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University of Chicago Legal Forum

2016

Policing the Police

Article
Samuel Walkerd1

Copyright © 2016 by The University of Chicago; Samuel Walker

GOVERNING THE AMERICAN POLICE: WRESTLING WITH THE

PROBLEMS OF DEMOCRACY
I. INTRODUCTION: GOVERNING THE AMERICAN POLICE--AND THE PROBLEM WITH DEMOCRACY

Winston Churchill, the famed Prime Minister of England, once observed that “it has been said that democracy is the worst
form of Government except all those other forms that have been tried from time to time.” 1
 
Churchill’s trenchant remark well states the problem of governing the police in the United States. For many decades, and not
simply in the period since the tragic events in Ferguson, Missouri, in August 2014, critics of the police have charged that the
police are “out of control,”2 and a “law unto themselves,” 3 acting with little regard for the law and standards of human
decency. The melancholic truth, however, is that the police are not out of control in terms of democratic self-government.
City police forces, which are the focus of our current national police crisis and also the subject of this Article, are directly
controlled by popularly elected mayors and city councils. Sheriffs, on the other hand, are directly elected and their
departments controlled by elected county boards. 4 In short, the police in this country are and have always been subject to the
will of the majority in the communities they serve. Civil liberties attorney and law professor Paul Chevigny, reflecting on the
police problems in New York City in the 1960s, observed that “the pattern of police abuses continues because ... most people
in our society do not wish to change the pattern.”5
 
Despite many reform efforts since the 1960s, serious police-community relations problems continue to exist. A series of
deaths at the hands of the police beginning in August 2014 provoked a national crisis that led President Barack Obama to
appoint a Task Force on 21st Century Policing, which in its Final Report noted the “rifts in the relationships between local
police and the communities they protect and serve,” and recommended a sweeping set of reforms. 6 In order to fully mend
these rifts, however, one must understand the nuanced problems inherent in the methods communities employ to govern their
police forces.
 
This Article argues that the central problem of governing the police is that we suffer not from a lack of democratic control,
but from a rather well functioning process of democratic governance in the pursuit of the wrong values.7 The democratic ideal
of policing is that law enforcement agencies should be accountable to the people they serve through the electoral process, and
be subject to the rule of law. The rule of law can be seen as a commitment to constitutional policing, involving limited use of
force and search and seizure powers, and a commitment to the equal protection of the law. Although subject to democratic
governance, local police forces have too often been subject to political influences and disregard for the rule of law.

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The problem of democracy and the police merits serious consideration because of its implications for the pursuit of
constitutional policing. If, as this Article argues, the majority of Americans have been disinterested in the ideal of
constitutional policing, how then are we to reform the police in the pursuit of the rule of law? A number of significant police
reforms have been achieved through the intervention of the courts, 8 an undemocratic means. But as several commentators
have observed, judicial enforcement of constitutional principles can at best touch only a small portion of all police activities. 9
Ultimately, we have to confront the failures of existing democratic procedures for governing the police and find a way to
make them effective instruments for establishing constitutional policing. After reviewing the trajectory of police reforms in
the United States, this Article posits that the auditor/inspector general model of citizen oversight represents possibly the best
approach to achieving constitutional policing under democratic governance.
 
Beginning in the 1960s, civil rights activists and their allies proposed a variety of changes designed to provide greater input
into police policy for groups that had been excluded from having a voice in policing. 10 The ensuing political struggles over
issues of police abuse resulted in new procedures, such as citizen review of police complaints that were inevitably
compromised as a result of the political process. All were supplements to the established form of governance of local police:
mayors and city councils. This Article critically examines the most important reform ideas, viewing them from the
perspective of the broader issue of governance. One important result of the various controversies surrounding the police has
been the emergence of unintended consequences, which in some cases have impeded the goals of reformers. The emergence
of police unions, and the collective bargaining agreements they have won, have become a major factor in the governance of
the police.11 Ultimately, the recent history of controversies over the governance of local police, in short, is a highly complex
story that includes not only strides toward a more democratic and constitutional police, but also results that represent less
certain gains in terms of routine police practices.
 
The discussion of police reform efforts in this Article is facilitated by the framework for police reform developed by Joanna
Schwartz’s article, “Who Can Police the Police?” in this volume. 12 Her framework consists of three elements: Leverage, “the
pressure that a reformer can place on law enforcement agencies and officials to change their behavior”; Motivation, “the
interests of reformers to exert whatever leverage they have over law enforcement agencies and officers”; and Resources, “the
personnel, time, and money necessary for each type of reformer to pursue its reform goals.” 13 The framework provides a
consistent set of standards for assessing various reform efforts, and illuminates the capacity of each to achieve its stated
goals.
 
Section II of this Article discusses the parameters of the Article, including the structural features of law enforcement in the
U.S. that impinge upon police governance. Section III examines American policing in the nineteenth century, when the
tradition of local political control of the police was established, leading to a tradition of unprofessional and lawless policing.
Section IV examines the police professionalization movement, which began in the early twentieth century, achieved many
important reforms, but also left an ambiguous legacy in terms of both democratic policing and constitutional policing.
Section V examines the multiple crises that struck the police in the 1960s, and the various reform efforts that arose to achieve
a more democratic form of policing. Section VI examines the major reform efforts from the 1970s to the present that have
pursued the ideal of a democratic police. The Article concludes in Section VII with reflections on the challenge of
establishing constitutional policing within the framework of democratic governance.
 

II. THE CHALLENGE OF GOVERNING THE AMERICAN POLICE

A. The Structure of American Policing

The formal structure of providing police services in this country is extremely complex. 14 Law enforcement agencies are
divided among three different levels of government--federal, state, and local--along with additional Special District
agencies.15 Agencies at each level of government have very distinct missions. Federal law enforcement agencies have the
most clearly defined missions; state law enforcement agencies have varying missions as defined by their respective
legislatures;16 while local city police and county sheriffs have the broadest and most complex missions. 17 Law enforcement
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agencies at each level of government are responsible to popularly elected legislative and executive branches of government:
city councils and mayors at the local level; legislatures and governors at the state level; Congress and presidents at the
national level.
 
The fragmented structure of American law enforcement creates significant problems with respect to the governance of the
police. There is no centralized national authority with governing powers over all the various law enforcement agencies in the
country, nor are there centralized authorities in the fifty states. This decentralized structure contrasts sharply with the
governance of the police in other countries, where centralized control is the norm. 18 The problem is particularly serious at the
local level. The Department of Justice (DOJ) estimates that in 2013 there were 15,388 “general purpose” state and local law
enforcement agencies, including 12,326 local (i.e., municipal) police; 19 England and Wales, by comparison, have a total of
forty-three law enforcement agencies. 20 Each of the U.S. local agencies has full control over most of its policies, procedures,
and choice of law enforcement strategies (e.g., community policing or no community policing). The result is that some
agencies are very forward-looking with respect to these issues, while many others still retain old and discredited approaches. 21
These local agencies are the focus of this Article.
 
Local law enforcement agencies are subject to some federal and state authorities, but only on certain issues. In the history of
the police, a number of famous Supreme Court decisions have been a major instrument of reform. 22 As many observers have
pointed out, however, Court rulings have left untouched vast areas of policing. 23 Moreover, it is difficult to imagine that the
Court, regardless of the ideological orientation of the majority at any given moment, would find most aspects of the
management of police departments proper matters for its consideration. 24 State supreme court rulings, based on state
constitutions and state legislation, have also exercised some control over the police on certain subjects, but they too are
limited in terms of their application to the full range of police activities. 25
 
Local police are also affected by various federal equal employment opportunity laws, including Title VI and Title VII of the
1964 Civil Rights Act, and the Americans with Disabilities Act. 26 The federal government has the potential for regulating
local law enforcement agencies through the power of the purse, principally by making federal funds contingent upon an
agency adopting certain policies or procedures, or by encouraging reform through federal grants. The community policing
movement in the 1990s, for example, received an enormous boost through funds made available by the 1994 Violent Crime
Control Act.27 Historically, however, presidents have been reluctant to exercise the power of the purse that is available to
them through Title VI of the 1964 Civil Rights Act to force changes in local law enforcement agencies. 28 In the area of public
education, the political costs of using Title VI to force reform proved to be too high for presidential administrations. 29
 
States govern local police departments in several different ways. State criminal law and criminal procedure statutes define the
parameters of the role of law enforcement. All states require the pre-service training and certification of sworn law
enforcement officers,30 and some have formal procedures for revoking certification. 31 A number of states have enacted statutes
governing police response to domestic violence incidents, 32 the conduct of high-speed motor vehicle pursuits, 33 data collection
on traffic stops,34 and other issues.
 
