Introduction to Law Enforcement3

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iv

chapter

9

the arreSt DecISIOn

Simulation Studies

Police Bias in the Arrest Decision

Racism

Early Studies

Later Studies

Sexism

Early Studies

Later Studies

Biased-Based Policing

A Critique

Controlling Police Officer Discretion

The Locus of Change

The Policy Formulation Process

Summary

Review Questions

Discussion Questions

Selected Internet Sites

References

275

chapter Out l Ine

Key Terms

Learning Objectives

Introduction

Full versus Selective Enforcement

Reasons for Police Discretion

Unclear Laws

Nuisance Behavior

Broad Statutes

Moral Standards

Outdated Laws

Defining Discretion

Handling Calls for Service

Police Operators and Dispatchers

Handling Calls in the Field

Observational Studies

Controlling the Call

Putting It Together

The Arrest Decision

Field Encounter Studies

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276 Part 3 On the Streets

pretextual stop

proactive policing

quota

racial profiling

reactive policing

selective enforcement

simulation

unarticulated improvisation

Key t ermS

chivalry hypothesis

coercive regulation

definitional regulation

discretion

field observation

full enforcement

imperative regulation

masculinity hypothesis

policy

• Comment on why some people call police telephone operators and dispatchers the “gatekeepers to the police system;”

• Talk about how police officers use definition, imperative, and coercive regulation;

• Explain how legal and non-legal vari- ables influence the decision to arrest a person;

• Debate whether racism and sexism bias the arrest decision

• Critique the arrest literature that relies heavily on just social variables;

• Review the policy formulation pro- cess; and,

• Discuss the importance of police for police discretion.

l earn Ing Object IveS

The study of this chapter will enable you to:

• Explain why arrest is such a monu- mental power;

• Understand why full enforcement is a myth;

• Outline what selective enforcement means;

• Appreciate what unarticulated improvisation is;

• List two objections to unarticulated improvisation

• Define police discretion;

• Appreciate why the decision not to arrest is important;

• Give five reasons why police discretion exists

• Differentiate discretion from discrimination;

• Contrast proactive with reactive policing;

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Chapter 9 the arrest Decision 277

Introduction One of the more monumental powers a police officer can exercise is an arrest. Why do we refer to arrest powers as being monumental? Very simply, being arrested car- ries a negative image that taints the arrestee for years to come. One classic example of this adverse impact comes from an ingenious field experiment. Schwartz and Skolnick (1962) designed a resumé for four fictitious job seekers. While all the pertinent details were the same for each candidate, the criminal records varied. The first application con- tained no mention of an arrest history. The second folder listed an arrest for assault, but also included a letter from the judge explaining that the person was found not guilty. The third packet was like the second folder, except it did not include an explanatory note from the judge. The final condition was an arrest along with a conviction.

While chatting with resort owners, the researcher would pass on a folder saying this person was looking for a job. As you can imagine, the chances of getting hired varied according to one’s prior record. Applicants with an arrest history had fewer job offers. Even applicants with an acquittal faced serious obstacles. An arrest hindered the job hunt. In short, the decision to arrest carries enormous long-term implications.

Decisions generally consist of a goal, alternatives, and information to help select a viable course of action (Gottfredson & Gottfredson, 1988). In this context, an arrest represents a decision that a police officer reaches after evaluating the available data and alternatives. These three elements lead to a simple consideration. Is a police officer obligated to arrest each and every single violator? The answer, of course, is no. Police officers are vested with discretion—that is, officers have a variety of options at their dis- posal. If officers do not have to arrest all violators, then how do they select which ones to detain and which ones to let go?

This chapter explores the guidelines that direct or control an officer’s decision to arrest. We examine what discretion is and why it exists. We must also recognize that unbridled discretion, particularly if left unchecked, can deteriorate into discrimination. To understand this issue more fully, we will explore two related literatures. The first deals with the influence of racism on the arrest decision. The second looks at the influence of sexism upon the arrest decision. In other words, are police officers more likely to arrest blacks than whites and males than females? The final portion of this chapter addresses the problem of how to control police discretion. By the end of this chapter, you should have gained a deeper appreciation for the complexities that surround the arrest decision.

Full versus Selective enforcement One common myth surrounding police work is the belief in full enforcement. Full enforcement means that the police confront and deal with each and every single viola- tion that comes to their attention. Adherents of this view maintain that the police are not in a position to agree or disagree with the law (Goldstein, 1960). The role of an officer is to enforce the law in every possible instance. While the position of full enforcement

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may represent an ideal posture in a democratic society, the reality of police work is dis- tinctly different.

The police, out of necessity, must engage in selective enforcement practices. Selective enforcement means that the police do not enforce all the laws all the time against every single violator. Sometimes selective enforcement can be quite understandable and tol- erable. Police resources are neither infinite nor bottomless. Taxpayers finance police budgets with certain expectations and constraints. While personnel allocations seek to provide optimal service delivery in a fiscally responsible manner, demand strains these resources from time to time. Activity levels may be higher than normally expected. A temporary personnel shortage can exist because of such outside demands as subpoenas for courtroom testimony. A serious incident, such as a barricaded suspect or a public health hazard, could monopolize an inordinate share of police resources. Countless other circumstances have the potential to result in a temporary situation where the police agency must compromise its ostensible goal of full enforcement.

When police administrators fail to set an explicit agenda for selective enforcement by formulating policy or rules for officer behavior, they are delegating policy formula- tion to individual police officers (Davis, 1975). Under these conditions, agency policy amounts to unarticulated improvisation. In other words, officers lack the guidance of explicit policy and must make their own decisions without any administrative structur- ing. This practice carries at least two inherent liabilities.

First, the most disconcerting enigma is that the bottom rung of the organizational ladder is formulating and enacting policy. One perplexing problem cited earlier was that the educational attainment of a police officer lags behind the general population that he or she serves. Furthermore, these de facto policy-makers are not members of the admin- istrative echelon. They do not have a clear vision of the organization’s mandate. As a result, the least capable and the least accountable members are molding the day-to-day agency position on a wide range of issues.

Second, the establishment and enactment of policy by individual patrol officers do not ensure continuity or uniformity. Official actions are wide open to considerable variability. Decisions depend mostly upon who the investigating officer is and whether that officer has certain preferences (President’s Commission, 1967, p. 16). As a result, the department is embracing the most threatening feature of discretion. Officers are not applying the same rules all the time to all persons encountered under similar situations. While there is much to be said for police discretion, there is a danger here. Sufficient safeguards must be firmly in place to ensure that discretionary action does not erode into discrimination.

reasons for police Discretion One of the most comprehensive and thorough analyses of police decision making con- cerning arrest can be found in the work of Wayne R. LaFave (1965). The American Bar Association commissioned a series of studies to examine the criminal justice system during

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Chapter 9 the arrest Decision 279

the mid-1950s. Since the police and their arrest powers represent the most common entry point into criminal proceedings, LaFave conducted an intensive and exhaustive review of police practices. However, LaFave added a novel twist. Instead of asking what fac- tors influence the decision to arrest, he reversed the inquiry. What variables influence the officer’s decision not to invoke the criminal process? As a result, LaFave articulated many reasons for apparent police inaction where an arrest was one plausible course of action.

A major source for police inaction lies in the shortcomings of some criminal stat- utes. According to LaFave (1965, pp. 83–101), there are at least five difficulties present in statutory formulations. These inadequacies include ambiguous and unclear statutes, laws created to handle nuisance behavior and not criminal activity, broad and sweeping statutes designed to prevent loopholes rather than to specify a clear legislative intent, a reaffirmation of some moral standard rather than criminal conduct, and outdated stat- utes. The following materials explain each of these aspects.

unclear laws One purpose behind the enactment and publication of criminal laws is to define behaviors that are offensive and unacceptable. Laws specify normative behavior. Unfortunately, some statutes are vague and unclear. These statutes invite officer interpretation of what they mean rather than provide straightforward application.

Obscenity laws are one example of the dilemma police officers face here. Most states forbid possession of or transactions involving lewd, obscene, or indecent materials. However, court decisions have left the exact determination of what is obscene or porno- graphic to “community standards.” There is no single definition of obscenity or pornogra- phy. The meaning of what violates community standards can fluctuate from place to place within the same state. The law enforcement officer who confronts such a situation must serve as a barometer of community sentiment. As a result, materials considered obscene in one part of the state might not be obscene in a different section of the same state.

Sometimes criminal statutes embody a very precise standard, but with some awk- ward language. For instance, it is unlawful in Florida to make a bonfire within ten rods of a structure (Florida Statutes 2011, § 823.02). Pause for a moment and ask yourself how long a rod is. A rod is 16½ feet in length. Now consider the following. You are attending college, one of the highest levels of education available in this country. More than likely, you could not answer this question correctly. What about the average law enforcement officer who stumbles across a bonfire while on routine patrol? Surely it would clarify matters immensely if the statute specified the distance as 165 feet or used some other common metric.

nuisance behavior A second reason LaFave isolated for police discretion stems from the use of criminal law to control non-criminal matters. Alcoholism is a disease requiring medical attention.

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280 Part 3 On the Streets

However, many states still retain laws prohibiting intoxication in a public area. Let us look at one such statute. Florida Statutes 2011, § 856.011(3) reads:

Any peace offi cer, in lieu of incarcerating an intoxicated person for violation of subsection (1), may take or send the intoxicated person to her or his home or to a public or private health facility, and the law enforcement offi cer may take reasonable measures to ascertain the commercial transportation used for such purposes is paid for by such person in advance. Any law enforcement offi cers so acting shall be considered as carrying out their offi cial.

This statute vests offi cers with considerable powers and discretion. The offi cer may choose to arrest the intoxicated person or skip the arrest and arrange for transportation to that person’s house. Despite the latitude permitted by this statute, it fails to provide any guidelines for deciding when to arrest or when not to arrest, except for the ability to pay for such transportation.

broad Statutes Sometimes criminal statutes are written in very broad and sweeping terms to prevent any possible loopholes. Overzealous legislative attempts to forbid gambling would fall into this area. Social gambling, whether in public or private, is a violation in some states. For example, two people are playing a friendly game of pool in a tavern. The agreement is that the loser must pay the table charge and buy supper. Is there a criminal violation in progress here? Whether the police should conduct surveillances, raids, and make arrests in these situations is exactly what discretion entails.

moral Standards Another reason LaFave offers is that some statutes express a moral, rather than criminal, standard. As Figure 9.1 illustrates, some jurisdictions prohibit fornication, adultery, and cohabitation. Suppose that two consenting, but unmarried, adults engage in an intimate relationship. They would have violated the criminal code in many states. Whether the police should regulate such behaviors is, of course, debatable.

Outdated laws Many statutes that appear on the books are outdated relics from the past. Sometimes we call these prohibitions “blue laws.” Such laws have long outlived their intended purpose. For example, it might be illegal to wash a cow or pig on the Sabbath. There may be an ordinance that bans dancing after a certain hour on Saturday night or selling particular items on Sunday. In any event, enforcement of such laws would do nothing more than raise the ire of the people involved in these innocuous activities.

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Defi ning Discretion By now it should be evident that police discretion involves the element of decision mak- ing. When handling a call in the fi eld, offi cers must choose from a variety of alternative actions in order to resolve the situation. These options range from taking no action, to giving advice, to issuing a warning, to making an arrest. As you can see, discretion rep- resents an enormous expanse of power entrusted to individual police offi cers.

Although an exact defi nition of police discretion remains somewhat elusive, Goldstein’s (1977, p. 94) summary might help:

In some departments discretion means merely using good common sense in exceptional circumstances. It connotes a degree of fl exibility in an unusual situ- ation when more formal treatment would bring embarrassment to the police offi cer and the agency. In other departments discretion is thought to apply solely to the judgments police must make in using the criminal process—in searching suspects and vehicles, in obtaining search warrants, in conducting lineups, and in seizing property. And in still others discretion refers primarily to selective enforcement—when to take action against conduct defi ned as criminal.

handling calls for Service When a citizen calls the police to report a situation or to request assistance, a carefully orchestrated set of actors begin carrying out their roles. The police operator takes the ini- tial call and conveys the appropriate information to the dispatcher. The dispatcher then

F Igure 9 . 1 an example of a statute that expresses a moral standard.

798.01 living in open adultery. Whoever lives in an open state of adultery shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Where either of the parties living in an open state of adultery is mar- ried, both parties so living shall be deemed to be guilty of the offense provided for in this section.

798.02 lewd and lascivious behavior. If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Source: Florida Statutes 2011.

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selects and notifies a field unit of the circumstances. The patrol officer, in turn, responds to the scene to dispose of the situation appropriately.

The most important aspect of this chain of events is that each player in the system reacts to the decision-making product of an earlier participant. As a result, it is very important to realize that people often overlook the discretion that is involved at the junctures prior to officer arrival at the scene and the subsequent police-citizen field con- tact. Our orientation will not allow this point to go unnoticed. As a result, this section of the chapter consists of two parts. The first part contains a discussion of the decisions police operators and dispatchers make. The second part visits police officer handling of a field encounter.

police Operators and Dispatchers One of the most fundamental units of analysis for researchers interested in police work is the call for service or an incident. A very common distinction applied here is the differ- ence between proactive and reactive policing. Proactive policing means that the officer initiates the discovery and responds to the incident. For example, an officer who sees a fight-in-progress and intervenes is engaged in proactive police work. Reactive policing, on the other hand, means that a third party notifies the police about a situation and then the police respond to the call. Answering a burglary alarm would be an example of reac- tive police work. The bulk of police activity is reactive.

One problem with reactive policing is that reliance upon third-party notification, if left unchecked, can become a drain on scarce resources. For example, the San Jose Police Department (2011) recently announced that it would longer respond to unverified alarms. An unverified alarm refers to an alarm activation which has no other indica- tion or supportive information that a crime or an emergency situation is actually occur- ring. San Jose police officials advise that over 98% of the alarms to which its officers responded were triggered accidentally or by malfunctioning equipment. These bogus calls for service represented a cost of $662,000 to the city. The fact that only two arrests stemmed from 12,450 alarm activations in 2010 prompted San Jose to adopt a policy of non-response without extenuating circumstances. Other locations have attempted to curtail the problem of false alarm activations by passing ordinances that impose fines on persistent or chronic violators. As Figure 9.2 illustrates, the problem of false alarms is so pervasive that the Florida Police Chiefs Association has drafted its own model ordinance for municipalities to consider.

Another important feature of calls for service is that an overwhelming amount of time goes to non-police activities. A fair estimate would be that about 20% of all police activity pertains to criminal matters while the remaining 80% is spent on other non- criminal matters (Lab, 1984). In view of these figures, one might be tempted to rewrite the police motto “to serve and protect” as “to serve, to serve, to serve, and then protect.”

One way to determine what the police are doing is to examine the nature of incoming telephone calls. When a citizen dials the police with a request for service, the telephone

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F Igure 9 . 2 a model false alarm ordinance.

The purpose of this ordinance is to establish reasonable expectations of alarm users and to ensure that alarm users are held responsible for their use of alarm system.

False alarm means the activation of an alarm system through mechanical or elec- tronic failure, malfunction, improper installation, or the negligence of the alarm user, his/her employees or agents, and signals activated to summon law enforcement per- sonnel unless law enforcement response was cancelled by the alarm user or his/her agent before law enforcement personnel arrive at the alarm location. An alarm is false within the meaning of this article when, upon inspection by the Police Department, evidence indicates that no unauthorized entry, robbery, or other such crime was committed or attempted in or on the premises which would have acti- vated a properly functioning alarm system. Notwithstanding the foregoing, a false alarm shall not include an alarm which can reasonably be determined to have been caused or activated by unusually violent conditions of nature nor does it include other extraordinary circumstances not reasonably subject to control by the alarm user.

No person shall use an alarm system without fi rst obtaining a permit for such alarm system from the City or County. A fee may be required for the initial registration and annual renewals. Each alarm permit shall be assigned a unique permit number, and the user shall provide the permit number to the alarm company to facilitate law enforcement dispatch.

It shall be unlawful to activate an alarm system for the purpose of summoning law enforcement when no burglary, robbery, or other crime dangerous to life or property is being committed or attempted on the premises, or otherwise to cause a false alarm.

It is hereby found and determined that three or more false alarms within a permit year is excessive, constitutes a public nuisance, and shall be unlawful. Civil penalties for false alarms within a permit year may be assessed against an alarm user as follows:

Third, fourth, and fi fth false alarm $ 50.00

Sixth and seventh false alarm $100.00

Eighth and ninth false alarm $250.00

Tenth and over false alarms $500.00

The failure of an alarm user to make payment of any civil penalty(ies) assessed under this ordinance within 30 days from the date of the invoice shall result in dis- continuance of law enforcement response to alarm signals that may occur at the premises described in the alarm user’s permit until payment is received.

Source: Florida Police Chiefs Association (2010). Draft Police Alarm Ordinance. Tallahassee, FL: Florida Police Chiefs Association. Retrieved on April 15, 2012 from http://www.fpca.com/modelalarmordinance.htm

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F Igure 9 . 3 a job advertisement for a police dispatcher position.

The Police Dispatcher position is skilled emergency service work that involves receiv- ing emergency 911 and non-emergency requests for police assistance, determin- ing nature/urgency of calls, initiating police or other emergency personnel action and maintaining close contact with fi eld units to monitor response and needed support requirements.

It requires a considerable degree of initiative and independent judgment within procedural boundaries in responding to emotional, disturbed and sometimes abu- sive people in a variety of situations.

Duties/responsibilities

• Receives and responds to emergency and non-emergency calls from the public, dispatchers, and law enforcement agencies via telephone and radio systems and computer-aided dispatch (CAD) systems;

• Processes and evaluates information received, prioritizes calls, and dispatches required units and/or agencies;

• Monitors and coordinates police unit activity and assignments via police radio frequencies;

• Maintains status and locations of public safety personnel;

• Creates and maintains automated or manual logs of public safety communica- tions activity;

• Accesses and enters sensitive data in local/state/national databases as neces- sary for investigative purposes;

• Enters and maintains fi les for persons or property pending apprehension/recov- ery; and,

• Maintains appropriate security and confi dentiality of information created or encountered in the performance of assigned duties.

Desirable Knowledge, Skills, and abilities

• Knowledge of public service activity and methods of local government;

• Knowledge of computer technology and equipment;

• Knowledge of law enforcement terminology and procedures;

• Knowledge of geography for the Town of Oro Valley and surrounding areas;

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operator listens to what the caller relays and deciphers the pertinent information. Sometimes, the operator must extract important details from the caller. For example, the caller might be distraught and upset to the point of being somewhat incoherent. In this instance, the worker must calm the person quickly. He or she needs to get the location of the incident and must determine if an emergency exists that requires an immediate police response. The operator will try to get as many details as possible. Finally, he or she must decide what the appropriate agency response should be. Once the operator classifi es the call, he or she passes on the details to a dispatcher, who then assigns the call to a patrol unit. Figure 9.3 contains a job description for a police dispatcher.

This series of events, coupled with the decisions reached by the people staffi ng these positions, lead some researchers to designate police telephone operators as “gatekeepers to the police” (Antunes & Scott, 1981; Bercal, 1970, p. 689; Gilsinan, 1989). In other words, the civilian employees who take complaints over the telephone control how the call gets categorized and help determine what the appropriate agency action will be. This

F Igure 9 . 3 cOnt .

• Knowledge of English language for spelling and proper word usage;

• Skills in multitasking, coordinating simultaneous mental, manual, and visual activities;

• Skill in observing situations analytically and objectively and relaying details accurately;

• Ability to speak clearly and concisely; and,

• Ability to think clearly and act quickly in emergencies

minimum Qualifi cations

• High school diploma or G.E.D.;

• At least 18 years of age;

• United States citizen;

• No felony conviction or conviction of an offense that would be a felony if com- mitted in Arizona; and,

• Satisfactory completion of a personal background investigation and the ability to meet minimum POST qualifi cations regarding police employment.

