[A] free government . . . [is that] wherin they who are greatest . . . are not elevated above their brethren . . . [and] walk the streets as other men, may be spoken to freely, familiarly, friendly, without adoration.1
Police officers are executive agents empowered by the state to use physical force to coerce recalcitrant individuals to comply with public laws and other lawful directives. While this is not all they do, it may be their most distinctive feature.2 The police power to interfere with civilians and coerce compliance with law enforcement directives is, however, limited by law3—including constitutional law.4 And one core way in which the United States Constitution limits police power is by granting civilians the right, under certain circumstances, to contest or resist5 police interference, both in the courtroom and on the street.
Contesting policing may be protected by the Constitution, but (because of the police power to use force) in practice it is a deeply risky business.6 A number of recent incidents have highlighted ways in which police demands for compliance escalated into fatal seizures of unarmed African Americans.7 As a result, local, state, and federal governments have begun to investigate ways to curtail and control police use of force, primarily by considering new, less forcible styles of policing.8
Mitigating the police power to use force should not be a government’s only consideration even when developing practices to reign in police violence. In particular, legislators or police superintendents should not lose sight of core democratic and constitutional norms. The public should not face the cruel dilemma of forgoing their rights or facing harsh treatment from the police. Especially since, predictably, that cruel choice will fall disproportionately on those who are economically disadvantaged and socially marginalized, often on the basis of race or mental health.
The dilemma is all the more cruel because the United States Constitution not only entrenches rights to resist the police, but also requires civilians to resist policing precisely as the means of asserting those rights.9 The right to decline a police encounter,10 or police officer’s request to search,11 or police officer’s demand to answer questions on the street12 or at the front door,13 or during an interrogation14 requires the public to refuse to comply by walking away,15 or remaining silent,16 or calling for a lawyer.17 To fail to take these non-compliant measures negates those rights.
These constitutionalized rights and requirements to resist policing reflect more general democratic values. Mature democracies are both participatory and contestatory, providing their citizens with, not only a voice in the decision-making process, but also the ability to demand a response from public officials, whether legislators, judges, or members of the executive branch.18 Democracy, on this view, is a reciprocal process of public participation in government decision-making, rather than a unilateral imposition of the governor’s determinations upon the governed.19 Different democracies may create different ways of including and responding to the public in the policy-making process. But in America, at least, the public is (constitutionally) entitled to contest policing as it happens, on the street, within legally prescribed limits.
The failure to resist or a lack of conflict during an encounter or interrogation need not mean that the police are acting lawfully or in a non-authoritarian manner. Certainly, conflict-free and consensual policing precludes some egregious practices associated with the use of force. But as we know from decades of scholarship on Miranda waivers and consent searches, procedurally sophisticated police may undermine civilians’ rights in nefarious ways, sometimes without the civilians even realizing it.20 In other words, law enforcement can use psychological strategies to promote peaceful or conflict-free policing that nonetheless undercut core constitutional values to contest or resist policing. Worse, individuals may unwittingly accept or endorse the ways in which the police undermine those interests, thereby magnifying the democratic injury.
In Section II, I shall analyze some familiar features of Fourth Amendment doctrine on the laws of search, seizure, and interrogation to reveal that our constitutional law of criminal procedure entrenches certain rights to resist policing. Constitutional doctrine presupposes conflict as the way in which the public must assert those rights to be free from police interference. If civilians do not resist policing, they waive their rights to be free from police interference. Absent resistance, the police are free to engage in all sorts of behavior that encroaches on the public’s ability to go about their business undisturbed. So long as the police do not seize the civilian, they may pose questions without limitation, or follow the civilian around, or otherwise badger him. So long as the police obtain consent, they may search anywhere within the scope of that consent. Upon arrest, the police may seek to expand the scope of a lawful search or detention, or engage in probing custodial interrogations. And the police are, it turns out, psychologically sophisticated in badgering the public, obtaining consent, expanding the scope of their legally authorized investigation, and inducing suspects to talk. Preventing these types of police activity requires the civilian to contest policing by ending the encounter, withholding consent, or asserting her right to silence.
In Section III, I shall demonstrate that these constitutional rules reflect important features of modern democracies. One of those features is the value of contestation (in addition to the usual emphasis on participation). Minimizing contestation thus has important, negative effects upon democracy. In particular, contestation is one way in which we hold the state and its agents responsible, by ensuring that the state provides justifications for its activities. Without the ability to demand justifications from the state or its officials, we cannot force them to defend the legal and political propriety of their conduct.
In Section IV, I shall suggest that theories of policing that ignore contestation fail to honor important constitutional and democratic values. I shall take as my stalking horse one popular, contemporary theory of policing that is currently emerging as a leading solution to the problem of excessive uses of force: procedural justice. Procedural justice is a theory rooted in political psychology and sociology that emphasizes the value of compliance and cooperation with the police. It seeks to mitigate the amount of egregious violence the police use, primarily by demonstrating how a variety of conflict-avoiding techniques are more effective than the use of force in procuring civilian compliance with police directives during an encounter. These techniques include encouraging civilians to talk to the police during an encounter. But while procedural justice has confronted the issue of police violence, it has turned its back on the ways in which the constitution requires the public to contest policing or forgo their rights. Indeed, I shall argue, some of the techniques endorsed by procedural justice are the very techniques used by the police to procure waivers of rights and to reveal private information in ways that, when force is not at issue, we normally reject as end-runs around the Constitution.
II. The Constitutionally Entrenched Right to Challenge
The police are powerful. Videos of police killings and beatings of African American men21">http://www.nytimes.com/interactive/2015/07/30/us/police-videos-race.html?_r=0. and women22 have highlighted one aspect of police power: the ability to deploy physical force to overpower the people they encounter, wherever they encounter them.23 Whether the police interact with people on the street or in a schoolroom,24">http://www.nytimes.com/2015/10/29/us/south-carolina-deputy-ben-fields-fired.html?_r=0. by a swimming pool25 or in a car,26 even in a jail cell,27 law enforcement authorities have at their disposal a variety of tools and techniques for using overwhelming physical force to wrestle, hit, strangle,28 tase,29 or shoot30 individuals who do not follow their orders, or whom they deem to be a threat.
Police encounters are where the public engages most often and most profoundly with the police. These encounters can take a variety of forms, from the benign to the fatal. Encounters occur when passersby ask the police for directions or victims call 911; when a member of the public enters a police station to register a complaint; when an ill or injured person asks the police to call an ambulance; when the police order a jaywalker onto the sidewalk;31 or stop and frisk a suspect on the street;32 or give a driver a speeding ticket;33 or arrest a pan-handler for selling single cigarettes;34 or shoot a fleeing felon.35
Police encounters have received bad press since Terry v. Ohio,36 but especially so in light of extremely violent police tactics deployed in a variety of encounters with unarmed African Americans.37 Even the mildest encounter can escalate quickly and for many reasons, both good and bad. A police officer, while chit-chatting with a member of the public, may notice that the civilian possesses a weapon and is acting erratically, and correctly concludes that the civilian poses a threat to the community. The officer may try to reason with the suspect, and “talk” them into custody to ensure her own safety and the safety of others. In response, the individual’s behavior may become directly threatening to the officer or some bystander. And in response to that threat, the officer may resort to some kind of physical force, such as using pepper spray or a taser, to subdue and disarm the civilian. Here, the use of force may be necessary or justified to ensure public order or produce compliance with the law or the officer’s directives. If the civilian responds to the less lethal force in unpredictable ways, then the officer may resort to deadly force, and wound or kill the suspect. This sort of escalation can be quite hectic and occur extremely rapidly.38
The police exercise power over the public when they bring the machinery of the state to bear upon people through citations, arrests, and criminal prosecutions. Of all the ways in which the police may legally exercise power over a civilian, the police have most power when making an arrest. An arrest alters a civilian’s legal status by extinguishing her legal right to walk away,39 to refuse consent to a seizure or certain types of searches,40 or even to resist that amount of physical force the police reasonably deem necessary to ensure compliance with their directives.41 This sort of police power can have devastating physical, practical, and penal consequences, along with extremely harsh collateral civil consequences.42 For example, even when an arrest does not result in a prosecution, the process itself may be highly punitive,43 resulting in embarrassment,44 stigma, stress, and time in jail awaiting trial spent away from family or work.45 At the very least, an arrest creates a quasi-criminal record that increases the likelihood that law enforcement will treat subsequent contacts with the arrestee more seriously.46 But arrests are also an important first step along the path to charging, conviction, and sentencing. The police often play an important role at each of these stages.
The police officer’s legal ability to interfere with individuals is an exceptional one. For the most part, the police have the same legal powers and permissions as the rest of us.47 Normally, the police lack the legal power to enforce their will over the public.48 Police officers cannot just choose to interfere with some individual on a whim.49 They may only deploy their powers to interfere with individuals if they have some special legal reason for doing so. Because they usually lack special permission to interfere with members of the public, an individual can usually treat any police officer she might chance to meet on the street the way she would treat any other stranger.50 It is up to the individual to determine whether she interacts with the officer, and how she chooses to do so.
True, the reasons the police have to interfere with the public may outstrip those that the rest of us have. The police have special legal reasons to interfere if they suspect some individual of crimes or if that individual threatens public order.51 But when members of the public go about their everyday business, without committing crimes or undermining public order, the police lack these special legal reasons, and so lack the power to interfere. To reiterate: the usual baseline, whenever the police happen to encounter the public, is that the individual encountered has the liberty to refuse to help the police or to be helped by them.52
But even when the baseline changes—when a police officer does have the legal authority to stop or arrest someone—the civilian is not completely devoid of rights. The right to challenge a police officer’s decision to stop, search, or question is entrenched in the Constitution. Often, law enforcement officials request or require that civilians comply or cooperate with their directives, and often those directives seek to expand the nature and scope of authorized police activity. The Fourth, Fifth, and Sixth Amendments provide civilians with the power to decline to comply or cooperate with government officials by ending an encounter, refusing consent to a search, remaining silent when questioned by the police, and even demanding the presence of an attorney during custodial interrogation.53
In fact, challenging the police is not just a constitutional right: it is the way in which we assert our legal rights against the government in the context of policing. The Court, in cases like Florida v. Bostick,54 Schneckloth v. Bustamonte,55 and Salinas v. Texas,56 tells us that refusing to comply or cooperate with police authority is not just the primary way to assert our Fourth and Fifth Amendment rights. It is the only way: these constitutional rights are the right to walk away,57 to refuse to consent,58 and to decline to speak.59 The choice is to insist upon those rights or to waive them.60 If a civilian does not challenge the police, if she complies with police questioning, then the Court treats compliance as consent or cooperation, and the Fourth and Fifth Amendment’s protections do not kick in. Acquiescence, compliance, or cooperation vitiates the protections provided by the Constitution.
A. Contested Seizures
Our constitutional criminal procedure presupposes conflict as the way people assert their rights. Only by resisting the police—by (depending on your perspective) refusing to comply or cooperate, disobeying, engaging in conflict, and other equivalent terms—can individuals preserve a variety of constitutionally entrenched protections against state power during criminal investigations (and other interactions with law enforcement).
Legally permissible ways to resist the police are enshrined in a series of constitutional rights.61 Those rights to resist exist even when the police have lawful authority to stop, arrest, or otherwise seize or detain some civilian.62
Those rights do not extend to a civilian’s unlawful attempts to evade seizure by fight or flight.63 Civilians may engage in various forms of physical resistance, some of them violent and directed against police officers. Such resistance makes it hard and even dangerous for the police to effectuate a seizure. In such cases, the law permits a certain amount of force, proportionate to the crime and the danger inherent in the situation, to subdue the civilian’s attempts to resist the stop or arrest. But while we may often think of resistance to police in terms of unlawful fight or flight, there is another range of ways to resist the police that are lawful. These lawful challenges to police authority do not present a direct physical threat to the police, but do operate to limit police control over the civilian.
The quintessential Fourth Amendment seizure is the arrest: arrests have the dual feature of empowering the police to undertake certain other actions, including restraining the suspect and using force to overcome her physical resistance,64 and of negating the suspect’s right to resist being taken into custody.65 Arrests are not the only legal circumstance in which the police may use force: for example, the police may engage in brief custodial stops, during which time they may use force to detain the suspect.66 Arrests are, however, the central circumstance in which force is permissible: where the police officer has some justification for physically interfering with the civilian, the civilian can no longer demand to be free from physical constraint or reasonable amounts of force used to effectuate that constraint.67
But even an arrest is not some magic talisman, unleashing the full repressive force of the state upon recalcitrant civilians. There are limits to the extent to which arrests empower the police to compel compliance, and disempower the civilian’s ability to refuse to comply or cooperate. Even under arrest, civilians retain some rights to resist policing. Although the arrested civilian no longer retains the same control over her freedom of movement or security from searches as she might when not in police custody, she is nonetheless free to refuse to aid the police in their investigation,68 and may resist police attempts to have her cooperate, for example by refusing to consent to certain types of searches beyond the scope of the arrest, or to provide incriminating information. And what goes for arrests also goes for lesser seizures, such as investigatory stops.
It is easy to overlook these rights of lawful resistance to police activity.69 And it is especially easy to do so if we are primarily focused upon the ways in which the law permits the police to stop, arrest, and search, and the fact that the police can often lawfully use force to back up that permission. It is not the case, however, that the police may always legally use force to back up their directives, even when they have the power to stop, arrest, or search.70
It is nonetheless true that certain types of resistance may permissibly be met with some degree of force.71 And it is sadly true that the police use force even if the civilian’s resistance is only verbal or simply non-cooperative,72 and even if some form of verbal or non-cooperative resistance is required to assert one’s rights (to limit the scope of the search; to refuse to provide evidence or lengthen the temporal scope of the search by speaking with the officer; to get the officer off your porch; and so on). Sadder yet, the police too often, in practice, counter legally permissible resistance with legally impermissible force.73 And this is a risk inherent in many encounters.74
Given these considerations, an officer’s predetermination to seize a civilian, forcibly if necessary, and to sort out the mess at the station or in the courtroom75 tolerates serious harm to the civilian,76 often quite predictably on the basis of race.77 For example, one officer (citing the criticism police officers received after the killing of an unarmed African American, Michael Brown, in Ferguson, Missouri) opined:
[H]ere is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you . . . My field stops last minutes. How difficult is it to cooperate for that long?78
In these cases, officers may believe that the street is no place to contest a seizure, even when such contestation is lawful. Where all that is involved is a brief stop, for example, an officer may assume that it is the civilian’s civic duty to comply.79 And officers may be more insistent upon exercising their control over civilians when they have predetermined they will stop certain groups or act to further certain policies. Perhaps the most familiar of these predetermined searches are “investigatory stops,”80 where the police officer has decided to engage in a search for evidence of crime—often drug crime—before embarking on her encounter with the public. The officer already intends an outcome—the officer will search the civilian—and probable cause, reasonable suspicion, or consent is simply a means by which to obtain such a search.81
The core problem with predetermined investigatory activity is that it is unilateral rather than reciprocal.82 In a unilateral interference, the officer is not interested in responding to the concerns or information raised by the civilian she interferes with. Instead, the officer seeks to achieve a particular investigatory goal—to search the person or property of the civilian she encounters. The officer’s goal is to achieve physical or psychological control over the civilian for as long as it takes to engage in the investigation. The purpose of a unilateral interference is thus to gain access to some space or person. In contrast, the purpose of a reciprocal encounter is to determine what sort of action is necessary, and whether further investigation is needed or warranted, including finding that it is not. In a reciprocal encounter, the police officer is willing to step back, de-escalate, or even forgo compliance or cooperation when the evidence or the civilian’s behavior does not merit the sort of drastic intervention that policing—particularly investigatory policing—often entails.83
Policing routinely raises the conflict between maintaining control and respecting the rights of civilians.84 On the one hand, the police are in the business of order-maintenance: they are expected to establish, by force if necessary, control over the circumstances they encounter on the street.85 On the other hand, the police are expected to conduct themselves according to the rule of law, and are sworn to uphold the rights of the civilians they encounter.86 These two aspects of the police role—law and order—often find themselves in tension.87 For example, an officer who proposes to take control of an unruly individual or group may have to separate the individual or group from other bystanders and control the disruptive behavior. One way of resolving the tension—the order-maintenance or unilateralist way—insists that on the street, the police officer’s interest in using force to establish control takes priority, and defers questions of the rule of law to the courtroom.88
Pushing the rule of law off the streets and into the courthouse reinforces the tendency to treat civilian scrutiny of police conduct on the street, even if only by challenging the police to justify their intrusion, as the sort of activity that merits a physical, forcible response.89 This unilateralist or order-maintenance approach conflicts with rule of law, which preserves certain rights of non-compliance even during lawful stops, arrests, and other seizures.90 Too often, in the name of control or public order,91 we see the police subject civilians to “petty,”92 but nonetheless forceful, indignities in response to small acts of lawful, non-violent resistance93—taping the officer,94 cussing the officer out or treating the officer disrespectfully,95 refusing to put out a cigarette.96 In these circumstances, it is the public who need protection from unlawful or excessive police force, rather than the police requiring protection from the public.
All this is to reiterate that, even during a lawful seizure, when the police have most power and most reason to search and seize, the rule-of-law and public-order interests of police officers may be internally inconsistent and can come apart in important ways. Even at its zenith, the police power to interfere with civilians is a legally limited one.97 Policing often inflicts harms upon the individual (not simply through the normative consequences of an arrest, but also through the inconvenience and stigma of encounters, stops, and searches).98 Given these legal limits, police interference stands in need of justification. Where the police lack some justification to arrest or otherwise interfere with a civilian, the usual baseline applies, and they stand in relation to that civilian as any other person would. And, like any other person, when the police lack the required justification to interfere, they must respect civilians’ refusals to comply or cooperate—to resist policing.
B. Challenging or Waiving
The law empowers police officers to engage in a variety of more-or-less intrusive investigatory practices that impinge upon civilians’ liberty rights. I shall consider three characteristic types of law enforcement activity that occur during police-civilian interactions up to and including arrest: (1) non-custodial following and questioning, (2) asking for consent to search a person or her effects, and (3) custodial interrogations. In each of these types of encounters, I suggest, the various rights not to comply or cooperate with police activity depend upon the actions of the civilian to refuse to comply and to terminate the police activity. I then demonstrate that each of these three types of police activities has undergone sustained criticism over the past forty years directed at the ways in which the police use psychological ploys and pressure to preclude the sorts of challenges that lead to civilian non-compliance or non-cooperation with the police. These psychological ploys have attracted such sustained criticism because they enable the police to dominate the public by undermining an individual’s ability to choose or assert her various rights to be free from police interference.
1. Free to leave.
The difference between a custodial stop or arrest and a non-custodial encounter turns on whether the police officer interferes with the civilian’s liberty right to decline the interaction. That right is neatly captured by the idea that the civilian is “free to leave.”99
Non-custodial encounters do not implicate the Fourth Amendment at all.100 In the context of an encounter, the civilian and the police officer share equal legal standing to initiate or terminate the encounter. On the one hand, “police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions.”101 The police may initiate an encounter for any reason or no reason, as they choose. On the other hand, to counterbalance the police freedom to initiate encounters, the Court has consistently recognized the civilian’s right to refuse (for any reason or no reason) to participate in police encounters.102 As early as Terry v. Ohio, the Court recognized that whenever a member of the public is approached by a police officer, “ordinarily the person addressed has an equal right to ignore his interrogator and walk away.”103 The individual retains her liberty right “to decline the officers’ requests or otherwise terminate the encounter,”104 and “remains free to disregard the [police officer’s] questions”105 and “to disregard the police and go about h[er] business.”106
However, unless the individual does contest the encounter, by refusing to comply or cooperate or otherwise challenge the police officer’s power to interfere with her, the encounter is presumed consensual. The Court repeatedly emphasizes that “[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.”107 Law enforcement officers, like any stranger on the street, may converse with and even question the people they encounter while going about their daily business.108 So long as the police do not use threats or intimidation (just like interactions with other strangers on the street) the encounter is non-coercive.
The law of police encounters establishes that police interactions with civilians rise to the level of coercion only if the officer impedes the civilian’s freedom of movement or demands that the individual answer questions.109 Police officers can engage in quite intrusive activity before their conduct rises to the sort of coercion covered by the Fourth Amendment. For example, asking an individual for identification,110 including immigration papers,111 is not enough to establish the sort of coercion sufficient to make an encounter involuntary,112 so long as the civilian questioned is free to “go about his business.”113 Instead, the sorts of coercive police activity sufficient to constitute a seizure requires that the police use114 or threaten the use of force,115 or engage in some other “intimidating”116 assertion of police authority, such that the individual reasonably felt that she was not at liberty to disregard the police, “terminate the encounter . . . [and] refus[e] to cooperate.”117
The civilian, not the police, is the one who bears the burden of establishing, by her words or conduct, that she does not want to cooperate or comply with the police.118 To rebut the presumption of voluntary cooperation, the person questioned must actively demur to indicate that she does not want to interact with the police. Refusing to comply or cooperate, “declin[ing] to listen to the questions at all and . . . go[ing] on his way”119—that is the manner in which an individual legally signals that she has decided to terminate the encounter.
Resistance or non-compliance is built into the standard for assessing when the police have engaged in a coercive interaction. The test to establish when a seizure occurs asks what a reasonable, innocent person would feel free to do, given the law enforcement official’s conduct.120 The Court’s reasonable person standard envisages a person who is not only un-intimidated by police questioning, or by requests for identification or papers,121 but also is comfortable with having police officers positioned in the doorways of her place of employment,122 or walking up and down the cramped aisles of buses or subway cars,123 or “trains, planes, and city streets.”124
Law enforcement officials are not required to tell the civilian that she need not interact with the police, whether at the outset of an encounter or even when a custodial stop has ended and it has entered a non-custodial phase.125 Thus, when a police-civilian interaction that begins as custodial, coercive, and thus involuntary (the individual is not free to leave) transforms into one that is voluntary (the police officer has finished her official business and would let the civilian go if she tried to leave), it is up to the civilian to discern that shift in her legal status because the police officer has no obligation to inform her that the custodial stage has ended and she now has a right to leave.126 If the civilian falsely believes she has a duty to remain and cooperate with the police then—so long as the police have not unreasonably induced this belief—Fourth Amendment protections do not apply, and the police can take advantage of the civilian’s false belief to question or observe her as part of a criminal investigation.127
Even terminating the encounter is a legally fraught business.128 The Court repeatedly emphasizes that the civilian has a right to decline non-custodial encounters, and leave or go about her business. The officer is not to regard the civilian’s refusal to comply, on its own, as a justification for seizing the non-compliant individual.129 However, individuals cannot, as a legal matter, leave in any way they see fit. For example, if the civilian is encountered in a “high crime” area, then leaving too quickly, or actively fleeing130 can overcome the usual presumption that a refusal to cooperate with the police does not constitute the sort of suspicious activity that could operate as grounds for a seizure.131 All this is quite apart from the (illegal) tendency to treat refusals to cooperate as “contempt of cop.”132
The Fourth Amendment thus places a high burden on a civilian to resist the police only in the appropriate way. Indeed, to decline the encounter, the Constitution requires her to act as an innocent person would.133 And the civilian may in fact be innocent, even if the officer has probable cause to arrest or reasonable suspicion to seize. So constitutional criminal procedure doctrine both requires resistance from and places the risk of resisting—including that the officer will use force to terminate lawful resistance—upon the civilian.
