Police Discretion

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S1: This ad free podcast is part of your Slate plus membership.

S2: Before we get started, I want to thank the Whiting Foundation, whose public engagement fellowship has made this season possible. And to Alison Al Holloran and Scottie Voyt, whose ongoing patronage has made every season of hyphenation possible, seen from lately. Charles Carney lived out of a mobile home in San Diego in 1979. He was in his 50s and was suspected by authorities of targeting young boys in the neighborhood. On May 30, first he walked up to a young Mexican boy on the street and started talking. But it happened to catch the attention of two DEA agents in the area.

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S3: Agent Robert Williams of the Drug Enforcement Administration witnessed Mr. Carney’s contact with the young man and watched Mr. Carney and the boy go into the vehicle.

S4: You’re listening to audio from oral arguments at the U.S. Supreme Court in 1984 about Carneys arrest. Lewis High Noyan is arguing for the state. What happened was that the two DEA agents watching Karney intercepted the boy on his way out. The boy told them that he had just been given drugs in exchange for sex with Carney.

S3: At that point in time, they asked the boy to come back to the motor home with them. The boy did that. He knocked on the door of the motor home. Mr. Carney stepped out. Agent Klemm looked into the motorhome, saw two bags of a green, leafy substance, which was later identified to be marijuana. Agent Klemm reported what he saw to Agent Williams, who placed Mr. Carney under arrest.

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S4: What happened next? That is under contention at the Supreme Court.

S5: Carney was already arrested and the agents have probable cause that drug and sex crimes are taking place inside of the mobile home. Could they searched the home without first getting a warrant? The agents didn’t consider it.

S3: Agent Williamson drove the van to the narcotics task force headquarters and then searched the van. In the course of the search, they found a total of about two pounds of marijuana in the refrigerator and in some cupboards.

S6: In addition to the two bags that were found on the table, it turned out that the DEA is warrantless search, turned up all of the evidence they could get to charge Carney with the crime. The boy who was the victim, he disappeared, most likely because he was an undocumented Mexican national, not looking for any more contact with the system. They had no other specific evidence to charge Carney with sex crimes. The motor home was parked. The drapes were closed.

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S1: It contained upholstered furniture. It contained all of the indicia of a home.

S6: This case, Carney case, asked the Supreme Court to decide a super deep philosophical question. But it wasn’t about drugs or consent or Carney.

S2: It’s the question of whether a mobile home was a house or a car.

S7: Is it that the vehicle had wheels self-propelled? It has to be self-propelled. Yes, I would agree. You wouldn’t live by your thought to a trailer park in it. Not when it’s park. No.

S8: What if the vehicle is in one of these mobile home parks and hooked up to water and electricity? What would you do with a houseboat? A houseboat.

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S9: You see, if you wanted to know the boundaries of American police power, you have to figure out what counts as a car. What about campers tent?

S7: The motor home would be subject to search. But then it’s not the tent, not the tent. Why wouldn’t the tent be just as mobile as there’s a self-propelled vehicle? I get it. That’s right. It doesn’t have wheels. Yeah, but you can surely move it just as it is moving. And I should think your reasoning would apply. I’m not saying you’re right or wrong.

S9: Well, I think the reasoning from Slate, this is hyphenation philosophy in story form this season. Crime and Punishment according from Vassar College. Here’s your host, Barry Lapp. I was surprised last year when I looked into the history of American policing and discovered that in addition to the history of slavery, segregation, urbanization and the war on drugs, cars were just as big a role.

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S10: I’d even argue that in the judicial system, they played the largest one. This is that story.

S11: I’m Sarah Sayo. I’m an associate professor of law at Iowa Law School. My book is Policing the Open Road How Cars Transformed American Freedom.

S4: The reason that the Supreme Court in 1984 is involved in one of many pedantic arguments over the years as to what makes a car a car is because of a ruling it made all the way back in 1925, in the early days of the automobile. That ruling, known as the Karyl ruling, stated that cars were an exception to the Fourth Amendment. Americans had a right that their property not be searched without a warrant except when it came to their cars.

