The rise of policing despite constitution; or how cops became legally superior, apart

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Protesters in dowtown Chattanooga joined thousands around the country in late 2014 protesting police slayings of unarmed people. (Photo Ash-Lee Woodard Henderson on Facebook)

Protesters in dowtown Chattanooga join thousands around the country in late 2014 protesting police slayings of unarmed people. (Photo Ash-Lee Woodard Henderson on Facebook)

Police work is often lionized by jurists and scholars who claim to employ “textualist” and “originalist” methods of constitutional interpretation. Yet professional police were unknown to the United States in 1789, and first appeared in America almost a half-century after the Constitution’s ratification. The Framers contemplated law enforcement as the duty of mostly private citizens, along with a few constables and sheriffs who could be called upon when necessary. This article marshals extensive historical and legal evidence to show that modern policing is in many ways inconsistent with the original intent of America’s founding documents. The author argues that the growth of modern policing has substantially empowered the state in a way the Framers would regard as abhorrent to their foremost principles.

By Roger Roots

Uniformed police officers are the most visible element of America’s criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide.1 Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services.2 Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America’s roads and street corners as anything peculiar — let alone invalid or unconstitutional.

Yet the dissident English colonists who framed the United States Constitution would have seen this modern ‘police state’ as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown.3 The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance).4 Initiation and investigation of criminal cases was the nearly exclusive province of private persons.

At the time of the Constitution’s ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay.5 Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation — whether civil or criminal — and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.6 The role of these “nightly watch” officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.7

While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution’s imposed scheme of criminal justice.8 “Originalist” scholars of the Constitution have tended to be supportive, rather than critical of modern policing.9 This article will show, however, that modern policing violates the Framers’ most firmly held conceptions of criminal justice.

The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state’s interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.10 Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.

The constitutional text

The Constitution contains no explicit provisions for criminal law enforcement.11 Nor did the constitutions of any of the several states contain such provisions at the time of the Founding.12 Early constitutions enunciated the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government.13 Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.14

Private prosecutors

For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.15 Criminal actions were only a step away from civil actions — the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.16 Private prosecutors acted under authority of the people and in the name of the state — but for their own vindication.17 The very term “prosecutor” meant criminal plaintiff and implied a private person.18 A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation’s founding.19 When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name — even if the attorney general himself did not approve of the action.20

Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.21 Crime victims held the keys to a potential defendant’s fate and often negotiated the settlement of criminal cases.22 After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant.23 Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and “not to make bargains to allow [defendants] to escape conviction, if they … repair the injury.”24

Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes.25 They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened.26 They might never have contact with a government prosecutor or any other officer of the executive branch.27

Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers.28 A lone sheriff or deputy had reason to fear even approaching a large group “without danger of his life or having his bones broken.”29 When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him.30 The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.31

Law enforcement as a universal duty

Law enforcement in the Founders’ time was a duty of every citizen.32 Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond “not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand.”33 Any person could act in the capacity of a constable without being one,34 and when summoned by a law enforcement officer, a private person became a temporary member of the police department.35 The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.36

Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.37 But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers’ era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.38

The Founders could not have envisioned ‘police’ officers as we know them today. The term “police” had a slightly different meaning at the time of the Founding.39 It was generally used as a verb and meant to watch over or monitor the public health and safety.40 In Louisiana, “police juries” were local governing bodies similar to county boards in other states.41 Only in the mid-nineteenth century did the term ‘police’ begin to take on the persona of a uniformed state law enforcer.42 The term first crept into Supreme Court jurisprudence even later.43

Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.44 Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.45 Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.46

At the time of Tocqueville’s observations (in the 1830s), “the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,”47 yet Tocqueville doubted “whether in any other country crime so seldom escapes punishment.”48 Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.49 Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.50 Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.51

Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizen’s own terms. “The farther back the [crime rate] figures go,” according to historian Roger Lane, “the higher is the relative proportion of serious crimes.”52 In other words, before the advent of professional policing, fewer crimes — and only the most serious crimes — were brought to the attention of the courts.