For the past forty years at least, the Court has repeatedly emphasized the importance of consensual policing. At the same time, however, the Court has emphasized that consent must be voluntary, and that the public has the right to refuse to consent to police searches or seizures where the police lack reasonable suspicion or probable cause to believe a crime is being or has been committed. Put most plainly, the default presumption is non-consent; constitutionally, “consent is [the] exception[.]”134 And the police may not simply infer consent from acquiescence to a legal claim of authority: legally, affirmative consent is required to search.135
Nonetheless, the Court thinks there are important advantages to promoting consensual investigatory interactions between the police and the public. Consent to search, the Court thinks, increases legitimacy by encouraging the public to participate in the process of licensing police searches.136 Through the process of asking for and giving consent, policing becomes a joint activity, in which the police and the civilian act out of mutual respect and consideration. As the Court puts matters in United States v. Drayton:137
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.138
All in all, the Court presents civilians as having the legal right and legal agency to extend or withhold permission for the officer to search. The officer’s actions in searching are legitimate only to the extent that she respects that agency: first, by acquiescing to a civilian’s refusal of consent; and second, limiting her search to those areas reasonably indicated by the civilian if she gives consent.139 The Fourth Amendment thus permits individuals to resist the initial request for a search and to limit the scope of the search by requiring the police to adhere to the boundaries dictated by the civilian.
Although (because of these legal liberty rights) in principle non-consent is the baseline, in practice, the Court requires some clear evidence of resistance or non-cooperation to demonstrate non-consent. Legally, an officer cannot demand or coerce consent: cooperation must be voluntary to be consensual.140 Mere acquiescence, in response to overbearing and coercive police conduct, does not count, legally, as consent.141 In practice, however, it is “almost impossible to separate out those situations in which a person ‘truly’ wants to consent from those situations in which a person feels compelled to acquiesce.”142 Thus, although voluntariness is a subjective standard focused on the civilian’s decision-making process, the Court has consistently looked to the context in which the civilian chose to give or withhold consent, and has regarded the actions of the police officer toward the civilian as determinative.
The result is, absent non-compliant conduct, acquiescence constitutes consent. In a trio of early consent cases, Schneckloth v. Bustamonte,143 United States v. Watson,144 and United States v. Mendenhall,145 the Court held each time that the civilian’s subjective choice to give consent to a police search was not, under the totality of the circumstances, vitiated by overbearing or coercive police conduct. The civilian’s consent was voluntary so long as it was not the result of “implicit threat or covert force,”146 no matter that the civilians may be from vulnerable populations (Hispanic men in Schneckloth;147 an African American woman in Mendenhall148) who might feel particularly incapable of resisting the police officer’s polite “May I?”149 All that matters is the outcome: whether the defendant complied or not.150
One reason non-compliance is necessary is the Court’s focus on police conduct. There is no coercion, and thus consent is voluntary, so long as the police officer does not engage in some “overt act or threat of force . . . no[r make] promises . . . [nor engage in] more subtle forms of coercion that might flaw his judgment.”151 In fact, courts find that passively going along with police requests to search almost always indicates consent, under the totality of the circumstances.
It is worth remembering that while consent could be used as an alternative to an arrest or other lawful seizure (an officer with probable cause or reasonable suspicion to suspect a civilian of criminal activity could first seek consent), the police may seek consent precisely when they lack a justification for seizing a civilian.152 Indeed, the idea that consent is a substitute for an officer’s legally cognizable justification for a search or seizure underpins the doctrine. The Court has recognized that the police have an overriding interest in obtaining the consent of the public to participate in police investigations: “In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.”153
However, the Court treats that interest favorably as a reason for promoting consent.154 Thus, even the fact that the defendant was already detained by the state and in custody may be insufficient to establish non-consent.155 Instead, under the voluntariness standard’s focus on the civilian’s capacity for choice, some more overt act of non-consent is usually required to establish that the civilian does not wish to cooperate with law enforcement.
The idea that some overt act of resistance or non-compliance is required to indicate non-consent is solidified in a line of cases that more directly focuses on the reasonableness of the officer’s actions in inducing consent (and so less on the civilian’s subjective characteristics). The officer-focused test equates non-coerciveness with reasonableness, and reasonableness with consent.156 Where the civilian complies with the police, so long as the officer’s conduct is non-threatening, consent is presumed. The only way to rebut this inference of consent is through express, clear resistance to the officer’s request.157
For example, in United States v. Drayton, police officers boarded a bus and announced that they were conducting a drug interdiction. An officer stationed himself in the driver’s seat, next to the door, as other officers entered the bus and questioned the passengers. A variety of factors could have indicated the encounter was coercive: the officers’ display of badges; their clearly visible (though holstered) weapons; their choice to question passengers on the bus rather than in the bus station;158 the officer’s decision to question just prior to the bus’s scheduled departure; and the close proximity between the officer and the passengers when asking for consent to search. Nonetheless, the Court discounted all of these factors when finding that Drayton had voluntarily consented to a search of his person: the consent was voluntary because Drayton did not resist, but instead cooperated with the police; and that cooperation was not coerced through overt physical threats.159
3. Right to silence and to an attorney.
Perhaps the most famous of the investigatory rights are the rights to silence and to an attorney. These rights expressly entitle civilians not to comply: the police officer wants the civilian to answer her questions, and to do so unassisted by an attorney’s advice. And the reason these rights are famous—“part of our national culture”160—is the requirement, first articulated in Miranda v. Arizona,161 that police officers expressly warn civilians of these rights. Under Miranda’s prophylactic warning scheme, not only does the civilian have a right to resist or challenge the police during a custodial detention: the police must expressly inform the civilian that she has these rights.
The Miranda Court regarded its warning scheme as advertising two “basic” rights:162
[These] rights . . . are enshrined in our Constitution—that “No person . . . shall be compelled in any criminal case to be a witness against himself,” and that “the accused shall . . . have the Assistance of Counsel” . . . These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured “for ages to come, and . . . designed to approach immortality as nearly as human institutions can approach it.”163
And the Miranda Court was clear that competitive contestation between police and the public necessitated the warning scheme to ensure that “the constitutional rights of the individual could be enforced against overzealous police practices.”164
Once again, however, while the baseline is a constitutional right not to comply with police officers’ attempts to incriminate oneself, passivity waives the right. Non-compliance is not only the essence of the rights to silence and to an attorney, but necessary to invoke these rights. Consider one of the two rights covered by the Miranda warnings: the privilege against self-incrimination. “[A] witness who desires the protection of the privilege . . . must claim it at the time he relies on it.”165 Passivity is not enough. Absent an express invocation, a civilian eventually waives her right to silence.166
The problem animating Miranda was the worry that the police could coerce confessions from recalcitrant civilians. The great innovation of the Miranda decision was to make it easier for the civilian to resist interrogation. First, the Court designated all custodial interrogations as interactions deserving of increased judicial scrutiny, because such interrogations were presumptively coercive.167 Second, the Court emphasized the contestatory nature of the interrogation, by requiring the police interrogator to provide the civilian with a series of warnings, and to ask the civilian whether or not she wished to speak to the police and whether or not she would like an attorney to help her decide what to say, if anything.168 Third, the Court went further than subsequent cases in the encounter and consent context by—in Miranda, at least—demanding that the police must avoid both physical and psychological threats, and backed up these protections by imposing a “heavy burden” upon the state to prove that any uncounseled custodial interrogation was voluntary.169 Uncounseled waiver, in other words, was a sign of police coercion.170
After Miranda, however, the law on custodial self-incrimination has increasingly placed the onus for contesting police questioning on the civilian (rather than treating the warnings as regulating the police). First, the Court limited what counts as the sort of custody triggering Fifth Amendment protections. The Court separates the sort of questioning that occurs during a nominally cooperative encounter, or even a somewhat coercive police stop, from questioning during a full-blown custodial detention.171 Only the latter receives the Fifth Amendment’s protection, including the requirement of the Miranda warning. Otherwise, the interaction is governed by the Fourth Amendment’s rules for declining to cooperate during the encounter, which apply outside the custodial setting,172 and the police are free to ask questions and elicit incriminating information without informing the civilian of her rights not to cooperate.
Second, even when the suspect is in custody, the Court has transformed Miranda’s focus so that the Court now concentrates upon the voluntariness of waivers.173 The voluntariness of a waiver depends less upon the civilian’s subjective decision-making and much more upon the actions of the police interrogator in coercing a waiver. The Court’s jurisprudence has, in effect, slowly moved from an almost-categorical voluntariness test in which a confession almost automatically undermines the voluntariness of a waiver, to something closer to the Fourth Amendment reasonableness test.174 The Court developed its Fourth Amendment test in the context of encounters and cooperation. That test focuses on the actions of the police and treats civilian acquiescence as voluntary cooperation so long as the police do not engage in physical violence or threats thereof. The Miranda waiver test, developed in the context of custodial interrogation, has mostly followed this same path. So long as police conduct is non-intimidating, any civilian compliance with the request—or demand—to cooperate is taken as consent.
For example, the Court endorsed the admissibility of non-threatening police questioning in Moran v. Burbine.175 In that case, the Court dismissed the legal significance of the confessor’s subjective mental state, instead contrasting “free and deliberate choice[s]”176 with ones that were the product of “intimidation, coercion or deception,”177 where coercion was understood as “physical or psychological pressure.”178 Similarly, in Colorado v. Connelly,179 the Court emphasized that “[t]he voluntariness of a waiver of this privilege [against self-incrimination] has always depended on the absence of police overreaching[.]”180 The Court stressed that its worry was whether or not the officers “intimidate[d] or threaten[ed] respondent in any way.”181 In each case, once the police recited the warnings, the burden of asserting the privilege against self-incrimination, absent intimidation, lay with the civilian seeking to avoid confessing.
Reducing Miranda’s heightened waiver standard creates a gap between physical coercion—which would violate the Fifth Amendment—and non-coercive conduct designed to induce waiver. So long as the police do not threaten or intimidate the civilian, they may use various forms of trickery or psychological manipulation to induce waiver.
Trickery undermines a civilian’s ability to resist police attempts to act against her interests. The problem is not simply the one articulated in Moran v. Burbine182—that the civilian does not have all the necessary information before her.183 Instead the problem is that, however much information the civilian has to work with, she does not decide on her own, but decides under the influence of police pressure (whether she knows it or not).
Trickery thus removes from the equation the sort of responsiveness that contestation makes essential. The officer need not respond to the civilian’s articulation of her rights or any information she produces, because that is not the way in which a trickery-based interaction is structured. Instead, a trickery-based interaction contemplates a unilateral, non-responsive approach; one in which the officer seeks a particular outcome no matter what. Indeed, just this worry motivated the Miranda Court, which expressly held that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”184
C. Police-Induced Waivers
The Fourth, Fifth, and Sixth Amendment jurisprudence on encounters and interrogation distinguishes between the government’s obligation not to threaten or intimidate civilians into waiving their rights and a government obligation to provide the civilian with all the information necessary to make a fully informed choice. The constitutional law of encounters and interrogation thus distinguishes between the negative freedom to be free from state coercion, through physical threats and intimidation (which freedom the Court is willing to protect), and the positive freedom to access those facts in the state’s hands that might be relevant to the civilian’s choice (which freedom the Court will not protect). In between these two types of freedom lies a third way in which the state may affect the civilian’s decision-making: psychological pressure designed to influence the civilian to do as the state agent desires.185 It is this psychological influence that the Court treats as permissible and which the police often seek to exploit during encounters or interrogation.
This sort of psychological manipulation or influence directed by the police toward civilians has been a theme of encounter and investigation law for the past fifty years. Often, the worry is that civilians feel coerced, even if the police do not perceive their behavior as coercive (and the Court, applying a police-centric standard, does not either).186
But a more invidious feature of psychological influence emerges when the public does not experience police manipulation as a form of intimidation, yet nonetheless acts under the sway of police manipulation. In such circumstances, the police can use psychological techniques unilaterally to control civilian behavior. Though not intimidated, the civilian is nonetheless dominated by the police, and induced to comply or cooperate, unwittingly and unquestioningly, with police directives. This form of psychological domination is designed to ensure that civilians forego their opportunity to contest the legitimacy of police activity or to choose to do otherwise than the police direct.
1. The police officer’s courteous “May I.”187
The police use conversational techniques to extend encounters in ways that allow them to exert unilateral psychological influence over civilians, to ensure those civilians follow police directives. For forty-five years, at least, courts have recognized that “under many circumstances a reasonable person might read an officer’s ‘May I’ as the courteous expression of a demand backed by force of law.”188 If the baseline contemplates force as necessary to exert control, then even polite requests may signal non-negotiable directives. Indeed, the Ninth Circuit’s prescient conclusion, explicitly endorsed by Justices Douglas and Marshall (both in dissent) in Schneckloth, has been fortified by “empirical studies over the last several decades on the social psychology of compliance, conformity, social influence, and politeness . . . all [of which] converged on a single conclusion: the extent to which people feel free to refuse to comply is extremely limited under situationally induced pressures.”189
In many of these studies, the impact of circumstantial factors such as surprise,190 physical proximity to the subject,191 an authority relationship between the questioner and subject,192 or the willingness of others to accede to the questioner’s requests,193 was demonstrated to create a tense or overbearing atmosphere in which the subject became less likely to refuse to comply with some request.194 The claim is that such activity is sufficiently discomfiting to amount to coercion.195
Thus, while some of the policing literature, concerned with fitting the psychological features of law enforcement’s consent-inducing behavior into the court’s coercion jurisprudence, tends to stress the feelings of domination associated with polite request-demands for consent to search, such feelings could also be associated with a sense of obligation (a legally acceptable form of “coercion”) as much as a fear of sanctions.196 In either event, the individual is psychologically manipulated to waive her rights in ways she might not choose to do were she confronted with a peer or inferior.
Police interactions with civilians need not threaten force to engage in the sort of psychological manipulation sufficient to induce consent. Indeed, the very fact that the request is phrased in a low-key manner may have a greater psychological impact than if phrased as a high-stakes demand.197 Polite requests are often interpreted as commands, especially if the request comes from a superior (or someone who is perceived as a superior).198 Accordingly, because police officers are state officials who civilians commonly perceive as having legal authority and as wielding a great deal of legal and physical power, the police can use their status to subtly transform their requests into demands.199 Overtly, the officer may be extremely polite. However, consciously or not, the civilian target of the police officer’s investigatory suspicion may feel an obligation to comply with the officer.200
Consider, for example, two of the major cases in the consent search literature, Schneckloth and Drayton. In Drayton, the Court repeatedly emphasized that the officers were extremely polite:
The Court pointed to the officer’s quiet and polite tone of voice, the fact that he did not state or suggest that citizens he spoke with were required to answer, that he talked to passengers one by one, and that he did not say or suggest that passengers could not leave the bus or could not terminate the encounter.201
Similarly, in Schneckloth the officers appear to have been calm and polite, simply asking Alcala, one of the occupants of the car they had stopped for a registration violation, “Does the trunk open?”202
In other words, he merely asked a question, the point of which is usually to obtain information. He did not directly request permission to search the trunk. Yet Alcala’s response—finding the key and opening the trunk—indicates that he understood this ostensible question as at least a request, and probably a command, to open the trunk.203
The officer’s polite “May I” may be part of a scripted interdiction strategy,204 or it may be part of the officer’s casual but regular policing practice.205 In either case, officers regularly make it their practice to ask:
[V]ague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search . . . Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . a regular part of police jargon.”206
The whole point of the conversational consent technique is to encourage the civilian to participate in and extend the search process through the verbal act of consenting. Perhaps the classic case of the “conversational consent” search207 is Ohio v. Robinette.208 In Robinette, the officer completed his traffic stop, issued a citation, and then asked, “‘One question before you get gone: [A]re you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?’ Robinette answered ‘no’ to these questions, after which [the officer] asked if he could search the car. Robinette consented.”209
As Justice Ginsburg noted in her concurrence:
The deputy testified in Robinette’s case that he routinely requested permission to search automobiles he stopped for traffic violations. According to the deputy’s testimony in another prosecution, he requested consent to search in 786 traffic stops in 1992, the year of Robinette’s arrest . . . One Ohio appellate court noted: “[H]undreds, and perhaps thousands of Ohio citizens are being routinely delayed in their travels and asked to relinquish to uniformed police officers their right to privacy in their automobiles and luggage, sometimes for no better reason than to provide an officer the opportunity to ‘practice’ his drug interdiction technique.”210
These conversational consent searches employ techniques, which (we will see) are familiar from the Miranda context, in which officers use run-on sentences, minimizing, and other psychological strategies to encourage civilians to speak up and thereby waive their rights.211 In each context, the officer’s strategy is to initiate or extend the encounter by giving the civilian a voice and opportunity to be heard. Yet it is precisely by agreeing to talk, rather than resisting the officer’s invitation, that produces the civilian’s waiver of her rights. The officer sells the consent search to the civilian as an opportunity to dispel suspicion or to help the police by cooperating in a process oriented toward decreasing crime and increasing security.212 Such a strategy might, superficially, appear democratically laudatory (the Drayton and Schneckloth Courts certainly thought so).213 But the real purpose of the these conversational practices is (psychological) control: the police are using tried and tested techniques of psychological influence to ensure that the civilian follows their directives, whether she would rather refuse to or not, and whether the civilian feels the compulsion arising from a sense of internal obligation or external threat.214
2. Warnings and waivers.
The psychology of interrogation has been the subject of study for over eight decades.215 The police have employed such practices for well over fifty years,216 training in interrogation techniques since well before the Court issued its decision in Miranda denigrating the value of psychologically produced waivers and confessions.217 There is widespread agreement that these psychological techniques successfully induce waivers and confessions by simultaneously encouraging the civilian to participate in the process of interrogation while police interrogators control its subject matter. Police interrogators exert such “control over the suspect’s attitudes and emotions,”218 that the “structure and . . . sequence [leading to waiver or confession] . . . remain hidden from the suspect”219 so that the suspect does not even realize she has been manipulated by the police.220
A variety of ethnographic studies221 have bolstered one of the Miranda Court’s core conclusions:222 the police design their psychological manipulation of suspects during the interrogation process to ensure that law enforcement interests dominate the civilian’s entrenched constitutional values.223 And the police seek to maintain that dominance whether or not the civilian invokes her rights.224
The police actively encourage civilian participation in the interrogation process, framing it as the way in which the civilian gets to give voice to her version of events.225 Participation undermines the sort of resistance that depends on asserting the rights to silence and to an attorney. The techniques used to induce participation are somewhat ritualized: indeed, Charles Weisselberg, one of the foremost scholars on police use of Miranda, argues that police tactics during interrogation, like the practice of religious confession, is “based on the belief that there is a reward for speech.”226 The ritual serves an important psychological function, however. It serves to:
[C]arefully create and exploit the role obligations of the [civilian]. These obligations are based on informal social understandings built into the particular [situational context]. Drawing on these everyday understandings of the situation, the [officer] obtains compliance by appealing to the [civilian]’s desires or personal vulnerabilities, as well as to his sense of obligation within the situation.227
As a first step in the interrogation process, the officer predetermines whether or not the civilian is guilty by observing her body language for telltale signs.228 The practice of body-language interpretation is, however, notoriously flawed.229 It often produces mistaken and overly-confident police assessments of civilian guilt.230 These predeterminations, even if mistaken and overly-confident, drive the rest of the interrogation, in which the officer unilaterally seeks to confirm the civilian’s guilt by encouraging the civilian to participate in the process, while simultaneously but subtly discouraging resistance.231
A core feature of the process concerns the giving of Miranda warnings, where the interrogator’s goal is to encourage the suspect to undervalue the significance of waiving her rights. Observers find that the practice of interviewing the suspect can be quite avuncular at the point of the civilian’s waiver decision, reminding the civilian that she has seen the warnings on television many times, “perhaps joking that the suspect is already well aware of his rights and probably can recite them from memory.”232
The low-key introduction of the Miranda warnings and the need to sign a waiver form is part of a psychological strategy of minimization or trivialization233 in which the officer seeks to maintain unilateral control over the interrogation—against the civilian’s pragmatic and legal interests—by inducing the civilian to comply with her wishes and sign the waiver. Researchers found that “[o]ne of the most powerful de-emphasizing strategies involves focusing the suspect’s attention on the importance of telling his story to the interrogator.”234 As in the consent search context, low-stakes conversational manipulation is a powerful psychological tool deployed by the police to induce civilians to comply with police requests and waive their rights to silence or to an attorney.
The police employ similar tactics after waiver to induce confessions. The interrogator will emphasize her role as a mediator between the civilian suspect who needs to explain what happened and a prosecutor who intends to aggressively pursue the harshest charges possible.235 The officer may also downplay the adversarial nature of the proceedings at this stage, instead insisting that she is the suspect’s friend or ally, someone to whom the suspect should speak so she can have a voice in the criminal process.236
The interrogator’s strategies, though she may portray a friendly or joking tone and profess shared interests between the officer and the civilian,237 are designed to maintain unilateral police control over the civilian’s decision to waive her rights. “[A]ccording to the rhetoric of police interrogation training manuals and courses, as well as the conventional wisdom in police culture, the interrogation tactics that a detective uses should be the decisive influence in a suspect’s decision to provide police with incriminating information.”238 The purpose of interrogation strategy, though it may appear polite, non-threatening, and respectful of the civilian’s dignity, allowing her a voice in the interrogation and waiver process, is nonetheless to ensure that the civilian complies with the officer’s wishes. This unilateral psychological manipulation of criminal suspects by police investigators has proven so successful that Miranda, with its prophylactic warning scheme, appears to have had little impact upon law enforcement’s ability to secure a waiver of rights.239 Indeed, so effective are some officers at obtaining a Miranda waiver, some suspects may not even know they have waived their rights or realize that they have been under the influence of an interrogator whose goal was to maintain unilateral control of the process from start to finish.
