Why I'm Lukewarm on the ALI's "Principles of the Law: Policing"

Thoughts on a debate that will be held at the ALI Annual Meeting.

|The Volokh Conspiracy |

For the last four years, I have been serving as an Adviser to an ongoing American Law Institute project, Principles of the Law: Policing.  This week, the ALI membership is considering key parts of the Principles at its Annual Meeting in Washington, D.C. I can't make it to the Annual Meeting, so I figured I would explain here some of my concerns with the Principles.  My concerns leave me lukewarm on the project, including some of the key parts to be considered this week.

Let me start with the big picture.  The ALI is perhaps best known for its Restatements of the law and the Model Penal Code.  The Principles is more like the Model Penal Code than Restatements.  It is an effort to develop normative principles of how police agencies should do their jobs.  That's a tricky goal because the law of policing in the United States is primarily federal constitutional law—and in particular Supreme Court interpretations of the Fourth and Fifth Amendments.  Federal constitutional law sets the floor, and legislatures, state courts, and policing departments are then free to add additional restrictions as they feel appropriate.

The basic goal of the Principles is to set out ways in which the ALI thinks that the police should restrict themselves beyond what existing law requires.  And I think it's fair to say that the Principles reflects the views of its Reporters, and selected Advisers, that the Supreme Court's interpretations of the Constitution don't go nearly far enough in restricting police practices.  The Principles therefore set out to recommend a set of best practices that they feel the police should follow that go beyond the restrictions that the Supreme Court has required under the Constitution.

That basic idea of recommending non-constitutional limits on policing practices is certainly commendable.  Indeed, the role of non-constitutional limits on policing is a theme of my own academic work.  But my main difficulty with the Principles is that it tries to impose a one-size-fits-all answer on some really hard problems.  It reflects a particular view of what limits would be appropriate for all policing, and it recommends that all police departments adopt those limits.

My own view of policing is more cautious.  I'm not sure that one-size-fits-all works beyond the constitutional floor.  There is an incredibly broad range of police agencies in the United States.  There are federal agencies, state agencies, and local agencies.  Some agencies are enormously large, and others are very very small.  Some have broad mandates, and others have very narrow ones.  In some areas, like eyewitness identification, we have social science that leads to useful rules to recommend.  But in most areas, we don't.  And I'm skeptical that it works to recommend a single set of rules for every agency outside that context.

My concerns often leave me unsure of whether a significant number of the rules proposed by the Principles are wise.  Some of the rules strike me as sound.  Others are probably useful in some settings.  A few of the rules may be good guidance in some settings but I think go too far in other settings.

All of this leaves me playing Justice Harlan to the Reporters' criminal procedure revolution, unable to be on board some of the key recommendations that the Principles make.

This is all rather abstract, so let me turn to examples.  The draft under consideration this week is 162 pages long, and the ALI may threaten legal action if I post it, so unfortunately I can't show the full draft.  But I want to run through the provisions that most implicate the concerns I have.  I'll start with some of the sections on search and seizure. I'll then turn to the Miranda interrogation rules.

Section 4, The Search and Seizure Rules

Let's start with Section 4.03, which discusses when the police should stop and arrest individuals and how they should interact with people when they do.  This section reflects the concerns of procedural justice theory, which focuses on perceptions of police legitimacy and trust in policed communities. In light of those concerns, this section contends that police citizen encounters should generally be limited.  "[A]gencies should limit the overall use of initial encounters, stops, and arrests, to circumstances in which they directly promote public safety and minimize harm to the public."  And when officers take such actions, they should explain to individuals what they are doing and why to ensure that the police action is likely to be deemed fair:

Officers should establish the legitimacy of their encounters with members of the public by treating individuals with dignity and respect, explaining the basis for the officers' actions, giving individuals an opportunity to speak and be heard, and engaging in behaviors that convey neutrality, fairness, and trustworthy motives.

This is usually good advice.  But should it always be required?  Procedural justice is important, but I'm not sure it needs to apply to every police citizen interaction to achieve its benefits.

