Secret Policing

Jacob D. Fuchsberg Professor of Law, New York University School of Law. This chapter is part of a book on policing and the Constitution (BARRY FRIEDMAN, UNWARRANTED: POLICING WITHOUT PERMISSION) (Farrar, Straus, and Giroux, forthcoming 2017). I would like to thank Alex Peacocke and Max Yoeli for excellent research assistance. This project was funded in part by the Filomen D’Agostino and Max E. Greenberg Research Fund.

TABLE OF CONTENTS TABLE OF CONTENTS

This is a paper about secrecy and policing. It is written at a time of intense discussion about policing in America. There is widespread concern that policing agencies have lost the trust of the communities they are charged to police, and that the “legitimacy” of policing is at risk.1 Part of what is needed, no doubt, is greater transparency around policing.2 People do not trust those who keep secrets from them. But it goes beyond that. For too long policing has operated aloof from the regular workings of democracy.3 And there cannot be democratic engagement with policing if what those agencies do and how they do it is kept from the people.

This is true for all policing agencies in the United States, from those that engage in street policing at the local level to those that conduct work nationally, and even internationally. That is because what ought to define “policing” is what makes policing special: the license to use force and coercion, and conduct surveillance, on the American people. To the extent any agency is doing those things, it is a policing agency, and what is said here is germane.

There is unquestionably a place for some secrecy in policing. Policing agencies are different from many of their counterpart agencies in the executive branch; some of what they do cannot be revealed without putting policing officials, and the populace, at risk. The lack of transparency in policing today, however, far exceeds anything plausibly necessary to serve these purposes.

The stage is set here, in Part I, with an instructive story of secrecy in policing. Part II makes the case for the governance of policing by democratic forces. Part III is a quick tour of the history of policing in the United States, to make the point that policing’s autonomy from democratic governance is explained as much by history as by logic, and that despite attempts to bring policing officials closer to the communities they police, pervasive secrecy is part of what has led to a breach of trust. Part IV discusses the proper line between transparency and secrecy, arguing that while certain operational details of policing must be kept secret from the public, policing policy is properly the domain of democratic governance.

I. Unacceptable Secrecy

Freddy Martinez is a youthful Chicagoan with a degree in physics. He works in the tech industry.4 Like many in his generation, he’s concerned about privacy, a concern that was heightened in light of the revelations by Edward Snowden of widespread, unauthorized government surveillance of its own citizens.5

At first Martinez’s interest in the Stingray was technical. He was curious whether the Stingray could be defeated.12 (Answer: yes. There is now an Android app that serves this function.)13

Although it was savvy of Martinez to request purchasing information, as Illinois law does not favor secrecy around government expenditures,16 he received no answer for months.17 So he hired a lawyer, Matt Topic. Topic had a fair amount of experience both with FOIA requests and with cases involving police misconduct.18

Eventually, the CPD produced documents indicating they in fact possessed Stingray technology.19 Initially the CPD’s documents indicated a 2008 purchase date, but it seems CPD had a Stingray as early as 2005.20 When the documents were produced, it made the news; including the fact that the CPD had previously denied to the media that it had a Stingray.21

Martinez and Topic followed up with FOIA requests designed to elicit basic information about the use of the Stingray. Was the CPD getting a warrant before using it? Was it telling judges honestly what it was doing? Was there a legal opinion on the constitutionality of using the Stingray? Was it being used at protests? Was there a data access and retention policy in place?22

Chicago was not alone. Reports of Stingray use were popping up all over the country, and they had an eerie familiarity. San Diego’s police department issued a statement saying it couldn’t say anything;27 Anaheim, California issued one that sounded oddly the same.28 So did the police department in Gwinnett County, Georgia.29 The CPD filed an affidavit in Martinez’s case from an FBI agent named Morrison.30 Morrison’s affidavit was filed in other cases.31