Yet these techniques of trickery and misdirection have profound democratic consequences. They preclude individuals relying on the reasons that apply to them, and so substitute psychological domination for rationality. As Oxford philosopher John Gardner suggests, this sort of manipulation:
[O]n the part of a liberal government . . . is [wrong] . . . because it is a condition of its success that it is opaque to those who are subjected to it. Manipulation does not confront but bypasses our rationality; it does not override what we want to do with something we want very much to avoid but rather makes us believe that we wanted to do something different in the first place. That kind of surreptitious approach to its people, the liberal State should prefer to avoid.240
Armed with the officer’s reasons, individuals could determine—autonomously, for themselves—whether to accept or refuse the public official’s offers of help, friendship, or security. If a civilian chooses to extend a non-custodial encounter, she could demand that the officer articulate her reasons for following, questioning, and so on. If the individual decides to terminate the encounter, she can stop answering (most)241 questions and walk away.242
Trickery and manipulation to obtain waivers of guaranteed rights is thus not only constitutionally problematic. It attacks the basis of our democratic government, which is founded upon reciprocal consideration of the position of the governed and the governor. Absent some process to ensure that the public’s rights and interests are taken seriously by the state, consent and cooperation alone are insufficient to guarantee the government is not taking advantage of its citizens in ways that entrench hierarchical domination and state authoritarianism.
III. Challenging State Power
Contestation is a necessary feature of democracy. We live in a world of plural and conflicting values, where reasonable disagreement and dissensus with other members of the body politic about questions of justice or social welfare is a core obstacle to setting goals for ourselves and our society.243 Democratic practices are supposed to help us overcome these obstacles. Furthermore, the police are central figures in this democratic process. The police, as executive officials, posses the power to impact in very direct ways our ability to set and achieve goals on the ground, in our communities, for good or for ill. From the perspective of constestatory democracy, “the special [democratic] salience of the police immediately becomes clear: the police are both a uniquely powerful weapon against private systems of domination and a uniquely frightening tool of official domination.”244 Contestation or resistance—“opposition and dissent”245—are not impediments to policing, but important democratic checks upon it.
When setting communal priorities, modern democratic systems must both cope with a diversity of opinions while also attempting to prevent elites from dominating the decision-making process by imposing their values on the rest of us. Any account of democracy must accommodate both its participatory aspects—giving a voice to all members of the body politic—and its contestatory aspects. A thriving democracy, on this view, is not simply an echo-chamber for the powerful, but a means of challenging and checking that power, one in which the least in the society can look the greatest in the eye and demand that she both produce reasons for her actions as well as respond to the justified reasons of others. Thus, a core feature of democratic politics is creating more or less structured opportunities for members of the community to air their disagreement with each other (including their superiors), take one another’s views about justice and interests seriously (whatever their status in the community), and respond to those views by proposing and contesting solutions to our common problems.246
One democratic line of response to the fact of reasonable pluralism is to ensure that each member of society is able to participate in the decision-making process by being able to give voice to her interests and values. We might think of this as an issue about the scope of democracy—ensuring that as many as possible, and ideally each member of the democracy, play some role in the deliberative and decision-making process, either personally or (most commonly for large democratic institutions such as parliaments and congresses) through a representative.
Concerns about the scope of democracy do not translate into guarantees of reciprocity. Allowing more people to voice their opinions through the democratic process need not entail that their participation matters to those making the decisions. Accordingly, acting upon the participants’ views, especially given the competing and incommensurable values that may be at stake, requires the creation of institutions and opportunities structured so that all members of the public can ensure their values and interests are recognized, affirmed, and addressed.247
Perhaps the most central of the political institutions we have constructed to engage in these types of challenges and disagreements are representative assemblies,248 such as a congress or a parliament, the sort of institution John Stuart Mill described as:
A place where every interest and shade of opinion in the country can have its cause even passionately pleaded, in the face of the government and of all other interests and opinions, can compel them to listen, and either comply, or state clearly why they do not, is in itself, if it answered no other purpose, one of the most important political institutions that can exist anywhere.249
Indeed, our democracy is filled with a plenipotentiary of what Philip Pettit calls: “[A]lternative institutions–judiciaries, tribunals, ombudsmen, upper houses, and local boards–through which individuals, specific subsets of the citizenry, and (more ambiguously) even the citizenry itself might variously contest, review, or amend decisions made by elected elites.”250
We would rightly regard such institutions as undemocratic if some elite group could routinely impose its will upon them; for example, if the legislature simply served to ratify the decisions of some oligarchy.251
We generally denigrate elite domination of the political process (from above or below) because we want something more than a facsimile of democracy to stifle dissent: we want actual democracy, through institutions in which the citizenry are able to engage in a public, political, participative (even if only representatively so) process of debate and contestation, so as to challenge the government to provide reasons for the choices it makes affecting our interests and values, and force it to change its policies when they are unreasonable.252
David Sklansky has captured the way in which this democratic tradition of participation and contestation applies to policing. What is needed, Sklansky suggests, is a “spirit of democratic oppositionalism . . . [in which] democracy is understood to involve ongoing opposition to patterns of unjustifiable hierarchy.”253 Sklansky believes this form of populist oppositionalism combines what is best about participation and contestation: the emphasis on individualism characteristic of participatory theories, and the egalitarian resistance to elite or expert domination characteristic of the pluralist theories.
As Sklansky recognizes, the police have the power to interfere with our lives in quite direct ways. The police can act on behalf of, or against, political systems or members of the polity (including political parties or just criminal gangs) that seek to undermine the public’s attempts at self-government in democracy-constraining ways. The police are, by virtue of their executive roles, public officials engaged in promoting or inhibiting contestation (or in his language, opportunities for “opposition or dissent.”)254 A democratically defensible police force is one that tolerates contestation as a bulwark against private or public domination, including domination by the police. It envisions the police as required to treat all legal subjects as political equals, able to look the most powerful in the eye and demand that they adhere to the rule of law.
A. Democracy and Police Control
The police are among the administrative agents who have the ability to decline to enforce the law while purporting to execute it.255 In practice, the police also have the ability—and, some might argue, the duty—to ignore the law and even to act in violation of it, often without sanction.256 A core feature of policing is that it presents a structural conflict between the rule of law, which constrains police authority, and imperatives of criminal investigation or “order,” which unleashes police power.257 Furthermore, the police are often tasked with defining the legal limits of their own authority: “As invokers of the criminal law, the police frequently act in practice as its chief interpreter. Thus, they are necessarily called on to test the limits of their legal authority. In so doing, they also define the operative legality of the system of administering criminal law.”258
Given their investigatory incentives and interpretive power, and the difficult policy choices even conscientious officers face, it is hardly a surprise that “[a] startlingly high proportion of all official discretionary action pertaining to administration of justice is illegal or of doubtful legality.”259 Accordingly, testing police authority—what David Sklansky has called the “substantive tactic . . . [of adopting a] presumptive but rebuttable suspicion of all systems of hierarchy”260—is an important aspect of establishing the democratic authority of the police during an encounter.
Contesting policing helps civilians to resist being subjected to the pretextual interests of the state or the police department or the individual officer261 by requiring the officer to articulate the reasons for following, stopping, questioning, and so on.262 The civilian’s ability to exercise autonomous choices during the encounter is, in this case, opposed to heteronomous choices, ones in which the individual is not able to assess or assert her own interests, but chooses under the influence of another.263 What matters, for this sort of autonomy, is being able to stand with the police (or other state officials) as a political equal: for the civilian’s interests to matter just as much as the person doing the policing (and the constituency that the officer represents). The police officer counts for no more (and no less) than the civilian: the officer is not some citizen “elevated above” the others, who must be spoken to with deference as some political superior and whose interests can dominate those of the civilian.264 Instead, both the civilian and the police officer walk the streets on equal terms.
The political ability to contest policing, by resisting or dissenting, forces the police officer to respond to a civilian, in part, by providing the civilian with sufficient grounds to make a rational decision whether to extend or terminate a non-custodial encounter or how to preserve her other rights during a custodial one.265 If circumstances change, so that the police are legally permitted to investigate further, the democratic politics of contestatory equality entitles the civilian to know what authorizes these further intrusions.
These sorts of challenges constrain police power by requiring the police to articulate the basis of their legal authority. Articulation renders the encounter dialogic: the officer is required to have her reasons ready at hand, so that she can respond to individuals’ challenges with legally sufficient justifications for her actions.266 If she cannot, the officer’s only reasonable response is to desist from pursuing the encounter. Requiring the officer to justify her actions gives each individual participating in the interaction the ability to make choices about the scope and nature of their interaction with, and exposure to the legal authority of, the police (and the larger criminal justice system) free from the overbearing influence of the officer. These choices are all the more important given the vast physical and normative power that rests in the hands of law enforcement.
In this view, the police are not, as William Ker Muir has called them, “street corner politicians.”267 Instead, Muir might better have adopted the term “street corner adjudicators.” Because police officers must balance what Muir calls the “contradiction of achieving just ends with coercive means”268—what I have called, following Jerome Skolnick, the competing interests of law and order269—they ought, Muir suggests, to “develop an enjoyment of talk . . . [which] enriches [their] repertoire of potential responses to violence and permits [them] to touch the citizenry’s souls . . . their hopes, their fears their needs to be something worthwhile, their consciences.”270 Talk, Muir suggests, can dispel the threat of violence so long as it responds to the dignitary and substantive interests of the people policed. And this rational responsiveness to the articulated interests of civilians not only dispels the threat of violence, but also (so Muir insists) enhances the moral and political development of the police.271
Of course, the eloquent rhetoric of policing could be a one-way street, a unitary means by an elite and remote authority to trick the citizenry into compliance. So long as the official is not in fact inclined to respond, then all of the officer’s eloquence or solicitousness toward a civilian is mere pretense designed to ensure compliance. Worse, an official may be able, through trickery, to undermine a civilian’s interests without the civilian even recognizing that she has given up her legitimate power to resist police activity. Pretended reciprocity is insufficient for democracy. What matters for egalitarian encounters, of the sort in which challenges count, is that the official is in fact persuadable, and does not simply pretend to be persuadable.272
What matters, from a democratic perspective, is that the police officer use her eloquence more like a judge than like a legislator (or politician), by providing reasons that respond to the concerns raised by the civilians ultimately subject to the coercive power of the police. That is, policing, like adjudication, is democratic to the extent that it makes room for and responds to contestation.273
The willingness of the police to respect the individual’s right to challenge her sends an important signal about the individual’s political standing as a member of the community. The central issue is whether, and how, the police officer respects the civilian as an equal participant in the encounter. The civilian’s ability to demand this sort of respect from the police generates certain standards for the officer to live up to. First and foremost, the ability to challenge the police depicts law enforcement officials as rational, reasonable, and responsive.274 It is not enough that the officer approaches the encounter with some pre-determined plan. Encounters are dynamic events.275 They escalate and de-escalate in legal and practical significance or seriousness, and expand and contract in scope. New justifications for police activity emerge or evaporate as the encounter progresses. Accordingly, an officer is rational and reasonable to the extent that she is willing to respond to new evidence during the course of the encounter and be open to persuasion by the public.
This picture of the official as rational, reasonable, and responsive—as open to persuasion—reveals the officer as someone of equal standing to the civilian: someone whose interests do not automatically trump the person policed, but instead compete with (and in a tie, defer to) those of the civilian. In this picture, the police officer is not a warrior or a guardian, exercising her dominion over some inferior,276 but a rationally responsive public servant, able to choose how to act, and to reconsider her actions in light of their impact on the civilian she encounters.
The encounter operates as one locus of consensual policing only so long as both parties are open to influence by each other. It is not enough that the civilian participates by having a “voice” in policing.277 She must also be able to resist policing, either by asking for reasons or refusing to cooperate. Challenging policing allows individuals at the bottom of the hierarchy, on the street, to participate or decline to participate in the encounter in ways that respect her dignity and autonomy as a member of the polity.
Contesting policing allows influence and information to flow from the bottom-up, so that the officer and the police as an organization are open to influences from outside the police organization (rather than influence flowing in one direction, from the top of the police hierarchy down and from inside the organization out to the public).278 If the police could recognize the legitimacy of contesting policing, it would render the decision-making process porous to inputs external to the organization. The community or individuals on the street could influence the discretionary decisions of the officer they encounter in a truly cooperative or consensual manner, one that expands the moral and political horizons of the officer as much as the civilian.279
The alternative is an authoritarian and dominative interaction, in which the officer is free to ignore the civilian, and empowered to induce the civilian to act as the officer directs.280 So long as the interaction lacks reciprocity, the officer places the civilian in a subordinate status to the official, one in which the civilian is unable to influence the officer’s beliefs or behavior. Officers may even regard the demand for equal treatment implicit in the request for reasons as a form of disrespect, and respond with force.281
If our vision is dominated by investigation and order-maintenance, then we will emphasize the ways in which the police can dominate an encounter and unilaterally force their will on civilians. Walking away, refusing to answer questions, or asking questions about the basis of police authority to interfere, and other ways in which civilians may question “the legitimacy and authority of the police”282 will appear as signs of “disrespectful behavior,”283 the kind that “undermine[s]”284 the police in ways that “impose social harm” upon the officer.285 From this perspective, we might even regard the officer’s coercive or physically forceful reaction to a civilian’s inquiries or non-compliance as a justified and proportionate response to the “harm” manifested through such challenges.286
B. The Benefits of Contestation
The force-anticipating baseline assumes that civilians must bear the burdens of unlawful or aggressive policing.287 Just consider “the talk” parents of African American children give their children.288 These instructions are often considered a formative aspect of the African American experience. Children are taught not to question the police. Be polite. Do not make eye contact.289 Do not question the reason for the traffic stop. Do not point out that the law in this state doesn’t require you to leave your car. Do not ask if your race was the reason you were targeted in the first place. African Americans are not told to be silent: they are told to be non-confrontational. But the twin options of silence or asking about the lawful limits of a custodial detention are precisely the ways in which civilians assert their equal standing under the rule of law as members of the political community. The sort of conduct encouraged by “the talk” requires African Americans to forgo their political standing and constitutional rights to ensure a non-forceful encounter. Here, the orderliness of the encounter does not exclude the presence of unilateral, authoritarian policing, but manifests it.
Responsiveness alters our vision of policing. If we recognize the political (and legal) right to contest police authority, we will expect more from our police than the order-maintenance model implies.290 We will recognize the need to “accommodate and to capitalize on disagreement and conflict. They reflect a view of dissensus as not just a sign of a well-functioning democracy, but a precondition for it.291 We will expect an officer who has exceeded the limits of her legal authority, or who has come to recognize that the exercise of her lawful authority will only cause the situation to further deteriorate, to respond by backing off, or de-escalating the situation, or tak[ing] the higher road,”292 to “perhaps plan a different enforcement action that can be taken more safely later . . . [or] to refuse to engage.”293 While such tactics place constraints on police activity, those constraints are ones that derive from democratic, egalitarian imperatives that we are all, police included, subject to as members of the polity.
Resisting and contesting policing thus makes demands upon the police, ones that require the officer to treat challenges as the political prerogative of an equal, rather than a subordinate. Equals are entitled to respect and worthy of responses, justifications, and changes in tactics to accommodate legitimate police conduct (rather than dismissed as disrespectful and harmful to the officer’s “elevated”294 status). And it is the egalitarian model of policing that the Constitution has entrenched in core aspects of its doctrine.
IV. Reducing Force Through Procedural Justice
The resistance-based model of policing requires the police avoid treating legally justified resistance as triggering a forceful response. In this view, some conflict or non-compliance is essential to preserving certain constitutional rights. According to this model, the police must treat constitutionally protected acts of resistance as appropriate responses to police activity, even during an encounter. Resistance marks the limit of the police power to interfere with the public.
Other models of policing, however, assume or endorse the view that the police are generally permitted to control disorderly on-the-street interactions with the public, even to the extent of using force to subdue dissent or resistance. Procedural justice advocates one method of control: a set of psychological techniques to induce civilian compliance with police directives. These techniques prevent encounters from escalating, thereby rendering them conflict-free, and thus non-violent.
But procedural justice comes with certain costs. Its focus on constraining police use of force does not address other ways in which the police dominate their interactions with the public. Nor does it recognize one way in which such domination may be constitutionally suspect and politically wrongful: by undermining the civilian’s ability to resist. The officer may psychologically dominate members of the public by pretending to endorse the civilian’s values as her own. The officer may simply fake her belief that she and the civilian are part of a group that share and promote the same values. The civilian is more likely to act on a false belief (that the official has her interests in mind) and so cooperate with the official, whether or not she really should.295 In this view of democratic engagement, training the police to mouth polite phrases is not enough to ensure that the officer genuinely respects the individual and her values. The officer does not treat the suspect as a peer in this form of encounter. Genuine respect requires more than psychological techniques, it requires actual empathy. And procedural justice does not ensure that the police officer deploying its techniques takes this extra step.
In the next few sections, I shall provide a brief description of procedural justice, and then identify three challenges that my theory of constitutionally and politically permissible resistance poses for procedural justice: first, that a psychological theory premised on inducing compliance replicates a series of practices already extensively critiqued in the context of encounters, consent, and confession; second, that the sociological and psychological account of legitimacy—what I call credit-worthiness—proposed by procedural justice is, on occasion, at odds with normative, constitutional, and political understandings of legitimacy; and third, that procedural justice masks, rather than ameliorates, structural problems at the heart of investigatory policing.
A. Procedural Justice
Procedural justice is a causal and psychological theory296 that investigates which strategies are most effective at producing voluntary compliance with the law.297 We can identify two ways of inducing compliance: external and internal.298 External techniques for inducing compliance require the use of sanctions or inducements that affect the individual’s behavior.299 Internal techniques require the public to persuade individuals that they ought to accept the official’s directives as obligatory.300 Procedural justice claims that these internal techniques are more effective at producing compliance than external techniques.
The central insight of procedural justice is that, by structuring interpersonal interactions in certain ways, authorities can generate a variety of effects on people’s beliefs and attitudes that “both increase voluntary public deference to police . . . directives and encourage long-term public acceptance motivated by a sense of personal responsibility to follow the law.”301 These internal, psychological effects are more robust than external social pressures, such as rewards and sanctioning, because they are longer lasting and internalized, inducing individuals to take personal responsibility for acting in accordance with the authority’s directives or regulatory goals.302
An especially attractive side-effect of internal compliance is that, because it is not focused on external sanctions such as the use of force or other forms of punishment, it reduces or eliminates conflict during police encounters with civilians.303 If the officer behaves more considerately, then the person policed responds favorably toward the police officer,304 because she internalizes the officer’s actions as credit-worthy and, because credit-worthy, obligatory.305 Each is less likely to use or respond with violence during the encounter.
A core procedural justice claim is that external factors exogenous to encounters do not produce as deep and lasting compliance and cooperation effects as factors that are endogenous to the encounter.306 Exogenous factors would include law-abiding police practices,307 just outcomes,308 reductions in crime,309 increases in quality of life or—as a direct result of an encounter—expected rewards or sanctions.310 Two exogenous factors in particular are worthy of note. At the back end of police interactions with civilians, the outcome for the civilian (and indeed, ultimate police success in fighting crime) is less relevant to how the civilian feels about police authority than the way she was treated during the encounter.311 At the individual level, negative outcomes, expressed through legal sanctions, are less important than the way the police treat civilians during the encounter.312 At the community level, reductions in crime rates do not produce commensurate increases in public approval of the police.313
At the front end of interactions between police and civilians, lawfulness—whether the police have an adequate justification for engaging in a stop, search, arrest, questioning, and so on—does not make a significant impact on public evaluations of (sociological or psychological) legitimacy (what I call “credit-worthiness”)—whether the public thinks that the authority treats them in a fair and just manner.314 Lawfulness includes such factors as “whether the police comply with the law, which includes obeying statutes, department rules, and court decisions. Do they, for example, treat people equally? Do they not use excessive force? Do they comply with the Miranda decision?”315
Public evaluations of police credit-worthiness, on the other hand, depend upon how the public perceives police conduct and measures whether the public thinks the police are fair and just.316 “These perceptions are a matter of social psychology, and they may or may not reflect the reality of . . . official[ ] action.”317 What matters for perceptions of credit-worthiness, it turns out, are the features of police conduct that are internalized and endogenous to the interaction between police and public. Neither of the exogenous factors has much impact on the public’s perception of whether they should comply or cooperate with the police, as compared with endogenous factors.318
Procedural justice explains which aspects of police conduct can affect these public attitudes toward policing. Procedural justice tells the police which psychological strategies they ought to adopt to more effectively exert control or generate credit-assigning attitudes from the individuals they interact with on the street or in the station house. Such strategies cause the subjects of regulation to internalize a sense of obligation and also feelings of trust toward the authorities with which they interact. These psychological regulatory strategies have attitudinal and behavioral consequences, which in turn have important policy and political implications.319 Procedural justice suggests that if authorities alter their behavior to match individuals’ perceptions of fair treatment or beneficent motivations during their interactions with the civilian, then the civilian will in turn prove “more willing to consent to the directives of legal authorities”320 than if the official adopts strategies designed to manipulate factors exogenous to the interaction, such as those underlying lawfulness of the officer’s conduct321 or the outcome of the dispute.322
Importantly, then, authorities, including the police, can learn to influence or promote these attitudes and behaviors during their face-to-face interactions with the public. The police can use procedural strategies “to bring public behavior into compliance with the law and increase the likelihood that members of the public will more willingly accept the directives of police officers[.]”323 More generally, the way in which officials structure their interactions with civilians tends to produce positive (or negative) effects. Officials may produce these psychological and behavioral effects consciously or unconsciously, but (given the right circumstances) the official will inevitably produce some psychological or behavioral effect willy-nilly.324 Accordingly, the goal of public officials and other institutional authorities, procedural justice contends, should be to structure their interactions with the public so as to ensure that these encounters produce positive effects for the individual and the institution.
The core structure of a procedurally just interaction has four features: voice, neutrality, respect, and trustworthiness or benevolence.325 The first two features speak to the quality of the civilian’s participation in the process: whether she is given space to tell her side of the story and how the officer responds to her participation.326 The last two features respond to the individual’s “moral” expectations, and establish a sense of solidarity between the authority and the regulatory subject.327 They demonstrate that the authority and the civilian are members of a shared community, and that the authority appreciates the civilian as such a member.
Recently, procedural justice scholars have begun to appreciate that each subset of factors produces different effects. The participative factors of voice and neutrality are most strongly correlated with prompting a sense of obligation toward the authority, so that the civilian internalizes its rules and directives as legitimate and deserving of compliance. The moral factors produce a sense of trust toward or solidarity with the authority, which the civilian internalizes as her shared membership in a group, and which orients her toward voluntary cooperation with the authority.328 And each of these features, legitimacy and trust, compliance and cooperation, can be boosted or undermined by the way in which the officer acts during her encounter with the civilian, much more than exogenous factors such as the actual lawfulness of the encounter or the outcome for the civilian or the larger community.
