Seton Hall Constitutional L.J. 2001, 685
ARE COPS CONSTITUTIONAL?
Police work is often lionized by jurists and scholars who claim to
employ "textualist" and "originalist" methods of constitutional interpretation.
Yet professional police were unknown to the United States in 1789, and first
appeared in America almost a half-century after the Constitution's
ratification. The Framers contemplated law enforcement as the duty of mostly
private citizens, along with a few constables and sheriffs who could be called
upon when necessary. This article marshals extensive historical and legal
evidence to show that modern policing is in many ways inconsistent with the
original intent of America's founding documents. The author argues that the
growth of modern policing has substantially empowered the state in a way the
Framers would regard as abhorrent to their foremost principles.
LAW ENFORCEMENT AS A UNIVERSAL................................692
POLICE AS SOCIAL
THE WAR ON
THE DEVELOPMENT OF DISTINCTIONS................................698
THE SAFETY OF THE POLICE PROFESSION............................711
DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE........716
COPS NOT COST-EFFECTIVE DETERRENT.............................721
POLICE AS A STANDING ARMY...........................................722
THE SECOND AMENDMENT........725
THE RIGHT TO BE LEFT
THE FOURTH AMENDMENT................................................729
WARRANTS A FLOOR, NOT A CEILING.................................733
PRIVATE PERSONS AND THE FOURTH AMENDMENT..............734
ORIGINALISTS CALL FOR CIVIL DAMAGES...........................739
DEVELOPMENT OF IMMUNITIES..........................................743
THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE
POLICE AND THE "AUTOMOBILE EXCEPTION"......................745
ONE EXCEPTION: THE EXCLUSIONARY RULE?......................747
Uniformed police officers are the most visible element of America's
criminal justice system. Their numbers have grown exponentially over the past
century and now stand at hundreds of thousands nationwide.1 Police
expenses account for the largest segment of most municipal budgets and
generally dwarf expenses for fire, trash, and sewer services.2
Neither casual observers nor learned authorities regard the sight of hundreds
of armed, uniformed state agents on America's roads and street corners as
anything peculiar — let alone invalid or unconstitutional.
Yet the dissident English colonists who framed the United States
Constitution would have seen this modern 'police state' as alien to their
foremost principles. Under the criminal justice model known to the Framers,
professional police officers were unknown.3 The general public had
broad law enforcement powers and only the executive functions of the law (e.g.,
the execution of writs, warrants and orders) were performed by constables or
sheriffs (who might call upon members of the community for
assistance).4 Initiation and investigation of criminal cases was the
nearly exclusive province of private persons.
At the time of the Constitution's ratification, the office of sheriff
was an appointed position, and constables were either elected or drafted from
the community to serve without pay.5 Most of their duties involved
civil executions rather than criminal law enforcement. The courts of that
period were venues for private litigation — whether civil or criminal
— and the state was rarely a party. Professional police as we know them
today originated in American cities during the second quarter of the nineteenth
century, when municipal governments drafted citizens to maintain
order.6 The role of these "nightly watch" officers gradually grew to
encompass the catching of criminals, which had formerly been the responsibility
of individual citizens.7
While this historical disconnect is widely known by criminal justice
historians, rarely has it been juxtaposed against the Constitution and the
Constitution's imposed scheme of criminal justice.8 "Originalist"
scholars of the Constitution have tended to be supportive, rather than critical
of modern policing.9 This article will show, however, that modern
policing violates the Framers' most firmly held conceptions of criminal
The modern police-driven model of law enforcement helps sustain a
playing field that is fundamentally uneven for different players upon it.
Modern police act as an army of assistants for state prosecutors and gather
evidence solely with an eye toward the state's interests. Police seal off crime
scenes from the purview of defense investigators, act as witnesses of
convenience for the state in courts of law, and instigate a substantial amount
of criminal activity under the guise of crime fighting. Additionally, police
enforce social class norms and act as tools of empowerment for favored interest
groups to the disadvantage of others.10 Police are also a political
force that constantly lobbies for increased state power and decreased
constitutional liberty for American citizens.
THE CONSTITUTIONAL TEXT
The Constitution contains no explicit provisions for criminal law
enforcement.11 Nor did the constitutions of any of the several
states contain such provisions at the time of the Founding.12 Early
constitutions enunciated the intention that law enforcement was a universal
duty that each person owed to the community, rather than a power of the
government.13 Founding-era constitutions addressed law enforcement
from the standpoint of individual liberties and placed explicit barriers upon
For decades before and after the Revolution, the adjudication of
criminals in America was governed primarily by the rule of private prosecution:
(1) victims of serious crimes approached a community grand jury, (2) the grand
jury investigated the matter and issued an indictment only if it concluded that
a crime should be charged, and (3) the victim himself or his representative
(generally an attorney but sometimes a state attorney general) prosecuted the
defendant before a petit jury of twelve men.15 Criminal actions were
only a step away from civil actions — the only material difference being
that criminal claims ostensibly involved an interest of the public at large as
well as the victim.16 Private prosecutors acted under authority of
the people and in the name of the state — but for their own
vindication.17 The very term "prosecutor" meant criminal plaintiff
and implied a private person.18 A government prosecutor was
referred to as an attorney general and was a rare phenomenon in criminal cases
at the time of the nation's founding.19 When a private individual
prosecuted an action in the name of the state, the attorney general was
required to allow the prosecutor to use his name — even if the attorney
general himself did not approve of the action.20
Private prosecution meant that criminal cases were for the most part
limited by the need of crime victims for vindication.21 Crime
victims held the keys to a potential defendant's fate and often negotiated the
settlement of criminal cases.22 After a case was initiated in the
name of the people, however, private prosecutors were prohibited from
withdrawing the action pursuant to private agreement with the
defendant.23 Court intervention was occasionally required to compel
injured crime victims to appear against offenders in court and "not to make
bargains to allow [defendants] to escape conviction, if they ... repair the
Grand jurors often acted as the detectives of the period. They conducted
their investigations in the manner of neighborhood sleuths, dispersing
throughout the community to question people about their knowledge of
crimes.25 They could act on the testimony of one of their own
members, or even on information known to grand jurors before the grand jury
convened.26 They might never have contact with a government
prosecutor or any other officer of the executive branch.27
Colonial grand juries also occasionally served an important law
enforcement need by account of their sheer numbers. In the early 1700s, grand
jurors were sometimes called upon to make arrests in cases where suspects were
armed and in large numbers.28 A lone sheriff or deputy had reason to
fear even approaching a large group "without danger of his life or having his
bones broken."29 When a sheriff was unable to execute a warrant or
perform an execution, he could call upon a posse of citizens to assist
him.30 The availability of the posse comitatus meant that a
sheriffs resources were essentially unlimited.31
LAW ENFORCEMENT AS A UNIVERSAL DUTY
Law enforcement in the Founders' time was a duty of every
citizen.32 Citizens were expected to be armed and equipped to chase
suspects on foot, on horse, or with wagon whenever summoned. And when called
upon to enforce the laws of the state, citizens were to respond "not faintly
and with lagging steps, but honestly and bravely and with whatever implements
and facilities [were] convenient and at hand."33 Any person could
act in the capacity of a constable without being one,34 and when
summoned by a law enforcement officer, a private person became a temporary
member of the police department.35 The law also presumed that any
person acting in his public capacity as an officer was rightfully
Laws in virtually every state still require citizens to aid in capturing
escaped prisoners, arresting criminal suspects, and executing legal process.
The duty of citizens to enforce the law was and is a constitutional one. Many
early state constitutions purported to bind citizens into a universal
obligation to perform law enforcement functions, yet evinced no mention of any
state power to carry out those same functions.37 But the law
enforcement duties of the citizenry are now a long-forgotten remnant of the
Framers' era. By the 1960s, only twelve percent of the public claimed to have
ever personally acted to combat crime.38
The Founders could not have envisioned 'police' officers as we know them
today. The term "police" had a slightly different meaning at the time of the
Founding.39 It was generally used as a verb and meant to watch over
or monitor the public health and safety.40 In Louisiana, "police
juries" were local governing bodies similar to county boards in other
states.41 Only in the mid-nineteenth century did the term 'police'
begin to take on the persona of a uniformed state law enforcer.42
The term first crept into Supreme Court jurisprudence even
Prior to the 1850s, rugged individualism and self-reliance were the
touchstones of American law, culture, and industry. Although a puritan cultural
and legal ethic pervaded their society, Americans had great toleration for
victimless misconduct.44 Traffic disputes were resolved through
personal negotiation and common law tort principles, rather than driver
licenses and armed police patrol.45 Agents of the state did not
exist for the protection of the individual citizen. The night watch of early
American cities concerned itself primarily with the danger of fire, and
watchmen were often afraid to enter some of the most notorious neighborhoods of
cities like Boston.46
At the time of Tocqueville's observations (in the 1830s), "the means
available to the authorities for the discovery of crimes and arrest of
criminals [were] few,"47 yet Tocqueville doubted "whether in any
other country crime so seldom escapes punishment."48 Citizens
handled most crimes informally, forming committees to catch criminals and hand
them over to the courts.49 Private mobs in early America dealt with
larger threats to public safety and welfare, such as houses of ill
fame.50 Nothing struck a European traveler in America, wrote
Tocqueville, more than the absence of government in the
Formal criminal justice institutions dealt only with the most
severe crimes. Misdemeanor offenses had to be dealt with by the private citizen
on the private citizen's own terms. "The farther back the [crime rate] figures
go," according to historian Roger Lane, "the higher is the relative proportion
of serious crimes."52 In other words, before the advent of
professional policing, fewer crimes — and only the most serious crimes
— were brought to the attention of the courts.
After the 1850s, cities in the northeastern United States gradually
acquired more uniformed patrol officers. The criminal justice model of the
Framers' era grew less recognizable. The growth of police units reflected a
"change in attitude" more than worsening crime rates.53 Americans
became less tolerant of violence in their streets and demanded higher standards
of conduct.54 Offenses which had formerly earned two-year sentences
were now punished by three to four years or more in a state
POLICE AS SOCIAL WORKERS
Few of the duties of Founding-era sheriffs involved criminal law
enforcement. Instead, civil executions, attachments and confinements
dominated their work.56 When professional police units first arrived
on the American scene, they functioned primarily as protectors of public
safety, health and welfare. This role followed the "bobbie" model developed in
England in the 1830s by the father of professional policing, Sir Robert
Early police agencies provided a vast array of municipal services,
including keeping traffic thoroughfares clear. Boston police made 30,681
arrests during one fiscal year in the 1880s, but in the same year reported
1,472 accidents, secured 2,461 buildings found open, reported thousands of
dangerous and defective streets, sidewalks, chimneys, drains, sewers and
hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located
1,572 lost children, reported 228 missing (but only 151 found) persons, rescued
seven persons from drowning, assisted nearly 2,000 sick, injured, and insane
persons, found 311 stray horse teams, and removed more than fifty
thousand street obstructions.58
Police were a "kind of catchall or residual welfare
agency,"59 a lawful extension of actual state 'police
powers.'60 In the Old West, police were a sanitation and repair
workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp
of OK Corral fame, for example, repaired boardwalks as part of his
THE WAR ON CRIME
Toward the end of the nineteenth century, police forces took on a brave
new role: crime-fighting. The goal of maintaining public order became secondary
to chasing lawbreakers. The police cultivated a perception that they were
public heroes who "fought crime" in the general, rather than individual sense.
The 1920s saw the rise of the profession's second father — or
perhaps its wicked stepfather — J. Edgar Hoover.62 Hoover's
Federal Bureau of Investigation (FBI) came to epitomize the police profession
in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster
organizations, intercepted communications between suspected criminals, and
gathered intelligence for both law enforcement and political purposes.
This new view of police as soldiers locked in combat against crime
caught on quickly.63 The FBI led local police to develop integrated
repositories of fingerprint, criminal, and fraudulent check records. The FBI
also took over the gathering of crime statistics (theretofore gathered by a
private association),64 and went to war against "Public Enemy Number
One" and others on their "Ten Most Wanted" list.65 Popular culture
began to see police as a "thin blue line," that "serves and protects" civilized
society from chaos and lawlessness.66
THE ABSENCE OF CONSTITUTIONAL CRIME-FIGHTING POWER
But the constitutions of the Founding Era gave no hint of any thin blue
line. Nothing in their texts enunciated any governmental power to "fight crime"
at all. "Crime-fighting" was intended as the domain of individuals touched by
crime. The original design under the American legal order was to restore a
semblance of private justice. The courts were a mere forum, or avenue,
for private persons to attain justice from a malfeasor.67 The slow
alteration of the criminal courts into a venue only for the government's
claims against private persons turned the very spirit of the Founders' model on
To suggest that modern policing is extraconstitutional is not to imply
that every aspect of police work is constitutionally improper.68
Rather, it is to say that the totality and effect of modern policing negates
the meaning and purpose of certain constitutional protections the Framers
intended to protect and carry forward to future generations. Modern-style
policing leaves many fundamental constitutional interests utterly
Americans today, for example, are far more vulnerable to invasive
searches and seizures by the state than were the Americans of
1791.69 The Framers lived in an era in which much less of the world
was in "plain view" of the government and a "stop and frisk" would have been
rare indeed.70 The totality of modern policing also places
pedestrian and vehicle travel at the mercy of the state, a development the
Framers would have almost certainly never sanctioned. These infringements
result not from a single aspect of modern policing, but from the whole of
modern policing's control over large domains of private life that were once
"policed" by private citizens.
THE DEVELOPMENT OF DISTINCTIONS
The treatment of law enforcement in the courts shows that the law of
crime control has changed monumentally over the past two centuries. Under the
common law, there was no difference whatsoever between the privileges,
immunities, and powers of constables and those of private citizens. Constables
were literally and figuratively clothed in the same garments as everyone else
and faced the same liabilities — civil and criminal — as everyone
else under identical circumstances. Two centuries of jurisprudence, however,
have recast the power relationships of these two roles dramatically.
Perhaps the first distinction between the rights of citizen and
constabulary came in the form of increased power to arrest. Early in the
history of policing, courts held that an officer could arrest if he had
"reasonable belief both in the commission of a felony and in the guilt of the
arrestee.71 This represented a marginal yet important distinction
from the rights of a "private person," who could arrest only if a felony had
actually been committed.72 It remains somewhat of a mystery,
however, where this distinction was first drawn.73 Scrutiny of the
distinction suggests it arose in England in 1827 — more than a generation
after ratification of the Bill of Rights in the United States.74
Moreover, the distinction was illegitimate from its birth, being a
bastardization of an earlier rule allowing constables to arrest upon
transmission of reasonably reliable information from a third
person.75 The earlier rule made perfect sense when many arrests were
executed by private persons. "Authority" was a narrow defense available only to
those who met the highest standard of accuracy.76 But when Americans
began to delegate their law enforcement duties to professionals, the law
relaxed to allow police to execute warrantless felony arrests upon information
received from third parties. For obvious reasons, constables could not be
required to be "right" all of the time, so the rule of strict liability for
false arrest was lost.77
The tradeoff has had the effect of depriving Americans of certainty in
the executions of warrantless arrests. Judges now consider only the question of
whether there was reasonable ground to suspect an arrestee, rather than whether
the arrestee was guilty of any crime. This loss of certainty, when combined
with greater deference to the state in most law enforcement matters, has
essentially reversed the original intent and purpose of American law
enforcement that the state act against stern limitations and at its own peril.
