Police Gatekeeping

Emily M. Poor January, 2025

The role of policing in American society is more pervasive (and less visible) than many acknowledge. Police do not just patrol, arrest, and keep peace – they also gatekeep. Many and varied ostensibly non-criminal processes rely on police fact-finding to adjudicate claims, establish eligibility for resources, and take adverse action against individuals. This Article examines the phenomenon of police gatekeeping, both as a practical barrier to resources and remedies and as a hegemonic mechanism to construct the social conception of truth.

Recognizing the ways in which civil society relies upon police as gatekeepers of both practical resources and the social conception of truth is a first step toward reducing the role of the carceral state. The influence of police is hidden in the background of our daily lives. Shining a light on this influence – and questioning it – can allow us to rethink our ways of knowing and reimagine structures that promote autonomy, reduce hegemonic state control, and begin to take practical steps toward diminishing the supremacy of the carceral state in American civil society.

Introduction

The stereotypical notion of a police officer is someone who “fights crime” – they patrol the streets, arrest individuals when they have probable cause to believe that they have violated the criminal law, engage in activities intended to protect the public safety, and generally maintain “law and order.” But the role of police is not limited to enforcement of criminal law. Instead, they are frequently treated as a source of truth in non-criminal contexts where their accounts may determine important rights of parties. The tendrils of the carceral state pervade daily American life in more subtle and pervasive ways than many realize.¹ Through their role as fact-finders in non-criminal processes, police are gatekeepers, both to tangible resources and to the social construction of truth.

A significant body of scholarship addresses the problematic nature of relying on police testimony in criminal cases, pointing to coercive and biased policing tactics along with the proliferation of false testimony so widespread that the practice is known by both external critics and law enforcement agencies as “testilying.”² But the use of police accounts in fact-finding and decision-making processes is not limited to the criminal sphere. Decisions are made on the basis of police reports and testimony outside of the criminal process every day, and non-criminal processes frequently lack the safeguards surrounding police testimony present under criminal law and procedure. Both formally and informally, police act as gatekeepers to many legal remedies, non-criminal resources, and public benefits in what is traditionally considered “civil” society. Through their role as fact-finders, police impact numerous aspects of life outside of the criminal legal sphere, including housing decisions, child custody arrangements, insurance coverage, and access to financial benefits from the state.

This Article seeks to identify and examine the ways in which law enforcement officers’ factual observations and conclusions are used in noncriminal fact-finding processes. Police act as gatekeepers when their reports or testimony are required in order to access non-criminal resources and remedies. Additionally, private parties and the state unquestioningly use officers’ factual accounts to take adverse actions against individuals and communities.

Part I identifies specific uses of police reports and testimony outside the criminal legal system. Various entities, both public and private, use police accounts for differing purposes. Police reports and/or testimony are essential components for family law litigation involving allegations of intimate partner violence, and in some jurisdictions, victims of rape and incest may only obtain abortion care if they have reported to the police. Access to housing, including at the application stage and in eviction proceedings, may be adversely impacted by factual accounts provided by police. Access to public benefits, including crime victim compensation funds and certain aspects of the Temporary Assistance for Needy Families (TANF) program may be conditioned on police reports. Identity theft victims may only have access to some remedies if they obtain a favorable police report. And insurance coverage in the case of loss or damage to property may be dependent on obtaining a favorable police report.

Parts II and III lay out ways in which the use of police accounts in non-criminal fact-finding settings is not just factually unsound but also actively harmful. Part II identifies various ways in which police reporting requirements and discretionary reliance on police accounts by public and private entities harms individuals and communities, particularly communities and individuals of color, LGBTQ+ identifying people, people with disabilities, and other historically marginalized communities. For instance, government agencies rely on police findings to adjudicate whether someone is eligible for services provided to victims of identity theft, landlords rely on police fact-finding to determine whether to accept tenants or evict them, and insurance providers rely on police fact-finding to adjudicate claims for theft and property damage. Because processes using police as factfinders rely on a system that has been shown to operate in a discriminatory manner, they recreate the discriminatory effects of the criminal legal system in civil society as a whole. This system of reliance on police accounts also misallocates and misuses public resources by tasking police with roles outside of their traditional purview and, in some cases, using public resources for the benefit and/or convenience of private for-profit entities.

Police gatekeeping is not just practically harmful to those seeking access to legal remedies and resources outside of the criminal legal system. Part III identifies additional epistemic and structural harms the reliance on police fact-finding causes, establishing police as gatekeepers of resources, but also as gatekeepers of capital-T “Truth.” Reliance on police fact-finding both causes and reproduces epistemic harms by robbing marginalized groups and individuals of the testimonial value of their own observations, while artificially elevating the testimonial value of law enforcement officers’ observations and conclusions. Finally, misplaced reliance on police accounts entrenches the supremacy of the carceral state, not just in the criminal legal system, but in the way daily civil society functions. When ostensibly non-criminal processes depend on police as fact-finders, police become necessary participants in ordinary activities such as renting a home, obtaining insurance coverage, securing one’s finances, caring for one’s children, and seeking financial assistance from the government. All of these structural impacts together make efforts to reduce the size of, lessen the discriminatory impact of, or abolish the carceral state less possible and less effective.

Part IV lays out a framework to critically analyze existing manifestations of police gatekeeping, prevent the further proliferation of the phenomenon, and imagine alternatives that promote autonomy, diminish discriminatory impacts, and reduce sociolegal reliance on the carceral state.

I. Police as Fact-Finders

The traditional role of the police is typically considered as enforcing criminal law and protecting public safety. The Bureau of Justice Statistics website on law enforcement data states, “Law enforcement describes the agencies and employees responsible for enforcing laws, maintaining public order, and managing public safety. The primary duties of law enforcement include the investigation, apprehension, and detention of individuals suspected of criminal offenses.”³ The American Bar Association Criminal Justice Section has established Police Function Standards, which identify 11 major current responsibilities of police.⁴ Most standards revolve around enforcing criminal laws and protecting public safety.⁵ Law enforcement recruiting websites emphasize the crime-fighting aspects of policing.⁶ The U.S. Bureau of Labor Statistics states, “Police officers protect lives and property. Detectives and criminal investigators… gather facts and collect evidence of possible crimes.”⁷

As defined by various organizations, including law enforcement agencies themselves, and public perception, it seems that the role of police is limited to enforcing criminal law and maintaining “law and order.” However, the role of police is much more pervasive, impacting many aspects of life that most would consider “civil.” This Part identifies the numerous and varied ways non-criminal processes, both through the state and third parties, gatekeep ostensibly non-criminal resources and legal remedies by relying on police fact-finding.

A. Family Law and Intimate Partner Violence

Police fact-finding is often essential in the litigation of family law disputes and other matters where allegations of intimate partner violence (IPV) by one or more parties is central to the determination of claims. Survivors of intimate partner violence face a panoply of legal issues and material needs. The decision to involve law enforcement in the response to intimate partner violence is a difficult and complex one.⁸ That choice is further complicated by the fact that a number of remedies essential to achieving safety, health, and financial stability may depend on whether the survivor is able and willing to report the crime to police and whether police are willing to write a report or testify on her behalf in a favorable manner. Non-criminal processes may depend on the accounts of police in child custody disputes, civil protective order pleadings and hearings, and access to abortion care in jurisdictions with abortion bans that include exceptions for rape and/or incest.

1. Child Custody

Child custody disputes revolve around the “best interests of the child” standard.⁹ In most states, there is a rebuttable presumption that custody should not be granted to a parent who has abused the other parent or the child. While most states do not specify what evidence must be produced to prove abuse, the definition of “domestic abuse” is most commonly part of the criminal code. In at least one state an additional presumption against custody comes into play only when a parent has been convicted of one of a particular set of criminal charges.¹⁰

In all custody matters, but especially in cases involving allegations of abuse, credibility is essential. Custody litigation is the quintessential example of a “he said-she said” dispute.¹¹ Often, events take place in the privacy of the home, with only the parties and their children present. In cases where the parties’ narrative of events differs, fact-finders frequently rely on the accounts of third parties.”¹²

Police officers’ live testimony, or perhaps more frequently, their reports, often stand in as a proxy for a full assessment of credibility. Judges are both culturally and individually familiar with police officers.¹³ In smaller or more rural jurisdictions, judges adjudicating custody disputes have likely interacted with individual officers regularly through their testimony in criminal matters, and they are accustomed to deferring to their determinations of fact.¹⁴ Existence of a police report can mean the difference between sole and joint custody, or between supervised or unsupervised parenting time.

When police respond to a report of intimate partner violence or another form of domestic abuse, they are often tasked with identifying the “primary aggressor.”¹⁵ However, evidence suggests that police frequently misidentify victims of violence as primary aggressors, “particularly people of color, people with disabilities, and people with mental illness or substance use issues.”¹⁶ If a victim of violence is arrested, or even identified as a primary aggressor in a police report but not arrested, the police narrative may be the deciding factor when each party alleges violence from the other.

