Unwarranted, p.1
Unwarranted, page 1
Begin Reading
Table of Contents
A Note About the Author
Copyright Page
Thank you for buying this
Farrar, Straus and Giroux ebook.
To receive special offers, bonus content,
and info on new releases and other great reads,
sign up for our newsletters.
Or visit us online at
us.macmillan.com/newslettersignup
For email updates on the author, click here.
The author and publisher have provided this e-book to you for your personal use only. You may not make this e-book publicly available in any way. Copyright infringement is against the law. If you believe the copy of this e-book you are reading infringes on the author’s copyright, please notify the publisher at: us.macmillanusa.com/piracy.
To Simon and Samara
You must first enable the government to control the governed; and in the next place oblige it to control itself.
—James Madison, The Federalist No. 51
PREFACE
I resolved to write a book about policing after September 11, 2001. I live in lower Manhattan, not far from where the Twin Towers stood. I spent that day on the streets of New York, rushing to the hospital to give blood, only to learn none was needed; searching for my future father-in-law, who had been on business near the World Trade Center site, but fortunately made his way to his daughter’s place in Greenwich Village; and watching those awful and surreal events—as did so many—in a state of shock and dismay. On that day, and those that followed, I joined groups standing along the West Side Highway, choked up, offering whatever moral support we could to our early and continuing responders. They were (and remain) our heroes.
And yet, in the weeks after 9/11, something I was hearing troubled me no end. People would say we needed to relinquish our liberties in order to give the government more leeway to protect us. Even Supreme Court justices were saying it. On September 29, 2001, while the acrid and unforgettable smell of destruction still hung in the air around us, Justice Sandra Day O’Connor came to New York University School of Law, where I teach, for the groundbreaking of Furman Hall. “[W]e’re likely to experience more restriction on our personal freedom than has ever been the case in this country,” she warned the somber group gathered there. The events of September 11, she said, would “cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration and so on.”
I’ve taught Constitutional Law and Criminal Procedure for thirty years, so I’m no novice to the much-discussed tension between keeping society secure and safeguarding our liberties. But having studied the law governing policing for three decades, I wondered exactly what everyone was talking about. I’d ask people what it was that they felt the government should now be allowed to do. If they could come up with any example—often they could not—I’d point out, “But the police already are allowed to do that. The Supreme Court said so ages ago.” Then it was their turn to be surprised—most of them had no idea how permissive the courts were toward policing.
As a practical matter, much of policing in this country is governed today by the Supreme Court’s (and lower courts’) pronouncements about the Constitution. Of particular importance is the Fourth Amendment, which prohibits “unreasonable searches and seizures.” Whether it is the use of force by police on the streets, or surveillance of citizens from the air, police officials will tell you that the courts set the rules they must follow. I’d long believed the judiciary’s record on protecting our vital liberties was disappointing at best. I resolved to find a way to say so, to explain how important it was to get policing right.
But while I was searching for precisely what I wanted to say, I had a realization: Why don’t the most basic of rules that apply in the rest of government also govern the police? Why is policing treated so differently?
For the rest of government—which is to say, for environmental protection or workplace safety, or tax collection, or all the countless things that local, state, and federal governments do every day—democratic governance is paramount. Before government officials act, we require rules that are written down in advance, that are public so everyone can know what they are, and that are adopted after the public has had a chance to weigh in. That is what democracy requires.
But when it comes to policing, the ordinary rules of democratic governance seem to evaporate. Policing officials decide for themselves how to enforce the law. The rules governing policing often are not public. Even more rarely are they adopted with public input. Instead, with policing, we try to fix things after the fact, after they go wrong: with civilian review boards, inspectors general, and especially with review by the courts.
This is an enormous failure of democracy. And it’s also counterproductive. If our attention to policing is always after the fact, we’re always mopping up messes instead of figuring out how to prevent them in the first place.
At a deep level what this book is about is getting the people to take responsibility for how policing occurs in this country. By developing rules and policies that are in place before police act. And by encouraging us all to think about what the Constitution’s provisions that cover policing should mean. Because it is not and cannot be the job of the courts and the police alone to decide how we are policed as a society—it is the responsibility of all of us.
Recent events have made clear that getting policing right is one of the most pressing challenges we face as a society. Whether it is omnipresent surveillance, or the use of force on the streets, or concerns about fairness and discrimination and race, it is now apparent to many people that change is needed. The question is how we get there.
