Yesterday, my students and I discussed perhaps my favorite jurisprudential debate in the law – whether legal doctrines should generally be structured as rules or as standards. 

Rules are clear, bright-line tests that are transparently applied with little to no discretion, meaning they can be applied fairly to everyone and predicted in advance.  The age of consent, for example, is a rule.  Regardless of someone’s level of maturity (or immaturity), the age of consent clearly and predictably can be determined for each person. 

Standards allow for more individualized, case-by-case determinations that use a more amorphous test, such as whether someone fell below “the ordinary care of a reasonable person” in the negligence standard.  In most cases, juries will apply this standard on a case-by-case basis, less predictably and sometimes less fairly, as there is room for each judge or jury to exercise discretion and thus situations where like cases will not be decided alike.  This sacrifice of fairness does have the benefit, to some, of allowing individualized determinations that impart a sense of justice in each case. 

I believe everyone is either more of a rules person or more of a standards person, although some jurisprudential contexts lend themselves better to rules and some to standards.  I am generally a rules person, although much of Tort law is framed as standards.  There are exceptions.  The question of whether we have a duty to others is often a legal rule for the judge, not the jury, to decide. And when a judge dismisses a case on summary judgment, a legal rule/precedent is often set about what cannot meet the legal standard, such as behavior that does not fall below the standard of ordinary care as a matter of law and thus cannot subject defendants to liability.

Take this quiz to see where your predilections lie:

QUIZ:

• In the state of Goldbergia, the statute of limitations for filing a negligence lawsuit is three years.  Plaintiff, who may or may not have a meritorious case, becomes quite ill right before the three-year deadline and sues one day after the three years has elapsed.  What should judges do?
  1. Adhere to the deadline.  This way, all defendants can know exactly when they can have finality, and no longer be subject to suit.  Plus, the three years treats all plaintiffs fairly, regardless of circumstances, and doesn’t allow some judges to carve out exceptions that may swallow the rule.
  2. Allow plaintiff to sue.  Plaintiff missed the deadline by only one day and had a good reason.  It would be unjust to foreclose plaintiff from filing the lawsuit.

• Good grammar:
  1. Is important for maintaining precision in communication and clarity of thought, even if the rules are sometimes arbitrary.
  2. Is not necessary so long as your audience knows what you are trying to express.

• You play sports because:
  1. There are clear metrics for achievement. Although the rules may sometimes be arbitrary, everyone is treated the same and can thus compete against each other to chart their own progress.  Cheating, even if it’s a stupid rule, violates this system.
  2. It builds character and a sense of teamwork.  It’s great exercise.  You don’t always have to follow the rules if something won’t affect the outcome.

• Uber should be legally responsible for the actions of its drivers:
  1. Either never or always.  Let’s establish a clear rule so everyone understands, can purchase liability insurance correctly, and can decide their behavior accordingly.
  2. It depends.  If the driver is doing something in Uber’s best interest, and Uber represents drivers as agents even though they are independent contractors, then, in some cases, Uber should be legal responsible.  Let’s decide by looking at the specifics of the particular case.

• Describe yourself:
  1. Sometimes you can be a stickler for how things “should” be.  This doesn’t mean you are rigid or not open minded or spontaneous or fun, but you hold everyone to high standards.
  2. You’re a softie.  You’re very empathetic and try not to judge others.  We are all fighting different battles and need to be understanding of each other.

Results:

If you answered mostly 1. – Congrats and mazel tov, you are a rules person!  People will know where they stand with you, even if they don’t like it!

If you answered mostly 2. – Felicitations and wonders, you are a standards person!  You like looking at the specifics of each individualized case and will sometimes go off-route at a climbing gym.

I am a somewhat traditional law professor.  My general view is that learning the law must be primarily an academic exercise, where students develop the ability to comprehend the nuances of cases, synthesize and organize legal principles, and apply those principles to new fact patterns.  This way of learning must be supplemented, as my own legal education was, with practical training and exposure to how the law actually operates.  Last week, when visiting friends in one of my favorite cities, Philadelphia, I received some significant exposure to one police officer’s patrol beat.  This ride along was an invaluable experience for me, as a professor who teaches Criminal Procedure (Fourth Amendment right against unreasonable search and seizure, Fifth Amendment right against self incrimination, and Sixth Amendment right to counsel).  I am sharing my experience because (1) the police officer said I could, and (2) I think every resident of the United States should get a glimpse into what I saw. I learned about the typical (and atypical) job duties of a Philadelphia police officer, how assignments are apportioned, how officers handle – logistically and psychologically – homicides and shootings, and how the police view community members and other governmental actors.

The Homicide

I learned a bit before my ride along that a homicide had taken place in the early hours of that morning, so I would be fitted for a bulletproof vest.  I don’t know if that is general protocol, but I certainly felt a decent amount of nervousness heading into my ride along.  The homicide turned out to be within the special beat of the officer who graciously took me on the ride along.  He had even found a bullet casing earlier that morning, hours after the shooting that left one injured and one dead, and had to call the fire department because blood was still in the street.  He brought the bullet casing to the homicide unit before this shift of our ride along. 

During the ride along, partially to establish a presence and partially to demonstrate his job to me, the officer brought me to the street where the homicide occurred.  We exited the car, and he showed me some chalk markings in the street and explained what happened.  It was eerie and surreal to me.  The loss of life was sad and disturbing.  I thought about the man’s last conscious moments as we retraced them.  I thought about his family and the people inside the home that he stumbled to for help after he was shot. I wondered if we were safe standing on the street now.  I have lived in places where I heard gunshots on occasion, but a homicide had just recently occurred here.  Even inside the police vehicle, I felt a mix of adrenaline and fear, totally exposed, because I know that, for various reasons, now is a time of increased antipathy towards the police. 