In the end, the federal and state authorities discussed above cover at best only a small portion of police management issues
and day-in day-out police activities. As a result, the structural fragmentation of American policing has impeded the
development of consistent national standards governing all local police departments. In an alternate universe, leaving the
primary control of local police vested in local governments might have created the opportunity for creative innovation by
reform-minded local political activists. Despite this opportunity, this Article argues that, in practice, local political authorities
have instead proven to be little interested in pursuing a style of law enforcement that reflects constitutional values.
 

B. Local Police Are the Focus of the National Police Crisis

This Article discusses local police, meaning primarily major city police departments, although with some attention to smaller
cities and county sheriffs’ departments where appropriate. Several considerations dictate this focus. First, the missions of the
agencies at the three levels of government are so different that a full discussion of each would require a much longer and
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more diffuse article. Federal law enforcement agencies, for example, are heavily involved in various forms of surveillance--
an issue of great concern today, but not one that is central to the current concerns surrounding local police, as is evident in the
2015 report of the President’s Task Force on 21 st Century Policing.35 State police force agencies also have different missions,
with many having an exclusive focus on traffic enforcement.
 
Second, local police are at the center of the national crisis over policing and police-community relations that erupted in the
second half of 2014, and which prompted the creation of the President’s Task Force on 21 st Century Policing.36 These
agencies deliver the vast majority of police services to people in this country. 37 The most recent DOJ Police-Public Contact
Survey estimates that there are forty million police-public contacts per year. 38 These contacts include the police officer
conduct that is at the heart of the current national police crisis--unjustified shootings, excessive physical force, and improper
use of race and ethnicity (“racial profiling”)--that have for the past half century spurred reforms attempting to reform the
governance of police departments.
 

C. The Cultural Tradition of Deference to the Police

Democratic governance of the police involves more than the formal structure of local governments. It is also shaped by social
and political factors, and one of the most important of those is the deeply rooted cultural tradition of deference to the police.
This deference explains to a great degree the reluctance of local prosecutors, grand juries, and criminal courts to prosecute
and convict police officers who may have committed crimes by shooting and killing people or using extreme forms of
physical force. The events of 2014-2015, particularly the controversies in Ferguson, Missouri, 39 and Staten Island, New
York,40 emphasize the difficulty in obtaining criminal prosecutions. 41 Even in the 1960s, Chevigny concluded that
“unfortunately most prosecutors ... have chosen to side uncritically with the police.” 42 The cultural tradition of deference to
the police also explains the reluctance of mayors and city council members to criticize police misconduct and seek major
reforms. In the bitter controversy over the New York City Civilian Complaint Review Board (CCRB) in 1966, rank-and-file
police officers found that they could effectively fight proposed reforms with accusations that a mayor is “antipolice” and
endangering public safety.43 The power of public fear of crime has extended to the entire criminal justice system, and is
largely responsible for the wave of harsh criminal sentencing laws that swept the country in the late 1970s and produced what
has been labeled today’s “mass incarceration.”44
 

III. WRONG FROM THE START: AMERICAN POLICING IN THE NINETEENTH CENTURY

A. A Politically Dominated System of Policing

“Modern” policing originated with the London Metropolitan Police in 1829 and is generally defined in terms of an agency
providing continuous police service through publicly visible patrol and with full-time paid officers. 45 The key figures in the
creation of the London Metropolitan Police determined that “police impartiality was the key to public acceptance,” and that
“[r]emoval of the police from partisan politics was an important part of this impartiality.” 46 Critics of the Metropolitan Police
felt that its “tight centralization prevented accountability to the public” and argued “that the force was increasingly cut off
from local residents.”47 Nonetheless, the centralized and undemocratic structure remained, and many observers believe that
the divorce from local politics was responsible for the high standards of professionalism in the London Metropolitan Police. 48
The political domination of local police departments in the U.S., on the other hand, was responsible for the tradition of
corruption, inefficiency, and lack of commitment to the rule of law.
 
The first modern police agencies in the U.S. appeared roughly in the 1830s, and from the very beginning were dominated by
local politics with no commitment to public service or to the rule of law. 49 Discussions of American police history should
generally distinguish between the southeastern states and the rest of the country. First, during the time of chattel slavery and
then from Reconstruction to the civil rights era (ending roughly in 1964), the police and the entire criminal justice system
were devoted to upholding the racial status quo.50 Because of the salience of the issue of controlling the slave population,
modern-style policing emerged in the southeast before it did in the cities outside the south. 51 In very stark terms, then,

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policing in the southeast prior to the mid-1960s reinforces the central argument of this Article, that the police have
traditionally served the will of the dominant white majority.52
 
Policing outside of the southeast, although modeled after the highly centralized London Metropolitan Police, adopted a
decentralized structure of political control.53 Urban historian Robert Fogelson characterized police departments as “adjunct[s]
of the [political] machine,”54 and further argues that the system of local control was solidly rooted in American political
thinking: “From the outset most Americans had a firm belief that the police should be controlled by local officials and
organized along municipal lines.”55 Police departments were a source of both patronage (jobs for supporters of the political
machine in power) and graft.56 Systemic bribes from saloons, gambling dens, and houses of prostitution ensured the
protection of these services from law enforcement. 57 Establishments run by the dominant party’s opposition, meanwhile, were
ready targets for either regular enforcement harassment or being closed down altogether.58
 

B. Serving the Majority at the Minority’s Expense

In addition to patronage and graft, the police served the will of the dominant political ideologies in a discriminatory manner.
A long antiunion tradition developed, with police officers harassing union organizers and breaking up union meetings. Legal
historian Frank Donner argues that, “in the course of the past hundred years urban police have served as the protective arm of
the economic and political interests of the capitalist system.” 59 Radical political groups were denied meeting permits, or their
meetings were violently disrupted.60 The Pennsylvania State Police acquired a particularly notable record for its anti-union
activities, and were denounced by labor leaders as “Cossack[s].” 61 The Los Angeles Police Department created an antiradical,
anti-union “Red Squad” in the 1920s, and many other departments followed suit.62 Police officers also systematically harassed
and arrested vagrants and the unemployed, primarily aiming to chase them out of town. 63 Police officer use of force was
rampant and unchecked. Miller concludes that “[t]he general climate of violence [in New York City] encouraged the police to
respond in kind for their own protection. There seemed to be no rules of the game which could reduce violence.” 64
 

C. ... And Serving Ineffectively

With respect to crime fighting, order maintenance, and service to the public, both urban and rural police in the nineteenth
century were utterly ineffective.65 Officers patrolled on foot and could not cover much territory even if they did patrol
diligently (which innumerable reports suggest that they did not do). 66 In the absence of modern-day communications
technology, crime victims could not readily contact the police, police departments could not efficiently dispatch officers to
the scene of a crime or disorder, and officers could only respond on foot. 67 Primitive communications technology also
inhibited the effective supervision of rank-and-file officers by their sergeants. 68 A sergeant had to track down the officers
under his command (and the many reports of the period suggest that sergeants did not work too diligently themselves). 69 The
stereotype of the drunken cop, who spent much time in saloons rather than on patrol, was not far from the truth. 70 Fogelson
summed up the situation by commenting that “most chiefs had little if any control over the captains,” who were “absolute
monarchs” in their respective districts.71
 
