This is a paper about secrecy and policing. It is written at a time of intense discussion about policing in America. There is widespread concern that policing agencies have lost the trust of the communities they are charged to police, and that the “legitimacy” of policing is at risk.1 Part of what is needed, no doubt, is greater transparency around policing.2 People do not trust those who keep secrets from them. But it goes beyond that. For too long policing has operated aloof from the regular workings of democracy.3 And there cannot be democratic engagement with policing if what those agencies do and how they do it is kept from the people.
This is true for all policing agencies in the United States, from those that engage in street policing at the local level to those that conduct work nationally, and even internationally. That is because what ought to define “policing” is what makes policing special: the license to use force and coercion, and conduct surveillance, on the American people. To the extent any agency is doing those things, it is a policing agency, and what is said here is germane.
There is unquestionably a place for some secrecy in policing. Policing agencies are different from many of their counterpart agencies in the executive branch; some of what they do cannot be revealed without putting policing officials, and the populace, at risk. The lack of transparency in policing today, however, far exceeds anything plausibly necessary to serve these purposes.
The stage is set here, in Part I, with an instructive story of secrecy in policing. Part II makes the case for the governance of policing by democratic forces. Part III is a quick tour of the history of policing in the United States, to make the point that policing’s autonomy from democratic governance is explained as much by history as by logic, and that despite attempts to bring policing officials closer to the communities they police, pervasive secrecy is part of what has led to a breach of trust. Part IV discusses the proper line between transparency and secrecy, arguing that while certain operational details of policing must be kept secret from the public, policing policy is properly the domain of democratic governance.
I. Unacceptable Secrecy
Freddy Martinez is a youthful Chicagoan with a degree in physics. He works in the tech industry.4 Like many in his generation, he’s concerned about privacy, a concern that was heightened in light of the revelations by Edward Snowden of widespread, unauthorized government surveillance of its own citizens.5
Martinez developed a fascination with a particular device reportedly utilized by law enforcement. The device, manufactured by the Harris Corporation, tricks nearby cellphones into thinking it is a cell tower, causing them to ping it.6 It collects information about those phones, including perhaps the content of certain communications. The device has many models and names, but is known colloquially as a Stingray.7
Martinez suspected that the Chicago police were using the Stingray to spy on lawful protestors, particularly at demonstrations organized to protest what law enforcement itself was doing.8 This suspicion was not crazy; Stingrays had been used in Miami to track protestors at the meetings of the proposed Free Trade Agreement of the Americas,9 and there was some suggestion in the media that the same was going on in Chicago.10 The police, however, would not concede they had such a device.11
Then, a friend suggested Martinez file a Freedom of Information request.14 So he did. He asked the Chicago Police Department (CPD) to turn over any documents indicating whether it had purchased Stingrays.15
Although it was savvy of Martinez to request purchasing information, as Illinois law does not favor secrecy around government expenditures,16 he received no answer for months.17 So he hired a lawyer, Matt Topic. Topic had a fair amount of experience both with FOIA requests and with cases involving police misconduct.18
Eventually, the CPD produced documents indicating they in fact possessed Stingray technology.19 Initially the CPD’s documents indicated a 2008 purchase date, but it seems CPD had a Stingray as early as 2005.20 When the documents were produced, it made the news; including the fact that the CPD had previously denied to the media that it had a Stingray.21
Martinez and Topic followed up with FOIA requests designed to elicit basic information about the use of the Stingray. Was the CPD getting a warrant before using it? Was it telling judges honestly what it was doing? Was there a legal opinion on the constitutionality of using the Stingray? Was it being used at protests? Was there a data access and retention policy in place?22
The CPD gave Martinez and Topic the runaround. It hired a law firm and spent well over one hundred thousand dollars avoiding the requests.23 The department made a host of claims: there were no responsive documents; if there had been they were under court seal; and if they were not sealed, they would be confidential anyway as a matter of trade secrets or federal national security law.24 These were all an exercise in avoiding the issue. For example, sealed documents commonly are unsealed at a later date pursuant to a lawful request.25 The supposed trade secret was the product of a public patent.26
Chicago was not alone. Reports of Stingray use were popping up all over the country, and they had an eerie familiarity. San Diego’s police department issued a statement saying it couldn’t say anything;27 Anaheim, California issued one that sounded oddly the same.28 So did the police department in Gwinnett County, Georgia.29 The CPD filed an affidavit in Martinez’s case from an FBI agent named Morrison.30 Morrison’s affidavit was filed in other cases.31
When pressed, law enforcement says it cannot discuss Stingrays. It says that to say anything about Stingrays—even to admit to ownership or use of the device—would be to play into the hands of “bad types.”32 That if bad types know how the technology works, disclosure would permit evasion. They say this would make us less safe, and so the information must be kept within law enforcement.33
It turned out this secrecy was orchestrated: for years the federal government had been financing local law enforcement’s acquisition of Stingrays under a set of deeply troubling arrangements.34 The purchase contract with Harris Corporation demanded absolute secrecy; police officials in recipient agencies were barred from discussing the device, even in governmental proceedings (like legislative or court hearings).35 To cement matters, police departments also had Memoranda of Understanding with the FBI that included, among other provisions, a requirement that a prosecution be dropped if law enforcement was forced to reveal Stingray information in court.36
Although the FBI said it had never insisted that a prosecution be dismissed if Stingray information was brought before the court, this plainly was happening. In Tallahassee, Florida, the state bargained out a case in which the defendants had robbed someone with BB guns.37 In St. Louis, there is evidence of the same in a case involving a robbery and severe beating.38
Existing convictions were jeopardized once the use of Stingrays became public. In Charlotte, a FOIA request revealed the police had a Stingray since 2006.39 For four years apparently no warrant was requested when the Stingray was used, and then for four more years the warrant applications were not accurate about the technology being used.40 The prosecutor was forced to go through records of past convictions to see if any case needed to be reopened for failing to disclose the information.41 The same was true in Tacoma, Washington.42
Judges were getting understandably unhappy. In Baltimore, where records show a Stingray was used over four thousand times in seven years, a judge threatened to hold police in contempt if he was not given a straightforward answer about Stingrays.43 In Erie County, New York, a judge ordered the government to respond to a FOIA request, saying of the FBI’s rule regarding dismissing prosecutions, “If that is not an instruction that affects the public, nothing is.”44 The judge in Tallahassee asked, “What right does law enforcement have to hide behind the rules and listen in and take people’s information like the NSA?”45
The costs here were far deeper yet, however. Because, as Matt Topic and Freddy Martinez would say, the people cannot govern policing agencies if they are kept in the dark about what they are doing. And yet it is problematic to think of policing agencies as ungoverned.
II. Democratic Policing
Policing agencies are exactly that: agencies in the executive branch of government. Yet, we govern them differently than the other agencies of executive government.46
Most executive branch functions are governed by rules. The rules are public. They are in place before officials act. They are formulated with public input.47
This model of transparency and public participation is pervasive at all the levels of government. It is, in a sense, fundamental to democracy. Sometimes rules for executive officials are made legislatively.48 Commonly, there is a broad delegation of authority to an executive agency, which then promulgates its own rules through something like notice and comment rulemaking.49 At the local level, countless agencies, boards, and authorities similarly do things in the open, under the instruction of “Sunshine Acts.” Members of the public can attend and offer views.50 In other words, transparency and public participation are the norm.
Policing agencies have rules of course—they would say they are awash in rules—but often those rules fail on one of these dimensions or both. Department manuals and operating procedures sometimes are public and sometimes not.51 In neither instance, though, are those procedures typically formulated with public input.52 Constitutional decisions govern a lot of policing, but those rules most definitely are not the product of democratic deliberation.53
In fact, rather than being regulated by ex ante rules, policing often is regulated after the fact. Most policing agencies operate under extraordinarily broad delegations of authority that instruct them only to enforce the substantive laws.54 These delegations were made for the most part long before many of the tools of modern-day policing were even in place.55 Pursuant to these delegations, policing agencies enforce the laws as they wish. Then, when things go wrong, as they inevitably do, there are a host of after-the-fact “remedies” that kick in. There are Inspectors General, civilian review boards, judicial review, and court appointed monitors.56 Indeed, today’s frequent call to equip police with body-worn cameras is yet one more attempt at after-the-fact regulation of policing. 57
After-the-fact regulation has ex ante effects, of course, but it is instructive what is lost when regulation of policing is primarily after the fact. Other agencies have after-the fact-regulation, but with those agencies, after-the-fact review is used to ascertain whether there was compliance with rules that were in existence before the fact. Those rules include statutory mandates and publicly promulgated regulations, as well as constitutional law.58 Not so with policing. Typically, the only before-the-fact rules to which policing is held accountable are constitutional ones. Yet, constitutional law is (and should be) a floor not a ceiling. It does not claim as its domain the sorts of policy judgments pervasive elsewhere in government, policy judgments reflected in legislation and regulation.59 If anything is needed in the regulation of policing, which serves a vital function but imposes huge costs, it is policy judgment.
