UNWARRANTED

A law professor diagnoses the ills of American policing and prescribes a healthy dose of sunlight.

"Policing in the United States—from the overzealous beat cop all the way to the NSA—is out of control," writes Friedman (Law/New York Univ. School of Law; The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, 2009, etc.), and the fault lies not with the police but with us. Unlike most other governmental functions, policing largely proceeds without democratically endorsed rules provided in advance; legislatures and courts have shown neither the inclination nor the capacity to provide this guidance. Police have therefore been left to define their own, possibly unwritten, policies, which have often been kept secret. Too often, the result is a trampling of individual rights that would never have been publicly approved and a waste of resources on ineffective procedures. Among other proposals, Friedman advocates that courts impose more rigorous demands for warrants supported by probable cause for searches and surveillance and refuse to support policing techniques or uses of new technologies that have not been explicitly authorized by local or state authority. The author presents an incisive analysis of the pitfalls that have frustrated previous attempts to regulate policing and shows how attempts by the courts to do the job have resulted instead in an erosion of constitutional protections and individuals' rights to privacy. He also considers the special problems of oversight presented by the recent transition of policing from reactive pursuit of wrongdoers to regulatory mass surveillance intended to deter crime. Friedman's lively writing and clarity of expression enable him to make the thicket of applicable Fourth Amendment law readily understandable for general readers, helpfully illuminated by the personal stories behind the case law.

At once creative and conservative, Friedman offers a timely blueprint for recovering democratic control of local and national law enforcement.