20 Jun Introduction to Law Enforcement5
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c h a p t e r
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reGULatING pOLIce BehaVIOr
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Federal Civil Rights Violations
Tort Actions against the Police
Intentional Tort
Negligence Tort
Do These Strategies Work?
Summary
Review Questions
Discussion Questions
Selected Internet Sites
References
Cases Cited
c h a p t e r O U t L I N e
Key Terms
Learning Objectives
Introduction
The Need for Policy Guidelines
Contents of Policy Guidelines
Secondary Employment as an Example
Internal Affairs
Types of Disciplinary Actions
Procedural Protections
Decertification
External Sources of Relief
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plaintiff
Police Officers’ Bill of Rights
policy guidelines
secondary or off-duty employment
suspension
sustained complaint
tort
unfounded complaint
vicarious liability
Weingarten Rights
written reprimand
1983 action
K e y t e r m S
civil liability
decertification
defendant
deliberate indifference
dismissal
exonerated complaint
Garrity Rule
intentional tort
Internal Affairs (IA)
mission statement
negligence tort
not sustained complaint
oral reprimand
• Outline all the possible outcomes of an internal affairs investigation;
• List the different types of disciplinary actions to which police officers are exposed;
• Delineate the range of protections that officers have when they are the subject of an internal affairs investigation;
• Explain what decertification is;
• Link the federal Civil Rights Act to litigation involving police miscon- duct; and,
• Recognize the importance of tort actions in curtailing police misconduct.
L e a r N I N G O B j e c t I V e S
The study of this chapter will enable you to:
• Understand why agencies need written policy directives;
• Tell what an agency mission state- ment is;
• Outline the basic considerations that should be woven into policy development;
• Explain why it is in an agency’s best interest to have a policy on second- ary employment;
• Identify the most important features of a policy on secondary employment;
• Appreciate why agencies need an internal affairs unit;
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Introduction One thought that crosses the minds of many people is the question of who polices the police? As soon as some people hear that the police regulate themselves, a sense of sarcasm and despair creeps into their mind set. What most people do not realize is that the police are governed by a host of other rules and regulations in addition to criminal sanctions. These controls form the crux of this chapter.
Agencies have established a labyrinth of rules that are intended to guide officer behavior. One of the first items issued to rookies when they join an agency is the official departmental policy manual. A quick peek at the table of contents reveals a tremendous number of local dicta. They include policies outlining the care of equipment, procedures for dealing with impounding evidence, use of force, vehicle operations, inspections, parade formations, and so on. Nothing is left to chance. Just about every facet of police work receives some mention and each rule is binding. That is, a violation, no matter how small or large, brings the errant officer under the purview of internal affairs.
In order to better understand just how this internal control mechanism works, this chapter begins by looking at the need for official policy and what these directives should contain. The materials then move to a discussion of how internal affairs investigations work, the disciplinary system to which officers are subject, and the kind of procedural rights available to officers under investigation.
Sometimes these internal solutions are ineffective or insufficient. In these cases, another remedy, one that lies outside the police organization, is the court system. Here we will focus on the avenues available under the federal Civil Rights Act and through other forms of litigation. By the time you finish this chapter, you should have gained a wider understanding of how the police are policed.
the Need for policy Guidelines One key concept that has surfaced in just about every chapter thus far is the word “pol- icy.” We have seen policies regarding such diverse activities as vehicle impoundment, dispatch call stacking, deadly force, and off-duty weapons. Chapter 9 also explained that although administrators may advocate full enforcement, the police really must operate under the guise of selective enforcement. Under this condition, policy guidelines are necessary to prevent “unarticulated improvisation.” In other words, whenever specific directives are absent, the actions of individual officers amount to policy enactment.
As we mentioned earlier, two problems arise when policy guidelines are not in place. First, the bottom rung of the organizational ladder is formulating de facto policy and not the administration. Second, this latitude does not guarantee continuity or uni- formity. Decision-making may vary from one officer to the next. It may even vary from one call to the next with the same officer. In other words, sufficient safeguards are not in place to ensure that discretion does not erode into discrimination. What is needed, then, is greater accountability.
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Even with this background, one still may wonder whether there is a pressing need for every single agency in this country to enact its own policy guidelines. After all, the police must adhere to state laws and act in accordance with court rulings. The Garner decision, for example, pronounced deadly force dicta for the entire nation. The case from which the famous Miranda rights sprang set the tone for interrogation practices throughout the United States. Given the active role of the federal Supreme Court, why should a particular agency bother to devote time and energy to developing its own set of policy guidelines?
For starters, policy directives may cover operational areas that fall outside the crimi- nal law and court review. For example, agencies may issue police vehicles that officers take home with them. They may also allow officers to work off-duty in a private secu- rity function. Or, departments may have procedures in place to deal with natural disas- ters, evacuations, or accidents involving hazardous waste materials. Having guidelines already in place makes for smoother management when officers confront issues regard- ing each of these situations as they unfold in the field.
One must also realize that the courts do not always assume a proactive or a leader- ship stance. Take the Garner decision regarding the use of deadly force. The Court did not carve out new territory in this case. In fact, some people regard this ruling as more evolutionary than revolutionary. The Justices noticed that a growing number of jurisdic- tions had implemented deadly force policies that were more restrictive than what the fleeing felon rule would have allowed. As Walker and Fridell (1992, p. 102) explain,
Instead of being in the advance guard of change―enunciating new standards of constitutional law and forcing the police to conform to them―the Court trailed far behind police departments in developing standards to protect individual rights. For this issue, the Court was serving not as an agent of social change, but rather as the force to bring into compliance law enforcement agencies that were not conforming to existing law enforcement norms.
Finally, agencies may incur greater civil liability whenever a firm policy is not in place. Earlier, Chapter 10 explained how at one time some departments had adopted little ditties, such as “Never take me out in anger; never put me back in disgrace,” as their sole policy statement governing police use of deadly force. Today, the courts would look at such a guideline, along with the absence of any appropriate training, as an unwarranted deliberate indifference by the organization and view the officer’s actions with askance (Alpert, 1989; City of Canton v. Harris, 1989; del Carmen, 1993, p. 93). In fact, the Supreme Court has ruled that the lack of a written policy does not insulate an agency from subsequent liability (Monell v. New York Department of Social Services, 1978). Instead, the courts will look at the customs and practices that are present and treat them as if they constituted previously approved directives. This approach usually subjects the agency to even greater liability and a correspondingly larger settlement award.
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Professor del Carmen (1993, p. 93) sums up the situation in these words:
There is hardly any police agency in the country today, rural places included, whose day-to-day operations are not governed by a manual or a set of guide- lines. The days when administrators freelanced and got away with improvision because nobody scrutinized what they did are gone. Through liability lawsuits the courts are in effect constantly looking over the shoulders of police admin- istrators and second-guessing their decisions on matters that affect the public. Most police administrators now realize that in a lawsuit based on supervisory negligence a good and updated manual insulates them from liability for what their officers do.
contents of policy Guidelines Now that it is established that agencies need to institute policy directives, what should these directives contain? Alpert and Smith (1993) suggest that the agency’s mission statement should serve as the guiding light here. A mission statement explains what the agency perceives its top priorities to be. Usually, a mission statement is followed by a series of statements that embody the beliefs to which the agency wants its members to subscribe. These declarations may include such items as “We value all human life,” “We are committed to treating all persons fairly, regardless of race, color, or national origin,” or “We believe our first priority is the protection of life.” In any event, Figure 12.1 con- tains examples of mission statements, without the accompanying value assertions, from several agencies. While each statement enunciates public safety as the dominant activity, notice how the statements vary by organization and by goals.
The overall philosophy specified in a mission statement should become incorpo- rated within every single policy guideline the agency enacts. However, Lumb and Miller (2002) caution that administrators should not rely upon a mere trickle-down effect to generate employee compliance. Subordinates must be schooled in any changes and advised of expectations in order to create a unified team effort. In addition, some ana- lysts (Alpert & Fridell, 1992, p. 11; Alpert & Smith, 1993, p. 14) recommend that policy development should include the following basic considerations:
• Be workable in real-world situations;
• Be adaptable to training;
• Be written in a positive manner;
• Refer to or incorporate relevant laws;
• Be pre-tested to assure that all officers understand the specific intent and conse- quences of noncompliance;
• Include in-service training, as a matter of record, for all officers and supervisors; and,
• Provide examples of behavior.
