By Barry Friedman and Thought Matters
Barry Friedman is a leading authority on constitutional law, policing, criminal procedure, and the federal courts, and the founding director of the Policing Project. Ahead of the publication of his new book, Unwarranted: Policing Without Permission, we asked him a series of questions about his motivations for writing the book, policing after Ferguson and Snowden, the role of technology, and policing under Trump.
Thought Matters: You began writing Unwarranted well before the events in Ferguson, Missouri, sparked a national conversation about policing. What initially motivated you to write this book?
Barry Friedman: I’d like to say I saw it coming—but it was not exactly that. I’d seen for years how cavalier the courts were about policing. Not just street policing, but the kind of secret surveillance Edward Snowden revealed. I wanted to let people know and motivate them to care. Now people are paying attention. But they are not sure what to do about it. The book is pretty clear on that score. The book’s subtitle—Policing Without Permission—says it all. We need to get the public involved in the front end of policing, participating in decisions about how we are police. (Permission also means the police getting warrants before they intrude in people’s lives.)
TM: What is the Policing Project? How does its mission relate to the problems and solutions you describe in Unwarranted?
BF: Everyone is talking about accountability around policing, but they are focused on the wrong kind of accountability. It is all “back end,” holding the police to account after bad stuff happens: figuring out who was at fault, punishing misconduct. In the rest of government, outside policing, we have front-end accountability, too. The public is involved in making the rules. We haven’t done that around policing, and that is what Unwarranted recommends and what the Policing Project (www.policingproject.org) is trying to change. To give people a voice in how they are policed, on the front end. At the Policing Project we are working with police and communities, testing ways for the community to collaborate at the front end in how they are policed. We are working in cities like Tucson and Tampa and New York and Los Angeles and Camden and Cleveland, with departments and their communities.
And here’s the really interesting thing. Even the police like front-end accountability more than back end. It’s about collaboration and buy in, rather than second-guessing.
TM: Ferguson exposed deep-seated issues of discriminatory policing. What sort of policies can be put in place to combat implicit racial bias?
BF: One answer is better recordkeeping. Keep track of the racial composition of the stops; when you do that, everyone—the police, the public, interest groups—starts to pay attention. Tackling issues of race is a lot harder than you think, though. For example, a lot of stops are responses to citizen calls for service. If people who call the police are themselves experiencing these biases, then policing will reflect it even though the police may not be at fault. This nation has a long, sad history with race, and we have to work overtime to deal with it—all of us, not just insisting that the police fix the problem.
TM: The video recording of police misconduct has played an outsize role in changing how we think about police use of force, not to mention racial bias. It has also fueled calls for police to wear body cameras. Can cameras, both worn by police and wielded by citizens, solve the problems of street policing?
BF: Cameras are not a panacea. They are yet another back-end accountability mechanism, while we still need attention to the front end. Will they help? Time will tell whether they become yet another means of conducting surveillance, or a tool for positive change. I believe strongly we can achieve the latter. Among other things, body-worn cameras can be a great way of improving training. And there are preliminary indications that everyone behaves better when the cameras are on: win-win.
TM: We increasingly live our lives online, storing sensitive, personal information on third-party servers like Google’s Gmail and Apple’s iCloud. Does the government need a warrant to access our data? If not, why not? Should we be worried?
BF: In the 1970s, the Supreme Court, in its infinite wisdom, decided that if the government tries to get information about you from a third party who holds it—like your bank or accountant—that doesn’t trigger your constitutional protections under the Fourth Amendment. That was probably wrong when the Supreme Court decided it, but now it has even broader implications because huge parts of our private lives are sitting in third-party hands. That is why you see fights over encryption. Companies are trying to protect our data, but strong encryption cuts the government out entirely even if it needs the data for an important investigation. There’s no easy answer here, but the right place to start is requiring warrants. And we need to force Congress to decide this rather than the courts.
TM: The Trump Administration has proposed sending federal agents to Chicago to deal with gun violence, and having local police enforce the federal immigration laws. Would these be big changes?
BM: This country is long overdue for a conversation about the federal role in local law enforcement. This is an issue that crosses administrations and parties, and has been neglected for far too long. Under our federal system, policing is a local function, yet the federal government intervenes in ways that lack coherence. We need to get our position straight. Part of the problem is that the U.S. Department of Justice has a built-in conflict of interest. For example, one part of the DOJ calls for aggressive law enforcement; another part investigates local departments that it deems too aggressive. As it stands, the federal government can ask local departments to help with immigration, but it cannot demand this help. And the federal government is already giving assistance to Chicago: it has provided and continues to provide technical assistance in dealing with gun violence. I’m not even sure what it means to say federal agents will be sent in—and the Superintendent was not too sure either.
TM: Recently there were large protests in response to an Executive Order temporarily blocking certain categories of immigrants and visitors to the United States. Does Unwarranted have anything to say about that?
BF: The United States Constitution draws a sharp line between the way the government must treat citizens and residents in the United States, and individuals outside our borders. Most of the focus in the book is on the former. But that said, the underlying issue is very much the same. The newspapers are full of concerns about the checks and balances on executive authority. What’s puzzling to me is how we don’t see the same call for those kinds of checks—for example, legislative intervention—very often around policing. That too is an executive function, arguably the most threatening to our liberties. Yet we very often leave those decisions to the police. Maybe now, people will start to see the issue. We should take heed of police expertise, but the public has to make the ultimate decisions. One good example is some of the government databases that have been set up to track us, often without explicit approval by the public.
TM: What does it mean that “we are the police?” What are our responsibilities?
BF: When Sir Robert Peel created the first major metropolitan police force, in London, in 1829, that’s exactly what he said: “We are the police.” His point was that the police do a job for which we are all responsible, and it is essential that we all take responsibility for how we are policed. It is not fair to the police or appropriate to ourselves to demand to be safe, then stick our heads in the sand. We need to decide whether stop-and-frisk is acceptable, as well as “proactive” traffic stops or widespread surveillance.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law and the director of the Policing Project. For thirty years, he has taught, written about, and litigated issues of constitutional law and criminal procedure. He is the author of The Will of the People (FSG, 2009). His writing has appeared in The New York Times, Slate, and The New Republic, among other publications. He lives in New York City.