When pressed, law enforcement says it cannot discuss Stingrays. It says that to say anything about Stingrays—even to admit to ownership or use of the device—would be to play into the hands of “bad types.”32 That if bad types know how the technology works, disclosure would permit evasion. They say this would make us less safe, and so the information must be kept within law enforcement.33

It turned out this secrecy was orchestrated: for years the federal government had been financing local law enforcement’s acquisition of Stingrays under a set of deeply troubling arrangements.34 The purchase contract with Harris Corporation demanded absolute secrecy; police officials in recipient agencies were barred from discussing the device, even in governmental proceedings (like legislative or court hearings).35 To cement matters, police departments also had Memoranda of Understanding with the FBI that included, among other provisions, a requirement that a prosecution be dropped if law enforcement was forced to reveal Stingray information in court.36

Existing convictions were jeopardized once the use of Stingrays became public. In Charlotte, a FOIA request revealed the police had a Stingray since 2006.39 For four years apparently no warrant was requested when the Stingray was used, and then for four more years the warrant applications were not accurate about the technology being used.40 The prosecutor was forced to go through records of past convictions to see if any case needed to be reopened for failing to disclose the information.41 The same was true in Tacoma, Washington.42

Judges were getting understandably unhappy. In Baltimore, where records show a Stingray was used over four thousand times in seven years, a judge threatened to hold police in contempt if he was not given a straightforward answer about Stingrays.43 In Erie County, New York, a judge ordered the government to respond to a FOIA request, saying of the FBI’s rule regarding dismissing prosecutions, “If that is not an instruction that affects the public, nothing is.”44 The judge in Tallahassee asked, “What right does law enforcement have to hide behind the rules and listen in and take people’s information like the NSA?”45

The costs here were far deeper yet, however. Because, as Matt Topic and Freddy Martinez would say, the people cannot govern policing agencies if they are kept in the dark about what they are doing. And yet it is problematic to think of policing agencies as ungoverned.

II. Democratic Policing

Most executive branch functions are governed by rules. The rules are public. They are in place before officials act. They are formulated with public input.47

This model of transparency and public participation is pervasive at all the levels of government. It is, in a sense, fundamental to democracy. Sometimes rules for executive officials are made legislatively.48 Commonly, there is a broad delegation of authority to an executive agency, which then promulgates its own rules through something like notice and comment rulemaking.49 At the local level, countless agencies, boards, and authorities similarly do things in the open, under the instruction of “Sunshine Acts.” Members of the public can attend and offer views.50 In other words, transparency and public participation are the norm.

Policing agencies have rules of course—they would say they are awash in rules—but often those rules fail on one of these dimensions or both. Department manuals and operating procedures sometimes are public and sometimes not.51 In neither instance, though, are those procedures typically formulated with public input.52 Constitutional decisions govern a lot of policing, but those rules most definitely are not the product of democratic deliberation.53

In fact, rather than being regulated by ex ante rules, policing often is regulated after the fact. Most policing agencies operate under extraordinarily broad delegations of authority that instruct them only to enforce the substantive laws.54 These delegations were made for the most part long before many of the tools of modern-day policing were even in place.55 Pursuant to these delegations, policing agencies enforce the laws as they wish. Then, when things go wrong, as they inevitably do, there are a host of after-the-fact “remedies” that kick in. There are Inspectors General, civilian review boards, judicial review, and court appointed monitors.56 Indeed, today’s frequent call to equip police with body-worn cameras is yet one more attempt at after-the-fact regulation of policing. 57

After-the-fact regulation has ex ante effects, of course, but it is instructive what is lost when regulation of policing is primarily after the fact. Other agencies have after-the fact-regulation, but with those agencies, after-the-fact review is used to ascertain whether there was compliance with rules that were in existence before the fact. Those rules include statutory mandates and publicly promulgated regulations, as well as constitutional law.58 Not so with policing. Typically, the only before-the-fact rules to which policing is held accountable are constitutional ones. Yet, constitutional law is (and should be) a floor not a ceiling. It does not claim as its domain the sorts of policy judgments pervasive elsewhere in government, policy judgments reflected in legislation and regulation.59 If anything is needed in the regulation of policing, which serves a vital function but imposes huge costs, it is policy judgment.

