Unwarranted, p.3
Unwarranted, page 3
It is a complete failure of democratic governance.
Consider this: In California, there is an entire code of regulations for barbers and barbers’ colleges. Similarly, the Golden State heavily regulates “Roadside Rest Areas and Vista Points,” with precise rules for newspaper dispensing machines. Across the country in Florida, there is an administrative code devoted to (you might have guessed it) the Department of Citrus, which describes the allowable coloration of “Midseason Varieties,” and several provisions set out guidelines for distinguishing a Murcott Honey Tangerine from a Sunburst Tangerine or a Tangelo.38
In neither of these states, though, is there much on the books about warrantless searches. Most policing happens without a warrant, but neither state legislature has seen fit to give anything but cursory guidance to the police, who are left to decide when and how to thrust themselves into people’s lives.39
So ask yourself, which is more important: regulating vaginal and anal searches of citizens by the side of the road, or specifying the size of newsstands and classifying Sunburst Tangerines?
To put it plainly, policing in the United States—from the overzealous beat cop all the way to the NSA—is out of control. That’s not intended as hyperbole; it’s a careful and deliberate statement of fact. And it is assuredly not aimed at the police, who have an incredibly difficult job to do, often without the support they need to do it. The problem is the rest of us.
Call the problem policing without permission. We have categorically failed to offer clear guidance to policing agencies as to what they are to do (or refrain from doing). If anything, we’ve sent mixed messages. We insist that above all we want safety and low crime. But then, when the police do their best to deliver, we start casting blame about the way they went about it. It is we who are at fault, for failing to specify how we wish to be policed, for largely ducking the question altogether.
There is nothing—nothing—more destructive of individual liberty than unbridled executive power, and no greater and more terrifying executive power exists than the power to conduct surveillance and exercise coercive force. The entire history of democratic governance and constitutionalism throughout the world has been one long struggle to devise systems to keep such power in check. That is why, although lumping together the NSA’s intelligence gathering and metropolitan forces’ stop-and-frisk under the rubric of “policing” may seem to be mixing apples and oranges, it’s not. The authority to use force and conduct surveillance is, again, what sets policing apart from the rest of government.
When it comes to policing and its governance, our much-admired system of democratic accountability and transparency is largely cast aside. Policing agencies in this country—from your local police force to the Federal Bureau of Investigation—operate with very little democratic guidance. The typical enabling statute of a policing agency simply authorizes it to enforce the criminal law—but says little or nothing about how to do so. We have adopted a few laws on the “how” of policing—such as federal rules governing wiretapping or the occasional state or local regulations of drones or drunk-driving roadblocks—but these form a woefully incomplete framework.40
You might think that policing is special, different in some way that justifies this shortcut on democracy. But you’d be wrong. To be sure, there are times—though fewer than you think—when secrecy is essential to policing. To the extent that is the case, policing may demand some special procedures. For the most part, though, the free pass on democratic governance given to policing agencies is habit, not necessity. Some police forces, in places such as Chicago or Seattle, have their manuals readily available to the public on the Internet. And there are even cities, like Los Angeles, where policing policy is set by a board of commissioners with regular public input. Just like the rest of government operates.41
Democratic policing can be done; we just don’t do it.
HOW WE GOT HERE
It is not entirely an accident that policing today is left largely free from democratic governance. And yet it’s not like we planned it that way either. Rather, a series of occasional and not fully thought-out decisions, reacting to historical, social, and technological developments, has resulted in the highly militarized and intrusive Leviathan over which we exercise far too little control.
Until the mid-nineteenth century, we didn’t have anything that remotely resembled the organized police forces of today. But soon after the advent of large metropolitan departments, the police became entwined in the sort of municipal graft and corruption that was all too common at the turn of the twentieth century. Cops collected the money that fed the political machine. And so, in order to address that problem, we decided that policing should be separated from politics, and professionalized. Police departments took on their military bearing, and police officers came within the civil service.42
By the 1960s, though, the ill effects of disconnecting law enforcement from adequate public control were so glaring that the idea of community policing—about which we hear so much today—was born. As ghettos burned, and civil rights and Vietnam War protesters battled officers on urban streets and university campuses, it became clear that the police were altogether too autonomous, and insufficiently professional. A presidential commission appointed by Lyndon Johnson concluded that what was needed was a closer connection between the police and their local communities. Many agreed. Cops should get out of their patrol cars and walk the beat, get to know the people they served, help them solve problems. And listen to the local residents.43
But community policing was never entirely popular in cop culture, and was easily displaced. When financial times got tight, and police budgets were cut, community policing officers often were the first to go. Nixon declared the war on drugs in the 1970s; law enforcement agencies went into full battle mode during the crack cocaine epidemic of the 1980s. Just as the drug war appeared to be falling out of popular favor, terrorism provided yet another justification for policing agencies maintaining a war footing.44
And during all of this—over the last three decades or so—a fundamental shift occurred in how we are policed.
