Bathroom Laws as Status Crimes

A growing number of American jurisdictions have considered laws that prohibit trans individuals from using bathroom facilities consistent with their gender identities. Several scholars have criticized these so-called “bathroom laws” as a form of discrimination in violation of federal law. Few scholars, though, have considered the criminal justice implications of these proposals. By analyzing dozens of proposed bathroom laws, this Article explores how many laws do more than stigmatize the trans community—they effectively criminalize it. Some of these proposed laws would establish new categories of criminal offenses for trans individuals who use bathrooms consistent with their gender identity. Others would transform bathroom use by trans individuals into an unlawful trespass. The existing literature suggests that the criminal justice system is unprepared to handle this newfound responsibility. This Article concludes that, by effectively criminalizing noncriminal conduct so inextricably linked to the status of being trans, some proposed bathroom laws may violate the Eighth Amendment’s bar on cruel and unusual punishment

Structural Reform Litigation in American Police Departments

In 1994, Congress passed 42 U.S.C. §14141, a statute authorizing the United States Attorney General to seek equitable relief against local and state police agencies that are engaged in a pattern or practice of unconstitutional misconduct. Although police departments in some of the nation's largest cities have now undergone this sort of structural reform litigation, there has been little empirical research on the topic. Drawing on original interviews, court documents, statistical data, and media reports, this dissertation describes the federal government's use of structural reform litigation in American police departments and theorizes on its effectiveness. It shows that, under the right circumstances, structural reform litigation is uniquely effective at combating misconduct in police departments. It forces local municipalities to prioritize investments into police misconduct regulations. It utilizes external monitoring to ensure that frontline officers substantively comply with top-down mandates. And it provides police executives with legal cover to implement wide-ranging reforms aimed at curbing misconduct. Although expensive, structural reform litigation may ultimately pay for itself through reducing a police department's civil liability. But structural reform litigation is far from a perfect regulatory mechanism. Successful organizational reform requires continual support from municipal leaders, dedication by executives within the targeted agency, and buy-in by frontline officers. This suggests that structural reform litigation alone is insufficient to transform a law enforcement agency. The financial burden of structural reform litigation falls on local police agencies over a relatively short period of time. Additional questions remain about whether targeted agencies will sustain reforms after federal intervention ends and about whether this type of federal intervention makes officers less aggressive. This dissertation concludes by showing how the lessons from structural reform litigation can inform future regulations of law enforcement

Using Data to Reduce Police Violence

Congress passed the Death in Custody Reporting Act in 2014, which created a national database on civilian deaths caused by law enforcement. The Federal Bureau of Investigations and the Bureau of Justice Statistics have subsequently also announced new efforts to collect data on the frequency of deadly encounters between law enforcement and civilians. This Article explores how the federal government could use these newly amassed datasets to reduce police violence. This Article makes two contributions. The first Part of the Article argues that data alone will be insufficient to bring about widespread reform in local police departments. By making these datasets publicly available, the federal government could incentivize some police departments to prioritize reductions in police violence. But even when faced with troubling statistical trends, there is no guarantee that some of the nation’s most problematic law enforcement agencies will voluntarily make expensive policy and procedural reforms. Thus, the second Part of the Article considers some ways that the U.S. Attorney General could harness these new datasets to improve the use of federal civil rights litigation against local police departments. Under 42 U.S.C. § 14141, the Attorney General has the power to seek equitable relief against police departments engaged in a pattern or practice of unconstitutional misconduct, including excessive uses of force. By using this data, the Attorney General can incrementally improve the enforcement of § 14141 in a way that incentives local police departments to implement reforms aimed at reducing officer violence

Police Arbitration

Before punishing an officer for professional misconduct, police departments often provide the officer with an opportunity to file an appeal. In many police departments, this appeals process culminates in a hearing before an arbitrator. While numerous media reports have suggested that arbitrators regularly overturn or reduce discipline, little legal research has comprehensively examined the outcomes of police disciplinary appeals across the United States. In order to better understand the use of arbitration in police disciplinary appeals and build on prior research, this Article draws on a dataset of 624 arbitration awards issued between 2006 and 2020 from a diverse range of law enforcement agencies. It finds that arbitrators on appeal reduced or overturned police officer discipline in 52% of these cases. In 46% of cases involving termination, arbitrators ordered police departments to rehire previously terminated officers. On average, arbitrators reduced the length of officer suspensions by approximately 49%. Arbitrators gave several common justifications for reductions in officer discipline. Frequently, arbitrators found the original discipline to be excessive relative to the offense committed or relative to punishments received by other officers. In a somewhat smaller number of cases, arbitrators cited insufficient evidence or procedural flaws in the investigation or adjudication of the original internal disciplinary process. This Article concludes by considering the implications of these findings for the literature on police accountability. It also considers emerging efforts in states like Minnesota and Oregon to reform police arbitration procedures in order to better balance officers’ interests in due process with the public’s interest in accountability

