ARE COPS CONSTITUTIONAL?

Roger Roots *

ABSTRACT

Police work is often lionized by jurists and scholars who claim to employ "textualist" and "originalist" methods of constitutional interpretation. Yet professional police were unknown to the United States in 1789, and first appeared in America almost a half-century after the Constitution's ratification. The Framers contemplated law enforcement as the duty of mostly private citizens, along with a few constables and sheriffs who could be called upon when necessary. This article marshals extensive historical and legal evidence to show that modern policing is in many ways inconsistent with the original intent of America's founding documents. The author argues that the growth of modern policing has substantially empowered the state in a way the Framers would regard as abhorrent to their foremost principles.

PART I

INTRODUCTION................................................................686

THE CONSTITUTIONAL TEXT..............................................688

PRIVATE PROSECUTORS....................................................689

LAW ENFORCEMENT AS A UNIVERSAL................................692

POLICE AS SOCIAL WORKERS.............................................695

THE WAR ON CRIME..........................................................696

THE DEVELOPMENT OF DISTINCTIONS................................698

RESISTING ARREST............................................................701

THE SAFETY OF THE POLICE PROFESSION............................711

PROFESSIONALISM?..........................................................713

DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE........716

COPS NOT COST-EFFECTIVE DETERRENT.............................721

PART II

POLICE AS A STANDING ARMY...........................................722

THE SECOND AMENDMENT..... ...725

THE THIRD AMENDMENT...................................................727

THE RIGHT TO BE LEFT ALONE...........................................728

THE FOURTH AMENDMENT................................................729

WARRANTS A FLOOR, NOT A CEILING.................................733

PRIVATE PERSONS AND THE FOURTH AMENDMENT..............734

ORIGINALISTS CALL FOR CIVIL DAMAGES...........................739

DEVELOPMENT OF IMMUNITIES..........................................743

THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF

PROBABLE SUSPICION................................................744

POLICE AND THE "AUTOMOBILE EXCEPTION"......................745

ONE EXCEPTION: THE EXCLUSIONARY RULE?......................747

THE FIFTH AMENDMENT....................................................751

DUE PROCESS...................................................................752

ENTRAPMENT...................................................................754

CONCLUSION...................................757

PART I

INTRODUCTION

Uniformed police officers are the most visible element of America's criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide.1 Police expenses account for the largest segment of most municipal budgets and generally dwarf

* Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.

1 As of June, 1996, there were more than 700,000 full- and part-time professional state-sworn police in the United States. See BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 1996 (1998) available at <http://virlib.ncjrs.org/Statistics.asp>. Figures for earlier decades and centuries are difficult to obtain, but a few indicators suggest that the ratio of police per citizen has grown by at least four thousand percent. In 1816, the British Parliament reported that there was at that time one constable for every 18,187 persons in Great Britain. See Jerome Hall, Legal and Social Aspects of Arrest Without a Warrant, 49 HARVARD L. REV. 566, 582 (1936). Conventional wisdom would suggest that American ratios were, if anything, lower. Today there is approximately one officer for every 386 Americans.

expenses for fire, trash, and sewer services.2 Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America's roads and street corners as anything peculiar let alone invalid or unconstitutional.

Yet the dissident English colonists who framed the United States Constitution would have seen this modern 'police state' as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown.3 The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance).4 Initiation and investigation of criminal cases was the nearly exclusive province of private persons.

At the time of the Constitution's ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay.5 Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation whether civil or criminal and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.6 The role of these "nightly watch" officers gradually

2 The City of Los Angeles, for example, spends almost half (49.1%) of its annual discretionary budget on police but only 17.7% on fire and 14.8% on public works. See City of Los Angeles 1999-2000 Budget Summary (visited Dec. 2000) <http://www.cityofla.org/cao/bud9900.pdf>. The City of Chicago spends over forty percent of its annual budget on police. See Chicago Budget 1999 (visited Dec. 2000) <http://www.ci.chi.il.us/mayor/Budgetl999/sld01 l.htm> (pie chart). Seattle spends more than $150 million, or 41 percent of its annual budget, on police and police pensions. See City of Seattle 2000 Proposed Budget (visited Dec. 2000) <http://www.ci.seattle.wa.us/budget>. The City of New York is one exception, due primarily to New York State's unique system for funding education. Police and the administration of justice constitute the third largest segment, or twelve percent, of the City's budget, after education and human resources. See THE CITY OF NEW YORK, EXECUTIVE BUDGET, FISCAL YEAR 2000 1 (2000) (pie chart).

3See Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 830 (1994) (saying twentieth century police and "our contemporary sense of 'policing' would be utterly foreign to our colonial forebears").

4See id.

5See id. at 831 (saying the sole monetary reward for such officers was occasional compensation by private individuals for returning stolen property).

6 See CHARLES SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 314 (1978). The City of Boston, for example, enacted an ordinance requiring drafted citizens to walk the streets "to prevent any danger by fire, and to see that good order is kept." Id.

grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.7

While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution's imposed scheme of criminal justice.8 "Originalist" scholars of the Constitution have tended to be supportive, rather than critical of modern policing.9 This article will show, however, that modern policing violates the Framers' most firmly held conceptions of criminal justice.

The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state's interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.10 Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.

THE CONSTITUTIONAL TEXT

The Constitution contains no explicit provisions for criminal law enforcement.11 Nor did the constitutions of any of the several states contain such provi-

7C.f. id. (mentioning that cops' role of maintaining order predates their role of crime control).

8But see, e.g., Steiker, supra note 3, at 824 (saying the "invention ... of armed quasi-military, professional police forces, whose form, function, and daily presence differ dramatically from that of the colonial constabulary, requires that modern-day judges and scholars rethink" Fourth Amendment remedies).

9See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 104 (1996) (criticizing Supreme Court rulings that have "steadily expanded" the rights of criminals and placed limitations upon police conduct).

10Cf. E.X. BOOZHIE, THE OUTLAW'S BIBLE 15 (1988) (stating the true mission of police is to protect the status quo for the benefit of the ruling class).

11 As a textual matter, the Constitution grants authority to the federal government to define and punish criminal activity in only five instances. Article I grants Congress power (1) "[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States," art. I, 8, cl. 6; (2) "[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations," id, cl. 10; (3) "[t]o make Rules for the Government and Regulation of the land and naval Forces," id. at cl. 14; (4) "[t]o exercise

sions at the time of the Founding.12 Early constitutions enunciated the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government.13 Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.14

PRIVATE PROSECUTORS

For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.15 Criminal actions were only a step away from civil

exclusive Legislation in all Cases whatsoever, over" the District of Columbia and federal reservations. id. at cl. 17; see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426 (1821) ("Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the states"). Likewise, (5) Article III defines the crime of "Treason against the United States" and grants to Congress the "Power to declare [its] Punishment...." U.S. CONST. art. III, 3.

12 Several early constitutions expressed a right of citizens "to be protected in the enjoyment of life, liberty and property," and therefore purported to bind citizens to contribute their proportion toward expenses of such protection. See DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, 10; PA. CONST. of Sept. 28, 1776, Dec. of Rights, VIII; VT. CONST. of July 8, 1777, Chap. 1, IX. Other typical provisions required that the powers of government be exercised only by the consent of the people, see, e.g., N.C. CONST. of Dec. 18, 1776, V, and that all persons invested with government power be accountable for their conduct. See MD. CONST. of Nov. 11, 1776, IV.

13 The constitutions of several early states expressed the intent that citizens were obligated to carry out law enforcement duties. See, e.g., DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, 10 (providing every citizen shall yield his personal service when necessary, or an equivalent); N.H. CONST. of June 2, 1784, Part I, art. I, XII (providing that every member of the community is bound to "yield his personal service when necessary, or an equivalent"); VT. CONST. of July 8, 1777, Chap. 1, IX (providing every member of society is bound to contribute his proportion towards the expenses of his protection, "and to yield his personal service, when necessary").

14C.f. JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY 51 (1st ed. 1994) (discussing Revolution-era perception that the law was a means to restrain government and to secure rights of citizens).

