Since 15 March 2024, Germany has an ombudsperson for its federal police forces. The German Bundestag passed a law creating the Polizeibeauftragte des Bundes (federal police commissioner). The former MP and police officer Uli Grötsch was appointed to be the first to take office. While this is a first for the federal level the idea itself is far from new. Similar ombudspersons exist already on the state level, the Länder (see here). The federal institutions are only catching up. However, it is still an opportunity to look at this way of containing police activities. According to section 1 Nr. 1 PolBeauftrG the new Polizeibeauftragter des Bundes is responsible for the Bundespolizei (federal police), the Bundeskriminalamt (federal criminal police office) and the Polizei beim Deutschen Bundestag (parliamentary Police at the Bundestag). The Bundespolizei is the police of interest for this article. Its main tasks are everything in the context of border control. Section 1 Nr. 1 PolBeauftrG explains further that one of the tasks is the analysis of structural issues within these institutions. In addition, section 1 Nr. 2 PolBeauftrG refers explicitly to Article 3 Grundgesetz which includes the constitutional protection against racial discrimination. Accordingly, one of those issues should be the question of structural racism within the Bundespolizei.
This contribution will firstly outline the problematic structure of the legal bases for police operations such as stops. This legal structure must be put into its practical context. Hence in a second step the application of those legal bases will be analysed. Lastly the combination of legal basis and application can offer the possibility of a sound critique the Polizeibeauftragte des Bundes Uli Grötsch should consider.
A legal structure prone to abuse?
In the German federal system, police is a matter of the 16 Länder (federal states). The Bundespolizei is the national and principal federal law enforcement agency of the German Federal Government, being subordinate to the Federal Ministry of the Interior. Formerly, it was the border police. At present, the federal police are primarily responsible for border protection and railroad and aviation/air security. In addition, the agency is responsible, among other tasks, for the protection of federal constitutional bodies. Accordingly, the Bundespolizeigesetz (BPolG) provides legal bases for police stops at the border, the so-called dragnet control (Schleierfahndung), and at railway stations as well as within trains. Section 23 para. 1 Nr. 3 BPolG authorises the Bundespolizei to carry out police stops within a range of 30 km to the border. Within this area any person can be controlled. Those police stops are proactive stops that may be carried out without any suspicion. This conception grants the police a wide margin of discretion. Beside a certain area and the wide margin of discretion the legal bases formulate an objective as for example the prevention of illegal migration or specific migration related criminal offences. To summarise: The Bundespolizei can carry out identity checks on any person at certain areas if they think it may help their objective of preventing illegal migration. In addition to identity checks there are legal bases for questioning persons. Section 22 para 1a BPolG is notorious in this regard. Compared to section 23 para. 1 Nr. 3 BPolG; its conception is vague. While it also names an objective in preventing illegal migration, the control areas are, among others, trains and railway stations in Germany if the Bundespolizei has data or experience that this route might be used for illegal migration.
This is broad, as the police themselves produce the data and experience that are a prerequisite for the authorisation to question people. The threshold is low. However, it only authorises the questioning of people, and if needed, to take their identity if further communication is needed, for example as a witness. More than once courts have ruled identity checks based on section 22 para 1a BPolG as unlawful as the police could not show that a questioning happened at all. That means that the police tried to use this broad legal foundation for unlawful identity checks instead of mere questioning. Both legal bases are only examples of a problematic legal structure. However, it is not limited to the federal level. All federal states have similar legal bases. Hence, the considerations made here also apply to the Länder. Further, the legal bases of the so-called dragnet control are not an exclusively German phenomenon. The precedent before the European Court of Justice comes from France and the Netherlands, see for the Dutch debate here.
Since time immemorial problematic law
Although there are similarities on a European level, regarding Germany Section 22 para 1a BPolG and Section 23 para. 1 Nr. 3 BPolG are a unique conception. In general, German police law and its stipulated intervention rights are organised around the concept of “danger prevention” (Gefahrabwehr) and the legal term “danger” (Gefahr). The stops without any suspicion are not within this conception, as they do not require any danger. The two legal bases of the BPolG that are discussed above do not require “danger”. In the case of section 23 para. 1 Nr. 3 BPolG, it is sufficient that a person is at a certain area to fulfil the requirements for an identity check. While the introduction of such legal bases was a controversy 30 years ago, today they are widely accepted. The criticism that the legal bases lack “danger” as a requirement hence have a too low threshold could not prevail. Beyond that they are now considered indispensable for German police law (see here). Nevertheless, there are still debates. However, those are mainly focusing on the compatibility with EU law and not the low threshold of the controls, see here, here, here and here. Consequently, not only the Bund but also the federal states have similar legal bases in their police law. Those legal bases are praised in political debates for their flexibility and efficiency. Even though at least their efficiency is highly questionable, the constitutionality is nowadays hardly contested. The legal bases offer a range of application possibilities of which a constitutional option is always existent. In a nutshell, there are legal bases with extensive wide discretion for identity checks. Their objective is among other things the prevention of illegal migration. Even if the combination of wide discretion and the objective to prevent illegal migration already seems problematic at least the possibility of a constitutional result exists.
