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Posted: October 29th, 2022

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

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”

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.

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

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

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

Figure 8–1: Dynamic Resistance Response Model

FBI Law Enforcement Bulletin, September 2007, Federal Bureau of Investigation.

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

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

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

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

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

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

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.

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)

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

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

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

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

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

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.

Forms of Corruption (2 of 3)

Blue-coat crime

Mooching

Chiseling

Favoritism

Prejudice

Bribery

Shakedown

Perjury

Premeditated theft

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

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

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Complaints: Appeal of Disciplinary Measures

Officer may appeal disciplinary measures

May be allowed labor (union) representation or an attorney

Level of Discipline and Type of Sanction

Types of sanctions

Counseling

Documented oral counseling

Letters of reprimand

Suspension

Demotion

Termination

Transfer

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

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

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

“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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