ARE COPS CONSTITUTIONAL? Roger Roots* ABSTRACT 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. PART I INTRODUCTION 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 THE 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.