Policing as Administration

62 Pages Posted: 13 May 2016 Last revised: 21 Oct 2016

Christopher Slobogin

Vanderbilt University - Law School

Date Written: May 12, 2016

Abstract

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court’s special needs jurisprudence (practices that this article calls “panvasive”). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors — as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection — they should have to engage in notice-and-comment rule-making or a similar democratically-oriented process and avoid arbitrary and capricious rules. Courts would have the authority to ensure that policies governing panvasive actions are authorized by statute and implemented even-handedly, both in each instance and as they are distributed within the agency’s jurisdiction. Further, these principles would apply regardless of whether the panvasive practice has been designated a search or seizure under the Fourth Amendment.

Keywords: Fourth Amendment, Special Needs, Suspicionless Searches, Policing, Administrative Procedure Act

Suggested Citation

Slobogin, Christopher, Policing as Administration (May 12, 2016). University of Pennsylvania Law Review, Vol. 165, 2016; Vanderbilt Public Law Research Paper No. 16-30. Available at SSRN: https://ssrn.com/abstract=2779241

Christopher Slobogin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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