There is some before-the-fact regulation of policing, some legislative control, but it is notoriously difficult to get legislative bodies to act on policing issues.60 What have they to gain? Few powerful constituencies benefit from the regulation of policing. At election time, legislators run the risk of being held responsible for being soft on crime. Moreover, secrecy compounds this problem. When policing occurs in the shadows, as it has with regard to Stingrays, the people cannot govern it even if they would like to do so.

Yet, two things are clear.

First, the people surely are entitled to govern policing practices like Stingrays if they so choose. It is hard to think of a remotely plausible argument that somehow policing practices are immune from democratic deliberation. Congress, for example, regulates police interception of electronic communications in the Electronic Communications Privacy Act.61 Surely Stingrays are subject to similar regulation.

Second, when the people are aware of policing practices, they often change policy in important ways. Now that Stingrays are becoming public, some states have adopted legislation regulating these devices. South Carolina recently proposed banning them altogether.62 Washington State requires warrants.63

Indeed, given the public furor over Stingrays, the federal government has been forced to change its own policy. After repeated inquiries by the ranking members of the Senate Judiciary Committee, the Department of Justice conceded Stingray use, changed policy to require warrants when federal agencies use them, and initiated a top to bottom policy review.64

Yet, even as this policy change occurs, stories are surfacing in the media that are reminiscent of the early stages of the public uncovering the use of Stingrays. There now is a new device, which apparently is called a Wolfhound.65 It does what Stingrays do, but it is cheaper.66 Law enforcement insists they cannot discuss Wolfhounds, or it will tip off the bad guys. It insists that given how the technology works, no warrants are needed. And so the secrecy story repeats itself with weary familiarity.67

Where the Wolfhound story is headed is altogether predictable. Eventually, the information will be forced out. Regulations will be put in place. Policy will change.

Secrecy and democratic governance are fundamentally incompatible. In Compton, California, it became public that the police department had deployed aerial surveillance cameras that could record actions on the street all over the city.68 When asked about what it was doing, a police department spokesperson said, “This system was kind of kept confidential from everybody in the public. A lot of people have a problem with the eye in the sky, the Big Brother, so to mitigate those kinds of complaints we basically kept it pretty hush hush.”69 Conor Friedersdorf, writing in the Atlantic, declared, “That attitude ought to get a public employee summarily terminated.”70 It is difficult to imagine this sort of statement going down easily with the public if it involved any other government agency.

It is no wonder that law enforcement is having legitimacy and trust issues when it insists on going at it alone without public knowledge or support. Trust is earned, not bestowed. Legitimacy in a democracy comes from the people, not their officials.

III. The Origins of Secret Policing

Secret policing is, as much as anything else, a historical artifact, of which we have been trying to purge ourselves for a very long time. This part explains the origins of policing’s disconnect from democratic governance, and the secrecy that it has entailed.

The Constitution says very little specifically about policing, which is not surprising given that there were not organized police forces at the time of the Framing.71 There was a loose-knit collection of sheriffs and constables charged with serving court orders and arresting malfeasants.72 And there was the night watch, an oft-ungainly, ragtag collection of civilians that was ridiculed at times for its incompetence.73

These departments managed to be both incompetent and brutal. Philadelphia’s chief had to dismiss one-third of his force one year in for being “worthless, drunken, and totally unfit.”76 Almost twenty-five years later, an 1872 Philadelphia Ledger article described a certain type of officer, “the men who upon merest whim, or the slightest show of resistance, fly into a gust of passion, pull out their revolvers and make a serious affray out of what might have passed off as an unimportant incident.”77

