Three principles that establish the rule of law:
1) Absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power
2) Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts
3) Law of the U.S. Constitution as a consequence of the rights of the individuals defined and enforced by the courts
Our Dynamic Legal System:
-Our nation's laws are dynamic (constantly changing)
-Due in part to the many sources of laws.
-Police need to constantly hone their knowledge of the legal aspects of their occupation
Fourth Amendment
-Intended to limit overzealous behavior by the police
-Requires warrants (arrest, search and seizure) be issued by a neutral magistrate rather than a police officer
-Balances rules for an individual's right to privacy as well as society's right to search
Probable Cause
-The standard for legal arrest
-For an officer to make an arrest, he or she must have more than a mere hunch yet less than actually knowledge
-The court looks at the type and amount of probable cause an officer had at the time of the arrest and decides if their is enough to charge the suspect.
Exclusionary Rule
Requires that all evidence obtained in violation of the Fourth Amendment be excluded from the government's use in a trial
Weeks v. U.S. (1914)
-First known use of the exclusionary rule
-"Silver platter doctrine": Until 1960 any evidence illegally seized by state or local police officers could be turned over to and used by federal officers in federal courts
Public Safety Exception
-Modification to the exclusionary rule
-If public safety outweighs a literal adherence to the rules
Inevitability of Discovery Exception
-When the court considers that the state could introduce evidence that leads to a conviction even without the suspect's help
-"Christian Burial Speech": officers appealed to a suspects senses by telling him that a nice christian burial would be proper in order for him to tell them where he hid the body
Good Faith Exception
Evidence obtained by the police acting in good faith on a reasonable reliance on a search warrant issued by a neutral magistrate could be used at trial even if the warrant was found to be lacking probable cause.
Unrelated Illegal Conduct
Evidence should not be excluded simply because of unrelated illegal conduct by the police
Views on the Exclusionary Rule:
-Crime control model: No reason why evidence should not be used against suspect at trial, even if obtained illegally; trend toward this model today.
-Due process model: The only way to deal with illegally obtained evidence is to suppress it before trial; control illegal collection of evidence by taking the profit out of it.
Writ of Habeas Corpus
-Primary guarantee of personal freedom in democracy
-Requires incarcerated person to be brought before a judge for investigation into the restraint of that person's liberty.
-Means of remedying wrongful arrest or other detention
-Legal provisions of arrest warrant are important because they prevent possibly harmful police actions.
Arrests with a Warrant
-Officers must obtain warrants when making felony arrests if there are no exigent circumstances
-To obtain a warrant from a neutral magistrate, an officer must sign an affidavit that he/she has certain knowledge that a particular person committed an offense and have probable cause
Warrantless Arrests
-Requires exigent circumstances and probable cause
-1979 Supreme Court decisions: police must have probable cause to take a person into custody and to the police station for interrogation
When is a person seized under the 4th amendment?
-There is no set point that determines the point of seizure in a situation, the standard is whether a suspect believes his or her
liberties were restrained.
-Best way to prevent is to obtain a warrant
How is a search warrant issued by a neutral magistrate?
The magistrate receives information from a sworn affiant, determines if probable cause exists to believe that evidence is possessed by a certain person at a specific location, and issues a warrant
5 Types of Searches May Be Conducted Without a Warrant:
1) Searches incidental to lawful arrest
2) Searches during field interrogation (stop-and-frisk)
3) Searches of automobiles that are carried out under special conditions
4) Seizures of evidence in "plain view"
5) Searches when consent is given
Searches Incidental to Lawful Arrest
-U.S. v. Robinson (1973): arrested for driving without a warrant and upon search of his person heroin was found
-Chimel v. California (1969): arrested Chimel in one room of his house and proceeded to search the whole house
-"Protective sweep" of area in which suspect has been arrested has been allowed
Searches During Field Interrogation
Terry v. Ohio (1968): allowed pat down when interrogating for concern of officer's safety and to detect past or future crimes in stopping and questioning people
Searches of Automobiles Under Special Conditions
-Allows officer to search if he/she has probable cause to believe car contains criminal evidence
-After individual has been arrested and is away from their vehicle, police may not search that vehicle without a warrant.
