Unwarranted by Barry Friedman, review by Bruce Jacobs
To get a feel for the state of U.S. policing, one need only look at images of heavily armed Boston police in armored BearCats swarming their sheltered-in-place city during the 2013 bomber manhunt. Or watch 2014 footage of police in Ferguson, Mo., lined up in SWAT body armor and riot helmets, brandishing assault rifles and flash-bang grenades behind military MRAP vehicles to face off against citizens. How did Andy Griffith turn into Sylvester Stallone? In Unwarranted, a measured, commonsense, sometimes even breezy study of current policing, New York University School of Law professor and noted constitutional law pundit Barry Friedman (The Will of the People) reminds us: "The authority to use force on citizens and to conduct surveillance of them... are the most awesome powers we grant any public servants.... The real problem with policing is not the police; it is us."
Like the lawyer he is, Friedman presents his argument as if addressing a jury. He works his way through the fundamentals of the Constitution and Bill of Rights with focus on the Fourth Amendment ("unreasonable searches and seizures") and case law precedent, and does so with a sprinkling of history, real-life incidents of intrusive policing (and not just those that make headlines), statistics and even reasoned opinions contrary to his. At its core, Unwarranted celebrates the power of the Constitution to protect all, especially when many are fearful for their well-being and security: "The Constitution is not at war with our safety; properly understood, it is integral to it."
Friedman acknowledges that many factors caused our policing to go off the rails, but much of the shift in focus from reactive "finding the bad guys, and locking them up" to proactive "deterring anyone from even thinking about committing a bad act" he attributes to Nixon's War on Drugs and the post-9/11 Patriot Act, which effectively condoned almost any government intrusion in the name of eliminating drug use and terrorism. Step by step he addresses the increasingly invasive tools used by police, including no-knock searches, blanket subpoenas, profiling, stop-and-frisk, airport security, roadblocks, DNA testing, cyber-surveillance, SWAT teams with military-grade gear, StingRay cell phone monitoring and ubiquitous CCTV. Many of these have been incorporated into policing without explicit authorization from the people being policed.
Frightening as Unwarranted sometimes is, Friedman's analysis is not without hope and concrete suggestions. He puts much of the burden on courts to take a firmer stand prohibiting police from bending the Constitution without specific authorization from legislatures. Elected representatives also need to step up and draft laws that directly outline the allowed rules for enforcement rather than turn these decisions over to appointed agencies. The police must be more transparent and willing to take direction from citizens. But, in the end, Friedman returns to his main point about democratic policing: "We are the police--each and every one of us--and we are responsible for the turns policing takes." Unwarranted is an accessible and important book at a time when a police force armed to the teeth and a vast government surveillance network have become the norm.
Bruce Jacobs's review first appeared in Shelf Awarenes.