. Research a specific police department impacted by a recent regulation

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In Unwarranted: Policing Without Permission, Barry Friedman has tak- en on a monumental task—to fi x the broken relationships between law enforcement agencies and the com- munities they serve. It may seem odd to describe a book about law enforce- ment in relational terms. Friedman’s thesis, however, is that the community being policed must predetermine the proper use of police powers. The dys- functions seen in the execution of po- licing are largely failures of the public to properly exercise their role in this relationship. Unwarranted is Fried- man’s powerful call for “democratic policing. “It requires the public to take responsibility for policing ex ante (be-

fore the fact). Calling for democratic policing is simple in theory; achieving it is far more diffi cult.

Unwarranted is principally a col- lection of stories, carefully selected to illustrate important defi ciencies in our current system of policing. Fried- man uses compelling characters in true stories to describe the state of policing today. Though they are an- ecdotal, case studies must be used to paint a tapestry of police practices, in part because hard data is unavailable for many relevant police activities. Unwarranted’s stories introduce rele- vant topics to the reader before each topic is tied together with discussions of history, civics and political science. Each highlights the failings of a partic- ular police practice. Friedman expos- es the frayed fabric weaving together mass surveillance in the name of an- ti-terrorism, more mundane warrant- less searches and seizures of persons and property, and dramatic police shootings of unarmed suspects.

Friedman does not demonize the

police. Far from it. While abuses by individual offi cers and whole depart- ments are not downplayed, Friedman places the blame for defi cient policing practices on legislatures, courts and, more importantly, on the public.

Friedman’s critiques the current system we use to determine appropri- ate police practices.

Deference to police agencies in establishing best practices is currently combined with post-hoc evaluations of these practices through citizen review boards, lawsuits and judicial decisions. This system has led to a host of hor- rors, including: body cavity searches of people during routine stops conduct- ed without probable cause; swat team home invasions of innocent persons; concussion grenades thrown into the playpen of an infant; massive unwar- ranted electronic surveillance; the use of drones to spy on entire cities; and an epidemic of police shootings. Unwar- ranted is convincing when critiquing the current method of determining how law enforcement personnel police Ph

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Is ‘democratic policing’ the answer to law enforcement abuses? By Michael P. O’Connor

Unwarranted Policing Without Permission By Barry Friedman Farrar, Straus & Giroux. 416p $18

BOOKS

Relationships between law enforcement and the communities they police have deteriorated significantly in minority neighborhoods.

 

 

52 | AMERICAMAGAZINE.ORG

their communities. Legislatures have shown little inclination to curb law enforcement misconduct. Courts have been too solicitous of specious justi- fications for grave misconduct. If we expect law enforcement personnel to do their jobs properly, radical change is necessary.

Relationships between law en- forcement personnel and the commu- nities they police have deteriorated significantly, particularly in minority communities. Unwarranted calls for a sea change in the form of democrat- ic policing. In making his proposal, Friedman sounds more hopeful than convincing. There is little doubt that people should be concerned about the behavior of police and whether poli- cies are sufficiently direct and clear so as to protect individual liberty, privacy and bodily integrity. Little, however, supports his proposition that involv- ing the public in the articulation of police policies will result in greater protection of these interests. Having

spent the better part of two decades representing people on death row, I have witnessed some of the ugliest manifestations of majoritarian views concerning how police should treat criminal suspects.

Friedman recognizes that dem- ocratic control over policing has led to some of the greater abusive police practices. This should come as no sur- prise, as the “tyranny of the majority” was one of the great fears of the fram- ers of the Constitution and one of the reasons our system is a constitutional republic and not a pure democracy. The Catholic reader will recognize the majority’s failure to protect individual and minority rights as a failure to em- brace the principle of solidarity, which abhors injustice and inequality while demanding respect for the rights and dignity of each human being.

Lack of solidarity permits judges to uphold the power of the state when violating the dignity of the individual, who is usually poor and too frequently

a member of a minority. Neither the majority nor the current judiciary see themselves in the poor, minority tar- gets of police oppression or surveil- lance. It is unlikely that we can change things that are inherent in a majoritar- ian viewpoint. Lack of solidarity, how- ever, is not inherent to judging. If we change the process that leads to judi- cial selections, we may change judges’ abilities to respect the rights and dig- nity of the marginalized

Friedman challenges those who would criticize democratic policing to offer alternatives. One possible alter- native is to revise the criteria used to assess judicial qualifications. The fed- eral judiciary is overwhelmingly com- posed of former prosecutors or civil lawyers representing wealthy clients. They feel no solidarity with the poor because they do not know the poor. Lawyers, professors and the Ameri- can Bar Association should demand that for each judicial position, at least one candidate be considered whose clientele was significantly or exclu- sively composed of poor people and minorities. Lawyers who have repre- sented the poor and minorities against powerful opponents will find it eas- ier to uphold the rights of those per- sons when they are before the courts. Many of the most highly intelligent, ethical and compassionate lawyers in this country have spent their careers representing the poor and marginal- ized. Yet these same people are rare- ly considered for judicial openings. Considering one such candidate for each position would increase their representation on the bench. While this would not eliminate the need for democratic policing, it might provide a more viable protection for the rights of the least powerful.

In the Epilogue, Friedman cites

 

 

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the aftermath of recent police shoot- ings as a source of hope for changes in policing. Friedman poignantly iden- tifies how events overtook his writing of Unwarranted and made the issue of controlling police practices more relevant and imperative to the major- ity of Americans. Friedman, of course, could not have known at that time that these same events would be used in the presidential campaign as political fodder, and that President Trump re- jects any critique of police practices. Subsequently, Attorney General Jeff Sessions has stated that the Justice Department will stop monitoring “troubled “police agencies, will “pull back “from lawsuits against police departments accused of violating the rights of minorities, and will seek the

most serious charges available in ev- ery case.” Little criticism followed these announcements, for fear and prejudice often overcome the crowd’s better angels. This coda to Unwarrant- ed’s epilogue highlights the problem of trusting democratic policing to pro- tect the rights of the most vulnerable.

Unwarranted is a timely book that provides great insight into the prob- lems of policing. The public has a vital role to play in determining solutions. However, perhaps the greatest role the majority can play is to recognize the importance of empowering judges who embrace solidarity with the poor.

Michael P. O’Connor is a professor of law at the University of La Verne College of Law in California.

 

 

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