Tuesday, September 24, 2013
What do the laws governing municipal annexation, collective bargaining, and race-conscious employment decisions have in common? Each plays a significant and under-appreciated role in shaping local law enforcement practices even though each, on its face, has nothing to do with policing.
This Article explores the incidental regulation of policing, illustrating the concept with examples from different areas of state and federal law. Many legal decisions happen to include police as constituents of a broader regulatory ambit, and thus are not intended to have any particular effect on the unique functions of policing. Nevertheless, these laws have profound ramifications for police practices.
This Article contends that recognizing the incidental effects of policing-neutral law is a necessary prerequisite to understanding and reforming police practices. The incidental regulation of policing is troubling when some broader legal decision affects unique policing functions. Here, the impact on officer behavior does not benefit from the deliberative process that protects the important societal interests that law enforcement implicates. This Article suggests mechanisms for identifying and addressing the potential problems of incidental regulation in the policing context. By taking a more comprehensive view of the legal environment in which police operate, we can more fully understand how the law shapes officer behavior. That understanding, in turn, can pave the way to a tighter regulatory regime and more effective police reform.