Proactive Policing Effects on Crime and Communities (2018) / Chapter Skim
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3 Law and Legality
3 Law and Legality
Pages 81-118
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From page 81... ...
Nevertheless, since some proactive policing strategies are implemented through common sets of policies and acts, and those policies and acts are governed by federal, state, and local law, the law governs proactive policing strategies indirectly. Since different kinds of proactive strate 1 The logic models discussed in Chapter 2 for the four proactive policing approaches, includ ing the associated primary objective and key ways to accomplish the objective shown in Table 2-1, are examples of philosophies of policing.
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From page 82... ...
Since the most important legal constraints on proactive policing are the Fourth Amendment and the Equal Protection Clause of the U.S. Constitution, the first two sections of the chapter describe ways proactive policing interacts with these constitutional rights and related statutory provisions.
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From page 83... ...
The fourth section therefore considers some of these other rules and, more broadly, discusses ways that proactive policing strategies may violate legal values even when they are implemented in ways that comply with the law. The fifth section discusses the relationship between law and community-based proactive policing strategies, namely, community-oriented policing and procedural justice policing, which raise different issues than do other proactive policing strategies.
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From page 84... ...
. While stops, searches, and arrests are all regulated by the Fourth Amendment, the Fourth Amendment case law defining what constitutes a search or seizure also puts many common policing activities used in proactive policing strategies beyond the scope of the Fourth Amendment's restrictions.
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From page 85... ...
When a police activity does not constitute either a search or a seizure within the scope of the Amendment, it need not be reasonable and does not require probable cause or a warrant under the Fourth Amendment, though it may still be subject to other law. Deterrence-Oriented Proactive Strategies As Chapter 2 suggests, several proactive policing strategies work to maximize the perceived consequences of criminal activity to potential criminals as a means to discourage that activity.
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From page 86... ...
This strategic use of Fourth Amendment doctrine for proactive policing is legal: the U.S. Supreme Court has repeatedly resisted considering subjective officer motives in evaluating searches and seizures for reasonableness, and it has permitted the pretextual use of legal authority to engage in searches and seizures (Whren v.
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From page 87... ...
Otherwise, encouraging stops, frisks, and arrests could easily result in searches and seizures that do not comport with constitutional standards. Without a strategy to ensure that officers comply with the Fourth Amendment, when departments encourage aggressive and frequent use of stops, summonses, and arrests pursuant to proactive strategies, they also increase the frequency of illegal stops, summonses, and arrests both in absolute numbers (because they conduct more)
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From page 88... ...
, which found that many of the stops apparently violated the Fourth Amendment. Analyzing the reasons officers provided for stops and frisks in the reports they were required to make when they conducted stops, the authors found that at least 7 percent of the stops conducted by the NYPD during the program lacked legal justification and another 24 percent lacked sufficiently detailed documentation to support a conclusion that the stop was legal.
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From page 89... ...
Whether there is "evidence" that a particular policy is associated with constitutional violations from a legal perspective is not the same issue as whether there is "evidence" that the policy causes constitutional violations in the sense of statistical causation. In acknowledging this distinction, the committee is not giving priority to either the legal or the social science definition of evidence.
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From page 90... ...
By contrast, if predictive policing or hot spots policing leads a department to engage in intensive stops, frisks, and arrests in a limited geographic area, these strategies will raise many of the same concerns as do the deterrence-based strategies discussed above. However, in addition to the Fourth Amendment issues raised by policing practices within specified areas, place-based strategies raise a distinctive set of Fourth Amendment issues by identifying specific microgeographic areas as locations of intensive recent or likely future criminal activity.
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From page 91... ...
Analogously, if predictive policing strategies that generate conclusions about the area are unreliable or nontransparent, they may produce predictions that are either unjustified or unfair and similarly lead to unsupported 7 Hot spots are often very small geographically, as small as a single intersection. Although courts have not clarified the size of a high-crime area within the meaning of Illinois v.
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From page 92... ...
Several remedies for constitutional violations, including the exclusionary rule and civil suits for damages under § 1983, are mostly unavailable against officer conduct that is unconstitutional but based on an officer's reasonable mistake about the legal status of his actions (Herring v. United States, 555 U.S.
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From page 93... ...