There is some before-the-fact regulation of policing, some legislative control, but it is notoriously difficult to get legislative bodies to act on policing issues.60 What have they to gain? Few powerful constituencies benefit from the regulation of policing. At election time, legislators run the risk of being held responsible for being soft on crime. Moreover, secrecy compounds this problem. When policing occurs in the shadows, as it has with regard to Stingrays, the people cannot govern it even if they would like to do so.
Yet, two things are clear.
First, the people surely are entitled to govern policing practices like Stingrays if they so choose. It is hard to think of a remotely plausible argument that somehow policing practices are immune from democratic deliberation. Congress, for example, regulates police interception of electronic communications in the Electronic Communications Privacy Act.61 Surely Stingrays are subject to similar regulation.
Second, when the people are aware of policing practices, they often change policy in important ways. Now that Stingrays are becoming public, some states have adopted legislation regulating these devices. South Carolina recently proposed banning them altogether.62 Washington State requires warrants.63
Indeed, given the public furor over Stingrays, the federal government has been forced to change its own policy. After repeated inquiries by the ranking members of the Senate Judiciary Committee, the Department of Justice conceded Stingray use, changed policy to require warrants when federal agencies use them, and initiated a top to bottom policy review.64
Yet, even as this policy change occurs, stories are surfacing in the media that are reminiscent of the early stages of the public uncovering the use of Stingrays. There now is a new device, which apparently is called a Wolfhound.65 It does what Stingrays do, but it is cheaper.66 Law enforcement insists they cannot discuss Wolfhounds, or it will tip off the bad guys. It insists that given how the technology works, no warrants are needed. And so the secrecy story repeats itself with weary familiarity.67
Where the Wolfhound story is headed is altogether predictable. Eventually, the information will be forced out. Regulations will be put in place. Policy will change.
Secrecy and democratic governance are fundamentally incompatible. In Compton, California, it became public that the police department had deployed aerial surveillance cameras that could record actions on the street all over the city.68 When asked about what it was doing, a police department spokesperson said, “This system was kind of kept confidential from everybody in the public. A lot of people have a problem with the eye in the sky, the Big Brother, so to mitigate those kinds of complaints we basically kept it pretty hush hush.”69 Conor Friedersdorf, writing in the Atlantic, declared, “That attitude ought to get a public employee summarily terminated.”70 It is difficult to imagine this sort of statement going down easily with the public if it involved any other government agency.
It is no wonder that law enforcement is having legitimacy and trust issues when it insists on going at it alone without public knowledge or support. Trust is earned, not bestowed. Legitimacy in a democracy comes from the people, not their officials.
III. The Origins of Secret Policing
Secret policing is, as much as anything else, a historical artifact, of which we have been trying to purge ourselves for a very long time. This part explains the origins of policing’s disconnect from democratic governance, and the secrecy that it has entailed.
The Constitution says very little specifically about policing, which is not surprising given that there were not organized police forces at the time of the Framing.71 There was a loose-knit collection of sheriffs and constables charged with serving court orders and arresting malfeasants.72 And there was the night watch, an oft-ungainly, ragtag collection of civilians that was ridiculed at times for its incompetence.73
Regular police forces did not become common in the United States until the mid-nineteenth century. In 1829, London created its Metropolitan Police Force under the guidance of Sir Robert Peel (hence, the name “bobbies”).74 Across the pond, urban governments followed suit. Boston created its force in 1838, Philadelphia in 1850.75
These departments managed to be both incompetent and brutal. Philadelphia’s chief had to dismiss one-third of his force one year in for being “worthless, drunken, and totally unfit.”76 Almost twenty-five years later, an 1872 Philadelphia Ledger article described a certain type of officer, “the men who upon merest whim, or the slightest show of resistance, fly into a gust of passion, pull out their revolvers and make a serious affray out of what might have passed off as an unimportant incident.”77
As many are observing publicly today, in the past police power often was used in troubling ways against marginalized or minority communities.78 It was used to suppress popular movements and demonstrations, including labor organizing.79 There were slave patrols.80
But mostly urban policing was corrupt. The Lexow Commission in New York uncovered an extraordinary degree of organized corruption operating under the auspices of Tammany Hall.81 There was a published schedule of costs to obtain various jobs in the department.82 Fees were raised by an ongoing and pervasive degree of graft. Police extorted funds from legitimate and illegitimate businesses alike, often using a shocking degree of brutality.83 New York was hardly alone.84
This was the era of “incivility, ignorance, brutality and graft.”85 So said August Vollmer, the chief of the Berkeley, California police department, and a leader of late nineteenth and early twentieth century reform movements. In 1931, the Wickersham Commission said much the same.86 Indeed, despite the supposed rooting out of corruption in New York by the Lexow Commission, it persisted well into the twentieth century.87
The solution Progressive Era reformers arrived at was to separate policing from popular politics. If the problem was that policing was too much under popular control, which paved the way for corruption and graft, then the solution was to liberate it from this control.88 Police departments were made to be “autonomous” from politics.89 Officers were hired under civil service rules.90 Even some chiefs were civil service appointees.
In this reformist era, the notion was that policing would be “professionalized.”91 Science and technology would be brought to bear, leading to innovations like fingerprinting and the establishment of police laboratories.92 Rather than being close to the people, officers would be controlled from the center.93 The symbol of it all was the shiny, radio-dispatched patrol car, jetting all over town in response to calls for service.94
It soon became clear, though, that policing had become autonomous—but not professional.95 Not only were the forces themselves autonomous, but individual police officers exercised an unfathomable amount of discretion. In the 1950s, the American Bar Foundation (ABF ) began a large national study of policing.96 Within weeks of starting they had to call investigators back for re-training, for no one had anticipated what they were finding.97 The first night out in the field in Milwaukee, the ABF investigator spent the night with on-duty cops drinking in bars.98 In Detroit, the investigator saw “police routinely breaking into buildings to obtain evidence or make arrests,”99 including “harassing homosexuals” and setting the “whore squad” loose on prostitutes.100 In Pontiac, Michigan, police officers were observed beating and severely injuring an African American who took pictures of them while bowling, as part of an Urban League effort “to identify officers associated with police brutality.”101 In Chicago, other investigators said, “[t]he general orders and special orders issued by [the superintendent] deal hardly at all with enforcement policy. Nearly all such policy is made by patrolmen.”102
If any proof were needed of the pervasive lack of professionalism of policing, it was provided during the turmoil of the 1960s. Police engaged in what an official inquiry called a “police riot” during the 1968 Democratic Convention in Chicago.103 Following extensive urban riots, and in the face of rising crime rates, two presidential commissions looked closely at urban policing.104 The conclusions were not pretty. President Johnson’s Crime Commission concluded that “a significant percentage of policemen assigned to high-crime areas do treat citizens with disrespect and, sometimes, abuse them physically.”105 The common complaint was what today we call “stop and frisk,” but then was termed “field interrogation.”106
Part of the problem was that police had come to see themselves as isolated from the rest of society, and worked to keep it so. As early as 1954, Chief William H. Parker noted that police, lacking public support, “all too often have withdrawn into a shell of ‘minorityism.’”107 Matters were only worse by the time President Johnson’s Crime Commission condemned it in damning language: “Cliques can grow up that thrive on secrecy and resist reform. Well-behaved officers become corrupted by the mores of their environment, especially by the unspoken rule that often prevails in such situations: an officer must not ‘inform’ on his colleagues.”108 As a result, the Commission concluded: “[L]aw enforcement suffers. A police department with a reputation for unfairness cannot promote justice. A police department with a reputation for dishonesty cannot combat crime effectively.”109
Trust—Johnson’s Crime Commission concluded—was essential to police doing their job. “Police agencies cannot preserve the public peace and control crime unless the public participates more fully than it now does in law enforcement,” explained the Crime Commission.110 Yet, “[t]here is much distrust of the police, especially among boys and young men, among the people the police most often deal with.”111
The antidote recommended by the Crime Commission would come to be known as “community policing.”112 The police, the Commission said, should create a community-relations “machinery,” particularly in minority communities.113 In particular, there should be a “citizens’ advisory committee” that is “broadly representative of the community” to “work out solutions to problems of conflict between the police and the community.”114
