“At a time when policing in America is at a crossroads, Barry Friedman provides much-needed insight, analysis, and direction in his thoughtful new book. Unwarranted illuminates many of the often ignored issues surrounding how we police in America and highlights why reform is so urgently needed. This revealing book comes at a critically important time and has much to offer all who care about fair treatment and public safety.” —Bryan Stevenson, founder and Executive Director of the Equal Justice Initiative and author of Just A Story of Justice and RedemptionIn June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected—and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely.Unwarranted tells the stories of ordinary people whose lives were torn apart by policing—by the methods of cops on the beat and those of the FBI and NSA. Driven by technology, policing has changed dramatically. Once, cops sought out bad guys; today, increasingly militarized forces conduct wide surveillance of all of us. Friedman captures the eerie new environment in which CCTV, location tracking, and predictive policing have made suspects of us all, while proliferating SWAT teams and increased use of force have put everyone’s property and lives at risk. Policing falls particularly heavily on minority communities and the poor, but as Unwarranted makes clear, the effects of policing are much broader still. Policing is everyone’s problem.Police play an indispensable role in our society. But our failure to supervise them has left us all in peril. Unwarranted is a critical, timely intervention into debates about policing, a call to take responsibility for governing those who govern us.
This was disappointing. Not egregiously bad at any certain points, but just underwhelming. It had a lot of fair points to be made, but nothing much that really compelled me to take action, or to share something I learned back with a friend. I agree for the most part with everything he presents here, but that doesn't mean it makes for an engaging read. The author just comes across as a lightweight. You'd do better to read Naomi Klein or Glenn Greenwald.
My full formal review won't come out until just before this book is published in February.
The author repeats several times that there are no easy solutions to fixing policing in this country but that we should not avoid issues simply because they are difficult. Yet the author--while laying out example after example of police acting out of control, and acknowledging the blue wall of silence, the common practice of "testilying," and the out-sized influence of the police unions--not only does not point a single finger at actual police officers but both at the beginning and the end goes out of his way to write that the police officers are not the problem. He has other issues he wants to tackle, and he may be correct on those issues. But to completely ignore the role actual police play in this issue and the falsity of "oh it's just a few bad apples," is somewhere between naive to reckless. If he wanted to focus only on other areas, he could have done so in a different manner. But by neglecting to address at all the role actual officers play in fixing the problem of policing in America-going so far as to write, "The real problem . . . is not the police. It is us."-the author is essentially calling his neighbor to tell him that he left his trash cans in the street while neglecting to mention that his house is also on fire. Want to fix policing in this country, let's start with not accepting the blue wall of silence that we know exists, not accepting testilying that we know exists, and not deferring to police unions at every turn who on issue after issue reflexively scream any restrictions/guidelines/oversight will let criminals go free. The other issues discussed in his book are important and even related, but they cannot be instead of addressing the problems with actual police officers who are the ones too frequently forgetting their primary responsibility is to protect the entire community they signed up to serve.
I had forgotten about the flashbang in a baby’s crib… I like to imagine most people against police reform / oversight as quoting Michael Scott saying “Truth be told, I think I thrive under a lack of accountability.“ as part of their daily affirmations ritual.
Unwarranted: Policing without Permission Written by Barry Friedman. A description of Mr. Friedman on Amazon’s website is as follows: Barry Friedman serves as the Director of the Policing Project at New York University School of Law, where he is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics. He is one of the country’s leading authorities on constitutional law, criminal procedure, and the federal courts, having taught, written about, and litigated in these areas for over thirty years. Friedman also is the Reporter for the American Law Institute’s project to write best practices for policing agencies, Principles of the Law: Policing. . . ..
Reviewed by Jules Mermelstein
As you can tell from the description of Mr. Friedman, he is an expert on the subject of police practices. His 449 page book is an excellent, and exhaustively researched, tome on the subject. It demonstrates, both from case history and our theoretical framework as a democracy, that courts should not be the only guide for police work. Like other executive functions in our democratic republic, Friedman argues that policing should have legislatively-approved rules after proper public input. However, Friedman also points out why that generally will not happen on its own. Any rule-setting of police by a legislative body will be described as “tying the hands of the police” by their law-and-order constituency, including the police themselves, or as “letting the police act as an occupying force” by those who want more stringent rules. Generally, legislators tend to stay away from lose-lose issues. That is, unless they are forced to deal with them by events (see the discussion of Ferguson) or the courts (see the discussion of the Utah Supreme Court decision).