Job advertisement for a Police Dispatcher position from www.orovalleyaz.gov website. Copyright © 2012 Oro Valley, AZ. Reprinted by permission.

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enormous responsibility formed the basis for Antunes and Scott’s (1981) analysis of over 26,000 calls for service in 21 major police departments throughout the country.

Antunes and Scott (1981) found that less than 20% of the calls for service involved criminal incidents. Many calls were simple requests for information. These inquiries ranged from questions about the handling of a specific case to getting directions to a geographical location. Other calls included loud noise and nuisance complaints, traffic problems, disturbances, and suspicious circumstances. Police operators promised half the callers that they would send an officer to investigate the situation. Other available alternatives included taking down the information over the phone and posting it for patrol officers, referring the caller to a more appropriate agency, or explaining depart- mental policy.

Operators promised to dispatch an officer in over 70% of all calls dealing with crimes, disturbances, public nuisances, and suspicious circumstances. There appears to be an unwritten rule among police telephone operators to send an officer unless it is patently clear there is no need to do so. The calculus is very simple. Mobilizing a unit does not deplete or strain departmental finances. Officers are already on duty to answer calls. Thus, dispatching a unit to an unwarranted call does not amount to any outland- ish expenditure. However, if the operator does not send a unit and there is a significant injury or property loss, the repercussions could be serious. As a result, the default is to assign an officer whenever there is any doubt. As the researchers (Antunes & Scott, 1981, pp. 174–175) observed:

By promising that a unit will be sent, except in those instances where it is quite clear that none is needed, complaint operators do not have to make the ultimate decision about what action should be taken. That responsibility is shifted to the officer dispatched to the scene, who presumably will have more information about the problem at hand, and in any event is professionally trained to make such decisions.

Police operators and dispatchers perform other critical tasks central to law enforce- ment service delivery (Antunes & Scott, 1981; Scott & Percy, 1983). In addition to ferreting out which service calls merit attention from patrol officers, dispatchers must decide how to prioritize calls. Sometimes the demand for service exceeds the number of available units. To reduce dispatcher discretion and to structure a uniform response, some agencies have formulated specific policies to handle this decision. Figure 9.4 con- tains an example of policy guidelines that govern call prioritization, dispatcher respon- sibilities, and call stacking.

handling calls in the Field What are the conditions under which law enforcement officers are in a position to apply discretionary alternatives short of an arrest? In earlier chapters, we discussed conditions

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F Igure 9 . 4 policy guidelines governing dispatch procedures.

A. An expeditious dispatch to high priority calls for service is necessary for the Department to accomplish its mission. This procedure describes how high priority calls for service will be dispatched when insuffi cient resources are immediately available.

B. The Department’s response time goals are less than 7 minutes to all precedence 0 and 1 calls, less than 15 minutes to all precedence 2 calls, and less than 30 minutes to all precedence 3 calls.

1. If a high precedence (0 and 1) or precedence 2 call cannot be immediately dis- patched, the call information will be broadcast over the appropriate talk group(s) and the dispatcher will ask if any unit(s) can be clear to respond. This gives all units the opportunity to volunteer and assist in a response, such as Traffi c, K-9, CPT, ACT, SWAT, Detectives, Prisoner Vans, etc.

2. For high precedence (0 and 1) calls, if no units immediately volunteer to respond, the dispatcher will determine which units are on low precedence/paper calls and request they respond. The dispatcher will not hesitate to free and assign units who are on downtimes or other nonemergency situations. If the dispatcher receives unreasonable resistance, the Chief Dispatcher and Sector Sergeant should be notifi ed immediately.

a. If the dispatcher is still unable to assign units, a Precinct Supervisor (Sector Sergeant or Watch Commander), will be advised over the air and the dis- patcher will continue to search for units to respond.

b. Dispatchers should always consider the option of cross-precinct dispatching. This should be done in conjunction with the Chief Dispatcher who is respon- sible for notifying the affected Precinct’s Supervisors once the call has been assigned.

c. If assignment of the call is still unsuccessful, the dispatcher will update the call to show no units available (NUA). This shall only be noted once all of the above steps have been taken. The dispatcher will continue efforts to assign the call.

3. Precedence 3 and 4 calls of an investigative nature are to be dispatched or pended to the district car when at all possible. If the district car is unavailable, the call can be assigned to another car within the sector.

4. Depending upon the type of call (not of an investigative nature), dispatchers can sometimes more effectively handle lower precedence 3 and 4 calls by broadcast- ing the information when units are not available. This will give Patrol and other units (e.g., CPT, ACT, SWAT or Traffi c), who are nearby the location or have recently been through the area, a chance to clear the call. Examples of appropriate calls to be handled in this manner would be area checks for mischief, minor hazards, etc.

Source: Seattle Police Department (2012). Policies & Procedures: 12.010 – Communications. Seattle Police Department, WA: City of Seattle. Retrieved on April 9, 2012 from http://www.seattle.gov/police/publications/ policy/spd_manual.pdf

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governing arrest practices. For example, a police officer who has probable cause can make a legitimate warrantless arrest in all felony situations. However, an officer can make a warrantless arrest only in those misdemeanor cases where he or she actually witnesses the violation. This consideration is very important, because most academic research on the decision to arrest fails to take this stipulation into account.

Observational Studies Four criteria govern possible police actions. These items include statutory definitions, departmental policy, suspect demeanor towards the officer, and whether the suspect threatens the officer’s physical safety. Sykes, Fox, and Clark (1985) hypothesized that these four factors would determine whether police discretion was a viable alternative when handling calls for service in the field. In order to test their perspective, the research team examined incident reports of police-civilian interactions prepared by observers riding with officers in patrol cars. The researchers retained only those crimes in which the suspect was still at the scene upon officer arrival. Every felony violation produced an arrest without fail. The biggest variation took place in the misdemeanor category. Although these incidents accounted for over half the observations, officers made an arrest in less than 15% of the cases.

There is another way to interpret these data. Officers made an arrest every time such action was mandatory (felony cases). Officers did not effect an arrest where the law prohibited such actions (misdemeanors committed outside the officer’s presence). But, officers exercised considerable latitude whenever an arrest was an optional outcome. As the researchers (Sykes et al., 1985, p. 176) put it:

If law enforcement were limited to arrest, and legal criteria were all that an officer used in his decision to place a suspect into custody, then it would be self-evident that the law is dramatically underenforced . . . . Since nonarrest decisions account for a much greater proportion of the cases than arrest deci- sions did, there must have been other factors than legal criteria which affected the decision to arrest.

Sykes and his associates posed the research question in its antithetical form. Most cases did not result in an arrest, even though the incident satisfied the legal requirements. In other words, a substantial number of cases failed to culminate in an arrest even though all the necessary legal ingredients were present. What, then, does a person have to do for the officer to arrest him or her?

One prominent feature of case outcome was the impoliteness the suspect displayed towards the officer. Civilians who verbally abused and cursed officers placed themselves in greater jeopardy of an arrest than citizens who remained polite. Thus,

the overwhelming atmosphere of alleged violator-present police-citizen encoun- ters was relatively calm, routine, and not particularly entangling for all parties

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concerned. In spite of the circumstances which generated the presence of police officers with their uniforms and weapons—the high incidence of drunkenness, the presence of adversaries, and the occasional presence of known past offend- ers—one must be impressed with the high degree of civility all parties accorded each other (Sykes et al., 1985, p. 179).

Controlling the Call A more exhaustive study afforded the opportunity to probe deeper into the dynamics of how a field encounter develops and what techniques officers commonly invoke. A major goal of police officers is to establish and to retain control when dealing with civilians and their problems (Sykes & Brent, 1980). Police officers usually have four goals in mind when handling a call for service. First, the officer must gather information. These details include the nature of the problem and identifying the suspect, victim, and wit- nesses. Second, the officer seeks behavioral order. This task includes who talks when, who remains on the scene, and who vacates the area. Third, respect for the officer is of paramount importance and may delay other goal-seeking activity. Finally, the ultimate goal is to resolve or to complete the call appropriately.

In order to resolve a situation, the responding officer can use three different tech- niques of maintaining order. These three techniques are definitional, imperative, and coercive regulation. Let us examine each technique in turn.

The most subtle way of handling a call and the people involved is through the expe- ditious use of questioning or definitional regulation. Questions help achieve the goal of information gathering. They also force the respondent to acknowledge the officer’s pres- ence and to submit to the officer’s authority. The designation of the parties as suspect, victim, or witness is also an important part of definitional regulation.

Imperative regulation occurs when the officer issues a command or an order. Directing traffic around an accident scene would be one example. Advising an individual to leave the premises or else face an arrest on a trespass charge constitutes imperative regulation. Another example would be telling a crowd to disperse. Sometimes things are very disorganized when an officer arrives on the scene. Cars may be upside down, people are crying, others are injured, and some folks are leaving the scene. In these instances, the officer may resort to imperative regulation before he or she pursues defi- nitional regulation.

Coercive regulation takes place when the officer uses, or threatens to use, physical force or arrest. This form of regulation ranges from the actual display of a weapon down to subtle body language or other cues of impending action. Later, we will devote an entire chapter to the use of force.

What are the conditions under which police officers invoke the various forms of regulation? Sykes and Brent (1980) studied the conversations between police officers and civilians during the course of a call for service. This approach permitted a unique view of what goes on during police-citizen encounters and how the participants act and react to the chain of events.

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The first person to speak in 95% of the situations was the police officer. Definitional regulation was the predominant focus. The officer asked questions. If the civilian failed to respond appropriately to the inquiry, the officer typically asked the question again. The most common observation was that police officers repeated their questions over and over.

Most of the time, this strategy won citizen compliance with the officer’s directive. The officer’s tone and behavior, along with the civilian’s response, dictated the next sequence of interaction. For example, when repeated questions failed to establish suitable definitions of the situation, the officer would switch to an imperative mode. Once the citi- zen responded appropriately, the confrontation would de-escalate and resume a normal course. According to Sykes and Brent (1980, p. 194), “confrontation appears to be more likely to result when the civilian is the first to issue a negative act, though the officers appear to be more likely than civilians to respond to disturbing acts with imperative acts.”

The bulk of the interaction consisted of the officer trying to establish definitional regulation. Officers simply repeated questions when necessary to control the flow of the encounter. When multiple inquiries failed to produce a relevant or usable response, imperative regulation came into play. It was rare for officers to resort immediately to coercive regulation.

Putting It Together When we stand back for a moment and reflect on these findings, they make perfect sense for at least three reasons. First, we spent some time in Chapter 6 discussing the elements that compose the various criminal offenses. Officers must determine whether the elements that define a particular crime are met. Most citizens do not have a suitable working knowledge of criminal law. Hence, the officer must ask a series of questions to determine whether the events match the elements of a particular offense.

Second, we also discussed laws of arrest, along with search-and-seizure standards, earlier in Chapter 7. The officer must ask a series of questions in order to establish the grounds of his or her authority. For instance, where the alleged offense took place is a very important consideration. If the officer belongs to a municipal police department and the incident took place outside city limits, the officer lacks proper jurisdiction over the matter. In addition, the officer must determine whether probable cause exists. If probable cause is present, the officer must decide if the offense is a misdemeanor or a felony. If the crime is a felony, the officer can go ahead and make a warrantless arrest. Should the incident involve a misdemeanor, the officer may not be able to make a war- rantless lawful arrest. Perhaps now you can see why police officers make extensive use of definitional regulation.

Third, Chapter 8 dealt with interrogation standards. The officer must operate with the Miranda requirement in mind if he or she wishes to interrogate the suspect and if that person is not free to leave the scene of his or her own accord. In addition, the arrest situation may trigger additional points involving key search-and-seizure issues. As you can see, officers have several streams of considerations that they must piece together whenever they decide to take legal action.

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the arrest Decision By now, we are quite familiar with the practice of selective enforcement. As Figure 9.5 shows, selective enforcement means that police officers do not have to make an arrest in every instance where probable cause exists. What factors, then, influence the arrest decision? What considerations are important enough to make a police officer go ahead with the arrest option? As we will see in a moment, two research strategies have guided the literature. The first is field observation. Here spectators watch and record what hap- pens during a call for service. The other approach is a simulation. In other words, the researcher presents a situation to an officer and asks what he or she would do if it were an actual call. Both research techniques have shed considerable light on how officers arrive at the arrest decision in situations where arrest is not mandatory.

Field encounter Studies One of the most intensive studies for its time was an analysis of police-citizen field encounters in Boston, Chicago, and Washington, D.C. that was undertaken for the 1967 President’s Commission. Black (1970, 1971) divided the incidents into those calls where both a complainant and suspect were present and those incidents with just a suspect and no complainant. He found a strong correlation between police action and what course of action the complainant wished the officer to take.

The police were more likely to arrest the suspect when the complainant made such a request. Similarly, the police were not likely to take the suspect into custody when the complainant made that preference known. In addition, the victim-offender relationship carried important weight. Arrest was a more common outcome when the parties were strangers, as opposed to being family members or close acquaintances.

Another important finding was the impact of incivility. Police were more likely to release an individual without making arrest if the subject treated the officer politely and respectfully. Disrespectful behavior invited the police officer to exercise the arrest option.

Demeanor consistently appears as an extremely important feature of the decision to arrest. In what has come to be a classic study, Piliavin and Briar isolated one’s attitude as the most important determinant of police action. They (1964, pp. 210–211) explained:

Juveniles who were contrite about their infractions, respectful to officers, and fearful of the sanctions that might be employed against them tended to be viewed by patrolmen as basically law abiding or at least salvageable. For these youths, it was usually assumed that an informal or formal reprimand would suffice to guarantee their future conformity. In contrast, youthful offenders who were frac- tious, obdurate, or who appeared nonchalant in their encounters with patrol- man were likely to be viewed as “would-be-tough-guys” or “punks” who fully deserved the most severe sanction possible—arrest.

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F Igure 9 . 5 an example of policy guidelines regarding arrest and discretion.

Decision to arrest

A. If a violation of law or ordinance has occurred, it is the responsibility of on-duty police offi cers and offi cers working secondary employment, using reasonable judgment and appropriate discretion, to take all steps necessary to effect an arrest of the suspect(s). Offi cers shall use appropriate offi cer safety tactics in every arrest incident.

B. Offi cers should not consider the following in any arrest situation:

1. The victim’s willingness to pursue criminal charges in court.

2. The possibility the suspect may not be prosecuted.

3. The possibility the suspect may be used as a confi dential informant.

C. Except when approved by a named representative of the State Attorney’s Offi ce, or lieutenant or higher rank in the arrest member’s chain-of-command, offi cers shall always make arrests when:

1. Probable cause exists to believe a person has committed a felony.

2. A person has an outstanding warrant or active capias.

Decision to not arrest

A. There may be situations where probable cause exists for the arrest of a suspect, but circumstances might cause offi cers to not effect an arrest. Some of these circumstances include:

1. When the arrest would cause a greater risk of harm to the general public than not arresting the suspect (e.g., the suspect in a minor offense takes refuse in a large, volatile crowd).

2. When police resources are limited and there is a large volume of high priority calls for service (e.g., arrests for minor offenses where the City of State is the vic- tim during an extremely busy shift would take too much valuable offi cer time).

B. Even if an arrest is not made at the time of the crime, sworn members may obtain arrest warrants for suspect for whom they have probable cause to believe com- mitted a crime.

C. When offi cers do not effect an arrest in an incident, they shall still complete an offense report if anyone involved in the incident could subsequently:

1. Claim to be physical injured.

2. Claim to have suffered a property loss.

3. Seek to pursue criminal charges against another person involved in the incident.

Source: Lake City Police Department (2010). General Orders 153: Arrests, General Orders Manual. Lake City, FL: Lake City Police Department. Retrieved on April 13, 2012 from http://www.lcfl a.com/documents/Police/ Arrests.pdf

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The importance of demeanor, the suspect’s attitude and respectfulness, has not escaped the attention of civilians. For example, one gang member remarked:

One day we were standing on the corner about three blocks from school and this juvenile officer comes up. He say, “Hey you boys! Come here!” So everybody else walked over there. But this one stud made like he didn’t hear him. So the cop say, “Hey punk! Come here!” So the stud sorta look up like he hear him and start walking over. But he walking over real slow. So the cop walk over there and grab him by the collar and throw him down and put the handcuffs on him, say- ing, “When I call you next time come see what I want!” So everybody was stand- ing by the car, and he say, “All right you black * * *! Get your * * * home!” Just like that. And he handcuffed the stud and took him to juvenile hall for nothing. Just for standing there looking at him (President’s Commission, 1967, p. 180).

Bittner (1967) undertook a fascinating field study when he investigated police activ- ity on skid row, the habitat of winos, alcoholics, and other street people. The main police function here is simply to keep the peace. The criminal code affords a very convenient tool for this task. As Bittner (1967, p. 710) noted,

the problem patrolmen confront is not which drunks, beggars, or disturbers of the peace should be arrested and which can be let go as exceptions to the rule. Rather, the problem is whether, when someone “needs” to be arrested, he should be charged with drunkenness, begging, or disturbing the peace.

Sometimes officers use an arrest to prevent problems from happening. For instance, when one newcomer to skid row refused to account for his whereabouts, he found himself arrested on a weapons charge. He was carrying a pocket knife. Two concerns emerged simultaneously. The first dealt with the man’s lack of respectful response to the officer’s inquiry. The second was the fear that this stranger was new to the area and could not be trusted not to become aggressive. In short, arrests may be used to forestall impending difficulties.

In order to avoid making impressionistic conclusions, Smith and Visher (1981) con- ducted an elaborate analysis of police-citizen field encounters monitored by observers in 24 different departments. Victim preference and the relationship between victim and offender exerted an important impact upon police decisions. Incidents between strangers were more likely to produce an arrest than when the parties were known to each other.

All the studies presented so far have dealt with criminal acts. One researcher found this singularity too restrictive and expanded this orientation by analyzing officer actions in traffic cases (Lundman, 1979). Given the fact that the driver has breached some rule of the road, what determines whether or not a ticket is forthcoming?

Earlier we mentioned that some police administrators favor objective job perfor- mance measures. A common practice in some police agencies is a quota. A quota is an

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expectation that offi cers will write a certain number of traffi c citations every month. Monitoring an offi cer’s fi eld performance is simple. Simply compare the number of tickets issued by an offi cer during this time period against the norm. Thus, Lundman (1979) reasoned that the organizational environment could be a very important variable that criminologists commonly neglected.

Citizen observers rode with police offi cers during randomly selected shift periods and recorded information after watching routine traffi c stops. (Figure 9.6 contains an example of a police ride-along policy). The totals showed that offi cers issued a citation

F Igure 9 . 6 an example of a citizen ride-along program.

The Tulsa Police Department encourages open and candid police operations and strives to establish a climate that allows offi cers to perform their duties with the acceptance, understanding, and approval of the public. Citizens are allowed to ride with offi cers to promote trust and understanding.

regulations

• Participants shall wear professional casual clothing. Shorts, sleeveless shirts, and t-shirts will not be acceptable attire.

• Participants shall be under the direct control of the police offi cer.

• Offi cers will not allow participants to enter private homes or other areas where a citizen has a reasonable expectation of privacy without the explicit consent of the citizen. Participants will also not be allowed to photograph and/or videotape within these same areas.

• Participants shall conduct themselves in a civil and courteous manner at all times.

• Participants shall not interfere with police offi cers while in the performance of their duties.

• Participants shall not perform police duties. In an emergency, they may take appropriate action to protect themselves and/or offi cers.

• Offi cers shall not engage in pursuits while participants are passengers in their vehicles.

• Participants shall not carry weapons while they are participating in the Ride- Along Program.