Because arrest has become the near exclusive province of professional police,
Americans have fewer assurances that they are free from unreasonable
Distinctions between the privileges of citizens and police officers grew
more rapidly in the twentieth century. State and federal lawmakers enshrined
police officers with expansive immunities from firearm laws78 and
from laws regulating the use of equipment such as radio scanners, body armor,
and infrared scopes.79 Legislatures also exempted police from toll
road charges,80 granted police confidential telephone numbers and
auto registration,81 and even exempted police from fireworks
regulations.82 Police are also protected by other statutory
immunities and protections, such as mandatory death sentences for defendants
who murder them,83 reimbursement of moving expenses when officers
receive threats to their lives,84 and even special protections from
assailants infected with the AIDS virus.85 Officers who illegally
eavesdrop, wiretap, or intrude upon privacy are protected by a statutory
(as well as case law) "good faith" defense,86while private
citizens who do so face up to five years in prison. The tendency of
legislatures to equip police with ever-expanding rights, privileges and powers
has, if anything, been strengthened rather than limited by the
But this growing power differential contravenes the principles of equal
citizenship that dominated America's founding. The great principle of the
American Revolution was, after all, the doctrine of limited
government.89 Advocates of the Bill of Rights saw the chief danger
of government as the inherently aristocratic and disparate power of government
authority.90 Founding-era constitutions enunciated the principle
that all men are "equally free" and that all government is derived from the
Nothing illustrates the modern disparity between the rights and powers
of police and citizen as much as the modern law of resisting arrest. At the
time of the nation's founding, any citizen was privileged to resist
arrest if, for example, probable cause for arrest did not exist or the
arresting person could not produce a valid arrest warrant where one was
needed.92 As recently as one hundred years ago, but with a tone that
seems as if from some other, more distant age, the United States Supreme Court
held that it was permissible (or at least defensible) to shoot an officer who
displays a gun with intent to commit a warrantless arrest based on insufficient
cause.93 Officers who executed an arrest without proper warrant were
themselves considered trespassers, and any trespassee had a right to violently
resist (or even assault and batter) an officer to evade such
Well into the twentieth century, violent resistance was considered a
lawful remedy for Fourth Amendment violations.95 Even third-party
intermeddlers were privileged to forcibly liberate wrongly arrested persons
from unlawful custody.96 The doctrine of non-resistance against
unlawful government action was harshly condemned at the constitutional
conventions of the 1780s, and both the Maryland and New Hampshire constitutions
contained provisions denouncing nonresistance as "absurd, slavish, and
destructive of the good and happiness of mankind."97
By the 1980s, however, many if not most states had (1) eliminated the
common law right of resistance,98 (2) criminalized the
resistance of any officer acting in his official capacity,99 (3)
eliminated the requirement that an arresting officer present his warrant at the
scene,100 and (4) drastically decreased the number and types of
arrests for which a warrant is required.101 Although some state
courts have balked at this march toward efficiency in favor of the
state,102 none require the level of protection known to the
But the right to resist unlawful arrest can be considered a
constitutional one. It stems from the right of every person to his
bodily integrity and liberty of movement, among the most fundamental of all
rights.104 Substantive due process principles require that the
government interfere with such a right only to further a compelling state
interest105 — and the power to arrest the citizenry unlawfully
can hardly be characterized as a compelling state interest.106 Thus,
the advent of professional policing has endangered important rights of the
The changing balance of power between police and private citizens is
illustrated by the power of modern police to use violence against the
As professional policing became more prevalent in the twentieth century,
police use of deadly force went largely without clearly delineated guidelines
(outside of general tort law).108 Until the 1970s, police officers
shot and killed fleeing suspects (both armed and unarmed) at their own
discretion or according to very general department oral policies.109
Officers in some jurisdictions made it their regular practice to shoot at
speeding motorists who refused orders to halt.110 More than one
officer tried for murder in such cases — along with fellow police who
urged dismissals — argued that such killings were in the discharge of
official duties.111 Departments that adopted written guidelines
invariably did so in response to outcries following questionable
shootings.112 Prior to 1985, police were given near total discretion
to fire on the public wherever officers suspected that a fleeing person had
committed a felony.113 More than 200 people were shot and killed by
police in Philadelphia alone between 1970 and 1983.114
In 1985, the United States Supreme Court purported to stop this carnage
by invalidating the use of deadly force to apprehend unarmed, nonviolent
suspects.115Tennessee v. Garner116 involved the
police killing of an unarmed juvenile burglary suspect who, if apprehended
alive, would likely have been sentenced to probation.117 The Court
limited police use of deadly force to cases of self defense or defense of
As a practical matter, however, the Garner rule is much less
stringent. Because federal civil rights actions inevitably turn not on a strict
constitutional rule (such as the Garner rule), but on the perception of
a defendant officer, officers enjoy a litigation advantage over all other
parties.119 In no reported case has a judge or jury held an officer
liable who used deadly force where a mere "reasonable" belief that human life
was in imminent danger existed.120 Some lower courts have
interpreted Garner to permit deadly force even where suspects pose no
immediate and direct threat of death or serious injury to others.121
The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability
of an agent who shot and killed an innocent person to prevent another person
from retreating to "take up a defensive position," drawing criticism from Judge
Kozinski that the court had adopted the "007 standard" for police
Untold dozens, if not hundreds, of Americans have been shot in the back
while fleeing police, even after the Garner decision. Police have shot
and killed suspects who did nothing more than make a move,123 reach
for their identification too quickly,124 reach into a jacket or
pocket,125 "make a motion" of going for a gun,126 turn
either toward or away from officers,127 'pull away' from an officer
as an officer opened a car door,128 rub their eyes and stumble
forward after a mace attack,129 or allegedly lunge with a
knife,130 a hatchet,131or a ballpoint pen.132
Cops have also been known to open fire on and kill persons who brandished or
refused to drop virtually any hand-held object — a Jack Daniel's whiskey
bottle,133 a metal rod,134 a wooden stick,135
a kitchen knife (even while eating dinner),136 a
screwdriver,137 a rake138 — or even refused an order
to raise their hands.139
Cops who shoot an individual holding a shiny object that can be said to
resemble a gun — such as a cash box,140 a shiny silver
pen,141 a TV remote control,142 or even a can
opener143 — are especially likely to avoid liability. In line
with this defense, police officers nationwide have been caught planting weapons
on their victims in order to make shootings look like self
defense.144 In one of the more egregious examples ever proven in
court, Houston police were found during the 1980s to have utilized an
unofficial policy of planting guns on victims of police
violence.145 Seventy-five to eighty percent of all Houston officers
apparently carried "throw-down" weapons for such purposes.146 Only
the dogged persistence of aggrieved relatives and the firsthand testimony of
intrepid witnesses unraveled the police cover-up of the
Resisting arrest, defending oneself, or fleeing may also place an
American in danger of being killed by police.148 Although the law
clearly classifies such killings as unlawful, police are rarely made to account
for such conduct in court.149 Only where the claimed imminent threat
seems too contrived — such as where an officer opened fire to defend
himself from a pair of fingernail clippers150 — or where
abundant evidence of a police cover-up exists, will courts uphold damage awards
against police officers who shoot civilians.151
As Professor Peter L. Davis points out, there is no good reason why
police should not be liable criminally for their violations of the
criminal code, just as other Americans would expect to be (and, indeed, as the
constables of the Founding Era often were).152 Yet in modern
criminal courts, police tend to be more bulletproof than the Kevlar vests they
wear on the job. Remember that the district attorneys responsible for
prosecuting police for their crimes are the same district attorneys who must
defend those officers in civil cases involving the same facts.153
Under the Framers' common law, this conflict of interest did not arise at all
because a citizen grand jury — independent from the state attorney general
— brought charges against a criminal officer, and the officer's victim
prosecuted the matter before a petit jury.154 But the modern model
of law enforcement provides no real remedy, and no ready outlet for the law to
work effectively against police criminals. Indeed, modern policing acts as an
obstruction of justice with regard to police criminality.
The bloodstained record of shootings, beatings, tortures and mayhem by
American police against the populace is too voluminous to be recounted in a
single article.155 At least 2,000 Americans have been killed at the
hands of law enforcement since 1990.156 Some one-fourth of these
killings — about fifty per year — are alleged by some authorities to
be in the nature of murders.157 Yet only a handful have led to
indictment, conviction and incarceration.158 This is true even
though most police killings involve victims who were unarmed or committed no
Killings by police seem as likely as killings by death-row murderers to
demonstrate extreme brutality or depravity. Police often fire a dozen or more
bullets at a victim where one or two would stop the individual.160
Such indicia of viciousness and ferocity would qualify as aggravating factors
justifying the death penalty for a civilian murderer under the criminal laws of
From the earliest arrival of professional policing upon America's
shores, police severely taxed both the largess and the liberties of the
citizenry.162 In early municipal police departments, cops tortured,
harassed and arrested thousands of Americans for vagrancy, loitering, and
similar "crimes," or detained them on mere "suspicion."163 Where
evidence was insufficient to close a case, police tortured suspects into
confessing to crimes they did not commit.164 In the name of law
enforcement, police became professional lawbreakers, "constantly breaking in
upon common law and ... statute law."165 In 1903 a former New York
City police commissioner remarked that he had seen "a dreary procession of
citizens with broken heads and bruised bodies against few of whom was violence
needed to affect an arrest.... The police are practically above the
THE SAFETY OF THE POLICE PROFESSION
Defenders of police violence often cite the dangerous nature of police
work, claiming the police occupation is filled with risks to life and health.
Police training itself — especially elite SWAT-type or paramilitary
training that many officers crave — reinforces the "dangerousness" of
police work in the officers' own minds.167 There is some truth to
this perception, in that around one hundred officers are feloniously killed in
the line of duty each year in the United States.168
But police work's billing as a dangerous profession plummets in
credibility when viewed from a broader perspective. Homicide, after all, is the
second leading cause of death on the job for all American
workers.169 The taxicab industry suffers homicide rates almost
six times higher than the police and detective industry.170 A
police officer's death on the job is almost as likely to be from an accident as
from homicide.171 When overall rates of injury and death on the job
are examined, policing barely ranks at all. The highest rates of fatal
workplace injuries occur in the mining and construction industries, with
transportation, manufacturing and agriculture following close
behind.172 Fully 98 percent of all fatal workplace injuries occur in
the civilian labor force.173
Moreover, police work is generously rewarded in terms of financial,
pension and other benefits, not to mention prestige. Police salaries may exceed
$100,000 annually plus generous health insurance and pension plans —
placing police in the very highest percentiles of American workers in terms of
compensation.174 The founding generation would have been utterly
astonished by such a transfer of wealth to professional law
enforcers.175 This reality of police safety, security and comfort is
one of the best-kept secrets in American labor.
In all, it is questionable whether modern policing actually decreases
the level of bloodshed on American streets. Police often bring mayhem,
confusion and violence wherever they are called.176 Approximately
one-third of the people killed in high-speed police car chases (which are often
unnecessarily escalated by police) are innocent bystanders.177 Cops
occasionally prevent rather than execute rescues.178 "Police
practices" ranked as the number one cause of violent urban riots of the
1960s.179 Indeed, police actively participated in or even initiated
some of the nation's worst riots.180 During the infamous Chicago
Police Riot during the Democratic National Convention in 1968, police
physically attacked 63 newsmen and indiscriminately beat and clubbed numerous
If the modern model of cop-driven criminal justice has any defense at
all, it is its "professionalism." Private law enforcement of the type intended
by the Framers was supposedly more inclined toward lax and arbitrary
enforcement than professional officers who are sworn to uphold the
law.182 Upon scrutiny, however, the claim that professional police
are more reliable, less arbitrary, and more capable of objective law
enforcement than private law enforcers is drastically undermined.
The constitutional model of law enforcement (investigation by a citizen
grand jury, arrest by private individuals, constables or citizens watch, and
private prosecution) became seen as inefficient and ineffective as America
entered its industrial age.183 Yet the grand jury in its natural and
unhobbled state is more, rather than less, able to pursue investigations
when compared to professional police. Grand jurors are not constrained by the
Fourth, Fifth or Sixth amendments — or at least the "exclusionary rule"
fashioned by the courts to enforce those amendments.184
In the absence of police troops to enforce the law, the early criminal
justice system was hardly as hobbled and impotent as conventional wisdom
suggests. Private watch groups and broad-based advocacy groups existed to
enforce laws and track criminals among jurisdictions. Thousands of local
antihorsethief associations and countless 'detecting societies' sprang up to
answer the call of crime victims in the nineteenth century.185 In
Maine, the "Penobscot Temperance League" hired detectives to investigate and
initiate criminal cases against illegal liquor traffickers.186 In
the 1870s a private group called the Society for the Suppression of Vice became
so zealous in garnering prosecutions of the immoral that it was accused in 1878
of coercing a defendant into mailing birth control information in violation of
federal statutes,187 one of the earliest known instances of conduct
that later became defined as entrapment.188 Although some of these
private crime-fighting groups were invested with limited state law enforcement
powers,189 they were not police officers in the modern sense and
received no remuneration.