B. Compliance and Cooperation
Consider first the compliance effect produced by procedural justice’s participatory process. Procedural justice demonstrates that an authority can most effectively ensure that a regulatory subject complies with the authority’s directives by providing space, during some interaction between the authority and the civilian, for that civilian to tell her side of the story to the authority. The ideal structure for this sort of participatory interaction would afford the civilian an opportunity to make herself heard by some official through a formal or informal process, for example, by “giving individuals [a] ‘voice’ during encounters.”329 Even better, the official should demonstrate respect for the individual’s concerns,330 and seek other information about the underlying circumstances so that the official’s decision appears informed by the contextually relevant factors.331
Procedural justice’s voice requirement emphasizes the participatory structure of procedural justice:332
[W]hen making judgments regarding the legitimacy of state authorities, people . . . care a great deal about being able to participate in official decisions, being listened to, and having their views considered by authorities. . . . Perhaps the most important facet of socially grounded procedural justice is quality of treatment. People desire to be treated politely and with dignity.333
Procedural justice’s participative aspects produce distinctive psychological effects. Allowing regulatory subjects to tell their side of the story increases perceptions of fairness and credit-worthiness, even if participation did not influence the eventual decision. Indeed, so important is the ability to voice one’s concerns to an official that “studies of voice suggested that having the opportunity for ‘voice’ had interpersonal or ‘value-expressive’ worth that was not linked to any influence over the decisions made . . . [and] even if they knew that what they said had little or no influence on the decisions made.”334 This legitimacy effect occurred even if participation occurred after the authority had made its decision.335
The psychological effects of participation can have major consequences for law-abiding behavior. Participation “draw[s] on people’s feelings of responsibility and obligation[,]”336 increasing the likelihood that they will engage in activities such as following instructions, obeying the law,337 acceding to requests,338 and the like. All of these responses have in common that the individual complies with the official’s decision and acts as directed rather than resisting the official by doing something other than acting as directed (including doing nothing). In the terms often used by procedural justice scholars, a person complies with an official directive by “defer[ring]” to the official,339 or “consenting” to their exercise of authority,340 or otherwise “empowering” the police.341 Compliance is often contrasted with disobedience,342 or resistance, or public disorder.343
Procedural justice thus offers a theory of police encounters that provides police officers with incentives to reduce their use of force.344 Forcible policing is inefficient.345 It “rel[ies] . . . on threats, coercion, and force to gain or maintain control during encounters with citizens.”346 Forcible policing is resource-intensive: “it is difficult to gain compliance solely via the threat use of force.”347 Rather than focusing on external factors, it would be more effective, procedural justice advocates argue, to induce the public to internalize deference to police authority. The psychological strategies recommended by procedural justice thus produce efficient policing, in that they do not require costly enforcement mechanisms to induce compliance. Thanks to participative policing strategies, people choose to obey the police, rather than have the police employ some kind of (physical) coercion to enforce their directives. And people choose to obey the police because they believe that the police respect or include them when engaged in the decision-making process.
Citizens who obey the law out of respect for it—rather than merely out of fear of being caught and punished for wrongdoing—self-regulate and thereby enhance public safety, bolster police effectiveness by freeing officers to focus on serious problems, and pose less of a threat to individual officers during face-to-face contacts.348
An explicit advantage of procedural justice over other forms of policing, then, is compliance-based incentives that undercut “[t]he instinctive preference of the cop on the beat using the tough approach to policing style.”349 Procedural justice advocates argue that, “the police ought to be trained to act in ways the public experiences as being just and encouraged to do so during personal encounters with members of the public.”350 Procedural justice thus promotes, not merely effective, but civilized policing in which the police eschew “an aggressive style that subordinates individual rights . . . [and embraces] something closer to its opposite—practices that can be grouped under the heading of procedural justice.”351
Beyond compliance, individuals may be willing to cooperate with the police and other public officials.352 Cooperation, at the very least, entails deferring to rules, instructions, or requests.353 But the sense of cooperation most differentiated from mere compliance354 involves individuals, without the prompting of mandatory rules or directives, volunteering some form of assistance or “helping behavior or proactive social behavior.”355 Most often, such assistance is directed toward those people the helper tends to perceive as a member of the same group, sharing the same goals and values.356 In the context of policing, this sort of discretionary, voluntary cooperation “takes several forms, from reporting crimes to the police to assisting the police in investigations.”357
One important exogenous fact might be the social morality of the people policed. That is, the factors producing cooperation and compliance depend upon the values that civilians independently hold or endorse, rather than the way they are treated during the encounter. Indeed, more recent procedural justice studies have disambiguated compliance and cooperation and found that cooperation—promoting pro-social group activity—depends upon individuals “trusting” others as sharing social values or social morality, whereas compliance is linked through legitimacy to issues of interpersonal fairness or justice.358 Cooperation appears closely tied to the belief that the police officer (or other government official) is supporting and defending community norms, whereas compliance depends upon the belief that the government official is treating the civilian with respect by giving the civilian the opportunity to participate in and influence the process.359
However, the picture is more complex than it might at first appear. Social morality is not only an exogenous feature of some group or community: it can be accommodated within the encounter process by the way in which the officer extends or withholds respect from the civilian.360 If the official indicates that she embraces the civilian’s values as her own—that civilian and official are part of a group that share and promote the same values—then the civilian is more likely to trust and cooperate with the official.361 In this way, social morality may be transformed from an exogenous into an endogenous part of the encounter process by the officer’s actions and demeanor during her interactions with the civilian.362
One famous example of internalizing shared values as part of the encounter process is the “Christian burial speech” discussed in Brewer v. Williams.363 Williams was arrested as a suspect in the abduction of a ten-year-old girl. After asserting his right to a lawyer, the two police officers tasked with transporting him to their precinct agreed with his lawyer (who was waiting for Williams at the police station) not to question Williams during the trip.
Detective Leaming [one of the officers] knew that Williams was a former mental patient, and knew also that he was deeply religious. The detective and his prisoner soon embarked on a wide-ranging conversation covering a variety of topics, including the subject of religion. Then, . . . Detective Leaming delivered what has been referred to in the briefs and oral arguments as the “Christian burial speech.” Addressing Williams as “Reverend,” the detective said:
I want to give you something to think about while we’re traveling down the road. . . . Number one, I want you to observe the weather conditions . . . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is . . . and if you get a snow on top of it you yourself may be unable to find it. And . . . I feel that . . . the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas (E)ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.364
Officer Leaming later acknowledged that he employed psychological techniques to induce Williams to talk.365 These techniques certainly worked: he did get Williams to volunteer to cooperate.366 And Officer Leaming did so, not by browbeating Williams, but by establishing that he and Williams shared the same values, and had the same goals. Having established a sense of “solidarity”367 through their membership in the same religious community, Williams apparently trusted Officer Leaming so much that he volunteered the location of the girl. But as a matter of constitutional law, and as a matter of fact, Officer Leaming’s sociable invitation to talk undermined Williams’s interest in maintaining his innocence.368
The Christian Burial Speech exposes a tension at the heart of procedural justice between its participative structure and some of its anti-authoritarian claims. Procedural justice describes a type of psychological power: the officials’ ability to induce a psychological effect, such that individuals regard public officials as credit-worthy and accept the official’s directives as entitled to deference. The theory identifies a particularly efficient way to induce compliance or cooperation: it is not concerned with whether those directives are lawful, and thus whether the individual legally ought to comply or cooperate. Instead, the police may direct techniques—like Officer Leaming’s Christian Burial Speech—toward overcoming the constitutionally protected resistance of civilians targeted by the police.
C. A Legitimacy Gap?
Procedural justice invites us to draw a variety of political and moral conclusions from its findings about police-civilian interactions. Two features in particular, trust and legitimacy, dominate discussions of procedural justice.369 Trust and legitimacy are important to explain the authority of law and legal officials: “[T]o be effective, legal rules and decisions must be obeyed.”370 Procedural justice argues that internalized feelings of trust and legitimacy are more potent and longer lasting than external incentives or punishments in producing compliance with the law and cooperation with legal authorities.371
Legitimacy is, however, a slippery concept.372 It has a number of distinct meanings. Normative legitimacy is, at bottom, a moral and political concept.373 It entails that the authority has a (moral) right to issue directives or regulate conduct.374 Legal legitimacy is a species of normative legitimacy.375 Legal legitimacy requires that authority be exercised according to legally valid rules.376 For example, a police officer’s authority is normatively legitimate only if it is lawful. And a police officer’s authority is lawful only if some law exists that supports her claim to authority. Sociological or psychological legitimacy refers to the attitudes people take toward authorities.377 For example, a police officer’s authority is sociologically or psychologically legitimate based on the policed person’s perception that the authority is credit-worthy and entitled to order the civilian about (whether or not some law exists that really does confer legal authority upon that officer).
Democratic legitimacy provides yet another distinctive meaning of legitimacy for our lexicon. Democracy requires, not only participation, but also responsiveness to the interests of the members of the democracy. So a democratically legitimate authority not only allows its subjects to participate in the decision-making process, but is genuinely contestatory—that is, actually responsive to their interests.
Procedural justice is primarily a theory about sociological and psychological credit-worthiness: how people feel about authorities. It is not, primarily, a theory about normative or democratic legitimacy: whether the authority’s actions are justified or lawful or responsive. Nonetheless, recent procedural justice theory goes beyond drawing sociological or psychological conclusions about the effects of authorities’ conduct upon compliance or cooperation, to argue that the theory entails some important democracy-promoting effects.378 This democracy-promoting version of procedural justice claims to address multiple aspects of the democracy model: procedural justice is participative and this participative aspect is supposedly anti-authoritarian (or anti-elitist), seeking to include individuals in the decision-making process and disperse decision-making power between government officials and civilians.379
For example, some procedural justice theorists claim their practices promote community engagement in policing, creating a “bond between the police and the public.”380 Emphasizing participation and social solidarity, the theory is supposed to promote “shared authority based on social connectedness,”381 and, ultimately, the democratically admirable goal of “policing by consent.”382 The effect produced by procedural justice, these proponents claim, increases the chances that the public gets “a police force that is legitimate, just, effective and restrained in its use of power. [In turn], the police depend upon trust, legitimacy, and the cooperation of the public to function in an effective and fair manner.”383
But is the procedural justice effect one of full-blown normative or democratic legitimacy, or only of psychological credit-worthiness? Normative legitimacy requires that the processes are (morally or politically) fair or just or lawful, not apparently fair or just or lawful. Contestatory democracy also requires the process to be reciprocal, not unilateral. Participation, as we have seen, is not enough to prevent unilateral domination of the process by some regulatory authority. The process must also ensure that the authority is required to respect the civilian’s reasons or interests by acting upon them.
Procedural justice is poorly equipped to account for this sort of responsiveness. That is because procedural justice has a particular direction of influence. Structurally, influence flows from superior to inferior, and from inside the police organization to outside (influence flows down and out), but the procedural justice model does not require that it flow the other way (in and up). Civilians may participate in official decision-making by voicing their concerns, but the structure of procedural justice does not guarantee that the official will internalize those concerns and treat them as reasons to be accounted for in making her ultimate decision. Instead, the decision-maker may unilaterally externalize the civilian’s expressions of concern—that is, discount them as non-obligatory reasons which need not factor into determining the outcome of the interaction—while at the same time sympathetically communicating a shared sense of value, and manifesting the hallmarks (if not the actuality) of benevolence.
There is thus a potential gap between a civilian’s psychological feelings of obligation and credit-worthiness toward the officer or the law, and the actual lawfulness of police directives or the actual normative or democratic validity of the law. And the state can—and sometimes does—exploit these feelings of credit-worthiness to its benefit—for example, by inducing civilians to comply or consent to officials’ immoral, illegal, or anti-democratic directives when the civilian otherwise would not. That is not news to proponents of procedural justice who recognize that “it is possible to have a system of governance that commands high levels of perceived legitimacy from the governed whilst also, paradoxically, failing to meet the criteria of legitimacy that political philosophers would generally accept.”384
This legitimacy gap can exist not only between the police organization and the community, but also between individuals within the police organization and members of the public. And the legitimacy gap is at its widest, not primarily when the practice of procedural justice goes wrong, but when it goes well. The legitimacy gap is at its most powerful when police expressions of sympathy and opportunities to participate, though to all appearances sincere, are a sham unilaterally designed to encourage the civilian to comply or cooperate with a remote, centralized, elite organization or officer.
The central problem raised by normatively loaded terms like “justice” and “legitimacy” is that, when people consent to just or legitimate procedures, they consent, not to fair-looking procedures, but to procedures that are actually fair or actually just. If a procedure is (normativity, politically, or democratically) unjust or unfair, then appearances to the contrary will not save the procedure from being unfair in fact. Injustice (or unfairness) is primarily a normative (moral, political, or democratic) concept. Much of the ink spilt in moral, political, and democratic theory—to say nothing of legal theory and criminal procedure—has sought to separate the seemingly fair from the truly fair. And one core case of unfairness arises when a more powerful individual or group (such as the police) seeks, unilaterally, to impose its subjective interests upon others.
To the extent that procedural justice has a normative message, it is only in conjunction with the evaluative judgment that compliance is legally (or politically or morally) valuable. But that evaluative judgment cannot be generalized across all the occasions upon which public officials deploy compliance-inducing strategies. Whether the strategy is valuable or not depends in part upon whether the official is justified in demanding compliance: whether she has the legal authority and moral right to do so.
Procedural justice works most smoothly when the authority’s interests are aligned with the civilian’s. The power of procedurally just strategies of compliance and cooperation appears straightforward when civilians have no choice but to comply with determinate, mandatory norms that are also morally, politically, and legally valid. In such cases, there is no question but that civilians ought to comply with such norms and the power of procedural justice aligns with the interests of the civilians and the community.
Matters are more complicated when the norms are not morally and politically valid, or not legally valid, or when the civilian does have a choice. On these occasions, it may be (legally, morally, or politically) better (for the individual or for the community) that the individual question or even resist complying with the official. In those cases, the official ought to cease her quest for compliance (whether she seeks to induce acceptance through procedural justice techniques, physical and normative sanctions, or some combination of these approaches). In such cases, the power to induce the public to comply or cooperate may conflict with lawfulness, morality, or some choice that the civilian might autonomously prefer were she left to her own devices (i.e., independent of the authority’s intervention).
The law often delegates discretion to the civilian and empowers her to decide what to do. It does so in the context of the encounter and of the interrogation, where civilians have the power to walk away or engage with an officer; to consent or decline to consent to a search; to speak or remain silent; and to ask for a lawyer or speak without one. These (and other choices that the law may delegate to individuals more generally) are each important forms of liberty. However, the civilian’s choices may conflict with some legal authority’s interests. In that case, the authority’s strategic actions may override or undermine the civilian’s ability to choose and thus disempower her.
These gaps—between perception and lawfulness, perception and democracy, and perception and autonomy—suggest different ways in which procedurally just power may undermine rather than enhance our ability to do the right thing. Instead, procedural justice identifies one way in which authorities gain the ability to induce us to do their thing: whatever it is that the authority wants us to do. And the authority need not act in an expressly coercive or threatening manner—so procedural justice reveals—in order to induce the civilian to comply or cooperate. The civilian’s decision to comply or cooperate may not even be a conscious one. The civilian may even alter her stories about the encounter to explain her participation as self-motivated and freely chosen—rather than induced, heteronomously, by the psychological strategies of some authority. These revised and inaccurate explanations can have significant impacts down the road, when trying to suppress or exclude the evidentiary fruits of the encounter or interrogation.
All of this is to suggest that procedural justice is a powerful theory exposing the gains and losses produced by participative political structures. Procedural justice tends to emphasize the gains: the participative structure makes room for the subjects of regulation to tell their story and give their input; that the authorities treat their subordinates with respect and beneficence; that these strategies produce a sense of obligation toward and increase trust in the authorities; and that the outcome is increased compliance and cooperation with authorities both locally and globally.
D. Interactive Structure
The compliance and cooperation effects of procedural justice depend upon the psychological impact an authority makes, through her conduct or demeanor, upon some subject of regulation. The power of the procedural justice model is that the structure of the interaction—the four-factor process of voice, neutrality, respect, and beneficence—produces the compliance and cooperation effects. This structure, I have suggested, is unilateral rather than reciprocal, so that the police need not respond to civilians’ interests even when engaged in a procedurally just encounter. These effects do not depend upon the subjective motivation of the authority: they can be produced sincerely or insincerely (as well as intentionally or unintentionally). Motivation is, after all, an exogenous factor, much like lawfulness, and thus independent of the process employed during the interaction. Therefore, even if an authority insincerely uses procedural justice strategies to trick a participant into complying with her directives, “[f]rom a procedural justice standpoint, the . . . tricke[d] [participant] has no complaint about voice or opportunity to be heard.”385 Her voice was heard; the authority discounted it.
The gap between the perception and the existence of lawful authority—that is, between psychological and normative legitimacy—may be readily manipulated by psychologically sophisticated police officers. Officer Leaming well understood this aspect of policing. Reminiscing about his “Christian Burial Speech” nine years later, he gloated:
Shucks, I was just being a good old-fashioned cop, the only kind I know how to be. . . .
I have never seen a prisoner physically abused, though I heard about those things in the early days. . . .
That type of questioning just doesn’t work. They’ll just resist harder.
You have to butter ‘em up, sweet talk ‘em, use that—what’s the word?—“psychological coercion.”386
The compliance and cooperation effects also—in the short term at least, and perhaps even in the long term387—do not depend upon reciprocal influence between the authority and the subject of regulation. The effect is produced so long as the subject of regulation perceives the interaction as participative and respectful whether it is or not. It is the authority’s participative effort that is reciprocated by compliance, not the outcome of the process.388 The compliance and cooperation effects are independent of outcomes. An authority produces the compliance effect when that authority (sincerely or insincerely) makes space for participation and (sincerely or insincerely) displays an attitude of respect, independent of whether her ultimate decision accords with anything voiced by the civilian during the interaction. The direction of influence intrinsic to the model, remember, is hierarchical and one-directional, from the authority to the subject of regulation.
There is a tension at the heart of procedural justice between its participative structure and some of its anti-authoritarian claims. Procedural justice describes a type of psychological power: the officials’ ability to induce a psychological effect, such that individuals regard public officials as credit-worthy and accept the official’s directives as entitled to deference. The theory identifies a particularly efficient way to induce compliance or cooperation: it is not concerned with whether those directives are lawful, and thus whether the individual legally ought to comply or cooperate.
Low- or medium-level trickery, of the used car salesman sort, is, however, an everyday part of the process of policing. Jerome Skolnick suggests that trickery and deception are endemic to the police role.
The police subculture—the workaday normative order of police—permits, and sometimes demands, deception of courts, prosecutors, defense attorneys, and defendants[.] . . . Police . . . work within a severe, but often agonizingly contradictory, moral order which demands certain kinds of fidelities and insists upon other kinds of betrayals. The police milieu is normatively contradictory, almost to the point of being schizophrenogenic. Norms regarding deception, written and implied, abound in this moral order.389
Many of these deceptions receive legal and public sanction, “vary[ing] inversely with the level of the criminal process.”390 In such cases, solidarity with policing may entail tolerating trickery.
Where authorities can manipulate subordinates through a participative structure, the very gains identified by procedural justice—compliance and cooperation—turn out (also) to be losses. Procedural justice expresses one way in which authoritarian individuals or organizations can dominate civilians: the direction of influence identified by procedural justice is hierarchically structured; it operates from the authority to the civilian and not the other way round. The question, then, is whether authorities, i.e., police officers, government officials, employment supervisors, and so on, are able to consistently engage in “impression management strategy[ies]” that discount or ignore the voice of their subordinates,391 or whether there is something structurally fragile about “an authority structure that tolerates, condones, or even encourages parties to trick [or otherwise disregard] one another [so that the authority structure] is not likely to induce feelings of trust in its participants.”392
One possibility is that, if the authority’s conduct or demeanor reveals that she is not to be trusted, then the participant simply will not cooperate or comply.393 Structurally, if the participant “realize[s] that the use of voice is simply an impression management tactic,”394 that lack of beneficence or respect will undermine the compliance effect in catastrophic ways.395 The issue of pretext and lack of reciprocity has become a pressing issue in the psychology of traffic stops: a recent study argued that the sort of considerate treatment characteristic of procedurally just policing strategies were insufficient to induce feelings of trust or obligation.396 Instead exogenous contextual features indicating whether the civilian was policed based on her race proved decisive for civilian assessments of fairness.397 However, the procedural justice point is that exogenous factors may be incorporated into the interaction through conduct or demeanor. Where an officer treats a civilian suspiciously, and thus excludes the civilian from the sort of esteem appropriate to a fellow member of the authority’s peer group, such treatment proves decisive in undermining the feelings of respect and beneficence that turn out to be particularly salient in these historically tainted interactions.398
There are many ways in which authorities are most likely to incorporate conduct or demeanor expressive of distrust or disrespect. Authorities may expressly denigrate those whom they regulate: the police officer on the street may be openly racist. But insincerity addresses a different set of circumstances; ones in which authorities seek (consciously or unconsciously) to mask or minimize the lack of reciprocity during the interaction. Such obvious acts of disrespect would be at odds with that goal.
One way an insincere authority may undermine a respectful or trustworthy demeanor is when the authority is self-conscious about the unfairness or lack of parity in the procedure.399 People often find it difficult to consistently maintain the appearance of a fair process when they know that the process is not, in fact fair. Once again, the idea is that there is some mechanism by which the authority incorporates exogenous factors into the interaction, making the subject of regulation aware of her subordinate status as excluded from the group.
If, however, the authority’s demeanor or other conduct consistently manifests respect and courtesy—by “communicat[ing] that one can exert some control over the decision and that one’s input is valued and respected by the authority”400—then the internal, endogenous check on domination-by-trickery remains absent. Unless the civilian discovers her lack of influence upon the authority during the interaction, it will be exogenous factors—outcomes—that demonstrate her impotence. The individual sees that the outcomes are consistently adverse to her input, and so comes to believe that she is unable to influence the authority’s decision. Given that outcomes have much less effect on participant perceptions of legitimacy and trustworthiness, endogenous factors indicating trustworthiness and respect are likely to have (on the theory’s own terms) a much greater impact, which may explain why it takes so long (“eventually”)401 for the effect to become manifest.
A further problem is that, for one-off interactions or for time-limited relationships, there may be little opportunity to discover that the authority is unresponsive. There are just too few interactions to determine influence or lack thereof. Many of the interactions between the public and some government official (including the police) are one-off in this way. Encounters and especially interrogations need not feature repeat-player civilians. In this way, relations between the police and public need not be like those between, for example, employer and employee, which are likely to have repeat players on both sides.402 The discipline that repetitive interactions imposes upon mendacious authorities is thus absent from the sort of isolated interactions characteristic of encounters between police and public.
Another difference is that, unlike the employment domain, police authorities are trained to manifest respect, beneficence, and neutrality during interrogations, and often during encounters.403 Where an employee’s supervisor may lack any special training in controlling her demeanor, a police interrogator is precisely trained to present a certain appearance of solidarity and respect toward the suspect.404 Furthermore, officers expressly internalize deception as part of the “game.”405 Thus, interrogators, and perhaps other police officers, are more immune to the effects of self-consciousness than other actors, even over the long term.
