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Ethical Dilemmas and Decisions in Criminal Justice

Joycelyn M. Pollock

9th EDITION

Chapter 6

Police Discretion and Dilemmas

Chapter Objectives

Provide any evidence that exists that law enforcement officers perform their role in a discriminatory manner.

Present information concerning the prevalence of and factors associated with the use of force by police officers.

Enumerate predictors associated with the use of excessive force.

Present the ethical issues involved in proactive investigations.

Present the ethical issues involved in reactive investigations.

Discrimination

Occurs when a discretionary decision-maker treats a group or individual differently from others for no justifiable reason:

• Sexual orientation

• Race

• National origin

• Poor

• Other?

Forms of Discrimination

• Enforcing the law differentially

• Withholding the protection of the law

Greater disrespect

Greater use of force

Racial profiling

Greater use of pretext stops

manifested as:

Forms of Discrimination

Discrimination as Corruption

Racial discrimination in form of police discrimination against minorities

Discrimination that police may exercise in enforcement of law- (racial profiling)

Either as individuals or as result of department policy

Just like citizens, officers may have insensitivity towards cultural and language diversity

Alone does not amount to discrimination

May well affect police attitudes towards certain groups

A Racial Divide

Complaints correlated positively to the percentage of minorities in the population

Analysis? Discuss…

Some reports indicate lower-class African Americans and Hispanics have higher negative interactions with police.

Analysis? Discuss…

Residents (both black and white) are initially disrespectful to police 3x more than police are initially disrespectful to residents.

Analysis? Discuss...

Racial Profiling

Occurs when an officer uses racial characteristics during enforcement activities

Minorities are highly targeted based on the assumption that they are more likely to commit criminal acts.

Analysis? Discuss…

Racial Profiling

60%- White (5,812,591)

40%- Non-White (3,875,062)

478 total murders (W287/NW191)

186 total arson (W112/NW74)

9854 total aggravated assault (W5912/NW3942)

Racial Profiling

Total Population State Wide 9,687,653

60%- White (5,812,591)

40%- Non-White (3,875,062)

Does population dispersion matter?

Racial Profiling

“Walking While Black”

https://www.youtube.com/watch?v=xh_OvluMqxI&list=PLSooCq07Gn3hSshuz2r6hBKAZ_J3jZnZK

http://lawofficer.com/laws/walking-while-black/

“Driving While Black”

https://www.youtube.com/watch?v=AjXWjtkrFUk

Argument that police traffic stops are predicated on race of driver

Numerous Supreme Court cases have addressed this issue

Investigatory Stops okay as long as race is not the ONLY factor- Whren v United States

Totality of the Circumstances to establish reasonable suspicion (not PC)- United States v Arvizu

Legitimized the use of race as a criterion in profiles- US v Martinez-Fuerte

Racial Profiling

“Stop and Frisk”

Terry v. Ohio (1968): if and when police observe unusual conduct by a person whom they believe to be dangerous and engage in criminal activity, an officer may “for the protection of himself and others in the area” conduct a limited search “to discover weapons that might be used against the officer”.

Pat-down Searches okay as long as they are used to guard against perceived risk-Knowles v Iowa

Reasonable suspicion (articulable)

NYPDs Stop and Frisk

https://www.youtube.com/watch?v=8jqXeW5C324

FOX News debate

https://www.youtube.com/watch?v=YStCpQk0-mg

Stop-and-frisk policing in Pima County?

http://www.kvoa.com/story/33264613/stop-and-frisk-policing-in-pima-county

Racial Profiling

Police Use of Force

Dominant and contentious issue (RIGHT!)

Police are only authority empowered to use physical force (WRONG!)

Is to be used only as last resort (WRONG!)

General acceptance that police should be allowed to use force when necessary (WRONG!)

No consensus of how much force is unnecessary or excessive (WRONG!)

Incidents are rare occurrences (RIGHT!)

Police Use of Force

1999-44 million persons reported face-to-face contact with officers

1% reported use of force OR threats of use of force

2002—26000 complaints (police agencies over 100 members)

2080 discipline (8%)

Police Use of Force

Does the Truth Matter?

https://www.youtube.com/watch?v=UQCQFH5wOJo

Police Brutality

https://www.youtube.com/watch?v=nRd5oucG114

Breaking down The Washington Post’s data on suspects killed by LE

https://youtu.be/k9db5uj4WkY

https://www.policeone.com/Officer-Safety/articles/206224006-Breaking-down-The-Washington-Posts-data-on-suspects-killed-by-LE/

http://lawofficer.com/special-topics/make-up-your-mind/

Police Shootings of Blacks

Black men are disproportionately the victims of police shootings.

