The Police Officer Bill of Rights: Is it Necessary?

Introduction

What are the rights of the law enforcement officer? The public is well aware of their rights—the Bill of Rights—as guaranteed by United States Constitution, and expects the law enforcement community to know and respect them. This same Constitution also protects the criminal justice professional, does it not?

Advocates of the law enforcement profession would argue in the negative—the Bill of Rights does not adequately protect a criminal justice professional—and have sought to incorporate additional safeguards. Professional organizations like the International Association of Chiefs of Police (IACP), police officer unions, and elected officials have lobbied state legislatures to adopt special measures that define specifically how the Bill of Rights should be understood as it relates to the law enforcement officers.

These efforts have found some success at the state level—with some 17 states adopting such “Bills of Rights” and 10 others attempting to—but have failed at the federal level even after a multitude of attempts to get one passed in Congress (Schmidt, 2005). Though the titles of such legislation vary, for the sake of this study it will be indentified as the Police Officer Bill of Rights (POBR).

The effort to pass a POBR seems noble at first glance. However, careful evaluations of such efforts reveal a dichotomy—what may seem advantageous to the law enforcement officer is seen as anything but to the average citizen. When a POBR denies justice our law enforcement professions—and their reputations—suffer. This is the foundation of efforts to oppose POBR.

The merit in such efforts is the commitment to ensure that police officers do not become pawns in “rush-to-justice” politically volatile incidents—either on the street or within their agencies. A POBR can guarantee an officer receives his “day in court” and is fairly scrutinized under the rule of law, not the political winds of the day. The key is balance—and how to find it.

Facts

There are advocates and opponents to POBR efforts and both sides have valid arguments. If balance is to be found, both sides need to be heard—and respected. Opponents of POBR cannot be labeled “anti-cop” and proponents cannot be labeled “anti-citizen.” Bad law enforcement officers need to be held accountable and good law enforcement officers need to be judged by the same standard of expectations—and the U.S. Constitution needs to serve as the foundation of that evaluation. Sound ethics needs to serve as the motivation for achieving that goal; these ethics must be reinforced from within the profession, with law enforcement practitioners holding each other accountable.

A POBR can ensure “complete and thorough” investigations into police misconduct (“Police officers’ Bill of Rights,” 2013), giving the public confidence that law enforcement officers are held accountable. They can also set the parameters for investigating a law enforcement officer to ensure due process rights are protected. Some of those parameters have been set forth by Schmidt (2005):

  1. Legal precedent will serve as the basis for action taken against an employee
  2. Investigations into employee action will be fact-finding exercises, not discriminatory investigations to support a prejudiced viewpoint
  3. Management will treat all employees in a professional manner, with a commitment to truth
  4. A commitment to reinforce a law enforcement officer’s rights and responsibilities to his community will serve as the driving force behind accountability efforts.

The summary of these four points serves to require a commitment to the law, avoidance of politically motivated charges and investigations, protection of law enforcement officers who tell the truth, require the reporting of misconduct, and guaranteeing 4th, 5th, 6th, and 14th Amendment protections for law enforcement officers. Some critics, however, believe such approaches go too far—or not far enough.

Officers are, indeed, entitled to their rights under the U.S. Constitution. Critics of the POBR—which come from the civilian and law enforcement side—argue that such efforts give law enforcement officers “broader entitlement” (Kruger, 2009) than other citizens would receive when accused of wrong-doing. This perception leads to the belief that a POBR will shield officers from accountability—not facilitate the responsibility to protect the public from misconduct (Riggs, 2012). With several mechanisms put in place—largely at the urging of police unions—to ensure what many deem “special” due process privileges, there is seemingly little incentive for police organizations to hold their officers accountable because doing so often becomes impossible.

Law enforcement administrators (police chiefs, sheriffs, and correctional administrators) have expressed frustration that POBR make it difficult to “weed out bad cops and promote public trust” (“An escape route,” 2014). Because of this, some police administrators have sought to actively change POBR in their states to allow greater authority to discipline—or terminate—bad officers (“R.I. police seek change,” 2004). Citizen advocacy groups are echoing the sentiment, but they are adding additional criticism as well. Not only do POBR shield officers from bad acts, previous bad acts cannot be used against an officer in current investigations (Winston, 2011). It would seem to the outsider that a deliberate effort exists to avoid professional scrutiny and accountability.

Police unions, in contrast to the citizen, are strong advocates and opponents of POBR depending on the right written into it. Many attempts by management to adopt POBR initiatives have been opposed by unions because they give management too much power to act swiftly against officer misconduct. Others have been advocated because they take power away from administrators and hinder efforts to discipline officers. In some cases—especially with unscrupulous or retaliatory managers—such positions are warranted (Schmidt, 2005).

