Policing in the Shadow of Legality
Constitutional law minimally regulates many aspects of policing.
In a recent article, I discuss how three policing tactics circumvent constitutional safeguards: pretext, leveraging, and investigation cascades. As I explain in the article at page 508:
“Pretext occurs where officers invoke lawful justifications for unlawful conduct. Leveraging implies that officers exploit individuals’ legal and psychological vulnerabilities to incentivize them to comply with police requests or waive their rights. Investigation cascades take place when officers exploit a police power’s low or non-existent legal threshold—for instance, conducting a random vehicle stop—to gather information that justifies more invasive policing tactics with stricter legal thresholds, such as investigative detentions, searches, and arrests”.
The article advances the following three arguments that I set out on page 508:
“First, building on the interdisciplinary insights of legal philosophy, social psychology, and behavioural economics, it contends that proactive police encounters lead to pretext, leveraging, and investigation cascades. It highlights the interrelationship between these phenomena and explains why the police employ these techniques to take advantage of weak points in criminal procedure.
Second, this article explains why prevailing criminal procedure doctrines fail to adequately safeguard individuals against these three phenomena.
Third, it shows how pretext, leveraging, and investigation cascades worsen many of policing’s persistent problems: racial profiling, discrimination, selective enforcement, and lack of oversight”.
Ultimately, this article shows why constitutional criminal procedure largely fails to regulate these policing tactics. And it concludes with some proposals for reform.
The article is entitled : “Policing in the Shadow of Legality: Pretext, Leveraging, and Investigation Cascades” and it is published in the Osgoode Hall Law Journal.
All views expressed in this blog are my own and do not represent — and are not endorsed by — any academic institution.