Source: Adapted from Tulsa Police Department (2012). Citizen Ride-Along. Tulsa, OK: City of Tulsa. Retrieved on April 13, 2012 from http://www.tulsapolice.org/content/ride-along.aspx

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almost half the time. However, many officers shirked traffic duties during the first part of the month. The second half of the month, though, witnessed a scramble to write a sufficient number of traffic tickets to appease supervisors. Thus, a traffic stop was more likely to result in a formal citation if the encounter took place in the latter part of the month. As a result, Lundman (1979, pp. 168-169) concluded that social variables were insufficient by themselves when studying police discretion:

While it is likely that these, and other, factors play a role in police decision making, it is also likely that their priority and intensity are established by refer- ence to organizationally generated constraints. It therefore appears necessary to explore the possibility that organizational norms may be at least as impor- tant as the individualistic and situational contingencies previously identified as important in the context of police exercise of discretion.

Simulation Studies One way for social scientists to reach a more definitive assessment about which vari- ables affect the police decision-making process is to remove officers from the field. This strategy allows the researcher to control for any unwitting forces that could influence the officer’s decision. The typical procedure is to present the officer with a scenario or a description of a field encounter. The researcher then records what option the officer selects as the best way to handle the incident. The major advantage of this technique is that it allows the researcher to gather data over a wide range of situations in only a fraction of the time required by the field observation approach. The sacrifice is that the recorded decisions occur in a sterile environment. They may lack the flavor of what really takes place during a police-civilian exchange.

Sullivan and Siegel (1972) used the simulation technique to determine what pieces of information police use. Officers read a scenario in which they come across a drunk 14-year-old male juvenile who is creating a public disturbance. The booklet each officer received contained 24 pieces of information. Some of these tidbits included such items as cleanliness, physical size, prior record, dress, time of day, place, home situation, offi- cer’s mood, witnesses, friends present, and so forth. The instructions asked the officers to pick as many pieces of information as they needed in order to reach a decision about what to do. The decision involved a simple warning, a trip to police headquarters in order to release the juvenile to a parent or guardian, or an arrest.

The results displayed a striking uniformity. The officers picked the details sur- rounding the offense as the most important consideration. However, none of the officers reached a decision based on this variable alone. They all wanted additional information. One variable proved critical. When the offender’s attitude was described as belliger- ent and disrespectful, officers suspended their investigations and took the suspect into custody. Thus, given that probable cause already existed, the suspect basically talked himself into becoming arrested.

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An interest in police actions during low-visibility situations prompted Finckenauer (1976) to distribute simulations to recruits at the police academy. These cases involved gambling, public drunkenness, welfare fraud, prostitution, and a juvenile speeding in a car. The most consistent finding was a reluctance to make an arrest in victimless cases. When asked why, recruits responded that an arrest was way out of line with community expectations. Finckenauer 1976, p. 43) summarized this point:

The primary factor characterizing all the situations which seemed to influence the exercise of discretion was the desire on the part of the respondents to main- tain a certain public image of the police role. There was a clear sensitivity to community attitudes, beliefs, and expectations. The recruits seemed to react in accordance with a certain preconceived notion of what the appropriate police action should be, but these reactions were not so much governed by a legal defi- nition of what must be done as by a personal definition of the situation.

What these studies show is that police officers apply both legal and social variables to the arrest decision. The mere presence of probable cause does not automatically trig- ger police action in every case. Some social variables are critical. Victim preference or suspect demeanor may propel officers over the arrest threshold. While these actions comply with the minimal criteria to be legally defensible, critics fear that this calculus invites an uneven application of the law. More specifically, the charge is that these biases result in certain groups of people being the objects of differential treatment at the hands of the police.

police bias in the arrest Decision Despite the enormous gravity of the arrest decision, most arrests occur in low-visibility situations. Supervisors are not at the scene monitoring officer field performance. The lack of any meaningful review renders the patrol officer’s decision almighty. These cir- cumstances have led to accusations that police officers sometimes make an arrest deci- sion on inappropriate grounds. The worry is that officers are basing their decisions on such legally irrelevant considerations as race and gender. Instead of dispensing justice, officers are taking discriminatory actions against select groups of people. The following materials take a closer look at these allegations with regard to the impact of race and gender on the arrest process.

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racism One persistent regularity in official crime data is that blacks are over-represented in arrest statistics in comparison to their relative population composition. In other words, if blacks constitute 12% of the population, then one would anticipate that minority persons would make up 12% of the arrest statistics. Table 9.1 presents the distribution of arrests by race for the entire United States during the year 2010. A glance at the table reveals that black persons of African-American heritage are over-represented in arrest statistics. That is, the relative proportion of minority members in arrest figures exceeds what one would expect on the basis of population composition.

How does one account for this race differential? Some people would argue that blacks are disproportionately present in the lower-class ghetto areas, have much lower incomes, and greater family instability—all of which are conducive to a greater involvement in criminal activity. Other researchers reject this notion and contend that more recent fig- ures show that whites actually have a greater likelihood of being arrested. D’Alessio and Stolzenberg (2003) maintain that blacks tend to mistrust the police and not cooperate with the authorities. As a result, officers have great difficulty formulating probable cause when dealing with black-on-black crime. Still other observers would argue that black arrest figures surpass expectations not because of what blacks do, but as a result of what the police do. The police arrest blacks more often because agencies saturate these areas with more patrol assignments. Furthermore, these officers hold jaundiced and biased attitudes. The combined impact of these considerations is important because:

the police officer must often rely on his or her own judgment in making the deci- sion to arrest and then the decision to refer the case to court. When essential pieces of information about an alleged deviant act are missing, the officer must “fill them in” by constructing an informed conjecture based on experience and general background knowledge. Inevitably, such a process must rely on the per- ceptual and evaluative constraints of the officer’s own biography, including typi- fications of some juveniles as more likely than others to be probably in need of control or assistance by the juvenile court (Dannefer & Schutt, 1982, p. 1117).

The direct consequence, according to proponents of this view, is that police officers who patrol black areas are less tolerant. They are not as likely to choose non-arrest alter- natives. Thus, the higher black arrest rate reflects officer predispositions rather than the criminal actions of the arrested persons.

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Early Studies The initial body of literature that developed in this vein was very simplistic and focused mostly upon juvenile processing. A common strategy was to compare case dispositions by race at various decision-making points. The fi ndings showed that black youths were

table 9 . 1

arrests by Suspect race, united States, 2010.

number OF perSOnS arreSteD

Offense charged White black Other % black

Murder 4,261 4,209 171 49

Forcible Rape 10,178 4,925 400 32

Robbery 37,906 48,154 1,527 55

Aggravated Assault 202,275 106,382 8,778 34

Burglary 152,210 69,541 4,024 31

Larceny-Theft 687,609 282,246 28,621 28

Motor Vehicle Theft 35,009 18,797 1,472 34

Arson 6,592 1,978 196 23

Other Assaults 659,171 318,117 26,985 32

Forgery/Counterfeiting 40,167 19,350 1,021 32

Fraud 95,126 46,493 2,595 32

Embezzlement 8,568 4,037 325 31

Stolen Property 48,303 24,494 1,325 33

Vandalism 145,284 46,306 5,425 24

Weapons 71,772 49,443 2,063 40

Prostitution 26,156 20,405 1,593 42

Sex Offenses 41,406 13,182 1,537 24

Drug Abuse 846,736 404,609 19,098 32

Gambling 2,160 5,071 281 68

Family and Children 56,233 26,470 2,109 31

DUI 927,516 124,467 30,318 12

Liquor Laws 329,895 47,529 19,518 12

Drunkenness 362,396 66,837 11,455 15

Disorderly Conduct 305,154 162,521 12,405 34

Vagrancy 14,092 9,935 732 40

All Other Offenses 1,905,436 893,018 79,233 31

Curfew and Loitering 43,961 28,036 1,673 38

Source: Adapted from Federal Bureau of Investigation (2011). Crime in the United States – 2010. Washington, DC: U.S. Department of Justice. Retrieved on April 13, 2012 from http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/ table-43/10tbl43a.xls

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more likely to become arrested, get a court referral, and have a formal hearing before a judge. As a result, people concluded that the system was treating blacks more harshly than whites. However, control variables were absent or extremely limited.

Observers criticized these early studies as primitive because they overlooked several important things. For example, blacks might receive more formal processing because the current offense was quite serious. As a result, investigators advocated the use of more appropriate and relevant variables. They argued that one should group variables into legal and non-legal or social concerns.

Legal variables include such items as offense severity and prior record. Non-legal aspects reference such salient features as the offender’s race, age, and gender. The research task is to pit these two variable sets against each other to see which is more capable of explaining official actions. If the legal items emerge as being more important than non-legal variables, then one could not conclude that discriminatory practices were important. But, if the non-legal variables have more influence than legal ones, it would appear that discriminatory practices were operative.

Later Studies The adoption of the legal versus non-legal variables framework did not quiet the debate. Some studies found that race was a very important consideration in examining official action. Ferdinand and Luchterhand (1970) discovered that police officers were more likely to give black youths a formal referral to the juvenile court, particularly when the incident involved a serious violation. Piliavin and Briar (1964) also noted a racial imbal- ance. Some of their variation stemmed in part from the poor demeanor that black youths exhibited towards police officers.

On the other hand, a number of studies point to the opposite conclusion. Although black juveniles have a higher arrest rate than do white youths, part of the reason is that the police honor the wishes of victims (Black & Reiss, 1970; Lundman, Sykes, & Clark, 1978). If the victim wants the offender arrested, officers may not have any choice. Other studies highlight prior record and offense seriousness as dominant influences in the deci- sion to formally charge a juvenile.

While the typical approach has been to view legal and social variables as disjointed or totally separate from one another, such may not be the case. Consider the following point about how a social variable can become transferred into a legal variable:

If there is bias at the point of police dispositions, it will ultimately translate into differences in prior record—a variable which had a stronger effect on court dispositions than any other variable studied. The effect of prior record may, in other words, include a component due to police bias (Dannefer & Schutt, 1982, p. 1129).

Assume for the moment that race, a social characteristic, is the main determinant of police action in a field encounter. The officer makes an arrest in this situation. Suppose

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that this same subject is involved in another field encounter at a later date. If the investi- gating officer runs a check for priors, the computer would show the individual as having an arrest history. Any action taken by the officer in this second encounter would appear to stem from the legal variable of prior record. However, the fact of the matter is that the attainment of the legal variable prior record was tainted originally by a social consider- ation, the subject’s race. While the strategy of pitting legal against non-legal indicators seems logical, the possibility of an interpretational error because of misplaced trust looms large.

Another way to determine the validity of the arrest decision would be to follow a case through the criminal justice process. Systematic case tracking can provide feedback about the quality of the arrest decision (Gottfredson & Gottfredson, 1988, p. 71). Before putting a case on the docket, the prosecutor reviews it. At this point, the prosecutor can accept the case as is, amend the original charge, or dismiss it entirely. Although prosecu- tors exert considerable discretion in their own domain, this processing stage is the only real point at which the initial arrest decision gets examined.

The decision to accept or reject a case based on sufficient probable cause for an arrest was the subject of a study by Hepburn (1978). He analyzed arrests made in a mid- western city to see whether there was enough evidence to support prosecution. Dividing cases by suspect race allowed an examination of attrition for blacks and whites. Hepburn found no differences in prosecutorial rejection of arrests for serious index offenses. However, substantial losses occurred when the charge was a victimless crime. The pros- ecutor refused to process black suspects more often in cases of prostitution, gambling, vagrancy, and drunkenness. This pattern led Hepburn (1978, pp. 60–61) to state that “nonwhite arrests are more likely than white arrests to have the warrant application refused, a finding which may be interpreted as partial support for the hypothesis that nonwhites are more likely than whites to be arrested on insufficient evidence.”

Sexism The sex distribution of arrests for the entire United States during 2010 appears in Table 9.2 below. For the most part, female representation in arrest statistics does not approach their relative presence in the overall population. But, female arrest patterns do vary according to offense and might exceed expectations based upon how some people think females ordinarily behave. As a result, female involvement in the criminal justice system has captured scholarly attention.

Some criminologists contend that contemporary arrest rates for females are sky- rocketing at unprecedented levels. Several reasons for this upward trend have surfaced. One argument, the masculinity thesis, is that females are engaging in more criminal activity because they are incorporating more masculine personality traits. Traditionally, females have occupied very passive and dependent niches. Only males could be aggres- sive and competitive. Crime was a male activity. However, the advent of the women’s lib- eration movement dismantled sex-role stereotypical barriers. As females became more

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liberated, they rejected traditional sex-role perceptions. They adopted more masculine traits and began to engage in more aggressive behaviors. One major manifestation of this trend is a greater involvement in criminal activity and a corresponding rise in female arrest statistics.

table 9 . 2

arrests by Suspect Sex, united States, 2010.

number OF perSOnS arreSteD

Offense charged male Female % Female

Murder 6,276 751 11

Forcible Rape 12,475 113 1

Robbery 62,383 9,010 13

Aggravated Assault 208,367 60,145 22

Burglary 159,813 30,627 16

Larceny-Theft 454,079 359,414 44

Motor Vehicle Theft 36,238 7,887 18

Arson 6,237 1,277 17

Other Assaults 603,501 226,024 27

Forgery/Counterfeiting 29,878 17,967 38

Fraud 69,079 51,685 43

Embezzlement 5,538 5,763 51

Stolen Property 50,045 12,229 20

Vandalism 131,349 30,319 19

Weapons 89,693 8,374 9

Prostitution 10,844 25,961 71

Sex Offenses 42,833 3,256 7

Drug Abuse 816,307 198,076 20

Gambling 2,614 432 14

Family and Children 52,116 17,455 25

DUI 639,291 196,727 24

Liquor Laws 230,230 91,025 28

Drunkenness 308,784 65,102 17

Disorderly Conduct 251,193 99,580 28

Vagrancy 16,981 4,271 20

All Other Offenses 1,782,491 557,410 24

Curfew and Loitering 43,778 18,175 29

Source: Adapted from Federal Bureau of Investigation (2011). Crime in the United States—2010. Washington, DC: U.S. Depart- ment of Justice. Retrieved on April 13, 2012 from http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/ tables/10tbl33.xls

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A competing explanation for the recent appearance of females in official crime statistics is the chivalry hypothesis. This perspective redirects attention away from the offender. Instead, it places law enforcement personnel in the limelight. Advocates link changes in female arrest patterns to chivalrous and paternalistic police practices. In other words, police officers subscribe to certain preconceived notions of how females should act. When a female subject fails to adhere to these stereotypes, she is more likely to find herself under arrest. Females who conform to traditional sex-role expectations are more likely to be the recipients of police discretion and avoid a formal arrest.

Several criminologists have taken note of such preferential treatment based upon the sexual identity of the citizen. Reckless (1961, p. 37), for example, wrote:

Citizens are willing to report the behavior of males more readily than that of females. The police are . . . much more lenient in their arrests of females. Judicial processes in America are supposed to be very much more lenient with women than men. Consequently, female offenders have a much better chance than male offenders of not being reported, of not being arrested, and of dropping out of the judicial process.

Early Studies Many early studies examining the chivalry hypothesis focused upon police handling of juveniles. The typical research approach compared the number of males and females arrested after police field contact. Some interesting revelations surfaced. One finding was that females were more likely to be arrested for status offenses (skipping school, smoking, curfew violations, etc.) and other minor transgressions than were males.

A variety of limitations in these early studies on police arrest decisions prompted criminologists to look for a more sophisticated research strategy. This new approach took a familiar tact. It divided variables into two conceptual sets: legal and social variables.

Legal variables include such items as the type of offense, the person’s prior arrest history, and the seriousness of the current offense. Social variables cover such factors as the individual’s race, gender, and age. This research strategy could determine which set of variables, legal or social, is more influential in the arrest decision. If the analysis shows that social variables are more important than legal variables, then the conclusion is that some form of discrimination exists. If the legal variables appear more influential, then the conclusion is that discriminatory practices are absent.

Later Studies In an attempt to evaluate the impact of a juvenile’s sex upon police dispositions, Teilmann and Landry (1981) studied arrest decisions in locations drawn from five states. The researchers found that gender had a minuscule impact when controlling for offense type and prior record. If there was a bias against juvenile females, it was more likely to

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surface in cases involving first-time offenders. Police officers were more likely to pro- cess these cases formally than to select an alternative disposition.

Another test of the chivalry hypothesis came when Visher (1983) analyzed field data. Trained observers rode in patrol cars and witnessed police-citizen encounters in 24 different agencies in three metropolitan areas. To see if officers made consistent and legally sound decisions regarding arrest, Visher blocked the data into social and legal variables. She expected that police officers would consider some behaviors exhibited by females as improper and these breaches would elicit a differential response. For exam- ple, officers may treat older females differently because of their age. They may become aggressive towards antagonistic female subjects. Finally, the police may arrest females more often if they encounter them at night in public places when one may expect these females to be at home.

The results of an elaborate analysis indicated that social variables exerted an influ- ence upon the arrest decision. This finding prompted Visher (1983, p. 23) to issue the following scathing comment:

as long as men continue to dominate the criminal justice system through their roles as police officers, prosecutors, and judges, traditional patterns of interac- tion between men and women will influence the formal sanctioning of female offenders. Some females will receive lenient treatment because they display appropriate gender behaviors and characteristics; other females who violate traditional sex-role expectations will not receive leniency. Discretion in the criminal justice system involving female offenders appears related to notions of chivalry.

Krohn and his colleagues (1983) investigated the issue of chivalry in a slightly dif- ferent way. They argued that the masculinization thesis demanded longitudinal data. If sex-role changes undergird female involvement in criminal activity, then looking at arrests over several years should identify certain conspicuous trends. Cohort data from Racine, Wisconsin, enabled the research team to examine both juvenile and adult arrest histories for the same individuals for the three time periods of 1960–1966, 1967–1972, and 1973–1976. The results substantiated earlier findings. That is, female status offend- ers were just as likely to be arrested as male misdemeanor offenders. However, the adult arrest statistics displayed some change. Although arrest patterns appeared to approach a more egalitarian distribution, “chivalrous treatment of females is evident in the refer- ral pattern for adult misdemeanors that constituted a large proportion of the offenders handled by police” (Krohn et al., 1983, p. 428). While these practices may seem to be troublesome, the researchers cautioned that many of the adult gender differences were minute. It appears that changes in female arrest patterns show an overall decline in chiv- alrous practices and a more evenhanded approach to street justice.

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biased-based policing Charges of race-based police activity became more pointed during the mid-1990s. Authorities had come to rely upon profi ling techniques in efforts to make airports more secure and to become more aggressive in the war against drugs (Williams & Arrigo, 1999). Although some of these efforts were based on dubious indicators, they concen- trated on observable behaviors that would trigger individualized suspicions. Persons who bought round-trip airline tickets with very little stay-over time, paid for their tickets in cash using small denominations, and who carried very little, if any, luggage were regarded as prime suspects. Flamboyantly dressed persons, driving large-scale outland- ish vehicles, and who had no visible legitimate means of support became drug inter- diction surveillance targets. Eventually, though, the emphasis on behavior grew less important and race became the dominant criterion. The erosion was now complete. The black person in a predominantly white area was suspicious. The white person in a black neighborhood was probably looking for either drugs or tricks. Race-based enforcement practices, often hailed as being nothing more than good old-fashioned and hard-nosed policing, had taken over as a standard short-cut in the war against crime. In other words, the success of fi nding drugs or uncovering other illicit activity fueled the justifi cation for race-based enforcement (Engel & Calnon, 2004).

Racial profi ling, also known as biased-based policing, refers to the practice of tak- ing law enforcement actions because of a person’s perceived racial background (see Figure 9.7). In other words, offi cers stop motorists or search subjects because members of this particular race are known to be involved inordinately in certain types of illegal behaviors. Instead of using the person’s behavior to generate reasonable suspicion or probable cause, offi cers rely upon race as a hunch. The Supreme Court’s blessing of

F Igure 9 . 7 Defi nition of racial profi ling.