Though most POBR versions want to ensure the protection of officers’ constitutional rights in matters of police misconduct, unions have advocated for stringent requirements in ensuring that protection—requirements that the average citizen does not get—and makes compliance with those requirements difficult. For the citizen—who often gets caught in the middle—it can be a double-edged sword.

In seeking to protect officers’ rights, the public is often denied the opportunity to hold police officers accountable for misconduct. Consequently, the public perception of the profession suffers as a result. In an era of increasing distrust of the law enforcement profession, POBR can be a useful tool, but the adversarial relationship which exists between officers-management and officers-public make finding a balance difficult. Any potential benefit of POBR is mitigated by the inability to find a balance between competing interests.

Decision

POBR are not necessary. It implies a double-standard—one for the public and one for the police—that creates an unnecessary divide between the law enforcement community and the public they serve. If there is going to be an effort to strengthen the bond that should exist between the public and law enforcement community the only way to accomplish it is to place both parties on equal station; there cannot be two standards. Professional accountability requires the law enforcement profession to hold itself to the same standard they require of the public.

Further, for law enforcement organizations to function properly, an atmosphere of trust and respect must exist between administration and the rank-and-file. What is being admitted about police administrators when the rank-and-file believe they need a POBR to ensure fair and equitable treatment? Should not such treatment be expected within a law enforcement organization? The relationship between these two parties should be built on mutual trust (Stojkovic, Kalinich, & Klofas, 2012), with that trust rendering a POBR obsolete and unnecessary. When power within an organization is wielded ethically, positive relationships are the result (More, Vito, & Walsh, 2012).

Alternative Solutions

The solution requires dual emphasis—one that strengthens the relationship with the community and one that strengthens the relationship with management. The desire for a POBR stems from a distrust in the ability of those two entities to be fair. Sometimes to gain trust one must extend trust.

Sir Robert Peel believed that the police—to be credible—needed to remember that they, too, were the public (Ortmeier & Meese, 2010). If the profession insists on creating a separate standard for which they believe they should be judged, they cannot expect the public to understand or to not view such insistence with suspicion. If there is going to be an established trust with the community, the law enforcement profession must be willing to be judged on the same standard with which they judge the public. If the Bill of Rights is a sufficient safeguard for the public, it is a sufficient safeguard for the law enforcement professional.

Vertical conflict is a natural part of any organization (Stojkovic, Kalinich, & Klofas, 2012). However, it need not be crippling and it need not threaten organizational function by breeding dysfunctional distrust. Organizational values must be shared (More, Vito, & Walsh, 2012). These values must be observable, not simply communicated. In the law enforcement profession a commitment to “doing what is right” should be a way of life; it should not be something that needs to be coerced in an organization. Sharing common values will ensure greater organizational cooperation and less tension, ensuring stakeholder groups work together to accomplish goals rather than opposing each other. This is the result of mistrust.

Conclusion

The law enforcement community is its own worst enemy. Some blame can be placed on the toll the profession takes on the officers; working with criminals all of the time would callous even the most sympathetic person. However, the profession must look within its own goodness to solve some of the problems that exist because of it. Cynicism can negatively impact relationships—with the public and with the management. A high ethical value standard must be reached for if positive relationships are going to develop with community and organizational stakeholders.

Sources cited:

An escape route for Maryland’s bad cops. (2014). Washington Post, 02/17/14. Accessed 11//26/14 from www.washingtonpost.com.

Kruger, K. (2009). When public duty and individual rights collide in use-of-force cases. The Police Chief, Vol. LXXVI, No. 2. Accessed from www.policechiefmagazine.com. 11/26/14.

More, H., Vito, G., & Walsh, W. (2012). Organizational behavior and management in law enforcement 3rd edition. Upper Saddle River, NJ: Pearson Education, Inc.

Ortmeier, P. & Meese, E III. (2010). Leadership, ethics, and policing: Challenges for the 21st century, 2nd edition. Upper Saddle River, NJ: Prentice Hall.

R.I. police seek change in Officer’s Bill of Rights, ability to fire bad trooper. (2004). PoliceOne.com News. Accessed 11/26/14 from www.policeone.com

Riggs, M. (2012). Why firing a bad cop is damn near impossible. Accessed 11/26/14 www.reason.com.

Stojkovic, S., Kalinich, D., & Klofas, J. (2012). Criminal justice organizations: Administration and management 5th edition. Belmont, CA: Wadsworth.

The Police Officer’s Bill of Rights: A step-by-step guide. (2013). Accessed 11/26/14 from www.theledger.com.

Winston, A. (2011). How California law shields violent police offenders. Accessed 11/26/14 from www.alternet.org.

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