Digital Commons Network^™

Police Executive Opinions Of Legal Regulation, Stephen Rushin, Roger Michalski

Faculty Publications & Other Works

By conducting a national survey, this Article empirically assesses how American police leaders perceive external legal regulation.

At various times, policymakers have decried external police regulations as too expensive, too complicated, or too difficult to apply to different factual scenarios. Critics have also alleged that police regulations change too frequently, inadequately consider input from the law enforcement community, and unduly risk the safety of officers or the broader community.

These complaints underscore an uncomfortable but unavoidable reality: efforts to regulate police behavior often require policymakers to make compromises. A rule that promotes one goal may necessarily compromise another important goal. …

Interrogation Parity, Stephen Rushin, Kate Levine

Faculty Publications & Other Works

This Article addresses the special interrogation protections afforded exclusively to the police when they are questioned about misconduct. In approximately twenty states, police officers suspected of misconduct are shielded by statutory Law Enforcement Officer Bills of Rights. These statutes frequently limit the tactics investigators can use during interrogations of police officers. Many of these provisions limit the manner and length of questioning, ban the use of threats or promises, require the recording of interrogations, and guarantee officers a reprieve from questioning to tend to personal necessities. These protections, which are available to police but not to ordinary criminal suspects, create …

Incarcerating The Accused: Reforming Bail For The Pretrial Detention Of Juveniles And Youths Aged Eighteen To Twenty-One, Leigha A. Weiss

Journal of Civil Rights and Economic Development

(Excerpt)

This note addresses the injustice of pretrial detention on juveniles, minors, and youths aged eighteen to twenty-one, in New York State. This note will address juveniles, aged eighteen to twenty-one, who are subject to criminal proceedings in adult criminal court and incarceration in adult criminal facilities as well as juveniles or minors below the age of criminal responsibility who are subject to juvenile delinquency proceedings and incarceration in juvenile detention facilities. So many youths are in unnecessary detentions under horrific conditions in adults and juvenile correctional facilities across the country. Serious bail reform is long overdue to provide humane …

Shooting Down Oliphant: Self-Defense As An Answer To Crime In Indian Country, Adam Crepelle

Lewis & Clark Law Review

Crime is a dire public safety problem in Indian country as Indians suffer violent crime at twice the rate of any other racial group. Indian country’s unique and confusing jurisdictional scheme combined with a shortage of police leave Indians easy targets for those looking to commit crimes. A largely unexplored answer to crime in Indian country is self-defense. This Article posits that the United States self-defense jurisprudence may make self-defense the most practical solution to crime in some parts of Indian country.

The Article discusses the history of self-defense laws and the relationship between self-defense laws and firearms. The Article …

What We Talk About When We Talk About Sanctuary Cities, Michael Kagan

Scholarly Works

In this Essay, Professor Michael Kagan asserts when immigrant rights advocates ask their local, state and university leaders to become "sanctuary cities," "sanctuary states," "sanctuary campuses," and so on, they carelessly hurt immigrants in places like Nevada, Texas, and Arizona. And there are a lot of immigrants in those states. People who mean to help immigrants are hurting them. He first sets out assumptions he makes about the semantics and politics of "sanctuary" debates. These assumptions include setting out the kind of actual policies that are usually under consideration when people invoke the sanctuary label, and a way of understanding …

Parallel Enforcement And Agency Interdependence, Anthony O'Rourke

Journal Articles

Parallel civil and criminal enforcement dominates public enforcement of everything from securities regulation to immigration control. The scholarship, however, lacks any structural analysis of how parallel enforcement differs from other types of interagency coordination. Drawing on original interviews with prosecutors, regulators, and white-collar defense attorneys, this Article is the first to provide a realistic presentation of how parallel enforcement works in practice. It builds on this descriptive account to offer an explanatory theory of the pressures and incentives that shape parallel enforcement. The Article shows that, in parallel proceedings, criminal prosecutors lack the gatekeeping monopoly that traditionally defines their relationships …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