Seizures of Evidence in "Plain View"
-Police may seize items that are in plain view if they are on the premises lawfully
Searches When Consent is Given
-Individual may voluntarily waive Fourth Amendment rights
-Police cannot deceive people into believing they have a search warrant
Lineups
-Police lineups are considered a critical stage of criminal proceedings
-Accused has no right to any formal advice from counsel before being formally charged
Fifth Amendment
-Protects against self incrimination and applies to anyone testifying before a judicial body
-No criminal defendant shall be compelled to take the witness stand and give evidence against himself/herself
Miranda Rights: Confessions
-Confessions by suspects who have not been notified of their constitutional rights cannot be admitted into evidence
-Miranda warning must be given before interrogation for any offense
Entrapment
-Police may not induce or coerce a person to commit a crime that he/she would otherwise not have attempted
Sixth Amendment
The right of the accused to have the assistance of counsel before and at trial is the greatest right we enjoy in democracy
What constitutes an interrogation?
When an officer asks direct questions but also when the police make remarks designed to appeal to defendant's sympathy, religious interest, etc.
Parens Patriae
-"The state is the ultimate parent"
-If parents cannot provide for their children then it becomes the job of the state (in loco parentis)
The juvenile justice system seeks to protect children by:
1) Rehabilitation, not punishment
2) Procedure is amiable, not adversarial
3) Proceedings are private, heard before a judge only unless child is tried as an adult
What does accountability mean for the police?
-Treat all persons with dignity and respect
-Do not use more force than necessary
-Do not demonstrate bias
-Ensure all officers are well-trained
-Maintain adequate policies, procedures, rules, etc.
Absolute Ethics:
-A concept in which an issue has only two sides (good/bad; black/white)
-Focuses on unethical behavior such as bribery, extortion, excessive force, or perjury
Relative Ethics:
What one person considers ethical may be seen as unethical by another (shades of gray)
Double Effect:
-If one commits an act to achieve a good end, even though an inevitable but unintended effect is negative, then the act may be justified
-Notable cause corruption/Dirty Harry problem
-Double effect entwined with crime control and due process models of law enforcement
Double effect in regard to crime control model:
Repression of criminal conduct is the most important police function
Notable Cause Corruption:
Wrongdoing that stems from crime control orientation; the end of crime control justifies the means, even if the means are unethical or illegal
COPPS officers confront more ethical dilemmas because:
They have greater discretion and more pubic interaction
Slippery Slope Perspective:
Holds that the acceptance of minor gratuities begins a process wherein the recipient's integrity is gradually subverted
Law Enforcement Code of Ethics
Sworn to be upheld by police, the code not only contributes to the professional image of law enforcement, but it also brings about self-respect among officers and afford feelings of mutual respect among police personnel
Use of Force
Defined by police as "distribution of non-negotiably coercive remedies", allegations of police brutality and corruption occurred throughout U.S. history. Although no longer openly tolerated, the problem still exists and requires attention of police officials.