After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers’ era grew less recognizable. The growth of police units reflected a “change in attitude” more than worsening crime rates.53 Americans became less tolerant of violence in their streets and demanded higher standards of conduct.54 Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.55

Police as social workers

Few of the duties of Founding-era sheriffs involved criminal law enforcement. Instead, civil executions, attachments and confinements dominated their work.56 When professional police units first arrived on the American scene, they functioned primarily as protectors of public safety, health and welfare. This role followed the “bobbie” model developed in England in the 1830s by the father of professional policing, Sir Robert Peel.57

Early police agencies provided a vast array of municipal services, including keeping traffic thoroughfares clear. Boston police made 30,681 arrests during one fiscal year in the 1880s, but in the same year reported 1,472 accidents, secured 2,461 buildings found open, reported thousands of dangerous and defective streets, sidewalks, chimneys, drains, sewers and hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located 1,572 lost children, reported 228 missing (but only 151 found) persons, rescued seven persons from drowning, assisted nearly 2,000 sick, injured, and insane persons, found 311 stray horse teams, and removed more than fifty thousand street obstructions.58

Police were a “kind of catchall or residual welfare agency,”59 a lawful extension of actual state ‘police powers.’60 In the Old West, police were a sanitation and repair workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp of OK Corral fame, for example, repaired boardwalks as part of his duties.61

The war on crime

Toward the end of the nineteenth century, police forces took on a brave new role: crime-fighting. The goal of maintaining public order became secondary to chasing lawbreakers. The police cultivated a perception that they were public heroes who “fought crime” in the general, rather than individual sense.

The 1920s saw the rise of the profession’s second father — or perhaps its wicked stepfather — J. Edgar Hoover.62 Hoover’s Federal Bureau of Investigation (FBI) came to epitomize the police profession in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster organizations, intercepted communications between suspected criminals, and gathered intelligence for both law enforcement and political purposes.

This new view of police as soldiers locked in combat against crime caught on quickly.63 The FBI led local police to develop integrated repositories of fingerprint, criminal, and fraudulent check records. The FBI also took over the gathering of crime statistics (theretofore gathered by a private association),64 and went to war against “Public Enemy Number One” and others on their “Ten Most Wanted” list.65 Popular culture began to see police as a “thin blue line,” that “serves and protects” civilized society from chaos and lawlessness.66

Absence of constitutional crime-fighting power

But the constitutions of the Founding Era gave no hint of any thin blue line. Nothing in their texts enunciated any governmental power to “fight crime” at all. “Crime-fighting” was intended as the domain of individuals touched by crime. The original design under the American legal order was to restore a semblance of private justice. The courts were a mere forum, or avenue, for private persons to attain justice from a malfeasor.67 The slow alteration of the criminal courts into a venue only for the government’s claims against private persons turned the very spirit of the Founders’ model on its head.

To suggest that modern policing is extraconstitutional is not to imply that every aspect of police work is constitutionally improper.68 Rather, it is to say that the totality and effect of modern policing negates the meaning and purpose of certain constitutional protections the Framers intended to protect and carry forward to future generations. Modern-style policing leaves many fundamental constitutional interests utterly unenforced.

Americans today, for example, are far more vulnerable to invasive searches and seizures by the state than were the Americans of 1791.69 The Framers lived in an era in which much less of the world was in “plain view” of the government and a “stop and frisk” would have been rare indeed.70 The totality of modern policing also places pedestrian and vehicle travel at the mercy of the state, a development the Framers would have almost certainly never sanctioned. These infringements result not from a single aspect of modern policing, but from the whole of modern policing’s control over large domains of private life that were once “policed” by private citizens.

The development of distinctions

The treatment of law enforcement in the courts shows that the law of crime control has changed monumentally over the past two centuries. Under the common law, there was no difference whatsoever between the privileges, immunities, and powers of constables and those of private citizens. Constables were literally and figuratively clothed in the same garments as everyone else and faced the same liabilities — civil and criminal — as everyone else under identical circumstances. Two centuries of jurisprudence, however, have recast the power relationships of these two roles dramatically.

