Fixing American Policing
Adam J. McKee
CHAPTER 5: Procedural Fairness
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
This seemingly simple concept is very complex in both its legal and ethical connotations. A significant element of the legal landscape that increases its complexity for officers is the dynamic nature of the law of police procedure. Courts are in the business of balancing the larger social control objectives of the criminal law with the civil rights protections guaranteed by the Constitution. This balancing act is further complicated by the winds of political and social change and advances in technology.
The complexities of constitutional and procedural law strongly suggest the need for higher education in law enforcement (as we advocate further in the Professionalism pillar). They also suggest a curricular alignment with both law and social scientific theory and methods, rather than choosing one or the other as an emphasis, as most programs do as an artifact of the development of criminal justice as an independent academic discipline.
A significant facet of procedural fairness that the traditional model of policing entirely overlooks is that “police are to carry out their responsibilities according to established policies” and that those policies “must reflect community values” (President’s Task Force on 21st Century Policing, 2015).
The emphasis of police procedure has always been legal, relying almost exclusively on constitutional rules established by court cases. This suggests that policing must optimally exist within a legal framework that police officers understand, but must also be circumscribed by community values. In other words, police must learn that just because a particular strategy is legal does not mean it is the best course of action. Both fundamental fairness and effectiveness in the performance of these diverse duties of community police officers demand broad discretion, as does effectively devising solutions to community problems.
Modification and expansion of procedural rules in an effort to restore legitimacy to police within communities will ultimately fail. That is, creating more abundant and precise procedural rules will solve nothing. Formal policies and guidance documents are valuable tools, but a dedication to ethical principles and a departmental culture amenable to the formation of meaningful partnerships are the most promising solutions in the long term. We believe that the President’s task force (2015) relies too heavily on “policy and oversight” in fostering change. Systems of officer accountability must be improved, but policy alone is too limited to effect such change.
The epiphany of the protests in the wake of George Floyd’s murder is that the public no longer has any faith in the government’s use of the word “reform.” Like the word “awesome,” incorrect common usage has destroyed the original meaning. Crimes to “defund the police” suggest that minor tweaks to procedural rules are no longer sufficient to appease the masses. This invites officers to become amateur lawyers seeking procedural loopholes to achieve the wrong ends. The best case study of this phenomenon in recent history is “stop and frisk” policing.
Stop and Frisk
The Supreme Court of the United States long ago recognized that police officers do a dangerous job, and when they have a reasonable belief that they are in danger, they can act on less evidence than would be required to arrest someone. In the landmark case of Terry v. Ohio, the SCOTUS said that officers could pat down a person’s outer garments to locate any weapons they may have of those officers have a reasonable suspicion that the person may be armed. That’s the extent of the authorization: To look for deadly weapons.
Also note that this legal permission to search for weapons (not drugs or other contraband, just weapons) requires evidence to be legal. Something has to give the officer reason to think the person has a gun or other weapon, and that suspicion must be reasonable. In other words, most reasonable people would believe that what the officer saw proves the person has a weapon. Note the Court’s reason for making this type of limited search legal: The big idea is to preserve safety. It is expressly not intended to be a workaround for the Fourth Amendment that officers can use to look for evidence of a crime. That type of search requires probable cause, the same degree of proof necessary to make an arrest.
In several urban centers (most notably NYC), the “stop and frisk” rule established under Terry morphed into a systematic shakedown of citizens that tended to focus on communities of color. These departments encouraged officers to stop and question pedestrians in specific “high crime areas” as well as increasing the frequency of “frisking” these individuals. This practice sparked widespread debate as to the legality and legitimacy of the practice. Many believed that it effectively criminalized being black in public.
Such violations of Fourth Amendment rights probably do have an impact on the number of crimes that become known to police, especially when those cries involve the possession of contraband. This real question isn’t whether the method is useful in detecting prohibited items, but whether a disregard for the Constitutional principles of privacy is worth the gain. For a profession that is sworn to protect and defend the Constitution, the method seems a bit hypocritical. That hypocrisy is not lost on the affected residents; when cops are willing to violate the law to enforce laws that are already unpopular, police credibility and legitimacy are degraded.