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S11: The Carroll case was huge because it completely changed the Fourth Amendment. The rule that came out of the Carroll decision was that if officers have probable cause to believe that evidence of a crime or contraband is in a car, they can stop and search the car without a warrant. And the reason why that’s huge is because instead of requiring officers to go to a judge, the officer could make the determination for him or herself. That greatly expanded the discretionary authority of police officers on the road.

S2: The Carroll ruling was in many ways the culmination of changes that were happening in law enforcement since the invention of the automobile. Prior to that, American policing was neither professionalized nor particularly powerful. There was no police person’s uniform, no specialized police training, not even necessarily policing vehicles. And the culture of policing centered around malum in, say, crimes.

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S5: This Latin term, Marla Ensay stands for things that are intrinsic wrongs, not just in political societies, but in pretty political societies as well, things like murder, rape, kidnapping and theft.

S12: The going theory in political philosophy, any political philosophy is that if the state has any power and duties at all, it is the power and duty to intervene in the protection and enforcement from Marla and say crimes. In contrast, there was a very weak tradition of police intervention in Malim prohibit some crimes. These are crimes like gambling, prostitution or selling knockoff goods. These are only crimes because of laws prohibiting them. They’re not intrinsic wrongs.

S5: It wasn’t just that there weren’t all that many Mallat prohibited crimes. It was that the culture of law enforcement didn’t think of Mallala prohibitive crimes as worth the work of the armed wing of the local government. I’d like to think about it as figuring out what you think Batman is supposed to be doing.

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S12: Is he supposed to be breaking up armed muggings in a dark alley or going after a broken tail lights or online gambling? This Batman test, it’s how police thought of themselves at the time. The invention of the automobile changed all of that.

S13: There was, for the first time, an explosion of nalla prohibitive laws involving cars without at first any change in the culture of law enforcement. And this led to a social crisis.

S11: Everybody breaks traffic laws. The average law abiding citizen. They’re all violating traffic laws that were enacted to protect the public. And they killed a pedestrian. They killed children playing on the street and services. Confusion and quandary among municipal officials throughout the country. Why are law abiding citizens actually violating the traffic laws to everybody’s detriment?

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S2: The answer that some of the smartest people in the room could come up with was immorality. Cars in some way were turning ordinary, law abiding people into immoral monsters on the road. And of course, the solution to a moral problem is moral education.

S11: So President Coolidge said in order to cultivate a law abiding society, people need religion. They need to believe in a God that inculcates in them a spirit of obedience and morality.

S2: I know what you’re thinking, it sounds naive, maybe even cute. But that’s anachronistic. There was very little precedence then that a rampant social problem could and should be fixed through law enforcement and criminal penalties. That’s precisely what was being invented during this period in response to the car. And one of the inventors was Coolidge’s successor, Herbert Hoover.

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S11: Hoover, on the other hand, said we need a separate government agency that focuses on enforcement. And it was in the particular context of traffic where American society realized appealing to morality or village would not get people to obey traffic laws. Police would need to be depended on.

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S2: But you needed the police to cooperate. And unlike Hoover, the most prominent police leader of the era wasn’t too keen on the idea.

S11: So August Volmer was the police chief of Berkeley, California, from 1985 to 1932. And not just that, but he’s considered the father of modern policing in the United States. His interest was to professionalize the police. In his mind, professional police. All they did was to fight crime like theft, solving murders. They didn’t deal with traffic and with prohibition or prostitution.

S4: But that sort of lost out. Coolidge sort of lost out. Volmer sort of lost out.

S11: Volmer lost out in terms of the rationale for professionalizing the police. But he ultimately got what he wanted. He wanted police who were full time on the job. They got a salary and pension. They got uniforms to distinguish themselves as professionals. They got patrol cars. He got fire that could tremendous off professional police, but not for the reasons he wanted. He got all of those things because the police needed to enforce traffic. Municipal governments had to hire more and more traffic officers. And they found out that the traffic fines that they were generating could be used to support the entire police department. And they actually use that to hire more traffic enforcers. And then they realized that at the same time that the police officers could be checking for safety violations. They could also check to see if there was liquor in the car.