Perhaps the first distinction between the rights of citizen and constabulary came in the form of increased power to arrest. Early in the history of policing, courts held that an officer could arrest if he had “reasonable belief both in the commission of a felony and in the guilt of the arrestee.71 This represented a marginal yet important distinction from the rights of a “private person,” who could arrest only if a felony had actually been committed.72 It remains somewhat of a mystery, however, where this distinction was first drawn.73 Scrutiny of the distinction suggests it arose in England in 1827 — more than a generation after ratification of the Bill of Rights in the United States.74

Moreover, the distinction was illegitimate from its birth, being a bastardization of an earlier rule allowing constables to arrest upon transmission of reasonably reliable information from a third person.75 The earlier rule made perfect sense when many arrests were executed by private persons. “Authority” was a narrow defense available only to those who met the highest standard of accuracy.76 But when Americans began to delegate their law enforcement duties to professionals, the law relaxed to allow police to execute warrantless felony arrests upon information received from third parties. For obvious reasons, constables could not be required to be “right” all of the time, so the rule of strict liability for false arrest was lost.77

The tradeoff has had the effect of depriving Americans of certainty in the executions of warrantless arrests. Judges now consider only the question of whether there was reasonable ground to suspect an arrestee, rather than whether the arrestee was guilty of any crime. This loss of certainty, when combined with greater deference to the state in most law enforcement matters, has essentially reversed the original intent and purpose of American law enforcement that the state act against stern limitations and at its own peril. Because arrest has become the near exclusive province of professional police, Americans have fewer assurances that they are free from unreasonable arrests.

Distinctions between the privileges of citizens and police officers grew more rapidly in the twentieth century. State and federal lawmakers enshrined police officers with expansive immunities from firearm laws78 and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes.79 Legislatures also exempted police from toll road charges,80 granted police confidential telephone numbers and auto registration,81 and even exempted police from fireworks regulations.82 Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them,83 reimbursement of moving expenses when officers receive threats to their lives,84 and even special protections from assailants infected with the AIDS virus.85 Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) “good faith” defense,86 while private citizens who do so face up to five years in prison. The tendency of legislatures to equip police with ever-expanding rights, privileges and powers has, if anything, been strengthened rather than limited by the courts.88

But this growing power differential contravenes the principles of equal citizenship that dominated America’s founding. The great principle of the American Revolution was, after all, the doctrine of limited government.89 Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority.90 Founding-era constitutions enunciated the principle that all men are “equally free” and that all government is derived from the people.91

Source: Seton Hall Constitutional L.J. 2001, 685. Used by permission of author. Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island.

Mr. Roots’ full essay is available at Constitution.org.

Notes

As of June, 1996, there were more than 700,000 full- and part-time professional state-sworn police in the United States. SeeBUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 1996 (1998). Figures for earlier decades and centuries are difficult to obtain, but a few indicators suggest that the ratio of police per citizen has grown by at least four thousand percent. In 1816, the British Parliament reported that there was at that time one constable for every 18,187 persons in Great Britain. See Jerome Hall, Legal and Social Aspects of Arrest Without a Warrant, 49 HARVARD L. REV. 566, 582 (1936). Conventional wisdom would suggest that American ratios were, if anything, lower. Today there is approximately one officer for every 386 Americans.

2 The City of Los Angeles, for example, spends almost half (49.1%) of its annual discretionary budget on police but only 17.7% on fire and 14.8% on public works. See City of Los Angeles 1999-2000 Budget Summary (visited Dec. 2000). The City of Chicago spends over forty percent of its annual budget on police.See Chicago Budget 1999 (visited Dec. 2000)  (pie chart). Seattle spends more than $150 million, or 41 percent of its annual budget, on police and police pensions. See City of Seattle 2000 Proposed Budget (visited Dec. 2000). The City of New York is one exception, due primarily to New York State’s unique system for funding education. Police and the administration of justice constitute the third largest segment, or twelve percent, of the City’s budget, after education and human resources. See THE CITY OF NEW YORK, EXECUTIVE BUDGET, FISCAL YEAR 2000 1 (2000) (pie chart).

3See Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 830 (1994) (saying twentieth century police and “our contemporary sense of ‘policing’ would be utterly foreign to our colonial forebears”).

4See id.

5See id. at 831 (saying the sole monetary reward for such officers was occasional compensation by private individuals for returning stolen property).

6See CHARLES SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 314 (1978). The City of Boston, for example, enacted an ordinance requiring drafted citizens to walk the streets “to prevent any danger by fire, and to see that good order is kept.” Id.

