Controlling The Cops: A Legislative Approach To Police Rulemaking

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UNIVERSITY OF DETROIT
LAW REVIEW
VOLUME SIXTY-THREE ISSUE THREE SPRING 1986
Controlling the Cops: A Legislative

Approach to Police Rulemaking
SAMUEL WALKER*
I. INTRODUCTION
The effective control of police behavior remains the central

problem in American law enforcement. Historically, police officers
functioned without any meaningful controls over their routine activ-
ities.' Each branch of government, in some way, abdicated its re-
sponsibility for holding police accountable to standards of fairness
and due process. Until recently, the courts maintained a "hands
off" attitude toward all aspects of criminal justice administration.2
Mayors and city council members did intervene in police affairs for
purposes of corruption and patronage, but rarely to establish ac-
countability of police behavior. For their part, police administra-
tors issued departmental manuals containing 4
rules that typically
were ignored by the rank and file officers.
Controls over police behavior began to emerge in the late
1950s and early 1960s, spurred primarily by the civil rights move-
ment and emerging concepts of due process. The United States
Supreme Court arguably was the most effective instrument of police
reform.5 The Court's decision in Mapp v. Ohio,6 ushered in a new
era. Not only did the Court impose rules for particular police activi-
ties, but its intervention stimulated the search for alternative meth-
ods of police control. Much of the ensuing public debate focused
* Professor of Criminal Justice, University of Nebraska at Omaha.

1. See S. WALKER, A CRITICAL HISTORY OF POLICE REFORM (1977); R. FOGEL-
SON, BIG CITY POLICE (1977).
2. Y. KAMISAR, POLICE INTERROGATION AND CONFESSIONS 95-112 (1980). On
prisoners' rights, see J. JACOBS, NEW PERSPECTIVES ON PRISONS AND IMPRISONMENT
33-60 (1983).
3. One of the unfortunate ironies of police professionalization was that by
insulating the police from corrupt political influence it also insulated them from
legitimate political accountability. See supra note 1.
4. S. WALKER, supra note 1, at 8-14.
5. S. WALKER, POPULAR JUSTICE: A HISTORY OF AMERICAN CRIMINAL JUSTICE
221-53 (1980).
6. 367 U.S. 643 (1961).
362 UNIVERSITY OF DETROIT LA W REVIEW [Vol. 63:361
on the exclusionary rule, but we need not "replow" that ground

which has been "so well cultivated" to date.7
The search for controls over police behavior focused on three
principle alternatives: judicial, political, and administrative. The in-
itiative of the Warren Court, as we have suggested, was perhaps the
most important engine of police reform, if not of the entire criminal
justice system.8 Recent events, however, suggest that what the War-
ren Court giveth the Burger Court was inclined to taketh away.
While the Burger Court did not reverse any of the principle police-
related decisions, it did seriously erode some of their essential prin-
ciples.9 Civil rights activists invested much of their effort in securing
judicially-mandated controls over the police. Activists in many cities
also pursued the political goal of establishing mechanisms of "civil-
ian review" of police behavior.' This approach, however, met with
little success as rank and file officers were able to mobilize consider-
able police power to block such efforts. In fact, the two most impor-
tant existing civilian review mechanisms in New York City, and
Philadelphia, were abolished as a result of rank and file initiatives.
Virtually all commentators noted the inherent limitations of
both judicial and political approaches to police accountability, and
viewed administrative controls as the optimal long-term solution.
Even some of the strongest supporters of the exclusionary rule, such
as Judge McGowan, I I and Amsterdam,' 2 pointed out that the judici-
ary possessed extremely limited capacity to supervise the full range
of police activities on a day-to-day basis, and that the most effective
controls would be those developed and administered by the police.
By the mid-1970s police experts reached a consensus that adminis-
trative rulemaking was the best hope for police accountability. Pro-
fessor Kenneth C. Davis most fully elaborated 3
the concept of
rulemaking and its application to the police. 1
Despite the broad consensus over the potential effectiveness of
7. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 423

(1974). On the debate over the exclusionary rule and its alternatives, see Paulsen,
Whitebread & Bonnie, Securing Police Compliance with Constitutional Limitations: The
Exclusionary Rule and Other Devices, in NATIONAL COMMISSION ON THE CAUSES AND
PREVENTION OF VIOLENCE, LAW AND ORDER RECONSIDERED 390-436 (paperback ed.
1970); see also McGowan, Rule-making and the Police, 70 MICH. L. REV. 659 (1972).
8. S. WALKER, supra note 5, at 229-32; see also A. Cox, THE WARREN COURT
(1968).
9. V. BLASI, THE BURGER COURT 61-69 (1983).
10. Paulsen, supra note 7, at 415; see also Littlejohn, The Civilian Police Commis-
sion: A Deterrent of Police Misconduct, 59 U. DET. J. URB. L. 5 (1981). Littlejohn's
analysis of the new Detroit Police Commission suggests that the emergence of black
political power at the municipal level creates new opportunities for establishing
review mechanisms.
11. See, e.g., McGowan, supra note 7.
12. See, e.g., Amsterdam, supra note 7.
13. See K. DAVIS, DISCRETIONARY JUSTICE (1971); see also Davis, An Approach to
1986] POLICE RULEMIAKING 363
administrative rulemaking, progress in that direction has been spo-

radic at best. No police department has undertaken systematic
rulemaking in the fashion proposed by Davis and others. Rules typi-
cally have developed through a process of "crisis management,"
often in response to a lawsuit, political pressure, or other emer-
gency. Consequently, existing rules relating to the use of law en-
forcement powers is a patchwork phenomenon. Many police
departments have detailed rules governing the use of deadly force, a
handful have rules regarding the handling of domestic violence, and
some have rules covering intelligence-gathering activities. But apart
from these and a few other cases, the majority of departments do
not govern most discretionary decisions of police officers by admin-
istrative rules. The central defect with the administrative rulemak-
ing concept, as generally proposed, is its voluntaristic approach.
Experience has demonstrated that law enforcement agencies will
not undertake rulemaking voluntarily. Indeed, as discussed below,
most of the existing rulemaking is the result of some external com-
pulsion: litigation, political pressure, or a combination of the two. 4
This article advocates a legislatively-mandated approach to po-
lice rulemaking. State legislatures or local city councils should enact
legislation or city ordinances requiring law enforcement agencies to
undertake systematic rulemaking. The case for a legislative ap-
proach rests upon two key points. First, it is evident that the volun-
taristic approach is inadequate.'I The advocates of rulemaking have
assumed that rules would be developed either voluntarily by law en-
forcement agencies or imposed by the courts. Presently, neither ap-
proach inspires much confidence. While many experts have
suggested the possibility of legislatively imposed rules,' 6 there has
been only one concrete proposal for legislatively-mandated
rulemaking. 17 Second, at least in the area of deadly force policy,
new empirical evidence suggests that administrative rules do
achieve their desired goals. The emergence of this evidence alters
the nature of the debate considerably. Historically, advocates of
rulemaking have relied upon an essentially a priori argument. Logic
rather than experience suggested rulemaking. Further, the evi-
dence on the impact of deadly force rules alters the terms of the
Legal Control of the Police, 52 TEX. L. REV. 703 (1974); K. DAVIS, POLICE DISCRETION
(1975).
14. See infra text accompanying notes 29-39, 80-89, and 97-102.
15. On the voluntaristic approach to reform, see Walker, Setting the Standards:
The Efforts and Impact of Blue-Ribbon Commissions on the Police, in W. GELLER, POLICE
LEADERSHIP IN AMERICA: CRISIS AND OPPORTUNrrY 354 (1985).
16. H. GOLDSTEIN, POLICING A FREE SOCIETY 125 (1977).
17. See Schmidt, A Proposalfor a Statewide Law Enforcement Administrative Law
Council, 2 J. POL. SCI. & ADM. 330 (1974). For a discussion of why a municipal
ordinance may be a more viable approach, see infra text accompanying notes 137-
41.
debate.IS The question now centers on whether the techniques that

have proven successful in controlling police use of deadly force are
applicable to other areas of police activity.' 9
This discussion of legislatively-mandated rulemaking also at-
tempts to synthesize developments in several, often disparate, areas
of police studies. To an unfortunate degree, persons working on
police problems are compartmentalized by occupational specialty.
Academically-based sociologists do not always keep abreast of the
legal literature and vice versa. Specialists in police use of deadly
force are not always current with developments in the areas of intel-
ligence gathering or domestic violence-to cite two important areas
of recent activity. This compartmentalization is fostered by the fact
that police problems are attacked on a problem-by-problem basis.
The proposal for legislatively-mandated rulemaking entails a sys-
tematic approach to the control of police behavior in all critical ar-
eas of law enforcement.
II. POLICE RULES: BACKGROUND AND DEVELOPMENT
A. The Discovery of Discretion

The concept of police rulemaking developed in the 1950s from
the discovery of the "police discretion phenomenon." Prior to that
time, few people recognized the existence of police discretion. Pub-
lic attention focused on the more extreme problems such as brutal-
ity, but there was little understanding of, and no research on,
routine police activity. 2" It was generally assumed that police of-
ficers acted, or at least should act, in a "ministerial" fashion carrying
out their duties in an impersonal manner without any subjective
judgment. Some legal scholars argued that there should be no exer-
cise of discretion by governmental officials." Police leaders publicly
maintained that their officers fully enforced all laws and denied that
discretion existed.2 2 The leading police management text book,
O.W. Wilson's Police Administration, did not mention discretion,
much less identify it as a problem.2"
In 1953, the American Bar Foundation's Survey of the Adminis-
18. See infra notes 57-79 and accompanying text.

