The law of police

University of Chicago Law Review

Volumn 82, Issue 1, 2015, Pages 135-158

  McAdams, Richard H ^a   Dharmapala, Dhammika ^a   Garou, Nuno ^b  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

^b UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 84925873342     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. See generally William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 Stan L Rev 553 (1992).
2. See Florence v Board of Chosen Freeholders of County of Burlington, 132 S Ct 1510, 1522 (2012) ("Officers who interact with those suspected of violating the law have an 'essential interest in readily administrable rules.'") (citation omitted).
3. See Board of Education v Earls, 536 US 822, 826, 830 (2002) (holding that the school district did not violate the Fourth Amendment by requiring students to consent to random drug testing in order to participate in any extracurricular activity)
4. Vernonia School District 47J v Acton, 515 US 646, 650, 664-65 (1995) (holding that the school district did not violate the Fourth Amendment by requiring student athletes to submit to random drug testing). There are other ways to read these cases - emphasizing the context of schools, for instance - but we note that the Earls Court relied on the fact that "the test results are not turned over to any law enforcement authority," thus creating an affinity with other cases in this discussion. Earls, 536 US at 833.
5. See O'Connor v Ortega, 480 US 709, 715-17 (1987) (O'Connor) (plurality).
6. See id at 725-26 (holding that public employers are subject to a reasonableness standard under the Fourth Amendment regarding the inception and scope of work-related searches of private spaces). See also City of Ontario, California v Quon, 560 US 746, 760-61 (2010) (explaining that a workplace's "special needs" justify an exception to the general rule that warrantless searches are per se unreasonable under the Fourth Amendment)
7. National Treasury Employees Union v Von Raab, 489 US 656, 678-79 (1989) ("Where the Government requires its employees to produce urine samples to be analyzed for evidence of illegal drug use, the collection and subsequent chemical analysis of such samples are searches that must meet the reasonableness requirement of the Fourth Amendment."). One can read these cases as instead drawing a line based on the purpose of the search - to facilitate law enforcement or workplace efficiency - which happens to correlate with the identity of the governmental agent. See Ortega, 480 US at 724. We address the purpose distinction below. See Part II.C.
8. Skinner v Railway Labor Executives' Association, 489 US 602, 608, 633 (1989).
9. See, for example, id at 620 ("The Government's interest in regulating the conduct of railroad employees to ensure safety⋯ presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.") (quotation marks omitted); Griffin v Wisconsin, 483 US 868, 876 (1987) (mentioning the "special needs" of Wisconsin's probation system); Ortega, 480 US at 725 (referencing the "special needs" of the workplace); T.L.O., 469 US at 332 n 2 (discussing the "special needs" of the school system).
10. 359 US 360 (1959), overruled by Camara v Municipal Court of San Francisco, 387 US 523, 528 (1967).
11. See also See v City of Seattle, 387 US 541, 546 (1967) (holding that code-enforcement inspections of commercial structures without a warrant violate the Fourth Amendment).
12. Id at 916 (emphasis added). See also Massachusetts v Sheppard, 468 US 981, 990-91 (1984).
13. See, for example, Davis v United States, 131 S Ct 2419, 2423-24 (2011) (holding that the exclusionary rule does not apply to evidence obtained during a search conducted in reasonable reliance on binding appellate precedent, even when the precedent is later overruled)
14. Hudson v Michigan, 547 US 586, 594 (2006) (holding that the exclusionary rule does not apply to evidence obtained in violation of the knock-and-announce rule, because the rule is not intended to protect a suspect's interest in keeping evidence from the government).
15. See Al Baker and Liz Robbins, A Quota by Any Other Name, NY Times City Room Blog (NY Times, Jan 13, 2011), archived at http://perma.cc/7DTY-H3KA (describing the NYPD's de facto use of quotas despite their illegality)
16. Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum L Rev 1655, 1695 n 187 (2010) (collecting examples of reported quota use).
17. For instance, teachers are evaluated in part by their students' standardized-test results, which may pressure teachers to use searches to rid the school of drugs and other distractions. Governmental employers also face budgetary pressures to rid themselves of subpar employees. See generally Christine Sgarlata Chung, Government Budgets as the Hunger Games: The Brutal Competition for State and Local Government Resources Given Municipal Securities Debt, Pension and OBEP Obligations, and Taxpayer Needs, 33 Rev Bank & Fin L 663 (2014).
18. See generally Nathaniel Bronstein, Note, Police Management and Quotas: Governance in the CompStat Era, 48 Colum J L & Soc Probs (forthcoming 2015), archived at http://perma.cc/499B-2BLV (discussing police-department activity quotas and their negative effects, using the NYPD as an example).