15 Originally, all criminal procedure fell under the rule of private vengeance. A victim or aggrieved party made a direct appeal to county authorities to force a defendant to face him.

actions the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.16 Private prosecutors acted under authority of the people and in the name of the state but for their own vindication.17 The very term "prosecutor" meant criminal plaintiff and implied a private person.18 A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation's founding.19 When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name even if the attorney general himself did not approve of the action.20

Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.21 Crime victims held the keys to a

See ARTHUR TRAIN, THE PRISONER AT THE BAR 120 n. (1926). From these very early times, "grand" or "accusing" juries were formed to examine the accusations of private individuals. Id. at 121 n. Although the accusing jury frequently acted as a trial jury as well, it eventually evolved into a separate body that took on the role of accuser on behalf of aggrieved parties. It deliberated secretly, acting on its members' own personal information and upon the application of injured parties. Id. at 124 n.

16 In the early decades of American criminal justice, criminal cases were hardly different from civil actions, and could easily be confused for one another if "the public not being joined in it." Clark v. Turner, 1 Root 200 (Conn. 1790) (holding action for assault and battery was no more than a civil case because the public was not joined). It was apparently not unusual for trial judges themselves to be confused about whether a case was criminal or civil, and to make judicial errors regarding procedural differences between the two types of cases. See Meacham v. Austin, 5 Day 233 (Conn. 1811) (upholding lower court's dismissal of criminal verdict because the case's process had been consistent with civil procedure rather than criminal procedure).

17See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (involving action by private individual seeking public sanction for his prosecution).

18See, e.g., Smith v. State, 7 Tenn. 43 (1846) (using the term prosecutor to describe a private person); Plumer v. Smith, 5 N.H. 553 (1832) (same); Commonwealth v. Harkness, 4 Binn. 193 (Pa. 1811) (same).

19See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275, 281-90 (1989) (saying that any claim that criminal law enforcement is a 'core' or exclusive executive power is historically inaccurate and therefore the Attorney General need not be vested with authority to oversee or trigger investigations by the independent counsel).

20See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (holding the Attorney General must allow his name to be used by the prosecutor).

21 Private prosecutors generally had to pay the costs of their prosecutions, even though the state also had an interest. See Dickinson v. Potter, 4 Day 340 (Conn. 1810). Government

potential defendant's fate and often negotiated the settlement of criminal cases.22 After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant.23 Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and "not to make bargains to allow [defendants] to escape conviction, if they ... repair the injury."24

Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes.25 They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened.26 They might never have contact with a government prosecutor or any other officer of the executive branch.27

Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers.28 A lone sheriff or deputy had reason to fear even approaching a large group "without danger of his life or having his bones broken."29 When a sheriff was unable to execute a warrant or perform an execution, he could call

attorneys general took over the prosecutions of only especially worthy cases and pursued such cases at public expense. See Waldron v. Turtle, 4 N.H. 149, 151 (1827) (stating if a prosecution is not adopted and pursued by the attorney general, "it will not be pursued at the public expense, although in the name of the state").

22See State v. Bruce, 24 Me. 71, 73 (1844) (stating a threat by crime victim to prosecute a supposed thief is proper but extortion for pecuniary advantage is criminal).

23See Plumer v. Smith, 5 N.H. 553 (1832) (holding promissory note invalid when tendered by a criminal defendant to his private prosecutor in exchange for promise not to prosecute).

24 Shaw v. Reed, 30 Me. 105, 109 (1849).

25See In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956).

26See Goodman v. United States, 108 F.2d 516 (9th Cir. 1939).

27See Krent, supra note 19, at 293.

28C.f. Ellen D. Larned, 1 History of Windham County, Connecticut 272-73 (1874) (recounting attempts by Windham County authorities in 1730 to arrest a large group of rioters who broke open the Hartford Jail and released a prisoner).

29Id. at 273.

upon a posse of citizens to assist him.30 The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.31

LAW ENFORCEMENT AS A UNIVERSAL DUTY

Law enforcement in the Founders' time was a duty of every citizen.32 Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond "not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand."33 Any person could act in the capacity of a constable without being one,34 and when summoned by a law enforcement officer, a private person became a temporary member of the police department.35 The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.36

Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.37 But the law enforcement duties of the citizenry are now

30See Buckminster v. Applebee, 8 N.H. 546 (1837) (stating the sheriff has a duty to raise the posse to aid him when necessary).

31See Waterbury v. Lockwood, 4 Day 257, 259-60 (Conn. 1810) (citing English cases).

32See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 579 (1936).

33 Barrington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928).

34See Eustis v. Kidder, 26 Me. 97, 99 (1846).

35 By the early 1900s, courts held that civilians called into posse service who were killed in the line of duty were entitled to full death benefits. See Monterey County v. Rader, 248 P. 912 (Cal. 1926); Village of West Salem v. Industrial Commission, 155 N.W. 929 (Wis. 1916).

36 United States v. Rice, 27 Fed. Cas. 795 (W.D.N.C. 1875).

37 The Constitution is not without provisions for criminal procedure. Indeed, much of the Bill of Rights is an outline of basic criminal procedure. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 118 (2d ed. 1985). But these provisions represent enshrinements of individual liberties rather than government power. The only constitutional provisions with regard to criminal justice represent barriers to governmental power, rather than provisions for

a long-forgotten remnant of the Framers' era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.38

The Founders could not have envisioned 'police' officers as we know them today. The term "police" had a slightly different meaning at the time of the Founding.39 It was generally used as a verb and meant to watch over or monitor the public health and safety.40 In Louisiana, "police juries" were local governing bodies similar to county boards in other states.41 Only in the mid-nineteenth century did the term 'police' begin to take on the persona of a uniformed state law enforcer.42 The term first crept into Supreme Court jurisprudence even later.43

that power. Indeed, the Founders' intent to protect individual liberties was made clear by the language of the Ninth Amendment and its equivalent in state constitutions of the founding era. The Ninth Amendment, which declares that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," provides a clear indication that the Framers assumed that persons may do whatever is not justly prohibited by the Constitution rather than that the government may do whatever is not justly prohibited to it. See Randy E. Barnett, Introduction: James Madison's Ninth Amendment, in THE RIGHTS RETAINED BY THE PEOPLE 43 (Randy E. Barnett ed., 1989).

38See JAMES S. CAMPBELL ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT TO THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE 450 (1970) (discussing survey by the President's Commission on Law Enforcement and Administration of Justice).

39 The term "policing" originally meant promoting the public good or the community life rather than preserving security. See Rogan Kersh et al., "More a Distinction of Words than Things": The Evolution of Separated Powers in the American States, 4 ROGER WILLIAMS U. L. REV. 5, 21 (1998).

40See, e.g., N.C. CONST. of Dec. 18, 1776, Dec. of Rights, II (providing that people of the state have a right to regulate the internal government and "police thereof); PA. CONST. of Sept. 28, 1776, Dec. of Rights, art. III (stating that the people have a right of "governing and regulating the internal police of [the people]").

41See Police Jury v. Britton, 82 U.S. (15 Wall.) 566 (1872). The purpose of such juries was 1) to police slaves and runaways, (2) to repair roads, bridges, and other infrastructure, and (3) to lay taxes as necessary for such acts. Id. at 568. See also BLACK'S LAW DICTIONARY 801 (abridged 6th ed. 1991).

42 When Blackstone wrote of offenses against "the public police and economy" in 1769, he meant offenses against the "due regulation and domestic order of the kingdom" such as clandestine marriage, bigamy, rendering bridges inconvenient to pass, vagrancy, and operating gambling houses. 4 WILLIAM BLACKSTONE, COMMENTARIES 924-27 (George Chase ed., Baker, Voorhis& Co. 1938) (1769).

43See, e.g., Wolf v. Colorado, 338 U.S. 25,27-28 (1948) (proclaiming that "security of one's privacy against arbitrary intrusion by the police" is at the core of the Fourth Amendment (clearly a slight misstatement of the Founders' original perception)).

Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.44 Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.45 Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.46

At the time of Tocqueville's observations (in the 1830s), "the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,"47 yet Tocqueville doubted "whether in any other country crime so seldom escapes punishment."48 Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.49 Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.50 Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.51

Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizen's own terms. "The farther back the [crime rate] figures go," according to

44See Roger Lane, Urbanization and Criminal Violence in the 19th Century: Massachusetts as a Test Case, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 445, 451 (Graham & Gurr dir., 1969) (saying citizens were traditionally supposed to take care of themselves, with help of family, friends, or servants "when available").