Police reports are also frequently used to document parenting time itself. Supervised parenting time may take place at a location where parenting is observed and documented by a third party, who may be affiliated with law enforcement. When there are allegations of abuse, a protective order in place, or simply concerns about the parties’ behavior toward each other, family court judges frequently order the parties to exchange children at police stations, and police reports may document what occurs at parenting exchanges. However, if one of the parties has a relationship with law enforcement or is savvy enough to understand how documentation created by law enforcement is used in litigation, these practices are rife with the opportunity for manipulation.

2. Civil Protective Orders

Police reports are also commonly used in litigation of civil protective orders (“CPOs”), CPOs are civil injunctive orders providing various forms of relief to petitioners who have been subjected to abuse, commonly including prohibiting the respondent from contacting the petitioner, granting the petitioner exclusive occupancy of a shared home, and making temporary orders regarding custody of the parties’ shared children.¹⁷ In most jurisdictions, eligibility for a CPO is statutorily tied to the definition of abuse used in the jurisdiction’s criminal law.¹⁸ While it is typically not mandatory to produce a police report and/or officer testimony in order to obtain a CPO, data show that police reports are frequently referenced in petitions, particularly when petitioners are assisted by non-attorney advocates employed specifically to assist them in preparing their petitions.¹⁹ Furthermore, petitioners are more likely to be granted a CPO if they include reference to a police report in their petition.²⁰

The judicial emphasis on police reports in CPO litigation may reflect a misconception that, because eligibility is tied to the criminal definition of abuse, involvement of the criminal legal system is required. It also likely reflects the commonly-held belief that abuse that was not reported to the police is not “real.”²¹ As Deborah Epstein reports, in the context of sexual harassment, “[n]on-survivors also tend to assume that a victim will report immediately after the first episode of harassment. Courts reinforce this false assumption, holding that even brief delays between an incident of harassment and the victim’s report are ‘unreasonable’ under the law.”²²

While in some cases CPOs are denied because of the absence of a live or written police account of the alleged abuse, savvy respondents in other cases may weaponize their knowledge of the importance of police reports to give their side of the story the automatic credibility they know comes with a police report.²³ For example, an abuser with knowledge of and/or ties to the criminal legal system may call the police first to report the victim as a perpetrator of violence, or they may use a victim’s drug, alcohol, or mental health problems to discredit them with the police.²⁴ Additionally, if the respondent is a police officer themselves, or if they have personal ties to law enforcement, officers responding to calls for IPV may be unwilling to take a report, write a misleading report, or give false or distorted testimony.²⁵ When a respondent is a law enforcement officer or has relationships with law enforcement, they are able to strategically utilize the automatic credibility officers are frequently afforded in the courtroom:

Prosecutors and judges may be as unlikely as others in law enforcement to believe the claims of a person subjected to abuse over a police officer they know and respect. The officer’s status as a member of the ‘in group’ in the criminal justice system confers credibility on him. The officer’s uniform marks him as one of the good guys, his trustworthiness underscored by the state’s willingness to allow him to carry a firearm. […] In a contested proceeding in which the only evidence is the testimony of both the officer and his partner, the officer’s facility with and knowledge of the legal system, as well as his ties to those within the courtroom, can easily swing a credibility determination in his favor.²⁶

The difficulty of overcoming the hurdle of unfavorable police testimony may be further compounded by unique procedural aspects of CPO proceedings. CPO litigation is extremely fast-paced – in many jurisdictions, a hearing must occur within a week of a filed petition or less.²⁷ Further, dockets are frequently overloaded, limiting the amount of time courts spend on evidentiary hearings.²⁸ Additionally, the vast majority of petitioners are self-represented.²⁹ As a result, hearings are often informal and more likely to rely on police reports without live testimony from officers.³⁰ While this would be impermissible in a criminal context, in jurisdictions with evidentiary rules modeled after the Federal Rules of Evidence, police reports are exempt from the rule against hearsay in non-criminal proceedings and may be admissible as self-authenticating documents if they are certified records.³¹ This is particularly troubling given the fact that while civil protective orders are “civil” on their face, they are quasi-criminal in nature.³²

While CPOs may be intended as a way for survivors to bypass the criminal legal system, in reality they are often difficult to obtain and/or enforce unless the survivor has already interacted with the criminal system.

3. Abortion Ban Exceptions for Rape and Incest

Since the United States Supreme Court overturned Roe v. Wade in June 2022, numerous jurisdictions have enacted and enforced bans on abortion care.³³ Several jurisdictions with near-complete abortion bans have established limited exceptions, including when the pregnancy is the result of rape or incest.³⁴ In at least four states, a pregnant person is only eligible to receive abortion care under these exceptions if they produce a police report documenting the rape or incest.³⁵

Requirements to obtain a police report pose difficulty to many survivors of rape and incest seeking abortion care in these jurisdictions. Many of the exceptions are extremely time-sensitive, and law enforcement agencies will often refuse to release reports while an investigation is pending, resulting in difficulty obtaining abortion care even when a patient is able to make a report.³⁶ Even earlier in the process, people seeking abortion care for a pregnancy resulting from rape or incest may have good reason not to want to report to police and trigger a response from the criminal legal system, including fear of their intimate partner, social stigma, and fear of criminalization.³⁷ Additionally, survivors attempting to report rape by an intimate partner or spouse may have their claims dismissed because “even when abuse survivors report marital or intimate-partner rape, police officers often discourage filing a complaint or seeking to collect medical evidence, and religious advisers and domestic violence agency staff may fail to treat the experience as legitimate rape, invalidating a survivor’s experience and ability to address corresponding trauma. Rape exceptions requiring police reporting create the illusion of options but will not be exercised by most abuse survivors.”³⁸

B. Housing

Housing instability is frequently recognized as a collateral consequence of criminal convictions.³⁹ However, tenants also face adverse housing consequences on the basis of mere arrests that do not result in convictions, essentially cementing police authority as gatekeepers to rental housing.⁴⁰ In addition to the arrest itself, landlords use the substance of police reports to make determinations at the initial leasing stage, as well as initiating eviction proceedings on the basis of information provided by police.

At the application phase, “[l]andlords use excessive and restrictive criminal-background screening practices to exclude tenants with even misdemeanor arrests or dropped charges on their records.”⁴¹ This is true in both the private housing market and public housing programs.⁴² Landlords cite concerns about potential criminal activity as the basis for denying applications for prospective tenants who have had contact with the criminal legal system in the past.⁴³ However, reliance on arrest records, without additional evidence regarding the alleged criminal activity, essentially credits the factual account of the arresting officer as inherently correct. As early as 1957, the United States Supreme Court recognized,

“The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.”⁴⁴

When an arrest , by itself, is the basis for adverse action against a tenant, the fact that an officer “probably suspected the person apprehended of an offense”⁴⁵ becomes the “proof” that the prospective tenant is likely to engage in criminal activity or otherwise be a poor tenant. As Deborah Archer, law professor and president of the American Civil Liberties Union argues, “Decisionmaking based on whether a person has involvement with the criminal legal system effectively functions as a racialized criterion. This is because there are racial disparities at every stage of the criminal process.”⁴⁶ These disparities are particularly stark at the arrest stage, when the only decisionmaker is a police officer. Data show that people of color “are arrested for drug and low-level crimes at rates disproportionate to the share of crime they commit.”⁴⁷ As a substantive matter, many of these low-level offenses reflect the role of policing as a racialized form of social control rather than regulation of dangerous or morally objectionable behavior.⁴⁸ Additionally, data shows that Black arrestees are significantly less likely to be convicted than White arrestees.⁴⁹ This means that decisions based on arrest records essentially take the word of a single arresting officer regarding the arrestee’s conduct at face value, in the face of significant evidence of racial disproportionality in policing.⁵⁰ As a result, the racial disproportionality inherent in policing bleeds into housing determinations, and Black arrestees are at greater risk of adverse housing decisions based on arrest records rather than convictions.

Recognizing the racially disproportionate effects of policies denying housing applications on the basis of arrest, the Department of Housing and Urban Development (HUD) issued guidance in 2016 strongly discouraging the practice and suggesting that denying applications solely on the basis of arrest records would be a violation of the Fair Housing Act.⁵¹ However, the guidance does not prohibit reliance on arrest records entirely; instead, policies that evaluate criminal history, including arrest records, along with other criteria or information, must be evaluated on a case-by-case basis.⁵²

While HUD has attempted to reduce the impact of criminal history and arrest records on initial housing applications, arrest records and even information from police about incidents which do not result in arrest can endanger housing after a tenant is already living in a private or public housing unit. Standard leases promulgated by associations advocating for the interests of landlords frequently include provisions that criminal activity by the tenant or their guests constitutes default, regardless of whether conviction or even arrest occurs.⁵³ For example, a standard residential lease promulgated by the Texas Apartment Association provides that a tenant is in default if “you or any guest or occupant violates this Lease, our Community Policies, or fire, safety, health, criminal or other laws, regardless of whether or where arrest or conviction occurs,”⁵⁴ or if “you or any occupant is charged, detained, convicted, or given deferred adjudication or pretrial diversion” for drug crimes, sex crimes, or crimes involving actual or potential physical harm to a person, including misdemeanors.⁵⁵

