is nothing the officer can do. Or nothing he or she can safely do. Or there is a good chance immediate intervention without proper training, equipment, and support will make matters worse. In cases like these, the duty to act can be satisfied by getting to a safe place, keeping an eye on the threat, and calling for help.
Very few officers are trained in hostage negotiations, for instance. When a lone officer stumbles into something that either is or becomes a hostage situation, it is safer for everyone, in most cases, for the officer to pull back and call the specialists. Amateur hostage negotiators can make matters worse. Storming a barricaded subject, with or without hostages, is a dangerous specialty. Individuals being heroic can quickly become hostages themselves.
At the heart of these kinds of decisions is “officer discretion.” Every situation is different, as is every officer and every threat. Officers must cultivate the judgment and be empowered to make the decisions when they are presented with a situation.
This is inherently risky and one of those factors that can make citizens very uncomfortable. It makes officers uncomfortable, too. Officers are rarely required to make an arrest or issue a citation in misdemeanor cases. It varies by policy, but in most places, if an officer happens to see a six-year-old shoplift a candy bar, the officer can tell the kid to give it back and apologize.
That discretion—to give the kid guidance or start a juvenile record and get a bunch of agencies involved—is a huge power. It is both feared and necessary. Too often, it also feels like a trap, a trap with no right answers.
On the feared side, turning a blind eye is also a form of discretion. An officer can avoid confrontation just by not doing the job. Discretion to let a minor lawbreaker go could be based less on whether the message was sent (the verbal warning for a traffic infraction) than on who it was—friend, family, another officer. Discretion is also the crack that people of power try to pry at: “Do you know who my father is? Can’t we just make this go away?”
Fear can be rationalized as discretion. Stopping a high-speed chase or not engaging in a Use of Force or not chasing a running suspect can all easily be rationalized—they can be dangerous, and sometimes the danger to the threat, yourself, and bystanders, isn’t justified by the potential result. What level of force would you be willing use for a city noise ordinance? For a car theft, are you willing to risk tearing through a school zone at lunchtime at 90 mph? There are good and bad reasons for making any of these decisions.
At the extreme, discretion can become abuse of authority. The “reasonable officer” rule is vague. It has to be, because the situations in which you need it are impossible to script. In that vagueness, it is possible for a bad or fearful officer to perceive justifications for things he wants, not needs, to do.
There is no easy answer for this one, no line that can be drawn that will make everyone happy. We all want ‘justice’ but that is a hard concept to define. If ‘justice’ were based simply on results, motivation wouldn’t matter and there would be no difference between intentional murder and accidental manslaughter. Justice-as-retribution collides with the concept of ‘behavior modification.’
Once upon a time I was driving a marked patrol car* and passed a car with a young couple in it. The wife was in the passenger seat with a toddler on her lap. Big no-no in my state with a very hefty fine. I passed, made eye contact with the driver, got a ways ahead and pulled over. The couple stopped their car and put the baby in the child seat. They drove on past, and I waved.
In a world with no officer discretion (and a jurisdiction where Corrections Officers had arrest powers), I might have been required to pull them over and write a ticket. There was nothing about their car to indicate that they had money to burn on fines or court fees. The kid was safe. What more did I want?
There are some areas and some laws where discretion has been outlawed—‘will arrest’ rules. For instance, if someone calls in a domestic violence complaint in many jurisdictions, someone has to go to jail, at least for the night or until bail is posted. Officers have made mistakes in judgment that had tragic results, most famously when Konerak Sinthasomphone briefly escaped from Jeffrey Dahmer. Officers responding to a naked, dazed, and raped fourteen-year old boy decided it was a ‘lover’s spat,’ and returned the boy to the serial killer cannibal, who did what serial killer cannibals do.
So, removing discretion in this case is good, right? Sort of. Except bad people have an amazing ability to use good things for bad ends. The ‘will arrest’ rule has become a harassment tool in divorce cases, and a way to empty a house for burglary while one spouse is in jail and the other is trying to arrange bail. It is one of the few issues where no evidence is needed for an arrest. The expectation is that there will be no serious repercussions unless found guilty at trial, so no harm, no foul. In theory.
But what if you have a job where you can be fired for missing a day? What if a day in jail causes you to miss a mandatory custody hearing? A lot of well-meant legislation can have unintended consequences.
Force is a form of communication, the most emphatic possible way of saying, “No!” or “Stop that!” or “Do it now!”
An officer enters any use of force with a goal in mind: to get the handcuffs on; to remove the drunk from the premises or the car; to get out of the ambush alive. The preferred goal is always cooperation, where the citizen wants to do what the officer has already determined is necessary. You usually get this from citizens (citizens being slang for normal, good people):
Officer: Sir, please move to the other side of the street.
Citizen: Oh, of course. (Sometimes they even say, “thanks!”)
If you can’t get cooperation, an officer will settle for compliance where the citizen (or threat) may not be happy about it, but does what he or she needs to do:
Officer: Mr. Smith, we have a warrant for your arrest. I have to take you into custody.
Mr. Smith: This is fucking bullshit! I took care of that warrant a month ago!
Officer: Possibly, but I have to take you in. Will you turn around and put your hands behind your back?
Mr. Smith (turning around and putting hands behind his back): Fuck you. I hope this makes you feel like a big man you fucking punk.
Mr. Smith is not happy, but he is compliant. In section three, “Experience,” we’ll talk more about criminals and the criminal subculture. Certain criminals will always be verbally abusive with officers. For some it is part of their identity; others know that verbal resistance combined with physical compliance is safe—the officer won’t hurt him but his peers will see him as a tough guy. So many, many arrestees will act like Mr. Smith. But so will many citizens.
For some ordinary citizens, contact with the police will be associated with very bad events, such as being a victim of a crime. For many it will be the unpleasantness of a traffic ticket. Basically, even ordinary citizens usually come into contact with police on a bad day. That can influence the citizen to act in ways that they would normally never consider.
For both officer safety reasons and legal “fair and equal treatment” reasons, all fresh bookings into jail are treated the same. Murderer or drunk driver, we treat them exactly the same because, truth to tell, just because someone got arrested for Driving Under the Influence of Intoxicants (DUII) doesn’t mean that he doesn’t have a bunch of bodies buried in his crawl space.
We take everyone’s shoe laces because some people attempt suicide with