Such volunteer nonprofessionals continue to aid law enforcement as
auxiliary officers in many American communities.190 Additionally,
private organizations affiliated with regional chambers of commerce,
neighborhood watch and other citizens' groups continue to play a substantial
— though underappreciated — role in fighting crime.191
America also has a long history of outright vigilante justice, although such
vigilantism has been exaggerated both in its sordidness192 and in
Moreover, government-operated policing is hardly a monopoly even today,
neither in maintaining order nor over matters of expertise and
intelligence-gathering.194 There are three times more private
security guards than public police officers and even activities such as
guarding government buildings (including police stations) and forensic analysis
are now done by private security personnel.195
The chief selling point for professional policing seems to be the idea
that sworn government agents are more competent crime solvers than grand
juries, private prosecutors, and unpaid volunteers. But this claim
disintegrates when the realities of police personnel are considered. In 1998,
for example, forty percent of graduating recruits of the Washington, D.C.
police academy failed the comprehensive exam required for employment on the
force and were described as "practically illiterate" and
"borderline-retarded."196 As a practical matter, police are more
dependent upon the public than the public is dependent upon
Cops rely on the public for a very high percentage of their
investigation clearances. As the rate of crimes committed by strangers
increases, the rate of clearance by the police invariably
declines.198 Roughly two-thirds of major robbery and burglary
arrests occur solely because a witness can identify the offender, the offender
is caught at or near the crime scene, or the offender leaves evidence at the
scene.199 In contrast, where a suspect cannot be identified in such
ways, odds are high that the crime will go unsolved.200
Studies show that as government policing has taken over criminal
investigations, the rates of clearance for murder investigations have actually
gone down. For more than three decades — while police units have expanded
greatly in size, power and jurisdiction — the gap between the number of
homicides in the United States and the number of cases solved has widened by
almost twenty percent.201 Today, almost three in ten homicides go
DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE
Moreover, a surprisingly high number of police conclusions are simply
wrong. Since 1963, at least 381 murder convictions have been reversed
because of police or prosecutorial misconduct.203 In the 25-year
period following the Supreme Court's ruling in Gregg v.
Georgia204 reaffirming the use of capital punishment, one
innocent person has been freed from death row for every seven who have been
executed.205 In Illinois, Thirteen men have been freed from death
row since 1977 after proving their innocence — more than the twelve who
were actually put to death over the same period. Governor George Ryan finally
ordered a moratorium on executions until the death penalty system could be
revamped,206 referring to the death penalty system as "fraught with
Yet death penalty cases are afforded far more due process and scrutiny
of evidence than noncapital cases. If anything, the error rate of police in
noncapital cases is likely substantially higher. Governor Ryan's words would
seem to apply doubly to the entire system of police-driven investigation.
The advent of DNA analysis in the courtrooms of the 1990s greatly
accelerated the rate at which police errors have been proven in court, even
while avenues for defendants' appeals have been systematically cut off by
Congress and state legislatures.208 DNA testing before trial has
exonerated at least 5000 prime suspects who would likely have otherwise
been tried on other police evidence.209 Often, exculpatory DNA
revelations have come in cases where other police-generated evidence was
irreconcilable, suggesting falsification of evidence or other police
misconduct.210 The sheer number of wrongly accused persons freed by
DNA evidence makes it beyond dispute that police investigations are far less
trustworthy than the public would like to believe.211
Even more unjustified is the notion that a justice system powered by
professional police possesses higher levels of integrity, trustworthiness and
credibility than the criminal justice model intended by the Framers. Within the
criminal justice system, cops are regarded as little more than professional
witnesses of convenience, if not professional perjurers, for the
prosecution.212 Almost no authority credits police with high levels
of honesty. Indeed, the daily work of cops requires strategic lying as part of
the job description.213 Cops lie about the strength of their
evidence in order to obtain confessions,214 about giving
Miranda warnings to arrestees when on the witness stand,215
and even about substantive evidence when criminal cases need more support. Cops
throughout the United States have been caught fabricating, planting and
manipulating evidence to obtain convictions where cases would otherwise be very
weak.216 Some authorities regard police perjury as so rampant that
it can be considered a "subcultural norm rather than an individual aberration"
of police officers.217 Large-scale investigations of police units in
virtually every major American city have documented massive evidence tampering,
abuse of the arresting power, and discriminatory enforcement of laws according
to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los
Angeles charge that dozens of officers abused their authority by opening fire
on unarmed suspects, planting evidence, dealing illegal drugs, or framing some
200 innocent people.218 More than a hundred prosecutions had to be
dismissed in Chicago in 1997 due to similar police misconduct.219
During the infamous "French connection" case of the 1970s, New York City
narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds
of cocaine for their own use, making the City's Special Investigating Unit the
largest heroin and cocaine dealer in the city.220
Police criminality was so acute in New Orleans during the 1980s and
1990s that people were afraid to report crimes for fear that corrupt officers
would retaliate or tip off organized crime figures. One New Orleans officer was
convicted of ordering the execution of a witness who reported him to the
internal affairs unit for allegedly pistol-whipping a teenager.221
Thirty-six Washington, D.C. officers were indicted on charges such as drug
dealing, sexual assault, murder, sodomy and kidnapping in 1992.222
In Detroit, repeated corruption allegations have seen a number of low-
and high-ranking officers go to prison for drug trafficking, hiring hit men,
providing drug protection, and looting informant funds.223 Police
burglary rings have been uncovered in several cities.224
Patterns of police abuse tend to repeat themselves in major American
cities despite endless attempts at reform.225 New York City police,
for example, have been the subject of dozens of wide-ranging corruption probes
over the past hundred years226 yet continue to generate corruption
allegations.227 Police exhibit unique levels of occupational
solidarity.228 Review boards and internal affairs commissions
inevitably fail to penetrate police loyalty and find resistance from every
rank.229 Cops inevitably form an isolated authoritarian subculture
that is both cynical toward the rule of law and disrespectful of the rights of
fellow citizens.230 The code of internal favoritism that holds
police together may more aptly be described as syndicalism rather than
professionalism. Historically, urban police "collected" from local
businesses.231 Today, a more subtle brand of racketeering prevails,
whereby police assist those businesses which provide support for police and
undermine businesses which are perceived as antagonistic to police interests.
This same shakedown also applies to newspaper editors and
Even at the federal level, where national investigators presume to
police corruption and oversee local departments, favoritism toward the police
role is rampant. In 1992, for example, the federal government filed criminal
charges in only 27 cases of police criminality.233 A federal statute
criminalizing violations of the Fourth Amendment has never been enforced even a
single time, although it has been a part of the U.S. Code since
1921.234 Throughout the 1980s and '90s, the FBI Crime Laboratory
actively abetted the misconduct of local police departments by misrepresenting
forensic evidence to bolster police cases against defendants.235
COPS NOT COST-EFFECTIVE DETERRENT
In terms of pure economic returns, police are a surprisingly poor public
investment. Typical urban police work is very expensive because police see a
primary part of their role as intervention for its own sake — poking,
prodding and questioning the public in hope of turning up evidence of
wrongdoing. Toward this end, police spin quick U-turns, drive slowly and
menacingly down alleyways, reverse direction to track suspected scofflaws, and
conduct sidewalk pat-down searches of potential criminals absent clear indicia
of potential criminality.236 Studies indicate, however, that such
tactics are essentially worthless in the war on crime. One experiment found
that when police do not 'cruise' but simply respond to dispatched calls, crime
rates are completely unaffected.237
Thus the very aspect of modern policing that the public view as most
effective — the creation of a 'police presence' — is in fact a
monstrous waste of public resources.238 Similarly, the history of
America's expenditures in the war on drugs provides little support for the
proposition that money spent on policing yields positive returns.239
University of Chicago professor John Lott has found that while hiring police
can reduce crime rates, the net benefit of hiring an additional officer is
about a quarter of the benefit from arming the public with an equivalent dollar
amount of concealed handguns.240
There is no doubt that modern police are a creation of lawful
representative legislatures and are very popular with the general
public.241 But the rights of Americans depend upon freedom from
government as much as freedom of government.242
Constitutions must provide a countermajoritarian edifice to the threat posed by
the will of the masses, and courts must at times pronounce even the most
popular programs invalid when they contravene the fundamental liberties of a
minority — or even the whole people at times when they inappropriately
devalue their liberties.243
POLICE AS A STANDING ARMY
It is largely forgotten that the war for American independence was
initiated in large part by the British Crown's practice of using troops to
police civilians in Boston and other cities.244 Professional
soldiers used in the same ways as modern police were among the primary
grievances enunciated by Jefferson in the Declaration of Independence.
("[George III] has kept among us standing armies"; "He has affected to render
the military independent of and superior to the civil power"; "protecting them,
by a mock trial....").245 The duties of such troops were in no way
military but involved the keeping of order and the suppression of crime
(especially customs and tax violations).
Constitutional arguments quite similar to the thesis of this article
were made by America's Founders while fomenting the overthrow of their
government. Thomas Jefferson proclaimed that although Parliament was supreme in
its jurisdiction to make laws, "his majesty has no right to land a single armed
man on our shores" to enforce unpopular laws.246 James Warren said
that the troops in Boston were there on an unconstitutional mission because
their role was not military but rather to enforce "obedience to Acts which,
upon fair examination, appeared to be unjust and
unconstitutional."247 Colonial pamphleteer Nicholas Ray charged that
Americans did not have "an Enemy worth Notice within 3000 Miles of
them."248 "[T]he troops of George the III have cross'd the wide
atlantick, not to engage an enemy," charged John Hancock, but to assist
constitutional traitors "in trampling on the rights and liberties of [the
King's] most loyal subjects ..."249
The use of soldiers to enforce law had a long and sullied history in
England and by the mid-1700s were considered a violation of the fundamental
rights of Englishmen.250 The Crown's response to London's Gordon
Riots of 1780 — roughly contemporary to the cultural backdrop of America's
Revolution — brought on an immense popular backlash at the use of guards
to maintain public order.251 "[D]eep, uncompromising opposition to
the maintenance of a semimilitary professional force in civilian life" remained
integral to Anglo-Saxon legal culture for another half
Englishmen of the Founding era, both in England and its colonies,
regarded professional police as an "alien, continental device for maintaining a
tyrannical form of Government."253 Professor John Phillip Reid has
pointed out that few of the rights of Englishmen "were better known to the
general public than the right to be free of standing armies."254
"Standing armies," according to one New Hampshire correspondent, "have ever
proved destructive to the Liberties of a People, and where they are suffered,
neither Life nor Property are secure."255
If pressed, modern police defenders would have difficulty demonstrating
a single material difference between the standing armies the Founders saw as so
abhorrent and America's modern police forces. Indeed, even the distinctions
between modern police and actual military troops have blurred in the wake of
America's modern crime war.256 Ninety percent of American cities now
have active special weapons and tactics (SWAT) teams, using such commando-style
forces to do "high risk warrant work" and even routine police
duties.257 Such units are often instructed by active and retired
United States military personnel.258
In Fresno, California, a SWAT unit equipped with battering rams,
chemical agents, fully automatic submachine guns, and 'flashbang' grenades
roams full-time on routine patrol.259 According to criminologist
Peter Kraska, such military policing has never been seen on such a scale in
American history, "where SWAT teams routinely break through a door, subdue all
the occupants, and search the premises for drugs, cash and
weapons."260 In high-crime or problem areas, police paramilitary
units may militarily engage an entire neighborhood, stopping "anything that
moves" or surrounding suspicious homes with machine guns openly
Much of the importance of the standing-army debates at the ratification
conventions has been overlooked or misinterpreted by modern scholars. Opponents
of the right to bear arms, for example, have occasionally cited the
standing-army debates to support the proposition that the Framers intended the
Second Amendment to protect the power of states to form militias.262
Although this argument has been greatly discredited,263 it has
helped illuminate the intense distrust that the Framers manifested toward
occupational standing armies. The standing army the Framers most feared was a
soldiery conducting law enforcement operations in the manner of King George's
occupation troops — like the armies of police officers that now patrol the
THE SECOND AMENDMENT
The actual intent of the Second Amendment — that it protect a right
of people to maintain the means of violently checking the power of government
— has been all but lost in modern American society.264 Modern
policing's increasing monopoly on firepower tends to undermine the Framers'
intent that the whole people be armed, equipped, and empowered to resist the
state. Many police organizations lobby incessantly for gun control, even though
the criminological literature yields scant empirical support for general gun
control as a crime-prevention measure.265
Nor is there much legitimacy to the claim that professional police are
more accurate or responsible with firearms than the armed citizenry intended by
the Framers. To this day, civilians shoot and kill at least twice as many
criminals as police do every year,266 and their 'error rate' is
several times lower.267 In a government study of handgun battles
that lead to officer injuries, it was found that police who fired upon their
killers were less than half as accurate as their civilian, nonprofessional,
Moreover, police seem hardly less likely to misuse firearms than the
general public.269 In New York City, where private possession of
handguns has been virtually eliminated for most civilians, problems with
off-duty police misusing firearms have repeatedly surfaced.270 Los
Angeles police have been found to fire their weapons inappropriately in
seventy-five percent of cases.271 Between early 1989 and late 1992,
more than one out of every seven shots fired by Washington, D.C. police
officers was fired accidentally.272
THE THIRD AMENDMENT
Although standing armies were not specifically barred by the final
version of the Constitution's text, some authorities have pointed to the Third
Amendment273 as a likely fount for such a conceptual
proposition.274 Additionally, the Amendment's proscription of
quartering troops in homes might well have been interpreted as a general
anti-search and seizure principle if the Fourth Amendment had never been
enacted.275 The Third Amendment was inspired by sentiments quite
similar to those that led to passage of the Second and Fourth Amendments,
rather than fear of military operations. Writing in the 1830s, Justice Story
regarded the Third Amendment as a security that "a man's house shall be his own
castle, privileged against all civil and military
The criminal procedure concerns that dominated the minds of the Framers
of the Bill of Rights were created not only before the Revolution but also
after it. In the five years following British surrender, the independent states
vied against each other for commercial advantage, debt relief, and land claims.
Conflict was especially fierce between the rival settlers of Pennsylvania and
Connecticut on lands in the west claimed simultaneously by both
states.277 Both states sent partisan magistrates and troops into the
region, and each faction claimed authority to remove claimants of the rival
state.278 Magistrates occasionally ordered arrest without warrant,
turned people out of their homes, and even ordered submission to the quartering
of troops in homes.279 In 1784, a Pennsylvania grand jury indicted
one such magistrate and forty others for abuse of their
authority.280 Many agents had to be arrested before the troubles
finally ended in 1788 — the very moment when the Constitution was
undergoing its ratification debates.281 These troubles, and not
memories of life under the Crown, were fresh in the minds of the Framers who
proposed and ratified the Bill of Rights.