Similarly, Section 4.04 limits police questioning during a Terry stop to inquiries "necessary to investigate the crimes or violations for which the officer has reasonable suspicion, or as necessary to ensure officer safety."  The officer shouldn't stop a person for one reason and then ask questions that aren't necessary to investigate the matter that provided the constitutional justification for the stop.

This is done to prevent pretextual stops, the comments explain.  Without such limits on questioning, "those secondary intrusions may themselves become the goal of  the stop, leading to unnecessary and perhaps unnecessarily intrusive encounters between officers and the public." (The Reporter's Notes suggest that section is merely a summary of existing Fourth Amendment law, but that's not correct: The Supreme Court expressly rejected this rule in Muelher v. Mena.  This limit on questioning would be a major shift in practice.)

I understand the concerns with pretextual stops.  But I would think there are at least some circumstances when we would want them, and when we would want questioning outside the justification for the stop.  For example, say there has been a string of recent robberies in the neighborhood, and the officer pulls over a car for speeding.  The driver seems to match the rough description of the participants in the robbery, but there isn't enough evidence that creates proper reasonable suspicion to detain the driver for those crimes.  Is it clear that we don't want the officer to ask any non-speeding questions in that situation?

Next, the black letter rule of Section 4.06 suggests that police agencies should consider adopting a rule that officers cannot ask for consent unless they first have reasonable suspicion.  The comments to the rule replace this suggestion with a more categorical rule: "Officers should not seek consent to conduct a search unless they have reasonable suspicion to believe that the search will turn up evidence of a crime and unless they can explain to the individual why they would like to conduct a search."  Again, this is often a good approach.  But won't there be many circumstances when an officer has suspicions that don't amount to "reasonable suspicion"?  And should we want officers to be categorically barred from asking for consent in those circumstances?

Similarly, Section 4.07, on search incident to arrest, would prohibit full searches of a person incident to arrest unless "there is reasonable suspicion to believe that the arrestee is concealing a weapon or evidence that would not be uncovered through a pat-down search."   Again, the goal seems to be to avoid pretext searches: Agencies should enact policies on searches incident to arrest so that such searches "are not used as pretext to  look for evidence of a crime or violation that is unrelated to the offense for which the individual was arrested."  I agree that, in some cases, such pretexts will be harmful.  But are they always harmful?  I wouldn't think so.

Chapter 11, the Miranda/Interrogation Rules

The materials on interrogations take some steps that I find troublesome.  Let me focus on two.

Section 11.03 discusses when Miranda warnings should be given.  The rule states: "Officers should inform suspects of their right to refrain from answering and their right to counsel, and ensure that any waivers of those rights are meaningfully made." At first that seems unobjectionable, as it's basically Miranda law but with a higher pre-Berghuis  waiver standard.

But if I'm reading the materials correctly, there appears to be something very different going on.  As I understand Chapter 11, officers are supposed to inform people of these rights whether or not they are in custody, and indeed whether or not they are suspects at all. That's a rejection of the basic idea of Miranda, which was that warnings were required only when a suspect is in custody.

Here's what the comments say, in Section 11.01, about why, as the Reporter's notes put it, the Principles aim to "move beyond the unwieldy concept of custody" in interrogation law:

A detailed body of constitutional law applies to police questioning of suspects. One important area of constitutional law—the Miranda doctrine—draws a line by asking whether a person is deemed to be in "custody." See Miranda v. Arizona, 384 U.S. 436, 444 (1966). . . .  The focus in constitutional law on the issue of "custody" can be quite formalistic, and remote from the concerns that motivate these Principles. For example, an innocent person who is not formally in custody still may face great pressure to confess falsely. A vulnerable person, such as a juvenile or mentally ill person, may receive unfair treatment that implicates concerns of legitimacy, even if not considered a suspect and not formally deemed to be in custody during the questioning. That said, the concerns with accuracy, coercion, and legitimacy may well be greater in the settings in which more formal custodial questioning occurs. No matter in what form or setting questioning occurs, police professionals ought to have an abiding interest in getting it right. Thus, these Principles do not take as their starting place the line between custodial and noncustodial interviews. Rather, the focus is on obtaining accurate statements with minimal coercion.

