ranks, and other factors in interdepartmental relations)
132. This view has also been at the heart of the often-contentious relation-ship between many police and firefighters' unions. For a recent example of this debate, see Dillon Collier, San Antonio Police, Fire Unions Fight over Possible Benefit Reductions, KENS 5 (Dec. 16, 2013), http://www.kens5/news/San -antonio-police-and-fire-unions-digging-in-for-fight-over-possible-benefit -reductions-236125451.html
133. Fran Spielman, City, Police Sergeants Union Strike Deal on Raises, Pensions, CHI. SUN-TIMES, Feb. 11, 2013, http://www.suntimes.com/news/metro/ 18157927-418/city-police-sergeants-union-strike-deal-on-raises-pensions .html
134. Hal Dardick, Chicago Police Sergeants Reject Emanuel Contract Offer, CHI. TRIB., Mar. 11, 2013, http://articles.chicagotribune.com/2013-03-11/news/chi- chicago-police-sergeants-reject-emanuel-contract-offer-20130311-1-sergeants- union-chicago-police-sergeants-pension-payments
135. Michael Shields, President's Report, F.O.P. NEWS (F.O.P. Chi. Lodge No. 7), Mar. 2013, at 1, available at http://chicagofop.org/newsletter/2013/ 032013news.pdf (emphasis in original)
136. To use another example, the union representing police detectives in New York "grudgingly" agreed to eliminate a contract provision that required the police department to wait forty-eight hours before interviewing officers ac-cused of misconduct, but only because the sergeants' union had already made the same concession. Amy Waldman, Detectives' Union Agrees to Drop Disputed Rule, N. Y. TIMES, July 17, 1998, http://www.nytimes.com/1998/07/17/ nyregion/detectives-union-agrees-to-drop-disputed-rule.html
137. See Wesley G. Skogan, Why Reforms Fail, 18 POL. & SOC. 23, 25-27 (2008) (describing resistance on the part of rank-and-file officers)
138. In 2012, the union representing officers at the Raleigh Police Department was involved in a public dispute with the Police Chief over officer performance evaluations. Thomasi McDonald, Raleigh Police Union: New Evaluation Process Is 'Thinly Veiled' Quota System, NEWS & OBSERVER (July 13, 2012), http://www.newsobserver.com/2012/07/13/2197551/raleigh-police-union -new-evaluation.html
139. A police union in Columbus, Ohio has come out strongly against the city's use of real-time GPS tracking of police vehicles, arguing that the city has an obligation to negotiate with the union about how the devices can be monitored and used for disciplinary purposes. Lucas Sullivan, Fire, Police File Grievance Over GPS Tracking of Vehicles, COLUMBUS DISPATCH, Apr. 24, 2013, http://www.dispatch.com/content/stories/local/2013/04/24/fire-police -make-gps-gripes-official.html
140. For example, a police union at the Denver Police Department has recently spoken against a staffing arrangement that it says will slow officer response times and make backup less available. Sadie Gurman, Denver Police Union: Chief's Staffing Plan Is Dangerous, DENVER POST, May 21, 2013, http://www.denverpost. com/breakingnews/ci-23293931/denver-police-union-chiefs -staffing-plan-is- dangerous
141. See, e.g., Cecilia Chan, Phoenix Police Union Sues City over Uniform Change, ARIZONA REPUBLIC, June 5, 2013, http://www.azcentral.com/commun ity/phoenix/articles/20130605phoenix-police-union-sues-city-over-uniform -change.html