Sense of Danger

My feeling of fear dissipated after only half an hour, however, based on the officer’s own feelings.  I asked the officer – whom I will not name because he told me he cannot and does not represent the views of the Philadelphia Police Department – if he feels afraid.  His response, without even a pause, was “no.”  Most of the members of the community on his special beat, the three-neighborhood area that he covers in grid formation, like him.  He likes them too.  I could tell that he felt at ease, and a main reason he loves his job is that he can keep the streets safe for the community and interact with residents.  In the 1.5 years since he graduated the police academy – with special crisis intervention training so that he can carry a taser – he has never pointed his weapon at anyone or even used his taser.  He is required to take out his gun to secure buildings, but he’s never used it.  Just the previous day, he almost used his taser when a man ran at him with scissors, but the man stopped, and using the taser became unnecessary.  Obviously, this is just one police

officer’s experience. Plus, this is an officer so professional and amiable that he was asked to do the ride along for a friend of a city judge.  But, the idea of police officer as constantly afraid, and therefore dangerously trigger happy, was belied by at least this one officer’s conception of himself and his job.   

The Officer’s Beat

In fact, we responded to one call about a suspicious person perhaps dealing drugs inside a corner grocery store.  The officer waited several minutes outside the store and didn’t see anyone matching the description (although we saw others), so he asked for backup (two officers are needed to enter a building) and entered the store.  Although someone was in the area of the store the caller noted – between two arcade games – no one matched the description, so the officer ultimately just left the store.  I asked if simply finding a person matching the description would be sufficient probable cause for an arrest, and the officer said no, he would need to see someone actually dealing drugs.

This officer was calm and thoughtful, answering question after question (I was super confused about the logistics of how all these calls get divided up and responded to), even as he showed me, on his patrol, bullet holes in buildings and predicted (correctly) where bullet holes would be on parked cars at the scenes of recent shootings.  “These cars should have bullets in them,” he said as we drove slowly past, and they did.  His patrol grid was in an area that saw a shooting once every couple of weeks. 

In this officer’s patrol area, there are some local gangs, divided by street, who, it seems, mostly fight over saying insulting things to each other on social media, in addition to dealing some amount of drugs.  The gangs here, unlike major gangs, are partially social, and even produce some rap music. These neighborhoods are safer than other parts of Philly, which see one or two shootings every night.  And we were on a day shift (although the officer was working overtime), so there were fewer calls.  At night, this officer’s computer monitor lights up with calls, marked with colors for how high-priority the call is.  Calls are also marked whether there might be a mental health issue requiring a crisis intervention specialist. 

Although some patrol officers cover general territory, he explained that he covers a special grid, establishes a presence there, and responds to calls in that area, like domestic disputes, suspected break ins, or drug issues – either calls where he is the primary officer on scene or high priority calls where he serves as backup.  On other shifts, he does pedestrian or traffic stops within that area; traffic stops appear to be the largest source of arrests.  Because Philadelphia is such a large city, patrol officers have different job duties than detectives, who investigate cases and mainly execute search warrants, but not every city uses this division of labor.  We drove back around to the area of the homicide, and he tried to get the attention of a resident who had asked earlier that morning if he would be returning, because she was having a barbeque later that day and wanted a police presence for safety.  We couldn’t get her attention, so we left her to barbequing.  Another woman gave the officer what appeared to be some packaged food.  She smiled and put the food right into the backseat of his squad car. 

The officer showed me a street that was bereft of activity, because, according to the officer, the feds had made many arrests there.  Many of the officers are frustrated (this is well known) with how Philadelphia’s District Attorney is handling prosecutions, and, according to the officer, the feds are coming in to perform tasks that the City may not be doing.  The biggest sources of frustration experienced by this officer related to the perception that the DA’s office was releasing arrested violent criminals, who would offend again.  Whether or not this is actually happening more than the DA’s predecessors (the DA denies this), and whether or not this is due to shoddy police work that cannot support a prosecution or whether other factors are at play, there is a huge disconnect in communication between the DA and many officers that is likely affecting morale and impeding everyone’s ability to function optimally.  The officer, in answer to my question, also believes there aren’t enough officers, and eventually, this may create a backlog as cases pile up or even become an officer safety issue.  More are being trained now, and perhaps covid held up some officers being trained.

Lessons Learned

Overall, a great number of myths were dispelled for me.  Officers – and even many residents – in areas that experience a non-trivial number of shootings can still exist and feel somewhat safe, at least in these Philly neighborhoods on this officer’s beat, because the shootings are usually targeted to particular gang members, although many bullets are fired because the shooters don’t have precise aim.  Police officers aren’t always incredibly vulnerable targets, although their jobs are scary and need support.  A decent amount of a patrol officer’s job is the proverbial “hurry up and wait.”  Some police officers are happy to share their experiences with community members and discuss their jobs; it is great that the City offers these ride alongs.  Most calls do not lead to arrests.  Oh, and the officer told me that, in his experience, women are more likely to fight an arrest than men.  Men will flee, but once they are caught, they don’t fight.        

This is just one officer’s life in three neighborhoods in Philadelphia, during a bit of a spike in violent crime that is affecting the entire country.  The officer told me I would need to do several ride alongs to really get a sense of the variety of experiences that the job presents, and I hope I can do more.  And, of course, members of the community, the DA’s office, and certainly criminal defendants, would share different stories, have markedly different perceptions, or draw different conclusions.  Still, this is all illuminating, even if I am far from making total sense of it. I can much more easily make sense of the dense, logically linear prose contained in the judicial opinions I teach, but interactions between professors and government officials like these benefit everyone, I hope.