Racial profi ling refers to the discriminatory practice by law enforcement offi cials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin. Criminal profi ling, generally, as practiced by police, is the reliance on a group of characteristics they believe to be associated with crime. Examples of racial profi ling are the use of race to determine which drivers to stop for minor traffi c violations (commonly referred to as “driving while black or brown”), or the use of race to determine which pedestrians to search for illegal contraband.

Racial profi ling does not refer to the act of a law enforcement agent pursuing a suspect in which the specifi c description of the suspect includes race or ethnicity in combination with other identifying factors.

Source: American Civil Liberties Union (2005). Racial Profi ling: Defi nition. New York, NY: American Civil Liber- ties Union. Retrieved on April 15, 2012 from http://www.aclu.org/racial-justice/racial-profi ling-defi nition

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pretextual stops in Whren (1996) lent a sense of legitimacy to these intrusions. A pre- textual stop takes place when an officer develops an interest in what a party is doing or in the contents of a vehicle. Although the officer does not have a sufficient legal basis to initiate a full-blown investigation, he or she simply follows the driver until there is a minor traffic violation (i.e., illegal lane change, malfunctioning tail lights, improper tag, etc.). At that point, the officer has the lawful authority to stop the vehicle and initiate a police-citizen encounter. Whatever unfolds after that point can either dispel the officer’s original inclination or reinforce the hunch and elevate it to a search or arrest status.

These concerns became crystalized when New Jersey motorists went to court argu- ing that their vehicular stops and subsequent arrests stemmed from their minority status rather than any legal factors (Buerger & Farrell, 2002). In other words, their contention was that officers were stopping motorists on the basis of “driving while black” rather than for any articulated reasons. The plaintiffs assembled statistical data which showed that officers were almost five times more likely to stop black, rather than white, drivers. This information convinced the court that something was amiss and the court ruled on behalf of the defendants. In short, the court suspected that racial profiling, an unacceptable prac- tice, was at the root of these traffic stops (State of New Jersey v. Pedro Soto, et al., 1996).

The publicity surrounding this case and several other legal proceedings prompted further analyses which, in turn, spawned other reservations and considerations. While a number of studies found evidence of racial profiling, other investigations did not. In fact, Meehan and Ponder (2002a) showed that reliance upon mere traffic-stop counts leads to the misinterpretation that officers were engaged in racial profiling. However, when one takes into account the racial composition of drivers on the roadways, it appears that officers were not engaged in biased policing.

The mixed findings and other criticisms prompted McMahon and his colleagues (2002, pp. 32–43) to warn that five general flaws seemed to be thwarting proper data interpretation. These categories included difficulties with:

• Base rates;

• Measuring race;

• Geographical and functional officer staffing patterns;

• Multiple predictors of stops and searches; and,

• Criteria for the existence and extent of racial profiling.

The question of base rates refers to what benchmark is an appropriate gauge or referent point. For instance, should researchers utilize census information to generate estimates of the population composition, driver’s license information available from state agencies, or roadway surveys of drivers? One analysis of motorists who exceeded the speed limit by at least 15 miles-per-hour on the New Jersey Turnpike reveals that driving infractions are not distributed uniformly by race, age, or gender (Lange, Johnson, & Voas, 2005), a finding confirmed by researchers analyzing speeding data in

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Massachusetts (Lundman & Kowalski, 2009). Thus, establishing an appropriate norm or reference group is of utmost importance.

The second issue concerns racial identifi cation. Some studies have relied upon rov- ing surveys to determine to generate racial estimates of drivers (Meehan & Ponder, 2002b). One technique is to place observer vehicles on the roadway with the cruise con- trol set at a predetermined speed. The task, then, is to record the race of passing drivers or motorists within the immediate area. Of course, this approach invites criticisms of missing data, incomplete data, or misidentifi cation. Skin tone among minority members, for example, may invite distortion (Barlow & Barlow, 2002), while windshield glare and tint can taint rater reliability (Lange, Johnson, & Voas, 2005). In addition, portrayal of profi ling as simply a black/white issue overlooks other racially sensitive groups, such as Hispanics (Reitzel, Rice, & Piquero, 2004).

Patrol allocation or the number of offi cers assigned to an area is usually based upon past problems, calls for service, reduced response times, and a host of other factors. The point is that offi cers are not distributed randomly or equitably within jurisdictions. Hence, any observed disparities in suspect characteristics may represent intentional organizational or managerial decisions rather than individual offi cer preferences.

Reliance upon just stop data may overlook other intricacies in police-citizen encoun- ters. Requests for consent searches, acquiescence to such requests, active warrants and capiases, probable cause that unfolds during the course of a stop, and the like may compromise an easy understanding of data. A study conducted by Smith and Petrocelli (2001) found that although the police were more likely to stop black motorists, the odds of a subsequent search were no different. Interestingly, Ridgeway (2006) found that offi cers in one jurisdiction were not more inclined to stop minority drivers. However, black operators were more likely to be subjected to frisks and lengthier detentions than white drivers.

Some observers contend that counts of events represent a far cry from explaining the genesis of these events (Engel, Calnon, & Bernard, 2002). Until researchers start invoking explicit theoretical frameworks which aim at understanding why police offi cers take certain actions, the fi eld will not advance past name-calling and unsubstantiated assumptions of police misconduct. That, in turn, will impede any efforts intended to inform or reform police practices and will serve merely to infl ame already entrenched positions. Along these lines, the public does not view profi ling as a very fair tool and when this habit is perceived as customary, there is a decline in citizen trust in the police (Engel & Canon, 2004; Tyler & Wakslak, 2004). Law enforcement offi cials are aware of these feelings and have taken steps to curtail racially-based activities (Warren & Tomaskovic-Devey, 2009). Many administrators have enacted polices outlawing race- based policing. A number of agencies have begun collecting race information for traf- fi c stops, citizen encounters, searches, use-of-force situations, and other activities in the fi eld. Some police administrators, as Figure 9.8 illustrates, have issued statements opposing race-based law enforcement practices.

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a critique Researchers investigating racism and sexism in police fi eld activity are adamant that social variables, more so than legal considerations, improperly infl uence the arrest deci- sion. However, several basic defi ciencies work to undermine the validity of these claims. Let us visit some of them.

First, we learned earlier that probable cause is an important legal ingredient. If it is absent, the offi cer cannot make a legal arrest. Unfortunately, many studies typically fail to include any indication as to whether probable cause existed at the onset.

Second, some studies include whether the incident was a felony or misdemeanor. Unfortunately, many researchers ignore a very important rule of arrest. Generally, a police offi cer can make a warrantless arrest for a misdemeanor only if that crime took place in the offi cer’s presence. The offi cer may have suffi cient information to believe that a crime took place. The offi cer also may know who the perpetrator was. However, the offi cer cannot make a bona fi de warrantless arrest without witnessing the act. To do otherwise would violate that person’s constitutional rights.

Third, none of these studies directly measure police attitudes towards blacks or females. The researchers merely assume that the lack of a relationship between certain legal variables and the arrest decision demonstrates prejudicial feelings. Furthermore, they guess that these biases sway an offi cer into resolving the situation through an arrest (Mastrofski & Parks, 1990). None of these studies measure offi cer attitudes, nor do they control for such things as offi cer race and gender.

Fourth, some critics have serious reservations about the way in which research- ers handle the construct demeanor. Klinger (1994, 1996) notes with some dismay that researchers commonly include criminal behavior, such as pushing or shoving an offi cer,

F Igure 9 . 8 a policy banning biased-based profi ling.

Bias-based profi ling or racial profi ling in traffi c contacts, fi eld contacts, and in asset seizure and forfeiture efforts is strictly prohibited. Sworn offi cers shall actively en- force state and federal laws and applicable University policies and procedures in a responsible and professional manner, without regard to race, ethnicity, national origin, sexual orientation, or gender.

Offi cers may take into account the reported race or ethnicity of a specifi c suspect or suspects based upon trustworthy, locally relevant information that links a person or persons of a specifi c race/ethnicity to a particular unlawful incident. Race and/ or ethnicity can never be used as the sole basis for probable cause or reasonable suspicion.

Source: Florida State University Police Department (2012). Biased-Based Profi ling. Tallahassee, FL: Florida State University. Retrieved on April 15, 2012 from http://www.police.fsu.edu/Uniform-Patrol

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as an indication of the degree to which a subject is hostile. These actions constitute bat- tery upon a police officer, a felony in many jurisdictions which will result in an immediate arrest irrespective of the nature of the original call. Furthermore, researchers usually fail to distinguish crimes that took place before the officer arrived from illegal activities that occurred after the officer was on scene. While efforts to correct these deficiencies have surfaced (Lundman, 1994; Worden & Shepard, 1996), the academic claim is that these shortcomings have very little, if any, tangible effects upon the original interpretations.

Finally, one should bear in mind that these data files are aging. Lundman (1994), for example, relies upon field observations collected in 1970, while Worden and Shepard (1996) analyze data gathered in 1977. If our earlier argument that law enforcement offi- cers today represent a new breed is true, then the demeanor-arrest linkage is an anach- ronism. For instance, more recent data reveal that officers who support the precepts of community policing differ from their colleagues in how they apply their arrest powers (Mastrofski, Worden, & Snipes, 1995). What all this boils down to is that while the bulk of the literature may describe past police behavior accurately, such conclusions might not be true today. What is needed, then, are more refined analyses conducted on contem- porary police activity.

In short, these flaws are sufficiently damaging to question any conclusions gener- ated to date. It would be premature to embrace the conclusion that racially motivated or chivalrous practices abound in every arrest situation. Future studies need to be more sensitive, along the lines suggested here, before one can reach a definitive and valid conclusion. Meanwhile, it would be fair to say that such biased practices might exist in low-visibility situations. However, the necessary scientific evidence to make such a final assessment is not yet available.

controlling police Officer Discretion One point becomes clear after reviewing the various studies concerning the arrest decision. There is a need to establish adequate controls to curb any possible unwarranted exercise of police discretion. In short, the “essential problem becomes that of the elusive balance between structuring decisions and providing for individual justice” (Atkins & Pogrebin, 1978, p. 2). As we shall see, reformers favor greater reins on police officer discretion in the field. However, they do not agree as to who should be in charge of this restructuring. Should police agencies determine their own selective enforcement policies? Or, should an independent overseer, such as the legislature or the courts, supervise these efforts?

the locus of change How can we control excessive police discretion? If one takes LaFave’s position that improperly drafted laws provide too little direction for police officers in the field, then one might push a very straightforward solution. That is, have the legislature revise all

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unclear or vague statutory language and rescind all outdated laws. While this approach has a certain basic appeal, it is overly simplistic. What this proposal really does is merely call for a return to the myth of full enforcement. If the legislature can define the ingre- dients of a criminal violation, then the officer’s job is to measure the situation against a legislative yardstick. However laudable in its aim to ensure a uniform reaction to all legal violations, such an approach transforms police action into a robotic response.

One of the more ironic features of policing is that most agencies have a labyrinth of rules and regulations that govern employees and their jobs. For example, officers must contend with restrictions governing the style, shape, and length of hair. All officers must conform to a dress code. There is a conduct code. There are rules governing equipment. Other rules cover which forms officers must complete and when. This intense bureau- cratic preoccupation with minute details stands in stark contrast to the lack of guidance given to field action.

The American Bar Association (ABA) noted with some alarm that most police orga- nizations had either turned a deaf ear to earlier pleas for policy development or had not yet placed these concerns on the agenda. The ABA issued a series of standards reiter- ating the critical need for administrative action. Standard 5.1 embodies the reasoning behind this call for action. It reads:

Since a principal function of police is the safeguarding of democratic processes, if police fail to conform their conduct to the requirements of law, they subvert the democratic process and frustrate the achievement of a principal police func- tion. It is for this reason that high priority must be given for ensuring that the police are made fully accountable to their police administrator and to the public for their actions (American Bar Association, 1972, p. 144).

the policy Formulation process The President’s Commission drew a picture of the policy formulation process to help agencies develop meaningful guidelines. As Figure 9.9 shows, the policy formulation process consists of several stages. Let us examine each step to see what is involved.

The entry point into the process starts with the identification of a problem. This first step begins either internally or externally. Internal identification of a problem may occur as a result of accumulating and then analyzing citizen complaints surrounding certain activity. Supervisors and patrol officers who frequently encounter difficult decisions in the field are another routine source of internal identification. External sources of input include recurring difficulties experienced by prosecuting attorneys, new legislation, and judicial rulings where some standard of action is less than adequate. Citizens may express some discontent with the lack of police presence in their neighborhoods. Finally, social service providers may point to shortcomings that hinder their own functioning.

Once the process identifies a problem, the next step is to clarify the issue and to gather appropriate information. This step may require additional data collection, enlistment

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of outside consultants, or the creation of a research staff. In many large agencies, the research staff or the Internal Affairs Unit is responsible for monitoring current policy as well as entertaining new ideas.

The third stage calls for consultation with representatives from inside and outside the agency. Maybe a department decides to embark on a domestic violence pro-arrest policy. In other words, offi cers are instructed to make an arrest whenever possible. A policy change like this formulation might require coordination with the state attorney, local judges, jail offi cials, the probation offi ce, and social service agencies. Contact with the state attorney would ensure appropriate prosecutorial action in these cases. A policy

F Igure 9 . 9 the formulation and execution of police policy guidelines.

Source: Adapted from President’s Commission on Law Enforcement and Administration of Justice (1967), Task Force Report: The Police. Washington, DC: U.S. Government Printing Offi ce, p. 26.

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to arrest spouse batterers whenever feasible would carry very little clout if the court failed to impose negative sanctions. Also, jail officials need advisement of such impend- ing action. If one goal is to separate the feuding parties, officials might wish to withhold bail until after first appearance. Contact with probation officials might establish a bat- terers’ intervention program as an appropriate strategy. Conferences with social service agencies might create the availability of shelters and victim counseling. As you can see, police policy does not occur in a vacuum. There may be a need to arrange interagency agreements if the guidelines are to work as intended.

The promulgation of policy requires that the message reach several audiences if it is to be effective. First, the agency must notify and train rank-and-file officers in the new policy. Second, publicizing the policy through newspaper, radio, and other media outlets lets people know what is being done. One should not overlook the deterrent effect, as well as the public relations aspects.

The final step calls for an assessment of whether the new policy is working. Sometimes there are latent or unanticipated effects. This flexibility permits fine-tuning the rules to gain complete compliance with organizational goals. Continuous re-evalu- ation is necessary to make sure that this structured discretion remains consistent with agency philosophy.

Summary Perhaps the biggest myth surrounding police work is the charade of full enforcement. It is not feasible or practical for the police to confront every single violator every time a transgression occurs. As a result, the police must resort to selective enforcement which invites more questions. The problem now becomes how to decide which areas of the law get totally enforced, partially enforced, or not enforced at all. Unfortunately, most agencies have yet to establish explicit rules governing enforcement priorities. As a result, the burden of establishing these rules falls squarely upon the lowest-ranking members of the organization.

The absence of organizational guidelines forces police officers to use their own indi- vidual prerogatives. This unbridled discretion has led to charges that the police routinely invoke personal biases in ambiguous encounters. The net impact has been accusations that the police do not dispense justice fairly in the streets. Consequently, law enforce- ment organizations must take active steps to control officer discretion through the enact- ment of policy guidelines. Rules and regulations ensure that all members are aware of the overriding agency philosophy. Policy guidelines also promote consistent patterns of behavior. While one cannot deny the wisdom of having sound policies, some agencies devise and introduce guidelines more smoothly than others.

One point is very clear. Police organizations themselves can structure officer discre- tion, or they can wait for the courts to impose rules and restrictions that might be very narrow. So much of the police mission depends upon citizen trust and support. It only seems fair to ensure that police actions have a sound basis.

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revIeW QueStIOnS

1. Why is arrest a monumental power?

2. What do the terms full enforcement and selective enforcement mean?

3. What is police discretion?

4. What is unarticulated improvisation?

5. Give two objections to unarticulated improvisation.

6. What are LaFave’s fi ve reasons for why discretion exists?

7. Distinguish proactive from reactive policing.

8. Why do some researchers call police operators and dispatchers the “gatekeepers to the police system?”

9. What does rewriting the police motto from “to serve and to protect” to “to serve, to serve, to serve, and then protect” mean?

10. What is the unwritten rule among police telephone operators?

11. What four goals do police offi cers have in mind when handling a call for service?

12. What is defi nitional regulation?

13. What is imperative regulation?

14. What is coercive regulation?

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15. What is demeanor? Why is it so important in the study of police discretion?

16. What is a quota? How can it affect police performance?

17. Why do some critics think racism influences police discretion?

18. Why is the strategy of using legal and non-legal variables to study the arrest deci- sion so important?

19. Explain how race, a non-legal variable, can become transformed into prior record, a legal variable.

20. How can analyzing the decision to prosecute cases help us understand the decision to arrest?

21. What is the masculinity hypothesis?

22. What is the chivalry hypothesis?

23. Explain what a pretextual stop is.

24. What is racial profiling or biased-based policing and why is it objectionable?

25. Discuss some of the concerns with the research to date on racial profiling.

26. What can agencies do to combat allegations or race-based profiling?

27. Give three criticisms of the arrest literature that deals with racism and sexism.

28. How can police discretion be controlled?

29. Explain the policy formulation process.

30. Why is policy formulation so important?

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DIScuSSIOn QueStIOnS

1. Suppose you are a police administrator. The chief of police has received numerous calls from citizens throughout the area complaining about dogs barking at night. In response to these calls, the chief has ordered you to draft a policy that would handle this enforcement problem. How would you get input for this project? What aspects would this new policy cover?

2. Imagine that you are a police offi cer and you are dispatched to the scene of a domestic dispute. Upon arrival, you notice an elderly gentleman about 70-years- old sitting on the front porch. In response to your question as to what is going on at that location, the man responds “It’s none of your damn business. Just get the hell out of here.” How would you react? What would you do? Now suppose that all the circumstances are the same except that the gentleman sitting on the porch is a 17-year-old. What is your reaction? What would you do? Does the variable age, a social characteristic, alter your response?

3. One of the great myths surrounding law enforcement is the notion of full enforcement. Since selective enforcement is reality, what priorities do you feel the city police should have when dealing with enforcement practices? What about campus police?

4. Suppose that local community leaders are worried that police offi cers are basing their arrest decisions on race. How would you go about investigating this allegation?

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S e l ecteD In ternet S I t e S

9-1-1-Magazine http://www.9-1-1magazine.com

American Civil Liberties Union http://www.aclu.org

American Civil Liberties Union of Florida http://www.aclufl.org

“Blue Laws” http://www2.potsdam.edu/hansondj/Controversies/1095380608.html

CALEA Public Safety Communications Accreditation Program http://www.calea.org/content/public-safety-communications-accreditation

Dumb Laws http://www.dumblaws.com

Principles for Promoting Police Integrity https://www.ncjrs.gov/pdffiles1/ojp/186189.pdf

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Lange, J.E., Johnson, M.B., & Voas, R.B. (2005). Testing the racial profiling hypothesis for seemingly disparate traffic stops on the New Jersey Turnpike. Justice Quarterly, 22, 193–223.

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caSeS c I t eD

State of New Jersey v. Pedro Soto, et al., 324 N.J. Super. 66, 734 A.2d 350 (1996).

Whren et al. v. United States, 517 U.S. 806 (1996), 116 S.Ct. 1769 (1996).