Resolving The Circuit Split Over Consent Based Searches In Shared Living Spaces, Christopher Grimaldi

Cardozo International & Comparative Law Review

The note argues that the police, not citizens, should bear the responsibility of resolving ambiguities in consent to search cases under the Fourth Amendment. It advocates for a solution that aligns with Supreme Court precedent, particularly Rodriguez and Salinas-Cano, to ensure constitutional protections while maintaining efficient law enforcement. The proposed approach emphasizes the importance of police inquiry to clarify authority over jointly used property, balancing individual privacy rights with practical law enforcement needs.

Gutting The Fourth Amendment: Judicial Complicity In Racial Profiling And The Real-Life Implications, Mary N. Beall

Minnesota Journal of Law & Inequality

No abstract provided.

Police, Race, And The Production Of Capital Homicides, Jeffrey A. Fagan, Amanda Geller

Faculty Scholarship

Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to …

Do The Ends Justify The Means? Policing And Rights Tradeoffs In New York City, Amanda Geller, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these …

Solitary Troubles, Alexander A. Reinert

Articles

Solitary confinement is one of the most severe forms of punishment that can be inflicted on human beings. In recent years, the use of extreme isolation in our prisons and jails has been questioned by correctional officials, medical experts, and reform advocates alike. Yet for nearly the entirety of American history, judicial regulation of the practice has been extremely limited. This Article explains why judges hesitate to question the use of solitary confinement, while also providing a path forward for greater scrutiny of the practice.

Root Cause Analysis: A Tool To Promote Officer Safety And Reduce Officer Involved Shootings Over Time, John Hollway, Calvin Lee, Sean Smoot

Villanova Law Review (1956 - )

No abstract provided.

The Effects Of A Mandatory Body-Worn Camera Policy On Officer Perceptions Of Accountability, Oversight, And Departmental Culture, Jordan M. Hyatt, Renee J. Mitchell, Barak Ariel

Villanova Law Review (1956 - )

No abstract provided.

Feeding The Machine: Policing, Crime Data, & Algorithms, Elizabeth E. Joh

William & Mary Bill of Rights Journal

No abstract provided.

Fines: The Folly Of Conflating The Power To Fine With The Power To Tax, Mildred Wigfall Robinson

Villanova Law Review (1956 - )

No abstract provided.

Rationing Criminal Justice, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Of the many diagnoses of American criminal justice’s ills, few focus on externalities. Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions. Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects. …

How Law Enforcement Unmanned Aircraft Systems (Uas) Could Improve Tactical Response To Active Shooter Situations: The Case Of The 2017 Las Vegas Shooting, Ryan J. Wallace, Jon M. Loffi

International Journal of Aviation, Aeronautics, and Aerospace

Using a case study methodology, this paper assesses the unique tactical challenges faced by law enforcement officers responding to the October 1, 2017, Las Vegas active shooter incident. The authors assessed the tactical strengths of the assailant, Stephen Paddock, and challenges faced by law enforcement personnel. The authors present several proposed applications of unmanned aircraft systems that could have potentially mitigated the active shooter’s tactical advantages.

Looking At Justice Through A Lens Of Healing And Reconnection, Annalise Buth, Lynn Cohn

Northwestern Journal of Law & Social Policy

No abstract provided.

Panel Discussion: Expanding Our Conception Of Justice

Northwestern Journal of Law & Social Policy

No abstract provided.

Reforming The Ranks: Policy Initiatives To Ensure Police Accountability & Improve Police And Community Relations

Northwestern Journal of Law & Social Policy

No abstract provided.