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Secondary employment as an example As we saw in the last chapter, chronic fatigue is gaining recognition as an organizational concern. Many agencies have found it prudent to establish special rules to deal with secondary or off-duty employment. Quite a few offi cers take on part-time jobs in their spare time. The advent of ten-hour days or working eight or nine straight eight-hour days on the streets means that offi cers have several consecutive days off from work. Rather than just lounge around the house or engage in leisure activities, many offi cers see this idle time as an opportunity to earn extra money. In fact, Reiss (1988, p. 2) comments that
F I G U r e 1 2 . 1 mission statements from various law enforcement agencies.
Florida State University police Department
Supports the mission of the Florida State University by promoting a safe and secure higher education environment while providing proactive police and customer- related services aimed at reducing crime.
Leon county (FL) Sheriff’s Offi ce
To be recognized by our peers and our community as leaders in the law enforce- ment profession and as an integrated part of the community, working to create a safe environment for all Leon County residents and visitors.
Seattle (Wa) police Department
Work with the people of Seattle to secure a safe and just future for all by fi ght- ing crime, reducing fear, and building community—one person, one community, and one neighborhood at a time.
Los angeles (ca) police Department
It is the mission of the Los Angeles Police Department to safeguard the lives and property of the people we serve, to reduce the incidence and fear of crime, and to enhance public safety while working with the diverse communities to improve their quality of life. Our mandate is to do so with honor and integrity, while at all times conducting ourselves with the highest ethical standards to maintain public confi dence.
Source: Florida State University Police Department (2012). Mission Statement. Tallahassee, FL: Florida State University. Retrieved on March 26, 2012, from http://www.police.fsu.edu; Leon County Sheriff’s Offi ce (2012). Our Mission. Tallahassee, FL: Leon County Sheriff’s Offi ce. Retrieved on March 26, 2012, from http://lcso. leonfl .org; Seattle Police Department (2012). Our Mission. Seattle, WA: City of Seattle. Retrieved on March 26, 2012, from http://www.seattle.gov/police/about/mission.htm; Los Angeles Police Department (2012). The Mission Statement of the LAPD. Los Angeles, CA: City of Los Angeles. Retrieved on March 26, 2012, from http://www.lapdonline.org/inside_the_lapd/content_basic_view/844.
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it is not unusual to find that “the actual number of uniformed officers performing police functions off duty exceeds those officially on duty” at any given moment.
Agencies have legitimate concerns when their employees moonlight. Officers may report for an on-duty assignment in less than optimal condition. They may be exhausted, sleepy, preoccupied, and not as productive. Off-duty jobs may also interfere with the planning that has gone into staffing the department’s normal operations. An officer who uses a sick day only to show up at a more lucrative private post elsewhere affects per- sonnel deployment patterns. Even the type of off-duty activity in which the employee engages could pose a conflict of interest or have unwanted repercussions. To avoid these kinds of problems, many agencies prohibit officers from working off-duty as bill col- lectors, tow truck operators, private investigators, or from having an interest in a bar or other liquor establishments (Eichenberg & West, 1996).
Some officers moonlight in a civilian capacity that has nothing to do with their primary law enforcement role. They may hold a job as a carpenter, a salesperson, or some other non-police function. Agency interests diminish somewhat in these instances. However, departmental concerns peak when officers work off-duty in a security capacity that could evolve into official police intervention. Working in uniform with equipment provided by the agency as an armed guard for a bank, shopping mall, or a nightclub car- ries the potential for off-duty officers to become involved in use-of-force situations that result in injury or death. These actions, of course, may expose the agency to liability for the off-duty officer’s behavior. Thus, there is a compelling need for agencies to establish guidelines that spell out exactly what is expected of their off-duty employees.
Figure 12.2 contains portions of one agency’s secondary employment policy guide- lines. Notice the variety of topics that receive attention and how the contents mesh with the criteria listed in the previous section.
Internal affairs Virtually all police agencies, with the exception of some smaller departments, have a separate unit that carries the title Internal Affairs (IA), Inspectional Services (IS), or some similar designation. This office functions in a watch-dog capacity. In other words, it monitors employee conduct for any policy or statutory violations that take place while either on-duty or off-duty.
Citizen complaints (see Figure 12.3), supervisory reports of improper behavior, use-of-force reports, misuse of official equipment, and weapon discharges typically get routed to this office for review and resolution. A citizen may contend that an officer was rude, inattentive, or failed to conduct a proper investigation. Department policy may stipulate that supervisors must forward any reports involving police vehicle collisions or the application of less-lethal weaponry. Instances of insubordination are also sent to IA. In short, any sworn or non-sworn employee impropriety that can compromise the agency’s reputation comes under the purview of this unit.
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F I G U r e 1 2 . 2 policy guidelines regarding secondary employment.
I. Employee Eligibility for Secondary Employment
A. Employees must be full-time employees of the Seattle Police Department and in good standing with the Department, including having completed all required training, certifi cations, and qualifi cations.
B. Employees must have completed their civil service probationary period and must not currently be on probationary status or have been prohibited to work secondary employment.
C. Eligibility, and any current secondary employment authorization, shall be automatically suspended when an employee commences sick leave, long- term disability, military leave, limited duty, family medical leave (including maternity leave), release time for any reasons, while on suspension, while on mandatory administrative reassignment due to an on-going internal affairs investigation, or while on the Mandatory Reporting Program for sick leave use.
II. Responsibilities
A. Sworn Offi cers and sergeants can work no longer than eighteen consecutive hours in a 24-hour period. Offi cers and sergeants must have a rest period of at least six consecutive hours in the 24-hour period. “Work” includes regular department shift hours, department and/or court overtime, and law enforce- ment off-duty employment.
B. Offi cers are expected to take appropriate law enforcement action whether on-duty or off-duty. Offi cers are responsible for prisoner processing, investiga- tory paperwork, and reports required by Department policy.
C. All employees working off-duty or secondary employment must be equipped with their portable radio and shall log in with radio at the beginning of their shift giving the address and business name of the event or job that they are working, the hours that they are working the job and must indicate if they are working in uniform or plain-clothes. Employees will log off at the end of their shift.
III. Time and Compensation
A. Employees must not exceed 64 hours of work per week when secondary employment and regular work hours are combined.
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F I G U r e 1 2 . 2 c O N t .
IV. Secondary Employment Permit Form
A. Prior to engaging in any off-duty employment or business activity, employees shall submit, through their immediate chain of command, a completed Sec- ondary Employment Permit (Form 1.30) for tentative approval.
B. All Secondary Employment Permits (Form 1.30) are valid for one year, expiring on the employee’s date of hire. If a continuation of employment is desired, the employee is required to submit a new Secondary Employment Permit (Form 1.30).
C. Any record of above average days off for sickness, poor work record, low time balance, signifi cant complaint history or discipline, may result in denial or revocation of a Secondary Employment Permit (Form 1.30). Permits may also be denied or revoked in when it is determined that doing so would be in the best interest of the Department.
V. Prohibited Employment
A. To maintain the integrity of the Department and its employees, the Depart- ment prohibits its employees from participating in secondary employment having a potential for confl icts of interest, the appearance of confl ict of interest, or that would tend to lower the dignity of the profession. Therefore, employees are prohibited from:
1. Performing tasks other than those of a law enforcement nature while in police uniform.
2. Repossessing or towing vehicles, acting as a process server or bill collec- tor, or in any other employment in which police authority might tend to be used to collect money, merchandise, etc., for private purposes of a civil nature.
3. Employment which requires access to police information (fi les, records, or services) as a condition for employment; except where specifi c approval for such use has been authorized by the Bureau Commander having con- trol over such information.
4. Employment which assists in the case preparation for the defense in any criminal action or proceeding.
5. Employment directly for or on behalf of establishments that sell or dispense intoxicating beverages.
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IA investigations may involve examining any physical evidence that exists, as well as interviewing the complainant, any possible witnesses, and the offi cer or non-sworn employee named in the allegation. After reviewing all the available evidence, a case deter- mination involving one of the dispositions outlined in Figure 12.4 is rendered. At this point, the IA investigation is completed and administrative disciplinary procedures commence.
In 2002, citizens who lived in jurisdictions employing a minimum of 100 full-time offi cers fi led 26,556 complaints about police misuse of force. In terms of fi nal disposi- tions, Hickman (2006) reports the following outcomes:
• 34% were closed as “not sustained;”
• 25% were concluded as “unfounded;”
• 23% were determined to be “exonerated;”
• 8% were “sustained;” and,
• 10% were withdrawn or resolved in another way.
