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Wednesday, August 20, 2014

"Criminals In Uniform"

I have been profoundly disheartened by the police shooting, peaceful protests, draconian police response, and the slide into sporadic rioting currently dragging out in Ferguson, Missouri. The frustration expressed by the Ferguson protestors has reminded me of the restrained anger behind Professor of Jurisprudence at the University of Oxford, John Gardner's discussion of another police shooting: the London Metropolitan Police killing of Jean Charles de Menezes in 2005

In a broadly "Diceyan" take on legal equality, Gardner argued that police officers are properly understood as "citizens in uniform." The austere Diceyan approach to police responsibility argues that lawless policing—searches and seizures without authority of law—are criminal acts. If an ordinary citizen who invades property, offensively touches, or detains and removes someone is guilty of a trespass, battery, or kidnap, then so is the citizen in uniform who acts without proper legal authorization. Worse, when a person charged with protecting the public and upholding the law harms the public and violates the law, they fail in their moral duties in particularly egregious ways.

Suppose this austere Diceyan approach applied to the police in Ferguson Missouri—or American policing more generally. Then Fourth and Fifth Amendment violations renders those few who engage in such acts police criminals in uniform just as much as extra-judicial killings do. The result is that, from an austere Diceyan perspective, those police officers fail the citizenry in the most egregious way: by becoming criminals themselves.

From this Diceyan perspective, Justice Cardozo's famous dismissal of the exclusionary rule in People v. Defore is deeply disingenuous. Cardozo asked should the criminal "go free because the constable has blundered." Blunderers do not intend harm: they are innocent-but-clumsy. More Keystone Cops than Stacy Koon (of Rodney King fame). But the austere Diceyan might argue that central problem with police misconduct is not clumsy cops, it is criminal ones. 

For the austere Diceyan, the problem is police officers who, without authority of law, engage in offensive contact with persons, thereby committing a battery (which is what happens in a search of a person without legal authority). Or police officers who detain a person against their will and carry them away, thereby committing a kidnap (which is what happens in a seizure of a person without legal authority). Or police officers who, without authority of law enter property and commit a criminal trespass (you get the picture). And if the cops are criminals when they act without legal authority, then a judge faces a Hobson's choice. On the one hand, she has evidence of trespasses, assaults, batteries, and kidnaps by the police. On the other, evidence of criminal activity by the defendant. That means whatever the court decides, a criminal goes free. The only difference is: one wears a uniform, one does not.

Justice Cardozo is a fantastic wordsmith: he achieves palpable literary and emotional effects with his choice of language. But what he fails to acknowledge in Defore is the fact that the law grants the police a permission to engage in acts that, if undertaken by a security guard or a member of the neighborhood watch, would be criminal. What gives the police officer protection from criminal prosecution is the fact that he establishes that his actions conform to the relevant legal standard—reasonable suspicion, or probable cause, as the case may be—and follows the appropriate procedure—obtaining a warrant if necessary, and using the appropriate amount of force for the appropriate amount of time. Anything else is not covered by law. The central image he conjures up in Defore is our police—the friendly, neighborhood constable, Perhaps he's thinking of someone like Michael, the affable cop in "Make Way for Ducklings, acting in a cack-handed and thoughtless manner—blundering. According to Cardozo, the central problem of police misconduct is, at worst, some sort of negligence-based tort. But Cardozo's picture of Michael-the-blundering-constable erases the harm caused by illegal policing from the calculus. I think it's time we recognized that the permission granted state officials is to engage in otherwise wrongful---viz. harmful---activity. Activity that, if unjustified, would subject the official to moral and criminal opprobrium (i.e., shaming and punishment). he problem, as the Court saw in Mapp v. Ohio,is lawless policing. Lawless policing is, quite literally, criminal. If only it were perceived as such (instead of macho Dirty Harrys doing what it takes to protect the rest of us), we might do something about it.

