Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing

Abstract

The advent of community and problem-oriented policing – the so-called "quality-of-life" policing philosophies – raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an alternative to the facial invalidation of reasonably specific public order laws, Livingston proposes political and administrative measures to manage police discretion in the community policing era.\nLivingston begins by examining the emergence of the new, more preventive policing with its focus on ameliorating problems of neighborhood disorder. In communities that may elect to address quality-of-life concerns, she argues that police will sometimes need new legal authority – thus raising the question whether police can be granted the authority to address minor street misconduct within current constitutional constraints. Livingston argues that some courts have extended the vagueness prohibition beyond its stated concern with indefinite laws that encourage arbitrary and discriminatory enforcement to deal with the broader issue of police discretion in order maintenance. She contends that the invalidation of public order laws can never be an adequate solution to the problem of police discretion and that communities should not be prevented from employing an amalgam of civil, criminal, and administrative law to authorize police to perform order maintenance tasks. When these new public order laws are not facially aimed at rendering some people outsiders to the community, but are instead directed at setting behavioral standards in the interest of making a community's public life possible, courts should not invalidate them.\nAs an alternative to courts' intervention, Livingston argues that political and administrative mechanisms should be employed to manage police discretion in the community policing era. The author argues, in particular, for enhancing community-police reciprocity as a means of helping to ensure that police discretion is exercised for the benefit of the community. She argues for renewed attention to political controls on the police and for more neighborhood involvement in the nomination of policing problems. She suggests that police departments formulate guidelines to inform the exercise of police discretion. Finally, she argues that internal and external monitoring mechanisms be used to obtain information from the community about the policing services being provided and the satisfaction of local residents with these services.

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