19. For a discussion of the problems involved, see infra text accompanying
notes 80-108.
20. U.S. WICKERSHAM COMMISSION, REPORT ON LAWLESSNESS AND LAW EN-
FORCEMENT (1931).
21. See the discussion and notes in W. LAFAVE, ARREST: THE DECISION TO
TAKE A SUSPECT INTO CUSTODY 63-64 (1965), and the pivotal discussion in Hall,
Police and Law in a Democratic Society, 28 IND. L.J. 133 (1953).
22.K. DAVIS, POLICE DISCRETION, supra note 13, at 52-78.
23.In 0. WILSON & R. MCLAREN, POLICE ADMINISTRATION 136-41 (4th ed.
1977), the authors describe and recommend techniques for administrative rulemak-
ing, but fail to discuss discretion as a general problem.
19861 POLICE RULEMAKING 365
tration of Criminal Justice was a major turning point in the history

of American criminal justice." The Survey's field research identi-
fied discretion as a pervasive aspect of the administration of justice
and defined it as the central issue around which further research and
reform efforts should be organized. The Survey's findings stimu-
lated the first discussions of police discretion, 5 which in turn, lead
to the first proposals for control techniques.2 6
Subsequent academic research on police activity, influenced
largely by the civil rights movement, focused on the potentially dis-
criminatory aspects of the exercise of discretion. The initial studies
27
tended to find racial discrimination, particularly in juvenile arrests
28
and in the use of deadly force. Later studies, controlling for more
of the relevant variables, found that racial disparities narrowed sig-
nificantly, and in some cases even disappeared. 29 Regardless of the
degree of racial discrimination, however, police experts increasingly
recognized that unregulated discretion was a fundamental problem
needing correction.
B. The Emerging Intellectual Consensus

Recognition of the problems inherent in the uncontrolled exer-
cise of discretion spread quickly among police experts in the 1960s.
Three "blue-ribbon" commissions recommended that law enforce-
ment agencies develop written guidelines to control police behav-
ior. The President's Crime Commission recommended that "Police
departments should develop and enunciate policies that give police
personnel specific guidance for the common situations requiring ex-
ercise of police discretion .... "30
The National Advisory Commission on Criminal Justice Stan-
dards and Goals proposed that "Every police chief executive imme-
diately should establish written policies in those areas of operations
24. Newman, Sociologists and the Administration of CriminalJustice, in A. SHOSTAK,

SOCIOLOGY IN ACTION 177-87 (1966).
25. See, e.g., Goldstein, PoliceDiscretion Not to Invoke the CriminalProcess: Low Visi-
bility Decisions in the Administration ofJustice, 69 YALE LJ. 543 (1960); see also Gold-
stein, Police Discretion: The Ideal Versus the Real, 23 PUB. ADM. REV. 148 (1963).
26. Davis, supra note 13.
27. N. GOLDMAN, DIFFERENTIAL SELECTION OF JUVENILES FOR COURT APPEAR-
ANCE (1963).
28. Surveyed in Geller, Deadly Force: What We Know, 10J. POL. SCI. & ADM. 151,
163-65 (1982).
29. See A. REISS, THE POLICE AND THE PUBLIC (1971); D. BLACK, THE MANNERS
AND CUSTOMS OF THE POLICE (1980); Lundman, Police Control ofJuveniles: A Replica-
tion, 15J. RES. CRIME & DEL. 74-91 (1978); Geller, supra note 28, at 163-65. For the
most comprehensive overview, seeJ. PETERSILIA, RACIAL DISPARITIES IN THE CRIMI-
NALJUSTICE SYSTEM (1983).
30. PRESIDENT'S COMMISSION ON LAv ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY 265-72 (paperback ed. 1968)
[hereinafter cited as THE CHALLENGE OF CRIME IN A FREE SOCIETY].
366 UNIVERSITY OF DETROIT LAW REVIEW [Vol. 63:361
in which guidance is needed to direct agency'3 1employees toward the

attainment of agency goals and objectives."
Finally, the American Bar Association recommended that
"Police discretion can best be structured and controlled through the
process of administrative rulemaking by police agencies. Police ad-
ministrators should, therefore, give the highest priority to the for-
mulation of administrative rules governing the exercise of
discretion, particularly in the areas of selective enforcement, investi-
gative techniques, and enforcement methods." 3 2
Among police experts a consensus developed on the rationale
for rulemaking. 33 The principle arguments favoring rules were: 1)
police routinely exercise broad discretion in all aspects of their
work; 2) much of this activity is at best questionable and possibly
illegal; 3) when exercising discretion officers make substantive law
enforcement policy, without the benefit of planning coordination,
and open discussion of agency and community priorities; 4) police
officials habitually deny that discretion exists, thereby engaging in a
blatant deception and placing themselves on the defensive when de-
bating police practices; 5) ample legal justification for rulemaking
exists; 6) discretion has many positive virtues and rules should at-
tempt to guide and control rather than eliminate it; 7) if the police
fail to develop their own rules, external authorities will impose them
upon the police; 8) internally-developed rules are preferable and
probably more effective than those imposed by external authorities;
9) the rulemaking process would stimulate rational agency planning
and, indirectly, the professionalization of the police; 10) open
rulemaking also would enhance public awareness and support for
the police.
III. THE DEVELOPMENT OF MODEL RULES
In response to the emerging consensus several sets of model

police rules appeared. The Texas Criminal Justice Council, in coop-
eration with the International Association of Chiefs of Police
31. NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND

GOALS, POLICE 53-56 (1973).
32. AMERICAN BAR ASSOCIATION, STANDARDS RELATING TO THE URBAN POLICE
FUNCTION 116-44 (1973) [hereinafter cited as STANDARDS].
33. The arguments are found in K. DAVIS, supra note 13; Amsterdam, supra
note 7; McGowan, supra note 7; H. GOLDSTEIN, supra note 16; Caplan, The Case For
Rulemaking by Law Enforcement Agencies, 36 LAw & CONTEMP. PROBS. 500 (1971); D.
AARONSON, C. DIENES & M. MUSHENO, PUBLIC POLICY AND POLICE DISCRETION
(1984); G. WILLIAMS, THE LAW AND POLITICS OF POLICE DISCRETION (1984). For the
only significant dissent from this consensus, see Allen, The Police and Substantive
Rulemaking: Reconciling Principleand Expediency, 125 U. PA. L. REV. 61 (1976). But see
Davis, Police Rulemaking on Selective Enforcement: A Reply, 125 U. PA. L. REV. 1167
(1977); Allen, The Police and Substantive Rulemaking: A Brief Rejoinder, 125 U. PA. L.
REV. 1172 (1977).
1986l POLICE RULEMAKING 367
(IACP), developed and published A Manual on Police Discretion con-

taining rules covering nine critical areas of police activity.3 4 Davis
gave the Texas model rules a strong endorsement in his book Police
Discretion.3 5 Fred A. Wileman developed a more elaborate set of
model rules for the University of Wisconsin Institute of Governmen-
tal Affairs.3 6 This Model Policy Manualfor Police Agencies covered not
only the exercise of police authority, but many aspects of internal
police administration as well. The Project on Law Enforcement Pol-
icy and Rulemaking at Arizona State University, in cooperation with
the Police Foundation, developed model rules for six different areas
of police activity.3 " The Nebraska Law Enforcement Training
Center published a Model Policiesand ProceduresManual.3 8 Finally, the
leading law enforcement professional associations established an ac-
creditation process. The resulting Standards For Law Enforcement
Agencies requires participating agencies to develop general written
rules and regulations, and mandates specific rules in the area of
deadly force.3 9
The development of the various model rules and the exhorta-
tions of the various commissions and experts did not, however,
hasten systematic rulemaking by law enforcement agencies. Even
the participation of the IACP in the development of the Texas
model rules did not appear to have much influence. This inaction
occurred in the face of dire warning that if the police failed to de-
velop their own rules, external authorities would impose rules upon
them. The Arizona State project, for example, warned that "Unless
law enforcement agencies themselves take positive steps to control
the dissemination of arrest and conviction records, legislatures and
the courts will do so-and in ways that might well harm legitimate
34. See generally TEXAS CRIMINAL JUSTICE COUNCIL, MODEL RULES FOR LAW EN-
FORCEMENT OFFICERS: A MANUAL ON POLICE DISCRETION (1974).
35. K. DAVIS, POLICE DISCRETION 101-03 (1975).
36. See F. WILEMAN, MODEL POLICY MANUAL FOR POLICE AGENCIES (1976).
37. See PROJECT ON LAW ENFORCEMENT POLICE AND RULEMAKING, MODEL RULES
FOR LAw ENFORCEMENT: RELEASE OF ARREST AND CONVICTION RECORDS (1973)
[hereinafter cited as PROJECT ON LAw ENFORCEMENT]. Other sets of rules covered
eyewitness identification, search warrant execution, stop and frisk, searches,
seizures and inventories of motor vehicles and warrantless searches of persons and
places.
38. See NEBRASKA LAW ENFORCEMENT TRAINING CENTER, MODEL POLICIES AND
PROCEDURES MANUAL (1974). There is no evidence, however, that the state training
center made any effort to require or even encourage local agencies to adopt the
model.
39. COMMISSION ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, AC-
CREDITATION PROGRAM OVERVIEW 12.2 (1983). The participating agencies include
the International Association of Chiefs of Police, National Sheriffs Association, Na-
tional Organization of Black Law Enforcement Executives and Police Executive Re-
search Forum.
law enforcement needs."4 °
A. Trends In Police Rulemaking