By the late 1980s, community policing was still in its infancy, but its elements were spelled out by Lee P. Brown, Houston’s police commissioner and the first African American to serve as police chief of a major American city.115 In a 1989 talk at the Harvard Executive Session on policing, Brown said that the professionalism movement’s image of police cars racing around town in response to calls was a mistake.116 Rather, what the police needed to do was get out of their cars, walk patrols, and get to know the community. Police forces should “recognize[ ] the merits of community involvement,” and should decentralize authority so that officers can “interact with residents on a routine basis and keep them informed.”117 Brown also advocated “power sharing,” meaning “the community is allowed to participate in the decision-making process.”118
Community policing got a big boost in 1994. Bill Clinton, in his State of the Union address, said he would put one hundred thousand new police officers on the streets.119 The Department of Justice opened its new office of Community Oriented Policing Services (COPS). It dispensed some fourteen billion dollars of funds for community policing efforts.120
The problem was that community policing soon became everything to everyone, thus lacking in clear content—if not worse. It had its undeniably good and important parts. One aspect involved police interactions with the community, through things like athletic leagues for youth.121 Another was foot patrol in communities so that residents and the police could get to know one another.122 One of the more successful aspects of community policing was “problem oriented policing.” Championed by Herman Goldstein, this involved the police learning from residents of specific difficulties that fostered crime, and working to fix them.123 But community policing funds also went to finance things like SWAT teams, which, while necessary, hardly fit the rubric.124
Over time, community policing came to have a dark underbelly. In a game-changing article in the March 1982 issue of The Atlantic entitled “Broken Windows,” George Kelling and James Q. Wilson argued that disorder cannot be left alone because it breeds more disorder.125 “[I]f a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”126 Then, disorder breeds fear of crime, which in turn creates an environment in which crime can prosper—“many residents will think that crime, especially violent crime, is on the rise, and they will modify their behavior accordingly.”127 While this could have been a prescription for more problem-oriented policing, it gave birth instead to “order maintenance” policing or “zero tolerance” policing, in which officers arrested offenders for the most minor of violations.128
All too often, order maintenance policing was focused in minority communities or exercised most frequently against marginalized individuals. Rudy Giuliani, New York City’s mayor, made it a showcase program, clamping down on turnstile jumpers and squeegee men, but also harassing local residents with the frequent use of stop-and-frisk practices.129 As George Mason University’s Center for Evidence-Based Crime Policy explained, not only was there a serious debate about whether order maintenance policing reduced crime, “there is concern that any effectiveness of broken windows policing . . . may come at the expense of reduced citizen satisfaction and damage to citizen perceptions of the legitimacy of police.”130
The result of aggressive policing under the rubric of order maintenance and zero tolerance was a cascade of resentment in many of the communities most in need of policing.131 Although that resentment had long been present and simmering, the country got a full taste of it beginning in the summer of 2014, when Michael Brown was killed by a police officer in Ferguson, Missouri.132 What followed were days of street protests met by highly militarized police forces, kicking off a national debate about how policing had gone off the rails.133 On the heels of Ferguson came Eric Garner’s death in Staten Island134 and Walter Scott’s in Charleston.135 Soon enough, it seemed every week brought a new incident of overly aggressive policing, accompanied by growing street protests. Million Hoodies and Black Lives Matter became national movements.136
In December of 2014, President Barack Obama appointed a national Task Force on 21st Century policing.137 That report was telling. The Task Force commenced its report saying that “[t]rust between law enforcement agencies and the people they protect and serve is essential in a democracy.”138 Yet, the Task Force found that “law enforcement cannot build community trust if it is seen as an occupying force coming from outside to impose control on the community.”139 It called on law enforcement to “establish a culture of transparency and accountability in order to build public trust and legitimacy.”140 “La plus ça change.”
IV. The Line Between Secrecy and Democracy
The difficulty is that there will never be trust and accountability without greater law enforcement transparency. There is no doubt that secrecy plays a necessary role in policing. But policing today holds onto a degree of secrecy far beyond what is required. The question is where the appropriate line between policing secrecy and transparency should rest.
A. Pervasive Policing Secrecy
In policing, secrecy has become a culture, as much as it is a sometimes necessary tool. Perhaps the most troubling manifestation of this secrecy is the “blue wall of silence” that is erected whenever something goes wrong.141 We saw that on full display around the killing of Chicago resident Laquan McDonald. McDonald was shot and killed by a Chicago police officer. Once the city finally released the video of what had occurred, we learned there was a massive cover-up of the events, including numerous officers giving statements plainly contrary to what the video displayed.142 The responding officers’ written reports described McDonald advancing towards them threateningly, while a police dash cam video showed him walking away from the officers.143 This is not unusual. A federal jury in Chicago fingered a similar “code of silence” in a case involving a drunk off-duty cop who beat a woman bartender for refusing to serve him more.144 A news story described the “underbelly of a police subculture”: “‘the blue curtain,’ an understanding between police officers that they should cover up for each other unconditionally and that testimony against a fellow cop amounts to a betrayal of their bond.”145 Of course, this blue wall of silence is hardly limited to Chicago.146
There is a similar culture of outright lying, even under oath. It happens so often that commentators have coined a phrase for it: testilying.147 A 1987 study in Chicago found seventy-six percent of officers said they frequently “bent the facts” to establish probable cause;148 a 1992 survey of judges and lawyers in the same city estimated that in evidence exclusion cases, there is outright perjury by the police twenty percent of the time.149 It is justified on the grounds that if cops are honest in court about what they did, bad guys will walk. (One cop described such lying as “God’s work.”)150 New York’s 1994 Mollen Commission termed police perjury “probably the most common form of police corruption facing the criminal justice system.”151 But this very same sort of misrepresentation is also seen at the highest levels—like when the President lied to the country about tapping American’s overseas calls without a warrant,152">https://perma.cc/6F6K-97UJ]. or when the head of national intelligence lied to Congress about bulk data collection.153
More fundamentally, the most basic information necessary to regulate law enforcement is not public. The Task Force on 21st Century Policing decried the lack of data available even about the use of force.154 How can communities be expected to trust, when they can’t get the facts on how often guns are drawn, shots fired? When plaintiffs asked a New York court to turn over NYPD stop-and-frisk data, the Department objected on the grounds that this would “give away information about specific policing methods, such as location, frequency of stops, and patterns.”155 When the ACLU conducted a study on the use of SWAT teams nationally, over half of the policing agencies contacted wouldn’t answer.156 A UCLA law professor reported that when conducting an important study on the extent to which officers are indemnified if they are held liable for misconduct—after all, how can you develop a system of accountability if no one ever pays?—she was startled at the refusal to provide data or describe local policies.157
What’s happened is an inversion of what should be the ordinary state of public affairs, in which government officials report to the people for whom they work. Noted legal philosopher Jeremy Waldron puts matters bluntly: “In a democracy, the accountable agents of the people owe the people an account of what they have been doing, and a refusal to provide this is simple insolence.”158">https://perma.cc/JFT2-9ESK].
In the 1960s, Kenneth Culp Davis—America’s foremost scholar of administrative governance—did an in-depth study of the Chicago Police Department. He concluded that the top officers of the Chicago Police Department failed to understand that “they are not the proprietors of a private business. They work for the public. In a democratic system, the members of the public—the electorate—are their bosses. And the bosses have a right to know what is going on.”159
Freddy Martinez and Matt Topic would say this is a continuing problem. And they’re right.
B. The Line Between Secrecy and Transparency
The police often say what they said about Stingrays: that they can’t answer questions because explaining things in public will allow criminals to more skillfully evade police detection.160 Policing, they explain, is like a game of cat and mouse—as the cats get smarter, the mice adapt. The longer police are able to keep their investigative strategies secret, the longer they can maintain the upper hand.
There’s something to this, of course. But what’s important is to make sure we aren’t the mice, from whom unnecessary secrets are kept. That’s why it is important to draw workable lines between secrecy and transparency.