Police decide on their own (for the most part) when to use SWAT in a raid (50,000 - 80,000 times per year). Since the Supreme Court has mostly gotten rid of our Founding Fathers’ warrant protection for searches, police decide when to do that. With a population of a little more than 300 million people, police conduct searches of pedestrians and vehicles about 8 million times per year. Note that number does not include searches of homes and workplaces. Police decide when to use deadly force. In 2015, one thousand people were killed by police and about ten percent of them were not armed. Various forms of spying, from tracking our locations by our cellphones, to reading our thoughts by invading our computers, to having drones watch us, and having still cameras track us at intersection, are done with little oversight from elected officials. Officers conduct cavity searches, such as finger anal and vaginal exams, on the side of the road. Some who have been suspected of being under the influence and refuse to urinate on demand have been forcefully catherized. All of these actions are approved by the standards police are applying by themselves, without democratic input from those being policed or the legislative bodies whose duty it is to supervise.
Friedman summarizes the problem well: To put it plainly, policing in the United States—from the overzealous beat cop all the way to the NSA—is out of control. That’s not intended as hyperbole; it’s a careful and deliberate statement of fact. And it is assuredly not aimed at the police, who have an incredibly difficult job to do, often without the support they need to do it. The problem is the rest of us. Call the problem policing without permission.
Going back to the first of the items that might cause legislative bodies to get involved, events, we all saw what happened after Ferguson. Residents exercising their First Amendment rights to protest what they perceived as racial prejudice in the policing done by their officers were faced with massive amounts of military equipment. Snipers stared down military weapons. Tanks were in the streets. This caused many legislative bodies to act by requiring rules on such use. Whether the state legislatures acted to set the rules, or whether they said the use of such equipment had to be based on rules set by the municipality in which the police were located, at least it caused some action.
A better way, especially for us in the legal profession to argue to courts, or for judges who might be reading this, might be to follow the example of the Utah Supreme Court.
In Utah v. Sims, Mr. Sims was caught in a roadblock. Sims smelled of alcohol and an officer saw an open container of alcohol in the back seat of the car. After the officer’s request, Sims permitted the officer to search the inside of his car. The officer found the remains of joints in the ashtrays and asked for permission to search the trunk. Again, Sims consented. In a suitcase in the trunk, the officer found bags of marijuana. Sims at this point refused any further search but the officer, believing he had probable cause, continued. In the spare tire area, he found a kilogram of cocaine. Normally, this would be open and shut case. It was a roadblock in which everyone was being stopped. Suspicion was raised by what the officer smelled and saw when he was lawfully standing outside Sims’ car. Sims gave permission for searches until the officer found enough for probable cause. However, the Utah Supreme Court throughout the search and the evidence.
The reason? A lack of “political accountability” -- there was no legislative authorization for this type of roadblock. What the Utah court basically said was, before they can evaluate the constitutionality of police action, first there has to be some authorization by a legislative branch for the action. If there is none, then it was not done under authority of law.
This two-step process seems to be the best approach to stimulate needed legislative decisions. First, is the action authorized by law? If not, it’s not legal. If yes, then, second, is it constitutional?
There is simply not enough space for me to discuss all of the points Friedman makes in this tome. Suffice it to say that if you advise the police, or are a criminal defense attorney, or a member of a legislative body, or a judge, this book should be on your “must read” list.
In Unwarranted Friedman addresses the battle between police and government agencies rights to do searches using advanced technology versus our rights to privacy as citizens with inalienable rights. Much of it focuses on the stretching of reasonable cause, sampling, and other age old legal questions, but the new technology available to the policing agencies has hyper-powered the capabilities of the policing agencies and in the process trampled many citizens rights to privacy.
This book should be read by all law students, law enforcement professionals, civil servants, and citizens. It's GROSS how policing is done today. Harassment isn't protection.