The Third Amendment's proscription of soldiers quartered in private
homes addressed a very real domestic concern about the abuse of state
authority in 1791. This same fear of an omnipresent and all-controlling
government is hardly unfounded in modern America. Indeed, the very evils the
Framers sought to remedy with the entire Bill of Rights — the lack of
security from governmental growth, control and power — have come back to
haunt modem Americans like never before.282
THE RIGHT TO BE LEFT ALONE
The 'police state' known by modern Americans would be seen as quite
tyrannical to the Framers who ratified the Constitution. If, as Justice
Brandeis suggested, the right to be left alone is the most important underlying
principle of the Constitution,283 the cop-driven model of criminal
justice is anathemic to American constitutional principles. Today a vast and
omnipotent army of insurgents patrols the American landscape in place of grand
juries, private prosecutors, and the occasional constable. This immense
soldiery is forever at the beck and call of whatever social forces rule the
day, or even the afternoon.284
THE FOURTH AMENDMENT
Now to the Fourth Amendment. The Amendment reads: "The right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to
be seized."285 This protection was clearly regarded as one of the
more important provisions of the Bill of Rights during debates in and out of
Congress prior to ratification.286 To this day, the Amendment is
probably the most cited constitutional provision in challenges to police
The cold, hard reality, however, is that the interest protected by the
amendment — security from certain types of searches and seizures —
has been drastically scaled back since 1791. In saying this, I am mindful that
there are those among the highest echelons of the bench and academy who claim
that current Fourth Amendment law is more protective than the Framers
intended.287 Indeed, there are those claiming the mantles of
textualism and originalism who would decrease Fourth Amendment rights even
further.288 The ever-influential Akhil Amar, for example, has argued
that the Fourth Amendment's text does not really require warrants but
merely lays out the evidentiary foundation required to obtain
warrants.289 Amar joins other "originalist" scholars who emphasize
that the only requirement of the Fourth Amendment's first clause ("The right of
the people to be secure in their persons, papers, and effects from unreasonable
searches and seizures shall not be violated") is that all searches and seizures
be "reasonable."290 The warrant requirement pronounced in many
Supreme Court opinions, according to Amar, places an unnecessary burden upon
law enforcement and should be abandoned for a rule Amar considers more workable
— namely civil damages for unreasonable searches after the fact as
determined by juries.
This type of "originalism" has appealed to more than one U.S. Supreme
Court justice,291 at least one state high court,292 and
various legal commentators.293 Indeed, it has brought a perceivable
shift to the Supreme Court's Fourth Amendment jurisprudence.294 Even
the U.S. Justice Department has adopted this argument as its own in briefs
filed in the U.S. Supreme Court arguing for elimination of the warrant
The problem with this line of interpretation is that it does not square
with the original view of the Framers. Even the most cursory examination of
history reveals that law enforcers of the Founding Era, whether private
persons, sheriffs or constables, were obligated to procure warrants in many
circumstances that modern courts do not require warrants.296 The
general rule that warrants were required for all searches and seizures except
those involving circumstances of the utmost urgency seems so well settled at
the time of ratification that it is difficult to imagine a scholar arguing
otherwise.297 But Professor Amar does. "Supporters of the warrant
requirement," the professor writes, "have yet to find any cases" enunciating
the warrant requirement before the Civil War.298
Perhaps Amar has overlooked the 1814 case of Grumon v. Raymond,
in which the Connecticut Supreme Court held both a constable, who executed an
improper search warrant, and a justice of the peace who issued the warrant,
civilly liable for trespass.299 The court in Grumon clearly
stated that the invalidity of the search warrant left the search's legality "on
no better ground than it would be if [the search had been pursuant to] no
process."300 Or maybe Amar is unfamiliar with the 1807 case of
Stoyel v. Lawrence, holding a sheriff liable for executing a civil
arrest warrant after the warrant's due date and declaring that the warrant
"gave the officer no authority whatever, and, consequently, formed no
defence";301 or the 1763 Massachusetts case of Rex v. Gay,
acquitting an arrestee for assaulting and beating a sheriff who arrested him
pursuant to a facially invalid warrant;302 or Batchelder v.
Whitcher, holding an officer liable for ordering the seizure of hay by an
unsealed warrant in 1838;303 or Conner v. Commonwealth, in
which the Pennsylvania Supreme Court concluded in 1810 that if the requirement
of warrants based on probable cause could be waived merely to allow constables
to more easily arrest criminals, "the constitution is a dead
Even the cases Amar cites for the proposition that search warrants were
not required under antebellum Fourth Amendment jurisprudence do not squarely
support such a proposition.305 Most of them merely repeat the
"warrant requirement" of the common law and find that their given facts fit
within a common law exception.306 Similarly, the cases Amar cites
that interpret various Fourth-Amendment equivalents of state constitutions by
no means indicate that Founding-era law enforcers could freely search and seize
without warrant wherever it was "reasonable" to do so. 307
WARRANTS A FLOOR, NOT A CEILING
Under Founding-era common law, warrants were often considered as much a
constitutional floor as a ceiling. Warrants did provide a defense for
constables in most trespass suits, but were not good enough to immunize
officials from liability for some unreasonable searches or
seizures.308 The most often-cited English case known to the Framers
who drafted the Fourth Amendment involved English constabulary who had acted
pursuant to a search warrant but were nonetheless found civilly liable for
stiff (punitive, actually) damages.309
For more than 150 years, it was considered per se
unconstitutional for law enforcers to search and seize certain categories of
objects, such as personal diaries or private papers, even with perfectly
valid warrants.310 Additionally, Fourth Amendment jurisprudence
prohibited the government from seizing as evidence any personal property which
was not directly involved in crime, even with a valid
warrant.311 The rationale for this "mere evidence" rule
was that the interests of property owners were superior to those of the state
and could not be overridden by mere indirect evidentiary
justifications.312 This rule, like many other obstacles to police
search and seizure power, was discarded in the second half of the twentieth
century by a Supreme Court much less respectful of property rights than its
PRIVATE PERSONS AND THE FOURTH AMENDMENT
Under the Founders' Model, a private person like Josiah Butler, who lost
twenty pounds of good pork under suspicious circumstances in 1787, could
approach a justice of the peace and obtain a warrant to search the property of
the suspected thief for the lost meat.314 Private individuals
applied for many or most of the warrants in the Founders' era and even
conducted many of the arrests.315 Even where sworn constables
executed warrants, private persons often assisted them.316 To avoid
liability, however, searchers needed to secure a warrant before
acting.317 False arrest was subject to strict
The Founders contemplated the enforcement of the common law to be a duty
of private law enforcement, and assumed that private law enforcers would
represent their interests with private means. However, the Founders viewed
private individuals executing law enforcement duties as "public authority" and
thus intended for the Fourth and Fifth Amendments to apply to such individuals
when acting in their law enforcement capacities.319 Consequently,
the Supreme Court's 1921 decision in Burdeau v. McDowell320
— often cited for the proposition that the Fourth Amendment applies only
to government agents — was almost certainly either wrongly decided or
wrongly interpreted by later courts.321
Some of the earliest English interpretations of the freedom from search
and seizure held the protection applicable to private citizens as much as or
more so than government agents.322 Massachusetts and Vermont were
apparently the first states to require that search and arrest warrants be
executed by sworn officers.323 New Hampshire adopted the same rule
in 1826, more than a generation after the Bill of Rights was
ratified.324 It is likely that some states allowed private persons
to execute search warrants well into the nineteenth century.
Because many Founding-era arrests and searches were executed by private
persons, and early constables needed the assistance of private persons
to do their jobs, the Fourth Amendment was almost certainly intended for
application to private individuals. Burdeau cited no previous authority
for its proposition in 1921, and early American cases demonstrate an original
intent that the Fourth Amendment apply to every searcher acting under color of
law.325 On the open seas, most enforcement of prize and piracy laws
was done by "privateers" acting for their own gain but who were held
accountable in court for their misconduct.326
Later courts have taken this holding to mean that "a wrongful search or
seizure conducted by a private party does not violate the Fourth Amendment."
Walter v. U.S. 447 U.S. 649, 656 (1979). See also United States v.
Jacobsen, 466 U.S. 109, 113 (1984) (saying "This Court has also consistently
construed this protection as proscribing only governmental action; it is wholly
inapplicable to a private individual not acting as an agent of the Government
or with the participation or knowledge of any government official.").
As explained in Part I, early constables had powers no greater than
those of other individuals, so they needed warrants before engaging in law
enforcement activities beyond any citizen's authority. Like you or I, a
constable would be thought outside the bounds of good etiquette (and well
outside the law) were he to conduct an unconsented search of another's person,
property or effects, and should — very reasonably — expect to be
jailed, physically repulsed, or sued for such conduct.
A private person's only defense was the absolute correctness of his
allegations. A person was liable if, for example, his complaint was too vague
as to the address to be searched,327 he misspelled the name of the
accused in his complaint,328 or he sought the execution of a warrant
naming a "John Doe" as a target.329
This was the constitutional model secured to America by the Framers. The
idea of police having special powers was only a seedling, alien to the scheme
of ordered liberty and limited government created by the Constitution.
Eventually, police interceded between private individuals and magistrates
altogether, and today it is virtually unheard of for a private person to seek a
search warrant from a magistrate.
Freedom from search and seizure has been retracting in favor of police
ever since the ink was dry on the Bill of Rights. The Framers lived under a
common law rule that required warrantless arrests be made only for felonies
where no warrant could be immediately obtained.330 By the early to
mid-1800s, the rule had changed to allow warrantless arrests for all felonies
regardless of whether a warrant could be obtained.331 Early American
courts also apparently allowed warrantless arrests for misdemeanor breaches of
peace committed in the arrestor's presence. Toward the end of the nineteenth
century, most state courts had changed to allow warrantless arrest for all
crimes of any kind committed in an officer's presence, as well as for all
felonies committed either within or without an officer's presence regardless of
whether a warrant can be obtained.332
By the mid-1900s, arrest had become the almost-exclusive province of
paid police, and their power to arrest opened even wider. A trend toward
allowing police to arrest without warrant for all crimes committed even
outside their presence has recently developed,333 with little
foreseeable court-imposed impediment.334 Almost every American
jurisdiction has legislated for the erosion of common law limitations with
regard to domestic violence arrests and arrests for other high profile
Despite the Fourth Amendment, the Supreme Court has imposed almost no
limits on warrantless arrest at all. Only forcibly entering a residence without
warrant to arrest someone inside has been found to violate the Fourth
Amendment.336 Outside the home, modern police have been essentially
licensed by the Court to arrest almost anyone at any time so long as probable
cause exists.337 The Supreme Court effectively buried the original
purpose of warrantless arrest entirely in 1985, declaring that "[r]estraining
police action until after probable cause is obtained... might... enable the
suspect to flee in the interim."338
Long forgotten is the fact that common law allowance for warrantless
arrest was precipitated solely on an emergency rationale and allowed
only to protect the public from immediate danger.339
The rationale for the felon exception to the warrant requirement in
1791, for example, was that a felony was any crime punishable by death,
generally thought to be limited to only a handful of serious
crimes.340 Felons were considered "outlaws at war with
society,"341 and their apprehension without warrant qualified as one
of the "exceptions justified by absolute necessity."342 By the late
twentieth century, however, many crimes the Framers would have considered
misdemeanors or no crime at all had been declared felonies and the rationale
for immediate community action to apprehend "felons" had changed
greatly.343 The courts, however, have been slow to react to this
far-reaching change.344 In any case, the vast majority of arrests
(seventy to eighty percent) are for misdemeanors,345 which would
have been proscribed without warrant under the Framers' law.
ORIGINALISTS CALL FOR CIVIL DAMAGES
The writings of most modern "originalist" scholars promote civil suits
against police departments, instead of exclusion of evidence, as a remedy for
police misconduct. Professor Amar, for example, champions a return to civil
litigation, but with, somehow, a better return than such actions currently
bring.346 He invents a fantastically implausible cause of action
where "government should generally not prevail."347 He bases this
idea on actual cases from the nineteenth century where people prevailed against
constables and sheriffs in relatively routine circumstances, often with heavy
These cases actually occurred — but in an age before police took
over American law enforcement. Civil damages really were a better remedy when
many or most searches were sought — and sometimes conducted — by
private persons who stood strictly liable in court if their allegations proved
false or their conduct proved overzealous.349 American law provided
recovery for every false arrest. If it was not the constable who executed the
warrant, the private person, who lodged the original insufficient complaint,
Under Founding-era common law, liability for officers was in many
respects higher than for private persons. Sheriffs and deputies could be
held liable for failing to arrest debtors for collection of debts351
or to serve other process,352 for allowing an imprisoned debtor to
escape,353 for failing to keep entrusted goods secure354
or to deliver goods in custody at a proper time,355 or for failing
to keep faithful accounting and custody of property.356 Sheriffs
were also obligated to return writs within a specific time period, at pain of
civil damages.357 They were liable to debtors whose property was
sold at sheriffs sales if proper advertisement procedures were not
followed358 and for negligently allowing other creditors to obtain
priority interests on attached property.359
Law enforcers were liable for false imprisonment, even where they acted
with court permission, if procedures were improper.360 A deputy was
liable for damages to an arrestee whom he arrested outside his
jurisdiction.361 Sheriffs were even liable if their deputies
executed civil process in a rude and insolent manner.362 When
executing writs, sheriffs were liable for any unnecessary violence against
innocent third persons who obstructed them.363
The Founders' law knew no "good faith" defense for law enforcers.
Sheriffs and justices who executed arrests pursuant to invalid warrants were
considered trespassers (as were any judges who granted invalid warrants). Any
person was justified in resisting, or even battering, such
officers.364 Justices of the peace could be held liable for ordering
imprisonment without taking proper steps.365
Any party who sued out or issued process did so at his peril and was
civilly responsible for unlawful writs (even if the executing officer acted in
Nor did state authority provide the umbrella of indemnification that now
protects public officers. Sheriffs of the nineteenth century often sought
protection from liability by obtaining bonds from private
sureties.367 Their bonds were used to satisfy civil judgments
against them while in office.368 If the amount of their bonds was
insufficient to satisfy judgments, sheriffs were liable
personally.369 It was not uncommon for a sheriff to find himself in
jail as a debtor for failing to satisfy judgments against him.370
Even punitive damages against officers — long disfavored by modern courts
with regard to municipal liability — were deemed proper and normal under
the law of the Framers.371
Unlike the early constables, uniformed police officers were generally
introduced upon the American landscape by their oaths alone and without bonds.
Their municipal employers (hence, the taxpayers) were on the hook for their
civil liabilities. Although courts tended to treat police identically to bonded
officials,372 their susceptibility to civil redress was much lower.
This change in the law of policing had the effect of depriving Americans of
remedies for Fourth Amendment (and other) violations.373 The evil
that now pervades criminal justice — swarms of officers unaccountable in
court either criminally or civilly — was the very evil that the Founders
sought to remedy in the late eighteenth century.374
DEVELOPMENT OF IMMUNITIES
But immunities follow duties, and duties placed upon police by lawmakers
have exploded since 1791.375 Immunities grew slowly, beginning with
a slight deference to officer conduct so long as there was no bad faith,
corruption, malice or "misbehavior,"376 and ending with broad
qualified immunity.377 When the practice of professional policing
arrived from England upon American shores (for the second time, actually, if we
consider modern police to be akin to the "standing armies" of the Founders'
generation), cases began to enunciate a general deference to police conduct,
permitting that the actions of officers in carrying out their duties "not to be
harshly judged."378 Appellate courts began to reverse jury verdicts
against officers upon new rules of law granting privileges unknown to private
THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE
Probable cause for the issuance of warrants has also become less
strict.380 The Supreme Court regarded hearsay evidence as
insufficient to constitute probable cause for seventeen years in the first half
of the twentieth century,381 but has since given police free reign
to construct probable cause in whatever way they deem proper. Instead of
probability that a crime has been committed, the courts now require only
some possibility, a relaxed standard that "robs [probable cause] of virtually
all operative significance."382 This watered-down "probable cause"
for the issuance of ex parte warrants would have shocked the
At common law, one could sue and recover damages from a private person
who swore out a false or misleading search warrant affidavit.384 In
contrast, few modern officers will ever have to account for lies on warrant
applications so long as they couch their "probable cause" in unprovables.
