Running head: ISSUES OF POLICE CONDUCT

Issues of Police Conduct Brandi Norfleet American InterContinental University July 5, 2011

Running head: ISSUES OF POLICE CONDUCT

Abstract Police misconduct is not just behavior which is unethical but often times against the law as well. There must be strong internal controls in the department as well as effective external oversight to address misconduct issues of discretion, use of force, and corruption.

Running head: ISSUES OF POLICE CONDUCT

Introduction Policing in America has undergone a significant change over the past half century, and it is apparent in many of the procedures and policies of law enforcement. There have been several major events which have taken place that have had a direct or indirect affect on how police carry out their duties. These events include crucial Supreme Court decisions, the Civil Rights movement, and challenges and amendments to the Constitution just to name a few. Issues involving police misconduct are often intertwined with these major events most pointedly in the areas of discretion, use of force, and corruption. The changes in policing have paralleled changes in society. Police misconduct which involves issues of discretion, use of force, and corruption are best addressed through reforms in the policies of the organizational culture. Discretion Discretion is defined as the exercise of personal judgment, instead of official rules, in making decisions (Bohm & Haley, 2002). Discretionary enforcement allows officers to make decisions as to what course of action will produce the most desirable outcome in a given situation. Properly used, discretion can be a positive aspect of the criminal justice system. When used improperly, it results in actions that are discriminatory, unethical or illegal. Because of the type of work police officers do while dealing with the public, they must exercise their own discretion. Patrol officers routinely use their discretion in deciding whom to stop and question, which traffic violators to pull over, who to give citations to, and which calls to respond to first. Discretion is very subjective, meaning decisions can be affected by an officers own prejudices and bias. The issue of police discretion is very contentious, especially since some law enforcement officers abuse their discretion. One of the predominant issues of discretion when it comes to law enforcement misconduct is racial profiling. Racial profiling is a practice initiated by law enforcement which uses ethnicity or race, rather than behavior, as a basis to identify and investigate whether an individual is engaged in criminal activity. A 1999 Gallup poll, involving 2,006 telephone interviews with randomly selected U.S. citizens, found that 77 percent of blacks and 56 percent of whites believe racial profiling is a widespread practice by law enforcement (Cleary, 2000). In one of the earliest scholarly articles on this issue, David Harris states The practice of police

Running head: ISSUES OF POLICE CONDUCT

officers stopping black drivers just to see what they can find has become so prevalent; it has its own name. African Americans sometimes say they have been stopped for the offense of driving while black, and it described the act of constantly being stopped by police and harassed. Profiling is not isolated incidents by a few errant officers, but is in fact a routine occurrence that will require systemic reform (1997). In a case study, John Gould and Stephen Mastrofski report on field observations of 115 police searches. A team comprised of a judge, prosecutor, and attorney deemed 30% of these police searches unconstitutional (Ridgeway, 2006). Methods aimed at stopping racial profiling include ethnic and cultural diversity training, videotaping all traffic stops, and also strong discipline for delinquent officers. Several government studies have recommended that departments develop their own guidelines on the use of discretion. They can more readily identify discriminatory practices and correct officers behavior or dismiss them from the department when necessary. Guidelines provide a standard to be used in evaluating officers for awards and promotions. They avoid the appearance of arbitrary discipline that occurs when improper conduct must be addressed even though there is no clearly articulated policy. In addition, department guidelines reduce the appearance of arbitrary and discriminatory law enforcement in the eyes of the public. Departments must also train officers and provide supervisory mechanisms to ensure that the policies are properly communicated and implemented. While the training should begin with recruits in the academy, it is also necessary to continually retrain officers in the field. Use of Force Law enforcement officers use force in order to control suspects, and the two types of force used include excessive and deadly. Excessive force is when an officer uses beyond the necessary amount needed in order to restrain the person(s) in custody. Deadly force is when the amount of force used proves to be fatal in controlling the suspect, and leads to death whether by police brutality, lethal ammunition, or some other factor. The law regarding the use of deadly force in making an arrest varies somewhat from state to state. Police department regulations also vary in the language used to regulate and instruct officers as to the use of deadly force. State laws and police regulations must conform, however, to the requirements established by the U.S. Supreme Court in the 1985 case of Tennessee v. Gardner. The U.S. Supreme Court greatly

Running head: ISSUES OF POLICE CONDUCT

restricted conditions in which a law enforcement officer is permitted to use deadly force which include 1.) The crime for the arrest being made involved the use or threatened use of deadly force 2.) Significant risk the person being arrested will cause enormous bodily harm or death if their capture is delayed According to the annual report by the National Police Misconduct Statistics and Reporting Project (2011), there were 4,861 tracked reports of police misconduct in 2010. Out of those tracked reports, 23.8% were associated with police brutality and 247 resulted in fatalities. Police misconduct involving use of force can lead to not only criminal cases against officers and but also civil cases. In 1994, the U.S. Congress enacted legislation that gave the U.S. Department of Justice new authority to commence civil actions against law enforcement agencies that demonstrate a pattern of using excessive force. All claims that law enforcement officers have used excessive force should be analyzed under the Fourth Amendment and its reasonableness standard. The Fourth Amendment provides an explicit textural source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment must be the guide for analyzing these claims (Graham v. Connor, 490 U.S. 386). The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. 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. It is criminally illegal and morally unethical behavior which can cost law enforcement agencies millions of dollars in legal damages. The estimated amount spent on police misconduct related civil settlements and judgments is approximately $346,512,800. This amount does not include sealed settlements, court costs, and attorney fees (2011). Corruption The third issue is corruption by police officers, which in 1972 the Knapp Commission divided into the categories of grass eaters and meat eaters (Braziller, 1972). Grass eaters refer to officers who occasionally engage in illegal and unethical acts during the course of their duties, and those who actively seek ways to make money illegally are called meat eaters.

