Part 3: Understanding and Managing Police Authority Chapter 8: Police Authority

1. Part 3: Understanding and Managing Police AuthorityChapter 8: Police Authority

2. This Chapter will enable you to… • Learn the processes leading tothe arrest decision. • Understand the role of probablecause in arrest, search & seizure. • Distinguish between the varioustypes of police discretion. • Learn how the use of force can belawfully applied by police.

3. This Chapter will enable you to… • Explain how police authorityis delegated. • Appreciate the role of search& seizure in police work. • Distinguish between legalsearches with & without warrants.

4. DELEGATION OF AUTHORITY • Delegation of authority is a critical component in the chain of command, especially in larger departments. • Every member of a police department is directly accountable to his or her superior. • Police departments & large cities divide jurisdictions into precincts. • The precinct commander is responsible for the performance of the officers in the precinct. • Guidelines set out a specific procedures that mustbe followed under certain circumstances.

5. POLICE DISCRETION • Discussion of police discretion, leads to some thought provoking questions: • When a police officer observes a violation, is he/she required to make an arrest? • If not, who does get arrested? • Who is allowed to go free? • Important aspects of police authority are the powers to make arrests, conduct searches and interrogations of suspects & use deadly force if necessary. • If, and how, an officer intervenes in any givensituation is a product of discretion.

6. POLICE DISCRETION • Application of discretion is influenced by many different factors: • The law, department policy, individual characteristics of the suspect, and characteristics of the alleged offense. • Influence of other members of the police department, such as supervisors and chief executives, who mandate officers to act on offenses they have observed. • Discretion entails three fundamental officer decisions: • 1. Whether to get involved in the incident • 2. The manner in which to become involved. • 3. Selecting options to solve the problem

7. POLICE DISCRETION • Discretionary decisions made daily by police officers are usually free of examination by superiors. • Such freedom may at times deteriorate into blatant discrimination based on personal bias. • Questions can be posed: • To what extent are an officer's powers of discretion affected by external variables? • What variables tend to influence the officer's discretionary powers?

8. DEFINING DISCRETION • Police discretion with regard to the application of criminal law has been categorized into Invocation discretion and non-invocation discretion classes • Invocation discretion refers to situations where officers invoke the law, and issue a citation or makes an arrest. • Non-invocation discretion covers circumstances where the officer could employ the law, but elects not to do so. • Non-invocation decisions are problematic becauseof their low visibility… • If the officer chooses not to cite or arrest, this decision will never be scrutinized by a higher authority.

9. DEFINING DISCRETION • If the officer arrests or cites a suspected violator… • This choice will be reviewed by a police supervisor, the prosecutor, and probably a court. • In choosing which laws to enforce, when, against whom, police effectively act as policy makers. • Police, not the legislature decide which behaviors should be controlled by criminal law, & which can be tolerated.

10. OFFICER PERCEPTION • Discretion decisions are affected strongly by the personal perceptions of the officer. • Police responses to crime can be categorized as universalistic or particularistic. • In a universalistic response, the officer basesdecisions on characteristics of the situation itself. • Particularistic responses are based on characteristicsof the participants. • The ambiguous nature of order-maintenance situations, coupled with the goal of maintaining order, gives rise to exercise of discretion by police officers

11. DEPARTMENTAL INFLUENCES • In addition to the necessity to comply strictly with laws affecting his/her jurisdiction, influences, suchas application of local customs, traditions, and police procedures play a role in decision-making processes. • Variables differ from one department to the next & rely on the chief officer & others in command positions. • Officer peer pressure may also play a role in the application of discretion, and illustrates yet another dynamic of departmental influence. • Police officers tend to have a strong urge to be accepted by their coworkers.

12. ENVIRONMENTAL FACTORS • An officer's living and working environment may play an important role in influencing discretion. • If officers live in the community they serve, their thinking processes may greatly affect application of discretion by mutual sharing of community concerns & values. • Parks, schools & neighborhoods can take on a special significance & personal importance to a resident officer. • However, an officer’s ability to remain objective may be hampered and overall effectiveness & reputation of the police in that area may actually be impeded. • An officer's perception of community alternatives can also affect his or her discretionary powers.

