By Benjamin Lempert*
The movement to reform American policing should strive not only to change how police officers act but how police departments operate. Reformers should pursue not only substantive changes to policing as a practice but procedural reforms to policing as a bureaucracy. In two recent works, scholars contemplate procedural reforms to policing by applying principles of administrative procedure to police departments. Barry Friedman’s Unwarranted: Policing Without Permission reveals how police departments fail to subject their decisions to the democratic scrutiny that is required of most other federal and state agencies.[i] Nestor M. Davidson’s “Localist Administrative Law” considers, in broader strokes, the benefits of applying principles of administrative procedure to municipal settings like police departments. [ii] Taken together, these works show how reforms to police bureaucracy will play a necessary, even if not sufficient, role in improving American policing.
The Administrative Procedure Act and its state counterparts aspire to demand transparency, rationality and accountability from agency policymaking.[iii] Barry Friedman’s recent work overflows with examples of police departments failing to abide by these principles. In one striking case, the Los Angeles County Sheriff’s Department flew a surveillance plane over Compton, CA for nine days in 2012. Attached to the plane was a high-resolution camera that captured footage precise enough to show a necklace snatching happening below. Local democratic bodies or citizens had not had the opportunity to weigh the risks and benefits of this invasive policy. To the contrary, “none of the residents knew [about the surveillance]; even the mayor was kept in the dark,” Friedman writes.[iv] “This system was kind of kept confidential from everybody in the public,” a sergeant with LA County told the Atlantic. “A lot of people have a problem with the eye in the sky, the Big Brother, so in order to mitigate those kinds of complaints we basically kept it pretty hush-hush.”[v]
Police departments fail to subject their decisions to democratic scrutiny not only in the domain of surveillance policy. Friedman reports that, without notice, police departments have changed use-of-force rules about when SWAT may requested.[vi] Similarly, when the Department of the Defense offered to retire and repurpose military equipment for municipal use, hundreds of police departments purchased large stores military-grade equipment – MRAPs, grenade launchers, and more – in a process which took place “outside of local government’s standard budget process and without civilian (non-police) government approval.”[vii]
If a federal agency wanted to purchase stores of new equipment, especially equipment that might change the very nature of an agency’s work, that agency would almost certainly have to alert the public, receive comments, and justify its decision in light of those comments.[viii] Courts could review its decision in light of the notice-and-comment process and also supervising statutes.[ix] These are the demands of the APA. But police departments face very few, if any, such procedural hurdles.[x]
Most police departments indeed labor under vague enabling statutes, which authorize police to enforce substantive criminal law, but do not say how to do it.[xi] Moreover, although many police departments do codify rules in policy manuals or General Orders, they do not submit to democratic procedures in order to do so.[xii] These rules are often not public; even if they are, these rules do not undergo anything resembling the public comment process, where departments would respond on the record and justify the choice to, say, surveil Compton at such level of depth.[xiii] Police departments operate inside few familiar administrative guardrails.
The move for “democratic policing” therefore has much to offer. If police needed to publicize their decisions about equipment purchases, surveillance tactics, stop-and-frisk, and other increasingly unpopular policy choices – if the procedural guardrails were stronger – departments would likely make these choices less often, for precisely the reason that they are unpopular. Even if departments subject to these procedures sometimes made the same unpopular decisions, they would at least do so with the legitimacy that is asked of other agencies in state and federal government.
Procedural change can be a crucial part of the project for police reform. But how crucial? How far can procedural reform go towards creating just and equitable policing? It can go part of the way, but not all of the way, because procedural reforms affect only a small slice of the policy that police departments produce. In particular, procedural reform can only constrain agency decisions about official agency policy. We might expect an agency to undertake notice-and-comment in deciding on, say, an equipment purchase. But we would not expect an individual police officer to undergo notice-and-comment before making a quick decision about who to detain.
For this reason, procedural reform can improve policing only to the extent that the problems in policing flow from official agency policy. Hence, the major challenge for the project of procedural reform: so much of policing depends on the decisions of individual police officers about how to implement policy.[xiv]
Unlike the traditional subjects of administrative law, who work in cubicles and follow clear directives, police usually work out of sight, and they do work that defeats easy codification or standardization.[xv] Police work on the street, away from the supervision of management; they deal with a human subject matter – whether someone constitutes a “threat” to public safety, for instance – that defeats predictable application of rules. [xvi] They are canonical “street-level bureaucrats,” in Michael Lipsky’s terms, who wield wide discretion on the job, and whose decisions may add up to, and sometimes override, official department policy, even or especially when that policy emerges from reformed procedures.
In conclusion, the project of democratic policing should become part of the standard menu of police reform proposals. [xvii] On a range of fundamental policies, from equipment purchases to surveillance to SWAT protocol, police departments take action without subjecting their decisions to appropriate democratic scrutiny. Barry Friedman’s work helps us recognize this flaw in contemporary police administration. At the same time, scholars and practitioners should realize the appropriate scope of these reforms. Administrative procedure is less potent in settings, like policing, where an agency’s output depends on front-line decisions. The most profitable syntheses of administrative law and police reform will recognize these challenges alongside the substantial opportunities.
*Benjamin Lempert is a Junior Editor on MJEAL. He can be reached at firstname.lastname@example.org
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] See Barry Friedman, Unwarranted: Policing without Permission (Farrar, Straus, and Giroux, 2018); Barry Friedman & Maria Ponomarenko, Democratic Policing, 90 NYU L.J. 1827 (2015).
[ii] Nestor M. Davidson, Localist Administrative Law, 126 Yale L.J. 564 (2017).
[iii] Friedman & Ponomarenko, supra note 1, at 1841.
[iv] Friedman, supra note 1 at 46.
[v] Conor Friedersdorf, Eyes Over Compton: How Police Spied on a Whole City, The Atlantic (April 21, 2014), https://www.theatlantic.com/national/archive/2014/04/sheriffs-deputy-compares-drone-surveillance-of-compton-to-big-brother/360954/.
[vi] Friedman, supra note 1 at 95.
[viii] Friedman & Ponomarenko, supra note 2, at 1839.
[xi] Friedman & Ponomarenko, supra note 2, at 1844.
[xiv] Davidson supra note 3, at 606.
[xv] Michael Lipsky, Street-Level Bureaucracy 4 (Russell Sage Foundation eds., 2010).
[xvi] Davidson supra note 3, at 606.
[xvii] See Campaign Zero, Campaign Zero https://www.joincampaignzero.org/#vision, (last visited Oct. 29, 2018). The group advances mostly substantive reforms – body cameras, changes to police training – and few procedural reforms.