Tenants in federally subsidized housing are also at risk of losing their housing, including the long-term risk of losing access to vouchers or program eligibility, if they are deemed to have engaged in criminal activity. HUD’s standard lease for public housing authorities provides that landlords may terminate the lease “if the Landlord determines that the tenant, any member of the tenant’s household, a guest or another person under the tenant’s control has engaged in the criminal activity, regardless of whether the tenant, any member of the tenant’s household, a guest or another person under the tenant’s control has been arrested or convicted for such activity.”⁵⁶ Public housing agencies administering Section 8 Housing Choice Voucher Programs may also terminate assistance if any household member has engaged in drug crimes, violent crimes, or “other criminal activity that may threaten the health or safety” of other residents of the property.⁵⁷ In fact, the PHA may terminate assistance on the basis of criminal activity if they determine that the criminal activity occurred by a preponderance of the evidence, “regardless of whether the household member has been arrested or convicted for such activity.”⁵⁸

Perhaps even more insidious than the voluntary inclusion of ill-defined “criminal activity” clauses in residential leases is the proliferation of “crime-free” ordinances. Crime-free ordinances affirmatively mandate that residential leases must include a crime-free lease addendum, requiring eviction if the tenant, a family or household member, or a guest engages in criminal conduct.⁵⁹ These ordinances generally encourage landlords to develop close ties with law enforcement and share information. In fact, the training manual for a model crime-free housing program explicitly “encourages landlords to establish relationships with police departments and to gather information even in cases where the officer makes no arrest or formal report.”⁶⁰ Some ordinances, like the one in Faribault, Minnesota, stipulate that police have the power to order eviction pursuant to the lease addendum without arrest or conviction.⁶¹ The establishment of crime-free ordinance programs cause significantly higher rates of eviction. One study of programs in California found that municipalities without crime-free housing programs had an eviction rate of 0.94 evictions per 100 rental units in 2019, while jurisdictions with such programs had an eviction rate of 1.39 per 100 rental units.⁶²

Mandatory crime-free ordinances carry possible consequences for landlords as well as individual tenants. In some jurisdictions, if a landlord fails to evict a tenant deemed to have engaged in criminal activity, the landlord may lose their license to rent any unit.⁶³ In Faribault, Minnesota, “The Police Department is empowered to determine that a unit was ‘used in violation’ of the ordinance. This gives police unbridled discretion to determine what constitutes a CFO violation.”⁶⁴ Since in many jurisdictions police share information with landlords regarding activities on or near their properties, whether or not arrest or conviction occurred, landlords may feel pressured to evict tenants solely on the word of law enforcement.

Some jurisdictions also have voluntary crime-free programs, in which landlords are not mandated to include crime-free addenda in their leases, but they may have access to additional tools permitting them to take action based on alleged criminal activity.⁶⁵ For example, a voluntary program in Orlando, Florida gives participating landlords access to a database including all police actions involving their tenants and others in the community, including juvenile felony arrests, and identifying all tenants who have been evicted under the ordinances “to track the criminal violators so they cannot migrate from community to community.”⁶⁶ While landlords may not be mandated to participate in this program, the rationale and tools behind the program lead to the same troubling issues—landlords are empowered to blindly adopt the assertions of law enforcement that their tenants have engaged in some sort of illegal conduct and take legal action on that basis. As Deborah Archer argues, “Essentially, many crime-free housing ordinances allow police officers to pick and choose who may live in their community simply by making the unreviewable assertion that an applicant or tenant is under suspicion of illegal activity.”⁶⁷

Applicant screening on the basis of arrest, along with both voluntary and mandatory crime-free ordinances, put police accounts at the center of housing determinations. Since most housing issues are not litigated and, when they are, they lack the procedural safeguards of criminal prosecution, police accounts are given far greater credence in this context than they would be in the context of a criminal trial, giving officers carte blanche to determine the outcomes of civil matters central to the lives of individuals and communities.

C. Access to Public Benefits and Resources

As discussed in Part I.A above, survivors of intimate partner violence frequently have needs that necessitate litigation, and police reports are often key evidence in that litigation. In addition, access to numerous public programs, particularly those targeted toward low-income survivors of IPV, is determined by the existence of and substance of police reports.

1. Crime Victim Compensation Programs

Crime (particularly crimes of violence) frequently comes with longterm financial costs for victims. Some survivors of intimate partner violence experience physical and psychological effects that can last for years.⁶⁸ In some cases, victims of crime can seek restitution through the criminal process, but this depends on the existence of a criminal process, along with many other factors including the defendant’s ability to pay.⁶⁹

To address these needs, each state has established a crime victim compensation (CVC) program, which is intended to cover costs related to the victimization.⁷⁰ Coverage varies by jurisdiction but commonly includes medical costs arising from injuries related to the crime, counseling expenses, and lost work for court appearances.⁷¹ CVC programs were initially locally run and funded, but with the passage of the Victims of Crime Act (VOCA) in 1984 came federal funding, and with it, federal strings.⁷² VOCA requires funded programs to “promote victim cooperation” with law enforcement.⁷³ While the statute and regulations do not explicitly require programs to set reporting to police as an eligibility criterion, in practice, almost all programs only make funds available to applicants who report to police and cooperate with prosecution.⁷⁴

In addition to the basic requirement that applicants report to police, programs frequently use the substance of police reports to determine other eligibility circumstances. For example, state programs may bar claims for CVC funding if the applicant engaged in “contributory misconduct” that allegedly brought about their victimization.⁷⁵ Additionally, programs deny claims based on “failure to cooperate.”⁷⁶ These issues are largely determined by police investigation.⁷⁷

2. TANF and Intimate Partner Violence

Economic hardship is both one of the greatest contributors to and consequences of intimate partner violence.⁷⁸ Crime victim compensation may help address some of the specific harms caused by violence for eligible claimants, but it does not account for the economic reasons that contribute to intimate partner violence or the general economic instability that often makes it difficult or impossible for survivors to leave abusive relationships when they wish to do so.⁷⁹

Studies show that intimate partner violence disproportionately impacts low-income populations, both in its prevalence and in the magnitude of its impact.⁸⁰ Direct financial assistance is one of the most powerful tools to prevent and remediate domestic violence.⁸¹ Low-income families often rely on assistance provided through the Temporary Assistance for Needy Families (TANF) program, often referred to colloquially as welfare. TANF is a federal program, administered through block grants to the States, which in part provides funds directly to low-income families.⁸²

Recipients of TANF funds are subject to numerous requirements and restrictions, including work requirements,⁸³ time limits for receipt of assistance,⁸⁴ and cooperation with child support enforcement to identify the other parent of a child and seek support, which is used to reimburse the state for funds expended to the recipient.⁸⁵ Recognizing that it may be difficult or dangerous for survivors of IPV to comply with some of these requirements,⁸⁶ the TANF program permits (but does not require) States to establish procedures to screen for domestic violence and waive normal program requirements through “where compliance would make it more difficult for such individuals to escape domestic violence or unfairly penalize those who are or have been victimized by such violence or who are at risk of further domestic violence.”⁸⁷ This optional program is referred to as the Family Violence Option, and waivers of program requirements are referred to as “good cause waivers.”⁸⁸ While regulations permit states to offer a good cause waiver, there is no statutory definition of “good cause— states are free to implement their own definition and standard of proof.⁸⁹

States are not required to participate in the FVO or offer a good cause waiver of program requirements at all.⁹⁰ If they do, they have wide discretion to determine what is required to qualify for a good cause waiver.⁹¹ States may determine whether to require evidence corroborating an applicant’s eligibility for a good cause waiver, what types of evidence constitute corroboration, and how much evidence is enough.⁹² In the absence of clear guidance, determinations are often left to caseworkers with limited training, who may bring their own biases or beliefs regarding what constitutes abuse, when to believe allegations of abuse, and what kinds of evidence is required to prove the violence.⁹³

States are given little to no guidance on how to implement TANF good cause waivers under the Family Violence Option — federal regulations do not provide requirements for who is eligible, what “good cause” means, standards of proof, or corroboration requirements.⁹⁴ In the absence of federal requirements, many states use the latitude they are granted to get welfare cases “off the rolls” by denying claims for good cause waivers.⁹⁵ Requiring police reports as corroborating evidence of abuse, either through explicit policy or informal agency practice, is one method to accomplish this goal. Evidence shows a culture of disbelief within these agencies,⁹⁶ which makes sense: they are tasked and trained with the primary purpose of collecting child support, and good cause requests specifically ask for exemption from carrying out the agency’s primary duty. Additionally, this money is going to the state, not to the parent, so there is often skepticism about the applicants’ motives.⁹⁷

Even where applicants are not required to provide a police report for the purposes of corroboration, they are required to interact with an apparatus of the state closely associated with the police power. TANF programs are typically administered by social services or human services agencies, which may be formally or informally affiliated with child protective services.⁹⁸ This puts the survivor in a position where they are trying to make the state believe them in order to receive crucial benefits while also feeling at risk of interaction with child protective services and potential related consequences. In many jurisdictions, “failure to protect” children from witnessing abuse against a parent is a basis for opening an investigation and potentially removing children from the home. Studies have specifically shown that TANF applicants are reluctant to disclose that they have been subjected to abuse because of policies that require the immediate removal of children from a home where domestic violence is present.⁹⁹ Disincentives to disclose, coupled with cultures of disbelief within agencies and burdensome documentation requirements, result in gatekeeping that prevents survivors of IPV from accessing important financial assistance through the TANF program.