19. See James Q. Wilson, Varieties of Police Behavior: The Management of Law and Order in Eight Communities 140, 157 (Harvard 3d ed 1969)
20. Elizabeth Reuss-Ianni, Two Cultures of Policing: Street Cops and Management Cops 1-16, 121-26 (1983)
21. John Van Maanen, Observations on the Making of Policemen, 32 Hum Org 407, 408 (1973).
22. A variety of intrinsic preferences may influence self-selection across occupations. For a broad model, see generally Canice Prendergast, The Motivation and Bias of Bureaucrats, 97 Am Econ Rev 180 (2007).
23. For a model of punitive policing, see generally Dhammika Dharmapala, Nuno M. Garoupa, and Richard H. McAdams, Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure (Illinois Public Law Research Paper No 13-47, June 2013), archived at http://perma.cc/LV7D-99E7.
24. ∗24-25 (cited in note 41).
25. See Prendergast, 97 Am Econ Rev at 191-92 (cited in note 41) (contrasting the typical characteristics of police officers and social workers).
26. See, for example, Ernst Fehr and Urs Fischbacher, Human Altruism - Proximate Patterns and Evolutionary Origins, 27 Analyse & Kritik (Analyze & Critique) 6, 8 (2005) ("The ultimatum game⋯ nicely illustrates that a sizeable number of people from a wide variety of cultures⋯ are willing to hurt others to⋯ punish unfair behaviour.").
27. Experiments confirm this result even when the potential punisher is not himself a victim of the wrongdoing. See generally Ernst Fehr and Urs Fischbacher, Third-Party Punishment and Social Norms, 25 Evol & Hum Behav 63 (2004)
28. Joseph Henrich, et al, Costly Punishment across Human Societies, 312 Science 1767 (2006).
29. See also Dominique J.-F. de Quervain, et al, The Neural Basis of Altruistic Punishment, 305 Science 1254, 1258 (2004) (reporting that neural images of subjects undergoing a punishment experiment reveal that the effective punishment of norm violators activates a reward center in the brain).
30. See, for example, Fehr and Fischbacher, 25 Evol & Hum Behav at 66-67 (cited in note 44).
31. For a thorough analysis of how the criminal process is really part of the punishment, see Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court 199-243 (Russell Sage 1992).
32. See, for example, Fehr and Fischbacher, 27 Analyse & Kritik (Analyze & Critique) at 26 (cited in note 44).
33. ∗3-4 (cited in note 41).
34. Like most economic analysts, we are skeptical of self-reported motivations, especially when the most popular answer - "opportunity to help people in the community" - is obviously self-serving. See, for example, Anthony J. Raganella and Michael D. White, Race, Gender, and Motivation for Becoming a Police Officer: Implications for Building a Representative Police Department, 32 J Crim Just 501, 506 (2004) (reporting that the average intensity for this motivation was 2.61 out of 3, where 3 means "very influential"). Nonetheless, "to fight crime" is the fifth-ranked-self-reported motivation (2.33 out of 3). Id. The separate motive "to enforce the laws of society" is self-reportedly of moderate importance (2.02 out of 3). Id.
35. See David Alan Sklansky, Police and Democracy, 103 Mich L Rev 1699, 1733 & n 194 (2005) (acknowledging the belief that "the psychology of the police was shaped not just by occupational role⋯ but also by a cluster of dispositions that officers brought with them to the job," such as the "view [of] violence as legitimate" and "a preoccupation with maintaining self-respect [and] proving one's masculinity") (citations omitted).
36. See generally David L. Dickinson, David Masclet, and Marie Claire Villeval, Norm Enforcement in Social Dilemmas: An Experiment with Police Commissioners (GATE Working Paper 1416, May 2014), archived at http://perma.cc/D242-9MGJ
37. Guido Friebel, Michael Kosfeld, and Gerd Thielmann, Sorting of Motivated Agents: Evidence from Applicants to the German Police, Goethe University Frankfurt mimeo (2013) (on file with authors).
38. ∗11 (cited in note 53).
39. ∗39.
40. See generally Friebel, Kosfeld, and Theilmann, Sorting of Motivated Agents (cited in note 53). See also note 56.
41. See Wilson, Varieties of Police Behavior at 6-7 (cited in note 39)
42. Joseph Goldstein, Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice, 69 Yale L J 543, 552-54 (1960).
43. See Kentucky v King, 131 S Ct 1849, 1856-57 (2011).
44. See Brigham City v Stuart, 547 US 398, 406 (2006).
45. See Cady v Dombrowski, 413 US 433, 441 (1973) ("Local police officers⋯ engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.").
