Agencies and officers must respect and protect the constitutional rights of all members of the public, including people suspected of crimes.
Comment:
It is essential to democratic society that government officials respect and adhere to constitutional law. Doing so is necessary to ensure that individuals feel safe and secure from the state as well as from each other. It also is essential to promoting the legitimacy of the law and of the institutions designed to uphold it. Policing plays an especially important role in this regard: Common police practices can infringe on constitutional rights, and some core rights, such as the First Amendment right to assemble, cannot be easily vindicated unless the police work affirmatively to protect them.
Agencies should emphasize that state and federal constitutions are not an obstacle to effective policing, but rather are among the laws that officers are sworn to uphold and protect. In formulating agency rules, policies, and procedures, agencies should consider not only the letter of constitutional law as interpreted by the courts, but also the underlying constitutional norms of equality, non-arbitrariness, autonomy, privacy, security, bodily integrity, and free expression. Indeed, agencies should not wait for the courts to declare that a particular policy or practice is out of bounds. Instead, agencies affirmatively should consider whether new policing practices or technologies potentially run afoul of existing constitutional requirements or values.
Given the unique role that policing plays in protecting and facilitating First Amendment rights to speech, assembly, and petitioning the government for redress of grievances, agencies should take special care in developing policies and practices to guide officers in responding to protests and demonstrations, or interacting with individuals who seek to observe, record, or report on government conduct. Agency policies should make clear that the goal of the police is to facilitate peaceful protest and assembly, not simply to manage or control it when it occurs. Likewise, officers should be trained not to resist or interfere with being recorded, but rather to help individuals do so in a manner that does not unduly interfere with legitimate law-enforcement activity.
Reporters’ Notes
As a number of leading law-enforcement officials have recognized, protecting constitutional rights is not “an impediment to the public safety mission. [It] is the mission of police in a democracy.” Sue Rahr & Stephen K. Rice, From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals, New Perspectives in Policing Bulletin 2 (2015); see also Charles H. Ramsey, The Challenge of Policing in a Democratic Society: A Personal Journey Toward Understanding, New Perspectives in Policing Bulletin 12 (2014) (“As police weigh conflicting obligations, we need to remind ourselves constantly that our first priority is the protection of constitutional rights.”); Herman Goldstein, Policing a Free Society (1977) (noting that the purposes of policing are to promote individual rights and to safeguard the processes of democracy). For residents to feel secure in their persons and property they must have the assurance that their constitutional rights will be respected by the police.
The unfortunate reality, however, is that policing agencies too often have failed to fulfill this core obligation—or at best have grudgingly adhered to it. Over the years, dozens of policing agencies have been found to have engaged in a pattern or practice of unconstitutional misconduct. See, e.g., Dep’t of Just., Investigation of the Chicago Police Department (2017) (finding unconstitutional use of force among the Chicago Police Department); Dep’t of Just., Investigation of the Baltimore City Police Department (2016) (finding unconstitutional stops, searches, arrests, and use of force among the Baltimore Police Department); Dep’t of Just., Investigation of the Cleveland Division of Police (2014) (finding unconstitutional use of force among the Cleveland Division of Police). At times, agencies have treated constitutional rulings more like obstacles to work around rather than as guidance as to the appropriate boundaries of police conduct. See, e.g., Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010) (describing efforts to circumvent the U.S. Supreme Court’s ruling in Miranda v. Arizona, 384 U.S. 436 (1966)); United States v. Payner, 447 U.S. 727, 743 (1980) (Marshall, J., dissenting) (describing an IRS ploy to get around the Fourth Amendment’s prohibition on warrantless searches and seizures by taking advantage of the Court’s standing jurisprudence). Some have resisted changing their practices at all, requiring decades of follow-on litigation and investigation. See Handschu v. Police Dep’t of New York., 219 F. Supp. 3d 388 (S.D.N.Y. 2016) (describing claims that the New York Police Department repeatedly violated a 20-year settlement agreement when it deployed informants to investigate the city’s Muslim community without suspicion of unlawful activity); Dep’t of Just., Investigation of the Cleveland Division of Police 5 (2014) (finding a pattern of unconstitutional use of force despite a 2004 consent decree); Floyd v. City of New York, 959 F. Supp. 2d 540, 609-610 (S.D.N.Y. 2013) (finding a pattern of unconstitutional stops-and-frisks 10 years after a prior settlement agreement around stop-and-frisk practices).
