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Bridging Constitutional and Community Policing

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tanya Settles
June 2, 2023

Constitutional policing is a term that doesn’t come up as often as it should in practice or research.  Fundamentally, constitutional policing means every aspect of a law enforcement agency is committed to structuring policies, processes and operations deliberately and intentionally around federal and state constitutions that reinforces democratic principles. As interpretations of the Constitution change, police agencies also need to commit to continual review and refining of operational procedures and policies to ensure they maintain compliance and alignment with current interpretations of law. In a nutshell, as former Chief of the New Haven, Connecticut Police Department Dean Esserman said, “The Constitution is our boss” and notes that police are guardians of the Constitution who carry the responsibility to protect the rights of people they serve. 

In practice, this means police cannot be selective about who is deserving of police protection, must purposefully avoid discriminatory practices that value the rights of some community members over others and proactively recognize and deal with patterns or practices of conduct that violate civil and constitutional rights of people. It also means that constitutional policing and community policing go hand in hand, but community policing that occurs without a foundation of constitutional policing is not sustainable. The worst results mean communities may be disenfranchised, people are hurt and leaders are left with the question of whether community policing works at all. Failure to bind constitutional and community policing together potentially results in voluntary agreement to consent decrees with the U.S. Department of Justice, or in a handful of states, Attorneys General, that results in years of oversight. As an example, in late March this year, the Department of Justice effectively ended a consent decree with the Seattle Police Department that had been in place for over a decade, but some compliance oversight will continue.

Consent decrees are uncommon, but each carries the language of finding a pattern of practice that consistently violates the constitutional rights of people with whom the police interact. Of the over 18,000 police departments in the United States, there have been fewer than 100 consent decrees over the past 25 years and about 20 that are currently enforced by the Department of Justice. When a local government voluntarily enters a consent decree settlement, the cost of implementation, monitoring and operational and policy change can easily be in the millions of dollars. Yet, there’s little agreement on whether consent decrees result in their intended outcome or have positive impact on police culture, crime or arrests. Some critics argue they do far more harm than good. Advocates note successes that positively transformed agencies. 

Odds are, though, a consent decree settlement is the most unlikely outcome of policing strategies that fail to fully comply with federal and state constitutions. But that doesn’t mean that civil rights violations don’t occur, all searches are compliant with the 4th Amendment, or excessive use of force doesn’t happen. It just means that most agencies haven’t been hit over the head with the hammer of the most invasive and extreme way to force police reform. And it means that there are also great agencies that place the Constitution as the center of everything they do, even though sometimes constitutional greatness in policing is the result of a consent decree settlement. 

Law enforcement agencies must be proactive and protective of constitutional issues. The Constitution is not a side dish or something that’s viewed by officers as nice to have but unessential for good policing.  When agencies view the Constitution as central to their purpose, there’s opportunity to continually evolve through the lens of the Constitution. Key issues include use of force, racial and other biases, execution of stops, searches, arrests and other seizures and how police interact with people who may be marginalized and react to a police encounter in unexpected ways. This includes police encounters with people who experience homelessness, mental health crises and challenges with addiction.  Constitutional policing means embracing an obligation to care and finding our humanity, and then using those tools to respect the individual rights of people. It means that every day, police leaders and officers ask themselves, “am I doing everything I can to uphold the oath I took”.  And if the answer is “maybe not”, take the initiative to change the course and reconnect with the community to do better. 

While it seems obvious that all policing should be constitutional, the unfortunate reality is that too often the Constitution and police are far apart and sometimes have the most fleeting acquaintance with one another. Until this gap is resolved, we’ll continue to struggle with community policing because we forgot the foundation upon which we stand.

Author:  Tanya Settles is the CEO of Paradigm Public Affairs, LLC.  Tanya’s areas of work include relationship building between local governments and communities, restorative justice, and the impacts of natural and human-caused disasters on at-risk populations.  Tanya can be reached at [email protected].  The opinions in this column and any mistakes are hers alone.

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