But mostly urban policing was corrupt. The Lexow Commission in New York uncovered an extraordinary degree of organized corruption operating under the auspices of Tammany Hall.81 There was a published schedule of costs to obtain various jobs in the department.82 Fees were raised by an ongoing and pervasive degree of graft. Police extorted funds from legitimate and illegitimate businesses alike, often using a shocking degree of brutality.83 New York was hardly alone.84

In this reformist era, the notion was that policing would be “professionalized.”91 Science and technology would be brought to bear, leading to innovations like fingerprinting and the establishment of police laboratories.92 Rather than being close to the people, officers would be controlled from the center.93 The symbol of it all was the shiny, radio-dispatched patrol car, jetting all over town in response to calls for service.94

If any proof were needed of the pervasive lack of professionalism of policing, it was provided during the turmoil of the 1960s. Police engaged in what an official inquiry called a “police riot” during the 1968 Democratic Convention in Chicago.103 Following extensive urban riots, and in the face of rising crime rates, two presidential commissions looked closely at urban policing.104 The conclusions were not pretty. President Johnson’s Crime Commission concluded that “a significant percentage of policemen assigned to high-crime areas do treat citizens with disrespect and, sometimes, abuse them physically.”105 The common complaint was what today we call “stop and frisk,” but then was termed “field interrogation.”106

Part of the problem was that police had come to see themselves as isolated from the rest of society, and worked to keep it so. As early as 1954, Chief William H. Parker noted that police, lacking public support, “all too often have withdrawn into a shell of ‘minorityism.’”107 Matters were only worse by the time President Johnson’s Crime Commission condemned it in damning language: “Cliques can grow up that thrive on secrecy and resist reform. Well-behaved officers become corrupted by the mores of their environment, especially by the unspoken rule that often prevails in such situations: an officer must not ‘inform’ on his colleagues.”108 As a result, the Commission concluded: “[L]aw enforcement suffers. A police department with a reputation for unfairness cannot promote justice. A police department with a reputation for dishonesty cannot combat crime effectively.”109

Trust—Johnson’s Crime Commission concluded—was essential to police doing their job. “Police agencies cannot preserve the public peace and control crime unless the public participates more fully than it now does in law enforcement,” explained the Crime Commission.110 Yet, “[t]here is much distrust of the police, especially among boys and young men, among the people the police most often deal with.”111

The antidote recommended by the Crime Commission would come to be known as “community policing.”112 The police, the Commission said, should create a community-relations “machinery,” particularly in minority communities.113 In particular, there should be a “citizens’ advisory committee” that is “broadly representative of the community” to “work out solutions to problems of conflict between the police and the community.”114

By the late 1980s, community policing was still in its infancy, but its elements were spelled out by Lee P. Brown, Houston’s police commissioner and the first African American to serve as police chief of a major American city.115 In a 1989 talk at the Harvard Executive Session on policing, Brown said that the professionalism movement’s image of police cars racing around town in response to calls was a mistake.116 Rather, what the police needed to do was get out of their cars, walk patrols, and get to know the community. Police forces should “recognize[ ] the merits of community involvement,” and should decentralize authority so that officers can “interact with residents on a routine basis and keep them informed.”117 Brown also advocated “power sharing,” meaning “the community is allowed to participate in the decision-making process.”118

Community policing got a big boost in 1994. Bill Clinton, in his State of the Union address, said he would put one hundred thousand new police officers on the streets.119 The Department of Justice opened its new office of Community Oriented Policing Services (COPS). It dispensed some fourteen billion dollars of funds for community policing efforts.120

The problem was that community policing soon became everything to everyone, thus lacking in clear content—if not worse. It had its undeniably good and important parts. One aspect involved police interactions with the community, through things like athletic leagues for youth.121 Another was foot patrol in communities so that residents and the police could get to know one another.122 One of the more successful aspects of community policing was “problem oriented policing.” Championed by Herman Goldstein, this involved the police learning from residents of specific difficulties that fostered crime, and working to fix them.123 But community policing funds also went to finance things like SWAT teams, which, while necessary, hardly fit the rubric.124