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iv

c h a p t e r

10

USe OF FOrce

321

An Impetus for Change

Tennessee v. Garner

Post-Garner Developments

Deadly Force Policy Revisions

Rethinking Use-of-Force Strategies

Graham v. Conner

Less-Lethal Weaponry

Oleoresin Capsicum Spray

Electronic Control Devices

Other Tools

Justifying the Use of Force

The Police Organization

Police Officers

Prospective Beliefs

Retrospective Beliefs

Types of Force

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

Accidental Deaths in the Line of Duty

Assaults in the Line of Duty

Murders in the Line of Duty

Murdered Officers

Police Officer Killers

Circumstances Surrounding Police Murders

Off-Duty Intervention

Trends in Police Murders

The Ecology of Police Murders

Police Murders and Community Violence

The Death Penalty as Protection

Death Benefit Provisions

Police-Involved Homicides

Incidence

Suspect Race

The Hazard Hypothesis

Elective versus Non-Elective Shootings

Social Disparity

Authorization of Deadly Force

The Fleeing Felon Rule

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322 Part 3 On the Streets

less-lethal weaponry

non-elective shooting

normal force

oleoresin capsicum spray

passive physical resistance

physical control

presence

prospective beliefs

retrospective beliefs

situational justification

taser

Tennessee v. Garner

use-of-force matrix

verbal control

verbal resistance

vicarious liability

K e y t e r m S

active physical resistance

aggravated physical resistance

aggressive physical resistance

body armor

continuum of force

deadly force

elective shooting

electronic control device (ECD)

excessive force

excuse

fleeing felon rule

Graham v. Conner

hazard hypothesis

impact weapon

incapacitating control

intermediate weapons

legal force

• Review the hazards of off-duty inter- vention by officers;

• Analyze the trends in police murders;

• Appreciate how technology pro- tects officers from death;

• Talk about whether police murders track a community’s violent crime rate;

• Comment as to whether the death penalty protects officers;

• Explain death benefit provisions for officers who die in the line of duty;

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:

• Identify the leading causes of acci- dental police deaths;

• Compile a pictures of assaults in the line of duty;

• Profile characteristics of murdered officers;

• List the circumstances under which officers were murdered;

• Describe the backgrounds of police killers;

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Chapter 10 Use of Force 323

• Appreciate the inadequacies with statistics regarding police use of deadly force;

• Evaluate different ways of looking at police-involved homicide statistics;

• Outline the hazard hypothesis;

• Differentiate between elective and non-elective shootings;

• Review the fleeing felon rule;

• Recognize the importance of the Garner decision;

• Become familiar with the use-of- force matrix;

• Relay the importance of Graham v. Conner;

• Explain the need for and types of less-lethal weaponry;

• Relate vicarious liability to the police organization;

• Understand the roles of prospec- tive and retrospective beliefs about force; and,

• Appreciate the distinctions between legal, normal, and excessive levels of force.

introduction Police work can be violent and deadly. While the number of officers slain or hurt may not surpass the volume of mishaps that workers log in other jobs, there is one fundamental difference. Policing is the only peacetime occupation in which one person deliberately tries to kill another.

The first topic this chapter visits involves officers as victims of violence, both accidental and intentional. How many officers are killed accidentally while on the job? How many are assaulted every year? What is the annual murder toll? What cir- cumstances surround these incidents? Does having the death penalty insulate officers from criminal attack?

The other side of the coin is police application of deadly force. Whom do the police shoot and why? We know that blacks are more likely than whites to be on the receiving end of police bullets and we will explore some explanations for this phe- nomenon. But, a substantial number of shots fired by the police never strike the target or just wound the suspect. Astonishingly, there is very little systematic documentation of these non-lethal cases.

No discussion of the topic of police use of force, particularly lethal force, would be complete without visiting the legal basis for this awesome power. After attending to the fleeing felon rule, we will review recent developments aimed at narrowing officer discretion in the decision to invoke deadly force. In short, the purpose of this chapter is to provide the reader with a more comprehensive view of the violence that permeates the police world.

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accidental Deaths in the line of Duty The Federal Bureau of Investigation (FBI) maintains a tally of all offi cers throughout the nation who succumb in the line of duty. A total of 718 police offi cers lost their lives acci- dentally during the 2001–2010 period. Vehicular collisions are the most frequent cause of accidental deaths. It is not uncommon to see police offi cers responding to priority calls at high rates of speed with lights and sirens blaring—hazardous conditions at best. As Figure 10.1 shows, distracted motorists strike offi cers while they are making traffi c stops, directing traffi c, conversing with motorists, or performing other traffi c-related duties. Aircraft and motorcycle accidents add to this toll. In fact, traffi c mishaps are so common that some states have adopted special measures to help safeguard offi cers. The Florida “Move Over Law,” which appears in Figure 10.2, instructs motorists to change lanes when approaching a stopped patrol car in an effort to protect offi cers. Further inspection of Figure 10.1 indicates that fi rearms discharges also play an important role in accidental deaths. Offi cers may fi nd themselves inadvertently in a cross-fi re from

F i g U r e 1 0 . 1 number of law enforcement offi cers, accidentally killed, by circumstances, 2001–2010.

Source: Federal Bureau of Investigation (2011). Table 61: Law Enforcement Offi cers Accidentally Killed, Cir- cumstance at Scene of Incident, 2001–2010. Law Enforcement Offi cers Killed & Assaulted, 2010. Washington, DC: U.S. Department of Justice. Retrieved on February 27, 2012 from http://www.fbi.gov/about-us/cjis/ucr/ leoka/leoka-2010/tables/table61-leok-accidentally-circumstance-01-10.xls

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Chapter 10 Use of Force 325

other offi cers when engaged in a shooting situation. Training accidents play a role here, too. Mistaken identities, particularly when not in uniform, also imperil police offi cers. Tragedies also occur during training sessions. In short, these statistics convey the notion that law enforcement is a dangerous occupation.

assaults in the line of Duty There were 53,469 assaults committed against police offi cers during 2010. When one takes into account the number of sworn personnel throughout the country, these assaults translate into a rate of 10 attacks per 100 offi cers. More than 26% of these violent epi- sodes resulted in some type of injury to the offi cer. The southern portion of the United States registered the largest number of violent episodes with almost half of all attacks against American police offi cers taking place there (FBI, 2011).

The most commonly employed techniques against police offi cers were punches and kicks. Three-quarters of the assaults fell into this category. Criminals used fi rearms in only 4% of the cases, but offi cers sustained an injury in 10% of these serious encoun- ters. Of all the offi cers facing assailants armed with a knife, 13% sustained injuries (FBI, 2011).

Figure 10.3 details the circumstances during which law enforcement offi cers were assaulted. Disturbance calls, which subsume such incidents as family quarrels and per- son-with-a-gun calls, outdistanced all other types of situations. Arrest situations pro- vided a fair share of assaults. Police offi cers were more likely to encounter a fi rearm when responding to ongoing robberies and burglaries than any other type of call. A

F i g U r e 1 0 . 2 the Florida “move Over” traffi c law.

When an authorized emergency vehicle making use of any visual signals is parked or a wrecker displaying amber rotating or fl ashing lights is performing a recovery or loading on the roadside, the driver of every other vehicle, as soon as it is safe:

1. Shall vacate the lane closest to the emergency vehicle or wrecker when driv- ing on an interstate highway or other highway with two or more lanes traveling in the direction of the emergency vehicle or wrecker, except when otherwise directed by a law enforcement offi cer.

2. Shall slow to a speed that is 20 miles per hour less than the posted speed limit when the posted speed limit is 25 miles per hour or greater; or travel at 5 miles per hour when the posted speed limit is 20 miles per hour or less, when driving on a two-lane road, except when otherwise directed by a law enforcement offi cer.

Source: Florida Statutes 2011, § 316.126, 1(b).

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326 Part 3 On the Streets

perusal of Figure 10.3 also shows that handling prisoners, investigating suspicious per- sons, and traffi c stops constitute dangerous assignments for police offi cers.

Looking at whether the offi cer was alone or accompanied by another offi cer at the time of the attack produces interesting results. Seven out of every ten assaulted offi cers had a backup offi cer with them at the time of the attack. However, it is not clear whether dispatch sent an additional unit due to the serious nature of the original complaint or if offi cers became complacent, thinking there was safety in numbers (FBI, 2011).

murders in the line of Duty Violence is a major hazard in police work. Every year thousands of civilians attack law enforcement offi cers. While most offi cers emerge from these encounters without signifi - cant injuries, some sacrifi ce their lives. In order to understand the dangers that police

F i g U r e 1 0 . 3 number of law enforcement offi cers assaulted, by circumstances, 2010.

Source: Federal Bureau of Investigation (2011). Table 68: Law Enforcement Offi cers Assaulted, Circumstance at Scene of Incident by Population Group and Percent Cleared, 2010. Law Enforcement Offi cers Killed & Assaulted, 2010. Washington, DC: U.S. Department of Justice. Retrieved on February 27, 2012 from http://www. fbi.gov/about-us/cjis/ucr/leoka/leoka-2010/tables/table68-leo-assaulted-circumstance-by-population- percent-cleared-10.xls

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Chapter 10 Use of Force 327

officers face, this section addresses the characteristics of slain officers, who their killers are, and the circumstances surrounding these homicides.

murdered Officers There were 541 law enforcement officers slain in the discharge of their official duties between 2001 and 2010 in the United States. Twenty-seven of these murdered officers were female. Three-quarters of the downed officers were over 30-years-old and six out of ten had contributed less than ten years of service at the time of their demise (FBI, 2011). Many of the deceased officers left behind spouses, young children, other family members, and friends who will mourn the unexpected loss of their loved ones for years to come.

Almost half the officers killed during the performance of their lawful duties fell in the South. Ninety-two percent of the officers were gunned down, some with their own service weapons that assailants wrestled away from them. Almost half the shooting inci- dents occurred from less than five feet away, while two-thirds took place with less than ten feet separating the combatants (FBI, 2011).

police Officer Killers The backgrounds of police killers are startling. Four out of five police assassins had a prior criminal arrest, and two-thirds had at least one prior conviction. Half of those ear- lier arrests were for violent crimes. Of the previously arrested assailants, a quarter had a weapons violation in their criminal records, 3% had a prior arrest for murder, and 15% had a history of attacking law enforcement officers (FBI, 2011).

Given this resume, overt hostility is a predictable choice. The responding officer is the only obstacle between the criminal and freedom. If the officer catches the criminal, the suspect probably faces a lengthy prison sentence as a habitual offender. Although murdering a police officer is a very serious crime, the risk of an increased prison term apparently holds little deterrence value for these calloused persons.

circumstance Surrounding police murders Figure 10.4 details the circumstances during which criminals killed law enforcement officers for the years 2001 through 2010. The most lethal situation was an ambush where the suspect was waiting for the officer to arrive on scene. Traffic encounters, responding to a disturbance, trying to effect an arrest, dealing with suspicious persons, and respond- ing to a burglary or robber that is unfolding are also perilous calls. Usually, the officer has never seen the suspect before and has no idea whether he or she is a fugitive. These people have little to lose by challenging the officer in order to remain at large.

Over half the murdered officers were not alone during the deadly confrontation. They were assisted by a backup officer. However, one cannot tell whether the seriousness

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328 Part 3 On the Streets

of the call dictated the dispatch of multiple offi cers, whether there was a breakdown in communication between the offi cers, or if the offi cers were outnumbered.

Off-Duty intervention Another stunning regularity is that some of the murdered offi cers were not on-duty at the time of the shooting. Ten percent of the law enforcement deaths during the 2001–2010 period occurred when the offi cers were off-duty. Almost half of these deadly off-duty encounters took place when offi cers stumbled into a robbery-in-progress or a burglary- in-progress (FBI, 2011). Unfortunately, it is not known whether the shooting resulted from a tactical error or a misidentifi cation.

Many jurisdictions employ a large number of offi cers and sometimes several differ- ent agencies may work in the same area. Offi cers may not know one another. In addition, a responding offi cer might not recognize a fellow offi cer dressed in street attire. All the uniformed offi cer sees when he or she rolls up to a robbery call is a person wielding

F i g U r e 1 0 . 4 number of law enforcement offi cers feloniously killed, by circumstances, 2001–2010.

Source: Federal Bureau of Investigation (2011). Table 19: Law Enforcement Offi cers Feloniously Killed, Cir- cumstance at Scene of Incident, 2001–2010. Law Enforcement Offi cers Killed & Assaulted, 2010. Washington, DC: U.S. Department of Justice. Retrieved on February 27, 2012 from ww.fbi.gov/about-us/cjis/ucr/leoka/ leoka-2010/tables/table19-leok-feloniously-circumstance-01-10.xls

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Chapter 10 Use of Force 329

a gun in a menacing fashion. Surprisingly, many agencies do not have a standard pro- cedure whereby non-uniformed members routinely identify themselves to other police units. The default is to assume that all members will respond appropriately under these circumstances (Vasquez, 1985).

The “24-hours-a-day cop” means that police officers must intervene in an emergency situation even if they are not on duty. This popular image led one researcher to focus on off-duty firearm discharges by New York City officers. Fyfe (1980) reported that about three-quarters of all off-duty weapon firings were for legitimate reasons. However, a police department review board ruled that only half these shootings were justifiable. In other words, many off-duty shootings were not reasonable actions. This finding, coupled with a lack of a radio and other tactical disadvantages, compelled Fyfe (1980, p. 81) to hint that off-duty personnel need to react very judiciously:

Off-duty police who intervene in potential violence . . . are typically not given any warning of impending events, but rather, are suddenly confronted by suspects whose guns are already drawn. Off-duty police are not typically in the company of colleagues, but are alone or with friends or family. They do not usually have instant access to police communications systems. They are usually in civilian clothes and are thus easily mistaken for armed suspects by arriving police.

These conclusions, coupled with a variety of experiences in other agencies, have caused police administrators to reconsider off-duty weapon policies. Some departments have relaxed the traditional armament requirement. They now leave the decision to carry an off-duty weapon up to the officer.

trends in police murders Figure 10.5 plots the annual number of officers murdered during the 1976–2010 time frame. The data show a declining pattern in officer deaths over the long-term. There were 111 police homicides in 1976. That number dipped to 42 in 1999 and then rose to 56 in 2010. Some observers contend that body armor is responsible for much of this decreased carnage. Body armor, also known as a bulletproof vest, consists of several layers of anti- ballistic panels worn beneath the uniform shirt. The thickness of the panels determines the caliber of bullet that the vest can stop. When a criminal shoots an officer in the pro- tected area, that officer still experiences some injury. However, the vest absorbs much of the impact and it reduces a potentially lethal attack to a non-lethal level.

Some officers object to the discomfort associated with wearing a vest. Such equip- ment is hot, particularly on summer days, and very bulky. It is also a very subtle reminder of what can happen. One officer (Doerner, 1985, p. 395) had the following to say:

I will never forget my first tour of duty . . . . Where does my name tag go? Where should I keep my handcuff key? How do I turn on the radio and tune it in? I

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330 Part 3 On the Streets

was totally lost. That was also the fi rst time I donned my vest, and I will never forget that look on my wife’s face. She was paralyzed with fear. The vest was a symbol of my combat readiness and the deadly fi nality of the streets. But I was too exhilarated to allay those trepidations. Those fears would haunt our rela- tionship later.

Undoubtedly, protective vests have reduced the number of offi cers who succumb to injuries sustained in the line of duty. Whenever one thumbs through police magazines there are advertisements that tout testimonials from offi cers who survived an attack. The International Association of Chiefs of Police (IACP) joined with the DuPont Company, which produces body armor, to form a “Survivors’ Club.” Membership consists of offi - cers who survived a lethal situation because they were wearing a vest at the time. It is estimated that body armor is responsible for the survival of over 3,000 offi cers to date (IACP/DuPont Kevlar Survivors’ Club, 2011). The success of this initiative prompted the IACP (2011), as well as the National Sheriffs’ Association (2011), to pass a resolu- tion urging its members to require that offi cers wear protective vests.

F i g U r e 1 0 . 5 number of law enforcement offi cers murdered annually, 1976–2010.

Source: Brown, J.M., & Langan, P.A. (2001). Policing and Homicide, 1976–98: Justifi able Homicide by Police, Police Offi cers Murdered by Felons. Washington, DC: U.S. Department of Justice, p. 21; Federal Bureau of Investigation (Annual). Law Enforcement Offi cers Killed and Assaulted. Washington, DC: U.S. Department of Justice.

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A second plausible explanation for the decline in criminally induced deaths among police officers focuses upon the changing availability of medical resources. A series of research projects suggests that surviving a potentially fatal attack depends upon pre- hospital emergency transportation and treatment systems, modern trauma facilities at nearby hospitals, and physician expertise (Doerner, 1983; Doerner, 1988; Doerner & Speir, 1986; Giacopassi & Sparger, 1992; Harris, Thomas, Fisher, & Hirsch, 2002; Long-Onnen & Cheatwood, 1992). While not testing this perspective directly, another research team points to body armor and the medical argument as persuasive explana- tions (Batton & Wilson, 2006). As Doerner (1988, p. 171) puts it, “an individual who sustains a life-threatening wound may not die automatically. Timely and appropriate medical intervention can thwart homicide and keep an aggravated battery from becom- ing a homicide.” Undoubtedly, greater advances in technology and in emergency medi- cal care will contribute further to declining homicide rates among police officers.

the ecology of police murders Police murder and assault rates are not distributed evenly or randomly throughout the country. As mentioned earlier, a large number of police officers are assaulted and killed in the South. These and other observations have prompted two questions. First, does violence against the police reflect violence in the community? Second, does the death penalty deter criminals from attacking the police?

police murders and community violence Although several studies had examined the distribution of police shootings of civilians up to that point, Lester (1978) noticed that the literature was surprisingly silent when it came to police as homicide victims. As a result, he undertook a state-level analysis of civilian-caused murder rates of police officers. Two points stood out from his analysis. First, Lester uncovered a strong influence from the overall homicide rate. As he (1978, p. 377) put it, “States with high murder rates in general also have high rates of police- caused homicides of civilians and civilian-caused homicides of police” (Lester, 1978, p. 377). Second, the results also isolated the southern region as a dominant feature in police murder rates. Lester concluded that civilian-generated deaths of law enforcement personnel reflect the overall level of violence in an area, a finding that other researchers have debated (Langworthy, 1986; MacDonald, Kaminski, Alpert, & Tennebaum, 2001).

His original results prompted Lester (1982) to undertake another study in which he focused upon police murder rates in major United States cities. The second study confirmed some of the earlier results. Police officers were more likely to be killed in the South, particularly in areas where guns were freely available. In addition, agencies with higher mortality rates tended to have lower budgets. It might be that lower expenditures reflected inferior training and equipment for street officers.

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332 Part 3 On the Streets

Some shortcomings associated with both these projects compelled Peterson and Bailey (1988) to undertake a more sophisticated analysis of police homicide death rates. These researchers wanted to find out whether police victimization rates mirrored civilian murder rates. Extensive analysis led to the conclusion that the two forms of homicide represented very different phenomena. Police killings did not correlate with the level of serious crimes. However, Jacobs and Carmichael (2002) found that both lethal and non-lethal attacks on police officers were more likely to occur in cities which had high violent crime rates. In addition, cities with marked levels of violence against police offi- cers were also characterized by large racial gaps in economic resources. All in all, these findings suggest that a complete explanation for the rate of police deaths by homicide still eludes researchers.

the Death penalty as protection One common belief is that capital punishment, through its deterrent effect, provides police officers with an added margin of security in an already hazardous occupation. Adherents maintain that death penalty provisions cause suspects to think twice about murdering officers in order to escape apprehension. Criminals avoid such extreme action because the law extracts the ultimate price of one’s life upon conviction. While only a handful of researchers have examined this notion, they all arrive at the same conclusion. The death penalty does not insulate the police from homicidal acts being perpetrated against them.