Two other studies are quite helpful at this point. Dugan and Breda (1991) surveyed law enforcement agencies in the state of Washington, while Griswold (1994) looked at internal affairs fi les in a southeastern Florida sheriff ’s department. The Washington agencies averaged an annual rate of 0.27 complaints per offi cer, compared to 0.33 in
F I G U r e 1 2 . 2 c O N t .
6. Owning, operating, managing, or having a fi nancial interest in:
a. A business providing security services where the employee utilizes their color of offi ce, position of employment, or access to Department infor- mation, fi les, records, or services for private or business gain.
b. A private investigation business.
7. Performing police functions in uniform for a private employer beyond the jurisdiction of the corporate limits of the City, without prior written approval of the outside police agency having jurisdiction.
8. Employment directly for, or on behalf of, an establishment that is licensed for or provides adult entertainment.
9. Employment involving any form of gambling, including, but not limited to, cards, bingo, raffl es, “Reno Nights,” etc.
Source: Excerpted from Seattle Police Department (2009). Policies & Procedures: 5.120—Secondary Employ- ment. Seattle, WA: City of Seattle. Retrieved on March 26, 20120, from http://www.seattle.gov/police/ publications/policy/SPD_Manual.pdf
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F I G U r e 1 2 . 3 an example of a citizen complaint Form.
Source: Maloney, M.R. (2006). Citizen Complaint Information. Chico, CA: Chico Police Department. Retrieved on March 26, 2012, from http://www.chico.ca.us/police/documents/PersonnelComplaintForm.pdf
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Florida. While IA investigations sustained almost half the complaints in Washington, the corresponding fi gure was one-fourth in Florida. While the case classifi cations dif- fered in the two research sites, it appeared that a large number of complaints involved verbal discourtesy and improper use of force. The low number of complaints, coupled with the recognition that police work inevitably involves coercion or getting people to do what they may not wish to do, led Dugan and Breda (1991, p. 170) to remark that “It is possible that complaints come with the territory and that any offi cer, no matter how competent, can expect to receive some complaints during his or her career.”
types of Disciplinary actions Once the IA investigator completes the case, the next step is for the administration to determine the appropriate disciplinary action to take. The exact level of punishment depends upon a number of items. These considerations usually revolve around the nature and severity of the charge, the employee’s prior disciplinary record, how much time has elapsed between the last complaint and the current incident, past work performance evaluations, and previous disciplinary actions taken with other employees who have committed similar transgressions.
Agencies have several options available. The lowest and least intrusive action may be to review the policy directive with the offi cer or to require the employee to complete remedial training. A notation to this effect will be entered in the offi cer’s records. The signifi cance of this action becomes more evident when one realizes that many states have laws which make offi cer personnel fi les readily available to the public.
If this alternative fails or is simply inappropriate for the occasion, the circumstances may warrant a stronger reaction. An oral reprimand involves warning the employee of his or her defi ciency, identifying possible ways to improve in this area, and serves as
F I G U r e 1 2 . 4 possible Internal affairs investigative outcomes.
Internal Affairs can dispose of a complaint in several ways. The typical dispositions include the following outcomes:
• Unfounded—a determination that the allegation is false or not factually correct.
• Exonerated—the incident did take place, but the offi cer or employee behaved in a lawful and proper manner.
• Not Sustained—insuffi cient evidence to either prove or disprove the citizen’s claim.
• Sustained—the available evidence supports the allegation of improper behavior.
Source: Author.
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a formal notice that a repetition of the unacceptable behavior will result in a sterner response. Again, a record of the discussion goes into the employee’s personnel file.
When corrective actions fail to produce the desired outcome, or if the violation deserves a more serious response, the appropriate disciplinary action may be a written reprimand. A written reprimand includes a description of the incident along with an explanation as to which rule(s) the employee violated. Once again, a subsequent viola- tion could result in a stiffer penalty. Just like before, this documentation goes into the employee’s file.
If earlier efforts have not produced a change in behavior, or if the violation is a seri- ous breach of agency regulations, the next level of disciplinary action is a suspension. A suspension means that the person is removed from duty status and forfeits his or her pay for the duration. In addition, the suspended employee must surrender his or her badge, police identification card, radio, weapons, and police vehicle. A suspended officer is not entitled to carry a concealed weapon and may not work in an off-duty capacity. The length of time an employee is suspended usually reflects the seriousness of the incident or how long it takes to complete the case if it involves a criminal allegation. Once again, a notation to this effect will appear in the employee’s personnel file.
The most serious action an agency can take against an employee is dismissal. Dismissal means that the person is permanently removed from duty. In some cases, the worker may have to forfeit any pension credits, overtime, vacation leave, sick time, or any other benefits that have accrued up to that point. As we will see later in this chapter, a dismissal may also trigger the decertification process by the governing state agency.
procedural protections As the preceding materials reveal, the outcome of an IA investigation can carry enor- mous implications for one’s career. Obviously, being the subject of an IA investigation is not a very pleasant experience. However, at one time some agencies were in the habit of making these reviews even more harrowing. It was not uncommon for officers to receive an order to report to the IA office for an undisclosed reason and then undergo ques- tioning without being notified as to what the charges were. In some instances, officers were coerced into making a formal statement in order to prove their innocence. Officers resented these conditions, demanded that their constitutional rights be protected, and objected to the lack of due process.
One important safeguard, available to any employee represented by a union, are the Weingarten Rules. These guidelines emerged from a federal Supreme Court ruling (National Labor Relations Board v. Weingarten, 1975). They aim to protect employ- ees from overzealous employer incursions. Those rights appear in Figure 12.5 for the reader’s perusal.
The United States Supreme Court visited the issue of due process for law enforce- ment officers in Garrity et al. v. New Jersey (1966). IA was investigating several officers thought to be involved in fixing traffic tickets. Since this inquiry concerned criminal
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F I G U r e 1 2 . 5 Weingarten rights.
The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB v. Weingarten, Inc., 420 U.S. 251). These rights have become known as the Weingarten rights.
Employees have Weingarten rights only during investigatory interviews. An investi- gatory interview occurs when a supervisor questions an employee to obtain infor- mation which could be used as a basis for discipline or asks an employee to defend his or her conduct.
If an employee has a reasonable belief that discipline or other adverse conse- quences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/ her Weingarten rights; it is the employee’s responsibility to know and request.
When the employee makes the request for a union representative to be present, management has three options:
1. It can stop questioning until the representative arrives.
2. It can call off the interview or,
3. It can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse).
Employers will often assert that the only role of a union representative in an investi- gatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative’s right to assist and counsel workers during the interview.
The Supreme Court has also ruled that during an investigatory interview manage- ment must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.
While the interview is in progress, the representative cannot tell the employee what to say, but he may advise them on how to answer a question. At the end of the inter- view the union representative can add information to support the employee’s case.
Source: Center for Labor Education & Research (2006). Weingarten Rights. University of Hawaii: West Oahu. Retrieved on March 26, 2012, from http://clear.uhwo.hawaii.edu/wein.html
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conduct, the offi cers were advised of their Miranda rights. However, the offi cers were stuck between a rock and a hard place. If they invoked their Miranda protections, the offi – cers risked being fi red for insubordination. On the other hand, if the offi cers responded to the questions, their answers could incriminate them. Given the outcomes of this situ- ation, the offi cers contended that their statements were not issued voluntarily. Instead, their responses were the product of duress.
The Court sided with the offi cers in a sharply divided opinion. The majority opinion (1966, pp. 497–498) stated,
The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent . . . . We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary. . . . .
This ruling came to be known as the Garrity Rule. The interpretation here is that if an offi cer is the subject of an IA investigation alleging criminal conduct, then a com- manding offi cer cannot order that offi cer to respond to questions. If you fl ip back to Chapter 10 and refl ect on the sequence of events that offi cers face in the aftermath of a fi rearms discharge, you can gain an appreciation for how the Garrity Rule works.
Today, many municipalities have established procedural safeguards through collec- tive bargaining agreements or they extend the same grievance mechanism that is available
F I G U r e 1 2 . 6 how the Garrity Rule works.
When facing offi cial questioning, establish whether you are being questioned for criminal allegations or for administrative rule violations.
• If questioning is for alleged criminal conduct, invoke Miranda and do not respond until your attorney is present.
• If questioning is administrative, respond truthfully.