46. But see Illinois v Lidster, 540 US 419, 427-28 (2004) (limiting the ordinary-law-enforcement rule in the context of a roadblock aimed at gathering information about a criminal suspect at large rather than targeting the occupants of stopped vehicles).
47. City of Indianapolis v Edmond, 531 US 32, 41-42 (2000) ("We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.").
48. See, for example, Michigan Department of State Police v Sitz, 496 US 444, 455 (1990).
49. A third example is the inventory-search exception, which allows police to search the contents of a car that they have lawfully impounded without a warrant. Florida v Wells, 495 US 1, 4 (1990) ("[T]he allowance of the exercise of judgment based on concerns related to the purpose of an inventory search does not violate the Fourth Amendment."). The Court has emphasized that the purpose of such a search is not to find evidence of a crime, but to have a list of valuables left in the car in case a property dispute arises when the car is returned to its owner. See id at 9-10 & n 2 (Brennan concurring).
50. Debra Livingston, Police, Community Caretaking, and the Fourth Amendment, 1998 U Chi Legal F 261, 265, 274 (advocating "a reasonableness approach in assessing police intrusions that are predominantly in service of community caretaking goals").
51. For one such model, see Robert Cooter and Bradley J. Freedman, The Fiduciary Relationship: Its Economic Character and Legal Consequences, 66 NYU L Rev 1045, 1054-59 (1991).
52. See generally Stuntz, 44 Stan L Rev 553 (cited in note 2).
53. See id at 573-74. See also Goss v Lopez, 419 US 565, 581 (1975) (holding that students facing temporary suspension have interests that qualify for Due Process Clause protection, including notice of the charges, an explanation of incriminating evidence, and an opportunity to be heard).
54. See Stuntz, 44 Stan L Rev at 590 (cited in note 2).
55. See Stuntz, 44 Stan L Rev at 584 (cited in note 2).
56. For instance, First Amendment rights are so protected. See generally Matthew M. Killen, Note, Intolerable Cruelties: Retaliatory Actions in First Amendment Public Employment Cases, 81 Notre Dame L Rev 1629 (2006).
57. Many other antiretaliation rules protect statutory rights. See, for example, Andrew Kenny, Comment, The Meaning of "Because" in Employment Discrimination Law: Causation in Title VII Retaliation Cases after Gross, 78 U Chi L Rev 1031, 1031 (2011) (explaining that Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 "prohibit retaliation against an employee 'because' the employee opposed a discriminatory practice").
58. See Schneckloth v Bustamonte, 412 US 218, 219 (1973) (stating that it is "well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent") (citations omitted).
59. See Stuntz, 44 Stan L Rev at 566 (cited in note 2).
60. See Safford Unified School District No 1 v Redding, 557 US 364, 375 (2009) (recognizing the humiliating effect of a search, especially considering young people's "adolescent vulnerability").
61. See, for example, William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv L Rev 780, 790-91 (2006) (explaining how "the absence of constitutional regulation plays a central role" in the context of police discretion) (emphasis omitted)
62. William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich L Rev 505, 539 (2001) (noting that police benefit from broader criminal-liability rules and providing the example of the Fourth Amendment - under which, if the operative word "crime" includes enough behavior, the police can stop or arrest whomever they wish). But see Stuntz, 44 Stan L Rev at 589-90 (cited in note 2) ("Police officers have limited substantive authority over the suspects they try to catch.").
63. See Ligon v City of New York, 736 F3d 118, 150 (2d Cir 2013) (discussing the "hot-spot policing" phenomenon, in which police make use of data to identify and focus resources on crime-prone areas).
64. For an analysis of the phenomenon of police video surveillance, see generally Olivia J. Greer, Note, No Cause of Action: Video Surveillance in New York City, 18 Mich Telecomm & Tech L Rev 589 (2012).
65. See Megan Annitto, Consent Searches of Minors, 38 NYU Rev L & Soc Change 1, 28 (2014) (discussing cases in which officers misrepresented their ability to get a warrant and "asked for consent repeatedly" after the individuals had refused).
66. See Terry v Ohio, 392 US 1, 10 (1968).
67. See Stuntz, 44 Stan L Rev at 561-62 (cited in note 2) (explaining the balancing of options that takes place and laying out how the government and innocent suspects would bargain for various formulations of search rules).
68. Stuntz, 44 Stan L Rev at 584 (cited in note 2). Note that Stuntz disregarded the Court's stated concern with the diminished expectations of privacy for a regulated business, probably because that explanation is so obviously circular. (If the court did not allow circumvention of the ordinary Fourth Amendment standards, the expectations would reemerge.) See id at 582-83. We ignore this point as well.