Jeffrey Bellin, Fourth Amendment Textualism
, __ Mich. L. Rev.
__ (forthcoming, 2019), available at SSRN
In Fourth Amendment Textualism, Professor Bellin tackles an age-old question: what is a search? His article takes a deep dive into the text of the Fourth Amendment, how the Supreme Court has interpreted it, and how he would like the Court to return back to the original meaning.
While this paper brings forward a thought-provoking analysis of the Fourth Amendment, it also has the ability to teach the reader about current search and seizure jurisprudence. The article provides students of the constitution familiarity with what a search is and how the Supreme Court has arrived at its current thinking, while at the same time, opening up a slight rift in the common and unshakeable understanding of that familiar terrain.
Bellin’s main contention is that the reasonable expectation of privacy test created in Katz is far too attenuated from the text of the Fourth Amendment and carries too much indeterminacy. This test requires a person to have both an actual and reasonable expectation of privacy in the thing searched. Bellin also attempts to nip in the bud the newly created “trespassory” test from Jones and Jardines. He describes this trespass analysis as in its “infancy” and more “as a complement to, rather than a replacement for, the Katz test [.]” (P. 10 n.49.)
He argues that it is time for interpreters of this Amendment to come back to a simpler understanding and proposes a new test for courts to determine if a search occurred. This textualist interpretation would replace Katz, trespassory searches, third party doctrine, and standing. His test is basically two steps: was there an actual search and was the search of the individual’s person, house, paper, or effect. While this test at first blush appears to follow Justice Scalia’s thinking, in actuality Professor Bellin seems to have combined both textualism and legal realism (i.e., Posner).
In order for a person to have standing in an unlawful search, they must have had both an actual expectation of privacy (subjective) and a reasonable expectation of privacy (objective). This new test, according to the author, was a radical departure from previous understandings of the Fourth Amendment, which generally hinged around the actual words in the amendment and particularly focused on the term “search.” The author believes that this test is “abstracting to a principle underlying the Fourth Amendment (privacy) and then applying that principle rather than the amendment’s text.” (P. 23.) He further argues that the Katz test and its reasonable expectation of privacy requirement is a circular argument because the “privacy we can reasonably expect depends on the privacy the Supreme Court tells us we have.” (P. 24.)
So what is one to do about this allegedly circular reasoning and ambiguous test? The author proposes a simple two (or three?) step process of simplifying what a search is. First, while he appreciates the pre-Katz era for focusing on actual searches and not privacy, he makes it known that those cases never succinctly defined what a search actually was. This could be beneficial because now the author is able to not only define it carte blanch, but also mold it with our technological advances in mind. Essentially, the author believes a search is an examination of an object or space in an attempt to uncover information. His definition is comprehensive yet straightforward. In this paper he parses through these key words – to provide the reader a clear guide as to what a search is. (P. 30.)
The second step is critical. It is not enough that the government committed a search – it is what they searched that matters. Professor Bellin states that the Fourth Amendment is only triggered if “the item searched can fairly be characterized as a person, house, paper or effect. This reflects the text and history of the Fourth Amendment.” (P. 34.) Each of these “things” are defined both by their history and also in a modern view. The author makes an important distinction that “[t]he terms ‘persons, houses, papers, and effects’ are listed in the Fourth Amendment as potential objects of searches: things the police might search. These terms are not search outcomes: things police might find.” (P. 35.) This second step focuses on the actual thing searched and determines if it belonged to the person.
An example that he highlights is that public surveillance cameras are not a search of a person because they have not searched that person but rather have searched the public area and located them. On the other hand, using an infrared camera to look for illicit objects would be a search of that person. The more difficult to interpret term is “effects.” But again, the author uses both the Framer’s understanding of that word (personal objects during that time) with a modern twist (computers, cell phones). Thus effects are all movable, personal property. What are not effects? Intangible objects such as cell phone signals.
The one area where the author and current Fourth Amendment law seem to agree is the third-party doctrine and standing; the author agrees with the Court’s conclusion that these are personal rights. However, they diverge in the analysis. In current Fourth Amendment jurisprudence, a person has standing if they have that reasonable expectation of privacy. This analysis is derived from Katz. On the other hand, the textualist believes that standing comes from the actual words of the Amendment, specifically the phrase the “right of the people to be secure in their…” Under the textualist analysis, the court need not focus on whether or not the person had a reasonable expectation of privacy in the thing searched, but rather was the thing searched his person, paper, house or effect? While this seems to present a clear and straightforward question for a court, it begs the question, how does a court determine if that thing is the person’s? Does the court ask if that person had a reasonable expectation of privacy?
The textualist would also apply this reasoning to Carpenter. In this case, the Court narrowly held that a person has a reasonable expectation of privacy in the data transmitted to a third party (cell phone carrier) and thus a warrant is needed to search that information. However, under a textualist perspective, the reasoning would be different – yes there was a search, and yes these were papers, but unfortunately for the defendant, these were not his papers and thus no standing is granted to him. The author seems to make the distinction between information and papers. Carpenter’s cell phone was data (information) within the carrier’s papers, so it was not protected. However, if a court were to consider his cell phone data not as information but more concretely as “papers” then it would have been protected even though a third party possessed those papers. (A question that will surely be begged: what is the difference between a text message and other cell phone data?)
Thus, the third party doctrine of any Fourth Amendment analysis should not focus on a reasonable expectation of privacy by the person, but solely on whether or not the object/thing was “theirs.”
The paper also goes through several examples to illustrate how a textualist interpretation would apply to modern day scenarios. The author acknowledges that these are only a limited number of examples, as well as that there is never going to be an easy, all-encompassing interpretation of the Fourth Amendment that foresees every situation that could arise.
When a reader hears the word textualism, the late Supreme Court Justice Antonin Scalia quickly comes to mind. However, this textualist idea seems to be influenced in part by Judge Richard Posner – look to the text, follow the original meaning, yet provide for flexibility and practicality. Whether you agree or disagree with the new test that Professor Bellin puts forward, this paper provides the reader with a strong understanding of where our current Fourth Amendment jurisprudence stands. It is also evident that the reasonable expectation of privacy test created in Katz is likely on life support. A quick perusal of the dissenting opinions in Carpenter illustrate some justice’s disdain and dissatisfaction with the test and their desire to follow a textualist approach. A flip in the Court might finally pull the plug.
