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Univ. of San Diego School of Law

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Friday, April 27, 2012

Miller on Race, Authority, and the Fourth Amendment

Eric J. Miller (Saint Louis University - School of Law) has posted Detective Fiction: Race, Authority, and the Fourth Amendment (Arizona State Law Journal, Vol. 44, p. 214, 2012) on SSRN. Here is the abstract:

In this article, I break from the usual liberal critiques of modern policing, and instead attempt to lay the theoretical and practical groundwork for a positive vision of police authority. Liberal theories of policing rightly worry about police discretion or state coercion given the history of racially discriminatory policing. That emphasis tends to produce negative accounts of police authority that emphasize curtailing police discretion. Equally important, however, is to define the nature of legitimate police authority under the Fourth Amendment.

While Fourth Amendment doctrine is nominally about a citizen’s reasonable expectations of privacy, the Court’s current approach appears to equate the reasonableness of police conduct with evidence that, whatever the police actually do, they are professional, experienced, and well trained. The Courts’ reasonableness-as-professionalism doctrine is, however, a fiction: it is a fiction that we know what good policing is; a fiction that graduation from the academy and exposure to crime on the street certifies the police as professional; and a fiction that professionalism requires an authoritarian and forceful stance towards suspects to maintain order and investigate crime.

Rather than relying a disappearing privacy doctrine to fight the Court’s Fourth Amendment doctrine, liberals must interrogate what skillful policing really entails. The proper response to the current Court’s fictional Fourth Amendment reasonableness doctrine is realism about skillful, legitimate policing. Realism requires that lawyers, and the academy, interrogate what training officers actually receive; what experience individual officers have; and to consider whether the officer’s training and experience matches our standards for skillful, legitimate policing.

Legitimate policing has two components, normative and empirical. The normative component establishes police authority as based in reason, not might. Normatively legitimate police authority is egalitarian, not subordinating. The empirical component focuses on the mutual exchange between citizen and police officer of respect for the dignity of the other. Following the work of Tom Tyler, I suggest that empirically legitimate policing induces compliance out of obligation not fear. The goal of policing (and of the Fourth Amendment’s reasonableness doctrine) should be to promote police-citizen encounters that develop along lines of consensus not coercion.

http://lawprofessors.typepad.com/crimprof_blog/2012/04/miller-on-race-authority-and-the-fourth-amendment.html

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