142. Jack Levin & Alexander Thomas, Experimentally Manipulating Race: Perceptions of Police Brutality in an Arrest: A Research Note, 14 JUST. Q. 577, 581 (1997)
143. PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE THE CHALLENGE OF CRIME IN A FREE SOCIETY 62-63 (1967), available at https://www.ncjrs.gov/ pdffiles1/nij/42.pdf
144. Tamer El-Ghobashy, Minorities Gain in NYPD Ranks, WALL ST. J., Jan. 7, 2011, http://online.wsj.com/article/SB10001424052748704415104576066302323002420 .html (reporting on the New York City Police Department);
145. J. David Goodman, More Diversity in New York City's Police Dept., but Blacks Lag, N. Y. TIMES, Dec. 26, 2013, http://www.nytimes.com/2013/12/27/ nyregion/more-diversity-in -new-york-citys-police-but-blacks-lag.html (reporting on the percentage of mi-nority police recruits)
146. See, e.g., Leslie Ellis & Shari Seidman Diamond, Race, Diversity, and Jury Composition: Battering and Bolstering Legitimacy, 78 CHI.-KENT L. REV. 1033, 1037-50 (2003);
147. Sherrilyn A. Ifill, Judging the Judges: Racial Diversity, Im-partiality and Representation on State Trial Courts, 39 B.C. L. REV. 95, 102-04, 143-45 (1997)
148. See, e.g., Robert A. Brown & James Frank, Race and Officer Decision Making: Examining Differences in Arrest Outcomes Between Black and White Officers, 23 JUST. Q. 96, 96 (2006) (finding that officer race influences the deci-sion to arrest);
149. Rod K. Brunson & Jacinta M. Gau, Officer Race Versus Macro-Level Context: A Test of Competing Hypotheses About Black Citizens' Experiences with and Perceptions of Black Police Officers, CRIM. & DELINQUENCY (print version forthcoming), available at http://cad.sagepub.com/content/early/2011/02/17/ 0011128711398027 (exploring the influence of officer race in forming police perceptions);
150. Scott H. Decker & Russell L. Smith, Police Minority Recruitment: A Note on Its Effectiveness in Improving Black Evaluations of the Police, 8 J. CRIM. JUST. 387, 389 (1980) (investigating the effect of minority re-cruitment);
151. Ivan Y. Sun & Brian K. Payne, Racial Differences in Resolving Conflicts: A Comparison Between Black and White Police Officers, 50 CRIM. & DELINQUENCY 516 (2004) (examining differences in behavior between Black and White officers in interpersonal conflict resolution)
152. Jihong Zhao & Nicholas Lovrich, Determinants of Minority Employ-ment in American Municipal Police Agencies: The Representation of African American Officers, 26 J. CRIM. JUST. 267, 274-75 (1998). The size of the Black population in a given locality is much more strongly correlated with minority representation than the existence of an affirmative action program. Id. at 275
153. EEOC COMPLIANCE MANUAL § 15-VII(B)(1) (2006), available at http://www.eeoc.gov/policy/docs/race-color.pdf
154. See Matthew C. Stephenson, Information Acquisition and Institution-al Design, 124 HARV. L. REV. 1422, 1427-31 (2011)