Blacks are disproportionately involved in violent crime.

Blacks are disproportionately more likely to assault police officers.

Police officers may perceive blacks as a greater threat.

Factors in the Use of Force

Excessive force occurs in less than 1% of interactions with public

Use of force occurs in 1.3 to 2.5% of all encounters

Friedrich’s 1980 study:

Characteristics of the target

Situational characteristics

Number of bystanders

Making an arrest vs. Making a contact

Characteristics of the officers

Age of Officer

Years of Experience

Level of education

Factors in the Use of Force

FBI provides guidance with four categories of threat to which it may be appropriate

A suspect is in possession of weapon or is attempting to gain access to a weapon

A suspect is armed and running to gain the advantage of cover

A suspect who is capable of inflicting death or serious injury, with or without a weapon demonstrates an intention to do so

A suspect is trying to escape a violent confrontation in which he or she has inflicted or attempted to inflict death or serious injury

Factors in the Use of Force

Studies have found suspects brandishing weapons more likely to be subjected to force

Others report mixed results

Dynamic nature of interactions well accepted

Citizen accounts stress over-zealous actions by police

Public ignorance extends to assuming a non-menacing suspect where weapons are not similar to police

Another issue of confusion for public is number of shots fired by police when using deadly force

Factors in Use of Force

Implicit Bias

Implicit associations about race become transplanted into bias because of negative stereotypes

Can shape reaction to an event

Theoretical approaches to causes of police use of excessive force

Psychological theories

Sociological theories

Organizational theories

Use of Force Continuum

Show ascending scale of action that can apply:

Presence

Persuasive verbalization

Command verbalization

Firm grips

Pain compliance

Impact techniques

Deadly force

Use of Force Continuum

Presence

The mere presence of a law enforcement officer works to deter crime or diffuse a situation.

Officers' attitudes are professional and nonthreatening.

Use of Force Continuum

Persuasive Verbalization

Officers issue calm, nonthreatening requests, such as “Can I see your identification and registration."

Officers modulate their volume and avoid commands in an attempt to gain compliance.

ASK

Use of Force Continuum

Command Verbalization

Officers issue calm, nonthreatening commands, such as "Let me see your identification and registration."

Officers may increase their volume and shorten commands in an attempt to gain compliance. Short commands might include "Stop," or "Don't move.“

TELL

Use of Force Continuum

Firm Grips

Officers use bodily force to gain control of a situation.

Soft technique. Officers use grabs, holds and joint locks to restrain an individual.

MAKE

https://youtu.be/l_jA5GUumPE

https://youtu.be/5bDNmrFraBA

Use of Force Continuum

Pain Compliance

Officers use less-lethal technologies to gain control of a situation.

Blunt impact. Officers may use a baton or projectile to immobilize a combative person.

Chemical. Officers may use chemical sprays or projectiles embedded with chemicals to restrain an individual (e.g., pepper spray).

Conducted Energy Devices (CEDs). Officers may use CEDs to immobilize an individual. CEDs discharge a high-voltage, low-amperage jolt of electricity at a distance.

https://youtu.be/ORYt266fTxs

Use of Tasers (CEDs)

The TASER is one type of CED (conducted energy device)

Proponents argue that Tasers:

Result in fewer injuries to officers and combatants

Reduce the need for lethal force

Are safe in the vast majority of cases

A police officer could be held liable when a CED is used on a person who poses no immediate threat.

Departmental policies determines acceptable Taser use.

Use of Tasers (CEDs)

Many agencies place on same level of force continuum as pepper spray

Bryan v. McPherson (2009)

Ninth Circuit Court held that they are an “intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force”

Use of Tasers

Officers should assess level of risk before employing any device

Agencies that authorize use when officer faced with only passive resistance may be criticized

Analysis of use and improper use of tasers have been examined by researchers

Use of Tasers

Why didn’t you just tase him?

https://youtu.be/iAepwwM9knw

Drunk Driver Use of Taser

https://www.youtube.com/watch?v=5zQ0_d-BFM4

Taser Use

https://www.youtube.com/watch?v=XJW2EPMP5fM

Ineffective Taser

https://www.youtube.com/watch?v=avAH49NY_iY (2:10)

https://www.youtube.com/watch?v=fNXdzPTkviM

https://www.youtube.com/watch?v=wyBtWxerRnk (1:00)

https://www.youtube.com/watch?v=hpbbANEYQXE

Use of Pepper Spray

Pepper spray is intended to debilitate the target, to minimize both the opportunity and means of resisting arrest with the lowest risk of serious injuries.