Given the nature of this book—and the unfortunate reality of twenty-first-century America—you are about to read one story after another about some way in which policing went off the rails. These stories implicate everyone from cops on the beat to the head of the National Security Agency. And you will meet many perfectly innocent people who did not deserve what happened to them. (You’ll meet plenty of guilty people, too, though we still should ask questions about the methods used to apprehend them.)
Even so, this is not a book about the failures of the police. I want to make that clear at the outset. I am going to call out two responsible parties repeatedly throughout this book, and neither are the police themselves.
The first actors responsible for the woes of policing today are the courts, which have done a perfectly appalling job of one of the chief tasks we have given them: protecting our basic liberties. I spend my life around judges, many of whom are good friends. Even so, I think the judiciary should be ashamed. Confronted with situations in which the police have done the most inappropriate and untoward things, too many judges simply cannot bring themselves to cry foul. To be fair, judging the police is tough. I’ll explain why that is, and why it is wrong to expect judges to do the job alone. One of the chief lessons here is that they should not have to. But still.
The second party is the rest of us. We have abdicated our most fundamental responsibility as citizens in a democracy: to be in charge of those who act in our name. The authority to use force on citizens and to conduct surveillance of them—the powers that define policing and set it apart—may be necessary to maintain order, but those are the most awesome powers we grant any public servants. If we should be superintending anything in our society, that is it. Instead, we’ve dropped the ball.
The real problem with policing is not the police; it is us. We need to take responsibility for what is done in our names. We need to make decisions and give guidance, even if it is—as it surely is—a difficult thing to do. We need to take an active role in governing policing.
I’ve put my time and energy (and money) where my mouth is. Besides writing this book, with the help of many individuals and groups I’ve begun the Policing Project at New York University School of Law, to try to put some of the lessons here into action. Working with the Policing Project has been one of the most personally rewarding things I’ve done.
And here’s the thing: Our constant partners in the Policing Project are law enforcement personnel. I’ve been privileged over the last couple years to meet and work with some of the most inspiring, dedicated, open-minded, innovative, committed people I’ve ever met. Some things are off the rails in law enforcement land. But they know it. They are working hard to put it right. It’s just that they can’t do it without the rest of us. Nor should they have to. They deserve—and require—our support.
That’s why I’ve written this book.
Barry Friedman
June 2016
INTRODUCTION: THE PROBLEMS OF POLICING
AN ANNIVERSARY TO REMEMBER
Charles and Etta Carter celebrated their fortieth wedding anniversary with the Maryland State Patrol.
Charles, sixty-five years old, worked for twenty-nine years at the same retail store. Etta, sixty-four, spent more than twenty-three years as a kindergarten assistant, helping kids with their “reading, writing, and math.” Their pride in their only child—who earned her PhD in developmental psychology—was abundant. So when their daughter married, moved into a new house, and started working long hours as a school psychologist, the Carters, ever the loving parents, loaded up a rental van with furniture and drove to Florida to help set up her new home. When they finished the job, they loaded up another rental van full of belongings they would store for the newlyweds, and headed back to their own home, in Philadelphia.1
It was just before noon on a hot July
But that was not the half of it. As the drug dog, Spider, raced about, he relieved himself around the Carters’ luggage. The police tossed their daughter’s wedding dress on the ground. Had Etta not packed it so well, “it would have been ruined.” Etta required frequent bathroom stops, so the Carters carried a portable toilet in the van. After a while, Etta rose to ask permission to relieve herself. She was told that if she stood up again they would both be handcuffed. Forced to wait (unlike Spider), Etta urinated in her clothes and had to sit in them until the ordeal ended. Only her loose blouse spared her further embarrassment when they finally were released and could pull into a rest stop to collect themselves.3
In retrospect, no Maryland official could identify any problem with what the police officers had done. The Superintendent of the State Police testified he was not aware of any action the troopers had taken that was inappropriate, or inconsistent with state policy. An Internal Affairs investigation found no wrongdoing. Lieutenant Colonel Ernest Leatherbury, the head of the state patrol’s uniformed cops, likewise believed everything that happened was entirely justified.4
The lawyer for the State Police, fighting hard for her client when the Carters finally sought redress, was fixated on whether any damage had been done to the Carters’ property. But it was not property that got destroyed that July day—it was the Carters’ sense of security, faith in the integrity of the law, and confidence in law enforcement. In many sleepless nights and anxious moments afterward, turning the events of that day over and over in their heads, the word the Carters kept coming back to was “humiliated.”5
THE TIP OF THE POLICING ICEBERG
In his sworn affidavit, Charles Carter said, “It is inconceivable to us that, as American citizens of the late twentieth century, we would be treated in this manner by officers of the law on the day of our fortieth wedding anniversary.” But for anyone who has lived through the last few years, it is—unfortunately—not so hard to imagine. To the contrary, it is difficult to miss the fact that something is seriously amiss with policing in the United States.6
Policing is just one function of government, and yet it is special. Policing officials are granted remarkable powers. They are allowed to use force on us. And to conduct surveillance of us. This is true not just of the police, the folks you see in uniform on patrol, but of all those who work hard every day to keep us safe, from the FBI to the analysts at the NSA.