Up until the 1980s, policing was largely reactive. It was about finding the bad guys, and locking them up when you did. It was all pretty familiar, and a lack of democratic governance is a lot less glaring when nothing new or different is happening. Police would conduct searches of people and homes, they would take individuals into custody and question them. Even when things went wrong, it didn’t occur to anyone to think an elaborate rule book was needed to try to get them under control.45
Today, though, policing is increasingly complex, and proactive in a way that affects all of us, every day. It is about deterring anyone from even thinking about committing a bad act. That means conducting widespread surveillance, and wielding massive force. Which is why closed-circuit television (CCTV) cameras are omnipresent, we snake through airport security lines and wait our turn at drunk-driving roadblocks, and the NSA collects our data in bulk. In the new policing, departments across the country are ramping up to employ automatic license plate readers and facial recognition software—and soon enough drones—to be able to track us everywhere we go. They are utilizing software to predict where crime will occur next, and by whom. It is also why it has become utterly commonplace to see the police dressed in military fatigues, carrying heavy armament. Policing today is regulatory: it is about shaping behavior on the front end, not capturing crooks after the fact—and we have all become its targets.46
Let’s be clear: Some of these policing practices may be altogether appropriate; others may not. The point is that we cannot begin to know the difference—indeed, as a matter of democratic governance there is no difference—until the citizenry is given a chance to weigh in.
That is what has gotten lost almost entirely from policing.
THE CONSTITUTION OF POLICING
The lesson here is not simply that policing without popular input is a bad idea—though it certainly is. Rather, I argue that as a matter of constitutional law, policing without permission is altogether illegitimate.
For most people, to mention the Constitution and policing in the same breath is to conjure up images of the courts, and judicial enforcement of the Bill of Rights. It is commonly believed that when it comes to the Constitution and policing, the judges are in charge—and should be.
It ought to be evident by now that I believe that common understanding to be a huge mistake.
Our Constitution is about popular control of government. The Bill of Rights was an afterthought, ratified four years following the Constitution itself, because some refused to support the original Constitution without a promise to add these additional protections. What is central under our constitutional scheme, what matters most, is the will of the people—as implemented by the officials we elect and appoint.
In three related parts, this book explains how the Constitution (and, for that matter, many state constitutions as well) should be understood to regulate policing.
Part I of this book is about what I call democratic policing. I suggest that too much of policing today is misguided because we, the people, have failed to take responsibility for it. Undue secrecy and a lack of democratic regulation have led to the poor use, and misuse, of policing power. And I offer some ways to address this.47
Only then, in Part II, will we turn to the Bill of Rights (as well as other amendments to the Constitution that place limitations on policing). And even here, the argument will be that enforcing those rights is not the sole job of courts, which have made a muck of their responsibility. The restrictions on government imposed by the Constitution must be respected by all government officials—under the watchful eye of the citizenry—no matter what courts say is permissible.
Finally, Part III integrates these two aspects of American constitutionalism, popular control and individual rights, explaining how they can help us tackle the great challenges faced by policing in the twenty-first century: technology and terrorism.
WHAT POLICING “ACCOUNTABILITY” SHOULD LOOK LIKE
Despite all the talk about making police “accountable,” policing officials would tell you they already are awash in rules and oversight. Increasingly, Inspectors General, civilian complaint boards, and special monitors oversee policing agencies, both local and federal. And of course there are the courts. Judges have written many of the rules that regulate the police—on matters such as search and seizure, or interrogation.
While all these are forms of accountability, every one of them suffers from at least one of two serious defects. The goal of the first part of the book, on democratic policing, is to make this clear, and explain how to fix the problem.
First, most of what passes for accountability in policing today is not democratic control. There is an altogether appalling lack of transparency; we have far too little information on what the rules of policing even are. In the all-too-rare instances in which policing rules are open to public view, the public’s input simply has not been solicited in formulating them. Civilian complaint boards involve at most a minuscule part of the public, and mostly limit themselves to investigating complaints of police misconduct. Inspector Generals’ offices are not democratic bodies at all. Nor are courts, which are supposed to be independent of democratic control. Even the mayors who can hire and fire police chiefs are no substitute for democratically adopted rules about how policing is to take place.
Closely related, most of the oversight in policing today is after-the-fact review, when what we need are policies put in place before things go wrong. Most oversight is about misconduct, when it is the regular conduct of policing agencies that needs attention as well. That’s how the rest of government runs. Yes, when a police officer shoots and kills a civilian, some official body should look into it. And when a group of government officials decide on their own to start collecting information on all our private telephone or Internet communications, there darn sure should be an inquiry.
But what is urgently needed—and is glaringly absent from much of policing—is not reviews but rules: rules that are written before officials act, rules that are public, rules that are written with public participation.
