The Problem of Policing
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate to regulate the police. Constitutional law does not protect important interests below the constitutional threshold or effectively address the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation — a fact largely invisible in contemporary scholarship. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits.
Legal Control of the Police
This encyclopedia entry provides an overview of law governing the police. As it notes, police ofﬁcers are granted immense authority by the state to impose harm. The problem of policing the police is how to regulate police ofﬁcers and departments to protect individual liberty and minimize the social costs the police impose while allowing them to do what is necessary to achieve the ends of policing: reducing fear, promoting civil order, and pursuing criminal justice. Constitutional law provides the most well-known check on police conduct. In addition, many other federal, state, and local statutes, constitutional provisions, court decisions, and administrative regulations also govern the police. Since federal constitutional law cannot alone ensure that the beneﬁts of policing are worth the harms it imposes, this participation by other government actors is essential to ensure adequate regulation of the police. However, the laws that presently govern the police are not tailored to balance the individual and societal interests at stake when police ofﬁcers act, they lack coordination, and responsibility for regulating the police is haphazardly allocated. As a result, the present array of laws that polices American policing does not promote law enforcement that is maximally effective and protective of civil rights.
Qualified Immunity: Ignorance Excused
Public officials are immune from damages liability for constitutional violations if they reasonably could have believed their actions were constitutional under clearly established law. In this regard qualified immunity is quite unusual. In most other legal contexts failure to know the law is virtually never excused. The only other context where notice or knowledge of illegality plays any role is in criminal law, but even mistakes of penal law are rarely excused. This article uses fair notice in criminal law as a paradigm for analyzing the role of notice in constitutional damages actions. The article first demonstrates how fair notice in the criminal context is a proxy for fault. The criminal law paradigm is then applied to qualified immunity in constitutional damages cases. The animating notion behind the immunity inquiry is that it would be "unfair" to hold officials to rules they could not reasonably have known. The objective clarity of the law acts as a surrogate for the official's subjective state of mind: Thus, if the law governing the official's conduct was clear, immunity is denied because any reasonably conscientious official would have known and obeyed the law. Conversely, an official who engaged in conduct that was neither clearly prohibited nor contained indicia of its own wrongfulness is not blameworthy and immunity will attach. In the latter case, the clarity of the law -- qualified immunity's notice inquiry -- acts as a proxy for fault. The article then demonstrates how the fault-notice connection borrowed from criminal law explains a puzzling feature of constitutional damages law: The Supreme Court has repeatedly stressed the importance of individual, fault-based liability and resisted a move toward respondeat superior liability. However, the ubiquity of indemnification of individual officials by their governmental units means that officials rarely bear the monetary burden of liability. The article proposes that fault-based, individual liability -- which identifies a particular official as a "constitutional wrongdoer" -- serves a moral blaming function that has significant independent value regardless of who ultimately bears the financial responsibility.