"Anonymous citizen informants,"385 material omissions and
misrepresentations,386 irrelevant or prejudicial
information,387 and even outright falsities are now common fixtures
of police-written search warrant applications.388 For years, Boston
police simply made up imaginary informants to justify searches and
seizures.389 Police themselves refer to the phenomenon as
"testilying" — an aspect of normal police work regarded as "an open
secret" among principle players of the criminal justice
POLICE AND THE "AUTOMOBILE EXCEPTION"
The courts have been particularly unkind to Fourth Amendment protections
in the context of motor vehicle travel. Since the 1920s, Fourth Amendment
jurisprudence has allowed for a gaping and ever-widening exception to the
warrant requirement with regard to the nation's roadways.391 Today,
police force untold millions of motorists off the roads each year to be
searched or scrutinized without judicial warrant of any kind.392 Any
police officer can generally find some pretext to justify a stop of any
automobile.393 In effect, road travel itself is subject to a near
total level of police control,394 a phenomenon that would have
confounded the Framers, who treated seizures of wagons, horses and buggies as
subject to the same constraints as seizures of other property.395
The courts have laid down such a malleable latticework of exceptions in
favor of modern police that virtually any cop worth his mettle can adjust his
explanations for a search to qualify under one exception or another. When no
exception applies, police simply lie about the facts.396 "Judges
regularly choose to accept even blatantly unbelievable police
testimony."397 The practice on the streets has long been for police
to follow their hunches, seek entrance at every door, and then attempt to
justify searches after the fact.398 Justice Robert Jackson observed
in 1949 that many unlawful searches of homes and automobiles are never revealed
to the courts or the public because the searches turn up nothing.399
ONE EXCEPTION: THE EXCLUSIONARY RULE?
Conventional wisdom suggests there is one important exception to the
long decline of Fourth Amendment protections: the exclusionary rule. Since
1914, the Supreme Court has required the exclusion of evidence seized in
violation of the Fourth Amendment from being used against a defendant in
federal court.400 In 1961, this rule was applied to the states in
Mapp v. Ohio.401 Shortly thereafter, the Supreme Court
expanded the exclusionary rule to other protections such as the Fifth and Sixth
Amendments in cases such as Miranda v. Arizona.402
Textualists and originalists have lobbed a steady stream of vitriol
against the exclusionary rule for decades. No enunciation of such a rule, say
these critics, can be found in the writings or statements of the
Framers.403 Moreover, say such critics, the rule places a heavy
burden on the efficiency of police (but simultaneously, somehow, fails to deter
them in any way), and unfairly frees a small but not insignificant percentage
of "guilty" offenders.404 So-called "conservative" legal scholars
remember the Warren Court's imposition of the exclusionary rule upon the states
in the 1960s as a bare-knuckled act of judicial activism405 and
argue that the Court "[took] it upon itself, without constitutional
authorization, to police the police."406
The Miranda and Mapp decisions provoked an onslaught of
hostility by police organizations and their sympathizers that has not subsided
decades later. High-ranking authorities (not the least of which were Justices
Harlan and White, who dissented in Miranda) wrote that such decisions
put society at risk from criminals.407 The Miranda rule,
according to Justice White, would force "those who rely on the public authority
for protection" to "engage in violent self-help with guns, knives and the help
of their neighbors similarly inclined."408 Even more outraged was
the chief of police of Garland, Texas, who responded, "We might as well close
Yet the dire predictions that followed the Miranda and
Mapp decisions were ultimately proved false.410 Rather than
returning to what Justice White decried as "violent self-help" (as the
Constitution's framers truly intended), America continued its slide into
increased dependence upon police for the most mundane aspects of law
enforcement. If anything, reliance upon police for personal protection has
increased since the 1960s.
I propose an altogether different interpretation of Mapp,
Miranda, and some of the Warren Court's other criminal procedure
decisions. While I concede that this jurisprudence grossly violated certain
constitutional principles (most importantly, principles of federalism), I
submit that such rulings were attempts to bring constitutional law into accord
with the alien threat posed by modern policing. Professional policing's arrival
upon the American scene required that the Court's Bill of Rights jurisprudence
splinter a dozen ways to accommodate it. Thus, Mapp and Miranda
were an application of brakes to a foreign element (modern policing) that is
itself without constitutional authorization.
In many ways, the Warren Court was the first U.S. Supreme Court to face
criminal procedural questions squarely in light of the advent of professional
policing. The Miranda and Mapp decisions, according to noted
criminal law expert David Rudovsky, "at least implicitly acknowledged
widespread police and prosecutorial abuse,"411 a phenomenon that
would have bedeviled the Framers. Mapp's holding was brought on more by
the need to make the criminal justice system work fairly than by any other
consideration.412 The same realities gave way to the rule of
Bivens v. Six Narcotics Agents, in 1971, in which the Court conceded
that an agent acting illegally in the name of the government possesses a far
greater capacity for harm than any individual trespasser exercising his own
authority (as prevailed as the common form of law enforcement in
Furthermore, the notion that exclusion cannot be justified under an
originalist approach is not nearly as well-founded as its harshest critics
suggest.414 Critics of the rule point to the 1914 case of Weeks
v. United States415 as the rule's debut in Supreme Court
jurisprudence.416 However, the rule actually debuted in dicta in the
1886 case of Boyd v. United States.417 Even this seemingly
late date of the rule's debut can be attributed to the Court's lack of criminal
appellate jurisdiction until the end of the nineteenth century.418
The reality is that Boyd, the Court's first suggestion of the rule,
represents, for practical purposes, the very first Fourth Amendment case
decided by the Supreme Court. The exclusionary rule thus has a better
pedigree than it is credited with.419
THE FIFTH AMENDMENT
In a previous article, I described the limitation of common law grand
jury powers by Rule 6 of the Federal Rules of Criminal Procedure as an
unconstitutional infringement of the Fifth Amendment Grand Jury
Clause.420 The fact that most criminal charges are now initiated not
by crime victims but by armed state agents who serve the state's interests
represents a drastic alteration of Founding-era criminal
procedure.421 The suppression of grand jurors' lawful powers belies
the intent of the Constitution that law enforcement officials be subject to
stringent oversight by the citizenry through grand juries. Modern policing, in
effect, acts as a middleman between the people and the judicial branch of
government that was never contemplated by the Framers.
The Fifth Amendment also prohibits the compulsion of self-incriminating
testimony.422 Various competing interpretations ebbed and flowed
from this provision until 1966, when the Supreme Court held that police are
required to actually tell suspects about the Fifth and Sixth Amendments'
protections before interrogating them.423 The sheer volume of
criticism by police organizations of the Miranda ruling over the next
three decades indicates the strong state interest in keeping the Constitution's
protections concealed from the American public.
Modem police interrogation could scarcely have been imagined by the
Framers who met in Philadelphia in the late eighteenth century. Police tactics
such as falsifying physical evidence, faking identification lineups,
administering fake lie detector tests and falsifying laboratory reports to
obtain confessions are methods developed by the professionals of the
twentieth century. 424 Against such methods a modern suspect stands
little chance of keeping his tongue. Like the exclusionary rule and the
entrapment defense, the Miranda rule operates as an awkward leveling
device between the rights of American citizens and their now-leviathanic
In 2000, the Supreme Court upheld (indeed, "constitutionalized") the
Miranda rule in the face of widespread predictions that the
police-favoring Rehnquist majority would abandon the rule.425 The
Court delivered an opinion recognizing that "the routine practices of [police]
interrogation [is] itself a relatively new development."426 The
Miranda requirement, according to Justice Rehnquist, was therefore
justified as an extension of due process — a far more sustainable
course than one extending from the wording of the Fifth and Sixth
The Dickerson decision illustrates the increasingly awkward peace
between the Bill of Rights and the phenomenon of modern policing. Because the
Framers did not contemplate wide-scale execution of government power through
paid, full-time agents, modern jurisprudence reconciling the Bill of Rights
with today's police practices seems increasingly farfetched. Justices Scalia
and Thomas dissented from the Dickerson majority with well-founded
textualist objections, arguing that the majority was writing a "prophylactic,
extraconstitutional Constitution" to protect the public from
police.428 Yet in light of the extraconstitutional nature of modern
police, the Dickerson majority opinion is no less consistent with the
Framers' constitutional intent.
Due process of law depends upon assurances that a level playing field
exists between rival adversaries pitted against each other.429 The
constitutional design pitted a citizen defendant against his citizen accuser
before a jury of his (the defendant's) peers. The state provided only the
venue, the process, and assurances that the rule of law would govern the
outcome. By comparison, a modern defendant is hardly pitted in a fair fight,
facing the vast treasury and human resources of the state. While the criminal
justice system of the Founding era was victim-driven, and thus self-limiting,
today's system is fueled by a professional army of police who measure their
success in numbers of arrests and convictions.430
Police themselves often ignore standard concepts of fairness, official
regulations, and statutes in their war on crime.431 Police agencies
have even been known to develop institutional means to circumvent court
attempts to equalize the playing field.432 In the face of unwanted
publicity or controversy surrounding police brutality cases, police departments
have been known to release arrest records to the media to vilify victims of
The police model of law enforcement tilts the entire system of criminal
justice in favor of the state. The police, though supposedly neutral
investigators, are in reality an arm of the prosecutor's office.434
Where police secure a crime scene for investigation, they in fact secure it
for the prosecution alone and deny access to anyone other than the
prosecution. A suspect or his defense attorneys often must obtain court
permission to view the scene or search for evidence. Only such exculpatory
evidence as by accident falls into the hands of the prosecution need be
revealed to the suspect or defendant.435 In cases where police
misconduct is an issue, police use their monopoly over the crime scene to
prepare the evidence to suit their version of events.436
Mapp, Miranda and Dickerson notwithstanding, the
tendency of modern courts to work around police practices, rather than nullify
or restrain them, poses the very threat to due process of law the Framers saw
as most dangerous to liberty. Instead of viewing the system as a true
adversarial contest with neutral rules, judges and lawmakers have decided that
catching (nonpolice) lawbreakers is more important than maintaining a code of
integrity.437 The "sporting theory of criminal justice," wrote
Justice Warren Burger, "has been experiencing a decline in our
jurisprudence."438 In its place is a system where the government
views the nonpolice lawbreaker as a threat to its authority and places top
priority on defeating him in court.439
Abandonment of victim-driven, mostly private prosecution has led to
consequences the Framers could never have predicted and would likely never have
sanctioned. Even in the most horrific examples of colonial criminal justice
(and there were many), defendants were rarely if ever entrapped into criminal
activity. The development of modern policing as an omnipotent power of the
state, however, has necessitated the simultaneous development of complicated
doctrines such as entrapment and "outrageous government conduct" as
It was not until the late nineteenth century that any English or
American case dealt with entrapment as a true defense to a criminal
charge.440 (The case law until then had been virtually devoid of
police conduct issues altogether).441 Beginning in 1880, English
case law slowly became involved with phenomena such as state agents inducing
suspects to sell without proper certificates,442 persuading
defendants to supply drugs to terminate pregnancy,443 and enticing
people to commit other victimless crimes. Dicta in some English cases expressed
outrage that police might someday "be told to commit an offense themselves for
the purpose of getting evidence against someone."444 Police who
commit such offenses, said one English court, "ought also to be convicted and
punished, for the order of their superior would afford no
Entrapment did not arise as a defense in the United States until 1915,
when the conduct of government officers for the first time brought the issue
before the federal courts. In Woo Wai v. United States, the Ninth
Circuit overturned a conviction of a defendant for illegally bringing Chinese
persons into the United States upon evidence that government officers had
induced the crime.446 Growth in police numbers and "anti-crime"
warfare was so rapid that in 1993, the Wyoming Supreme Court wrote that
entrapment had "probably replaced ineffectiveness of defense counsel and
challenged conduct of prosecutors as the most prevalent issues in current
The growth of the use of entrapment by the state raises troubling
questions about the nature and purposes of American government. Rather than
"serving and protecting" the public, modern police often serve and protect the
interests of the state against the liberties and interests of the people. A
significant amount of police brutality, for example, seems aimed at mere
philosophical, rather than physical, opposition. Police dominance over the
civilian (rather than service to or protection of him) is the "only truly iron
and inflexible rule" followed by police officers.448 Thus, any
person who defies police faces virtually certain negative repercussions,
whether a ticket, a legal summons, an arrest, or a bullet.449 One
study found nearly half of all illegal force by police occurred in response to
mere defiance of an officer rather than a physical threat.450
In the political sphere, police serve the interests of those in power
against the rights of the public. New York police of the late nineteenth
century were found by the New York legislature to have committed "almost every
conceivable crime against the elective franchise," including arresting and
brutalizing opposition-party voters, stuffing ballot boxes, and using
"oppression, fraud, trickery [and] crime" to ensure the dominant party held the
city.451 In the twentieth century, J. Edgar Hoover's FBI agents
burglarized hundreds of offices of law-abiding, left-wing political parties and
organizations, "often with the active cooperation or tacit consent of local
police."452 The FBI has also spent thousands of man-hours surveiling
and investigating writers, playwrights, directors and artists whose political
views were deemed a threat to the interests of the ruling political
Police today are a constant agent on behalf of governmental power. Both
in the halls of legislatures and before the courts, police act as lobbyists
against individual liberties.454 Police organizations, funded by
monies funneled directly from police wages, lobby incessantly against
legislative constraints on police conduct.455 Police organizations
also file amicus curie briefs in virtually every police procedure case
that goes before the Supreme Court, often predicting dire consequences if the
Court rules against them. In 2000, for example, the police lobby filed
amicus briefs in favor of allowing police to stop and frisk persons upon
anonymous tips, warning that if the Court ruled against them, "the consequence
for law enforcement and the public could be increased assaults and perhaps even
The United States of America was founded without professional police.