155. Academically, of course, it would be ideal if policymakers considered carefully the effects of every law on police, but this is obviously unrealistic. Federal lawmakers propose thousands of bills every year, some action is taken on about a thousand, and several hundred are enacted as law. Josh Tauberer, Kill Bill: How Many Bills Are There? How Many Are Enacted?, GOVTRACK.US (Aug. 4, 2011), http://www.govtrack.us/blog/2011/08/04/kill-bill-how-many-bills -are-there-how-many-are-enacted/. State statistics are not as clear, but if they lag behind, it might not be by much; in 2011, the Governor of California, in a state which already has a cap on the number of bills each legislator can pro-pose, asked state lawmakers to propose fewer bills
156. See Michael J. Mishak, State Lawmakers Are Being Urged to Scale Back the Number of Laws They Propose, L.A. TIMES, Mar. 6, 2011, http://articles.latimes. com/2011/mar/06/local/la-me-legislature-20110226. Though many of those bills seem unlikely to affect officer behavior or police legitimacy-to use an example from California, a statutory restriction on what can be called "extra virgin olive oil" appears highly unlikely to impact police practices-the possibility of attenuated inci-dental effects remains. See id
157. Jonathan R. Macey, Organizational Design and the Political Control of Administrative Agencies, 8 J.L. ECON. & ORG. 93, 95 (1992);
158. Murray J. Horn & Kenneth A. Shepsle, Commentary on "Administrative Arrangements and the Political Control of Agencies": Administrative Process and Organizational Form as Legislative Responses to Agency Costs, 75 VA. L. REV. 499, 505 (1989);
159. Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Ad-ministrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 434 (1989)
160. See, e.g., J.R. DeShazo & Jody Freeman, The Congressional Competi-tion to Control Delegated Power, 81 TEX. L. REV. 1443, 1456, 1490-94 (2003)
161. The committee charter can establish membership criteria such as min-imum qualifications or required expertise. See WENDY R. GINSBERG, RE-SEARCH SERV., R40520, FEDERAL ADVISORY COMMITTEES: AN OVERVIEW 17 (2009)
162. Our Processes, CONG. BUDGET OFFICE, http://www.cbo.gov/about/our -processes (last visited Apr. 21, 2013)
163. See, e.g., N.Y. VEH. & TRAF. LAW § 1104 (McKinney 2011). Police officers are unlikely to get ticketed for on-duty traffic violations even when they are not operating in "emergency response" mode; to the extent that they are sanctioned at all, they are commonly subject only to internal discipline. See Josh Sweigart, Some Public Workers Run Red Lights Freely, DAYTON DAILY NEWS (July 17, 2012), http://www.daytondailynews.com/news/news/local/some -public-workers-run-red-lights-freely-1/nPwbZ/;
164. Jeremy Rogalski, Crashes Caused by Cops Leave Victims Wanting Justice, KHOU.COM (Apr. 26, 2012), http://www.khou.com/news/ITeamHPDAccidents-149102875. html;
165. Rene Stutzman & Scott Powers, Day 1: Cops Crash Often, Ticketed Rarely, ORLANDO SENTINEL, Feb. 11, 2012, http://articles.orlandosentinel.com/ 2012 -02-11/news/os-police-car-crashes-totals-mainbar-20120211-1-officers-crash -cops-crash-officer-markmaupin
166. Even off-duty officers often avoid being tick-eted for traffic violations, benefitting from "professional courtesy." See Michael Dresser, When Police Let Officers Skate, Respect for Traffic Law Tanks, BALTIMORE SUN, Feb. 6, 2011, http://articles.baltimoresun.com/2011-0206/ features/bs-md-dresser-getting-there-02-09-20110204-1-police-officer-law- enforcement-professional-courtesy
