Policing America: Challenges and Best Practices
Tenth Edition
Chapter 8
Accountability: Use of Force, Ethics, Corruption, and Discipline
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The Constitution and Police Legitimacy
Constitutional policing
Police policies and practices are intended to protect citizens’ rights and provide equal protection under the law
Police legitimacy
The extent to which the community believes that police actions are appropriate, proper, and justified
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Police Use of Force: Legitimate Purposes
Legitimate, responsive forms of force
The right of self defense
The power to control those for whom one is responsible
The authority of police to use force as necessary
Police use of force:
“Distribution of non-negotiably coercive remedies”
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Egon Bittner, “The Functions of the Police in Modern Society,” in Policing: A View from the Street, eds. Peter K. Manning and John Van Maanen (Santa Monica, CA: Goodyear, 1978), pp. 32–50.
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Legal Restrictions
Fleeing felon rule (common law) authorized use of deadly force to apprehend all fleeing felony suspects
Tennessee v. Garner (1985)
Supreme Court curtailed use of deadly force
Use of deadly force to prevent escape of all felony suspects constitutionally unreasonable
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Use-Of-Force Continuums (1 of 2)
Basic force continuum a “ladder” with increasing levels / types of force
Officer presence/verbal direction
Touch control
Empty-hand tactics and chemical agents
Hand-held impact weapons
Lethal force
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Use-Of-Force Continuums (2 of 2)
Sequential continuum too simple
Does not represent dynamic encounter between officer and resistant suspect
Does not adequately consider wide array of tools available to officers
Many agencies now require officers to be “objectively reasonable”
Evaluate each situation in context
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Figure 8–1: Dynamic Resistance Response Model
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FBI Law Enforcement Bulletin, September 2007, Federal Bureau of Investigation.
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Dynamic Resistance Response Model
Combines use of force continuum with application of four broad categories of suspects
Dynamic: Model is fluid
Resistance: Suspect controls interaction
Only purpose of application of force is to gain compliance
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Police Brutality
Types of brutality
Physical abuse
Verbal abuse
Symbolic brutality
“Police brutality” includes wide range of practices, from abusive language to violence
Incidents are low visibility acts, victims decline to report
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Police Shootings
Fatal police shootings can inflame communities, raise tensions
Incidents represent broader issues
Accountability
Prejudicial behavior against minorities
Lack of shooting data
Declining police/community relations
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America’s Angst
Number of fatal police shootings consistent over time
Cell phone photos/videos have led to greater public awareness
Incidents involving minorities may heighten tensions, lead to charges of racism against police agency
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Black Lives Matter and Blue Lives Matter
Black Lives Matter (BLM)
National movement began after 2012 shooting of Trayvon Martin
Mission: Build local power, intervene in violence inflicted on Black communities by the state and vigilantes
Blue Lives Matter
Police movement, response to BLM
Formed after killing of two officers in New York
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The Early Intervention System
Early Intervention System (EIS)
Computer database police management tool
Designed to identify officers whose behavior is problematic
Focus on helping employees by providing intervention in voluntary and nondisciplinary format
EIS records usually housed within Internal Affairs units
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Police Ethics
Accountability for police actions
Treat all persons with dignity and respect
Do not use more force than necessary
Do not demonstrate bias
Ensure all officers are well-trained
Maintain adequate policies, procedures, rules, etc.
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Definitions and Types of Problems (1 of 2)
Ethics involves standards of moral conduct, conscience
Types of ethics
Absolute ethics: a concept in which an issue has only two sides (good/bad; black/white)
Relative ethics: what one person considers ethical behavior may be seen as highly unethical by another (shades of gray)
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Definitions and Types of Problems (2 of 2)
Double effect principle
If one commits an act to achieve a good end, even though an inevitable but intended effect is negative, then the act might be justified
Noble cause corruption/Dirty Harry problem
View that the ends justify the means, even if the means are unethical / illegal
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Police Corruption (1 of 2)
Oldest and most persistent problem in American policing
Knapp Commission
Meat eaters versus. grass eaters
Individual officer’s character is key factor influencing amount of graft officers receive
Other factors that affect opportunities for corruption include branch of department, assignment type, rank
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Police Corruption (2 of 2)
Definition
“Misuse of authority by police officer in a manner designed to produce personal gain for the officer or others”
Corruption not limited to monetary gain
Gains may include services received, status, influence, prestige, future support for officer or another
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Types and Causes of Corruption (1 of 2)
Factors contributing to police corruption
Rapid hiring of personnel
Civil service and union protection
Temptations from money and sex
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Types and Causes of Corruption (2 of 2)
Theories of corruption
Rotten apple theory: corruption results from a few bad apples who had character defects prior to employment
Environmental theory: corruption result of widespread politically corrupt environment
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Forms of Corruption (1 of 3)
External corruption
Activities that occur from police contacts with public (gratuities, payoffs, etc.)
