Law Enforcement Use of Force, specifically the Ethics surrounding police discretion on Use of Force
Police are required to use force to compel an unwilling person to comply with orders. The amount of force to be used depends on police discretion and depends on the personal ethics of the policeman. Even though police is authorized to use force to make a suspect comply, police discretion and ethics require that minimum use of force should be used.
Even though the police can make use of force, the needs of security must be balanced with the ethics relating to the constitutional rights and safety of criminal suspects. In the context of police discretion ethical action is one where a system of moral values is generally accepted as professional standards in policing. It also means that the policeman should do the right thing based on the values society holds.
Police must act in a manner that reflects a good character, complies with the law, and does not have baneful consequences. Police ethics are violated when the actions of officers are patently wrong, erode the trust of the community, and weaken the department’s ability to work effectively. Let us take the example of police action that complies with the law. In Graham v. Connor, the US Supreme court decided that courts should evaluate circumstances and facts relating to an officer’s use of force than the officer’s intent or motivation. The US Supreme Court has held that the objectively reasonable standard based on the Fourth Amendment should be used to judge claims of excessive use of force. The police officer must apply discretion to objectively assess the level of force that is reasonable.
Legal requirements are one aspect of ethical requirements when an officer decides to use force. An important aspect of police ethics is the oath of office that is taken by officers. The oath requires the police officer to uphold the Constitution of the United States, be honest, and honorable. The oath also requires the officer to be sober, obey superior officers, and shun offensive behavior. The oath requires the officer to follow rules. When making use of force, the officer has a continuum of force that he can use but there are rules how the officer will use discretion. In Graham v. Connor, the Court has laid down three factors that an officer must use which are the immediate threat to the officer’s safety, the severity of the crime, and if the suspect is resisting arrest. When using his discretion to use force, the officer must evaluate the circumstances by using each of the three factors. From this perspective even though the police has the discretion to decide how he must use force, his freedom is restricted by the factors prescribed by the law. From the deontological ethical perspective, the police must follow the law and rules.
Apart from rules and the law, police departments have their code of ethics that requires the officer to safeguard the lives and property, avoid bias, and follow the law/rules (Schlosser, Cha-Jua, Valgoi, & Neville, 2015). When using discretion, police officers must use tests to help make decisions ethically. Some tests are provided by the law and must be adhered to. For example, in Tennessee v. Garner, the US Supreme Court has held that deadly force should be used to stop a fleeing felon only if the officer has “probable cause” that the felon causes a serious risk to the officer or others. For example, if a burglar is running away in an empty alley the officer cannot shoot the burglar because there is no serious risk to the officer nor anyone else.
The officer has discretion but discretion is allowed if it is made with lawful authority. If a decision is made for illegal reasons it is not discretion. For instance, if an officer does not use force against a suspect because the suspect is of the same color as the officer and the suspect escapes, it is an illegal act and not a legitimate use of discretion. For an officer, discretion is related to decisions that are made in a legal setting. Even if the decision does not yield the expected results, but are made in good faith such decisions are still considered discretion. For example, an officer stops a murder suspect and attempts empty hand control by immobilizing him, and the suspect hoodwinks the officer and escapes, if such a decision was made in good faith, the decision will be considered as discretion.
The ethical use of discretion by police is important for the functioning of police and its relationship with the community. In the context of the use of force, the law is evolving and officer use of force must comply with the current law. For example, in 2003 in Payne v. Pauley, the Seventh Circuit Court of Appeals held that the use of force must be both reasonable and necessary. This implies that force should not be used against an elderly person who is limping and is unarmed.
When force is used unethically, it is alleged that officers fabricate evidence, look for guilt, and make statements with bias (Moore, Robinson, Adedoyin, Brooks, Harmon, & Boamah, 2016). Experienced superiors can spot a lie when the officer handles exhibits poorly and does not show evidence. Some police departments provide training to officers that enable them to think critically and make ethical decisions. They are trained to think about the result, the impact of the use of force, and seeking alternatives to the use of force. For example, if simply commanding a suspect to move to a designated place where he can be handcuffed easily and safely is possible, it is not necessary to use a weapon against him (Newton, 2018).
