Summary

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  • Caselist.CitesClass[0]
  • Caselist.CitesClass[1]

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EntryDate

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1		-2016-12-03 21:00:58.47
	1	+2016-12-03 21:00:58.0

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Cites

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	1	+CP text: The United States federal government should subject police officers to ex ante democratic authorization regulation.
	2	+This includes:
	3	+- Creating a democratically elected board made up of community members to authorize police procedure
	4	+- The courts retain authority unless proper authorization is given by the democratic authorization board.
	5	+- Rejecting ex-post regulation
	6	+Ponomarenko and Friedman 15. ***BRACKETED FOR GRAMMAR***
	7	+
	8	+The central point is this: It is both unacceptable and unwise for policing to remain aloof from the democratic processes that apply to the rest of agency government. Rather than attempting to regulate policing primarily post hoc through episodic exclusion motions or the occasional action for money damages, policing policies and practices should be governed through transparent democratic processes such as legislative authorization and public rulemaking. Rather than simply declaring various policing methods in or out of bounds after the fact, judicial review ought to be directed at ensuring that policing is based ante on democratically founded rules. The fact that policing has been in the news the last year or more, and that the whiff of reform is in the air, should neither excuse consideration of the central claim here nor confuse what is at stake. As we explain below, policing has long operated without democratic governance, and this is not the first time in history that policing has proven salient. Each time policing breaks into the public consciousness, some new approach or measure is adopted, some adjustment made. Most often the change is either philosophical—policing should be more“professional”or the police should engage in “community policing”—or it involves some form of ex post “oversight,” such as court-ordered monitors, inspectors general, or civilian complaint review boards. What we have not done as a nation is insist that those who police us be treated as the executive officials they are, subject to the same basic requisites of democracy—namely, transparent, publicly accountable, ex ante regulation. We are hardly the first to suggest that policing is in need of exalted democratic authorization. This drum has been beat, periodically, for at least the last fifty years. The authors of The Challenge of Crime in a Free Society—the Presidents’ Commission on Law Enforcement and the Administration of Justice—did much the same in the 1960s.Noteworthy scholars and judges argued similarly during the 1970s.At that time, a number of academic and professional organizations partnered with law enforcement groups to draft model rules. Today, some scholars have again begun calling for administrative processes, or at least some reasonable facsimile, to govern the police. Much of this scholarship is aimed solely at intelligence gathering, and it too, once again, tends to describe various workarounds to address the accountability deficit. A very few scholars actually suggest some-thing akin to traditional legislative or administrative processes to govern policing, but that scholarship tends to call for change without paying sufficient attention to the reasons why policing has heretofore remained ungoverned, and without addressing the details of how this should happen. Yet, obviously, both are essential. The claim here is that policing agencies may only act pursuant to sufficient democratic authorization. Such authorization can come through specific legislation. It can be the product of administrative notice-and-comment rulemaking, in which public participation is welcomed. Or, given what is unique about policing—not the least of which is the fact that the vast majority of police forces have twenty-five officers or fewer and operate in equally small communities—new means of soliciting democratic engagement may be required. But, in one form or another, democratic authorization is vital. Authorization should be required in any instance in which it is not plausible to infer that age-old, blanket delegations to enforce the criminal law cover current police actions. Courts should superintend the requirement of authorization by engaging in a variety of interpretive techniques, including withholding any sort of deference from policing not so authorized and denying authority to proceed until proper authorization is obtained. Policing should be rationalized, as is the rest of administrative practice, to avoid arbitrary and ill-advised decisions. As is true elsewhere in administrative law, after-the-fact justifications for policing practices that were not adopted pursuant to democratic authorization should not be accepted. The veil of secrecy over policing should be lifted except where operationally essential, because without transparency there is no hope of democratic governance. Although that is our prescription, this Article does much more than simply prescribe. It fills substantial gaps in the extant scholarship by diagnosing why policing has remained under regulated for so longlist documents the costs of this neglect. And, importantly, it explains how—within the framework of constitutional and administrative law—we can motivate change. This comprehensive approach is essential because progress toward democratic policing will not be made until scholars and policymakers come to grips with why prior efforts to accomplish this have come to naught