Over time, community policing came to have a dark underbelly. In a game-changing article in the March 1982 issue of The Atlantic entitled “Broken Windows,” George Kelling and James Q. Wilson argued that disorder cannot be left alone because it breeds more disorder.125 “[I]f a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.”126 Then, disorder breeds fear of crime, which in turn creates an environment in which crime can prosper—“many residents will think that crime, especially violent crime, is on the rise, and they will modify their behavior accordingly.”127 While this could have been a prescription for more problem-oriented policing, it gave birth instead to “order maintenance” policing or “zero tolerance” policing, in which officers arrested offenders for the most minor of violations.128

All too often, order maintenance policing was focused in minority communities or exercised most frequently against marginalized individuals. Rudy Giuliani, New York City’s mayor, made it a showcase program, clamping down on turnstile jumpers and squeegee men, but also harassing local residents with the frequent use of stop-and-frisk practices.129 As George Mason University’s Center for Evidence-Based Crime Policy explained, not only was there a serious debate about whether order maintenance policing reduced crime, “there is concern that any effectiveness of broken windows policing . . . may come at the expense of reduced citizen satisfaction and damage to citizen perceptions of the legitimacy of police.”130

The result of aggressive policing under the rubric of order maintenance and zero tolerance was a cascade of resentment in many of the communities most in need of policing.131 Although that resentment had long been present and simmering, the country got a full taste of it beginning in the summer of 2014, when Michael Brown was killed by a police officer in Ferguson, Missouri.132 What followed were days of street protests met by highly militarized police forces, kicking off a national debate about how policing had gone off the rails.133 On the heels of Ferguson came Eric Garner’s death in Staten Island134 and Walter Scott’s in Charleston.135 Soon enough, it seemed every week brought a new incident of overly aggressive policing, accompanied by growing street protests. Million Hoodies and Black Lives Matter became national movements.136

In December of 2014, President Barack Obama appointed a national Task Force on 21st Century policing.137 That report was telling. The Task Force commenced its report saying that “[t]rust between law enforcement agencies and the people they protect and serve is essential in a democracy.”138 Yet, the Task Force found that “law enforcement cannot build community trust if it is seen as an occupying force coming from outside to impose control on the community.”139 It called on law enforcement to “establish a culture of transparency and accountability in order to build public trust and legitimacy.”140 “La plus ça change.”

IV. The Line Between Secrecy and Democracy

The difficulty is that there will never be trust and accountability without greater law enforcement transparency. There is no doubt that secrecy plays a necessary role in policing. But policing today holds onto a degree of secrecy far beyond what is required. The question is where the appropriate line between policing secrecy and transparency should rest.

A. Pervasive Policing Secrecy

There is a similar culture of outright lying, even under oath. It happens so often that commentators have coined a phrase for it: testilying.147 A 1987 study in Chicago found seventy-six percent of officers said they frequently “bent the facts” to establish probable cause;148 a 1992 survey of judges and lawyers in the same city estimated that in evidence exclusion cases, there is outright perjury by the police twenty percent of the time.149 It is justified on the grounds that if cops are honest in court about what they did, bad guys will walk. (One cop described such lying as “God’s work.”)150 New York’s 1994 Mollen Commission termed police perjury “probably the most common form of police corruption facing the criminal justice system.”151 But this very same sort of misrepresentation is also seen at the highest levels—like when the President lied to the country about tapping American’s overseas calls without a warrant,152 or when the head of national intelligence lied to Congress about bulk data collection.153

What’s happened is an inversion of what should be the ordinary state of public affairs, in which government officials report to the people for whom they work. Noted legal philosopher Jeremy Waldron puts matters bluntly: “In a democracy, the accountable agents of the people owe the people an account of what they have been doing, and a refusal to provide this is simple insolence.”158

In the 1960s, Kenneth Culp Davis—America’s foremost scholar of administrative governance—did an in-depth study of the Chicago Police Department. He concluded that the top officers of the Chicago Police Department failed to understand that “they are not the proprietors of a private business. They work for the public. In a democratic system, the members of the public—the electorate—are their bosses. And the bosses have a right to know what is going on.”159

Freddy Martinez and Matt Topic would say this is a continuing problem. And they’re right.