Personnel standards, as they are understood today, simply did not exist. A political patron was the main qualification for
employment as a police officer. 72 Corruption pervaded police departments themselves; in New York City there was even a
written list of the standard payoffs for promotion to higher rank: $1600 for promotion to sergeant and $12,000-$15,000 for
captain.73 One of the earliest training academies for police officers was established in New York City in 1913, but recruit
officers took no tests during courses and instructors kept no records on attendance.74
 
In short, today’s problems of controlling police use of force and providing equal protection to all people and groups were
firmly established in the nineteenth century. Physical brutality was routine and unpunished. (Shootings by police officers
were not common, for the simple reason that handguns did not become common until the twentieth century.) The first
systematic investigation of abusive police tactics did not occur until 1931 with publication of the Wickersham Commission
report, Lawlessness in Law Enforcement.75 Discrimination against African Americans by the police was not seriously
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challenged until the mid-1930s.76

 
The crucial point is that the corruption, inefficiency, and brutality of policing in the nineteenth century were quite acceptable
to the majority of the electorate in local communities. William Plunkitt, a Tammany Hall leader in New York City, candidly
explained that Tammany Hall “always stood ... for rewardin’ the men that won the victory,” and that the people of the city
“knew just what they were doin’.”77 Police reform movements arose with some regularity in cities across the country, but they
were essentially contests over the control of the local department that were couched in moralistic terms. 78 In most instances,
the principal substantive issue involved the enforcement of existing laws regulating the sale of alcohol, gambling, and
prostitution.79 Reformers offered no vision of a more effective and efficient style of policing, beyond replacing “bad” leaders
and officers with “good” people.80 Theodore Roosevelt (a self-styled “good” person) spent two flamboyant years as a
commissioner of the New York City Police (1895-1897) but made no lasting changes to police management or officer
conduct.81 Absent from the political wars over the police, moreover, was a factor that plays such a prominent role in today’s
police controversies: public interest groups charging systematic violations of individual rights and proposing legal and
administrative reforms to curb those abuses.
 
Looking at nineteenth century American policing through the lens of Schwartz’s framework, 82 it is evident that mayors and
city council members had sufficient Leverage to affect reform, but lacked the Motivation to seek any fundamental changes in
either police management or police conduct on the streets. The principal Resource they lacked did not involve material
resources (staff, funds, etc.) but intellectual. As already suggested, there was no alternative vision of policing, which would
include both improved police department management and a coherent sense of what professional policing would entail. 83
 

IV. POLICE PROFESSIONALIZATION AND ITS AMBIGUOUS LEGACY

A. The Police Professionalization Movement

The appalling condition of American policing by the end of the nineteenth century finally generated a national police reform
movement. This movement, which emerged in the early years of the twentieth century, was one of the many social and
political reform movements that historians include under the umbrella of Progressivism. 84 The core assumption of
Progressivism, which united an array of disparate movements on particular issues, was that the institutions of American
society were inadequate to meet the needs of the new urban-industrial society and that major reforms were needed. 85 The
police were but one of those institutions.
 
The most important contribution of the police reform movement was to define policing as a profession with a commitment to
nonpartisan public service as opposed to serving political bosses. The specific goals included eliminating political influence
from policing;86 appointing individuals with experience in leading large organizations as police chiefs; 87 introducing principles
of modern management into police departments; 88 developing specialized units to address specific *629 crime problems (e.g.,
juvenile and vice units); and raising personnel standards for rank-and-file officers through required qualifications for
applicants and pre-service training.89 August Vollmer, who as police chief in Berkeley, California, emerged as the leader of
the professionalization movement, set a dramatic new standard for police recruitment by encouraging the hiring of officers
with college educations.90 Despite the daunting challenge it faced, the professionalization movement made notable progress
over the course of a half a century. O.W. Wilson’s influential text book, Police Administration, first published in 1950, serves
as a useful benchmark.91 No similar book on how best to manage a police department existed in 1900. Moreover, the vast
majority of the topics covered in the book, such as personnel management and the rational allocation of patrol officers, were
not even matters of discussion in policing at that time. 92 By the late 1950s, most police departments had made significant
strides in fulfilling the principles Wilson articulated and were better managed than they had been fifty years earlier. 93
 

B. The Ambiguous Legacy of Police Professionalization

Notably absent from the professionalization agenda, however was any attention to the conduct of police officers on the street,

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particularly the issues that are today at the heart of the controversy over constitutional policing: the use of all forms of force;
the conduct of searches, seizures, and interrogations; and systemic racism in all police activities. A revealing indicator of this
neglect is the fourth edition of Police Administration, published in 1977, which contains no discussion of police discretion
and the related problems of controlling police officer use of force and other exercises of police authority. 94 Yet as indicated
above, in various editions between the 1950s and 1970s, Wilson’s book educated innumerable police chiefs and was widely
regarded as the “bible” on police professionalism. 95 Although the professionalization movement embraced the aspirations and
rhetoric of other professions, it did not pursue the institutional structures and procedures of professional self-regulation,
including high standards for admission to the profession; intensive pre-service training in accredited professional schools;
accreditation for police organizations; the development of comprehensive professional standards; and procedures for
stripping members of the profession of their license to practice. 96
 
The reformers did, however, embrace one aspect of professionalism that had a very adverse effect on the police-community
relations crisis that erupted in the 1960s, and had a significant impact on controversies over the governance of the police. The
idea that the police were professionals, who possessed a body of expert knowledge about their domain (crime, in this
instance), gave them a weapon by which they could ignore public opinion and deflect criticisms. 97 Goldstein observed that
one of the “Negative By-Products of [professional] Autonomy” was that “little heed was paid to facilitating communication
between the citizenry and the police.” 98 They could readily argue that ordinary citizens and elected officials alike simply did
not understand crime and effective crime control strategies and tactics, and therefore should not question police activities. As
discussed below, the rhetoric of professional expertise was used cynically in the late 1950s and 1960s as a way of deflecting
civil rights criticisms of police practices. Los Angeles Chief of Police William Parker, widely regarded as the head of the
most professional police department in the country, added the additional tactic, borrowed from J. Edgar Hoover of the
Federal Bureau of Investigation, of dismissing critics as “communists” or “communist sympathizers.” 99 The tactic paralleled
southern segregationists’ dismissal of civil rights activists as “outside agitators,” that is, people with no legitimate standing to
criticize established practices.100
 
In the end, despite many achievements in raising the standards of American policing, the professionalization movement left a
legacy that rendered American police departments ill-equipped to respond to the multiple crises that engulfed policing in the
1960s.
 

V. THE CRISES OF THE 1960S

A. Multiple Crises: Civil Rights, Riots, the Supreme Court, and Crime

American policing in the 1960s was overwhelmed by two crises: (1) the civil rights movement and urban riots that were an
expression of African American frustration over systemic discrimination and the lack of progress toward full racial equality;
and (2) the due process revolution of the Supreme Court, and the establishment of constitutional standards for key police
crime-fighting procedures. Compounding these problems was a historic rise in crime, beginning around 1963, 101 which
profoundly affected public attitudes about the police, punishment, and public safety. High levels of crime persisted until
1993, when an equally historic decline began, 102 and had profound effects on both the police, public fear of crime, and crime
policy.
 
