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.
Organizational Culture and Police Misconduct
Most police departments defend controversial uses of force by individual officers in one of two ways: as well-intentioned but unfortunate responses to dangerous and ambiguous situations or as the aberrant behavior of rogue cops. These explanations are powerful and important because they frame the way police departments respond to police brutality. This article argues that because the stories police departments tell themselves (and us) about the causes of police violence are flawed and incomplete in essential ways, it is not surprising that judicial, administrative, and departmental responses to police violence are notoriously unsuccessful.The primary defect in these explanations (and the solutions that go with them) is that they view police misconduct as resulting from a series of isolated factual and moral judgments made by officers functioning as individuals rather than as part of a distinctive and influential organizational culture. The "regrettable-accident" explanation asks whether the officer's judgment about how much force to apply was reasonable under the circumstances as known by the officer at the time of the incident. This explanation fails to consider, however, how the officer came to be in that situation in the first place and how her training and role in the police bureaucracy affected the way she viewed the broader parameters of her decision. The "officer-gone-bad" explanation is similarly flawed because it assumes that the misbehaving officer is off on a "frolic and detour" for which she alone is accountable. It allows the department to distance itself from an incident by labeling the perpetrators as deviants who are wholly unlike their fellow officers. Conversely, it allows managers to declare to the rest of the rank and file, "This terrible incident does not reflect on the rest of you." This allows the organization within which the official is embedded to absolve itself of responsibility for facilitating the officer's wrong-doing.By contrast, theoretical and empirical scholarship on policing strongly suggests that organizational factors are a major determinant of police misconduct and thus an important - and often neglected - part of the solution. Unfortunately, like the individualistic explanations police departments offer for the misbehavior of their members, many of the remedies currently invoked to control police brutality are inadequate precisely because they ignore or undervalue institutional and organizational factors.This Article demonstrates the individualistic focus of extant legal remedies and argues that we will never control police brutality unless we take account of the role of organizational culture in creating the milieu that perpetuates police violence. While the rogue cop explanation has turned the focus of attention toward trying to identify problem officers, the real story is that organizational factors interact with individual propensities to produce police brutality. Cops do not arrive at the police department door as fully-formed brutalizers; they are created, in some part, by features of the organizational culture that makes it possible or probable that they will act on their violent propensities. Thus, judicial remedies that focus on individual conduct (and departmental strategies that seek to identify psychological factors that might predispose to violence) must be supplemented by measures whose aim is to change the culture that encourages these propensities to be expressed in a pattern of conduct.
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.