Civilian oversight of state and local law enforcement has largely been characterized by benign neglect. The United States has been debited by its English heritage with a significant social and cultural heritage with respect to the present relationship among law enforcement, the societies they serve, and the public of those jurisdictions.
In early Rome, the relationship was addressed in philosophical dialogue, expressed as quis custodiet ipsos custodies: who will guard the guards themselves; alternatively, who watches the watchmen. In a short span of years since Ferguson, Missouri, in 2014, to the death of George Floyd in Minneapolis in 2020, the proposition has been at the forefront of concern.
The term “police” arose in the 1500s, defined as the duty to watch or guard, to keep order or govern, from the French policier. Politics and law enforcement in this country originated with the sheriff in the 1600s. The first elected sheriff of record was named William Waters of Northampton, VA, in 1652. In this respect, sheriffs perceive (see website of the National Sheriffs Association, www.sheriffs.org) their function to “be a check and balance against the other two branches of government, to be the first line of defense that the people have against bad laws. The courts have upheld this from the beginning.”
A jurist considering this statement might disagree. The traditional and accepted view is that police or law enforcement, including sheriffs, by definition align with the executive branch of governance with the first line of defense against bad law being the judicial branch. The sheriff’s historical perception glamorizes and idolizes a conception of elected law enforcement functioning above the law.
The interface with law enforcement officers is virtually daily, continuous, and intimate. In 1838, Boston created a publicly subsidized police force largely upon the need of businesses to protect property in transit from its port to localities. In the south, a different economic set of interests, i.e., the preservation of slavery, prompted the birth of policing. Slave patrols existed as early as the 1700s.
Toward the end of the 19th century and the high water mark of the Industrial Revolution, most major American cities had police organizations, as fears of labor union picketing and of large waves of immigrants flowed to urban centers, driving an increasing call for law and order to preserve the status quo for dominant interests. Public funds and energies were devoted to acquiring manpower and meeting an increasingly threatening dynamic of newcomers while affording little regard or attention to the realities emanating from “law and order” policies with respect to those who were to be kept in order through law.
As long as politicians could campaign on controlling crime by increasing police personnel and funding, the general public’s interest was satisfied. Professionalism and policing methods and strategies were not priorities. In fact, some historians observed that police departments became “inward looking,” isolated from the public pursuing control tactics and strategies that further exacerbated social chaos (Samuel Walker, The Police in America).
The failure of society to perceive the problems of its own creation was worsened by a broad cultural and social respect for peaceful civil behavior along with a theological disdain for criminal or outlaw conduct. This dual set of blinders was reinforced by judicial pronouncements from the nation’s highest court. For example, in retreating from a literal interpretation of the privacy interest of the Fourth Amendment’s “right of the people to be secure in their persons,” the Supreme Court instead enfranchised police with an inherent authority to transgress that security. In brief, the opinion held:
An American policeman observing “unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,” it is not a violation of the Fourth Amendment for the policeman to conduct a “stop-and-frisk” of the people he suspects.
The justices endowed a police officer with unique experience in assessing “unusual conduct” that “reasonably” may be criminal as a basis, absent probable cause, to have the authority to intrude on the Fourth Amendment barrier. . . . Last week, however, the court, in a 6-3 decision authored by Justice Elena Kagan, ruled that a police officer who followed a driver into his garage over a minor traffic offense had no right to do so without a warrant.
In essence, the justices endowed a police officer with unique experience in assessing “unusual conduct” that “reasonably” may be criminal as a basis, absent probable cause, to have the authority to intrude on the Fourth Amendment barrier (Terry v. Ohio, 1968). Terry was preceded one year earlier in Pierson v. Ray, in which the Court created a qualified immunity for police, finding that a “policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted [fined] in damages if he does.” Thus, within two years, US jurisprudence was, on one hand, required to grant police officers immunity from violating civil rights (Pierson) and active authority to ignore a principle of the Bill of Rights.
[Last week, however, the court, in a 6-3 decision authored by Justice Elena Kagan, ruled that a police officer who followed a driver into his garage over a minor traffic offense had no right to do so without a warrant; see Lange v. California.]
The two decisions are given verve by the invisible Greek chorus that collectively voice chants a background approval for the behavior. The true third branch of government has acquiesced to abandoning its duty as a first line of defense to law enforcement and affirmed the sheriff’s view. The “inward” looking and “isolated” police organizations have further barricaded their position by way of union agreements and policies that thwart civil authorities from direct oversight or management of police conduct. Responsible civilian authorities have adopted risk management policies encouraged by insurance companies to insulate themselves against civil liabilities for police misconduct. Civilian complaint review boards are far too often toothless shells with little influence over police tactics and policies.
Making matters even worse, following the massive rollout of the war on crime and the war on drugs over the last several decades, the federal and state governments have provided extensive funding for training and military weaponry and material for law enforcement. The insularity is now literally armor protected as well as legally shielded.
As of 2017, 35 states and some 3,000 law enforcement organizations–federal, state, and local–have adopted policies from a corporate profit-making institution that encourages qualified immunity for officers and risk management strategies for civilian jurisdictions.
Concurrently, as of 2017, 35 states and some 3,000 law enforcement organizations–federal, state, and local–have adopted policies from a corporate profit-making institution called Lexipol that sells a manual of policies and procedures encompassing qualified immunity for officers while highlighting the risks and costs to civilian jurisdictions of law suits for police misconduct (https://texaslawreview.org/lexipol). The message is that qualified police immunity is insurance against monetary damages.
Reform for policing the police faces a dense and formidable shield of protective plating making any renaissance to create a productive and non-hostile relationship very difficult. .