Shawn Fields’ The New Public Safety: Police Reform and the Lurking Threat to Civil Liberties, which will be published by the University of California Press in September, is a brave and wise effort to envision a post-DeFund the Police world. While the defund movement has, at best, been a mixed success, some municipalities have experimented with de-policing routine interactions with people who are unhoused and mentally ill, authorizing civilian “violence interrupters” to roam the streets, and handing over traffic enforcement to unarmed officials. In The New Public Safety, Fields endorses these developments but also cautions that, without regulation, they will become simply a new version of policing, one that may look “soft” but in fact is not. At the same time, he argues that, with regulation, soft policing is preferable to the goal of entirely dismantling government-oriented responses, a goal that is currently popular in some circles but, as Field shows, goes too far.
Chapters One and Two of the book summarize current policing disaggregation trends. These chapters are full of statistics and disturbing stories that demonstrate why it is a bad idea to have armed officials—trained in the use of force and charged with detecting and stopping crime—function as first responders for vulnerable people in trouble and as enforcers of low-level infractions. This part of the book also details how specialized agencies charged with handling specific types of crises, such as homelessness, psychiatric emergencies, and social service crises, can, in theory, do a better job than the police at promoting public safety. Chapter Two ends by describing the views of abolitionists, who aver that replacing police with other government officials will simply reintroduce today’s carceral and exploitative responses in a different form. While Fields recognizes that possibility, he disagrees with the abolitionists’ goal of eliminating both traditional and soft policing and outlines what needs to be done to avoid the outcomes they fear.
Chapters Three and Four starkly demonstrate that Fields is not blind to the dangers of soft policing. In those chapters he catalogues instances of “social workers who abuse clients, psychiatrists who hospitalize high-functioning patients in gulags, medical personnel who violently assault the infirm, and homeless ‘outreach’ teams who sweep away entire communities without providing adequate alternatives.” He acknowledges that alternatives to arrest-by-police can still lead to unlawful use of force and custodial confinement and that social welfare programs can serve as opportunities or even fronts for collection of criminal evidence. But the solution, he asserts in the final chapters of the book, is not to abandon these alternatives but to ensure that the personnel in charge are completely independent from crime-fighting.
First, Fields emphasizes, these other government agents must be “disentangled” from the police. That requires, he says, “firewalled emergency hotlines” for these agencies, authorizing civilian agency response without police backup unless and until the agency specifically requests police presence, and limiting when the civilian responder “can call police or share details with the police, especially when illegal drug use, camping, or other nonviolent acts associated with these underlying conditions are present.”
The more important part of the book, however, is its shocking documentation of the fact that, under current constitutional doctrine, alternative responders are often given much more leeway than police when it comes to invading privacy and using force. Fields shows how, in the few cases that litigate the issue, courts often hide behind the notion that, if these alternative agents are not engaged in crime-fighting, they either don’t need to worry about the Fourth Amendment or at most need only abide by a watered-down special needs regime. Thus, as a constitutional matter, courts allow intrusions into homes (and tents) on mere suspicion and permit the use of excessive force with impunity. While non-constitutional remedies are available for some of this misconduct, the presence of immunity doctrines, the absence of attorney fees, and the difficulty of obtaining injunctive relief often found in state tort systems make them ineffective substitutes in many cases.
Fields also calls out the current trend toward broadening civil commitment standards to allow involuntary hospitalization and medication even of those people who are not imminently dangerous to self or others or unable to care for themselves. He rightly contends that, because it involves a seizure, detention of a person with mental illness, even under emergency circumstances, should require probable cause; it is high time the courts recognize that the Fourth Amendment applies to state efforts to detain people with mental illness. Similarly, medical personnel responding to emergencies and agencies charged with relocating homeless encampments are engaging in seizures and searches that should be subject to constitutional overview.
To discourage the deputization of these alternative responders by the police, Fields also argues that, in the absence of probable cause, evidence found by social workers making welfare checks, mental health professionals responding to calls for help, and housing agents monitoring the tents of the unhoused should be excluded from criminal trials. According to Fields, “[e]xcluding such illegally obtained evidence would protect citizens from alternate responder overreach, deter such misconduct, and promote a primary goal of the new public safety: disentangling nonviolent, noncriminal conduct from the tentacles of the carceral state.” Fields recognizes that, given the Supreme Court’s decision in Virginia v. Moore (holding that exclusion is not required for violations of state law unless the Fourth Amendment is also violated), mere state regulation along these lines will not be enough. Instead, rejecting Moore, he argues that the full force of Mapp v. Ohio needs to be leveraged to prevent soft policing from becoming a pretext for criminal investigations. To further aid in that endeavor, he argues, the motivation for searches and seizures should not matter. Proof of an “objective intrusion” should state a constitutional claim even if the government actor doing the intruding is acting with benign, non-investigative motives.
In his last chapter, Fields suggests that both the move to disaggregate policing and his call for better regulation of soft policing should appeal to all points on the political spectrum. Whether or not that is true, he has identified a middle road between current practice and abolition that makes eminent sense.