Aggressive stop-and-frisk strategies have been superficially studied, and those anecdotal results suggest that pedestrians who are stopped and frisked by police tend to view the encounter as unjustified. They tend to feel that they are the victims of unjust and overly aggressive police tactics. There is little argument that the effects of such policies are most pronounced in communities of color. Recall from our previous discussion of how crimes get resolved by police that citizen’s cooperation is necessary. Thus, the violation of the spirit of the constitution has a chilling impact not only on police-community relations but also on the ability of police to resolve serious crimes.
While the legal status of aggressive stop-and-frisk programs are legally dubious, we find in the practice and example of the idea that just because something is legal for the police to do doesn’t mean it should be done. Stop and frisk was authorized by Terry to ensure officer safety. While that particular use is probably a good idea, it was never intended by the courts as an enforcement practice designed to catch bad guys. The constitution is critically important in circumscribing police conduct, but the dictates of community policing must be kept at the forefront of police practice.
A fundamental aspect of the police culture is that it tends to be legalistic in nature. For many departments, procedural laws amount to rules that can be gamed in the never-ending quest to catch bad guys. This points to some important leadership changes that must occur if community policing is to prosper within a department. Police leaders must provide clear expectations within a department, and the principles of ethics and respectful behavior toward citizens must be reinforced. As we argue in more detail later, police recruits should be selected based on a service orientation and be representative of the communities that they serve. Diversity of backgrounds and perspectives is hugely important. Also, leaders must seek the advice and consent of the public in their enforcement priorities. Using procedural laws “creatively” to aggressively enforce unpopular statutes is wrongheaded and does significant damage to police-community relations.
This danger also points to the necessity of systems of accountability that actually work. In many jurisdictions, public trust in the police does not exist at all (at least outside of affluent, white communities). We develop this idea in more detail later, but a good start is to create systems of documenting police encounters with citizens and actually analyzing and using that data in performance evaluations and the investigation of misconduct allegations. Continuing education in procedural law is often touted as a solution to many of these problems, and we do not deny that this is appropriate training. It will have a minimal impact, however, if that knowledge is not filtered through the lens of a positive police culture dedicated to improving communities rather than catching bad guys.
Genuine respect for the spirit of the Constitution among individual officers can go a long way toward accomplishing the objectives of community policing. Leaders must appraise the performance of individual officers on metrics that matter, and this change must be clearly communicated to individual officers if it is to be internalized in their behavior on the streets.
Towards a Better Way
Procedural justice (also called procedural fairness, as we have above) is a cost-effective, evidence-based best practice. The basic idea is that the public’s perceptions of the justice system in general, and the police specifically, are tied more to how fair the process seems than they are to how fair they perceive the outcomes. In my early days as a deputy, I was assigned the duty of transporting a career criminal back to prison for another stent. When transporting, I tried to get a sense of the prisoner’s demeanor before we embarked. Often, I would simply ask whether we were going to have any trouble. This particular prisoner explained that we wouldn’t have any problems because we both “got a job to do.” My job was to take him to prison, and the prison was just a cost of doing business for him. Most often, problems arise, even with the most hardened criminals, not because of police contact but with the quality of that contact. Mutual respect goes a long way in keeping the peace and gaining compliance most of the time.
Legal thinkers have identified several important dimensions of procedural fairness that need to be considered. One is that people want to have a voice. In other words, they need to feel that their side of the story has been heard. They also need to feel respected. Simply treating a suspect as a person (regardless of whether they are a criminal or not) and letting them preserve their dignity is important. People also need to feel that justice system components, especially police officers, are neutral. In other words, they want to think that the decision-making process is unbiased and trustworthy. People need to understand what is going on. That is, they need to comprehend the process and how decisions are made. Also, it is also beneficial if the police are perceived as helpful. People perceive even arrests in a relatively positive light if they perceive that officers are interested in their personal situation and are willing to help within the context of legal requirements.
Procedural justice is of critical importance to police-community relations because the police must constantly demonstrate their legitimacy. Without a public perception of legitimacy, cooperation with and support for police evaporates. On the other hand, when police-citizen interactions have the elements discussed above, people tend to rate the job the police are doing highly, and are more compliant with officer requests. Not only is this good common sense about social interactions, but research evidence supports the thesis.
