Yale L.J.: “The Ostensible (and, at Times, Actual) Virtue of Deference” to police expertise

Anthony O’Rourke, The Ostensible (and, at Times, Actual) Virtue of Deference, Yale L. Journal (Nov. 30, 2021), at note 36:

For example, Lvovsky observes that constitutional rules centered on accuracy, such as assessments of probable cause and reasonable suspicion, may provide occasion for judges to defer to police officers’ assessments of the situations they confront. One might regard the invocations of good police work in State v. Elenki and Nettles v. State as endorsements of this proposition. In Elenki, the dissenting judge argued that good police work required police officers to rely on their “commonsense judgments and inferences about human behavior” to determine whether they have reasonable suspicion to conduct an investigative stop. Similarly, in Nettles, the court praised a police officer’s good police work in the course of explaining that the “trained law enforcement officer[]” was entitled to deference in his assessment of whether he had reasonable suspicion to pursue and stop a fleeing defendant.

These paeons to good police work seemingly reflect the assumption underlying Fourth Amendment doctrine that deference to police expertise will yield more accurate assessments of whether a stop was lawful. This language may offer a clue that the judges’ underlying motivation is that they simply value expertise for its own sake. But such language is not sufficient to publicly justify ruling against a criminal defendant.

In this respect, Lvovsky’s account of expertise as a good in itself is distinct from the other understandings of expertise that she delineates. She outlines a remarkable and compelling account of how judges’ professional identities shape their attitudes toward policing. However, her account fails to decouple actual explanations for judicial decisions from the public justifications for those decisions.