13. EXTRALEGAL FACTORS • A issue with regard to police discretion is whether people receive either preferential treatment or become targets of police intervention. • Due to race, sex, or other extralegal factors. • Research has suggested a need to consider both perpetrators and victims of crimes when examining how police discretion is applied. • Not all police agencies or officers abuse their powers of discretion. • Abuse of power is usually seen on a fragmented basis and varies considerably.

14. USE OF FORCE • Police are granted the specific legal authority to use force under certain, limited conditions. • The limitations may be enforced through criminal prosecution, civil lawsuits, and disciplinary actions. • Penalties for abuse of authority can be severe, so officers must be clear on what they can & cannot do. • Balancing issues of a violent society with safety of police personnel creates many obstacles and concerns in developing policies and procedures. • Serious cases of abuse of police authority often stimulate intense public debate.

15. USE OF FORCE • Serious cases of abuse of police authority stimulate intense public debate, and raise important questions: • Are such events isolated occurrences, in particularpolice departments, or extreme examples of a more general problem? • Do the incidents reveal important disparities in theway the law enforcement officers treat members of certain racial, socioeconomic, or cultural groups? • What measures can be taken to constrain policeabuse, and which are likely to be most effective?

16. USE OF FORCE • The federal standard for police use of force was established by the Supreme Court in Graham v. Connor (1989). • The Court recognized that the police officer's duty to make arrests and conduct searches and investigatory stops carries with authority to reasonably use, or threaten the use of force. • The Graham decision allows officers to use force only for two reasons. • Defense & control; not for punishment.

17. USE OF FORCE • Three key factors can be used to evaluate the extent of the officer's use of force: • 1. The severity of the crime committed • 2. Whether the suspect posed an immediate threatto the safety of the officers or others • 3. Whether the suspect actively resisted arrest or attempted to evade arrest

18. USE OF FORCE • When police are compelled to use force, the Courts use the following standards to determine whether such force was reasonable: • First, the officer's conduct will be compared to that of a "reasonable officer" confronted by similar circumstances. • Second, when the judge and jury evaluate the officer's actions, they must do so from the "standing in your shoes" standard.

19. USE OF FORCE • One of the confusing aspects about the use of force is that there are no clear-cut answers regarding how it is applied. • Use of force by police officers stems from the premise that in a modern democratic society, citizens are discouraged by law from employingforce to solve personal disputes. • They are expected to rely on the justice systemto arbitrate and resolve conflicts.

20. DEFINING USE OF FORCE • Suggested definitions and descriptions of force… • "…the distribution of non-negotiable coercive remedies." • "The duty of police intervention in social disorder means making use of the capacity & authority to overpower resistance to an attempted solution…" • "Every conceivable police intervention projects the message that force may ...have to be used to achievea desired objective" • The authority to use force carries with it awesome responsibilities, and fear of criticism can cause officers to second-guess themselves and hesitate. • Which could be dangerous.

21. DEFINING USE OF FORCE • People have different ideas about what constitutes force and police brutality. • Officers, in particular, have specific ideas of what justifies the use of force. • As a rule, force is defined through the concepts of assault and battery. • Battery is usually defined as intentional, non-consensual bodily contact that a reasonable person would consider harmful. • Assault is intent to put someone in fear of immediate battery or to threaten someone while having the apparent ability to carry out that threat.

22. UNDERSTANDINGREASONABLENESS • Under Graham, active resistance to arrest includes any physical actions by the suspect that make the arrest physically more difficult to accomplish. • Pushes & shoves; Holding on to the steering wheelwhile being removed from a car. • An interesting finding of the Graham decision wasan explanation of the standards under which officers' conduct should be judged by the jury & trial judge. • Compared to actions of a "reasonable officer. • From within the "shoes" of the officer under review.

