The Principles of the Law: Policing project is providing guidance to legislative bodies, courts, and policing issues where there is the most need, including where research, technology, and experience are rendering current approaches to policing obsolete. This project has already generated interest from police departments and others. We presented the first set of Principles on Use of Force at the May 2017 Annual Meeting. Those Principles were adopted at the Meeting, and we since have sent them to many people in response to inquiries.

As with all ALI projects, the Policing project benefits by the diversity of the wisdom and experience of ALI’s members. Now is a great time for members to get involved. The most recent draft—on issues ranging from street encounters to police questioning to suspicionless searches—is going before the Council this month, and we have our next project meeting scheduled in April 2019. If you are not familiar with the project or this area of law, here is some essential information about the scope of the project that will provide context.

When reading a Policing Principles draft, it is vital to remember that we are not synthesizing the rules of constitutional law (something that even the Reporters forget at times). As we all know, constitutional law provides a floor for government conduct, but in no way limits additional regulation that police departments or government entities may impose on policing practices. Although nothing we propose in this project dips below the constitutional floor, on some occasions we exceed that floor, at least as the Constitution has been defined by the courts. When we do so, our Comment and Reporters’ Notes make that clear.

More commonly, we simply are taking a different approach from that of constitutional doctrine. Police departments (and other entities that engage in policing practices) are complex bureaucracies that cannot possibly be governed in their entirety by a limited set of constitutional doctrines. Instead, what is needed are principles that address much of what constitutional law leaves untouched. To give but one example, if something is not a “search” or “seizure” within the meaning of the Fourth Amendment, there is virtually no constitutional regulation of the practice. But many of the policing technologies presently being deployed, from Automatic License Plate Readers (ALPRs) to body cameras, to facial recognition, do not constitute a “search” or “seizure” within existing doctrine, and thus are unregulated by constitutional law (or much of any law) entirely. There are signs some of this is changing, as witnessed by the Supreme Court’s decision this past Term in Carpenter v. United States, 138 S. Ct. 2206 (2018), holding that government acquisition of long-term cell-site location tracking information is a search requiring a warrant. But even as constitutional law evolves, it never will provide a basis for the day-to-day rules that are needed to assure that officers are adequately trained to use these technologies, and that there are policies in place to address accuracy, data recording and retention, data-sharing with other agencies, and the like. The enormous value of this ALI project—which we hear from all quarters regularly, including the many police officials on our Advisers group—is the deep need for guidance on these issues.

Barry Friedman

Reporter, Policing Principles

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at NYU Law.  He is one of the country’s leading authorities on constitutional law, policing, criminal procedure, and the federal courts. He is the author of the critically-acclaimed The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), and the forthcoming book on policing and the Constitution, Unwarranted: Policing without Permission(February 2017). He is the founding director of NYU Law’s Policing Project.

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