17 Apr 2025
With a popular action against the reformed Bavarian Police Duties Act, students at an intervarsity law clinic have scored a partial victory before the Bavarian Constitutional Court.
Police law is an exciting field, says Martin Heidebach. | © IMAGO Bihlmayerfotografie
In the 2017/18 winter semester, Dr. Martin Heidebach, senior lecturer at the Institute of Politics and Public Law at LMU’s Faculty of Law, held a so-called “law clinic” together with colleagues from the Universities of Würzburg and Erlangen.
In the seminar, students formulated a popular action against the 2017 amendments to the Bavarian Police Duties Act (Polizeiaufgabengesetz). This novel seminar format received an LMU Teaching Innovation Award in 2018. Now the Bavarian Constitutional Court has ruled on the case, deciding that although the law is constitutional, it is only so within specific, narrow interpretations.
The seminar was supposed to show the students, through work on the specific case, that citizens can take legal actions against laws in a constitutional state.Martin Heidebach, senior lecturer at the Institute of Politics and Public Law at LMU’s Faculty of Law
Students at your law clinic, which won a Teaching Innovation Award, drew up a popular action against amendments to the Bavarian Police Duties Act. How did this come about?
Martin Heidebach: In 2017, there was a major reform of the act, which governs what rights the police have. Together with my colleagues Isabel Feichtner from Würzburg and Markus Krajewski from Erlangen, we came up with the idea to discuss the topic with students within a law clinic format and analyze whether the law thus amended is compatible with the Bavarian Constitution. It was a practical seminar where students could engage with constitutional police law. In a liberal-democratic society, the police is an important institution. What the police can and cannot do also touches on questions of how a society understands itself.
Furthermore, the seminar was supposed to show the students, through work on the specific case, that citizens can take legal actions against laws in a constitutional state. This is precisely what the instrument of popular action is for. In principle, anyone in Bavaria can lodge a complaint against a law they consider incompatible with constitutional rights. The students started by analyzing the Police Duties Act in a group. Then they unanimously decided they did not think the law was constitutional in its current form and wanted to frame a legal action.
Police law is an exciting field: The police is there to protect what are called “legal interests” in the civil law tradition – things like life, property, bodily integrity, and liberty. At the same time, the police often has to interfere with fundamental rights in order to protect these legal interests.Martin Heidebach, Senior lecturer at the Institute of Politics and Public Law at LMU’s Faculty of Law
What exactly did the students object to in their constitutional complaint?
Police law is an exciting field: The police is there to protect what are called “legal interests” in the civil law tradition – things like life, property, bodily integrity, and liberty. At the same time, the police often has to interfere with fundamental rights in order to protect these legal interests – by ordering people to leave a specific place, for example, or arresting people, or searching homes. The police are allowed to apply these so-called coercive measures in order to avert danger or investigate crimes.
The reform of the Police Duties Act introduced the concept of “impending danger” (drohende Gefahr), which allows the police to act preemptively in cases where there is a lower probability of damage occurring – in contrast to the previous situation where there had to be “specific danger” (konkrete Gefahr). This entailed an expansion of police powers, from the surveillance of communication to significantly longer preventive detention. As such, it lowered the intervention threshold for when and how the police is permitted to impinge on fundamental rights. The legal action was directed against this concept of “impending danger.”
It’s naturally a sweet success for the seminar participants that our action was admitted.Martin Heidebach, Senior lecturer at the Institute of Politics and Public Law at LMU’s Faculty of Law
The law clinic’s suit wasn’t the only popular action against the law, but it was the only one where the Bavarian Constitutional Court ended up ruling on its substance.
The others were presumably dismissed because they weren’t substantive enough or sufficiently well argued. It’s naturally a sweet success for the seminar participants that our action was admitted. They genuinely composed the petition by themselves, with hardly any intervention from myself or the other tutors. It was wonderful for the students to see they could do something and have an impact with their knowledge at the time.
is senior lecturer at the Institute of Politics and Public Law at LMU’s Faculty of Law
More than six years elapsed from the submission of the action to the court’s ruling. How were the students from the seminar integrated in the further process?
After around six months, the Bavarian government replied to our petition with a pleading around 100 pages long, to which we submitted a reply. In 2018 and 2021, there were further amendments to the law. In each case, we wrote additional material – although the seminar students were naturally less involved as time went on, having all completed their studies. We had a WhatsApp group throughout, in which all participants were connected until the end and in which they were active to varying degrees
At the hearing in March, two graduates of the law clinic presented our position and did a stellar job. For the former student who gave the final address, it was her debut as an attorney – to do so in front of the Bavarian Constitutional Court was a special moment for sure.
What’s your own opinion of the decision of the Bavarian Constitutional Court?
It’s a partial success. The Bavarian Constitutional Court did in fact rule in our favor on a crucial point by acknowledging the law was too broad as formulated. Overall, however, the popular action – and the three differences of opinion negotiated along with it – was largely rejected. The corresponding Article 11a will not be repealed, but it will be provided with specific interpretation instructions.
Interestingly, the adjudication of costs at the end of the judgment determined that if we had incurred costs, we would have been awarded half of those costs, as our suit helped clarify the constitutionality of a statute. However, the court ruled only on the general clause and not yet on the individual facts relating to authority which are regulated in the law.
So the affair is not yet legally over?
There will be further proceedings, including before the Federal Constitutional Court, due to legal actions from other quarters. We’re currently deliberating whether to revive the law clinic format in this context, so that we can discuss new arguments with a new generation of students and perhaps even improve the old action.
The situation remains interesting and complex. On the one hand, it’s certainly in the public interest for the police to be able to prevent things like terrorist attacks. On the other, the importance of safeguarding civil rights is very apparent in today’s world, in which the liberal-democratic order we’ve taken for granted is coming under pressure. Whether our laws create the right framework for balancing these two claims remains an exciting topic, and not just for legal seminars.