Academic journal article Harvard Law Review

Retreat: The Supreme Court and the New Police

Academic journal article Harvard Law Review

Retreat: The Supreme Court and the New Police

Article excerpt

On a fall evening a few years ago, New York City police officer Edward Conlon found himself conducting surveillance alone on the rooftop of a walkup apartment building in the South Bronx. He knew there were drug dealers in the building, and as he heard a dog barking angrily, he peered through the darkness at the staircase leading below, wondering if the dog had been released on him. As the barks of the dog grew closer, Conlon began measuring the distance between himself and the stairs, between himself and the edge of the roof. He took out his gun, and as the pit bull mix burst from the stairs, he thought about firing. (1)

The encounter, thankfully, did not end as dramatically as it had begun. A shouting Conlon established communication with residents in the building below, and within a few moments the dog was under control, the gun was holstered, and Conlon was back on the ground below, safe and sound. (2) Yet the story Conlon tells is a nightmare for any police officer. As he was making those life-and-death calculations, he thought about the myriad rules governing police officers today. He thought about the criminal investigation the department would open into his actions were he to fire, and he thought about the excessive force inquiry he might face from Internal Affairs. Conlon would later describe how he was "troubled by how the white noise of politics had impinged on [his] thoughts for the four or five seconds of the confrontation." (3)

It is a powerful story, as it lays bare the central issue in policing today--how much regulation do the police require? The incident on the rooftop might at first blush seem to counsel for a relaxation of the rules governing police work. The rules are supposed to make police, suspects, and the general public safer, but these restrictions were, for Conlon, an unwelcome intrusion in a moment of uncertainty and fear. This was a good officer who, according to his own account, was distracted by external limits on his discretion to the point of exposing himself and others to extreme danger.

Viewed in the light of a sizable literature on the evolution of modern police, however, the incident tells a different tale. Conlon is a good police officer in large part because he was made to be one. (4) He has, like many modern officers, received extensive training from a reinvigorated police brass. He has gained an understanding of constitutional norms governing his line of work, and he has learned to solve problems creatively and cooperatively. Eager and bright, empathetic and firm, he is the consummation of the tectonic forces that have shaped modern policing. Though Conlon bemoans the role that "politics" plays in policing, his story demonstrates that, whether on the mean streets or on the rooftops high above them, the rules work.

The question is: What should the Supreme Court do about good officers like Conlon? Historically, the Supreme Court has vacillated on the question of police oversight. Sometimes the Court has told the police what to do, or, more specifically, what not to do. But the Justices have just as often expressed a reluctance to intervene, declining to limit police ability "to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving." (5) In other words, the Justices sometimes fear to encroach on police discretion.

The Court has recently recognized that today's police are better than ever, and it has pulled back judicial regulation of them on account. The Court has begun its retreat. This approach is not good enough, as it fails to fully appreciate the role that the Court itself has played in the evolution of the modern police. The Supreme Court should instead take advantage of the developments in policing, not by shying away from regulation, but by embracing oversight of law enforcement. We have arrived at a moment in our history when, in the face of legislative indifference, the executive power is waxing. …

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