Nevertheless, departments can also utilize third parties to prevent or reveal crime in another way, one that three aspects of Fourth Amendment doctrine facilitate: officers may use information obtained through third parties that would otherwise be unavailable without establishing individualized suspicion or obtaining a search warrant. First, the Fourth Amendment does not apply to information that a person voluntarily provides to a third party when the third party makes that information available to the government (United States v.
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From page 94... ...
, are likely to conduct fewer searches and seizures and therefore have less opportunity to violate the Fourth Amendment. In this way, third party policing may reduce constitutional violations.
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From page 95... ...
. EQUAL PROTECTION AND STATUTES PROHIBITING DISCRIMINATION Legal Overview Unlike the Fourth Amendment, the Equal Protection Clause of the Fourteenth Amendment applies to all police activities, including policy decisions by departments to investigate suspects or to search or seize them.
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From page 96... ...
As with the Fourth Amendment, however, the legal concept of causation in Equal Protection law does not necessarily satisfy the criteria social scientists use to identify causal relationships. For instance, federal courts are divided as to whether plaintiffs claiming that police officers selectively enforced the law against them because of their race must demonstrate that "similarly situated individuals of a different race" did not have the law enforced against them in order to demonstrate discriminatory effect.
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From page 97... ...
. Nevertheless, the Supreme Court has also indicated that "the constitutional basis for objecting to intentionally discriminatory application of law is the Equal Protection Clause not the Fourth Amendment" (Whren v.
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From page 98... ...
Many critics have argued that such strategies cause unwarranted racial disparities, and both the district court's decision in Floyd and DOJ's analyses in its pattern-and-practice investigations in New Orleans and Baltimore found that the proactive policing strategies at issue caused discriminatory policing in violation of the Equal Protection Clause. For example, in Floyd, Judge Scheindlin found that, in carrying out SQF, the NYPD violated the Equal Protection Clause by disproportionately and discriminatorily stopping non-Whites.
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From page 99... ...
. DOJ contended that even after zero tolerance was no longer the formal policy of the police department, supervisors within the department continued to implement this form of proactive policing, with its discriminatory and other consequences.10 Other DOJ and private civil suits resulting in settlements have alleged that the frequent use of stops, frisks, and arrests in other cities has also violated the Equal Protection Clause but have drawn less express connection between the enforcement practices and proactive policing strategies.
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From page 100... ...
First, predictive strategies or the law enforcement interventions based on the resulting predictions may be implemented by departments with discriminatory effect and intent. Doing so would violate the Equal Protection Clause, just as implementing SQF or broken windows policing with discriminatory effect and intent violates the law.
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From page 101... ...
Specifically, the Third Circuit panel ruled that allegations of religious discrimination are subject to heightened Equal Protection scrutiny, even if the program containing them was motivated by national security and public safety concerns. Although the program challenged in Hassan would not fall within the bounds of proactive policing as described in this report because it sought to uncover rather than prevent criminal activity, it raises the same legal concerns as would a proactive strategy that is similarly directed at members of a particular religion or national origin and is thus illustrative.
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From page 102... ...
used a modified pre-post design to attempt to identify the impact of broken windows policing on officer SQF behavior in New York City. To the extent that this deterrence-oriented strategy led to unequal treatment of people of different races or ethnicities, this could be interpreted as evidence that SQF led to an increase in violations of the Equal Protection Clause.
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From page 103... ...
However, given the substantial limitations on constitutional remedies for police misconduct in the context of proactive policing and the limited information departments collect about lawsuits and their connection to police practices, these legal consequences may provide only limited incentives for departments and officers with respect to proactive strategies. To the degree this occurs, the law may not substantially discourage even those proactive strategies that result in provable constitutional violations.
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From page 104... ...
. The court did not bar the proactive goal of deterring weapons possession, nor the practice of using stops and frisks aggressively to achieve it, so long as the policy as implemented did not cause constitutional violations or otherwise violate the Equal Protection Clause.
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From page 105... ...
However, municipalities only infrequently collect and analyze information about civil suits or the police practices that give rise to them. In departments that do not use the information provided by civil suits to manage their liability risk, damages actions may have limited effect on decision making about continuing proactive strategies that lead to such suits (Schwartz, 2010)
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From page 106... ...