A number of books and articles have taken aim at America’s mass incarceration debacle. Smart Decarceration, a multi-author edited volume, assumes that the tide has turned. As the editors point out in the first chapter, several states have begun depopulating their prisons, eliminating mandatory minima, and creating more alternatives to prison, a movement sometimes dubbed “Smart Sentencing.” Smart Decarceration is about the sequel. Authored by academics with degrees in criminology, sociology, history, public health and social work, as well as by leaders in community organization, practicing lawyers, pastors, and formerly incarcerated individuals, this book is devoted to picturing what optimal decarceration should look like.
The diverse perspectives provided in Smart Decarceration ensure a nuanced, multi-disciplinary treatment of that issue. But there is also an overriding agenda, perhaps best summarized by Kathryn Bocanegra in her chapter, when she states that “exclusively focusing on reducing prison populations without considering the sustainability of such an effort is potentially dangerous.” (P. 115.)
The first step in realizing a sustainable decarceration movement is to carry out prison population reduction in a meaningful, politically feasible fashion. Nazgol Ghandnoosh notes that while the decarceration trend in the United States began in 2010, “the pace of contraction has been slow: a total decline of 3% by 2014”; she concludes that, at that rate, it will take until 2101 for the prison population to return to its 1980 level. (P. 139.) She proposes an upper limit of 20 years on all sentences, and a professionalized parole process that focuses on risk assessment. In support of this regime, Ghandnoosh states, “[L]ong sentences have little deterrent effect and keep many people imprisoned after they pose little risk to public safety. They not only waste the lives and damage the spirts of the people serving these sentences, they also impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that promote healthier and safer communities.” (P. 153.)
These themes are echoed by several other authors. Ernest Drucker calls for a public health approach to decarceration. Borrowing from the prevention model of health care, he discusses primary, secondary and tertiary means of reducing entry into jails and prisons, ensuring that incarceration does not exacerbate recidivism, and pursuing environmental and other changes that minimize incentives for ex-prisoners to reoffend. Two other chapters, each by multiple authors, recommend that the decisions about entry and release should be aided by actuarial-based risk assessment and risk management tools, if steps are taken to enhance their accuracy and transparency, and if they are used primarily as a mechanism for decreasing sentences and fitting rehabilitation programs to the individual needs of the offender. These types of changes can assuage public fears that shortened prison terms will unleash hordes of dangerous criminals, at the same time they provide offenders with the best opportunity to succeed.
Several other chapters focus on re-entry, which arguably is the single most important decarceration issue, given the huge numbers of offenders who are released (about 600,000 per year, P. 103). The editors, along with Annie Grier, point out in one of their chapters the obvious disconnect between the desire to ensure that released prisoners make a smooth transition into civilian life and the huge number of civil disabilities they face, including ineligibility for housing, food stamps, student loans, professional licensure, certain forms of employment and voting and parental rights. As they note, “addressing criminogenic needs entails increasing access to many life domains, including education, employment, housing, and social life; however, civil disability policies actually exclude access to many of these same domains.” (P. 167.)
Other chapters describe innovative programs for ex-offenders, most of which take advantage of currently under-leveraged resources in the community, ranging from colleges, universities and local businesses to church-, family- and systems-oriented interventions. Particularly noteworthy here is the chapter by two prosecutors, John Chisholm and Jeffrey Altenburg, which describes a host of initiatives in Milwaukee that rely heavily on data and that involve early intervention programs, community prosecution units, community justice councils, “Intelligence Led Prosecution” (focused on high risk offenders), and reinvestment projects. The fact that prosecutors can get on board with these types of efforts makes one cautiously optimistic about the decarceration movement.
Perhaps most distinctive about the book is the inclusion of chapters from formerly incarcerated individuals. Ronald Simpson-Bey, who spent 27 years in prison, asserts that “Those closest to the problems are closest to the solutions.” (P. 55.) His chapter and that of Glenn Martin, another ex-prisoner, detail the impediments they faced after release. But the primary focus of both chapters is to push for heavy involvement of such individuals in leadership positions, not only with respect to the design and implementation of re-entry programs and release-decision-making practices, but also in the manner in which police and prosecutors carry out their roles.
The last chapter, written by the editors and Samuel Taylor and Annie Grier, helpfully summarizes many of the key points. Smart Decarceration is a rich resource for those who want to think through the next steps in criminal justice reform.
- Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. __ (forthcoming, 2019), available at SSRN.
- Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Collective Bargaining and Police Misconduct, available at SSRN.
While riding with officers, conducting interviews and coding policies for my forthcoming book, Camera Power: Proof, Policing, Privacy and Audiovisual Big Data, I was struck by the influence of police unions—or lack of a strong union—in shaping body camera recording policies and limits on using the video to evaluate and discipline officers. Delving into the literature on police unions, I was impressed to read the work of prolific professors using innovative methods to systematically collect and analyze data on the influence of police unions. I would like to spotlight two recent important empirical studies on police unions.
Analyzing a large dataset of police union contracts, Stephen Rushin’s latest article illuminates how collectively bargained protections in the police disciplinary appeals process can impede efforts to address potentially problematic officers. The findings are particularly disturbing and compelling when read in conjunction with an important new study by Dhammika Dharmapala>, Richard H. McAdams and John Rappaport. This dream team of interdisciplinary scholars offers the first quasi-experimental evidence that conferring collective bargaining rights on sheriffs’ deputies is associated with about a 45% increase in violent incidents.
The son of a police leader, Rushin is often at the forefront of cutting-edge empirical questions in policing. For example, do heightened scrutiny and criticism of cops and their departments lead to de-policing—a cutback in the vigor of officers in combatting crime? Rushin has examined the question using U.S. Department of Justice (DOJ) investigations as proxies for heightened public scrutiny and Justice Department settlements as proxies for heightened external regulation of departments. He applied difference-in-difference regression analyses comparing the impact of DOJ investigation and regulation on crime rates compared to control jurisdictions that did not fall under DOJ scrutiny. Check out the article for his findings. Rushin also has analyzed a dataset of 178 police union contracts and illuminated common provisions arising from collective bargaining that can frustrate police accountability efforts. This empirical strategy complements other important work on police unions applying legal analysis and case studies, such as this excellent 2017 article by Catherine L. Fisk and L. Song Richardson.
Rushin’s latest project, Police Disciplinary Appeals, draws on an even larger dataset of 656 police union contracts to reveal how the often-extensive process police officers have to appeal disciplinary sanctions can stymie police accountability. Through compelling narratives, the article illustrates how attempts to dismiss problem officers are blocked and sanctions reduced in lengthy appeals—even when smoking-gun evidence of egregious misconduct is caught on video. Rushin is able to shed light in an area often overlooked because of his impressive data collection strategy. He amassed his large dataset of police union contracts between 2014 and 2017 through open record requests as well as searches of publicly available documents. I have been impressed by the ingenuity and persistence of JD-PhD-trained law professors like Rushin and Jordan Blair Woods, author of the excellent new article Policing, Danger Narratives, and Routine Traffic Stops, in accumulating large datasets using public records requests to offer fresh insights on policing.
