By Rachel Harmon

Coercive policing is conducted mostly by means of commanding officers usually cannot use force unless they have first issued an order. Yet, despite widespread concern about force and coercion in policing, commands are both underregulated and misunderstood. Officers have no clear legal authority to give many common commands, almost no departmental guidance about how or when to issue them, and almost no legal scrutiny for many commands they give. Scholars rarely study commands, and when they do, they get them wrong. As a result of vague law and inadequate analysis, basic questions about police commands—what role they play, where officers get authority to issue them, and how law regulates them—remain unanswered. Instead, officers interact with the public in a legal gray zone, a recipe for illegitimacy and conflict. This Article offers initial answers to these questions. First, it explains the constitutivecommands play in policing: Long-standing law dictates that officers usually cannot compel people, including by stop or arrest, without issuing commands that impose new legal duties. Second, it contends that although statutes sometimes authorize specific commands, officers’ authority to issue many orders comes from—and is limited by—officers’ authority to stop, search, and arrest suspects. Third, the Article argues that the legal functions commands serve—namely, generating and communicating legal duties—dictate that lawful orders must satisfy three constraints: They must be authorized by state law; they must obey constitutional limits; and they must provide adequate notice and opportunity for individuals to comply. These constraints are embedded in the law, but few avenues exist for challenging commands. Courts have therefore not defined or enforced limits on command authority well, except when commands violate constitutional rights. Courts can easily do better, and legislative and departmental action could clarify, extend, and enforce appropriate limits on police authority.

Rachel Harmon, Law and Orders, 123 Colum. L. Rev. 1 (2023).

By Katie Bollman

  In less than a decade, body-worn cameras rose from rarity to standard amongst local law enforcement in the U.S. as agencies sought to enhance trust, transparency, and accountability of officers. However, this policing tool also generates large quantities of a new source of data for criminal courts: footage of criminal defendants. This data can provide evidence pertinent to a criminal case, but at a cost of attorney time. Using rich case data from Virginia state courts from 2006-2020 and a new body-worn camera data set I investigate whether local law enforcement adoption of body-worn cameras changes court filings, criminal case dispositions, time to disposition, and other case outcomes. I find evidence that body-worn cameras affect interactions between police and members of the public, but that these effects are restricted to a small subset of cases. Once cases enter the courts, I find that in the aggregate, contrary to expectations, both case processes and resolutions are unresponsive to the influx of data generated by body-worn camera footage.

Working Paper, Michigan State University, 2021. 54p.