Anna Lvovsky

In the mid-twentieth century, gay life flourished in American cities even as the state repression of queer communities reached its peak. Liquor investigators infiltrated and shut down gay-friendly bars. Plainclothes decoys enticed men in parks and clubs. Vice officers surveilled public bathrooms through peepholes and two-way mirrors. In Vice Patrol, Anna Lvovsky chronicles this painful story, tracing the tactics used to criminalize, profile, and suppress gay life from the 1930s through the 1960s, and the surprising controversies those tactics often inspired in court. Lvovsky shows that the vice squads’ campaigns stood at the center of live debates about not only the law’s treatment of queer people, but also the limits of ethical policing, the authority of experts, and the nature of sexual difference itself—debates that had often unexpected effects on the gay community’s rights and freedoms. Examining those battles, Vice Patrol enriches understandings of the regulation of queer life in the twentieth century and disputes about police power that continue today.

This article examines a counterintuitive phenomenon: cases where claims of police expertise do not bolster but undercut police authority in court. Assertions of unique insight, training, and experience have long provided officers with a reliable claim to deference, deflecting a range of challenges to police misconduct. Yet in a variety of disputes, from coerced confessions to entrapment to excessive force, policemen’s comparative expertise emerges in the opposite posture, stoking judicial discomfort with enforcement tactics and driving adverse holdings against the state. The gap between these strategies, I argue, reflects a tension between two fundamentally distinct conceptions of expertise: what this article identifies as seeing expertise as a professional virtue or a professional technology. The virtuous view imagines expertise as a de facto institutional good, commanding authority because it presumptively improves enforcement outcomes or, simply enough, because it is valuable in itself. The technological view, by contrast, imagines it simply as an asset that facilitates the performance of investigative tasks, expanding police power in the field and thereby—like the more familiar technologies of policing, from surveillance devices to location trackers—reconfiguring what courts see as the proper balance of power between the individual and the state. Far from invariably deflecting criticism, by this view, the significance of police expertise rests on its interplay with the specific values animating the courts’ procedural doctrines in any case: what the police are expert at and how those skills intersect with the goals of a given genre of review. The courts’ dual approaches to police expertise illuminate debates about deference and competency in and beyond the criminal law. For one thing, they expose the moralistic assumptions undergirding our shared intuitions about expertise as a source of institutional authority, urging greater skepticism of a range of legal doctrines grounded on judicial self-abnegation to ostensibly more expert actors. At the same time, they complicate the conventional link between expertise and authority itself, revealing the ambiguous relationship between competency and legitimacy in a system administered by multiple, often-conflicting agents of the law. Not least, they invite us to confront our commitment to certain government tasks, like so many apparently entrusted to the police, that ironically inspire less controversy the less masterfully they are performed. Building on these insights, this article contends that courts should take a technological view of expertise in all their encounters with law enforcement, a shift that will yield more rigorous scrutiny of a broad range of police behavior. In a legal system populated by an increasingly professionalized police force, we must do away with the assumption that more expert policing is, invariably, more lawful policing, and recognize how that development raises new issues for—and imposes novel obligations on—judges committed to the protection of individual rights.

The mid-twentieth century witnessed a boom in policing against homosexual cruising, the practitioners of which relied on a set of robust defense tactics to avoid detection by strangers. Frustrated by the difficulties of catching suspected cruisers, police departments developed a variety of surreptitious, deeply intrusive surveillance tactics for monitoring public bathrooms. Yet while necessitated by the insularity of modern cruising culture, these surveillance tactics were legitimized in court partly through judges’ very skepticism of that culture. Weighing the utility of clandestine surveillance against its intrusion on innocent citizens, judges frequently justified surveillance by characterizing cruisers as sexual predators eager to expose themselves to innocent victims. From inception to conviction, the utility of clandestine surveillance thus depended partly on an epistemic lag between the arms of the criminal justice system: a disconnect between the police’s sensitivity to contemporary homosexual practices and judges’ continuing insistence on an older paradigm of perverse predation.