One of the earliest studies in this vein was a comparison of police killings in states with and without death penalty statutes. Sellin (1967) compared abolitionist states with death penalty states and found similar police murder rates for the 1919–1954 time period. A replication study over 1961–1963 found the same results. In other words, the “data lend no weight to the argument that the death penalty states afford more protection to the police” (Cardarelli, 1968, p. 451).

Problems in these early studies prompted several refinements. Bailey (1982), for example, reminded others that the presence of a death penalty provision on the books does not mean that this law is being implemented vigorously and uniformly. Adjusting for the actual use of the death penalty, along with a variety of additional research enhancements, allowed a more comprehensive look at the relationship between capital punishment and the murders of police officers. Using data from 1961 to 1971, Bailey could find no supportive evidence of a deterrence effect. In other words, the death pen- alty does not have the desired effect of reducing the number of police officers killed in the line of duty by the criminal element.

Of course, death penalty statutes themselves have been the source of much contro- versy. The United States Supreme Court struck down existing capital punishment statutes in the 1972 Furman v. Georgia decision. Four years later, revised death penalty statutes survived constitutional attack in the famous Gregg v. Georgia federal Supreme Court

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decision. In 2000, Illinois Governor Ryan halted executions in that state and commuted the sentences of all death row inmates to life imprisonment. A recent letter, written by a North Carolina death row inmate, has infuriated observers and spawned editorials in the law enforcement community explaining why the death penalty in its present format is an ineffective tool (Griffin, 2012). The prisoner tauntingly wrote:

Is the public aware that the chances of my lawful murder taking place in the next 20 years, if ever, are very slim? Is the public aware that I am a gentleman of leisure, watching color TV in the A.C., reading, taking naps at will, eating three well-balanced hot meals a day? . . . . The State of North Carolina has sentenced me to death but it’s not real. . . . Kill me if you can, suckers.

Tumultuous legal wrangling, coupled with a renewed wave of executions, provided another opportunity to ask whether capital punishment protects police officers from criminal attacks. Peterson and Bailey (1988) examined police murder rates from 1973 to 1984. Despite refinements, the researchers did not uncover evidence of a deterrent effect. These results prompted them (1988, p. 22–23) to write:

The safety of police officers from lethal violence is an important problem, but its resolution does not lie in capital punishment . . . . it appears futile to maintain hope that the lives and safety of police officers can be preserved by capital punishment.

Death benefit provisions Federal, state, and local governments, along with fraternal associations and police unions, provide special insurance provisions to the families of law enforcement personnel who lose their lives during the course of their duties. The federal government sponsors the “Public Safety Officers’ Benefits Program,” which donates $323,000 to the estate of any law enforcement officer who dies from a traumatic injury sustained in the line of duty (Janke, 2011). State governments usually have similar programs that parallel the federal provisions. The State of Florida, for example, donates $50,000 to the deceased officer’s family in the event of an accidental death while working and $150,000 if the officer is murdered in the line of duty (Florida Statutes 2011, § 112.19). Most states automati- cally underwrite college education expenses for the slain officer’s offspring. Usually, local governments contract with insurance companies to provide term life insurance and other benefits for employees. Some states require that city or county governments award money to the survivors of any police officer who dies as result of injuries sustained in the line of duty.

While these economic considerations may sound generous, the reader needs to keep three points in mind. First, the deceased officer did not give up his or her life voluntarily.

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Second, his or her children will never again experience the gentle hugs and soft caresses that they have come to expect and enjoy so often. Third, the fallen offi cer’s comrades instantaneously realize the fi nality of their chosen careers. In short, the survivors will suf- fer long after they part company with the downed offi cer. What these offi cers have traded in the name of justice far exceeds what they, their families, and friends receive in return.

police-involved homicides When people talk about police shootings, they are usually discussing police-involved homicides. Astonishingly, there is no systematic data bank that houses accurate fi gures pertaining to the entire spectrum of police reliance upon deadly force. For example, we do not know how many times offi cers unholster their weapons. Counts of averted shoot- ings where the suspect surrendered or was captured, how many offi cers discharged their weapons at suspects, how many civilians were wounded, or how many bullets missed the intended targets simply do not exist. One reason for this lack of documentation is that many police administrators view averted and non-lethal shootings as non-events (Geller, 1985). In other words, nothing out of the ordinary transpired, so there is no need for an extensive data collection system.

The only information that is routinely available pertains to offi cer-induced mor- tality statistics. Even this information contains distortions and is far from complete. For one thing, whether we count the number of bullets fi red or the number of persons killed is very important. An examination of shots fi red showed that Chicago offi cers struck their targets 18% of the time. New York City police came in with a 31% hit rate and Los Angeles offi cers registered a 62% contact rate. Only 5% of the shots fi red in Chicago produced a death, whereas the corresponding fi gure was 23% in Los Angeles (Fyfe, 1988, pp. 174–177; Geller & Scott, 1991). A study of police shooting incidents in seven cities found a resulting fatality in 29% of the cases (Milton, Halleck, Lardner, & Abrecht, 1977, p. 15). When taken as a whole, these numbers show that considerable variation exists in the number of shots landing on target and also in the number of sub- jects who succumb to their injuries.

A second irritant is that mortality data themselves are incomplete. There is a high degree of underreporting, sometimes as much as 50%, when one tabulates the number of police-instigated homicides (Sherman & Langworthy, 1979). While this fi gure repre- sents just an average, one can only assume that it masks considerable variation from one jurisdiction to the next. Thus, when we discuss homicides committed by police offi cers, the empirical picture is far from being complete and defi nitive.

incidence Despite the limitations associated with data collection, the FBI maintains a database which gathers information regarding justifi able homicide by police offi cers. Figure 10.6 presents

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the number of police justifi able homicides for the 1980–2008 time period. According to this database, police offi cers were involved in an average of 371 justifi able homicide inci- dents annually. As the graph shows, this number dropped during the mid-1980s, the time that the Garner decision (a topic that will appear shortly in this chapter) was rendered. After that, police-involved justifi able homicides returned to more typical levels.

Some viewers decry police use of violence, particularly lethal force, and become outraged at the number of civilians killed by the police. Before going further, how- ever, one must place these numbers in their proper context. One topic that has attracted researcher interest is the actions citizens take to protect them selves against criminals (Griswold & Massey, 1985; Kleck, 2005; Kovandzic, Kleck, & Gertz, 1998; Tark & Kleck, 2004). Law enforcement personnel shortages and typical patrol offi cer response times mean that an instantaneous police presence after a frantic call for emergency ser- vice is virtually impossible. As a result, many residents purchase guns to protect them- selves against intruders.

How often do citizens kill criminals? Unoffi cial estimates are that the number of justifi able civilian defensive homicides fall somewhere between 1,400 and 3,200 deaths

F i g U r e 1 0 . 6 number of justifi able homicides by police and citizens, 1980–2008.

Source: Cooper, A., & Smith, E.L. (2011). Homicide Trends in the United States, 1980–2008, p. 32. Washington, DC: Bureau of Justice Statistics. Retrieved on February 27, 2012 from http://bjs.ojp.usdoj.gov/content/pub/ pdf/htus8008.pdf

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each year (Kleck, 1990, p. 113; Kleck, 1997; Kleck & Gertz, 1995; Kleck, & Gertz, 1997). In addition, defenders wound another 7,700 to 18,500 attackers (Kleck, 1997). By comparison, the police are responsible for the deaths of less than 400 people every year. In other words, unoffi cial statistics reveal that civilians kill many more burglars and robbers than do the police. However, a recent analysis of the FBI Supplementary Homicide Reports (see Figure 10.6) suggests a much lower number of justifi able homi- cides committed by citizens (Cooper & Smith, 2011). In any event, this discrepancy echoes the point made earlier. That is, there are important and signifi cant gaps in the available information regarding the application of deadly force.

Another way to approach the topic of police shootings is to look at the higher num- ber of potential exposures that law enforcement offi cers have compared to citizens. This strategy involves thinking in terms of routine police assignments. Thus, Stratton and his colleagues (1985, p. 3) write:

There are an estimated 400,000 police offi cers in the United States, and if each one works approximately 250 days (a 5-day week for 50 weeks a year), they would be working 100 million days, or shifts, per year. If during an 8-hour shift, the police have an estimated 10 interactions with people each day, whether it be traffi c stops, providing assistance, family disturbances, pursuits, dealing with the mentally ill, or those under the infl uence of drugs, there would be 1 billion people contacts per year. In those 1 billion contacts, approximately 300 people are killed by the police each year.

Whether we think of the raw number of police shootings that take place annually, compare them with civilian use of guns in self-protection, or standardize the number of times offi cers resort to deadly force with respect to the number of calls answered, one point is clear. The number of civilians killed by law enforcement personnel in the course of their lawful duties is not an overwhelming amount. And, two-thirds of the assailants killed by the police died as a result of an attack upon a law enforcement offi cer (Cooper & Smith, 2011, p. 32). Police offi cers appear to exercise considerable restraint in the application of lethal force.

Although these fi gures concerning police-generated deaths paint a more benign and protective picture, one should not be lulled into thinking that all is well. For one thing, certain regularities have surfaced and cause some consternation. To be more specifi c, some people are alarmed because blacks are over-represented on the receiving end of police use of deadly force. While African Americans constitute approximately 12% of the American population, they accounted for 49% of the felons killed by the police in 1978, 39% in 1988, and 35% in 1998 (Brown & Langan, 2001, p. 4). Other observers note that fatalities from police intervention tend to be concentrated in the poorer, urban areas. To put it bluntly, charges of racism and class control arise when some research- ers examine police shooting data. Because these accusations are so serious, a section devoted to each criticism follows.

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Suspect race Study after study points out that minority members are over-represented in police homi- cide statistics. In other words, the relative proportion of blacks who die from police inter- vention surpasses what one would expect on the basis of population composition. Kobler (1975), for example, used a national newspaper clipping service to assemble a collection of instances in which police offi cers relied upon lethal force. He found that 42% of the civilians shot by police from 1965 to 1969 were black. Another overview summarizes a host of studies (Geller & Scott, 1991). The reports contained there show that 58% of the civilians killed in New York City were black. The fi gure for Birmingham was 80%, 76% in Oakland, 44% in Portland, 62% in Kansas City, 64% in Indianapolis, 89% in Detroit, and 80% for Washington, D.C. A compilation of the race of suspects killed by police offi cers in justifi able homicide situations from 1976 through 1998 appears in Figure 10.7. In short, researchers agree that minority members are overly involved in police shooting statistics. Where they disagree is on the explanation for these fi gures.

F i g U r e 1 0 . 7 violent crime arrest rates and police justifi able homicide rates, by suspect race, 1976–1998.

Source: Adapted from Brown, J.M., & Langan, P.A. (2001). Policing and Homicide, 1976–98: Justifi able Homi- cide by Police, Police Offi cers Murdered by Felons, pp. 36-37. Washington, DC: U.S. Department of Justice. Retrieved on March 4, 2012 from http://bjs.ojp.usdoj.gov/content/pub/pdf/ph98.pdf

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One researcher issued a scathing critique of police shooting practices. For example, Takagi (1974, p. 27) noted that

when a police officer kills a citizen, the official language is “deadly force,” sug- gesting to the audience that the use of force was legitimate. But when a police officer is killed, it is characterized as “violence,” and therefore, illegitimate.

Takagi leveled accusations of racism after he examined suspect involvement in police shootings. He noted that the police were killing more blacks than whites every year. After looking at black arrest figures, Takagi took an extreme position and con- cluded that the system is biased. He (1974, p. 30) wrote:

that police have one trigger finger for whites and another for Blacks . . . . Black citizens have long argued that the police are committing genocide on Black people, and there is increasing evidence that these killings are indeed murder, and that real justice is rarely if ever carried out in this process.

The seriousness of this matter has compelled some criminology and criminal justice researchers to pay closer attention to this racial imbalance. Two alternative explana- tions have arisen. They are the hazard hypothesis and the circumstances surrounding the shooting incident. Each of these views is examined further.

The Hazard Hypothesis Some researchers counter that one must look at shooting rates in terms of exposure. In other words, shooting statistics should reflect relative risk. The hazard hypothesis means that if minority members are over-represented in felony arrests, then their involve- ment in shooting incidents ought to parallel those arrest statistics. Following this logic, Figure 10.7 graphs violent crime arrest rates by suspect race against police justifiable homicide rates of white and black suspects. The lines reveal a large gap between the indicators. In other words, the black arrest rates are extremely elevated in comparison to the minority involvement in deadly encounters with the police. Thus, the data lend some credence to the hazard hypothesis.

While this position seems reasonable, it does contain one substantial drawback. That is, “If arrest statistics themselves reflect discriminatory law enforcement by the police, they obviously have little value for addressing the question of whether shootings are the result of race discrimination by the police” (Blumberg, 1985, p. 343). Keeping this admonition in mind, Fyfe’s review of the literature brings him to a final point. There is a strong relationship between the racial distribution of suspects involved in police shoot- ings and arrest patterns (Fyfe, 1988, p. 191). Thus, proponents of this position would maintain that black suspects’ involvement in deadly force situations parallels their par- ticipation in serious crime.

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Elective versus Non-Elective Shootings A second avenue of investigation calls for a look at the circumstances under which police fire at suspects. Fyfe (1982) provides a convenient dichotomy when he distin- guishes elective from non-elective police shootings. A non-elective shooting refers to a set of circumstances under which the officer has no option but to shoot. For example, units respond to a robbery-in-progress. A suspect, attempting to escape, begins shooting at police. The police officers return fire, striking the suspect. This call would be consid- ered a non-elective shooting.

An elective shooting refers to situations where a life is not directly at stake. Here the officer must decide whether to shoot or to hold fire. A fleeing suspect, who was thwarted in an armed robbery attempt, begins to run away from an officer who barks two loud orders to halt. The officer already has drawn his weapon in anticipation of a high-risk confrontation and has sighted in on the escaping criminal. If the officer decides to shoot in this example, he or she would be engaged in an elective shooting incident. The death of Edward Garner, the incident which prompted the Tennessee v. Garner et al. decision, would fall into this category. We will examine this prominent federal Supreme Court case in just a moment.

To illustrate this point further, Fyfe (1988, pp. 184-189) devised a continuum that represented a decreasing threat of potential lethality to a police officer. These events ranged from a high-risk scenario of an armed confrontation, to a call where the sus- pect is wielding a knife or a bat, to a purely physical assault with no weapons, to an unarmed and no attack situation. Recoding data from actual police shooting incidents, Fyfe found that some places had an inordinate involvement in elective deadly force situ- ations. Agencies that had developed highly restrictive shooting policies displayed the lowest rates of deadly force under elective situations. These results, coupled with other observations, have prompted the conclusion that the formulation of explicit policies gov- erning the use of deadly force exerts a tremendous impact on officer shooting behavior under both elective and non-elective conditions (Dunham & Alpert, 1995; Fyfe, 1979; Fyfe, 1988; Tennenbaum, 1994; Waegel, 19984a).

Other analyses pit the opponent’s race against the circumstances surrounding the fatal shooting. Fyfe (1981) found that twice as many black suspects killed by New York City police officers were armed with guns and fell into the non-elective category. He also discovered that police killings of white suspects were more likely to be elective shootings. Geller and Scott (1991) tabulated data from Chicago police shootings and reported that 69% of the black civilians, compared to 59% of the white suspects, died as a result of non-elective intervention. On the other hand, Fyfe’s (1982) analysis of Memphis shootings revealed that blacks held an unwelcomed edge over whites in terms of being fired upon under elective conditions.

Unfortunately, data limitations prevent any final conclusions from being drawn here. As one commentator (Blumberg, 1985, p. 344) adroitly put it, “even if the data indicate that an equal proportion of blacks and whites who were shot were unarmed, it still does not tell us if unarmed blacks are more likely to be shot since one does not know the

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relative number of unarmed whites and blacks who come into contact with the police.” Furthermore, these studies refer to the number of slain civilians. Harking back to ear- lier criticisms of deadly force statistics, the data do not index the number of persons wounded nor fired upon but not struck.

In any event, one point is clear. A disproportionate number of black suspects end up at the receiving end when the police invoke lethal force. While some people contend that racism permeates the decision to use deadly force, others subscribe to an alternative explanation. That view holds that the racial imbalance in police shootings reflects social inequality, economic deprivation, and all the other disadvantages associated with being a member of the lower class. As a result, we would do well to examine this perspective before reaching a final verdict.

Social Disparity This explanation for the over-representation of black suspects in police shooting statis- tics concentrates upon the relative position of minorities within American society and the role of the police in maintaining the status quo. It is no secret that an overwhelming number of blacks live in impoverished conditions. According to conflict theorists, the perspective we mentioned in Chapter 1, the police assume an important niche in the economic struggle wherever extreme levels of poverty persist. Economic imbalance can be maintained only by force, as opposed to consensus. As a result, conflict theorists would postulate that “one would expect greater levels of state coercion in areas where inequality is most pronounced because inequality is an unnatural condition that must be maintained by force” (Jacobs & Britt, 1979, p. 403).

Taking the number of civilians killed by police from 1961 through 1970, Kania and Mackey (1977) explored the ramifications of the conflict approach. Their analysis uncovered a significant relationship between police use of deadly force and poverty. The measures of poverty included the percentage of persons living on welfare, persons receiving food stamps, homes without running hot water or televisions, and low levels of educational attainment. In other words, states characterized by an inferior quality of life were more apt to record higher rates of police violence.

Some problems with this study prompted a more refined analysis. Taking the same homicide figures used by Kania and Mackey, Jacobs and Britt (1979) found that the level of police shootings depends on the amount of income inequality and violent crime. These findings led the researchers (Jacobs & Britt, 1979, p. 410) to conclude that:

most researchers have assumed that the police only employ force when they must deal with a violent populace. Because the violence was a significant predictor of the amount of police killings, our results do not challenge this assumption. But the results also show that even after this factor and others are controlled, the degree of inequality in the distribution of economic resources and eco- nomic power still predicts the use of lethal force by the police. That relationship

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suggests that a pluralistic model of the state which ignores differences between the haves and have-nots is incorrect.

authorization of Deadly Force The regulation of police use of deadly force has undergone major changes over the years. These developments require a discussion of the fl eeing felon rule, a prominent federal Supreme Court case, and agency policies. As you pass through this section, bear in mind that the decision to shoot is a solemn and unretractable option. Offi cers often have to make this choice within fractions of a second. In contrast, post-shooting investigations enjoy the luxury of quiet refl ection and can take all the time necessary to scrutinize the call under calm, non-combat conditions.

the Fleeing Felon rule Up until the mid-1980s, the prevailing legal restrictions regarding police invocation of deadly force relied upon English common law. The typical standard many agencies fol- lowed was the fl eeing felon rule (see Figure 10.8 for an example). The fl eeing felon rule allowed an offi cer to “use deadly force when he reasonably believed that he was justifi ed in arresting an individual for a felony, any felony, so long as the offi cer also reasonably believed that such force was necessary” (Hall, 1984, p. 27).

The early basis for the fl eeing felon rule was simple. Most jurisdictions lacked a standing police force. They relied upon citizens to resort to the practice of “hue and cry” that we talked about earlier in Chapter 1. If weapons were available, they were very

F i g U r e 1 0 . 8 an example of a “Fleeing Felon rule.”

A law enforcement offi cer . . . need not retreat or desist from efforts to make a law- ful arrest because of resistance or threatened resistance to the arrest. He is justifi ed in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped, or when necessarily committed in arresting felons fl eeing from justice.

A law enforcement offi cer or other person who has an arrested person in his custody is justifi ed in the use of any force which he believes to be necessary to prevent the escape of the arrested person from custody.

Source: Florida Statutes 1977, § 776.05 and § 776.07.

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primitive and useful only in hand-to-hand combat. Since virtually every single felony offense fell under capital punishment provisions, killing a criminal at the point of appre- hension merely sped up the inevitable outcome.