7C.f. id. (mentioning that cops’ role of maintaining order predates their role of crime control).

8But see, e.g., Steiker, supra note 3, at 824 (saying the “invention … of armed quasi-military, professional police forces, whose form, function, and daily presence differ dramatically from that of the colonial constabulary, requires that modern-day judges and scholars rethink” Fourth Amendment remedies).

9See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 104 (1996) (criticizing Supreme Court rulings that have “steadily expanded” the rights of criminals and placed limitations upon police conduct).

10Cf. E.X. BOOZHIE, THE OUTLAW’S BIBLE 15 (1988) (stating the true mission of police is to protect the status quo for the benefit of the ruling class).

11 As a textual matter, the Constitution grants authority to the federal government to define and punish criminal activity in only five instances. Article I grants Congress power (1) “[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States,” art. I, § 8, cl. 6; (2) “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,” id, cl. 10; (3) “[t]o make Rules for the Government and Regulation of the land and naval Forces,” id. at cl. 14; (4) “[t]o exercise exclusive Legislation in all Cases whatsoever, over” the District of Columbia and federal reservations. id. at cl. 17; see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426 (1821) (“Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the states”). Likewise, (5) Article III defines the crime of “Treason against the United States” and grants to Congress the “Power to declare [its] Punishment….” U.S. CONST. art. III, § 3.

12 Several early constitutions expressed a right of citizens “to be protected in the enjoyment of life, liberty and property,” and therefore purported to bind citizens to contribute their proportion toward expenses of such protection. See DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, § 10; PA. CONST. of Sept. 28, 1776, Dec. of Rights, § VIII; VT. CONST. of July 8, 1777, Chap. 1, § IX. Other typical provisions required that the powers of government be exercised only by the consent of the people, see, e.g., N.C. CONST. of Dec. 18, 1776, § V, and that all persons invested with government power be accountable for their conduct. See MD. CONST. of Nov. 11, 1776, § IV.

13 The constitutions of several early states expressed the intent that citizens were obligated to carry out law enforcement duties. See, e.g., DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, § 10 (providing every citizen shall yield his personal service when necessary, or an equivalent); N.H. CONST. of June 2, 1784, Part I, art. I, § XII (providing that every member of the community is bound to “yield his personal service when necessary, or an equivalent”); VT. CONST. of July 8, 1777, Chap. 1, § IX (providing every member of society is bound to contribute his proportion towards the expenses of his protection, “and to yield his personal service, when necessary”).

14 C.f. JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY 51 (1st ed. 1994) (discussing Revolution-era perception that the law was a means to restrain government and to secure rights of citizens).

15 Originally, all criminal procedure fell under the rule of private vengeance. A victim or aggrieved party made a direct appeal to county authorities to force a defendant to face him.

See ARTHUR TRAIN, THE PRISONER AT THE BAR 120 n. (1926). From these very early times, “grand” or “accusing” juries were formed to examine the accusations of private individuals. Id. at 121 n. Although the accusing jury frequently acted as a trial jury as well, it eventually evolved into a separate body that took on the role of accuser on behalf of aggrieved parties. It deliberated secretly, acting on its members’ own personal information and upon the application of injured parties. Id. at 124 n.

16 In the early decades of American criminal justice, criminal cases were hardly different from civil actions, and could easily be confused for one another if “the public not being joined in it.” Clark v. Turner, 1 Root 200 (Conn. 1790) (holding action for assault and battery was no more than a civil case because the public was not joined). It was apparently not unusual for trial judges themselves to be confused about whether a case was criminal or civil, and to make judicial errors regarding procedural differences between the two types of cases. See Meacham v. Austin, 5 Day 233 (Conn. 1811) (upholding lower court’s dismissal of criminal verdict because the case’s process had been consistent with civil procedure rather than criminal procedure).

17 See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (involving action by private individual seeking public sanction for his prosecution).

18 See, e.g., Smith v. State, 7 Tenn. 43 (1846) (using the term prosecutor to describe a private person); Plumer v. Smith, 5 N.H. 553 (1832) (same); Commonwealth v. Harkness, 4 Binn. 193 (Pa. 1811) (same).