You know it's been over a year since I had read a book and I've been a prolific reader before but I just haven't had time to get back to it and the protests over George Floyd and what happened to George Floyd really led me to want to dig into the issues of both police reform and police power more. Coincidentally at the same time my eye caught a book that got into both sides of this issue...and that book is this one. The book itself is disturbing. Because if you are in the majority of this country that believes the murder of George Floyd was wrong...you have one place where you have to start looking at its not comfortable...the mirror. Because as this book points out correctly. The reason why police departments often get into force we see as excessive is because we as citizens don't hold them to rules. In fact jurisdictions as the book points out most rules and policies for police officers are set by...wait for it...the police. Now we do have state laws. We do have a constitution. But who decides how warrants get executed? When a police officer should use a tazer? When should they use deadly force? The police departments do (in most cases). Courts as an aside are not in a position to make new laws only in a position to cure when a law is violated by a government...AFTER a violation. So courts as a remedy aren't reliable. Also factoring into this is technology where the law & courts have lagged far behind. Most federal courts rely on laws relating to the Internet that were written almost twenty years ago. They can't keep up. So its up to citizens to advocate for rules for police and their conduct. Without that advocacy laws and rules are being applied in a vacuum. And that system is going to be abused inevitably as we have seen. The other reality in this book is that we have put TOO MUCH on police departments. We have staffed out a lot of social services to police departments when they shouldn't be doing all that heavy lifting. You want the cops to be there to restore order. Period. But the cops today are truant officers, dealing with those on parole, dealing with the homeless, dealing with many functions of society that could be done by social workers...if we made investments where we cut back. If you want a police force to be better let them focus on what we want them to do. Not cleaning up every other problem in society. It starts with us as a solution...
“don’t trust in the good faith of the executive branch - get a warrant”
there was a lot to like about this! 1. Governance vs. Discretion: I think the debate over policing gets caught up on whether individuals are moral actors(ACAB or not), but I think this is the root of the issue. Institutionalized power cannot sustainably be wielded by individual discretion. This is the clearest articulation of it i’ve seen in anything i’ve read, and I feel like it gives fair credence both to the difficulty of policing without clear guidelines and to public frustration about how that discretion is employed.
2. Transparency and Accountability: It’s baffling how poor the data availability is for such critical conversations. We cannot make and evaluate policy without data, and it’s absurd that surveillance only seems to work one direction. I think Friedman does a great job addressing how critical this issue was.
3. Analyzing Incentives: Reform is a difficult subject because no one wants to be the one to be tough on the police instead of tough on crime. One thing Friedman almost unintentionally emphasized is that for judiciaries to regulate policing, they must make judgments that allow a guilty party to walk free. That’s a steep price to pay. I do think he goes pretty easy on legislatures, especially when governance and policy is ultimately their responsibility.
4. Acknowledging the Costs of Reform: It’s difficult to think that if we want policing to be different, whether that be because we’re concerned about discrimination or because we are concerned that our civil liberties are contingent upon the “good faith” of the executive branch, that it will likely cost us something in efficacy. I liked the repeated emphasis on the cost of reform and the CBA to say it’s worth it anyways.
It’s just a well thought out book that was very well researched, make a rather unique case on a topic inundated with ideas, and engaging to read. What more could ya ask for?
This is a very timely book for our modern age of instant information. We all assume we have a right of privacy, but this is neither directly supported by the Constitution, nor by the Courts.
This work is a great contemporary study of the right of privacy as viewed through the actions of the police and the law enforcement process. Most people do not truly understand the limits of the Fourth Amendment. Indeed, many lawyers, unless they are actively practicing in the field of criminal law, do not truly understand its limitations, nor our powerlessness in the face of court opinions regarding the use of police power to search and seize information about you and your lifestyle.
Anyone who is a savvy surfer of the internet is aware that there are no secrets from those who know where to look. This book is still an eye-opener for those who have not considered how deep into our lives various branches of law enforcement may go.
This book discusses the very important question of how deep should the government be allowed to go? What actually constitutes a search or a seizure? What are the limits of the Fourth Amendment in producing information, and how does this (and how should this) compare with the information which may be unearthed by a subpoena alone? What oversight should the courts have, and when is probably cause a necessity, instead of only a suggestion.
This is must reading in this age of social media where people voluntarily surrender any privacy for their fifteen minutes of fame. It also makes you look again at what is a voluntary surrender of information, rather than that which we are compelled to disclose just to continue to access services which many consider essential.
Unwarranted is a great overview of the state of state surveillance in the United States. Friedman chronicles how the current state of surveillance is a result of ineffectual courts and law enforcement's self regulation without input or oversight by the public that law enforcement is meant to serve. The outcomes are unconstitutional, immoral, and/or unethical police conduct with little incentive to change behaviors once the conduct is observed.
Friedman's solution to unwarranted police conduct is essentially transparency and nondiscriminatory surveillance. Transparency for the enforcement practices employed and surveillance without singling out a particular segment of society.