Internal corruption
Involves relationships among officers within the workings of the department
Payments to join the force, to get better shifts or assignments, to receive promotions, etc.
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Forms of Corruption (2 of 3)
Blue-coat crime
Mooching
Chiseling
Favoritism
Prejudice
Bribery
Shakedown
Perjury
Premeditated theft
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Forms of Corruption (3 of 3)
Most common and extensive form of corruption is receipt of small gratuities or tips
Question of whether small gratuities can create an expectation of some patronage or favor in return
Officers should be given formal written guidelines on soliciting and accepting gifts and gratuities
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Code of Silence
Involves keeping quiet in face of misconduct by other officers
Hardest element to overcome in fight against police corruption
Recent N I J survey found ~ 83% of officers in U.S. do not accept the code of silence as an essential part of the mutual trust necessary to good policing
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David Weisburd and Rosanne Greenspan, Police Attitudes Toward Abuse of Authority: Findings from a National Study (Washington, D.C.: U.S. Department of Justice, National Institute of Justice, Research in Brief, May 2000), p. 5.
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Investigation and Prosecution of Corruption (1 of 2)
Hobbs Act (1970)
Expanded federal powers for investigating, prosecuting police corruption
Key elements: extortion and commerce
Internal corruption and acceptance of isolated gratuities are areas of corruption beyond Act’s reach
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Investigation and Prosecution of Corruption (2 of 2)
Federal perjury statute and federal false sworn declaration statute are also used by prosecutors in investigating public corruption
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Limitations on Officers’ Constitutional Rights (1 of 2)
Officers may be compelled to give up certain rights in investigations of on-duty misbehavior or illegal acts
Federal courts have placed limitations on officers’ constitutional rights
Courts have held officers more accountable because of higher standard required by their occupation
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Limitations on Officers’ Constitutional Rights (2 of 2)
Free speech
Searches and seizures
Self-incrimination
Religious practices
Sexual misconduct
Residency requirements
Moonlighting
Misuse of firearms
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Free Speech
Supreme Court has held that the state may impose restrictions on police that it cannot impose on civilians
Restrictions must be reasonable
Personal appearance
Also related to First Amendment
Supreme Court has upheld several grooming standards for officers
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Searches and Seizures
Fourth Amendment usually applies to police at home or off duty in the same manner as other citizens
Police can be compelled to cooperate with investigations of their behavior when ordinary citizens would not
No expectation of privacy regarding equipment or lockers provided by department
May be forced to appear in a lineup
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Self-Incrimination
If officers are forced to answer questions that incriminate them, that information cannot be used against them at a criminal trial
Is proper to fire an officer who refused to answer questions directly related to performance of his/her duty, if officer has been informed that the answers may not be used later in a criminal proceeding
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Religious Practices
Requirements of job may interfere with officer’s ability to attend religious services, observe religious holidays, etc.
