The American Law Institute’s membership voted today to approve Principles of the Law, Policing. The Policing Principles project began in 2015, and is the Institute’s first project in this critical area. Principles are primarily addressed to legislatures, administrative agencies, or private actors.
The project Reporter is Barry Friedman of New York University School of Law. The project’s Associate Reporters are Brandon L. Garrett of Duke University School of Law, Rachel A. Harmon of University of Virginia School of Law, Tracey L. Meares of Yale Law School, Maria Ponomarenko of University of Minnesota Law School, and Christopher Slobogin of Vanderbilt University Law School. Christy E. Lopez of Georgetown Law Center served at Project Fellow.
“This project provides the framework on which to build just and rational policing laws, policies, and practices,” explained ALI Director Richard L. Revesz. “Since this is a Principles project, rather than a Restatement, our goal is not to synthesize judicial precedent. Instead, the Reporters are working to develop best practices for issues concerning policing that have significant legal underpinnings. Our work is informed by a variety of sources, including existing policies and practices in various jurisdictions, social-science research, and constitutional norms. The audience for the project is broad, including legislatures, policing agencies, bodies that regulate or conduct oversight on policing, the public, and also, in some instances, the courts.”
The Policing Principles project has been approved by members in a series of Tentative Drafts at ALI Annual Meetings. With the approval of the 2022 draft, all 14 Chapters are complete. The Chapters are:
Chapter 1: General Principles of Sound Policing
Chapter 2: General Principles of Searches, Seizures, and Information Gathering
Chapter 3: Policing with Individualized Suspicion; Police Encounters
Chapter 4: Policing in the Absence of Individualized Suspicion
Chapter 5: Policing Databases
Chapter 6: Use of Force
Chapter 7: General Principles for Collecting and Preserving Reliable Evidence for the Adjudicative Process
Chapter 8: Forensic-Evidence Gathering
Chapter 9: Eyewitness Identifications; Police Questioning; Informants and Undercover Agents
Chapter 10: Promoting Sound Policing within Agencies
Chapter 11: Role of Other Actors in Promoting Sound Policing
“The goal of the project is to set out a series of principles, or best practices, for policing in the United States,” said project Reporter Barry Friedman. “We assembled these principles by gathering the knowledge and guidance from a wide range of stakeholders, speaking to all of the various sides of the questions we wanted to tackle. Our hope is that legislative bodies would think that these principles provide a good benchmark for sound policing, and that policing police agencies will feel they could and would adopt these practices and policies.”
These Principles already are having an impact in the world. Those that have been have already been approved by the ALI’s membership have been shared with legislators and additional policymakers. Some of the concepts in the Principles—around things like democratic governance, pretextual stops, use of force, and the like—already are being written into law. Said Friedman, “[t]he Reporters all are active in efforts to spread the word further, and these efforts will increase now that the project is completed.”
The first Principles to be approved by ALI’s membership were the Use of Force Principles approved at the 2017 Annual Meeting. Reporter Friedman, through the NYU Policing Project (of which he is the director), worked closely with the Camden County Police Department to establish a revised use of force policy, built largely from the ALI Principles. And the Policing Project has developed a model use of force statute, which is available on its website, and has been the basis for conversations with many legislators.
Friedman explained, “Like the Use of Force Principles found in the ALI project, Camden’s revised use of force policy goes beyond the Supreme Court’s minimal constitutional principles regarding use of force—that an officer may only use force that a reasonable officer would when facing similar circumstances—to clearly state that officers must do everything possible to respect and preserve the sanctity of all human life, avoid unnecessary uses of force, and minimize the force that is used, while still protecting themselves and the public.”
“This project is so useful and so practical because of the breadth of experiences of its Advisers,” said Director Revesz. “The group includes police chiefs and leaders of organizations that have expressed concern about policing practices, including those dealing with racial justice and civil liberties, as well as judges, prosecutors, and defense attorneys. As all close observers of the ALI’s work know, it takes a village to produce an ALI project. I am therefore very grateful to the team of Reporters and to the very dedicated Advisers and Members Consultative Group. At a time when our society appears unusually divided, observing individuals from very different walks of life approach very difficult issues civilly and constructively is a real privilege!” The full list of project Advisers and other participants can be viewed on the project page.
The Reporters, subject to oversight by the Director, will now prepare the Institute’s official text for publication. At this stage, the Reporters are authorized to correct and update citations and other references, to make editorial and stylistic improvements, and to implement any remaining substantive changes agreed to during discussion with the membership and Council, or by motions approved at the Annual Meeting. Until the official text is published, the draft approved by the membership and the Council is the official position of ALI, and may be cited as such.