If you are not clear about the nature of questioning, ask “Is this an administrative inquiry, and am I under orders to respond?”
Forcing your superiors to order you to answer questions or make statements regard- ing any misconduct inquiry invokes the Garrity Rule and prevents your response from being used against you in a criminal prosecution.
Source: Mullins, J. (1996), “Protect Yourself: Know Your Rights under the Garrity Rule,” Front Line: Newsletter for Members of the Southern States Police Benevolent Association, Inc., 5(4), p. 1.
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F I G U r e 1 2 . 7 the Florida Law enforcement Offi cers’ Bill of rights.
Whenever a law enforcement offi cer or correctional offi cer is under investigation and subject to interrogation by members of his or her agency for any reason that could lead to disciplinary action, suspension, demotion, or dismissal, the interroga- tion must be conducted under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement offi cer or correctional offi cer is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required.
(b) The interrogation shall take place either at the offi ce of the command of the investigating offi cer or at the offi ce of the local precinct, police unit, or cor- rectional unit in which the incident allegedly occurred, as designated by the investigating offi cer or agency.
(c) The law enforcement offi cer or correctional offi cer under investigation shall be informed of the rank, name, and command of the offi cer in charge of the investigation, the interrogating offi cer, and all persons present during the inter- rogation. All questions directed to the offi cer under interrogation shall be asked by or through one interrogator during any one investigative interrogation, unless specifi cally waived by the offi cer under investigation.
(d) The law enforcement offi cer or correctional offi cer under investigation must be informed of the nature of the investigation before any interrogation begins, and he or she must be informed of the names of all complainants. All identifi able witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused offi cer. The complaint, all witness state- ments, including all other existing subject offi cer statements, and all other existing evidence, including, but not limited to, incident reports, GPS locator information, and audio or video recordings relating to the incident under investigation, must be provided to each offi cer who is the subject of the complaint before the begin- ning of any investigative interview of that offi cer. An offi cer, after being informed of the right to review witness statements, may voluntarily waive the provisions of this paragraph and provide a voluntary statement at any time.
(e) Interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.
(f) The law enforcement offi cer or correctional offi cer under interrogation may not be subjected to offensive language or be threatened with transfer, dismissal, or disciplinary action. A promise or reward may not be made as an inducement to answer any questions.
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to civilian employees to police offi cers. However, these concerns are very important and can have wide-reaching ramifi cations. Rather than gloss over this issue and leave these protections in the hands of employers, some states have enacted Police Offi cer’s Bill of Rights laws that govern agency disciplinary investigations. Figure 13.6 displays excerpts from the Florida “Law Enforcement Offi cers’ Bill of Rights,” which specifi es a host of protections. This legislation declares that offi cers have a right to know the exact charges lodged against them, establishes reasonable interrogation standards, affi rms that police offi cers have not relinquished their constitutional rights simply because they wear a badge, and empowers a complaint review board to handle offi cer appeals. The mere fact that state government has stepped into this arena underscores the seriousness of this situation.
One would be remiss if he or she assumed that the existence of these procedural reg- ulations is unnecessary or that they are in effect in every single jurisdiction. Similarly, the assumption that these protections blanket offi cers with suffi cient due process is not always true. Offi cers in some jurisdictions are still battling archaic standards when they are the focus of an IA inquiry, the subject of disciplinary action, or facing an unfair labor practice.
While there has been some parallel interest at the federal level (see H.R. 1789, “State and Local Law Enforcement Discipline, Accountability and Due Process Act”), those efforts have not come to fruition. While Congressional members have fi led a
F I G U r e 1 2 . 7 c O N t .
(g) The formal interrogation of a law enforcement offi cer or correctional offi cer, including all recess periods, must be recorded on audio tape, or otherwise pre- served in such a manner as to allow a transcript to be prepared, and there shall be no unrecorded questions or statements. Upon the request of the inter- rogated offi cer, a copy of any recording of the interrogation session must be made available to the interrogated offi cer no later than 72 hours, excluding holidays and weekends, following said interrogation.
(h) If the law enforcement offi cer or correctional offi cer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, he or she shall be completely informed of all his or her rights before commencing the interrogation.
(i) At the request of any law enforcement offi cer or correctional offi cer under investigation, he or she has the right to be represented by counsel or any other representative of his or her choice, who shall be present at all times during the interrogation whenever the interrogation relates to the offi cer’s continued fi t- ness for law enforcement or correctional service.
Source: Florida Statutes 2011, § 112.532.
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number of bills that offer guarantees against abusive administrative practices, lobby- ing efforts have been intense. Some political leaders oppose such federal interven- tion because they tend to see this issue as one of states’ rights (Young, 2001). Other legislators worry that their support might be construed as an effort to protect the jobs of “bad cops” (Pasco, 2003, p. 7). Finally, many police administrators oppose such an effort because they view it as an erosion of their authority. As you can see, the issue is replete with a variety of viewpoints and the debate, which has been going on since the mid-1990s, is expected to continue.
Decertification Chapter 5 talked about the function of the state POST in establishing minimum entrance standards, along with a mandatory pre-service training curriculum, for recruits. These requirements culminated in the officer earning certification or licensing as a state law enforcement officer. If the state has the power to grant an occupational license, the state can also revoke such a privilege.
One powerful feature associated with the mandate to retain competent and quali- fied personnel is decertification. Decertification means that the state can revoke a law enforcement officer’s license for such things as insubordination, gross immorality, habit- ual drunkenness, willful neglect of duty, incompetency, or willful misconduct. However, given the cautionary emphasis upon due process, there is a chain of events that takes place whenever an officer faces this action. The entire decertification process in Florida, as well as in many other states, involves a five-step model (Brand, 2004; Greenberg & Kaluhiokalani, 1982; Smith & Alpert, 1993).
The first step begins when the employing agency notifies the state POST that it has suspended, fired, or otherwise terminated a police officer from active employment status. The agency must outline the reason for imposing this disciplinary measure. A decertifi- cation hearing automatically follows to determine whether the officer should retain his or her certification.
The second step is the probable cause hearing. This stage occurs when the decertifi- cation task force reviews the agency’s materials. This three-person review team examines the documents and determines whether the case should go forward to the full Criminal Justice Standards and Training Commission. If the task force does not pass the case on to the full Commission, the case is either closed or is returned to the originating agency for additional information.
The accused officer can initiate the third step. If the decision is to forward the case to the entire Commission, the officer in question can request an informal conference. This meeting affords the officer a chance to offer any redeeming evidence he or she thinks is relevant.
The fourth step is the probable cause hearing before the full Commission. The Commission conducts an inquiry and hears arguments from a prosecutor and from the
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accused officer’s representative. The decision here is whether there is sufficient probable cause to revoke certification. If the evidence is in the officer’s favor, then the process ceases. He or she retains certification. Should the Commission rule against the officer, it issues an administrative complaint. The officer now has 21 days and three ways in which to respond. The officer can request an individual hearing with the Commission, a formal hearing before a hearing officer, or he or she can agree to the proceedings and surrender his or her police certification.
The fifth and final juncture is the dispositional outcome. If the 21-day period expires without any further action from the officer, certification is automatically rescinded. Should the officer surrender his or her certification, the Commission accepts it. However, if the officer has requested a formal hearing in the previous step, the case is heard, a ver- dict is rendered, and a final report is delivered to the Commission. The Commission can accept, reject, or modify the hearing officer’s recommendation. A case normally ends at this point. If the officer disagrees with the Commission’s final decision, the only remain- ing recourse is to seek remedy from a court of appeals.
As you can see, this administrative mechanism is used to restrict or curb insidi- ous behavior and to prevent unsuitable officers from gaining employment elsewhere. However, this protection is more of a punishment for the wayward officer than an effort to restore any injured parties to their former status. As a result, it is necessary to turn to avenues outside the law enforcement sphere for this type of relief.
external Sources of relief What type of recourse do citizens have when internal organizational controls fail to curb objectionable police behavior or when inadequate policies promote inappropriate actions? Take, for instance, the Christopher Commission Report (1991) that we talked about earlier in Chapter 2. This investigation into the Los Angeles Police Department in the wake of the Rodney King incident uncovered many disturbing organizational facets. A number of officers remained on the streets even though they had accumulated a string of sustained complaints from Internal Affairs. In other words, the organization lacked accountability and ignored warning signs which indicated that some of its members were not fit for duty. Yet, no official corrective action was taken. This calloused indiffer- ence quickly found an outlet waiting in the civil arena.