Like another prolific scholar, Kate Levine, whose superb new article Discipline and Policing, was featured last month here, Rushin’s work also is valuable in illuminating the internal procedures and regulations of police departments. The article begins with an informative overview of labor and employment protections for police officers coming from (1) police union contracts, (2) law enforcement officer bills of rights, and (3) civil service laws. Rushin then explains how he generated and coded his large original dataset of police union contracts covering municipal police departments in 42 states that authorize police unionization.
Rushin found that the strong majority of these 656 contracts have a similar disciplinary appeals process. Around 73% provide for appeal to an arbitrator or comparable procedure and nearly 70% provide that an arbitrator or comparable third party makes a final binding decision. About 54% of the contracts give officers or unions the power to select that arbitrator. About 70% of the jurisdictions give these arbitrators extensive review power, including the ability to revisit disciplinary matters with little or no deference to the decisions made by supervisors, civilian review boards or politically accountable officials. Together, Rushin’s findings reveal that “arbitrators are the true adjudicators of internal discipline in the majority of police departments” in the study’s extensive dataset. Rushin observes that the police union contracts setting forth these protections are typically negotiated outside of public view or participation. He proposes reforms that would give the public more oversight power and democratic actors more of a role in the disciplinary appeals process.
Rushin’s wide-angle lens view of how police union contract provisions can pose potential hurdles to police accountability is illuminating. For a scientist, the arguments also raise hypotheses that call out for testing via an innovative research design. Dharmapala, McAdams and Rappaport’s new quasi-experimental study rises to the challenge, offering important and disturbing evidence of an association between conferral of collective bargaining rights and an increase in violent incidents in Florida sheriff’s offices.
An innovation of the trio’s study is exploitation of a change in law—a 2003 Florida Supreme Court case Coastal Florida Police Benevolent Ass’n v. Williams that gave Florida sheriffs’ deputies the right to engage in collective bargaining. Collective bargaining proceeded in such earnest that 76% of sheriffs’ deputies in Florida spread in 28 offices were under a collective bargaining agreement by 2008. In contrast, Florida police officers had collective bargaining rights much earlier, beginning in 1968. Because of the contrast, the researchers could examine violent-incident complaints before and after the conferral of collective bargaining rights on sheriffs in 2003 using a difference-in-difference approach. Changes in trends in violent incidents in the treatment group of Florida sheriff’s offices receiving collective bargaining rights could be compared to trends in violent incidents in the control group of Florida police departments unaffected by this legal change (the treatment). This approach allows us to focus on changes attributable to the intervention of conferring collective bargaining rights and control for other factors occurring in the state that might have affected rates of violent incidents.
The investigators found that before Williams the treatment (sheriffs) and control (police) groups had similar parallel trends, an important assumption that must be met for the difference-in-differences approach. After Williams, the number of incidents of violent misconduct rose in the treatment group but not the control group. Moreover, the increase in violent incidents appeared to be sustained more than a decade after Williams (2011-2016 compared to 2003-2010). Interestingly, violent incident also rose in sheriff’s offices that did not enter into collective bargaining agreements (to a smaller magnitude and with borderline statistical significance).
The findings are particularly intriguing because Florida has a statutory Law Enforcement Officers Bill of Rights containing numerous protections for officers, and also is a right-to-work state that allows employees to decline to join unions. Both factors would be expected to dilute the impact of conferring collective bargaining rights because officers already have a baseline of protections and because it is harder to fully unionize a workforce in right-to-work states. Yet the investigators’ findings regarding an increase in violent incidents were of noteworthy magnitude as well as statistical significance. The investigators are collecting Florida collective bargaining agreements to analyze how provisions go above the protections in the statutory Law Enforcement Officers Bill of Rights. Here their envisioned analytical strategies intersect with those pursued by Rushin, showing how both empirical approaches are complementary and enrich our knowledge of these important issues.
Cite as: Mary Fan, The Power of Police Unions
(May 3, 2019) (reviewing
Stephen Rushin, Police Disciplinary Appeals
, 167 U. Pa. L. Rev.
__ (forthcoming, 2019), available at SSRN.
Dhammika Dharmapala, Richard H. McAdams, and John Rappaport, Collective Bargaining and Police Misconduct
, available at SSRN.
If prisons are about keeping prisoners locked in, it is safe to say that they do an equally good job of keeping the public out. Professor Demetria D. Frank’s article, Prisoner-to-Public Communication, explores how prison mail policy does both: The practice of censoring outgoing prisoner mail keeps some speech from ever escaping the prison, and by default, the public is made more ignorant about prison life and conditions. As a result of this censorship, there is less public knowledge and less motivation for greater public oversight of corrections facilities. Frank’s remedy for these twin harms is to provide prisoners with an “unqualified and unfettered prisoner-to-public communication” right as a means of validating prisoner voices and increasing the accountability of the executive branch of government.
The issue Frank raises is critical in the age of mass incarceration, where state and federal penal systems rely on prison as a mainstay punishment for felony crimes. This reliance has made the U.S. a world leader in incarceration. With such wide-scale deprivations of human liberty, one might suspect that prisons would be subject to rigorous external accountability, perhaps more so than any other government institution or agency. After all, prisons are total institutions that govern 100% of an inmate’s existence and make them 100% dependent on the prison. With so many lives in the hands of government institutions, one might think that prisons would be subject to the most stringent regulatory standards—yet this is not the reality. Instead, prison regulatory standards have been declining, and actual monitoring of them is practically non-existent.
Frank opens with a discussion of a California prisoner who launched the 2018 prisoner hunger strike, which the prisoner took upon himself at great legal risk. This prisoner made a cell phone recording that was posted to social media. In the video, the prisoner peacefully urges the outside, free public to examine why prisoners would resort to fasting for so long to protest prison conditions. In one swoop, this prisoner brings Frank’s thesis to life: Because the prisoner could not communicate these grievances to the public directly, he had to resort to covert measures—at great risk.
Such a narrative about prison life is important because it underscores the uphill battles that prisoners face in communicating with the public. As the author notes, prisoners “have inside knowledge about prison life and the social circumstances that result in the loss of freedom. Incarcerated people are also likely the best providers of prison accountability.” From this perspective, the lack of oversight and regulation of prisons works in tandem with prison policies that silence the voices of prisoners and their critiques of the place they call home.