The various crises of the 1960s created a national crisis that provoked a sweeping reconsideration of the basic role of the
police, the conduct of police officers, and--in particular--the role of the police in African American communities. 103 The
reconsideration of policing included fundamental challenges to the existing norms of police professionalization. 104 And in a
development most relevant to this Article, the national crisis provoked a variety of proposed reforms related to the
governance of the police. The politics of police reform in this period were highly charged, with a complex mix of issues that
included police misconduct, race, and public fears of crime. The most important reform related to the governance of the
police--citizen oversight--was compromised because of opposition from contending forces. And the struggle over citizen
oversight brought into being a new force, police unions, which over time proved to be a powerful opponent of reforms
designed to enhance constitutional policing.105
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B. The Civil Rights Movement and its Impacts

The civil rights movement challenged every aspect of policing: fatal shootings of citizens, particularly African Americans; 106
the use of excessive physical force; 107 racially discriminatory stop-and-arrest practices; 108 aggressive crime-fighting strategies
and tactics that alienated African American communities; 109 the lack of equitable delivery of basic police services to African
American communities;110 inadequate procedures for handling citizen complaints against police officers; 111 and race
discrimination in police employment practices. 112 The grievances expressed by the African American community--in public
protests, lobbying, and litigation--reflected not just criticisms of the police, but a more fundamental sense that the governing
processes regarding the police were unresponsive to its concerns.
 
The 1968 Kerner Commission report on the urban riots and civil unrest summed up the challenge to the established norms of
police professionalization when it observed that “many of the serious disturbances took place in cities whose police are
among the best led, best organized, best trained and most professional in the country.” 113 Although the Commission did not
mention any particular department, most observers understood that it was talking about the Los Angeles Police Department,
which had vigorously promoted an image of professionalism and effectiveness. 114 The remedy to the crisis, many experts
concluded, lay not in fulfilling the goals of professionalization but in rethinking the established principles of professional
policing.115
 

C. Demands for Greater Citizen Input into Police Practices

1. Civilian review of the police.

The lack of effective redress for people seeking to file complaints about their experience with the police was documented by
the Kerner Commission, which concluded that “Negro hostility to police is the [result of an] almost total lack of effective
channels for redress of complaints against police conduct.” 116 The President’s Crime Commission, meanwhile, found that
“police officers and departments often regard a citizen complaint as an attack on the police as a whole ... and therefore,
attempt to discourage citizens from filing them.” 117 Many police departments had no formal complaint process whatsoever. 118
Where procedures did exist, they were often poorly organized and staffed. Police departments generally regarded complaints
as inherently unjustified, and there were numerous accounts of complainants being turned away by police officials or even
threatened with arrest if they persisted with their complaints. 119 Where citizen complaint procedures existed, civil rights
activists alleged that complaint investigations were biased in favor of the subject officers and rarely resulted in discipline. 120
 
The idea of civilian review of police complaints involved the creation of an independent municipal agency (that is, formally
independent of the police department), staffed entirely by individuals not employed by the police department who would
review the files of individual complaints, and then recommend a finding to the police chief. 121 Civilian review boards, as they
were generally called, marked a notable alteration of the governance structure of police departments, as individuals who were
not sworn police officers would have at least some limited voice in a critical matter of police management: the discipline of
officers for misconduct.
 
Not surprisingly, police chiefs adamantly opposed civilian review. The International Association of Chiefs of Police adopted
a formal statement of opposition in 1964.122 In addition to the possibility that far more complaints would be sustained in favor
of complainants, civilian review represented an intrusion into the professional autonomy of the police by people they
regarded as unable to understand the realities of police work. Because of this opposition and because elected officials tended
to defer to the police, the campaign for civilian review boards was extremely unsuccessful. Only one new civilian review
board was established in the 1960s, 123 and the two existing boards that had been established in the 1950s were both abolished
in the 1960s.124
 
The Philadelphia Police Advisory Board (PAB) was created in 1958 by mayoral executive order. 125 A municipal court in 1967

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found that it illegally exercised a judicial function, and although the state supreme court overturned that decision, the mayor
abolished the PAB by rescinding the original executive order. 126 The New York City Civilian Complaint Review Board
(CCRB) had been created as an internal New York City Police Department (“NYPD”) dominated entity in 1953, 127 largely
because of a major corruption scandal. In response to the heated civil rights controversies in the 1960s (including a riot in
1964), the liberal New York City Mayor John V. Lindsay expanded the CCRB by executive order in 1966 to give it a citizen
(i.e., non-employee of the NYPD) majority.128 Rank-and-file officers, through their police union, promptly responded by
sponsoring a referendum in which the voters abolished the citizen-dominated board by a vote of nearly two to one.129
 
The fate of the expanded New York City CCRB dramatized a key issue regarding the politics of police governance. The
referendum clearly indicated that the overwhelming majority of the voters, when offered a clear choice, sided with the police
and not their critics (essentially the African American community and its liberal and civil libertarian allies). This was a
harbinger of things to come in the decades ahead with respect to police governance. Although a number of cities created
citizen oversight agencies beginning in the mid-1970s, mayors and city councils for the most part did not directly challenge
the police practices that represented unconstitutional policing. 130 The role of the rank-and-file police union in sponsoring the
referendum to abolish the CCRB was part of a new assertiveness of police unions that had a major impact on police
governance.
 
Three reasons dictate why civilian review of the police provides only a very limited degree of citizen participation in
policing. First, citizen complaints represent a very small part of police operations, and most people who feel they have reason
to complain do not actually file complaints. 131 Second, with only a few exceptions, most citizen review boards only review the
complaint file forwarded to them by the police department’s internal affairs unit. Thus, the critical initial investigation of a
complaint remains with the police department, and a review board has limited capacity to determine whether an investigation
was thorough.132 Third, review boards have only the power to make non-binding recommendations to the police chief
regarding the disposition of complaints.133 The limited power of civilian review boards results from both a reluctance of
elected officials to make greater concessions to the critics of the police and also the strong political opposition that
instinctively supports the police due to alarm over civil disorders and rising crime rates. In important respects, then, the
demand for greater oversight of the police, which began in the civil rights era, galvanized oppositional political forces, which
entrenched their ideas about the proper governance of the police.
 
From the perspective of the Schwartz Framework, 134 review boards have no Leverage whatsoever. They can make
recommendations regarding the disposition of citizen complaints, but have no power to compel a disposition or disciplinary
action. With respect to Motivation, the community advocates of civilian review have strong motivation to ensure proper
discipline of officers, but given the political factors surrounding the appointment of review board members and professional
staff, it is not clear that all persons selected for those positions have similar levels of commitment. Finally, with respect to
Resources, civilian review boards suffer from two problems. First, the many agencies that rely on police internal affairs files
for their investigations lack the capacity to develop their own independent investigations of complaint incidents. 135 Second,
many review boards have suffered from limited budgets and limited staff.136
 

2. Other responses to the civil rights crisis.

A number of other reforms designed to provide greater citizen input into police matters were proposed, and in some cases
attempted, in response to the civil rights crisis of the 1960s. Some police chiefs, seeking to respond to protests and/or
disorders, established police advisory committees, consisting of community leaders chosen by the chief to advise on various
police-related issues.137 They had no real power to influence the critical policies or practices that were at the center of the
national police-community relations crisis. Even the President’s Crime Commission, representing mainstream moderate-to-
liberal perspectives, dismissed police advisory committees as “seriously deficient.” 138 Many police departments also created
special police-community relations (PCR) units, which primarily engaged in community outreach to African American
communities, largely through speaking engagements. 139 Evaluations of PCR units, however, found them to be isolated from
the principal police activities of patrol and criminal investigation, with no influence over police policies. 140 Civil rights
activists generally dismissed them as ineffectual.141
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The most radical approach to changing the governance structure of the police involved “community control” of police
departments.142 Reflecting a broader current of opinion among more radical community activists in the 1960s and early 1970s,
community control involved dividing a police department into separate organizational units, primarily along racial lines,
within a metropolitan community with control vested in separate community boards. 143 The idea of community control was
not limited in its application to police departments--it was also suggested in a highly controversial proposal for the New York
City public schools in the late 1960s. 144 In the policing context, a community control proposal was placed on the ballot in
Berkeley, California, in 1971, but defeated by a two to one margin by the voters. 145 Other than the Berkeley effort, however,
community control proved to be too radical an idea about the proper form of governing the police and gained no traction in
other communities.
 