Federal civil rights Violations One avenue of redress that is receiving considerable attention today is the filing of a civil lawsuit in the federal courts. These types of lawsuits are referred to as 1983 actions because they stem from activities alleged to be in violation of Section 1983 of the federal “Civil Rights Act of 1871.” While the original intent of this statute was to protect the constitutional rights of former slaves during the post-Civil War era, recent litigation has
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extended these provisions (Ross, 2006). As Figure 12.8 explains, Section 1983 addresses the deprivation of constitutional rights by any governmental offi cial. Thus, when a person fi les a federal civil rights lawsuit arguing that he or she was the subject of an unreasonable seizure or excessive force by a law enforcement offi cer, a 1983 claim is being pursued.
In order to be eligible to fi le this type of a claim, the individual must demonstrate two things. First, the claimant must show that somebody deprived him or her of a feder- ally protected right. Second, the person who perpetrated this deprivation must have acted under color of law (Smith, 1995, p. 129). Once the person bringing the suit satisfi es these two criteria and demonstrates damage, the burden of proof shifts away from the plaintiff and onto the individuals named in the suit. What this switch means, then, is that the offi – cials have to explain why they think the suit is baseless.
On the face of it, this federal remedy appears to carry considerable clout. However, it remained a nonproductive recourse for many years. Up until Monell v. Department of Social Services of the City of New York (1978), the courts were of the opinion that gov- ernmental entities were spared responsibility for the actions of their employees.
Monell (1978) changed this situation dramatically. Take another look at Figure 12.8 for a moment. The opening line states that “Every person . . . .” Prior to Monell, the standard interpretation was that governmental agencies were not “persons” and, there- fore, could not be sued under these provisions. However, Monell (1978) retracted this line of thinking and made local governmental units liable as long as the offi cer’s actions could be attributed to offi cial policy or, in the absence of written guidelines, any custom, habit, or tradition that had arisen over the years. Now plaintiffs could use the argument of vicarious liability to reach into the “deep pockets” of governmental coffers (Kappeler, Kappeler, & del Carmen, 1993; McCoy, 1984; Ross, 2006; Smith, 1995).
Vicarious liability means that a supervisor is responsible for the actions of employees under his or her supervision. What vicarious liability translates into is that, in addition to naming the offending offi cer in the lawsuit, the papers will also include the offi cer’s sergeant, lieutenant, captain, agency head, and the city or county government. As you
F I G U r e 1 2 . 8 Section 1983 of the Federal civil rights act of 1871.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State of Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdic- tion thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Source: 42 U.S.C. § 1983 (1981).
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can see, this ruling has expanded the number of responsible parties and has made 1983 actions much more lucrative.
How effective have 1983 lawsuits been? Two studies (Kappeler & Kappeler, 1992; Kappeler et al., 1993) attempt to answer this question by examining decisions rendered in federal district courts. In general, law enforcement defendants prevailed in about half the cases. However, a large number of these victories came about because of procedural errors rather than factual determinations. Thus, it would appear that there are numerous substantive violations that could merit closer attention.
Turning to other aspects, the most common issues raised by these lawsuits cen- tered on false arrest, excessive force, search and seizure, and illegal assaults or batteries. Awards made during the 1978–90 period averaged $188,000 for excessive force cases and $92,000 for cases involving false arrest (Kappeler et al., 1993, p. 335). In addi- tion, an analysis of local police-involved lawsuits that appeared in newspaper articles published in Chicago, Los Angeles, and New York outlets revealed that employee racial and gender discrimination complaints were quite prevalent (Archbold, Lytle, Weatherall, Romero, & Baumann, 2006).
One needs to keep several caveats in mind when reviewing these figures. For one thing, there is no national depository which tracks these cases. Archbold and Maguire (2002) attempted to re-analyze agency self-report data, but they were hampered by a tremendous amount of missing information. Experiences like this led Worrall (2001) to suggest that the need for a comprehensive national database is long overdue. Second, the figures which are available do not reflect out-of-court settlements. Many jurisdictions routinely pay off minor claims simply to dispose of these cases efficiently. For instance, a person who raises a claim of a few thousand dollars might receive a settlement check simply because it would be more costly to litigate the case. Finally, these awards tend to exclude litigation in state courts. Many states have their own version of civil rights laws and actions can be pursued in this venue. As we will see in the upcoming section, a significant amount of litigation occurs at the state level.
tort actions against the police Earlier in this book, we devoted one chapter to a discussion of criminal law and another two chapters to constitutional law. This section of the present chapter introduces read- ers to a third type of law: civil law. Another way to talk about civil liability is to use the word “tort.” A tort refers to a wrongful act that one party (the defendant) commits against another person (the plaintiff). This act produces some type of injury or damage. The purpose of a tort action or a civil lawsuit is for the plaintiff to recover damages from the defendant.
Ross and Bodapati (2006) examined the records maintained by the Michigan Municipality Risk Management Authority for the 1985–1999 period. The Authority underwrote insurance policies for 151 municipal, county, and state agencies throughout the state. While there was a total of 11,273 claims registered during this 15-year interval,
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the authors conducted a more intensive analysis of the 3,341 cases filed from 1994 until 1999. More than half these claims involved automobile mishaps such as police cars colliding with deer or other animals, traffic accidents, lightning strikes, and other mis- fortunes. Of the remaining 1,313 cases, the more frequent complaints concerned allega- tions of excessive force, property loss or mishandling, damage stemming from vehicular pursuits, and improper arrests or false imprisonment. The authors suggest that police administrators can handle these problem areas through better risk assessment, more thorough policy guidelines, and better training.
Since there are two general types of torts at the state level, an intentional tort and a negligence tort, each will receive separate treatment in the following subsections.
Intentional Tort An intentional tort refers to the commission of some act that carries a reasonable cer- tainty of injury to another party. Intentional torts usually arise when an officer inflicts harm upon a person. Some of the more common issues associated with intentional torts include false arrest, false imprisonment, assault, battery, excessive use of force, wrong- ful death, and infliction of mental or emotional distress (del Carmen, 1995, pp. 465–470; Ross, 2006).
While this listing covers a wide array of behaviors, the federal Supreme Court has given explicit guidance when trying to evaluate an officer’s actions. The majority opin- ion in Graham v. Connor (1989, pp. 396–397) stated:
Today we . . . hold that all claims that law enforcement officers have used exces- sive force―deadly or not―in the course of an arrest should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach . . . . The “reasonableness” of a par- ticular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments―in circumstances that are tense, uncertain, and rapidly evolving―about the amount of force that is necessary in a particular situation.
When viewed in this context, it is obvious that officers enjoy a certain amount of leeway when confronted with nebulous situations in the field.
Negligence Tort A negligence tort refers to the failure to act reasonably in a situation where it is fea- sible to foresee that the officer’s conduct may cause harm to another person. The typical breaches of duty that negligence torts cover include several areas. They are a failure
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to train, negligent hiring, negligent assignment, failure to supervise, failure to direct, failure to discipline, and negligent retention (Alpert & Fridell, 1992, pp. 10–11; del Carmen, 1989; Ross, 2000; Ross, 2006).
Do these Strategies Work? It would seem reasonable to assume that these external remedies, especially now that local governments must absorb the financial crunch, would carry several different rami- fications. Skyrocketing insurance premiums, a greater emphasis upon preventive strate- gies such as training and monitoring officer behavior, and greater detail being paid to policy development would seem to be logical outcomes. However, a very fundamen- tal difficulty emerges whenever one tries to gauge any deterrent effect. As one writer (McCoy, 1984, p. 49) puts it:
successful deterrence means that crime has not happened, but we can’t easily measure what isn’t there . . . . The same considerations apply to deterring unlaw- ful actions of police. It is almost impossible to count how many illegal searches and seizures have been prevented . . . .
While research shows that trainees at the police academy worry about being sued (Scogin & Brodsky, 1991), street officers do not seem to share a similar level of anxiety (Garrison, 1995; Hughes, 2001; Novak, Smith, & Frank, 2003). In fact, many officers have come to accept lawsuits and the traveling expert witness industry as part of the risks that come along with the job. Like physicians and other high-risk job holders, many offi- cers carry malpractice insurance made available through their unions and associations to protect their assets. However, in many instances, litigating against individual officers is virtually a useless strategy. Even if the court does award a significant monetary settle- ment to the plaintiff, the victory is largely symbolic. Very few officers have the financial resources to pay off these judgments.
