Law Commons^™

Immigration Policing And Federalism Through The Lens Of Technology, Surveillance, And Privacy, Anil Kalhan

Anil Kalhan

With the deployment of technology, federal programs to enlist state and local police assistance with immigration enforcement are undergoing a sea change. For example, even as it forcefully has urged invalidation of Arizona’s S.B. 1070 and similar state laws, the Obama administration has presided over the largest expansion of state and local immigration policing in U.S. history with its implementation of the “Secure Communities” program, which integrates immigration and criminal history database systems in order to automatically ascertain the immigration status of every individual who is arrested and booked by state and local police nationwide. By 2012, over one fifth …

Dirty Silver Platters: The Enduring Challenge Of Intergovernmental Investigative Illegality, Wayne A. Logan

Scholarly Publications

This Essay addresses a longstanding concern in American criminal justice: that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development that has assumed added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature.

The Essay offers the first comprehensive examination of this phenomenon …

The Effects Of Regulated Discretion On Police Referrals To Restorative Justice, Diane Crocker

Dalhousie Law Journal

The Nova Scotia Restorative Justice Program relies heavily on referrals from police who are authorized to refer a range of property and both violent and non-violent offences. Federal legislation and provincialprotocols guide referral decisions. Both are designed to ensure that police consider extra-judicial measures, including restorative justice. This article reports the findings ofa surveyof police officers on their views of restorative justice and the types of cases they consider appropriate for a referral. The findings confirm what other researchers have found about the types of cases police officers prefer to divert from mainstream criminal justice responses. Placed in the context …

Getting Past The Gatekeepers: The Reception Of Restorative Justice Inthe Nova Scotian Criminal Justice System, Don Clairmont, Ethan Kim

Dalhousie Law Journal

This paper draws upon twelve years of multi-dimensional research and focuses on the reception of restorative justice in the criminal justice system in Nova Scotia. The paper traces the evolution of the restorative justice social movement, examining the launching and take-off phases, the impact on the police gatekeeping role, the receptivity and use of restorative justice by other criminal justice system professionals, its current level of institutionalization in the criminal justice system, and its future prospects.

Law-Enforcement Officers And Self-Help Repossession: A State-Action Approach, Aaron Loterstein

Michigan Law Review

Repossession of secured collateral is a fundamental component of the consumer credit industry. The Uniform Commercial Code authorizes a secured party to engage in self-help repossession of secured collateral under section 9-609, so long as the repossession takes place without "breach of the peace." While that term is undefined, several courts have adopted a counterintuitive rule, holding that a law-enforcement officer's presence during a self-help repossession - regardless of purpose or level of involvement - creates a breach of the peace. The Official Comments to the Code have seemingly endorsed this position as well. This Note rejects the primary justifications …

The Responsibility To Protect In Oceania: A Political Assessment Of The Impact And Influence Of R2p On Police Forces, Andrew Goldsmith, Charles Hawksley, Nichole Georgeou

Charles M Hawksley

The project ‘R2P in Oceania’ is a political assessment of the impact and influence of R2P principles on the developing police forces of three states, Timor-Leste, Solomon Islands and Papua New Guinea (PNG). It links most strongly with the Centre’s priority concept two: supporting states to build their capacities to protect their own populations from abuses of human rights, including genocide and mass atrocities. This articulates with the Responsibility to Assist, the least studied aspect of the UNSG’s ‘Three Pillars’ Approach to R2P. Our research provides empirical findings surrounding the process of police-building in these states. It points to the …

R2p Ideas In Brief: Pillar Ii In Practice: Police Capacity-Building In Oceania (Pp. 1-6) (Vol.2, No.4), Charles Hawksley, Nichole Georgeou

Charles M Hawksley

APCR2P Centre Policy Brief: This Policy Brief assesses police capacity building in Oceania.

Criminal Justice, Local Democracy, And Constitutional Rights, Stephen J. Schulhofer

Michigan Law Review

Universally admired, and viewed with great affection, even love, by all who knew him, Harvard law professor Bill Stuntz died in March 2011 at the age of fifty-two, after a long, courageous battle with debilitating back pain and then insurmountable cancer. In a career that deserved to be much longer, Stuntz produced dozens of major articles on criminal law and procedure. He was a leader in carrying forward the work of scholars who had analyzed criminal justice through the lens of economic analysis, and he added his own distinctive dimension by insisting on the importance of political incentives, with their …

Final-Offer Arbitration And Salaries Of Police And Firefighters, David B. Lipsky, Thomas A. Barocci

David B Lipsky

[Excerpt] Did final-offer arbitration have a discernible impact on the salaries of police and firefighters in Massachusetts during the 3-year trial period which ended June 30, 1977? To analyze this question, we collected information on the maximum salary paid to police patrolmen, police sergeants, firefighters, and fire lieutenants for a large sample of Massachusetts municipalities. We integrated these data with police and fire impasse experiences and added several economic and environmental characteristics for each Massachusetts municipality. Then we performed several tests of the economic impact of final-offer arbitration.