Legislative bodies could write these rules—and undoubtedly should do more of it—but the policing agencies also could do it themselves. Yes, the police. They are, after all, the experts. That is how much of administrative government operates, by having the relevant agency write its own rules. But most agency rules are both public and fashioned with public participation. Which is to say, after the agency drafts a preliminary version of the rules, the public is invited to comment—and then agency officials revise the final rules to take account of what the public has had to say. There is no reason policing agencies should not act in the same way.48
CONSTITUTIONAL LIMITATIONS ON POLICING
Of course, under our Constitution—and the constitutions of the states as well—democratic rule is not the end of the matter. Which brings us to the second part of the book, about constitutional policing.
Other parts of our federal and state constitutions—typically in a bill of rights—limit what policing officials can do. Chief among these in the federal Constitution is the Fourth Amendment, which governs “searches” and “seizures.” Also relevant are the free speech and assembly provisions of the First Amendment, the Due Process Clause (no person “shall be deprived of life, liberty, or property without due process of law”), and the Constitution’s fundamental guarantee of equality and against discrimination, the Equal Protection Clause.
In Part II I argue that when it comes to interpreting how the Constitution applies to policing, the courts have made an utter hash of things. They’ve failed to require warrants when they should, they’ve watered down the “probable cause” standard in the Fourth Amendment to the point that it fails to serve as an appreciable restraint on who is a proper target of policing and who is not, they’ve allowed the most blatant invasions of person and property, and they’ve done little to address pervasive racial profiling. More than anything else, though, the courts simply have failed to come to grips with how policing has changed over the last decades, from a time when policing was reactive and all about catching bad guys, to today’s proactive monitoring of all of us in the name of deterring crime. In some ways the courts are stuck back in the halcyon days of The Andy Griffith Show, when present-day policing increasingly looks more like the sci-fi thriller Minority Report.49
And so, in a sense, Part II is a prescription to courts on how to get right the limitations and restraints the Constitution imposes on policing. It is about things like warrants, and probable cause, and racial profiling, stop-and-frisk, drug interdiction, roadblocks, and even airport security.
The limits in the Constitution become all the more important given the first part’s argument for more involvement by popular majorities in policing. That is because while democratic governance has its strengths—and is a fundamental requisite under our Constitution—majorities also at times step on minority rights. Indeed, it is fair to ask whether democratic policing will improve things for those minorities—a question tackled in the Conclusion.50 For now, though, two points should suffice. First, leaving policing in the hands of the police and the courts, rather than insisting on democratic participation, has not worked out so well for minorities as it is. It’s time to give democracy a chance, while always remembering that basic constitutional liberties cannot be infringed by majorities.
And second, it’s essential to remember that the prescriptions in Part II are not just for courts, not by any measure. Enforcing the Constitution is the responsibility of all the branches of government: legislatures and executive officials as well. More to the point, the Framers wrote our state and federal constitutions precisely so that we all would understand and be watchful for our liberties. The idea was that when elected officials violated those liberties, the people themselves would serve as a restraint, sounding the alarm and voting those officials out of office.51
WHAT WE GET WRONG ABOUT POLICING IN THE TWENTY-FIRST CENTURY
Finally, Part III puts this all together to tackle the twin problems of twenty-first-century policing: technology and terrorism. It explains how we can make headway on seemingly intractable challenges by combining the ideas of democratic and constitutional policing.
Central to the third part of the book is recognizing that we are off base in some of the most basic ways that we discuss the Constitution and policing. Although these themes resonate most strongly in discussions about safeguarding our national security, the truth is they pervade almost every aspect of policing today.
Security over Privacy
It is often assumed that the Fourth Amendment, the primary constitutional provision governing policing, guarantees privacy. One of the big breakthroughs in Fourth Amendment law supposedly happened in the 1960s, when the Supreme Court concluded that your rights didn’t depend simply on whether the police happened to trespass on or damage your property. “[T]he Fourth Amendment protects people, not places,” the justices said, noting for the first time that what a person “seeks to preserve as private” is worthy of protection as well.52
Unfortunately, this focus on privacy has done more harm than good. It leads people to say, as they often do when arguing that police should not be fettered, “I’ve got nothing to hide.” The British government relied on this logic in a campaign to rouse public support for its vast closed-circuit television network. Their slogan: “If you’ve got nothing to hide, you’ve got nothing to fear.” Or, as Eric Schmidt, the CEO of Google, offered, “If you have something that you don’t want anyone to know, then maybe you shouldn’t be doing it in the first place.”53
None of us should feel guilty for wanting privacy. Some argue that privacy simply can’t be protected in a world in which we give it all up to Facebook, Instagram, and others. As early as 1999 the then-CEO of Sun Microsystems, Scott McNealy, famously said, “You have zero privacy anyway. Get over it.” But polls show that people haven’t gotten over it. Majorities of Americans don’t want stores and online retailers to monitor their online activity or collect data on them. They want more control over their information. And this instinct is right. Lots of things we do, and want to do, and are entitled to do, still may look maudlin or foolish or embarrassing when made public beyond our intended audience. It’s one thing to decide what you want to post on Facebook and another to resist the great personal data grab that is American society. There’s no crime in that, and you should not be made to feel like a criminal for wanting to keep your personal life to yourself.54