What remains to be seen, though, is whether the professionalizing efforts discussed throughout this book are making agencies and officers more aware of their responsi- bilities. Worrall (1998) studied agency self-reported civil liability lawsuits and found some consistencies. Departments that embraced a community policing philosophy had very proactive campaigns aimed at recruiting minority officers, were receptive to citizen review of internal affairs cases, and had fewer civil liability lawsuits. Of course, one also needs to realize that there are over 635,000 full-time officers and over 34,000 part-time officers scattered among almost 16,000 local agencies in this country (Reaves, 2010, p. 8). Given this background, one can begin to appreciate the mammoth task of regulating individual police behavior and the need for multiple remedies.
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Summary This chapter divided the mechanisms that are commonly used to regulate police behav- ior into those avenues that are located within law enforcement and those remedies that are positioned outside the police world. The internal tools are highly dependent upon adequate policy development. As a result, we spent some time clarifying and analyzing what an ideal set of guidelines should contain. The role of internal affairs operations and decertification at the state level, as well as due process protections, were introduced as important components of this system.
Quite often, internal controls fail to curb misbehavior. Litigation, in the shape of 1983 actions and tort cases, form the mainstay here. These avenues are particularly attractive because they focus attention upon both the agency and individual officer as responsible parties. Thus, departments and officers now have a financial incentive to avoid debatable practices in the first place.
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reVIeW QUeStIONS
1. What does the word “policy” mean?
2. List two reasons why policy formation should not be left up to offi cers in the fi eld.
3. Give three reasons why agencies should devote time and energy to establishing policy guidelines.
4. What is meant by deliberate indifference?
5. What could be the outcome if an agency does not have written policy guidelines?
6. What is a mission statement?
7. What basic considerations should go into policy development?
8. Why is it important to have policy guidelines that address the area of secondary or off-duty employment?
9. List what you consider to be the most important ingredients of a policy governing secondary or off-duty employment?
10. What is the purpose of an Internal Affairs unit?
11. What type of activities does Internal Affairs monitor?
12. Explain three ways in which an internal affairs complaint may be concluded?
13. What is an oral reprimand?
14. What is a written reprimand?
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15. What does a suspension entail?
16. Why are the Weingarten Rights so important?
17. Why is the Garrity Rule so important?
18. What provisions are contained in a Law Enforcement Officers’ Bill of Rights statute?
19. Explain how Section 1983 of the federal Civil Rights Act of 1871 plays a role in police civil liability.
20. How did the Monell decision affect the liability of local governments?
21. What is vicarious liability?
22. What is a tort?
23. Explain the difference between an intentional tort and a negligence tort.
24. What is the importance of Graham v. Connor?
25. List several types of negligence torts.
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DIScUSSION QUeStIONS
1. Get a copy of the mission statement that guides the police or public safety depart- ment at your college or university. Compare and contrast it with the mission statements that appear in this chapter. Are they similar or are there substantial differences? Why?
2. Develop a policy regarding agency-marked take-home cars for uniformed patrol offi cers. What points would you include in such a directive? How would you ensure that this policy conforms to the basic considerations presented in this chapter?
3. Check your state statutes to see whether there is a police offi cer’s bill of rights. If your state does have such legislation, compare and contrast its contents with the example that appears in this chapter. Are they similar or are there substantial differences? If your state does not have such a statute on the books, draft what you think such a law should look like.
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S e L e c t e D I N t e r N e t S I t e S
Florida Commission on Human Relations http://fchr.state.fl.us
Florida Department of Law Enforcement, Professional Compliance (Disciplinary) Program
http://www.fdle.state.fl.us/Content/getdoc/f7de3350-3b11-4917-8f98-e0532f4761ba/ Professional-Compliance.aspx
Florida Police Benevolent Association http://www.flpba.org
Florida Police Chiefs Association, Self-Insurance Fund http://www.fpca.com/insure.htm
Fraternal Order of Police http://www.grandlodgefop.org
Los Angeles Police Protective League http://www.lapd.com
Police Assessment Resource Center http://www.parc.info/home.chtml
Southern States Police Benevolent Association https://www.sspba.org/index.htm
U.S. Commission on Civil Rights http://www.usccr.gov
U.S. Department of Justice, Civil Rights Division http://www.justice.gov/crt
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Brand, D.G. (2004). Florida’s officer discipline process: A retrospective look at the role of the criminal justice standards and training commission. Florida Police Chief, January, 30(7), 9–11.
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Walker, S., & Fridell, L. (1992). Forces of change in police policy: The impact of Tennessee v. Garner. American Journal of Police, 11(3), 97–112.
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c a S e S c I t e D
City of Canton v. Harris, 109 S. Ct. 1197 (1989).
Garrity et al. v. New Jersey, 385 U.S. 493 (1966).
Graham v. Connor, 490 U.S. 386 (1989).
Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).
National Labor Relations Board v. Weingarten, 420 U.S. 251, 95 S.Ct. 959 (1975).
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R O D D Y , A N T H O N Y 6 9 7 3 B U
iv
c h a p t e r
13
prOFeSSION Or OccUpatION?
451
Upgrading Police Agencies
The Quest for Police Professionalism
Professionalizing Police Officers
Professionalizing Police Agencies
National Accreditation
State Accreditation
The Journey Ahead
Salaries
Promotional Opportunities
Career Mobility
Leadership
Summary
Review Questions
Discussion Questions
Selected Internet Sites
References
Cases Cited
c h a p t e r O U t l I N e
Key Terms
Learning Objectives
Introduction
The Meaning of “Profession”
A Specialized Body of Knowledge
Licensing
Authority and Autonomy
Altruism
A Code of Ethics
A Final Note
Barriers to Professional Status
“Dirty Work”
The Closed Police World
Police Unionization
Modern Police Strikes
Public Reaction
Crime during Strikes
Preventing Future Strikes
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452 Part 4 Off the Streets
new professions
old established professions
privileged communications
profession
semi-professions
thin blue line
ticket blizzard
transfer of retirement credit
unionization
work slowdown
would-be professions
K e y t e r m S
accreditation
altruism
blue flu
clearance
code of ethics
collective bargaining
dirty work
impasse
integrated professionalism
lateral entry
licensing
marginal professions
• Outline public reaction during police strikes;
• Identify the thin blue line thesis;
• Comment on whether crime flour- ishes during police strikes;
• List several ways to avoid police strikes in the future;
• Distinguish individual from agency professionalism;
• Explain what accreditation means;
• Summarize what police professional- ism means;
• Talk about whether policing is a pro- fession or an occupation; and
• Predict what issues will affect police professionalism in the future.
l e a r N I N g O b j e c t I v e S
The study of this chapter will enable you to:
• Define what the term profession means;
• List the five elements that underlie the term profession;
• Make distinctions between catego- ries of professions;
• Evaluate how law enforcement scores on the criteria for a profession;
• Understand why people regard police work as “dirty work;”
• Talk about why police officers engage in collective bargaining;
• Explain what job actions, short of a strike, the police have used in the past;
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Chapter 13 profession or Occupation? 453
Introduction If we stand back and survey this entire book, one overriding theme that links the various topics is enhancement. The quality of law enforcement officers and policing has risen over the past several decades. As we saw earlier, personnel selection has become more rigorous. Candidates now must hurdle a barrage of entrance tests. Those who survive the cuts and make it to the final applicant pool represent the fittest or most suitable candidates.
What is in store for this select group of recruits also has changed over the years. In the old days, agencies would issue rookies a service weapon, tell them to do good, and send them out on patrol. Today, recruits head to the police academy to study an exten- sive curriculum of law enforcement matters. While there is some training in armed and unarmed combat, there is a fair share of academic material. The instruction includes lectures on criminal law, constitutional law, cultural diversity, and other aspects.
The past few years have witnessed the need to instill an even greater sensitivity within police officers. Police in the old days handled calls by ordering people about and physically punishing them for noncompliance. Today, there is a greater emphasis upon community relations, dispute resolution, and interpersonal communication. No longer does society need officers who are willing to go out and thump people. Extending a help- ing hand and resolving matters that might not really be police business have become the hallmark of the modern day law enforcement officer.
At the same time, the individual officer must shoulder the responsibilities that accompany the use of discretion. Decisions made quickly in the field must pass review from those who sit behind a quiet desk and muse over what the officer could have done. Whether these actions pertain to an arrest, use of force, or intervention in domestic vio- lence, they all share a similar feature. The decision to act and to select an appropriate course of action must be made in a calm, objective, and nonpartisan fashion.