S4: The two ingredients that would appear again and again the next hundred years combined to create an ever increasing reliance on police power were cars and prohibited substances paradigmatic mallat prohibit them or regulatory crimes, not Mollah and say crimes. That was the context that led to Carol.

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S11: So Carol is a story of a bootlegger, a well-known bootlegger. One day that Prohibition agents were driving between Grand Rapids and Detroit and they thought they noticed a Carrolls flashy Oldsmobile roadster. They decide to stop, Carol. They were about to let Carroll and his accomplice go until one of the agents hit something really hard and they put seat upholstery. They tear open the pole screen. They find bottles of liquor. And this case gets appealed all the way to the U.S. Supreme Court.

S4: Given the laws at the time, Carol had a point. The argument was that the police do not have the right to treat cars, the rightful property of citizens, as something they could just stop, shoot at, search, impound or seize that there will any more than they could do that with a home box or person. In fact, the government was a conservative one filled with lawyers sympathetic to private property rights. The solicitor general, James Beck, arguing for the government and Carol was just such a sympathizer.

S11: What Beck decides to do is just say Carol is actually right about the law. The government can’t stop and search his car without a warrant. Now, the practical problem with that is that cars can disappear and there’s no time to get a warrant. Cars changed everything. Cars changed American society. And therefore, this law that’s been established for a long time has to change.

S4: It’s pretty remarkable, actually. Here was a conservative solicitor general of a conservative administration arguing for the Supreme Court to change a law from the bench and not just any law. A constitutional amendment. The other premise in this argument is prohibition. That was a constitutional amendment. Right. And so, therefore, in the process of enforcing one amendment, they were arguing that you had to change another one.

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S11: Yeah. And there were even some legal commentators basically saying that the Prohibition Amendment basically repeals the Fourth Amendment because without violating the Fourth Amendment, they couldn’t really enforce prohibition.

S4: I mean, the fascinating thing is that we still have prohibition just of different substances today.

S11: Exactly. Drugs.

S14: We have a prohibition on drugs, the central purpose of the Fourth Amendment.

S8: Back to Carani Thomas home. Hohmann arguing on behalf of Karney just to protect reasonable expectations of privacy. The vehicle is stopped. The vehicle is used for sleeping. There’s nothing in the record to suggest Mr. Carney was using this as his home. It was annoying for the state.

S3: There’s no way to determine in these particular class of vehicles when they are and are not being utilized as a home by a ruling of six to three.

S8: The Supreme Court determines that a mobile home is a car and therefore subject to police discretionary searches without a warrant.

S2: Is that bag stapled together? No, it’s not. I didn’t make any difference in your argument. Well, I. I’m sure Ross versus U.S. 1982 reasons. If a police officer has probable cause to search a car without a warrant consideration, they’re also allowed to search any closed or sealed containers inside of the car like a paper bag.

S7: Even if it’s stapled, the right to search the entire time would include a right to invade the passenger’s privacy interest in her own purse.

S8: Wyoming versus how 10 1999, six to three. If the police have reason to search a car, they have license to search anybody who’s inside of the car as well. Even if they have no reason to think that other person has committed a crime. Think about that next time you get into a ride chair.

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S11: As American society becomes a car society, the police are making arguments to expand their powers by tethering it to how dangerous traffic stops are, and they usually win those arguments. But those arguments are used not just in the context of cars, but in the context of the entire policing that they do.

S8: It’s not a constitutional violation for a police officer to be a jerk at Water versus Lago Vista 2000. Why nine to five to four? Seizing a person and jailing them for not wearing a seatbelt is not unreasonable under the Fourth Amendment. Police can arrest and jail people for even the most minor of traffic violations.