19 See Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275, 281-90 (1989) (saying that any claim that criminal law enforcement is a ‘core’ or exclusive executive power is historically inaccurate and therefore the Attorney General need not be vested with authority to oversee or trigger investigations by the independent counsel).

20 See Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (holding the Attorney General must allow his name to be used by the prosecutor).

21 Private prosecutors generally had to pay the costs of their prosecutions, even though the state also had an interest. SeeDickinson v. Potter, 4 Day 340 (Conn. 1810). Government attorneys general took over the prosecutions of only especially worthy cases and pursued such cases at public expense. See Waldron v. Turtle, 4 N.H. 149, 151 (1827) (stating if a prosecution is not adopted and pursued by the attorney general, “it will not be pursued at the public expense, although in the name of the state”).

22 See State v. Bruce, 24 Me. 71, 73 (1844) (stating a threat by crime victim to prosecute a supposed thief is proper but extortion for pecuniary advantage is criminal).

23 See Plumer v. Smith, 5 N.H. 553 (1832) (holding promissory note invalid when tendered by a criminal defendant to his private prosecutor in exchange for promise not to prosecute).

24 Shaw v. Reed, 30 Me. 105, 109 (1849).

25 See In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956).

26 See Goodman v. United States, 108 F.2d 516 (9th Cir. 1939).

27 See Krent, supra note 19, at 293.

28 C.f. Ellen D. Larned, 1 History of Windham County, Connecticut 272-73 (1874) (recounting attempts by Windham County authorities in 1730 to arrest a large group of rioters who broke open the Hartford Jail and released a prisoner).

29 Id. at 273.

30See Buckminster v. Applebee, 8 N.H. 546 (1837) (stating the sheriff has a duty to raise the posse to aid him when necessary).

31 See Waterbury v. Lockwood, 4 Day 257, 259-60 (Conn. 1810) (citing English cases).

32 See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 579 (1936).

33 Barrington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928).

34 See Eustis v. Kidder, 26 Me. 97, 99 (1846).

35  By the early 1900s, courts held that civilians called into posse service who were killed in the line of duty were entitled to full death benefits. See Monterey County v. Rader, 248 P. 912 (Cal. 1926); Village of West Salem v. Industrial Commission, 155 N.W. 929 (Wis. 1916).

36 United States v. Rice, 27 Fed. Cas. 795 (W.D.N.C. 1875).

37 The Constitution is not without provisions for criminal procedure. Indeed, much of the Bill of Rights is an outline of basic criminal procedure. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 118 (2d ed. 1985). But these provisions represent enshrinements of individual liberties rather than government power. The only constitutional provisions with regard to criminal justice represent barriers to governmental power, rather than provisions for that power. Indeed, the Founders’ intent to protect individual liberties was made clear by the language of the Ninth Amendment and its equivalent in state constitutions of the founding era. The Ninth Amendment, which declares that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” provides a clear indication that the Framers assumed that persons may do whatever is not justly prohibited by the Constitution rather than that the government may do whatever is not justly prohibited to it. See Randy E. Barnett, Introduction: James Madison’s Ninth Amendment, inTHE RIGHTS RETAINED BY THE PEOPLE 43 (Randy E. Barnett ed., 1989).

38 See JAMES S. CAMPBELL ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT TO THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE 450 (1970) (discussing survey by the President’s Commission on Law Enforcement and Administration of Justice).

39 The term “policing” originally meant promoting the public good or the community life rather than preserving security. SeeRogan Kersh et al., “More a Distinction of Words than Things”: The Evolution of Separated Powers in the American States, 4 ROGER WILLIAMS U. L. REV. 5, 21 (1998).

40 See, e.g., N.C. CONST. of Dec. 18, 1776, Dec. of Rights, § II (providing that people of the state have a right to regulate the internal government and “police thereof); PA. CONST. of Sept. 28, 1776, Dec. of Rights, art. III (stating that the people have a right of “governing and regulating the internal police of [the people]”).

41 See Police Jury v. Britton, 82 U.S. (15 Wall.) 566 (1872). The purpose of such juries was 1) to police slaves and runaways, (2) to repair roads, bridges, and other infrastructure, and (3) to lay taxes as necessary for such acts. Id. at 568. See alsoBLACK’S LAW DICTIONARY 801 (abridged 6th ed. 1991).