In truth, many claims of secrecy are just beyond comprehension. In Ypsilanti, Michigan, the City Council asked the local police department for its policies on issues such as forfeiture and use of force. The department declined, stating “the safety and efficiency of the police department” would be “severely compromised” if it did so.161">https://perma.cc/6KK7]. Responded council member Pete Murdoch: “If these policies are not forthcoming, city council cannot exercise its responsibility to oversee the operations of the city.”162
In reality, the need for secrecy is not nearly as acute as it may seem. This is evident from the fact that what some departments insist they must keep secret, others willingly reveal.163
The key distinction, the one we should be making, is between the broad policy that governs policing, and some of its operational details. Some operational details—both pertaining to a specific investigation and to investigative techniques that if revealed would encourage circumvention—are the sorts of things that ought not to be revealed. Police should not have to announce where they hide listening devices, or the specifics on how they conduct undercover operations.164 But whether those tactics are to be used at all: surely that much can and must be made public and publicly debated without undermining law enforcement.165
SWAT policies provide a good example. Obviously, it would endanger officers and the public to reveal an “active-shooter” protocol. But there should be no secrecy or withholding of policy regarding the circumstances under which a SWAT team will be employed, the training its members receive, and the munitions they employ in civilian policing. These all are policy choices with which the public should come to terms.166
The same is true of Stingrays. There may be some operational aspects that need to be kept secret. (It would be easier to have a sense of this if the entire matter were not under wraps.) But surely the public has the right—and the responsibility—to participate in answering questions like whether Stingrays will be purchased and used at all, whether they will be used to collect data on protestors, where data is stored, by whom it is accessible, and whether and when the police need warrants or other court orders to use them.
Indeed, all too often one suspects that secrecy covers up a disturbing lack of established procedures. In Prince George’s County, Maryland, a SWAT team busted into the home of the Mayor of Berwyn Heights and killed his two dogs in a raid that never should have occurred.167 What emerged from subsequent litigation is that the department lacked policy on the most basic of questions like what training members should receive or what weaponry they carry.168
Even clearer is where the line between secrecy and transparency should not rest. Secrecy is never appropriate on the theory that if the people knew what the police were doing they would disagree, and stop it. (That was the argument made by the Compton spokesperson.)169 It should never, ever be an acceptable argument that if people knew what the police were doing, they would keep them from doing it, so the people cannot know.
That, for what it is worth, is precisely what Matt Topic and Freddy Martinez believe the Stingray fight is all about. Martinez scoffs at the idea that secrecy is about tipping off the bad guys. “It is not about the techniques, everyone knows the techniques, tapping phones, the tried-and-true techniques are all public . . . . But they are illegitimate and people would say no.”170 Topic concurs. “It is a thin, made up justification to keep people from debating this stuff, which may lead to curtailing its use.” “If we let people know what we are doing, people will argue with what we are doing and then they may limit our using it and jeopardize our national security.” “But that,” he says, “is just not how we do things in a democracy.”171
Time and again, when there is transparency and disclosure, policy changes. That is what has happened around racial profiling, the use of military equipment by the police, and policies for issuing summons rather than arresting—to name but a few.172
That’s how it is supposed to be in a democracy. Trust is built on transparency. And accountability requires it.
To put a point on matters, this is true even if the decision to limit the police would make us less safe. One can assume in all good faith that the police have our best interests at heart. That they believe what they are doing is necessary. They may even be right. If we change policing policy, we may be changing it for the worse. But democracy means we get to make these decisions ourselves, even if they are poor ones.
- 1. See generally President’s Task Force on 21st Century Policing, Final Report of The President’s Task Force on 21st Century Policing 1 (2015) [hereinafter Final Report] (“Trust between law enforcement agencies and the people they protect and serve is essential in a democracy.”); U.S. Dep’t Justice & U.S. Equal Employment Opportunity Comm’n, Diversity in Law Enforcement: A Literature Review 2 (2015) (“Law enforcement must establish legitimacy in the communities they serve if trusting relationships are to be established.”).
- 2. See Final Report, supra note 1, at 1 (“Law enforcement agencies should also establish a culture of transparency and accountability to build public trust and legitimacy.”).
- 3. See infra Part II.
- 4. Telephone Interview with Freddy Martinez (Mar. 25, 2015); Telephone Interview with Matthew Topic, Attorney, Loevy & Loevy (Mar. 13, 2015).
- 5. Topic Interview, supra note 4.
- 6. Sam Adler-Bell, Beware the Stingray, U.S. News & World Report (Mar. 13, 2015, 10:45 AM), http://www.usnews.com/opinion/articles/2015/03/13/stingray-lets-police-spy-on-cellphones-and-they-want-to-keep-it-secret (https://perma.cc/48U3-KMK8/) (discussing how the Stingray works and law enforcement’s non-disclosure agreements).
- 7. Adler-Bell, supra note 6.
- 8. Martinez Interview, supra note 4.
- 9. John Kelly, Cellphone Data Spying: It’s Not Just the NSA, USA Today (May 20, 2014, 10:54 AM), http://www.usatoday.com/story/news/nation/2013/12/08/cellphone-data-spying-nsa-police/3902809/ (https://perma.cc/CH7W-S3TE/).
- 10. Fruzsina Eördögh, Evidence of ‘Stingray’ Phone Surveillance by Police Mounts in Chicago, Christian Sci. Monitor Passcode (Dec. 22, 2014), http://www.csmonitor.com/World/Passcode/2014/1222/Evidence-of-stingray-phone-surveillance-by-police-mounts-in-Chicago (https://perma.cc/486F-L7KQ/).
- 11. See John Dodge, After Denials, Chicago Police Department Admits Purchase of Cell-Phone Spying Devices, CBS Chi. (Oct. 1, 2014, 10:52 AM), http://chicago.cbslocal.com/2014/10/01/chicago-police-department-admits-purchase-of-cell-phone-spying-devices/ (https://perma.cc/9TSM-C9Q5/) (noting CPD’s earlier denials and eventual admission of ownership of Stingrays).
- 12. Martinez Interview, supra note 4.
- 13. See Ravishankar Borgaonkar, Understanding IMSI Privacy, Blackhat USA 2014 (Aug. 7, 2014), https://www.isti.tu-berlin.de/fileadmin/fg214/ravi/Darshak-bh14.pdf (https://perma.cc/CVJ8-978J/); Darshak, Google Play, https://play.google.com/store/apps/details?id=com.darshak&hl=en (https://perma.cc/A6TX-JCC4/) (last visited Dec. 18, 2014).
- 14. Martinez Interview, supra note 4.
- 15. Complaint at 4, Ex. 7, Martinez v. Chicago Police Dep’t, No. 2014 CH 09565 (Ill. Cir. Ct. June 6, 2014).
- 16. See Ill. Const., art. VIII, § 1(c) (“Reports and records of the obligation, receipt and use of public funds of the State, units of local government and school districts are public records available for inspection by the public according to law.”); Oberman v. Byrne, 445 N.E.2d 374, 380 (Ill. App. Ct. 1st Dist. 1983) (“[I]t is necessary that public disclosure be made of specific transactions and not mere disclosure of the source of the revenue and ‘broad direction’ to which expenditures went.”).
- 17. Complaint, supra note 15, at 4–5.
- 18. Topic Interview, supra note 4; Martinez Interview, supra note 4.
- 19. Letter from Jack Enter, Police Officer, Dep’t of Police, City of Chi., to Freddy Martinez (Mar. 31, 2014), Defendant’s Motion to Dismiss Ex. 1-B at 12, Martinez v. Chicago Police Dep’t, No. 2014 CH 09565 (Ill. Cir. Ct. Sept. 3, 2014).
- 20. CPD supplemented its initial response with another disclosure on December 8, 2014. See Letter from Elizabeth Lopez, Drinker Biddle & Reath LLP, to Freddy Martinez (Dec. 8, 2014), Defendant’s Notice of Supplemental Production in Response to FOIA Request Ex. A at 6, Martinez v. Chicago Police Dep’t, No. 2014 CH 09565 (Ill. Cir. Ct. Dec. 9, 2014).
- 21. Dodge, supra note 11.
- 22. Martinez filed four further FOIA requests with CPD seeking information on Stingrays. See Defendant’s Notice of Supplemental Production in Response to FOIA Request at 2, Martinez v. Chicago Police Dep’t, No. 2014 CH 09565 (Ill. Cir. Ct. Dec. 9, 2014).
- 23. Invoice from Drinker Biddle & Reath LLP to City of Chicago (Feb. 26, 2015) (on file with the author) (charging the city $120,322 to defend Martinez’s suit and to respond to his further requests).
