From Apples to Orchards: A Vulnerability Approach to Police Misconduct

Abstract

Amid widespread acknowledgment that the criminal justice system has failed to hold police officers accountable for even the most egregious forms of misconduct, there have been increased calls for civil remedies as a means of securing justice. This article argues that constitutional litigation for damages against the government, focused on individual injury and often directed at individual “bad apple” police officers, is conceptually and empirically ill-suited to remedy or deter police misconduct on a systemic level.

Applying vulnerability theory, this article reframes police misconduct not as the result of individual actors intruding upon autonomous individuals’ rights to privacy or liberty, but rather as a failure of the state to provide physical safety resources needed for its citizens to achieve resilience in a just manner. This framing imposes a positive obligation on the state to examine the existing inequalities in policing practices.

This article begins that examination by widening the focus from apples to orchards. It explores a number of ways in which the vulnerabilities of police institutions give rise to misconduct, primarily focusing on the harm caused by private corporate influence. Constitutional litigation affords no remedy for misconduct caused by the adoption of private sector business practices and corruption of public accountability and transparency at the behest of profit generation. Its punitive focus leaves no room to address the socioeconomic and institutional factors affecting the behavior of individual police officers. These concepts of collective injury, state responsibility, and institutional vulnerability allow us to approach police misconduct as a failure of the state to justly and equally realize its responsibility for public safety. This article argues that we must move beyond piecemeal quests for individual economic retribution in order to achieve social justice in the realm of policing.

Keywords: police misconduct, vulnerability theory, constitutional litigation, section 1983