	9	+
	10	+Police departments are not subject to any external democratic checks, meaning they can pass completely unjustified rules whenever they want – failure to subject department policy to public rulemaking means judicial policy can never occur.
	11	+Ponomarenko and Friedman 2.
	12	+
	13	+Although legislatures rarely govern police methods, policing also escapes regulation under any sort of administrative or rulemaking model. Policing agencies assuredly do have rules. There are internal policy manuals or General Orders. But even these manuals are often silent on critical aspects of policing. There may be rules to govern the use of force, the storage and disposition of confiscated property, and strip searches of arrestees, but none on informants, drones, consent searches, or other investigative tactics. And critically, even when police have rules in place, these rules are virtually never made pursuant to some sort of democratic process. There is no opportunity for formal public comment—and certainly no requirement that police officials respond to public input on the record and justify the choices they’ve made. Indeed, the rules often are not even available to the public. As a result, there typically is no contemporaneous record to show why police officials thought particular rule was necessary or prudent—or that officials even considered less intrusive alternatives and had good reasons to reject them. Failure to subject police rules to the back-and-forth of public rulemaking not only deprives the public of an opportunity to shape policing policy before it goes into effect, it forestalls any sort of meaningful judicial review. At best, courts ask whether a practice is constitutional. There is no “hard look review” of agency action, and no way of knowing whether the rationale offered for an officer’s actions reflects reasoned department policy or simply the creative efforts of a state’s attorney attempting to justify the decision after the fact. Is these of a SWAT team really necessary to ensure officer safety in effectuating a misdemeanor search warrant or administrative inspection? How likely is it that an arrestee’s confederates might try to “wipe” his cellphone remotely following arrest? These are empirical, fact-bound questions, ones that in the administrative law context would have been answered before the policy at issue went into effect. Instead, courts are forced to take judicial notice of academic studies, rely on the testimony of paid experts, or simply accept what attorneys say in their briefs.
	14	+
	15	+The 1AC’s reliance on the judiciary kills solvency as most people don’t file suits and the system is structurally skewed against plaintiffs – even if they win, governments indemnify officers and the Supreme Court refuses to implement rulings, means police behavior doesn’t change, their ruse of solvency turns case.
	16	+Ponomarenko and Friedman 3.
	17	+
	18	+The obvious alternative to the problem of biased adjudication in exclusionary rule cases is for victims of police misconduct to bring civil claims for injunctive relief or money damages under § 1983.Thiswould mirror the former common law remedy, and many scholars argue this sort of ex post relief is preferable to the exclusionary rule. In reality, though, suing the government is a costly and time-consuming endeavor, hardly worth it or within the ken of most people. It’s a serious matter to be tossed against a wall and frisked, to have one’s Internet or email data collected in bulk, or to be detained by the roadside while the police wait for a K-9 to appear or officers wrangle consent from a driver. Still, when that happens to most people they try to shrug it off and live their lives. A further problem is that even when there are plaintiffs inclined to bring cases, a host of judicial doctrines limit the efficaciousness of damages actions in regulating police misconduct. Aggregate litigation, which could solve the problem of the individual plaintiff, faces high justiciability barriers. Clapper v. Amnesty International Saddened standing to plaintiffs who sought to challenge NSA data collection under the “702” program, on the ground that they could not say for certain the NSA was collecting or would collect their communications. City of Los Angeles v. Lyons held that Lyons lacked standing to challenge the LAPD’s use of chokeholds—which had previously killed or injured a number of arrestees—because he could not show with sufficient certainty that he would be subjected to the practice in the future. That the NSA had been spying on all of us, and that Lyons had himself already been the victim of a chokehold, only under-scores the extent to which justiciability rules bar legitimate constitutional complaints. Even when individual or aggregate suits are