D. Identity Theft Protection

Identity theft is a common legal issue facing many consumers. When trying to resolve fraudulent debts, accounts, or court records made in their names, consumers often deal with a dizzying array of bureaucracy. One level of that bureaucracy may be dealing with law enforcement.

Consumers attempting to resolve disputed charges or fraudulent debts may be required to produce a police report.¹⁰⁰ A 2023 study by the Identity Theft Resource Center regarding identity crimes in Black communities found that most consumers who experienced financial identity theft first contacted their creditors, who then directed them to report to police.¹⁰¹ Government websites intended to provide victims of identity theft with advice to create a plan of action also emphasize the importance of obtaining a police report to dispute fraudulent charges with creditors. For instance, the consumer-facing website of the Indiana Attorney General’s Consumer Protection Division advises consumers to report to the police as soon as possible, stating, “The police report and complaint number may be needed when contacting creditors. Consumer reporting companies should automatically block fraudulent accounts and bad debts from appearing on your credit report if you provide a copy of the police report.”¹⁰²

Even the Federal Trade Commission (FTC), which provides remedies to consumers through its own self-prepared Identity Theft Affidavit,¹⁰³ acknowledges that a police report is necessary for some purposes—the FTC provides a memo consumers can show to law enforcement officials explaining the importance of obtaining a police report in order to access remedies.¹⁰⁴ The memo states in part, “We advise victims to bring a printed copy of their ID Theft Complaint filed with the FTC with them to the police station in order to better assist you in creating a detailed police report so that these victims can access the important protections available to them if they have an Identity Theft Report.”¹⁰⁵

Although consumers are advised or even required by government agencies and creditors to obtain a police report documenting identity theft in order to resolve financial disputes, police are frequently reluctant to take a report. A practitioner’s guide for plaintiffs’ counsel in consumer identity theft cases recommends obtaining a police report as one of the first steps in developing a case, both as supporting evidence generally and because it may specifically be required by creditors but emphasizes that some law enforcement agencies are reluctant to investigate because identity theft is difficult to police on the local level.¹⁰⁶ Government agencies tasked with assisting victims of identity theft also recognize that police may be unwilling to take reports. The federal Office for Victims of Crime consumerfacing website on identity theft contains a section entitled “What do I do if the local police won’t take a report?”¹⁰⁷ The website acknowledges that the office has received reports that some departments will not take reports, but simply advises consumers to “be persistent” because of the importance of a police report to resolve disputes with creditors, block accounts, and obtain records of fraudulent applications and accounts.¹⁰⁸

Anecdotal evidence from victims of identity theft also suggests that consumers may have difficulty in obtaining a police report when it is required. The Identity Theft Resource Center’s study on identity theft in Black communities reported that participants were frustrated by attempts to obtain police reports, and in particular, felt that they were disbelieved and treated like suspects more than victims.¹⁰⁹ One participant who had experienced identity theft by a former partner stated, “The lady [at the credit card company] was saying she knows that I authorized [my former partner] to use my card because we know each other and she doesn’t believe me. And if I’m telling the truth to go to the police station and press charges, which I did. When I got there, the police said that’s a civil matter, that they cannot do anything about that.”¹¹⁰

This study participant is one of many consumers who face additional hurdles in obtaining relief for identity theft because the identity theft was committed by an intimate partner, former intimate partner, or family member. Scholars of intimate partner violence have increasingly come to recognize the issue of “coerced debt,” a form of financial abuse which “occurs when the abuser in a violent relationship obtains credit in the victim’s name via fraud or duress.”¹¹¹ In these circumstances, evidence suggests that creditors are more likely to require a police report in order to resolve a disputed debt, and police are less likely to actually create such a report.

Christine Kim conducted a series of phone interviews with the several of the largest issuers of consumer credit, acting as an advocate to a hypothetical victim of domestic violence who had experienced coerced debt, to inquire about their policies regarding police reports.¹¹² Creditors differed as to whether they would require a police report in order to take action regarding the coerced debt – some stated they would require a police report, some did not require but recommended a police report, and some neither required nor recommended a police report.¹¹³ Additionally, multiple creditors informed Kim that they would file a police report without the consumer’s consent, even if they felt it would endanger her safety.¹¹⁴ Service providers in the New York City area have also found that creditors and credit reporting agencies often simply reject claims of coerced debt outright, but where they respond to claims, their dispute processes often require “persistent and voluminous documentation, including police reports or affidavits.”¹¹⁵

Evidence suggests that victims of coerced debt particularly struggle in obtaining police reports when they are required to do so.¹¹⁶ Ambika Panday, Assistant Direct of Policy and Advocacy for The Financial Clinic, testified before the New York State Assembly in 2012 that “approximately 80% of survivors who are victims of identity theft were unable to file police reports to document that crime.”¹¹⁷ Panday further testified, “time after time, clients reported that they were turned away by New York City police, unable to file reports,” despite state law requiring officers to generate police reports for victims of identity theft.¹¹⁸ Law professor Angela Littwin also found “anecdotal evidence that many police departments will not accept identity theft reports in which the thief is a family member.”¹¹⁹

Police reports are also essential to access certain specific statutory remedies at both the state and federal level. A number of states have established “identity theft passport” programs designed to assist victims of identity theft in establishing their identity in the future.¹²⁰ An identity theft passport is a form of identification that a victim of identity theft may present to creditors, law enforcement, and/or credit reporting agencies in the event that they are accused of a crime or alleged to have entered into a transaction actually entered into by a person who has stolen their identity.¹²¹ However, law enforcement agencies, creditors, and credit reporting agencies have discretion as to whether they will accept identity theft passports as proof of identity.¹²² Some jurisdictions also establish databases of all persons who have been issued an identity theft passport.¹²³

Most jurisdictions specifically require a police report as part of the application for an identity theft passport,¹²⁴ although several states will accept, in the alternative, a court order expunging criminal records resulting from someone else using the victim’s identity.¹²⁵ In at least one jurisdiction (Montana), an identity theft passport is required in order to receive expungement of criminal records resulting from the fraudulent use of the defendant’s identity.¹²⁶

Some federal remedies also may require a victim of identity theft to obtain a police report. The Fair Credit Reporting Act provides certain remedies to victims of identity theft, including access to free credit reports, place a “security freeze” on their credit account, and place a “fraud block” in the consumer’s credit report file, which blocks reporting of information the consumer identifies as resulting from identity theft.¹²⁷ In order to access these remedies, the victim must file an “identity theft report,” which must allege identity theft; be “a copy of an official, valid report filed by a consumer with an appropriate Federal, State, or local law enforcement agency, including the United States Postal Inspection Service, or such other government agency deemed appropriate by the Bureau”; and must subject the person filing the report to criminal penalties if information in the report is false.¹²⁸ The CFPB has deemed Identity Theft Affidavits filed with the Federal Trade Commission to be “Identity Theft Reports,”¹²⁹ but according to professor Angela Littwin, “[credit reporting agencies] have discretion to request additional information, and anecdotal evidence suggests that they will often not credit a consumer’s allegations of identity theft unless the victim files a police report.”¹³⁰ Importantly, credit reporting agencies may explicitly require a police report as proof of the victim’s identity and claim in order to provide them with information about fraudulent accounts and applications.¹³¹ Notably, this is in addition to providing government-issued identification, other personally identifying information as requested by the business entity, and an affidavit regarding the alleged identity theft.¹³² As one scholar argues, this statutory framework “elevates local law enforcement authorities as the gatekeepers for identity theft claims by requiring claimants to first file a police report detailing the alleged identity theft that they can then take to CRAs to correct fraudulent charges.”¹³³

Requiring victims of identity theft to obtain police reports does not guarantee that law enforcement agencies will actually do anything about the reported identity theft. Many jurisdictions have attempted to address the problem of consumers’ inability to obtain necessary police reports by requiring local law enforcement agencies to accept identity theft complaints from consumers and create police reports based on those complaints.¹³⁴ However, jurisdictions vary in whether they require agencies to actually investigate those reports. Several agencies explicitly require agencies accepting police reports of identity theft to investigate, at least as far as they are able.¹³⁵ In contrast, others clarify that the requirement of taking a police report does not disturb the agency’s discretion as to how to allocate its resources (essentially stating that investigation is not required), and agencies are not required to include reports taken under the provision requiring them as open cases for the purpose of statistical reporting.¹³⁶ At least one jurisdiction (Missouri) specifically provides that agencies retain discretion as to whether they will even take a report.¹³⁷

Law enforcement agencies may have good reason to decline to investigate identity theft. “Law enforcement identity theft units are frequently underfunded, especially considering that successful identity theft is difficult to trace and criminal penalties are too low to offset the minimal risk of prosecution.”¹³⁸ In addition to lack of funding, unspecialized officers are typically not trained in this highly technical form of investigation. According to a Bureau of Justice Statistics analysis of 2018 data from police academies, only 63.3% of academies offered any training in cyber/internet crime, and those that did provided only 4 hours of training on average.¹³⁹ By contrast, trainees received on average 113 hours of training on “self-improvement,” including 9 hours on stress prevention and 50 hours on health and fitness.¹⁴⁰ However, even given the lack of training, resources, and mandates for actual investigation, private entities give significant credence to the simple existence of a police report. And at least one jurisdiction explicitly provides that “[a] report to a law enforcement agency by a person stating that the person’s identifying information has been lost or stolen or that the person’s identifying information has been used without the person’s consent shall be prima facie evidence that the identifying information was possessed or used without the person’s consent.”¹⁴¹

E. Insurance Coverage

The previous subsections primarily address mechanisms by which the law requires or permits reliance on police fact-finding. However, this reliance is not limited to statutory or regulatory frameworks that explicitly envision using police reports or testimony. Private third parties also frequently use the police to assist in their own fact-finding investigations or, in some cases, to stand in as a proxy for actual investigation. The insurance industry is a prime example of this phenomenon.