- 24. See Plaintiff ’s Response to Defendant’s Motion to Dismiss at 17–30, Martinez v. Chicago Police Dep’t, (Ill. Cir. Ct. Jul. 2, 2015) (No. 2014 CH 15338) (responding to CPD’s arguments that certain materials requested are exempt from disclosure as specialized investigative techniques, preliminary drafts or notes, trade secrets, and a specific federal statute to suggest that the city had met its obligation to Martinez under FOIA).
- 25. Plaintiff ’s Response at 17, supra note 24 (noting sealed documents could be unsealed in response to FOIA request).
- 26. The technology is the subject of numerous patents. See, e.g., Multi-Channel Cellular Commc’ns Intercept Sys., U.S. Patent No. 5,428,667 (filed Mar. 11, 2013); see also Plaintiff ’s Response at Ex. 1-AC, 1-AD, 1-AE, 1-AF, 1-AG, 1-AH, supra note 24.
- 27. Cyrus Farivar, To Explain Stingrays, Local Cops Cribbed Letter Pre-Written by FBI, Ars technica (Mar. 24, 2015, 7:00 AM), http://arstechnica.com/tech-policy/2015/ 03/to-explain-stingrays-local-cops-cribbed-letter-likely-pre-written-by-feds/(https://perma.cc/W486-NS4Q/).
- 28. Id.
- 29. Id.
- 30. Affidavit of Bradley S. Morrison, Motion to Dismiss Ex. 5, Martinez v. Chicago Police Dep’t, No. 2014 CH 09565 (Ill. Cir. Ct. Sept. 3, 2014).
- 31. Matt Richtel, A Police Gadget Tracks Phones? Shhh! It’s Secret, N.Y. Times, Mar. 16, 2015, at A1 (noting that Morrison’s affidavit was also filed in other cases).
- 32. See id. (“Any disclosure about the technology, which tracks cellphones and is often called StingRay, could allow criminals and terrorists to circumvent it, the F.B.I. has said in an affidavit.”); Morrison Affidavit, supra note 30, at 1 (“Disclosure of even minor details about the use of cell site simulators may reveal more information than their apparent insignificance suggests . . . . [D]isclosure of what appears to be innocuous information about cell site simulators would provide adversaries with critical information about the capabilities, limitations, and circumstances of their use . . . .”).
- 33. See Richtel, supra note 31; Morrison Affidavit, supra note 30, at 2 (“ . . . [T]his would provide [adversaries with] the information necessary to develop defensive technology, modify their behaviors, and otherwise take countermeasures . . . .”).
- 34. See Richtel, supra note 31 (noting that the FBI and Harris Corp. coordinated the nondisclosure agreements centrally); Farivar, supra note 27 (noting apparent coordination between the FBI and local police departments in responding to enquiries concerning Stingrays); Jessica Glenza & Nicky Woolf, Stingray Spying: FBI’s Secret Deal with Police Hides Phone Dragnet from Courts, Guardian (Apr. 10, 2015, 10:49 AM), http://www.theguardian.com/us-news/2015/apr/10/stingray-spying-fbi-phone-dragnet-police (https://perma.cc/U5HC-7D9K/) (describing coordination between the FBI and law enforcement agencies in twenty states to conceal information concerning the use of Stingray devices).
- 35. Harris Corporation, Harris Government Communications Systems Terms and Conditions of Sale for Domestic Wireless Equipment, Software, and Services at 1 (June 25, 2013) (on file with author); see also Harris Government Communications Systems Division Terms and Conditions of Sale for Wireless Equipment, Software and Services at 1–2 (June 25, 2012), http://www.
nyclu.org/files/20150109-Appeal-Responsefrom-NYSPolice.pdf (https://perma.cc/S4DM-8P6H] (requiring purchasers of equipment to keep information concerning purchase, use and technical specifications secret).
- 36. Cyrus Farivar, FBI Would Rather Prosecutors Drop Cases than Disclose Stingray Details, Ars Technica (Apr. 7, 2015, 5:35 PM), http://arstechnica.com/tech-policy/2015/04/fbi-would-rather-prosecutors-drop-cases-than-disclose-stingray-details/ (https://perma.cc/V6U7-J9Y5]; Letter from Christopher M. Piehota, Special Agent in Charge, Buffalo Division, FBI, to Scott R. Patronik, Chief, Erie Cty. Sheriff ’s Office at 3 (June 29, 2012), https://www.documentcloud.org/documents/1727748-non-disclosure-agreement.html#document/p3/a212440 (https://perma.cc/U2QL-ZPPJ/) (outlining requirement to seek dismissal of prosecutions involving Stingrays at the FBI’s request).
- 37. See Ellen Nakashima, Secrecy Around Police Surveillance Equipment Proves a Case’s Undoing, Wash. Post (Feb. 22, 2015), https://www.washingtonpost.com/world/national-security/secrecy-around-police-surveillance-equipment-proves-a-cases-undoing/2015/02/22/ce72308a-b7ac-11e4-aa05-1ce812b3fdd2_story.html (http://perma.cc/3KXJ-8AYB/) (describing a plea deal reached with a defendant to avoid questioning concerning the Stingray).
- 38. See Jessica Lussenhop, St. Louis Police Have Used Stingray Technology for Years—They Just Won’t Talk About It, Riverfront Times (May 20, 2015, 8:00 AM), http://www.riverfronttimes.com/newsblog/2015/05/20/st-louis-police-have-used-stingray-technology-for-years-they-just-wont-talk-about-it (https://perma.cc/8J4X-JVXR/) (Describing a decision by prosecutors to drop robbery charges, supposedly because the case hinged on the use of Stingray technology. The prosecutor denied that this was the basis for dropping the charges.).
- 39. Fred Clasen-Kelly, Secrecy Lifts in CMPD StingRay Phone Tracking, Charlotte Observer (Feb. 15, 2015, 6:00 AM), http://www.charlotteobserver.com/latest-news/article10435436.html#.VONYcy4YEsJ (https://perma.cc/T3TH-Y7SZ/).
- 40. See Fred Clasen-Kelly, Mecklenburg County District Attorney’s Office to Review Surveillance Cases, Charlotte Observer (Nov. 20, 2014, 11:00 PM), http://www.charlotteobserver.com/news/local/crime/article9234986.html (https://perma.cc/97V3-N6LH] (noting that the files disclosed “contain[ed] no records showing CMPD received court permission to use a StingRay from when it first purchased the device in 2006 until 2010”).
- 41. Clasen-Kelly, supra note 39.
- 42. Adam Lynn, Tacoma Police Change How They Seek Permission to Use Cellphone Tracker, News Trib. (Nov. 15, 2014, 12:00 AM), http://www.thenewstribune.com/news/local/crime/article25894096.html (https://perma.cc/HL6Q-DVQR/).
- 43. Adler-Bell, supra note 6.
- 44. In re N.Y. Civil Liberties Union v. Erie Cnty. Sheriff ’s Office, 15 N.Y.S.3d 713, at *11 (N.Y. Sup. Ct. Mar. 17, 2015) (table case).
- 45. Nakashima, supra note 37 (reporting a judge’s questioning of a prosecutor’s argument that the StingRay technology needed to remain secret and exempt from disclosure laws).
- 46. Much of the argument that follows is developed at greater length in Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 N.Y.U. L. Rev. 1827 (2015).
- 47. The development of the administrative state embodies the principle that rules should be public and transparent. See Lisa Schultz Bressman, Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State, 78 N.Y.U. L. Rev. 461, 472–73, 541–42 (2003) (describing the function of notice and comment rulemaking); Robert B. Reich, Public Administration and Public Deliberation: An Interpretive Essay, 94 Yale L.J. 1617, 1635 (1985) (citing the benefits of public rulemaking); Richard B. Stewart, The Reformation of American Administrative Law, 88 Harv. L. Rev. 1669, 1686 (1971) (noting the importance of outside input from organized interests). “Interpretive rules” are exempt from the rulemaking requirement, but courts construe the exemption narrowly. See, e.g., Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 653 F.3d 1, 6–7 (D.C. Cir. 2011) (construing a TSA policy as substantive and not interpretive); Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 169–71 (7th Cir. 1996) (rejecting the Department of Agriculture’s characterization of a rule as interpretive). For a general discussion of these requirements, see Friedman & Ponomarenko, supra note 46, at 1837–43.
- 48. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 577 (1984).
- 49. See supra note 47.