But the deeper problem is that the structure of psychological influence is hierarchical and unilateral, and thus mostly independent of reciprocity (that is, official responsiveness to the regulatory subject’s input). Once again, all that matters is that the authority acts as if the regulatory subject has influenced her decision, rather than in fact take the civilian’s participation seriously.
For example, the effect of Officer Leaming’s Christian Burial Speech in Brewer v. Williams was explicable and even predictable because Leaming’s speech drew on many of procedural justice’s psychological tools: the defendant was given the opportunity to participate in the process and tell his side of the story by an authority who appeared neutral or even, beneficently, to take the defendant’s side as a member of the same moral and religious community, who treated him with dignity and respect. Here, the defendant’s confession was the result of “a causal model in which procedural fairness causes moral solidarity, and moral solidarity causes cooperation and compliance.”406
These techniques—participation, solidarity, and so on—were not something Officer Leaming just pulled out of a hat. They are part of the tactics that officers are trained to have in their arsenal of social control methods. Indeed, they are most closely associated with some of the interrogation techniques—often called the “Reid” method, after the person who popularized them407—identified by Professor Richard Leo408 and the Miranda Court409 before him, as widespread throughout the police community. The Reid method has been commonplace in contemporary police training for over fifty years, and its use appears to extend beyond the interrogation context into the practice of obtaining consent to search from suspects on the street or in their cars.410
The Reid method demonstrates the power of psychological strategies to induce compliance and cooperation.411 It instructs the police, at important stages during the interrogation process, to avoid “tak[ing] a hostile tone [ ]or tell[ing] the individual that he is a suspect. Instead, [the officer’s are to] treat him respectfully and are likely to say they need his help in solving the crime.”412 Beneficence, respect, neutrality, and participation are all important parts of the interrogation method. The officer, at specific stages of the interrogation, is supposed precisely to function as a mirror expressing a positive “‘image in the looking glass’ . . . generating feelings of pride and self-value that encourages them to identify with the group, legitimize its structures of authority, comply with its rules and cooperate within and on its behalf.”413 The Reid method trades on these officer-induced psychological feelings of solidarity:
To the extent that the investigator is able to conduct the interrogation in an interaction style appropriate for two people working on a problem-solving task, he facilitates the suspect’s decision to say “I did it” and his subsequent confession. It is far easier to admit wrongdoing to someone who appears to be a sympathetic acquaintance, if not a friend.414
The experience of police practice to elicit confessions or consent is not that the police lack training in procedural justice: certain police officers have been heavily trained in psychological procedures identical or akin to procedural justice for over fifty years. That experience suggests that the police, intent on securing compliance from the public, will use compliance-inducing techniques similar to procedural justice in ways that undermine individual autonomy, and which may even put the integrity of the criminal justice system at risk.
The core problem is that participation is not enough to undermine the sort of psychological power that hierarchical authorities may wield over their regulatory subjects. The lesson from the history of criminal procedure is that participation can empower authorities in ways that are democratically or doctrinally disturbing. Revealing these operations of power can expose the ways in which seemingly neutral or even beneficent authorities can structure interactions to influence the outcomes in quite potent ways. Rather than accept authority, the resistance model of policing acknowledges that it may be, on occasion, democratically more profound to challenge it. Individuals can still respect authority while questioning its limits, by, for example, challenging the police to justify their legal and moral authority when deciding whether to comply.
From the resistance model’s perspective, consensus is not enough to establish non-domination. After all, procedural justice itself establishes that consensus may be heteronomous, and produced by authoritarian influence. Recognizing the hierarchical possibilities of even fully participative processes, the resistance model helps identify when state-sponsored interactions fail to include deliberative and reciprocal guarantees. Deliberation is required to ensure that authorities do not simply pander to the prejudices of the subjects of regulation:415 fears about insecurity, racial prejudices, and the like. And reciprocity is required to ensure that civilians do influence official decision-making. To ensure a participative and deliberative process grounded in reasoning, the resistance model emphasizes reflection, reconsideration, and reciprocity as essential to non-domination.416
Psychological techniques to induce compliance are one set of tools the police use to influence interactions. Psychological compliance techniques ensure that police preferences dominate when the law grants civilians a choice of actions. Under the influence of even procedurally just, that is, inclusive, techniques, individuals may nonetheless waive their rights or confess to crimes in ways that undermine not only the civilian’s interests, but also the integrity of the legal system.
These anti-democratic and constitution-undermining effects are produced by the power of participation to induce a sense of obligation and even solidarity during encounters and interrogations. The contribution of procedural justice to policing may be to show the ways in which this participative power can be manipulated both to promote law-abidingness among citizens, but also to reinforce hierarchical relationships between the police and the rest of us.
The history of policing demonstrates the power and perils of just these sorts of consent-manipulating techniques. Psychologically-induced consent is unilateral: in the hands of the police, these consent- and cooperation-inducing techniques can produce anti-democratic and unconstitutional effects. These effects include unwitting waivers of constitutional rights or a psychologically-induced inability to question police authority, even when it is unlawful. And it is precisely because procedural justice is so empirically successful in producing these effects that it raises these normative concerns. In addressing the physical harm of police violence, procedural justice leaves unresolved the other normative harms that the police may visit on the public.
Exposing the possibility that police will use certain psychological strategies to dominate civilians evidences the value of encouraging citizens to resist or not comply. To undermine hierarchy, it is not enough to be treated with respect or beneficence, or to have a voice in the process of policing. Instead, civilians must have the right to challenge the police, to demand that the police justify their interventions, to ensure that the police acknowledge the sources and limits of their authority, and to require that the police deescalate and desist when those limits are reached. Only once the police respect the democratic and constitutional rights to resist can we can hold the police accountable for their actions.
- 1. John Milton, The Readie & Easie Way to Establish a Free Commonwealth, in Areopagitica and Other Political Writings of John Milton 414, 421–22 (1999).
- 2. See, e.g., Egon Bittner, The Functions of the Police in Modern Society: A Review of Background Factors, Current Practices, and Possible Role Models 39 (1970) (“[T]he police are nothing else than a mechanism for the distribution of situationally justified force in society[.]”).
- 3. See, e.g., Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society 3–6 (4th. ed., 2011) (1970) (discussing the way in which the rule of law limits justifications for police activity).
- 4. See, e.g., U.S. Const. amend. IV, V, & VI (including the rights to be free from unreasonable searches and seizures, to silence during interrogations, and to have counsel present at certain stages of the investigatory and adversary process).
- 5. I treat the terms as equivalents, along with “challenge,” “not comply,” “disobey,” and so on.
- 6. Jerome Skolnick, Justice on Trial 196–97 (2d ed. 1975).
- 7. Steve Mills et al., Laquan McDonald Police Reports Differ Dramatically from Video, Chi. Trib. (Dec. 5, 2015, 1:25 AM), http://www.chicagotribune.com/news/local/breaking /ct-laquan-mcdonald-chicago-police-reports-met-20151204-story.html (https://perma.cc/UDM5-ETRS/).
- 8. See, e.g., Office of Cmty. Oriented Policing Services, Dep’t of Justice, Final Report of the President’s Task Force on 21st Century Policing (2015) (hereinafter President’s Task Force).
- 9. See infra Section III.B.
- 10. See, e.g., United States v. Drayton, 536 U.S. 194, 202 (2002).
- 11. See id.
- 12. See, e.g., INS v. Delgado, 466 U.S. 210 (1984) (holding a civilian may decline to answer certain questions and go about her business).
- 13. See, e.g., Florida v. Jardines, 569 U.S. 1 (2013).
- 14. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).
- 15. See, e.g., Delgado, 466 U.S. 210.
- 16. See, e.g., Miranda, 384 U.S. 436.
- 17. See, e.g., id.
- 18. See infra Section III.
- 19. See infra Section II.B.
- 20. See Richard A. Leo, Police Interrogation and American Justice 128–31 (2008).
- 21. See, e.g., Damien Cave & Rochelle Oliver, The Videos That Are Putting Race and Policing into Sharp Relief, N.Y. Times (Nov. 24, 2015), 22. See Kimberlé Williams Crenshaw et al., Say Her Name: Resisting Police Brutality Against Black Women, (African American Policy Forum, New York, N.Y.), May 2015, http://static1.squarespace.com/static /53f20d90e4b0b80451158d8c /t /560c068ee4b0af26f72741df/1443628686535/AAPF_SMN_Brief_Full_singles-min.pdf (https://perma.cc/CG53-N7Q2).
- 23. Samuel Walker suggests that police use of force imposes both the most “visible injustices in the criminal justice system,” and ones that are the “most inflammatory.” Samuel Walker, Sense and Nonsense About Crime, Drugs, and Communities 318, 323 Figure 12.1 (7th ed. 2014). Egon Bittner famously concluded that “the police are nothing else than a mechanism for the distribution of situationally justified force in society.” Bittner, supra note 2, at 39; see also Rachel A. Harmon, When is Police Violence Justified, 102 Nw. U. L. Rev. 1119 (2008).
- 24. Alan Blinder, Ben Fields, South Carolina Deputy, Fired Over Student Arrest, N.Y. Times (Oct. 28, 2015), 25. Caroline Bankoff, Texas Cop Suspended Over Disturbing Pool-Party Arrest Footage, NYMag.com (Jun. 7, 2015), http://nymag.com/daily/intelligencer/2015/06/texas-cop-suspended-over-pool-party-footage.html (https://perma.cc/QCE4-AWGN).
- 26. David Montgomery, Sandra Bland Was Threatened with Taser, Police Video Shows, N.Y. Times, July 21, 2015, at A12.
- 27. See generally Williams Crenshaw et al., supra note 22.
- 28. See Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises Old Issue for the Police, N.Y. Times, July 18, 2014, at A1.
- 29. David Montgomery, Texas Trooper Who Arrested Sandra Bland Is Charged With Perjury, N.Y. Times, Jan. 7, 2016, at A12.
- 30. Frances Robles & Julie Bosman, Autopsy Shows Michael Brown Was Struck at Least 6 Times, N.Y. Times, Aug. 17, 2014, at A1.
- 31. Sandhya Somashekhar et al., Inconsistency the only Constant with Evidence in Michael Brown Case, Wash. Post (Nov. 25, 2014), https://www.washingtonpost.com/politics/inconsistency-the-only-constant-with-evidence-in-michael-brown-case/2014/11/25/6e3bc702-7450-11e4-bd1b-03009bd3e984_story.html (https://perma.cc/WD7C-CH4Y).
- 32. Terry v. Ohio, 392 U.S. 1 (1968).
- 33. Epp et al., Pulled Over: How Police Stops Define Race and Citizenship 5 (2014).
- 34. Al Baker et al., Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. Times, June 13, 2015, at A1.
- 35. Tennessee v. Garner, 471 U.S. 1 (1985).
- 36. 392 U.S. 1 (1968).
- 37. See, e.g., Walker, supra note 23, at 323 (“The most important strategy for improving police-citizen encounters is to reduce police use of deadly force and use of excessive physical force.”).
- 38. It may also be skewed by the effects of implicit bias and stereotype threat on the police officer and the individual she encounters. See, e.g., L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 Ind. L.J. 1143, 1147 (2012). For the most part, I shall leave these additional complicating factors aside.
- 39. California v. Hodari D., 499 U.S. 621, 636 (1991).
- 40. United States v. Robinson, 414 U.S. 218, 235 (1973). The police may conduct an evidentiary search of an arrestee’s person as an incident of arrest, but cannot go beyond the scope of that search without probable cause to search elsewhere. See, e.g., Arizona v. Gant, 556 U.S. 332, 344 (2009) (limiting searches, even searches incident to arrest, to the evidentiary basis justifying the search).
- 41. “[I]n some jurisdictions . . . a person has the right to resist an unlawful arrest without incurring criminal liability. Where this rule applies, a person may use such reasonable force as is necessary to resist an unlawful arrest.” 67 C.J.S. Obstructing Justice § 50 (2015).
- 42. By which I mean the non-penal, regulatory consequences put in motion by police activity. Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 870, 875 (2015).
- 43. Id. at 902–03.
- 44. Epp et al., supra note 33, at 1–3.
- 45. See, e.g., Malcolm Feeley, The Process is the Punishment (1992).
- 46. See Jeffrey Fagan et al., Reciprocal Effects Of Crime And Incarceration In New York City Neighborhoods, 30 Fordham Urb. L.J. 1551, 1595 (2003); Jeffrey Fagan et al., Neighborhood, Crime, and Incarceration in New York City, 36 Colum. Hum. Rts. L. Rev. 71 (2004).
- 47. They may have mostly the same physical powers too. Civilians can carry pepper spray, Tasers, and weapons in many states.
- 48. Justice Harlan certainly thought so. In Terry v. Ohio, the Justice emphasized the equal standing of both police and civilian when the police lack evidence the civilian has engaged in criminal activity. That is, “in the absence of state authority, policemen have no more right to ‘pat down’ the outer clothing of passers-by, or of persons to whom they address casual questions, than does any other citizen. . . . [T]he officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection.” Terry v. Ohio, 392 U.S. 1, 32–33 (1968) (Harlan, J., concurring).
- 49. See, e.g., Brown v. Texas, 443 U.S. 47, 50–51 (1979) (rejecting “unfettered discretion” of police to stop and search individuals suspected of criminal activity).
- 50. The police are particularly well-armed strangers. But, given the laws on concealed carrying of weapons in many states, that need not distinguish the police from other denizens of those communities.
- 51. In particular, they have a duty to interfere with us, and to aid in satisfying that duty, they have certain powers to detain, question, and search those whom they have sufficient evidence to suspect of having committed a crime, and certain other powers to help those they believe may be in need of assistance.
- 52. Terry, 392 U.S. at 8–9.
- 53. The Constitution even provides civilians with a First Amendment right to criticize the state or the police.
- 54. 501 U.S. 429, 439 (1991).
- 55. 412 U.S. 218 (1973).
- 56. 133 S. Ct. 2174, 2178–79 (2013).
- 57. United States v. Mendenhall, 446 U.S. 544 (1980); Terry, 392 U.S. at 33–34 (Harlan, J., concurring).
- 58. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
- 59. Miranda v. Arizona, 384 U.S. 436 (1966).
- 60. This is true in general. See, e.g., United States v. Mezzanatto, 513 U.S. 196 (1996). It is certainly true in the three areas I am concerned to discuss.
- 61. See U.S. Const. amend. IV, V, & VI.
- 62. See, e.g., Miranda, 384 U.S. at 467 (holding that the right to counsel and to avoid self incrimination apply in the context of custodial detention following arrest).
- 63. See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (discussing use of deadly force to seize a fleeing suspect); Graham v. Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1 (1985); see also Illinois v. Wardlow, 528 U.S. 119 (2000) (fleeing from police in high crime area is sufficient to establish probable cause to seize).
- 64. See, e.g., John Gardner, Justification Under Authority, 23 Can. J. L. & Jurisprudence 71, 90 (2010).
- 65. See id. at 90–91.
- 66. See, e.g., Terry v. Ohio, 392 U.S. 1, 21 (1968).
- 67. See, e.g., Wayne R. LaFave, Arrest: The Decision to Take a Suspect into Custody 208–11 (1965); Frank J. Remington, LaFave on Arrest and the Three Decades that Have Followed, 1993 U. Ill. L. Rev., 315–21 (1993). The use of force to constrain a civilian is not a forgone conclusion: the decision to use such constraint is in the officer’s discretion; and the amount of force used should be (though legally need not be) the least necessary to effect a seizure. See, e.g., Gardner, supra note 64 (arguing that force used during arrest must be proportional to crime and resistance).
- 68. U.S. Const. amend. V.
- 69. In part, that may be because of a different baseline, an empirical or political one that entertains “the expectation that [the police] may and will use force.” Egon Bittner, The Functions of Police in Modern Society: A Review of Background Factors, Current Practices, and Possible Role Models 38 (1970).
- 70. For example, the Christopher Commission, established in the wake of another police assault on an unarmed African American—Rodney King in 1991—sought to restrict the use of force: “An officer may resort to force only where he or she faces a credible threat, and then may use only the minimum amount necessary to control the suspect.” David S. Cohen, Official Oppression: A Historical Analysis of Low-Level Police Abuse and a Modern Attempt at Reform, 28 Colum. Human Rts L. Rev. 165, 168 (1996) (quoting Independent Comm’n on the L.A. Police Dep’t, Report of the Independent Commission on the Los Angeles Police Department ix (1991)).
- 71. See, e.g., Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”).
- 72. John Kavanagh, The Occurrence of Resisting Arrest in Arrest Encounters: A Study of Police-Citizen Violence, 22 Crim. Just. Rev. 16, 25–26 (1997) (suggesting that police violence is linked to resisting arrest, and that resisting arrest includes “the arrestee refusing to stop and talk to the officer”).
- 73. See, e.g., Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 494 (2004) (discussing culture of police brutality as a feature of police organizations); Harmon, supra note 23, at 1121 (recounting some infamous cases in which the police used excessive force, and arguing that the Court provides insufficient guidance to regulate such instances).
- 74. See, e.g., Orin Kerr, Sandra Bland and the “Lawful Order” Problem, Wash. Post (July 23, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/23/sandra-bland-and-the-lawful-order-problem/ (https://perma.cc/CDL4-JBHK]; see also Eric J. Miller, Police Encounters with Race and Gender, 5 U.C. Irvine L. Rev. 735, 750–53 (2015) (discussing features that might ratchet up the likelihood that the officer will use force to terminate an encounter).
- 75. See, e.g., Jason L. Riley, Bratton Pushes Back, Wall Street J. (Aug. 13, 2014), http://www.wsj.com/articles/political-diary-bratton-pushes-back-1407964138 (https://perma.cc/7CHD-6835] (quoting New York Police Commissioner William Bratton, who stated, “you must submit to arrest. You cannot resist . . . The place to argue your case is in the court, not in the street.”).
- 76. See, e.g., Scott v. Harris, 550 U.S. 372 (2007) (discussing use of deadly force to effectuate an arrest); Graham v. Connor, 490 U.S. 386 (1989).
- 77. L. Song Richardson, Police Racial Violence: Lessons from Social Psychology, 83 Fordham L. Rev. 2961, 2972 (2015) (“[R]acial violence is inevitable and overdetermined even in the absence of conscious racial animus[.]”).
- 78. Sunil Dutta, I’m a Cop. If You Don’t Want to Get Hurt, Don’t Challenge Me, Wash. Post (Aug. 19, 2014), https://www.washingtonpost.com/posteverything /wp/2014/08/19/im-a-cop-if-you-dont-want-to-get-hurt-dont-challenge-me/ (https://perma.cc/QG9B-5MM9).
- 79. Joseph Grano, for example, argued that the public has a general duty to cooperate with the police during investigatory encounters. See Joseph D. Grano, Probable Cause and Common Sense: A Reply to the Critics of Illinois v. Gates, 17 U. Mich. J.L. Reform 465, 497–500 (1984). Grano believed that, in return for the benefits of membership in a political community, each member has a duty “to make reasonable sacrifices on behalf of the community’s efforts to solve and control crime.” Id. at 497. That duty includes the requirement that individuals submit to police investigation, including searches and arrests, so long as the police have some individualized grounds to suspect the individual has committed a crime. Grano’s claim is that the interests of the police and the larger community (and so its individual members) are aligned. Given that alignment, civilians should submit to a variety of interferences with their liberty and security, including detention or arrest, “interrogation, a face or voice lineup, sampling blood or hair, or taking fingerprints.” Id. at 496. These sacrifices are a cost of policing: “Of course, the sacrifice may be unpleasant, especially if the individual is exonerated, but in evaluating the reasonableness of the police conduct, we should not ignore the individual’s obligation to the community’s cooperative enterprise.” Id. at 500.
- 80. Epp et al., supra note 33. Epp establishes that the investigatory stop targets both groups on the basis of a policy (drug interdiction) and race. See id. at 5–6, 33–35.
- 81. See id. at 36–40 (discussing a training manual for making investigatory stops, which includes tactics to ensure that the officer gets to search the car that is the target of her investigation).
- 82. I discuss the democratic value of reciprocity, infra Section III.
- 83. Al Baker, U.S. Police Leaders, Visiting Scotland, Get Lessons on Avoiding Deadly Force, N.Y. Times (Dec. 11, 2015), http://www.nytimes.com/2015/12/12/nyregion/us-police-leaders-visiting-scotland-get-lessons-on-avoiding-deadly-force.html?_r=0 (https://perma.cc/2UHB-AZRK] (discussing ways in which Scottish police de-escalate and disengage from circumstances likely to result in unnecessary violence).
- 84. Jerome Skolnick calls this the conflict between “law” and “order.” See Skolnick, supra note 3, at 6.
- 85. Id. at 5.
- 86. Id.
- 87. Id. at 6.
- 88. See, e.g., Robin Celikates, Rethinking Civil Disobedience as a Practice of Contestation—Beyond the Liberal Paradigm 23 Constellations 37, 37 (2016) (describing one popular claim: that democratic institutions are the proper place to raise disagreements with government action). Indeed, it is (on the order maintenance view) precisely the police ability to use force, willy-nilly, that aligns the interests of law enforcement and civilian during an encounter, stop, or arrest. If non-compliance may always be met with force, then civilians have no interest in resisting; the only issue is how most effectively (forcefully or non-forcefully) to ensure that the civilian complies, and that the police are able to do their job and maintain control.
- 89. See John Kavanaugh, The Occurrence of Resisting Arrest in Arrest Encounters: A Study of Police-Citizen Violence, 22 Crim. Just. Rev. 16, 25–26 (1997).
- 90. See infra Section II.B.
- 91. Egon Bittner’s definition of the police in terms of force is worth repeating here. See Bittner, supra note 2, at 39. Jerome Skolnick uses a similar definition of the police role as one of ensuring “‘social control’ through threat of coercion and summary judgment.” Skolnick, supra note 3, at 8.
- 92. In Terry v. Ohio, the Court challenged the idea that these indignities are indeed “petty.” 392 U.S. 1, 16–17 (1968). As the Court commented: “it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” Id. The Terry Court found that the practice of frisking inflicts a substantial indignity on the civilian, involving as it does, the officer “feel[ing] with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” Id. at 17 n.13 (quoting Priar & Martin, Searching and Disarming Criminals, 45 J. Crim. L.C. & P.S. 481 (1954)).
- 93. Kavanagh, supra note 89 (finding that “arrestee disrespect” was primary factor prompting police use of force); see also Robert E. Worden et al., On the Meaning and Measurement of Suspects’ Demeanor Toward the Police: A Comment on Demeanor and Arrest, 33 J. Research in Crime & Delinquency 324, 324 (1996) (“One of the most widely accepted and widely replicated findings about police behavior is that police tend to sanction suspects who display a disrespectful demeanor towards the police.”).
