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58 Howard L.J. 521 (2014-2015)
Challenging Police Discretion

handle is hein.journals/howlj58 and id is 541 raw text is: Challenging Police Discretion ERIC J. MILLER* I. INTRODUCTION Law enforcement officials have tremendous discretion to deter- mine the amount and style of policing that occurs in their jurisdiction.' They decide which crimes or suspects to pursue, which communities or locations to target for policing, the best methods to prevent or re- spond to crime, and how best to balance prevention and detection.2 These policy decisions have a tremendous impact on the public. Police policy renders the public liable to be targeted for surveillance or ques- tioning, and stopped, searched, handcuffed, arrested, jailed, or even shot.' Policing decisions inevitably distribute these resources across communities.' Police policy may direct law enforcement officers to in- terfere with some people rather than others, more intensively or inva- sively, based on where they live or how they look as much as how they act or whether the police have specific information to suspect particu- * Professor of Law, Loyola Law School, Los Angeles. Thanks to Professors Josephine Ross and Lenese Herbert for inviting me to participate in the Taslitz Galaxy Symposium, and to all the other participants for a wonderful conference honoring the memory of Professor Andrew E. Taslitz. Thanks as well to Alexandra Natapoff, Samuel H. Pillsbury, Mario Barnes, Jennifer Chacon, Sharon Dolovich, Kaaryn Gustafson and Richard M. Re for their comments on earlier drafts. 1. See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) (noting law enforcement policy making is the special function of the executive and they have broad discretion in setting police policy). 2. See generally Carol S. Steiker, The Limits of the Preventive State, 88 J. CRIM. L. & CRIM- INOLOGY 771 (1998) (discussing preventative policing practices). 3. See, e.g., Mueler v. Mena, 544 U.S. 93 (2005) (holding that police may handcuff suspect while searching her house); Armstrong, 517 U.S. 456 (affording law-enforcement wide discretion over the range of crimes to target for policing); Terry v. Ohio, 392 U.S. 1 (1968) (holding that police may stop and frisk a suspect if they have reasonable suspicion to believe the suspect is engaged in criminal activity); Tennessee v. Garner, 471 U.S. 1 (1985) (when case is found insert case in order by date of decision in reverse chronological order with all other cases in footnote) (holding police may shoot a suspect so long as they use of force is proportionate to the crime committed). 4. Nirej S. Sekhon, Redistributive Policing, 101 J. CRIM. L. & CRIMINOLOGY 1171, 1186 (2012). 2015 Vol. 58 No. 2 521

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