This doctrine vested police officers with huge discretionary powers. Some adminis- trators found this expanse to be overly broad. These officials, particularly the FBI, volun- tarily adopted deadly force policies that were more restrictive than statutory allowance. Ultimately, these policies limited the use of lethal force to only those situations in which a suspect was endangering the life of another. As we shall see in a moment, the distinc- tion between elective and non-elective shootings gained prominence.

an impetus for change Many police chiefs and administrators were growing uneasy with the issue of deadly force. On the one hand, police leaders wanted to stand behind their officers and protect them. On the other hand, however, there was a growing realization that some restrictions were needed to reduce liability for the misuse of lethal force. The following comments from a study funded by the Police Foundation (Milton et al., 1977, p. 3) aptly summarize the irony here:

Police departments are organized in a fashion that delegates greater amounts of discretion as one moves down the chain of command, and the courts are apt to perceive an absence of rules in this setting as particularly dangerous.

Until recently, many police departments were content not to commit their shoot poli- cies to writing (Milton et al., 1977, p. 47). Other departments saw the wisdom in writ- ten directives, but these guidelines were often vague and evasive. A report to the 1967 President’s Commission detailed the policy of one agency in a single sentence. That for- mulation read “Never take me out in anger; never put me back in disgrace” (Chapman, 1967). Until 1975, the shoot policy in Cleveland consisted of a single statement. “Officers and members should use only such force as necessary to effect the arrest and detention of persons” (Milton et al., 1977, p. 48). If these statements were indicative of the state of affairs in the not-so-distant past, then there was a gaping need for improvement.

The U.S. Department of Justice and the International Association of Chiefs of Police engaged in a research project to provide a state-of-the-art assessment on the topic of police use of deadly force (Matulia, 1982). The goal was to review developments and to suggest model policy guidelines that administrators could consult when revamping their lethal force policies. That report helped change the law enforcement landscape.

The report broadened the traditional definition of deadly force. Many departments restricted policy to just the use of firearms. They ignored other potentially dangerous objects, such as flashlights, batons, other impact weapons, and the controversial carotid artery “sleeper hold.” Thus, the report suggested that the term deadly force include any “force which is intended to cause death or grave injury or which creates some specified

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degree of risk that a reasonable and prudent person would consider likely to cause death or grave injury” (Matulia, 1982, p. 32).

One nebulous area that many administrators wrestled with concerned the gap between agency policy and existing state law. Could a police chief legitimately issue orders with which all personnel must comply if those orders were more restrictive than state law? In other words, if state law endorsed the fleeing felon rule, was it lawful for administrators to forbid officers to act under this statutory authorization? The situation becomes even stickier if an officer acted according to state law but contrary to departmental policy. Take, for example, an officer who fired at a fleeing felon. Although this officer’s actions might be perfectly legitimate under state law, the agency could discipline this officer for violating local policy. Aware of this dilemma, the report recommended that guidelines establish a clear delineation between civil, criminal, and administrative actions.

The report went on to insist that deadly force be applicable only to those situations where it is necessary “to protect himself or others from what he reasonably believes to be an immediate threat of death or (near death) critical bodily harm” (Matulia, 1982, p. 34). Such a standard explicitly rejected the older fleeing felon rule and replaced it with a focus upon the immediate danger to the officer or a civilian imperiled by the suspect. The report also regarded any distinction between juveniles and adults to be superfluous. Instead, the critical concern was the degree to which the suspect placed innocent human life in jeopardy.

In order to make officer actions more responsible, the report suggested several pro- hibitions. Officers should not fire a weapon if there was a chance that a bystander would suffer injury. Firing shots at or from moving vehicles for apprehension purposes was too risky. Also, there was a recommendation to ban the use of warning shots. The last feature is important for two reasons. First, there is always the possibility that a warning shot could strike an unintended target. Second, there is some fear that other officers may not be able to differentiate a warning shot from an intended shot. Also, responding offi- cers might interpret the shot they heard as the suspect firing upon the pursuing officer. In short, the only time an officer may resort to the use of deadly force is to protect life.

Tennessee v. Garner Two members of the Memphis Police Department responded to a prowler complaint around eleven o’clock one night. A concerned neighbor advised the officers that the house next door was not occupied. But, she had heard glass breaking and saw a light go on inside the house.

One officer covered the front of the house and the other officer went to the rear. While checking the back of the house, the officer heard the rear door slam. He then observed a figure run through the backyard. The officer illuminated the suspect with a flashlight and yelled at the suspect to stop fleeing. Although the officer did not see any weapons in the suspect’s hands, he was not able to determine whether the suspect was armed or unarmed.

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The suspect ignored the warning to halt and began to climb over a fence. The officer knew that the suspect would escape if he made it over the fence. As a result, the officer drew his service weapon and fired a shot. The bullet struck the suspect in the head and he fell to the ground. An ambulance transported the suspect to a hospital where he later died. Meanwhile, the officers found some money and a purse taken from the house in the suspect’s possession. Evidence inside the house indicated that a burglary had taken place.

The suspect’s father filed suit, alleging that the officer’s actions amounted to a depri- vation of his 15-year-old son’s constitutional rights. The law authorized an unreason- able seizure of a suspect who was not an immediate serious threat to the safety of the officers or to other members of the community. Two counter-arguments surfaced. First, Tennessee had a statute that allowed officers to apply deadly force against fleeing felons. Second, the Memphis Police Department operated under a policy consistent with state law. That directive affirmed the use of lethal force in situations such as the one this offi- cer had encountered.

The U.S. Supreme Court struck down the Tennessee law in a 6-3 decision. The Justices ruled that the invocation of deadly force to seize a burglary suspect far exceeded the test of reasonableness. The majority opinion (Tennessee v. Garner et al., 1985, p. 10) stated:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to appre- hend him does not justify the use of deadly force to do so.

In order to prevent any misunderstanding about what its ruling stood for, Justice White went on to clarify the Court’s stance. He (Tennessee v. Garner et al., 1985, p. 11) wrote:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitution- ally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

The Court ruled that the fleeing felon rule was no longer applicable for four reasons. First, the restructuring of capital punishment laws removed the long list of felonies from these provisions. Burglary, for example, is no longer a capital crime. Generally speak- ing, the death penalty is reserved for premeditated murder.

Second, the fleeing felon rule was in vogue when weaponry was primitive. In those days, deadly force meant hand-to-hand combat. Modern weapons do not require the same dangerous proximity.

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Third, the popularity of the fleeing felon rule has eroded. Many jurisdictions explic- itly reject this common law premise, while others have made substantial modifications. Even law enforcement officials themselves recognized the necessity to limit discretion through restrictive deadly force policies.

Finally, the Court attempted to quell anticipated criticisms from the law-and-order sector. The Justices tried to reassure the public by noting that crime had not soared in jurisdictions that already had rejected the fleeing felon rule.

Although Tennessee v. Garner became the immediate rule of the land, not all the Supreme Court Justices embraced that decision. Justice O’Connor argued in a dissent- ing opinion that this ruling negates any deterrent effect. In her view, Garner invites property felons to attempt an escape now that the police are barred from shooting them. Furthermore, the very basis for the Court’s decision, that the individual has a fundamen- tal interest in his own life, is contradicted by the facts in this case. Justice O’Connor noted that the officer fired only after the suspect disregarded the order to halt. The sus- pect would still be alive today because “to avoid the use of deadly force and the conse- quent risk to his life, the suspect need merely obey the valid order to halt” (1985, p. 29). Justice O’Connor (1985, pp. 29–30) expanded this point:

The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The police officer was not certain whether the suspect was alone or unarmed, nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.

post-Garner Developments In addition to bringing about a number of changes, the Garner decision highlighted a dilemma facing law enforcement. As Alpert and Smith (1994, p. 486) explained:

On the one hand, citizens expect the police to be aggressive in the enforcement of the criminal law against serious offenders. On the other hand, citizens expect the police to show restraint when they are personally involved. In effect, a dual standard of conduct is expected of the police in citizen encounters.

The most immediate post-Garner effects surfaced in three areas. They include deadly force policy guidelines, policies governing the application of force in general, and a greater focus on less-lethal weaponry. A discussion of each of these items follows.

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Deadly Force policy revisions The most immediate effect of Garner was to overturn extant fl eeing felon statutes. Police agencies had to revise deadly force policies to bring them into line with the Court’s hold- ing. Today, police offi cers can shoot a suspect only if that person poses a direct and immediate threat to the offi cer or to the safety of others. Some observers would contend that even this formulation leaves too many gray areas open to offi cer discretion (Fyfe, 1986; Fyfe & Blumberg, 1985; Griswold, 1985). In any event, Figure 10.9 contains an example of a lethal force policy in the wake of the Garner decision.

rethinking Use-of-Force Strategies The attention devoted to deadly force issues also sensitized police administrators to the need to address the application of physical force which is, by far, much more common in police work than lethal force. One approach was to construct formal guidelines that specify what types of non-lethal responses would be appropriate under various condi- tions (Frisby, 1994). These formal stipulations, sometimes referred to as a use-of-force matrix, defi ne what actions are acceptable and what actions constitute excessive force. Figure 10.10 displays the Florida Force Continuum Matrix that outlines what tradition- ally has constituted reasonable force in that state (Hough & Tatum, 2012).

The left-hand side of the matrix is titled “Resistance Levels” and indexes the sus- pect’s actions. The continuum starts at Level 1 with the suspect being present at the scene. Level 2, Verbal Resistance, refers to instances where the person refuses to comply with the offi cer’s directives or tries to control the situation. Passive Physical Resistance occurs when the individual refuses to comply with or respond to the offi cer’s directives. For example, a demonstrator who remains seated on the ground despite being told to leave the area would fi t here. The next notch is Active Physical Resistance. What this level covers are any evasive actions geared towards defeating an offi cer’s attempt to gain physical control of the suspect. Bracing, trying to pull away, or not allowing the offi cer to get close fi t this category of disobedience. Level 5, Aggressive Physical Resistance, takes place when the suspect attacks the offi cer in a non-lethal manner. Kicking and punching are common activities at this level. The fi nal niche, Aggravated Physical Resistance, is when the offender launches an attack that has the potential to cause death or great bodily harm to the offi cer.

The bottom portion of Figure 10.10 sketches the appropriate corresponding offi cer responses to the suspect’s behavior. Level 1, Offi cer Presence, refers to the offi cer being recognizable as a law enforcement agent. Verbal Control alludes to any communication or orders the offi cer issues to the subject. The third level, Physical Control, involves physical contact between the offi cer and the uncooperative suspect. These techniques may include a variety of pain-compliance tactics, such as a wrist lock, a come-along, or a chemical irritant like oleoresin capsicum (OC) spray. Level 4, Intermediate Weapons, means that the offi cer must employ a baton or fl ashlight as an impact weapon to gain control of the suspect. The location of an electronic control device (ECD), such as a

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F i g U r e 1 0 . 9 an example of policy guidelines regarding the use of deadly force.

Deadly Force (lethal Force): Is that level of force that would lead a reasonable member to objectively conclude that its use poses a high risk of death or great bodily harm to its target, regardless of whether or not it actually occurs.

1. Deadly force must be used only as a last resort or in emergency situations where other means cannot be considered, consistent with Florida Statutes and Sheriff’s Offi ce directives.

2. Justifi cation for using lethal force is those facts known or perceived by a mem- ber at the time lethal force is utilized.

3. A member may use lethal force to protect himself/herself or others from what he/she reasonably believes to be an immediate threat of death or serious bodily harm.

4. A member may use lethal force to effectively capture or prevent escape if he/ she reasonably believes that the suspect has committed a felony involving the use, or threatened use, of lethal force and he/she has probable cause to believe that the suspect poses a signifi cant threat of death or serious physical harm to the member or others, and where feasible, some warning has been given.

5. No distinction shall be made relative to the age of the intended target of lethal force. Self-defense and imminent threat shall be the only policy guidelines for employing lethal force.

a. Members may not use lethal force to affect the arrest or prevent the escape of a misdemeanor offender.

b. Members of the agency are not authorized to use a fi rearm to:

(1) Fire warning shots. When use of lethal force is warranted, members shall fi re for maximum effect.

(2) Shoot at or from a moving vehicle, or otherwise attempt to disable an occupied vehicle or other occupied conveyance, except in instances that does not endanger innocent persons and are justifi ed by extenuat- ing or exigent circumstances.

Source: Leon County Sheriff’s Offi ce (2011). General Order 1.5: Use of Force. Tallahassee, FL: Leon County Sheriff’s Offi ce. Retrieved on March 2, 2012, from http://lcso.leonfl .org/public_records/dms_documents/ 1536.pdf

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Taser, may vary from one agency to the next at either Level 3 or Level 4. The next level, Incapacitating Control, contains any effort to immobilize the suspect or to render the person temporarily unconscious. The fi nal spot on the scale, Deadly Force, captures any effort that requires the offi cer to resort to deadly force or any action that could result in great bodily harm.

The use-of-force matrix spells out the rules of engagement for offi cers. It identifi es a continuum of force and specifi es a protocol of actions that are suitable responses for the type of resistance a suspect displays. Two principles are of paramount importance. First, if the offi cer’s application fails to gain compliance, then he or she is entitled to escalate to the next level. Second, once the offi cer subdues the suspect, he or she must de-escalate to the minimum amount necessary to maintain control over the suspect. Offi cers who abide by these principles are exercising “reasonable force.” Any upward deviation from these guidelines would exemplify instances of “unreasonable force” or, perhaps, “exces- sive force.”

F i g U r e 1 0 . 1 0 the Florida Use-of-Force/levels of resistance matrix.

RECOMMENDED

USE OF FORCE / LEVELS OF RESISTANCE MATRIX

6 Aggravated Physical

5 Aggressive Physical

4 Active Physical

3 Passive Physical

2 Verbal

1 Presence

Checked areas represent suggested, acceptable, beginning response levels. Any response in an unchecked area requires explanation. Refer to definitions for each level of resistance and response.

Officer Communication Physical Intermediate Incapacitating Deadly Presence Control Weapons Control Force

1 2 3 4 5 6

RESPONSE LEVELS

R E S I S T A N C E L E V E L S

Source: Criminal Justice Standards & Training Commission (2002). Defensive Tactics Curriculum: Legal and Medical Risk Summary. Tallahassee, FL: Florida Department of Law Enforcement.

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As you can see, an officer is justified in applying deadly force only if each earlier step fails. However, if the situation is so dangerous that blind conformance to this system of progressive intervention jeopardizes the officer’s own life or well-being, skipping steps and accelerating up the continuum is permissible. For example, if an officer respond- ing to a robbery-in-progress encounters an active shooter, then he or she is entitled to respond immediately with Level 6 force. The key element throughout this entire system is that the officer’s response must be commensurate with the level of resistance that he or she encounters.

The final step when Florida established this use-of-force protocol was to submit it to a medical team for review. The purpose of this analysis was to determine whether the non-deadly tactics were medically defensible. The conclusion reach by these medical experts (Criminal Justice Standards & Training Commission, 2002, p. 30) stated:

After a thorough review of the defensive tactics techniques presented, it is our determination that some minor or moderate injuries are to be anticipated in association with use of the approved defensive tactics techniques, if the tech- nique is applied properly and in accordance with the Recommended Response to Resistance Matrix. However, given these parameters, great bodily harm or injuries resulting in death are not anticipated. The severity of the injury to either the officer or the subject is directly related to the level of suspect resistance and the technique applied by the officer.

Graham v. Conner These formulations received further guidance from the U.S. Supreme Court in its Graham v. Conner (1989) decision. Graham was a diabetic. One day when he began feeling ill, Graham asked his friend to drive him to the store to get some orange juice. When they arrived at the store, Graham quickly ran inside. Seeing that the check-out line was lengthy, Graham made a hasty exit. Graham and his friend then drove off.

An officer, who observed the hurried entry and exit at the store, thought that a theft might have occurred and conducted a traffic stop. During the stop, Graham got out of the vehicle and began acting in an agitated fashion before passing out. Officers hand- cuffed Graham. Upon regaining consciousness, Graham began creating a verbal com- motion and the officers restrained him on the hood of the car. Eventually, four officers forcibly placed the struggling Graham into the rear of the police car. After the officers determined that nothing had transpired at the store, they released Graham from custody. Graham, however, sustained a broken foot, cuts and bruises, and an injured shoulder dur- ing the altercation. As a result, he filed a 1983 civil lawsuit contending that the officers had used excessive force.

Rejecting the analysis used by the lower courts, the U.S. Supreme Court Justices framed the incident within the context of the Fourth Amendment. Drawing upon the earlier Garner (1985) decision, the Justices explained (p. 395) that

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all claims that law enforcement officers have used excessive force deadly or not in the course of an arrest, investigatory stop, or other “seizure” of a free citi- zen should be analyzed under the Fourth Amendment and its “reasonableness” standard . . . .

The Court went on to explain that the proper analysis of such a case requires a look at three factors. They include a consideration of the seriousness of the crime, whether the suspect presents an immediate threat, and whether the suspect is actively resisting apprehension. Furthermore, the appropriate standard one should use when viewing offi- cer actions is “the perspective of a reasonable officer” rather than “the 20/20 vision of hindsight” (p. 396). The reason for this standard is that

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 nec- essary in a particular situation (pp. 396–397).

What Graham did was that it set the tone for how officers should be trained to react in a given situation. The Florida Criminal Justice Standards and Training Commission recently revised the pre-service academy use-of-force training lessons to reflect four basic considerations. The first step calls for an assessment of the level of threat the suspect presents to the officer. The second aspect involves an evaluation of pertinent situational factors. Relevant factors might include the relative size of the suspect vis-a-vis the officer, the suspect’s demeanor, the officer’s training background, and other similar variables. A third point is the officer’s own assessment of his or her capability to control the suspect. Finally, given the totality of the circumstances, the officer’s actions must also be consis- tent with state law, agency policy, and his or her training. Essentially, then, the officer’s actions must be reasonable and the amount of force proportional to the circumstances.

less-lethal Weaponry One thing that these revised policy formulations accomplished was to draw attention to the need for more intermediate weapons or tools. Although the original term was less-than-lethal weaponry, the recognition that deaths sometimes did result from these applications prompted the adoption of the more suitable term less-lethal weaponry. As Robin (1996, p. 1) put it, “the basic accouterments of police work—the night stick and firearm—have not changed in almost 150 years. As a result, officers may be obliged to choose between a too weak or unnecessarily strong response in violent confrontations, for lack of an effective alternative weapon.”

The purpose of these supplementary tools is to give officers more options than just open hands and a firearm when trying to apprehend uncooperative suspects. These

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devices are intended to gain pain compliance or to immobilize a combative person, while minimizing any harm to the suspect or to the arresting officers. Some agencies mandate that officers carry department-issued less-lethal weapons with them at all times. This requirement makes sense in light of the various steps that appear in the continuum of force discussed in the previous section. Of course, these technological innovations have had to hurdle a number of questions about their effectiveness under various field condi- tions, safety concerns, training, cost, and liability. The following materials examine two recent additions to the less-lethal arsenal.

Oleoresin Capsicum Spray People sometimes refer to oleoresin capsicum spray (OC) as “pepper spray.” OC is derived from a naturally occurring inflammatory substance found in cayenne peppers. When a person is sprayed in the face with OC, this ingredient causes the eyes to tear and swell shut, mucous to drain profusely from the nasal passages, and bronchial passages to constrict. This effect causes the suspect to become disoriented, makes breathing labored, and prompts the attacker to desist.

