Challenging Police Discretion

36 Pages Posted: 24 Aug 2015

Date Written: August 23, 2015


Law enforcement officials have tremendous discretion to determine the amount and style of policing that occurs in their jurisdiction. These decisions — concerning whom to police and how much — are primarily matters of distributive justice, and are made at the level of the police department rather than on the street. These departmental decisions spread a variety of important social resources across communities, as well as imposing certain burdens on those communities as part of the prevention or investigation of crime.

The police decide to apportion social resources through making policy, just as any other administrative agency concerned with resource-allocation might. Yet these policy decisions are mostly unregulated by the courts, and (unlike other some other agencies) closed to public input. Community members lack the ability to participate in — and especially, to challenge — police policy at the front-end during the equivalent of the drafting and comment process. The resulting policy is often based solely on law enforcement’s own internal assessment of the appropriate goals and values to pursue, independent of the interests of the community they police. The police remain immune from democratic challenge during the policy-making stage, and isolated from the deliberative insights of the community at the sharp end of police policy-making. These deliberative deficits have the potential to undermine the legitimacy and accuracy of the departmental policy-making process, and render the police politically remote from the community they patrol.

The distributive consequences of police policy-making, expressed in the amount and style of policing on the ground, include a range of social harms that can generate friction between the police and the public. These harms are often concentrated in communities subject to the most intensive and invasive policing. Recent public demonstrations in Ferguson, Missouri, and Baltimore, Maryland, among others, have emphasized the harms of policing and community alienation from politically remote police decision-making. Yet these distributive concerns are neither captured nor allayed by the judicial system’s individualized focus on the reasonableness of police activity, and the remedies of exclusion or civil damages. In the light of these concerns, I employ the political theory of civic republicanism to advance one remedy: the possibility of public challenge to police policy-making. I propose some ways in which republican political structures can undermine the remoteness and fragmentation of the police and their policy-making process, to produce a more inclusive, egalitarian, and accurate set of police policies.

Suggested Citation

Miller, Eric J., Challenging Police Discretion (August 23, 2015). 58 Howard Law Journal 521 (2015), Loyola Law School, Los Angeles Legal Studies Research Paper No. 2015-28, Available at SSRN:

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)


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