American police departments were never completely without
rules and regulations. The first police manuals appeared in the
nineteenth century, but they have traditionally suffered from two se-
rious defects. First, the rules were simply ignored by supervisors
and rank and file officers.4 1 Second, contemporary manuals, while
taken more seriously, overemphasize trivial matters of internal disci-
pline (i.e., requiring officers to wear their hats at all times), and ig-
nore most of the critical issues related to the exercise of police
authority. As the President's Crime Commission pointed out,
"What such manuals almost never discuss are the hard choices po-
licemen must make everyday: whether or not to break up a sidewalk
gathering, whether or not to silence a street corner speaker,
whether or not to intervene in a domestic dispute, whether or not to
stop and frisk, whether or not to arrest ....,42
Police training suffered from the same imbalance, emphasizing
technique while neglecting policy questions. On the critical issue of
deadly force, for example, officers traditionally received hours of
training on the care 43
and feeding of their handguns, but not a word
on when to shoot.
Since the time of the President's Crime Commission, considera-
ble progress in police rulemaking has occurred. Many observers
have noted that the use of police manuals has grown enormously in
the past fifteen to twenty years. Three aspects of this development,
however, should be noted. First, the long-standing imbalance be-
tween internal disciplinary matters and law enforcement policy con-
tinues to exist. Second, the existing rules on the important policy
questions are a patchwork phenomenon. Rules exists for some areas
of police activity in some departments, but most agencies leave most
activities ungoverned by rules. Third, the process of rulemaking
can be characterized as "crisis management." Rules generally ap-
pear as a consequence of some emergency: a lawsuit, intense polit-
ical pressure, a controversial incident, or some combination of the
three. Not only does this produce a patchwork set of rules, but the
rules also acquire a negative aspect. Officers view rules as an impo-
sition, and the positive benefits of rulemaking through planning are
lost.
Deadly force policy is currently the area most extensively cov-
40. PROJECT ON LAW ENFORCEMENT, supra note 37, at 12.

41. S. WALKER supra note 1, at 8-14.
42. TInE CHALLENGE OF CRIME IN A FREE SOCIETY, supra note 30, at 103.
43. See the early survey and discussion in Chapman, StandardProcedures to Gov-
ern Use of Firearmsby Police Agencies, 1IJ. CAL. L. ENF. 183 (1968).
1986] POLICE RULEMAKING
ered by rules.4 4 Particularly in large urban departments there has

been a steady trend away from the common-law "fleeing felon" rule
toward the more restrictive Model Penal Code "defense of life"
standard.4 5 Some departments have voluntarily adopted policies
more restrictive than required by their state's law.
Progress in the development of deadly force policies, however,
has been neither uniform nor consistent. Tremendous variation can
be found between the policies of different departments in the same
geographic area.4 6 A 1982 Justice Department report found that of
forty-three departments, twenty-five operated in common-law rule
states, eight in "modified common-law" rule states, and ten in states
with the Model Penal Code.4 7 Philadelphia and Houston main-
tained virtually no internal rules through the 1970s. 4 8 In Seattle, in
1978, the mayor imposed a more restrictive policy, but a police
union-sponsored referendum overturned it and a relatively permis-
sive shooting policy was restored.4 9
An important new area of police rulemaking involves police re-
sponse to domestic violence.5 ° The feminist movement has identi-
fied as a major problem the failure of the police to protect female
victims of domestic violence. Women's groups have demanded that
police abandon their long-standing preference for a "no arrest" pol-
icy in domestic situations. Two important suits, in New York City
and Oakland, raised equal protection claims on behalf of female vic-
tims and resulted in court settlements that required new police de-
partment rules. The political pressure of the women's movement
has produced police rules in two other ways. Some departments
have voluntarily adopted rules, while a number of states have im-
posed rules upon police as part of new domestic violence laws.51
A third area of recent rulemaking involves police intelligence
gathering or "spying." Suits against illegal police spying have pro-
duced new rules in New York City, Chicago, Memphis and Los An-
44. On deadly force in general, see Geller, supra note 28.

45. See generally Sherman, Restricting the License to kill-Recent Developments in Po-
lice Use of Deadly Force, 14 CRIM. L. BULL. 577, 579-83 (1978). See Tennessee v.
Garner, 471 U.S. 1 (1985).
46. See, e.g., Uelmen, Varieties of Police Policy: A Study of Police Polity Regarding the
Use of Deadly Force in Los Angeles County, 6 Lov. L.A. L. REV. 1 (1973).
47. K. MATULIA, A BALANCE OF FORCES: EXECUTIVE SUMMARY 12 (1982).
48. U.S. COMMISSION ON CIVIL RIGHTS, WHO IS GUARDING THE GUARDIANS? A
REPORT ON POLICE PRACTICES 38-43 (1981).
49. Walker, The Politicsof Police Accountability: The Seattle Police Spying Ordinanceas
a Case Study, in E. FAIRCHILD AND V. WEBB, THE POLITICS OF CRIMINALJUSTICE 144-
57 (1985).
50. See generally N. LOVING, RESPONDING TO DOMESTIC VIOLENCE: A GUIDE FOR
POLICE (1980).
51. See, e.g., Houston, Texas Police Department, Administrative Notice #83-
314, Domestic Disturbances Involving Physical Violence (August 29, 1983) [hereinafter
cited as Houston Administrative Notice].
geles.5 2 Meanwhile, the Watergate-era revelations of spying by the

FBI and CIA led to a campaign for administrative and/or legislative
controls over these federal agencies.5 3 Attorney General Edward
Levi promulgated rules on FBI intelligence activities in 1976, but
these were relaxed substantially in 1983 by Attorney General Wil-
liam French Smith.5 4 Congress has held hearings on an ACLU-
sponsored "Charter" for the FBI but has not acted on that proposal.
The FBI proposal did, however, serve as a model for a municipal
ordinance regulating intelligence gathering activities by the Seattle,
Washington Police Department.5 5 Little is known about the devel-
opment of police rules apart from these highly politicized areas of
police control. Despite the fact that policy and procedure manuals
are now a basic element of police management, there is no research
on the development or current content of these documents. A pre-
liminary inquiry supports the conventional wisdom that these manu-
als continue to overemphasize relatively trivial matters of internal
discipline and ignore the critical areas of law enforcement authority.
IV. THE IMPACT OF RULES: THE EMPIRICAL EVIDENCE
The theoretical arguments in favor of police rulemaking were

well established by the early 1970s. The important new develop-
ment in the late 1970s was the emergence of empirical evidence in-
dicating the effectiveness of rules.
A. The Case of Deadly Force

The use of deadly force is, arguably, the most thoroughly
researched aspect of American policing. The body of literature is
large and growing.5 6 Deadly force policy is also the only area of
policing where the impact of administrative rulemaking on behavior
has been evaluated. The data suggests that rulemaking is an effec-
tive technique for controlling police discretion.
The pioneering research on this topic was done byJamesJ. Fyfe
in New York City.5 7 In 1972, the New York City Police Department
52. See the various contributions in, Police Surveillance of PoliticalActivity: Con-
trols Through Litigation and Legislation, 55 U. DET. J. URB. L. 853 (1978) [hereinafter
cited as Police Surveillance of Political Activity]; and several contributions in National
Security and Civil Liberties, 69 CORNELL L. REv. 685 (1984).
53. See Legislative Charterfor the FBI: Hearings on H.R. 5030 Before the Sub Comm.
on the Civil and ConstitutionalRights of the Comm. on theJudiciay House of Representatives,
96th Cong., 1st and 2nd Sess. 31-151 (1979).
54. See Berman, FBI CharterLegislation: The Casefor ProhibitingDomestic Intelligence
Investigations, 55 U. DET. J. URB. L. 1041 (1978); see also Elliff, The Attorney General's
Guidelinesfor FBI Investigations, 69 CORNELL L. REV. 785 (1984).
55. Walker, supra note 49, at 144-57.
56. Geller, supra note 28, at 157.
57. Seej. FYFE, SHOTS FIRED: AN EXAMINATION OF NEW YORK CITY POLICE FIRE-
adopted a more restrictive firearms policy. Temporary Order of

Procedure #237 (TOP), contained two essential parts. Substan-
tively, it adopted a very restrictive "defense of life" standard on fire-
arms use. Officers were permitted to use deadly force only when
circumstances indicated an imminent threat to life of either the of-
ficer or a third party. Deadly force could also be used to effect an
arrest, but only when there was a presumption that the suspect was
armed and was likely to endanger life if not immediately appre-
hended. Officers were instructed to exhaust all other remedies
before resorting to deadly force. The new policy also prohibited
warning shots, shots to call for assistance, shots at or from moving
vehicles, and any shots that might endanger an innocent bystander.
Procedurally, TOP #237 created a Firearms Discharge Review
Board (FDRB) to investigate all firearms discharges. The FDRB was
chaired by the Chief of Operations (the highest ranking sworn of-
ficer in the department), and included two deputy police commis-
sioners, and the director of the police academy's firearms unit. The
FDRB was empowered to review all incidents and to recommend
appropriate departmental response-ranging from sustaining the
officer's action to various sanctions including suspension, warning,
counseling, transfer, or criminal charges.
Fyfe's data was exceptionally rich and his study represented a
major breakthrough in deadly force research. Historically, police
departments had been highly protective of their internal records on
shootings and denied researchers access to individual incident re-
ports.58 Consequently, researchers were forced to rely on summary
reports supplemented by press accounts, coroner's reports, court
records, and other public documents. The policies of deadly force
changed significantly in the mid-1970s. Under increasing public
pressure to control shootings, the police establishment adopted a
more open posture toward outside research. The International As-
sociation of Chiefs of Police (IACP) cooperated with the National
Association for the Advancement of Colored People (NAACP) and
two other organizations in a Justice Department-funded study of
firearms policy.5 9 The New York City Police Department opened its
files to two researchers with the independent Chicago Law Enforce-
ment Study Group, a self-styled police "watchdog" organ-
60
ization.
To evaluate the impact of TOP #237, Fyfe analyzed 4,904 fire-
ARMS DISCHARGES (1978); see also Fyfe, Administrative Inteventions on Police Shoothig
Discretion: An Empirical Examination, 7 J. CRIM. JUST. 309 (1979).
58. Geller, supra note 28, at 153.
59. K. MATULIA, supra note 47; see also Fyfe, Limitig Police Power to Kill Through
Local Law, 18 CRIM. L. BULL. 528 (1982).
60. See W. GELLER & K. KARALES, SPLIT-SECOND DECISIONS: SHOOTINGS OF
AND By CHICAGO POLICE (1981).
arms discharge/assault reports filed between January 1, 1971, and