If we think of the harm involved as criminal—the cop acting unlawfully intends to engage in an offensive contact or detention—we would no longer think of the default sanctions as loss of evidence or a tort, but as a crime requiring prosecution, and the officer as a low-level criminal (and a high-level moral offender).


At this point, in a law review article, we'd test the consequences of this claim. Surely, if all illegal searches and seizures were criminally prosecuted, there would be no police left. I'm not going to spend time on this point in a blog: but ponder that objection for a minute. It could be a claim about chilling effects. But it could be a claim that most or many officers routinely violate citizens' rights (which would be a claim that police are extreme recidivists). Either way, it suggests that out model of policing is broken if major defenses rest upon the need to tolerate police criminality. I could also tell a whole story about the warrant and other pre- or co-authorization devices that establish scope of the police permission to search and seize, and so provide a defense againt criminal prosecution. But that is not my goal here either.


Instead, what I want to suggest is that the austere Diceyan model accurately captures sense of public outrage expressed by the citizens of Ferguson Missiouri (but not only those citizens). It provides, perhaps, the moral and normative counterpart of the familiar sociological account of legitimacy as a set of feelings of responsibility, induced by the inclusive actions of public authorities, so that the individual recognizes an obligation to obey the law (or the authority). The austere Diceyan model identifies a way in which police officers are perceived as themselves discounting the obligation to obey by engaging in what would count as mala in se (trespass, battery, kidnap), and so ones that strike us as real wrongs.

In Ferguson, however, th problem, from an austere Diceyan perspective is even more pointed: suppose that the police includes a coterie of officers who are recidivists, that is, who repeatedly engage in trespasses, assaults, batteries, and kidnaps. And suppose those officers target particular communities on the basis of race. And suppose those officers' criminal activity victimizes lots of law-abiding citizens. And suppose a prosecutor, by inclination or necessity, declines to criminally prosecute those officers' illegal police activity. Who then are the victims of police criminality to turn to? Will the good cops turn in the bad ones? Or does catching the "real" criminals justify breaking the law?

What the police have been doing in the City of Ferguson is criminal. Not (just) the homicide of Michael Brown, which could be anything from a terrible act of self defense (the police officer's version) to an act of murder. But the criminal assaults on journalists and state representatives. The criminal use of battlefield weapons on protesters exercising their first-amendment rights. The criminal invasion of property.

The most dispiriting features of the Ferguson stand off is the attempts by local citizens and politicians to try to negotiate the stand-down of two criminal gangs, one of which burns and loots, and one of which beats and batters and kidnaps and assaults.

[If you are interested, tweets from St. Louis Alderman Antonio French (@antoniofrench) or Rembert Browne's wonderful and horrific article in Grantland give a flavor of what i happening on the streets. For example, Browne has some footage of the now-infamous "siren"—actually an LRAD sonic cannon, a military weapon—used to disperse protestors, both peaceful and violent, indiscriminately. It is truly horrifying: you can get a sense of the sound of it in his article.]

The police are not special beings entitled to unquestioning compliance whatever they do (though some seem to believe that): they are citizens like the rest of us. Citizens in uniform, to be sure. But they are our legal and moral equals. Not our superiors. Not clothed in with some special right to interfere with non-criminal conduct at their whim. And on the austere Diceyan account of police responsibility I have been pushing: when they go beyond their lawful authority, they shuck off the protection given by the law—the legal permission to engage in criminally harmful conduct—and act outside the law, on their own.

The Court recognized the stakes of unlawful police activity in Mapp, the case that originally applied the Constitution to misconduct by state police officers. In that case, Chief Justice Warren wrote that "the right to be secure against rude invasions of privacy by state officers is…constitutional in origin, [and] we can no longer permit that right to remain an empty promise. … [W]e can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled." There's a whiff of austere Diceyanism in the Chief Justice's opinion. And it's all the better for it.