Possession of these powers—of force and surveillance—is what defines policing, what sets it apart. Officials are granted these powers because policing is vital: Society cannot function in the absence of basic order. But the constant risk we face is that power of this awesome nature will be misused. As it has been.
In June 2013 the nation learned, courtesy of Edward Snowden, that for many years the federal government had surreptitiously gathered up the phone, email, and Internet transaction records of as many Americans as it could. Just two months later, a federal judge found that the NYPD had violated the rights of potentially hundreds of thousands of New Yorkers with its aggressive “stop, question, and frisk” policy. Some eight months later, in April 2014, the Los Angeles County Sheriff’s Department made headlines by deciding, without telling anyone until they got caught, to conduct aerial surveillance of an entire city, Compton, California.7
Then, in the summer of 2014, the issue of policing exploded in the national consciousness, etched there by the video of one African American after another—often unarmed—dying at the hands of the police. From street protests over the shooting of Michael Brown in Ferguson, Missouri—where the nation also witnessed a highly militarized police force training weapons on the civilian population—to Eric Garner being choked to death by a police officer on a Staten Island street while gasping, “I can’t breathe,” to a North Charleston officer slaying a fleeing Walter Scott by shooting him in the back repeatedly, to a police officer in Chicago firing at Laquan McDonald sixteen times in fewer seconds, even after he was down, and then officials hiding the truth about it for over a year, it’s fair to say the bloom had come off the rose. Scarcely a week would pass without some new revelation of policing gone awry. In a particularly horrific week in July 2016, the nation watched a live stream on Facebook of the aftermath of police shooting an African American man in Minnesota, a cell phone video of another such shooting in Baton Rouge—and then, shocking footage out of Dallas, where a lunatic (claiming retaliation) gunned down five police officers who were guarding a peaceful protest. What for so many years managed to escape unnoticed has now fully captured the country’s consciousness. It has spawned popular movements such as Black Lives Matter and Million Hoodies for Justice, congressional hearings, special investigations, town halls all over the country, and a presidential Task Force on 21st Century Policing.8
The fact that the misuse of policing power—from the beat cop to the NSA—has been in the news almost nonstop for the last three years suggests something must be done. What may be more difficult to grasp is that all of this is still but the tip of a very large iceberg.
LOOKING BELOW THE SURFACE
Physics tells us that 90 percent of an iceberg is below the water’s surface. It’s a lot harder to say how much of what goes on with policing is obscured from view. It is difficult to get firm data—or often any data at all. After the shooting in Ferguson, FBI Director James Comey asked his staff a seemingly simple question: “How many people shot by police were African-American?” They could not answer. Despite the country’s vast administrative machinery, you can’t learn how often police discharge their weapons or how frequently, where, and against whom force is used. Part of the difficulty, to be sure, is antiquated recordkeeping and the sheer volume of the task.9
But let’s face it: A good deal of the problem is that many officials prefer that policing occur outside the public eye. At every level of government, they have made a fetish of secrecy. When the government gets a court order for cell site records from a telecom company, it usually insists the order be kept secret. The disciplinary records of police officers are often protected from disclosure by special state laws, even though police early intervention systems rely on records of prior instances of abuse to predict future problems. The FBI and police forces nationwide have engaged in a massive conspiracy to cover up the use of Stingray cell phone tracking technology, which scoops up data on countless Americans with no cause. The problem goes all the way to the top. President George W. Bush—discussing national security surveillance—assured the country that “any time you hear the United States Government talking about wiretap, it … requires a court order. Nothing has changed … constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.” That was in 2004. In 2005 the nation learned of the National Security Agency’s secret wiretapping program doing just what the president said it was not.10
Eight Million Searches a Year … and More
Despite the veil of secrecy, state legislation and court decrees have forced police to reveal some small bit of information about what they do, why they do it, and how successful they are. The picture that emerges is not pretty.