S2: It’s not all bad news. What if the car is parked inside of a house, whether in a garage or the motorcycle parked inside the living room? Collins versus Virginia was decided in 2018.

S4: The justices were forced to say that it’s clearly in a home. And so you need a warrant. That’s it’s not everyone has a garage on the driveway counts as part of the home also.

S15: But if it’s on the street, officer probable cause is enough as nit picky and hairsplitting as it’s been the jurisprudence over the last 100 years into police power, over automobiles generated the following norms of policing. Number one, social problems that have to do with danger could and should be solved by criminalization and law enforcement. Number two, those very laws and regulations could be turned into a way of collecting money to fund the very police that enforce those laws. Number three, the more laws you have, the more you need a specially trained police force to learn and enforce those laws. And thus you have professionalization. And number four, traffic law enforcement could be used as a pretext for the enforcement of other laws, in particular laws against prohibited substances. But the most important norm that emerged out of traffic enforcement was police discretion.

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S11: And so by the end of the 20th century, we have the Fourth Amendment that allows a great deal of discretionary policing.

S1: We actually structure entire police departments to privilege enforcement, certain laws over others.

S16: Too much discretion can pervert law and can pervert policing.

S17: Coming up, the political morality of police discretion. Fi Nation. We’ll return after these messages.

S2: How does a chief of police decided yet APHC in philosophy?

S18: Well, I mean, because the antecedent question is how does a philosophy major decide to go into policing?

S2: OK, so that is not the right question. Yeah, that is. I remember my first Brandon del Pozo is a 23 year veteran police officer, first with NYPD, then as chief of police of Burlington, Vermont. He’s also a APHC in philosophy. He just defended his thesis on the political philosophy of policing with some fascinating chapters on the use of police discretion.

S1: And most of the low level offenses that police enforce have no inherent moral content unless there’s a specific context to them, like simply smoking some marijuana, ingesting cocaine or drinking alcohol or marching in the street and blocking traffic. We can go on the litany of fight running a stop sign or traffic. Traffic’s a lot of traffic law. It’s not Malim and say it’s it’s wrong because there’s a law against it. But the whole point of that law is to promote the type of cooperation that allows the community to flourish and sometimes be safe to police.

S4: Discretion refers to the power of the police to decide whether and how to enforce Mallah prohibitive crimes in a given context. If there’s a violation of a traffic law, does a cop stop or let a person go, give them a ticket or just the warning go through with a search or make an arrest or just let it go even if they have probable cause? Police do not have discretion for all laws. They do not and ought not have discretion for malum in, say, crimes. Those crimes that pass the Batman test.

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S19: Police have a duty to intervene and investigate and prosecute individuals for those. But this isn’t unique to police and our society. It’s true of police in any society. And if you think about it might actually be true of all people in society. These crimes are just the egregious moral wrongs that we all have an obligation to refrain from doing and stop others from committing when we can do it safely.

S13: One interesting assumption that Del Pozo disabused me of is the assumption that police have a monopoly on violence. It’s not true. We’re allowed to intervene, even use violence to save a child from being beaten.

S10: Tackle someone who just robbed your mother or chased down someone who just stole your car. It might be stupid, but it’s neither immoral nor illegal. Police only differ from citizens for Mallam and say crimes and that they’re required to enforce them.

S2: But for Mallat, prohibit a crime. Police always have a choice, not just because there are too many of these laws and it’s impossible to enforce all of them.

S13: It’s because the goal of these laws is to solve non-moral problems like how do you get everyone to drive on one side of the road or go through an intersection without crashing? These are laws trying to get people to cooperate and coordinate when they’re in a public space.

S2: When a police officer encounters someone who violates one of these laws against cooperation, enforcing the law means using force to make people cooperate.

S10: Del Pozo thinks police should always have an option not to use that force if they can get the cooperation in a better way.

S18: I think it’s important in a liberal democracy that we have police discretion because we’d rather Broecker than enforce the terms of cooperation in our society.