Community policing generally and procedural justice, in particular, cannot be achieved without officers that are capable of empathy. A requisite of procedural justice in any encounter between a citizen and a police officer is for the officer to humanize the experience. Officers must seem approachable and accessible. Fundamentals of good interpersonal communication are key. Officers need to make eye contact and use verbal communications and body language to convey a sense of respect. When citizens cooperate with a police officer’s request for information or action, a simple “thank you” is in order.
People have an innate fear of the unknown. When confronted by a police officer, citizens have deep anxiety about the situation, and desperately need to know what is going on in why. For some people, a simple traffic stop can be a traumatic event. The police community has recognized this for many years, and most jurisdictions require officers to identify themselves and state the reason for the stop as a first step. An often overlooked step in this training is how to communicate with diverse community members that don’t understand legal and police jargon. People need to have things explained to them in plain English. When a summons is issued, officers need to explain the process in plain English so that the person understands completely what they are expected to do. Such simple explanations can work wonders in ensuring compliance, especially when “easy” options such as paying fines by mail are explained.
People need to be given the opportunity to speak and have their side of the story heard. There is little chance that a person will feel that the process is fair if they don’t get a chance to tell their side of the story. Research in this area has shown that people feel that the process is fairer even when officers explain to them that nothing they say will affect the outcome.
When a person suffers some harm, the American system of civil law allows the person to sue the person causing the harm in civil court. Lawyers call such methods of redressing some wrong as remedies. Sadly, the courts have eroded many of the remedies to the point that they no longer discourage police misconduct to the satisfaction of many communities. State governments and individual police departments sometimes impose additional punishments on police officers who violate the law. Critics of these policies argue that they are applied inconsistently, leading communities to mistrust these approaches as well. Conversely, because there are so many pathways for reviewing police conduct, officers tend to feel excessively regulated.
In the name of public order and crime control (or simply, “LAW AND ORDER” as President Trump likes to Tweet), police occasionally cause private persons and sometimes entire communities significant harm. They break down doors and go into private homes, they seize personal property, they injure people, and sometimes they kill people. The law authorizes these harms under very limited circumstances. When these intrusions are authorized by law, people are required to bear them. When officers thwart liberty in ways that go beyond the constraints of the law, however, they harm not only people without legal justification, but they also jeopardize the trust between the local government and its citizens. Most people appreciate that this sort of trust and confidence is important to a democratic society.
In recent times, observers have increasingly argued that cops break the law with impunity because the legal mechanisms for controlling their behavior are far too weak. Over several decades, federal courts have left legal remedies for constitutional violations in place, but cut away at them so that, although they are frequently invoked, they are often not effective at remedying or deterring constitutional violations. The consequence is that policing has a lot of law and little remedy. Police officers are surrounded by potential legal review for every act, even legitimate ones, making them feel scrutinized continuously and overregulated. And yet, the law only infrequently holds officers and departments accountable for constitutional violations, leaving victims of police misconduct and their communities deeply dissatisfied.
Perhaps the oldest and most well-understood remedy for police misconduct that violates the civil liberties of citizens is the exclusionary rule. There are several different variants of the rule, but the core feature of all such laws is that illegally obtained evidence cannot be used in court against the defendant. No provision in the Constitution guarantees such a right. The Court developed the exclusionary rule for the express purpose of punishing officers for misconduct. It is essential to understand that the Bill of Rights doesn’t automatically apply to local police enforcing state laws.
Thus, in its most direct form, the Bill of Rights only protects citizens from abuses by federal agents and not against local police (and sheriff’s deputies). This Fourteenth Amendment, which was enacted into law to protect the rights of freed slaves in the aftermath of the Civil War, contains a due process clause. This Due Process Clause of the Fourteenth Amendment is different from the one found in the Bill of Rights because it applies directly to the states (and thus local agencies). Due process isn’t a very descriptive term, but it means fundamental fairness.
Thus, if the Court decides that some rule established according to the Bill of Rights is required for there to be fundamental fairness in the criminal justice process, then it will apply that right to the states using the Fourteenth Amendment as a conduit. Constitutional scholars call this the doctrine of incorporation. This doctrine wasn’t used much in the years immediately after the Fourteenth Amendment was ratified. It was during the Civil Rights Revolution of the 1960s that the Warren Court started to broadly curtail abuse of civil rights by local law enforcement officers. In 1961, in the landmark case of Mapp v. Ohio, the U.S. Supreme Court barred state courts from allowing evidence acquired in violation of the Fourth Amendment to be admitted in criminal cases.
