Law Enforcement Misconduct
Law enforcement misconduct consists of unethical or illegal acts by law enforcement officers during the conduct of their duties that results in the violations of an individual’s constitutional rights. Misconduct is pervasive in the police departments with the National Police Misconduct Reporting Project stating that on an annual basis about 1% of officers engage in police misconduct. Most of these cases of misconduct go unreported and in those that are prosecuted the consequences are grim if any. This paper explores the issue of law enforcement misconduct further and offers statistics on misconduct, the various types of misconduct as well as how to report them and seek remedies. The paper then analyses current trends of police misconduct and also proffers methods of reducing these cases of misconduct.
Law enforcement misconduct is covered by both civil and criminal law. In criminal law, it is unlawful for a law enforcement officer to exceed their rightful power so as to deprive another person of a right protected by the constitution. Misconduct cases covered under the criminal law includes intentional forceful arrests, sexual assault, excessive use of force, and the intentional fabrication of evidence. Accessing law enforcement databases for personal gain or to inhibit an investigation also fall under criminal misconduct. Some of the criminal types of misconduct may also fall under civil law and these include false arrests and use of excessive force. Other civil misconduct includes discriminatory harassment, coercive sexual assault and unlawful stops and searches (DOJ, 2015). Under the civil law, it is also considered a misconduct for law enforcement officers to discriminate on the basis of race, color, nationality, state, or religion. Other forms of misconduct include retaliation by police officers for filing a complaint or participating in an investigation. Besides complaints against individual officers, a misconduct case also arises when n agency refuses to respond to complaints of alleged misconduct by its officers. In civil misconduct cases, the litigant has to prove that there is a pattern or practice of misconduct in the department and that the case is not an isolated event.
Individuals who have suffered law enforcement misconduct can contact state bureaus including the federal bureau of investigations, the Attorney’s office, the coordination and review section, or the disability rights section. Usually, the remedy for criminal misconduct includes fines and/ or imprisonment for the offending officer. In most cases, however, the law does not offer monetary relief rather it offers injunctive relief such as making changes to an agency’s policies and procedures that allowed the continuance of a misconduct. For criminal misconduct, the individual victim does not have a private right of action and must rely on the Department of Justice to file a suit on their behalf. Civil cases also have the same procedure as criminal suits but in civil cases individual remedial relief for the victim may also be sought.
Statistics of Misconduct
The reporting rate of police misconduct is low although there has been an increase in reporting especially with the proliferation of mobile phone cameras that allow citizens to capture incidents of police misconduct. Many police departments have also fitted police cruisers with recording systems that deter and document incidences of misconduct (Queally, 2016). These technological advances have allowed data on misconduct to be readily available now, although numerous issues lead to lags in reporting. Despite violent misconduct by police officers being the most reported crime, for example, the prosecution rate is low at 24.1% while less prevalent financial crimes such as fraud, theft, and extortion are prosecuted 69.4% of the time. The reason for this is that allegations of violent misconduct are difficult to prove especially without actual documented video evidence.
Even with video evidence, it is still difficult to win these cases since the prosecutors may allege that the conduct was justifiable within policy. Additionally, many law enforcement agencies have used eavesdropping and wiretapping laws to discount video evidence that was acquired without the knowledge of officers (Khalek, 2011). In other circumstances, police have been known to illegally seize and destroy evidence collected by civilians irrespective of whether police officers were involved in misconduct and in total disregard for laws barring the destruction of evidence.
Another trend in misconduct cases is the reluctance by both departments and officers to report and investigate cases of misconduct especially on-duty related cases. In a 2010 study, it was found that while off-duty misconduct is prosecuted 66.7% of the time only 9.6% of on-duty cases are prosecuted. This trend is attributable to reluctance by officers to charge their colleagues due to stigmas attached with ratting out colleagues. Most departments also fail to prosecute improprieties in order to limit liability and choose to either transfer the officers, have them resign, or revoke their certification without informing the public (Packman, 2010). Lastly, police officers involved in misconduct are very proficient in offering defenses, with the most common defense being that of qualified immunity. In this defense, that aims to alleviate the fear of prosecution by officers in the performance of their duties, the specific act that the officer prevented the victim from engaging in must be protected by law. Additionally, the alleged act of misconduct must have exceeded reasonable bounds, infringed on the victim’s constitutional rights, and been injurious to the victim.