What we have described in the past few paragraphs is a new breed of officer. This person is more sophisticated and distinct from the bullies and hooligans who once donned police badges, carried night sticks, and wore lead-weighted sap gloves. Many people, both inside and outside the ranks, welcome these changes.
From time to time, one might overhear an observer extolling the virtues of this newly found police professionalism. But are the police really professionals, or is the term “professional” an elusive goal that remains out of reach? This chapter raises the question of whether law enforcement is a profession or an occupation. Before we can formulate an answer, there is a need to explore just what the term “profession” means.
the meaning of “profession” There are hundreds and hundreds of jobs or work roles in society today. One common distinction that people sometimes use when talking about a job is to indicate whether it is in a profession or learned occupation. However, as society grows more complex and as the labor force expands into new areas, this simple dichotomy becomes less sensitive
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and harder to apply. As a result, many observers today prefer to arrange occupations on a continuum. In this way they can talk about the degree to which a job is a professional enterprise. This strategy is important because it implies that occupations may move up or down the status ladder. In other words, as time goes on, it is possible for some jobs to change so that they resemble professional pursuits more closely. Other occupations may change in the opposite direction and become less professional. As we shall see later, this notion of change or progress is quite important for the future outlook of law enforcement.
Rather than deal with the whole continuum of occupations at one time, it might be more practical to focus just upon the professional part of the scale. At least one scholar has done just that. Reiss (1955) divides the professions into five categories. The old established professions include such traditional categories as doctors, lawyers, and uni- versity professors. The second grouping, new professions, is reserved for natural and social scientists. The semi-professions distinction houses such occupations as teachers, nurses, and social workers. These positions have the potential to become recognized as professions, but, for a variety of reasons, remain on the fringes. Farther down the list are would-be professions—these people would like to gain recognition as professionals but lack some very important characteristics. The final grouping in this scheme is known as the marginal professions. While some members of this last group may work very closely with professionals (paralegals, dental technicians, laboratory assistants), they still labor in a subservient role.
An appropriate concern at this point is to identify the benchmarks or the criteria that people use to sort occupations into various professional categories. Although scholars have debated these issues for several years and different viewpoints have emerged, the essential ingredients can be boiled down to five elements. They include a specialized body of knowledge acquired during an intensive training period, admission standards through a certification or licensing procedure, authority and autonomy, altruism, and a code of ethics. The following subsections discuss each of these points in turn.
a Specialized body of Knowledge Quite a few jobs require specialized knowledge and performance skills. For example, an automobile mechanic must understand the internal workings of an engine in order to diagnose and correct a problem. A plumber must be aware of building codes and prod- ucts available on the market, and he or she must know how to fit pipes. A computer repair technician must understand how the various parts go together and function as a whole. In short, quite a few jobs require task knowledge and practical application.
While what these workers know and can do may go far beyond the grasp of the aver- age person, their knowledge is technical. A large distinction is drawn between technical knowledge and true intellectual achievement. Professional workers must do more than just learn a cookbook approach to problem-solving. They must develop an acute under- standing of a body of theory during an extensive learning process. Generally speaking, this training period takes place under the formal tutelage of advanced professionals in an academic environment. While many professions, such as medicine, depend upon skills
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Chapter 13 profession or Occupation? 455
and technical application, the critical test is in their balance. As (Cogan, 1953, p. 36) explains, “If, after weighing these qualities, manual skill is found to exceed intellectual quality, then the pursuit is not classified as a profession.”
In sum, reliance upon theory, scientific method, and the application of theoretical principles to concrete situations are what distinguish professions from occupations. Law enforcement receives some nebulous grades on this dimension. While police officers must become well versed in criminal statutes, constitutional law, accident investigation, weapons use, first aid, and a host of other areas, these aspects resemble more technical than theoretical knowledge. For example, police officers do not debate the origins of law. Nor do they have to reach a fine understanding of the philosophical positions or logic behind the Supreme Court’s application of legal principles. Instead, police officers must learn to recognize the conditions under which certain actions are permissible. In short, the rank-and-file officer does not acquire the type of intellectual understanding needed to fit the definition of a profession.
licensing One key attribute of a profession is licensing or the ability to restrict entrance to those persons who have demonstrated a minimum level of competency. One cannot engage in professional pursuits until he or she has gained admission into a licensed group. For example, successful completion of law school courses or a medical curriculum does not entitle people to advertise themselves as members of that profession. The state bar, the medical society, and other professional bodies require aspirants to pass an entrance exam- ination. A part of that test may include a background check to make sure that prospective members are of fine and upstanding moral character. By the same token, a regulatory body can revoke the license of members no longer deemed fit by professional standards.
Earlier we devoted some space to a discussion of law enforcement personnel selec- tion. Virtually every state now has some type of overseeing regulatory board that certi- fies law enforcement officers. Certification has several requirements. Applicants must prove that they are in good physical and mental health. They cannot have a criminal history. They must be of sound character. In addition, recruits must complete a basic law enforcement minimum standards training course. Some states now even require acad- emy graduates to demonstrate basic expertise on a certification examination. Should any of these conditions deteriorate over time, the state standards and training division may rescind that officer’s law enforcement license.
As far as the licensing component goes, it appears that although law enforcement tries to imitate the professional model, there are at least three important differences. For one thing, certification and decertification are relatively recent innovations in law enforcement. Other professions have pursued these actions for much longer.
Second, practicing law enforcement members do not control licensing and certifi- cation. Instead, state law mandates an independent bureaucratic structure to carry out these functions. In contrast, doctors and lawyers administer boards or bar examinations themselves, grade these tests, and formulate other admission requirements.
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456 Part 4 Off the Streets
Third, doctors and lawyers belong to their own associations which regulate profes- sional activities. Law enforcement offi cers lack such a beacon or self-direction as a group.
In sum, while the law enforcement certifi cation process has made great strides in upgrading the quality of incoming personnel, these activities fall quite short of complete professionalization.
authority and autonomy One major distinction that separates professions from occupations is how the recipient of the services is portrayed. One way to phrase this idea is “Professionals have clients, while all individuals in nonprofessional occupations have customers” (Ritzer, 1972, p. 57). Professionals render a service based upon their expertise. For example, patients with disorders or ailments visit physicians, surrender themselves for treatment, and comply with the physician’s instructions for a cure. In other words, the client is com- pletely subordinate and must trust in the service provider’s professional abilities and authority implicitly. This trust is so basic that many states protect the doctor-patient and lawyer-client relationships (see Figure 13.1) from intrusion by defi ning privileged com- munications as private and confi dential.
Several obstacles make it impossible for law enforcement offi cers to have the same degree of professional autonomy. First, law enforcement offi cers are public employees and, as such, must respond to all requests for service. The police are not able to cultivate their own private list of suitable clients.
Second, when law enforcement offi cers do respond to a call for service, the persons present on the scene may or may not defer automatically to the offi cer’s wishes. As we
F I g U r e 1 3 . 1 an example of the lawyer–client privilege.
A communication between lawyer and client is “confi dential” if it is not intended to be disclosed to third persons other than:
1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably necessary for the transmission of the communication.
A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confi dential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.
Source: Florida Statutes 2011, § 90.502.
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Chapter 13 profession or Occupation? 457
discussed earlier, most calls track a typical sequence of stages. If a call deviates from this pattern, officers will spend considerable time trying to place the call back on track.
Third, Chapter 9 developed the theme that police officers exercise discretion during the discharge of their duties. While this statement may be true, officers must conform to the dictates of the agency policy guidelines. When officers do take actions, their own agency and other actors within the criminal justice system may review that decision. For these reasons, then, policing is not as autonomous as other professional pursuits.
altruism A traditional earmark of professionalism is the notion of a vocation. A vocation implies some type of calling to pursue a lofty ideal. Generally speaking, the professional sub- scribes to the ideal of altruism and believes that it is his or her duty to help unfortunate others who are unable to fend for themselves. Thus, a true professional has a greater concern with the plight of other people than with amassing personal wealth.
This service ethic becomes reflected in professional expectations. As Figure 13.2 explains, state bar associations expect lawyers to contribute a certain amount of pro bono work annually on behalf of indigent clients. Many law firms handle appeals for penniless prisoners sitting on death row as charity cases. Physicians sometimes donate their services to special groups, such as rural children or the elderly.