The Fourth Amendment is generally seen as a procedural provision blind to a defendant’s conduct in a given case, distinguished on that very ground from the Supreme Court’s frequently moralistic assessment of conduct in its due process privacy caselaw. Yet ever since the Court recentered Fourth Amendment protections around an individual’s reasonable expectations of privacy, it has consistently tied those protections to the nature and, specifically, the social value of the activities involved. As in its substantive due process cases, the Court frequently allots Fourth Amendment privacy interests based on its moral evaluation of private acts, privileging conventional social goods like domesticity, romantic relations, and meaningful emotional bonds. And in some cases—most notably those involving aerial surveillance, home visitors, and drug testing—the Court has adopted an expressly retrospective analysis, tying Fourth Amendment rights to a defendant’s actual conduct at the time of a search. This unrecognized strain of moralism in the Fourth Amendment is a troubling development, unmoored from the Amendment’s text, hostile to its well-documented history, and obstructive of its practical operation in regulating police abuses. Not least, that moralistic approach upends prevailing understandings of privacy, as a refuge from the pressures and expectations of society. Especially in the electronic age, as digital technologies vastly expand the police’s ability to parse categories of private data, the Court must cabin its moralistic turn, restoring a richer view of Fourth Amendment values as encompassing individualistic and unorthodox pursuits. This Article identifies two immediate steps for moving forward: renouncing the Court’s privileging of “intimate” over impersonal conduct and reconsidering the controversial binary-search doctrine gleaned from the Court’s drug-testing cases. More fundamentally, it joins an ongoing debate about the adequacy of the Court’s privacy-based Fourth Amendment framework, suggesting both the importance and the difficulty of restoring a Fourth Amendment attuned to liberal values of individualism and moral autonomy. Finally, this Article addresses what the surprising rise of Fourth Amendment moralism suggests about constitutional privacy rights more broadly. Belying the value of privacy as a sanctuary from social judgment, the Court’s persistently moralistic jurisprudence challenges the extent to which our Constitution has ever protected, and perhaps can ever protect, a robust right of “privacy” as such.

This Article examines the unrecognized origins and scope of the judicial presumption of police expertise: the notion that trained, experienced officers develop insight into crime sufficiently rarefied and reliable to justify deference from courts. That presumption has been widely criticized in Fourth Amendment analysis. Yet the Fourth Amendment is in fact part of a much broader constellation of deference, one that begins outside criminal procedure and continues past it. Drawing on judicial opinions, appellate records, trial transcripts, police periodicals, and other archival materials, this Article argues that courts in the mid-twentieth century invoked police expertise to expand police authority in multiple areas of the law. They certified policemen as expert witnesses on criminal habits; they deferred to police insights in evaluating arrests and authorizing investigatory stops; and they even credited police knowledge in upholding criminal laws challenged for vagueness, offering the officer’s trained judgment as a check against the risk of arbitrary enforcement. Complicating traditional accounts of judicial deference as a largely instrumental phenomenon, this Article argues that courts in the midcentury in fact came to reappraise police work as producing rare and reliable “expert” knowledge. And it identifies at least one explanation for that shift in the folds and interconnections between the courts’ many diverse encounters with the police in these years. From trials to suppression hearings to professional activities outside the courtroom, judges experienced multiple sites of unique exposure to the rhetoric and evidence of the police’s expert claims. These encounters primed judges to embrace police expertise not only through their deliberative content, but also their many structural biases toward police knowledge. This development poses important and troubling consequences for the criminal justice system, deepening critiques of police judgment in criminal procedure and raising novel concerns about the limits of judicial reasoning about police practices.

This Note examines the institutional biases underlying courts’ persisting, and deeply criticized, resistance to expert testimony on the reliability of eyewitnesses. While such resistance is generally explained as preserving the jury’s authority over fact-finding, protecting the democratic jury trial against “professionalization” by an elite class of experts, I argued that it more frequently reflects judges’ sense that eyewitness experts fail to improve on traditional safeguards provided by judge and attorneys, such as jury instructions and cross-examination — effectively preserving the trial as the professionalized realm of expert jurists. In context, advocates urging the admission of expert testimony should focus less on establishing the gap between expert and lay knowledge regarding eyewitnesses, and more on establishing the gap between expert testimony and judicial alternatives in correcting juror misconceptions.