So if I'm reading the Principles correctly, everyone gets Miranda warnings.  It seems that suspects and non-suspects,  those in custody and those out of it, all receive the same warnings.  And people questioned are required to be informed that they have a right to counsel to be present for questioning even when they have no such rights—as they don't unless they're being interrogated in custody, when Miranda provides it.  Do we really want the police to always give Miranda warnings any time they ask questions to people?  That seems a quite remarkable legal rule.

One last example.   Section 11.04 explains how interrogations should be conducted.  It states:

When questioning individuals, officers should:

(a) minimize the length of questioning;

(b) avoid leading questions and disclosing details that are not publicly known;

(c) avoid threats of harm to the individual or others or, conversely, avoid making promises of benefits to the individual or others;

(d) avoid the use of deceptive techniques that are likely to confuse or pressure  suspects in ways that might undermine accuracy of evidence;

(e) ensure the individual has access to basic physical and personal needs, including food, water, rest, and restrooms; and

(f) not question the individual in an environment that is unduly uncomfortable.

The comments to the rule explains that the point is to minimize the coercive nature of police questioning, both to avoid false confessions and to respect the dignity of those questioned.  And some of these are certainly good rules.

But others seem overly restrictive, at least assuming the requirement to "avoid" those facts is meant as a serious limit and not just a small thumb on the scale.  For example, is it necessarily problematic for the police to ask leading questions?  ("You killed him, didn't you?") Isn't it often useful and unproblematic to provide details that are not publicly known?   ("Your husband was shot today in his driveway by someone at point blank range. I regret to tell you that he died. Do you know anything about it?") Are deceptive techniques that might "pressure" suspects necessarily problematic?  ("Your friend just confessed and says you pulled the trigger, what do you have to say about that?")

Of course, interrogators should be aware of the risks that these techniques may pressure suspects in ways that lead to problematic interrogations.  But those same techniques may be very effective, and I'm skeptical that the right line between permitted and banned is a general rule that those techniques should be avoided.

I don't know if my concerns will resonate with the broader ALI membership.  But I thought I would raise them for members and others who may be interested.

 

 

 

 

 

 

 

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31 responses to “Why I'm Lukewarm on the ALI's "Principles of the Law: Policing"

  1. “And should we want officers to be categorically barred from asking for consent in those circumstances?”

    I would say, yes, because while legal professionals may be aware that they can say “no” when asked for consent, your everyday citizen does not seem to be aware of that, and with good reason; Police will almost always have enough discretion to make your life unpleasant if you don’t agree to a “voluntary” search.

    “As I understand Chapter 11, officers are supposed to inform people of these rights whether or not they are in custody, and indeed whether or not they are suspects at all. That’s a rejection of the basic idea of Miranda, which was that warnings were required only when a suspect is in custody.”

    Similarly, while you’re theoretically entitled to walk away from an officer unless “in custody”, you know that as a practical matter, you aren’t really, because the officer will be able to make things go badly for you if you do.

    So, back in the real world, if an officer of the law is talking to you, you ARE “in custody” for the duration of the conversation, until HE decides it’s over. And that’s so regardless of whatever theoretical right you might have to walk away.

    The recommendations you object to seem to be taking cognizance of such realities.

    1. To give an example of the latter case, I was in an auto accident recently. An officer “requested” that I stick around. He didn’t “arrest” me. I still hung around for close to an hour while he worked on some paperwork. Even though I wanted nothing more than to go home and take some pain pills. (I’d cracked a rib in the accident, as it happened.)

      Was I free to depart? Theoretically yes. As a practical matter, only if I wanted a much, much more serious ticket than I ended up getting, and we both knew that.