23. THE MISUSEOF FORCE • Few observers would be naive enough to believe that police are always justified in the use of force. • How, then, is "misuse" of force to be defined? • The Christopher Commission, established after the beating of motorist Rodney King advised that… • “…an officer may resort to force only where he orshe faces a credible threat and then may only usethe minimum amount necessary to control the subject." • Terms such as credible and necessary are quite subjective, rendering these definitions too vagueto be practical.

24. TYPES OF FORCE • A police officer must understand there are two kinds of force: Non-deadly force and deadly force. • Most force used by law enforcement is non-deadly force. • In most states, the use of non-deadly force is regulated by the concept of reasonable force. • Deadly force is force that an objective police officer realizes will place the subject in direct threat of serious injury or death.

25. LESS-LETHAL WEAPONS • In recent years police administrators and public policy planners have been searching for ways to reduce the incidence of police use of deadly force. • The goal is effective, non-deadly alternatives to conventional firearms. • The term less-lethal is can be misleading, as almost any use of force can result in fatal consequences. • More appropriate may be to note that less-lethal forceis not intended or likely to lead to death or serious injury. • As a rule, none of these are useful when officers are confronted with deadly force situations on the street.

26. LESS-LETHAL WEAPONS • The most common examples are: • Water cannons or 37 mm pistols that fire wood, rubber, bean bags, or polyurethane bullets. • Tear gas, concussion grenades, pepper spray, stun guns. • Researchers have found no significant impact on the number of deaths & race was not a factor with the implementation of less-than-lethal force alternatives. • To be effective, the technology must be issued, and available when officers encounter deadly situations. • It must work better (safer for officers & citizens when deployed).

27. Swift was a character in a series of 1930s science fiction books. Fig. 8.3(a) The Advanced Taser, manufactured by Taser International, shoots two fishhook-like barbs at a distance of up to 21 feet. Once in place, the barbs deliver a 50,000-volt charge to the subject. ELECTRONIC CONTROL DEVICES - ECDs • A popular "less-lethal" weapon is the electronic control device, referred to as a stun gun or Taser. • An acronym for the Thomas A. Swift Electric Rifle.

28. ELECTRONIC CONTROL DEVICES - ECDs • The Taser delivers an instantly incapacitating 50,000 volt shock to its target, designed to interfere with the body's neuromuscular system. • Under most circumstances, its force drops its target to the ground almost instantly. • The device can fire two barbs resembling fish hooks, attached to copper coils a distance of up to 21 feet. • The barbs deliver a high-voltage, low-amperage, electro-shock, of durations the officer can adjust or repeat. • It can operate as a projectile device or as a stun device by making direct contact with a suspect's skin.

29. ELECTRONIC CONTROL DEVICES - ECDs • The device is not without controversy, as available research and reports on these weapons is relatively scarce, and questioned have been raised regarding a number of important concerns. • At least 150 people in the U.S. have died after being shocked by these devices. • While touted as an effective alternative to use of deadly force by police, there is growing evidencethat in the majority of police applications, these weapons are not used as an alternative to deadly force or as a weapon of last resort.

30. ELECTRONIC CONTROL DEVICES - ECDs • There is also growing concern about police use of Tasers on vulnerable populations, as the devices have been used against: • Schoolchildren. • Unarmed mentally disturbed or intoxicated individuals. • Suspects fleeing minor crime scene. • People who argue or fail to comply immediately. • The serious concern is whether these devices have reduced the police need to use force. • Or merely permitted the police to use force on a greater number of citizens in a greater number of situations.

31. ELECTRONIC CONTROL DEVICES - ECDs • Departments such as the Las Vegas Metropolitan Police, have policies to prohibit or restrict Taser use: • 1. When a suspect has come in contact with flammable liquids or the suspect is in a flammable atmosphere. • 2. Where a fall may cause substantial injury or death. • 3. Punitively, for coercion, or an unjustified manner. • 4. When the prisoner is handcuffed. • 5. To escort or jab individuals. • 6. To awaken unconscious or intoxicated individuals. • 7. When the subject is visibly pregnant, unless the deadly force is the only other option.

