National Police Misconduct Reporting Project

Introduction To Police Misconduct – Part 1

What Is Police Misconduct?

While most people automatically think of police brutality whenever the term “police misconduct” is brought up, brutality is but one subset of what we call police misconduct. In fact, there are several ways in which we generally categorize and classify police misconduct and, while this may seem to be complicated, it is important to first understand what police misconduct is and entails before we delve into what causes it and what can be done in response to it.

So, before we go any further, let’s start with a general definition and description of just what is meant by the terms “police officer” and “police misconduct”.

Police OfficerAny individual entrusted by a governmental agency with the legal authority to and granted special legal protections with the purpose of allowing that person to enact an arrest or use force in the course of enforcing established laws.

Police MisconductAny action performed by a law enforcement officer that is unethical, against established employment guidelines, unconstitutional, or criminal in nature.

Seems pretty broad, doesn’t it? In fact, it probably doesn’t seem to be much different than any other type of misconduct and it doesn’t really seem to explain much about police misconduct. Sure, this is certainly true in some part. But it just shows that the issue of police misconduct is a bit more involved than the basic definition implies and what most people understand about the issue.

Further Defining Police Misconduct

So, what does police misconduct really mean? Well, let’s start by explaining that law enforcement is a job not much unlike working as a bank teller, a dishwasher, or any other professional pursuit that one might engage in to earn a living. Just as with any job, there are rules and guidelines of behavior that one must follow and some jobs are more rigorous than others in what one may or may not do while employed in that profession.

When one acts outside of those established rules, whether the offense is a violation of your employee’s handbook or a criminal act, it is called employee misconduct and the penalties can range from an unpaid time off, demotions, job termination, or even jail time.

However, there is an important yet  subtle difference between what you or I might do for a living and what a law enforcement officer is permitted to do as part of a police officer’s job function. Namely, while you or I probably cannot deprive our customers of their freedom or use deadly force against a customer, law enforcement officers are entrusted with those police powers on behalf of the people they serve, the community, and are often granted immunity from civil prosecution for harms caused by their actions in the course of their duties.

Because these police powers grant law enforcement officers the ability to impinge on the rights of others or cause physical harm, and because these powers grant them certain legal protections the rest of us lack, there are established rules and guidelines that are generally expected to limit how and when they may employ those enhanced rights.

Also, because law enforcement officers may use their powers of arrest while off duty and because of the harm that abusing these powers can cause to individuals and the community, police officers are supposed to be held to a higher standard of conduct, both on duty and off duty, than members of other occupations.

Therefore, perhaps a better way to define police misconduct would be to say:

Police MisconductAny action, on duty or off, by a person entrusted with police powers which would violate that trust to an extent that would cause those who entrusted the officer with said powers to reasonably question whether continuing that trust would expose the public safety to an unacceptable level of risk.

By this definition, police misconduct is more than just being late to the job a few times or having your shirt untucked, it’s something that would reasonably cause the community to question whether or not it was such a good idea to entrust a particular person with those police powers. Furthermore, it suggests that an act of police misconduct, while potentially legal and constitutional, may still be misconduct.

Classifying Police Misconduct

So, if police misconduct is more than just an issue of tardiness or falling asleep at your desk; what exactly does police misconduct entail? As the original definition I threw out there hints at, there are a few main classifications of police misconduct and then, beyond that, there are several types of police misconduct. Let’s talk about the classification first.

PMVennCat1 As the above Venn diagram shows, one way to classify police misconduct is to look at the different sets of rules and guidelines that cover police misconduct. Namely, police misconduct can involve:

  • A violation of departmental policies or
  • A violation of constitutional protections or
  • A violation of the law itself

However, there is a bit of overlap here in that, sometimes, an act of misconduct can be a violation of any combination of these three classifications. Also, generally, many departmental policies and guidelines are written expressly to address potential breaches of constitutional protections or legal guidelines but some may not meet that criteria.