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S2: Brokering here means negotiating bargaining diplomacy, whereas enforcement means tickets arrest jail cells when you enforce cooperation, number one, it’s punitive.

S18: And number two, there’s always a worry that you’re going to squash pluralism or chill people’s desire to pursue a particular consumption of the good. When you broker it, you’re really fostering the ideas of fairness and reciprocity. And part of brokering is the thought that it’s not only going to be a one way brokerage the whole time, that there are times where other uses of space will prevail. And I think that’s what you want to foster in a democracy, in police discretion when it’s done. Well, has a hand in that.

S4: Police discretion is about choice, and when there is a choice, there’s got to be a way to evaluate whether people have made a good or bad choice, adjust or unjust choice. Del Pozo is thinking draws heavily on John Rawls, whose theory of justice might very well be the most influential tax in American political philosophy of the 20th century.

S2: Raul Zionism is known for its spirited formulation of what justice requires under liberalism or liberal democracy. But Rawls doesn’t talk much about policing. Del Pozo fills in those gaps. So the starting point is liberal democracy. Talk a little bit about what that means for people who aren’t NENO in that philosophical dolgen.

S18: Liberal doesn’t mean like liberal versus conservative. It really is about no one likes to just take the idea of democracy and bracket it off. You get these representative bodies that we elect, we have control over whether they’re in office or not. The elections are basically fair. The liberalism part is just this idea that there is like a real inherent tension in people’s life plans, conceptions of the goods like this one guy might be a Buddhist. One guy, a Muslim. One guy, a Jew, a Christian. Different views about whether it’s certain institutions should be public or private. There’s enough heterogeneity that you don’t make presumptions about what ought to prevail.

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S2: So you don’t mean the opposite of a police state liberal democracy.

S1: You mean a democracy that is diverse, not just diverse in a way where the government is like, how do we rein this diversity in? But there’s a commitment to the diverse, to the pluralism, shammy liberalism and pluralism and closely related to commitments that Malim prohibitive.

S4: Crimes are not intrinsic wrongs, and therefore it’s okay to enforce them selectively. And the commitment to a liberal democracy. Together, they generate a test for del Pozo as to how an officer, how an entire police department ought to exercise their discretion. It’s called the test of public reason. In effect is a particular exercise of discretion consistent with the interests of a liberal democracy. Does it advance pluralism and does it treat members of the pluralistic society as free and equal? No policy that fails the test should be acted on, even if it’s part of the law. The Philadelphia Starbucks case is a kind of test case for you. Describe what you saw in that case.

S1: The police got a call from the manager of the Starbucks that there were two men in the Starbucks who were trespassing. These were two black men. They were sitting there not buying anything. There’s a policy at the Starbucks there. You need to be a paying customer to use the seats. There’s also a law in Philadelphia. And if a manager revokes your permission to be there, you’re trespassing. I mean, that’s clear. And I think that’s a that’s a fine law. The cops tried to bargain. They negotiate. They explain. The guy’s like when I leave, even when I buy anything. But we’re not even. And the cops, while we have trespass law or enforcing it. They arrest them. It started Starbucks on a sensitivity training. Surge or whatever. Stuff like that for the juggernaut. That’s right.

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S20: Okay. This is a test case for you. Yeah. And what you think ought to be the response when suitably informed by the relevant political philosophy is different. So I want you to talk through how you think your response should be.

S1: The reason can’t just be here’s a statute and someone’s making a statement. They’re a manager and you violate the statute. I’m arresting you. I mean, I think that’s exactly why people were so angry, because that facially meets the standards of the law. But it defies public reason that that was a reason. You have violated the trespass law and we’re hauling you out of the Starbucks in handcuffs is a reason that does not treat those to manage is equals in America because Rittenhouse Square is a wealthy neighborhood. And I guarantee if there was a man or woman who lived in a condo or a co-op or apartment in Rittenhouse Square and they were down there, white, wealthy person, under the same circumstances, they would not have had the trespass laws invoked against them for del Pozo.