Though Lyons has stymied many suits against departments, plaintiffs challenging proactive policing may have a somewhat easier time bringing equitable relief claims than plaintiffs challenging traditional policing methods. The same qualities that make preventative policing policies proactive -- their forward looking, strategic focus -- can make the threat of future injury more "real and immediate." For instance, courts are more likely to find standing for equitable challenges under Lyons when a policy targets relatively innocent or common conduct -- as proactive policing sometimes does when it encourages stops based on minimal suspicion or arrests for very minor offenses -- because the risk to the plaintiff of being targeted under such a policy is less dependent on his own future wrongdoing and therefore less speculative (United States v.
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From page 107... ...
To the extent that police departments look to prior consent decrees for information on what activities might get them sued, this linkage could discourage some departments from adopting zero tolerance policing or similar proactive strategies that DOJ has previously described as facilitating constitutional violations. Other legal remedies for police misconduct, such as the exclusionary rule, are much less likely to affect police department use of proactive policing strategies.
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From page 108... ...
As these examples suggest, the entirety of law that could influence proactive strategies is extensive and diverse and cannot be easily summarized. Even when proactive policing does not violate constitutional law or this array of additional legal constraints, or does so in unenforceable ways, proactive strategies sometimes violate deeply held legal values, such as privacy, bodily integrity, equality, autonomy, accountability, and transparency.
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From page 109... ...
. Critics also contend that the practices used in these strategies invade bodily integrity and privacy in ways Fourth Amendment law cannot fully address (Harmon, 2012b)
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From page 110... ...
But such focusing can have negative consequences in the form of reduced liberty for some when people who live in identified hot spots suffer additional police stops or arrests. Beyond distributional effects, although some types of focused policing may reduce overall harm, other proactive strategies may increase individual and aggregate negative consequences of policing.
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From page 111... ...
, such as engaging in foot patrols or attending community meetings, have no significant legal implications. They are not governed by the Fourth Amendment, the Equal Protection Clause, or by federal or state statute.
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From page 112... ...
Second, with respect to external accountability, proactive policing strategies frequently emphasize informal community involvement in identifying, prioritizing, and solving problems through neighborhood meetings or through collaboration with business, religious, and neighborhood leaders,
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From page 113... ...
Though the four pillars of procedural justice -- giving voice, acting neutrally, treating citizens with dignity and respect, and conveying trustworthy motives -- could reduce constitutional violations, procedural justice strategies may nevertheless sometimes exist in tension with other legal values. For example, one important principle in liberal legal regimes is that citizens should be able to limit their cooperation with law enforcement to no more than what is legally required of them.
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From page 114... ...
But there could be some distance between the normative standards by which policing might be meaningfully assessed from an objective perspective and standards based on subjective perceptions -- the yardsticks by which police departments are encouraged to measure themselves under this logic model. By contrast, to the degree that procedural justice policing operates as intended, it may make violations of the law less likely.
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From page 115... ...
If adopting procedural justice policing increases the legitimacy of internal rules to officers, and thereby increases their compliance with departmental policies regarding treatment of civilians, then procedural justice policing could decrease officers' legal violations, including Fourth Amendment violations. This argument was made by Wolfe and Piquero (2011)
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From page 116... ...
Nevertheless, there are case-specific evidence and ethnographic and theoretical arguments consistent with the hypothesis that proactive strategies that use aggressive stops, searches, and arrests to deter criminal activity may decrease liberty and increase Fourth Amendment and Equal Protection violations. In addition, proactive policing strategies can affect the Fourth Amendment status of policing conduct.
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From page 117... ...
This is at least in part due to the nature of legality itself, which is intrinsically determined in an ex post, individual manner relative to evolving case law, rather than a more objective, a priori, standard such as the standards for determining assault, racial disparities, or community satisfaction. The committee drew the following overarching conclusions regarding law, legality, and proactive policing: CONCLUSION 3-1 Factual findings from court proceedings, federal investigations into police departments, and ethnographic and theoreti cal arguments support the hypothesis that proactive strategies that use aggressive stops, searches, and arrests to deter criminal activity may decrease liberty and increase violations of the Fourth Amendment and Equal Protection Clause; proactive policing strategies may also affect the Fourth Amendment status of policing conduct.
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From page 118... ...
118 PROACTIVE POLICING CONCLUSION 3-2 Even when proactive strategies do not violate or encourage constitutional violations, they may undermine legal values, such as privacy, equality, and accountability. Empirical studies to date have not assessed these implications.
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