- 50. Teresa Dale Pupillo, Note, The Changing Weather Forecast: Government in the Sunshine in the 1990s—An Analysis of State Sunshine Laws, 71 Wash. U. L. Q. 1165, 1165 (1993). Laws vary considerably from state to state, but typically apply to all agencies and governing bodies that have “the power to regulate the conduct of others” or disburse public funds. 4 Eugene McQuillin, The Law of Municipal Corporations § 13:10 (3d ed., rev. vol. 2011). Although states have adopted various exceptions to open meeting requirements, state courts typically insist that such exceptions be “strictly construed.” See, e.g., Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012); 4 McQuillin, supra, at § 13:10 (“[C]losed-session exceptions are to be strictly construed to limit the number of situations in which meetings will not be open to the public.”).
- 51. For examples of public manuals, see Chi. Police Dep’t, Rules and Regulations of the Chicago Police Department (Apr. 16, 2015), http://directives.chicagopolice.org/lt2015/data/a7a57bf0-12d7c186-a4912-d7c1-8b12822c2ca106c4.html (https://perma.cc/B5MY-FD8R/); Seattle Police Dep’t, Seattle Police Department Manual, http://www.seattle.gov/police-manual/ (https://perma.cc/AU5K-6784] (last updated July 15, 2016); see also L.A. Police Dep’t, Los Angeles Police Department Manual, http://www.lapdonline.org/lapd_manual/ (https://perma.cc/ E558-MZXT/) (last visited Aug. 15, 2015); Metro. Police Dep’t, Standard Operating Procedures, http://mpdc.dc.gov/page/written-directives-standard-operating-procedures (https://perma.cc/EZ4R-D4C5/).
- 52. Police forces have on very limited occasions sought public input. For example, the Washington, D.C., police department occasionally subjects its policies to public rulemaking. See, e.g., Metropolitan Police Department Use of Closed Circuit Television, 49 D.C. Reg. 8465 (proposed Sept. 6, 2002). Maine also requires police departments to adopt written policies on certain police practices and requires that agencies “certify. . . that attempts were made to obtain public comment during the formulation of policies.” Me. Rev. Stat. tit. 25, § 2803-B(1) (2007).
- 53. See, e.g., Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 765–68 (2012) (discussing the role of the Supreme Court in establishing constitutional limits on policing).
- 54. See, e.g., 28 U.S.C. § 533(1) (2012) (authorizing the FBI to “to detect . . . crimes against the United States.”). New York City’s delegation is similarly broad: the police are authorized “to preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages . . . [and] protect the rights of persons and property[.]” New York City, N.Y., Charter § 435 (2012).
- 55. The FBI’s current, broad delegation was passed in 1966. Government Organization and Employees Act of 1966, Pub. L. No. 89-554, § 533, 80 Stat. 378, 616 (1966). New York City’s current delegation was enacted in 1949. N.Y.C. Local Law No. 2 (1949).
- 56. See Samuel Walker, The New World of Police Accountability 36–38, 135–36 (1st ed. 2005) (describing various models).
- 57. See, e.g., Eric L. Adams, Op-Ed., More Scrutiny, Better Policing, N.Y. Times, Nov. 14, 2015, at A23 (“We should have body cameras at all times and release footage in all situations, provided that such release would not compromise public safety.”).
- 58. See 1 Richard J. Pierce, Jr., Administrative Law Treatise § 8.1 (5th ed. 2010) (defining agency adjudication); Friedman & Ponomarenko, supra note 46, at 1838.
- 59. See Harmon, supra note 53, at 776–77 (arguing that constitutional review serves as a floor, and fails to account for competing policy interests).
- 60. See Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 Stan. L. Rev. 869, 880 (2009) (noting congressional reluctance to refrain from supporting harsh sentencing measures “because they do not want to be viewed as soft on crime”); Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; or, Why Don’t Legislatures Give a Damn About the Rights of the Accused?, 44 Syracuse L. Rev. 1079, 1083–85 (1993) (citing examples of changes to policing methods by statute only with powerful interest group pressure); William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 781, 807 (2006) (noting need for political candidates to establish “anti-crime bona fides”).
- 61. 18 U.S.C. §§ 2701–2712 (2012).
- 62. H. 4522, 121st Leg. (S.C. 2015).
- 63. Wash. Rev. Code § 9.73.260 (2015).
- 64. Devlin Barrett, U.S. Will Change Stance on Secret Phone Tracking, Wall St. J. (May 3, 2015, 7:46 PM), http://www.wsj.com/articles/u-s-will-change-stance-on-secret-phone-tracking-1430696796 (https://perma.cc/SHS5-M2EJ/).
- 65. Jennifer Valentino-Devries, Police Snap up Cheap Cell Phone Trackers, Wall St. J. (Aug. 19, 2015, 12:57 PM), http://www.wsj.com/articles/police-snap-up-cheap-cellphone-trackers-1439933271 (https://perma.cc/GYL2-XB8B/).
- 66. Id.
- 67. Id. (“‘We can’t disclose any legal requirements associated with the use of this equipment,’ said . . . , a spokeswoman for the Baltimore County Police. . . . ‘Doing so may disclose how we use it, which, in turn, interferes with its public-safety purpose.’”).
- 68. G.W. Schultz & Amanda Pike, Hollywood-Style Surveillance Technology Inches Closer to Reality, Ctr. for Investigative Reporting (Apr. 11, 2014), http://cironline.org/reports/hollywood-style-surveillance-technology-inches-closer-reality-6228 (https://perma.cc/X6N3-RWTA/) (reporting that the L.A. County Sheriff ’s Department filmed the entire city from the sky and could play back areas where crime was later reported. The technology was originally developed for the battlefield in Afghanistan.).
- 69. Conor Friedersdorf, Eyes over Compton: How Police Spied on a Whole City, Atlantic (Apr. 21, 2014), http://www.theatlantic.com/national/archive/2014/04/sheriffs-deputy-compares-drone-surveillance-of-compton-to-big-brother/360954/ (https://perma.cc/WR49-5TND/).
- 70. Id.
- 71. Eric H. Monkkonen, Crime, Justice, History 173 (2002) (“The Constitution does not mention them. Early city charters do not mention them either, for the simple reason that as we know them, police had not been invented.”).
- 72. Id. (discussing the “loosely organized constables and night’s watches” that served as law enforcement in the early republic).
- 73. Id. at 174 (quoting the New York Gazette of Feb. 21, 1757, describing night’s watch as a “Parcel of idle, drunken, vigilant Snorers, who never quelled any nocturnal Tumult in their lives; (Nor as we can learn, were ever the discoverers of a fire breaking out.) but would, perhaps, be as ready to join in a Burglary as any Thief in Christendom. A happy Set indeed, to defend the rich and populous City against the Terrors of the Night.”).
- 74. James F. Richardson, The New York Police: Colonial Times to 1901 24 (1970); Samuel Walker, Popular Justice: A History of American Criminal Justice 53 (2d ed. 1998).
- 75. Walker, Popular Justice, supra note 74, at 52; Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800–1880, at 121 (1989).
- 76. Steinberg, supra note 75, at 152.
- 77. Id. at 177.
- 78. See Barack Obama, President of the United States, Remarks at the 122nd Int’l Ass’n of Chiefs of Police Conference (Oct. 27, 2015) (“[T]he tensions in some communities, the feeling that law enforcement isn’t always applied fairly, those sentiments don’t just come out of nowhere. There is a long history here in this country.”); James B. Comey, Director, Federal Bureau of Investigation, Hard Truths: Law Enforcement and Race, Address at Georgetown University (Feb. 12, 2015), https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race (https://perma.cc/P8J4-YPGU/) (discussing the use of law enforcement to enforce a status quo against disfavored groups).
- 79. Samuel Walker, A Critical History of Police Reform 17–18 (1977).
- 80. David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1805–06 (2000) (describing slave patrols).
- 81. Clarence Lexow et al., Report of the Special Comm. Appointed to Investigate the Police Dep’t of the City of N.Y., S. Rep No. 118-65, at 18 (N.Y. 1895) [hereinafter Lexow Report]; David B. Wolcott & Tom Head, Crime and Punishment in America 125 (2010).
- 82. Lexow Report, supra note 81, at 47.
- 83. Id. at 33–34.
- 84. Steinberg, supra note 75.
- 85. August Vollmer & Albert Schneider, The School for Police as Planned at Berkeley, 7 J. Crim. L. & Criminology 877, 877 (1917), quoted in Walker, Critical History, supra note 79, at 71.
