Wednesday, December 21, 2016
Eric J. Miller (Loyola Law School Los Angeles) has posted Encountering Resistance: Contesting Policing and Procedural Justice (University of Chicago Legal Forum, 2016) on SSRN. Here is the abstract:
Resisting authority is a really important way in which we assert our dignity and our political power as members of a democracy. In fact, resisting police authority is built into some of our most important Constitutional doctrines. The right to walk away, the right not to speak, and the right not to consent are core features of our legal and democratic processes.
Disobedience is a legitimate form of democratic participation, even during an encounter with the police. It’s one way we assert our political standing as equal members of the community. We have a democratic right to contest policing that’s racist or picks on people for arbitrary or authoritarian reasons. But it’s also the way in which we assert our legal standing. In fact, cases like Bostick, Schneckloth, and Miranda tell us that resisting authority is not just the primary way to assert our Fourth and Fifth Amendment rights. It’s the only way: our constitutional rights just are rights to walk away, to refuse to consent, and to decline to speak. The Constitution protects our rights against the police by requiring us to resist and dissent.
Too often the police use their command presence, and the implicit threat of force, to demand that the public respect police authority. That command presence is often expressed through explicit threats of violence, or the implicit threat of officer standing in the exit to a bus or in the entryway to a factory. But we’re also all aware that the officer’s polite and persistent questioning is sometimes just as dangerous: a subterfuge to trick the suspect into relinquishing her rights. Policing is, after all, what Justice Jackson called a “competitive enterprise.” The police use all the means at their disposal, not just threats, but also promises and psychological ploys, to get us to comply and cooperate and reveal information. But complying and cooperating and revealing information may be precisely what lands us in some sort of criminal proceeding.
Procedural justice is treats civilian participation through voicing consent or concerns as the mark of legitimate policing. But at the level of constitutional justice, persuading people to speak — to give voice — is often precisely the way police officers undermine their right to walk away or refuse consent or to avoid self-incrimination. Consider Brewer v. Williams: When Williams responded to Officer Leaming’s Christian Burial Speech by identifying the spot where he had buried Pamela Powers, his participation in a mutually respectful process of policing — giving voice — was precisely what led to his conviction. The same goes for a host of other cases in which the police encourage people to speak, from Seibert v. Missouri’s two-step interrogation process to Florida v. Drayton’s consent-based bus sweeps.
If the police only prize compliant or respectful voices that do not challenge the legal or political basis of their authority or contest their right to stop civilian, then it is hard to see this sort of policing as democratically legitimate. It is the disobedient and adversarial voices that we sometimes need to remind the police of our rights and their limited powers.