Policing | Section 3.1

Fundamentals of Policing by Adam J. McKee

This content is released as a draft version for comment by the scholarly community.  Please do not distribute as is. 

The Role of the Constitution  

As the Bill of Rights stood at the time of its passage, it did nothing to prevent the abuse of citizens by their state governments.  It was up to each state to have its own constitutional protections to serve this function. After the civil war, however, many people did not trust the individual states to protect individual liberties, so, in 1868, the Fourteenth Amendment was added to the Constitution.  The Fourteenth Amendment contains the due process clause, which prohibits the states from treating citizens in a way that is fundamentally unfair.  

Because police officers are considered agents of the state, the Fourteenth Amendment put local and state level police officers under the scrutiny of the federal courts.  Over the years, the Supreme Court has used the due process clause to extend most (but not all) of the other rights protected by the Bill of Rights to the states. Most of this incorporation was done during the Warren Court years, beginning in 1953.  (The “Warren” Court is so called because of a tradition of referring to the court of a particular era by the name of the Chief Justice at that time—in this case, Chief Justice Earl Warren).

Before the Warren Court

One does not have to dig very deep into the case law established prior to the Warren Court to find rules that are repugnant to our modern ideas of how constitutional law works in a democratic republic.  For example, in a 1954 California case, police illegally entered the defendant’s home several times and installed microphones. They installed one microphone in the defendant’s bedroom and listened to conversations there for over a month.

The Supreme Court reaffirmed the view that states could not be required to exclude evidence through violation of the Bill of Rights. But the Court did issue a blistering critique of the police behavior. Several Justices went so far as to call upon the Attorney General to consider criminal prosecution of the officers. The FBI investigated the matter, but never sought an indictment.  Ultimately, nothing happened to the police as a deterrent to future misconduct. These sorts of cases would serve to underscore many much-needed reforms that future courts would address.

The Warren Court

Earl Warren assumed office in 1953. From the very beginning, his tenure was marked by vigorous pursuit of equality and civil liberty, for example, in school desegregation, political reapportionment, and the ban on prayer in the public schools.  But in the area of police practices, the early Warren Court mirrored its predecessor. That is, the “liberal agenda” which we associate with the Warren Court was not apparent in the early years of Warren’s leadership.

In those early days, the Court (with Chief Justice Warren concurring) held that evidence seized illegally (by what the Court called a “flagrant violation of the Fourth Amendment”) could still be used in state criminal trials. The Court continued to allow extended police interrogation without counsel and without any attempt to warn the suspect of his rights. For the entire first half of Warren’s tenure (from 1953 until 1961) the criminal decisions handed down by the SCOTUS gave almost no evidence of what we today think of as the Warren Court approach.

In the field of criminal procedure, the “real” Warren Court emerged in 1961 with the landmark decision in Mapp v. Ohio. Mapp held that illegally seized evidence was inadmissible in state trials (i.e., the exclusionary rule). There followed a period of surprisingly rapid, across-the-board innovation. In 1963, in Gideon v. Wainwright, the Court guaranteed the right of the indigent to be represented by counsel in a felony case. Modern students of the law must remember that before 1963, though Earl Warren had served as Chief Justice for almost ten years, it still was permissible under at least some circumstances to try an indigent (poor) person without benefit of counsel, even in a serious criminal case.

In 1964 (and again it seems incredible that this came so late) the Court held for the first time that states must respect the Fifth Amendment privilege against self-incrimination. In 1966 the Court held, in its famous Miranda decision, that the Fifth Amendment privilege extends to suspects questioned in police custody, and requires a detailed warning about the suspect’s constitutional rights.

Even the heralded Miranda decision can be viewed as a deeply ambiguous compromise. Miranda was a response to several problems in the law of custodial police interrogations. Previous precedents judged police interrogation practices on an unstructured case-by-case basis. The law left both police and the lower courts without sufficient guidance. The situation made it challenging for federal courts to ensure that local judges, who were often indifferent to the rights of the accused, would respect constitutional mandates.

As the Miranda opinion stressed repeatedly, the secrecy of police interrogations made it difficult to know what actually occurred in the interrogation room. Judicial fact-finding depended on a “swearing contest,” with several respectable police officers on one side and an unsavory suspect on the other. In this kind of environment, a defendant’s claims about beatings, psychological abuse, or questioning for hours on end will simply not be believed, whether they happen to be true or not. The defendant will almost always be the loser. Miranda addressed those problems in two distinct ways. First, it granted the suspect an absolute right to silence. Second, it required that the suspect receive a series of detailed warnings before the right can validly be waived.  