Highway Robbery: State Troopers Denied Exclusion Under §119 - Commissioner V. Kowalski, John W. Cook

Pepperdine Law Review

No abstract provided.

Hubbard V. Boelt: The Fireman's Rule Extended , Marty K. Deniston

Pepperdine Law Review

The California Supreme Court, in Hubbard v. Boelt, extended the reach of the fireman's rule to bar a suit brought by a policeman who was injured by the willful and wanton conduct of a speeding motor is while pursuing that motorist. This is an important development in tort law because, traditionally, the fireman's rule had only been applied to bar suits by firemen and policemen who were injured by the negligent conduct of another which was the cause of their presence at the scene. This author suggests that the majority's rationale underlying this extension was flawed because of the fundamental …

Police Informers And Professional Ethics, Clive Harfield

Clive Harfield

The use of informers is morally problematic for police institutions, for investigation managers, and for those individuals either who act as informers or who have daily responsibility for handling informers. This paper examines the moral issues concerning informers at each of these levels. Recourse to informers can be accommodated within Miller and Blackler's moral theory of policing. Within this context, criteria for the morally justifiable deployment of informers are proposed and supplemented with further proposed criteria for morally justifiable informer participation in crime. Morally justifiable recruitment of informers is also considered. Despite directly serving the purpose of policing, informers do …

Keeping Up With The Jonses: Making Sure Your History Is Just As Wrong As Everyone Else's, Brian Sawers

Michigan Law Review First Impressions

Before Katz v. United States, a search under the Fourth Amendment required a trespass. If there was no trespass on one’s property, then there was no search. In Katz, a 1967 decision, the U.S. Supreme Court abandoned that approach, instead finding a search without a trespass based on the government’s invasion of a “reasonable expectation of privacy.” In Oliver v. United States, the Court found that trespass was not sufficient to create a search. It found no reasonable expectation of privacy in open fields, and thus no search, even though the defendant had erected “No Trespassing” signs around his property …

The Politics Of Privacy In The Criminal Justice System: Information Disclosure, The Fourth Amendment, And Statutory Law Enforcement Exemptions, Erin Murphy

Michigan Law Review

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States Code currently contains over twenty separate statutes that restrict both the acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to driver's licenses, educational records, health histories, telephone calls, email messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards - ranging from …

Researching Crime, Justice, And Social Control In Ghana: Evolving Issues In A Developing African Country, Gordon A. Crews, Angela West Crews, Kofi Boye-Doe, Ken Aikins

Gordon A Crews

The purpose of this presentation is to discuss a recent research project which seeks to offer an examination of the unique relationship between the traditional Ghanaian indigenous justice system and the established state-administered justice system. This is an overview of the interesting blend of indigenous practices (rooted in religious practices and strongly associated with spirituality and mysticism) and state (formal justice and governmental systems) in the Ghanaian justice system. In addition the topics of the treatment of women and children within these systems and the use of alternative dispute resolution, restorative justice, and conflict resolution strategies inherent within the two …

Researching Crime, Justice, And Social Control In Ghana: Evolving Issues In A Developing African Country, Gordon A. Crews, Angela West Crews, Kofi Boye-Doe, Ken Aikins

Angela Crews

The purpose of this presentation is to discuss a recent research project which seeks to offer an examination of the unique relationship between the traditional Ghanaian indigenous justice system and the established state-administered justice system. This is an overview of the interesting blend of indigenous practices (rooted in religious practices and strongly associated with spirituality and mysticism) and state (formal justice and governmental systems) in the Ghanaian justice system. In addition the topics of the treatment of women and children within these systems and the use of alternative dispute resolution, restorative justice, and conflict resolution strategies inherent within the two …

International Police Education For The Rule Of Law: Obstacles, Facilitators, Curricula, Pedagogy, And Delivery, Gordon A. Crews, Angela West Crews

Gordon A Crews

The points discussed in the session are related to United Nations peacekeeping in the twenty-first century and the international police education for the rule of law. It is noted that 100 countries contribute police officers to the United Nations, and that 49 of those countries contribute 25 or fewer officers. There is a gender imbalance, with only 7.75 % of forces being made up of women. In the past, UN policing priorities were: monitoring to verify police performance and impartiality, observing to ascertain police strengths and weaknesses and reporting to document police infractions. The UN Peacekeeping Mission Statement aims to …

International Police Education For The Rule Of Law: Obstacles, Facilitators, Curricula, Pedagogy, And Delivery, Gordon A. Crews, Angela West Crews

Angela Crews

The points discussed in the session are related to United Nations peacekeeping in the twenty-first century and the international police education for the rule of law. It is noted that 100 countries contribute police officers to the United Nations, and that 49 of those countries contribute 25 or fewer officers. There is a gender imbalance, with only 7.75 % of forces being made up of women. In the past, UN policing priorities were: monitoring to verify police performance and impartiality, observing to ascertain police strengths and weaknesses and reporting to document police infractions. The UN Peacekeeping Mission Statement aims to …

Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber

Faculty Publications

This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.

