(a) These Principles are intended to guide the conduct of all government entities whenever they search or seize persons or property, use or threaten to use force, conduct surveillance, gather and analyze evidence, or question potential witnesses or suspects. Entities that perform these functions are referred to as “agencies” throughout these Principles.
(b) A subset of these Principles is intended primarily to guide the conduct of traditional law-enforcement agencies, such as police departments, sheriffs’ offices, and federal and state investigative agencies. Entities that perform these functions are referred to as “law-enforcement agencies” throughout these Principles.
(c) These Principles are intended for consideration by an informed citizenry, and adoption as deemed appropriate by legislative bodies, courts, and agencies. They are not intended to create or impose any legal obligations absent such formal adoption, and they are not intended to be a restatement of governing law, including state or federal constitutional law.
Comment:
a. Functional definition of “agencies.” These Principles are intended to apply to the exercise of particular state functions, no matter which agency performs them. For this reason, subsection (a) adopts a functional approach. It makes clear that the Principles apply to all agencies—at the federal, state, regional, and local levels—if and when they exercise state power to engage in the various practices addressed herein. This includes government agencies not traditionally understood as law-enforcement agencies, such as welfare agencies authorized to conduct home inspections, as well as national security agencies to the extent that they engage in domestic policing or surveillance activities. (We quite obviously exclude the military in operations abroad, so long as they are not directed at U.S. persons.) Any time agencies search or seize persons or property, use or threaten to use force, investigate criminal activity, conduct surveillance, gather evidence, or question potential witnesses or suspects, they should do so in accordance with these Principles.
The emphasis in subsection (a) on these specific practices is not meant to downplay the many other important functions that law-enforcement officers perform—from acting as first responders to working collaboratively with community members on areas of concern. These tasks are essential—and often are more effective at promoting the goals of policing, see § 1.02, than are more coercive methods. But the functions enumerated here—and which are the focus of many of these Principles—are ones that, if not regulated carefully, risk undermining the very goals and values that policing agencies are sworn to uphold.
Finally, although these Principles are directed at government agencies, many of these same Principles ought to apply with equal force to private entities—such as private-university police departments or private security agencies—whose agents are authorized by law to perform the functions enumerated in this Section. And of course to the extent that government agencies direct private entities to act on their behalf, they should ensure that whatever actions they take are consistent with these Principles as well.
b. Limitations on applicability. Although these Principles generally adopt a functional approach, there nevertheless are important differences between traditional law-enforcement agencies—such as police departments and sheriffs’ offices—and other entities that may from time to time exercise some of the functions enumerated in subsection (a). Traditional law-enforcement agencies often are the primary agencies of government to which community members look to promote public safety, maintain order, and address other issues of community concern. These differences require additional guidance beyond the general principles applicable to all agencies. For this reason, a subset of these Principles—such as the Principle on community policing, see § 1.08—addresses approaches and practices that are of particular importance to traditional law-enforcement agencies, and may not apply to other agencies—such as welfare agencies or health-inspection agencies—that also are authorized to conduct searches or seizures.
c. Nature of Principles and attendant liability of covered agencies and actors. Three things follow from the fact that these are “Principles.” First, they are stated at a high level of generality, and may need to be made more specific through legislation or agency policy. Second, standing alone they are not intended to create liability in agencies or their employees. They contain none of the appropriate limits on liability, such as fault or causation standards. Rather, they are intended to inform the principled development of policies and rules by governmental actors, including legislative bodies, administrative bodies (including public-safety agencies themselves), and courts. Adoption of such rules, including liability rules, is a necessary predicate to imposing liability. Chapters 13 and 14 advance Principles for compliance, auditing, accountability, and liability, as well as the respective roles that various government actors can play in ensuring that policing occurs in accordance with the Principles set out throughout this volume. Third, although at present much of the law governing policing is constitutional law, these Principles are not intended merely to replicate those constitutional rules. Constitutional law is a necessary floor that governs policing in certain areas, but many if not most policing leaders believe they can and ought to do better. These Principles at times either go beyond constitutional requirements, or—more commonly—apply in situations in which constitutional limitations have not been developed, and may not in fact be appropriate.
Reporters’ Notes
These Principles adopt a functional definition of “policing” that includes all of the practices enumerated in this Section and discussed throughout these Chapters. Whenever any agency or official engages in one of these practices, the Principles apply.
In particular, the applicability of these Principles typically does not hinge on whether government agents possess the power of arrest—which is what has traditionally distinguished peace officers, “sworn” officers, or “law enforcement” officers from other executive agents. See, e.g., Ala. Code § 36-21-60 (defining a “peace officer” as a person “possessing the powers of arrest . . . who is required by the terms of employment . . . to give full time to the preservation of public order and the protection of life or property or the detection of crime in the state”); 720 Ill. Comp. Stat. 5/2-13 (“Peace officer means . . . any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses.”).
The power to effect an arrest—and to use force if necessary in doing so—certainly raises a number of concerns that are unique to traditional law-enforcement agencies, and these concerns are addressed in various places throughout these Principles. But the scope of these Principles is broader, and includes, inter alia, guidance on the use and maintenance of government databases for law-enforcement purposes, programmatic searches and seizures, the use of various surveillance technologies, and evidence gathering. Traditional law-enforcement agencies perform all of these functions—but some also are performed by other agencies, including labor departments, housing bureaus, national-security agencies, and the like. Some state agencies employ sworn officers to perform some or all of these regulatory functions, e.g., Cal. Penal Code § 830.3 (2014) (including among its definition of a “peace officer”: “[i]nspectors of the food and drug section,” “investigators within the Division of Labor Standards Enforcement,” and select “[e]mployees of the Department of Housing and Community Development”); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602 (1989) (rules requiring suspicionless drug testing adopted by Federal Railway Administration); Lebron v. Florida Dept. of Children & Families, 772 F.3d 1352 (11th Cir. 2014) (drug-testing scheme carried out by state social-services agency). In other agencies, however, these functions are performed by civilian employees. The goal in adopting a functional definition of “policing” is to underscore that whenever agencies engage in the various practices enumerated in subsection (a), these Principles apply.
On the other hand, policing agencies—typically traditional law-enforcement agencies—do play a unique role. They engage in functions no other agency performs, such as community policing or the use of deadly force. Some of the Principles here are therefore applicable primarily to them.
It is important to emphasize that these are principles, and are not intended as a restatement of governing law. They would need to be adopted by either legislatures or policing agencies themselves to make them binding. And they are at times stated more broadly than may be appropriate as a liability rule. Subsection (c) makes clear that before liability can attach, a recognized lawmaking body needs to formally adopt a liability rule, as well as an underlying conduct rule.
Finally, it is important to bear in mind that these Principles are not intended to mirror constitutional law, though constitutional law of course governs when it applies. At times, these Principles exceed the requirements of constitutional law, and make clear when that is the case. More frequently, these Principles apply in instances in which there simply is not constitutional law at all. Sometimes that may reflect a failure of constitutional law itself, but far more commonly it reflects the fact that it simply is not the role of constitutional law to regulate all of what policing agencies do. It is, however, the role of law to regulate the conduct of all agencies, policing or otherwise. These Principles provide guidance on what the content of that regulation ought to be.