Three legitimate and responsive forms of force recognized:
1) The right of self-defense
2) The power to control those for whom one is responsible
3) The relatively unrestricted authority of police to use force as necessary
Basic force continuum advises officers to move up the "ladder" of increasing level/types of force as a situation becomes more physical/violent. These levels are:
1) Officer presence/verbal direction
2) Touch control
3) Empty-hand tactics and chemical agents
4) Hand-held impact weapons
5) Lethal force
Problems with basic force continuum:
-Too simple
-Officers still confused about what step of the "ladder" a situation calls for
-Does not properly represent dynamic encounter between officer and resistant suspect
-Does not consider the many tools (baton, pepper spray, etc.) available to officers today
The dynamic resistance response model (DRRM) seeks to:
more accurately reflect the intent of the law and the changing expectations of society
DRRM divides suspects into four broad categories in which the suspect's level of resistance determines officer response, these are:
-No resistance (compliance)
-Aggressive resistance
-Passive resistance
-Dynamic resistance
No Resistance (Compliance)
Emphasized at every encounter; mere presence and verbal commands are sufficient to gain compliance
Aggressive Resistance
Suspect is taking offensive action by attempting to push, throw, strike, tackle, or physically harm the officer; officers may use pepper spray, stun gun, baton, and personal weapons to gain compliance
Passive Resistance
Suspect fails to follow commands or attempts to move away from the officer or escape; appropriate techniques to gain compliance may include a firm grip, control holds, or the application of pressure points
Dynamic Resistance
If a suspect can seriously injure or kill the officer or another person, the officer is justified in using deadly force
Contagious Shootings
Gunfire that spreads among officers who believe that they or their colleagues are facing a threat
Tennessee v. Garner (1985)
The Supreme Court curtailed the use of deadly force by ruling that the use of deadly force to prevent escape of all felony suspects was constitutionally unreasonable
Three types of brutality:
1) Physical
2) Verbal
3) Symbolic- for many lower class and minority groups the police symbolize the Establishment's law which serves to keep them in their place
Bias-Based Policing
-Or "driving while black or brown", is the unequal treatment on the basis of race, ethnicity, religion, gender, sexual orientation, or socioeconomic status by the police
-Drivers from all races are equally likely to be pulled over by police, but blacks and hispanics are more likely searched and arrested; police are also more likely to use force
Some other police field tactics and practices that cause tension between police and minorities include:
-Delay in responding to calls for service
-Verbal abuse, epithets, and other forms of disrespect
-Excessive questioning, frisking of minority citizens
-Discriminatory patterns of arrest, traffic citations
-Excessive use of physical force
Domestic Violence Offender Gun Ban (1996)
-Lautenberg Amendment
-Bars anyone from carrying firearms if they have a conviction for domestic violence
-Some argue that the law is too broad and several lawsuits have challenged the constitutionality of the law
Knapp Commission (1973)
-Divided corrupt cops into two categories, the "meat eaters" and the "grass eaters"
-Meat eaters constitute a small percentage of police officers; constantly seeking out situations to exploit for financial gain
-Grass eaters accept gratuities from those with whom they have a mutual agreement
-The key factor influencing how much graft police officers receive is the character of the individual officer
Police corruption is defined as:
The misuse of authority by police officer in a manner designed to produce personal gain for the officer or others; corruption is not limited to monetary gain
Factors that contribute to police corruption:
-Rapid hiring of personnel
-Civil services and union protection
-Temptations from money and sex
Theories of Corruption:
-Rotten apple theory: corruption results from a few bad apples who had character defects prior to employment
-Environmental theory: corruption result of widespread politically corrupt environment
External Corruption
Activities, such as gratuities and payoffs, that occur from and through police contacts with the public
Internal Corruption
Involves relationships among officers within the workings of the department and may include payments to join the force, to get better shifts/assignments, etc.
The list of blue-coat crimes describes different forms of deviant practices used by police and citizens with increasing social and legal ramifications, this list is:
-Mooching: receiving free meals, coffee, groceries, etc.
-Chiseling: demanding discounts on goods and services
-Favoritism: using window stickers, courtesy cards, etc. to gain immunity from traffic arrest
-Prejudice: behaving less than impartial to certain groups or people
-Bribery: receiving payments for past or future assistance in avoiding prosecution
-Shakedown: stealing items for personal use and attributing the loss to criminal activity
-Perjury: lying to protect a fellow officer from prosecution
-Premeditated theft
The exchange of a gift is influenced by the roles of both the giver and receiver. The giver has three possible roles, these are:
-Presenter: offers a gift voluntarily without any expectation of a return from the receiver
-Contributor: furnishes something toward and expects something in return
-Capitulator: involuntarily responds to the demands of the receiver
In an exchange the receiver can take 3 possible positions, these are?