The author makes several convincing arguments in support of a strong prisoner communication right. The first flows from the fact that prison conditions have worsened substantially in recent decades. As reliance on prisons has soared, prisons have had to deal with overcrowding, underfunding, and recidivism. These problems have worked to the detriment of life inside for prisoners, as well as in their home communities.
Next, Frank gives the reader a sense of the general lack of enthusiasm of courts to override prison decision-making. It begins by describing the “hands off” approach that courts took when dealing with inmate grievances, which dominated most of the country’s history. This approach was bolstered by the idea that prisoners were “slaves of the state” and that criminals were subject to “civil death.”
Eventually, courts began to intervene on behalf of prisoners and recognize some rights that were retained in prison. She notes a high point in Procunier v. Martinez (1974), where the Supreme Court held that prison regulations that restrict free citizens’ access to prisoner speech must further a substantial government interest unrelated to the suppression of expression and must be no greater than necessary to protect the government interest involved. Still, the Court would soon retreat from this bold proclamation in Turner v. Safley (1987), which decided the standard of review for regulations aimed at intra-prisoner speech. This standard moved away from Martinez, and instead, asked whether the regulation was “reasonably related” to legitimate penological concerns or were an “exaggerated response” to those concerns.
Frank’s central argument is that outgoing prisoner communications should be governed by the more rigorous Martinez standard, which required that the regulation further an important and substantial government interest, and that officials do no more than necessary to further the interest. This is more demanding than simply requiring that the regulation be “reasonably related,” which, in the corrections context, is practically no standard at all. The author bolsters this prescription by noting that prisoners are politically powerless and are completely reliant on prisons for survival, so they should be granted a right to communicate with the public. This prescription, however, does not propose unlimited communications on behalf of prisoners. Indeed, the right would be applicable only for communications directed to the public, and not communications to other prisoners in other institutions. Moreover, the right would still give way to censorship of prisoner-to-public communications in some cases, such as if they are made for the purpose of forming unions.
Frank’s work impressively underscores the payoff for granting prisoners such a communication right. Perhaps most significant is the claim that a robust communication right will open prison doors to greater accountability; if people are able to know about what is actually going on in prison, then that knowledge could lead to greater public interest and could invite more oversight of prisons. The author also suggests that the right can also lead to greater prisoner rehabilitation, and ultimately, greater public safety. The ability to silence prisoners creates disassociation between prisoners and society, whereas the right to communicate validates their voice and provides dignity and self-esteem, which for some, are building blocks for prisoner rehabilitation. At the same time, for the public, increased potential for rehabilitation may lead to reductions in recidivism and social harm.
Taken wholly, this work is laudable for delving into issues that seldom cross the legal scholar’s mind, let alone become elevated to something worthy of research and writing. The right to communicate is largely a given for people on the outside, but for prisoners, it may be the only way to cast light on injustices inside. Professor Frank fluidly underscores a timely issue that details why stripping prisoners of communication rights also strips the public of an understanding of what it is getting for its money. If the proposition of giving prisoners more power to communicate gains traction, it would be a step toward taming a policy that unnecessarily deprives prisoners of basic constitutional rights and deprives society of a critical check on the government.
Kate Levine’s article Discipline and Policing is the embodiment of timeliness. Its argument, in a nutshell, is that the progressive program to reform policing by making police officers’ individual disciplinary records (PDRs) transparent is ineffective if not counterproductive, exacerbates racial disparities, and promotes carceral logic. This thesis lies at the intersection of two fascinating criminal justice conversations of the day. The first involves the explosion of scholarly and political exposition on how to reform policing from the bottom up—exposition that has dislodged top-down Fourth Amendment doctrinalism from its stranglehold on academic attention.The second regards the growing trend of powerful political actors, plutocrats, and others in authority to invoke progressive civil libertarian and anti-incarceration arguments when faced with accusations of private and public wrongdoing. In turn, progressives call for swift, summary, and merciless discipline in such cases.
The bedfellows have become very strange, indeed. We live in a world where the most authoritarian U.S. president in decades touts the importance of the presumption of innocence, champions sentence reduction, and critiques police violence. Of course, he does so selectively and calls out the FBI for its raids on his nefarious associates but lauds ICE for raiding the family homes of law-abiding immigrants. We live in a world where liberal talking heads night after night praise federal law enforcement officers and prosecutors for casting wide investigative nets, flipping witnesses by threatening long sentences, and seizing lawyer-client documents. Progressive analysts declare with utmost indignance that Trump should cooperate with Mueller because “innocent people have nothing to hide and nothing to fear from police interrogation.”
Discipline and Policing decries progressives’ selective abandonment of civil libertarian, lenient impulses when the stakes involve punishing the left’s preferred “bad guys.” The left’s instrumental, if not situationally ethical, approach to rights, punishment, and privacy is an understandable response to the trend of powerful politicians, business captains, and abusive cops to manipulate procedural protections to avoid fair accountability. Nevertheless, as Levine points out, we should not be so sanguine about this left law-and-order agenda. In the liberal imaginaire, a system that routinely exposes and summarily punishes bad cops will take down powerful abusers and deter future brutality. However, as Levine argues, the distributional reality is not so neat. “Police brutality is a complex, systemic problem that demands a complex and systemic solution,” she warns. “Scapegoating ‘bad’ officers by outing them as having a ‘bad’ record not only ignores the systemic problems of police violence, but also allows police departments to continue crafting the narrative that the department is a well-functioning organization with just a few bad apples.”
Events including the NYC stop-and-frisk litigation, police killings of unarmed black men, Ferguson, Black Lives Matter, and multiple Obama-era DOJ investigations threw wide open the Overton window on policing reform. Yet, in this moment of radical awareness, the proposals have been disappointingly conservative, and in the case of body cams and other technologies, tinged with capitalist interests. Publishing individual officers’ PDRs certainly feels like a drop in the bucket, well short of, for example, New York City’s virtual elimination of stop-and-frisk. The extent to which incremental reforms like training, bodycams, and publishing PDRs impede larger de-policing efforts, as Levine contends, is an open empirical question. Nevertheless, Levine’s argument that such measures take pressure off police departments under public scrutiny makes intuitive sense.
Perhaps the risk would be worth it if publication of PDRs were relatively effective and cost free. Discipline and Policing makes a compelling case that they are not. The article exposes that disciplinary findings are highly discretionary, often lacking in evidentiary bases, and ultimately racially discriminatory. It provides evidence and anecdata that black officers and officers who protest racism are subject to discipline more readily than white officers and officers who are racist. In short, sunlight may be a disinfectant, but it also tends to bleach everything white. Levine further questions whether exposing disciplinary records is effective at deterring police misconduct or boosting community confidence. Levine ruminates that publicizing police wrongdoing might erode police-community relations, increasing the likelihood of violent clashes.
