RECENT EVENT CRIMINAL LAW — CAMPUS POLICING — UNIVERSITY POLICE OFFICER SHOOTS AND KILLS NON-UNIVERSITY-AFFILIATED MOTORIST DURING OFF-CAMPUS TRAFFIC STOP. — The Shooting of Samuel DuBose. In many ways, the shooting of Samuel DuBose appears to fit an all-too-familiar pattern of police violence.1 On the evening of July 19, 2015, in Cincinnati, Ohio, Officer Raymond Tensing — who is white — stopped DuBose — who was black — for a minor moving vi- olation.2 After DuBose was unable to produce his driver’s license, Tensing directed him to remove his seatbelt and tried to open DuBose’s driver’s side car door.3 “I didn’t even do nothing,” DuBose protested, as he held his door closed and turned the key to his car’s ig- nition.4 Yelling for DuBose to stop, Tensing reached for him with one hand and his service weapon with the other. He then fired one shot — killing DuBose instantly.5 Although Tensing claimed that he dis- charged his weapon only after being dragged by DuBose’s vehicle,6 his body camera footage plainly contradicted his account.7 In announcing Tensing’s indictment for murder, the county prosecutor condemned the officer’s actions as “asinine,” adding: “It’s an absolute tragedy in 2015 that anyone would behave in this manner. [Tensing] lost his tem- per because Mr. DuBose wouldn’t get out of his car quick enough.”8 There are any number of narratives that might be spun from DuBose’s killing. However, one especially notable aspect of this par- ticular instance of police violence is that Tensing was an officer of the University of Cincinnati (UC) Police Department — yet he pulled ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See, e.g., Richard Pérez-Peña, Fatal Police Shootings: Accounts Since Ferguson, N.Y. TIMES (Apr. 8, 2015), http://www.nytimes.com/interactive/2015/04/08/us/fatal-police-shooting -accounts.html. 2 See Eric Weibel, Univ. of Cincinnati Police Div., Information Report, Case No. 201502732, at 1, 3 (July 20, 2015) [hereinafter Police Report], http://www.uc.edu/content/dam/uc/ucomm/docs /incident-report.pdf [http://perma.cc/QCZ8-U2ZH] (indicating that Tensing pulled over DuBose due to a missing front license plate). 3 See Sharon Coolidge et al., Prosecutor: UC Officer “Purposefully Killed” DuBose, CIN. ENQUIRER (July 30, 2015, 12:57 PM), http://www.cincinnati.com/story/news/2015/07/29/publish /30830777 [http://perma.cc/K3CV-LMU4]. 4 See id. 5 See id. 6 See Police Report, supra note 2, at 1–2. 7 See Coolidge et al., supra note 3. 8 Scott Eric Kaufman, “This Is, Without Question, a Murder”: Prosecutor Indicts “Asinine” White Cop in Shooting Death of Unarmed Black Motorist, SALON (July 29, 2015, 2:08 PM), http:// salon.com/2015/07/29/this_is_without_question_a_murder [http://perma.cc/A77D-TF2D]. 1168 2016] RECENT EVENT 1169 DuBose over on a public street several blocks south of UC’s campus.9 DuBose was neither affiliated with the university, nor suspected of committing a crime on university property or against a university- affiliated individual.10 That he was nonetheless stopped, seized, shot, and killed by a UC police officer casts new light upon the increasing role that colleges and universities play in policing the public at large. Although campus police departments have come to take on many of the characteristics of traditional police forces, they remain troublingly insulated from democratic control and public oversight. How DuBose found himself on the other end of a campus police of- ficer’s gun warrants further explanation. While campus police de- partments have existed for well over a century, they initially served a largely “custodial” function.11 But as colleges and universities began experiencing rapid growth in the mid-twentieth-century — and as in- stances of student unrest began occurring with greater frequency — school administrators increasingly sought to recast campus police de- partments in the mold of their municipal counterparts.12 To that end, state legislatures, as well as state and local police de- partments, proved to be willing facilitators.13 By the turn of the mil- lennium, most states had passed laws authorizing campus “policing” in some form.14 Ohio, for example, not only permits private and public ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 9 Compare Police Report, supra note 2, at 1 (indicating that DuBose was stopped near the in- tersection of Vine Street and Thill Street), with ROBIN S. ENGEL ET AL., UNIV. OF CINCINNATI CAMPUS CRIME REDUCTION COMM., 2014 CAMPUS CRIME REPORT 14 fig.1 (2015), http://uc .edu/content/dam/uc/publicsafety/docs/2014%20Campus%20Crime%20Report_FINAL.pdf [http:// perma.cc/854J-KU98] (showing that the intersection of Vine and Thill is beyond the university’s “Clery Timely Warning Area,” which the university defines as “a zone with a high concentration of students,” id. at 14). Notably, UC’s “Clery Timely Warning Area” constitutes “a larger geo- graphic area than the area identified for mandatory crime reporting” by the Jeanne Clery Disclo- sure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (2012). ENGEL ET AL., supra, at 14. 