Stop Terry : Reasonable Suspicion, Race, And A Proposal To Limit Terry Stops, Renée M. Hutchins

Faculty Scholarship

The Terry doctrine, which grants a police officer the authority to stop and frisk based on his or her reasonable suspicion rather than probable cause, was created by the Supreme Court at a time when the nation con- fronted a particular moment of violent racial strife. Since Terry was decided, the Supreme Court has continued to expand the reach of the doctrine—which opened the door for potential abuse. Existing data is increasingly proving that the loosening of constitutional standards is causing substantial harms to people of color nationwide. This article joins the existing scholarly discussion surrounding this decision to suggest …

Why Police Learn From Third-Party Data, Randall K. Johnson

Faculty Works

This essay argues that third-party data collection, particularly of administrative complaints and departmental audit information, holds greater promise than lawsuit data collection. It does so by asserting that third-party data collection is more useful for three reasons. First, third-party data collection prevents manipulation by individual police officers and law enforcement agencies. Second, it assures that police behavioral trends are actually identified. Lastly, third-party data collection helps to deter published § 1983 cases. The essay, however, only models and tests the final claim.

Passing The Sniff Test: Police Dogs As Surveillance Technology, Irus Braverman

Journal Articles

In October 2012, the Supreme Court of the United States will review the case of Florida v. Jardines, which revolves around the constitutionality of police canine Franky’s sniff outside a private residence. Essentially, the Court will need to decide whether or not the sniff constitutes a “search” for Fourth Amendment purposes. This Article presents a review of the often-contradictory case law that exists on this question to suggest that underlying the various cases is the Courts’ assumption of a juxtaposed relationship between nature and technology. Where dog sniffs are perceived as a technology, the courts have been inclined to also …

Why Police Learn From Third-Party Data, Randall K. Johnson

Journal Articles

This Essay argues that third-party data collection, particularly of administrative complaints and departmental audit information, holds greater promise than lawsuit data collection. It does so by asserting that third-party data collection is more useful for three reasons. First, third-party data collection may prevent manipulation by individual police officers and law enforcement agencies. Second, it may assure that police behavioral trends are identified. Lastly, third-party data collection may help to deter published § 1983 cases. This Essay, however, only models and tests the final claim.

Maryland V. King: Terry V. Ohio Redux, Tracey Maclin

Faculty Scholarship

In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene.

In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government.

Although Justice Kennedy's opinion suggests …

Maryland V. King: Terry V. Ohio Redux, Tracey Maclin

UF Law Faculty Publications

In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene. In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government. Although Justice Kennedy's opinion suggests …

The Pastor, The Burning House, And The Double Jeopardy Clause: The True Story Behind Evans V. Michigan, David A. Moran

Articles

The true story behind Evans v. Michigan is that a man who was probably innocent, and who would almost certainly have been acquitted by the jury, had his trial shortened after it became obvious to the judge that the police had picked up a man who had nothing to do with the fire. In other words, the facts set forth by the Michigan Supreme Court, and repeated by Alito, were grossly misleading. And because I, like Alito, believed the Michigan Supreme Court’s version of the facts, I made a silly mistake when I agreed to take the case. That silly …

When, Where And Why The First Amendment Protects The Right To Record Police Communications: A Substantial Interference Guideline For Determining The Scope Of The Right To Record And For Revamping Restrictive State Wiretapping Laws, Justin Welply

Saint Louis University Law Journal

No abstract provided.

Power Relationships And Authentic Organisational Learning : Daring To Break The Silence On Meaningful Dialogue In Policing Organisations, Lindsay B. Garratt

Theses: Doctorates and Masters

The 21st century presents great opportunities and threats for business: national and global markets are demanding high performance, innovation, creativity, and flexibility. Public sector organisations are continually asked to do more with less, with equal if not greater efficiency and creativity demands as the private sector. Organisational learning is a concept touted as an important and necessary strategy for organisations to keep pace with the rapid changing global environment that now plays host to opportunities as well as great economic and social volatility. However the reality for many is that they become proficient at the kind of organisational learning that …

Wisdom Is Thrown Into Jail: Using Therapeutic Jurisprudence To Remediate The Criminalization Of Persons With Mental Illness, Michael L. Perlin

Articles & Chapters

The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of the deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the …

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …