Resisting arrest a constitutional right lost in rise of Progressivism

Las Vegas cop beat a restaurant patron because he doesn't clear out quickly enough. (Photo

Las Vegas cop beat a restaurant patron because he doesn’t clear out quickly enough. (Photo

See Part I of Mr. Roots’ essay here. The rise of policing despite constitution; or how cops became legally superior

By Roger Roots

Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation’s founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed.92 As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause.93 Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest.94

Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.95 Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.96 The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as “absurd, slavish, and destructive of the good and happiness of mankind.”97

By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,98 (2) criminalized the resistance of any officer acting in his official capacity,99 (3) eliminated the requirement that an arresting officer present his warrant at the scene,100 and (4) drastically decreased the number and types of arrests for which a warrant is required.101 Although some state courts have balked at this march toward efficiency in favor of the state,102 none require the level of protection known to the Framers.103

But the right to resist unlawful arrest can be considered a constitutional one. It stems from the right of every person to his bodily integrity and liberty of movement, among the most fundamental of all rights.104 Substantive due process principles require that the government interfere with such a right only to further a compelling state interest105 — and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.106 Thus, the advent of professional policing has endangered important rights of the American people.

The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.107

As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).108 Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.109 Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.110 More than one officer tried for murder in such cases — along with fellow police who urged dismissals — argued that such killings were in the discharge of official duties.111 Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.112 Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.113 More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.114

Tennessee’s Garner case

In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent suspects.115 Tennessee v. Garner116 involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.117 The Court limited police use of deadly force to cases of self defense or defense of others.118

As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.119 In no reported case has a judge or jury held an officer liable who used deadly force where a mere “reasonable” belief that human life was in imminent danger existed.120 Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.121 The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating to “take up a defensive position,” drawing criticism from Judge Kozinski that the court had adopted the “007 standard” for police shootings.122

Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,123 reach for their identification too quickly,124 reach into a jacket or pocket,125 “make a motion” of going for a gun,126 turn either toward or away from officers,127 ‘pull away’ from an officer as an officer opened a car door,128 rub their eyes and stumble forward after a mace attack,129 or allegedly lunge with a knife,130 a hatchet,131or a ballpoint pen.132 Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object — a Jack Daniel’s whiskey bottle,133 a metal rod,134 a wooden stick,135 a kitchen knife (even while eating dinner),136 a screwdriver,137 a rake138 — or even refused an order to raise their hands.139

Cops who shoot an individual holding a shiny object that can be said to resemble a gun — such as a cash box,140 a shiny silver pen,141 a TV remote control,142 or even a can opener143 — are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.144 In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence.145 Seventy-five to eighty percent of all Houston officers apparently carried “throw-down” weapons for such purposes.146 Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.147

Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.148 Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.149 Only where the claimed imminent threat seems too contrived — such as where an officer opened fire to defend himself from a pair of fingernail clippers150 — or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.151

As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).152 Yet in modern criminal courts, police tend to be more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.153 Under the Framers’ common law, this conflict of interest did not arise at all because a citizen grand jury — independent from the state attorney general — brought charges against a criminal officer, and the officer’s victim prosecuted the matter before a petit jury.154 But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.

Mayhem by police

The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.155 At least 2,000 Americans have been killed at the hands of law enforcement since 1990.156 Some one-fourth of these killings — about fifty per year — are alleged by some authorities to be in the nature of murders.157 Yet only a handful have led to indictment, conviction and incarceration.158 This is true even though most police killings involve victims who were unarmed or committed no crime.159

Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets at a victim where one or two would stop the individual.160 Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.161

From the earliest arrival of professional policing upon America’s shores, police severely taxed both the largesse and the liberties of the citizenry.162 In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar “crimes,” or detained them on mere “suspicion.”163 Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.164 In the name of law enforcement, police became professional lawbreakers, “constantly breaking in upon common law and … statute law.”165 In 1903 a former New York City police commissioner remarked that he had seen “a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest…. The police are practically above the law.”166

The safety of the police profession

Defenders of police violence often cite the dangerous nature of police work, claiming the police occupation is filled with risks to life and health. Police training itself — especially elite SWAT-type or paramilitary training that many officers crave — reinforces the “dangerousness” of police work in the officers’ own minds.167 There is some truth to this perception, in that around one hundred officers are feloniously killed in the line of duty each year in the United States.168

But police work’s billing as a dangerous profession plummets in credibility when viewed from a broader perspective. Homicide, after all, is the second leading cause of death on the job for all American workers.169 The taxicab industry suffers homicide rates almost six times higher than the police and detective industry.170 A police officer’s death on the job is almost as likely to be from an accident as from homicide.171 When overall rates of injury and death on the job are examined, policing barely ranks at all. The highest rates of fatal workplace injuries occur in the mining and construction industries, with transportation, manufacturing and agriculture following close behind.172 Fully 98 percent of all fatal workplace injuries occur in the civilian labor force.173

Moreover, police work is generously rewarded in terms of financial, pension and other benefits, not to mention prestige. Police salaries may exceed $100,000 annually plus generous health insurance and pension plans — placing police in the very highest percentiles of American workers in terms of compensation.174 The founding generation would have been utterly astonished by such a transfer of wealth to professional law enforcers.175 This reality of police safety, security and comfort is one of the best-kept secrets in American labor.

In all, it is questionable whether modern policing actually decreases the level of bloodshed on American streets. Police often bring mayhem, confusion and violence wherever they are called.176 Approximately one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders.177 Cops occasionally prevent rather than execute rescues.178 “Police practices” ranked as the number one cause of violent urban riots of the 1960s.179 Indeed, police actively participated in or even initiated some of the nation’s worst riots.180 During the infamous Chicago Police Riot during the Democratic National Convention in 1968, police physically attacked 63 newsmen and indiscriminately beat and clubbed numerous innocent bystanders.181


If the modern model of cop-driven criminal justice has any defense at all, it is its “professionalism.” Private law enforcement of the type intended by the Framers was supposedly more inclined toward lax and arbitrary enforcement than professional officers who are sworn to uphold the law.182 Upon scrutiny, however, the claim that professional police are more reliable, less arbitrary, and more capable of objective law enforcement than private law enforcers is drastically undermined.

The constitutional model of law enforcement (investigation by a citizen grand jury, arrest by private individuals, constables or citizens watch, and private prosecution) became seen as inefficient and ineffective as America entered its industrial age.183 Yet the grand jury in its natural and unhobbled state is more, rather than less, able to pursue investigations when compared to professional police. Grand jurors are not constrained by the Fourth, Fifth or Sixth amendments — or at least the “exclusionary rule” fashioned by the courts to enforce those amendments.184

In the absence of police troops to enforce the law, the early criminal justice system was hardly as hobbled and impotent as conventional wisdom suggests. Private watch groups and broad-based advocacy groups existed to enforce laws and track criminals among jurisdictions. Thousands of local antihorsethief associations and countless ‘detecting societies’ sprang up to answer the call of crime victims in the nineteenth century.185 In Maine, the “Penobscot Temperance League” hired detectives to investigate and initiate criminal cases against illegal liquor traffickers.186 In the 1870s a private group called the Society for the Suppression of Vice became so zealous in garnering prosecutions of the immoral that it was accused in 1878 of coercing a defendant into mailing birth control information in violation of federal statutes,187 one of the earliest known instances of conduct that later became defined as entrapment.188 Although some of these private crime-fighting groups were invested with limited state law enforcement powers,189 they were not police officers in the modern sense and received no remuneration.

Such volunteer nonprofessionals continue to aid law enforcement as auxiliary officers in many American communities.190 Additionally, private organizations affiliated with regional chambers of commerce, neighborhood watch and other citizens’ groups continue to play a substantial — though underappreciated — role in fighting crime.191 America also has a long history of outright vigilante justice, although such vigilantism has been exaggerated both in its sordidness192 and in its scope.193

Moreover, government-operated policing is hardly a monopoly even today, neither in maintaining order nor over matters of expertise and intelligence-gathering.194 There are three times more private security guards than public police officers and even activities such as guarding government buildings (including police stations) and forensic analysis are now done by private security personnel.195

The chief selling point for professional policing seems to be the idea that sworn government agents are more competent crime solvers than grand juries, private prosecutors, and unpaid volunteers. But this claim disintegrates when the realities of police personnel are considered. In 1998, for example, forty percent of graduating recruits of the Washington, D.C. police academy failed the comprehensive exam required for employment on the force and were described as “practically illiterate” and “borderline-retarded.”196 As a practical matter, police are more dependent upon the public than the public is dependent upon police.197

Cops rely on the public for a very high percentage of their investigation clearances. As the rate of crimes committed by strangers increases, the rate of clearance by the police invariably declines.198 Roughly two-thirds of major robbery and burglary arrests occur solely because a witness can identify the offender, the offender is caught at or near the crime scene, or the offender leaves evidence at the scene.199 In contrast, where a suspect cannot be identified in such ways, odds are high that the crime will go unsolved.200

Studies show that as government policing has taken over criminal investigations, the rates of clearance for murder investigations have actually gone down. For more than three decades — while police units have expanded greatly in size, power and jurisdiction — the gap between the number of homicides in the United States and the number of cases solved has widened by almost twenty percent.201 Today, almost three in ten homicides go unsolved.202

DNA evidence illustrates fallibility of police

Moreover, a surprisingly high number of police conclusions are simply wrong. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct.203 In the 25-year period following the Supreme Court’s ruling in Gregg v. Georgia204 reaffirming the use of capital punishment, one innocent person has been freed from death row for every seven who have been executed.205 In Illinois, Thirteen men have been freed from death row since 1977 after proving their innocence — more than the twelve who were actually put to death over the same period. Governor George Ryan finally ordered a moratorium on executions until the death penalty system could be revamped,206 referring to the death penalty system as “fraught with error.”207

Yet death penalty cases are afforded far more due process and scrutiny of evidence than noncapital cases. If anything, the error rate of police in noncapital cases is likely substantially higher. Governor Ryan’s words would seem to apply doubly to the entire system of police-driven investigation.

The advent of DNA analysis in the courtrooms of the 1990s greatly accelerated the rate at which police errors have been proven in court, even while avenues for defendants’ appeals have been systematically cut off by Congress and state legislatures.208 DNA testing before trial has exonerated at least 5000 prime suspects who would likely have otherwise been tried on other police evidence.209 Often, exculpatory DNA revelations have come in cases where other police-generated evidence was irreconcilable, suggesting falsification of evidence or other police misconduct.210 The sheer number of wrongly accused persons freed by DNA evidence makes it beyond dispute that police investigations are far less trustworthy than the public would like to believe.211

Even more unjustified is the notion that a justice system powered by professional police possesses higher levels of integrity, trustworthiness and credibility than the criminal justice model intended by the Framers. Within the criminal justice system, cops are regarded as little more than professional witnesses of convenience, if not professional perjurers, for the prosecution.212 Almost no authority credits police with high levels of honesty. Indeed, the daily work of cops requires strategic lying as part of the job description.213 Cops lie about the strength of their evidence in order to obtain confessions,214 about giving Miranda warnings to arrestees when on the witness stand,215 and even about substantive evidence when criminal cases need more support. Cops throughout the United States have been caught fabricating, planting and manipulating evidence to obtain convictions where cases would otherwise be very weak.216 Some authorities regard police perjury as so rampant that it can be considered a “subcultural norm rather than an individual aberration” of police officers.217 Large-scale investigations of police units in virtually every major American city have documented massive evidence tampering, abuse of the arresting power, and discriminatory enforcement of laws according to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los Angeles charge that dozens of officers abused their authority by opening fire on unarmed suspects, planting evidence, dealing illegal drugs, or framing some 200 innocent people.218 More than a hundred prosecutions had to be dismissed in Chicago in 1997 due to similar police misconduct.219 During the infamous “French connection” case of the 1970s, New York City narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds of cocaine for their own use, making the City’s Special Investigating Unit the largest heroin and cocaine dealer in the city.220

Police criminality was so acute in New Orleans during the 1980s and 1990s that people were afraid to report crimes for fear that corrupt officers would retaliate or tip off organized crime figures. One New Orleans officer was convicted of ordering the execution of a witness who reported him to the internal affairs unit for allegedly pistol-whipping a teenager.221 Thirty-six Washington, D.C. officers were indicted on charges such as drug dealing, sexual assault, murder, sodomy and kidnapping in 1992.222

In Detroit, repeated corruption allegations have seen a number of low- and high-ranking officers go to prison for drug trafficking, hiring hit men, providing drug protection, and looting informant funds.223 Police burglary rings have been uncovered in several cities.224

Patterns of police abuse tend to repeat themselves in major American cities despite endless attempts at reform.225 New York City police, for example, have been the subject of dozens of wide-ranging corruption probes over the past hundred years226 yet continue to generate corruption allegations.227 Police exhibit unique levels of occupational solidarity.228 Review boards and internal affairs commissions inevitably fail to penetrate police loyalty and find resistance from every rank.229 Cops inevitably form an isolated authoritarian subculture that is both cynical toward the rule of law and disrespectful of the rights of fellow citizens.230 The code of internal favoritism that holds police together may more aptly be described as syndicalism rather than professionalism. Historically, urban police “collected” from local businesses.231 Today, a more subtle brand of racketeering prevails, whereby police assist those businesses which provide support for police and undermine businesses which are perceived as antagonistic to police interests. This same shakedown also applies to newspaper editors and politicians.232

Even at the federal level, where national investigators presume to police corruption and oversee local departments, favoritism toward the police role is rampant. In 1992, for example, the federal government filed criminal charges in only 27 cases of police criminality.233 A federal statute criminalizing violations of the Fourth Amendment has never been enforced even a single time, although it has been a part of the U.S. Code since 1921.234 Throughout the 1980s and ’90s, the FBI Crime Laboratory actively abetted the misconduct of local police departments by misrepresenting forensic evidence to bolster police cases against defendants.235

Cops are not cost-effective deterrent

In terms of pure economic returns, police are a surprisingly por public investment. Typical urban police work is very expensive because police see a primary part of their role as intervention for its own sake — poking, prodding and questioning the public in hope of turning up evidence of wrongdoing. Toward this end, police spin quick U-turns, drive slowly and menacingly down alleyways, reverse direction to track suspected scofflaws, and conduct sidewalk pat-down searches of potential criminals absent clear indicia of potential criminality.236 Studies indicate, however, that such tactics are essentially worthless in the war on crime. One experiment found that when police do not ‘cruise’ but simply respond to dispatched calls, crime rates are completely unaffected.237

Thus the very aspect of modern policing that the public view as most effective — the creation of a ‘police presence’ — is in fact a monstrous waste of public resources.238 Similarly, the history of America’s expenditures in the war on drugs provides little support for the proposition that money spent on policing yields positive returns.239 University of Chicago professor John Lott has found that while hiring police can reduce crime rates, the net benefit of hiring an additional officer is about a quarter of the benefit from arming the public with an equivalent dollar amount of concealed handguns.240

There is no doubt that modern police are a creation of lawful representative legislatures and are very popular with the general public.241 But the rights of Americans depend upon freedom from government as much as freedom of government.242 Constitutions must provide a countermajoritarian edifice to the threat posed by the will of the masses, and courts must at times pronounce even the most popular programs invalid when they contravene the fundamental liberties of a minority — or even the whole people at times when they inappropriately devalue their liberties.243

* 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. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.


92 See Coyle v. Hurtin, 10 Johns. 85 (N.Y. 1813).

93 See Bad Elk v. United States, 177 U.S. 529 (1900).

94 See Rex v. Gay, Quincy Mass. Rep. 1761-1772 91 (Mass. 1763) (acquitting assault defendant who beat a sheriff when sheriff attempted to arrest him pursuant to invalid warrant).

95 See Wolf v. Colorado, 338 U.S. 25, 30 n. 1, 31 n. 2 (1948) (citing cases upholding right to resist unlawful search and seizure).

96 See Adams v. State, 48 S.E. 910 (Ga. 1904).

97 See MD. CONST. of 1776, art. IV; N.H. Const. of 1784, art. X.

98 See, e.g., State v. Kutchara, 350 N.W.2d 924, 927 (Minn. 1984) (saying Minnesota law does not recognize right to resist unlawful arrest or search); People v. Curtis, 450 P.2d 33, 36 (Cal. 1969) (holding California law prohibits forceful resistance to unlawful arrest).

99 See, e.g., CAL. PENAL CODE § 243 (criminalizing the resistance, delay or obstruction of an officer in the discharge of “any duty of his office”). CAL. PENAL CODE § 834(a) (1957) (“If a person has knowledge … that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest”).

100 See, e.g., United States v. Charles, 883 F.2d 355 (5th Cir. 1989) (excusing as harmless error the failure of officers executing warrant to have the warrant in hand during raid); United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973) (holding failure to deliver copy of warrant to the party being searched or seized does not invalidate search or seizure in the absence of prejudice); Willeford v. State, 625 S.W.2d 88, 90 (Tex. App. 1981) (upholding validity of search and seizure before arrival of warrant). Not only has the requirement that officers show their warrant before executing it been eliminated, but the requirement that officers announce their authority and purpose before executing search warrants has been all but eliminated. See Richards v. Wisconsin, 570 U.S. 385 (1997) (eliminating requirement that officers be refused admittance before using force to enter the place to be searched in many cases).

101 See William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 MO. L. REV. 771 (1993) (discussing the erosion of requirements for arrest warrants in many jurisdictions).

102 See, e.g., Polk v. State, 142 So. 480, 481 (Miss. 1932) (striking down statute allowing warrantless arrest for misdemeanors committed outside an officer’s presence); Ex Parte Rhodes, 79 So. 462, 462-63 (Ala. 1918) (holding statute unconstitutional which allowed for warrantless arrest for out-of-presence misdemeanors).

103 See Schroeder, supra note 101, at 793.

104 See Thor v. Superior Court, 855 P.2d 375, 380 (Cal. 1993) (saying the developing consensus “uniformly recognizes” a patient’s right to control his own body, stemming from the “long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination.”) (citations omitted). “For self-determination to have any meaning, it cannot be subject to the scrutiny of anyone else’s conscience or sensibilities.” Id. at 385.

105 See Michael v. Hertzler, 900 P.2d 1144, 1145 (Wyo. 1995) (stating if a statute reaches a fundamental interest, courts are to employ strict scrutiny in making determination as to whether enactment is essential to achieve compelling state interest).

106 “[Only] the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Thomas v. Collins, 323 U.S. 516, 530 (1945). A “compelling state interest” is defined as “[o]ne which the state is forced or obliged to protect.” BLACK’S LAW DICTIONARY 282 (6th ed. 1990) (citing Coleman v. Coleman, 291 N.E.2d 530, 534 (1972)).

107 The American constitutional order grants to every individual a privilege to stand his ground in the face of a violent challenger and meet violence with violence. A “duty to retreat” evolved in some jurisdictions, however, where a defender contemplates the use of deadly force. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 461 (2d ed. 1986). But with police, the courts have never imposed a duty to retreat. See id. This, combined with the recurring police claim that an attacker might get close enough to grasp the officer’s sidearm, has meant, in practical terms, that an officer may repel even a minor physical threat with deadly force.

The effect of this exception for law enforcement officers has been to grant an almost absurd advantage to police in ‘self-defense’ incidents. Not only do cops have no duty to retreat, but they seem privileged to kill whenever a plausible threat of any injury manifests itself. See infra, notes 115-147, and accompanying text. Cops — unlike the general public — appear excused whenever they open fire on an individual who threatens any harm — even utterly nonlethal — against them, such as a verbal threat to punch the officer combined with a step forward. See infra, notes 123-147, and accompanying text.

108 See James J. Fyfe, Police Use of Deadly Force: Research and Reform, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 134-40 (George F. Cole & Mare G. Gertz eds., 7th ed. 1998).

109 Id. at 135 (quoting Chapman and Crocket).

110 See People v. Klein, 137 N.E. 145, 149 (Ill. 1922) (reporting that “numerous” peace officers testified that shooting was the customary method of arresting speeders during trial of peace officer accused of murder).

111 See id.; Miller v. People, 74 N.E. 743 (Ill. 1905) (involving village marshal who shot and killed speeding carriage driver).

112 See Fyfe, supra note 108, at 137.

113 See id. at 140.

114 See id. at 141 (table showing fatal shootings per 1,000 police officers, Philadelphia). A study of Philadelphia P.D. firearm discharges from 1970 through 1978 found only two cases that resulted in departmental discipline against officers on duty. See id. at 147 n.2. One case involved an officer firing unnecessary shots into the air; the other involved an officer who shot and killed his wife in a police station during an argument over his paycheck. See id.

115 See Tennessee v. Garner, 471 U.S. 1 (1985).

116 471 U.S. 1 (1985).

117 See Fyfe, supra 108, at 136.

118 The Garner decision has been interpreted in different ways by different courts and law-making bodies. See Michael R. Smith, Police Use of Deadly Force: How Courts and Policy-Makers Have Misapplied Tennessee v. Garner, 1 KAN. J. L. & PUB. POL’Y, 100, 100-01 (1998). Smith argues that many of these interpretations stem from inaccurate readings of Garnerand that lower courts have failed to hold police officers liable according to the standard required by the Supreme Court. See id.

119 On behalf of modern police, courts have adopted a qualified immunity defense to police misconduct claims. Essentially, where cops can justify by plausible explanation that their conduct was within the bounds of their occupational duties, there is a “good faith” defense. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Procunier v. Navarette, 434 U.S. 555 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976); Wood v. Strickland, 420 U.S. 308 (1975). But as David Rudovsky points out, the “good faith” defense is an artificial ingredient to normal tort liability. “The standard rule,” notes Rudovsky, “is that a violation of another’s rights or the failure to adhere to prescribed standards of conduct constitutes grounds for liability.” David Rudovsky,The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 248 (David Kairys ed., 1982). The “good faith” defense for police is thus an artificial layer of tort immunity protection not normally available to other types of litigants. Under the standard rules of tort law, after all, a defendant’s good faith, intent, or knowledge of the law are irrelevant. See id. at 248.

120 See Smith, supra note 118, at 117.

121 See id. at 106.

122 Idaho v. Horiuchi, 215 F.3d 986 (9th Cir. 2000) (Kozinski, J., dissenting).

123 OCTOBER 22 COALITION TO STOP POLICE BRUTALITY ET AL., STOLEN LIVES: KILLED BY LAW ENFORCEMENT 307 (2d. ed. 1999) (hereinafter “STOLEN LIVES”) (saying officer shot and killed victim after victim ‘made a move’ following a foot chase).

124 See id. at 207 (listing a 1993 Michigan case).

125 See id. at 262 (reporting 1990 Brooklyn case in which cop had shot unarmed teenage suspect in back of head for allegedly reaching into jacket).

126 See id. at 250 (reporting 1996 New York case in which man was shot 24 times by police while sitting in car with his hands in the air); id. at 252 (reporting shooting of alleged car thief after motion as if they were going for a gun’).

127 See id. at 262 (reporting 1990 Bronx shooting precipitated by the decedent turning toward an officer as officer opened door of decedent’s cab).

128 See id. at 263 (reporting 1988 New York case initiated when a driver made illegal turn and ending with police pumping 16 bullets into her).

129 See id. at 262 (reporting 1990 Brooklyn case in which decedent was shot nine times while standing and twice in back while lying on ground).

130See id. at 240 (reporting a 1998 New York case).

131 See id. at 232 (reporting 1991 New Mexico case).

132 See id. at 220 (reporting 1998 Nevada case).

133 See id. at 29.

134 Id. at 44.

135 Id. at 46. The possession of a wooden stick has cost more than one person his life at the hands of police. See also id. at 68.

136 Id. at 53.

137 Id. at 53.

138 See Detroit Police Kill Mentally Ill Deaf Man, BOSTON GLOBE, Aug. 31, 2000 at A8.

139 See STOLEN LIVES, supra note 123, at 57. 140See id. at 60.

141 See id. at 62.

142 See id. at 206 (listing a 1993 Michigan case). In another Michigan case, a cop shot someone who merely had a VCR remote control in his pocket, claiming he mistook it for a gun. See id. at 205.

143 See id. at 305 (saying Houston police surrounded truck and fired 59 times at victim as he sat in truck holding can opener). No civilian witnesses saw the “shiny object” (can opener) police claimed they saw. See id.

144 Police use of throwdown guns has been alleged across the country. Guns which are introduced without a suspect’s fingerprints when they should have fingerprints, and guns that are found by police officers after an initial, supposedly complete, search of a crime scene by other detectives, can be said to raise questions about police use of throw-down guns.C.f. Joe Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (raising the issue in a San Diego case).

145 See Webster v. City of Houston, 689 F.2d 1220, 1227 (5th Cir. 1982).

146 Id. at 1222.

147 See id. at 1221-23 (describing “damning” evidence of official cover-up and police vindication as a matter of policy).

148 See STOLEN LIVES, supra note 123, at 72. In one 1987 Los Angeles case, a man was shot four times and killed when he picked up a discarded pushbroom to deflect police baton blows. See id. 72.

149 See id. at iv. In one particularly egregious case, a police killing was upheld as beyond liability where officers shot a speeding trucker who refused to stop. See Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993). But see, e.g., Gutierrez-Rodriquez v. Cartagena, 882 F.2d 553 (1st Cir. 1989) (affirming verdict against plainclothes officers who shot driver who drove away); Sherrod v. Berry, 827 F.2d 195 (7th Cir. 1987) (affirming verdict against officers who shot driver as driver reached into jacket pocket during questioning); Moody v. Ferguson, 732 F. Supp. 176 (D.S.L. 1989) (rendering judgment against officers who shot driver fleeing in vehicle from traffic stop).

150 See Zuchel v. City and County of Denver, Colorado, 997 F.2d 730 (10th Cir. 1993).

151 See Alison L. Patton, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L. J. 753, 754 (1993) (saying plaintiffs rarely win absent independent witnesses or physical evidence).

152 See Peter L. Davis, Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 288 (1994). Prior to the 1900s, it was not uncommon for law enforcers who killed suspects during confrontations to be placed on trial for their lives even when they reacted to violent resisters. See United States v. Rice, 27 F. Cas. 795 (C.C.N.C. 1875) (No. 16,153) (involving deputy United States Marshall on trial for murder of tax evasion suspect); State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853) (fining peace officers for assault and false imprisonment); Conner v. Commonwealth, 3 Bin. 38 (Pa. 1810) (involving a constable indicted for refusing to execute arrest warrant). Even justices of the peace could be criminally indicted for dereliction of duties. See Respublica v. Montgomery, Dall. 419 (1795) (upholding validity of a criminal charge against a justice of the peace who failed to suppress a riot).

153 See Davis, supra note 152, at 290 (noting the hopeless conflict of interest in handling police violence complaints).

154 For an overview of the powers of early grand juries to accuse government officials, see Roger Roots, If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).

155 See Steiker, supra note 3, at 836 (saying police excesses such as beatings, torture, false arrests and the third degree arc well documented).

156 See STOLEN LIVES, supra note 123, at vii.

157 See International Secretariat of Amnesty International, News Release, From Alabama to Wyoming: 50 Counts of Double Standards — The Missing Entries in the US Report on Human Rights, Feb. 25, 1999.

158 See STOLEN LIVES, supra note 123, at iv.

159 See id. at v.

160 Certain examples demonstrate. FBI agents in Elizabeth, New Jersey shot 38 times inside an apartment to kill an unarmed man who they first tried to say had fired first. See id. at 226. In February 1999, Bronx police fired 41 bullets at an unarmed African immigrant in his apartment doorway. See id. at 234. After this unlawful killing, cops unlawfully searched the decedent’s apartment to justify shooting, failing to find any evidence of drugs. See id. In August 1999, Manhattan cops fired a total of 35 shots at alleged robber (who probably did not fire), injuring bystander and sending crowds fleeing. See id.

161 Most states that allow the death penalty require that aggravating factors exist before imposition of capital punishment.See, e.g., IDAHO CODE § 19-2515 (1997) (allowing death penalty for crimes involving “especially heinous, atrocious or cruel, [or] manifesting exceptional depravity” or showing “utter disregard for human life”); TEX. CRIM. P. ANN. § 37.071 (West 1981) (listing factors such as whether the crime was “unreasonable in response to the provocation”); WYO. STAT. ANN. § 6-2-102 (Michie 1999) (allowing death penalty only upon a finding of aggravating factors such as a creation of great risk of death to two or more persons or for “especially atrocious or cruel” conduct).

162 The earliest attempts at professionalization of constables failed in the United States due to insufficiency of public funds.See Steiker, supra note 3, at 831. Some of the earliest U.S. Supreme Court decisions regarding police forces involve disputes over municipal police spending. See, e.g., Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170 (1909) (resolving dispute over debts run up by municipal police district); New Orleans v. Benjamin, 153 U.S. 411 (1894) (involving dispute over unbudgeted debts run up by New Orleans police board); District of Columbia v. Hutton, 143 U.S. 18 (1891) (dealing with salary dispute involving District of Columbia police force).

163 See FRIEDMAN, supra note 58, at 362 (1993). Dallas police, for example, arrested 8,526 people in 1929 “on suspicion” but charged less than five percent of them with a crime. See id.

164 The infamous case of Brown v. Mississippi, 297 U.S. 278 (1936), provides a grim reminder of the torture techniques that have been employed upon suspects during the past century. In Brown, officers placed nooses around the necks of suspects, temporarily hanged them, and cut their backs to pieces with a leather strap to gain confessions. Id. at 281-82.

165 FRIEDMAN, supra note 58, at 151 n.20 (quoting George S. McWatters, who studied New York detectives in the 1870s).

166 See TITUS REID, supra note 57, at 122 (citations omitted).

167 See Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS. 1, 11 (1997).

168 One-hundred-seventeen federal, state, and local officers were killed feloniously in 1996 — the lowest number since 1960. See Sue TITUS REID, supra note 57, at 123.

169 See National Institute for Occupational Safety and Health, Violence in the Work Place, June 1997.

170 See id.

171  Approximately 40 percent of police deaths are due to accidents. See TITUS REID, supra note 57, at 123.

172 See National Institute for Occupational Safety and Health, Fatal Injuries to Workers in the United States, 1980-1989: A Decade of Surveillance 14 (April 15, 1999); Robert Rockwell, Police Brutality: More than Just a Few Bad Apples, REFUSE & RESIST, Aug. 14, 1997 (describing the “cultivation of the myth of policing as the most dangerous occupation”).

173 See id. at 13.

174 See SKOLNICK & FYFE, supra note 63, at 93.

175 See Hall, supra note 71, at 582-83 (describing early constables as “[a]bominably paid”).

176 C.f. STOLEN LIVES, supra note 123, at v (saying when police arrive on the scene, they often escalate the situation rather than defuse it).

177 See STOLEN LIVES, supra note 123, at vi.

178 See, e.g., Brandon v. City of Providence, 708 A.2d 893 (R.I. 1998) (finding municipality immune from liability when cops prevented relatives of injured shooting victim from taking victim to the hospital before victim died). See also Stolen Lives, supra note 157, at 305 (saying Tennessee police prevented fire fighters from saving victim of fire in 1997 case). Other notorious examples can be cited, including the 1993 Waco fire (in which fire trucks were held back by federal agents) and the 1985 MOVE debacle in Philadelphia in which police dropped a bomb on a building occupied by women and children and then held back fire fighters from rescuing bum victims. See WILLIE L. WILLIAMS, TAKING BACK OUR STREETS: FIGHTING CRIME IN AMERICA 16 (1996) (saying investigative hearings revealed cops had held back rescuers as a ‘tactical decision’).

179 See SKOLNICK & FYFE, supra note 63, at 75 (citing U.S. Civil Disorder Commission study).

180 See SKOLNICK & FYFE, supra note 63, at 83 (describing police riots at Columbia University and Los Angeles).


182 See John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 ARK. L. REV. 511 (1994) (attacking private prosecution as unfair, arbitrary, and not in the public interest).

183 See Hall, supra note 71, at 580-85 (detailing inadequacies of private law enforcement).

184 See United States v. Wong, 431 U.S. 174 (1977) (holding Miranda requirements do not apply to a witness testifying before a grand jury); United States v. Calandra, 414 U.S. 338 (1974) (holding grand jury witness may not refuse to answer questions on ground that they are based on evidence obtained from unlawful search); United States v. Dionisio, 410 U.S. 1 (1973) (holding seizure of a person by subpoena for grand jury appearance is generally not within Fourth Amendment’s protection).


186 See State v. Walker, 32 Me. 195 (1850) (upholding actions of the private group).

187 See United States v. Whittier, 28 F. Cas. 591 (C.C.E.D. Mo. 1878).

188 See supra notes 438-445 and accompanying text for a discussion of the evolution of entrapment as a law enforcement practice.


190See JAMES S. CAMPBELL, ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT 441 (1970) (discussing successes of citizen auxiliary units in Queens, New York and other areas).

191 See id. 437-54 (1970) (discussing successes of citizen involvement in law enforcement).

192 American frontier vigilantism generally targeted serious criminals such as murderers, coach robbers and rapists as well as horse thieves, counterfeiters, outlaws, and ‘bad men.’ See NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 97 (Graham & Gurr, dir. 1969). Arguably, such offenders qualified as felons and would have faced the death penalty under the common law even if more conventional court processes were followed. That such vigilante movements often followed rudimentary due process of law is attested by historians such as Richard Maxwell Brown, who recounts that “vigilantes’ attention to the spirit of law and order caused them to provide, by their lights, a fair but speedy trial.” Richard Maxwell Brown, supra note 189, at 164. The northern Illinois Regulator movement of 1841, for example, provided accused horse thieves and murderers with a lawyer, an opportunity to challenge jurors, and an arraignment. See id. at 163. At least one accused murderer was acquitted by a vigilante court on the Wyoming frontier. See Joe B. Frantz, The Frontier Tradition: An Invitation to Violence, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 129-30 (Graham & Gurr, dir. 1969). Many accused were let off with whipping and expulsion rather than execution in the early decades of vigilante justice.See Brown, supra note 189, at 164. Less than half of all vigilante groups ever killed anyone. See id. Ironically, the move by vigilante groups toward killing convicted suspects began in the 1850s, — corresponding closely with the meteoric rise of professional policing. See id.

Vigilante movements occasionally developed to rescue the law from corrupt public officials who were violating the law. The case of the vigilantes who arrested and hanged Sheriff Henry Plummer of Virginia City, Montana in 1864 is such an example. See LEW L. CALLAWAY, MONTANA’S RIGHTEOUS HANGMEN (1997) (arguing the vigilantes had no choice but to take the law into their own hands).

193 “[T]he Western frontier developed too swiftly for the courts of justice to keep up with the progression of the people.” Joe B. Frantz, supra note 192, at 128. Vigilante movements did little more than play catch-up to what can only be described as rampant frontier lawlessness. Five-thousand wanted men roamed Texas in 1877. See id. at 128. Major crimes often went totally unprosecuted and countless offenders whose crimes were well known lived openly without fear of arrest on the western frontier. See id. Vigilantes filled in only the most gaping holes in court jurisdiction, generally (but not always) intervening to arrest only the perpetrators of serious crimes. See id. and at 130 (saying “improvised group action” was the only resort for many on the far frontier).

194 David H. Bayley & Clifford D. Shearing, The Future of Policing, in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 150, 150 (George F. Cole & Marc G. Gertz, eds., 7th ed. 1998).

195 See id. at 151, 154.

196 Tucker Carlson, Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

197 See SILBERMAN, supra note 6, at 297. Silberman points out that New York City police solved only two percent of robbery cases in which a witness could not identify an offender or the offender was not captured at the scene. See id.

198 See id. at 296 (saying clearance rate dropped precipitously between 1960 and 1976 as proportion of crimes committed by strangers increased).

199 See id. (citing figures registered between 1960 and 1976).

200 See id. at 296.

201 See Laura Parker & Gary Fields, Unsolved Killings on Rise: Percent of Cases Closed Drops From 86% to 69%, USA TODAY, Feb. 22, 2000, at A1.

202 See id.


204 428 U.S. 153 (1976) (finding death penalty constitutional so long as adequate procedures are provided to a defendant).

205 See SCHECK, supra note 203, at 218.

206 See Illinois Governor Orders Execution Moratorium, USA TODAY, Feb. 1, 2000, at 3A.

207 See id.

208 See SCHECK, supra note 203, at 218 (noting an average of 4.6 condemned people per year have been set free after 1996, while only 2.5 death row inmates per year were freed between 1973 and 1993).

209 See id. at xv (noting these 5,000 exonerations came from only the first 18 thousand results of DNA testing at crime laboratories — a rate of almost 30% exonerated).

210 C.f. id. at 180 (detailing indictment of four officers for perjury and obstruction of justice in the wake of one DNA exoneration).

211  DNA testing has proven that at least 67 people were sent to prison or death row for crimes they did not commit. See id. at xiv. This number grows each month. See id.

212 C.f. Morgan Cloud, The Dirty Little Secret, 43 EMORY L. J. 1311, 1311 (1994) (saying “[p]olice perjury is the dirty little secret of our criminal justice system”).


214 See SILBERMAN, supra note 6, at 308 (describing interrogation techniques of police as “an art form in its own right.”). Lying or bluffing can often persuade a suspect to admit crimes to the police which would not otherwise be proven. See id.

215 C.f. id. (recounting that an officer under observation would simply lie on the stand if challenged in court about whether Miranda warnings were given before questioning a suspect).

216 See Joe Cantlupe & David Hasemyer, Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (exposing that some officers gave false testimony in case of suspected cop-killers).

217 Andrew Horwitz, Taking the Cop Out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305, 1321 (1998) (quoting Jerome H. Skolnick).

218 See Daniel B. Wood, One precinct stirs a criminal-justice crisis, CHRISTIAN SCIENCE MONITOR, Feb. 18, 2000, at 1.

219 See TITUS REID, supra note 57, at 120.

220 See SILBERMAN, supra note 6, at 231.

221 See Gary Fields, New Orleans’ Crime Fight Started With Police, USA TODAY, Feb. 1, 2000, at 6A.

222 See Tucker Carlson, Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

223 See Abuse of Power, DETROIT NEWS, May 3, 1996.

224 See Lawrence W. Sherman, Becoming Bent: Moral Careers of Corrupt Policemen, IN “ORDER UNDER LAW”: READINGS IN CRIMINAL JUSTICE 96, 104-06 (1981) (discussing police burglary scandals of the 1960s).

225 See Wood, supra note 218, at 5 (citing critics).

226 See FRIEDMAN, supra note 58, at 154. The Lexow Committee of 1894 was perhaps the first to probe police misconduct in New York City. The Committee found that the police had formed a “separate and highly privileged class, armed with the authority and the machinery of oppression.” See id.. Witnesses before the Committee testified to brutal beatings, extortion and perjury by New York police. See id. at 154-55.

227 In April 1994, for example, thirty-three New York officers were indicted and ultimately convicted of perjury, drug dealing and robbery. See James Lardner, Better Cops. Fewer Robbers, N.Y. TIMES MAG., Feb. 9, 1997, pp. 44-52. The following year, sixteen Bronx police officers were indicted for robbing drug dealers, beating people, and abusing the public.See id.

228 See Jerome H. Skolnick, A Sketch of the Policeman’s “Working Personality,” in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 116, 123 (George F. Cole & Marc G. Gertz 7th ed. 1998).

229 See Wood, supra note 218, at 5 (quoting critics).

230 C.f. TITUS REID, supra note 57, at 117-119 (describing police subculture).

231 See FRIEDMAN, supra note 58, at 154 (saying New York police of the 1890s engaged in routine extortion of businesses, collecting kickbacks from push-cart vendors, corner groceries, and businessmen whose flag poles extended too far into the street). In Chicago, police historically sought “contributions” from saloonkeepers. See id. at 155.

232 See, e.g., PATRICK J. BUCHANAN, RIGHT FROM THE BEGINNING 283-84 (1990) (detailing police favoritism toward one St. Louis newspaper and antagonism toward its competitor); Jonathan D. Rockoff, Comment Costs Kennedy Police Backing, PROVIDENCE J., April 21, 2000, at 1B (describing police unions’ threats to drop their support for Rep. Kennedy due to Kennedy’s public remarks).

233 See Davis, supra note 152, at 355.

234 See Wasserstrom, supra note 70, at 293-94 n.188 (1984) (stating no one has ever been convicted under the statute, 18 U.S.C. § 2236).

235 See U.S. Dep’t of Justice, Office of Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April 1997) (detailing Justice Department’s findings of impropriety at the FBI Crime Lab).

236 Cf. SlLBERMAN, supra note 6, at 211-14 (observing the behavior of cops on patrol).

237 See id. at 215-16 (citing study conducted in Kansas City in the 1970s).

238 C.f. id. at 215 (pointing to mounting criticism of traditional approach). Studies of police pull-overs and sidewalk stops invariably demonstrate patterns of economic, racial, and social discrimination as well. See, e.g., Bruce Landis, State Police Records Support Charges of Bias in Traffic Stops, PROVIDENCE J., Sept. 5, 1999 at 1A (reporting Rhode Island traffic stop statistics demonstrate racial bias by state police).

239 The United States’ ‘war on drugs’ is a perfect illustration of the difficulties of implementing broad-ranging social policy through police enforcement mechanisms. “Not since Vietnam ha[s] a national mission failed so miserably.” JIM MCGEE & BRIAN DUFFY, MAIN JUSTICE: THE MEN AND WOMEN WHO ENFORCE THE NATION’S CRIMINAL LAWS AND GUARD ITS LIBERTIES 43 (1996). The federal drug control budget increased from $4.3 billion in 1988 to $11.9 billion in 1992, yet national drug supply increased greatly and prices dropped during the same period. See id. at 42. The costs of enforcement in 1994 ranged from $79,376 per arrestee by the DEA to $260,000 per arrestee by the FBI, with no progress made at all toward decreasing the drug trade. See id.

240 See JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS 213 n.3 (1998) (citing forthcoming paper).

241 Some two-thirds of the public say they have a great deal of respect for the police. See SHMUEL LOCK, CRIME, PUBLIC OPINION, AND CIVIL LIBERTIES: THE TOLERANT PUBLIC 69 (1999). Interestingly, however, lawyers are more than 20 percentage points lower in their general assessment of police. See id.

242 Public opinion polls repeatedly show that a majority of the public favor decreasing constitutional protections. See, e.g., id. at 6. It must be noted, however, that the general public is more inclined than lawyers and the Supreme Court to favor protecting some civil liberties. For example, 49 percent of the public disapproves of police searching private property by air without warrant, while only 37 percent of lawyers disapprove and the Supreme Court upheld the practice in United States v. Dunn, 480 U.S. 294 (1987). See id. at 39. A majority of the public (51%) would prohibit police from searching one’s garbage without a warrant, while only 36 percent of lawyers disapprove and the Supreme Court upheld the practice in California v. Greenwood, 486 U.S. 35 (1988). See id. The public is also less inclined than lawyers to approve of using illegally obtained evidence to impeach a witness. See id. at 45.

243C.f. Illinois v. Krull, 480 U.S. 340, 365 (1987) (O’Connor, J., dissenting) (stating Fourth Amendment rights have at times proved unpopular and the Framers drafted the Fourth Amendment in fear that future majorities might compromise Fourth Amendment values).

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