The most fascinating, and no-doubt controversial, moment of the paper comes by way of Levine’s equivalence of police officers with public PDRs and marginalized individuals with public criminal records. Here, we can return to the contemporary controversy over right-wing invocations of due process. During the Kavanaugh hearings, for example, supporters of the jurist decried Democrats for declaring a man “guilty” on the basis of forty-year-old “uncorroborated” accusations. Now-justice Kavanaugh was likened to a poor criminal defendant railroaded by a criminal system bent on finding guilt. Liberals rejoined that Kavanaugh’s liberty was not at stake and he would be just fine without a Supreme Court appointment. Thus, the level of proof of wrongdoing could be relatively low: The testimony of an apparently credible victim would suffice. In other words, society could afford put the burden on Kavanaugh to prove his innocence because a job in the nation’s High Court is a rare privilege, not a right. Similarly, one might counter Levine’s analogy by noting that police officers whose PDRs are exposed do not experience the civiliter mortuus of those with criminal records. Levine, in fact, notes that disciplined officers with public PDRs in Miami-Dade County kept their jobs. One might reasonably argue that publicizing police PDRs is a good way to try to curb misconduct and send a message without ruining officers’ lives forever, much in the way Kavanaugh remaining on the D.C. Circuit might have struck a balance between concerns over sexual assault and concerns over not ruining the man’s life without more proof.
Still, I am sympathetic to Levine’s point that the increasing popularity of allegation-equals-truth arguments and judging individuals’ current character by their past history portends to disproportionately affect the marginalized. I continue to worry that outrage over the Kavanaugh hearings will translate into policies that burden poor men of color accused of sexual assault and those with sex crimes records. Encouraging the public to obsess over individuals’ alleged past wrong-doing, whether in a judicial hearing or through transparent PDRs, feels fully inconsistent with the ban-the-box sentiments currently in vogue with progressives. Moreover, one is left to wonder whether PDR sunshine will pave the way for the widespread exposure of the personnel files of other employees who serve the public (doctors, lawyers, teachers). If police insubordination is ground for summary termination, why not fire faculty who are insubordinate to deans? Benjamin Levin has written compellingly about this problematic phenomenon in Criminal Employment Law.
In the end, I am not entirely sure that PDR transparency will translate into a reversal of ban-the-box sentiments or a greater rush to judge those accused of past crimes. Nor am I fully convinced that PDR transparency creates minimal deterrent value and maximal harm to police officers’ lives. But I am persuaded that the cost of exposing PDRs to sunlight is much greater than meets the eye, and I am grateful to Professor Levine for making me think about it.
Trevor Gardner, Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform
, 46 Fla. St. U. L. Rev.
__ (forthcoming 2018), available at SSRN
Two important law reform conversations are taking place on largely parallel tracks. One is a conversation about criminal justice reform. The other is a conversation about immigration enforcement. Occasionally, those conversations overlap, but for those who work at the intersection of criminal and immigration law, one source of surprise is how rarely this is the case.
Many of the arguments made in support of criminal justice reform forward apply in the immigration context as well. In both spheres, we see racial disproportionality in enforcement, the inability of criminal punishment to deter conduct driven by unaddressed root causes, and the mounting social costs of punitive systems that needlessly separate families and sunder social networks. In both arenas, private companies profit from and lobby for policies that increase incarceration, surveillance and new-widening rehabilitative programs. And yet the immigration enforcement system—and particularly its racial dimensions—are naturalized and normalized in ordinary political discourse. Conversations around immigration enforcement sound like the conversations about criminal enforcement in the mid-1990s (or in the White House now), with a common-sense consensus, against all evidence, that the nation needs to nurture and expand an expensive, discriminatory and dehumanizing system of enforcement. In his article Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform, Trevor Gardner deftly shows how useful it is to integrate these conversations, particularly because the structure of immigration enforcement that the federal government has created over the past ten years essentially ensures that reform efforts aimed at one of these systems cannot succeed completely without reform to the other. This is perhaps not the primary point of Gardner’s article, which is more centrally concerned with developing a theory of appropriate sub-federal resistance to federal criminal enforcement overreach. But the article manages to shed light on a broader range of questions than Gardner takes on.
Gardner’s primary goal is to distill an argument in support of instrumental sub-federal resistance to federal overreach to achieve the goal of criminal justice reform. He first describes the steady increase in federal power over sub-federal criminal enforcement efforts that has taken place over the last forty years. He then presents what he calls a “process model of criminal justice reform.” He describes the process has having four stages. In short, the four steps are: abstention, nullification, mimicry, and abolition. The process is described as linear, but not inevitable; Gardner acknowledges the possibility of events that will disrupt the process.
The first step in the process model is abstention; the sub-federal government chooses to abstain from participation in a federal enforcement initiative. This power of states (and localities) to abstain from enforcing federal regulatory programs is rooted in the Tenth Amendment. Gardner illustrates this step using examples from the “immigration sanctuary movement,” in which various states and localities declined federal invitations and exhortations to expend their own resources to assist in identifying and detaining immigrant residents of interest to federal immigration enforcement agencies.
In the second stage of Gardner’s process model, “the act of abstention effectively nullifies the federal initiative within that particular jurisdiction.” Staying with the immigration sanctuary example, Gardner reveals how each major cities’ abstention from cooperative enforcement requests substantially limited the federal government’s immigration enforcement efforts. As more and more cities enacting non-cooperation policies (perhaps evincing Gardner’s step three: mimicry), the widespread nullification pushed the Obama administration to revise and narrow its enforcement policies. This never reached the level of full federal abolition, but the administration did scale back the Secure Communities program and replaced it with the Priority Enforcement Program, which involved a greater degree of collaboration and negotiation with local law enforcement. (Of course, as Gardner notes in his introductory section, his process model does not necessarily proceed in linear fashion in all cases, and that has been true in the area of immigration enforcement. The Trump Administration revived the Secure Communities program and scrapped the more cooperative PEP model. But this has only prompted more localities to abstain and nullify, with a significant dampening effect on federal enforcement efforts.)