allowed, immunity doctrines preclude relief. They immunize states entirely, make it extremely difficult to sue municipalities, and leave officers individually responsible only for “clearly established” violations. Even when money damages are imposed, most officers are indemnified for virtually anything they do. And studies show that—as theory predicts—governments are content to pay damages awards without requiring policing agencies to alter behavior, let alone even informing them they lost in court. Civil plaintiffs also face staggering problems of proof that leave rights violations remedied. To take one example, police use of racial profiling is widespread, yet under existing equal protection doctrines plaintiffs cannot prevail absent pattern-and-practice evidence specific to each jurisdiction that can only be accumulated at extraordinary cost. It required a laborious social science study in New Jersey and Maryland to prove that state troopers engaged in widespread racial profiling, subjecting minorities to disproportionate numbers of traffic stops and automobile searches. Stop-and-frisk litigation in New York similarly revealed profound racial bias in policing, yet it has taken years and years of litigation to obtain a judgment. Even when petitioners prevail in judicial proceedings—be it exclusionary rule cases or civil actions—the Supreme Court eschews the development of judicial rules that would serve to deter future violations and thus regulate policing. The Court rejects “rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach,” one that proceeds case by case looking at the totality of the circumstances. For example, in Florida v. Harris, the Supreme Court reversed the Florida Supreme Court’s attempt to establish standards for determining if a canine is sufficiently well-trained that its alert should provide probable cause to search, insisting that litigants must instead fight it out case by case, sniff by sniff. This, despite the fact that studies show drug dogs are notoriously unreliable, in no small part because of trainers rescuing them. Thus, thousands of people are subjected to unnecessary searches, unsupported by probable cause. The same is true of consent searches, for which the Court has refused to adopt clear rules requiring police to inform suspects that they have the right to refuse consent, or restricting the circumstances in which consent may be sought, leaving police free to conduct thousands of searches annually.
	19	+
	20	+Democratic authorization enables productive usages of courts.
	21	+Ponomarenko and Friedman 4.
	22	+
	23	+What if, though, instead of saying “aye” or “nay” to specific policing tactics, courts could simply prod governmental actors— including the police themselves—to adopt their own rules regulating policing in a democratically accountable way? If they did this, they would sidestep problems of competence, and likely backlash as well. Courts need not judge the police, at least in the first instance. They need only assure that someone is filling the regulatory void. (It remains the case, of course, that judicial review will be available to evaluate constitutional challenges to rules that are put in place.) 341 Commentators regularly look to courts to be “deliberation- forcing” or “representation-reinforcing,” or to engage in “dialogue” with the political branches—and courts regularly play this role. 342 The ordinary rules of administrative judicial review, forsaken in the criminal justice context, are directed at precisely this end. Doctrines like Chevron are built on a foundation of deference—but unlike in the realm of policing, deference in administrative law is structured. 343 Deference is the norm only when legislatures make explicit choices or clearly delegate authority, or when agencies make decisions pursuant to notice-and-comment rulemaking. 344 Likewise, courts ought to defer to police decisions about enforcement methods only to the extent that those decisions represent considered, fact-based judgments formulated with democratic input. This sort of channeled deference is nothing new. Under governing doctrine, courts defer more to probable cause determinations if officers obtain warrants in advance. 345 Similarly, courts are more likely to extend qualified immunity to police officers when their decisions are the product of a deliberative internal process as opposed to an ad hoc determination made by an officer on the beat. 346 Judges may find it difficult to second-guess society’s policy decisions. But they surely are in the position to know when policing agencies are acting pursuant to democratically accountable law.

EntryDate

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	1	+2016-12-03 21:00:59.47

Judge

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	1	+Kevin Choi

Opponent

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	1	+Anderson IS

ParentRound

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	1	+0

Round

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	1	+2

Team

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	1	+Westwood Dambal Neg

Title

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	1	+NOVDEC - CP - Democratic Authorization

Tournament

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	1	+UT