The use of OC has been the subject of some controversy. For example, the American Civil Liberties Union of Southern California (1993) raised questions about the safety of this product when several suspects died after police officers sprayed them with OC. However, a post-mortem assessment sponsored by the International Association of Chiefs of Police concluded that OC was not responsible for any in-custody deaths that occurred after an application (Granfield, Onnen, & Petty, 1994). Instead, it appears that the underly- ing cause of many of these deaths were pre-existing physical conditions or drug toxicity. Another analysis of in-custody deaths that occurred after the application of OC cleared the spray as not being the immediate cause of death (National Institute of Justice, 2003). Other researchers found no medical reason that would justify removing OC from the law enforcement toolkit (Chan et al., 2001). Field assessments indicate that OC is extremely useful when confronting non-cooperative subjects (Geller & Scott, 1992, pp. 378–382; Kaminski, Edwards, & Johnson, 1998; Lumb & Friday, 1997) and prevents injuries to both officers and combatants (Alpert et al., 2011; Kaminski, Edwards, & Johnson, 1999; Morabito & Doerner, 1997; National Institute of Justice, 2003).

Figure 10.11 explains OC procedures in one agency. Most notably, these directives place OC at Level 3 in the Use-of-Force Matrix. The guidelines also advise members to resort to this technique whenever possible and before turning to impact weapons. Finally, personnel must prepare a special report for administrative review whenever OC is applied to a suspect. An example of a use-of-force report appears in Figure 10.12. As the reader can see, these reports allow the officer an opportunity to explain how his or her actions during the situation were reasonable and complied with the use-of-force matrix, what tools the officer used in response to the suspect’s behavior, documents any injuries stemming from the incident, and provides a general narrative about what trans- pired during the incident.

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F i g U r e 1 0 . 1 1 an example of policy guidelines regarding the use of a chemical spray.

chemical agent—individual protection Device (iDp)

1. An issued chemical agent IPD may be used when a member has authority to take a person into custody and passive resistance or higher is encountered. The chemical agent’s physiological effects make its use more suitable in certain situations. Proper use may aid in making an arrest with minimum force.

2. Members authorized by the Sheriff shall be permitted and encouraged to carry an approved chemical agent IPD while on duty, only after successful comple- tion of a course of instruction provided or approved by the agency.

chemical agent (iDp) procedures

1. Members may use an approved chemical agent IPD when they are required to use physical force for protection from assault and/or to take a person into custody. The chemical agent IPD may also be used against attacking dogs.

2. The chemical agent should be used before “hands on” techniques or the use of impact weapons (batons, etc.) when possible.

3. To prevent the hydraulic needle effect, when possible, the chemical agent IPD should not be sprayed directly at a subject’s eyes at distances of less than 3 feet.

4. After spraying the suspect with the chemical agent, the arresting member will then handcuff the individual to minimize the threat of injury to either the member or suspect. The member will then follow approved decontamination procedures.

5. Any discharge, either intentional or accidental, will necessitate the immediate notifi cation of the member’s immediate supervisor. However, testing the canister periodically in a safe place shall not require the member to notify a supervisor.

6. When a member of the agency uses a chemical agent IPD, either intentionally or accidentally while responding to a non-compliant person, he or she must pre- pare a Response to Resistance Form and forward to the Bureau Commander along with a copy of the Offense Report. The immediate supervisor will investi- gate each incident and ensure proper forms are submitted.

Source: Leon County Sheriff’s Offi ce (2011). General Order 1.5: Use of Force. Tallahassee, FL: Leon County Sheriff’s Offi ce. Retrieved on March 2, 2012, from http://lcso.leonfl .org/public_records/dms_documents/ 1536.pdf

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Electronic Control Devices Another addition to the less-lethal weaponry market is the Taser or what some people refer to as an electronic control device (ECD). An ECD fires a dart that is connected to a battery and emits short bursts of electricity. The goal is to disrupt the suspect’s volun- tary motor responses, render him or her incapable of continued resistance, and allow the officer to subdue the suspect without any injury to either party. Under ideal conditions, a “Tased” suspect would go limp, fall to the ground, and be taken into custody without further incident. The goal, which studies verify as accomplished, is to take the suspect into custody without injury or minimal injuries to the suspect or the arresting officer (Alpert & Dunham, 2010; Alpert et al., 2011; Taylor & Woods, 2010).

In a manner reminiscent of the OC controversy, Amnesty International (2004) issued a report alleging that Taser deployments were responsible for a number of unwarranted in-custody deaths. Once again, independent medical assessments implicated a number of underlying conditions, such as heart disease or drug ingestion, as problematic (for a complete review, see Simms, 2006). Medical reviews also support the continued use of ECDs (National Institute of Justice, 2011). As one might imagine, these developments have prompted a greater emphasis on policy development (see Figure 10.13), training, monitoring, record-keeping, and refining policy and practice (Adams & Jennison, 2007; Gansler, 2009; Melekian, 2011).

Other Tools Other products on the market include modified firearms which fire such projectiles as bean bags or rubber bullets, nets used to entangle people, laser lights that disorient suspects, OC foam as opposed to spray, sleep-inducing chemical agents, rear-seat air bags to contain flailing arrestees who are trying to kick out doors or windows on police vehicles, and the like. The federal government has a program which promotes the devel- opment of other promising devices. As you can see, less-lethal weaponry has much room for future expansion, raises a host of legal as well as operational questions (Downs, 2007; Jilka, Scott, Gould, Crawford, & Copeland, 2001; Klinger, 2007; Vike & Chan, 2007), and occupies a much-needed niche in the use-of-force matrix.

justifying the Use of Force Every time a police officer faces an adversary and “squeezes off a round” or engages in a physical confrontation, there must be an accounting of the event. The police organi- zation presents its public version after investigating all the details. The fellow officers who surround the shooter involved in the incident give their own versions. Finally, the individual officer himself or herself goes through a reflective process. The following materials address the first two layers.

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F i g U r e 1 0 . 1 2 an example of a Use-of-Force Form.

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F i g U r e 1 0 . 1 2 c O n t .

Source: Lake City Police Department (2010). General Orders 152: Use of Force, General Orders Manual. Lake City, FL: Lake City Police Department. Retrieved on March 5, 2012 from http://www.lcfl a.com/documents/ Police/Use%20of%20Force.pdf

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F i g U r e 1 0 . 1 3 excerpts from the University of Florida police Department taser policy.

The Taser is deployed as an additional police tool and is not intended to replace fi rearms or self-defense techniques. The Taser may be used to control a dangerous or violent subject when deadly physical force does not appear to be justifi ed and/ or necessary and to prevent a subject from harming himself or herself, or to prevent the immediate destruction of evidence or property when other means are impracti- cal or unsafe.

A person who has been subjected to the Taser, or its probes, shall be treated as follows:

1. Once in custody, the arresting offi cer shall advise Communications to have EMT/paramedics respond to the scene.

2. The offi cer will inform the EMT personnel that the person has been subjected to the Taser and relate the approximate time the action occurred.

3. If the probes penetrate the skin, the puncture sites shall be brought to the atten- tion of the EMT.

4. Only EMTs or the emergency room staff shall remove Taser probes that are embedded in soft tissue. The probes will be disposed of in a Sharp’s Container in accordance with biohazard regulations. The cartridge and remaining high voltage wires will be packaged and sealed in a paper bag and turned over to the Training Division Commander.

5. After examining the affected person, the EMT’s will make the determination if the person should or should not be transported to the hospital.

6. Members must be aware that one easily overlooked aspect of injury in shooting a subject with the Taser is that of falling from a standing position. A thorough physical examination with particular emphasis on injuries resulting from the fall should be performed by the EMTs.

7. A transporting offi cer must immediately advise booking personnel upon the arrival at the jail that a Taser was used on the prisoner being booked.

Source: University of Florida Police Department (2007). Use of Force, Department Standards Directive. Gainesville, FL: University of Florida Police Department. Retrieved on March 5, 2012 from http://www. president.ufl .edu/incidents/2007/tasing/UFPD-use-of-force-policy.pdf

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the police Organization One dreaded phrase that echoes through the halls of any police agency is the intonation of the term “vicarious liability.” Vicarious liability, which Chapter 12 covers in greater detail, means that certain parties, in addition to the involved officer, may incur partial responsibility or civil liability for the officer’s actions. As you can imagine, damage fig- ures for inappropriate actions can climb quite high.

Whenever a police officer shoots a suspect, all the players swing into action. Personnel and training records of the shooter are collated and assembled in an attempt to ward off a civil liability lawsuit. The agency anticipates that the survivors or the estate will file a wrongful death civil lawsuit. The typical lawsuit will argue that the shooting amounted to an unreasonable seizure under the Fourth Amendment. Therefore, the offi- cer’s actions represented an invasion of the decedent’s federal civil rights.

The persons named in the suit will include the officer who was instrumental in the suspect’s demise, the officer’s supervisors, the agency head, and the employing govern- mental entity. One way for the agency head to become disaffiliated from the suit is to show there was a responsible use-of-force policy in effect at the time of the fatal inter- vention. Another avenue is to prove that the shooter had received adequate training in the application of force. Displaying the officer’s training credentials and explaining how the agency had taken every plausible step available to weed out undesirable officers from the rank and file usually suffices.

Since police departments are public agencies, there is a need to conduct a prompt investigation and to release accurate details as quickly as possible. This review aims to accomplish two things (Van Maanen, 1980, pp. 150–151). The first is to explain why the officer was at the scene and what lawful duties were being performed. The second aspect is to show why this force option was necessary and how the officer used it in the prescribed manner.

In order to satisfy both these mandates, the agency press release will begin by out- lining why dispatch sent the officer to that location. Next, there will be a description of the level of threat the officer faced. If the violence escalated during the call, the release will detail this fact. Any less-lethal alternatives the officer attempted to use and how the officer exhausted these courses of action will be reviewed to show how the officer had no other option except to escalate. All these details will track the routine manner spelled out by departmental policy. This ritual paints the impression that there was nothing out of the ordinary and reassures the public that the unfortunate situation was reasonable and necessary.

police Officers The locker room sentiment that surrounds a shooting incident has important ramifica- tions for police officers. The service weapon is an officer’s most prized tool. He or she

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lives with it 24-hours a day, seven days a week. The fear of losing the badge and gun, even for just a few days of disciplinary action, is a frightening prospect (Doerner, 1985, p. 397). The gun is a subtle reminder of who one is. This constant armament, training exercises, and the engulfing world of violence reinforce the notion of ever-readiness. All these traits gel into a social milieu. As a result,

the occupational subculture of the police involves a set of understandings, beliefs, practices, and a language for talking about all problematic aspects of their work, including the shooting and killing of citizens. This perspective includes both prospective beliefs that influence the decisions of officers to use their weapons, and retrospective interpretations of events that have already occurred (Waegel, 1984b, p. 145).

Prospective Beliefs Every officer must learn to overcome the moral compulsions against taking someone else’s life. Prospective beliefs enable officers to justify their actions well in advance of a shooting event. There are at least three such neutralization techniques.

The common adage, “I’d rather be judged by twelve than carried out by six,” popu- larizes the first release. This saying conveys the notion that police work is dangerous and unpredictable. Split-second decisions require the officer to anticipate what could happen rather than take a wait-and-see attitude. For instance, a suspect who reaches into a pocket might be pulling out a gun. War stories often contain a lesson in street smarts that helped an astute officer survive a potentially fatal encounter. As a result, this belief sanctions the use of superior fire power whenever a suspect makes a furtive move out of the ordinary.

Occupational experiences generate the final prospective belief. Law enforcement personnel know that the criminal justice system is absurdly ineffective. The system sometimes frees factually guilty suspects on mere technicalities. As a result, the goal of some police action is to show these hoodlums that there is a price to pay for their atrocities. In short, this pattern is reminiscent of the cynical officers we encountered earlier in Chapter 5.

Retrospective Beliefs The other justifications are retrospective beliefs. These accounts are the ways in which police officers explain away their actions after the fact. These are “socially approved vocabularies for reducing or relieving responsibility, or for neutralizing an act or its consequences” (Waegel, 1984b, p. 150).

These techniques deflect criticism by calling upon a host of shared experiences. The “suggestive move,” “it was either him or me,” “accidental discharge,” “a struggle ensued,” or any other beliefs are resurrected in borderline shoots to relieve the officer of legal responsibility. These devices allow ample reconstruction of the events in terms that all observers can understand, given their past law enforcement experiences.

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Types of Force Another way of looking at police use of force is to distinguish between legal, normal, and excessive levels (Hunt, 1985). Legal force is the application of sufficient coercion to take a person into custody. Police academy training devotes considerable time to explaining the limits of legal force and how violence exerted by a suspect deserves a proportionate response. In other words, escalation along the continuum of force must correspond step- by-step to the type of threat posed by the uncooperative suspect.

These limitations go by the wayside when the rookie hits the streets. Out in the real world, beginning officers learn when it is appropriate to apply normal force. Normal force is the application of sufficient pain to gain compliance. A boisterous drunk may refuse to step outside the bar to talk with the officer. The drunk suddenly may find him- self being escorted outside unceremoniously with an arm pinned behind his back.

Another important lesson comes when a rookie learns to anticipate violence. A major ingredient in police work is the ability to foresee a potential threat before it mate- rializes. It is here that rookies find out what reactions are acceptable and discover how to engage in a controlled struggle. The way a rookie combines these fundamentals gen- erates a reputation among older officers about whether this new officer can handle the streets. Look at one rookie’s experiences (Doerner, 1985, p. 396):

My capacity was like a zero-sum game. If the suspect meekly submitted to my authority, I could handle the call; if the suspect resisted my authority, my only option was to escalate and hurt him physically, risking a civil suit . . . . I did not know what to do with my hands. My partner Duane lured me down to a local gym, and I began a weight lifting program to increase my strength. The second phase of my physical rehab program was to learn judo. Time after time, I lay on the mat looking up at the ceiling, wondering what my opponent had done to dump me.

Police officers become acclimated to using normal force by developing two different strategies. The excuse allows an officer to “deny full responsibility for an act of force but acknowledge its inappropriateness” (Hunt, 1985, p. 325). These reactions generally occur in highly charged situations where emotions run high and the officer is punishing a repulsive suspect. For example, a traffic violator who leads police on a wild and reckless auto pursuit may face a rough reception for not complying with the order to stop. Other times officers invoke the excuse by claiming they simply lost control or understandably overreacted to an attack (Doerner, 1985, pp. 396–397):

Once outside, the drunk became more and more agitated and finally spit in my face. Almost instantly, I became enraged. I wheeled the cuffed prisoner around and struck his face with my hand. Blood gushed, and he spit out two teeth between the flaps of what used to be his upper lip . . . . Fortunately, I did not have my flashlight in my hand at the time. The drunk would have eaten it.

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Another way to explain away the use of normal force is through justification. A situ- ational justification occurs when an officer uses force to regain control. A juvenile who keeps cursing an officer might merit a verbal warning, accompanied by a pressure-point grip, as a reminder to change his demeanor. Certain classes of offenders, such as police assailants or child molesters, fall into abstract justifications. These people, no matter who they are, deserve a punitive response from officers.

Excessive force is any reaction that goes beyond the boundaries of what most offi- cers consider to be normal violence. The “Dirty Harry” problem, where a police officer uses questionable tactics to attain a laudable goal, emerges here (Klockars, 1980). The shooting of the burglar in the Tennessee v. Garner et al. case could be yet another such example. In short, this display of force amounts to an abuse of the authority vested in the officer.

Summary The police world is cloaked in violence. Every year criminals murder a substantial number of police officers. Suspects attack thousands of officers who are trying to do their jobs. In return, sworn personnel produce a sizable number of civilian deaths. Some observers see lethal force as a blatant example of racism in American society because an overwhelming number of the suspects the police kill are minority members. The hazard hypothesis explains that greater criminal involvement increases a group’s exposure to police violence. Others look to the social structure and view these fatalities as the product of social deprivation. No matter which explanation one adheres to, the point is very clear: Blacks are more likely than whites to sustain mortal wounds as a result of police intervention.

These and other concerns paved the way for a restructuring of police use of deadly force. The federal Supreme Court decision Tennessee v. Garner et al. banned police use of lethal force against nonviolent felons. This directive rendered the fleeing felon rule a thing of the past and spawned the development of less-than-lethal weaponry.

Despite formal guidelines, the police culture has its own norms governing the use of force. To hesitate is to be dead. Thus, the occupational belief system frees officers from the usual constraints against the use of force. Rookies learn some of these mechanisms well in advance of a confrontation, while other techniques justify actions retrospectively. Even though normal force may lie outside the realm of legal force, it is accepted as a necessary tool in the police world. But, even normal force has its limits.

It is to be hoped that this excursion into the violent world that surrounds police offi- cers makes the phrase “Be Safe” a more understandable whisper as the officer leaves his or her family for work each day.

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revieW QUeStiOnS

1. What are the leading circumstances surrounding accidental deaths of police offi cers?

2. What are some of the more prominent circumstances under which police offi cers are assaulted?

3. What are some common characteristics that slain offi cers share?

4. Outline the backgrounds of police killers.

5. What circumstances are most likely to result in an offi cer being murdered?

6. Compare and contrast the circumstances under which offi cers are assaulted with the conditions under which offi cers are murdered.

7. What are some problems that off-duty offi cers face when responding to a crime in progress?

8. Discuss the trends in police murders.

9. How has body armor helped reduce the number of offi cers killed in the line of duty?

10. Do police murders simply refl ect the levels of violence in communities?

11. Does the death penalty provide offi cers with some protection against lethal assaults?

12. Explain some of the defi ciencies associated with police use-of-deadly-force statistics.

13. What kind of death benefi t provisions cover offi cers who are slain in the line of duty?

14. Compare the number of people killed in self-defense by civilians with the number of people killed by the police.

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15. Why does it seem there is more concern over police-caused killings than civilian- caused killings?

16. What does the hazard hypothesis have to do with the race of suspects involved in police shootings?

17. What is the role of suspect race in elective and non-elective policing shootings?

18. What does the conflict perspective have to do with police shootings?

19. What is the fleeing felon rule?

20. Prior to the Garner decision, what efforts were aimed at replacing the fleeing felon rule?

21. Give the details surrounding the federal Supreme Court case of Tennessee v. Garner.

22. What is the relationship between the fleeing felon rule and the Garner decision?

23. How did administrators revise deadly force policies in the wake of Garner?

24. How does the use-of-force matrix link offender resistance levels with officer responses?

25. What is the importance of the Graham v. Conner decision?

26. Explain what the terms “less-than-lethal” and “less-lethal weaponry” mean.

27. Why have oleoresin capsicum spray and electronic control devices been controversial?

28. What actions does the police organization take after a shooting?

29. What do prospective and retrospective beliefs have to do with police officer use of force?

30. Why is the distinction between legal, normal, and excessive force important?

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DiScUSSiOn QUeStiOnS

1. The Federal Bureau of Investigation publishes an annual report called Law Enforcement Offi cers Killed and Assaulted. Use this publication to construct two separate tables. The fi rst table plots the number of police offi cers killed in the line of duty and the total number of sworn personnel for your state and for the country over the past several years. The second table plots the number of police offi cers attacked in the line of duty for your state and for the United States over the past several years. Does your state register rates that are higher or lower than the national fi gures? Why?

2. The Federal Bureau of Investigation publishes an annual report which provides a variety of crime data. Compare the fi gures generated in the last question to various crime data for your state and for the United States. Does your state show a pattern similar to the national fi gures? Why or why not?

3. Suppose representatives from your local police department come to you and ask you to write a bill concerning death benefi ts that they could submit to the state legislature for consideration. What points would you include?

4. Suppose that the head of the police agency or public safety offi ce on your campus comes to your class with the request that you provide input into the development of a policy regarding offi cer use of force. What considerations would you include?

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c a S e S c i t e D

Furman v. Georgia, 408 U.S. 238 (1972).

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

Gregg v. Georgia, 96 S. Ct. 2902 (1976).

Tennessee v. Garner et al., 471 U.S. 1 (1985).

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