Title VII of Civil Rights Act of 1964 prohibits religious discrimination in employment
Requires reasonable accommodation of religious beliefs
Does not permit employees complete freedom of religious expression
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Sexual Misconduct
Officers have many opportunities for sexual misconduct
Work alone, without direct supervision
Frequent contact with citizens in relative isolation
Courts have considered whether police agencies have legitimate interest in officers’ sexual activities, when they affect job performance
Supreme Court upheld denial of promotion of male officer involved in an extramarital affair
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Residency Requirements
Many agencies require officers to live within the geographic limits of their jurisdiction
Justified on grounds that officers should become familiar with and be visible in the jurisdiction, or that they should live where the taxpayers pay them to work
Strongest rationale is that they must live near work so they can respond quickly in event of emergency
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Moonlighting
Holding a second job in addition to one’s normal full-time occupation
Courts have supported agency restrictions on amount and kind of outside work employees can perform
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Misuse of Firearms (1 of 2)
Police agencies generally have policies regulating use of firearms by officers, on-duty and off-duty
Courts have held these regulations must be reasonable
Burden of proof on disciplined officer to show regulation was arbitrary and unreasonable
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Misuse of Firearms (2 of 2)
Police firearms regulations may address variety of topics
Shooting in defense of life
Shooting to stop fleeing felons
Shooting at/from vehicles
Firing warning shots
Carrying secondary weapons
Carrying weapons off duty
Registering weapons
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Alcohol and Drug Abuse
Alcoholism and drug abuse problems more acute when they involve police employees
Courts have upheld policies prohibiting alcohol use within a specific period prior to reporting for duty
Police employees may be ordered to submit to drug or alcohol tests
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Brady Material
Department must advise prosecutor if officer has credibility issues
Prosecutor must disclose this to the defense
Brady v. Maryland (1963)
Accused has the right to any exculpatory evidence in a criminal case
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Disciplinary Policies and Practices
Public expects agencies will make every effort to identify and correct problems and to respond to citizen complaints
Discipline applied in two key areas
Employee misconduct: acts that harm the public
Violations of policy: broad range of issues, from insubordination to tardiness
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Due Process Requirements
Well-established minimum due process requirements for discharging public employees
Protections apply to any disciplinary action that can affect employee’s reputation or future chances for special assignment or promotion
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Complaints: Origins
Personnel complaint is an allegation of misconduct or illegal behavior
Internal complaints made from within the organization
External complaints usually involve the public
All complaints must be accepted and investigated in accordance with established policies and procedures
Anonymous complaints hardest to investigate and can have negative impact on employee morale
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Complaints: Types and Causes
May be handled formally or informally
Depends on seriousness of allegation and complainant preference
Most complaints fall under categories of verbal abuse, discourtesy, harassment, improper attitude, and ethnic slurs
Citizens with less power, fewer resources more likely to file complaints, allege more serious forms of misconduct
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Complaints: Receipt and Referral
Typical complaint process
Complaint referred to senior officer to determine nature of complaint and identify employee involved
Matter referred to employee’s supervisor for initial investigation
Supervisor completes investigation, recommends any discipline, sends issue to internal affairs unit and agency head to finalize disciplinary process
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Complaints: Investigative Process
Employee’s supervisor generally conducts preliminary investigation of complaint (“fact-finding”)
If further investigation needed, supervisor may question employees and witnesses, obtain statements, gather evidence
Must ensure employee’s rights not violated
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Complaints: Determination and Disposition
Categories of dispositions
Unfounded
Exonerated
Not sustained
Misconduct not based on the complaint
Closed
Sustained
Complainant notified of findings, but not details of investigation
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Complaints: Appeal of Disciplinary Measures
Officer may appeal disciplinary measures
May be allowed labor (union) representation or an attorney
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Level of Discipline and Type of Sanction
Types of sanctions
Counseling
Documented oral counseling
Letters of reprimand
Suspension
Demotion
Termination
Transfer
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Civilian Review Boards: Extent and Rationale
Involve citizens in investigating, overseeing police activities
Argued that civilian review boards will provide independent and transparent oversight of policing
Over 200 civilian oversight boards in the U.S.
Powers to investigate and punish officers vary
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Civilian Review Boards: Distrust and Debate
Much debate over whether boards are beneficial and which model of citizen oversight should be adopted
Police argue that the boards often politicized, unfair to police
Establishment of boards difficult
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Qualified Immunity
Legal doctrine that shields government officials from being sued for discretionary actions performed within their official capacity, unless they violate some constitutional right
Some belief that this reduces police accountability
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“Random Acts of Kindness”: The Hidden Side of Police Work
Police perform countless “random acts of kindness” that seldom come to attention of public
Some are reported by the media
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Copyright
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