Its earliest traditions and founding documents evidenced no contemplation that
the power of the state would be implemented by omnipresent police forces. On
the contrary, America's constitutional Framers expressed hostility and contempt
for the standing armies of the late eighteenth century, which functioned as law
enforcement units in American cities. The advent of modern policing has greatly
altered the balance of power between the citizen and the state in a way that
would have been seen as constitutionally invalid by the Framers. The
implications of this altered balance of power are far-reaching, and should
invite consideration by judges and legislators who concern themselves with
* Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams
University School of Law in 1999, Roger Williams University School of Justice
Studies in 2001, and Montana State University-Billings (B.S., Sociology) in
1995. He is a former federal prisoner and founder of the
Prison Crisis Project, a
not-for-profit law and policy think tank based in Providence, Rhode Island. He
is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous
proof-reading efforts and thoughtful insights.
1 As of June, 1996, there were more than 700,000 full- and
part-time professional state-sworn police in the United States. See
BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT
AGENCIES, 1996 (1998) available at <http://virlib.ncjrs.org/Statistics.asp>.
Figures for earlier decades and centuries are difficult to obtain, but a few
indicators suggest that the ratio of police per citizen has grown by at least
four thousand percent. In 1816, the British Parliament reported that there was
at that time one constable for every 18,187 persons in Great Britain.
See Jerome Hall, Legal and Social Aspects of Arrest Without a
Warrant, 49 HARVARD L. REV. 566, 582 (1936). Conventional wisdom would
suggest that American ratios were, if anything, lower. Today there is
approximately one officer for every 386 Americans.
2 The City of Los Angeles, for example, spends almost half
(49.1%) of its annual discretionary budget on police but only 17.7% on fire and
14.8% on public works. See City of Los Angeles 1999-2000 Budget Summary
(visited Dec. 2000) <http://www.cityofla.org/cao/bud9900.pdf>.
The City of Chicago spends over forty percent of its annual budget on police.
See Chicago Budget 1999 (visited Dec. 2000) <http://www.ci.chi.il.us/mayor/Budgetl999/sld011.htm>
(pie chart). Seattle spends more than $150 million, or 41 percent of its annual
budget, on police and police pensions. See City of Seattle 2000 Proposed
Budget (visited Dec. 2000) <http://www.ci.seattle.wa.us/budget>.
The City of New York is one exception, due primarily to New York State's unique
system for funding education. Police and the administration of justice
constitute the third largest segment, or twelve percent, of the City's budget,
after education and human resources. See THE CITY OF NEW YORK, EXECUTIVE
BUDGET, FISCAL YEAR 2000 1 (2000) (pie chart).
3See Carol S. Steiker, Second Thoughts About First
Principles, 107 HARV. L. REV. 820, 830 (1994) (saying twentieth century
police and "our contemporary sense of 'policing' would be utterly foreign to
our colonial forebears").
5See id. at 831 (saying the sole monetary reward for
such officers was occasional compensation by private individuals for returning
6See CHARLES SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL
JUSTICE 314 (1978). The City of Boston, for example, enacted an ordinance
requiring drafted citizens to walk the streets "to prevent any danger by fire,
and to see that good order is kept." Id.
7C.f. id. (mentioning that cops' role of maintaining
order predates their role of crime control).
8But see, e.g., Steiker, supra note 3, at 824
(saying the "invention ... of armed quasi-military, professional police forces,
whose form, function, and daily presence differ dramatically from that of the
colonial constabulary, requires that modern-day judges and scholars rethink"
Fourth Amendment remedies).
9See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS
GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 104 (1996) (criticizing
Supreme Court rulings that have "steadily expanded" the rights of criminals and
placed limitations upon police conduct).
10Cf. E.X. BOOZHIE, THE OUTLAW'S BIBLE 15 (1988)
(stating the true mission of police is to protect the status quo for the
benefit of the ruling class).
11 As a textual matter, the Constitution grants authority to
the federal government to define and punish criminal activity in only five
instances. Article I grants Congress power (1) "[t]o provide for the Punishment
of counterfeiting the Securities and current Coin of the United States," art.
I, § 8, cl. 6; (2) "[t]o define and punish Piracies and Felonies committed
on the high Seas, and Offenses against the Law of Nations," id, cl. 10;
(3) "[t]o make Rules for the Government and Regulation of the land and naval
Forces," id. at cl. 14; (4) "[t]o exercise exclusive Legislation in all
Cases whatsoever, over" the District of Columbia and federal reservations.
id. at cl. 17; see also Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 426 (1821) ("Congress has a right to punish murder in a fort, or other
place within its exclusive jurisdiction; but no general right to punish murder
committed within any of the states"). Likewise, (5) Article III defines the
crime of "Treason against the United States" and grants to Congress the "Power
to declare [its] Punishment...." U.S. CONST. art. III, § 3.
12 Several early constitutions expressed a right of citizens
"to be protected in the enjoyment of life, liberty and property," and therefore
purported to bind citizens to contribute their proportion toward expenses of
such protection. See DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, §
10; PA. CONST. of Sept. 28, 1776, Dec. of Rights, § VIII; VT. CONST. of
July 8, 1777, Chap. 1, § IX. Other typical provisions required that the
powers of government be exercised only by the consent of the people, see,
e.g., N.C. CONST. of Dec. 18, 1776, § V, and that all persons invested
with government power be accountable for their conduct. See MD. CONST.
of Nov. 11, 1776, § IV.
13 The constitutions of several early states expressed the
intent that citizens were obligated to carry out law enforcement duties.
See, e.g., DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, § 10
(providing every citizen shall yield his personal service when necessary, or an
equivalent); N.H. CONST. of June 2, 1784, Part I, art. I, § XII (providing
that every member of the community is bound to "yield his personal service when
necessary, or an equivalent"); VT. CONST. of July 8, 1777, Chap. 1, § IX
(providing every member of society is bound to contribute his proportion
towards the expenses of his protection, "and to yield his personal service,
14C.f. JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF
AMERICAN LIBERTY 51 (1st ed. 1994) (discussing Revolution-era
perception that the law was a means to restrain government and to secure rights
15 Originally, all criminal procedure fell under the rule of
private vengeance. A victim or aggrieved party made a direct appeal to county
authorities to force a defendant to face him.
See ARTHUR TRAIN, THE PRISONER AT THE BAR 120 n. (1926). From
these very early times, "grand" or "accusing" juries were formed to examine the
accusations of private individuals. Id. at 121 n. Although the accusing
jury frequently acted as a trial jury as well, it eventually evolved into a
separate body that took on the role of accuser on behalf of aggrieved parties.
It deliberated secretly, acting on its members' own personal information and
upon the application of injured parties. Id. at 124 n.
16 In the early decades of American criminal justice,
criminal cases were hardly different from civil actions, and could easily be
confused for one another if "the public not being joined in it." Clark v.
Turner, 1 Root 200 (Conn. 1790) (holding action for assault and battery was no
more than a civil case because the public was not joined). It was apparently
not unusual for trial judges themselves to be confused about whether a case was
criminal or civil, and to make judicial errors regarding procedural differences
between the two types of cases. See Meacham v. Austin, 5 Day 233 (Conn.
1811) (upholding lower court's dismissal of criminal verdict because the case's
process had been consistent with civil procedure rather than criminal
17See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790)
(involving action by private individual seeking public sanction for his
18See, e.g., Smith v. State, 7 Tenn. 43 (1846) (using
the term prosecutor to describe a private person); Plumer v. Smith, 5 N.H. 553
(1832) (same); Commonwealth v. Harkness, 4 Binn. 193 (Pa. 1811) (same).
19See Harold J. Krent, Executive Control Over
Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275,
281-90 (1989) (saying that any claim that criminal law enforcement is a 'core'
or exclusive executive power is historically inaccurate and therefore the
Attorney General need not be vested with authority to oversee or trigger
investigations by the independent counsel).
20See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790)
(holding the Attorney General must allow his name to be used by the
21 Private prosecutors generally had to pay the costs of
their prosecutions, even though the state also had an interest. See
Dickinson v. Potter, 4 Day 340 (Conn. 1810). Government attorneys general took
over the prosecutions of only especially worthy cases and pursued such cases at
public expense. See Waldron v. Turtle, 4 N.H. 149, 151 (1827) (stating
if a prosecution is not adopted and pursued by the attorney general, "it will
not be pursued at the public expense, although in the name of the state").
22See State v. Bruce, 24 Me. 71, 73 (1844) (stating a
threat by crime victim to prosecute a supposed thief is proper but extortion
for pecuniary advantage is criminal).
23See Plumer v. Smith, 5 N.H. 553 (1832) (holding
promissory note invalid when tendered by a criminal defendant to his private
prosecutor in exchange for promise not to prosecute).
24 Shaw v. Reed, 30 Me. 105, 109 (1849).
25See In re April 1956 Term Grand Jury, 239 F.2d 263
(7th Cir. 1956).
26See Goodman v. United States, 108 F.2d 516 (9th
27See Krent, supra note 19, at 293.
28C.f. Ellen D. Larned, 1 History of Windham County,
Connecticut 272-73 (1874) (recounting attempts by Windham County authorities in
1730 to arrest a large group of rioters who broke open the Hartford Jail and
released a prisoner).
29Id. at 273.
30See Buckminster v. Applebee, 8 N.H. 546 (1837)
(stating the sheriff has a duty to raise the posse to aid him when necessary).
31See Waterbury v. Lockwood, 4 Day 257, 259-60 (Conn.
1810) (citing English cases).
32See Jerome Hall, Legal and Social Aspects of
Arrest Without A Warrant, 49 HARV. L. REV. 566, 579 (1936).
33 Barrington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y.
34See Eustis v. Kidder, 26 Me. 97, 99 (1846).
35 By the early 1900s, courts held that civilians called into
posse service who were killed in the line of duty were entitled to full death
benefits. See Monterey County v. Rader, 248 P. 912 (Cal. 1926); Village
of West Salem v. Industrial Commission, 155 N.W. 929 (Wis. 1916).
36 United States v. Rice, 27 Fed. Cas. 795 (W.D.N.C. 1875).
37 The Constitution is not without provisions for criminal
procedure. Indeed, much of the Bill of Rights is an outline of basic criminal
procedure. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 118 (2d
ed. 1985). But these provisions represent enshrinements of individual liberties
rather than government power. The only constitutional provisions with regard to
criminal justice represent barriers to governmental power, rather than
provisions for that power. Indeed, the Founders' intent to protect individual
liberties was made clear by the language of the Ninth Amendment and its
equivalent in state constitutions of the founding era. The Ninth Amendment,
which declares that "[t]he enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people,"
provides a clear indication that the Framers assumed that persons may do
whatever is not justly prohibited by the Constitution rather than that the
government may do whatever is not justly prohibited to it. See Randy E.
Barnett, Introduction: James Madison's Ninth Amendment, in THE RIGHTS
RETAINED BY THE PEOPLE 43 (Randy E. Barnett ed., 1989).
38See JAMES S. CAMPBELL ET AL., LAW AND ORDER
RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT TO THE
NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE 450 (1970)
(discussing survey by the President's Commission on Law Enforcement and
Administration of Justice).
39 The term "policing" originally meant promoting the public
good or the community life rather than preserving security. See Rogan
Kersh et al., "More a Distinction of Words than Things": The Evolution of
Separated Powers in the American States, 4 ROGER WILLIAMS U. L. REV. 5, 21
40See, e.g., N.C. CONST. of Dec. 18, 1776, Dec. of
Rights, § II (providing that people of the state have a right to regulate
the internal government and "police thereof); PA. CONST. of Sept. 28, 1776,
Dec. of Rights, art. III (stating that the people have a right of "governing
and regulating the internal police of [the people]").
41See Police Jury v. Britton, 82 U.S. (15 Wall.) 566
(1872). The purpose of such juries was 1) to police slaves and runaways, (2) to
repair roads, bridges, and other infrastructure, and (3) to lay taxes as
necessary for such acts. Id. at 568. See also BLACK'S LAW
DICTIONARY 801 (abridged 6th ed. 1991).
42 When Blackstone wrote of offenses against "the public
police and economy" in 1769, he meant offenses against the "due regulation and
domestic order of the kingdom" such as clandestine marriage, bigamy, rendering
bridges inconvenient to pass, vagrancy, and operating gambling houses. 4
WILLIAM BLACKSTONE, COMMENTARIES 924-27 (George Chase ed., Baker, Voorhis&
Co. 1938) (1769).
43See, e.g., Wolf v. Colorado, 338 U.S. 25,27-28
(1948) (proclaiming that "security of one's privacy against arbitrary intrusion
by the police" is at the core of the Fourth Amendment (clearly a slight
misstatement of the Founders' original perception)).
44See Roger Lane, Urbanization and Criminal
Violence in the 19th Century: Massachusetts as a Test Case, in
NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN
AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 445, 451 (Graham & Gurr
dir., 1969) (saying citizens were traditionally supposed to take care of
themselves, with help of family, friends, or servants "when available").
45See, e.g., Kennard v. Burton, 25 Me. 39 (1845)
(involving collision between two wagons).
46 Lane, supra note 44, at 451.
47 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 96 (J.P. Mayer
ed., Harper Perennial Books 1988) (1848).
49See id. at 96.
50See Pauline Maier, Popular Uprisings and Civil
Authority in Eighteenth-Century America, 27 WM. & MARY Q. 3-35 (1970).
51 DE TOCQUEVILLE, supra note 47, at 72.
52 Lane, supra note 44, at 450.
55See id. at 451.
56See, e.g., Lamb v. Day, 8 Vt. 407 (1836) (involving
suit against constable for improper execution of civil writ); Tomlinson v.
Wheeler, 1 Aik. 194 (Vt. 1826) (involving sheriff's neglect to execute civil
judgment); Stoyel v. Edwards, 3 Day 1 (1807) (involving sheriffs execution of
57 If the modern police profession has a father, it is Sir
Robert Peel, who founded the Metropolitan Police of London in 1829. See
SUE TITUS REID, CRIMINAL JUSTICE: BLUEPRINTS 58 (5th ed. 1999)
(attributing the founding of the first modern police force to Peel). Peel's
uniformed officers — nicknamed 'Bobbies' after the first name of their
founder — operated under the direction of a central headquarters (Scotland
Yard, named for the site once used by the Kings of Scotland as a residence),
walking beats on a full-time basis to prevent crime. See id. Less than
three decades later, Parliament enacted a statute requiring every borough and
county to have a London-type police force. See id.
The 'Bobbie' model of policing caught on more slowly in the United
States, but by the 1880s most major American cities had adopted some type of
full-time paid police force. See id. at 59 (noting that the county
sheriff system continued in rural areas).
58See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN
AMERICAN HISTORY 151-52 (1993) (citation omitted).
59Id. at 151.
60See id. at 152 (describing early police use of
station houses as homeless shelters for the poor). This same type of public
problem-solving still remains a large part of police work. Police are called
upon to settle landlord-tenant disputes, deliver emergency care, manage
traffic, regulate parking, and even to respond to alleged haunted houses.