45See, e.g., Kennard v. Burton, 25 Me. 39 (1845) (involving collision between two wagons).

46 Lane, supra note 44, at 451.

47 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 96 (J.P. Mayer ed., Harper Perennial Books 1988) (1848).

48Id.

49See id. at 96.

50See Pauline Maier, Popular Uprisings and Civil Authority in Eighteenth-Century America, 27 WM. & MARY Q. 3-35 (1970).

51 DE TOCQUEVILLE, supra note 47, at 72.

historian Roger Lane, "the higher is the relative proportion of serious crimes."52 In other words, before the advent of professional policing, fewer crimes and only the most serious crimes were brought to the attention of the courts.

After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers' era grew less recognizable. The growth of police units reflected a "change in attitude" more than worsening crime rates.53 Americans became less tolerant of violence in their streets and demanded higher standards of conduct.54 Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.55

POLICE AS SOCIAL WORKERS

Few of the duties of Founding-era sheriffs involved criminal law enforcement. Instead, civil executions, attachments and confinements dominated their work.56 When professional police units first arrived on the American scene, they functioned primarily as protectors of public safety, health and welfare. This role followed the "bobbie" model developed in England in the 1830s by the father of professional policing, Sir Robert Peel.57

52 Lane, supra note 44, at 450.

53See id.

54Id.

55See id. at 451.

56See, e.g., Lamb v. Day, 8 Vt. 407 (1836) (involving suit against constable for improper execution of civil writ); Tomlinson v. Wheeler, 1 Aik. 194 (Vt. 1826) (involving sheriff's neglect to execute civil judgment); Stoyel v. Edwards, 3 Day 1 (1807) (involving sheriffs execution of civil judgment).

57 If the modern police profession has a father, it is Sir Robert Peel, who founded the Metropolitan Police of London in 1829. See SUE TITUS REID, CRIMINAL JUSTICE: BLUEPRINTS 58 (5th ed. 1999) (attributing the founding of the first modern police force to Peel). Peel's uniformed officers nicknamed 'Bobbies' after the first name of their founder operated under the direction of a central headquarters (Scotland Yard, named for the site once used by the Kings of Scotland as a residence), walking beats on a full-time basis to prevent crime. See id. Less than three decades later, Parliament enacted a statute requiring every borough and county to have a London-type police force. See id.

The 'Bobbie' model of policing caught on more slowly in the United States, but by the 1880s most major American cities had adopted some type of full-time paid police force. See id. at 59 (noting that the county sheriff system continued in rural areas).

Early police agencies provided a vast array of municipal services, including keeping traffic thoroughfares clear. Boston police made 30,681 arrests during one fiscal year in the 1880s, but in the same year reported 1,472 accidents, secured 2,461 buildings found open, reported thousands of dangerous and defective streets, sidewalks, chimneys, drains, sewers and hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located 1,572 lost children, reported 228 missing (but only 151 found) persons, rescued seven persons from drowning, assisted nearly 2,000 sick, injured, and insane persons, found 311 stray horse teams, and removed more than fifty thousand street obstructions.58

Police were a "kind of catchall or residual welfare agency,"59 a lawful extension of actual state 'police powers.'60 In the Old West, police were a sanitation and repair workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp of OK Corral fame, for example, repaired boardwalks as part of his duties.61

THE WAR ON CRIME

Toward the end of the nineteenth century, police forces took on a brave new role: crime-fighting. The goal of maintaining public order became secondary to chasing lawbreakers. The police cultivated a perception that they were public heroes who "fought crime" in the general, rather than individual sense.

The 1920s saw the rise of the profession's second father or perhaps its wicked stepfather J. Edgar Hoover.62 Hoover's Federal Bureau of Investigation (FBI) came to epitomize the police profession in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster organizations, intercepted communications between suspected criminals, and gathered intelligence for both law enforcement and political purposes.

58See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 151-52 (1993) (citation omitted).

59Id. at 151.

60See id. at 152 (describing early police use of station houses as homeless shelters for the poor). This same type of public problem-solving still remains a large part of police work. Police are called upon to settle landlord-tenant disputes, deliver emergency care, manage traffic, regulate parking, and even to respond to alleged haunted houses. See id. at 151 (recounting 1894 alleged ghost incident in Oakland, California). Police continue to provide essential services to communities, especially at night and on weekends when they are the only social service agency. See SILBERMAN, supra note 6, at 321.

61See GARRY WILLS, A NECESSARY EVIL: A HISTORY OF AMERICAN DISTRUST OF GOVERNMENT 248 (1999) (citation omitted).

62See REID, supra note 57, 65 (5th ed. 1999).

This new view of police as soldiers locked in combat against crime caught on quickly.63 The FBI led local police to develop integrated repositories of fingerprint, criminal, and fraudulent check records. The FBI also took over the gathering of crime statistics (theretofore gathered by a private association),64 and went to war against "Public Enemy Number One" and others on their "Ten Most Wanted" list.65 Popular culture began to see police as a "thin blue line," that "serves and protects" civilized society from chaos and lawlessness.66

THE ABSENCE OF CONSTITUTIONAL CRIME-FIGHTING POWER

But the constitutions of the Founding Era gave no hint of any thin blue line. Nothing in their texts enunciated any governmental power to "fight crime" at all. "Crime-fighting" was intended as the domain of individuals touched by crime. The original design under the American legal order was to restore a semblance of private justice. The courts were a mere forum, or avenue, for private persons to attain justice from a malfeasor.67 The slow alteration of the criminal courts into a venue only for the government's claims against private persons turned the very spirit of the Founders' model on its head.

To suggest that modern policing is extraconstitutional is not to imply that every aspect of police work is constitutionally improper.68 Rather, it is to say

63See JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 129 (1993).

64See id.

65See id. at 130.

66See E.X. BOOZHIE, THE OUTLAW'S BIBLE 15 (1988).

67 Private prosecution was not without costs to taxpayers. The availability of free courtrooms to air grievances tended to promote litigation. In 1804, the Pennsylvania legislature acted to allow juries to make private prosecutors pay the costs of prosecution in especially trifling cases. Act of Dec. 8, 1804 PL3, 4 Sm L 204 (repealed 1860). Private persons were thereafter liable for court costs if they omitted material exculpatory information from a grand jury, thereby causing a grand jury to indict without knowledge of potential defenses. See Commonwealth v. Harkness, 4 Binn. 194 (Pa. 1811). This protection, like many others, was lost when police and public prosecutors took over the criminal justice system in the twentieth century. See United States v. Williams, 504 U.S. 36 (1992) (holding prosecutor has no duty to present exculpatory evidence to grand jury).

68 In the American constitutional scheme, the states have 'general jurisdiction,' meaning they may regulate for public health and welfare and enact whatever means to enforce such regulation as is necessary and constitutionally proper. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), National League of Cities v. Usery, 426 U.S. 833 (1976) (both standing for the general proposition that states have constitutional power to provide for

that the totality and effect of modern policing negates the meaning and purpose of certain constitutional protections the Framers intended to protect and carry forward to future generations. Modern-style policing leaves many fundamental constitutional interests utterly unenforced.

Americans today, for example, are far more vulnerable to invasive searches and seizures by the state than were the Americans of 1791.69 The Framers lived in an era in which much less of the world was in "plain view" of the government and a "stop and frisk" would have been rare indeed.70 The totality of modern policing also places pedestrian and vehicle travel at the mercy of the state, a development the Framers would have almost certainly never sanctioned. These infringements result not from a single aspect of modern policing, but from the whole of modern policing's control over large domains of private life that were once "policed" by private citizens.

THE DEVELOPMENT OF DISTINCTIONS

The treatment of law enforcement in the courts shows that the law of crime control has changed monumentally over the past two centuries. Under the common law, there was no difference whatsoever between the privileges, immunities, and powers of constables and those of private citizens. Constables were literally and figuratively clothed in the same garments as everyone else and faced the same liabilities civil and criminal as everyone else under identical circumstances. Two centuries of jurisprudence, however, have recast the power relationships of these two roles dramatically.

Perhaps the first distinction between the rights of citizen and constabulary came in the form of increased power to arrest. Early in the history of policing, courts held that an officer could arrest if he had "reasonable belief both in the commission of a felony and in the guilt of the arrestee.71 This represented a marginal yet important distinction from the rights of a "private person," who

protection, health, safety, and quality of life for their citizens). See also Lawrence Tribe, American Constitutional Law, 6-3, 7-3 (2d ed. 1988). State and municipal police forces can therefore be viewed as constitutional to the extent they actually carry out the lawful enactments of the state.