Anyone who has ever been in a fender bender or had a laptop stolen knows that insurance coverage is almost always contingent upon obtaining a police report. My own standard renter’s insurance policy through Progressive, one of America’s major insurance providers, requires the insured in the event of a loss to which coverage may apply to “notify the police of loss by theft or vandalism or malicious mischief and: (a) file a police report describing all items stolen; (b) submit the filed report to us; and (c) cooperate with the police in their investigation.”¹⁴² The websites of several major auto insurers suggest that while a police report may not be technically required in all instances, it is strongly recommended. Allstate, a major provider of auto insurance coverage, suggests on its consumer-facing website that after a hit-and-run car accident, “an officer will document the incident and create an official accident report, which you will typically need to have when filing your claim with your insurance company.”¹⁴³ Similarly, the website for National General Insurance advises customers, “If your vehicle is stolen or broken into, a police report can help your insurance company determine which items were stolen and how much they were worth. If you don’t have a police report available, it may be difficult for you to prove that you were the victim of theft or burglary, which makes it even more difficult to receive a payout from your comprehensive insurance policy.”¹⁴⁴

Similarly, the consumer-facing websites of several state agencies that regulate the insurance industry strongly recommend that drivers report auto accidents to the police in order to access insurance coverage. The California Department of Insurance developed a brochure entitled “So You’ve Had an Accident – What’s Next?” which suggests that the first step for drivers should be to call the police and advises to “be aware that most policies require notification to the police within a specified time period if the accident is a hit and run.”¹⁴⁵ The New Jersey Department of Banking and Insurance also advises drivers to “immediately report a loss to the police if your vehicle is stolen, vandalized, or damaged by a hit-andrun driver, and [w]ithout a police report your company could deny your claim.”¹⁴⁶

For many people, reporting requirements are simply part of the logistical headache that comes with traffic accidents and lost, damaged, or stolen property. But unlike sitting on hold for hours or completing seemingly endless forms, police reporting requirements impose hurdles that limit access to coverage and, in some circumstances, expose claimants to the risk of criminal consequences and/or police violence. Patricia Rodney’s insurance provider informed her that she needed to file a police report in order to replace her lost glucose meter, which she needed to manage her diabetes.¹⁴⁷ Rodney went to her local police precinct in Brooklyn to make a report and was told she would need to come back a few days later to pick up the report; when she returned, she was told the precinct did not issue stolen property reports, and she would need to go to NYPD headquarters in Manhattan.¹⁴⁸ Frustrated, Rodney held her cell phone in front of her and told officers she was recording them (although the phone was not actually recording).¹⁴⁹ Citing the precinct’s policy prohibiting members of the public from photography inside the station, several officers restrained Rodney, pushing her to the ground and placing her in handcuffs and leg shackles; her elbow was fractured as a result, and she remained handcuffed while being treated at the hospital.¹⁵⁰ Rodney was later charged with resisting arrest, obstructing government administration, disorderly conduct, and criminal trespass.¹⁵¹

If Patricia Rodney had been able to obtain a police report documenting the loss of her insulin pump, would her insurer have gained any valuable information? In all likelihood, the insurance company simply would have had the same information that she gave to them, but with an officer’s signature at the bottom of the page.

F. Other Contexts of Reliance on Police Accounts

The examples discussed in this Part are not (and could not be) a comprehensive enumeration of all the ways in which the state and private entities rely upon police accounts in non-criminal fact-finding and eligibility determinations. In the context of civil litigation, parties can and do rely on police testimony and police reports. As discussed above, while police reports are inadmissible in criminal cases under the Federal Rules of Evidence, the Rules exempt them from the rule against hearsay in non-criminal matters.¹⁵² Police reports are admissible in all civil matters under the public records exception to the hearsay rule so long as the report sets out the agency’s activities, “a matter observed while under a legal duty to report,” or “factual findings from a legally authorized investigation” and “the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.”¹⁵³ The public records exception creates opportunities for the use of not just officer testimony in civil cases, but also written police reports, regardless of whether or not the reporting officer testifies. While parties can subpoena officers if a police report is offered in a civil matter, if the officer is not under subpoena, the Sixth Amendment’s Confrontation Clause does not apply to give the parties the right to cross examine the reporting officer. Under the Rules and relevant case law, officers may serve as both fact¹⁵⁴ and expert witnesses¹⁵⁵ in civil litigation without the procedural safeguards present in criminal proceedings.

Outside of litigation, both the state and private entities engage in a wide range of decision-making based on police reports and testimony. In the immigration context, applicants for U-visas must cooperate with law enforcement and have their status as crime victims certified by law enforcement.¹⁵⁶ Professional licensure may be endangered by the existence of an arrest record, even if that arrest does not result in a conviction.¹⁵⁷ A background check showing an arrest may lead to denial of admission to a university or other educational program.¹⁵⁸ A record of arrest can serve as a basis to deny licensure of a family as a foster care placement.¹⁵⁹ Hospitals treat patients differently based on whether a police officer characterizes the patient as a victim or suspect, and courts typically defer to that assessment when it is challenged.¹⁶⁰ Hospital workers also often defer to police on other issues that impact their treatment of patients, including “whether ordinary behavior is an indicator of potential or future criminal actions,” which may lead them to provide police access to private patient information or to assist police in drawing a patient’s blood for testing without their consent. ¹⁶¹ And it would be impossible to catalog all the ways in which private entities and individuals rely upon factual accounts from police to make decisions. The following section discusses some of the flawed assumptions this reliance is based on and the harms caused by this pervasive practice.

II. Practical Harms: Police as Gatekeepers of Resources

The use of police fact-finding to adjudicate claims and determine eligibility for resources establishes police as de facto gatekeepers of resources. This Part identifies two practical harms of police gatekeeping. First, the use of police as fact-finders has a discriminatory impact by making resources and relief dependent on positive interaction with the carceral state, and therefore less accessible to members of subordinated communities. Second, reliance on police fact-finding to gatekeep resources reflects misuse and misallocation of public resources.

A. Discriminatory Impact

Critics of the criminal legal system (and even some of its defenders) have long recognized that policing has disparate impacts on certain individuals and communities.¹⁶² The use of police accounts in non-criminal processes leads to similar discriminatory results. In the context of remedies conditioned upon obtaining and/or determined by the contents of police reports or testimony, reliance limits access to remedies and resources for people who are reluctant to interact with police or are not believed by them. In the context of the use of police testimony to take adverse action against people in non-criminal processes, there is likely to be a disparate impact on people from marginalized communities due to structural and individual officer bias.

Relying on police reports and testimony to prove entitlement to a particular remedy or program means that that remedy or program will be limited only to those people who can actually get an officer to write a report or testify in their favor. Police reporting requirements are discriminatory barriers in two different ways. First, they deter people from marginalized communities from attempting to access remedies if they are hesitant to interact with law enforcement. Second, if they do choose to interact with law enforcement, people from marginalized communities may face increased difficulty in obtaining the necessary report or testimony due to structural and individual officer bias.

Many people, particularly people of color and people from other historically marginalized communities, are reluctant to interact with police for a variety of reasons, discussed below. Those people are faced with the unenviable choice of interacting with police and facing potentially adverse consequences or losing access to important remedies and resources.

Police violence against people of color is well-documented.¹⁶³ Increased interaction with police necessarily leads to an increased risk of being subjected to police violence or facing arrest. People of color are more likely to be arrested in interactions with law enforcement,¹⁶⁴ and if a person who is in need of a resource conditioned on reporting to the police has a warrant out or is under state control via bail, probation, or parole, it is very unlikely that they will be willing or able to seek help from police.