Police Disciplinary Appeals

This Article empirically evaluates the procedural protections given to police officers facing disciplinary interrogations about alleged misconduct. It demonstrates that state laws and collective bargaining agreements have insulated many police officers from the most successful interrogation techniques. The first part of this Article builds on previous studies by analyzing a dataset of police union contracts and state laws that govern the working conditions in a substantial cross section of large and midsized American police departments. Many of these police departments provide officers with hours or even days of advanced notice before a disciplinary interrogation. An even larger percentage of these police departments require internal investigators to provide officers with copies of incriminating evidence before any interrogation. These protections exist in departments of all sizes, regardless of geographical location. The second part of this Article relies on a national survey of American law enforcement leaders to evaluate whether these regulations frustrate officer accountability efforts. The overwhelming majority of the survey respondents claimed that these interrogation regulations substantially burden legitimate investigations into officer behavior. Virtually all survey respondents agreed that these protections do little to reduce the likelihood of false confessions. Combined, this data paints a troubling picture of the internal procedures used to investigate and respond to officer misconduct. This data suggests that states and municipalities have given police officers procedural protections designed to thwart internal investigations, thereby limiting officer accountability. This Article concludes by offering normative recommendations on how communities can reform interrogations of police officers so as to balance the community interest in accountability with officers\u27 interests in due process

Police Union Contracts

This Article empirically demonstrates that police departments’ internal disciplinary procedures, often established through the collective bargaining process, can serve as barriers to officer accountability. Policymakers have long relied on a handful of external legal mechanisms like the exclusionary rule, civil litigation, and criminal prosecution to incentivize reform in American police departments. In theory, these external legal mechanisms should increase the costs borne by police departments in cases of officer misconduct, forcing rational police supervisors to enact rigorous disciplinary procedures. But these external mechanisms have failed to bring about organizational change in local police departments. This Article argues that state labor law may partially explain this failure. Most states permit police officers to bargain collectively over the terms of their employment, including the content of internal disciplinary procedures. This means that police union contracts—largely negotiated outside of public view—shape the content of disciplinary procedures used by American police departments. By collecting and analyzing an original dataset of 178 union contracts from many of the nation’s largest police departments, this Article shows how these agreements can frustrate police accountability efforts. A substantial number of these agreements limit officer interrogations after alleged misconduct, mandate the destruction of disciplinary records, ban civilian oversight, prevent anonymous civilian complaints, indemnify officers in the event of civil suits, and limit the length of internal investigations. In light of these findings, this Article theorizes that the structure of the collective bargaining process may contribute to the prevalence of these problematic procedures. It concludes by considering how states could amend labor laws to increase transparency and community participation in the negotiation of police union contracts

State Labor Law and Federal Police Reform

In April of 1997, the U.S. Department of Justice (DOJ) reacheda settlement agreement with the Pittsburgh Bureau of Police(PBP) to correct a pattern of unconstitutional misconduct.\u27 It wasthe first time the DOJ had used 42 U.S.C. § 14141 to interveneinto a local police department to correct systemic misconduct.The statute, passed in response to the Rodney King beating,provides the U.S. Attorney General with the power to seekequitable relief against troubled local police departments. As the reform process began to unfold in Pittsburgh, problemssoon emerged. The consent decree required Pittsburgh toimprove its process for investigating and responding to civiliancomplaints. But at times, the PBP found it difficult to complywith this requirement, in part because the city had agreed to acollective bargaining agreement with the police union that limitedwhich complaints were eligible for investigation. While theconsent decree established ambitious goals for improvement, italso included a clause that read: Nothing in this Decree isintended to alter the collective bargaining agreement between theCity and the Fraternal Order of Police. This meant that, inattempting to reform the Pittsburgh Police Department via§ 14141, the DOJ was effectively limited in its reach because of theterms of the collective bargaining agreement. As Jonathan M.Smith, the former Chief of the Special Litigation Section of theDOJ\u27s Civil Rights Division has observed, the Pittsburgh experience is hardly unique. In the over twenty years since theDOJ has had the power under § 14141 to seek equitable reliefagainst police departments, it has often had to take on lesssufficient reform strategies because of the barrier of police unioncontracts

State Attorneys General as Agents of Police Reform

State attorneys general can and should play an important role in remedying police violations of constitutional rights. In 1994, Congress enacted 34 U.S.C. § 12601 to authorize the U.S. attorney general to seek equitable relief against state and local police departments engaged in patterns or practices of misconduct. The Department of Justice (“DOJ”) has used this statute to reform some of the nation’s most troubled police departments. However, the DOJ has lacked the resources to pursue more than a few cases each year, and in 2017 the Trump administration announced it would no longer enforce § 12601. In response, some state attorneys general have sought to fill the regulatory gap. These attorneys general claim legal standing under the common law doctrine of parens patriae to seek equitable relief in federal court against police departments within their states for violations of constitutional rights—even without any statutory authority for their lawsuits. Allowing these cases to proceed would give state attorneys general expansive and untapped potential as agents of police reform, with significant implications for police practices and accountability. This Article provides a cautionary tale about uses of parens patriae by state attorneys general and presents an alternative. It urges that the common law doctrine of parens patriae should not allow state attorneys general to seek equitable relief in federal district court against local police departments engaged in patterns of misconduct. The Article shows that such uses of parens patriae raise numerous doctrinal and policy concerns. Nevertheless, the Article concludes that state attorneys general are uniquely situated to provide a check on abuses by local law enforcement and that they should be given the tools to do so. As an alternative to using common law parens patriae, both Congress and state legislatures should grant state attorneys general explicit statutory authority to seek equitable relief against local police departments. Empowering state attorneys general in this manner has the potential to curb seemingly intractable problems of police violations of constitutional rights