CRJU113 - Lecture 7 - Rights, Sanctions, Prosecution & Liability, Use of Force, & Decision Making

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Feb 20, 2024

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CRJU113 – Lecture 7 – Rights, Sanctions, Prosecution & Liability, Use of Force, & Decision Making Lesson 1 – Officer’s Rights & Discipline/ Sanctions Introduction At least 24 states have laws commonly referred to as a Law Enforcement Officer Bill of Rights (LEOBOR). Nearly all states have some statutes that address how law enforcement officers may be investigated, disciplined, or otherwise treated by the government agencies that employ them. The term LEOBOR is descriptive of how these rights are enumerated like state bills of rights or the Bill of Rights in the U.S. Constitution, but it is not indicative of the rights contained in each state’s unique law. Many states have rejected the Law Enforcement Officers Bill of Rights, arguing that this is a dangerous legislative shield against police accountability. This policy frustrates prompt investigation and resolution of police misconduct allegations, often delaying officer interrogation or raising the standard for complaints. The policy often includes provisions that prevent police departments from disciplining or firing problematic officers and prohibit the disclosure of personnel records. Despite this assumed legislative shield, the two most common areas of rights given to police officers cover investigative and disciplinary processes. Nearly all bill of rights guarantees the right of an officer to be notified when they are under investigation and who will be questioning them. These rights set forth minimum standards that shall apply when an officer is under investigation or is subjected to questioning under circumstances that could lead to disciplinary action, including that questioning be conducted at a reasonable hour, and take place at the offices of those conducting the investigation, with exceptions, the officer under investigation be informed in writing of the nature of the investigation prior to questioning, any questioning be for a reasonable period of time. This also allows for reasonable periods for rest and personal necessities, such questioning being recorded in full in writing or by an electronic device, and a copy of the transcript made available to the officer under investigation. Furthermore, it adds that the officer is entitled to the presence of counsel or another individual at the questioning. Additional rights in these areas include preventing officer personal information from being released to the press, protection from reassignment, rights to legal representation through the officer’s own means or union, requirements that investigations be conducted
CRJU113 - Lecture 7 2 by other law enforcement officers, and limitations on which governmental entity may discipline them. Discipline and Sanctions There are a variety of reasons that police officers can be disciplined. Police discipline originates when an officer engages in behavior that is prohibited or fails to take some action and or violates a rule or law. Examples of these disciplinary actions or sanctions are when officers violate a statute, city or county ordinance, or departmental policy. Despite a department’s rules and regulations, there are areas of disciplinary action that differ between police departments. These differences are often contentious when discipline is considered. The investigation of police disciplinary problems can be conducted by a variety of agencies. These groups can vary depending on state statutes, labor contracts, and local government laws. Sauchelli (2013) identifies the various agencies that have investigative authority over New York City officers, including a civilian complaint review board (CCRB) that investigates complaints of alleged misconduct with subpoena power, the Commission to Combat Police Corruption, which is a city agency that monitors and evaluates anti-corruption programs and practices, and NYPD Internal Affairs Bureau (IAB); that reviews allegations of police misconduct and can recommend disciplinary action. However, there is substantial variability in how officers are disciplined when charged by the departments for an offense or violation, in that a hearing is conducted by the department, and officers have due process and administrative rights during such hearings. The departments will return a verdict with an option to appeal. Another key purpose of police discipline is that it helps police employees serve the public while staying within the framework of law, policy, procedures, training, and organizational expectations for their behavior. Effective discipline requires that officers understand these boundaries and expectations. When officers stray, measured consequences are consistently and fairly applied to hold them accountable and to change their behavior. Police disciplinary procedures have long been a source of frustration for nearly everyone involved and those interested in the outcomes. Police executives are commonly upset by the months and sometimes up to years that it takes from an allegation of misconduct through the investigation and resolution. Furthermore, these frustrations are even greater when these decisions are reversed or modified by arbitrators, civil service boards, and grievance panels. Police officers and their unions generally feel discipline is arbitrary and fails to meet the fundamental requirements of consistency and fairness. Unless it is a high-profile case or one is directly involved, few in the community are interested in the police disciplinary process. Those interested are mystified by both the time involved in dealing with complaints of