69See infra notes 285-398 and their accompanying text.

70See Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 347 (1984).

71See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 567 (1936).

could arrest only if a felony had actually been committed.72 It remains somewhat of a mystery, however, where this distinction was first drawn.73 Scrutiny of the distinction suggests it arose in England in 1827 more than a generation after ratification of the Bill of Rights in the United States.74

Moreover, the distinction was illegitimate from its birth, being a bastardization of an earlier rule allowing constables to arrest upon transmission of reasonably reliable information from a third person.75 The earlier rule made perfect sense when many arrests were executed by private persons. "Authority" was a narrow defense available only to those who met the highest standard of accuracy.76 But when Americans began to delegate their law enforcement duties to professionals, the law relaxed to allow police to execute warrantless felony arrests upon information received from third parties. For obvious reasons, constables could not be required to be "right" all of the time, so the rule of strict liability for false arrest was lost.77

The tradeoff has had the effect of depriving Americans of certainty in the executions of warrantless arrests. Judges now consider only the question of whether there was reasonable ground to suspect an arrestee, rather than whether the arrestee was guilty of any crime. This loss of certainty, when combined with greater deference to the state in most law enforcement matters, has essentially reversed the original intent and purpose of American law enforcement that the state act against stern limitations and at its own peril. Because arrest has become

72See id.

73See id. at 567-71 (discussing earliest scholarly references to the distinction). A 1936 Harvard Law Review article suggested the distinction is a false one owed to improper marshalling of scholarship. See id. (writing of "the general misinterpretation" resulting from a 1780 case in England).

74See id. at 575 n.44 (citing the case of Beckwith v. Philby, 6 B. & C. 635 (K. B. 1827)).

75See id. at 571-72. Although official right was apparently considered somewhat greater than that of private citizens during much of the 1700s, the case law enunciates no support for any such distinction until Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850). It was apparently already the common practice of English constables to arrest upon information from the public in the 1780's. See id. at 572. The "earlier requirement of a charge of a felony had already been entirely forgotten" in England by the early nineteenth century. Id. at 573. According to Hall, the only real distinction in practice in the early nineteenth century was that officers were privileged to draw their suspicions from statements of others, whereas private arrestors had to base their cause for arrest on their own reasonable beliefs. See id. at 569.

76See Rohan v. Sawin, 59 Mass. (5 Cush.) 281, 285 (1850).

77See id.

the near exclusive province of professional police, Americans have fewer assurances that they are free from unreasonable arrests.

Distinctions between the privileges of citizens and police officers grew more rapidly in the twentieth century. State and federal lawmakers enshrined police officers with expansive immunities from firearm laws78 and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes.79 Legislatures also exempted police from toll road charges,80 granted police confidential telephone numbers and auto registration,81 and even exempted police

from fireworks regulations.82 Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them,83 reimbursement of moving expenses when officers receive threats to their lives,84 and even special protections from assailants infected with the AIDS virus.85 Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) "good faith" defense,86while private citizens who do so face up to five years in prison. The tendency of legislatures to equip police with ever-expanding rights, privileges and powers has, if anything, been strengthened rather than limited by the courts.88

78See 18 U.S.C. 925 (a)(l) (2000) (exempting government officers from federal firearm disabilities).

79See, e.g., CAL. PENAL CODE 468 (West 1985) (releasing police from liability for possession of sniper scopes and infrared scopes).

80See, e.g., FLA. STAT. CH. 338. 155 (1990).

81See, e.g., FLA. STAT. CH. 320.025 (1990) (allowing confidential auto registration for police).

82See ARK. CODE ANN. 20-22-703 (Michie 2000).

83See 18 U.S.C. 1114 (amended 1994) (providing whoever murders a federal officer in first degree shall suffer death).

84See CAL. PENAL CODE 832.9 (West 1995).

85See, e.g., CAL. HEALTH & SAFETY CODE 199.95-199.99 (West 1990) (mandating HIV testing for persons charged with interfering with police officers whenever officers request).

86See Electronic Communications Privacy Act, 18 U.S.C. 2511 (2000); United States v. Leon, 104 S. Ct. 3405 (1984).

87See Williams v. Poulos, 11 F.3d 271 (lst Cir. 1993).

88See, e.g., People v. Curtis, 450 P.2d 33, 35 (Cal. 1969) (speaking of the "[g]eneral ac-

But this growing power differential contravenes the principles of equal citizenship that dominated America's founding. The great principle of the American Revolution was, after all, the doctrine of limited government.89 Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority.90 Founding-era constitutions enunciated the principle that all men are "equally free" and that all government is derived from the people.91

RESISTING ARREST

Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation's founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed.92 As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause.93 Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest.94

ceptance" by courts of the elimination of the right to resist unlawful arrest).

89See HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 53 (1981). The statements of James Madison when introducing the proposed amendments to the Constitution before the House of Representatives, June 8, 1789, also support such a reading of the Bill of Rights. House of Representatives, June 8, 1789 Debates, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 647, 657 (David E. Young, ed.) (2d ed. 1995) (stating "the great object in view is to limit and qualify the powers of Government").

90See STORING, supra note 89, at 48.

91See, e.g., MD. CONST. of 1776, art. I (declaring that "all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole"); MASS. CONST. of 1780, art. I ("All men are born free and equal, and have certain natural, essential, and unalienable rights"); N.H. CONST. of 1784, art. I ("All men are born equally free and independent").

92See Coyle v. Hurtin, 10 Johns. 85 (N.Y. 1813).

93See Bad Elk v. United States, 177 U.S. 529 (1900).

94See Rex v. Gay, Quincy Mass. Rep. 1761-1772 91 (Mass. 1763) (acquitting assault

Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.95 Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.96 The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as "absurd, slavish, and destructive of the good and happiness of mankind."97

By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,98 (2) criminalized the resistance of any officer acting in his official capacity,99 (3) eliminated the requirement that an arresting officer present his warrant at the scene,100 and (4) drastically decreased the number and types of arrests for which a warrant is required.101 Although some state courts

defendant who beat a sheriff when sheriff attempted to arrest him pursuant to invalid warrant).

95 See Wolf v. Colorado, 338 U.S. 25, 30 n. 1, 31 n. 2 (1948) (citing cases upholding right to resist unlawful search and seizure).

96See Adams v. State, 48 S.E. 910 (Ga. 1904).

97See MD. CONST. of 1776, art. IV; N.H. Const. of 1784, art. X.

98See, e.g., State v. Kutchara, 350 N.W.2d 924, 927 (Minn. 1984) (saying Minnesota law does not recognize right to resist unlawful arrest or search); People v. Curtis, 450 P.2d 33, 36 (Cal. 1969) (holding California law prohibits forceful resistance to unlawful arrest).

99See, e.g., CAL. PENAL CODE 243 (criminalizing the resistance, delay or obstruction of an officer in the discharge of "any duty of his office"). CAL. PENAL CODE 834(a) (1957) ("If a person has knowledge ... that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest").

100See, e.g., United States v. Charles, 883 F.2d 355 (5th Cir. 1989) (excusing as harmless error the failure of officers executing warrant to have the warrant in hand during raid); United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973) (holding failure to deliver copy of warrant to the party being searched or seized does not invalidate search or seizure in the absence of prejudice); Willeford v. State, 625 S.W.2d 88, 90 (Tex. App. 1981) (upholding validity of search and seizure before arrival of warrant). Not only has the requirement that officers show their warrant before executing it been eliminated, but the requirement that officers announce their authority and purpose before executing search warrants has been all but eliminated. See Richards v. Wisconsin, 570 U.S. 385 (1997) (eliminating requirement that officers be refused admittance before using force to enter the place to be searched in many cases).

101See William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 MO. L. REV. 771 (1993) (discussing the erosion of requirements for arrest warrants in many jurisdictions).

have balked at this march toward efficiency in favor of the state,102 none require the level of protection known to the Framers.103

But the right to resist unlawful arrest can be considered a constitutional one. It stems from the right of every person to his bodily integrity and liberty of movement, among the most fundamental of all rights.104 Substantive due process principles require that the government interfere with such a right only to further a compelling state interest105 and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.106 Thus, the advent of professional policing has endangered important rights of the American people.

