John Locke Update / Research Newsletter

Police Misconduct and the Federal Government

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In March, the President’s Task Force on 21st Century Policing released an interim report that recommends expanding the federal government’s already considerable role in the affairs of local police forces. Last week, in response to a question about the Baltimore riots, the President touted that report and reiterated his belief that expanded federal involvement is an appropriate and effective solution to the problem of police misconduct. In fact, however, expanding the federal government’s role in local policing is a terrible idea, as several commentators have pointed out.

At Reason.com, Ed Krayewski notes that, "Federal grants have helped militarize the police, expand the practice of asset forfeiture, and fuel the drug war." In view of this, he asks, "Why does the left still support federal control of local policing?"  

In a column at USA Today, Glenn Reynolds observes that federal law enforcement agencies have, themselves, been prone to misconduct, and he suggests that:

If we’re really serious about increasing law enforcement accountability, we should end civil service protections for federal employees, while outlawing public employee unions. We should also abolish governmental immunity for federal, state, and local employees, forcing them to face civil lawsuits for illegal behavior, just as the rest of us must do.

I like Glenn’s suggestions, but I would add one more. When he appoints federal judges, the President should choose people who recognize, and are willing to enforce, existing Constitutional protections against police misconduct — people like Pamela Harris and Janice Rogers Brown.

Judge Harris’s Dissent in Kane v. Lewis

In a previous newsletter I mentioned the case of Kane v. Lewis, in which the US Court of Appeals for the Fourth Circuit overturned a jury’s award of damages to the father of a young man who was killed by the police in the course of a 4:30 am, "no-knock," SWAT raid. I neglected to mention, however, Judge Pamela Harris’s forceful dissent. Judge Harris not only explains why, as a matter of law, the jury’s decision should have been upheld; she also summarizes the facts of the case in a way that vividly illustrates why the current practice of using SWAT raids to serve low-level drug warrants so often ends in violence and death:

That precise sequence of events — a surprised and defensive reaction by a resident, to which the police respond with force — is exactly what the knock-and-announce rule is intended to prevent. … To my mind, the jury’s verdict in this case represents a substantially supported and eminently reasonable effort to hold police officers accountable for an unnecessary death — one that could have been avoided had the Officers complied with their Fourth Amendment obligation to announce themselves before breaking into [the suspect’s] apartment in the middle of the night.

Judge Brown’s Concurrence in United States v. Gross

A post by Jonathan Banks at the Cato at Liberty blog includes an excerpt from a concurrence written by Judge Janice Rogers Brown in United States v. Gross. At issue in the case was the constitutionality of the DC police’s use of a roving Gun Recovery Unit to find and confiscate illegal firearms in high-crime neighborhoods. After regretfully acknowledging her duty to abide by Supreme Court precedent, Judge Brown goes on to say:

Despite lacking any semblance of particularized suspicion when the initial contact is made, the police subject these individuals to intrusive searches unless they can prove their innocence. Our case law considers such a policy consistent with the Fourth Amendment. I continue to think this is error. Our jurisprudence perpetuates a fiction of voluntary consent where none exists.

As a thought experiment, try to imagine this scene in Georgetown. Would residents of that neighborhood maintain there was no pressure to comply, if the District’s police officers patrolled Prospect Street in tactical gear, questioning each person they encountered about whether they were carrying an illegal firearm?

With the guise of voluntary consent stripped away, the reality of the District’s regime is revealed. It is a rolling roadblock that sweeps citizens up at random and subjects them to undesired police interactions culminating in a search of their persons and effects. If the Fourth Amendment is intended to offer meaningful protection … the voluntary consent exemption cannot be used to engage with members of the public en masse and at random to fabricate articulable suspicions for virtually every citizen officers encounter on patrol. (Internal citations omitted.)

If the President really wants to find ways of discouraging police misconduct and improving relations between the police and the public, maybe he should stop convening task forces, and, instead, have a chat with Judge Harris and Judge Brown about reviving the Fourth Amendment.

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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