December 31, 1975.61 He found that the new policy reduced shoot-
ings by about thirty percent. Specifically, the weekly average of the
number of officers firing their weapons declined by 29.9%. More-
over, reductions were not equal in all categories. Shootings in the
"defense of life" category declined by 24.3%, while those in the
"prevent or terminate crime" group declined by 84.6%. In short,
the policy achieved its intended effect by reducing shootings in
those situations where there was no immediate threat to life.
Fyfe acknowledged the possibility that his data may have re-
flected only a change in how individual police officers reported
shooting incidents.6 2 He conceded the possibility that officers de-
fined incidents to fit approved categories. He found for example, an
increase from 3.6% to 9% in the number of reported "accidental"
shootings under the new policy. Fyfe argues, however, that the de-
cline in the number of shootings was too large to be explained en-
tirely by reporting changes.
Officer compliance with TOP #237 represents a fundamental
issue in administrative rulemaking. Gary Marx, for example, sug-
gests that formal rules may only stimulate the search for creative
means of evasion. 63 Some evidence of this is found with the so- 64
called "dropsy" phenomenon related to the exclusionary rule.
Following the Mapp decision, police officers more often reported
that they obtained the narcotics or other seized item when the sus-
pect "dropped" it on the ground rather than through a search. The
viability of administrative rulemaking depends largely upon the de-
velopment of techniques for monitoring compliance and eliminat-
ing, as nearly as possible, willful evasion.
The reduction in police shootings would not necessarily be a
positive achievement if there were other unacceptable conse-
quences. To explore this question, Fyfe examined trends in the
crime rate and in the number of officers killed or injured while on
duty.6" The data indicated no increases in either category. Homi-
cides in New York remained stable after 1972 while the number of
officers injured or killed while on duty declined. Thus, the new pol-
icy reduced shootings apparently without endangering either citi-
zens or police officers.
Additional support for administrative rulemaking is found in
61. Fyfe, supra note 57, at 312.

62. J. FYFE, SHOTS FIRED, supra note 57, at 316-28.
63. Marx, Who Reallv Gets Siung? Some Issues Raised By the New Police Undercover
Work, 28 CRIME & DEL. 165, 167 (1982).
64. Oaks, Studying the Exchsionary Rule in Search anid Seizure, 37 U. CHI. L. REv.
665, 697-99 (1970).
65. See Fyfe, supra note 57.
1986] POLICE RULEMAKING 373
Fyfe's research on police shootings in Memphis, Tennessee.6 6 In

the 1970s the Memphis Police Department had acquired a serious
police-community relations problem.6 7 One of the key issues was
the department's vague and unrestrictive shooting policy. The pol-
icy in effect in 1975 provided that "Under certain specified circum-
stances, deadly force may be exercised against a fleeing felon." The
policy did not, however, indicate what those "certain specified con-
ditions" might be. This void left individual police officers with vir-
tually complete discretion to interpret the fleeing felon rule.6 8
Fyfe then compared police shootings in Memphis under this
unrestrictive policy (1969-1974) with shootings in New York City
under its very restrictive policy (1971-1975).69 The data indicated
that Memphis police officers fired their weapons far more often than
did their New York counterparts. The annual shooting rate in Mem-
phis was 33.5 per 1,000 officers, compared with 19.6 per 1,000 in
New York. This higher shooting rate might be justified if Memphis
officers were faced with a more violent criminal environment. Fyfe
found, however, that the opposite was true. New York City police
were making nearly twice as many violent felony arrests per year
(1172.95 annual violent felony arrests per 1,000 officers in New
York, compared with 567.12 per 1,000 officers in Memphis).
Given the less restrictive nature of the Memphis shooting pol-
icy, it was hardly surprising that Memphis officers frequently shot to
apprehend criminal suspects. One half of all Memphis shootings
(50.7%) were in the "apprehend suspect" category, compared with
28% in the "defend life" category.70 In New York City, 60.2% of
the shootings were to "defend life," and only 6.2% to "apprehend
suspect." The different policies appeared to influence when officers
shot.
Even more significant was the data on who Memphis police of-
ficers shot. Fyfe examined the race of persons shot and killed in
Memphis between 1969 and 1975. He established three categories
of persons shot and killed: (1) "assaultive-armed with gun;" (2) "as-
saultive-not armed with gun;" and (3) "non-assaultive-unarmed."
Three-quarters of all the people shot and killed were black, a figure
that approximates the national rate. 7 ' Exactly one half of all the
blacks shot and killed in Memphis, however, were in the "non-as-
saultive-unarmed" category. In fact, of the fourteen people in this
66. See Fyfe, BlindJustice: Police Shootings in Memphis, 73 J. CRIM. L. & CRIMINOL-
OGY 707 (1982).
67. U.S. CIVIL RIGHTS COMMISSION, CIVIC CRISIS = CIVIC CHALLENGE: POLICE-
COMMUNITY RELATIONS IN MEMPHIS 80-83 (1978).
68. Fyfe, supra note 66, at 710-11.
69. Id. at 712-21.
70. Id. at 715.
71. Id. at 720.
category, thirteen were black while only one was white. Meanwhile,
62.5% of all the whites shot and killed were "assaultive-armed
72
with
gun" compared with only 26.9% of all black victims.
The implications of these data are clear. Memphis police shot
and killed unarmed blacks with greater regularity than unarmed
whites. It does not require much imagination to reconstruct the so-
cial-psychology of these incidents. In the darkness of a nighttime
encounter, the police officer is only able to distinguish that the per-
son is a black male. Racial stereotypes come into play and the of-
ficer feels more "threatened" by the shadowy black figure than by a
similar white figure. He draws his gun, shoots, and often succeeds
in killing the suspect.
Fyfe's date suggests that restrictive shooting policies succeed
in: (1) reducing the overall number of shootings; (2) reducing
shootings particularly in situations where there is no threat to life;
and (3) reducing racial disparities in police shootings.
Further support for the effectiveness of administrative controls
over police shootings is found in a National Institute ofJustice (NIJ)
study of shooting policies. 7 ' This study indicates that twenty-five
police departments in states with the common law rule in effect had
higher shooting rates than did cities with either of two more restric-
tive policies. Moreover, specific administrative procedures reduced
firearms incidents. The NIJ report found that: "Departments with
sufficient numbers of street supervisors providing tactical guidance
and manpower support have a lower incidence of use of deadly
force."' 74 Departments using stakeout units, but with no manage-
ment directive governing their operation, had higher shooting rates
than departments with formal policies to govern such units. 75 Fi-
nally, shooting rates were lower in those departments 76where shoot-
ing incidents were reviewed by the department chief.
A recent survey of national trends found a fifty percent reduc-
tion in the number of citizens shot and killed by police between
1970 and 1984. The authors attributed this decline in large part to
the development of tighter administrative controls. In Chicago,
meanwhile, the number of citizens shot and killed by police declined
by twenty-six percent from 1974 to 1980.7 7
72. Id.
73. K. MATULIA, supra note 47.
74. Id. at 12.
75. Id. at 25. This finding is consistent with the conclusions of Sherman re-
garding the control of police corruption. See L. SHERMAN, SCANDAL AND REFORM:
CONTROLLING POLICE CORRUPTION (1978).
76. K. MATULIA, supra note 47, at 25.
77. CRIME CONTROL INSTITUTE, CITIZENS KILLED BY BIG CITY POLICE, 1970-
1984 (1986); W. GELLER & K. KARALES, supra note 60, at 156-79.
B. Other Case Studies

While the evidence concerning the effectiveness of rules on
deadly force is very persuasive, there is no equivalent evidence on
the impact of rules in other areas of policing. The necessary impact
evaluations have yet to be undertaken. This void represents a seri-
ous problem. The case for legislatively-mandated rulemaking rests
on the premise that deadly force rules provide a model that can be
applied to other areas of police conduct. There are good reasons,
however, to suggest that the entire area of police use of deadly force
is unique-both in its human significance, and its susceptibility to
control. We examine in the following section the available evidence
on rulemaking in other areas of policing, and consider the extent to
which the deadly force model is applicable to other areas of police
activity.
1. The Case of Domestic Violence

Police response to domestic violence emerged as a particularly
salient issue in the 1970s, and the subject of much public discussion,
research, and litigation. 78 The feminist movement defined domestic
violence as a major issue and argued that female victims of domestic
assaults were routinely denied adequate police protection. 79 As a
consequence, opinions concerning the proper police response to
domestic violence shifted nearly 180 degrees. In the 1960s, the
leading experts on this subject argued that police officers should
avoid arrest and employ counseling, mediation, and referral tech-
niques. 8° By the 1970s, the "no arrest" approach fell into disrepute
and police experts increasingly adopted the feminist viewpoint. Ex-
perts argued that police officers should treat domestic assaults the
same way they treat other assaults: there should be a preference for
arrest when the assault is serious, and that police departments
should adopt formal guidelines clearly stating this policy. 8
Two important court cases challenged the traditional practice
of arrest avoidance in domestic assault cases, raising equal protec-
tion issues on behalf of female victims of domestic violence.
Although the New York City 2 and Oakland 83 suits were settled out
78. See, e.g., N. LOVING, supra note 50.