The prospect of evidentiary exclusion has incentivized defendants to dispute police behavior in court. Evidence suppression is probably the most common Fourth Amendment remedy. As with any procedure that is common in criminal courts, procedures have been refined over the years. The danger of evidentiary exclusion also prompted many police departments to train officers in constitutional law and to motivate officers to follow it. Over the period since Mapp, the exclusionary rule has helped the Fourth Amendment become central to how police officers and executives view good policing. Without a doubt, the exclusionary rule has reshaped American policing for the better. In recent years, however, new limits on the scope of the exclusionary rule have diminished its significance as a remedy.
Beginning in the 1970s, the court began to erode the protections of the exclusionary rule. This explosion has taken the form of “exceptions” to the rule that allows police to use illegally obtained evidence under certain circumstances. There are two basic categories of such exceptions. The first significant category has to do with the type of court proceeding where the rule applies. Illegally obtained evidence cannot be used in criminal proceedings, but it can be used in civil cases and deportation cases. In other words, the rule generally applies only to an actual criminal trial. The evidence is often admissible in pretrial proceedings as well as in appeals. The second category is where illegally obtained evidence can be used in criminal trials, such as with the “good faith” exception.
The Civil Rights Act of 1871, which appears in the United States Code as Section 1983 (of Title 42), provides a basis for civil lawsuits against police conduct that violates the U.S. Constitution or federal. The law is designed to deter unconstitutional conduct, uphold constitutional rights, and provide monetary compensation for victims of constitutional rights violations. This age-old statute gained new meaning in the late 1970s when the Supreme Court elaborated on the circumstances in which these lawsuits were available to citizens. In addition, Congress passed 42 U.S.C. § 1988, which authorized winning parties to Section 1983 cases to recover attorney’s fees, so long as the expenses are deemed reasonable.
Unlike the exclusionary rule, Section 1983 allows plaintiffs to seek redress for infringement of other constitutional rights, such as those preserved by the First Amendment and the Equal Protection Clause. Civil damage (money paid to the plaintiff) suits under 1983 also permit a remedy for kinds of Fourth Amendment violations the exclusionary rule does not address, such as constitutionally excessive force and Fourth Amendment violations against those who are never charged with a crime. Simply put, the protections under Section 1983 are much broader than those limited protections offered by the exclusionary rule.
Despite the broad scope of Section 1983, plaintiffs face several practical barriers to bringing 1983 lawsuits against the police. Historically, the lack of independent witnesses to an incident made officer misconduct tough to prove. That seems to be changing due to the prevalence of smartphones and video recording capability. In addition, victims of police misconduct often have a criminal record or other characteristics that may make them distasteful to juries. Many jurors are very reluctant to second-guess police decision-making. Also, because of the uncertainty of the outcomes and significant legal obstacles to recovering damages, potential plaintiffs often find it challenging to retain willing and capable lawyers to represent them.
Beyond these pragmatic barriers, there are often overwhelming legal obstacles to Section 1983 suits for victims of police misconduct. Importantly, according to the Supreme Court’s interpretation (the only one that really matters) of the law, individual officers are granted “qualified immunity” from damages for violating a citizen’s constitutional rights unless the right at issue was “clearly established” at the time of the unconstitutional conduct. In recent decades, the Supreme Court has mandated increasingly particularized groundwork for establishing a right clearly, stating that “existing precedent must have placed the statutory or constitutional question beyond debate.” The result has been that qualified immunity insulates all but the “plainly incompetent” officer.
Qualified immunity is available only for officers in their capacity as individuals, not departments and city (or county) governments. However, there are other legal barriers to civil suits against local governments. A city (or its police department) is only liable under Section 1983 for constitutional infringement caused through its “policies or customs.” To establish liability against a municipality, the complainant must show that there was a violation of federal law or a constitutional violation. In addition, it must be shown that the government caused the breach and that the violation is attributable to city policy.
This can mean a formal, written policy, or informal, unwritten policy. Proving these components requires tangible evidence that government actors both knew of and allowed a pattern of related constitutional violations. In addition, it must also be shown that the constitutional violation was indeed caused by policy deficiency. Frequently, proving government liability is, therefore, not only problematic but requires the considerable (and expensive) discovery of evidence.
