STATE REMEDYS TO PULL OUT THE TEETH OF FASCISTIC LAW ENFORCEMENT
10 CURRENT FACTS ABOUT US POLICING
Ten examples below are current law or current federal data. Together they divide into two categories: what officers may legally do to us, and what the courts have so far declined to make officers do for us. To be clear, a list of grievances without a remedy is not helpful so this article ends with a remedy: four reforms state legislatures have already proven they can pass.
POLICE TRAINING AND BEHAVIORS
A department can reject an applicant for scoring too high on an intelligence test, and a federal appeals court found nothing unconstitutional in the practice. When Robert Jordan scored a 33 on the Wonderlic cognitive ability exam, well above the scores typical for patrol applicants, New London, Connecticut declined even to interview him, because the city considered only candidates who scored between 20 and 27 on the theory that high scorers grow bored and quit. The policy survived rational basis review, the Second Circuit held in Jordan v. City of New London (2000), and the decision has never been disturbed. The Constitution sets no minimum for the judgment, education, or intelligence of the people we arm and send into our homes, yet at least one city successfully defended a maximum.
Whatever the entrance exam misses, the academy has little time to fix, because training an American police officer takes less time than licensing the person who cuts our hair. Basic training at state and local academies averaged 806 hours in 2022, which comes to about twenty weeks, per the Bureau of Justice Statistics Census of Law Enforcement Training Academies, while cosmetology licenses in most states require somewhere between 1,000 and 1,500 hours. Germany trains its officers for a minimum of two and a half years before they patrol alone, and Finland requires a three year degree from its Police University College, which leaves the American figure short of both. The distribution inside those 806 hours matters as much as the total, since recruits averaged 73 hours on firearms skills and 51 hours on criminal and constitutional law, per the same census, which means the typical academy spends more classroom time teaching a recruit to shoot than teaching that recruit what the Constitution allows.
Officers are not even required to know the law those hours are supposed to teach, and the Supreme Court has said so directly. A North Carolina officer stopped a car over a single broken brake light even though state law required only one working lamp, so no violation had actually occurred, yet the stop went forward, a consent search followed, and the car’s owner ended up with a felony cocaine conviction that the courts refused to overturn. A reasonable mistake of law can justify a seizure, the Court held eight to one in Heien v. North Carolina (2014). The rest of us are still governed by the old maxim that ignorance of the law is no excuse, and officers received a different rule, written by the same Court that wrote ours.
We can be handcuffed, booked, and jailed for offenses that carry no jail time at all. Gail Atwater was driving her two children home in Lago Vista, Texas when an officer arrested her for a seatbelt violation, an offense whose maximum penalty was a fifty dollar fine, and she was handcuffed in front of her kids, driven to the station, booked, and held in a cell for about an hour until she posted bond. The Fourth Amendment permits a full custodial arrest even for a fine-only offense, the Supreme Court held five to four in Atwater v. City of Lago Vista (2001), and the majority described what happened to her as involving gratuitous humiliations and pointless indignity before upholding the arrest anyway.
Staying silent does not invoke the right to remain silent, which is the kind of sentence that sounds wrong until we read the cases. A Michigan suspect sat nearly mute through almost three hours of questioning, and when he finally gave a one-word answer, that word counted as a waiver because he had never expressly invoked the right, the Supreme Court held in Berghuis v. Thompkins (2010). Texas prosecutors then used a man’s silence during voluntary, pre-arrest questioning as evidence of his guilt, and the Court allowed that too, in Salinas v. Texas (2013), because he never spoke the invocation aloud; even the words “Maybe I should talk to a lawyer” had already failed as too ambiguous in Davis v. United States (1994). The working script therefore has two sentences and no improvisation: I am invoking my right to remain silent, and I want a lawyer. After that comes actual silence, because answering a question an hour later can count as a waiver of everything the script just protected.
The precision demanded of us in that interrogation room does not bind the officers across the table, because police can lie to us outright, and the Supreme Court approved the practice more than half a century ago. Detectives in Oregon falsely told a murder suspect that his cousin had already confessed, the suspect then confessed himself, and the confession stood, the Court held in Frazier v. Cupp (1969), which remains good law today. Under it, officers can invent eyewitnesses who never existed, cite DNA evidence no lab ever produced, and describe a failed polygraph that was never administered. The tactic works, which is the problem, because it works on the innocent too; incriminating statements or outright false confessions appear in roughly 29 percent of the DNA exoneration cases documented by the Innocence Project. Ten states, beginning with Illinois in 2021, have barred deception in interrogations of minors, and the list now includes California, Colorado, Connecticut, Delaware, Indiana, Nevada, Oregon, Utah, and Virginia, but for adults the lie remains legal almost everywhere. People with intellectual and developmental disabilities are demonstrably susceptible to false and coerced confessions, and so far the statute books barely acknowledge it: Illinois extended its ban in 2024 to cover people of any age with a severe or profound intellectual disability, a Pennsylvania bill covering intellectual disabilities and autism advanced out of committee this spring, and the other forty-eight states require nothing.