On NPR yesterday, a protester stated that the protests would not end until Darren Wilson, the officer who shot Michael Brown, is criminally prosecuted. If he was justified in his actions, then he has a complete defense. Rather than investigating, in a transparent way, the shooting, the Ferguson police have established that they are unaccountable to the law, and to the people they serve who ask them to account for their actions. They are lawless police. 

Posted by Eric Miller on August 20, 2014 at 01:35 PM | Permalink


My understanding is that law enforcement in the 19th century lost any immunity when they acted unlawfully. Thus, a sheriff who violated the liable could be sued in his private capacity for violation. I don't know enough about the practice to know how it maps to the Diceyan approach.

Posted by: Antiquarian | Aug 20, 2014 9:46:36 PM

Eric, it's not clear to me whether you are agreeing with current law, arguing against the due process protection of current law, or something else. Current law already makes it a crime for a state actor to violate a person's Fourth Amendment rights. See 18 U.S.C. 242. Fourth Amendment law can be murky, however, and it offends due process to criminally punish a person for conduct that he could have reasonably thought was lawful. For that reason, the Supreme Court has interpreted 18 U.S.C. 242 as adopting the qualified immunity standard: An officer is only criminally liable for violating the Fourth Amendment if a reasonable officer would know that the act was unconstitutional. See United States v. Lanier, 520 U.S. 259 (1997). Are you agreeing with that standard, or are you thinking that we should treat the police more harshly than other people and that they shouldn't get due process protections?

Posted by: Orin Kerr | Aug 20, 2014 10:07:00 PM

Antiquarian: you may well be right. Since the concept of qualified immunity did not really get off the ground until the 1960s, and only took flight after the prosecution of Nixon officials, I'd suggest that the possibility of criminally prosecuting cops was a live one even then.

Orin: Thanks for pressing me on this. You're right that I hedged my bets somewhat. The Diceyan approach is not one that has much truck with qualified immunity. The Diceyan approach is a UK constitutional doctrine, and in the UK, qualified immunity does not exist (or is in its infancy. Anthony Ashcroft, another professor at Oxford, was a major proponent; Gardner is an opponent). One could think of qualified immunity as an endorsement of the "Dirty Hands" approach to politics: there is an influential article by Thomas Nagel that engages with that idea. Or one could think of it in somewhat Hobbesian terms as a limited endorsement of the idea that sovereigns are immune from prosecution under the law. (But there may be room in the Diceyan world for qualified immunity. How much room would take more than a blog post or a comment to explicate.)

So, with those caveats, three points might be worth making.

First, qualified immunity only cloaks a public official with immunity to the extent that the act is plausibly constitutional. The question is whether a reasonable officer could believe that the variety of shovings, first amendment violations, etc., are plausibly justified, to say nothing of the shooting. (A different question is whether we should assume federal prosecution is and ought to be the only option; while I recognize there are jurisdictional and political problems in having the state police investigate themselves, that's part of the interest in taking the Diceyan approach. Again, if I had the time I could probably explore this over a few blog posts. But I'm not sure I have the time).

Second, even if the officers are immune (and I don't believe that officers who slam people's heads into walls for failing to exit quickly enough, to take one example, or who threaten people for recording them in public, to take another, could reasonably believe that what they are doing is constitutional, given the current state of the law), the Dirty Hands (or whatever) approach creates a two tier system. Officials who engage in criminal acts have an extra defense that others don't. How they respond to this extra defense matters. Because the underlying act certainly looks, to the public, like a crime, and—as I suggested—not some regulatory crime, but one of those morally pressing ones, a mala in se. If the public are, normatively, austere Diceyans, then that explains their response in Ferguson: what they want is accountability because the police have committed a criminal act (even though the police may have a defense), and that criminal act is an extreme violation of the moral duty of the police to protect the public (so it's not just an ordinary moral wrong, it is the most egregious moral wrong a police officer can do, which is to act in the opposite way their duties demand). Folks can justifiably protest the two tier nature of the system, and the police force's insensitive insistence on the most formalistic interpretation of that system, as insensitive at best, and repressive at second-best.