- 86. See Nat’l Comm’n on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 1–6 (1931) (noting the widespread use of brutal physical coercion known as the “third degree” by police in criminal investigations).
- 87. Id. at 87 (concluding, in 1931, that prosecutors knew that some police officers were “crooked”).
- 88. Samuel Walker, Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953–1969, 9 Just. Q. 47, 54 (1992) (“The Progressive Era paradigm of the justice system posited a series of semiautonomous agencies where officials administered the law in an impersonal, ‘ministerial’ fashion: that is, they did what the law required. Any exercise of discretion was an unwarranted and probably illegal departure from an official’s legal mandate.”).
- 89. Id. at 53–54 (noting the Progressive Era theory that the influence of politics on law enforcement was to blame and contemporaneous suggestions that professionalization would be its cure); Roscoe Pound, Part VIII: Criminal Justice and the American City, in Criminal Justice in Cleveland 578 (Roscoe Pound & Felix Frankfurter eds., 1922) (blaming politics as the source of corruption in law enforcement); Egon Bittner, Aspects of Police Work 362 (1990) (discussing desire to wrest control of the police from local political bosses); Herman Goldstein, Policing A Free Society 2 (1990) (noting that Progressive Era reformers August Vollmer, Bruce Smith, and O.W. Wilson were motivated in part by a desire to insulate the police from partisan politics).
- 90. Walker, Critical History, supra note 79, at 39 (describing some opposition to civil service reforms).
- 91. Bittner, supra note 89, at 5 (discussing the professionalization movement); Walker, Critical History, supra note 79, at 75 (noting that the professionalism movement failed to deliver a professional police force as understood in the sense of a learned profession, but rather added more bureaucracy).
- 92. Walker, Critical History supra note 79, at 157, 162–63, 169.
- 93. See Bittner, supra note 89, at 362 (noting desire to centralize control).
- 94. Id. at 6–7; Walker, Popular Justice, supra note 74, at 164–67.
- 95. Autonomy came to be understood as not only freedom from political intervention but also freedom from effective supervision and accountability. Bittner, supra note 89, at 8–9.
- 96. Walker, Origins, supra note 88, at 50.
- 97. Id. at 59.
- 98. Id. at 57.
- 99. Id.
- 100. Id.
- 101. Id. at 58.
- 102. Kenneth Culp Davis, Police Discretion 41 (1975) (Prof. Davis’s study was conducted in the 1960s).
- 103. Jerome H. Skolnick & James J. Fyfe, Above the Law: Police and the Excessive Use of Force 81 (1993).
- 104. President Johnson appointed the Kerner Committee after racial disorder in the summer of 1967. Report of the Nat’l Advisory Comm’n on Civil Disorders 1 (1968). In 1965, Johnson established his Crime Commission. See Nicholas deB. Katzenbach et al., The Challenge of Crime in a Free Society v (1967) [hereinafter Challenge of Crime].
- 105. Challenge of Crime, supra note 104, at 115.
- 106. Id. at 94–95 (“The other issue involves the basic police practice of stopping suspects, detaining them for brief questioning on the street and, for the policeman’s self-protection, ‘frisking’ them for weapons.”).
- 107. William H. Parker, The Police Challenge in Our Great Cities, 291 Annals Am. Acad. Pol. & Soc. Sci. 5, 5 (1954).
- 108. Challenge of Crime, supra note 104, at 115.
- 109. Id.
- 110. Id. at 100.
- 111. Id. at 99.
- 112. See Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L. Rev. 551, 573–78 (1997) (describing the development of community policing). The Crime Commission itself encouraged greater community engagement with the police. See Challenge of Crime, supra note 104, at 102 (outlining the role police officers should have in their communities).
- 113. Challenge of Crime, supra note 104, at 100–01.
- 114. Id. at 101.
- 115. See Lee P. Brown, Community Policing: A Practical Guide for Police Officials, Persp. Policing, Sept. 1989, at 5 (articulating best practices for community policing); Tom Kennedy, Houston Police Department 11 (2012); Todd S. Purdum, Dinkins Names Houston’s Chief to Be His Police Commissioner, N.Y. Times, Dec. 19, 1989, at B9 (noting Chief Brown was the first black police chief of Houston).
- 116. Brown, supra note 115, at 2 (describing the former policing techniques as “reactive”).
- 117. Id. at 5.
- 118. Id.
- 119. William Jefferson Clinton, President of the United States, 1994 State of the Union Address (Jan. 25, 1994), http://millercenter.org/president/clinton/speeches/speech-3437 (https://perma.cc/
- 120. About, U.S. Dep’t of Justice, Community Oriented Policing Services, http://www.cops.usdoj.gov/about (https://perma.cc/V8VX-DPYZ/) (last visited Jan. 11, 2015).
- 121. See David Thacher, Conflicting Values in Community Policing, 35 L. & Soc. Rev. 765, 787 (2001) (describing police athletic leagues as an aspect of community policing).
- 122. Challenge of Crime, supra note 104, at 117.
- 123. Herman Goldstein, Improving Policing: A Problem-Oriented Approach, 25 Crime & Delinq. 236, 243 (1979) (describing a systemic planning and analysis approach to specific problems).
- 124. Matthew Harwood, One Nation Under SWAT: How America’s Police Became an Occupying Force, Salon (Aug. 14, 2014, 9:28 AM), http://www.salon.com/2014/08/14/one_nation
_under_swat_how_americas_police_became_an_occupying_force_partner/ (https://perma.cc/E98X-YC7B/) (“Still, the most startling source of police militarization is the Department of Justice, the very agency officially dedicated to spreading the community policing model through its Community Oriented Policing Services office.”); see also Wesley G. Skogan, Why Reforms Fail, 18 Policing & Soc. 23 (2008) (discussing management intransigence, lack of public engagement or knowledge, resistance from unions and commanders, among other reasons, as causes of reform failure).
- 125. George L. Kelling & James Q. Wilson, Broken Windows, Atlantic, Mar. 1982, at 29–38.
- 126. Id.
- 127. Id.
- 128. See Broken Windows Policing, Ctr. for Evidence-Based Crime Policy, http://cebcp.org/evidence-based-policing/what-works-in-policing /research-evidence-review/broken-windows-policing/ (https://perma.cc/D879-XU6U/) (last visited Jan. 11, 2015) (discussing the evolution of problem-oriented policing into order maintenance and zero tolerance policing).
- 129. See Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social Experiment, 73 U. Chi. L. Rev. 271, 272 n.3, 286 (2006) (discussing Giuliani’s order maintenance policing policy in New York City).
- 130. Broken Windows Policing, supra note 128.
- 131. See Final Report, supra note 1, at 41, 58 (describing resentment of police in communities targeted by police for order maintenance); Harcourt & Ludwig, supra note 129, at 316 (“Our bottom line is that there appears to be no good evidence that broken windows policing reduces crime, nor evidence that changing the desired intermediate output of broken windows policing—disorder itself—is sufficient to affect changes in criminal behavior.”).
- 132. John Eligon & Mitch Smith, Emergency Declared in Ferguson After Shooting, N.Y. Times, Aug. 11, 2015, at A1.
- 133. See Barack Obama, President of the United States, Remarks to the Press on the Ferguson Grand Jury’s Decision (Nov. 24, 2014), https://www.whitehouse.gov/blog/2014/11/24/president-obama-delivers-statement-ferguson-grand-jurys-decision (https://perma.cc/2RCS-BW83/) (“[W]e need to recognize that the situation in Ferguson speaks to broader challenges that we still face as a nation. The fact is, in too many parts of this country, a deep distrust exists between law enforcement and communities of color.”); Deep National Mistrust of Police by Minorities Exposed in Ferguson, Missouri, CBSNews.com (Aug. 19, 2014, 2:49 PM), http://www.cbsnews.com/news/ferguson-missouri-highlights-deep-national-mistrust-of-police-by-minorities/ (https://perma.cc/L58U-NY5H/) (noting the long history of mistrust of police as borne out by polling and other evidence); Marisol Bello & Yamiche Alcindor, Police in Ferguson Ignite Debate About Military Tactics, USA Today (Aug. 19, 2014, 2:24 PM), http://www.usatoday.com/story/news/nation/2014/08/14/ferguson-militarized-police/14064675/ (https://perma.cc/SQG5-WYBW/).