Despite these bottlenecks to reporting and prosecution, there has been increased awareness and prosecution of police misconduct with the associated press reporting that over 1000 officers lost their badges in the last six years as a result of misconduct involving crimes like sodomy, rape, and child pornography (Sedensky & Merchant, 2015). Most of the reporting is, however, hindered by the fact that few states have a system to provide records on misconduct and even fewer have a system to decertify officers involved in misconduct.
What can be done
There are many solutions that have been proffered to aid in reducing cases of police misconduct. The first solution is the institution of stringent laws that detail the punishment for every form of misconduct. These laws should also call for the mandatory reporting and prosecution of such cases by police officers and institute punishments for departments that fail to do so. Additionally, an independent civilian review board comprising of citizens who are not sworn officers should be constituted. This board not only reviews and investigates police misconduct but it should also be involved in reviewing and debating police policies (Walker, 1992). Police officials will thus be required to explain why some tactics or procedures are necessary thus a review board will benefit police policy from public input.
Another way to reduce misconduct is to robustly screen applicants. Investigators should run background checks on all applicants, interview former colleagues, family, and neighbors of the applicants as well as conduct tests including polygraph exams. Additionally, the social media profiles of applicants should be analyzed in order to analyze what the applicant deems morally appropriate and identify red flags such as the objectification of women. Upon being hired, the applicants should undergo intensive training and education on numerous issues relating to conduct. Currently, the training that officers undergo is not intensive hence the increase in cases of misconduct. There should also be an elimination of bias in recruiting that has seen marginalized groups such as the black community as well as women receive little opportunities for employment. A diverse workforce eliminates most operational and structural issues and will thus be helpful in eliminating instances of misconduct.
The last policy action that can be helpful in eliminating misconduct includes the mandatory accreditation of all police departments as well as intensified monitoring of the police. While the Commission on Accreditation for Law Enforcement Agencies has been in existence since 1979, accreditation is a voluntary process and the current standards are not good enough. Research has shown that accredited departments report fewer incidences of misconduct and thus accreditation should be made mandatory. Communities can also set up organizations to monitor the police and showcase incidences of misconduct on social media platforms and websites.
In conclusion, law enforcement misconduct arises where law enforcement officers misuse their powers to deprive individuals of their constitutional rights. These forms of misconduct may fall under criminal or civil law with remedies ranging from fines and imprisonment to injunctive relief. Reporting and prosecuting cases of misconduct, however, faces numerous bottlenecks such as fears of reprisals by the offending officers, the proficiency of police officers to defend themselves, and the difficulty in proving most of these cases. Various measures can, however, be taken to reduce instances of misconduct and these include mandatory accreditation of police departments, robust screening of applicants, and intensive education and training for officers. Additionally, communities should be more involved in drafting police policies as well as in monitoring police conduct.
DOJ. (2015, August 6). Addressing police misconduct laws enforced by the Department of Justice. Retrieved from justice.gov: https://www.justice.gov/crt/addressing-police-misconduct-laws-enforced-department-justice
Khalek, R. (2011, July 27). 15 Years in Prison For Taping the Cops? How Eavesdropping Laws Are Taking Away Our Best Defense Against Police Brutality . Retrieved from AlterNet: http://www.alternet.org/story/151806/15_years_in_prison_for_taping_the_cops_how_eavesdropping_laws_are_taking_away_our_best_defense_against_police_brutality
Packman, D. (2010, January 22). What Can We Learn From Criminal Complaints Against Cops? Retrieved from policemisconduct.net: https://www.policemisconduct.net/what-can-criminal-charges-against-cops-tell-us/
Queally, J. (2016, September 07). Oakland police to fire 4 officers, suspend 7 others, in sexual misconduct scandal. Retrieved from latimes.com: http://www.latimes.com/local/lanow/la-me-ln-oakland-police-scandal-update-20160907-snap-story.html
Sedensky, M., & Merchant, N. (2015, November 01). AP: Hundreds of officers lose licenses over sex misconduct. Retrieved from bigstory.ap.org: http://bigstory.ap.org/article/fd1d4d05e561462a85abe50e7eaed4ec/ap-hundreds-officers-lose-licenses-over-sex-misconduct
Walker, S. (1992). The Effectiveness of Civilian Review: Observations on Recent Trends and New Issues Regarding the Civilian Review of the Police. American Journal of Police, 42-60.