The Incidental Regulation of Policing
By Seth W. Stoughton. Full text here.
What do the laws governing municipal annexation, collective bargaining, and race-conscious employment decisions have in common? Each plays a significant and underappreciated role in shaping local law enforcement practices even though each, on its face, has nothing to do with policing.
This Article explores the incidental regulation of policing, illustrating the concept with examples from different areas of state and federal law. Many legal decisions happen to include police as constituents of a broader regulatory ambit, and thus are not intended to have any particular effect on the unique functions of policing. Nevertheless, these laws have profound ramifications for police practices. Policing-neutral laws can alter the dynamics of interagency cooperation, encourage the adoption of a particular policing style, and change the way that police interact with the members of the communities they patrol. Each of these effects can change how rank-and-file officers go about their jobs. Some, for example, encourage officers to engage in aggressive criminal enforcement while others expand the range of tactics that officers can use to respond to potential problems and to non-criminal disorder.
This Article contends that recognizing the incidental effects of policing-neutral law is a necessary prerequisite to understanding and reforming police practices. The incidental regulation of policing is troubling when some broader legal decision affects unique policing functions. Here, the question of whether the law should encourage police to act in a particular way has been entirely overlooked, and the resulting impact on officer behavior does not benefit from the deliberative process that protects the important societal interests that law enforcement implicates. This Article suggests mechanisms for identifying and addressing the potential problems of incidental regulation in the policing context. By taking a more comprehensive view of the legal environment in which police operate, we can more fully understand how the law shapes officer behavior. That understanding, in turn, can pave the way to a tighter regulatory regime and more effective police reform.