Rachel Moran (University of Denver Sturm College of Law) has posted In Police We Trust (Villanova Law Review, Forthcoming) on SSRN.
Here is the abstract:
Despite a recent slew of highly-publicized incidents of police brutality, white Americans are still, for the most part, highly supportive and trusting of law enforcement officers. And United States laws — mostly drafted, enacted, and interpreted by white people — reflect that trust. The American legal system, from United States Supreme Court case law to municipal ordinances, is extraordinarily deferential to police officers’ actions and decisions, reflecting an oft-expressed belief that police officers are simply doing the best they can in a difficult job. The experience in many communities, particularly those primarily comprised of people of color, is very different — many people of color report that police officers routinely mistreat them, and there is much evidence to support these complaints. But our ingrained system of deference makes it far too difficult to hold police officers and departments accountable for those abuses.
This Article explores the history of deference afforded to police officers in the United States, and tracks the change from a country founded by people highly suspicious of law enforcement authority, to one with a legal system employing knee-jerk deference to police officers’ decisions and actions. In so doing, it explores why so many white people — who have rarely been the target of police misconduct — still place such trust in law enforcement, while people of color, who have endured decades of law enforcement suspicion, often do not.
Although the law affords deference to police officers in many contexts, this piece analyzes the problems with deference primarily through the lens of police misconduct claims. Specifically, when a citizen complains that a police officer has mistreated her, that complaint is supposed to be thoroughly investigated and, if found to be true, should result in meaningful consequences for the offending officer. In reality, most complaint review systems are so deferential that officers are very rarely held accountable in any significant way for their misconduct. The result is a system that has demoralized communities of color and dangerously eroded the legitimacy of law enforcement in the eyes of many people of color. After providing extensive evidence regarding the flaws in our current systems of review, the Article closes with a series of suggested reforms for review of misconduct complaints.