Prohibition's lingering shadow: under-regulation of official uses of force.

• Author: Oliver, Wesley M.
• Position: Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

INTRODUCTION

Grand jury determinations that officers would face no charges in the shooting death of Michael Brown or in the choking death of Eric Gamer sparked controversy and riots. This is, of course, a challenge to the ability of the criminal justice system's ability to resolve society's most contentious issues. Highly contentious racial issues have long defied resolution through deliberative processes, (1) even though the law strives to achieve outcomes that will be viewed as legitimate. Poorly defined rules of criminal procedure, however, have contributed to judicial resolutions that the public finds unsatisfactory. Our constitutional scheme for regulating police--which traces its history to Prohibition--lacks anything approaching clarity on the appropriate use of force by officers. With no clear rules for officers to follow, or break, officers often find sympathetic jurors and grand jurors who find themselves unable to then convince the public that their view of reasonableness was anything other than bias. By contrast, the rules regulating searches and seizures of evidence are reasonably clear as a result of the exclusionary rule, which forbids the use of illegally obtained evidence in a criminal trial. The use of this rule as the primary means of governing police is an accident of history that has left searches far better regulated than police violence--a distinction that is hard to justify in light of its historical origin and the present need to have meaningful rules on the use of police force.

1. THE RELATIVE UNDER-DETERRENCE OF UNLAWFUL POLICE VIOLENCE

   Rules of constitutional criminal procedure more clearly define when an officer may search a car trunk than when the officer may shoot a man dead. The exclusionary rule, which obviously deters only unlawful searches for physical evidence, has created opportunities for courts to frequently define when searches may be lawfully conducted. When courts identify unlawful searches, they impose minimal costs on society--prosecutors merely lose the evidence they would not have had but for the illegal search. (2) A rich body of law thus identifies lines that police may not cross in their search for evidence. No similar mechanism exists to permit judges to define the contours of the appropriate use of the state's legitimate monopoly on force.

   Unnecessary police killings may be deterred by internal department sanctions, state torts, civil rights actions, state homicide prosecutions, and federal civil rights prosecutions. (3) Each of these potential sanctions ultimately turns on some version of a reasonableness standard that provides little in the way of details about when police are allowed to use deadly force. (4) For all the possible penalties other than internal departmental sanctions, jurors or grand jurors must decide without the benefit of any sort of precedent. (5)

   Using these mechanisms, courts have done virtually nothing to define the contours of the reasonableness standard that governs official uses of force. (6) Further, courts have aggressively shielded officers from civil liability. (7)

   The bulk of claims against police officers for excessive force are litigated in federal civil rights actions. (8) Litigants must contend not only with a vague reasonableness standard when the case goes to a jury, but they must also overcome an officer's qualified immunity defense. (9) Qualified immunity is designed to ensure that police will not be over-deterred through the threat of a large jury verdict. (10) Courts ruling on this defense at the summary judgment phase have been very deferential to what courts frequently describe as the split-second decision to use force. (11) The vague reasonableness standard is thus only defined by courts in the context of the police-friendly qualified immunity context, which essentially leaves reasonableness to be defined by officers. (12)

   The absence of clarity is problematic for officers attempting to comply with the law and for those who must judge officers' conduct. With little guidance, through precedent or otherwise, to define reasonableness, officers are not sure when they have a duty to de-escalate a potentially violent encounter. (13) Grand jurors judging officers' conduct are similarly unable to determine when an officer's course of conduct has been unreasonable. Decisions to charge or not charge officers are thus often criticized as the product of racial bias, rather than sound judgment, as only vague standards govern their considerations. (14)

   By contrast, relatively clear standards govern police searches to discover evidence. The famed Supreme Court of California Justice Roger J. Traynor, who introduced the exclusionary rule into California jurisprudence, observed that as a result of the rule, "police now have a clearer idea than before of the restraints upon them." (15) The exclusionary rule has given a large number of defendants a reason to assert that police engaged in misconduct in gathering evidence. (16) In each of these cases, a judge is required to rule on the admissibility of the challenged evidence and provide reasons that inform future police conduct, as well as subsequent judicial decisions. (17) The frequency of Fourth Amendment litigation has provided courts an opportunity to address the contours of most investigative techniques. (18)

   Until very recently, with few exceptions, the fruits of an unlawful investigation were excluded, requiring courts to rule on the legitimacy of investigatory methods. (19) Recently, courts have begun to radically expand the good faith exception to the exclusionary rule, making questions of good faith analogous to qualified immunity, but they are doing so after decades of precedent have defined many limits on investigations. (20) Even where courts have imposed no limits on investigative methods, such as when police use confidential informants, (21) the rules governing investigatory work by police are relatively clear. The law's clarity on appropriate police conduct ends, however, with investigations. The exclusionary rule only deters police misconduct that unearths evidence incriminating the defendant. (22) Police harassment or uses of excessive force do nothing to generate evidence. (23) It is far clearer, then, when a police officer may search a trunk than when he can shoot a suspect.

   There was certainly nothing inevitable about a scheme that regulates investigatory methods with greater precision than official uses of force. In the modern world, issues of police brutality and wrongful convictions seem far more pressing than unlawful searches for evidence. (24) Historically, with the exception of the brief period of Prohibition, brutality has always been the greater concern. Yet the exclusionary rule--the primary mechanism for regulating police--addresses only conduct producing evidence.

   In Mapp v. Ohio, the U.S. Supreme Court concluded that tort actions were inadequate to deter illegal searches and seizures, (25) yet there was a substantial lost opportunity in selecting this method of deterrence. Any effective mechanism other than the exclusionary rule that empowered judges to determine whether a Fourth Amendment violation occurred would have produced a body of law governing police conduct, whether or not the remedy involved the exclusion of evidence. A liquidated damages regime, (26) or a scheme of injunctions against Fourth Amendment violations that permitted contempt citations, (27) would have had the advantage of not sacrificing reliable evidence in criminal trials. These mechanisms would have had an additional advantage. They would have provided an opportunity for judges to rule on the legitimacy of police conduct, even when it did not produce evidence that the prosecution wished to use against the defendant. Rules governing police use of violence would thus have been as robust and clear as laws governing searches and seizures.

   Certainly, even with a crystal clear body of legal precedent governing police shootings, juries and grand juries would have to engage in fact finding, a process that is always subject to the biases of fact-finders. Racial biases at every phase of the criminal justice system have been thoroughly documented and are readily suspected by those objecting to particular decisions that could have been skewed by such biases. (28) The absence of clear standards, however, provides poor guidance to police and adds a significant hurdle to the perceived legitimacy of both police conduct and evaluations of that conduct by police departments, prosecutors, and courts.

2. PROHIBITION USHERED IN EXCLUSIONARY RULE AS PRIMARY METHOD OF POLICE REGULATION

   Looking at the historical development of police departments, it is ironic that searches are more highly regulated than the use of violence by police. As modern professional police forces began to form in the mid-nineteenth century, the public's primary fear was brutality at the hands of these new officers on the streets. (29) Fears of official violence continued for decades after the creation of what modern observers would recognize as police forces. Yet there were no notable successes in police reform until Prohibition, (30) when the worst acts of police were believed to occur in the course of efforts to obtain evidence--primarily, though not exclusively, in the search for alcohol. (31) Exclusion of...