See id. at 151 (recounting 1894 alleged ghost incident in Oakland,
California). Police continue to provide essential services to communities,
especially at night and on weekends when they are the only social service
agency. See SILBERMAN, supra note 6, at 321.
61See GARRY WILLS, A NECESSARY EVIL: A HISTORY OF
AMERICAN DISTRUST OF GOVERNMENT 248 (1999) (citation omitted).
62See REID, supra note 57, 65 (5th
63See JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE
THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 129 (1993).
65See id. at 130.
66See E.X. BOOZHIE, THE OUTLAW'S BIBLE 15 (1988).
67 Private prosecution was not without costs to taxpayers.
The availability of free courtrooms to air grievances tended to promote
litigation. In 1804, the Pennsylvania legislature acted to allow juries to make
private prosecutors pay the costs of prosecution in especially trifling cases.
Act of Dec. 8, 1804 PL3, 4 Sm L 204 (repealed 1860). Private persons were
thereafter liable for court costs if they omitted material exculpatory
information from a grand jury, thereby causing a grand jury to indict without
knowledge of potential defenses. See Commonwealth v. Harkness, 4 Binn.
194 (Pa. 1811). This protection, like many others, was lost when police and
public prosecutors took over the criminal justice system in the twentieth
century. See United States v. Williams, 504 U.S. 36 (1992) (holding
prosecutor has no duty to present exculpatory evidence to grand jury).
68 In the American constitutional scheme, the states have
'general jurisdiction,' meaning they may regulate for public health and welfare
and enact whatever means to enforce such regulation as is necessary and
constitutionally proper. See, e.g., Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985), National League of Cities v. Usery, 426 U.S. 833
(1976) (both standing for the general proposition that states have
constitutional power to provide for protection, health, safety, and quality of
life for their citizens). See also Lawrence Tribe, American
Constitutional Law, §§ 6-3, 7-3 (2d ed. 1988). State and municipal
police forces can therefore be viewed as constitutional to the extent they
actually carry out the lawful enactments of the state.
69See infra notes 285-398 and their accompanying
70See Silas J. Wasserstrom, The Incredible
Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 347 (1984).
71See Jerome Hall, Legal and Social Aspects of
Arrest Without A Warrant, 49 HARV. L. REV. 566, 567 (1936).
73See id. at 567-71 (discussing earliest scholarly
references to the distinction). A 1936 Harvard Law Review article suggested the
distinction is a false one owed to improper marshalling of scholarship. See
id. (writing of "the general misinterpretation" resulting from a 1780 case
74See id. at 575 n.44 (citing the case of Beckwith
v. Philby, 6 B. & C. 635 (K. B. 1827)).
75See id. at 571-72. Although official right was
apparently considered somewhat greater than that of private citizens during
much of the 1700s, the case law enunciates no support for any such distinction
until Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850). It was
apparently already the common practice of English constables to arrest upon
information from the public in the 1780's. See id. at 572. The "earlier
requirement of a charge of a felony had already been entirely forgotten" in
England by the early nineteenth century. Id. at 573. According to Hall,
the only real distinction in practice in the early nineteenth century was that
officers were privileged to draw their suspicions from statements of others,
whereas private arrestors had to base their cause for arrest on their
own reasonable beliefs. See id. at 569.
76See Rohan v. Sawin, 59 Mass. (5 Cush.) 281, 285
78See 18 U.S.C. § 925 (a)(l) (2000) (exempting
government officers from federal firearm disabilities).
79See, e.g., CAL. PENAL CODE § 468 (West 1985)
(releasing police from liability for possession of sniper scopes and infrared
80See, e.g., FLA. STAT. CH. 338. 155 (1990).
81See, e.g., FLA. STAT. CH. 320.025 (1990) (allowing
confidential auto registration for police).
82See ARK. CODE ANN. § 20-22-703 (Michie 2000).
83See 18 U.S.C. § 1114 (amended 1994) (providing
whoever murders a federal officer in first degree shall suffer death).
84See CAL. PENAL CODE § 832.9 (West 1995).
85See, e.g., CAL. HEALTH & SAFETY CODE
§§ 199.95-199.99 (West 1990) (mandating HIV testing for persons
charged with interfering with police officers whenever officers request).
86See Electronic Communications Privacy Act, 18
U.S.C. 2511 (2000); United States v. Leon, 104 S. Ct. 3405 (1984).
87See Williams v. Poulos, 11 F.3d 271 (lst
88See, e.g., People v. Curtis, 450 P.2d 33, 35 (Cal.
1969) (speaking of the "[g]eneral acceptance" by courts of the elimination of
the right to resist unlawful arrest).
89See HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS
WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 53 (1981).
The statements of James Madison when introducing the proposed amendments to the
Constitution before the House of Representatives, June 8, 1789, also support
such a reading of the Bill of Rights. House of Representatives, June 8, 1789
Debates, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY
HISTORY OF THE BILL OF RIGHTS 1787-1792 647, 657 (David E. Young, ed.) (2d ed.
1995) (stating "the great object in view is to limit and qualify the powers of
90See STORING, supra note 89, at 48.
91See, e.g., MD. CONST. of 1776, art. I (declaring
that "all government of right originates from the people, is founded in compact
only, and instituted solely for the good of the whole"); MASS. CONST. of 1780,
art. I ("All men are born free and equal, and have certain natural, essential,
and unalienable rights"); N.H. CONST. of 1784, art. I ("All men are born
equally free and independent").
92See Coyle v. Hurtin, 10 Johns. 85 (N.Y. 1813).
93See Bad Elk v. United States, 177 U.S. 529 (1900).
94See Rex v. Gay, Quincy Mass. Rep. 1761-1772 91
(Mass. 1763) (acquitting assault defendant who beat a sheriff when sheriff
attempted to arrest him pursuant to invalid warrant).
95 See Wolf v. Colorado, 338 U.S. 25, 30 n. 1, 31 n. 2 (1948)
(citing cases upholding right to resist unlawful search and seizure).
96See Adams v. State, 48 S.E. 910 (Ga. 1904).
97See MD. CONST. of 1776, art. IV; N.H. Const. of
1784, art. X.
98See, e.g., State v. Kutchara, 350 N.W.2d 924, 927
(Minn. 1984) (saying Minnesota law does not recognize right to resist unlawful
arrest or search); People v. Curtis, 450 P.2d 33, 36 (Cal. 1969) (holding
California law prohibits forceful resistance to unlawful arrest).
99See, e.g., CAL. PENAL CODE § 243
(criminalizing the resistance, delay or obstruction of an officer in the
discharge of "any duty of his office"). CAL. PENAL CODE § 834(a) (1957)
("If a person has knowledge ... that he is being arrested by a peace officer,
it is the duty of such person to refrain from using force or any weapon to
resist such arrest").
100See, e.g., United States v. Charles, 883 F.2d 355
(5th Cir. 1989) (excusing as harmless error the failure of officers
executing warrant to have the warrant in hand during raid); United States v.
Cafero, 473 F.2d 489, 499 (3d Cir. 1973) (holding failure to deliver copy of
warrant to the party being searched or seized does not invalidate search or
seizure in the absence of prejudice); Willeford v. State, 625 S.W.2d 88, 90
(Tex. App. 1981) (upholding validity of search and seizure before arrival of
warrant). Not only has the requirement that officers show their warrant before
executing it been eliminated, but the requirement that officers announce their
authority and purpose before executing search warrants has been all but
eliminated. See Richards v. Wisconsin, 570 U.S. 385 (1997) (eliminating
requirement that officers be refused admittance before using force to enter the
place to be searched in many cases).
101See William A. Schroeder, Warrantless
Misdemeanor Arrests and the Fourth Amendment, 58 MO. L. REV. 771 (1993)
(discussing the erosion of requirements for arrest warrants in many
102See, e.g., Polk v. State, 142 So. 480, 481 (Miss.
1932) (striking down statute allowing warrantless arrest for misdemeanors
committed outside an officer's presence); Ex Parte Rhodes, 79 So. 462, 462-63
(Ala. 1918) (holding statute unconstitutional which allowed for warrantless
arrest for out-of-presence misdemeanors).
103See Schroeder, supra note 101, at 793.
104See Thor v. Superior Court, 855 P.2d 375, 380
(Cal. 1993) (saying the developing consensus "uniformly recognizes" a patient's
right to control his own body, stemming from the "long-standing importance in
our Anglo-American legal tradition of personal autonomy and the right of
self-determination.") (citations omitted). "For self-determination to have any
meaning, it cannot be subject to the scrutiny of anyone else's conscience or
sensibilities." Id. at 385.
105See Michael v. Hertzler, 900 P.2d 1144, 1145 (Wyo.
1995) (stating if a statute reaches a fundamental interest, courts are to
employ strict scrutiny in making determination as to whether enactment is
essential to achieve compelling state interest).
106 "[Only] the gravest abuses, endangering paramount
interests, give occasion for permissible limitation." Thomas v. Collins, 323
U.S. 516, 530 (1945). A "compelling state interest" is defined as "[o]ne which
the state is forced or obliged to protect." BLACK'S LAW DICTIONARY 282
(6th ed. 1990) (citing Coleman v. Coleman, 291 N.E.2d 530, 534
107 The American constitutional order grants to every
individual a privilege to stand his ground in the face of a violent challenger
and meet violence with violence. A "duty to retreat" evolved in some
jurisdictions, however, where a defender contemplates the use of deadly
force. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 461 (2d ed.
1986). But with police, the courts have never imposed a duty to retreat. See
id. This, combined with the recurring police claim that an attacker might
get close enough to grasp the officer's sidearm, has meant, in practical terms,
that an officer may repel even a minor physical threat with deadly force.
The effect of this exception for law enforcement officers has been to
grant an almost absurd advantage to police in 'self-defense' incidents. Not
only do cops have no duty to retreat, but they seem privileged to kill whenever
a plausible threat of any injury manifests itself. See infra, notes
115-147, and accompanying text. Cops — unlike the general public —
appear excused whenever they open fire on an individual who threatens
any harm — even utterly nonlethal — against them, such as a
verbal threat to punch the officer combined with a step forward. See
infra, notes 123-147, and accompanying text.
108See James J. Fyfe, Police Use of Deadly Force:
Research and Reform, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES
134-40 (George F. Cole & Mare G. Gertz eds., 7th ed. 1998).
109Id. at 135 (quoting Chapman and Crocket).
110See People v. Klein, 137 N.E. 145, 149 (Ill. 1922)
(reporting that "numerous" peace officers testified that shooting was the
customary method of arresting speeders during trial of peace officer accused of
111See id.; Miller v. People, 74 N.E. 743 (Ill. 1905)
(involving village marshal who shot and killed speeding carriage driver).
112See Fyfe, supra note 108, at 137.
113See id. at 140.
114See id. at 141 (table showing fatal shootings per
1,000 police officers, Philadelphia). A study of Philadelphia P.D. firearm
discharges from 1970 through 1978 found only two cases that resulted in
departmental discipline against officers on duty. See id. at 147 n.2.
One case involved an officer firing unnecessary shots into the air; the other
involved an officer who shot and killed his wife in a police station during an
argument over his paycheck. See id.
115 See Tennessee v. Garner, 471 U.S. 1 (1985).
116 471 U.S. 1 (1985).
117See Fyfe, supra 108, at 136.
118 The Garner decision has been interpreted in
different ways by different courts and law-making bodies. See Michael R.
Smith, Police Use of Deadly Force: How Courts and Policy-Makers Have
Misapplied Tennessee v. Garner, 1 KAN. J. L. & PUB. POL'Y, 100, 100-01
(1998). Smith argues that many of these interpretations stem from inaccurate
readings of Garner and that lower courts have failed to hold police
officers liable according to the standard required by the Supreme Court. See
119 On behalf of modern police, courts have adopted a
qualified immunity defense to police misconduct claims. Essentially, where cops
can justify by plausible explanation that their conduct was within the bounds
of their occupational duties, there is a "good faith" defense. See
Harlow v. Fitzgerald, 457 U.S. 800 (1982); Procunier v. Navarette, 434 U.S. 555
(1978); Imbler v. Pachtman, 424 U.S. 409 (1976); Wood v. Strickland, 420 U.S.
308 (1975). But as David Rudovsky points out, the "good faith" defense is an
artificial ingredient to normal tort liability. "The standard rule," notes
Rudovsky, "is that a violation of another's rights or the failure to adhere to
prescribed standards of conduct constitutes grounds for liability." David
Rudovsky, The Criminal Justice System and the Role of the Police, in THE
POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 248 (David Kairys ed., 1982). The
"good faith" defense for police is thus an artificial layer of tort immunity
protection not normally available to other types of litigants. Under the
standard rules of tort law, after all, a defendant's good faith, intent, or
knowledge of the law are irrelevant. See id. at 248.
120See Smith, supra note 118, at 117.
121See id. at 106.
122 Idaho v. Horiuchi, 215 F.3d 986 (9th Cir.
2000) (Kozinski, J., dissenting).
123 OCTOBER 22 COALITION TO STOP POLICE BRUTALITY ET AL.,
STOLEN LIVES: KILLED BY LAW ENFORCEMENT 307 (2d. ed. 1999) (hereinafter "STOLEN
LIVES") (saying officer shot and killed victim after victim 'made a move'
following a foot chase).
124See id. at 207 (listing a 1993 Michigan case).
125See id. at 262 (reporting 1990 Brooklyn case in
which cop had shot unarmed teenage suspect in back of head for allegedly
reaching into jacket).
126See id. at 250 (reporting 1996 New York case in
which man was shot 24 times by police while sitting in car with his hands in
the air); id. at 252 (reporting shooting of alleged car thief after
motion as if they were going for a gun').
127See id. at 262 (reporting 1990 Bronx shooting
precipitated by the decedent turning toward an officer as officer opened door
of decedent's cab).
128See id. at 263 (reporting 1988 New York case
initiated when a driver made illegal turn and ending with police pumping 16
bullets into her).
129See id. at 262 (reporting 1990 Brooklyn case in
which decedent was shot nine times while standing and twice in back while lying
130See id. at 240 (reporting a 1998 New York case).
131See id. at 232 (reporting 1991 New Mexico case).
132See id. at 220 (reporting 1998 Nevada case).
133See id. at 29.
134Id. at 44.
135Id. at 46. The possession of a wooden stick has
cost more than one person his life at the hands of police. See also id.
136Id. at 53.
137Id. at 53.
138See Detroit Police Kill Mentally Ill Deaf Man,
BOSTON GLOBE, Aug. 31, 2000 at A8.
139See STOLEN LIVES, supra note 123, at 57.
140See id. at 60.
141See id. at 62.
142See id. at 206 (listing a 1993 Michigan case). In
another Michigan case, a cop shot someone who merely had a VCR remote control
in his pocket, claiming he mistook it for a gun. See id. at 205.