There are police departments that train their officers to use tests to evaluate the morality or otherwise of their decision. The common tools are the media test in which the officer is trained to ask himself how he would feel if his decision made the front page the next day. For example, the killing of Malice Green in Detroit in 1992 would not have occurred had the police thought about how his decision would have looked on the front page the next day. Police departments also train their officers to use the gut test. This test requires the officer to use his instinct and belief before making a decision. The underlying tenet is that if a decision feels wrong, there is a strong chance that it is wrong. Whatever be the method by which an officer concludes, the officer must behave ethically especially when he uses force.
From the perspective of the police department, discretion is given to officers because their work is unsupervised. For example, when an officer is on solitary patrol, there is nobody to supervise him. A large portion of police work cannot be supervised directly in a meaningful manner (Stokes, Wilson, Jordan, & Harris, 2016). The point is that even though the officers have a high degree of autonomy, and cannot physically be seen by their supervisors, the officers are answerable to those whom they report to. For example, if an officer uses a pepper spray to overpower a theft suspect before arresting him, the incident is recorded on his body camera and the footage may be viewed by his superior and the officer will be required to explain his decision. From this point of view, the decision of the officer must not only be ethical, and lawful but also explainable to his superior.
Even though law enforcement officers know that their decisions should be ethical and lawful, excessive use of force occurs because they feel that they will be protected by qualified immunity. According to this doctrine, government officials are protected for discretionary actions done officially unless their actions violate constitutional rights. However, when a police officer uses excessive force, the officers get no protection under qualified immunity. This was held by The Ninth Circuit Court of Appeals in 2004 in the case Nelson v City of Davis.
Apart from legal rulings, even though discretion is given to law enforcement officers, the discretion must be exercised to get fair and just results. It is unethical to use discretion in a discriminatory manner or to mete out unfair treatment. If used in a fair and just manner, police can decide to use even deadly force. For example, in Plumhoff v. Rickard in 2014, the US Supreme Court ruled that if objective reasonableness was used in a situation, the use of deadly force is justified.
In every situation, the law enforcement officer must apply the system of morals that are accepted as professional standards in policing. The decisions made must be wise and ethical. For example, an officer should not use excessive force against an unarmed suspect whose hands can be seen to be empty. Such a decision would not have led to the beating of Rodney King in Los Angeles in 1991.
One of the themes that are reflected in the code of ethics of all law enforcement services is that it is the duty of the offer to protect the weak against oppression, the peaceful against violence, and to protect the Constitutional rights of all citizens. In this context, a law enforcement officer who uses excessive force acts unethically because the officer becomes the oppressor and the perpetrator of violence. When an officer uses excessive force, he violates the Constitutional rights of the suspect. From this perspective, the law enforcement officer violates the code of ethics and deserves disciplinary action. Most codes specify that the officer will not use violence or unnecessary force. If the officer uses excessive force he directly violates the code of conduct. Moreover, law enforcement service codes require officers to preserve the confidence people have in law enforcement. Using the excessive force, especially using deadly force rapidly erodes the confidence people have in the law enforcement department. For example, when Eric Garner died because of the actions of NYPD in 2014, there was a steep decline in the confidence people had on police.
Apart from the confidence of people in the police, there are standards and duties of conduct that a law enforcement officer must follow. He must avoid any abuse of authority in his relations with the public. Using greater force than what is necessary is an abuse of authority. Moreover, according to the Fourth Amendment of the US Constitution says that the right of people to be “secure” in their “persons” shall not be violated. This means that every individual has the right to bodily security and sets the “reasonableness” standard for the use of force by law enforcement. This constitutional standard applies at the time of arrest and after the arrest, the Eighth Amendment protection applies and disallows law enforcement to use excessive use of force to those in custody. If the law enforcement officers diligently follow the stipulations of the Constitution then the shooting of Michael Brown an 18-year-old by Darren Wilson of the Ferguson police department would not have occurred.
Apart from the code of police departments, there is still excessive use of force because the court rulings say in Tennessee v. Garner have set lower thresholds for use of deadly force than international standards. The ruling has allowed the use of a gun if there is a threat of serious injury or threat of death. In contrast international standard, does not allow the use of a gun unless there is a grave threat to life, and the threat is imminent. Further lowering of the threshold for use of deadly force can be seen in 2014, Use of force policy and manual of the Customs and Border Police that the use of gun is necessary when the officer has reasonable belief that the person causes a forthcoming danger of death or serious physical injury to either the officer or to anyone else. This lowering of threshold sends an unspoken message to all law enforcement officers that the gun can be used even when there is the apprehension of “serious physical injury”. Similarly, the acquittal of George Zimmerman who shot Trayvon Martin in Sanford, Florida, sent a message to all law enforcement officers that it was acceptable to use deadly force.