Third, after abstention and nullification, other jurisdictions mimic the choice to abstain, widening the scope of nullification. To illustrate this process of mimicry, Gardner uses the example of section 908 of the Patriot Act, which required state and local officials to be trained in intelligence gathering in the course of their duties and instructed the US Attorney General, in coordination with the Central Intelligence Agency, to train police in the identification, circulation, and interpretation of foreign intelligence data. Numerous towns and cities in New England—and later, elsewhere—responded by passing ordinances in opposition to the measure that cited civil liberties concerns. Gardner argues that as more and more localities enacted these ordinances, their work served as a cultural recoding. Localities offered new cultural frames through which to understand notions of public security, and in so doing, they laid the groundwork for broader systemic reform.
The final step in Gardner’s process model is abolition. At this stage, the federal government, “upon recognizing the scope of enforcement nullification and a corresponding challenge to its own credibility regarding the issue of public security, may choose to abolish the policy underlying the opposed initiative.” The cleanest example of this is the repeal of Prohibition which Gardner unpacks. He also notes that federal enforcement policy around marijuana laws has not moved toward full abolition, but suggests that such a move is possible.
The final part of Gardner’s paper offers his theoretical intervention. To mediate between William Stuntz’s extremely pessimistic view of the federal role in criminal justice policy and Stephen Schulhoffer’s responsive, pessimistic take on local criminal justice policy, Gardner advocates for instrumentalist—as opposed to ideological—sub-federal resistance. Gardner first notes the limitations of “local” criminal justice policy. Drawing on the work of Evi Girling and other criminologists, he acknowledges that “[l]ocal sensibilities regarding crime had less to do with local criminal activity and more to do with national crime politics and the criminal enforcement campaigns that flowed from these politics.” Local crime policies generally are responsive not to local conditions but to local understandings of received, packaged narratives about national and international threats. To remedy this, Gardner argues for local policies that reflect “healthy” sub-federal skepticism toward the “federal public security agenda” coupled with “more local democratic accountability” to impede unwanted, sub rosa participation of local actors in unpopular federal enforcement schemes.
Gardner acknowledges that a systemic tolerance for local skepticism could also lead to breakdowns in enforcement around environmental protection and civil rights, but he suggests that the federal government has the tools to avoid this problem. He uses the Department of Justice litigation against Sheriff Joe Arpaio as an example, noting that “in the same political moment in which cities and counties passed immigrant sanctuary policies in an effort to aggressively oppose police participation in the enforcement of federal immigration law, the federal government successfully challenged Sheriff Arpaio [for the civil rights violations he perpetrated in his excessive immigration enforcement campaign] in federal court.” This example does illustrate the important point that the federal government has the oversight tools to curb some police misconduct. But it is important to acknowledge that such resources are limited and that many abusive officials were not prosecuted in this period. Only the most egregious actors—or those in spaces where local advocates are mobilized and heard—are likely to get the kind of federal attention that was lavished on (the now-pardoned) Sheriff Joe. And as Gardner’s own examples illustrate, each locality has the capacity effectively to nullify certain enforcement efforts that it views as undesirable, and it seems unlikely that the federal government can corral all of these actors through costly litigation, even assuming that doing so is a federal priority.
Ultimately, it is not clear that Gardner’s answers to the fears of localism are wholly reassuring. But his paper is important for its contribution to thinking about the process by which localities shape criminal (and immigration) law and drive law reform. In particular, his insight into how local opposition can “recode” national narratives around public security really helps to make sense of the significance and the mechanisms of contemporary local enforcement resistance.
Cite as: Jennifer Chacón, Local Resistance and Criminal Law Reform
(February 8, 2019) (reviewing Trevor Gardner, Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform
, 46 Fla. St. U. L. Rev.
__ (forthcoming 2018), available at SSRN), https://crim.jotwell.com/local-resistance-and-criminal-law-reform/
Thomas Ward Frampton, The Jim Crow Jury
, 71 Vand. L. Rev.
1593 (2018), available at SSRN
This article challenges the practice of non-unanimous criminal jury verdicts in Louisiana. In a certain sense, the article was irrelevant, moot, by the time it saw print. This is not because, say, it was about an election that was already over, or made an argument that the courts had definitively rejected. Instead, the claim in this paper was so factually, legally and historically compelling that even in draft form it spurred concrete action; thanks in part to this paper, the policy it analyzed was both declared unconstitutional by a court, and repealed by the voters.
The article carefully recounts the history of the substantial elimination of African Americans from juries in Louisiana after Reconstruction. African Americans were, of course, a major part of the population of most of the former Confederate states, and amounted to a majority in Louisiana, Mississippi, and South Carolina. As Frederick Douglass wrote, “the liberties of the American people” depended on “the Jury-box” as well as “the Ballot-box,” if allowed to serve on juries, there was the danger that African American defendants would get a fair hearing, and that Whites (and White officials) accused of crimes against African Americans could be convicted. These were risks that White supremacists could not accept.
The Louisiana Constitutional Convention of 1898 was part of what the Supreme Court described in Hunter v. Underwood as “a movement that swept the post-Reconstruction South to disenfranchise blacks.” As the president of the convention explained, the aim was “to protect the purity of the ballot box, and to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.” The constitution that resulted also eliminated jury trials for misdemeanors, provided for a jury of five for low-level felonies, and a jury of 12 for serious felonies, only 9 of whom would be required to agree in order to render a verdict. Were non-unanimous juries part of the movement to eliminate African American political power, or a coincidental good-government reform or experiment? The article notes that the records of the convention revealed no explicit racial motivation for this change. But the tale was told by other sources, such as newspaper reports supporting non-unanimous juries as a way of ensuring convictions of African Americans charged with crimes, and thereby avoiding the necessity for lynching.
If there is little question that Louisiana’s 1898 convention was intended to undermine African American rights, there is also no doubt that the provisions it put in place continue to have that effect. The article analyzed a dataset compiled by journalists, and concluded that “black jurors are dramatically more likely than white voters to cast ‘empty votes’ (i.e., dissenting votes that are overridden by supermajority verdicts). Black defendants are also more likely than white defendants to be convicted by non-unanimous verdicts.” The dataset also shows that African Americans are disproportionately eliminated from juries through prosecutorial preemptory challenges. As a result, in Louisiana African Americans can often be convicted, and Whites acquitted, without regard to minority views.
Well, they could; anyway, split juries are no more. In State of Louisiana v. Maxie, an individual had been convicted by a non-unanimous vote after the panel’s sole Black juror held out for acquittal. Maxie’s enterprising lawyer had heard about Professor Frampton’s paper, and filed a motion challenging the conviction. Based on Professor Frampton’s work, in October, 2018, a court declared non-unanimous juries to be unconstitutional, because they had the purpose and effect of discriminating against African Americans.