    2. As I was reading through the hypotheticals in the Search and Seizures Rules section above, I answered every one of the “should we want officers to be categorically barred from…” with “Yes.” If an officer can’t even meet the minimal standard of reasonable suspicion, it’s time the squad car and head to the donut shop.

      As dwb68 points out above, however, I’d trade a lot of those restrictions for better accountability. Get rid of qualified immunity and hold them accountable to the same standards that they hold us to and a lot of these problems go away.

      1. Apologies. That was intended as a stand-alone comment. I don’t know why the squirrels posted it as a reply.

      2. I agree.

        But won’t there be many circumstances when an officer has suspicions that don’t amount to “reasonable suspicion”?

        Yes, there will. An those are exactly the circumstances where the search should not take place. Because those not-reasonable suspicions are themselves suspicious.

    3. I would agree here, police should categorically never be allowed to ask for consent.

      The idea that there can be valid consent when citizens are interacting with armed agents of the state is a bad joke. Any consent given is necessarily given under duress and as such should be considered legally void.

      1. There’s an easy way to address that one. The policeman can hand his gun over to the citizen, and then ask – and tell the citizen that either way he gets to keep the gun, but that he can turn it in to any police station if he doesn’t want to keep it.

    4. I couldn’t agree more.

      Let’s be realistic about what actually happens, and how much “reasonable” people who don’t happen to be lawyers know, when discussing this stuff.

  2. I think that what people claim that they want is restrictions on police, when fact what they really want is accountability. Qualified immunity and police union contracts have removed any accountability.

    1. It’s true that with more accountability, you could get by with less restrictions, because police would be risking something by abusing their power.

    2. Police have close to no personal legal accountability.

      My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.

      https://www.nyulawreview.org/issues/volume-89-number-3/police-indemnification/

  3. As someone who has been-there-done-that (both search and seizure [in residences, not vehicles], and interrogations), I’d say these are generally good principles BUT it always comes down to training and experience.

    Obviously well trained and fully experienced investigators can better “read” the situation and act accordingly.

    Poorly trained or those with little experience investigators simply can’t handle unexpected twists, strong-willed suspects, etc.

    Fun story!

    For this line: (e) ensure the individual has access to basic physical and personal needs, including food, water, rest, and restrooms….

    I was in an overseas location and we had just taken custody of a wanted international drug dealer.

    Our office was grilling that day (burgers, dogs, etc), so we provided him with a burger and Mountain Dew, and then had to accompany him to the bathroom (#1 while handcuffed is not easy!).

  4. Seems like a lot for a cop to remember under many different circumstances and sometimes considerable stress.

    1. Maybe there’s a general underlying principle, such as, “Don’t impose on citizens any more than you have a sound basis for.”?

      1. Or the shortened version, “don’t be a dick.”

    2. That’s why they’re supposed to train, and train, and re-train.

      That’s also why not everyone can pass the vetting for law enforcement.

  5. “Is it clear that we don’t want the officer to ask any non-speeding questions in that situation?”

    I vote for yes.

  6. “Is it clear that we don’t want the officer to ask any non-speeding questions in that situation?”

    I think that this is a dangerous framing. It ought to be clear that sometimes we want to violate a defendant’s constitutional rights. So we should ask, given that we might want to detain a person for one thing and then ask him about another, do we have the right to do that?

    1. I think that this is a dangerous framing. It ought to be clear that sometimes we want to violate a defendant’s constitutional rights.

      But I don’t think even the ALI is trying to suggest that there’s anything constitutionally suspect about the questioning, so I’m not sure that your framing offers a lot of insight.

    2. I’m not sure if you recognize U.S. Supreme Court decisions in interpreting the Fourth Amendment, but the Supreme Court has said that the answer is yes. See Muehler v. Mena, cited above.

      1. Why should he care that SCOTUS said yes? He was speaking to what he thought ought to be, not to what is. They aren’t the same thing.

