Abstract

http://ssrn.com/abstract=2039690
 
 

Footnotes (225)



 


 



Detective Fiction: Race, Authority, and the Fourth Amendment


Eric J. Miller


Loyola Law School Los Angeles

April, 14 2012

Arizona State Law Journal, Vol. 44, p. 214, 2012

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.

Number of Pages in PDF File: 53

Keywords: Fourth Amendment, police, policing, discrimination, discretion, legitimacy, criminal justice, crime, criminal procedure, professional, professionalism, fiction, realism, subordination, anti-subordination, discretion, discrimination, race, racial, bias

Accepted Paper Series





Download This Paper

Date posted: April 15, 2012  

Suggested Citation

Miller, Eric J., Detective Fiction: Race, Authority, and the Fourth Amendment (April, 14 2012). Arizona State Law Journal, Vol. 44, p. 214, 2012. Available at SSRN: http://ssrn.com/abstract=2039690

Contact Information

Eric J. Miller (Contact Author)
Loyola Law School Los Angeles ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1175 (Phone)
HOME PAGE: http://www.lls.edu/aboutus/facultyadministration/faculty/facultylistl-r/millereric/
Feedback to SSRN


Paper statistics
Abstract Views: 431
Downloads: 53
Download Rank: 232,113
Footnotes:  225

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 1.171 seconds