Meanwhile, this fall the Louisiana voters had before them a proposal to eliminate non-unanimous juries. Many media outlets quoted Professor Frampton and his work in support of the idea that non-unanimous juries were a vestige of Jim Crow that had to go. On November 6, 2018, voters approved the change by an almost 2 to 1 margin. Now, Oregon and the U.S. military court-martial system stand alone in allowing criminal conviction by non-unanimous juries.
We live in the midst of a great wave of reforms of the penal state. Much of it seeks a sharp break with recent decades of penal policy aimed at supersizing imprisonment in the name of incapacitation and control. Some observers, including this one, have been optimistic about this wave of reform for a variety of reasons. For the first time in decades reform is being normatively backed up both by social movements and federal court orders (although after Justice Kennedy’s departure the future of the federal courts are in doubt). Growing fiscal demands on states, magnified during the Great Recession, have finally forced a reckoning with correctional costs. Correctional officials in many states are talking about education, rehabilitation, and reentry with an enthusiasm not seen since the 1970s. When Policy Comes to Town by Andres Rengifo, Don Stemen and Ethan Amidon is a sobering reminder of the power frontline correctional workforces and their supervisors have to resist reform and how many discursive resources they have to define away that resistance.
The research grew out of an important change in Kansas correctional philosophy intended to reduce the state’s reliance on mass incarceration in favor of more effective rehabilitation and reintegration guided by risk assessment. The reform, dubbed the Kansas Offender Risk Reduction and Reentry Plan (KOR3P), was promoted as a change in orientation shaping the whole system. The rhetoric associated with the program was a sharp break from the model of control and containment that had guided Kansas (and many states) during the era of mass incarceration. Nor was the reform only about rhetoric, new staff focused on reentry were hired, and frontline staff, particularly parole agents, were encouraged to be more innovative in connecting released prisoners to their communities. The authors took advantage of real-time access to Kansas correctional staff (frontline, supervisory and management) to explore how correctional workers thought about reform and how they articulated their own relationship to it. They were given unprecedented access to prisons and parole offices throughout the state, where they undertook extensive qualitative interviews and focus groups with Kansas correctional staff and managers, ultimately gathering data from over 500 informants (far larger than the typical qualitative study of corrections). The result is the closest look ever at a correctional system going through what its leaders view as a paradigm shift.
Working in the broad narrative tradition of sociological criminology associated with the likes of Erving Goffman, the researchers develop a productive schema for mapping how the discourse of resistance takes shape over time in a correctional bureaucracy in transition. The researchers were also able to gain some insight into the success of the reform program through examination of documentation and interviews with supervisors and managers. Resistance discourses among Kansas staff took three major forms: denial, dismissal, and defiance. Deniers tended to assert that the reform was nothing new at all and suggested no change would be necessary in how they did their jobs. Others recognized that reform implied change but dismissed reform as certain to fail for a variety of reasons (too narrow, too superficial, won’t last). Finally, those prone to defiance recognized that reform might actually happen but opposed it as wrong (usually because it would undermine public safety or the security of the institutions).
In probing their qualitative data, the authors recognized a variety of different frames within each mode of resistance. Some resistance is pragmatic, framed in terms of how the institution and its agents would actually cope with reform. Other expressions are framed normatively, assailing reform for its misguided values. Finally, much resistance, and particularly at the bottom of organizational structures, is mostly expressive, designed to produce emotional release but ungrounded. Perhaps not surprisingly, the resistance frame that the authors found to be most connected to actual obstruction of reform was pragmatic, while expressive resistance seemed unrelated to action.
The research, like all empirical research, especially in a correctional setting, has important limitations. The authors were not able to directly observe or measure resistance to implementation, but had to rely on interviews with their informants and some observations to draw associations. Race and gender are unmentioned (one assumes as a condition of access). Even so, “When Policy comes to Town” provides us with unusually sophisticated access to the thinking of a group of actors whose power will undoubtedly shape the future of any major reforms of criminal justice in our time, i.e., frontline justice system workers and their supervisors and managers.
There are also some substantive lessons for reform that may well apply to other parts of the carceral state in addition to corrections. While emphasizing change, the Kansas program also embraced risk assessment as a crucial continuity with the old model of control and containment. Risk was now supposed to be used to identify services and interventions that could overcome them to achieve reintegration, rather than just to set levels of confinement. But the language of risk also allowed for denial and dismissal of change. Risk assessment today looks like a winning way to package reform as safe and secure (not just in reentry but bail, policing and many other issues), but in reinforcing the underlying logics of mass incarceration risk tools may be no exit at all. Second, reforms that are big on rhetoric and short on operational changes are most vulnerable to resistance. The Kansas policy shift was filled with very broad pronouncements and which addressed the whole organization but its most significant changes and interventions in actual practice fell narrowly on a much smaller portion of prisoners, parolees and staff. The resulting gap fueled both denial and dismissal. This is another lesson that applies across the carceral state. If you want to achieve buy-in from always cautious frontline workers and supervisors, provide them clear guidelines on what doing a good job looks like under the new regime. Telling people to innovate may work well in start-up culture, but in bureaucracies shaped by strong fears of criticism for failing to prevent crime, measurable metrics of reform success are indispensable.
Jotwell’s Criminal Law Section wishes to thank Professor Donna Coker for being a founding editor of the section and for her many years of excellent editorial work as she steps down as co-editor of the section. We are grateful that Donna will remain a contributing editor. We also announce with excitement that Professor Jennifer Chacon of UCLA Law School has agreed to become the new co-editor effective immediately. Professor Chacon is a leading scholar of criminal law and immigration law who recently joined the UCLA faculty from UC Irvine.
Josephine Ross, What the #Metoo Campaign Teaches About Stop and Frisk
, ___ Idaho L. Rev.
___ (forthcoming 2018), available at SSRN
Josephine Ross’s article, What the #Metoo Campaign Teaches About Stop and Frisk, provides a unique and startling insight into the invasive experience of police body searches, and the psychological damage that can result. One of the law’s central roles is to limit the power of government officials (among others) to interfere with the public by prohibiting state officials from engaging in certain offensive acts. This rule-of-law role is especially important when government officials, like the police, are granted enormous material and normative powers to inflict physical harm and stigmatize civilians through the criminal law. The rule of law is even more important when many of the people most likely to come into contact with the police are already vulnerable thanks to their precarious status in society.