- 134. Benjamin Mueller, At Rally, Calls for Action in Chokehold Case, N.Y. Times, Aug. 3, 2014, at A21.
- 135. Michael S. Schmidt & Matt Apuzzo, Officer Is Charged with Murder of a Black Man Shot in the Back, N.Y. Times, Apr. 8, 2015, at A1.
- 136. About the Black Lives Matter Network, Black Lives Matter, http://blacklivesmatter.com/about/ (https://perma.cc/RB5R-CNQK/); Who We Are, Million Hoodies, http://millionhoodies.net/who-we-are/ (https://perma.cc/M37Y-6P4K/).
- 137. Exec. Order No. 13684, 79 Fed. Reg. 76865 (Dec. 18, 2014).
- 138. Final Report, supra note 1, at 1.
- 139. Id.
- 140. Id. at 12.
- 141. See generally Skolnick & Fyfe, supra note 103, at 108–12 (describing the “code of silence” preventing officers from informing on one another’s misconduct); Gabriel J. Chin & Scott C. Wells, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 250 (1998) (elaborating on the police culture of silence regarding the misconduct of other officers).
- 142. See Clarence Page, Is the ‘Chicago Way’ a Kill-and-Cover-Up Culture?, Chi. Trib., Nov. 29, 2015, at 23 (describing suspected cover-up in the shooting of Laquan McDonald).
- 143. 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/).
- 144. See Obrycka v. City of Chicago, 913 F. Supp. 2d 598, 600 (N.D. Ill. 2012) (denying relief from a jury verdict finding Chicago liable for condoning a custom or practice violating the plaintiff ’s Fourteenth Amendment right to bodily integrity). An element of this claim included the possibility that the jury found a police code of silence existed. See Jury Instructions at 26, Obrycka v. City of Chicago, No. 07 C 2372, 2012 WL 11088535 (N.D. Ill. Nov. 7, 2012).
- 145. Chuck Goudie, Judge: Police ‘Code of Silence’ in Bar Beating, ABC7 Chi. (Feb. 23, 2012, 4:33 PM), http://abc7chicago.com/archive/8555746/ (https://perma.cc/MP96-YV77/). The judge denied a motion for summary judgment, partially on the basis that the plaintiff had presented sufficient evidence to present a genuine question of material fact as to the existence of a police code of silence. Obrycka v. City of Chic., No. 07-cv-2372, 2012 WL 601810, at *9 (N.D. Ill. Feb. 23, 2012).
- 146. See generally supra note 141.
- 147. Comm’n to Investigate Allegations of Police Corruption & The Anti-Corruption Procedures of The Police Dep’t, City of New York, Commission Report 36 (1994) [hereinafter Mollen Report] (“[T]he practice of police falsification . . . is so common . . . that it has spawned its own word: ‘testilying.’”); see also Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1041–48 (1996) (describing the prevalence and likely causes of police perjury).
- 148. Myron W. Orfield, Jr., The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1050 (1987) (“Sixteen of twenty-one responding officers (76 percent), moreover, agreed that the police do ‘shade the facts a little (or a lot) to establish probable cause when there may not have been probable cause in fact.’”).
- 149. Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 107 (1992).
- 150. Mollen Report, supra note 147, at 41.
- 151. Id. at 36.
- 152. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times (Dec. 16, 2005), http://www.nytimes.com/2005/12/16/politics/bush-lets-us-spy-on-callers-without-courts.html (153. Brian Fung, Darrell Issa: James Clapper Lied to Congress About NSA and Should Be Fired, Wash. Post (Jan. 27, 2014), https://www.washingtonpost.com/news/the-switch/wp/2014/01/27/darrell-issa-james-clapper-lied-to-congress-about-nsa-and-should-be-fired/ (https://perma.cc/K2Y7-4KUW/) (quoting Rep. Issa’s statement that “Director Clapper continues to hold his position despite lying to Congress under oath about the existence of bulk data collection programs in March 2013.”). Director Clapper’s statement is at Current and Projected National Security Threats to the United States Before the S. Comm. on Intelligence, 113th Cong. 66 (2013) (statement of James R, Clapper, Director of National Intelligence).
- 154. Final Report, supra note 1, at 21 (“Policies on use of force should also require agencies to collect, maintain, and report data to the Federal Government.”).
- 155. Christine Hauser, Judge Tells Police Dept. to Release Stop-and-Frisk Data, N.Y. Times, May 31, 2008, at B5.
- 156. ACLU, War Comes Home: The Excessive Militarization of American Policing 27–28 (2014), https://aclu.org/sites/default/files/field_document/jus14-warcomeshome-report- web-rel11.pdf (https://perma.cc/PN8M-4JQA].
- 157. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 903–04 (2014) (detailing problems the author encountered in gathering data on police settlements and indemnification policies. Professor Schwartz received responses from only forty-four of seventy jurisdictions queried, and only after years of pursuit).
- 158. Jeremy Waldron, Accountability: Fundamental to Democracy 27 (N.Y.U. Sch. of Law, Pub. Law Research Paper No. 14-13), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2410812 (159. Davis, supra note 102, at 71–72.
- 160. This argument is especially prevalent in the context of intelligence gathering. See, e.g., Emily Berman, Regulating Domestic Intelligence Collection, 71 Wash. & Lee L. Rev. 3, 29, 38 (2014). But it is also frequently made in the context of ordinary policing. See infra notes 162–164.
- 161. Tom Perkins, Ypsilanti Police Department Won’t Give City Council Requested Information on Policies, mLive (Sept. 14, 2015 3:31 PM), http://www.mlive.com/news/ann-arbor/index.ssf/2015/09/ypsilanti_police_refuses_to_tu.html (162. Maria Ponomarenko, Policy Secrecy in Ypsilanti, Policing Project NYU School of Law (Dec. 4, 2015), https://policingproject.org/dispatches/policy-secrecy-in-ypsilanti/ (https://perma.cc/4VMB-P6L4].
- 163. Id. (describing Ypsilanti Police’s refusal to provide policies on a range of issues on the justification that doing so would compromise the safety and effectiveness of their officers). However, many departments post extremely similar information publically on their websites, undermining Ypsilanti’s claims. See supra note 51.
- 164. See Lewis-Bey v. U.S. Dep’t of Justice, 595 F. Supp. 2d 120, 137–38 (D.D.C. 2009) (protecting details of electronic surveillance techniques, including “timing of their use, and the specific location where they were employed” (internal quotation marks omitted)); LaRouche v. U.S. Dep’t of Justice, No. 90-2753, slip op. at 21 (D.D.C. Nov. 17, 2000) (allowing department to withhold details regarding undercover investigative techniques); see also Friedman & Ponomarenko, supra note 46, at 1884–86 (further developing the distinction between secrecy of governing law and secrecy of operational details).
- 165. 18 U.S.C. § 2516 (defining categories of offenses for which wiretaps may be obtained).
- 166. See ACLU, War Comes Home, supra note 156, at 27, 42 (noting lack of transparency surrounding the use of SWAT teams, and recommending that departments operating SWAT teams adopt internal deployment policies and require written justifications for their use).
- 167. Aaron C. Davis, Police Raid Berwyn Heights Mayor’s Home, Kill His 2 Dogs, Wash. Post, July 31, 2008, at B1.
- 168. See Deposition of Edward Sagin at 63, 71, 81, 92, 117–18, Calvo v. Maryland, (Md. Cir. Ct. Dec. 15, 2010) (No. CAL09-18584) (noting that there were no procedures for dealing with the dogs on the Mayor’s property, and that there were no requirements for officers to carry nonlethal weapons). For an elaboration on the Mayor’s encounter with the SWAT team, see Barry Friedman, Unwarranted: Policing Without Permission (Farrar, Straus, and Giroux, forthcoming 2017).
- 169. See Friedersdorf, supra note 69 and accompanying text.
- 170. Martinez Interview, supra note 4.
- 171. Topic Interview, supra note 4.
- 172. See, e.g., Friedman & Ponomarenko, supra note 46, at 1854, 1886 (discussing the effect of disclosure of stop and frisk data on public support for the policy); Kenneth Lovett, NYC Elections 2013: Exit Polls Show Bill de Blasio Swept Virtually Every Demographic over Joe Lhota, N.Y. Daily News (Nov. 6, 2013, 1:46 AM), http://www.nydailynews.com/news/election/exit-polls-show-bill-de-blasio-swept-demographic-article-1.1507854 (noting support for stop and frisk reform was central to the election of New York City Mayor de Blasio).