Apart from tasers, police departments make use of pepper sprays. When hit by pepper spray, the suspect suffers from temporary blindness, the duration of which is between 15 and 30 minutes, a fiery sensation of the skin which continues between 45 and 60 minutes, uncontrollable coughing, and upper body spasms which compel the person to sit down or even lie down on the road. The use of pepper spray makes it impossible for the person to talk for about 15 minutes making it impossible for him to ask for help. When the pepper spray is used on suspects who are having asthma or other respiratory diseases, taking medication or are physically restrained by officers, there is a high risk of death. For example, if the suspect is physically restrained by an officer after being hit by pepper spray to handcuff him, and his breathing passages are affected, there is a high risk of death. In 1995, it was reported that there were at least 61 deaths related to the use of pepper spray since 1990 in the United States. The use of pepper spray by police must be evaluated from the ethical perspective after knowing the possible effects of this intermediate weapon. The police should be trained to assess the escalation of use of force from empty-handed control or the use of baton to the use of intermediate weapons by knowing the possible consequences of these weapons. The police can make ethical decisions only if they know that the use of intermediate weapons can be as deadly as firing a bullet.
Apart from using deadly force, the use of so-called intermediate weapons has a far lower threshold (Gross, 2015). One example is that of tasers. If the taser darts hit the suspect, the taser hits him with 50,000 volts electric pulses causing extreme muscle spasms and intense pain. These pulses cause cardiac arrhythmia in healthy suspects and those who have higher heart rates because of running or drug addiction get a cardiac arrest and possible sudden death.
The harm done by the use of Taser can be more deadly than shooting a person on his legs with a gun. For example, in August 2016, Dalian Atkinson 48 died when he was hit by a taser in Telford, UK. In 2016 itself, the Fourth Circuit Court of Appeals in Armstrong v. Village of Pinehurst decided that the taser can be used in a situation where a reasonable officer would feel that immediate danger could be mitigated by firing the taser. This judgment was not overturned by the US Supreme Court. This judgment sets a very low threshold for the use of a taser. According to deontological ethics, a law enforcement officer must follow the law. When the courts and laws lower the thresholds for the use of deadly force and taser, there will be more instances when deadly force and tasers will be used by law enforcement officers and lead to deaths of suspects. Police discretion can now be used in any situation where there is a perception of immediate danger. The officer can use a taser on a suspect, irrespective of the danger to the life of the suspect. The ethics surrounding police discretion are not circumscribed by the boundaries of the police department. The ethics apply equally to lawmakers and the courts that together form the law enforcement system. Police code of ethics has a role to play in ensuring that there is no excessive use of force by officers. However, the effectiveness of these codes will become blunted when courts and law routinely lower the thresholds for the use of weapons.
The ethics souring police discretion on the use of force is guided by the police oath of office, police code of ethics, and the US Constitution. Ethics are very important because the officer uses discretion to use force when he is unsupervised. What is disturbing is the recent court decisions and framing of laws favor lowering of the threshold for use of deadly force and deadly intermediate weapons. If this trend continues, in future there will be more incidents of use of excessive force by police and more suspects will get killed by police use of deadly force or by the use of tasers.
Gross, J. P. (2015). Judge, jury, and executioner: The excessive use of deadly force by police officers. Tex. J. on CL & CR, 21, 155.
Moore, S. E., Robinson, M. A., Adedoyin, A. C., Brooks, M., Harmon, D. K., & Boamah, D. (2016). Hands up—Don’t shoot: Police shooting of young Black males: Implications for social work and human services. Journal of Human Behavior in the Social Environment, 26(3-4), 254-266.
Newton, S. (2018). The excessive use of force against blacks in the United States of America. The International Journal of Human Rights, 22(8), 1067-1086.
Schlosser, M. D., Cha-Jua, S., Valgoi, M. J., & Neville, H. A. (2015). Improving policing in a multiracial society in the United States: A new approach. International Journal of criminal justice Sciences, 10(1), 115.
Stokes, L. D., Wilson, Z. R., Jordan, K. A., & Harris, D. M. (2016). Race as an Institutional Factor in the Arrest, and the use of Excessive and Deadly Force against African American Males. Endarch: Journal of Black Political Research, 2016(1), 4.
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