A core limit on the rule-of-law check on police power is accountability. Sometimes, prosecutors simply do not want to punish the police, for a variety of reasons. On other occasions, police misconduct is hard to spot, because so much of policing is low visibility. The police know this. Jerome Skolnick’s celebrated formulation of the problem, in his book, Justice Without Trial, called this a battle between the rule of law and the police’s order-maintenance role. All too often, Skolnick (and most policing scholars) revealed, the police depend upon low-level acts of harassment, rather than the criminal law, to maintain order and fight crime. And while that harassment is often high-visibility in relation to the civilian subjects of their authority, it is low-visibility in relation to the legal officials who could call them to account, as well as the general public, who generally do not know (or do not want to know) what the police are up to on the street.
As Josephine Ross reminds us in her fascinating article, these features of low public visibility, low institutional accountability, but high visibility to the tormented victims of harassment are precisely the features that police harassment shares with the sort of sexual harassment called out by the #metoo movement. The #metoo framework reveals that sexual assault and sexual harassment is something that lots of people know about, but no one talks about, except perhaps in whispers. Supervisors are unwilling to regulate their star performers and tolerate a culture of harassment and intimidation in which the onus is on the victims to avoid compromising situations, often at the cost of important, career-enhancing, social interactions. In a culture that tolerates this sort of behavior, the targets of harassment know that complaining has no effect at best, and at worst, produces severe career consequences.
Professor Ross’s article has, at its core, a powerful insight. Frisks, she argues, impose similar types of intrusion upon the public as sexual harassment, in ways that are both asymmetric and arbitrary. The frisk’s asymmetry consists in the response of the police and the suspect to the sort of invasive touching that is euphemistically referred to as a “pat down.” The police are taught to fear weapons concealed in sexualized spaces: between buttocks and breasts, and in the groin area. They are trained to target these areas, and feel for weapons, in ways that the officer may not regard as sexual, but which the suspect often experiences as sexualized. As Professor Ross reveals, to the subject, “it feels like a sexual violation, but the officer may be simply following his supervisor’s orders, doing what he is trained to do.”
As in the case of sexual harassment, the practice is widespread, well-known by the victims, often invisible to the public at large (who are likely to discount the scope of the practice) and commonly tolerated by police chiefs and prosecutors who are aware of the problem but unwilling to intervene to enforce the legal prohibitions on this form of workplace power. Police touching of sexual parts of the body effectively communicates the vulnerability of the person searched, and submits them to stigmatization and humiliation. In the context of mass frisking, as a consequence of aggressive stop-and-frisk policing, some members of the public are subjected to a particularly degrading form of physical dominance and control.
Professor Ross’s article opens up an aspect of policing hidden in plain sight on the pages of the law reporters. In two cases, at the beginning and at the end of the Warren Court’s expansion of Fourth Amendment regulation, the Court addressed policing in the context of intimate intrusions upon the suspect’s body. Most famously, perhaps, Dollree Mapp attempted to hide a purported warrant in her bosom. In the words of the Mapp v. Ohio Court, “A struggle ensued in which the officers recovered the piece of paper and as a result of which they handcuffed appellant because she had been ‘belligerent’ in resisting their official rescue of the ‘warrant’ from her person…a policeman ‘grabbed’ her, ‘twisted (her) hand,’ and she ‘yelled (and) pleaded with him’ because ‘it was hurting.'”
At the end of its Fourth Amendment criminal procedure revolution, the Warren Court, in Terry v. Ohio, returned to the issue of intimate physical touching by law enforcement officers. In describing a frisk, the Court noted that “(T)he officer must feel with sensitive fingers every portion of the prisoner’s body. A through search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.'”
A frisk, the Court recognized, “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” Id. at 17. Put differently, encounters with the police, especially frisks conducted as part of a Terry stop or an arrest, place the suspect in a particularly vulnerable position.
Police encounters with the public come in all shapes and sizes, from brief visual or verbal interactions to deadly shootings. For many members of the public, the encounter, even if just a stare from a police officer in a high-crime neighborhood, may be enough to remind them of their, or others’, past experiences; and give rise to the fear and deference that comes with trying to avoid or placate the powerful. Little wonder that some people flee.
Eric Garner, as Josephine Ross reminds us, did not run. Instead, Eric Garner stood his ground, and said “Every time you see me, you want to mess with me. I’m tired of it. It stops today…Please just leave me alone.” (P. 6-7.) Ross’s revelatory account of the fatal interaction reveals that Garner, like Dollree Mapp, had been the victim of the sort of physically intrusive touching envisaged by the Terry Court.
“Seven years earlier, [Garner] filed a civil rights lawsuit against another police officer for performing a strip-search on him in public during a pedestrian stop. [During the frisk,] the officer performed a ‘cavity search on me by . . . digging his fingers in my rectum in the middle of the street.…the injuries I received was to my manhood…'”
Professor Ross allows us to see the interaction between Eric Garner and Officer Daniel Pantaleo in a completely new light. Garner, the victim of what felt to him like a sexual assault, knew he was in a vulnerable position. He knew what might happen if the police touched him, and simply wished to walk away. But norms of race, gender, and police practice worked against his attempt to reason with the police. His past trauma and physical precariousness was hidden behind his large frame, conveying a form of hypermasculinity that undermined his credibility in conveying his psychological fragility. Particular police policies encouraged the police to interfere, including”third-party policing,” which leverages shopkeepers to report minor crime, and New York’s embrace of broken windows’ intolerance of minor street disorder to ensure enforcement of these ordinances. Garner’s failure to respect the officers’ command presence likely constituted a significant factor in police escalation; his demands were taken as resistance to the street authority of the police.
The rule-of-law limitation on police power is supposed to make the public less vulnerable, by setting out clear rules of engagement and ensuring that the civilian and police officer enjoy an equal standing before the law. But the ability to engage in low-visibility, sexually-intrusive interactions entrenches a different, more arbitrary, set of norms that enforce precariousness. These unwritten rules of the encounter are, like the responses to workplace sexual harassment, repeated by the whisper network among the vulnerable to avoid contacts with harassers. Like the Hollywood practice of powerful men interviewing vulnerable women in hotel bedrooms, Professor Ross shows that the frisk is, on its own terms, ill-fitted for the purpose it is supposed to serve. The cost to the public is not worth the benefit to the police: the amount of information generated by these “forcible encounters” (as Justice Harlan called them in Terry) is small and unlikely to dispel the suspicions of a persistent officer. Professor Ross’s conclusion is that, because the law cannot regulate police power by setting rule-of-law limits on its use, the law should simply prohibit that practice. The power of Professor Ross’s article, as with the #metoo movement itself, is that whether or not we agree with all of its prescriptions, we can no longer avoid recognizing and addressing the practices that produce this form of harassment.