Many commentators argue that qualified immunity emboldens officers to violate civil rights. It may become a problem for the agency, but they know that they are safe. In addition, it is well known that the courts very rarely slide with the plaintiff in 1983 Suits, so bad-intentioned officers regard being sued in federal court as just the “price of doing business.” The obvious solution to this callous attitude, they argue, is to revise the statute to remove qualified immunity and allow plaintiffs to name individual offices in suits alleging constitutional rights violations.
When allegations that a police department systematically ignores the rights of Americans can no longer be ignored, the Department of Justice (DOJ) can intervene. The city is usually offered the opportunity to avoid a federal lawsuit if it agrees to make certain changes—a consent decree. Most often, they will investigate the allegations, and then prepare a report that details the evidence that supports the allegations of systematic wrongdoing. The punishment is often that the department in question must enter into a consent decree, which means the department operates with DOJ oversight into their routine operations.
In 1994, the United States Congress gave the Department of Justice the ability to bring suits for “equitable relief” against municipal police departments in the Violent Crime Control and Law Enforcement Act. Using this power, the Department of Justice has created a program of probing and suing police departments engaged in a “pattern or practice” of constitutional violations. The DOJ negotiates settlements that force what are touted as substantial changes on those departments. As of the beginning of 2017, the DOJ had conducted 69 in-depth investigations of police departments and had entered into 40 reform agreements.
The above description of consent decrees is oversimplified, but it illustrates some key points. Perhaps the biggest criticism of the practice is that consent decrees are non-punitive. That is, people tend to see little justice in a practice where systematic violations of civil rights go unpunished because the DOJ offers to hold off punitive action as the “carrot” to coax the department into entering into the consent decree. Ironically, there is some agreement between civil rights advocates and police unions that consent decrees are a bad idea. Police resent federal oversight of local policing matters, and civil rights advocates hold that the decrees amount to paying lip service to reform without really doing anything to punish bad actors.
Night Time and No-Knock Warrants
Some ninety days after Breonna Taylor was shot and killed by police, the only arrest in relation to the death was her partner, who maintains that he was defending himself against intruders into their home. As a general rule, the Fourth Amendment requires that search and arrest warrants be based on probable cause and that the execution of those warrants is objectively reasonable. Part of the reasonableness requirement has been that officers must “knock and announce” before entering a person’s dwelling. Also, warrants need to be served during “daylight” hours. There were a few exceptions to this general rule, but the idea of warrants that authorized an entry without announcing the presence of police officers and the fact that they had a warrant gained traction due to the War on Drugs.
The knock and announce rule exists for several reasons. It protects the sanctity and dignity of the home, which comes down to us from the ancient common law of England. It is also a matter of safety. The logic of “no-knock” warrants is that officers can gain the advantage of surprise on potentially dangerous suspects and neutralize threats before they materialize. A more controversial justification is to prevent the destruction of evidence. In a nation that prides itself on the right to keep and bear arms, this logic is faulty. As many Southerners will proudly tell you, an excellent way to get shot is to break into their home in the middle of the night. It is logical, especially in more rural areas of the country, to assume that every dwelling in America is occupied by an armed person that will respond with deadly force if shadowy figures crash into their homes in the middle of the night. No knock warrants are simply a recipe for disaster. They only make sense on a severely limited basis where there is clear and convincing evidence that the occupants are armed and deadly, and that police have no safer option. This is seldom the case with domestic drug warrants. From both a civil rights perspective and a police tactical perspective, these dangerous warrants are hard to justify in mere drug cases.
Thinking Outside the Police Box
A major aspect of reducing police friction with neighborhood residents is to reduce negative contacts. If we view things like drug use and violence as community problems rather than infarctions of legal codes, broader, more effective sets of solutions emerge. I bring up these two examples because both drugs and violence can be considered under the scope of public health concerns to good effect.
The Constitution and the Bill of Rights is not a “gold standard” for American policing. Policing that satisfies its requirements may still do extraordinary harm overall and disseminate that harm unfairly. The Constitution does, however, provide minimum standards that help see to it that the government does not focus unjustly on individuals and that there are limits to what the government may do in the name of law enforcement. Satisfying those minimum requirements is essential to the legitimacy of policing.