OC spray contains capsaicinoids, the ingredient within the pepper plant that causes a burning sensation and inflammation of the mucus membranes.

Pepper spray disperses

Officers should be aware of the possibility of contaminating bystanders

https://youtu.be/I35jTgeljd0

Use of Force Continuum

Impact Techniques

Officers use bodily force to gain control of a situation.

Hard technique. Officers use punches and kicks to restrain an individual.

https://youtu.be/KAncIBpQCZE

Use of Force Continuum

Deadly Force

Officers use lethal weapons to gain control of a situation.

Should only be used if a suspect poses a serious threat to the officer or another individual.

Officers use deadly weapons such as firearms to stop an individual's actions.

Use of Force Continuum

Think Like a Cop: When is it okay to use deadly force?

https://youtu.be/RrxMFA6f79E

Use of Force Continuum

Training in use of force scenarios

https://youtu.be/U5-aCrI05uU

https://youtu.be/0FWxD_m0vyE

Activist critical of police undergoes use of force scenarios

https://www.youtube.com/watch?v=yfi3Ndh3n-g

https://www.policeone.com/community-policing/articles/256539006-Video-NFL-player-who-protested-police-undergoes-UOF-simulation-training/

Use of Force Continuum

Policing Matters Podcast: Should simply drawing your sidearm be considered a use of force?

https://www.policeone.com/legal/articles/385598006-Policing-Matters-Podcast-Should-simply-drawing-your-sidearm-be-considered-a-use-of-force/

Union: LAPD commission wants cops to run from shootings

https://www.policeone.com/officer-shootings/articles/224782006-Union-LAPD-commission-wants-cops-to-run-from-shootings/

VIDEO: Resists Arrest, Cop Runs Off

https://bluelivesmatter.blue/san-joaquin-sheriffs-office-video-run-away/

https://bluelivesmatter.blue/video-monroe-city-police-arrest/

Fla. chief: Officers should use as little force as possible

https://www.policeone.com/use-of-force/articles/175715006-Fla-chief-Officers-should-use-as-little-force-as-possible//

Responses to Uses of Force

In most use of forces incidents, officers are not indicted or charged.

Officers may not be criminally charged, but might still face discipline for violating policy.

The perception that police shootings are increasing recently is not necessarily true.

Responses to Use of Force

Police Perspectives on Use of Force

Surveys found police more likely to use excessive force if they believe:

“real” police work is action-oriented

When patrolling there are too many restrictions that constrain their battle with crime

Officers believe only fellow officers should be allowed to pass judgment on use of force situations

Responses to Use of Force

Police Perspectives on Use of Force

Research by Paoline and Terrill (2011):

43% of officers reported following rules about force not always congruent with getting job done

Officers generally agreed verbal control was starting point of continuum

Majority of officers believed no necessity to use high levels of force

Use of force in given situation nearly always ambiguous

Boundary between excess and adequate becomes difficult to establish

Responses to Use of Force

Kleinig (1996: 99–102)

Factors relevant to assessing use of force in ethical terms:

Intentions

Seemliness

Proportionality

Minimization

Practicability

Studying Use of Force

Study Shows that Social Media can Produce Use of Force Experts in Policing

https://thesaltysarge.com/use-of-force-experts/

RESEARCH INDICATES DE-ESCALATION POLICIES PLACE OFFICERS AT MORE RISK

http://lawofficer.com/news/research-indicates-de-escalation-policies-place-officers-at-more-risk/

Quiz: Are these guns real or fake?

https://www.policeone.com/the-tacticalist/articles/222712006-Quiz-Are-these-guns-real-or-fake/

BILL IN CONGRESS WOULD CREATE USE OF FORCE STANDARD FOR POLICE

http://lawofficer.com/training/bill-in-congress-would-create-use-of-force-standard-for-police/

APPLYING AND UNDERSTANDING GRAHAM AS A PATROL OFFICER

http://lawofficer.com/laws/applying-and-understanding-graham-as-a-patrol-officer/

Use of Force Scenarios

Pursuit on Live PD Ends in Intense Fight With Man Holding Baby While Fighting Police

https://bluelivesmatter.blue/video-live-pd-bryan-martin-baby/

Drunk Woman In Road Challenges Cop To A Fight; Learns That Batons Aren't Just For Show

https://bluelivesmatter.blue/video-long-beach-police-fight-woman/

Chicago officer indicted on civil rights charges

https://www.policeone.com/police-products/body-cameras/articles/222774006-Chicago-officer-indicted-on-civil-rights-charges/