This book is an excellent read to understand why the government is able to conduct its surveillance practices and what solutions we citizens can advocate for to rein in this widespread surveillance.
This is an exhaustive review of all of the different ways in which policing has gone astray, from Terry through the vacuuming up of metadata. Friedman argues that our traditional approach to police reform (court cases, commissions, body cams, etc.) miss the opportunity to really reform police by treating them the way we do other portions of the Executive branch, imposing legislative boundaries and public comment and review. Arguing that Courts have done an especially bad job of reining in police, Friedman makes a convincing case that city/county councils and state legislatures should step into the breach and set guidelines for, or open pro-active public comment about, use-of-force, warrant applications, etc.
This is a relatively novel approach and could make a huge difference if more legislators start following Friedman's thinking.
A damning recount of modern policing that deserves — no, needs — to be read. Although the book can be dry at times, it does more than its fair share at showing instances in which modern policing and surveillance has surpassed boundaries envisioned by the constitution. Regardless of your views on the police — I tend to be a supporter — it's hard to argue with the positions in this book and clear erosions of civil and personal liberties. Perhaps most emblematic was the part about fourth amendment rights and catheterization, which could warrant its own book on illustrative examples of failed governance.
It was a good book that detailed the history of policing and connecting it to modern struggles with overuse of policing. I just wish the author paid more attention to racial issues, but he's white, so that's bound to not happen. Still, a good book to encourage those to consider how positive community policing can actually be. He does meet you where you are and challenge you beyond a point covering all areas one could cover.
A bit long winded for an audiobook (for my tastes), though it thoroughly explains systematic and structural reasons policing is broken. In a nutshell, lack of judicial or legislative or community oversight enables abuses. Other reviewers have correctly pointed out that this book does not blame policing as an institution or police as individuals as for these failures, and maybe it should.
Lots of great information in this book but really was full of depicting stories throughout history. I get the author was trying to get a point across. Could have been more efficient. Good read none the less.
I enjoyed this book. I am not sure it is for everyone. It is about policing and how it got out of control. It is well written. It is not beach reading. You need to be focused.
First impressions, as I'm not done yet...It takes on too much. I think it should have left out or just given a mention to the issues of wiretapping and data collection stuff and focused on the policing the police do. That is the book's stronger parts.
Finally finished. It was interesting, but dry reading especially the sections with lots of case law. The epilogue was really interesting to realize the book was planned so long ago and how it changed along the way. But, the biggest change was ignored and that is that now the courts will be so much worse than they have been and the hopes for improvements are much less likely than before.
Update: A week later and I'm still frustrated by this book. The topic is so important. I saw a discussion about Evicted and realized that this book needed more focus on the human stories, not the court details. The one that sticks out in my mind is the Florida man's business that was destroyed because of a police mistake, it could have used a lot more details. There were a couple of personal stories that should have been the main focus.
Unwarranted is filled with stories of ordinary people whose lives were sundered by policing gone awry. It's an overview of how normal get are caught up at times because of the mass surveillance of society. Policing is not longer about following leads on the street, it's about reviewing surveillance tape in the area.
Warrant-less wire taping, street light cameras, cameras in malls and everywhere, all controlled by the government. And the police moving towards a more militarized state. The repercussions of this can be grave but government continues to move this direction and the courts have not upheld civil liberties when cases have been brought before them, rather they have mostly supported the expanding police state.
This is an important book that should be read and thought about. Some of the stories in here will cause your jaw to drop and leave you angry if you put yourself in the position of the citizen involved.
"We are the police" says author Barry Friedman. By that he means the police are the public and the public are the police. What policing needs is democracy: popular engagement followed by decision making.
A first step in democratizing the police is public input on excessive force policy. But that's just the tip of the iceberg. We also need community input to examine what is going in with SWAT raids, illegal surveillance, policing for profit, searches without warrants, searches without probable cause, discriminatory searches, racial profiling, implicit bias, body cams, lack of transparency, over militarization, and the list goes on. He cited Denver as a major violator with SWAT raids.
But the only way we are going to get democratic policing is for the public to get more involved and reign in the out-of-control police departments. It is our obligation as citizens to take responsibility. And we must do it now.
I recommend this book to anyone interested in police accountability, ending mass incarceration, racial profiling. Then join me and others in the Denver Justice Project as we demand a more democratic method of policing.