79. On police handling of domestic disputes, see D. BLACK, supra note 29, at
109-92.
80. See M. BARD, TRAINING POLICE AS SPECIALISTS IN FAMILY CRISIS INTERVEN-
TION (1970). Despite the enormous publicity given Bard's program, few depart-
ments have adopted it.
81. See N. LOVING, SUpra note 50, at 51-80. On the deterrent effect of arrests in
domestic violence incidents, see Sherman and Berk, The Specific Detenent Effects of
Arrestfor Domestic Assault, 49 AM. Soc. REV. 261 (1984).
82. Bruno v. Codd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).
83. Scott v. Hart, No. 6-76-2395 (N.D. Cal., Filed Oct. 28, 1976).
of court, the police agreed to develop formal policy statements to

guide their officers when handling domestic violence situations.
The policies adopted stated that police officers should arrest where
there is evidence of a felonious assault. The Oakland policy reads,
in part, "1. It is the policy of the Oakland Police Department to
treat complaints of domestic violence as alleged criminal con-
duct.... 2. The Police Department will not employ an arrest avoid-
ance policy in response to incidents of alleged domestic violence
",84
The New York City policy explicitly acknowledges that police

officers have discretion over when to arrest, but states that an officer
"shall not refrain from making an arrest" because "the parties are
married."8 5 In short, felonious assaults should be treated the same,
regardless of the relationship of the victim and the offender.
Meanwhile, other police departments voluntarily adopted spe-
cific policies relating to domestic violence. A Houston Police De-
partment policy adopted in 1983 first distinguished between
"Domestic Disputes" and "Domestic Violence," directing officers
that:
Domestic disputes may simply require referral and/or
mediation. Domestic violence should be treated as criminal
conduct to be investigated as any other crime. . . . While
there is a wide range of possible responses to domestic sit-
uations, it should be presumed that arrest is the most ap-
propriate response in domestic violence crimes which
involve apparent felonies or situations where an offense is
committed in the officer's presence.8 6
The policies cited above represent a few of the rare instances
when police departments have explicitly addressed the question of
arrest discretion by openly acknowledging that there are situations
when an officer might not make an arrest. Whether these policies
affect police officer behavior, however, is not known. The relevant
evaluations have not been undertaken.
On their face, the deadly force and domestic violence policies at
hand differ in one crucial respect. Virtually all deadly force policies
contain a reporting and review mechanism. An officer who fires his
or her weapon, regardless of whether a citizen was killed or injured,
must file a written report. In some departments the reports are
given cursory review by a commanding officer and the process stops
there. In other departments, the review is more thorough. The
New York City policy, for example, requires review by the Firearms
84. N. LovING, supra note 50, at 163-68.

85. Id. at 163-68.
86. See Houston Administrative Notice, supra note 51.
Discharge Review Board consisting of three high ranking officers.8 7

In Davis' terms, these procedures serve to check discretion by
requiring that individual actions are brought to the attention of, and
reviewed by, higher authority.8 8 The review process operates under
varying degrees of intensity depending upon the particular require-
ments. Even the most minimal level of scrutiny (i.e., that the officer
complete a firearms discharge report), places the officer on notice
that he or she must render an accounting of the event. The more
formal the process of review by supervising officers, and the higher
the rank of the officers involved in the review, the stronger the
message to the shooting officer that this is a serious event that will
be examined carefully by the department. According to the NIJ
study, there are lower shooting rates where incident reports are re-
viewed by the chief of police rather than by lower ranking officers.8 9
One should have no illusions about even the strictest reporting
and review mechanisms. There are ample opportunities for police
officers to lie.90 Indeed, there is an incentive to do so. Having shot
a citizen, the officer will stand on much firmer ground by exaggerat-
ing the extent to which the citizen acted in a threatening manner.
Because there are often no witnesses to these incidents there is no
way to verify the officer's statement. Another serious weakness in-
volves the integrity of the review process. There is no way to guar-
antee that the officers reviewing the incident will probe very deeply,
challenge the officer's report, or question his or her judgment. In
short, the review process easily can become a "whitewash."
Existing domestic violence policies generally have no reporting
and review mechanism. Specifically, no special reports are required
for domestic violence situations and the disposition of such inci-
dents are not automatically reviewed. When reporting and review
mechanisms do not exist, one must be skeptical about the impact of
the formal domestic violence policies. Some police departments,
however, have added special reporting requirements for domestic
disputes. The Toledo, Ohio Police Department requires that:
Anytime an officer investigates a Domestic Dispute
(any Domestic Dispute, no matter how minor) between
family or household members meeting the stated defini-
tion, the officer SHALL make out a Crime Report. If there
has been an arrest for the offense of Domestic Violence, or
an allegation that a violation of Domestic Violence has
taken place the Crime Report shall be titled "Domestic Vi-
87. J. FYFE, SHOTS FIRED, supra note 57, at 312.

88. K. DAviS, DISCRETIONARYJUSnCE 143 (1977).
89. K. MATULIA, supra note 47, at 25.
90. J. FYFE, SHOTS FIRED, supra note 57, at 316-28. See also Marx, supra note 63.
olence" in the space provided for the offense. 9 '

The effectiveness of a reporting depends largely on the extent
that the reports are reviewed by supervising officers. At worst, the
reports could amount to nothing more than meaningless pieces of
paper which are filed away and forgotten. Even a cursory review
may not prevent officers from systematically recording incidents as
less serious than they actually were. Studies indicate that police of-
ficers exercise considerable discretion when writing crime reports,
in some cases not making any report, and in others devaluing the
seriousness of the incident.9 2
The question of reporting and review mechanisms illustrates
the unique character of deadly force incidents when compared with
other police activities. Use of a firearm is both a discrete and a "crit-
ical" event which can be more easily isolated from other activities.
First, shootings are few in number when compared with other
events. Second, the killing or wounding of a citizen is a "high visi-
bility" event that comes to the attention of other people and agen-
cies. Even when a citizen is not struck by a bullet the incident often
comes to the attention of others. Third, the act of shooting is vested
with great moral significance because it involves a conscious deci-
sion to take a human life. Domestic disputes, on the other hand, are
more numerous and are perceived as more "routine" or "normal"
than deadly force incidents. They are simply not vested with the
same moral significance as deadly force incidents. For these reasons
they are more difficult to isolate from the broader range of "order
maintenance" police activities. From a purely bureaucratic stand-
point, they are more elusive and less manageable.9" One of the
principal consequences of requiring special reports for domestic
disputes is that it colors such events with greater significance in the
mind of the officer.
In short, while police rulemaking in the area of domestic vio-
lence is spreading, one cannot state with any assurance that the new
rules do have an effect on police behavior. Evaluation of the rules
has not been conducted to date. The presence of reporting and re-
view mechanisms, and the manner in which they are administered
are critical factors.
2. The Case of Police Spying

Police intelligence gathering, or "spying," is another area of
91. Toledo, Ohio Police Division, Special Order #80-10, Domestic Violence Law
(October 27, 1980).
92. D. BLACK, supra note 29, at 65-83.
93. In most departments there will be two records of the dispatch, one in the
communications center and another in the officer's personal log, but no detailed
record of the nature and seriousness of the incident.
police activity which has recently been subject to controls. The

emerging controls have been developed through legislation, litiga-
tion, and administrative directive. 94
Litigation has been the primary avenue of attack on police spy-
ing. Suits against police spying in New York City, Chicago, Mem-
phis, and Los Angeles have resulted in the use of some controls over
police intelligence activities. The settlement in Memphis defined
protected first amendment rights and prohibited "political intelli-
gence" generally, the use of electronic surveillance for gathering
political intelligence, and the use of informants for the purpose of
political intelligence gathering. In similar terms, the settlement in
Chicago defined first amendment conduct as "conduct protected by
the rights under the First Amendment of the Constitution of the
United States of freedom of speech, press, assembly, petition and
religion," and mandated that information about any such conduct
"shall not be gathered nor become part of any investigative file un-
less it is so necessary to and inseparable from the purpose of the
investigation that its gathering and retention cannot be avoided." 9 5
Among the most important legislative controls over police in-
telligence gathering is the 1979 Seattle Police Intelligence Ordi-
nance.9" This law sets a particularly important precedent by
establishing an on-going monitoring mechanism. Enacted in the
wake of a spying scandal, the law restricts the Seattle Police Depart-
ment's authority to gather information concerning specified reli-
gious, political, and private sexual activities of citizens. The law
restricts rather than prohibits because it permits such information to
be collected but only with written authorization from a supervisor
with the rank of lieutenant or higher. The law also establishes civil
penalties for violations of the restrictions, and, perhaps most impor-
tant, creates an auditing mechanism to monitor compliance.
The third approach to control of intelligence gathering involves
administrative directives. The most notable example is the "Levi
Guidelines" adopted for the F.B.I. by Attorney General, Edward
Levi in 1976.97 Several aspects of the "Levi Guidelines" should be
noted. They were developed largely in response to revelations of
F.B.I. misconduct arising in the wake of Watergate. As voluntary
guidelines, they exist at the discretion of the Attorney General, and
can be voluntarily weakened or abolished as easily as they were writ-
ten. The Reagan Administration did in fact revise the guidelines in
1983.
Whether the various new controls over police spying achieve
94. See Chevigny, Politics and Law in the Control of Local Surveillance, 69 CORNELL
L. REV. 735 (1984); Police Surveillance of PoliticalActivity, supra note 52.
95. Chevigny, supra note 94.
96. See Walker, supra note 49.
97. Elliff, supra note 54, at 785.
their intended goals is an open question. Spying is, by definition, a