As mentioned earlier, police officers, by virtue of their jobs, already engage in pub- lic service. Some officers view helping others as the most important and satisfying por- tion of their roles. In addition, Chapter 10 examined the annual toll of officers who die in the line of duty, both feloniously and accidentally. As you can see, one cannot always measure the sacrifices police officers make by counting the number of hours donated or how much the service would cost normally recipients.
a code of ethics Once a professional association admits a person to practice, there is a formal ceremony during which he or she swears an oath of office (see Figure 13.3). For example, physi- cians repeat the Hippocratic oath and lawyers abide by the canons of ethics. A pro- fessional code of ethics emphasize two virtues, integrity and responsibility to clients. As Figure 13.4 shows, law enforcement officers have their own code of ethics. That expectation of proper conduct stresses compassion for others, law-abiding behavior, and service. If the mere possession of a code of ethics distinguishes a profession from an occupation, then law enforcement scores high on this criterion.
a Final Note This section of the chapter explored what the word “profession” entails. A profession carries at least five qualities or dimensions. They include a specialized body of knowl- edge, a formal licensing procedure, autonomy and authority, a sense of a calling or
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458 Part 4 Off the Streets
a vocation, and fi nally, a code of ethics. Law enforcement may score highly on some aspects, but not so well on others. In any event, the following defi nition of a profession by Cogan (1953, pp. 48–49) illustrates each of these points quite nicely. It states:
A profession is a vocation whose practice is founded upon an understanding of the theoretical structure of some department of learning or science, and upon the abilities accompanying such understanding. This understanding and these
F I g U r e 1 3 . 2 the Florida bar association guidelines on pro bono expectations for practicing lawyers.
Pro bono legal service to the poor is an integral and particular part of a lawyer’s pro bono public service responsibility. As our society has become one in which rights and responsibilities are increasingly defi ned in legal terms, access to legal services has become of critical importance. This is true for all people, be they rich, poor, or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences . . . .
In discharging the professional responsibility to provide pro bono legal service to the poor, each lawyer should furnish a minimum of twenty hours of pro bono legal ser- vice to the poor annually or contribute $350 to a legal aid organization. “Pro bono legal service” means legal service rendered without charge or expectation of a fee for the lawyer at the time the service commences. Legal services written off as bad debts do not qualify as pro bono service. Most pro bono service should involve civil proceedings given that government must provide indigent representation in most criminal matters. Pro bono legal service to the poor is to be provided not only to those persons whose household incomes are below the federal poverty standard but also to those persons frequently referred to as the “working poor.” Lawyers pro- viding pro bono legal service on their own need not undertake an investigation to determine client eligibility. Rather, a good faith determination by the lawyer of client eligibility is suffi cient. Pro bono legal service to the poor need not be pro- vided only through legal services to individuals; it can also be provided through legal services to charitable, religious, or educational organizations whose overall mission and activities are designed predominately to address the needs of the poor. For example, legal service to organizations such as a church, civic, or community service organizations relating to a project seeking to address the problems of the poor would qualify.
Source: Excerpted from The Florida Bar (2005), Rule 4-6.1: Pro Bono Public Service. Tallahassee, FL: The Florida Bar. Retrieved on March 12, 2012 from http://www.fl oridabar.org/divexe/rrtfb.nsf/FV/BF60AF4C185D99D- 085256BBC00533761
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Chapter 13 profession or Occupation? 459
F I g U r e 1 3 . 3 Oath of offi ce for Florida public offi cials.
I do solemnly swear or affi rm that I will support, protect, and defend the Constitu- tion and Government of the United States and of the State of Florida; that I am duly qualifi ed to hold offi ce under the Constitution of the state; and that I will well and faithfully perform the duties of (title of offi ce) on which I am now about to enter. So help me God.
Source: Florida Constitution, Article II, §5 (b).
F I g U r e 1 3 . 4 principles listed in the Florida law enforcement Offi cer ethical Standards of conduct.
1. Police offi cers shall conduct themselves, whether on- or off-duty, in accor- dance with the Constitution of the United States, the Florida Constitution, and all applicable laws, ordinances and rules enacted or established pursuant to legal authority.
2. Police offi cers shall refrain from any conduct in an offi cial capacity that detracts from the public’s faith in the integrity of the criminal justice system.
3. Police offi cers shall perform their duties and apply the law impartially and with- out prejudice or discrimination.
4. Police offi cers shall not, whether on- or off-duty, exhibit any conduct which dis- credits themselves or their Department or otherwise impairs their ability or that of other offi cers or the Department to provide law enforcement services to the community.
5. Police offi cers shall treat all members of the public courteously and with respect.
6. Police offi cers shall not compromise their integrity, nor that of their Department or profession, by accepting, giving or soliciting any gratuity which could be rea- sonably interpreted as capable of infl uencing their offi cial acts or judgments, or by using their status as a police offi cer for personal, commercial, or political gain.
7. Police offi cers shall not compromise their integrity, not that of their Department or profession, by taking or attempting to infl uence actions when a confl ict of interest exists.
8. Police offi cers shall observe the confi dentiality of information available to them due to their status as police offi cers.
Source: Florida Department of Law Enforcement (2012). Law Enforcement Offi cer Ethical Standards of Con- duct. Tallahassee, FL: Criminal Justice Standards & Training Commission. Retrieved on March 12, 2012 from http://www.fdle.state.fl .us/Content/CJST/Offi cer-Requirements/LE-Ethical-Standards-of-Conduct.aspx
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abilities are applied to the vital practical affairs of man. The practices of the profession are modified by knowledge of a generalized nature and by the accu- mulated wisdom and experience of mankind, which serve to correct the errors of specialism. The profession, serving the vital needs of man, considers its first ethical imperative to be altruistic service to the client.
barriers to professional Status When one evaluates law enforcement according to the traditional traits that define a profession, it does well in some areas but fares poorly in others. Most people regard the attainment of a professional status as an all-or-nothing proposition. All the criteria must be met before an occupation reaches designation as a profession. Any shortcomings compromise the elevation from an occupation to a profession. As a result, even observ- ers who are sympathetic to the police do not regard law enforcement as a traditional profession. As one spokesperson (Price, 1977, pp. 701–702) put it, “the police have a long way to go before true professional status is achieved.”
Others are even more adamant about the deficiencies they see in the minimum standards required for law enforcement officer certification. After surveying directors from each state’s Police Officer Standards and Training Commission, Lumb (1994, p. 15) concluded:
at this time in their history, the police do not meet acceptable standards of prac- tice warranting entitlement to professional status. The police fall instead into the lesser category of semi-professional. Professional status can only occur if substantial changes take place.
In order to understand why some observers would deny the mantle of a profession to the police, one must become aware of other obstacles. While some people may argue that the list of impediments is quite lengthy, this portion of the chapter will deal with four specific barriers. They include the degrading nature of police work, the reaction against outsiders participating in a review of police conduct, the labor movement toward unionization, and police strikes.
“Dirty Work” The first obstacle the police face in the quest for professional recognition is that even though they are “good people,” they are doing “dirty work” (Hughes, 1962). Dirty work refers to those distasteful tasks that have to get done, but which most people abhor and would prefer to avoid. Embalming and preparing a dead body for burial would be just one example of “dirty work,” things that most people would rather not discuss (Ritzer, 1977, pp. 193–194).
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Chapter 13 profession or Occupation? 461
Police tasks often involve “dirty work.” For example, officers must investigate grue- some homicide and suicide scenes. They subdue mentally ill people who are violent. They joke with prostitutes and drug addicts. They administer first aid to bleeding people, examine babies subjected to unimaginable forms of child abuse, and witness other hid- eous products of human depravity. The police deal with the gory, seamy, and brutal aspects of human behavior.
While some municipal agencies have tried to mold the public image of officers by outfitting officers in blazers, dress slacks, and ties, the essential job tasks remain the same (Bell, 1982; Gundersen, 1987). Officers are paid to do things that the ordinary citi- zen abhors and would rather not think about at all. Some of these duties are so repulsive that even officers themselves do not like performing them and resent the very people with whom they must deal. A not uncommon theme in the law enforcement literature is that most police officers would prefer that their sons and daughters not follow in their footsteps. Instead, most police officers harbor dreams that their children will attend qual- ity schools, get a good education, and move on to more respectable jobs (Niederhoffer & Niederhoffer, 1978, pp. 80–82; Weisheit, 1987).
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