Fighting crime requires that we vest police with extensive discretion so that they can protect the public. Unfortunately, the nature of police work makes it difficult to ensure that law enforcement authority is not abused. This challenge 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, this Article suggests that state courts take advantage of the intrastate preemption doctrine, which allows a court to find that a municipality's authority in a particular area has been supplanted by state law, to find that local police officers are barred from engaging in certain law enforcement activities.
While intrastate preemption is often accused of stifling municipal policy innovation, the doctrine has decidedly different implications when applied to statutes implicating police conduct and historically disfranchised groups. In such cases, a finding of preemption may actually 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 police activities that legislators choose to sanction.
Preempting the Police, 55 B.C. L. Rev. 1149 (2014)