Running head: ISSUES OF POLICE CONDUCT

Nothing is more repugnant to the public than a police officer or a whole department which has become corrupt. When police officers and law enforcement officials willfully engage in corrupt activities and deceitful behavior, it can greatly affect the community they are sworn to protect and serve. Corrupt activities range from bribery, theft and perjury to falsifying evidence, extortion, and other types of unethical activities. External controls are needed to maintain a sense of commitment and accountability in order to minimize corruption in police departments, and there should certainly be a more proactive Internal Affairs Unit. Complaints against officers should be taken seriously and dealt with swiftly and justly when proven credible. There needs to be reviews of the departments by outside sources, along with special prosecutors assigned to the cases of corrupt officers (Simmons, 2005). Conclusion Issues of police misconduct can be controlled internally by the department through development of policies, procedures, training, and supervision. External controls may be imposed by citizen review boards, the legislature, or the courts. Of these methods, internal controls are thought to be the most effective. Unlike internal control mechanisms that reflect an attempt by the police to address inappropriate behavior, external control mechanisms are imposed on the department by other agencies or individuals who may or may not have an understanding of the police role and functions. This control can be achieved through civilian review boards, legislative oversight or through the court system. As noted criminologist Carl Klockers states, Policing is an occupation that is rife with opportunities for misconduct (Schmalleger, 2011). Policies and procedures of the police departments should reflect a strict and effective approach to dealing with deviant or criminal behavior by its officers and officials. The abuse of discretion, use of excessive and deadly force, and corruption by police are examples of police misconduct which are constantly exposed in the media and often result in public unrest. Illegal and unethical actions by those who are sworn to protect and serve leave the community with a distasteful view of police, and strain the relationship between citizens and police. Properly structured, department guidelines should achieve a balance between the operational needs of law enforcement and the constitutional protections that must be afforded all citizens (Zurcher & Cohen, 1976). When it comes to the issues of inappropriate and illegal conduct by law

Running head: ISSUES OF POLICE CONDUCT

enforcement, swift and effective measures must be taken to reform the deviant behavior of the participants.

Running head: ISSUES OF POLICE CONDUCT

References 2010 NPMSRP police misconduct statistical report draft. (2011, April 5). Injustice Everywhere. Retrieved June 26, 2011, from http://www.injusticeeverywhere.com/?p=4053 Bohm, R. M., & Haley, K. N. (2002). Policing America: issues and ethics. In Introduction to criminal justice (3rd ed.). New York: Glencoe/McGraw-Hill. Braziller, G. (1972). The Knapp Commission report on police corruption. New York.

Graham v. Connor, 490 U.S. 386 (1989)

Harris, David. Driving while Black and all other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops. The Journal of Criminal Law and Criminology, vol. 87 (2), 1997. Ridgeway, G. (2006). Assessing the Effect of Race Bias in Post-traffic Stop Outcomes Using Propensity Scores. Journal of Quantitative Criminology, 22(1), 1-29. This article describes the practice of racial profiling in relation to minority communities. Propensity score techniques are used to analyze the affects of race on post-stop outcomes of 7607 recorded vehicle stops that the OPD made between June 15, 2003 and December 30, 2003. The article includes a 1999 Gallup poll of residents in Oakland, California. Schmalleger, F. (2011). Policing: issues and challenges. In Criminal justice today: an introductory text for the twenty-first century (11th ed., p. 269). Upper Saddle River, NJ: Pearson Prentice Hall. Simmons, K. (2005, October 3). Cooperative federalism and police reform: using Congressional spending power to promote police accountability. The University of Alabama School of Law. Retrieved June 23, 2011, from www.law.ua.edu This article identifies the most prevalent issues in local police departments, which include corruption and police misconduct. The efforts made by the Department of Justice (DOJ) to implement a unified set of reforms in local police departments, has been difficult thus far. This Article proposes a model that encourages federalstate cooperation to address the long standing questions of how best to promote police accountability within local law enforcement agencies and which entities should be responsible for implementing reform. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985)

Running head: ISSUES OF POLICE CONDUCT

U.S. House, Minnesota House of Representatives Research Department. (2000, June). Racial Profiling Studies in Law Enforcement: Issues and Methodology (J. Cleary, Author) [H.R. Doc.]. Retrieved June 23, 2011, from www.house.leg.state.mn.us/hrd/hrd.htm Zurcher, J.C. and S.B. Cohen (1976). Officer discretion: limits and guidelines Police Chief, 63(6):38-40.