S4: It fails Rawls as test of public reason when police discretionary decisions apply differently to different social groups.

S1: I don’t think that that the use of government coercion in the Starbucks case was justified by a reason they treated those men as equals. And I think that’s what enraged America. They didn’t exactly articulate it in Rozzi in terms. But that’s what that’s what upset everyone.

S20: Well, I think look, this is what this is why I found this part of the dissertation fascinating. Right? It’s the law. And I enforce it as a justification given by a police officer is not enough justification for, you know, considering that we definitely build discretion into laws.

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S1: I think it’s not enough justification. I think we have to have we have to show the state interest. What is the state interest in enforcing that trespass law? And even more so when it when it clearly does so in a way that it reinforces the idea that those two black men were not equals to other citizens who would never have had the police called on them. It’s not in the best interests of the liberal democracy, period.

S13: Other examples of public reasons, tests we might be familiar with First Amendment free speech protections pass the test. They appeal to government neutrality on matters of religion. Political ideology, burqa bans like they have in France or requirements that all slaughterhouses be kosher. Both of these fail public reasons tests because they appeal to considerations that don’t treat individuals of certain other religions as equals. Del Pozo is arguing that we should be applying public reasons, tests to police discretion from how entire departments use their discretion to how individual officers do it on the open road. The tests we currently use are the ones handed down to us by the Supreme Court. They couldn’t be farther apart.

S2: In 1993, two black men, Michael Rhen and James Brown, were in a Nissan Pathfinder at a stop sign in a neighborhood in D.C..

S4: They caught the eye of a plain clothes vice squad in an unmarked police vehicle. It was a high drug crime neighborhood. But the squad didn’t have probable cause that the men were dealing or in possession of drugs. But they did watch them long enough to get them on traffic violations.

S21: The truck had turned without signaling and had driven off at what the officers considered an unreasonable rate of speed. But as the officers stepped up to the driver’s side window, they immediately observed two large plastic bags of what appeared to be crack cocaine inside the truck.

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S4: That’s Justice Scalia reading the unanimous decision in this case, the infamous Fren decision.

S21: Petitioners were arrested and were convicted of various federal narcotics offenses.

S2: Red and Brown were sentenced to 14 years for their possession of crack cocaine.

S21: Their argument here is that the drug evidence should not have been admitted at trial because the vice squad officers asserted ground for approaching the vehicles, namely, to give warnings about traffic violations was simply a pretext for investigating unfounded suspicions of drug dealing activity.

S4: The facts of run were quite unremarkable. Lots of black men experience being pulled over on some traffic pretext. What was remarkable was it gave the defense a fighting chance against racial profiling in a typical case. It’s hard to prove the officer made a traffic stop because of a person’s race. But in this case, it was a vice squad. It was plain clothed officers in an unmarked car. Those kinds of cops don’t stop people for speeding or turning without a signal, which is what they claimed they’re probable cause was. The evidence seemed quite overwhelming that they stopped the men because they were black in an area of town that had high drug trading. That’s what a vice squad does. The question before the court was, what is the right test to determine that a particular discretionary use of a traffic stop is unreasonable? Does being motivated by racial profiling, if that can be proven, make a stop unreasonable from the point of view of the Fourth Amendment?

S22: The historic role of the Fourth Amendment has been not to stand in the way of society enforcing laws that are on the books and are perfectly valid laws.

S4: James A. Feldman arguing for the state.

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S22: In our view, that conclusion follows regardless of the subjective motivations of the officers who made the stop. But what we’re really talking about is the whole of police work. Police officers are always faced with a choice of what laws they should enforce and what actions they should take with them, or, you know, that there’s no such thing as a pretextual stop that’s offensive to the Fourth Amendment.

