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

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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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