Women of color in particular have many and varied reasons to be reluctant to interact with police, even when they are victims of crime.¹⁶⁵ As Monica Bell writes,

“Women’s use of the police can be costly: Although contacting the police does not usually lead to arrest, it sometimes does, with unpredictable consequences for intimates and family members. When men are locked up, it separates couples and cripples family relations, making it difficult to retain cohesive relationships and financial support. […] Allowing convicted family members to stay with them can put mothers at risk of losing cash assistance and housing. […] Reputational harm can result, with women labeled ‘snitches’ for contacting police. […] Mothers may also fear that they are subjecting their loved ones to potential police violence.”¹⁶⁶

Parents, particularly mothers of color, may also fear that by involving the police in their affairs, they are opening their families up to other forms of state surveillance and control, including the family regulation system.¹⁶⁷

When people do contact the police for assistance in gaining access to resources, there is no guarantee that police will agree to help them. Individual and structural bias may impact officers’ willingness to believe complainants and/or make reports on their behalf.¹⁶⁸ This is particularly true when a complainant doesn’t fit the stereotype an officer may have of a “real victim,” or if the officer is unfamiliar with the nature of the matter the complainant is dealing with or views it as a “civil matter.”¹⁶⁹ Since reluctance to contact police and difficulty obtaining the needed documentation are both based on race, gender, and socioeconomic status, provisions requiring police documentation have a discriminatory impact on those bases.

The use of police-provided information to take adverse action against individuals and communities also has discriminatory effects. As discussed above, crime-free ordinances have a well-documented racially discriminatory effect.¹⁷⁰ Other mechanisms under which public and private entities rely on police reports of conduct, such as immigration proceedings, background checks by employers, or custody litigation where a party alleges abuse by the other, also necessarily reflect the racial discrimination inherent in policing.

Racial bias in policing manifests both structurally, through policies targeting communities of color and other subordinated populations,¹⁷¹ and on an individual level through officer bias.¹⁷² Consequently, people of color, immigrants, LGBTQ+ identifying people, sex workers, and other marginalized people are more likely to have interactions with police,¹⁷³ and police are more likely to disbelieve them or take adverse action against them in those interactions. Police are relied upon as fact-finders in the context of non-criminal processes such as rental housing decisions, remedies for survivors of violence, and access to public benefits, all of which largely impact people experiencing these forms of marginalization. The result of this domino effect of policies is that the racially discriminatory aspects of the criminal legal system spill over into non-criminal arenas, but without the safeguards intended to guard against racial discrimination in the criminal sphere (however ineffective they might be).

While much of the criticism of racism in policing is focused on mass incarceration, increased surveillance and arrests of Black and Brown people and communities, and police use of force, the racial discrimination inherent in policing does not stop there. When non-criminal processes are dependent upon carceral state actors, the structural racism of the carceral state creates discriminatory effects that limit access to vital resources and remedies for members of marginalized communities.

B. Misallocation and Misuse of Public Resources

One of the likely rationales behind reliance on police as fact-finders is efficiency. Public efficiency rationales may center on the notion that police officers are already trained to conduct investigations and have access to information through law enforcement databases and subpoena power that other entities may not have. Where a third-party witness is necessary to corroborate facts, it may make sense as a matter of cost efficiency to deploy police to serve that purpose.¹⁷⁴ In the private sphere, such as industry requirements to provide police reports to resolve disputes regarding fraudulent debts or to obtain insurance coverage for damaged or stolen property, along with the efficiency rationales above, private business entities are able to outsource the cost and effort of conducting investigation to cost-free public services. However, consideration of both the social costs and allocation of resources for other purposes suggests that using police as essentially outsourced fact investigators is a misuse of public resources.

Critics of policing often point to the outsized budgets allocated to police in comparison to other public services, with much of that money going to staffing.¹⁷⁵ Perhaps contrary to public perception, much of this budget goes toward activities other than enforcement of criminal law. In 2020, the New York Times published an analysis of publicly available data from several large urban police departments, finding that in three major jurisdictions, police spent more time responding to non-criminal calls than any other category, including “proactive,” “traffic,” and “medical or other.”¹⁷⁶

Both proponents of decreased funding to law enforcement and many law enforcement officers themselves have argued that police are asked to take on too many roles, and in many instances, they are taking on roles that they are not trained to perform or acting more like social workers than law enforcement officers.¹⁷⁷ Tasking officers with conducting fact-finding duties primarily for non-criminal purposes like resolving financial disputes or establishing eligibility for public services is arguably a poor allocation of limited resources. As Barry Friedman asks in a recent article questioning the many roles police are asked to take on, “If the police are busy chasing after fairly minor things, in part because someone up the food chain has mandated doing so, they aren’t doing something more productive, like keeping the streets safe.”¹⁷⁸

Additionally, any cost-efficiency analysis of the use of police accounts in non-criminal processes should take into consideration the social harms of having police take on these roles along with economic cost. Rachel Harris has advocated for the notion of “harm efficient policing”—police actions that impose harms are only justifiable “when, all things considered, the benefits for law, order, fear reduction, and officer safety outweigh the cost of those harms.”¹⁷⁹ As I will discuss in Part III infra , the social and economic costs of most uses of police accounts in non-criminal processes likely outweigh their benefits.

In the private context, the use of public resources for the private interests of business entities adds additional complexity to this inquiry. Private entities, notably insurers and financial services providers, rely heavily on police reports to resolve disputes and establish eligibility of their customers for relief from liability.¹⁸⁰ In some of these instances, police do not investigate further or take action to enforce criminal law;¹⁸¹ rather, a police report is created for the primary (and sometimes sole) purpose of providing fact-finding to private entities operating for profit. This practice leads to the use of police resources for private, profit-making ends and reduces available state resources that could be used to benefit subordinated individuals and communities.

III. Epistemic and Structural Harm: Police as

Gatekeepers of Truth

As discussed in the previous Part, as a practical matter, the use of police as fact-finders establishes them as gatekeepers to resources. But beyond the practical difficulties police gatekeeping causes for people seeking noncriminal relief, this phenomenon also causes structural and epistemic harms to individuals, subordinated communities, and American society as a whole. This Article has laid out numerous ways in which members of the judiciary, other state actors, private entities, and individuals rely on police as a source of truth, while the knowledge of those with lived experience is subordinated and marginalized. In this way, police essentially act as gatekeepers of truth. This Part theorizes two types of harm caused by the sociolegal role of police as gatekeepers of truth. First, drawing on the literature of epistemic injustice, I identify ways in which police gatekeeping devalues the epistemic value of ordinary citizens and artificially (and falsely) elevates police as superior sources of knowledge. Second, I discuss how police gatekeeping entrenches carceral supremacy by making it more difficult to divest from practical and cultural reliance on the carceral state.

A. Epistemic Injustice

In addition to the practical harms of reliance on police as fact-finders and gatekeepers to non-criminal processes, these practices cause epistemic harms to individuals, communities, and society as a whole. By elevating the knowledge of police officers over that of persons with lived experience of the particular event, the institutions and entities relying on police accounts of fact diminish the capacity of ordinary people as knowers. This is a reflection of what political philosopher Miranda Fricker has theorized as “epistemic injustice.”¹⁸² Fricker’s early development of this theory also utilizes the concept of “epistemic oppression,” which Fricker argues is “a situation in which the social experiences of the powerless are not properly integrated into collective understandings of the social world.”¹⁸³ In the context of reliance on police fact-finding, epistemic injustice manifests in two complementary aspects: subordination of the knowledge of people with lived experience in the construction of social “truth,” and artificial elevation of police as sources of knowledge, which I identify as “epistemic exceptionalism.”

Fricker defines epistemic justice at its most basic as “a wrong done to someone specifically in their capacity as a knower,” and distinguishes between two kinds or stages of epistemic injustice: testimonial injustice and hermeneutical injustice:¹⁸⁴

“Testimonial injustice occurs when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word; hermeneutical injustice occurs at a prior stage, when a gap in collective interpretive resources puts someone at an unfair disadvantage when it comes to making sense of their social experience.”¹⁸⁵

In the sociolegal context, epistemic injustice occurs when institutions like the judicial system and other state agencies devalue knowledge produced by the people upon whom those institutions act.¹⁸⁶ Both testimonial injustice and hermeneutical injustice come into play where civilians are required to use the account of a police officer, either through a written report or testimony, in order to prove their factual account or eligibility for a resource.

In the context of the reliance on police accounts in non-criminal processes, ordinary civilians experience testimonial injustice when police accounts of the civilian’s own lived experiences are treated as more credible than their own accounts. The culture of American policing contributes to the testimonial injustice experienced by marginalized and over-policed communities. Over-policing leads to both increased interaction with law enforcement for member of poor communities of color.¹⁸⁷ In those interactions, members of marginalized communities are also less likely to be believed, creating police accounts that are at odds with the experiences of the people actually living the events being reported upon. Critics of policing have remarked upon the predominance of a “warrior culture” in American policing—a term which is explicitly adopted by many law enforcement personnel.¹⁸⁸ One key aspect of warrior culture is adopting an “us vs. them” mentality, which views the communities officers are policing as “suspect” and civilians they interact with as possessing inherent criminality.¹⁸⁹ Part I of this Article identifies numerous examples where the “us vs. them” culture of modern policing, along with other individual and structural biases, leads to the subordination and devaluation of the knowledge of people seeking help from the state and private entities.¹⁹⁰ Testimonial injustice occurs when institutions value knowledge provided by police over the knowledge of individuals and communities the police act upon, and police culture breeds suspicion of those same people, devaluing their knowledge of their own experiences on multiple levels.