The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.107

102See, e.g., Polk v. State, 142 So. 480, 481 (Miss. 1932) (striking down statute allowing warrantless arrest for misdemeanors committed outside an officer's presence); Ex Parte Rhodes, 79 So. 462, 462-63 (Ala. 1918) (holding statute unconstitutional which allowed for warrantless arrest for out-of-presence misdemeanors).

103See Schroeder, supra note 101, at 793.

104See Thor v. Superior Court, 855 P.2d 375, 380 (Cal. 1993) (saying the developing consensus "uniformly recognizes" a patient's right to control his own body, stemming from the "long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination.") (citations omitted). "For self-determination to have any meaning, it cannot be subject to the scrutiny of anyone else's conscience or sensibilities." Id. at 385.

105See Michael v. Hertzler, 900 P.2d 1144, 1145 (Wyo. 1995) (stating if a statute reaches a fundamental interest, courts are to employ strict scrutiny in making determination as to whether enactment is essential to achieve compelling state interest).

106 "[Only] the gravest abuses, endangering paramount interests, give occasion for permissible limitation." Thomas v. Collins, 323 U.S. 516, 530 (1945). A "compelling state interest" is defined as "[o]ne which the state is forced or obliged to protect." BLACK'S LAW DICTIONARY 282 (6th ed. 1990) (citing Coleman v. Coleman, 291 N.E.2d 530, 534 (1972)).

107 The American constitutional order grants to every individual a privilege to stand his ground in the face of a violent challenger and meet violence with violence. A "duty to retreat" evolved in some jurisdictions, however, where a defender contemplates the use of deadly force. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 461 (2d ed. 1986). But with police, the courts have never imposed a duty to retreat. See id. This, combined with the recurring police claim that an attacker might get close enough to grasp the officer's sidearm, has meant, in practical terms, that an officer may repel even a minor physical threat with deadly force.

The effect of this exception for law enforcement officers has been to grant an almost absurd advantage to police in 'self-defense' incidents. Not only do cops have no duty to retreat, but

As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).108 Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.109 Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.110 More than one officer tried for murder in such cases along with fellow police who urged dismissals argued that such killings were in the discharge of official duties.111 Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.112 Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.113 More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.114

In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent sus-

they seem privileged to kill whenever a plausible threat of any injury manifests itself. See infra, notes 115-147, and accompanying text. Cops unlike the general public appear excused whenever they open fire on an individual who threatens any harm even utterly nonlethal against them, such as a verbal threat to punch the officer combined with a step forward. See infra, notes 123-147, and accompanying text.

108See James J. Fyfe, Police Use of Deadly Force: Research and Reform, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 134-40 (George F. Cole & Mare G. Gertz eds., 7th ed. 1998).

109Id. at 135 (quoting Chapman and Crocket).

110See People v. Klein, 137 N.E. 145, 149 (Ill. 1922) (reporting that "numerous" peace officers testified that shooting was the customary method of arresting speeders during trial of peace officer accused of murder).

111See id.; Miller v. People, 74 N.E. 743 (Ill. 1905) (involving village marshal who shot and killed speeding carriage driver).

112See Fyfe, supra note 108, at 137.

113See id. at 140.

114See id. at 141 (table showing fatal shootings per 1,000 police officers, Philadelphia). A study of Philadelphia P.D. firearm discharges from 1970 through 1978 found only two cases that resulted in departmental discipline against officers on duty. See id. at 147 n.2. One case involved an officer firing unnecessary shots into the air; the other involved an officer who shot and killed his wife in a police station during an argument over his paycheck. See id.

pects.115Tennessee v. Garner116 involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.117 The Court limited police use of deadly force to cases of self defense or defense of others.118

As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.119 In no reported case has a judge or jury held an officer liable who used deadly force where a mere "reasonable" belief that human life was in imminent danger existed.120 Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.121 The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating

115 See Tennessee v. Garner, 471 U.S. 1 (1985).

116 471 U.S. 1 (1985).

117See Fyfe, supra 108, at 136.

118 The Garner decision has been interpreted in different ways by different courts and law-making bodies. See Michael R. Smith, Police Use of Deadly Force: How Courts and Policy-Makers Have Misapplied Tennessee v. Garner, 1 KAN. J. L. & PUB. POL'Y, 100, 100-01 (1998). Smith argues that many of these interpretations stem from inaccurate readings of Garner and that lower courts have failed to hold police officers liable according to the standard required by the Supreme Court. See id.

119 On behalf of modern police, courts have adopted a qualified immunity defense to police misconduct claims. Essentially, where cops can justify by plausible explanation that their conduct was within the bounds of their occupational duties, there is a "good faith" defense. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Procunier v. Navarette, 434 U.S. 555 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976); Wood v. Strickland, 420 U.S. 308 (1975). But as David Rudovsky points out, the "good faith" defense is an artificial ingredient to normal tort liability. "The standard rule," notes Rudovsky, "is that a violation of another's rights or the failure to adhere to prescribed standards of conduct constitutes grounds for liability." David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 248 (David Kairys ed., 1982). The "good faith" defense for police is thus an artificial layer of tort immunity protection not normally available to other types of litigants. Under the standard rules of tort law, after all, a defendant's good faith, intent, or knowledge of the law are irrelevant. See id. at 248.

120See Smith, supra note 118, at 117.

121See id. at 106.

to "take up a defensive position," drawing criticism from Judge Kozinski that the court had adopted the "007 standard" for police shootings.122

Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,123 reach for their identification too quickly,124 reach into a jacket or pocket,125 "make a motion" of going for a gun,126 turn either toward or away from officers,127 'pull away' from an officer as an officer opened a car door,128 rub their eyes and stumble forward after a mace attack,129 or allegedly lunge with a knife,130 a hatchet,131or a ballpoint pen.132 Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object a Jack Daniel's whiskey bottle,133 a metal rod,134 a wooden stick,135 a kitchen knife (even while eating

122 Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000) (Kozinski, J., dissenting).

123 OCTOBER 22 COALITION TO STOP POLICE BRUTALITY ET AL., STOLEN LIVES: KILLED BY LAW ENFORCEMENT 307 (2d. ed. 1999) (hereinafter "STOLEN LIVES") (saying officer shot and killed victim after victim 'made a move' following a foot chase).

124See id. at 207 (listing a 1993 Michigan case).

125See id. at 262 (reporting 1990 Brooklyn case in which cop had shot unarmed teenage suspect in back of head for allegedly reaching into jacket).

126See id. at 250 (reporting 1996 New York case in which man was shot 24 times by police while sitting in car with his hands in the air); id. at 252 (reporting shooting of alleged car thief after motion as if they were going for a gun').

127See id. at 262 (reporting 1990 Bronx shooting precipitated by the decedent turning toward an officer as officer opened door of decedent's cab).

128See id. at 263 (reporting 1988 New York case initiated when a driver made illegal turn and ending with police pumping 16 bullets into her).

129See id. at 262 (reporting 1990 Brooklyn case in which decedent was shot nine times while standing and twice in back while lying on ground).

130See id. at 240 (reporting a 1998 New York case).

131See id. at 232 (reporting 1991 New Mexico case).

132See id. at 220 (reporting 1998 Nevada case).

133See id. at 29.

134Id. at 44.

dinner),136 a screwdriver,137 a rake138 or even refused an order to raise their hands.139

Cops who shoot an individual holding a shiny object that can be said to resemble a gun such as a cash box,140 a shiny silver pen,141 a TV remote control,142 or even a can opener143 are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.144 In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence.145 Seventy-five to eighty percent of all Houston officers ap-

135Id. at 46. The possession of a wooden stick has cost more than one person his life at the hands of police. See also id. at 68.

136Id. at 53.

137Id. at 53.

138See Detroit Police Kill Mentally Ill Deaf Man, BOSTON GLOBE, Aug. 31, 2000 at A8.

139See STOLEN LIVES, supra note 123, at 57. 140See id. at 60.

141See id. at 62.

142See id. at 206 (listing a 1993 Michigan case). In another Michigan case, a cop shot someone who merely had a VCR remote control in his pocket, claiming he mistook it for a gun. See id. at 205.