Collateral Visibility: A Socio-Legal Study Of Police Body Camera Adoption, Privacy, And Public Disclosure In Washington State, Bryce Clayton Newell

Indiana Law Journal

Law enforcement use of body-worn cameras has become a subject of significant public and scholarly debate in recent years. This Article presents findings from a study of the legal and social implications of body-worn camera adoption by two police departments in Washington State. In particular, this study focuses on the public disclosure of body-worn camera footage under Washington State’s public records act, state privacy law, and original empirical findings related to officer attitudes about—and perceptions of—the impact of these laws on their work, their own personal privacy, and the privacy of the citizens they serve. The law in Washington State …

Bathroom Laws As Status Crimes, Stephen Rushin, Jenny E. Carroll

Faculty Scholarship

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals.

By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize them. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would …

The First Amendment And The Police In The Digital Age, Kermit V. Lipez

Maine Law Review

In almost thirty-two years as a judge, I have written over 1300 opinions. Each of these opinions was important to the parties involved, yet some have gained more prominence than others. This essay addresses one of those—a 2011 decision that involves the First Amendment, the complex relationship between the police and the communities they serve, and the revolution in communications technology. I emphasize two points as I begin. I have enormous respect for police officers and their work. They risk their lives on the job—a reality that we have seen far too often in recent years—and go to work every …

Highway To Hell: The Privatized Prison Transportation Industry And The Long Road To Reform, Jaden P. Rhea

West Virginia Law Review

No abstract provided.

Caption This: Police In Pussyhats, White Ladies, And Carceral Psychology Under Trump, Alison R. Reed

English Faculty Publications

No abstract provided.

Breaking Iphones Under Calea And The All Writs Act: Why The Government Was (Mostly) Right, Steven R. Morrison

Cardozo Law Review

During the investigation of the 2015 San Bernardino shooting, the government asked a district court to order Apple to draft code that would bypass the password protection system of the iPhone of one of the shooters. This request was preceded by the holding of a United States District Court in New York, which found that the All Writs Act (A WA) and the Communications Assistance for Law Enforcement Act (CALEA) prohibited the court from issuing the order. This finding was supported by Apple, amici in support of Apple in the San Bernardino investigation, and numerous experts. Although sympathetic to Apple, …

Are Dhs Technology Grants For Local Police Departments An Effective Tool Against Terrorism?, Erika Mcginty

Student Theses

This paper examines the effectiveness of allocating funds to the nation’s police departments for the prevention of domestic terrorism, as is done annually through the Department of Homeland Security’s Homeland Security Grants Program. The program, administered by the Federal Emergency Management Administration, has distributed billions of dollars since its 2003 inception in equipment, software, and technology services based on the recipient police agencies’ own risk assessments of local terrorism. Much of the technology desired by police consists of systems of mass surveillance; this thesis focuses on implementations of surveillance video cameras or CCTV, license plate readers, and unmanned aerial vehicles. …

Policing And Procedural Justice: Shaping Citizens' Identities To Increase Democratic Participation, Tracey Meares

Northwestern University Law Review

Like the education system, the criminal justice system offers both formal, overt curricula—found in the Bill of Rights, and informal or “hidden” curricula—embodied in how people are treated in interactions with legal authorities in courtrooms and on the streets. The overt policing curriculum identifies police officers as “peace officers” tasked with public safety and concern for individual rights, but the hidden curriculum, fraught with racially targeted stop and frisks and unconstitutional exercises of force, teaches many that they are members of a special, dangerous, and undesirable class. The social psychology of how people understand the fairness of legal authorities—procedural justice—is …

Intutitve Decision-Making: Engagement, Agency, And Leverage, Roger E. Callese

All Capstone Projects

This project explored law enforcement decision-making through the review of decision-making literature, consideration of the Critical Decision Model (CDM), and semistructured interviews with law enforcement officers. In 2016, the Police Executive Research Forum (PERF) recommended the adoption and use of the CDM by law enforcement officers as a new way to approach tactical decisions. A review of the CDM suggests a linear, rational, weighing of options by officers. While this may be an excellent tool for slowly developing situations, for pre-mortems, or for debriefing, the CDM step four (identify options and determine best course of action) and step five (act, …