The Burger Court

In 1969, Warren Burger became Chief Justice. The Burger court is often referred to as a “conservative” Court, but that is an oversimplification.  The product of the Burger Court was an unexpected mix of liberal and conservative decisions. Those who like to think in terms of simple liberal-conservative stereotypes are often perplexed by some of the progressive and activist decisions of the 1970s and 1980s. In 1972 the Burger Court struck down standardless sentencing in capital cases, thus tackling a momentous problem that the Warren Court had failed to deal with. In 1975 the Burger Court held that excluding women from mandatory jury service was unconstitutional, overruling (in effect) a 1960’s decision of the Warren Court.

This phenomenon continued into the last and most conservative years of the Burger Court. In 1985, for example, the Burger Court restricted the use of deadly force by police officers, a problem of major importance on which the Warren Court had never spoken. In 1986 the Burger Court restricted the use of peremptory challenges against black jurors, explicitly overruling a 1965 decision of the Warren Court. These criminal procedure innovations were coupled with other progressive advances, including attention to sex discrimination and the abortion ruling, which was (like it or not) certainly an activist decision.

Against this background, claims can be made that the Warren Court was not so radical after all, and that the Burger Court was hardly conservative. There are important continuities. Sometimes, Court decisions seemed to be guided by law rather than by politics, just as most Americans learned in high school civics class. Still, the confusing mix of liberal and conservative results in both Courts does not tell the whole story. In criminal procedure particularly, there were crucial changes in emphasis, in tone, and in the Court’s stated goals.

The Warren Court, whatever its penchant for caution and compromise, left no doubt about its sense of mission. The Court said, for example, that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Of course, the Court stopped miles short of fully implementing this insight. Statements like that left the Court wide open to the formal logic of academic criticism. But the Court’s goals were clear, and it was taking steps to get closer to those objectives.

Three broad themes dominated the decisions of the Warren Court. One was the egalitarian impulse, the effort to stamp out not only racial discrimination but also to ensure fair treatment for rich and poor alike. A second theme concerned the dangers of unchecked executive power. (We have seen many of those dangers materialize in today’s political arena). In criminal justice process, the checks and balances come from a strong adversary system. The Warren Court saw the adversary systems of the state courts as woefully deficient. It set out to bring those systems up to the standards long followed by federal courts, standards that are set forth explicitly in the Bill of Rights.

A third theme was a preoccupation with practical implementation. The Court knew that criminal justice administration, like any large, unwieldy bureaucracy, will not respond automatically and with fervor to every new pronouncement from above. The Court understood that it was simply not enough to just declare new rights. It usually chose to formulate those rights in bright-line terms, in order to make evasion more difficult. And the high visibility landmark holdings were accompanied by more technical decisions that widened access to federal courts, in order to insure a forum and a realistic remedy.

Looking closely at the Burger Court product, we can identify three distinct phases in its work. For its first six or seven years, the Burger Court showed considerable hostility toward the Warren Court landmarks of the 1960s. It dismantled protection against misidentification at police line-ups. Both Miranda and the exclusionary rule, though left nominally intact, were repeatedly eroded. The Court never once in this entire period held that a confession should be excluded.  In the late 1970s the tone changed. The Burger Court (often over the Chief Justice’s dissent) breathed new life into Miranda, and it strengthened the fourth amendment warrant requirement. Ironically, this moderate phase of the Burger Court, this tilt to the left, coincided with the retirement of Justice Douglas, the Court’s most liberal member, who was replaced by Justice Stevens in 1977.

The moderate Burger Court had a painfully short life span. It abruptly expired in its fourth or fifth year. Starting in 1981 a new Burger Court phase of the Burger Court began. Justice O’Connor replaced Justice Stewart, a centrist Republican, an Eisenhower appointee who had been a swing vote in many cases involving searches and police interrogation. Warren Burger served as Chief Justice for 17 years, but it was mainly in the last five years of his tenure that his Court hit its stride as an aggressively pro-law enforcement institution. In search and seizure cases particularly, it began to seem almost impossible for the prosecution to lose.

More significant than the pattern of results was the way that the Burger Court succeeded in changing the discourse about police power and individual rights. Unlike the Warren court, the focus of the Burger Court was that decisions talked first and foremost about the “truth-finding” function of the criminal trial. The major goal of criminal procedure was no longer to remedy the disadvantages of the poor or to control abuses of official power but to accurately separate the guilty from the innocent. There was much to be said for the renewed attention to this goal.

The Warren Court gave plenty of weight to law enforcement realities, (for example, in the way that it crafted its remedies) but it seldom talked about the law enforcement realities. As a result, its decisions too often gave credibility to politicians. The Burger Court was the Warren Court’s mirror image. The Burger Court gave weight to individual rights more often than is usually supposed, but it talked the language of law enforcement, of redressing the balance, of accurate factfinding. It was more important to convict the guilty than to control the police, and it was more important to know whether evidence was relevant than to know whether it was tainted by “irregularities” in the investigation.