- 94. See Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (discussing arrest of suspect for tape recording police officer, even though there was no such offense under state law).
- 95. See Atwater v. City of Lago Vista, 532 U.S. 318, 346–47 (2001) (discussing “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment” in arresting civilian).
- 96. Orin Kerr, The Law of the Sandra Bland Traffic Stop, Wash. Post (July 23, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/07/23/the-law-of-the-sandra-bland-traffic-stop/?tid=a_inl (https://perma.cc/V6W4-TVUL).
- 97. See Harmon, supra note 42, at 902–04.
- 98. Id.
- 99. United States v. Mendenhall, 446 U.S. 544, 554 (1980).
- 100. An encounter, as I refer to it, is a non-custodial interaction between police and civilians. Because the encounter does not, on this definition, entail a search or a seizure, it does not implicate the Fourth Amendment or its protections.
- 101. Florida v. Bostick, 501 U.S. 429, 439 (1991).
- 102. To be clear, I am using the term “encounter” to refer to non-custodial interactions between the police and a civilian, in which the police do not have the right take the individual into custody.
- 103. Terry v. Ohio, 392 U.S. 1, 32–33 (1968) (Harlan, J., concurring); see also id. at 34 (White, J., concurring) (“There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets . . . . Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest.”).
- 104. United States v. Drayton, 536 U.S. 194, 202 (2002) (quoting Bostick, 501 U.S. at 434–36).
- 105. United States v. Mendenhall, 446 U.S. 544, 554 (1980).
- 106. Drayton, 536 U.S. at 201 (quoting California v. Hodari D., 499 U.S. 621, 826 (1991)).
- 107. Id. at 200; see also Florida v. Royer, 460 U.S. 491, 497 (1983) (“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”).
- 108. Given its tolerance for quite aggressive police tactics, the Fourth Amendment’s seizure test provides police officers a great deal of discretion to engage in encounters unless a civilian actively demurs. So long as the officer speaks calmly with “no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command,” Drayton, 536 U.S. at 204, then there is no seizure and the encounter is presumptively voluntary. “[S]o long as the officers do not convey a message that compliance with their requests is required,” Bostick, 501 U.S. at 437, then ordinary police questioning is presumptively cooperative, whatever the actual state of mind of the civilian. Indeed, the presumption of voluntary cooperation has the perverse effect, at the point of litigating encounters, of “mak[ing] . . . the government advocate for the view that reasonable people can and should decline to cooperate with police.” Margaret Raymond, The Right to Refuse and the Obligation to Comply: Challenging the Gamesmanship Model of Criminal Procedure, 54 Buff. L. Rev. 1483, 1484–85 (2007).
- 109. Bostick, 501 U.S. at 434; Florida v. Rodriguez, 469 U.S. 1, 5–6 (1984).
- 110. Hiibel v. Sixth District Court of Nevada, 542 U.S. 177, 185 (2004) (“Asking questions is an essential part of police investigations. In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.”).
- 111. INS v. Delgado, 466 U.S. 210, 220 (1984).
- 112. United States v. Mendenhall, 446 U.S. 544 (1980).
- 113. Bostick, 501 U.S. at 434; California v. Hodari D., 499 U.S. 621, 628 (1991); see also Delgado, 466 U.S. at 220 (“Persons such as respondents who simply went about their business in the workplace were not detained in any way; nothing more occurred than that a question was put to them.”).
- 114. California v. Hodari D., 499 U.S. 621 (1991).
- 115. See, e.g., United States v. Drayton, 536 U.S. 194 (2002); Bostick, 501 U.S. 429; Delgado, 466 U.S. 210. “[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 544.
- 116. Delgado, 466 U.S. at 216 (“Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.”).
- 117. Bostick, 501 U.S. at 436–37.
- 118. See, e.g., Raymond, supra note 108, at 1484 (“[I]t is the individual’s responsibility to avoid, defuse, or refuse interactions with police that lead to the seizure of contraband or evidence.”); see also Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L. Rev. 507, 540–41 (2001) (“The crux of avoiding a consensual encounter is noncooperation—refusal to answer questions and to consent to police requests. . . . [T]his requires a fair degree of self-confidence and a willingness to flout the conventions of common discourse (which, of course, this is not). Nevertheless, it is the sine qua non of consensual encounter avoidance. ‘Can we see your driver’s license?’ ‘No!’ ‘What are you doing here?’ ‘I am not answering,’ or less politely, ‘None of your business.’”). The result is that the Court has “construct[ed] a highly artificial ‘reasonable person,’ who is much more assertive in encounters with police officers than is the average citizen, and . . . ignor[es] the subjective intentions of the officer.” Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. & Criminology 437, 439 (1988).
- 119. Florida v. Royer, 460 U.S. 491, 498 (1983).
- 120. Bostick, 501 U.S. at 438 (“[T]he ‘reasonable person’ test presupposes an innocent person.”).
- 121. The officer must request, not demand, the documents. See, e.g., Tracey Maclin, Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 Cornell L. Rev. 1258, 1274 (1990) (The officer “requested, but did not demand to see Mendenhall’s identification. This conduct, in Justice Stewart’s view, did not constitute ‘an intrusion upon any constitutionally protected interest.’”).
- 122. INS v. Delgado, 466 U.S. 210 (1984). In his discussion of Delgado, Tracey Maclin argues that “[r]ather than placing the burden on the government to show justification for its intrusion, [the Court] puts the onus on the citizen to challenge government authority.” Maclin, supra note 121, at 1306.
- 123. See, e.g., Maclin, supra note 121, at 1306 (comparing the locomotive rights of the riders of subway cars to the workers in Delgado).
- 124. Bostick, 501 U.S. at 438.
- 125. See, e.g., United States v. Drayton, 536 U.S. 194, 202–04 (2002) (rejecting Eleventh Circuit’s per se rule that police officers must warn civilians of their right to terminate an encounter); Ohio v. Robinette, 519 U.S. 33, 39–40 (1996) (stating that it would be “unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary”).
- 126. Robinette, 519 U.S. at 39–40.
- 127. Id.
- 128. It may be a practically and prudentially fraught business as well. The police may react unlawfully and badly to a refusal to comply. See Frank Rudy Cooper, Training to Reduce ‘Cop Macho’ and ‘Contempt of Cop’ Could Reduce Police Violence, The Conversation (Dec. 18, 2015), http://theconversation.com/training-to-reduce-cop-macho-and-contempt-of-cop-could-reduce-police-violence-51983 (https://perma.cc/SS77-RFBD]; see also Steinbock, supra note 118, at 546 (“Jacobs did exactly what the Supreme Court in the consensual encounter cases said a citizen is free to do: refuse to answer questions or give identification and then walk away. For his pains he was arrested and prosecuted.”).
- 129. Terry v. Ohio, 392 U.S. 1, 34 (1968) (White, J., concurring).
- 130. Illinois v. Wardlow, 528 U.S. 119 (2000).
- 131. See Florida v. Bostick, 501 U.S. 429 (1991); Terry, 392 U.S. 1.
- 132. See Cooper, supra note 128.
- 133. INS v. Delgado, 466 U.S. 210, 218 (1984).
- 134. Nirej Sekhon, Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure, 46 Harv. C.R.-C.L. L. Rev. 103, 110 (2011).
- 135. See, e.g., Bumper v. North Carolina, 391 U.S. 543, 548–49 (1968) (discussing government’s burden of proving “that the consent was, in fact, freely and voluntarily given . . . cannot be discharged by showing no more than acquiescence to a claim of lawful authority”).
- 136. United States v. Drayton, 536 U.S. 194, 207 (2002).
- 137. 536 U.S. 194 (2002).
- 138. Id. at 207.
- 139. Florida v. Jimeno, 500 U.S. 248 (1991).
- 140. United States v. Mendenhall, 446 U.S. 544 (1980); United States v. Watson, 423 U.S. 411 (1976); Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
- 141. Schneckloth, 412 U.S. 218.
- 142. Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 268 (2001). See also id. at 227 (“The reality is that consent searches are upheld except in extreme cases that almost always focus not on subjective factors of the suspect, but on the behavior of the police.”).
- 143. 412 U.S. 218 (1973).
- 144. 423 U.S. 411 (1976).
- 145. 446 U.S. 544 (1980).
- 146. Schneckloth, 412 U.S. at 228.
- 147. Id. at 218. While there is no direct mention of the race of the car’s occupants in Schneckloth, “Bustamonte and his companions appear to have been [H]ispanic.” David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271, 329 n.238 (1997).
- 148. Mendenhall, 446 U.S. at 558.
- 149. Schneckloth, 412 U.S. at 289 (Marshall, J., dissenting); see, e.g., Devon Carbado, (E)Racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002); Strauss, supra note 142, at 268.
- 150. See generally Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L. J. 773 (2005).
- 151. United States v. Watson, 423 U.S. 411, 424 (1976). This standard is strikingly similar to the standard for voluntariness developed contemporaneously in the plea bargaining context. Though (probably thanks to a comparison in Schneckloth) the confessions context has produced most comparisons (see Simmons, supra note 150), the Court’s language is most similar to its analysis of waivers of rights in the plea context. See, e.g., Brady v. United States, 397 U.S. 742, 755 (1970).
- 152. See Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness, 67 Fla. L. Rev. 509, 540–41 (2015).
- 153. Schneckloth, 412 U.S. at 227.
- 154. Burke, supra note 152, at 528.
- 155. Watson, 423 U.S. at 424 (stating the defendant “had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station”); see also Strauss, supra note 142, at 268.
- 156. United States v. Drayton, 536 U.S. 194 (2002); see Simmons, supra note 150. A more apt comparison may be with plea bargaining as increasingly formal such that coercion there matches coercion in the consent context. For example, just three years before Schneckloth, the Court held, in Brady v. United States, that psychological coercion can undermine the ability of an agent to engage in rational choice or limits the range of choices a rational agent may have. The Brady Court conceded that extreme psychological coercion “produce[d] . . . by actual or threatened physical harm or by mental coercion overbearing the will of the defendant,” is unconstitutional. Brady v. United States, 397 U.S. 742, 750 (1970). However, the Court accepted that the government is constitutionally permitted, under the Due Process Clause, to limit the range of choices available to the defendant, so long as such a limitation is not produced by threats, misrepresentation, or bribes. Id. at 755.
- 157. Ambiguous words offered to show non-consent are not enough, where the civilian’s actions otherwise indicate consent.
- 158. The officers waited until the passengers boarded the bus before questioning them. Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup. Ct. Rev. 153, 185 n.95 (2002).
- 159. United States v. Drayton, 536 U.S. 194, 207 (2002).
- 160. Dickerson v. United States, 530 U.S. 428, 443 (2000).
- 161. 384 U.S. 436 (1966).
- 162. Id. at 442 (quoting Cohens v. Virginia, 19 U.S. 264, 387 (1821)).
- 163. Id.
- 164. Id. at 444 (citing Silverthorn Lumber Co. v. United States, 251 U.S. 385, 392 (1920)).
- 165. Salinas v. Texas, 133 S. Ct. 2174, 2179 (2013) (internal quotation marks and citations omitted).
- 166. Id. (requiring express invocation of right to remain silent); see also Berghuis v. Thompkins, 560 U.S. 370, 381 (2010) (remaining silent, even for extended period of time, insufficient to assert right to remain silent).
- 167. See, e.g., Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435, 446–53 (1987) (arguing that Miranda introduces a “[c]onclusive [p]resumption of [c]ompulsion” in the interrogatory sphere); see also Yale Kamisar, Can (Did) Congress “Overrule” Miranda?, 85 Cornell L. Rev. 883, 945 (2000) (agreeing with Schulhofer).
- 168. The warning system is roundly derided as ineffective. See, e.g., Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1027 (2001) [hereinafter Leo, Questioning the Relevance of Miranda] (“Miranda imposes few, if any, serious costs on the individual actors of the criminal justice system or the system as a whole . . . It does not impede effective law enforcement. . . . [T]here is no compelling evidence that Miranda causes a significant number of lost convictions . . . [I]t also offers few benefits for its intended recipients. Contrary to the visions of its creators, Miranda does not meaningfully dispel compulsion inside the interrogation room.”); William J. Stuntz, Miranda’s Mistake, 99 Mich. L. Rev. 975, 976 (2001) (“Miranda’s regulatory strategy . . . shift[ed], from courts to suspects, the burden of separating good police interrogation from bad. Instead of courts deciding based on all the circumstances . . . whether the suspect’s confession was voluntary, Miranda left it for suspects to decide, by either agreeing to talk or by calling a halt to questioning and/or calling for the help of a lawyer, whether the police were behaving too coercively. A growing literature on the empirics of police questioning shows why that strategy has failed.”). More effective, some have suggested, would be to require a contemporaneous recording (video or audio) of the interrogation. See, e.g., Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 487 (1996) (“Videotaping interrogations would certainly be as effective as Miranda in preventing police coercion and probably more so.”); Yale Kamisar, On the “Fruits” of Miranda Violations, Coerced Confessions and Compelled Testimony, 93 Mich. L. Rev. 929, 933–34, 934 n.19 (1995) (arguing that the Miranda Court made a mistake by failing to mandate audio or video recordings of warnings during interrogation); Yale Kamisar, The Rise, Decline, and Fall (?) of Miranda, 87 Wash. L. Rev. 965, 1028 (2012) (arguing videotaping is necessary to evaluate the voluntariness of waiver); Leo, Questioning the Relevance of Miranda, supra, at 1028 (“[E[lectronic audio- or video-recording of interrogations is the most promising interrogation reform of our era.”); Stuntz, supra, at 978 (“[T]he only way to regulate police tactics would then be to look hard at them, case by case, with the aid of video- and audiotape.”). While video or audio taping may be additionally useful, they are no substitute for the warnings themselves.
- 169. Miranda, 384 U.S. at 475.
- 170. Id. The idea was that only someone who was coerced would confess against her interests, absent some overwhelming proof to the contrary. The Court later rejected the determinative status of an against-interests statement in the context of confessions and consent. In so rejecting the heavy weight allotted to against-interest statements when considering voluntariness, and instead focusing primarily on physical coercion or the threat of such coercion, the Court effectively allowed the police to resume psychological trickery to induce cooperation and confession.
- 171. In Berkemer v. McCarty, 468 U.S. 420 (1984), the Court held that Terry stops are non-custodial. They are by definition brief and take place in public, not in the police-dominated atmosphere of the station house. The effect of Berkemer is, for the purposes of police interrogation, to equate custody with coercion.
- 172. Minnesota v. Murphy, 465 U.S. 420 (1984). The Court held that an individual must assert the privilege in order to claim the privilege.
- 173. Leo, Questioning the Relevance of Miranda, supra note 168, at 1021 (“Miranda has helped law enforcement by de facto displacing the case-by-case voluntariness standard as the primary test of a confession’s admissibility, in effect shifting courts’ analysis from the voluntariness of a confession to the voluntariness of a Miranda waiver.”).
- 174. See, e.g., George C. Thomas III & Richard A. Leo, Confessions of Guilt: From Torture to Miranda and Beyond 174–75 (2012) (discussing Rhode Island v. Innis as holding that subtle coercion is not enough to require Miranda warnings).
- 175. 475 U.S. 412, 433–34 (1986).
- 176. Id. at 421.
- 177. Id.
- 178. Id.
- 179. 479 U.S. 157 (1986).
- 180. Id. at 170.
- 181. Id. (citing Fare v. Michael C., 442 U.S. 707, 726–27 (1979)).
- 182. 475 U.S. 412 (1986).
- 183. In that case, the police neglected to inform the defendant that his attorney was outside the interrogation room, waiting to represent him. The Court implicitly recognized that such conduct was trickery: it just was not the sort of “‘trick[ery]’ that can vitiate the validity of a waiver. Granting that the ‘deliberate or reckless’ withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Id. at 423–24 (internal citations omitted).
- 184. Miranda v. Arizona, 384 U.S. 436, 476 (1966).
- 185. See, e.g., Sekhon, supra note 134, at 110 (“Nor are courts concerned with the myriad ways in which coercion that falls shy of physical threat compels individuals to say ‘yes’ to a police officer’s request to search.”). The police may also engage in trickery or subterfuge, including flat out lying to the civilian. See, e.g., Jerome H. Skolnick, Deception by Police, 1 Crim. Just. Ethics 40 (1982) [hereinafter Skolnick, Deception by Police]; Jerome H. Skolnick & Richard A. Leo, The Ethics of Deceptive Interrogation, 11 Crim. Just. Ethics 3 (1992); Christopher Slobogin, Lying and Confessing, 39 Tex. Tech. L. Rev. 1275 (2007) [hereinafter Slobogin, Lying and Confessing]; Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies By the Police, 76 Or. L. Rev. 775, 782 (1997). But see Robert P. Moesteller, Moderating Investigative Lies by Disclosure and Documentation, 76 Or. L. Rev. 833 (1997) (rebutting certain claims made by Slobogin). I will not delve into the muddy waters of the propriety of lying to suspects in this Article. It is sufficient to note that, for the most part, there is a general agreement that it is wrong to use deception to induce civilians to waive their rights. See Skolnick & Leo, supra, at 5. Distaste for deception grows stronger as we move from police deception that induces people into revealing evidence during a search, to police deception that induces people to incriminate themselves during an interrogation, to testimonial deception by police under oath to obtain a conviction. See, e.g., Sekhon, supra note 134, at 107 (“The Court purports to be more concerned that suspects have a ‘real choice’ to withhold consent in the interrogation context than in the search context.”).
- 186. Nadler, supra note 158; see Carbado, supra note 149, at 968 (discussing perpetrator perspective).
- 187. Schneckloth v. Bustamonte, 412 U.S. 218, 275, 289 (1973) (Douglas, J., dissenting; Marshall, J., dissenting) (quoting Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. 1971)).
- 188. Schneckloth, 448 F.2d at 701.
- 189. Nadler, supra note 158, at 155.
- 190. See, e.g., Daniel L. Rotenberg, An Essay on Consent(less) Police Searches, 69 Wash. U. L. Q. 175, 185, 189 (1991) (discussing the impact of unexpected police activity in inducing consent).
- 191. Nadler, supra note 158, at 190–93.
- 192. Id. at 186–90; Alisa M. Smith et al., Testing Judicial Assumptions of the “Consensual” Encounter: An Experimental Study, 14 Fla. Coastal L. Rev. 285, 318–22 (2013) (finding compliance with a perceived authority to be a primary reason civilians consent to police encounters).
- 193. Nadler, supra note 158, at 179–83.
- 194. See also Steinbock, supra note 118, at 534–35 (describing a series of studies demonstrating that individuals were more likely to comply with requests from an authority figure than a peer or subordinate, and more likely agree to a “consent” search if they feared reprisal by the officer if they refused).
- 195. See, e.g., Slobogin, Lying and Confessing, supra note 185.
- 196. Nadler, supra note 158, at 165 n.26 (discussing the psychology of feeling free to refuse government requests to search). Nadler notes that these feelings could manifest themselves as a sense of obligation or fear.
- 197. See also Steinbock, supra note 118, at 534 n.137 (“Studies have also shown that a friendly, nonthreatening initial approach is significantly more likely to produce compliance than is a forceful initial stance. In the area of consent searches, search requests phrased interrogatively were more likely to produce the requested consent compared to those phrased declaratively. Ironically, therefore, a consensual encounter may be effective precisely because it is less confrontational than a stop.”) (internal citations omitted).
- 198. Nadler, supra note 158, at 175.
- 199. Id. at 186–90.
- 200. United States v. Drayton, 536 U.S. 194, 211–12 (2002) (Souter, J., dissenting) (“[T]he officer said the police were ‘conducting bus interdiction,’ in the course of which they ‘would like . . . cooperation.’ . . . The scene was set and an atmosphere of obligatory participation was established by this introduction.”).
- 201. Id. at 186.
- 202. Schneckloth v. Bustamonte, 412 U.S. 218, 220 (1973).
- 203. Peter M. Tiersma & Lawrence M. Solan, Cops and Robbers: Selective Literalism in American Criminal Law, 38 L. & Soc. Rev. 229, 235 (2004). They explain: “[W]e decide whether a speech act is a request or a command by taking into account pragmatic information, such as the relationship between the parties and whether the speaker has the authority to issue commands to the hearer. What counts as a request by an equal may be taken as a command when issued by one’s superior.” Id. at 231.
- 204. Epp et al., supra note 33, at 37–38 (discussing psychological tactics recommended by popular police training manual to overcome lack of consent). But see Tracey L. Meares, The Law and Social Science of Stop and Frisk, 10 Ann. Rev. L. & Soc. Sci. 335, 347 (2014); Tom R. Tyler et al., The Consequences of Being an Object of Suspicion: Potential Pitfalls of Proactive Police Contact, 12 J. Empirical Legal Stud. 602, 613 (2015).
- 205. See, e.g., Alexander A. Mikhalevsky, Note, The Conversational Consent Search: How “Quick Look” and Other Similar Searches Have Eroded Our Constitutional Rights, 30 Ga. St. U. L. Rev. 1077 (2014); Strauss, supra note 142, at 268.
- 206. Mikhalevsky, supra note 205, at 1080.
- 207. Id. at 1086 n.54.
- 208. 519 U.S. 33 (1996).
- 209. Id. at 35–36.
- 210. Id. at 40–41 (Ginsburg, J., concurring).
- 211. Richard A. Leo, Inside the Interrogation Room, 86 J. Crim. L. & Criminology 266, 292–93 (1996) (hereinafter Leo, Inside the Interrogation Room).
- 212. Burke, supra note 152, at 528.
- 213. United States v. Drayton, 536 U.S. 194 (2002); Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
- 214. Leo, Inside the Interrogation Room, supra note 211, at 292.
- 215. See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 981 (1997) (“[R]esearchers have studied psychological interrogation and false confession for more than eighty-five years[.]”).
- 216. Skolnick & Leo, supra note 185, at 3 (“[O]ver the last fifty to sixty years, the methods, strategies, and consciousness of American police interrogators have been transformed: psychological persuasion and manipulation have replaced physical coercion as the most salient and defining features of contemporary police interrogation.”).
- 217. See Leo, Inside the Interrogation Room, supra note 211, at 292 (Miranda “excoriated police interrogation training texts for compelling confessions through psychologically subtle and sophisticated questioning methods.”).
- 218. Ofshe & Leo, supra note 215, at 985 (“Psychologically-based interrogation works effectively by controlling the alternatives a person considers and by influencing how these alternatives are understood. The techniques interrogators use have been selected to limit a person’s attention to certain issues, to manipulate his perceptions of his present situation, and to bias his evaluation of the choices before him.”); see also Thomas & Leo, supra note 174, at 187 (“We know that most suspects cannot resist the effect of powerful preference-creating forces created by police interrogation as it occurs today, and this might be true even when the police play it ‘straight’ and refrain from using deceptive strategies.”).
- 219. Richard A. Leo, Miranda’s Revenge: Police Interrogation as a Confidence Game, 30 L. & Soc’y Rev. 259, 266 (1996) (hereinafter Leo, Miranda’s Revenge).