143See id. at 305 (saying Houston police surrounded truck and fired 59 times at victim as he sat in truck holding can opener). No civilian witnesses saw the "shiny object" (can opener) police claimed they saw. See id.

144 Police use of throwdown guns has been alleged across the country. Guns which are introduced without a suspect's fingerprints when they should have fingerprints, and guns that are found by police officers after an initial, supposedly complete, search of a crime scene by other detectives, can be said to raise questions about police use of throw-down guns. C.f. Joe Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (raising the issue in a San Diego case).

145See Webster v. City of Houston, 689 F.2d 1220, 1227 (5th Cir. 1982).

patently carried "throw-down" weapons for such purposes.146 Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.147

Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.148 Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.149 Only where the claimed imminent threat seems too contrived such as where an officer opened fire to defend himself from a pair of fingernail clippers150 or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.151

As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).152 Yet in modern criminal courts, police tend to be

146Id. at 1222.

147See id. at 1221-23 (describing "damning" evidence of official cover-up and police vindication as a matter of policy).

148See STOLEN LIVES, supra note 123, at 72. In one 1987 Los Angeles case, a man was shot four times and killed when he picked up a discarded pushbroom to deflect police baton blows. See id. 72.

149See id. at iv. In one particularly egregious case, a police killing was upheld as beyond liability where officers shot a speeding trucker who refused to stop. See Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993). But see, e.g., Gutierrez-Rodriquez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) (affirming verdict against plainclothes officers who shot driver who drove away); Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987) (affirming verdict against officers who shot driver as driver reached into jacket pocket during questioning); Moody v. Ferguson, 732 F. Supp. 176 (D.S.L. 1989) (rendering judgment against officers who shot driver fleeing in vehicle from traffic stop).

150See Zuchel v. City and County of Denver, Colorado, 997 F.2d 730 (10th Cir. 1993).

151See Alison L. Patton, The Endless Cycle of Abuse: Why 42 U.S.C. 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L. J. 753, 754 (1993) (saying plaintiffs rarely win absent independent witnesses or physical evidence).

152See Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 288 (1994). Prior to the 1900s, it was not uncommon for law enforcers who killed suspects during confrontations to be placed on trial for their lives even when they reacted to violent resisters. See United States v. Rice, 27 F. Cas. 795 (C.C.N.C. 1875) (No. 16,153) (involving deputy United States Marshall on trial for murder of tax evasion suspect); State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853) (fining peace officers for assault and false imprisonment); Conner v. Commonwealth, 3 Bin. 38 (Pa. 1810) (involving a constable indicted for refusing to execute arrest warrant). Even justices of the peace

more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.153 Under the Framers' common law, this conflict of interest did not arise at all because a citizen grand jury independent from the state attorney general brought charges against a criminal officer, and the officer's victim prosecuted the matter before a petit jury.154 But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.

The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.155 At least 2,000 Americans have been killed at the hands of law enforcement since 1990.156 Some one-fourth of these killings about fifty per year are alleged by some authorities to be in the nature of murders.157 Yet only a handful have led to indictment, conviction and incarceration.158 This is true even though most police killings involve victims who were unarmed or

committed no crime.159

Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets

could be criminally indicted for dereliction of duties. See Respublica v. Montgomery, Dall. 419 (1795) (upholding validity of a criminal charge against a justice of the peace who failed to suppress a riot).

153See Davis, supra note 152, at 290 (noting the hopeless conflict of interest in handling police violence complaints).

154 For an overview of the powers of early grand juries to accuse government officials, see Roger Roots, If It's Not a Runaway, It's Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).

155See Steiker, supra note 3, at 836 (saying police excesses such as beatings, torture, false arrests and the third degree arc well documented).

156See STOLEN LIVES, supra note 123, at vii.

157See International Secretariat of Amnesty International, News Release, From Alabama to Wyoming: 50 Counts of Double Standards - The Missing Entries in the US Report on Human Rights, Feb. 25, 1999.

158See STOLEN LIVES, supra note 123, at iv.

159See id. at v.

at a victim where one or two would stop the individual.160 Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.161

From the earliest arrival of professional policing upon America's shores, police severely taxed both the largess and the liberties of the citizenry.162 In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar "crimes," or detained them on mere "suspicion."163 Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.164 In the name of law enforcement, police became professional lawbreakers, "constantly breaking in upon common law and ... statute law."165 In 1903 a former New York City

160 Certain examples demonstrate. FBI agents in Elizabeth, New Jersey shot 38 times inside an apartment to kill an unarmed man who they first tried to say had fired first. See id. at 226. In February 1999, Bronx police fired 41 bullets at an unarmed African immigrant in his apartment doorway. See id. at 234. After this unlawful killing, cops unlawfully searched the decedent's apartment to justify shooting, failing to find any evidence of drugs. See id. In August 1999, Manhattan cops fired a total of 35 shots at alleged robber (who probably did not fire), injuring bystander and sending crowds fleeing. See id.

161 Most states that allow the death penalty require that aggravating factors exist before imposition of capital punishment. See, e.g., IDAHO CODE 19-2515 (1997) (allowing death penalty for crimes involving "especially heinous, atrocious or cruel, [or] manifesting exceptional depravity" or showing "utter disregard for human life"); TEX. CRIM. P. ANN. 37.071 (West 1981) (listing factors such as whether the crime was "unreasonable in response to the provocation"); WYO. STAT. ANN. 6-2-102 (Michie 1999) (allowing death penalty only upon a finding of aggravating factors such as a creation of great risk of death to two or more persons or for "especially atrocious or cruel" conduct).

162 The earliest attempts at professionalization of constables failed in the United States due to insufficiency of public funds. See Steiker, supra note 3, at 831. Some of the earliest U.S. Supreme Court decisions regarding police forces involve disputes over municipal police spending. See, e.g., Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170 (1909) (resolving dispute over debts run up by municipal police district); New Orleans v. Benjamin, 153 U.S. 411 (1894) (involving dispute over unbudgeted debts run up by New Orleans police board); District of Columbia v. Hutton, 143 U.S. 18 (1891) (dealing with salary dispute involving District of Columbia police force).

163See FRIEDMAN, supra note 58, at 362 (1993). Dallas police, for example, arrested 8,526 people in 1929 "on suspicion" but charged less than five percent of them with a crime. See id.

164 The infamous case of Brown v. Mississippi, 297 U.S. 278 (1936), provides a grim reminder of the torture techniques that have been employed upon suspects during the past century. In Brown, officers placed nooses around the necks of suspects, temporarily hanged them, and cut their backs to pieces with a leather strap to gain confessions. Id. at 281-82.

165 FRIEDMAN, supra note 58, at 151 n.20 (quoting George S. McWatters, who studied

police commissioner remarked that he had seen "a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest.... The police are practically above the law."166

THE SAFETY OF THE POLICE PROFESSION

Defenders of police violence often cite the dangerous nature of police work, claiming the police occupation is filled with risks to life and health. Police training itself especially elite SWAT-type or paramilitary training that many officers crave reinforces the "dangerousness" of police work in the officers' own minds.167 There is some truth to this perception, in that around one hundred officers are feloniously killed in the line of duty each year in the United States.168

But police work's billing as a dangerous profession plummets in credibility when viewed from a broader perspective. Homicide, after all, is the second leading cause of death on the job for all American workers.169 The taxicab industry suffers homicide rates almost six times higher than the police and detective industry.170 A police officer's death on the job is almost as likely to be from an accident as from homicide.171 When overall rates of injury and death on the job are examined, policing barely ranks at all. The highest rates of fatal workplace injuries occur in the mining and construction industries, with transportation, manufacturing and agriculture following close behind.172 Fully 98 percent of all

New York detectives in the 1870s).

166See TITUS REID, supra note 57, at 122 (citations omitted).

167See Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS. 1, 11 (1997).

168 One-hundred-seventeen federal, state, and local officers were killed feloniously in 1996 the lowest number since 1960. See Sue TITUS REID, supra note 57, at 123.

169See National Institute for Occupational Safety and Health, Violence in the Work Place, June 1997.

170See id.