-Acceptor: receives the gift humbly without any residual feelings of reciprocity
-Expector: looks forward to the gift and will be annoyed by the absence of it
-Conqueror: assumes total control and influence over the giver
Type I Drug Corruption
The officer seeks to use his position for personal gain; could include giving info about police operations to or accepting bribes from drug dealers, tampering with or stealing evidence, etc.
Type II Drug Corruption
Not universally perceived to be corrupt because the officer has legitimate goals; includes giving false statements to obtain warrants, planting evidence, etc.
Hobbs Act (1970)
-Expanded federal powers for investigating and prosecuting police corruption
-Two key elements that allow the investigation of police corruption are extortion and commerce
Possible solutions to police corruption:
-Honest and effective police administration
-Train recruits on the need for a corruption-free department
-Creation and maintenance of an IA unit
-Prosecution of law-breaking officers
-Mechanism to reward honest officers
-Formal written guidelines on departmental policies
-Use of computers in investigations
The federal courts have placed some limitations on officers' constitutional rights as to hold officers more accountable by virtue of the higher standard required by their occupation, there are limitations on:
-Free speech
-Searches and seizures
-Self-incrimination
-Religious practice
-Sexual misconduct
-Residency requirements
-Moonlighting
-Misuse of firearms
-Alcohol abuse
-Drug abuse
Limitations on Free Speech:
-The state may regulate the speech of its employees that differ significantly from those it possesses
-Personal experience requirements are also upheld
Limitations on Searches and Seizures:
-Officers can be compelled to cooperate when ordinary citizens would not
-Officer may also be forced to appear in a lineup
Limitations on Self-Incrimination:
Garrity v. New Jersey- coerced confessions may not be used against officer at criminal trial
Limitations on Religious Practices:
Officers agree to work hours and conditions even if they interfere with their ability to attend religious services or observe religious holidays
Limitations on Sexual Misconduct:
-Sexually motivated nonsexual contacts: officers initiate contact with females to obtain info for possible later contact
-Voyeuristic contacts: officers seek to spy on unsuspecting nude women
-Contacts with crime victims: variety of behavior, including sexual harassment
-Sexual shakedown: officers demand sexual services from prostitutes or others citizens
-Citizen-initiated sexual contacts
-Sex crimes by officers: officers may assault jail inmates and citizens
Limitations on Residency:
Officers may be required to live in a geographic area within the limits of a departments jurisdiction
Limitations on Moonlighting:
Agency/department may have limitations on the amount and kind of outside work officers can perform
Limitations on the Use of Firearms
-Officers are advised to make no distinction between adults and juveniles when using deadly force
-Shooting at/from moving vehicles is severely limited due to danger of collateral damage
-Warning shots are generally prohibited
-Officers may kill animals or in self defense or to relieve its suffering
-Back up weapons are generally permitted
-Many departments require officers to only use department-approved weapons on and off duty
-Courts are becoming increasingly harsh on officers who misuse their firearms
Limitations on Alcohol and Drug Abuse
-Policies typically specify that no alcoholic beverages may be consumed within a specific period prior to reporting for duty
There are minimum due process requirements for discharging public employees to protect the employee's reputation and future chances for employment/promotion:
-They must be afforded a public hearing
-They must be present during the presentation of evidence against them and have an opportunity to cross-examine their superiors
-They must have an opportunity to present their own witnesses/evidence
-They may choose to be represented by counsel
-They must have an impartial referee or hearing officer presiding
-There must be an eventual decision for or against them based on the the weight of the evidence introduced during the hearing
Internal complaints are (blank) and may involve (blank):
-Made from within the organization
-Supervisors who observe officer misconduct, officers complaints about supervisors, civilian complaints on officers
External complaints originate (blank) and usually involve (blank):
-Outside the organization
-The public
The majority of complaints fall under the categories of:
Verbal abuse, discourtesy, harassment, improper attitude, ethnic slurs
Complaint Process:
-Complaint is referred to a senior officer to determine the nature of the complaint and identify the employee
-Matter is then referred to the employee's supervisor to conduct an initial investigation
-Supervisor completes the investigation, recommends any discipline, sends matter to IA unit and agency head to finalize disciplinary process
The supervisor or IAU officer must make a determination of the culpability of the accused employee and submit that determination to the administrator. The commonly used categories of dispositions are:
-Unfounded: the alleged act did not occur
-Exonerated: the act occurred but was lawful, proper, justified, or in accordance with departmental policies, procedures, rules, and regulations
-Not sustained: insufficient evidence to prove or disprove the allegations
-Misconduct not based on the complaint: sustainable misconduct was determined but not as part of the original complaint
-Closed: investigation is halted due to failure to cooperate by the complainant or the action does not fall within the administrative jurisdiction of the agency
-Sustained: the act did occur and was in violation of departmental rules and procedures
When an investigation against an employee is sustained, the level of discipline and type of sanction must be decided. What are the 7 types of sanctions in order of severity?