A second characteristic of the Burger years has to be called a methodology rather than a particular theme. It relates to the way the Court analyzed questions rather than to its goals. The method of analysis was instrumental; the focus was on costs and benefits. The Warren Court would ask: Does the individual have a right? Does the state’s practice burden that right? The Burger Court usually would ask: Will the remedy really deter? If so, to what extent? And how do the benefits compare with the costs? On some implicit level, the Warren Court undoubtedly considered the same pragmatic questions. But the questions remained below the surface. They influenced only how far to go and how fast.

In the Burger years, these questions became primary. The change in approach is very significant. The new language seems less inspiring, but is also more realistic. In another sense, it seems weirdly unjudicial. In our constitutional mythology, the job of the courts, after all, is to find law, to ascertain the rights of the individual, not to balance costs and benefits like a legislature.

In this sense, the Burger Court again seemed even less respectful of the judicial role than the Warren Court was, even less restrained in treading on the policy-making functions of the other branches of government. Yet the Burger Court never got a bad name for this in its criminal cases, probably because it tied its activist methods to conservative results. It used cost-benefit analysis like a legislature, but the government won.

The Court has also questioned whether exclusion contributes to these values by deterring the police. For many, it seems abundantly clear that the exclusion remedy, which police plainly dislike, is not irrelevant to their behavior.  Specifically, they will conduct more illegal searches if they can make use of the fruits than if they cannot. As the Warren Court said in Mapp, exclusion “compels respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it.”  

Another significant inroad occurred in the cases adopting what is sometimes called the good-faith exception to the exclusionary rule.  One criticism is that the good faith exception focuses attention solely on the police officer executing a search warrant. If his action is in good faith and reasonable, the evidence is admissible in court, even if the magistrate who issued the warrant was not acting in good faith or was not reasonable. This is because the Court decided that the purpose of the exclusionary rule was to deter police, not magistrates.

The Court in its Leon decision gave two reasons for this. First, the Court said, “There exists no evidence suggesting that… magistrates are inclined to ignore or subvert the Fourth Amendment.” The other reason cited by the court for the “magistrate” loophole was that “We discern no basis… for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing … magistrate.”

Use of Deadly Force Today

Many recent news articles, blogs, videos, and books have focused on the apparent disregard, or outright ignorance, of the limitations of permissible lethal violence under long-standing Due Process precedent such as Tennessee v. Garner. Many have called, often loudly, for an end to the apparent confusion of a substantial number of police and civilians regarding the degree to which a person’s flight from armed officers may be viewed as, by itself, establishing probable cause for arrest, let alone lethal force. Among the proposed reforms, one of the most important (and perhaps easiest and most affordable to implement) is a renewed commitment to a Constitution focused training of armed officers, i.e., one that emphasizes critical constitutional limitations upon permissible force by peace officers.  

To the extent that the Constitution has been even partially abandoned as the governing standard for determining the permissibility of lethal police force, both police and the citizens they serve must be re-educated about the constitutional restraints of police violence. Of particular import are the Tennessee v. Garner general prohibition of deadly police force against fleeing, unarmed suspects, and other suspects who do not pose an imminent threat of physical harm to others, as well as due process constraints against viewing flight from police as independent and sufficient grounds for arrest.

Had these basic constitutional constraints been heeded by the officers involved in the series of killings detailed in the media, the victims of those killings would likely still be alive today. While some police training fails to clearly enough instruct law enforcement officers about the constitutional boundaries of permissible police force, and it is even possible that some have done so intentionally, for plausible deniability purposes, such abandonment of Constitution-focused use-of-force training is inexcusable. As a matter of both constitutional law and basic human decency, it is time for officers to protect and serve all citizens, every one of whom is entitled to life and liberty under our Constitution and the full protection of the police.

Bearing in mind the relatively recent developments of widespread police body camera use, citizen journalism advancement through smartphone video technology, and Internet dissemination of the video evidence thereby obtained, the events of the recent past should not be viewed as an anomaly. More likely, such incidents are merely being brought to light to a degree not possible in the days before video evidence became so easy to obtain and disseminate via social media.

Various reforms have been considered and implemented at the state and national levels. At the state level, dozens of states have implemented dozens of new state reform measures, including measures requiring body cameras worn by police, the implementation of new civilian review boards and other community involvement, improved police training, increased transparency and accountability, and other reform measures. At the national level, reform measures under the leadership of the Obama administration have resulted in several national police reform initiatives.

Key Terms

References and Further Reading

Stephen J. Schulhofer, The Constitution and the Police: Individual Rights and Law Enforcement, 66 Wash. U. L. Q. 11 (1988)

Nancy C. Marcus, Out of Breath and down to the Wire: A Call for Constitution-Focused Police Reform, 59 Howard L.J. 5 (2015)

Modification History

File Created:  08/15/2018

Last Modified:  06/21/2019

[ Back | Content | Next]

This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Professor McKee's Things and Stuff uses Accessibility Checker to monitor our website's accessibility.