When officers do break the law, qualified immunity protects them unless a prior court case already condemned nearly identical conduct, and the precision demanded of that match would be funny in any other context. The doctrine appears nowhere in the text of the Civil Rights Act of 1871 that it limits; the Supreme Court constructed it across a series of decisions, and the modern version dates to Harlow v. Fitzgerald (1982), whose test asks whether the precise violation was clearly established in existing precedent before the officer committed it. Consider what that requirement produces. Officers accused of stealing more than $225,000 in cash and rare coins while executing a search warrant kept their immunity because no earlier decision had established that stealing seized property violates the Constitution, the Ninth Circuit held in Jessop v. City of Fresno (2019), and the Supreme Court declined to review the case; a Nashville officer who released a police dog on a burglary suspect who said he had surrendered and was sitting with his hands raised kept his immunity as well, because the closest precedent involved a suspect who had been lying down, the Sixth Circuit held in Baxter v. Bracey (2018). The difference between sitting and lying down decided the case.
Governments can take our property without convicting us of anything, and the proceeds fund the agencies doing the taking. Civil forfeiture proceeds against the property rather than the owner, which is how case names like United States v. $8,850 entered the law books, and because the action is civil, the protections we associate with criminal court, appointed counsel among them, generally do not apply. States and the federal government forfeited at least $68.8 billion between 2000 and 2019, a figure the researchers describe as a drastic undercount because many states report incomplete data, per the Institute for Justice report Policing for Profit, and in 2014 the net receipts of the federal forfeiture funds reached $4.5 billion while the FBI put nationwide burglary losses at $3.5 billion, which means federal forfeiture alone took more than every burglar in America combined, an analysis The Washington Post published in 2015. At least four states, Maine, Nebraska, New Mexico, and North Carolina, have eliminated the practice by requiring a criminal conviction first, and most of the rest have declined to follow them.
Officers fired for misconduct get hired by other departments, and we know this because two law professors counted. Matching employment records for every full-time officer in Florida across three decades, the researchers found roughly 1,100 previously fired officers working in the state in a typical year, about three percent of the workforce, and those officers clustered in smaller agencies with fewer resources, where they proved more likely than their peers to be fired again or accused of moral character violations. The findings appear in The Wandering Officer, published in the Yale Law Journal in 2020, and no binding national system exists to interrupt the pattern, since the National Decertification Index depends on voluntary state reporting and a department that prefers not to ask is free not to.
After nine entries describing what the law permits officers to do to us, the last one describes what the law requires officers to do for us, and the answer, with one exception we will get to, is nothing. Two women in a Washington, D.C. rowhouse called police twice while intruders attacked their roommate downstairs, and after officers knocked once and left, the assaults continued for fourteen hours; the survivors sued and lost, because government owes police protection to the public at large rather than to any particular person, the D.C. Court of Appeals held in Warren v. District of Columbia (1981). The Supreme Court reached the same result for a boy beaten into permanent disability by his father despite repeated reports to authorities, in DeShaney v. Winnebago County (1989), and again for a mother whose three daughters were murdered after police declined to enforce her restraining order, in Town of Castle Rock v. Gonzales (2005), and after Parkland the federal courts applied the identical logic to the school officials and the armed deputy who stayed outside during the shooting, in L.S. v. Peterson (11th Cir. 2020). The exception covers people in custody, which means the Constitution obligates police to protect us only after they have taken our liberty away. Nothing in those rulings stops a legislature from writing affirmative duties of its own, and a dozen states plus the District of Columbia did exactly that within a year of George Floyd’s murder, requiring officers to intervene when a fellow officer uses excessive force, with penalties that range from decertification to criminal charges. The phrase protect and serve began as a winning entry in a 1955 Los Angeles Police Department slogan contest, and in the seven decades since, no court has given it legal force.
CONSENT SEARCHES
Consent searches require our consent, and officers have no obligation to tell us we can refuse, per Schneckloth v. Bustamonte (1973), which means the sentence “I do not consent to any search” is invaluable, violates no rules, and preserves our rights.
STATE LEGISLATURES CAN CHANGE POLICING MAKING IT RESPONSIVE
The pattern across all ten is consistent: courts wrote broad permissions for state power and narrow paths to accountability. Nearly every remedy that exists so far came out of a state legislature: Illinois wrote the first juvenile deception ban in 2021 and nine states followed, Colorado removed qualified immunity as a defense under state law in 2020 with New Mexico following in 2021, and New Mexico had already abolished civil forfeiture entirely back in 2015. Laws like those get written when enough of us learn the facts and apply them.
The state wrote these rules down. The least we can do is read them.
Reading is step one, and step two takes about ten minutes. Every one of us has state legislators, findable by address in under a minute, and each of them can be asked for a clear yes or no, on the record, to four questions: 1. will you support a ban on police deception in interrogations of juveniles and people with developmental disabilities, 2. will you support a criminal conviction requirement before forfeiture, 3. will you support removing qualified immunity as a defense under state law, 4. will you support a statutory duty for officers to intervene and report when a fellow officer uses excessive force. Ask by email, by phone, or at a town hall, and treat silence as an answer too. Following up after a non response or a form letter can be very impactful. Ten states have banned law enforcement intentionally misleading minors, and Illinois went a step further and added protections for individuals intellectual disabilities, at least four states require a conviction before forfeiture, two have removed the immunity defense, and at least a dozen require intervention, which means every legislature in the country still has at least one of the four left to pass, and it might as well start with ours.
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