167. CHARLES R. SWANSON ET AL., CRIMINAL INVESTIGATION 629 (7th ed. 2000)
168. GARY T. MARX, UNDERCOVER: POLICE SURVEILLANCE IN AMERICA 62-68, 17-77 (1988);
169. JOHN M. MACDONALD & JERRY KENNEDY, CRIMINAL INVESTIGATION OF DRUG OF-FENSES, 113 (1983);
170. George E. Dix, Undercover Investigations and Police Rulemaking, 53 TEX.
171. Sometimes these acts can be fairly egregious. See, e.g., John Diedrich and Raquel Rutledge, ATF Uses Rogue Tactics in Storefront Stings Across Nation, JOURNAL SENTINEL, Dec. 7, 2013, http://www.jsonline.com/watchdog/ watchdogreports/atf-uses-rogue-tactics-in-storefront-stings-across-the-nation- b99146765z1-234916641.html
172. Pierson v. Ray, 386 U.S. 547, 557 (1967). The Court's decision in Pierson was the bedrock upon which the modern doctrine of qualified immunity was built. John C. Jeffries, Jr., Damages for Constitutional Violations: The Relation of Risk to Injury in Constitutional Torts, 75 VA. L. REV. 1461, 1467-68 (1989);
173. Stephanie E. Balcerzak, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation, 95 YALE L. J. 126, 130 (1985)
174. For more on clear statement rules as canons of statutory construction, see CALEB NELSON, STATUTORY INTERPRETATION 180-82 (2011)
175. Cf. NATHAN F. IANNONE ET AL., SUPERVISION OF POLICE PERSONNEL 194 (7th ed. 2009) (describing the importance of officer morale)
176. See, e.g., FRATERNAL ORDER OF POLICE, DUE PROCESS RIGHTS FOR LAW ENFORCEMENT OFFICERS, http://www.grandlodgefop.org/legislative/issues/leobr/ index.shtml (last visited Apr. 21, 2013)
177. An officer with a reputation for dishonesty can jeopardize prosecutions with which he is involved. See Lisa A. Judge, Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?, THE POLICE CHIEF (Nov. 2005), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display- arch&article-id=744&issue-id=112005
178. Cf. Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 105-12 (1992) (describing the mixed responses of prosecutors and judges to "boilerplate" language in war-rant applications and the possibility of perjurious testimony)
179. I use the qualifiers "specific disturbances" that are "intentionally displaced" in anticipation of the observation that many aspects of policing, including targeted enforcement efforts and aggressive patrol, can effectively displace crime by raising the costs of committing criminal acts in a given jurisdiction, pushing would-be criminal actors into neighboring jurisdictions with lower costs. This "general displacement" essentially involves the voluntary relocation of criminal actors to avoid interacting with the police. In contrast, the "specific displacement" that I am most concerned with involves police-initiated involuntary relocation. For a general overview on the concept of general dis-placement, see René B.P. Hesseling, Displacement: A Review of the Empirical Literature, 3 CRIME PREVENTION STUD. 197 (1994);
180. Robert Barr & Ken Pease, Crime Placement, Displacement, and Deflection, 12 CRIME & JUST. 227 (1990)
181. In practice, this could resemble diversion strategies commonly used by prosecutors' offices. See Peter Krug, Prosecutorial Discretion and Its Limits, 50 AM. J. COMP. L. 656-58 (2002)
182. Huey & Hryniewicz, supra note 113, at 288 (discussing the "thin liter-ature" on "the politics of the police"). For example, police unions and lobbyists are among the staunchest opponents of marijuana legalization. See Lee Fang, The Top Five Special Interest Groups Lobbying to Keep Marijuana Illegal, RE-PUBLIC REPORT (Apr. 20, 2012), http://www. republicreport.org/2012/mari juana-lobby-illegal/
183. A brief glance at the website of only one police interest group-the International Association of Chiefs of Police-reveals thirty-five separate "projects" on topics from juvenile justice to violent extremism to protecting civil rights. Projects, INT'L ASSOC. OF CHIEFS OF POLICE, http://www.theiacp.org/PublicationsGuides/Projects (last visited Apr. 21, 2013)
184. Under what is commonly known as the "Trespass Affidavit Program," private property owners can authorize police officers to investigate instances of suspected trespass on their property and, upon their own initiative and without further consultation of the property owner, to ban people from the property. The now-infamous "Stop and Frisk" policy of the New York Police Department arose, in large part, in the context of "vertical patrols" of apartment buildings that are authorized by private agreements between landlords and police, permitting officers to investigate and expel or arrest suspected trespassers on their own initiative. See THE NEW YORK COUNTY DISTRICT AT-TORNEY'S OFFICE, Trespass Affidavit Program, http://manhattanda.org/trespass-affidavit-program (last visited Apr. 10, 2013) (describing the Trespass Affidavit Program as "a valuable tool" for law enforcement)
185. San Francisco, for example, requires building permits for front-yard fences over three feet high. S.F. PLANNING DEP'T, Fences-Residential, http://www.sf-planning.org/index.aspx?page=2811#applying (last visited Apr. 10, 2013)
186. In this Article, I introduce the discussion of incidental regulation of police through examples of linear cause-and-effect relationships; this law results in that effect on police. It is possible, in some circumstances, that incidental regulation has important emergent properties in that the effect on police behavior is an irreducible attribute of the web of laws to which police are subject. See Keith Sawyer, Emergence in Sociology: Contemporary Philosophy of Mind and Some Implications for Sociological Theory, 107 AM. J. SOC. 552, 552 (2001) (discussing the concept of "emergence" and its use in philosophy, sociology, and economics)