171 Approximately 40 percent of police deaths are due to accidents. See TITUS REID, supra note 57, at 123.

172See National Institute for Occupational Safety and Health, Fatal Injuries to Workers in the United States, 1980-1989: A Decade of Surveillance 14 (April 15, 1999); Robert Rockwell, Police Brutality: More than Just a Few Bad Apples, REFUSE & RESIST, Aug. 14, 1997 (describing the "cultivation of the myth of policing as the most dangerous occupation").

fatal workplace injuries occur in the civilian labor force.173

Moreover, police work is generously rewarded in terms of financial, pension and other benefits, not to mention prestige. Police salaries may exceed $100,000 annually plus generous health insurance and pension plans placing police in the very highest percentiles of American workers in terms of compensation.174 The founding generation would have been utterly astonished by such a transfer of wealth to professional law enforcers.175 This reality of police safety, security and comfort is one of the best-kept secrets in American labor.

In all, it is questionable whether modern policing actually decreases the level of bloodshed on American streets. Police often bring mayhem, confusion and violence wherever they are called.176 Approximately one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders.177 Cops occasionally prevent rather than execute rescues.178 "Police practices" ranked as the number one cause of violent urban riots of the 1960s.179 Indeed, police actively participated in or even initiated some of the nation's worst riots.180 During the infamous Chicago Police Riot

173See id. at 13.

174See SKOLNICK & FYFE, supra note 63, at 93.

175See Hall, supra note 71, at 582-83 (describing early constables as "[a]bominably paid").

176C.f. STOLEN LIVES, supra note 123, at v (saying when police arrive on the scene, they often escalate the situation rather than defuse it).

177See STOLEN LIVES, supra note 123, at vi.

178See, e.g., Brandon v. City of Providence, 708 A.2d 893 (R.I. 1998) (finding municipality immune from liability when cops prevented relatives of injured shooting victim from taking victim to the hospital before victim died). See also Stolen Lives, supra note 157, at 305 (saying Tennessee police prevented fire fighters from saving victim of fire in 1997 case). Other notorious examples can be cited, including the 1993 Waco fire (in which fire trucks were held back by federal agents) and the 1985 MOVE debacle in Philadelphia in which police dropped a bomb on a building occupied by women and children and then held back fire fighters from rescuing bum victims. See WILLIE L. WILLIAMS, TAKING BACK OUR STREETS: FIGHTING CRIME IN AMERICA 16 (1996) (saying investigative hearings revealed cops had held back rescuers as a 'tactical decision').

179See SKOLNICK & FYFE, supra note 63, at 75 (citing U.S. Civil Disorder Commission study).

180See SKOLNICK & FYFE, supra note 63, at 83 (describing police riots at Columbia University and Los Angeles).

during the Democratic National Convention in 1968, police physically attacked 63 newsmen and indiscriminately beat and clubbed numerous innocent bystand-

ers.181

PROFESSIONALISM?

If the modern model of cop-driven criminal justice has any defense at all, it is its "professionalism." Private law enforcement of the type intended by the Framers was supposedly more inclined toward lax and arbitrary enforcement than professional officers who are sworn to uphold the law.182 Upon scrutiny, however, the claim that professional police are more reliable, less arbitrary, and more capable of objective law enforcement than private law enforcers is drastically undermined.

The constitutional model of law enforcement (investigation by a citizen grand jury, arrest by private individuals, constables or citizens watch, and private prosecution) became seen as inefficient and ineffective as America entered its industrial age.183 Yet the grand jury in its natural and unhobbled state is more, rather than less, able to pursue investigations when compared to professional police. Grand jurors are not constrained by the Fourth, Fifth or Sixth amendments or at least the "exclusionary rule" fashioned by the courts to enforce those amendments.184

In the absence of police troops to enforce the law, the early criminal justice system was hardly as hobbled and impotent as conventional wisdom suggests. Private watch groups and broad-based advocacy groups existed to enforce laws and track criminals among jurisdictions. Thousands of local antihorsethief associations and countless 'detecting societies' sprang up to answer the call of crime

181See RIGHTS IN CONFLICT: THE OFFICIAL REPORT TO THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE xxiii, xxvi (1968).

182See John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 ARK. L. REV. 511 (1994) (attacking private prosecution as unfair, arbitrary, and not in the public interest).

183See Hall, supra note 71, at 580-85 (detailing inadequacies of private law enforcement).

184See United States v. Wong, 431 U.S. 174 (1977) (holding Miranda requirements do not apply to a witness testifying before a grand jury); United States v. Calandra, 414 U.S. 338 (1974) (holding grand jury witness may not refuse to answer questions on ground that they are based on evidence obtained from unlawful search); United States v. Dionisio, 410 U.S. 1 (1973) (holding seizure of a person by subpoena for grand jury appearance is generally not within Fourth Amendment's protection).

victims in the nineteenth century.185 In Maine, the "Penobscot Temperance League" hired detectives to investigate and initiate criminal cases against illegal liquor traffickers.186 In the 1870s a private group called the Society for the Suppression of Vice became so zealous in garnering prosecutions of the immoral that it was accused in 1878 of coercing a defendant into mailing birth control information in violation of federal statutes,187 one of the earliest known instances of conduct that later became defined as entrapment.188 Although some of these private crime-fighting groups were invested with limited state law enforcement powers,189 they were not police officers in the modern sense and received no remuneration.

Such volunteer nonprofessionals continue to aid law enforcement as auxiliary officers in many American communities.190 Additionally, private organizations affiliated with regional chambers of commerce, neighborhood watch and other citizens' groups continue to play a substantial though underappreciated role in fighting crime.191 America also has a long history of outright vigilante justice, although such vigilantism has been exaggerated both in its sordidness192 and in

185See Richard M. Brown, Historical Patterns of Violence in America, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 57 (Graham & Gurr, ed. 1969).

186See State v. Walker, 32 Me. 195 (1850) (upholding actions of the private group).

187 See United States v. Whittier, 28 F. Cas. 591 (C.C.E.D. Mo. 1878).

188See supra notes 438-445 and accompanying text for a discussion of the evolution of entrapment as a law enforcement practice.

189See Richard Maxwell Brown, The American Vigilante Tradition, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 57 (Graham & Gurr, dir. 1969).

190See JAMES S. CAMPBELL, ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT 441 (1970) (discussing successes of citizen auxiliary units in Queens, New York and other areas).

191See id. 437-54 (1970) (discussing successes of citizen involvement in law enforcement).

192 American frontier vigilantism generally targeted serious criminals such as murderers, coach robbers and rapists as well as horse thieves, counterfeiters, outlaws, and 'bad men.' See NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 97 (Graham & Gurr, dir. 1969). Arguably, such offenders qualified as felons and would have faced the death penalty under the common law even if more conventional court processes were followed. That such vigilante movements often followed rudimentary due process of law is attested by historians such as

its scope.193

Moreover, government-operated policing is hardly a monopoly even today, neither in maintaining order nor over matters of expertise and intelligence-gathering.194 There are three times more private security guards than public police officers and even activities such as guarding government buildings (including police stations) and forensic analysis are now done by private security personnel.195

The chief selling point for professional policing seems to be the idea that sworn government agents are more competent crime solvers than grand juries, private prosecutors, and unpaid volunteers. But this claim disintegrates when the

Richard Maxwell Brown, who recounts that "vigilantes' attention to the spirit of law and order caused them to provide, by their lights, a fair but speedy trial." Richard Maxwell Brown, supra note 189, at 164. The northern Illinois Regulator movement of 1841, for example, provided accused horse thieves and murderers with a lawyer, an opportunity to challenge jurors, and an arraignment. See id. at 163. At least one accused murderer was acquitted by a vigilante court on the Wyoming frontier. See Joe B. Frantz, The Frontier Tradition: An Invitation to Violence, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 129-30 (Graham & Gurr, dir. 1969). Many accused were let off with whipping and expulsion rather than execution in the early decades of vigilante justice. See Brown, supra note 189, at 164. Less than half of all vigilante groups ever killed anyone. See id. Ironically, the move by vigilante groups toward killing convicted suspects began in the 1850s, corresponding closely with the meteoric rise of professional policing. See id.

Vigilante movements occasionally developed to rescue the law from corrupt public officials who were violating the law. The case of the vigilantes who arrested and hanged Sheriff Henry Plummer of Virginia City, Montana in 1864 is such an example. See LEW L. CALLAWAY, MONTANA'S RIGHTEOUS HANGMEN (1997) (arguing the vigilantes had no choice but to take the law into their own hands).