3. A ghost from the past: police commissions.

The crises of the 1960s also brought renewed attention to the police commissions that had been widespread in the nineteenth
century but had largely disappeared in the twentieth century. 146 The nineteenth century police commissions were generally
created by state legislatures as a means of wresting control of a police department from city political machines, which were
controlled by the legislature’s rival political party. The political forces behind the creation of police commissions, however,
did not have a vision beyond policing their opponents. 147 The most notable police commissions that exist today include the
Kansas City, Missouri, Police Commission; the Milwaukee Fire and Police Commission, created in 1885; the Los Angeles
Police Commission; the San Francisco Police Commission; and the Detroit Board of Police Commissioners, which was
created in 1973.148 A number of commissions also exist in smaller cities, largely in the northeastern United States.
 
Police commissions have not proven to be a viable alternative to the standard form of control of police departments by
mayors and city councils-- although the Los Angeles Police Commission has undergone significant changes in recent years,
which are discussed below. For the most part, police commissions have not had a critical perspective on policing and have
failed to address the issue of police-community relations and constitutional policing. In fact, several of the police departments
governed by commissions have had very troubled histories related to police-community relations and constitutional policing.
A 2006 report on the Milwaukee Fire and Police Commission, for example, found a “badly broken” citizen complaint
process; that the Commission “underutilizes its policy review powers” for identifying inadequate police department policies
and recommending corrective action; and that it was burdened by time-consuming responsibilities that “detract” from a focus
on “police accountability and policy issues.” 149 The Detroit Police Commission was established in 1974 for the purpose of
making the police department more responsive to the African American community, which by then constituted a majority of
the city population.150 Yet, the Detroit police department has for years engaged in civil rights abuses of people in the city of
Detroit.151 The San Francisco Police Commission has no staff of its own, and in this respect has little capacity to
independently investigate the San Francisco Police Department. 152
 
The history of the Los Angeles Police Commission is more complex. Created in 1925, the five-member commission is the
governing authority for the Los Angeles Police Department (LAPD). 153 Members of the commission are appointed by the
mayor and confirmed by city council. 154 For decades, however, the commission exerted no meaningful oversight of the LAPD
with respect to constitutional policing, as defined in this Article, and was extremely deferential to a series of strong-willed
police chiefs.155 The 1991 Christopher Commission, appointed in the wake of the highly publicized Rodney King beating
earlier that year, characterized the Commission’s authority over the police department as “illusory.” 156 A series of major
scandals, including the beating of Rodney King by LAPD officers and the Rampart corruption scandal, which came to light
in 1997, led to changes that invigorated the Commission. 157 The LAPD lost much of the traditional deference it had enjoyed,
and in particular, the Police Commission acquired an Office of Inspector General empowered to conduct audits of the LAPD
regarding issues of concern to the Commission.158 The inspector general is relevant to this Article because it represents the
*640 auditor/inspector general model of citizen oversight of the police, which is discussed below. 159 The dynamics of the
events in Los Angeles further illustrate the point, made earlier, that to a great extent reforms leading to greater police
accountability--including both greater citizen input and procedures designed to enhance constitutional policing--required a
highly publicized scandal to change the context of local politics and win support for reform.
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4. A new element of police governance: the rise of police unions.

The criticisms of the police in the 1960s provoked rank-and-file police officers to organize unions, which in the long run
have had a profound impact on the governance of the police. 160 In both the private and public spheres of employment,
collective bargaining is seen as a form of shared control between management and union. 161 And so it has been with police
unions.
 
Feeling besieged from all directions (including the Supreme Court), rank-and-file officers successfully organized unions that
became their legally recognized collective bargaining agents. 162 Immediately after World War I and in the 1940s, officers
attempted but failed to organize legally recognized unions. 163 Those efforts failed because of hostile political and legal
climates in those periods. The legal climate had changed significantly with respect to public sector unions by the 1960s, and
police officers successfully availed themselves of the opportunity to organize. 164
 
As they gained strength in the 1970s and beyond, police unions affected the governance of police departments in two
important ways. First, the New York City CCRB referendum taught them that they could effectively play on public fears of
crime to argue against any reforms that significantly placed limitations on their practices. 165 In this respect, police unions to a
great extent neutralized mayors and city councils as potential critics of police practices. It should also be noted in this context
that the police unions were not an isolated phenomenon in this regard, and public fear of crime was one of the driving forces
behind the rise of mass incarceration in the U.S. 166 Second, through collective bargaining, unions obtained contract provisions
that limited the power of police chiefs to investigate misconduct and discipline officers. The most widely known provision
requires waiting periods before department officials can interview an officer under investigation for an incident. 167
 
In short, rank-and-file police officers, through collective bargaining, are a significant factor in the governance of police
departments, with significant input on such critical issues as the investigation of suspected misconduct, the procedures for
disciplining officers, and the appeal of disciplinary actions.
 

D. The Supreme Court and the Police

The intervention of the Supreme Court, in which it imposed constitutional standards for traditional police crime-fighting
tactics of searches and seizures and interrogations, was another crisis of the 1960s affecting the police. This Article is not the
place to review in depth this historic development involving both the Court and the police, but it is important to discuss the
impact on the governance of the police.
 
The famous Supreme Court decisions imposing constitutional limits on the police, including but by no means limited to
Mapp v. Ohio168 and Miranda v. Arizona,169 were arguably the most significant police reforms of the 1960s. 170 Their effect
reached far beyond the strict holdings of the decisions themselves. They prodded police departments to significantly improve
their personnel standards with respect to qualifications for applicants, pre-service academy training, and regular in-service
training.171 Additionally, they stimulated a law enforcement agency accreditation process, 172 just as prisoner’s rights litigation
spurred an accreditation process for correctional institutions. 173 Finally, and perhaps most important, the Supreme Court
decisions stimulated an administrative rulemaking process by which police departments adopted written internal policies
governing critical police actions.174 These actions include use of deadly force, use of non-lethal force, response to domestic
violence incidents, procedures for high speed motor vehicle pursuits, and other issues, with more being added or older
policies being revised on a regular basis. The on-going process of administrative rulemaking has proceeded, in a very erratic
and unsystematic way, and been largely unappreciated by both community critics of the police and many scholars. 175 Police
department policy and procedures manuals are today the central instrument for managing a department and guiding officer
conduct. Thus, judicial intervention in policing had the unintended consequence of stimulating greater self-governance
among police departments.
 
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The intervention of the Supreme Court had collateral consequences that are relevant to both the governance of the police and
constitutional policing. First, the Court is the least democratic of the three branches of the American federal system. 176 To the
extent that the celebrated Court decisions of the 1960s represented extremely important reforms, they tended to divert the
attention of reformers away from the pursuit of other avenues for achieving reform, most notably the established democratic
procedures of local government.177
 
Second, in the process, the Supreme Court’s landmark decisions undoubtedly encouraged many reformers to think,
uncritically, that the Court could address a wide range of police issues. A number of commentators pointed out, however, the
courts have a very limited capacity to govern the police. Herman Goldstein argued that, “the potential effectiveness of the
exclusionary rule as a control device is limited to that relatively small percentage of police business when the police are
intent on prosecution.”178 Anthony G. Amsterdam, in a vigorous argument in favor of administrative rulemaking, stressed the
“wild proliferation of police practices” and the “incredible variability of police activities,” which he believed rulemaking
could better control than could the Supreme Court via the Fourth Amendment.179
 
Third, the major Supreme Court decisions had a profound impact in provoking a social and political backlash, which in turn
has deeply affected the governance of the police. The police and their conservative allies effectively raised the cry that the
Court had “handcuffed”180 police crime-fighting efforts and was more interested in the rights of “criminals” than law-abiding
citizens.181 The cry of “law and order” became a major issue in the insurgent presidential campaigns of Alabama Governor
George Wallace, an avowed segregationist, in 1964 and 1968, 182 and in Richard Nixon’s successful 1968 presidential
campaign.183 The conservative backlash against Supreme Court decisions (which included constitutional limits on Cold War
measures, school integration, First Amendment protection of sexually explicit materials, and, beginning in the 1970s,
constitutional protection of abortion), with its emphasis on law and order, only strengthened the cultural tradition of
deference to the police discussed earlier. 184 Finally, as already noted, the Court’s decisions on the police helped to fuel the
growth of police unions. This growth illustrates David Schraub’s “sticky slope” phenomenon, in which a high profile victory
in the courts stimulates the mobilization of opponents of the victory, thereby creating a political movement, where none had
existed before, dedicated to reversing or at least blunting the impact of the victory.185
 