An institutional structure
Keeping the wide discretion in mind we must switch our focus to the question of what is known to the police. What kind of information fills in the wide discretion? On what factual basis is a stop taken out when law does hardly set any boundaries? How are the possibilities chosen, how is the person chosen for control? This law in action perspective is crucial to gain an insight beyond the so called “black-letter law” and this perspective is often missing in German jurisprudence, by way of exception see here. Social science research describes the police as a multifaceted institution. One important aspect is the working culture within the police. For police stops research shows that on-the-job experience is highly valued. In addition, there is a specific work identity labelled as cop culture (see B Bowling, R Reiner and J W E Sheptycki, The politics of the police (5th edn, OUP 2019) 164 ff.). Within cop culture experience, oral history and in the end, narratives are immensely relevant (Rafael Behr, Cop culture – der Alltag des Gewaltmonopols (2nd, VS Verlag für Sozialwissenschaften 2008) 231 ff; Stephanie Schmidt, Affekt und Polizei (transcript 2022) passim). Several publications and projects describe this phenomenon in Germany as well. Both studies, MEGAVO and Gewalt im Amt, have findings on that matter. The Berliner Polizeistudie characterises a shared professional experience, a common knowledge. Within the cop culture this becomes influential. The description of knowledge being passed on through storytelling is crucial for the process of creating new knowledge as an institution in general. If oral history is more valued than extern research or data, it affects the common knowledge of the institution. Every type of knowledge acquisition must always be reflected upon. Experiences and narratives are particularly problematic. Both types of knowledge harbour risks in an unreflected form. If individual experiences are generalised, stereotypes and prejudices can appear. The reproduction of this type of knowledge can create a constructed knowledge solely based on storytelling and not of any empirical foundation. Such knowledge can become racializing and hence a racial knowledge. This racial knowledge is functional without any factual knowledge (see Mark Terkessidis, Psychologie des Rassismus (Westdeutscher Verlag 1998) 83 ff.). Measures guided by racial knowledge can end up in racial profiling. In the end a self-fulfilling prophecy is immanent.
How to deal with experience in the law?
While there quite a few “cans” and “mays” the question is how many of them a society wants to tolerate or accept. I do not want to deny the police the value of their experience. The debate should centre on how to deal with experience, how the police is handling their authorisations. As mentioned above, the law values police experience and uses police experience as a part of requirements for police stops. This is a rather odd requirement to review in court, especially if we keep cop culture in mind.
A racist structure?
There is more than a risk in the combination of a police law that offers a wide discretion in cases of identity stops on one side and a police force that highly values experience and constructs its own potentially racial knowledge on the other side. This combination becomes toxic if the institution cannot monitor the accumulation of knowledge. Hence the Polizeibeauftragte des Bundes should intervene at this spot to disentangle the structure. Reforms on the legal bases are highly unlikely as in recent legislative debates on the BPolG this issue wasn’t even touched, see here. Unlike courts an ombudsperson not only decides individual cases but can also analyse patterns. It can investigate structures. Data can be collected, and channels opened for whistleblowers. Following annual reports create pressure for stakeholders to provide funding for necessary measures. While the discussion on racial profiling has already progressed (see here and here), the discussion on racial biases is still in its infancy.
The structure becomes visible if legal bases and institutional culture are combined. The toxicity of this combination is no coincidence. Debates in parliament and committees picked up the topic. Legislation was passed anyway. MPs explicitly said that they trust that police forces will handle their new competences carefully. This naivety was at the expense of minorities. The stops are neither handled carefully nor effectively. The data shows that they are not effective at all, as only about 1% of cases are successful (Aqilah Sandhu, ‘Racial Profiling im Lichte der Rechtsprechung: Zugleich ein Beitrag zur Auslegung von Art. 3 Abs. 3 S. 1 GG im europäischen Grundrechtsraum’ (2023) 32 ZfL 271, 292). However, such data is no surprise. Research on traffic stops in the US describes similar results (F R Baumgartner, D A Epp and K Shoub, Suspect citizens (CUP 2018)). Therein, as well as in Germany, it is pointed out that there are significant stigmatic effects on minorities. The fact that aware of the risk legislation was passed anyway is symptomatic. Even if it is not a racist law or a structurally racist law, a racist structure can be recognised within the combination of law and its application by the present institution police. This is a starting position for Uli Grötsch to correct the errors of the past. He did not pick this up in his first report. He should in his next. It is a duty.
This piece belongs to our Symposium “Unmasking the Intractable: Exploring Anti-Racism and the Law” (see the Introduction here), hosted by Verfassungsblog and africanlegalstudies.blog.