In adopting new strategies or technologies, agencies routinely have failed to consider the potential constitutional objections to their use. See e.g., Elizabeth E. Joh, The Undue Influence of Surveillance Technology Companies on Policing, 92 N.Y.U. L. Rev. 101, 116-117 (2017) (noting that police agencies secretly used stingrays, which simulate cell-site towers, to obtain location information despite open questions about whether the warrantless use of stingrays violated the Fourth Amendment); Andrew G. Ferguson, Predictive Policing Technology, 94 Wash. U. L. Rev. 1109, 1113-1114, 1149 (2017) (observing “[l]aw enforcement’s embrace of predictive technology” despite some “profound questions about the nature of prediction,” including, for example, “whether this data-driven focus serves merely to enable, or justify, a high-tech version of racial profiling”); Leslie A. Gordon, Predictive Policing May Help Bag Burglars—But it May Also Be a Constitutional Problem, Am. Bar Ass’n J. (Sept. 1, 2013) (describing possible Fourth Amendment and Equal Protection Clause concerns with the growing use of predictive policing technology); COINTELPRO, FBI, vault.fbi.gov/cointel-pro (last accessed May 15, 2020) (describing a 1960s FBI counterintelligence program that targeted certain domestic groups, such as the Black Panther Party, and was “later rightfully criticized by Congress and the American people for abridging [F]irst [A]mendment rights”).
Policing agencies should take seriously their independent obligation to uphold constitutional law and promote constitutional rights—and should reinforce this principle through policy, training, and supervision. Agencies should make clear in their policies or values statements the importance of respecting the constitutional rights of all persons. See, e.g., Los Angeles Police Department, “Management Principles of the LAPD” (listing “reverence for the law” as the first principle and emphasizing that “[a] peace officer’s enforcement should not be done in grudging adherence to the legal rights of the accused.”), http://www.lapdonline.org/inside_the_lapd/content_basic_view/846. Agencies also should review existing policies and practices proactively to ensure not only that they follow the letter of the law, but also that they are consistent with the agency’s “broad constitutional goal of protecting everyone’s civil liberties and providing equal protection under the law.” Police Executives Research Forum, Constitutional Policing as a Cornerstone of Community Policing 3 (2015). Consistent with the principles in Chapter 13, agencies should ensure that there are adequate mechanisms in place both to identify unconstitutional misconduct and to ensure that officers have the training and support they need to perform their duties in a manner that respects and upholds constitutional rights.
Finally, agencies should provide officers with clear guidance and training on protecting and facilitating First Amendment activities. Agency policies should emphasize the central role that officers play in helping individuals to exercise their First Amendment rights to peacefully assemble and to observe, record, and report on government conduct. See, e.g., Cal. Comm’n on Peace Officer Standards and Training, POST Guidelines: Principles of Crowd Mgmt. 3 (2012), https://post.ca.gov/Portals/0/post_docs/publications/Crowd_Management.pdf (hereafter Cal POST Guidelines) (“A fundamental role of law enforcement is the protection of the rights all people have to peacefully assemble, demonstrate, protest, or rally.”); IACP Model Policy on Recording Police Activity (emphasizing that individuals have “an unambiguous First Amendment right to record officers in public places). In responding to protests or demonstrations, agencies should prioritize strategies and tactics designed to de-escalate conflict and minimize to the extent possible the need to take enforcement action or resort to force. See, e.g., Edward R. Maguire & Megan Oakley, Policing Protests—Lessons from the Occupy Movement, Ferguson & Beyond: A Guide for Police (2020), https://www.hfg.org/Policing%20Protests.pdf (“When police operate from the vantage point of how to facilitate peaceful protests rather than how to control or regulate them, they can . . . reduce the likelihood of conflict and violence.”); Police Exec. Research Forum, The Police Response to Mass Demonstrations: Promising Practices and Lessons Learned 4 (2018) (describing Boston’s “three tiered approach” which begins with “officers in regular uniforms, trying to engage and talk to people, mingling with the crowd”); Oakland Police Dep’t, Oakland Police Dep’t Crowd Control and Mgmt. Policy § V-H-3-b, at 17 (2013) (instructing commanders to consider “the likelihood that police action will improve the situation relative to taking no action,” and to weigh “the seriousness of the offense(s)” being committed against “the potential for [an] arrest to escalate violence.”). Similarly, agencies should train officers not to resist being recorded and help individuals who wish to record police activity to identify a vantage point from which they could do so without undue interference. See, e.g., Tucson Police Dep’t General Order 2200 at 9 (emphasizing that “a person’s expression of criticism of the police . . . does not amount to interference,” and that if an individual’s actions are in fact impeding an investigation, an officer “may direct the person to move to a position that will not interfere,” but “not order the person to stop photographing or recording.”)