covert activity. Not only is it concealed from the subject of the in-
vestigation but the activities of detectives are often deliberately con-
cealed from supervisors. In the case of the FBI under J. Edgar
Hoover, spying activities were concealed from both the Attorney
General and the President of the United States.9 8 Unlike firearms
discharges and domestic disputes, which are to a certain degree,
public events, police spying may not be susceptible to study by con-
ventional social science techniques. With the exception of Seattle,
the controls have not been independently evaluated. The Seattle
study, moreover, relied primarily upon the subjective testimony of
key actors rather than objective data.9 9
The existing controls over police spying address this problem
in different ways. The most effective approach may be the Seattle
auditing mechanism. The Seattle ordinance authorizes the Seattle
Police Auditor to examine all police files (with a few specified ex-
emptions) every six months. It is argued that this institutionalized
monitoring process has a "sensitizing" or "deterrent" effect upon
police misconduct.10 0 The Seattle auditor conceded that it was pos-
sible, though not likely, that the police could conceal improper ac-
tivities from the audit process. The court-ordered controls, on the
other hand, require initiative by a plaintiff. A person who feels that
he or she has been spied upon may seek relief from the court. This
means that the individual must have some reason to believe that
spying is occurring and be able to convince a judge to that effect.
The Seattle ordinance, in contrast, requires the auditor to notify in-
dividuals of intelligence gathering when the auditor believes it may
be improper.
In short, the effectiveness of the new controls over police spy-
ing is problematic. The fact that any controls exist is a major step,
but one cannot assert with any confidence that they have fully
achieved their intended goals. A Seattle-style monitoring mecha-
nism, creating a climate of openness and accountability within an
agency, may be the most effective technique in the long-run.
3. The Case of Police Corruption
Corruption, defined as an illegal activity that produces a per-
sonal benefit for the officer(s) involved, is among the oldest of
problems in American policing.1 0 ' For the most part, the repeated
efforts to eliminate corruption have failed. Recent evidence, how-
ever, suggests that some departments have been relatively success-
98. A. THEOHARIS, SPYING ON AMERICANS 65-93 (1978).
99. See Walker, supra note 49.
100. Id.
101. H. GOLDSTEIN, POLICE CORRUPTION: A PERSPECTIVE ON ITS NATURE AND
CONTROL (1975).
ful in reducing, if not eliminating corrupt activities. The control

techniques employed are related to the concept of administrative
rulemaking.
Experts on the subject of police corruption agree that the police
operate in an environment offering powerful inducements for cor-
ruption. ° The criminal law proscribes innumerable recreational
activities, most notably gambling, in which many people indulge.
Organized crime flourishes because of the enormous profits to be
gained from providing those illegal services. Given these external
forces, which are common to all jurisdictions, some departments are
by reputation less corrupt than others. Goldstein, Sherman and
others argue that the most effective controls involve a combination
of departmental mechanisms. The most important being a police
chief indicating that corruption will not be tolerated, supplemented
by an effective internal investigation process backed by meaningful
discipline of officers found to be corrupt.'0 3
An important part of the internal control process is the devel-
opment of explicit departmental policies that define corrupt activi-
ties ("drawing the line," in Goldstein's terms).104 Formal policies,
however, are not prevalent. The only survey of the subject found
that of the responding departments, only thirty-five percent had pol-
icies on officers accepting Christmas gifts, thirty percent had poli-
cies on using one's badge to gain free entrance to a movie theater,
and forty-nine percent on accepting free meals in restaurants. By
contrast, eighty-four percent had explicit policies dealing with sleep-
ing while on duty and ninety percent had policies covering drinking
while on duty. 0 5
The impact of formal policies on corrupt activities is unknown.
Corruption is a covert, illegal activity and presents the same
problems of investigation-whether the investigator is an academi-
cian or a prosecutor-as police spying. Indeed, a dilemma resulting
from controlling police corruption is that control efforts can involve
many of the same questionable or illegal techniques used by the po-
lice against political dissidents (wiretapping, informants, etc.).
Sherman identifies a range of control techniques contributing to re-
duced corruption, but does not examine the impact of written poli-
cies per se.
C. Summary
The existing examples of police rulemaking suggest cautious
102. Id. at 21.-27. See also L. SHERMAN, supra note 75.

103. Id.
104. H. GOLDSTEIN, supra note 101, at 28-30.
105. See Barker & Wells, Police Administrators' Attitudes Toward the Definition and
Control of Police Deviance, 51 FBI LAw ENF. BULL. 11 (Mar. 29, 1982).
optimism about its viability as a general approach to police reform.

The success in controlling the use of firearms may not be as easy to
replicate in other areas of policing. The major problem lies in the
implementation of rules. Shootings are relatively easy to monitor
because they are so few in number and are inherently marked with
great moral significance. Currently, whether more routine police-
citizen encounters can be controlled by the same technique is not
completely clear. Nor is it clear that police activities which are in-
herently covert can be effectively controlled by administrative
guidelines.
V. THE CASE FOR LEGISLATIVELY-MANDATED RULEMAKING

A. The Limits of Voluntarism
The inadequacies of current approaches to police rulemaking
indicate the need for legislatively-mandated rulemaking. To date,
rulemaking has been an unsystematic and largely reactive "crisis-
management" phenomenon. Rules have been developed most ex-
tensively in three areas of policing: deadly force, domestic violence,
and spying. In each area there is an organized political constituency
pressuring the police and creating a heavy volume of litigation.
Crisis management produces a number of serious problems.
First, it leaves large areas of police activity untouched. 106 Rules de-
velop only where political pressure and/or litigation are sufficiently
strong to produce that result. While there has been considerable
progress in the area of deadly force, police practices involving infor-
mants, to cite but one example, remain unregulated. In the absence
of political pressure and/or litigation, police departments appear to
have little incentive to develop their own rules.
Second, "crisis management" places the police in a defensive
posture. Rulemaking is perceived by the police as something im-
posed upon them, rather than a positive step toward professional-
ism. The entire concept is inevitably tainted in the minds of police
officers by virtue of its origin. This aggravates the compliance prob-
lem. As Judge McGowan suggests, police are more likely to accept
rules that are developed internally than those imposed from with-
out. 10 7 Additionally, the defensive posture reinforces the uneven
development of rules. Departmental energies are absorbed in the
crisis of the moment and diverted away from systematic, long-range
planning.
The limited development of rulemaking dramatizes the limits of
the voluntaristic approach to police reform.10 8 Three national com-
missions have recommended rulemaking in one form or another for
106. McGowan, supra note 7, at 680.
107. Id.
108. Walker, supra note 15, at 362.
19861 POLICE RULEMAKING
police as have virtually all of the recognized experts on American

policing. The lack of progress in the face of this consensus is ex-
plained by the fact that all of the commissions and individual ex-
perts assume voluntary compliance on the part of the police. 10 9 The
historical record, however, provides limited support for this reform
approach. Finally, the current posture of the Supreme Court sug-
gests that it will not be the vehicle for reform that it was in the
1960s; a time when the Court's rulings on police procedure were
arguably the most important stimulus to reform. 1 0 The Court's de-
cisions on the exclusionary rule in the 1983-1984 term indicate that
it is abandoning the activism of the Warren Court years and re-
turning to a position ofjudicial deference.
B. Legislative Precedents
1. Recommendations of Police Experts
Several authorities have suggested legislative action. The
ABA's Standards Relating to the Urban Police Function recommend en-
abling legislation stating: "To stimulate the development of appro-
priate administrative guidance and control over police discretion,
legislatures and courts should actively encourage or require police
administrative rulemaking.
Legislatures can meet this demand by delegating administrative

rulemaking
''111
responsibility by statute and requiring compliance
The President's Crime Commission discussed this possibility in

its Task Force Report: The Police, but did not include it as a "black
letter" recommendation. 12 Herman Goldstein, principal author of
the ABA Standards, reiterates the need for legislative action,' 1 3 as
does Kenneth C. Davis, the leading authority on administrative
law." 4 These authorities, however, stop short of recommending
that legislative bodies require rulemaking. The ABA Standardsspeak
in terms of "stimulating" rulemaking. Goldstein suggests that legis-
lation would help "clear the air." Davis even argues that additional
legislation is not necessarily required because police already possess
sufficient legal authority to make rules. Davis seems to place most
of his hope in court-ordered rulemaking.15
The only fully developed proposal for legislatively-mandated
109. See supra notes 30-32.