S13: Yes, I think I am saying that the unanimous decision affirmed in R&D is that there’s no way to misuse police discretion as long as there was a perfectly valid law and officer was enforcing it. Doesn’t matter that the officers own subjective motivation was racial profiling or any other number of pretexts that had nothing to do with a traffic violation. An officer might be motivated completely nefariously. They use their discretion to follow their enemy. Wait for them to commit an unsafe lane change or fail to stop at a stop sign limit line and then use their discretion to arrest them, which they’re allowed to do. From the Atwater decision. The existence of an enforceable law is enough to give cover for any matter of motivation for any officer to use the law for a stop. Many legal scholars have contended that a friend gives constitutional cover for racial profiling in policing precisely because traffic laws are so numerous and so easily enforceable.

S23: If the justices were right in their rulings, it shows just how much U.S. constitutional tests for permissible police discretion depart from a public reasons test.

S20: Talk me through how you would reason about cases like profiling based on statistical likelihood of more crime being in that neighborhood amongst members of this race. That particular block, even in the case of individuals rights, so individual, you might not have individualized suspicion that they are committing a crime now, but we know their history and so on and so forth. How how would you think about those? Because you talk about them specifically.

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S1: Yes. So racial profiling, if you’re talking about public reason, is a complete non-starter because nobody would say I’m an equal citizen when I can have suspicion cast on me for something that has nothing to do in and of itself with crime. And it’s beyond my control. That means that imposing a coercive measure on you, a car stop or pedestrian stop based on, number one, this thing that’s beyond your control. And number two, the thing that is not instrumental to criminal suspicion is it fails. Public reason, period.

S20: I mean, just on its face, even though the argument is. Yeah, but look, statistically, it’s that this, that and the other.

S1: There’s a lot of instances in which we do things like fight the war on terrorism or fight the war on drugs or crime, where we say, well, we know that like we’re going to be imposing criminal suspicion on innocent people, but there’s a system that’ll get him out of it at the right time. They’ll get found not guilty of the charges or whatever. But doing this delivers the best results. That’s utilitarianism, right? What matters are the numbers. The central goal of Rawls in disguise is to defeat utilitarianism. Numbers count. But the idea of a liberal democracy is that they don’t always count that rights and fairness count. And pluralism counts.

S20: It sounds like you are arguing that the civil and moral duty of an officer is not to the laws as such, but to like liberal society generally. Is that what you’re saying?

S1: Yeah, I’m say this has always been a part of policing and I just think we need to acknowledge it. We need to give it the right set of political justifications. Police departments make a lot of decisions about how they allocate resources to enforce the size of your vice unit, the size of your narcotics unit, the size of your quality of life unit. What incentives you give people to work hard in those units? Those are all things that produce outcomes in American policing that that did change the way laws are enforced. Right. If I have a huge narcotics unit with a lot of overtime and a clear path to promotion out of that unit, if you perform well, we’re gonna be enforcing a lot of narcotics law. Right. So just to say like it’s the law we enforce, it is just inevitable. That never happens in American policing. We don’t just robotically, like, walk around and look for violations of statute and then put handcuffs on. We actually structure entire police departments to privilege or emphasize enforcement, certain laws or others. So then just say that once we’ve done that, we don’t in turn make distinctions about which laws to enforce. We’re out there in the street.

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S5: It strikes me as Congress after I spoke with del Pozo, the point he’s making just seems so obvious now. The police are not morally and politically neutral executors of laws, even in a democracy. Every act of policing of Marla prohibit, um, crimes is a decision to advance or undermine a particular political philosophy. And forcing a democratically determined law of segregation is not neutral. It’s an act of advancing an apartheid state. Deciding not to enforce immigration law is not neutral. It’s an act of advancing an anti nationalist state.

S6: The way del Pozo sees it, the legitimacy of policing, the justice of police practices comes from its role in advancing a substantively just society. He’s a roseate. He thinks that society is a liberal democracy. Others might argue that it’s a libertarian state with minimal government. Still others might argue that a just society is a homogenous Christian or Muslim or Jewish theocracy.