- 220. Id. (“We are con men . . . and con men never tell the mark they’ve been had.”).
- 221. See generally Leo, Inside the Interrogation Room, supra note 211, at 294 (reviewing police interrogation tactics based on observing 182 police interrogations); Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 132–37 (1998) [hereinafter Weisselberg, Saving Miranda] (reviewing California law enforcement training materials that encourage officers to question “outside Miranda”).
- 222. See Miranda v. Arizona, 384 U.S. 436, 448 (1966) (“[W]e stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. . . . [C]oercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.”) (internal quotations omitted).
- 223. Richard A. Leo & Welsh S. White, Adapting to Miranda: Modern Interrogators’ Strategies for Dealing with the Obstacles Posed by Miranda, 84 Minn. L. Rev. 397, 431 (1999) [hereinafter Leo & White, Adapting to Miranda] (“[T]he police interpret and apply cases in light of their particular concerns. In some instances, this may lead the police to interpret Miranda strictly, in order to ensure that incriminating statements obtained by interrogators will be admissible. In other instances, the police may interpret the post-Miranda cases so as to maximize the abilities of interrogators to obtain admissible incriminating statements.”); Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1124 (2001) (finding that police believe that “‘[o]utside Miranda’ instruction emphasizes that Miranda describes only a value-neutral rule of evidence; it does not embody a constitutional command. Thus, there is nothing legally or morally wrong in interrogating a suspect who has invoked the right to counsel or the right to remain silent”).
- 224. See, e.g., Weisselberg, Saving Miranda, supra note 221, at 132–35 (police pursue beneficial “material consequences” of continuing questioning after a civilian has invoked her rights, such as gaining impeachment material for use at trial, discovering the location of physical evidence, identifying other suspects or witnesses, and so on); Weisselberg, In the Stationhouse After Dickerson, supra note 223, at 1124 (“By transforming Miranda from an affirmative constitutional command governing conduct in the stationhouse into a weak rule of evidence, the new vision has encouraged officers to continue to question suspects who have asserted the right to counsel or the right to remain silent. During the last decade, the practice has become so pervasive in some jurisdictions that it has acquired its own moniker: questioning ‘outside Miranda.’”).
- 225. Richard Leo compares the manner in which police interrogators structure the interview process to a “confidence game” in which the officer “carefully contrives and frames the situation to set up the mark.” Leo, Miranda’s Revenge, supra note 219, at 264. The interrogator’s frame is a carefully constructed sequence of events designed to induce the civilian to waive her rights and to confess. Id. at 266.
- 226. Charles D. Weisselberg, The Precinct Confessional, 21 Crim. Just. Ethics 57, 59 (2002).
- 227. Leo, Miranda’s Revenge, supra note 219, at 265.
- 228. Id. at 267–68 (discussing the manner in which police officers pre-determine whether the suspect is guilty, prior to full-blown interrogation).
- 229. See Richard A. Leo, Police Interrogation and American Justice 226–29 (2008).
- 230. Id.
- 231. Leo, Miranda’s Revenge, supra note 219, at 270. Richard Leo’s work reveals one major way in which the process is unilateral. Police interrogators are trained to discount and discourage protestations of innocence, having first established to their satisfaction (if not in fact) that the civilian is guilty. See Richard A. Leo & Deborah Davis, From False Confession to Wrongful Conviction: Seven Psychological Processes, 38 J. Psychiatry & L. 9, 35 (2010) (describing interrogator’s aim as controlling suspect’s goals during interrogation, and psychologically inducing the suspect to adopt interrogator’s aim of establishing guilt).
- 232. Leo & White, Adapting to Miranda, supra note 223, at 434–35 (1999).
- 233. Id. at 435
- 234. Id.; see also Leo, Questioning the Relevance of Miranda, supra note 168, at 1019 (“[D]etectives sometimes tell a suspect that he will only be able to tell his side of the story if he waives Miranda, implying that the suspect will not be able to clear things up unless he first answers their questions.”).
- 235. See, e.g., Leo, Questioning the Relevance of Miranda, supra note 168, at 1019 (recounting officer claims she can mediate between suspect and prosecutor); Leo & White, Adapting to Miranda, supra note 223, at 440 (same).
- 236. Leo, Miranda’s Revenge, supra note 219, at 275 (“[T]he detective portrays himself as the suspect’s friend and ally, if not the suspect’s advocate, implicitly seeking the suspect’s trust and confidence.”).
- 237. Id. at 266 (“The essence of the con that is police interrogation ultimately lies in convincing the suspect that he and the interrogator share a common interest, that their relationship is a symbiotic rather than an adversarial one.”).
- 238. Leo, Inside the Interrogation Room, supra note 211, at 292.
- 239. Leo, Questioning the Relevance of Miranda, supra note 168, at 1027 (“Miranda has not changed the psychological interrogation process that it excoriated, but has only motivated police to develop more subtle and sophisticated—and arguably more compelling—interrogation strategies. How police ‘work’ Miranda in practice makes a mockery of the notion that a suspect is effectively apprised of his rights and has a continuous opportunity to exercise them.”).
- 240. John Gardner, The Functions and Justifications of Criminal Law and Punishment, in Offences and Defences: Selected Essays in the Philosophy of Criminal Law 201, 209 (2007).
- 241. She may be obliged to answer questions about her identity. She is under no obligation to tell the truth or to provide proof of identification. See INS v. Delgado 466 U.S. 210, 219–20 (1984) (discussing police officers asking for “papers” during encounter).
- 242. If the encounter is custodial, contestation preserves the civilian’s rights to decide whether or not to cooperate, and if she decides to cooperate, how and how much to do so. See, e.g., Florida v. Jimeno, 500 U.S. 248, 252 (1991) (“A suspect may of course delimit as he chooses the scope of the search to which he consents.”).
- 243. See generally Michael Stocker, Plural and Conflicting Values (1992); see also John Rawls, The Idea of Public Reason Revisited, in The Law of Peoples 131, 131–32 (1999) (“[A] basic feature of democracy is the fact . . . that a plurality of conflicting reasonable comprehensive doctrines . . . is the normal result of its culture of free institutions . . . [and that] [c]itizens realize that they cannot reach agreement . . . on the basis of their irreconcilable comprehensive doctrines.”). Rawls says much the same thing in John Rawls, Political Liberalism 133–35 (expanded ed. 2005). See also Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 118 (1969) (claiming political theory “spring[s] from, and thrive[s] on, discord”).
- 244. David A. Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1808 (2005).
- 245. Id. at 1809.
- 246. See Thomas Christiano, The Constitution of Equality: Democratic Authority and Its Limits 88 (2010); Jeremy Waldron, Law and Disagreement 86 (1999).
- 247. See, e.g., Christiano, supra note 246, at 94.
- 248. See generally Waldron, supra note 246, at 72 (“[O]ur conception of legislative deliberation must respect the fact that a representative assembly is characteristically a place where people assemble who are different from one another – in their backgrounds, experiences, and beliefs – and often opposed to one another – in their views about policy, social justice, and rights.”); see also id. at 86 (“[I]n the circumstances of politics, it is important that communities make decisions in forums and using procedures that are respectful of disagreement and allow contending voices to be heard in a debate about what the solution to a common problem should be.”).
- 249. Id. at 69 (quoting John Stuart Mill, Of the Proper Functions of Representative Bodies, in Considerations on Representative Government 117 (1861)).
- 250. John P. McCormick, Machiavellian Democracy 149 (2011) (citing Philip Pettit, Republicanism 193 (1997)). But contestation is a general feature of modern liberal democracy, not only of neo-republican theory. See, e.g., Jane J. Mansbridge, Living with Conflict: Representation in the Theory of Adversary Democracy, 91 Ethics 466, 466 (1981) (“The contemporary normative theory of democracy is almost entirely an ‘adversary’ theory, based on the assumption of conflicting interests among the citizens and conceived largely as a means of handling that conflict.”). For example, Alice Ristroph has persuasively argued, these features of resistance to sovereign authority are as much a feature of Hobbesian liberalism as Pettit’s neo-Roman republicanism. See, e.g., Alice Ristroph, Sovereignty and Subversion, 101 Va. L. Rev. 1029 (2015); Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure, 95 B.U. L. Rev. 1555 (2015).
- 251. A venerable tradition in democratic theory celebrates this sort of elite rule, either by directly denigrating democracy as the rule of uninformed masses as opposed to expert governors, see Plato, The Republic 158 (G.M.A Grube, trans., 1992), or by arguing for a minimalist notion of democracy, in which political elites “make policy and law with little regard for the fickle and diffuse demands made by ordinary citizens” apart from the regular competition for votes at election time. Tom Christiano, Democracy, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., Spring 2015), http://plato.stanford.edu/archives/spr2015/entries/democracy (https://perma.cc/AZT3-Q48E). Ordinary citizens do have a role to play, on this view of democracy, by rejecting elites when the elite view becomes sufficiently problematic or disruptive. Id.
- 252. See Henry S. Richardson, Democratic Autonomy: Public Reasoning About the Ends of Policy 4–5, 8, 12, 89 (2002); id. at 27 (“Government action without any reasons in support of it is arbitrary in an elemental sense.”).
- 253. David Alan Sklansky, Democracy and the Police 109 (2008).
- 254. Id. at 110.
- 255. Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 12, 55, 82–83 (1969); see also Douglas Husak, Is the Criminal Law Important?, 1 Ohio St. J. Crim. L. 261, 263–66 (2003) (suggesting that criminal law is dominated by the discretionary decisions of law enforcement officials). As Davis points out, “[a]mong the most important administrators in America are the police . . . [t]hey make some of our most crucial policies and a large portion of their function is the administration of justice to individual parties.” Id. at 8.
- 256. Davis, supra note 255, at 12; see also Carl B. Klockars, The Dirty Harry Problem, in Thinking About Police: Contemporary Readings 428, 431 (1983) (discussing the problem of the police using unlawful means to achieve the good ends of bringing criminals to justice); Robert W. Benson, Changing Police Culture: The Sine Qua Non of Reform, 34 Loy. L.A. L. Rev. 681, 689 (2001) (discussing police misconduct and criminality in connection with the War on Drugs). A recent Supreme Court case, Utah v. Strieff, 136 S. Ct. 2056 (2016), presents just this tension between ignoring the law and enforcing it. Strieff is a Fourth Amendment case. The police unlawfully stopped a man leaving a house the police suspected of being a drug den. Upon searching Strieff, the arresting officer discovered methamphetamine and drug paraphernalia. Normally, the fruits of an unlawful search would be inadmissible in evidence. But what made this stop and search permissible was the officer’s discovery, upon asking for and checking upon on Strieff ’s I.D., that Srtieff had an outstanding warrant, entitling the officer to arrest Strieff. The independent existence of the warrant, the Court held, was an unforeseen intervening event breaking the chain of illegality and permitting the police to arrest and search the defendant in good faith, free of the sanction of exclusion. Id. at 2062. Importantly, the police had no right to stop Strieff, and so Strieff ’s right to resist was intact. However, Strieff removes an important remedy for one class of civilians when the police violate the right to walk away. Civilians with an outstanding criminal warrant now lack the remedy of exclusion for the fruits of the unlawful seizure and search. See id. at 2063.
- 257. See, e.g., Bittner, supra note 2, at 34 (“[P]olicemen are inevitably involved in activities that cannot be fully brought under the rule of law. Only a limited set of legal restrictions can be conditionally imposed upon the police which, however, still do not make it impossible for the police to proceed as they see fit.”); Skolnick, supra note 3, at 6.
- 258. Skolnick, supra note 3, at 12; see also Husak, supra note 255, at 263–66 (suggesting that criminal law is dominated by the discretionary decisions of law enforcement officials). As Davis points out, “Among the most important administrators in America are the police . . . They make some of our most crucial policies and a large portion of their function is the administration of justice to individual parties.” Davis, supra note 255, at 8.
- 259. Davis, supra note 255, at 12. As Davis elaborates, “[t]he difficult problems have to do with choices by conscientious officers to exceed the strict limits of their authority in order to do justice or to protect the public interest or to produce the results that common sense requires; yet minds may differ as to what is justice or the public interest or common sense.”
- 260. Sklansky, supra note 253, at 110.
- 261. See, e.g., Roger G. Dunham, Transforming Citizens Into Suspects: Factors that Influence the Formation of Police Suspicion, 8 Police Q. 366 (2005).
- 262. It is thus slightly different from the traditional liberal or libertarian worry about having the paternalist state determine the civilian’s interests for her, and then act on the state’s evaluation of those interests. Paternalism precludes the individual from declining to act upon her interests. The problem faced in the policing context is a different one: the civilian’s interests do not count equally with those of the police. The police officer or the state can dominate the individual by substituting their interests for hers.
- 263. The worry is that a civilian must “depend[ ] on the goodwill of another— . . . to live at the mercy of another—[which] is in itself inimical to freedom.” Philip Pettit, Republican Liberty and Its Constitutional Significance, 25 Austl. J. Leg. Phil. 237, 239 (2000). Andrew Taslitz calls this process of authoritarian verbal subjugation “bullshit.” See Andrew Taslitz, Bullshitting the People: The Criminal Procedural Implications of a Scatalogical Term, 39 Tex. Tech L. Rev. 1383 (2006–07). He lists a variety of vices associated with bullshit: disrespect (id. at 1392–94); undermining rationality (id. at 1394–95); and undermining our separateness from others (id. at 1395–98), which I have termed “heteronomy.” A central vice of bullshit or verbal psychological manipulation, as I would less confrontationally term it, is the worry that, as Taslitz puts it, manipulation “skew[s] public political deliberation,” id. at 1405, and for my purposes, public political deliberation over whether to indulge police claims to authority without question or only on condition of established police legitimacy.
- 264. Philip Pettit, Legitimacy and Justice in Republican Perspective, 65 Current Legal Problems 59, 73 (2012).
- 265. See, e.g., Steinbock, supra note 118, at 539–40 (“A police officer approaches. ‘May I speak to you for a minute?’ she says. One could simply say ‘no,’ . . . but civility and utility dictate on most occasions that the first answer be ‘Why?’ or ‘What is the reason, officer[.]’ . . . The answer to this initial query concerning the reasons for the impending conversation is all-important, however. If the answer is directed at criminal investigation (for example, ‘We are investigating narcotics trafficking’), then the reasonable person ought to . . . just say no. The same holds true for requests for identification or for questions concerning presence in the locale or travel plans. It also applies to nonresponsive answers, such as ‘this will just take a minute,’ and to answers that respond with a question, like ‘Why do you ask?’ In short, a knowledgeable reasonable person ought to require the officer to state his or her business clearly, and at the first opportunity, in order to make an informed decision about whether to proceed with the encounter. If the officer does describe the purpose of the encounter and then veers into new territory, the same danger signals ought to be triggered.”). The same rationale is at work in the context of prosecutorial use of peremptory challenges, which require the prosecutor to state her reasons for striking certain categories of juror to enable a court to scrutinize her reasons for so striking. See Miller-El v. Dretke, 545 U.S. 231 (2005); Johnson v. California, 543 U.S. 499 (2005).
- 266. Terry v. Ohio, 392 U.S. 1, 25–26 (1968).
- 267. William Ker Muir, Police: Street Corner Politicians (1979).
- 268. Id.
- 269. See Skolnick, supra note 3, at 6.
- 270. Muir, supra note 267, at 4.
- 271. Id.
- 272. See, e.g., Gardner, supra note 240. (describing as politically inappropriate the surreptitious state manipulation of civilians’ beliefs).
- 273. For example, Lon L. Fuller identifies as,
[T]he distinguishing characteristic of adjudication . . . the fact that it confers on the affected party a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor. Whatever heightens the significance of this participation lifts adjudication toward its optimum expression. Whatever destroys the meaning of that participation destroys the integrity of adjudication itself. Thus, participation through reasoned argument loses its meaning if the arbiter of the dispute is inaccessible to reason because he is insane, has been bribed, or is hopelessly prejudiced. The . . . distinguishing feature of adjudication lies in the mode of participation which it accords to the party affected by the decision.
Lon L. Fuller, The Forms and Limits Of Adjudication, 92 Harv. L. Rev. 353, 364 (1978). Lest Fuller’s notion of adjudication seem too formal for the street corner, Sudhir Venatesh, a sociologist studying the “shady economy” of a poverty-stricken, minority neighborhood in Chicago repeatedly emphasizes the importance of third-party dispute-resolution as a valuable function of community relations. See Sudhir Alladi Venkatesh, Off the Books: The Underground Economy of the Urban Poor 7, 106, 117, 259–60, 273, 342 (2006).
- 274. My vision of democratic thus fits with certain liberal understandings of consent more generally. See, e.g., Sekhon, supra note 134, at 135 (“[L]iberal notions of consent . . . in the aggregate . . . [require] that the State must be ‘responsive’ to the body politic. That is to say, they mean that the State must offer plausible justifications to its citizens and that they must have sufficient power to affect policy-making. This notion of responsiveness resonates with our shared understanding of political legitimacy and popular agency—i.e., a legitimate government is one that does the people’s bidding, and to the extent that it fails to do so, the people have the opportunity to select another one.”).
- 275. Missed Opportunities, Shared Responsibilities: Final Report of The Cambridge Review Committee 26 (June 15, 2010), http://www2.cambridgema.gov/CityOfCambridge_Content/documents/Cambridge%20Review_FINAL.pdf (https://perma.cc /FSK3-4KDK] (“[E]ncounters with members of the public are dynamic; the situation can change minute by minute.”).
- 276. In particular, someone that the officer has prejudged as guilty. See, e.g., Jerome Skolnick, Justice on Trial 196–97 (2d ed. 1975) (describing the typical police officer as someone convinced of her “ability to distinguish between guilt and innocence”).
- 277. For a different perspective on the importance of “voice” in resolving disputes and restoring order, see, e.g., Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio State J. Crim. L. 133, 134–35 (2011) (discussing what he calls “populist deliberative democracy”); Andrew E. Taslitz, The People’s Peremptory Challenge and Batson: Aiding the People’s Voice and Vision Through the Representative Jury, 97 Iowa L. Rev. 1675, 1706–07 (2011).
- 278. See, e.g., Ben Bradford et al., Why Do “The Law” Comply? Procedural Justice, Group Identification and Officer Motivation in Police Organizations, 11 European J. Criminology 110, 112–14 (2014) (stating procedural justice at supervisory level encourages compliance by subordinate officials); Tyler et al., supra note 204, at 609 (identifying suboptimal police practices as a feature of increasing centralization and top-down management practices in police departments); see also supra Section II.A.
- 279. Muir, supra note 267, at 4.
- 280. Some police officers actively advocate for this position. See, e.g., Sunil Dutta, I’m a Cop. If You Don’t Want to Get Hurt, Don’t Challenge Me, Wash. Post (Aug. 19, 2014), https://www.washingtonpost.com/posteverything /wp/2014/08/19/im-a-cop-if-you-dont-want-to-get-hurt-dont-challenge-me/ (https://perma.cc/QG9B-5MM9]; Missed Opportunities, Shared Responsibilities, supra note 275, at 6 (“For their part, community members should understand that when they are in the midst of an encounter with a police officer, they should strive to de-escalate any perceived hostility by complying with the officer’s instructions and responding to the officer’s inquiries, trusting that the officer must do her job[.]”); see also Missed Opportunities, Shared Responsibilities, supra, at 26 (“[P]olice also should discuss with their communities the role of community members in being cooperative and civil with their police officers. . . . The time to question a police officer’s actions is not at the very moment of the encounter, but later, when there are no safety or security considerations at issue.”). This attitude is likely, Muir thinks, to produce “habits of avoidance, brutality, or favoritism . . . that tend to compound moral and intellectual disorientation, leading to ever increasing isolation from human companionship, and, eventually, to personal deterioration.” Muir, supra note 267, at 4.
- 281. See, e.g., Michael D. Reisig et al., Suspect Disrespect Toward the Police, 21 Just. Q. 241, 243–44 (2004).
- 282. Id. at 243.
- 283. Id.
- 284. Id.
- 285. Id.
- 286. See, e.g., Walker, supra note 23, at 324 (“One of the unfortunate traditions in policing has been for officers to treat any form of disrespect, whether through a look or words, as ‘contempt of cop,’ and to respond with verbal abuse, threat, use of force, or arrest.”).
- 287. This worry is reflected in repeated critiques of the Terry opinion’s discussion of race. See, e.g., Paul Butler, A Long Step Down the Totalitarian Path: Justice Douglas’s Great Dissent in Terry v. Ohio, 79 Miss. L.J. 9 (2009); Tracey Maclin, Terry v. Ohio’s Fourth Amendment Legacy: Black Men and Police Discretion, 72 St. John’s L. Rev. 1271 (1998).
- 288. See, e.g., Carbado, supra note 149, at 1020 (“Yet blacks make this compromise or strike this bargain all the time. Indeed, their parents, family members, and community leaders teach them how—when, if at all, to speak, when and how to say ‘Sir,’ or Officer, or Trooper, whether or not to move, and when, if at all, to assert rights. In short, blacks grow up with the expectation that they will be called upon to negotiate their dignity and privacy in the context of police encounters.”). Ta-Nehesi Coates makes much the same point in a book that is a prolonged version of this “talk” addressed to his son. He describes the various threats to African Americans’ security and dignity as: “Disembodiment [which] is a kind of terrorism, and the threat of it alters the orbit of all our lives and, like terrorism, this distortion is intentional. . . . Disembodiment. The demon that pushed the middle-class black survivors into aggressive passivity, our conversation restrained in public quarters, our best manners on display, our hands never out of pockets, our whole manner ordered as if to say, ‘I make no sudden moves.’” Ta-Nehisi Coates, Between the World and Me 113 (2015).
- 289. This instruction is likely to prove counter-productive. Police officers are taught to scrutinize body-language for trustworthiness, and are taught that certain eye movements are a sign that the suspect is lying or guilty. See, e.g., Leo, Miranda’s Revenge, supra note 219, at 269–70.
- 290. It is worth mentioning, even in a footnote, that the President’s Task Force on 21st Century Policing, in its embrace of the “guardian” model for the police, implicitly embraces order-maintenance over the more robust role for the police that I am advocating. The Task Force’s description of the guardian role emphasizes “protection.” President’s Task Force, supra note 8, at 10. Without more elaboration, that role fits comfortably within the traditional police activity of order-maintenance, one in which the police seek to make civilians comply with their orders. See, e.g., Skolnick, supra note 3, at 5. In this, and other, ways, the Task Force’s Report remains a rather conservative approach to the problems of policing.
- 291. Sklansky, supra note 253, at 110.