B. The Line Between Secrecy and Transparency

The police often say what they said about Stingrays: that they can’t answer questions because explaining things in public will allow criminals to more skillfully evade police detection.160 Policing, they explain, is like a game of cat and mouse—as the cats get smarter, the mice adapt. The longer police are able to keep their investigative strategies secret, the longer they can maintain the upper hand.

There’s something to this, of course. But what’s important is to make sure we aren’t the mice, from whom unnecessary secrets are kept. That’s why it is important to draw workable lines between secrecy and transparency.

In reality, the need for secrecy is not nearly as acute as it may seem. This is evident from the fact that what some departments insist they must keep secret, others willingly reveal.163

The key distinction, the one we should be making, is between the broad policy that governs policing, and some of its operational details. Some operational details—both pertaining to a specific investigation and to investigative techniques that if revealed would encourage circumvention—are the sorts of things that ought not to be revealed. Police should not have to announce where they hide listening devices, or the specifics on how they conduct undercover operations.164 But whether those tactics are to be used at all: surely that much can and must be made public and publicly debated without undermining law enforcement.165

SWAT policies provide a good example. Obviously, it would endanger officers and the public to reveal an “active-shooter” protocol. But there should be no secrecy or withholding of policy regarding the circumstances under which a SWAT team will be employed, the training its members receive, and the munitions they employ in civilian policing. These all are policy choices with which the public should come to terms.166

The same is true of Stingrays. There may be some operational aspects that need to be kept secret. (It would be easier to have a sense of this if the entire matter were not under wraps.) But surely the public has the right—and the responsibility—to participate in answering questions like whether Stingrays will be purchased and used at all, whether they will be used to collect data on protestors, where data is stored, by whom it is accessible, and whether and when the police need warrants or other court orders to use them.

Indeed, all too often one suspects that secrecy covers up a disturbing lack of established procedures. In Prince George’s County, Maryland, a SWAT team busted into the home of the Mayor of Berwyn Heights and killed his two dogs in a raid that never should have occurred.167 What emerged from subsequent litigation is that the department lacked policy on the most basic of questions like what training members should receive or what weaponry they carry.168

Even clearer is where the line between secrecy and transparency should not rest. Secrecy is never appropriate on the theory that if the people knew what the police were doing they would disagree, and stop it. (That was the argument made by the Compton spokesperson.)169 It should never, ever be an acceptable argument that if people knew what the police were doing, they would keep them from doing it, so the people cannot know.

That, for what it is worth, is precisely what Matt Topic and Freddy Martinez believe the Stingray fight is all about. Martinez scoffs at the idea that secrecy is about tipping off the bad guys. “It is not about the techniques, everyone knows the techniques, tapping phones, the tried-and-true techniques are all public . . . . But they are illegitimate and people would say no.”170 Topic concurs. “It is a thin, made up justification to keep people from debating this stuff, which may lead to curtailing its use.” “If we let people know what we are doing, people will argue with what we are doing and then they may limit our using it and jeopardize our national security.” “But that,” he says, “is just not how we do things in a democracy.”171

Time and again, when there is transparency and disclosure, policy changes. That is what has happened around racial profiling, the use of military equipment by the police, and policies for issuing summons rather than arresting—to name but a few.172

That’s how it is supposed to be in a democracy. Trust is built on transparency. And accountability requires it.

To put a point on matters, this is true even if the decision to limit the police would make us less safe. One can assume in all good faith that the police have our best interests at heart. That they believe what they are doing is necessary. They may even be right. If we change policing policy, we may be changing it for the worse. But democracy means we get to make these decisions ourselves, even if they are poor ones.