S10: But I’m not a political relativist. I think some types of states are better and more substantively just than others. What I think is just police conduct is going to come from what I think constitutes a morally just society. The same is gonna hold for the police who have to make decisions about how to use their discretion justly.

S20: In your philosophy of policing. Are you asking individual beat officers beat cops to make substantive judgments about, say, the morality of particular laws, not them? Malum in, say one, but things like drug legalization of marijuana.

S1: Not only is the answer completely, yes, but I think they’ve they’ve always been doing it. I think it’s only in the war on crime of recent history that they’ve done it less. Have I thrown joints and cracked pipes down sewers? Yeah. I have. And I didn’t de facto legalize crack and marijuana, but I just said it was not in the interests of justice to pursue those those charges.

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S4: The Supreme Court’s test for police discretion in Rennes makes almost every discretionary enforcement of a low level Malim prohibitive crime. Okay. The public reasons test, on the other hand, makes discretionary enforcement of these crimes close to a last resort, and it makes many enforcements of these crimes on historically unequal and disrespected populations substantively unjust.

S24: Dale Bozo’s roseate norms of police discretion are built to advance the liberal side of liberal democracy. But what about the Democratic side? Isn’t it just undemocratic for police to unilaterally decide against enforcing laws that pass the will of a democratic majority? The answer is yes.

S1: I came to believe that it’s really important for the police to protect people from the tyranny of the majority, and it’s important to protect people from virulent strains of populism. I think a lot of what we do or don’t enforce immigration laws is about that. I also think you don’t want the police just to be the means by which, like a narrow conception of the good, is just ruthlessly enforced through the persnickety application of like strict laws.

S18: Democracy is a process that’s not a perfect process, and it has imperfections in one of its imperfections as a 51 percent of people vote for a candidate. That person is in office. If 51 percent of legislators vote for something that becomes the law. Five out of nine judges make a decision. It becomes a decision between populism and majoritarianism. There are ways in which laws get made and people get put into power. And it really, really have an effect on citizens rights and the quality of their lived experience.

S1: And insofar as the police have discretion over laws and insofar as they make decisions about law and order and quality of life, they have the role of making sure that pluralism and diversity and basic rights obtain, no matter what a populist movement wants, no matter what. Fifty one percent of the people want.

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S19: Brandon del Pozo, P H.T. was the chief of police of Burlington, Vermont. He’s now a post-doctoral researcher at the Mirriam Hospital and Brown University and pursuing philosophy and criminal justice policy work full time. Sarah sales book is Policing the Open Road How Cars Transformed American Freedom. It’s fantastic. You can find a link to both of their work on our Web site at Hyphenation. This episode of the entire series was made possible by the Whiting Foundation Fellowship for Public Engagement.

S16: Coming up next, time on Hyphenation. Every day the police had the ability to break all kinds of substantive law as a way to promote their law enforcement role. The darker side of police discretion. There’s certainly an argument to be made that we’re no longer governing by rule of law principles, but rather were governing by this very, very extreme amount of discretion to deviate from rule of law, principles, subscribers.

S2: They subscribed to get all eight parts of our series on the philosophy of crime and Punishment.

S25: Hi, Fine Nation is written, produced and edited by Barry Lamm, Associate Professor of Philosophy at Vassar College. Editorial director for Slate podcast is Gabriel Roth, senior managing producer for Slate podcast.

S26: This June, Thomas, operations manager for Slate podcast, is Asha Solutia, editor for Slate. Plus It’s Me Child to our new executive producer for Slate podcast is Alicia Montgomery. Special thanks to Carrie Fake. Scott, Ethan, Iris back. Eileen Child was weeks Kermit Cole and Jonathan Garecht, whose patronage have made this episode and this season possible production assistance this season provided by Noah Mendoza.

S25: Good visit. Hi Fi Nation Dawg for complete show notes, soundtrack and reading list for every episode. That’s h i p h i nacion dot org. Follow hyphenation on Facebook and Twitter and at the web site for updates on stories and ideas.