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88 Tul. L. Rev. 847 (2013-2014)

handle is hein.journals/tulr88 and id is 911 raw text is: TULANE LAW REVIEW VOL. 88 MAY 2014 No. 5 Policing Facts Seth W Stoughton* The United States Suprme Courth understandmg ofpolice practces plays a simficant role in the development of the constitutional rules that regulate officer conduct. As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt; the Court discusses the environment in which officeis act describes specific police practices, and explains what motivates officers. Yet the majority of the Court factual assertions are made entirely without support or citation, rsing concerns about whether the Court is acting based on a complete and accurate perweption. When it comes to polichig facts, the Court too often gets it wrong. This Article explors the influence that the Courth conception of polichig has on the creation and modification of constitutional nons. It demonstrates that misundestandigs about law enforementhave led to constitutional rules that fail to ahgn with the world that they were designed to rgulate. Confusion about the facts upon which a rule is built creates a gap between the conceptual justifcation of the rule and its practical consequences, between the effect that the rule was intended to have and the effect it actualy ha. Thus, misalignment results in the under- or overrgdation of officer behavior an4 corespondngly the under- and overprotection ofliberty and pivacy inteests. This observation offers one explanation for why the Courts constitutional pronouncements often fal to have the anticipated result Having identified the effects that follow frm basing a rule on a faulty factual prmise, I explore ways to narrow the gap. When constitutional rules are predicated on emprical information, a mor accurate understanding ofpolice pactices will better align those rules with reality leading to both more prcise constitutional rule making and mom efficacious liberty protections. * © 2014 Seth W Stoughton. Assistant Professor, University of South Carolina School of Law. I am indebted to Amna Akbar, Josh Bowers, Darryl Brown, Michael Coenen, James Coleman, Anne Coughlin, Elisabeth de Fontenay, Seth Davis, Avlana Eisenberg, Anne Fleming, Jacob Gersen, Lauryn Gouldin, Carissa Hessick, Sharon Jacobs, Nicola Lacey, Adriaan Lanni, Paul MacMahon, William Magnuson, Michael Morley, John Muller, Leah Plunkett, Carol Steiker, Matthew Stephenson, Jeannie Suk, Susannah Barton Tobin, and Sandra Thompson for their thoughts and suggestions. I am thankful for Jessica Gorman's research assistance and for the editorial work of the Tulane Law Review. As always, I am deeply grateful for the support of Alisa Stoughton. 847

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