VI. AFTER THE 1960S: THE CONTINUING QUEST FOR EXPANDED CITIZEN INPUT INTO POLICING

A. The Search for Alternatives to the Professionalization Model of Reform

Following the riots of the 1960s, the struggle to reduce police misconduct continued. 186 The major developments included
continued progress in administrative rulemaking on police conduct; 187 the growth of citizen oversight of the police, which
included the appearance of an important new form of oversight; 188 the emergence of the community policing movement,
which involved a significant rethinking of the role of the police and relations with the communities they serve; and the
intervention of the DOJ, with the resulting settlements mandating the reform of subject police departments. Together, these
developments introduced another new approach to the governance of the police.189
 

B. Community Policing and Problem-Oriented Policing, 1980-Present

The crises of the 1960s prompted a rethinking of the police’s role, which in the early 1980s blossomed into the ideas of
community policing190 and problem-oriented policing.191 Both emphasized the importance of police departments developing
partnerships with neighborhood groups, which in a limited but nonetheless important way, embraced the principle that
members of the public should have some voice in important aspects of police policy-making.
 
Community policing embodied a critique of the principles of police professionalization, arguing that police organizations had
become centralized, closed bureaucracies that were isolated from the communities they served. 192 As a remedy, it emphasized
decentralizing decision-making over policing strategies to the neighborhood level, and the creation of partnerships with
community groups. Problem-oriented policing, first conceptualized by Herman Goldstein in 1979, embraced the same

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principles of decentralization, neighborhood-focused crime and disorder strategies, and partnerships with community
groups.193 As discussed below, the mandate that the Cincinnati Police Department adopt problem-oriented policing as the
central part of a negotiated settlement of civil rights lawsuits has been an extremely influential model in recent civil rights
litigation.194
 
To the extent that some community policing and most problem-oriented policing programs involved effective partnerships
with neighborhood residents regarding strategies to address crime and disorder, they provided some limited but nonetheless
meaningful community input into police policy-making. 195 Community input did not extend to basic police department
operations, such as patrol and criminal investigation, nor did it cover those police actions that are at the heart of the major
controversies over constitutional policing, such as police use of force. 196 Nonetheless, the idea and the practice of partnerships
with community groups represented a major departure in the governing of the police, in which police departments willingly
conceded a certain degree of control over one of the principal missions of the police, and set an important precedent for other
reforms. Once police departments concede the principle that neighborhood residents should have a voice in crime and
disorder control strategies for their community, it becomes more difficult for the police to argue that residents should not also
have a voice in the use of force policy, stop-and-frisk practices, and so on.
 

C. A New Form of Citizen Oversight: Auditors, Monitors, and Inspectors General

In 1993, a new form of citizen oversight appeared as an alternative to the traditional citizen review board, known variously as
a police auditor, monitor, or inspector general (and referred to in this Article as the auditor/inspector general model of
oversight).197 This Article argues that this new model represents possibly the best approach to achieving both democratic
governance of police departments and a process for effectively achieving constitutional policing.
 
The first police auditors in 1993 included the San Jose Independent Police Auditor, 198 the Special Counsel to the Los Angeles
Sheriff’s Department (LASD),199 and the Seattle Police Auditor.200 Subsequent agencies include the Inspector General under
the Los Angeles Police Commission and the Inspector General for the NYPD, created in 2013. 201 Some other citizen oversight
agencies are hybrids, combining the functions of traditional review boards with those of auditor/inspector general, notably the
Office of Police Complaints in Washington, D.C.202
 
The auditor/inspector general model has a different mission from the traditional civilian review board. Instead of
investigating individual citizen complaints with the goal of determining whether an officer violated departmental policy, the
auditor/inspector general reviews a police department’s policies and practices with the ultimate goal of changing the
organization. Some goals of the auditor/inspector general model, well-expressed by the Police Assessment Research Center
(PARC), are: “Identify Strategies for Avoiding Federal and State ‘Pattern or Practice Inquiries”’; “Implement Management
and Operational Strategies That Promote Efficiency, Effectiveness, and Accountability”; “Evaluate Critical Incidents and
Devise Strategies for Future Improvement”; “Change and Track the Police-Community Relationship”; and “Implement Data-
Driven Management,” among others.203 Auditors/inspectors general have full access to the police department’s operations and
records and an unrestricted mandate regarding the issues they might choose to investigate. The Special Counsel to the LASD,
for example, examined a broad range of issues between 1993 and 2014, including use of force, recruitment and hiring, risk
management, the deployment of canines, and more. Auditors/inspectors general issue public reports defining the various
problems investigated, the findings, and recommendations for changes in policies and practices. Auditors/inspectors general
can also conduct follow up investigations of previous issues, examining whether the previous recommendations were
implemented. In this respect, auditors/inspectors general represent a significant improvement over the traditional “blue-
ribbon commission[s],” an approach with a long history in American policing, which expire after issuing their reports and
have no capacity to review implementation.204
 
Still, auditors/inspectors general do not have the power to compel implementation of their recommendations. Their influence
lies essentially in the impact of openness and transparency, as they inform the public and public officials about existing
problems and possible solutions. At the present time, the evidence on the impact of police auditors/inspectors general is
limited, but a number of cases indicate their capacity to address police department problems and to help change department
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policies. The first involves the San Jose Independent Police Auditor, which in its first year found that the San Jose Police
Department had been misclassifying many serious citizen complaints, with the result that the department’s official data
understated the extent of serious allegations against officers. 205 The IPA recommended and the department adopted a more
rigorous and accurate classification of citizen complaints. 206 In a second case, the Special Counsel to the LASD examined the
department’s deployment of the canine unit and recommended a new policy of tighter controls over deployments. The result
was a ninety percent decline in the number of citizens bitten by LASD canines over a ten-year period. 207 The Office of Police
Complaints in Washington, D.C., investigated complaints of widespread harassment of young African Americans for
violating a local ordinance requiring that bicycles be licensed 208 and recommended that the ordinance be repealed. 209 City
Council adopted the recommendation, and that particular discriminatory harassment problem was solved. 210 Finally, the
Inspector General for the NYPD in 2015 issued a report on use of force policies and practices by the NYPD, which found
serious deficiencies. The problems included a “vague and imprecise” use of force policy that provided “little guidance” to
officers, and the lack of a centralized use of force data system, which would permit analysis of department performance. 211
The report concluded with a set of fifteen recommendations on these and related issues. 212 It should be noted that, consistent
with the argument made earlier in this Article, the NYPD Inspector General was created in the context of a major legal and
political controversy in the city over the NYPD’s stop-and-frisk practices that significantly altered the political dynamics in
the city regarding the police.213
 
From the standpoint of the Schwartz Framework, 214 the auditor/inspector general model possesses no formal Leverage. The
Motivation, or will of police auditors to effect police reform, at least based on the evidence today, has been high. The
Resources available to the agencies cited here have been high, enabling the agencies to conduct thorough audits of policies
and practices, including in some cases detailed statistical analyses. Arguably, the most important resource possessed by the
auditors/inspectors general cited here has been expertise in the area of policing. 215 This expertise has included personal
experience in the area of police misconduct and detailed knowledge of the issues, a critical perspective on problematic law
enforcement policies and practices, and a familiarity with best practices around the country. The element of expertise
highlights one of the great weaknesses of civilian review boards: board members lack any special expertise regarding the law
enforcement policies (and corresponding officer actions) that are usually at issue in citizen complaints.
 
