CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, June 2, 2011

Seron & Pereira on Policing Police Misconduct

Carroll Seron and Joseph Pereira (University of California, Irvine School of Law; Department of Criminology, Law & Society and The Graduate Center, CUNY - Data Service) have posted Policing Police Misconduct in a Democratic Society: The Judgments of Police Officers and White, Black, and Hispanic Citizens on SSRN. Here is the abstract:

Almost since their inception, there have been calls for the reform of civilian review boards. Many of these reforms call for greater independence of review boards, including the authority to carry out discipline of police officers for corroborated cases of police misconduct. To date, however, there has been little empirical research on what constitutes reasonable discipline for an alleged case of police misconduct. We seek to fill in this gap in our understanding by comparing citizens’ and officers’ judgments of appropriate discipline for alleged misconduct. Using a factorial design, our findings show that there is a surprisingly strong level of consensus between citizens and officers about which evidence is most significant to weigh in reaching a judgment but that there is a lack of consensus between citizens and officers about the appropriate level of discipline. Not surprisingly, police officers’ judgments of fair punishment are significantly lower than their citizen counterparts. That said, citizens’ judgments are, these findings show, reasonable and fair in light of the alleged infraction. As steps are taken to reform civilian review procedures, the findings reported here provide an empirical foundation for developing disciplinary guidelines that takes account of a community’s understanding of what constitutes fair and reasoned discipline.

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Hi-- for anyone interested in this general topic:

I'm helping organize a super-quick amicus brief for a rehearing of Barnes v. Indiana, the Indiana Supreme Court case last month on whether it should be criminal to push a police officer attempting an illegal entry.

The issue is whether there is in Indiana a common-law right to resist illegal police entry into one's home (as opposed to being guilty of a crime if you push a policeman against a wall when he tried to invade your home illegally--- the specific action at issue in Barnes). The Indiana Supreme Court has by 3-2 decided that there is no such right. This has provoked demonstrations and a move by the legislature's majority to statutorily overrule the Court. The Defense has moved to rehear the case, and the State (Republican) seems to have reversed its position. The Court, like the State, does not seem to have thought through what it has done, so there is hope it may reverse itself. The politics are strange; this is not a left vs. right issue.

I'd like to submit an amicus brief by the deadline of June 13. I want to submit this as a brief of scholars. A separate amicus brief on the issue of statutory justification of self-defense is in preparation, which has lots of state legislators who are signing on.

I'm looking for (a) profs who might be willing to sign on, and (b) anyone who might give comments on the brief. Below, I give the main argument. The draft (preliminary, ) and other relevant documents may be found at . What is most important here is the persuasiveness of the brief itself, not how impressive its supporters are. I'm sure I'll get enough supporters to make it credible. What I'd like you to do is to take a look at the summary below and tell me whether there is some chance you might be willing to sign on. If so, then I'll send you the final version in a few days, and you can decide whether you actually do want to sign on. I won't put your name on unless you reply to my later email with the final version. If you haven any comments, even if you *don't* want to sign on, please tell me. This might also become part of an academic article some day, since I do have plans to write something on self help.

I am particularly interested in (a) comments about whether the common law BEFORE 1607 (important for Indiana reasons) granted citizens the freedom to defend their homes against illegal state action, and (b) comments on whether civil actions against the police and the state are reliable remedies for illegal police behavior.

Yours truly,


Eric Rasmusen
Dan R. and Catherine M.Dalton Professor
Dept. of Business Economics and Public Policy
Kelley School of Business, Indiana University
BU 438, 1309 East Tenth Street, Bloomington, Indiana 47405 Http://
Home: (812) 331-0012. Iphone: 812-327-6695.
Office: (812) 855-9219. Fax:(812) 855-3354.


Mr. Barnes was convicted of the Class A misdemeanors of battery on a law enforcement officer and resisting law enforcement, as well as another charge not relevant here. Barnes argues that the trial court’s failure to instruct the jury that there exists a right to reasonably resist unlawful entry by police officers is reversible error.

The Indiana Supreme Court said, “Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right.”

This is an important question, and we believe that the Court needs fuller briefing on it than has occurred. We will not treat of the important issue of whether Indiana statutes justify Barnes’s desired jury instruction aside from any common-law right to resistance. Instead, this brief is limited to advising the Court on three other points that we fear may otherwise receive insufficient attention. First, does public policy really disfavor the right to resist unlawful entry? Second, is the Court’s ability to decide the common-law rule on public-policy grounds eliminated by Indiana’s common-law incorporation statute? Third, if the Court does recognize a general right to resist unlawful police action, should an exception be made to criminalize resistance when the police excuse for unlawful behavior is that it is intended to prevent domestic violence?

We will argue that public policy should encourage rather than discourage citizens to resist unlawful police actions, because the consequences to society of police violation of civil rights are worse than the harm to the police from citizen resistance. Not only is punishing citizens for protecting their rights against violation by the state unjust, but the alternative remedy of civil suits for money damages is insufficient deterrence for state oppression. We will argue that the common law has long given citizens the the right to resist illegal state action, and that even if the Court decides that such resistance causes more trouble than harm nowadays, Indiana statutory law forbids the Court to change public policy in this area. And we will argue that although in domestic violence cases the law will often permit the police to act more flexibly than in other situations, when the police do act illegally they should not be able to excuse their actions merely because the context is that of domestic violence.

Posted by: Eric Rasmusen | Jun 7, 2011 12:52:31 PM

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