32. POLICE ATTITIUDES AND THE USE OF FORCE • A 2000 study suggested that police officers have contradictory attitudes toward the abuse of authority. • Police officers are not in agreement about how acceptable it is to use more force than legally necessary. • Even to control someone who physically assaults them. • A vast majority of officers described serious, well-publicized incidents of police abuse as isolated and very rare occurrences. • Indicating their own departments take a tough stanceon police abuse.

33. POLICE ATTITIUDES AND THE USE OF FORCE • The code of silence remains a troubling issue, anda study revealed key points: • 1. Approximately one-quarter of police officers surveyed stated that whistle-blowing is not worth it. • 2. Two-thirds stated that officers who report misconduct are likely to receive a "cold shoulder" from fellow officers. • 3. Over half reported it is not unusual for officers to turn a "blind eye" to improper conduct by other officers.

34. Fig. 8.4 Use-of-force continuum. THE USE-OF-FORCECONTINUUM • A way police departments have attempted to control the level of force used by officers in the street is by adopting a use-of-force continuum

35. THE USE-OF-FORCECONTINUUM • The continuum is based on the premise that officers should use only the amount of force necessary to effect the arrest or subdue a suspect. • Officers are expected to use more force than a resisting suspect, but excessive force should not be used. • The officer is expected to use that force which minimizes likelihood of injury to the officer and the suspect.

36. THE USE-OF-FORCECONTINUUM • Many departments have incorporated the use-of-force continuum in training & SOPs, setting forth: • Command presence - Physical presence of the officer, typically a uniformed officer, is often sufficient to control situations. • Softhanded control techniques - Refers to situationsin which an officer physically grabs a subject to control them. • "OC" or pepper spray - A step up from soft-handed control techniques, somewhere between passive and assaultive stages of suspect resistance.

37. THE USE-OF-FORCECONTINUUM • Many departments have incorporated the use-of-force continuum in training & SOPs, setting forth: • Hardhanded control techniques - Generally used when an officer fights with the suspect. • Impact weapons - For the most part, the police baton, though some departments authorize use of a metal flashlight as an impact weapon. • Threat of deadly force - If unable to control the suspect with a baton or other physical means, the officer can threaten the use of deadly force by firing his/her firearm. • Deadly force - The most common application is when the officer discharges his/her firearm at the suspect.

38. THE USE-OF-FORCECONTINUUM • Most police departments have policies prohibiting warning shots & shooting of suspects for purposesof wounding them. • Officers are taught to shoot to stop, by targeting"center mass," defined as the largest availablearea on the suspect's body. • Most state statutes authorize police use of deadly force in instances where the officer believes thereis a threat to "great bodily harm" to the officer or another person.

39. THE USE-OF-FORCECONTINUUM • A properly drafted continuum also identifies levels of resistance on the part of citizens they encounter: • The cooperative subject - The subject who complies with appropriate nonverbal or verbal direction. • Resisters - Subjects who do not respond to social or verbal control, but whose actions do not rise to the level of an assailant: • The passive resister - Passive resistance can be measured by degree of muscular resistance of the arm to the touch of the officer & resistance against attempts to pull, twist, or roll. • The active resister - Resists in a defensive manner, attempting to avoid physical control by the officer & create space between the officer's reach and himself or herself.

40. THE USE-OF-FORCECONTINUUM • A properly drafted continuum also identifies levels of resistance on the part of citizens they encounter: • The assailant - Grouped into three categories according to the probable harm their actions may cause: • Aggression without a weapon - The subject closes distance with the officer, limiting an officer's available alternatives, taking control of the situation from the officer without immediately actually or potentially harming the officer. • Fighting without a weapon - When a suspect attacks the officer or someone else. Probable physical injuries include minor broken bones, sprains, scrapes, contusions, cuts, etc. • Fighting with a weapon - Suspect actions will probably result in death or serious physical injury to the officer or someone else.