1) Counseling
2) Documented oral counseling
3) Letters of reprimand
4) Suspension
5) Demotion
6) Termination
7) Transfer
Counseling
-A conversation between a supervisor and employee about the employee's performance or conduct
-Employee has committed a minor infraction or offense which warrants oral counsel
-No documentation or report is place in the employee's file
Documented Oral Counseling
-Ususally the first step in a progressive disciplinary process
-Intended to address relatively minor infractions
-Employee has had no previous reprimands or more severe disciplinary action of the same or similar nature
Letters of Reprimand
-Formal written notices regarding significant misconduct, more serious performance violations, or repeated offenses.
-Second step in the disciplinary process
-Supplies employee with a written record of the violation of behavior as well as identifies the action necessary to prevent further disciplinary action
Suspension
-Severe disciplinary action in which an employee is relieved of duty without pay
-Administered when an employee commits a serious violation or has been issued letters of reprimand and no change in behavior/performance has occurred
Demotion
An employee is placed in a position of lower responsibility and pay when the responsibilities of the higher position prove to be too much or when the employee commits a serious act which warrants they be removed from the position
Termination
-Most severe action that can be taken
-Imposed when previous serious discipline has failed or officer commits an offense so serious that continued employment would be inappropriate
Factors that contribute to the high cost of civil suits against police are:
-The cost of paying for judgements and settlements
-The cost of defending the department in court
-The cost of liability insurance to protect against civil litigation
Benefits of lawsuits against the police:
-Keep the police accountable
-Give meaning to citizens' rights
-Foster better police training
-Force agencies to correct deficiencies and review policies, practices, and customs
A frivolous lawsuit is one that:
Lacks arguable basis in law or fact; officer's definition is different from the legal definition
Stare Decisis
-"Let the decision stand"
-Judicial decision in which the judge relies on the precedent when there is no solution in the existing body of law
Tort
-An injury inflicted on one person by another
-A tort liability case is one in which a lawsuit is filed against the department or an individual officer for some injury sustained
Three categories of torts:
1) Negligence: officer's conduct creates a danger to others
-Simple negligence: a reasonable act performed by a reasonable officer without due care in the scope of employment
-Gross negligence: an unreasonable act
-Willful/criminal negligence: intentional
2) Intentional: officer engages in voluntary act that had a substantial likelihood of resulting in injury to another
3) Constitutional: involves officers' duty to recognize and uphold constitutional rights
The most common torts against police include:
-False arrest: arrest without probable cause
-False imprisonment: intentional illegal detention
-Criminal behavior
-Police misconduct
Civil and criminal courts have different standards of proof. In criminal court proof must be proven:
Beyond a reasonable doubt
In civil court proof is based upon:
The preponderance of the evidence; lower standard than in criminal court, so it's easier to satisfy
Bivens Tort
-1971 case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics
-Court ruled that civil suits could be filed against the federal government to recover for violations of constitutional rights by federal officers
Respondeat Superior Doctrine
-"Let the master answer"
-Also termed as vicarious liability; means that lawsuits can be filed against an employer for the wrongful acts of the employee
-Courts are still reluctant to extend this to the police
Sovereign Immunity Doctrine
-11th Amendment; bars suits against states, state agencies, and instrumentalities in federal courts
-Municipal governments do not have blanket immunity, only immunity granted to them by the state