The practice of reliance on police accounts as a source of truth also creates hermeneutical injustice in several contexts. For example, petitioners are statistically more likely to obtain a protective order if their petition references a police report.¹⁹¹ This reality advantages the accounts of police, which are likely based on evidence provided to them by the survivor, over the account of the survivor herself. As a structural result of this testimonial injustice, justice system actors gain their understanding of intimate partner violence based on the contents of police accounts, which maintains the importance of police as a necessary part of the response to intimate partner violence.¹⁹²

Similarly, in the context of crime-free housing ordinances, police accounts are the determinative story of “criminality” on the part of individual tenants and communities.¹⁹³ Given the fact that most eviction proceedings are uncontested, largely due to procedural hurdles and tenants’ lack of resources,¹⁹⁴ police accounts become the definitive and undisputed story of a tenant, community, and neighborhood, robbing the community of resources to make sense of their own social circumstances. The circular reasoning that a tenant has engaged in conduct constituting a default of their lease because police say so, and we must rely on police reports because they have the knowledge and ability to determine whether the lease is violated, reflects the lack of interpretive resources for communities to determine for themselves the character and nature of their communities, which in turn impacts future law and policy.¹⁹⁵

Narratives of criminality are, of course, not neutral – they reflect the racially discriminatory nature of the American system of mass criminalization.¹⁹⁶ Racially biased mass criminalization “feeds the myth of criminality and validates unwarranted fear. In turn, policing-based housing policies weaponize that fear.”¹⁹⁷ Reliance on police narratives helps to create, reinforce, and perpetuate the myth of Black criminality, which then leads to greater criminalization and other forms of oppression against people of color, including epistemic oppression. Robbing communities and their individuals that constitute them of their capacity as knowers leads to practical consequences, including a diminished ability to seek justice.

Just as reliance on police as fact-finders devalues the capacity of ordinary civilians as knowers, it also overvalues the capacity of police as adjudicators of fact. James Steiner-Dillon coined the term “epistemic exceptionalism” referring to the notion that judges have “superhuman cognitive capacities” and “are more intellectually capable, more fair-minded, and less susceptible to a variety of cognitive fallacies and motivated reasoning than jurors.”¹⁹⁸ Although Steiner-Dillon’s critique centers on attitudes toward judicial decision-making, the concept of epistemic exceptionalism can also be applied to the notion that any actor, including police, somehow has an elevated ability to adjudicate facts and access truth.¹⁹⁹

Since the 1960s, attitudes toward police among justice system actors have markedly shifted, at least in part due to efforts by law enforcement leaders to “professionalize” policing.²⁰⁰ Police increasingly served as expert witnesses for the prosecution based on their training and experience, but their “expertise” has gradually come to extend to an overall sense of increased credibility. As Professor Anna Lvovsky notes:²⁰¹

“Even when officers testify as regular fact witnesses, prosecutors often invoke their credentials to bathe their observations in the aura of authority, walking the court through an officer’s years on the force, number of previous arrests, and courses of academy training, taken and taught. Judges and jurors routinely embrace such credentials as bolstering the weight of police testimony, crediting officers’ ‘training and experience’ in resolving credibility contests in the state’s favor.”²⁰²

This belief in the almost supernatural ability of officers to perceive, report on, and assess situations is not just a public relations campaign. Belief in an ability to detect “bad guys” and in the accuracy of officer perceptions (even in the face of evidence to the alternative), pervades modern policing culture, particularly among the majority of officers who view their role as “warriors” battling a criminal enemy.²⁰³ Through explicit training and cultural practices within law enforcement agencies, the “warrior culture” creates a sense that police officers are their own insular group, separate from and superior to the people they police.²⁰⁴ The “constant ‘training and experience’ refrain” both reflects the belief within law enforcement and attempts to perpetuate the belief within the judiciary and the public that law enforcement officers have an elevated ability as knowers: “The phrase ‘training and experience’ serves to demarcate the line between officer and civilian, expressing explicitly that an officer’s conclusions are grounded in information available to them by virtue of their status.”²⁰⁵

Judges frequently defer to police officers’ factual assertions, both in criminal prosecutions and in civil rights litigation challenging police conduct and policy.²⁰⁶ Jurors and other fact-finders also tend to believe law enforcement officers more than they do other people.²⁰⁷ While most of the scholarship surrounding judicial deference to police is in the context of the criminal legal system, the underlying principles of epistemic exceptionalism are clearly present in public policy and civil society, even outside the context of the judicial system.

When judges defer to police as witnesses, they are not just adjudicating a specific set of facts but also expressing something about the status of police as more credible witnesses than ordinary civilians.²⁰⁸ Elizabeth Anderson and Richard Pildes, prominent theorists of the expressive theory of law, suggest that “legal communications of status inferiority constitute their targets as second-class citizens.”²⁰⁹ While fact-finders deferring to factual assertions by police may not explicitly state that ordinary citizens are inferior to police (at least in their ability to perceive and communicate truth), that assertion is implicit in recognizing police officers as superior .

Judicial deference to police as fact witnesses is all the more concerning when one considers the types of cases in which judges, rather than juries, make credibility determinations. Scholars and lawyers representing indigent clients have identified the phenomenon of “poor people’s courts”: specialized civil courts or dockets which primarily adjudicate matters involving indigent, unrepresented litigants, including courts hearing family law matter, cases related to consumer debt and other small claims, housing actions, civil domestic violence matters, and other issues disproportionately experienced by the poor.²¹⁰ These courts frequently use less formal procedural rules, leading Elizabeth MacDowell to refer to them as “delegalized courts” in which litigants “are likely to contend with hard-to-discern informal standards, or decisions that depart from rules altogether, so that the law appears opaque and arbitrary.”²¹¹ In some types of poor people’s courts, such as housing court and consumer debt dockets, courts defer to “repeat player” parties like corporate landlords and institutional creditors in both substantive and procedural matters.²¹² Relaxed procedural and evidentiary rules, combined with institutional relationships between judges and witnesses or parties who repeatedly appear before them, mean that the danger of judicial bias in assessing credibility of law enforcement witnesses is even greater in poor people’s courts.²¹³ Additionally, litigants in these courts are more likely to have police interactions,²¹⁴ which creates an even greater substantive impact of police testimony on the adjudication of highly important issues like housing and child custody.²¹⁵

The impact of epistemic exceptionalism toward police can be seen not just in the various policies discussed in this paper which explicitly credit police accounts as an inherently legitimate source of truth, but also in societal attitudes toward police accounts as demonstrated by (and impacted by) news media. While news media may not directly impact the rights of individual parties in most cases, the media is pivotal in the social construction of “truth.” Journalists frequently rely on police reporting with little skepticism of the veracity of police reports and statements issued by law enforcement agencies and/or their public relations offices.²¹⁶ Various entities have critiqued this practice, including the American Bar Association,²¹⁷ the Global Investigative Journalism Network,²¹⁸ and many journalists themselves.²¹⁹ However, news agencies continue to rely on police sources foll, so much so that they sometimes consider other accounts to lack credibility until they are corroborated by a police report. Take the example of a 10-year-old Ohio girl who crossed state lines to seek abortion care in Indiana after the Supreme Court’s reversal of Roe v. Wade .²²⁰ News sources initially stated that the report was false and/or could not be fact-checked,²²¹ but later agreed that the story was true when law enforcement confirmed it.²²²

Another example of reporting relying exclusively on (later disproven) police reports is the initial reporting of the murder of Laquan McDonald. In its initial reporting of the shooting, the Chicago Tribune, citing a spokesman for the Fraternal Order of Police, stated that McDonald was shot after refusing to put down a knife, and that he was standing next to a car stabbing its tires with a knife when officers responded.²²³ The only sources cited in the article were law enforcement officials.²²⁴ Thirteen months later, the Chicago Police released dashcam footage upon a court order, which revealed that Officer Jason Van Dyke had shot McDonald 16 times in 15 seconds while McDonald was facing away from him.²²⁵ Van Dyke was later convicted of second-degree murder and 16 counts of aggravated battery with a firearm for the killing.²²⁶

The above examples are extreme versions of police lying in police reports, but there is evidence that while it may not be quite as extreme as these cases, police lying is a rampant practice—enough so that police perjury is frequently called “testilying.”²²⁷ However, even if police are not actually lying , the implication that they have some sort of enhanced ability to perceive and communicate facts more accurately and truthfully than others lacks significant evidence.²²⁸ As Anna Lvovsky discusses, increased deference to police officers seems to be due at least in part to the “professionalization” of police forces in the mid-twentieth century.²²⁹ In the context of criminal procedure, courts frequently express their deference to police on the basis of their “training and experience.”²³⁰ However, at least in terms of training, police officers do not appear to have greater ability than anyone else to determine what “really happened.”