Finally, there's the question of what policing should look like. I think that it should look more like a Diceyan model than a Dirty Hands one. Whether and to what extent qualified immunity figures in that is a question I haven't fully thought through (which is why I tried to side-step it in the initial post). My tentative answer is that a robust warrant requirement takes care of a lot of the issues for which we might need qualified immunity, and does so in a way that is more in tune with the sort of republican deliberative democratic approach I take austere Diceyanism to be compatible with. It also fits the Warren Court's jurisprudence from Mapp to Terry (and the beginning of the Burger Court too, I'd argue) quite snugly. But this gets into matters of historical interest only, whereas the larger normative question is how best to hold the police accountable.

Much more important, in my view, is that emphasizing the viability of (state) criminal prosecution re-calibrates the notion of the harms that the police cause when engaging in unlawful searches and seizures. It takes the calculation of harm out of the laws of evidence and tort, which seem like little harms, and puts it back in the context of criminal law, which is a big harm (even for small crimes). That the police have extra defenses to criminal charges is a feature of their role. How many extra defenses they ought to have then becomes the interesting question. And that requires us to ask conceptual questions about what it means to be a police officer, and how well the law lives up to articulating the duties, powers and permissions applicable to—not even the ideal—but just the bare concept of a public official charged with executing laws and protecting the public from criminal activity.

Posted by: Eric J. Miller | Aug 21, 2014 12:36:50 PM

Thanks, Eric.

I think one challenge here is that the basic idea of making state actors criminals for violating a person's constitutional rights is already so well-established. Section 242 goes back to the Civil Rights Act of 1866, passed about a century before John Gardner was born and even before Dicey himself became a legal scholar. So American law seems to have long ago adopted the basic idea you are suggesting, and the tricky question is how to apply it.

I tentatively think that Lanier makes sense as a standard. Fourth Amendment law can be murky, especially in the excessive force context. It would be problematic if we hired a person to be a public officer, asked them to do the dangerous job of investigating suspects and interacting with criminals on our behalf, and then sent them to jail for conducting a search or seizure that plausibly appeared lawful at the time. Such a standard would also probably bias the development of the law against Fourth Amendment rights: If the stakes are whether to put an officer in jail for borderline conduct, I suspect most courts would construe the Fourth Amendment narrowly to make the officer's conduct lawful and avoid sending the officer to jail in a borderline case.

Posted by: Orin Kerr | Aug 21, 2014 7:11:50 PM

Saw a video and read the story of a man on a bicycle, minding his own business, rides everyday in Manhatten, NYC. He was riding and unknowingly heading towards President Obama's motorcade. So an NYPD officer tackled him. That officer was doing what he believed he was to do, if not specifically told to do. However, the bike rider wasn't breaking any laws. You correctly point out that Police Officers are not superior to the rest of us. They are equal citizens, in uniform, that take an oath and are trained and granted the ability to take away someone's freedom within constraints of the law. Outside of the law, taking that freedom becomes a crime. The President is also an equal citizen- one that is not afforded special or extra rights and privledges under the law... Or is he?
I am not a lawyer. This is a legitimate question. Why does it seem, and as demonstrated in the incident with the cyclist, that the President has privledges and "rights" above the rest of us which warrants LEOs to be able to "legally" enforce those rights in reference to the President? If it were you or me in a car, traveling down a street in NYC as a cyclist approached an intersection on a street perpendicular to where our car is passing, would a LEO be a criminal for tackeling and arresting that cyclist?
If it were you or me on the bike, how would we feel if we were tackled and arrested for doing what we do every day on the same route? That there are always cars on the street which we are approaching and never had been tackled and arrested before for doing the same thing. Yet, a different individual in that car then seemingly warrants LEOs the legality to carry out taking our freedom. Based on what? What would the Diceyian approach on legal equality say about that?

Posted by: Ava | Jun 10, 2016 9:32:08 PM

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