42 When Blackstone wrote of offenses against “the public police and economy” in 1769, he meant offenses against the “due regulation and domestic order of the kingdom” such as clandestine marriage, bigamy, rendering bridges inconvenient to pass, vagrancy, and operating gambling houses. 4 WILLIAM BLACKSTONE, COMMENTARIES 924-27 (George Chase ed., Baker, Voorhis& Co. 1938) (1769).

43 See, e.g., Wolf v. Colorado, 338 U.S. 25,27-28 (1948) (proclaiming that “security of one’s privacy against arbitrary intrusion by the police” is at the core of the Fourth Amendment (clearly a slight misstatement of the Founders’ original perception)).

44 See Roger Lane, Urbanization and Criminal Violence in the 19th Century: Massachusetts as a Test Case, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 445, 451 (Graham & Gurr dir., 1969) (saying citizens were traditionally supposed to take care of themselves, with help of family, friends, or servants “when available”).

45 See, e.g., Kennard v. Burton, 25 Me. 39 (1845) (involving collision between two wagons).

46 Lane, supra note 44, at 451.

47 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 96 (J.P. Mayer ed., Harper Perennial Books 1988) (1848).

48Id.

49 See id. at 96.

50 See Pauline Maier, Popular Uprisings and Civil Authority in Eighteenth-Century America, 27 WM. & MARY Q. 3-35 (1970).

51 DE TOCQUEVILLE, supra note 47, at 72.

52 Lane, supra note 44, at 450.

53 See id.

54 Id.

55 See id. at 451.

56 See, e.g., Lamb v. Day, 8 Vt. 407 (1836) (involving suit against constable for improper execution of civil writ); Tomlinson v. Wheeler, 1 Aik. 194 (Vt. 1826) (involving sheriff’s neglect to execute civil judgment); Stoyel v. Edwards, 3 Day 1 (1807) (involving sheriffs execution of civil judgment).

57 If the modern police profession has a father, it is Sir Robert Peel, who founded the Metropolitan Police of London in 1829.See SUE TITUS REID, CRIMINAL JUSTICE: BLUEPRINTS 58 (5th ed. 1999) (attributing the founding of the first modern police force to Peel). Peel’s uniformed officers — nicknamed ‘Bobbies’ after the first name of their founder — operated under the direction of a central headquarters (Scotland Yard, named for the site once used by the Kings of Scotland as a residence), walking beats on a full-time basis to prevent crime. See id. Less than three decades later, Parliament enacted a statute requiring every borough and county to have a London-type police force. See id.

The ‘Bobbie’ model of policing caught on more slowly in the United States, but by the 1880s most major American cities had adopted some type of full-time paid police force. See id. at 59 (noting that the county sheriff system continued in rural areas).

58 See LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 151-52 (1993) (citation omitted).

59 Id. at 151.

60 See id. at 152 (describing early police use of station houses as homeless shelters for the poor). This same type of public problem-solving still remains a large part of police work. Police are called upon to settle landlord-tenant disputes, deliver emergency care, manage traffic, regulate parking, and even to respond to alleged haunted houses. See id. at 151 (recounting 1894 alleged ghost incident in Oakland, California). Police continue to provide essential services to communities, especially at night and on weekends when they are the only social service agency. See SILBERMAN, supra note 6, at 321.

61 See GARRY WILLS, A NECESSARY EVIL: A HISTORY OF AMERICAN DISTRUST OF GOVERNMENT 248 (1999) (citation omitted).

62See REID, supra note 57, 65 (5th ed. 1999).

63 See JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 129 (1993).

64See id.

65 See id. at 130.

66 See E.X. BOOZHIE, THE OUTLAW’S BIBLE 15 (1988).

67 Private prosecution was not without costs to taxpayers. The availability of free courtrooms to air grievances tended to promote litigation. In 1804, the Pennsylvania legislature acted to allow juries to make private prosecutors pay the costs of prosecution in especially trifling cases. Act of Dec. 8, 1804 PL3, 4 Sm L 204 (repealed 1860). Private persons were thereafter liable for court costs if they omitted material exculpatory information from a grand jury, thereby causing a grand jury to indict without knowledge of potential defenses. See Commonwealth v. Harkness, 4 Binn. 194 (Pa. 1811). This protection, like many others, was lost when police and public prosecutors took over the criminal justice system in the twentieth century. See United States v. Williams, 504 U.S. 36 (1992) (holding prosecutor has no duty to present exculpatory evidence to grand jury).