41. DEADLY FORCE • In 1967 the President's Commission on Law Enforcement and the Administration of Justice noted that most police departments had no policy to guide them in the use of deadly force. • Most rules regarding the use of deadly force come from federal statutes and case law. • As a rule, concerned with police use of deadly force to arrest fleeing felons engaged in nonviolent felonies. • These cases are different from those pertaining to suspects committing violent felonies, or other behavior that represent a substantial risk of bodily harm or death.

42. THE FLEEING FELON RULE • The fleeing-felon rule was developed during a time when apprehension of felons was considered more dangerous than today. • Officers in those early days often worked alone and lacked sophisticated communications technology. • As more efficient means of apprehension were developed, arrests became easier. • Prior to 1985 police officers were legally authorized by most states to employ the use of deadly force in apprehending fleeing felons.

43. THE FLEEING FELON RULE • A watershed decision by the U.S. Supreme Court in Tennessee v. Garner (1985) involved the police shooting and subsequent killing of an unarmed boy as the youth fled from an unoccupied house. • The officer could see the suspect was a youth & unarmed, but argued that if the youngster was ableto leap a fence, he would be able to escape. • State statute in Tennessee at the time permitted officers to shoot fleeing felons to prevent escape. • Pursuant to Garner, the Court ruled that employment of deadly force by police must be "reasonable" in order to be lawful.

44. PERSONS KILLED BY POLICE • No uniform reporting system exists for determining the exact number of police-caused homicides in U.S. • The FBI estimates about 250 persons each year • NCHS reports suggest the number may range 265 - 400. • Research indicates that the incidence of police killings is on the decline, largely due to… • Increased scrutiny of police & a rise in civil litigation. • Increased training & implementation of policies & administrative controls.

45. PERSONS KILLED BY POLICE • Figures cited by official reports & surveys may not accurately reflect the actual number of police killings. • Some killings might be hidden from official records. • Medical examiners & coroners might under-reportkillings by police, either intentionally or accidentally. • The rate of police-caused homicides varies greatlyfrom one police agency to the next.

46. RACE AND DEADLY FORCE • Probably no other issue in use of police deadly force generates more concern than racial discrimination • Shootings of African-Americans were the impetusfor many urban race riots during the 1960s. • Since then, similar incidents have fostered mistrust and resentment between minorities and the police. • These incidents have prompted a substantial bodyof research focusing on such police shootings. • Such research indicates a disproportionate numberof police killings, approaching 80%, involve minorities.

47. RACE AND DEADLY FORCE • Use of force is a relatively rare occurrence in U.S. policing, but studies suggest that when it does occur, it may often escalate to the level of excessive force. • A May 2000 study revealed that most police officers disapprove the use of excessive force. • A substantial minority believed officers should be permitted to use more force than law currently allows. • And found it acceptable sometimes to use more force than permitted by the laws that governed them. • An overwhelming majority did not believe officers regularly engaged in the excessive use of force.

48. THE CODE OF SILENCE • Some of the strongest opinions expressed by officers center on the question of whether they should report misconduct by fellow officers. • Research shows a large gap between attitudes and behavior. • Even though police officers do not believe in protecting wrongdoers, they probably won't turn them in.

49. MECHANISMS FOR DEALING WITH PROBLEM OFFICERS • Many police departments employ “problem” officers, whose actions come to light when… • Civil lawsuits are filed. • There is a questionable death of a suspect. • There are multiple citizen complaints about the officer's behavior on the force. • Research in police use of force has identified that chronic deviants are a significant part of the use-of-force problems for many police departments. • Those officers who repeatedly use excessive force,are abusive, and disrespectful.

50. MECHANISMS FOR DEALING WITH PROBLEM OFFICERS • Police agencies should identify & target chronic deviants before their behavior gets out of hand. • A "early warning system" (EWS), to identify officers who may exhibit behavioral problems in using force and dealing with citizens can include: • 1. Complaints. • 2. Use of force. • 3. Reprimands. • 4. Discharge of firearms.