Section 1983 Litigation
-Originally enacted as Ku Klux Klan Act of 1871 in an attempt to curb the KKK's lawlessness by allowing the federal courts to hold civil cases when an individual's rights have been infringed upon
-Did not originally include police misconduct legislation
Reasons for the increase in Section 1983 lawsuits between 1967 and 1976 include:
-Lawyers believe clients get more competent judges and juries in federal courts
-Federal prosecutors may be more aggressive in arguing to jurors from multi-county areas
-Federal rules of pleading and evidence are uniform, as opposed to varying from state to state
-Federal procedures of discovery are more liberal
-Easy access to published case laws help lawsuit preparation
Absolute immunity from Section 1983 suits is granted to:
States, judges, prosecutors, legislators, and federal officers
Police officers have this kind of immunity as long as they acted in good faith and their conduct was reasonable:
Qualified
Deciding whether or not an officer has passed a test of "good faith" means considering:
-The officer's state of mind at the time of the act
-Whether the officer's
Section 1983 liability suits can result from illegal or unconstitutional police actions leading to:
-Unconstitutional use of deadly force (Ruby Ridge)
-Police brutality (Rodney King)
-Misconduct during off duty activities that involve acting under color of law (ex. part time security work)
-Wrongful death
-Search and seizure
-Negligence by police officers
Section 1983 is a civil statute, while Section 242 is a criminal law stating:
-It is a criminal offense for anyone acting willfully under color of law to deprive any person of the rights and privileges guaranteed under the U.S. Constitution and laws of the U.S.
-Applies to police and other public officials
Negligent Supervision
-A breach of duty to provide effective systems for evaluation, control, and monitoring of employee performance
-May involve supervisor's direction to employee to engage in illegal act or approval of illegal activity
Supervisors may be found liable and sued for:
-Injuries resulting from official policy or custom
-Improper hiring, training, and supervision of officers
-Officers who believe they were improperly disciplined or terminated
Other areas of potential liability that could result in a civil suit include:
-Failure to perform duties properly
-Performing duties in a negligent manner
-Poor decisions
-Abuse of authority
Duty of Care Doctrine
Police have no duty to protect the general public from harm, absent a special kind of relationship
A special relationship is one in which the officer knows or has reason to know the likelihood of harm to someone if they fail to do their duty, A special relationship can be based on three areas:
1) Whether the officer could have foreseen that they were expected to take action in a given situation to prevent injury (officer fails to remove intoxicated driver from a highway)
2) Departmental policies or guidelines prohibit a certain course of action
3) Spatial and temporal proximity of defendant-officer's behavior to the injury-damage is another factor
When dealing with duty of care liabilities, the plaintiff must not only show the existence of duty of care and the breach of that duty by the officer but they must also prove:
The officer's conduct and breach of duty was the proximate cause of the injury or damage
"But for the officer's conduct, would the plaintiff have sustained the injury or damage?"
-If answer is no, proximate cause is established
-Negligence limits liabilities in situations where the damage/injury would have occurred regardless of the officer's behavior
Duty of care extends to persons in police custody, the police are required to:
Take reasonable precautions to ensure the health and safety of detainees, keep them free from harm, render medical assistance if necessary, and to treat detainees humanely
Litigation may result if an officer neglects to protect a person from known and foreseeable danger. Mostly involves battered women but includes informants, witnesses, etc. This term is known as a:
Failure to protect