68 In the American constitutional scheme, the states have ‘general jurisdiction,’ meaning they may regulate for public health and welfare and enact whatever means to enforce such regulation as is necessary and constitutionally proper. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), National League of Cities v. Usery, 426 U.S. 833 (1976) (both standing for the general proposition that states have constitutional power to provide for protection, health, safety, and quality of life for their citizens). See also Lawrence Tribe, American Constitutional Law, §§ 6-3, 7-3 (2d ed. 1988). State and municipal police forces can therefore be viewed as constitutional to the extent they actually carry out the lawful enactments of the state.

69 See infra notes 285-398 and their accompanying text.

70 See Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 347 (1984).

71 See Jerome Hall, Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 567 (1936).

7 2See id.

73 See id. at 567-71 (discussing earliest scholarly references to the distinction). A 1936 Harvard Law Review article suggested the distinction is a false one owed to improper marshalling of scholarship. See id. (writing of “the general misinterpretation” resulting from a 1780 case in England).

74 See id. at 575 n.44 (citing the case of Beckwith v. Philby, 6 B. & C. 635 (K. B. 1827)).

75 See id. at 571-72. Although official right was apparently considered somewhat greater than that of private citizens during much of the 1700s, the case law enunciates no support for any such distinction until Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850). It was apparently already the common practice of English constables to arrest upon information from the public in the 1780’s. See id. at 572. The “earlier requirement of a charge of a felony had already been entirely forgotten” in England by the early nineteenth century. Id. at 573. According to Hall, the only real distinction in practice in the early nineteenth century was that officers were privileged to draw their suspicions from statements of others, whereas private arrestors had to base their cause for arrest on their own reasonable beliefs. See id. at 569.

76See Rohan v. Sawin, 59 Mass. (5 Cush.) 281, 285 (1850).

77 See id.

78 See 18 U.S.C. § 925 (a)(l) (2000) (exempting government officers from federal firearm disabilities).

79 See, e.g., CAL. PENAL CODE § 468 (West 1985) (releasing police from liability for possession of sniper scopes and infrared scopes).

80 See, e.g., FLA. STAT. CH. 338. 155 (1990).

81 See, e.g., FLA. STAT. CH. 320.025 (1990) (allowing confidential auto registration for police).

82 See ARK. CODE ANN. § 20-22-703 (Michie 2000).

83 See 18 U.S.C. § 1114 (amended 1994) (providing whoever murders a federal officer in first degree shall suffer death).

84 See CAL. PENAL CODE § 832.9 (West 1995).

85 See, e.g., CAL. HEALTH & SAFETY CODE §§ 199.95-199.99 (West 1990) (mandating HIV testing for persons charged with interfering with police officers whenever officers request).

86 See Electronic Communications Privacy Act, 18 U.S.C. 2511 (2000); United States v. Leon, 104 S. Ct. 3405 (1984).

87 See Williams v. Poulos, 11 F.3d 271 (lst Cir. 1993).

88 See, e.g., People v. Curtis, 450 P.2d 33, 35 (Cal. 1969) (speaking of the “[g]eneral acceptance” by courts of the elimination of the right to resist unlawful arrest).

89 See HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 53 (1981). The statements of James Madison when introducing the proposed amendments to the Constitution before the House of Representatives, June 8, 1789, also support such a reading of the Bill of Rights. House of Representatives, June 8, 1789 Debates, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 647, 657 (David E. Young, ed.) (2d ed. 1995) (stating “the great object in view is to limit and qualify the powers of Government”).

90 See STORING, supra note 89, at 48.

91 See, e.g., MD. CONST. of 1776, art. I (declaring that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole”); MASS. CONST. of 1780, art. I (“All men are born free and equal, and have certain natural, essential, and unalienable rights”); N.H. CONST. of 1784, art. I (“All men are born equally free and independent”).

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