10 See Police Report, supra note 2 (making no mention of a connection between DuBose and UC). 11 See John J. Sloan, The Modern Campus Police: An Analysis of Their Evolution, Structure, and Function, 11 AM. J. POLICE, no. 2, at 85, 86–87 (1992). 12 See id. at 87–88; see also Clifford D. Shearing & Philip C. Stenning, Private Security: Im- plications for Social Control, 30 SOC. PROBS. 493, 496 (1983) (offering the university campus as an example of “mass private property”: “huge, privately owned facilities” with largely public func- tions). Concern over liability for campus crimes may have also contributed to this shift. See Max L. Bromley, Policing Our Campuses: A National Review of Statutes, 15 AM. J. POLICE, no. 3, at 1, 2 (1996). 13 See Jamie P. Hopkins & Kristina Neff, Jurisdictional Confusion that Rivals Erie: The Juris- dictional Limits of Campus Police, 75 MONT. L. REV. 123, 129 (2014) (“[S]tate and private educa- tional institutions cannot merely establish campus police offices with full police power and au- thority on their own initiative; it must be granted through some type of state authority.”). 14 See id. (citing Bromley, supra note 12, at 5); SEYMOUR GELBER, NAT’L INST. OF LAW ENF’T & CRIMINAL JUSTICE, U.S. DEP’T OF JUSTICE, THE ROLE OF CAMPUS SECURITY IN THE COLLEGE SETTING 35 (1972), http://www.ncjrs.gov/pdffiles1/Digitization/8966NCJRS 1170 HARVARD LAW REVIEW [Vol. 129:1168 colleges and universities to “appoint” or “designate” campus police of- ficers, but also vests those officers with full law enforcement power.15 In states where no such laws exist — or for officers of private institu- tions not covered by state law16 — state or local law enforcement agencies commonly deputize campus police officers, thereby “enabling the [campus] police to exercise state police powers.”17 Today, it is customary for colleges and universities to be patrolled by campus officers who are nearly indistinguishable from municipal officers in both appearance and practice.18 Student activism may no longer pose the same threat to the higher education establishment that it once did,19 but both federal law and market forces have increased awareness (and, arguably, concerns) about campus safety.20 And in ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– .pdf [http://perma.cc/VZ86-9NY4] (noting that many “states permit the state governing body for higher education to appoint campus police officers with power to arrest”). 15 See OHIO REV. CODE ANN. § 1713.50(C) (LexisNexis 2015) (vesting private campus police officers with “the same powers and authority that are vested in a police officer of a municipal corporation or a county sheriff”); OHIO REV. CODE ANN. § 3345.04(B) (LexisNexis 2013) (author- izing “state university law enforcement officers” to, inter alia, “serve as peace officers”). 16 Whereas a few states make no distinction between officers at private rather than public in- stitutions, see Hopkins & Neff, supra note 13, at 132 (observing that for the purpose of its campus police law, Georgia defines “college or university” as “an accredited, nonproprietary, public or pri- vate educational institution of higher learning” (emphasis added) (quoting GA. CODE ANN. § 20-8-1(3) (2010))), the majority of states grant authority solely to public institutions or otherwise make this distinction more clear, see id. at 132–33. 17 Id. at 130 n.53; see also Jeffrey S. Jacobson, The Model Campus Police Jurisdiction Act: Toward Broader Jurisdiction for University Police, 29 COLUM. J.L. & SOC. PROBS. 39, 65–69 (1995) (“After completing all training requirements for municipal police in Connecticut, and after approval by the New Haven Board of Police Commissioners, Yale officers receive badges and shield numbers identifying them as New Haven (not Yale) police.” Id. at 65.). 18 As of the 2011–12 academic year, nearly two-thirds of four-year colleges and universities with 2500 or more students employed sworn and armed officers. See BRIAN A. REAVES, BU- REAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CAMPUS LAW ENFORCEMENT, 2011–12, at 2 tbl.2 (2015), http://www.bjs.gov/content/pub/pdf/cle1112.pdf [http://perma.cc/3BQC -K29C]. Although a significantly higher percentage of public institutions employ such officers, a substantial portion of private institutions do the same. See id. (indicating that 91% of surveyed public institutions and 30% of surveyed private institutions employed sworn and armed officers). 19 This is not to say that campus administrators no longer task campus police officers with responding to student unrest. See, e.g., CRUZ REYNOSO ET AL., UC DAVIS NOVEMBER 18, 2011 “PEPPER SPRAY INCIDENT” TASK FORCE REPORT 11 (2012), http://ahed.assembly.ca.gov /sites/ahed.assembly.ca.gov/files/hearings/1.%20Reynoso%20Task%20Force%20Report.pdf [http:// perma.cc/4AST-R267] (finding it “difficult to avoid the conclusion” that university leaders’ “analy- sis of alternatives to the immediate deployment of the [campus] police [to disband the Occupy UC Davis campsite]” was “inconsistent and incomplete”).