Police Power

4 posts

Strict Tort Liability for Police Misconduct

Issues Volume 53, Issue 1

By Elias R. Feldman

The disproportionate rates at which police use wrongful deadly force against racial minorities in the United States is a matter of significant national concern. This Note contributes to the ongoing conversation by proposing a new legal reform, which calls for the state law imposition of strict tort liability on municipal governments for police misconduct. Such a reform could remedy the harms of police misconduct more fully than the existing laws do.

Under the Restatement (Third) of Torts, a person who is found by a court to have carried on an “abnormally dangerous activity” will be subject to strict liability for physical harm resulting from that activity. An abnormally dangerous activity is one which creates a foreseeable and highly significant risk of harm even when reasonable care is exercised in its performance; it is also an activity of “uncommon usage” in the sense that the risk it creates is nonreciprocal. In Part II, this Note explains how the policies and practices of modern policing, in conjunction with human cognitive limitations, cause policing to create a foreseeable and highly significant risk of harm even when performed with reasonable care. Part III then explains how policing’s risk is disproportionately borne by racial minorities, and how this nonreciprocity of risk imposes a dignitary harm on third-party racial minorities distinct from the physical harm suffered by police misconduct’s immediate victims. Part IV, in turn, discusses how policing’s nonreciprocal risk also makes policing “uncommon” in the relevant sense. Having established that policing is the kind of activity to which strict liability can be properly applied as a matter of law, this Note argues in Part V that imposing strict tort liability on municipalities for police misconduct is desirable as a matter of policy because strict liability rules are uniquely effective at correcting the misallocation of social costs and benefits stemming from nonreciprocal risk. Finally, this Note concludes in Part VI by anticipating possible political and legal objections to the proposed reform.

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Racialized Self-Defense: Effects of Race Salience on Perceptions of Fear and Reasonableness

Issues Volume 55, Issue 4

By Suzy J. Park

Through a controlled experiment, this Note investigates the hypothesis that implicit references to racial stereotypes, such as subtle racial imagery, trigger mock jurors’ implicit biases to a greater degree than explicit invocations of racial stereotypes. Across six conditions, 270 participants read facts resembling those of People v. Goetz, in which a White defendant shot four young men in a subway train, allegedly in self-defense. Half of the participants viewed photos depicting the victims as White; the other half viewed photos depicting the victims as Black. Participants were further randomly assigned to read the defense attorney’s statement to the jury layered with implicit, explicit, or no racial cues. Following the experimental manipulation, participants indicated to what degree they believe that the defendant subjectively and reasonably believed that he was faced with a physical threat at the time of the shooting. Contrary to the hypothesis, the experiment found no statistically significant difference between explicit and implicit appeals to race in triggering individuals’ racial biases regardless of the race of the victims. This Note contributes to the existing literature by providing experimental data on exactly how powerful the use of implicit racial imagery may be in the courtroom and by probing the mechanism through which racially coded language affects jurors’ decision-making. The results further suggest that, since courts cannot easily make people “turn off” their prejudices through the use of race salience, choosing jurors during voir dire who are internally and genuinely motivated to be unprejudiced is all the more important.

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Resuscitating the Entrapment Defense: A Statutory Approach

Issues Volume 55, Issue 1

By Gage Hodgen

The entrapment defense has existed in American criminal law since the early twentieth century and remains relevant today. As the evolution of technology has enhanced the ability of the police to monitor and engage with potential criminals, sting operations by police have become increasingly commonplace in the investigation (or manufacture) of terrorism, drug, and sex crimes. Consequently, targets of sting operations are often placed in situations in which there is a risk of improper government inducement to commit criminal acts. Despite the increased complexity and frequency of sting operations, however, claims of entrapment by defendants based on the traditional theoretical formulations of the defense are nearly always unsuccessful when raised, and, in many appropriate cases, defendants do not raise entrapment claims at all.

This Note proposes a statutory resuscitation of the entrapment defense to make the defense more suitable to the modern policing system. Part I examines the traditional variants of the entrapment defense as it developed in the common law of the United States as either a subjective test of the predisposition of the defendant or an objective test of the government’s conduct. Part II interrogates the stated purposes of the subjective and objective approaches. Part III explores why the entrapment defense so often fails in situations in which factors suggesting entrapment are present and demonstrates that the entrapment defense today does not serve its foundational purposes. Part IV argues that the underlying rationales of both formulations of the entrapment defense militate in favor of reformulating the defense as a set of statutory rights against certain police behaviors.

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License & Registration: Addressing New York’s Police Misconduct

Issues Volume 55, Issue 1

By Matthew Hanner

In the wake of the police killing of George Floyd, protesters flooded the streets demanding reform. States across the country responded with legislative action. Within weeks, New York State repealed Civil Rights Law § 50-a, which shielded disclosures of police misconduct records. The subsequent release of records showed the profound lack of accountability of police officers in the state. This Note argues that New York should enact a police licensing requirement to curb misconduct through uniform behavioral standards for all law enforcement officers, which would pull disciplinary power away from local departments, and prevent fired officers from regaining employment at other departments—problems that the existing remedies like internal affairs actions, civil suits, and criminal prosecutions fail to address.

Licensing creates stronger accountability because an independent state licensing commission would have the power to suspend or revoke licenses for violating professional standards. Currently, all states certify that officers meet certain standards prior to employment, and 46 states allow for revocation of these certifications. Certification boards vary state-to-state, however, in their scope of authority and permitted grounds for decertification. New York State only permits decertification of officers who are first fired from their departments. This process suffers from reliance on local department action. Examining the NYPD demonstrates how even the most well-resourced departments fail to adequately address officer misconduct when disciplinary decisions are made at the local level. Police licensing shifts authority to the state, following many other professions that already require licensing (lawyers, doctors, barbers, taxi drivers, etc.).

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