For example, many departments have what is called a “use of force continuum” which establishes what type of force is permissible in response to specific actions that a suspect may perform. Furthermore, these policies differ from department to department.  Some may permit officers to use force at the slightest  sign of passive resistance yet others may specifically state that officers may not deploy certain types of force in response to passive resistance.

Now, since there are differences and, in some cases, a complete absence of policy, some departmental policies correlate to constitutional protections while others may not… in other words, just because a department has a policy it doesn’t mean that policy is constitutional and just because a police officer adheres to the letter of that department’s policy it doesn’t mean that a given departmentally permissible action is legal or constitutional.

In other words, an act of police misconduct may be permissible in a given law enforcement agency since that action is within their police guidelines, but that activity might still violate constitutional protections or even violate the law… This leads us to a second layer of distinction for police misconduct.

PMVennCat2

So, now we have five different classifications; procedural, civil, criminal, individual, and institutional. Institutional police misconduct can be described as law enforcement actions that are permissible via a law enforcement agency’s express or implied policies yet still unconstitutional, illegal, or just plain unethical by reasonable standards. Meanwhile, individual police misconduct is an action that is undertaken outside of the established or implied guidelines of a law enforcement agency.

This layer of distinction can help people understand why an act of police misconduct didn’t result in disciplinary action or even criminal charges against an officer, but still cost that department a civil rights lawsuit judgment or federal charges. These cases are sometimes referred to as “patterns and practices of police misconduct”.

But, even here, there is the potential of overlap, especially when we talk about whole units or even entire departments that undertake practices that are known to be illegal but are tolerated by the agency and/or local government for any number of reasons, such as in the Special Operations Section scandal in Chicago not too long ago where a whole unit was encouraged to act outside of departmental policies, and even the law,  just because they got results.

Categorizing Police Misconduct

While the above helps define police misconduct a little better, it still doesn’t specifically spell out what types of police misconduct occur out in the real world. That’s where police misconduct categorization comes in.

Now, each state, and even each individual law enforcement agency, has their own set of terms for police misconduct types and their own unique terms to describe those types of misconduct just as they use different terms to describe criminal offenses. So the terminology employed here is not standardized, and can’t be because of these jurisdictional differences in terminology and criteria.

Another important fact to keep in mind is that an individual incident of misconduct can involve any number or combination of police misconduct types. For instance, a police officer who pulls over a minority based on the color of his skin but no other real infraction then hits that unarmed and otherwise innocent person in the head with a club for talking back and then arrests that person on false charges would entail cases of racial profiling, unnecessary force, and wrongful arrest… all within that single incident.

With that out of the way, what classifications are there specifically? Well, while the following doesn’t necessarily include all possible forms of police misconduct, it does help show just how complex and involved the issue of police misconduct can be.

PMCatChart

Now, after looking this over a bit, you may find that some of these classifications don’t necessarily have clearly defined boundaries. For example, a case of using the threat of arrest to coerce sex from a suspect is actually a case involving multiple components of misconduct, color of law abuse, extortion, wrongful arrest, and sexual misconduct combined. How do we reconcile these fuzzy lines of distinction? Generally we look at what the ultimate desired outcome was for the officer who engaged in said misconduct or look at the most egregious violation.

So, as you can see, police misconduct involves a lot more than just police brutality. Because the very definition of police misconduct is more complicated than most people think, so too are the different causes and contributing agents of police misconduct.  After all, as we’ll see next, the motivations that drive an officer to sexually assault a detainee are much different than an officer who conspires with others to run a shakedown extortion ring or an officer who snaps under pressure and beats a handcuffed detainee just because he said something the officer didn’t like.

After that, we’ll tie it all together by examining how, since the types, causes, and contributing factors of misconduct are different, it follows that the potential solutions to the problem of police misconduct need to be multifaceted as well.

(to be continued)

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