CRJU113 - Lecture 7 3 misconduct and the various steps in a lengthy, confusing, and overly legal process. Police officers are also opposed to disciplinary procedures, as a study by McDevitt (2016) showed. For the most part, police officers had critical views about the disciplinary process. They questioned officers in seven departments (two small, three mediums, and three large departments) and found that 57.6% of the respondents in the smaller departments viewed disciplinary procures as fair, while only 21.1% from the larger agencies perceived the process as being fair. In closing, when officers perceive some level of unfairness in the departments, they are less likely to respect their supervisors, and in turn, less likely to be committed to the department and its programs and goals. Lesson 1 Recap Officer rights and disciplinary sanctions are unique and often misunderstood factors within policing. Police officers are provided justified rights while being afforded the awareness of disciplinary sanctions against a department’s policies and procedures. Next, we will explore the legal civil liability of police officers and various programs to minimize such civil lawsuits. Lesson 1 Completed! Thank you! You have completed this lesson. Please scroll down to complete a short, ungraded Knowledge Check activity Check Your Knowledge 1 Police discipline originates when an officer engages in behavior that is prohibited or fails to take some action and or violates a. a research study on policing b. ethics and integrity c. a rule or law (correct answer) d. self-moral principles When officers are charged by a department for an offense or violation, what will be conducted by the department while allowing officers due process and administrative rights during this event? a. Hearings (correct answer) b. Incarceration c. Probation d. A review of cases What NYC agency reviews allegations of police misconduct and can recommend disciplinary action? a. Investigation Network Committee b. Internal Affairs Bureau (correct answer) c. Internal Revenue Service
CRJU113 - Lecture 7 4 d. Investigation Central Committee LEOBOR is defined as what prestigious officer initiative of protection. a. Law Enforcement Book of Rights b. Law Enforcement Bill of Rights (correct answer) c. Law Enforcement Book of Rules d. Law Enforcement Bill of Rules Within officer rights, what must be included during the questioning of a police officer? a. A copy of the transcript made available to the officer under investigation (correct answer) b. No copy of the transcript made available to the officer under investigation c. A certified department handbook on ethics d. A certified department handbook on policy and procedures Lesson 2 – Criminal Prosecution/ Liability & Discretion Factors/ Disenfranchised Populations Criminal Prosecution/Liability Police officers perform duties that include apprehending criminals, providing citizens with protection, aiding persons in distress, and maintaining the safety of our streets and communities. These difficult tasks are often seen in unfortunate lawsuits and prosecution cases against police officers. This misconduct by police officers can lead to civil and criminal liability. Kappeler (2014) adds that legal actions against the police arise for many reasons, some inherent in the nature of the police role, the services they provide to the public, and their status as government employees. Various civil liability cases can result when police officers fail to perform their assigned duties, perform them in a negligent order, or abuse their authority. Filing a liability suit against a police officer does not necessarily mean that the officer had engaged in intentional wrongdoing. Some of these liabilities are perceived by general citizens assuming that these agencies have a lot of money and the ability to either pay out-of-court settlements or large punitive damage awards given to some citizens and lawyers. This perception is set to bring quick litigation against these police agencies. Fear of litigation is determined by officers feeling they can be sued for anything. Such fears are promoted by a lack of understanding of the nature and consequences of police liabilities in that police officers have a general feeling that they can be sued if found liable for anything, and that frivolous lawsuits are very common. A study conducted by the International Association of Chiefs of Police concluded that about 40% of liability cases were brought against the police for officer misconduct and not just technical errors or minor rights violations.
CRJU113 - Lecture 7 5 Davis (2013) adds that there are good reasons for a healthy concern over potential police civil liability, but such concerns are not founded when they are premised on the notion that citizens file an inordinate number of unjustified claims against the police. The feeling that police officers can be sued and held liable for almost anything is similarly unfounded as any civil litigation process has safeguards to prevent and, if necessary, punish frivolous and unjust claims brought against police officers. Prevention strategies and programs to reduce high-risk liability cases are set by police departments to ensure police officers are acting within their official scope of authority, knowing the law of police liability, keeping ahead of changing laws of liability, to reading and following departmental rules and regulations. A seventh circuit reverses the court’s dismissal of the civil rights lawsuit and reinstates the officer and city as proper defendants. In the article titled “Failure to train ruling: Officer's alleged reckless driving in non-emergency situation results in civilian fatality,” Michael Callahan provides a case where it was presumed that the officer who killed another driver by driving recklessly lacked liability training. As you read, answer the following questions. What was the position of the Flores Estate lawsuit against Officer Gorny and the City of South Bend? What was the ruling of the case? How was liability was overlooked and why was the city also held liable for the driver’s loss of life? Failure to train ruling: Officer's alleged reckless driving in non-emergency situation results in civilian fatality Takeaways: The court ruled regarding the City that a municipality can be held liable under a theory of failure to train if it has actual knowledge of a pattern of criminally reckless conduct and there is an obvious need to provide training to avert harm, even if the prior acts have yet to result in tragedy. Regarding Officer Gorny, the court stated that driving with deliberate indifference to the consequence, turning oneself into a speeding bullet, can reach the level of criminal recklessness before the worst happens. The court concluded, based upon the Supreme Court decision in Brown, that failure to train municipal liability is possible for one unconstitutional violation by a lower-level employee even in the absence of a pattern of similar misconduct. It further concluded that failure to train liability is possible when the need for more or better training was patently obvious, and the municipal response was inadequate or non-existent. Introduction to Police Discretion The use of police discretion is a topic of many challenges in a police organization. While the basic understanding of discretion is the availability of a choice of options or actions that one can take in a situation, discretion in
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