A study of police academies by the federal Bureau of Justice Statistics found that, on average, trainees completed 24 hours of training on report writing and 36 hours on investigations.²³¹ There is no specific data regarding training in civil or family law, but trainees received an average of 51 hours of training on criminal/constitutional law.²³² For context, trainees received an average of 61 hours on defensive tactics, 73 hours on firearms skills, 20 hours on non-lethal weapons, and 18 hours on “de-escalation/verbal judo.”²³³ Compare this to training requirements for other professions—for example, in California, peace officers are required to complete a total of 664 hours in an initial training course, followed by 24 hours of continuing education each year.²³⁴ By contrast, a cosmetologist or barber in California is required to complete a course constituting a minimum of 1,000 hours of practical and technical instruction.²³⁵ In addition to the limited number of hours that officers receive in investigating and documenting facts, social science suggests that officers do not have an increased capacity to detect the truth, and in some cases may be less accurate at judging deception.²³⁶

While police are often tasked with collecting and evaluating evidence, as Professor Barry Friedman suggests, it is not clear that they are necessarily good at it:

“It’s certainly possible to charge officers with the first function, evidence gathering and report writing, but the question remains whether they are the best at it. […]Recent breakthroughs in forensic science suggest we need way less police and much more dispassionate evidence collection and evaluation to get things right. Interviewing witnesses requires a certain combination of skepticism and emotional intelligence: getting people to feel comfortable enough to open up, and probing to make sure stories hang together. Cops may be good at one and not necessarily at the other. Then there is the writing of reports so that there is an accurate record. As we saw with traffic accident reports, it is not clear this is what officer are best-suited to.”²³⁷

Despite this lack of evidence that police are better at evaluating facts and/or more truthful than the general populace, perhaps as a result of epistemic exceptionalism we continue to task them with doing so.

B. Entrenching Carceral Supremacy

The harms discussed above are distinct but all relate to the same larger structural harm: entrenching carceral supremacy.²³⁸ Reliance on police accounts for fact-finding means that we are relying on the carceral state not just for the purpose of upholding the criminal legal system, but for the operation of our daily civil society.

All of the above-described problems are compounded when we rely on police for everyday non-criminal interactions. Relying on police as crucial elements of non-criminal processes normalizes their presence at all times. For example, police are frequently present in hospitals, in part because courts have determined that they are needed there. “The courts’ determination of the ER as an open and public space is also premised on the need for police to conduct general fact-finding investigations. This means that police can engage in preliminary investigations without triggering constitutional requirements.”²³⁹

When police are omnipresent, they become tasked with solving problems that are not necessarily criminal in nature. For instance, police are often expected to take on the role of mediators of interpersonal conflict.²⁴⁰ Only 74.7% of trainees in police academies receive any training on mediation and conflict management, and those who do receive on average 13 hours of training.²⁴¹ “There’s no particular reason to believe the people who become police are particularly good at this sort of dispute resolution. They might be, but they may not. Some officers are better than others. We don’t test for it. We don’t do much to train for it. Many learn it on the job.”²⁴² While police engage in informal dispute resolution in the form of “community policing,” police fact-finding is essentially another method of dispute resolution— police decide whose narrative is right and put their findings in a report or testify for one party in a civil matter, which may very well be determinative of the matter. Despite the lack of evidence that they are effective at it, police are central to both criminal and civil dispute resolution in the United States.

The centrality of police accounts to non-criminal processes makes it more difficult to divest from militarized law enforcement, both practically and politically.²⁴³ Practically, if things like identity theft protections, custody disputes, and insurance coverage depend upon securing a police report or police testimony, efforts to reduce the size of or defund police will result in lack of access to those resources. Politically, the phenomenon of epistemic exceptionalism resulting from and contributing to the centrality of police in everyday civil society means that efforts around diminishing the role of police are likely to continue to face significant pushback from communities who believe in the importance of police for an orderly society.

IV. Critical Inquiries for Developing Alternatives

As the above discussion reflects, the problem of police gatekeeping has wide and varied sources and manifestations. While some manifestations have more clearcut solutions, for example regulating TANF good cause waiver processes to prohibit requiring police reports as evidence of eligibility, others likely require cultural change in place of or in addition to specific legislative or regulatory fixes. While there is no one-size-fits-all solution, this Part aims to develop a set of guidelines or critical inquiries to develop alternatives to reliance on police accounts and/or limit the harmful impacts of the role of police as gatekeepers.

The first critical inquiry regarding any manifestation of non-criminal reliance on police accounts is whether it is even necessary to have a thirdparty to corroborate a claimant’s story. In non-adversarial matters where a police report is simply used to verify a claimant’s status or eligibility for an entitlement, like a waiver of TANF child support cooperation requirements or access to crime victim compensation funds, can applicants be allowed to self-certify their status?²⁴⁴ Despite political rhetoric, there is little evidence of widespread public benefits fraud.²⁴⁵ Various state and federal remedies for survivors of intimate partner violence permit survivors to self-certify their status²⁴⁶—the continued existence of these remedies is evidence of the success of self-certification for entitlements.

Second, analysis of a police reporting requirement should ask whether a police report will actually provide any corroborative evidence. For example, in the context of identity theft, the lack of training in identity theft investigation along with guidance provided to law enforcement agencies directing them to simply put what a consumer tells them into a form report suggests that in many circumstances, police do not add anything to a report that the recipient would not have if the consumer simply provided an affidavit.²⁴⁷ In these circumstances, what is the purpose of obtaining a police report? While the answer to this question may not be determinative, it should inform the utility to be considered in a harm-efficiency inquiry (discussed below).

Third, if there is a legitimate need for corroborative evidence, a critical inquiry should consider whether police accounts are the best or most appropriate source of this evidence. This inquiry should utilize a harmefficiency model, rather than simply a cost-efficiency model.²⁴⁸ Critical questions to consider at this point may include:

• Does relying police fact-finding simply make life easier or

cheaper for a private entity? If so, is this an appropriate use of public funds?

• Is it normatively appropriate for the carceral state to be

involved in this type of factual inquiry, i.e. is the factual inquiry related to a legitimate use of state power to control behavior through force?

• For what purpose is information provided by police being

used?

• What benefit do police actually add to the fact-finding

process in these circumstances?

• Are police actually skilled at fact-finding in these circumstances? • What harm may be caused to individuals or the community by requiring them to interact with police in these

circumstances?

• Would using police as fact-finders have a discriminatory

effect under these circumstances? In conducting this analysis, a decisionmaker should be particularly sensitive to question the assumption that the skills that police officers have and the tools available to them are appropriate for the task they are given.

“A particularly pressing question is whether, for many calls for assistance, the police are needed at all. When the police are involved, enforcement always is a possibility; without them there, it is much less so (though the police always can be called, of course). As Monica Bell points out, ‘routing rehabilitation and social services through the police could perversely widen the carceral net and reify the ‘culture of control.’’ Police, by their nature, ‘may be more punitive or less empathetic than the average civil servant.’ On the other hand, involving the police paradoxically might well add a benefit that often is overlooked: their capacity to get other agencies to do their job.”²⁴⁹

If there is a legitimate need for corroborative evidence, as in adversarial factual disputes like auto torts where a disinterested third-party can provide credible evidence, we should explore whether it is possible to create nonpolice entities available to take on the role of fact reporting without using police powers. For instance, Jordan Blair Woods has recently proposed the creation of civilian entities tasked with investigating traffic enforcement, rather than police.²⁵⁰ Similarly, particularly given that police only receive an average of 26 hours of training on traffic accidents,²⁵¹ civilians could easily be given the same amount of training and be deployed to serve as third-party witnesses to provide reports to insurers or motorists for the use in tort claims. This could take the form of a state agency without police powers, or of a sort of voluntary mutual aid. As Barry Friedman points out, “Sure, it’s possible that even the helping hand for the stranded motorist could turn ugly. Then again, AAA helps lots of stranded motorists daily, without armed assistance ever proving necessary. What we may need instead are cadres of report takers, and political decisions about how to automate enforcement.”²⁵²

Of course, policing is not the only institution infected by structural racism, and police officers are not the only individuals who hold implicit racial bias.²⁵³ Non-police third-party witnesses also bring with them biases based on race, gender, ability, language, immigration status, and other aspects of identity. While removing police from the fact-finding equation in non-criminal processes may be a step toward mitigating the greatest harms of the carceral state, advocates developing alternatives should be careful to avoid recreating carceral logics and replicating carceral harms.²⁵⁴

At the heart of the set of critical inquiries laid out above is the basic inquiry: why are we doing this? Are corroborative requirements necessary in the first place? If fact-finding requirements are in place because of assumptions that social control is a necessary pre-condition of receiving support, the carceral logic underlying the requirements should be questioned. Attempts to extricate reliance on police from non-criminal processes should be careful to avoid recreating the discriminatory dynamics of the carceral state, and this set of inquiries should evolve and be adapted based on the specific dynamics and needs of each community and system.²⁵⁵

Since the manner in which police are intertwined in daily civil society is complicated and varied, there is no one solution for every manifestation of the problem this Article attempts to spell out. However, we can start to reform by acknowledging the pervasive nature of the police in our society and questioning the assumption that it must be so.

Conclusion

The tentacles of the carceral state reach much further than many of us acknowledge. Policing is not restricted to arresting, incarcerating, and controlling people through the threat or use of force—the carceral state is also central in the operation of countless ostensibly non-criminal processes. Recognizing the ways in which civil society relies upon police as gatekeepers of both practical resources and the social conception of truth is a first step toward reducing the role of the carceral state. The influence of police is hidden in the background of our daily lives. Shining a light on this influence—and questioning it—can allow us to rethink our ways of knowing and reimagine structures that promote autonomy, reduce hegemonic state control, and begin to take practical steps toward diminishing the supremacy of the carceral state.