110. S. WALKER supra note 5, at 229-32.
111. STANDARDS, supra note 32, at 133-39.
112. PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE, TASK FORCE REPORT: POLICE 32 (1967).
113. H. GOLDSTEIN, supra note 16, at 125.
114. K. DAVIS, POLICE DISCRETION, supra note 13, at 107-12.
115. Id. at 121-38.
rulemaking was outlined by Wayne W. Schmidt's State Law Enforce-

ment Administrative Law Council.' 16 This proposal calls for an ap-
pointive body consisting of five law enforcement chief executives
that would "adopt rules of procedure for law enforcement officers
and agencies in [the] state. These rules may implement, clarify, in-
terpret, augment, prescribe or restrict police powers, not' inconsis-
7
tent with law." The rules would "have the effect of law." "1
Schmidt's proposal differs from our proposal in one important
aspect. Whereas Schmidt would centralize rulemaking authority in
one statewide body or office, our proposal would mandate rulemak-
ing by each individual law enforcement agency. The difference in
approach turns on an assessment of the most effective means to po-
lice reform. Rulemaking that is centralized through a state agency
offers the virtue of providing consistency throughout the state.
Given the fragmentation of American law enforcement into nearly
20,000 separate agencies,"18 this is an important consideration. The
decentralized approach proposed here places a higher value on
stimulating the policy-making process within individual agencies.
Davis, Goldstein, Toch and others argue that one of the keys to
long-term police reform is the development of the capacity for self-
governance by law enforcement agencies.' 9 The dynamics of po-
lice reform continue to place the police in a defensive position when
major reforms are proposed by outsiders and resisted or grudgingly
accepted by the police. Centralized rulemaking would perpetuate
this approach to some degree, although mitigated in Schmidt's pro-
posal by the fact that the council would consist of law enforcement
executives. Compulsory rulemaking by each agency, on the other
hand, would stimulate the internal capacity to identify problems,
consider alternatives, and adopt formal agency policies.
2. Federal and State Statutory Precedents

a. FederalLaw. Ample precedent at federal law exists for legisla-
tively-mandated police rulemaking. The most important is the Ad-
ministrative Procedure Act. Davis cites the federal APA as the
primary model for the control of police discretion. 2 ' The constitu-
tional question of whether rulemaking authority can be delegated to
administrative agencies essentially is settled. Given the importance
he attaches to the federal law, it is curious that he does not recom-
116. See Schmidt, supra note 17.

117. Id.
118. U.S. DEPARTMENT OF JUSTICE, JUSTICE AGENCIES IN THE UNITED STATES 7
(1980).
119. K. DAVIS, POLICE DISCRETION, supra note 13, at 142-61; see also H. GOLD-
STEIN, supra note 16, at 117-19; Toch, Mobilizing Police Expertise, 452 ANNALS 53
(1980).
120. K. DAVIS, POLICE DISCRETION, supra note 13, at 142-61.
mend state legislative action more forcefully. Instead he assumes

that the major rulemaking initiative will flow from the courts.
Davis' ambivalence on this point dramatizes the extent that the
growth of administrative law over the past fifty years has by-passed
the police. This result is largely a function of the historic deference
of the legislative and judicial branches of government to criminal
justic agencies. For example, the federal courts did not abandon its
"hands off" approach to prison conditions until the early 1960s. 21
Judicial examination of police practices began with a few tentative
precedents in the 1930s but did not reach full tide until Mapp in
1961.122 Legislative bodies have been particularly reluctant to be-
come involved in the details of police operations. Particular histori-
cal developments reinforced the "hands off" posture. One of the
primary goals of police professionalization in the twentieth century
was the elimination of political interference in police affairs.' 2 ' And
in the 1960s, a majority of mayors and city councils were reluctant
to impose controls on their ' 124
police departments for fear of being
perceived as "anti-police."
b. State Law. Additional precedent exists in state law. The most
important example involves the use of deadly force which has tradi-
tionally been regulated by state statute. No authority has seriously
suggested that states lack the power and responsibility to regulate
this critical exercise of police power.1 25 Current debate turns on the
question of the substance of state law on deadly force. The trend of
law revision has been away from the historic common-law "fleeing
felon" standard toward1 the 26
more restrictive Model Penal Code "de-
fense of life" approach.
State legislatures have also enacted statutes governing other
discrete aspects of policing. The most important recent develop-
ment involves domestic violence. Several states have prescribed po-
lice procedures as a part of general legislation concerning domestic
violence.' 27 This legislation, however, reflects the haphazard, crisis-
management approach to rulemaking. The result is that some states
have rules on police handling of domestic disturbances while others
do not. Domestic disturbances are covered largely because the issue
has a powerful political constituency, while other areas are ignored.
The existence of statutory rules regarding deadly force and do-
121. J. JAcoBs, supra note 2, at 33-60.

122. Y. KAMISAR, supra note 2, at 95-112.
123. See supra note 1.
124. H. JoRIS & P. FEUILLE, POLICE UNIONISM 56-59 (1973).
125. Allen, supra note 33, questions the authority of the police to engage in
rulemaking in the absence of statutory authority.
126. Sherman, supra note 45, at 579-83. See also Tennessee v. Garner, 471 U.S. I
(1985).
127. N. LOVING, supra note 50, at Appendix A2, 134-43.
mestic disturbances raise the question of why all critical areas of po-
lice authority should not be covered by statute. While certainly an
option, this approach suffers a major defect in that it removes re-
sponsibility for rulemaking from local law enforcement agencies.
On this theme, virtually all of the experts agree on two points. First,
internally developed rules are likely to be more effective. Second,
the rulemaking process constitutes 28
an important step in professional
development for the agencies.'
Other areas of state law offer precedent for rulemaking. Virtu-
ally all states now require formal training for law enforcement of-
ficers. 12 9 It logically follows that if states are going to mandate
entry-level standards for policing in the interest of professionalism,
they can (and should) require standards for the exercise of police
authority. Finally, all states have administrative procedure acts that
mimic, to one degree or another, the federal Administrative Proce-
dure Act. This fact establishes clear precedent for required
rulemaking by state law enforcement agencies. Objections to ex-
tending rulemaking to local law enforcement agencies are essen-
tially political rather than legal in nature.
3. The Accreditation Movement as Rationale

The emergence of accreditation in the law enforcement field
also provides support for a legislatively-mandated approach. The
Commission on Accreditation for Law Enforcement Agencies
(COALA), jointly supported by four major professional associa-
tions, has developed a set of accreditation standards and has begun
the process of accrediting law enforcement agencies.13 0 The pres-
ent Standards require rulemaking, although in rather general terms,
and dictate a specific set of rules for the use of deadly force. Stan-
dard 1.2.2 under "Limits of Authority" requires that "A written di-
rective governs the use of discretion by sworn officers."' 13 ' Given
the fact that police departments have been almost completely silent
on the issue of discretion, this requirement represents an enormous
step forward. Unfortunately, it is somewhat non-specific. It is not
entirely clear what this standard covers. For example, does it cover
stop and frisk decisions, the handling of public nuisances, the use of
informants, or other investigative techniques?
Standard 1.2.3 provides more specificity with regard to arrest.
It requires that "A written directive defines the authority, guide-
lines, and circumstances when sworn personnel should exercise al-
128. McGowan, supra note 7, at 676-78; K. DAVIS, POLICE DISCRETION, supra note
13, at 41-46; H. GOLDSTEIN, supra note 16, at 116-24.
129. S. WALKER, THE POLICE IN AMERICA: AN INTRODUCTION 265-68 (1983).
130. See COMMISSION ON ACCREDITATION FOR LAW ENFORCEMENT AGENCIES, AC-
CREDITATION PROGRAM OVERVIEW (1983).
131. Id. at 1-2.
ternatives to arrest and/or alternatives to prearraignment

confinement." 1 2 Five subsequent standards govern the use of
deadly force, but no other areas of police activity are mentioned
specifically.
Given the history of the lack of self-regulation by the police, the
new accreditation movement is an important leap forward. The ma-
jor weakness of this movement is its voluntary nature. A law en-
forcement agency suffers no tangible penalty for refusing to seek
accreditation or failing to meet COALA standards. Significantly,
meaningful penalties do exist for other professions with accredita-
tion procedures.13 3 Post-secondary educational institutions, for ex-
ample, are ineligible for federal financial aid, including the crucial
student financial aid funds, if they are not accredited. In short,
there is no guarantee that the police accreditation movement will
fully achieve its intended goals.
The existence of the accreditation standards, however, offers
one potential short-cut to administrative rulemaking. A state legis-
lature could simply mandate that all law enforcement agencies se-
cure COALA accreditation. The legislation could specify
appropriate timetables for compliance, penalties for failure to se-
cure accreditation, assistance (financial or otherwise) for agencies
that fail an initial review and any other necessary enabling
provisions.
C. The Politics of Police Legislation