143See id. at 305 (saying Houston police surrounded
truck and fired 59 times at victim as he sat in truck holding can opener). No
civilian witnesses saw the "shiny object" (can opener) police claimed they saw.
144 Police use of throwdown guns has been alleged across the
country. Guns which are introduced without a suspect's fingerprints when they
should have fingerprints, and guns that are found by police officers after an
initial, supposedly complete, search of a crime scene by other detectives, can
be said to raise questions about police use of throw-down guns. C.f. Joe
Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police
Officers Handled the Killing of One of Their Own. It Is a Case Flawed by
Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept.
11, 1994, at A1 (raising the issue in a San Diego case).
145See Webster v. City of Houston, 689 F.2d 1220,
1227 (5th Cir. 1982).
146Id. at 1222.
147See id. at 1221-23 (describing "damning" evidence
of official cover-up and police vindication as a matter of policy).
148See STOLEN LIVES, supra note 123, at 72. In
one 1987 Los Angeles case, a man was shot four times and killed when he picked
up a discarded pushbroom to deflect police baton blows. See id. 72.
149See id. at iv. In one particularly egregious case,
a police killing was upheld as beyond liability where officers shot a speeding
trucker who refused to stop. See Cole v. Bone, 993 F.2d 1328
(8th Cir. 1993). But see, e.g., Gutierrez-Rodriquez v.
Cartagena, 882 F.2d 553 (1st Cir. 1989) (affirming verdict against
plainclothes officers who shot driver who drove away); Sherrod v. Berry, 827
F.2d 195 (7th Cir. 1987) (affirming verdict against officers who
shot driver as driver reached into jacket pocket during questioning); Moody v.
Ferguson, 732 F. Supp. 176 (D.S.L. 1989) (rendering judgment against officers
who shot driver fleeing in vehicle from traffic stop).
150See Zuchel v. City and County of Denver, Colorado,
997 F.2d 730 (10th Cir. 1993).
151See Alison L. Patton, The Endless Cycle of
Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police
Brutality, 44 HASTINGS L. J. 753, 754 (1993) (saying plaintiffs rarely win
absent independent witnesses or physical evidence).
152See Peter L. Davis, Rodney King and the
Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 288
(1994). Prior to the 1900s, it was not uncommon for law enforcers who killed
suspects during confrontations to be placed on trial for their lives even when
they reacted to violent resisters. See United States v. Rice, 27 F. Cas.
795 (C.C.N.C. 1875) (No. 16,153) (involving deputy United States Marshall on
trial for murder of tax evasion suspect); State v. Brown, 5 Del. (5 Harr.) 505
(Ct. Gen. Sess. 1853) (fining peace officers for assault and false
imprisonment); Conner v. Commonwealth, 3 Bin. 38 (Pa. 1810) (involving a
constable indicted for refusing to execute arrest warrant). Even justices of
the peace could be criminally indicted for dereliction of duties. See
Respublica v. Montgomery, Dall. 419 (1795) (upholding validity of a criminal
charge against a justice of the peace who failed to suppress a riot).
153See Davis, supra note 152, at 290 (noting
the hopeless conflict of interest in handling police violence complaints).
154 For an overview of the powers of early grand juries to
accuse government officials, see Roger Roots, If It's Not a Runaway, It's
Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).
155See Steiker, supra note 3, at 836 (saying
police excesses such as beatings, torture, false arrests and the third degree
arc well documented).
156See STOLEN LIVES, supra note 123, at
157See International Secretariat of Amnesty
International, News Release, From Alabama to Wyoming: 50 Counts of Double
Standards — The Missing Entries in the US Report on Human Rights, Feb.
158See STOLEN LIVES, supra note 123, at iv.
159See id. at v.
160 Certain examples demonstrate. FBI agents in Elizabeth,
New Jersey shot 38 times inside an apartment to kill an unarmed man who they
first tried to say had fired first. See id. at 226. In February 1999,
Bronx police fired 41 bullets at an unarmed African immigrant in his apartment
doorway. See id. at 234. After this unlawful killing, cops unlawfully
searched the decedent's apartment to justify shooting, failing to find any
evidence of drugs. See id. In August 1999, Manhattan cops fired a total
of 35 shots at alleged robber (who probably did not fire), injuring bystander
and sending crowds fleeing. See id.
161 Most states that allow the death penalty require that
aggravating factors exist before imposition of capital punishment. See,
e.g., IDAHO CODE § 19-2515 (1997) (allowing death penalty for crimes
involving "especially heinous, atrocious or cruel, [or] manifesting exceptional
depravity" or showing "utter disregard for human life"); TEX. CRIM. P. ANN.
§ 37.071 (West 1981) (listing factors such as whether the crime was
"unreasonable in response to the provocation"); WYO. STAT. ANN. § 6-2-102
(Michie 1999) (allowing death penalty only upon a finding of aggravating
factors such as a creation of great risk of death to two or more persons or for
"especially atrocious or cruel" conduct).
162 The earliest attempts at professionalization of
constables failed in the United States due to insufficiency of public funds.
See Steiker, supra note 3, at 831. Some of the earliest U.S.
Supreme Court decisions regarding police forces involve disputes over municipal
police spending. See, e.g., Louisiana ex rel. Hubert v. New Orleans, 215
U.S. 170 (1909) (resolving dispute over debts run up by municipal police
district); New Orleans v. Benjamin, 153 U.S. 411 (1894) (involving dispute over
unbudgeted debts run up by New Orleans police board); District of Columbia v.
Hutton, 143 U.S. 18 (1891) (dealing with salary dispute involving District of
Columbia police force).
163See FRIEDMAN, supra note 58, at 362 (1993).
Dallas police, for example, arrested 8,526 people in 1929 "on suspicion" but
charged less than five percent of them with a crime. See id.
164 The infamous case of Brown v. Mississippi, 297
U.S. 278 (1936), provides a grim reminder of the torture techniques that have
been employed upon suspects during the past century. In Brown, officers
placed nooses around the necks of suspects, temporarily hanged them, and cut
their backs to pieces with a leather strap to gain confessions. Id. at
165 FRIEDMAN, supra note 58, at 151 n.20 (quoting
George S. McWatters, who studied New York detectives in the 1870s).
166See TITUS REID, supra note 57, at 122 (citations
167See Peter B. Kraska & Victor E. Kappeler,
Militarizing American Police: The Rise and Normalization of Paramilitary
Units, 44 SOC. PROBS. 1, 11 (1997).
168 One-hundred-seventeen federal, state, and local officers
were killed feloniously in 1996 — the lowest number since 1960. See
Sue TITUS REID, supra note 57, at 123.
169See National Institute for Occupational Safety and
Health, Violence in the Work Place, June 1997.
171 Approximately 40 percent of police deaths are due to
accidents. See TITUS REID, supra note 57, at 123.
172See National Institute for Occupational Safety and
Health, Fatal Injuries to Workers in the United States, 1980-1989: A Decade
of Surveillance 14 (April 15, 1999); Robert Rockwell, Police Brutality:
More than Just a Few Bad Apples, REFUSE & RESIST, Aug. 14, 1997
(describing the "cultivation of the myth of policing as the most dangerous
173See id. at 13.
174See SKOLNICK & FYFE, supra note 63, at
175See Hall, supra note 71, at 582-83
(describing early constables as "[a]bominably paid").
176C.f. STOLEN LIVES, supra note 123, at v
(saying when police arrive on the scene, they often escalate the situation
rather than defuse it).
177See STOLEN LIVES, supra note 123, at vi.
178See, e.g., Brandon v. City of Providence, 708 A.2d
893 (R.I. 1998) (finding municipality immune from liability when cops prevented
relatives of injured shooting victim from taking victim to the hospital before
victim died). See also Stolen Lives, supra note 157, at 305
(saying Tennessee police prevented fire fighters from saving victim of fire in
1997 case). Other notorious examples can be cited, including the 1993 Waco fire
(in which fire trucks were held back by federal agents) and the 1985 MOVE
debacle in Philadelphia in which police dropped a bomb on a building occupied
by women and children and then held back fire fighters from rescuing bum
victims. See WILLIE L. WILLIAMS, TAKING BACK OUR STREETS: FIGHTING CRIME
IN AMERICA 16 (1996) (saying investigative hearings revealed cops had held back
rescuers as a 'tactical decision').
179See SKOLNICK & FYFE, supra note 63, at
75 (citing U.S. Civil Disorder Commission study).
180See SKOLNICK & FYFE, supra note 63, at
83 (describing police riots at Columbia University and Los Angeles).
181See RIGHTS IN CONFLICT: THE OFFICIAL REPORT TO THE
NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE xxiii, xxvi
182See John D. Bessler, The Public Interest and
the Unconstitutionality of Private Prosecutors, 47 ARK. L. REV. 511 (1994)
(attacking private prosecution as unfair, arbitrary, and not in the public
183See Hall, supra note 71, at 580-85
(detailing inadequacies of private law enforcement).
184See United States v. Wong, 431 U.S. 174 (1977)
(holding Miranda requirements do not apply to a witness testifying before a
grand jury); United States v. Calandra, 414 U.S. 338 (1974) (holding grand jury
witness may not refuse to answer questions on ground that they are based on
evidence obtained from unlawful search); United States v. Dionisio, 410 U.S. 1
(1973) (holding seizure of a person by subpoena for grand jury appearance is
generally not within Fourth Amendment's protection).
185See Richard M. Brown, Historical Patterns of
Violence in America, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF
VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 57
(Graham & Gurr, ed. 1969).
186See State v. Walker, 32 Me. 195 (1850) (upholding
actions of the private group).
187 See United States v. Whittier, 28 F. Cas. 591 (C.C.E.D.
188See supra notes 438-445 and accompanying text for
a discussion of the evolution of entrapment as a law enforcement practice.
189See Richard Maxwell Brown, The American
Vigilante Tradition, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF
VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 57
(Graham & Gurr, dir. 1969).
190See JAMES S. CAMPBELL, ET AL., LAW AND ORDER
RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT 441 (1970)
(discussing successes of citizen auxiliary units in Queens, New York and other
191See id. 437-54 (1970) (discussing successes of
citizen involvement in law enforcement).
192 American frontier vigilantism generally targeted serious
criminals such as murderers, coach robbers and rapists as well as horse
thieves, counterfeiters, outlaws, and 'bad men.' See NATIONAL COMMISSION
ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND
COMPARATIVE PERSPECTIVES 97 (Graham & Gurr, dir. 1969). Arguably, such
offenders qualified as felons and would have faced the death penalty under the
common law even if more conventional court processes were followed. That such
vigilante movements often followed rudimentary due process of law is attested
by historians such as Richard Maxwell Brown, who recounts that "vigilantes'
attention to the spirit of law and order caused them to provide, by their
lights, a fair but speedy trial." Richard Maxwell Brown, supra note 189,
at 164. The northern Illinois Regulator movement of 1841, for example, provided
accused horse thieves and murderers with a lawyer, an opportunity to challenge
jurors, and an arraignment. See id. at 163. At least one accused
murderer was acquitted by a vigilante court on the Wyoming frontier.
See Joe B. Frantz, The Frontier Tradition: An Invitation to Violence,
in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE
IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 129-30 (Graham & Gurr,
dir. 1969). Many accused were let off with whipping and expulsion rather than
execution in the early decades of vigilante justice. See Brown,
supra note 189, at 164. Less than half of all vigilante groups ever
killed anyone. See id. Ironically, the move by vigilante groups toward
killing convicted suspects began in the 1850s, — corresponding closely
with the meteoric rise of professional policing. See id.
Vigilante movements occasionally developed to rescue the law from
corrupt public officials who were violating the law. The case of the vigilantes
who arrested and hanged Sheriff Henry Plummer of Virginia City, Montana in 1864
is such an example. See LEW L. CALLAWAY, MONTANA'S RIGHTEOUS HANGMEN
(1997) (arguing the vigilantes had no choice but to take the law into their own
193 "[T]he Western frontier developed too swiftly for the
courts of justice to keep up with the progression of the people." Joe B.
Frantz, supra note 192, at 128. Vigilante movements did little more than
play catch-up to what can only be described as rampant frontier lawlessness.
Five-thousand wanted men roamed Texas in 1877. See id. at 128. Major
crimes often went totally unprosecuted and countless offenders whose crimes
were well known lived openly without fear of arrest on the western frontier.
See id. Vigilantes filled in only the most gaping holes in court
jurisdiction, generally (but not always) intervening to arrest only the
perpetrators of serious crimes. See id. and at 130 (saying "improvised
group action" was the only resort for many on the far frontier).
194 David H. Bayley & Clifford D. Shearing, The Future
of Policing, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 150, 150
(George F. Cole & Marc G. Gertz, eds., 7th ed. 1998).
195See id. at 151, 154.
196 Tucker Carlson, Washington's Inept Police Force,
WALL ST. J., Nov. 3, 1993, at A19.
197See SILBERMAN, supra note 6, at 297.
Silberman points out that New York City police solved only two percent of
robbery cases in which a witness could not identify an offender or the offender
was not captured at the scene. See id.
198 See id. at 296 (saying clearance rate dropped
precipitously between 1960 and 1976 as proportion of crimes committed by
199See id. (citing figures registered between 1960
200See id. at 296.
201See Laura Parker & Gary Fields, Unsolved
Killings on Rise: Percent of Cases Closed Drops From 86% to 69%, USA TODAY,
Feb. 22, 2000, at A1.
203See BARRY SCHECK, ET AL., ACTUAL INNOCENCE 175
204 428 U.S. 153 (1976) (finding death penalty constitutional
so long as adequate procedures are provided to a defendant).
205See SCHECK, supra note 203, at 218.
206See Illinois Governor Orders Execution Moratorium,
USA TODAY, Feb. 1, 2000, at 3A.
208See SCHECK, supra note 203, at 218 (noting
an average of 4.6 condemned people per year have been set free after 1996,
while only 2.5 death row inmates per year were freed between 1973 and 1993).
209See id. at xv (noting these 5,000 exonerations
came from only the first 18 thousand results of DNA testing at crime
laboratories — a rate of almost 30% exonerated).
210C.f. id. at 180 (detailing indictment of four
officers for perjury and obstruction of justice in the wake of one DNA
211 DNA testing has proven that at least 67 people were sent
to prison or death row for crimes they did not commit. See id. at xiv.
This number grows each month. See id.
212C.f. Morgan Cloud, The Dirty Little Secret,
43 EMORY L. J. 1311, 1311 (1994) (saying "[p]olice perjury is the dirty little
secret of our criminal justice system").
213See BURTON S. KATZ, JUSTICE OVERRULED: UNMASKING
THE CRIMINAL JUSTICE SYSTEM 77-86 (1999).