Police and the Limit of Law
63 Pages Posted: 20 May 2019 Last revised: 11 Nov 2019
Date Written: 2019
For more than fifty years, the problems endemic to municipal policing in the United States - brutality, racial discrimination, corruption, and opacity - have remained remarkably consistent. This notwithstanding the advent of modern Constitutional Criminal Procedure and countless judicial opinions applying it to the police. The municipal police can evade criminal procedure's legality-based paradigm through formal and informal means. That paradigm presupposes that the police's primary role is fighting crime, the zealous pursuit of which leads them to violate civil rights. The history and sociology of American policing however, suggests that courts and law scholars have misconceived the municipal police. They are not, in the main, fighters of crime. They are guarantors of a social order that benefits dominant groups. This Article advances an original descriptive account of the municipal police: they are "street sovereigns" whose power derives from law, but cannot be contained by it. Police have the power to derogate from law as necessity requires and it is the police themselves who usually have final say as to what constitutes a necessity. Police use of force and plainclothes tactics illustrate the descriptive theory. The theory suggests that law cannot restrain police in the way that American courts and commentators typically think it can. But law nonetheless remains important as an enabler of popular and institutional resistance to police abuses.
Keywords: criminal procedure, policing, police discretion, municipal police, plainclothes policing, police, police violence, police brutality, police use of force
JEL Classification: K14, K42
Suggested Citation: Suggested Citation