In this way the police auditor/inspector general model represents a new approach to democratic governance of the police.
Created by local legislative bodies, they are solidly anchored in the duly elected representatives of the community, and
function as specialized administrative agencies with the delegated authority to oversee the local law enforcement agencies.
As this Article has argued, the historic problem with the democratic governance of local police has been that mayors and city
council members have lacked either the will or the expertise, or both, to address major police problems. For the most part, the
auditors/inspectors general to date have possessed both.
 
At the same time, the auditor/inspector general model does have significant weaknesses. First, the electorate may at any time
choose to abolish this form of oversight of the police. It may do so directly by referendum or by electing mayors and city
council members committed to such action. Secondly, mayors may appoint executive directors of auditor/inspector general
agencies who are either incompetent or simply not committed to using the full powers of the agency. Such problems,
however, are inherent in all democratic governance of the police.
 

D. DOJ “Pattern or Practice” Litigation

1. The nature and impacts of DOJ “pattern or practice” litigation program.

The most significant new development in the effort to curb police misconduct over the past twenty years has been the advent
of federal investigations and litigation against local law enforcement agencies. 216 This Article does not attempt to review the
entire federal effort, but instead focuses on one aspect of certain recent settlements: the creation of community police
commissions. The matter is relevant to this Article because the community police commissions represent a new approach to
the governance of police departments in which such commissions, designed to broadly represent the entire community, have
a formal voice regarding important police policies.217
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Section 14141 of the 1994 Violent Crime Control Act authorizes the Civil Rights Division of the DOJ to investigate local law
enforcement agencies to determine if there exists a “pattern or practice” of civil rights violations against local residents.
Where violations are found to exist, the Division is authorized to bring civil suits to order organizational reforms designed to
end the abuses.218 To date, the DOJ has conducted more than forty investigations of law enforcement agencies, and reached
enforceable settlements with about twenty-five different agencies. 219 The reforms mandated by these settlements primarily
involve internal accountability procedures, including use of force policies, procedures for investigating use of force incidents,
procedures to end racial profiling, early intervention systems to identify officers with repeated performance problems, and
citizen complaint procedures. 220 Consent decrees and memoranda of agreement include a court-appointed monitor to oversee
implementation of the mandated reforms,221 and to report regularly to the U.S. District Court where the settlement is entered.
Because the reports are public documents, they represent an important advance in the openness and transparency of the
departments in question.
 
Much controversy has surrounded the “pattern or practice” litigation effort. 222 To date there is only one evaluation that would
meet the existing standards of social science research in the field of police studies. 223 The reports of the court-appointed
monitors in each case essentially report that the department in question has implemented the required reforms, with only
limited attention as to the impact of those reforms. 224 A report by the Police Executive Research Forum, however, contains a
number of statements by police chiefs and former chiefs who complied with consent decrees and in retrospect feel that
overall their departments were better as a result. 225 For example, Charles Ramsey, former Commissioner of the Metropolitan
Police Department of Washington, D.C., reported that in the end, the experience had a positive result and “[s]hootings [by
officers] dropped by 80 percent and have remained low.” 226 In the case of settlements that have been concluded, the court-
appointed monitors have reported that the mandated reforms have been implemented, and in several instances have
commented that the law enforcement agency in question has been transformed. 227 The monitors’ reports, it should be noted,
are process evaluations, assessing whether the department in question has complied with the terms of the court-ordered
settlement, and not outcome evaluations assessing whether the reforms have achieved their substantive goals of reducing the
use of excessive force, achieving more thorough and fairer investigations of force incidents, reduced racial profiling in police
work, and so on.
 

2. Community police commissions.

Several recent settlements have mandated the creation of a community police commission or similar entities to provide
community input into the development of important police policies. The idea of community police commissions reflects three
separate developments. First, in the first period of pattern or practice litigation (1997-2001), there were criticisms that
settlements largely excluded community groups from the implementation of consent decrees and memoranda of agreement,
despite the fact that initiatives by those groups were in some instances instrumental in bringing about the DOJ investigation. 228
Second, the 2002 Collaborative Agreement in Cincinnati, which paralleled the settlement with the DOJ, included a high level
of community input.229 Third, among academic experts in policing there emerged a consensus of opinion on the importance of
legitimacy in policing as necessary to ensure public trust and confidence in the police, if the police are to effectively fulfill
their mission of addressing crime and disorder and providing services to the public. 230 The 2015 report of the President’s Task
Force on 21st Century Policing strongly embraced this new consensus, recommending that “[l]aw enforcement should
embrace a guardian mindset to build public trust and legitimacy,” and to that end recommended that police departments
involve communities in the development of their polices.231
 
To date, the DOJ-mandated community police commissions are relatively new, and exist in an estimated six settlements. The
evidence regarding their operations and effectiveness is, therefore, extremely limited, and any conclusions about them are
speculative at best. The commissions vary somewhat in terms of their structure and official mandate. The most fully
developed commission exists in Seattle, and is discussed in more detail below. 232 The 2015 Cleveland settlement mandated
the creation of a Community Police Commission, “consisting of 13 members who represent the many and diverse
communities in Cleveland,” and authorized “to make recommendations to the Chief and the City ... on policies and practices
related to community and problem-oriented policing, bias-free policing, and police transparency.” 233 The settlement in New
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Orleans ordered the creation of the Police Community Advisory Board (PCAB), authorized to establish “partnerships” with
community groups for the purpose of developing problem-oriented policing strategies. 234 The settlement in East Haven,
Connecticut, requires the creation of a Community Liaison Officer, to assist in the development of “collaborative
problemsolving,”235 and also the hiring by the police department of a Joint Compliance Expert to assist in the implementation
of the settlement.236 In Albuquerque, the settlement created Community Policing Councils in each of six Area Commands that
are directed to assess the *654 “effectiveness of law enforcement strategies” and to “review[] and assess [] concerns or
recommendations about specific APD policing tactics and initiatives.” 237 The Portland, Oregon, settlement mandated the
creation of a Community Oversight Advisory Board (COAB) to assess the implementation of the settlement; make
recommendations on “additional actions” unspecified; advise the Chief and the Police Commissioner; keep the community
advised about implementation of the settlement; participate in the development of a Community Engagement and Outreach
Plan; and “receive comments and concerns.”238
 
A notable feature of the various community police commissions is the inclusion of rank-and-file officers and/or command-
level officers as either voting or non-voting members. This development is significant because, for the most part, rank-and-
file officers have not been included in police reform activities, and have generally been voices of opposition to reform. The
Seattle Settlement Agreement declared that “[p]olice officers also bring an important voice to the reform process. Their
views, whether presented through their labor organizations or through other channels, should inform the development of the
reform effort and its implementation.”239 Consequently, the Seattle Community Police Commission includes two sworn
officers, one representing the rank-and-file officer police union and the other representing the command officers’ union. 240
The Portland, Oregon, COAB includes five rank-and-file officers as non-voting members. 241 The Cleveland Consent Decree
specifies that the Cleveland Patrolmen’s Association, the Fraternal Order of Police, and the Black Shield each have one
representative on the Community Police Commission,242 and also have representatives on the District Policing Committees. 243
 
The model for community police commissions is the Cincinnati Collaborative Agreement, 244 an extremely important exercise
in police reform, in part because of its experiment in establishing a community voice in police policy-making. The
Collaborative Agreement was one of two parallel settlements regarding the Cincinnati Police Department in 2002. Following
a series of fatal shootings of African American men by Cincinnati police officers that provoked civil disturbances and the
imposition of martial law in the city, the DOJ investigated the police department and reached a settlement that resembled the
settlements in other cases with respect to internal police accountability reforms. 245 Several private racial profiling suits were
pending at the time and they were consolidated and settled through the Collaborative Agreement which mandated that the
police department abandon its traditional aggressive anti-crime activities and adopt problem-oriented policing. 246
Implementation of the Collaborative Agreement involved eight different community groups and feedback from over 3500
individuals.247 One of the three principles of the Collaborative Agreement was achieving “mutually agreeable solutions” to the
problem of police-community relations in the city. 248 The text of the Agreement was replete with references to community
voice, including “partnership,”249 “two way dialogue,”250 “jointly accountable,”251 “mutual accountability plan,” 252 and “in
consultation.”253
 
The Cincinnati Collaborative Agreement has attracted considerable attention and has had some impact on policy-making. The
decision and order settling the highly publicized suit against the stop-and-frisk practices of the NYPD, in which the U.S.
District Court ordered a Joint Remedial Process, noted that “[t]he landmark Collaborative Agreement approved in 2002 by
Judge Susan J. Dlott of the Southern District of Ohio as the settlement of class claims against the Cincinnati Police
Department has been widely recognized as a successful model for other police reform.” 254 And as this Article argues, it has
been the model for the various community police commissions in *656 the settlements of recent DOJ investigations of local
police departments.
 