- 292. See Missed Opportunities, Shared Responsibilities, supra note 275, at 26 (“Ideally, both the police officer and the civilian will conduct themselves reasonably and will choose to de-escalate any tense encounter. But if the civilian does not do so, the officer must be trained to take the higher road and work to de-escalate the encounter.”). The Committee’s report makes room for responsiveness if, in fact, a civilian does challenge the police during an encounter. It does, however, take a starkly different position as to the civilian’s right to challenge during an encounter. The Committee thinks that responsible citizens should wait until after an encounter (that is, until after the officer has inflicted some harm upon the civilian) to contest the encounter. Id. I disagree, in part because such harms, though they may be preventable during the encounter, may not be capable of remediation afterwards.
- 293. Testimony by Chuck Wexler, Executive Director Police Executive Research Forum, Jan. 30, 2015, Task Force on 21st Century Policing at 21.
- 294. Pettit, supra note 264, at 73.
- 295. See, e.g., Jacinta M. Gau, The Convergent and Discriminant Validity of Procedural Justice and Police Legitimacy: An Empirical Test of Core Theoretical Propositions, 39 J. Crim. Just, 489, 495 (2011) [hereinafter Gau, The Convergent and Discriminant Validity] (“[P]rocedural justice predicts police legitimacy, which in turn affects cooperation and compliance. Procedural justice and police legitimacy are subjective, psychological judgments about perceived fairness.”).
- 296. See, e.g., Jacinta M. Gau et al., Examining Macro-Level Impacts on Procedural Justice and Police Legitimacy, 40 J. Crim. Just. 333, 333 (2012) (“Procedural justice is, by definition, a social-psychological concept. It is grounded in citizens’ perceptions, judgments, and opinions, and is influenced both by actual police behavior and by certain aspects of citizens’ personalities and dispositions.”) (internal citations omitted).
- 297. Walker, supra note 23, at 316 (“The most important research on achieving voluntary compliance with the law is in the field procedural justice, with Tom Tyler as the major theoretician.”). It is worth reminding ourselves that “voluntary,” in both the legal and social psychological literature, does not mean free from influence, or fully autonomous choice. It is compatible with heavily influenced, heteronomous choices. The important point for voluntariness is that the choice is free from instrumental inducements or sanctions.
- 298. Procedural justice uses the terms instrumental and “normative” or “procedural.” See, e.g., Tom R. Tyler, Why People Obey the Law 20–26, 161–65 (1990); see also Anthony Bottoms & Justice Tankebe, Beyond Procedural Justice: A Dialogic Approach to Legitimacy in Criminal Justice, 102 J. Crim. L. & Criminology 119, 120 (2012) (describing Tyler’s contrast between the instrumental and the normative); Jacinta M. Gau, & Rod K. Brunson, Procedural Justice and Order Maintenance Policing: A Study of Inner-City Young Men’s Perceptions of Police Legitimacy, 27 Just. Q. 255, 258 (2010) (contrasting instrumental with “internalize[d]” factors inducing compliance); Gau, The Convergent and Discriminant Validity, supra note 295 (discussing instrumental and normative aspects of procedural justice); Kristina Murphy et al., Motivating Compliance Behavior Among Offenders: Procedural Justice or Deterrence?, 43 Crim. Just. & Behavior 102, 103 (2016); Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 233 (2008–09) [hereinafter Tyler & Fagan, Legitimacy and Cooperation] (contrasting instrumental and procedurally just theories of compliance).
- 299. Tom R. Tyler & Yuen J. Huo, Trust in the Law: Encouraging Public Cooperation with the Police and Courts 94, 20–24 (2002).
- 300. Id. at 54–57.
- 301. Id. at xv.
- 302. Id.
- 303. Stephen J. Schulhofer et al., American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. Crim. L. & Criminology 335, 347–48 (2011) (hereinafter Schulhofer et al., American Policing at a Crossroads).
- 304. Tyler & Huo, supra note 299, at 132–35.
- 305. Id. at 52.
- 306. See Meares, supra note 204, at 347.
- 307. Tracey L. Meares et al., Lawful or Fair? How Cops and Laypeople View Good Policing 103 (Yale Law Sch., Pub. Law Working Paper No. 255, 2014).
- 308. Jason Sunshine & Tom Tyler, Moral Solidarity, Identification with the Community, and the Importance of Procedural Justice: The Police as Prototypical Representatives of a Group’s Moral Values, 66 Soc. Psychol. Q. 153, 156 (2003).
- 309. Id. at 153.
- 310. See Tom Tyler & Steven Blader, Cooperation in Groups: Procedural Justice, Social Identity, and Behavioral Engagement 6–8 (2013) (arguing “[r]eward-driven incentive systems encourage desired behaviors by rewarding those behaviors. Such strategies focus on the social facilitation of behavior that benefits the group, but may not benefit the individual. Punishment-driven sanctioning systems discourage undesired behavior by punishing those behaviors.”).
- 311. See, e.g., Jacinta M. Gau, Procedural Justice and Police Legitimacy: A Test of Measurement and Structure, 39 Am. J. Crim. Just. 187, 189 (2014) (hereinafter Gau, Procedural Justice and Police Legitimacy).
- 312. See, e.g., id. (discussing performance and procedural models of public support for the police, and finding that the process-based or procedural justice model is more effective).
- 313. See Meares et al., supra note 307, at 103–06.
- 314. See, e.g., Walker, supra note 23, at 316 (distinguishing lawfulness from legitimacy); see also Meares et al., supra note 307, at 105.
- 315. Walker, supra note 23, at 316.
- 316. Id.
- 317. Id.
- 318. Tyler & Huo, supra note 299, at xiii (The subjects of regulation “follow legal decisions and rules because they think that they ought to do so, irrespective of whether they believe that legal authorities might sanction them for noncompliance.”).
- 319. E. Allen Lind & Tom R. Tyler, The Social Psychology of Procedural Justice 9 (1988).
- 320. Tyler & Huo, supra note 299, at xiv.
- 321. Meares et al., supra note 307, at 108 (“[T]he public does not define lawfulness or determine the appropriateness of sanctioning the police through the same lens of legality that police and other legal authorities use. . . . [O]rdinary observers focus on the comportment and demeanor of the legal authorities. This means that public attention is paid to how legal authorities act once they have decided to engage a person and are implementing their decision by interacting with members of the public.”).
- 322. Tyler & Huo, supra note 299, at xvi.
- 323. Id. at xiii; see id. at xiv (“This model is based on the argument—empirically tested . . .—that individual legal authorities can behave in ways that encourage the voluntary acceptance of their directives.”).
- 324. See, e.g., Walker, supra note 23, at 320 (“[P]olice conduct makes a difference. Good police conduct, particularly respectful policing, has a positive effect on peoples’ assessment of police legitimacy, whereas bad conduct has a negative effect.”). On the “benevolence” formulation of these factors, see for example, Meares, supra note 204, at 347. (“First, participation is an important element. People report higher levels of satisfaction in encounters with authorities when they have an opportunity to explain their situation and perspective on it. Second, people care a great deal about the fairness of decision making by authorities. That is, they look to indicia of decision-maker neutrality, objectivity and factuality of decision making, consistency in decision making, and transparency. Third, people care a great deal about how they are treated by organization leaders. Specifically, people desire to be treated with dignity, with respect for their rights, and with politeness. Fourth, in their interactions with authorities, people want to believe that authorities are acting out of a sense of benevolence toward them. That is, to discern why authorities are acting a certain way, people assess how those authorities are acting. They want to trust that the motivations of the authorities are sincere, benevolent, and well intentioned.”) (internal citations omitted). I prefer the term benevolence to trustworthiness, because trust is one of the effects produced by the process, and I find the idea that trustworthiness produces a feeling of trust analytically true (even tautologous) rather than empirically enlightening. That benevolence induces feelings of trust has, in my view, more explanatory value.
- 325. See, e.g., Kristina Murphy et al., Promoting Trust in Police: Findings from a Randomized Experimental Field Trial of Procedurally Just Policing, 24 Policing & Soc. 405, 407 (2014) (“Procedural justice is commonly defined in terms of four issues: voice; neutrality; respect; and trustworthiness. The first two are concerned with how decisions are made and involve voice; the second two involve the fairness in which people are treated by authorities.”) (internal citations omitted).
- 326. See, e.g., E. Allen Lind & Tom R. Tyler, The Social Psychology of Procedural Justice 9 (1988) (“[P]eople react more favorably to procedures that give them considerable freedom in communicating their views and arguments.”); see also Walker, supra note 23, at 317 (“Procedural justice research holds that people are more likely to feel that the system is fair if they are informed about what is going on and have a chance to participate in the process. The ability to tell your side of the story is referred to as having a ‘voice’ in the process.”).
- 327. Mike Hough et al., Procedural Justice, Trust, and Institutional Legitimacy, 4 Policing 203, 205 (2010). The sense of “moral” used here is perhaps better captured in the idea of “shared values or of ‘moral alignment,’” id., in which what is at stake is not absolute right and wrong, but rather the opinions or beliefs of the various individuals or social groups comprising the community. Another way of capturing the concept is as the positive morality of the community. See generally Sunshine & Tyler, Moral Solidarity, supra note 308.
- 328. E. Allen Lind et al., Procedural Context and Culture: Variation in the Antecedents of Procedural Justice Judgments, 73 J. Personality & Soc. Psychol. 767, 768 (1997).
- 329. See President’s Task Force, supra note 8, at 7.
- 330. Tom R. Tyler, Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities, 25 L. & Soc. Inquiry 983, 990 (2000).
- 331. Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals Am. Acad. Pol. & Soc. Sci. 84, 92 (2004).
- 332. See, e.g., Tyler et al., supra note 204, at 617 (“In terms of decision making, procedural justice involves voice—the opportunity to explain one’s concerns, actions, or situation—and factuality/neutrality—evidence that decisions are being made based on facts and without partiality. The quality of the treatment that people feel they receive is shaped by respect, courtesy, and dignity and a belief that the motives of the authority are trustworthy.”).
- 333. Benjamin Justice & Tracey L. Meares, How the Criminal Justice System Educates Citizens, 651 Annals Am. Acad. Pol. & Soc. Sci. 159, 166 (2014); see also Meares, supra note 204, at 347 (“[P]articipation is an important element. People report higher levels of satisfaction in encounters with authorities when they have an opportunity to explain their situation and perspective on it. . . . [P]eople care a great deal about how they are treated by organization leaders. Specifically, people desire to be treated with dignity, with respect for their rights, and with politeness.”) (internal citations omitted).
- 334. Tom R. Tyler & Stephen L. Blader, The Group Engagement Model: Procedural Justice, Social Identity, and Cooperative Behavior, 7 Personality & Soc. Psych. Rev. 349, 351 (2003) (internal citations omitted).
- 335. Id.
- 336. Tyler, Enhancing Police Legitimacy, supra note 331, at 88.
- 337. Andrew V. Papachristos et al., Why Do Criminals Obey the Law? The Influence of Legitimacy and Social Networks on Active Gun Offenders, 102 J. of Crim. L. & Criminology 397, 403 (2012).
- 338. Tyler, Enhancing Police Legitimacy, supra note 331, at 92 (quoting John D. McCluskey, Police Requests for Compliance: Coercive and Procedurally Just Tactics 91 (2003)).
- 339. Tom R. Tyler, Procedural Justice, Identity and Deference to the Law: What Shapes Rule-Following in a Period of Transition?, 61 Austl. J. Psychol. 32, 32, 33 (2009) (hereinafter Tyler, Procedural Justice, Identity and Deference to the Law).
- 340. Tyler & Huo, supra note 299, at xiv.
- 341. Jonathan Jackson et al., Monopolizing Force? Police Legitimacy and Public Attitudes Toward the Acceptability of Violence, 19 Psychol., Pub. Pol’y, & L. 479, 480 (2013).
- 342. Tyler, Enhancing Police Legitimacy, supra note 331, at 85.
- 343. Id.
- 344. Walker, supra note 23, at 324 (suggesting procedural justice and de-escalation techniques can work together to reduce forcible encounters).
- 345. See, e.g., Gau, The Convergent and Discriminant Validity, supra note 295, at 494–95.
- 346. Id. at 490.
- 347. Tyler, Enhancing Police Legitimacy, supra note 331, at 85 (emphasis added); see also Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283, 323 (2003) (“[W]hile deterrence influences law-related behavior, the social context of democratic societies makes it difficult for authorities to engage in the levels of surveillance needed to sustain a viable legal system simply based upon deterrence.”).
- 348. Gau, The Convergent and Discriminant Validity, supra note 295, at 494 (citation omitted).
- 349. Schulhofer et al., supra note 303, at 343.
- 350. Tyler & Fagan, Legitimacy and Cooperation, supra note 298, at 242.
- 351. Schulhofer et al., American Policing at a Crossroads, supra note 303, at 345.
- 352. One way of separating out the concepts of cooperation and compliance is to suggest that people cooperate with some organization or individual, whereas people comply with rules or norms. See, e.g., Gau, Convergent and Discriminant Validity, supra note 295, at 490 (“[C]ompliance comprises two domains: cooperation with police and compliance with the law in general.”). There is, however, some “overlap” between these two concepts. Tyler & Fagan, Legitimacy and Cooperation, supra note 298, at 247 (“[C]ompliance with the law and cooperation with the police [are both types of cooperation]. Conceptually, there is some overlap in these constructs and items are likely to be internally correlated.”).
- 353. See Tom R. Tyler & Steven Blader, Cooperation in Groups: Procedural Justice, Social Identity, and Behavioral Engagement 4 (2013) (“Mandated cooperation occurs when people engage in behavior that is dictated or required by group rules or norms. Some rule or policy of the group prescribes the terms and guidelines of the behavior.”); Tyler, Procedural Justice, Identity and Deference to the Law, supra note 339, at 32 (stating one form of cooperation is deference to rules).
- 354. Tyler and Blader call this kind of cooperation “discretionary.” See Tyler & Blader, supra note 353, at 4–5.
- 355. Id. at 3.
- 356. Id. at 4–6.
- 357. Tyler & Fagan, Legitimacy and Cooperation, supra note 298, at 236; see also Jonathan Jackson et al., Just Authority?: Trust in the Police in England and Wales 187 (2012) (advocating cooperation as taking action to “call the police, to report crime or suspicious activities, to provide information to help police identify a criminal[.]”); see also Aziz Z. Huq et al., Why Does the Public Cooperate with Law Enforcement? The Influence of the Purposes and Targets of Policing, 17 Psychol. Pub. Policy, & L. 419 (2011).
- 358. Tyler & Huo, supra note 299, at 95–96.
- 359. See, e.g., Ben Bradford et al., Officers as Mirrors, 54 Brit. J. Criminology 527, 529–30 (2014) (discussing importance for procedural justice of treating individuals with dignity and respect).
- 360. Id.; Sunshine & Tyler, Moral Solidarity, supra note 308, at 162.
- 361. See, e.g., Gau, The Convergent and Discriminant Validity, supra note 295, at 495 (“[P]rocedural justice predicts police legitimacy, which in turn affects cooperation and compliance. Procedural justice and police legitimacy are subjective, psychological judgments about perceived fairness.”).
- 362. Tyler et al., Object of Suspicion, supra note 204, at 617; Benjamin Justice & Tracey L. Meares, How the Criminal Justice System Educates Citizens, 651 Annals Am. Acad. Pol. & Soc. Sci. 159, 166 (2014); see also Meares, supra note 204, at 347.
- 363. 430 U.S. 387 (1977).
- 364. Id. at 392–93.
- 365. Yale Kamisar, Brewer v. Williams, Massiah and Miranda: What Is ‘Interrogation’? When Does It Matter?, 67 Geo. L. Rev. 1, 1 (1978) (quoting Lamberto, Learning’s “Speech”. “I’d DoIit Again,” Des Moines Register, Apr. 7, 1977, § B, at 1, col. 1).
- 366. The Brewer Court held that Officer Leaming’s actions violated Brewer’s Sixth Amendment right to counsel. Id. at 400–01.
- 367. Bradford et al., Officers as Mirrors, supra note 359, at 529.
- 368. The police also found some exculpatory evidence suggesting that Williams did not murder the girl. See, e.g., Williams v. Nix, 700 F.2d 1164, 1168 (8th Cir. 1983), rev’d, 467 U.S. 431 (1984) (“The defense conceded that Williams had left the YMCA with the little girl’s body, but claimed that someone else had killed her and placed her body in Williams’s room in the hope that suspicion would focus on him. Williams, the theory went, then panicked, fled, and hid the body by the side of a road, until he came to his senses and gave himself up two days later. The theory is not so far-fetched as it sounds.”). I am grateful to Professor Alice Ristroph for reminding me that questions surrounded Williams’s guilt.
- 369. See, e.g., Jonathan Jackson et al., supra note 357, at 1 (“This book is an investigation into the psychological and sociological mechanisms driving public trust, police legitimacy and the willingness of citizens to cooperate with police officers.”); see generally Tyler & Huo, supra note 299; Tom R. Tyler, Trust and Law Abidingness: A Proactive Model of Social Regulation, 81 B.U. L. Rev. 361, 378 (2001) (arguing authorities can gain trust by acting in legitimate, procedurally fair ways).
- 370. Tom R. Tyler, Public Mistrust of the Law: A Political Perspective, 66 U. Cinn. L. Rev. 847, 856 (1998); see also Tyler, Why People Obey the Law, supra note 298, at 16 (discussing compliance with rules and orders as essential for effective authority); Mike Hough et al., supra note 327.
- 371. See generally Tyler, Why People Obey the Law, supra note 298; Tyler & Huo, supra note 299.
- 372. See, e.g., David Beetham, The Legitimation of Power 34 (2d ed. 2013) (describing differences between the legal, philosophical, and sociological meanings of “legitimacy”).
- 373. Id. at 4–5.
- 374. See, e.g., Joseph Raz, Legitimate Authority, in The Authority of Law 3–4 (2009) (describing legitimate authority as resting upon moral reasons).
- 375. See, e.g., Joseph Raz, The Claims of Law, in The Authority of Law 28–33 (2009) (arguing that law must claim legitimate authority); John Gardner, How Law Claims, What Law Claims, in Law as a Leap of Faith 143 (2012) (same).
- 376. See, e.g., David Beetham, The Legitimation of Power, supra note 372.
- 377. Id. (providing a hermeneutic account of legitimacy such that an authority is legitimate if it can be justified in terms of some group’s beliefs, that is, the values and standards they, as a group, accept). Beetham’s view is a modified version of Weber’s claim that authority depends upon a belief in the authority’s right to rule. See, e.g., 1 Max Weber, Economy and Society 31–36, 212–16 (Guenther Roth & Claus Wittich eds. 1978) (discussing the concept of legitimacy). Procedural justice theorists’ view of legitimacy importantly endorses the sociological, rather than normative version of legitimacy. See, e.g., Jonathan Jackson et al., supra note 357, at 213 (discussing Beetham’s view); Tyler & Fagan, Legitimacy and Cooperation, supra note 298, at 235 nn.13–15 (2008) (endorsing Beetham and Weber); Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime & Just. 283, 307–08 (2003) (endorsing Weber’s view); Tyler, Enhancing Police Legitimacy, supra note 331, at 87 (2004) (endorsing Weber’s view).
- 378. The relationship between procedural justice and democracy is most forcefully articulated by Tracey Meares. See, e.g., Justice & Meares, How the Criminal Justice System Educates Citizens, supra note 362.
- 379. Tyler, Procedural Justice, Identity and Deference to the Law, supra note 339, at 32 (discussing centrality of “procedural justice . . . to people’s relationships to hierarchical groups.”).
- 380. Jackson et al., supra note 357, at 7.
- 381. Id. at 610.
- 382. Id. at 7.
- 383. Id.
- 384. Mike Hough et al., supra note 327, at 204.
- 385. Rebecca E. Hollander-Blumoff, The Psychology of Procedural Justice in the Federal Courts, 63 Hastings L.J. 127, 150–51 (2011).
- 386. Kamisar, supra note 365.
- 387. David De Cremer & Tom R. Tyler, The Effects of Trust in Authority and Procedural Fairness on Cooperation, 92 J. Applied Psychol. 639, 640 (2007).
- 388. Id.
- 389. Skolnick, Deception by Police, supra note 185, at 41.
- 390. Skolnick & Leo, supra note 185, at 3.
- 391. Id.
- 392. Rebecca E. Hollander-Blumoff, supra note 385, at 151.
- 393. De Cremer & Tyler, supra note 387, at 640.
- 394. Id.
- 395. Meares, supra note 204, at 347; Tyler, Object of Suspicion, supra note 204, at 626–27.
- 396. Epp et al., supra note 33, at 6.
- 397. Id. at 134–51 (discussing the race-based harms of police investigatory stops that are implied by, but not fully captured by, the theory of procedural justice).
- 398. See generally Tyler et al., Object of Suspicion, supra note 204.
- 399. Jerald Greenberg, Looking Fair Versus Being Fair: Managing Impressions of Organizational Justice, 12 Res. in Organizational Behav. 111, 124–25 (1990).
- 400. De Cremer & Tyler, supra note 387, at 647.
- 401. Id. at 640.
- 402. Id. (finding that “information about the degree of trustworthiness of the authority moderates procedural fairness effects on people’s willingness to cooperate”).
- 403. Leo, Miranda’s Revenge, supra note 219, at 270–72, 275; Slobogin, Deceit, Pretext, and Trickery, supra note 185, at 785–86 (describing police trained to lie during interrogation).
- 404. Leo, Miranda’s Revenge, supra note 219, at 270–72, 275; Ofshe & Leo, supra note 215, at 988.
- 405. Leo, Miranda’s Revenge, supra note 219, at 270–72, 275.
- 406. Sunshine & Tyler, Moral Solidarity, supra note 308, at 162; see also Gau, The Convergent and Discriminant Validity, supra note 295, at 496 (“Procedural justice predicted perceived obligation to obey, and obligation to obey was significantly and positively related to cooperation and compliance.”).
- 407. See Fred E. Inbau et al., Criminal Interrogation and Confessions (3d ed., 1986).
- 408. See, e.g., Ofshe & Leo, supra note 215, at 987.
- 409. See Miranda v. Arizona, 384 U.S. 436, 449–55 (1966) (citing Fred E. Inbau & John E. Reid, Criminal Interrogations and Confessions (1962)).
- 410. See Epp et al., supra note 33, at 36–40 (discussing a training manual for making investigatory stops, which includes psychological tactics similar to the Reid method).
- 411. See, e.g., Skolnick & Leo, supra note 256, at 5–7 (discussing strategies).
- 412. Ofshe & Leo, supra note 215, at 987.
- 413. Ben Bradford et al., Officers as Mirrors, supra note 359, at 529.
- 414. Ofshe & Leo, supra note 215, at 988.
- 415. See, e.g., Pettit, Republicanism, supra note 250, at 188 (endorsing the “the ideal of a ‘republic of reasons’” as a core element of deliberation and democracy).
- 416. Id. at 195 (“The polity must be deliberative and inclusive, for sure, but equally clearly it must also be responsive.”).