The challenge of regulating police discretion is exacerbated by the fact that a great deal of questionable police activity exists in the legal shadows—unregulated practices that do not violate defined legal limits because they have generally eluded both judicial and legislative scrutiny. Local law enforcement strategies, like the maintenance of unauthorized police DNA databases and the routine practice of initiating casual street encounters, threaten fundamental notions of a free society but have largely failed to elicit a judicial or legislative response. This Article argues that, instead of establishing a floor for impermissible police misconduct and then ceding responsibility to the legislative branch, state courts should become more interventionist—prodding legislators to provide greater guidance about police activities that they condone by forcing them to explicitly endorse questionable police practices. Accordingly, state courts should use the intrastate preemption doctrine, which holds that state law can supplant municipal authority, to find that local police officers may not engage in certain activities. Rather than stifle municipal policy innovation, a finding of preemption can precipitate a policy debate that engages both legislators and the electorate in evaluating police activity. This “information-forcing” approach can promote a more democratic dialogue about police practices, provide stronger protections for the community, and confer greater legitimacy on the police activities that legislators choose to sanction.
David M. Jaros, Preempting the Police, 55 B.C.L. Rev. 1149 (2014), https://lawdigitalcommons.bc.edu/bclr/vol55/iss4/4