Throughout this article discussion has focused upon legisla-
tively-mandated police rulemaking in terms of a state statute. This
approach has the virtue of encompassing all law enforcement agen-
cies in the state and would ensure a high degree of uniformity
among these various agencies. Recogniton of the politics of police
accountability, however, suggests that a municipal ordinance ap-
proach might be more viable.
A proposed state statute would encompass county sheriff de-
partments. Such scope creates a serious political problem. In most
states, the county sheriffs wield enormous political power.' 3 4 As
elected officials, individual sheriffs have their own political power
bases. Additionally, sheriffs as a group tend to be better organized
at the state level than are municipal police chiefs. Finally, state leg-
islators from rural areas are often very responsive to the expressed
concerns of the sheriffs in their districts. In short, a bill for state-
mandated police rulemaking might be easily blocked by politically
powerful sheriffs.
132. Id.
133. W. MOORE, TIE PROFESSIONS: ROLES AND RUiLES 60-61 (1970).
134. S. WALKER, supra note 129, at 38-40.
A municipal ordinance approach offers more hope. On the

debit side, of course, such an approach would forego a rulemaking
requirement for all law enforcement agencies. This would be offset
by the fact that the large cities employ most of the police officers in
the United States and are the setting for the most serious police
problems. More important, the political context of city councils in
big cities today is significantly different than that of state legisla-
tures. In an increasing number of cities a political constituency ex-
ists for instituting meaningful controls over the police. Mechanisms
to review police misconduct have been established in Detroit,13 5 Se-
attle, 3 6 San Francisco, and New Orleans.
Along the same lines, gun control legislation has been far more
successful at the municipal level than at either the state or federal
levels. While the anti-gun control lobby is extremely powerful in
Washington, political support for restricting handguns has consid-
erable support on city councils across the country. 13 7 The same
constituencies may be receptive to administrative rulemaking for the
police.
D. A Model Statute/Ordinance
1. The Scope of Rules
The issue of the scope of mandated rulemaking is problematic.
Two questions present themselves. First, what aspects of policing
should be covered? Second, should the statute dictate the sub-
stance of a particular rule or merely require that some rule be devel-
oped? In either case a legislative body could answer the question as
it saw fit.
With respect to the first question, a statute that mandated
rulemaking for "all aspects" of policing would be overly broad. It
would not distinguish between critical and non-critical areas of po-
licing. This would perpetuate the traditional problem of police
manuals which overemphasize relatively trivial matters of internal
discipline and ignore the important areas of law enforcement policy.
A properly drafted statute would specify those critical areas of polic-
ing where rules are required. Because state statutes already cover
the use of deadly force, it would not be unreasonable to simply ex-
tend the list to cover all police activities which intrude on the liberty
of citizens. These include:
(1) the use of physical and deadly force;
(2) arrest and alternatives to arrest;
(3) stopping, questioning, and frisking citizens;
135. See Littlejohn, supra note 10.
136. Walker, supra note 49, at 144-57.
137. .1. WRIGHT, P. Rossi & K. DALY, UNDER TIE GUN: WEAIPONS, CRIME, AND
VIOLENCE IN AMERICA 247-68 (1983).
(4) the handling of disorders and/or minor nuisances short of

arrest;
(5) the use of all intrusive investigative techniques including in-
formants, infiltrators, electronic surveillance, etc.
The list could be extended as particular legislatures saw fit. For
example, rules might be required for such specific activities as the
handling of juveniles, the mentally ill and public inebriates, labor
disputes, public demonstrations, and so on.
Whether the statute should dictate substantive policy is argua-
ble. State deadly force statutes currently dictate substance. With
other less critical aspects of policing, however, it might be appropri-
ate for the legislative body to defer to thejudgment of law enforce-
ment agencies. This also would allow for communities to establish
their own standards on such issues as the handling of public
inebriates. 138
2. The Rulemaking Process

Following the example of the federal Administrative Procedure
Act, a police rulemaking statue should specify the rulemaking pro-
cess. Minimally, this would include a "notice and comment" proce-
dure allowing interested parties to have an opportunity to
participate in the development of rules. All three of the "blue-rib-
bon" commissions recommended public involvement in police pol-
icy-making. 139
None of the advocates of rulemaking have given much thought
to the details of public involvement in the rulemaking process, apart
from endorsing it as a self-evident benefit. We would suggest, how-
ever, that this idea may prove to be highly problematic. The "pub-
lic" does not speak with one mind on matters of law enforcement
policy. Indeed, virtually all police experts recognize the fact that
one of the fundamental problems in policing is coping with conflict-
ing public expectations. 4 ' Whether public involvement in rulemak-
ing would help resolve these conflicts, if only by making the debate
public, or aggravate them, by polarizing the community through a
process that may encourage public posturing by the advocates of
different positions, is not clear. More attention should be given to
this important point.
We note, in passing, that "team policing" was designed in the
late 1960s and early 1970s to encourage public involvement in po-
lice policy-making.' 4 ' By the end of the 1970s, team policing had
138. D. AARONSON, supra note 33, at 101-52.

139. See supra notes 30-32.
140. H. GOLDSTEIN, supra note 16, at 1-44.
141. See L. SHERMAN, C. MILTON &T. KELLY, TEAM POLICING: SEVEN CASE STUD-
IES (1973).
proven to be a great disappointment. Among other failures, it is not

clear that the goal of public involvement in policy-making was real-
ized. Perhaps the experience has something to teach us on the
questions of public involvement in police rulemaking.
One of the collateral contributions of rulemaking is the involve-
ment of the police in an open policy-making process. Virtually all of
the experts view this as a desirable end. 14 2 Whether such a process
will contribute to enhanced professionalism and a greater degree of
openness in law enforcement agencies is another imponderable.
There have been few attempts to seriously involve police officers in
a planning and policy-making process. One potentially interesting
aspect of this matter involves police unions. As interested parties
they would inevitably participate in any open "notice and comment"
process. This situation creates the possibility that unions would be-
come more active in policy questions apart from the collective bar-
gaining framework. Some authorities have argued that this is a
43
desirable goal.'
3. Compliance Mechanisms
The research on deadly force policies indicates that the
mechanics of enforcement determine the effectiveness of adminis-
trative rules. The problem of compliance should be addressed from
several perspectives.
The first issue is whether the law enforcement agency, or agen-
cies covered by the legislation, developed the required rules. This
can be dealt with by the legislative body through the normal budget-
ing and legislative oversight processes. The second and more diffi-
cult question is whether the formal rules are being implemented. At
least two possible solutions are available. As the deadly force exam-
ple suggests, rules are more likely to have an effect where they are144
accompanied by mandatory reporting and review mechanisms.
While this approach appears to work for the relatively limited
number of shooting incidents, it is not clear that it is practical for
the other more numerous police actions. Another approach is sug-
gested by the Seattle auditing mechanism. Key actors in Seattle
seem to agree that the periodic review of department procedures by
the auditor, an outsider, has a significant effect on the police (some
referred to it as a "sensitizing" effect, others preferred to call it a
"chilling" or "deterrent" effect on potential police misconduct). 4 5
The problem of compliance is one requiring further study. For
142. H. GOLDSTEIN, supra note 16, at 116-24; K. DAVIS, POLICE DISCRETION, supra
note 13, at 41-46.
143. INTERNATIONAL AssociATrION OF CHIEFS OF POLICE, GUIDELINES AND PAPERS
FROM IIE NATIONAL SYMPOSIUM ON POLICE-LABOR RELATIONS 6-7 (1974).
144. Fyfe, supra note 57, at 309-23.
145. Walker, supra note 49, at 153.
the moment the immediate problem is one of launching systematic

rulemaking by the police. The value of rules has long been recog-
nized by virtually every police expert. New evidence suggests that
rules do achieve their desired goals, at least in the area of deadly
force. It is also clear that law enforcement agencies fail to develop
rules in the absence of some compulsion. "Crisis-management"
rulemaking suffers numerous problems. In light of this experience,
legislatively-mandated rulemaking may be the best hope for secur-
ing the full benefits of police rulemaking.

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Controlling the Cops: A Legislative

The effective control of police behavior remains the central

* Professor of Criminal Justice, University of Nebraska at Omaha.

on the exclusionary rule, but we need not "replow" that ground

7. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 423

administrative rulemaking, progress in that direction has been spo-

debate.IS The question now centers on whether the techniques that

II. POLICE RULES: BACKGROUND AND DEVELOPMENT

A. The Discovery of Discretion

18. See infra notes 57-79 and accompanying text.

tration of Criminal Justice was a major turning point in the history

B. The Emerging Intellectual Consensus

24. Newman, Sociologists and the Administration of CriminalJustice, in A. SHOSTAK,

in which guidance is needed to direct agency'3 1employees toward the

III. THE DEVELOPMENT OF MODEL RULES

In response to the emerging consensus several sets of model

31. NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDS AND

(IACP), developed and published A Manual on Police Discretion con-

law enforcement needs."4 °

A. Trends In Police Rulemaking

40. PROJECT ON LAW ENFORCEMENT, supra note 37, at 12.

ered by rules.4 4 Particularly in large urban departments there has

44. On deadly force in general, see Geller, supra note 28.

geles.5 2 Meanwhile, the Watergate-era revelations of spying by the

IV. THE IMPACT OF RULES: THE EMPIRICAL EVIDENCE

The theoretical arguments in favor of police rulemaking were

A. The Case of Deadly Force

adopted a more restrictive firearms policy. Temporary Order of

arms discharge/assault reports filed between January 1, 1971, and

61. Fyfe, supra note 57, at 312.

Fyfe's research on police shootings in Memphis, Tennessee.6 6 In

B. Other Case Studies

1. The Case of Domestic Violence

78. See, e.g., N. LOVING, supra note 50.

of court, the police agreed to develop formal policy statements to

The New York City policy explicitly acknowledges that police

84. N. LovING, supra note 50, at 163-68.

Discharge Review Board consisting of three high ranking officers.8 7

87. J. FYFE, SHOTS FIRED, supra note 57, at 312.

olence" in the space provided for the offense. 9 '

2. The Case of Police Spying

police activity which has recently been subject to controls. The

their intended goals is an open question. Spying is, by definition, a

ful in reducing, if not eliminating corrupt activities. The control

102. Id. at 21.-27. See also L. SHERMAN, supra note 75.

optimism about its viability as a general approach to police reform.

V. THE CASE FOR LEGISLATIVELY-MANDATED RULEMAKING

police as have virtually all of the recognized experts on American

Legislatures can meet this demand by delegating administrative

The President's Crime Commission discussed this possibility in

109. See supra notes 30-32.

rulemaking was outlined by Wayne W. Schmidt's State Law Enforce-

2. Federal and State Statutory Precedents

116. See Schmidt, supra note 17.