193 "[T]he Western frontier developed too swiftly for the courts of justice to keep up with the progression of the people." Joe B. Frantz, supra note 192, at 128. Vigilante movements did little more than play catch-up to what can only be described as rampant frontier lawlessness. Five-thousand wanted men roamed Texas in 1877. See id. at 128. Major crimes often went totally unprosecuted and countless offenders whose crimes were well known lived openly without fear of arrest on the western frontier. See id. Vigilantes filled in only the most gaping holes in court jurisdiction, generally (but not always) intervening to arrest only the perpetrators of serious crimes. See id. and at 130 (saying "improvised group action" was the only resort for many on the far frontier).

194 David H. Bayley & Clifford D. Shearing, The Future of Policing, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 150, 150 (George F. Cole & Marc G. Gertz, eds., 7th ed. 1998).

195See id. at 151, 154.

realities of police personnel are considered. In 1998, for example, forty percent of graduating recruits of the Washington, D.C. police academy failed the comprehensive exam required for employment on the force and were described as "practically illiterate" and "borderline-retarded."196 As a practical matter, police are more dependent upon the public than the public is dependent upon police.197

Cops rely on the public for a very high percentage of their investigation clearances. As the rate of crimes committed by strangers increases, the rate of clearance by the police invariably declines.198 Roughly two-thirds of major robbery and burglary arrests occur solely because a witness can identify the offender, the offender is caught at or near the crime scene, or the offender leaves evidence at the scene.199 In contrast, where a suspect cannot be identified in such ways, odds are high that the crime will go unsolved.200

Studies show that as government policing has taken over criminal investigations, the rates of clearance for murder investigations have actually gone down. For more than three decades while police units have expanded greatly in size, power and jurisdiction the gap between the number of homicides in the United States and the number of cases solved has widened by almost twenty percent.201 Today, almost three in ten homicides go unsolved.202

DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE

Moreover, a surprisingly high number of police conclusions are simply wrong. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct.203 In the 25-year period following the Su-

196 Tucker Carlson, Washington's Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

197See SILBERMAN, supra note 6, at 297. Silberman points out that New York City police solved only two percent of robbery cases in which a witness could not identify an offender or the offender was not captured at the scene. See id.

198 See id. at 296 (saying clearance rate dropped precipitously between 1960 and 1976 as proportion of crimes committed by strangers increased).

199See id. (citing figures registered between 1960 and 1976).

200See id. at 296.

201See Laura Parker & Gary Fields, Unsolved Killings on Rise: Percent of Cases Closed Drops From 86% to 69%, USA TODAY, Feb. 22, 2000, at A1.

202See id.

203See BARRY SCHECK, ET AL., ACTUAL INNOCENCE 175 (2000).

preme Court's ruling in Gregg v. Georgia204 reaffirming the use of capital punishment, one innocent person has been freed from death row for every seven who have been executed.205 In Illinois, Thirteen men have been freed from death row since 1977 after proving their innocence more than the twelve who were actually put to death over the same period. Governor George Ryan finally ordered a moratorium on executions until the death penalty system could be revamped,206 referring to the death penalty system as "fraught with error."207

Yet death penalty cases are afforded far more due process and scrutiny of evidence than noncapital cases. If anything, the error rate of police in noncapital cases is likely substantially higher. Governor Ryan's words would seem to apply doubly to the entire system of police-driven investigation.

The advent of DNA analysis in the courtrooms of the 1990s greatly accelerated the rate at which police errors have been proven in court, even while avenues for defendants' appeals have been systematically cut off by Congress and state legislatures.208 DNA testing before trial has exonerated at least 5000 prime suspects who would likely have otherwise been tried on other police evidence.209 Often, exculpatory DNA revelations have come in cases where other police-generated evidence was irreconcilable, suggesting falsification of evidence or other police misconduct.210 The sheer number of wrongly accused persons freed by DNA evidence makes it beyond dispute that police investigations are far less trustworthy than the public would like to believe.211

204 428 U.S. 153 (1976) (finding death penalty constitutional so long as adequate procedures are provided to a defendant).

205See SCHECK, supra note 203, at 218.

206See Illinois Governor Orders Execution Moratorium, USA TODAY, Feb. 1, 2000, at 3A.

207See id.

208See SCHECK, supra note 203, at 218 (noting an average of 4.6 condemned people per year have been set free after 1996, while only 2.5 death row inmates per year were freed between 1973 and 1993).

209See id. at xv (noting these 5,000 exonerations came from only the first 18 thousand results of DNA testing at crime laboratories a rate of almost 30% exonerated).

210C.f. id. at 180 (detailing indictment of four officers for perjury and obstruction of justice in the wake of one DNA exoneration).

211 DNA testing has proven that at least 67 people were sent to prison or death row for crimes they did not commit. See id. at xiv. This number grows each month. See id.

Even more unjustified is the notion that a justice system powered by professional police possesses higher levels of integrity, trustworthiness and credibility than the criminal justice model intended by the Framers. Within the criminal justice system, cops are regarded as little more than professional witnesses of convenience, if not professional perjurers, for the prosecution.212 Almost no authority credits police with high levels of honesty. Indeed, the daily work of cops requires strategic lying as part of the job description.213 Cops lie about the strength of their evidence in order to obtain confessions,214 about giving Miranda warnings to arrestees when on the witness stand,215 and even about substantive evidence when criminal cases need more support. Cops throughout the United States have been caught fabricating, planting and manipulating evidence to obtain convictions where cases would otherwise be very weak.216 Some authorities regard police perjury as so rampant that it can be considered a "subcultural norm rather than an individual aberration" of police officers.217 Large-scale investigations of police units in virtually every major American city have documented massive evidence tampering, abuse of the arresting power, and discriminatory enforcement of laws according to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los Angeles charge that dozens of officers abused their authority by opening fire on unarmed suspects, planting evidence, dealing illegal drugs, or framing some 200 innocent people.218 More than a hundred

212C.f. Morgan Cloud, The Dirty Little Secret, 43 EMORY L. J. 1311, 1311 (1994) (saying "[p]olice perjury is the dirty little secret of our criminal justice system").

213See BURTON S. KATZ, JUSTICE OVERRULED: UNMASKING THE CRIMINAL JUSTICE SYSTEM 77-86 (1999).

214See SILBERMAN, supra note 6, at 308 (describing interrogation techniques of police as "an art form in its own right."). Lying or bluffing can often persuade a suspect to admit crimes to the police which would not otherwise be proven. See id.

215C.f. id. (recounting that an officer under observation would simply lie on the stand if challenged in court about whether Miranda warnings were given before questioning a suspect).

216See Joe Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (exposing that some officers gave false testimony in case of suspected cop-killers).

217 Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305, 1321 (1998) (quoting Jerome H. Skolnick).

218See Daniel B. Wood, One precinct stirs a criminal-justice crisis, CHRISTIAN SCIENCE MONITOR, Feb. 18, 2000, at 1.

prosecutions had to be dismissed in Chicago in 1997 due to similar police misconduct.219 During the infamous "French connection" case of the 1970s, New York City narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds of cocaine for their own use, making the City's Special Investigating Unit the largest heroin and cocaine dealer in the city.220

Police criminality was so acute in New Orleans during the 1980s and 1990s that people were afraid to report crimes for fear that corrupt officers would retaliate or tip off organized crime figures. One New Orleans officer was convicted of ordering the execution of a witness who reported him to the internal affairs unit for allegedly pistol-whipping a teenager.221 Thirty-six Washington, D.C. officers were indicted on charges such as drug dealing, sexual assault, murder, sodomy and kidnapping in 1992.222

In Detroit, repeated corruption allegations have seen a number of low- and high-ranking officers go to prison for drug trafficking, hiring hit men, providing drug protection, and looting informant funds.223 Police burglary rings have been uncovered in several cities.224

Patterns of police abuse tend to repeat themselves in major American cities despite endless attempts at reform.225 New York City police, for example, have been the subject of dozens of wide-ranging corruption probes over the past hundred years226 yet continue to generate corruption allegations.227 Police exhibit

219See TITUS REID, supra note 57, at 120.

220See SILBERMAN, supra note 6, at 231.

221See Gary Fields, New Orleans' Crime Fight Started With Police, USA TODAY, Feb. 1, 2000, at 6A.

222See Tucker Carlson, Washington's Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

223See Abuse of Power, DETROIT NEWS, May 3, 1996.