  7. How about “do unto others as you would have them do unto you” as a guiding principle?

  8. I respect Prof. Kerr’s thinking and positions, but until qualified immunity is eliminated my default position on judgment calls disfavors law enforcement agents, especially with respect to operating authority.

    1. AK made an on-topic substantive comment? Quick, someone check the temperature in hell!

      1. It’s freezing down here!!!

        1. That’s just because the Cubs won. Now that they have the news about Kirkland, they’ll lower the temperature even more.

          1. Well, that’s deplorable

  9. “But won’t there be many circumstances when an officer has suspicions that don’t amount to “reasonable suspicion”?”

    Sure.

    “And should we want officers to be categorically barred from asking for consent in those circumstances?”

    Yes, duh.

    If armed agents of the state go around asking people to “consent” to searches based on *unreasonable* suspicion, then we’re a police state.

  10. I understand Orin Kerr’s concerns here. I share his concern that we don’t want police to be less effective, especially when it comes to investigating very serious crimes.

    That said, I think the use of deception and lying by the police, for example, just goes too far. And I would say the same for pre-textual stops. Probably, such tactics ought to be reserved for violent felonies only.

    One problem I have with giving police a license to lie to the public is that we then expect them to always tell the truth when in court. My intuition is that police officers who lie to the public are also more likely to lie in court. And to be similarly dishonest in police reports. I am not saying that police are not usually able to distinguish these situations, but that probabilistically, a person who becomes a skilled liar, through training or otherwise, is more likely to deploy that skill to advance their own interests, and not just the public interest.

    A stop is a significant assertion of power. For this power to be deployed pre-textually obviously increases the power of police. And, if it was necessary to catch a serial killer, who wouldn’t be grateful? But, pre-textual stops also empower not only legitimate investigations, but also prejudice and discrimination. And again, it is a sort of deceptive tactic, which I think might lead to the wrong sort of integrity-degrading mindset among some subset of the police.

    I also believe that these sorts of deceptive tactics go against the spirit of the law. It is a crime to lie to investigators, but it is not a crime for them to lie to you. I think there is no justification for such an asymmetry.

  11. Reading through the rest of the comments, there seem to be some themes emerging. I think the general consensus is that there is not enough police accountability. I agree with that. We have read enough stories about police fired from one agency only to be rehired to another and also for police being reinstated after serious misconduct or not held accountable at all.

    I too think that qualified immunity is a major problem.

    Another problem is the war on drugs. We have made what is a public health issue into a criminal justice issue. And it hasn’t had great results, either in the United States or other countries. We really are just unintentionally subsidizing violent organized crime. And as economists will tell you, if you subsidize something, you get more of it.

    Also, the nature of the crime is such that searches and seizures tend to be much more intrusive. Since drugs are small, they can fit anywhere. That means the police can search anywhere.

    The alternative to treating the war on drugs as a criminal justice issue is to treat it as a public health issue where we provide treatment for those who want it (or for those who are ordered to use treatment in cases where their drug use results in criminal behavior of some sort). Also, keeping in mind that much of the harm from drugs comes from the fact that the drugs that are available are unregulated (because entirely illegal) and because of the illegal activities that arise from the drug trade rather from the very serious problem of drug addiction itself.

    When I think about the level of aggressiveness I want with respect to police tactics, it really does vary based on the seriousness of the crime they are trying to prevent or investigate. But judicial interpretations of the Constitution seem to lean towards one-size fits all rules and perhaps that is the same issue we have with these principles.

    That said, nearly any approach (other than eliminating qualified immunity, that seems like an unqualified win to me) to curtailing the potential for police abuse comes with trade-offs and results we will not like in particular situations. This is really a classic principle-agent problem. When you decrease the discretion of the agent, you decrease their power. Decreasing the power of the agent decreases their ability to abuse power, but it also decreases their ability to effectively advance your interests. There is low-hanging fruit out there, but it isn’t easy to find. Nearly any change you make to the system is going to have unintended consequences. (Or, more neutrally, costs.)

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