3. The Seattle Community Police Commission experience.

The Seattle Settlement Agreement provides the best evidence to date of a DOJ-mandated Community Police Commission
(CPC).255 Implementation of the CPC, however, involved significant conflict between CPC members and the City, the U.S.
Attorney, and the Monitor over the role of the CPC in implementing the terms of the Settlement Agreement.
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The conflict arose over the Settlement Agreement’s mandate that the Seattle Police Department adopt a new use of force
policy.256 The Settlement Agreement did not give the CPC a role in the development of the new use of force policy. Instead,
the Agreement assigned the CPC a role in “review [ing] the reports and recommendations of the Monitor ... and issu[ing] its
own reports or recommendations to the City on the implementation of the Settlement Agreement.” 257 A separate
Memorandum of Understanding gave the CPC a specific role regarding five different policy issues: “Community
Engagement,” “Accountability,” “Investigatory Stops and Data Collection,” “Officer Assistance and Support,” and
“Transparency and Public Reporting.”258 Members of the CPC, however, soon reached a consensus among themselves that
they should have a role in the development of the new use of force policy. Denying them such a role, they believed, would
relegate them to the status of “window dressing” in the reform process. 259 Representatives of the City, the U.S. Attorney, and
the court-appointed monitor rejected the CPC’s argument, citing the explicit language of both the Settlement Agreement and
the Memorandum of Understanding. 260 At one point, members of the CPC threatened to resign as a group. 261 The City, the
Monitor, and the U.S. Attorney eventually acceded to the demands of the CPC, and it participated in the protracted and
contentious negotiations that eventually produced a new use of force policy for the Seattle Police Department. 262
 
One notable aspect of the new Seattle use of force policy is its strong emphasis on de-escalation. De-escalation has in recent
years emerged as a recommended “best practice” in policing, as a strategy and set of techniques for officers to defuse
potentially volatile encounters with people, and as a consequence reducing uses of force and possible law suits, and in
general improving relations with the community.263 The President’s Task Force on 21st Century Policing, for example,
strongly endorsed de-escalation.264 The new Seattle use of force policy, unlike standard policies in American policing, begins
with a discussion of de-escalation, and then proceeds to describe the circumstances when officers may use force. 265 Members
of the CPC regarded the achievement of the de-escalation policy as a major victory.266
 
With respect to the issue of the governance of the police, the Seattle events raise several issues that deserve commentary. The
first and most important is that that the CPC represented a broadly representative community commission with some formal
role in police policy-making. While the process of the CPC’s creation was non-democratic, the result was a policy-making
process that was more broadly representative than before, and one that ultimately reached a successful resolution of a
controversy over one of the most important police department policies.
 
Second, the conflict over the role of the CPC helped develop a sense of empowerment among its members that resulted in the
assertion of a greater role for the CPC in the implementation process. To the extent that this sense of empowerment becomes
a feature in future controversies over policing in the city, it would mark an institutionalized form of the governance of the
Seattle Police Department. It should be quickly noted that the implementation of the Seattle Settlement Agreement is an on-
going process as this Article is being written, and the ultimate result is unpredictable.
 
Third, the consensus among CPC members included an unexpected and unprecedented alliance among traditional opponents:
civil rights and civil liberties activists on the one side, and representatives of the two police collective bargaining units on the
other side. Two aspects of this development merit consideration and further research. The inclusion of the police union
representatives served to bring them into the process of addressing police problems in the city as active participants. It is
worth asking whether this serves as a model for other communities seeking to resolve police problems. As already noted, the
settlement agreement process in Seattle is currently on going, and the answers to these questions are unknown.
 
When we apply the Schwartz Framework 267 to the Seattle CPC, it is clear that the CPC had a certain degree of Leverage to
bring about police reform, as the struggle over the development of the use of force policy indicated. It also seems clear that
the members of the CPC had a high degree of Motivation to pursue police reform. Finally, the members of the CPC had
considerable Resources, primarily in the form of the experiences and perspectives of its members (which include the
institutional memories of the various organizations that members represented).
 
The more important issue, however, involves the process by which the CPC was created. The number of police departments
likely to be investigated and sued by the DOJ is extremely low, given both the number of police departments in the U.S. and

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the limited resources of the Special Litigation Section of the DOJ. 268 As a result, this particular mode of creation is certainly to
be limited. The community policing commission model is one that cities are free to adopt of their own volition. On the one
hand, such commissions might simply become a slightly different version of the old police commission model, which as this
Article has argued, has not proven to be a viable alternative to the standard mayor/city council form of police governance. 269
On the other *659 hand, a community police commission that incorporates features of the police auditor/inspector general
model of oversight, which this Article has argued embodies the Schwartz Resource factor of expertise, 270 could become a
viable path to a form of policing that is democratic in governance structure and committed to the principles of constitutional
policing.
 
At this point it is possible to conclude only that the community police commission is an important innovation, but one that
has not yet been fully tested over time across jurisdictions.
 

VII. CONCLUSION

As a result of a series of deaths at the hands of the police beginning in August 2014, American policing experienced a
national crisis unlike anything since the 1960s. The president of the United States felt it necessary to respond by appointing a
presidential task force on policing to study the crisis and make recommendations for reform. It was the first-ever presidential
task force or commission devoted exclusively to the police. While the task force did not address issues of governance, the
range of recommendations for improving policing lead inescapably to the conclusion that the basic forms of governance of
local police have failed in many important respects.
 
This Article has argued that the problems of American policing are ultimately related to the problems associated with
democratic governance of the police. The United States is unique in the world in the extent to which the governance of law
enforcement agencies lies almost exclusively with local governance. Yet, as the Article has argued, democratic governance
has failed to achieve the goal of constitutional policing, in which the police are committed to the rule of law, particularly with
respect to due process of law and equal protection of the laws. Over the course of nearly 150 years, democratically elected
mayors and city councils have been either indifferent to the goals of constitutional policing or actively hostile to the
requirements of due process and equal protection. Since the 1960s, police reformers have sought to make local police
agencies both more responsive to previously powerless groups, primarily the African American community, and more
committed to constitutional policing. Some of the major reforms have failed with regard to both. Other more recent reforms,
as the Article has argued, have demonstrated some success and show some promise for the future.
 
In the end, the heart of the problem has been the failure of the American people who democratically govern our police
departments. Developing democratic and constitutional policing, therefore, involves two challenges. First, we must convince
the majority of Americans of the urgent necessity of developing constitutional policing in the country as a way to address our
national crisis over race and policing. Second, building on the tentative recent steps that have been taken, we must develop
democratic governance structures for the police that will make possible the implementation of constitutional principles. This
Article opened with a quotation from Winston Churchill. Given the basic conclusion of the evidence and discussion herein, it
is appropriate to conclude with a paraphrase of a quotation from another famous Englishman, William Shakespeare. With
respect to governance of the police, the fault, dear people, is not in our political structures, but in ourselves. 271
 

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