Constitutional and Administrative Standards Regulating Police Uses of Force

There is a fundamental misalignment between what the Fourth Amendment is thought to regulate and what it actually regulates, and there are good reasons to doubt the efficacy of that regula on even when it applies. The Fourth Amendment, in short, is a profoundly flawed framework for regula ng police violence.

The Fourth Amendment is not the only option. Where the constitution regulates seizures, state law regulates violent acts, and police agency policies regulate officer/civilian interac ons. Despite these different regulatory goals, the Fourth Amendment’s flawed framework has spilled over into state law and agency policy. A number of state judicial decisions reference the constitutional standards when applying or interpre ng state statutory or common law, with some explicitly incorpora ng cons tu onal jurisprudence into state law. And many police agency policies borrow heavily or quote directly from Fourth Amendment caselaw, “over-rely[ing] on reci ng the basic constitutional standard for police engagements without providing key protec ons for citizens.”

This presentation will identify shortcomings in the constitutional regulation of police uses of force, problematic spillages into state law and agency policy, and explore soluti ons.

• Seth Stoughton, J.D., Associate Professor, University of South Carolina School of Law

How Effective Are Police?

Crime rates have fallen in the last thirty years, and in the last ten years arrests have even fallen nationallly. Despite the remarkable decrease in criminal activity and arrest rates, the number of crimes solved by police has actually gone down. Crimes solved, otherwise known as “clearance rates,” have decreased over the last 100 years and have remained steady or slightly decreased in the last ten years. So even though police are making less arrests and crime rates are lower, we have not improved at solving crimes. A few scholars have debated why clearance rates have gone down over time. While this is an important query, it is not the topic of this Article. What this Article aims to address is the dearth of scholarship on the issue that clearance rates are so low and what that means for America. Given the improvements in technology, the supposed freeing of police resources with decreased crime rates and arrests, and the ability to monitor given the rise of big data, it is surprising to note that clearance rates are still so low—and have gotten lower. Taking into account the prevalence and the number of crimes solved by police, the number of resolved crimes in America is much lower than is reported—and much lower than scholars or the public realize. For instance, according to calculations revealed in this article, in recent years, 93% of robbers, 97% of burglars and 63% of murderers got away with their crime.

Indeed, criminal accountability is important for the assumption of law and order. Nevertheless, the lack of criminal accountability in American criminal justice has barely received even a sidenote by scholars or the media. After accounting for the low rate of criminal accountability, the article goes on to explain the problems caused when crimes are not solved in hopes of shedding scholarly light on this quandary. It further attempts to determine how low criminal accountability should affect current positions on criminal punishment and mass incarceration.

• Shima Baradaran-Baughman, J.D., Professor, University of Utah College of Law

Community Advisory Boards: Lessons from a National Survey

Community Advisory Boards (CABs) are one of the most common forms of police-community engagement bodies in the country. Both progressive law enforcement leaders and proponents of civilian oversight frequently cite a range of potential benefits of CABs to both police and the communities they serve. As a result, CABs continue to grow across the country.

This interest in CABs has continued with insufficient study and evaluation of whether CABs actually play any meaningful oversight or community-engagement role. In order to assess this, the Policing Project has conducted an in-depth, national study of CABs.

We catalogued all the CABs we could find, followed by in-depth research on a sample of forty-seven CABs from a wide variety of jurisdictions. Relying on online resources, we looked at what led to their inception, what powers or responsibilities they had, which topics were discussed during meetings, their relationship with the police and with the community, their apparent effectiveness, and any other distinguishing features. From this initial pool of forty-seven, we identified fourteen cities that both had active CABs and were diverse along a variety of dimensions, including region, agency size, and demographic makeup. We interviewed members of the CABs, police officials, community leaders, and local city councilmembers to discuss the day-to-day operation of these boards. Finally, we conducted site visits in a select number of cities across the country, observing directly how CABs operated and impacted police-community relations. We talked frankly with CAB members and police officials about what works, what doesn’t, and how to improve CABs generally. We also sat in on CAB meetings, observing how people interacted, and evaluating the work product.

• Julian Clark, J.D., Policing Project Fellow, Policing Project at the NYU School of Law

Sheriff Gangs

For almost fifty years, The Los Angeles Sheriff's Department (LASD) and Los Angeles Police Department (LAPD) have contained gangs or "cliques" operating out of local police departments. In the 1990, the press extensively covered LASD white supremacist cliques which appeared to operate with impunity throughout the ‘80s and ‘90s. By 2000, reporters identified several gangs which operated out of Men’s Central Jail, and many others that operated out of different stations. These gangs have names like the Wayside Whites and the Vikings, the Regulators, the Jump Out Boys, the Grim Reapers, the Cavemen, the Pirates and Buffalo Soldiers, Banditos, and the Cowboys. Some of these gangs are organized around race. All of them have menacing tattoos, and operate under a code of secrecy, distrust of management, “othering” community members, and lauding uses of force, especially shootings. A common theme of “us against them” runs throughout all the cliques, regardless of which station or decade is being covered.

County officials' response to the presence of gangs addresses only potential civil liability and administrative or personnel concerns. That response ignores the significant threat that LASD deputy cliques pose to the criminal justice system. LASD deputy cliques have engaged in acts of racial prejudice, corruption, escalation of uses of force, a code of silence, filing false police reports, and perjury in court. Given this history the prosecution has an obligation to disclose to the defense whether its witnesses have participated in a deputy clique, and prosecutorial suppression of that information violates due process.

• Eric Miller, LL.M., Professor and Leo J. O’Brien Fellow, Loyola Law School

This session was moderated by Florence Finkle, J.D., NACOLE Board Member and Law Enforcement Accountability and Oversight Consultant