Police Discretion

Police Discretion

David Gonzalez

University of Phoenix

Introduction to Policing

CJA/370

Professor John W. Feltgen

June 23, 2005

Abstract

In this paper I will discuss police discretion and the use of these discretionary powers in the law enforcement workplace. I will explore the mythical aspects of police discretionary powers and the source of this myth. I will further discuss the control of discretionary authority. I will name instances of law enforcement officials using their discretionary powers to enforce laws and why the exercised this privilege.

Police Discretion

The use of discretion in law enforcement is extremely important to a police officers mission. Unfortunately, special interests, politicians, and corruption have taken its toll on the use of discretion during an officers work day. An example of how an officer use of discretion has been impeded is how we react to and enforce domestic violence situations.

When an officer approaches a domestic violence call most states have made the arrest of the aggressor mandatory. Even if the officers have reason to believe that the victim may be deceitful or have alternative motives, he still must arrest and book the accused. Famous cases like the OJ Simpson trial have made the enforcement of domestic violence laws strict with very little room for error.

In the State of California politicians have made the enforcement of immigration laws almost impossible. Special interest groups have taken the discretion out of the agent's hands and placed those decisions in the hands of individuals that are influenced by votes. If an agent intends on enforcing the Immigration and Nationality Act, he needs to first clear the arrest with his boss. For example while conducting a routine immigration check, the agent, come across suspected illegal aliens, the agent needs to first verify that the service has detention space then he must clear the arrest with his supervisor. The supervisor then checks to see if we have any agreements with any special interest groups that may have classified the area as a safe zone. A safe zone is an area or neighborhood where an undocumented alien is free from harassment from immigration officials. Finally, the agent needs to have a legitimate excuse for detention other than just the physical presence of an undocumented alien such as a drug violation or the alien is an aggravated felon.

Corruption and poor decision-making has also had an impact on the discretionary authority of law enforcement officials. When a police officer has been discovered to have abused his discretionary authority or just made really truly poor decisions it casts doubt over the entire agency. When it was discovered that sheriff deputies had been abusive and disrespectful to motorist transiting through municipalities in the south, they where required to video tape all traffic stops and dealings with the public. Any allegation of wrongdoing is closely reviewed and scrutinized by a civilian review panel.

The myth of law enforcement discretion stems from the fact that it is a common practice amongst all law enforcement agencies yet one would be hard pressed to find an agency to publicly admit to this practice. Policing agencies want to maintain the public perception of strict adherence to the rules, laws, and regulations that govern our society. The myth is that all laws are enforced without any degree of leniency. To allow a speeding motorist to go free without issuing the ticket could only cause chaos and rampant violations of societies laws. Therefore, one will rarely see any agency official publicly discuss the parameters under which they truly enforce the laws. After all, how many times have any of us been rightfully pulled over for a traffic infraction and gotten off with a simple warning?

There are many examples that I could apply to officer discretion the following is just a small sampling. I have taken some of these examples from personal experience and others from lessons taught throughout my career.

A Border Patrol Agent has received intelligence from a reliable source that he will discover several hundred pounds of marijuana in a ravine near a geographical marker. While investigating this tip he encounters two undocumented aliens. After questioning them for a couple of minutes he determines that they are unrelated to his investigation. To detain and process these two aliens would be time-consuming. Knowing that there is nobody available to assist him with this arrest, the patrol agent at this point has the discretionary authority to continue his investigation unimpeded by the two aliens by allowing them to go free. Under this circumstance it would be justified since the possibility exist that he may uncover a major drug loading area.

A police officer encounters three males loitering in a public garage. Further investigation uncovers one of them has a bench warrant for unpaid parking tickets. In some jurisdictions the officer will be given the choice of detaining the individual or simply letting him know that he needs to take care of his tickets as soon as possible. This is done so that an officer will not get tied up dealing with a minor violation and allows him to continue his duties.

A police officer assigned to enforcing traffic laws that evening sees a motorist traveling above the speed limit. The officer may allow the motorist to get by on a warning since the motorist was not traveling at dangerous