Barry Friedman - Unwarranted: Policing Without Permission

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To Simon and Samara

You must first enable the government to control the governed; and in the next place oblige it to control itself.

James Madison, The Federalist No. 51

I resolved to write a book about policing after September 11, 2001. I live in lower Manhattan, not far from where the Twin Towers stood. I spent that day on the streets of New York, rushing to the hospital to give blood, only to learn none was needed; searching for my future father-in-law, who had been on business near the World Trade Center site, but fortunately made his way to his daughters place in Greenwich Village; and watching those awful and surreal eventsas did so manyin a state of shock and dismay. On that day, and those that followed, I joined groups standing along the West Side Highway, choked up, offering whatever moral support we could to our early and continuing responders. They were (and remain) our heroes.

And yet, in the weeks after 9/11, something I was hearing troubled me no end. People would say we needed to relinquish our liberties in order to give the government more leeway to protect us. Even Supreme Court justices were saying it. On September 29, 2001, while the acrid and unforgettable smell of destruction still hung in the air around us, Justice Sandra Day OConnor came to New York University School of Law, where I teach, for the groundbreaking of Furman Hall. [W]ere likely to experience more restriction on our personal freedom than has ever been the case in this country, she warned the somber group gathered there. The events of September 11, she said, would cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration and so on.

Ive taught Constitutional Law and Criminal Procedure for thirty years, so Im no novice to the much-discussed tension between keeping society secure and safeguarding our liberties. But having studied the law governing policing for three decades, I wondered exactly what everyone was talking about. Id ask people what it was that they felt the government should now be allowed to do. If they could come up with any exampleoften they could notId point out, But the police already are allowed to do that. The Supreme Court said so ages ago. Then it was their turn to be surprisedmost of them had no idea how permissive the courts were toward policing.

As a practical matter, much of policing in this country is governed today by the Supreme Courts (and lower courts) pronouncements about the Constitution. Of particular importance is the Fourth Amendment, which prohibits unreasonable searches and seizures. Whether it is the use of force by police on the streets, or surveillance of citizens from the air, police officials will tell you that the courts set the rules they must follow. Id long believed the judiciarys record on protecting our vital liberties was disappointing at best. I resolved to find a way to say so, to explain how important it was to get policing right.

But while I was searching for precisely what I wanted to say, I had a realization: Why dont the most basic of rules that apply in the rest of government also govern the police? Why is policing treated so differently?

For the rest of governmentwhich is to say, for environmental protection or workplace safety, or tax collection, or all the countless things that local, state, and federal governments do every day democratic governance is paramount. Before government officials act, we require rules that are written down in advance, that are public so everyone can know what they are, and that are adopted after the public has had a chance to weigh in. That is what democracy requires.

But when it comes to policing, the ordinary rules of democratic governance seem to evaporate. Policing officials decide for themselves how to enforce the law. The rules governing policing often are not public. Even more rarely are they adopted with public input. Instead, with policing, we try to fix things after the fact , after they go wrong: with civilian review boards, inspectors general, and especially with review by the courts.

This is an enormous failure of democracy. And its also counterproductive. If our attention to policing is always after the fact, were always mopping up messes instead of figuring out how to prevent them in the first place.

At a deep level what this book is about is getting the people to take responsibility for how policing occurs in this country. By developing rules and policies that are in place before police act. And by encouraging us all to think about what the Constitutions provisions that cover policing should mean. Because it is not and cannot be the job of the courts and the police alone to decide how we are policed as a societyit is the responsibility of all of us.

Recent events have made clear that getting policing right is one of the most pressing challenges we face as a society. Whether it is omnipresent surveillance, or the use of force on the streets, or concerns about fairness and discrimination and race, it is now apparent to many people that change is needed. The question is how we get there.

Given the nature of this bookand the unfortunate reality of twenty-first-century Americayou are about to read one story after another about some way in which policing went off the rails. These stories implicate everyone from cops on the beat to the head of the National Security Agency. And you will meet many perfectly innocent people who did not deserve what happened to them. (Youll meet plenty of guilty people, too, though we still should ask questions about the methods used to apprehend them.)

Even so, this is not a book about the failures of the police. I want to make that clear at the outset. I am going to call out two responsible parties repeatedly throughout this book, and neither are the police themselves.

The first actors responsible for the woes of policing today are the courts, which have done a perfectly appalling job of one of the chief tasks we have given them: protecting our basic liberties. I spend my life around judges, many of whom are good friends. Even so, I think the judiciary should be ashamed. Confronted with situations in which the police have done the most inappropriate and untoward things, too many judges simply cannot bring themselves to cry foul. To be fair, judging the police is tough. Ill explain why that is, and why it is wrong to expect judges to do the job alone. One of the chief lessons here is that they should not have to. But still.

The second party is the rest of us. We have abdicated our most fundamental responsibility as citizens in a democracy: to be in charge of those who act in our name. The authority to use force on citizens and to conduct surveillance of themthe powers that define policing and set it apartmay be necessary to maintain order, but those are the most awesome powers we grant any public servants. If we should be superintending anything in our society, that is it. Instead, weve dropped the ball.

The real problem with policing is not the police; it is us. We need to take responsibility for what is done in our names. We need to make decisions and give guidance, even if it isas it surely isa difficult thing to do. We need to take an active role in governing policing.