Research Matters: John Rappaport on "Second-Order Regulation of Law Enforcement"

Research Matters is a regular feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Assistant Professor John Rappaport wrote “Second-Order Regulation of Law Enforcement,” which was published earlier this year in the California Law Review. In it, he critiques the US Supreme Court’s standard approach to resolving constitutional cases involving the police, exploring how the Court might shape police conduct more effectively by directing its decisions to policymakers rather than street-level officers.

Q. Why did you write this piece?
A. I’ve long been interested in the relationship between the police and the courts. The police are among the state’s most powerful agents. And the courts are where we tend to look when we think the police need to be restrained. But a lot of the conversation about those restraints struck me as stale and cramped. We focus so much on what the right constitutional rule is—should it be Rule A or Rule B? Does a particular act by a cop violate the Constitution or not? These debates can be intellectually stimulating, and they’re not unimportant, but they cover only a tiny portion of the relevant terrain. Among other things, these conversations often proceed as though the cops will follow whatever rule the Court selects. But we know that’s not the case. So I wanted to ask: Is there a way the Court could be doing something fundamentally differently—not just choosing B this time instead of A, but taking a different overall approach to constitutional rulemaking that might improve compliance and reduce what we regard as bad behavior? In other words, can we get better outcomes if we think about rulemaking and compliance as interrelated challenges?

Q. You decided to look at the targets of the Court’s rulings, making the distinction between first-order decisions—judicial decisions aimed at cops on the street—and second-order decisions—decisions aimed at policymakers like legislators and police chiefs, which encourage those actors to write rules for street-level cops. The first, you note, is the most common; the Court tends to speak directly to the street-level law enforcement. Why?
A. My best guess is that it’s largely a historical contingency. In the 1960s, the Warren Court began the so-called “criminal procedure revolution.” It breathed life into the amendments in the Bill of Rights that deal with criminal cases by applying them to the states and then giving them more robust content. This was related to the civil rights movement and the growing recognition of the severity of the race problem in the United States. The cops were the fist of the state, and the Court became interested in trying to reign them in and control some of the egregious behavior. The Court stepped up because it perceived that the state legislatures and the police departments weren’t doing it.

Q. You argue that it might be more effective for state legislatures or police departments to make the rules. What are some of the advantages of this?
A. You can lump the advantages broadly into two categories. The first is about the content of the rules. Judges, and especially Supreme Court justices, are so far from the ground that it’s difficult for them to know what rules are good and what rules are bad. There’s also good reason to allow for variation around the country. For instance, some rules might work well in urban areas but not as well in rural areas. The second category of advantages relates to compliance. There’s a whole body of research about why people obey the law. The short answer is that obedience is motivated more by a belief that the rules are legitimate—because they’re the product of a fair process—than it is by a fear of being punished. For reasons that are both unfortunate and understandable, a lot of cops on the street don’t view Supreme Court decisions as carrying as much legitimacy as the policies their chief or sergeant writes. The justices aren’t police officers, they don’t walk the street, they don’t carry a weapon, and they don’t understand the difficulties of being a cop. The idea here was to try to shift the locus of rulemaking to a person or entity that has greater perceived legitimacy in the eyes of the cops on the street. I refer to it in the paper as “buy-in.” But we’re still doing constitutional law, because the courts would review the rules to make sure they satisfy constitutional objectives; we’d be changing the judiciary’s role but not taking it out of the equation.

Q. Instead of describing first- and second-order regulations as separate conceptual types, you talk about a continuum that includes in-between categories, like “guided second order” decisions. Does this mean different types of regulation fit different cases, and if so, how would the Court go about choosing?
A. It depends on the nature of the constitutional principle the Court is trying to implement. For example, in some areas of constitutional law—take an “inventory search” of an impounded car, for example—the Court will say that the Constitution forbids only arbitrary or discriminatory conduct. In those cases, the Court can leave the political actors a great deal of leeway about what policies to craft, as long as the policies are basically sensible. But in other areas of law, the Constitution prescribes something more specific. It’s not enough to make sure police interrogations aren’t discriminatory; the Constitution also demands that they not be coercive. You need to understand the nature of the underlying right, which is a question of constitutional interpretation, in order to get a handle on what kind of regulation might work.

Q. Are there potential costs or risks with second-order regulation?
A. Sure. One potentially big downside is that you’ll have less uniformity. If today we have a first-order rule on, say, a particular search-and-seizure issue, that’s one rule that every cop in the country has to follow. But if you shift into my universe and you have second-order regulation, you have one principle that everyone has to respect, but that might be implemented in many different ways, which makes the law more complex.

There is also the potential downside of letting police chiefs write their own rules. Part of the reason we want, or we think we want, Supreme Court justices writing the rules is that they’re politically insulated—they’re not running for re-election, they have life tenure, they’re not engaged in the business of solving crimes. I think some people hear my idea and think, “Are you crazy? You’re going to let cops write the rules for cops?” There is a risk that, without proper Court oversight, assertive Court oversight, the cops will write rules that are really good for cops and not so good for the rest of us. Second-order regulation leans heavily on the courts to root out those bad rules.

Q. But the rules don’t necessarily have to come from the police—they could come from the state legislature or the city council, right?
A. Yes. And I think that last concern is somewhat reduced when it’s the city council or state legislature writing the rules. But the tradeoff is that these actors have less expertise on what rules make the most sense given the realities of police work.

Q. Does the “sweet spot”—how far the rulemaker should be from the ground—change by the case?
A. I think there are some issues where police knowledge might be especially useful, but others where the motivations for police to write rules favorable to themselves would be especially strong. So, yes, the sweet spot might be in different places depending on what the issue is.

Q. How does the Supreme Court go about offering the right amount of guidance while still allowing what you referred to as a “safe environment” in which policymakers can experiment and figure it out?
A. Although first-order regulation has been the norm, there are some good examples of second-order regulation, and we can learn a lot from those. One of the most straightforward mechanisms for making second-order regulation happen is a judicial default rule. This is when the Court says, “Either you follow our default rule or you come up with some other equally rights-protective solution.” This gets you guidance plus room to experiment.

Q. From the standpoint of the average American, why does this matter?
A. Courts can announce whatever rules they want, but getting cops to follow the rules consistently is a whole other ballgame. People may take solace in the idea that having the Supreme Court make the rules means the justices are going to stand up for normal people’s rights—but that may be false comfort. I think we need to be open to the idea that sometimes the best way to get people to follow rules is to make them feel like they have some say in what the rules are, that they have some way to object to rules they believe are really unworkable or unfair, and that the rules are being written by people who know what they’re talking about and are invested in their locality and their well-being. A more permissive constitutional rule set could actually be better for the public, if the police obey it more consistently, than the Court’s stricter-looking rules. When you see the things we’re seeing in Ferguson and Staten Island, which are really disquieting, it’s tempting to say that the answer is to just punish and be strict. But the iron fist is not always going to be the way to get people to do what you want. I’m not saying we should treat police with kid gloves. I’m saying we should make sure we do everything we can to make them internally motivated to follow the rules because we’re not always going to be able to catch them and punish them when they don’t.