Body cam shows knife-wielding man on I-75

http://www.tucsonnewsnow.com/story/31645791/watch-live-prosecutors-holds-press-conference-on-i-75-police-involved-shooting

Outrage Over 'Brutality' As Cop Beats On Suspect... Who's On Top Of A Cop He Was Strangling

https://bluelivesmatter.blue/video-alfred-burns-beat-nypd-cop/

Use of Force Scenarios

Graphic Video Shows Suspect Pull Object Off Of Officer’s Belt, Gets Shot Down

https://bluelivesmatter.blue/huntington-beach-shooting-video/

Cop kills suspected shoplifter: Outrage as scissors-having Navajo woman shot by officer - TomoNews

https://youtu.be/no2jdY_kgFg

Officer Involved Shooting Shows the Speed of Decisions in Use of Force | Active Self Protection

https://youtu.be/RhC_ATfWOUE

Officer Reprimanded after Controversial Use of Force Incident

https://youtu.be/IEkYgUHmtWM

Santa Ana Police question if use of force was excessive

https://youtu.be/UjQo6O7eWdY

Use of Force Scenarios

Raw footage, man wielding knife

https://youtu.be/4buDqSE3Vx4

Jujitsu to control larger subject

https://www.youtube.com/watch?v=HlpX1DwEB1k

Excessive Force Dash Cam

https://www.youtube.com/watch?v=ZQhw6z8Y4GI

Traffic Stop Gone Bad or Police Brutality

https://www.youtube.com/watch?v=1xQODTUJ9fw

Good Shoot or Bad Shoot

https://www.youtube.com/watch?v=grxI27zHSc4

https://www.youtube.com/watch?v=6jsm0WSuYoM

Police Use of Force

Police Brutality and Use of Force Documentary

https://www.youtube.com/watch?v=tcyvQVnqik4

Black Lives Matter

Do police have an ethical responsibility to handle the black lives matter movement in a particular way?

JUDGE: BLACK LIVES MATTER CAN’T BE SUED

http://lawofficer.com/news/judge-black-lives-matter-cant-sued/

WHAT RESPONSIBILITY DO BLACK AMERICANS HAVE TO PREVENT POLICE SHOOTINGS?

http://lawofficer.com/special-topics/what-responsibility-do-black-americans-have-to-prevent-police-shootings/

READ THIS LETTER TO A STUDENT ABOUT BLACK LIVES MATTER

http://lawofficer.com/special-topics/read-this-letter-to-a-student-about-black-lives-matter/

Discretion and Criminal Investigations

Proactive Investigations

Attempts to document crime as it occurs

Requires a more active police role

Often involves deception by police

Requires “targeting” based on reasonable suspicion

Changes police role from discovering who has committed a crime to discovering who might commit a crime.

The Use of Informants (slide 1 of 2)

Individuals who are not police officers but assist police by providing information about criminal activity.

They are:

Motivated by monetary profit, revenge, dementia, kicks, a need for attention, repentance (guilt), and coercion.

Able to operate under fewer restrictions than police.

The Use of Informants (slide 2 of 2)

Becoming too intimate with informants

Overestimating the veracity of information provided

Potential for being duped by informant

Using informants to entrap people (“creating” crimes)

Engaging in unethical or illegal behaviors on behalf of the informant

Using coercion and intimidation to force informant’s cooperation

Protecting informants who continue to commit crime

The Use of Undercover Officers

• Undercover officers deceive suspects and others

• Difficult for officer and his or her family

Continuum of Privacy Concerns

Short Term

Non-intimate relations

(Buy/bust)

Long Term

Intimate relations

(“Donnie Brasco”)

Reactive Investigations

Attempts to reconstruct a crime after it occurs.

Consists of gathering evidence to identify and prosecute the offender.

Investigator(s) may develop early prejudice about likely perpetrator, which might cause them to:

be tempted to engage in noble-cause corruption to obtain a conviction;

ignore or conceal evidence that contradicts their beliefs;

overstate existing evidence; and/or

manufacture or alter evidence.

Interrogation

Cannot involve physical force

Techniques of deception:

Calling an interrogation an “interview”

Negating the effectiveness of the Miranda warnings

Misrepresenting the seriousness of the offense

Manipulative appeals to suspect’s conscience

Leniency promises beyond interrogator’s power

Interrogator misrepresenting his/her identity

Using fabricated evidence