Police powers

SIGNIFICANCE: Police officers must balance their right to enforce the law and the discretion inherent in their profession with the judgments of their peers, supervisors, and members of the community.

Public perception of police officers' exercise of powers is difficult to characterize in general terms, as it differs among individuals based on their personal circumstances and, on a broader scale, typically shifts in response to current events. While American police gained both new respect and expanded powers after the terrorist attacks of September 11, 2001, subsequent high-profile cases involving the deaths of members of minority groups at the hands of police—such as the 2014 shooting death of unarmed African American teenager Michael Brown in Ferguson, Missouri—have led to increasingly public criticism of police officers for being too often overzealous, biased, or even corrupt in the exercise of their powers. Over the years, there have been many investigations into the behavior of police officers, especially with regard profiling, a potentially effective but controversial tool for identifying possible suspects.

Police power is generally understood as the lawful exercise of the sovereign right of government to promote order, safety, and security. It has also been referred to as a right of the government itself to regulate personal conduct. However, the state may limit this activity for the good of all the people. In general, the authority to preserve order and peace is subject to constraints by the US Constitution. In fact, the concept of police power became important after ratification of the Fourteenth Amendment in 1868, in particular the clause that states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In the past, the US Supreme Court has justified police power to intrude into citizens’ lives. For example, officers have been allowed to question persons who fit the “profile” of drug couriers by entering or exiting areas known for drug activity and carrying one-way airplane tickets and no luggage. In Florida v. Royer (1983), the Court ruled that police could approach and ask questions of such individuals on the street or in any public places without violating the Fourth Amendment. Although this type of profiling appears logical and may contribute to apprehending drug couriers, it can also appear to be racially or ethnically motivated and therefore biased. In addition, even though the stated profile of a drug courier is not racially specific, a police officer's assessment of who fits this profile may be influenced by unconscious racial or ethnic biases, resulting in a disproportionate number of members of minority groups being targeted even in situations where the officers in question did not explicitly intend to do so.

Racial Profiling

While criminal or offender profiling is a long-established technique used in law enforcement, over the years the racial aspect of profiling has come under increased criticism. Criminal profiling attempts to describe the type of offender who is most likely to have committed a particular crime, including characteristics such as age, gender, and race; racial profiling takes this one step further, either intentionally or unintentionally prioritizing race above other factors and, by extension, making the implicit assumption that people of a particular race or ethnicity are inherently more likely to commit certain crimes.

State police have been criticized for stopping disproportionate percentages of drivers who are members of racial and ethnic minorities. The practice has given rise the slang phrase “driving while Black,” describing cases in which drivers who are members of minority groups, usually African Americans, are stopped by police when they are doing nothing wrong—or, in some cases, committing infractions for which White drivers are far less likely to be stopped, such as not wearing a seatbelt—because their actions are viewed as inherently more suspect. A common example given is that a Black man driving an expensive car is far more likely to be stopped on suspicion of having stolen the car.

Numerous studies have shown that police often do disproportionately target members of minority groups in traffic stops. One such study, published by the American Civil Liberties Union (ACLU) in January 2016, found that in the state of Florida in 2014, Black drivers were stopped and issued citations for not wearing seatbelts at nearly twice the rate as White drivers—1,821 citations issued per 100,000 resident Black drivers, compared to 970 citations per 100,000 resident White drivers. This disparity cannot be explained by actual rates of seatbelt usage among the two groups, as calculations of usage showed only a 5 to 6 percentage point difference (85.8 percent of Black drivers and passengers versus 91.5 percent of White drivers and passengers). Another study published by New York University in 2020 found that in a data set of 100 million traffic stops throughout the United States, Black drivers were stopped 20 percent more than White drivers, and, once stopped, Black drivers were about 1.5 to 2 times more often than White drivers even though the Black drivers were less likely to possess guns or drugs. Other studies have similarly shown that race does influence the likelihood of officers using force in encounters with suspects. Notions such as the assumption that typical drug-law offenders are young, male African Americans reflect racial stereotypes and are discriminatory. Although this type of profiling can be useful to pick out actual offenders, it also stigmatizes all young Black males, and any benefits it provides should be weighed carefully against the very real harm it causes.

Since the 2001 terrorist attacks, police officers have been trained to look for the typical characteristics of foreign terrorists to help in the protection of the United States. The result has been a renewed emphasis on profiling that focuses on people of Middle Eastern origin or descent. Although erring on the side of caution may enhance public safety, such profiling has the result of unfairly treating an entire group of people. The news media has published many accounts of mistakes made by police attempting to profile suspects that have led to unnecessary delays at airports, airplane rerouting, and forced landings, as well as more serious human-rights violations such as unjustifiable detentions and arrests. Such mistakes have the potential to ruin or even end an innocent person's life.

Crime Control versus Due Process

While some amount of police power is necessary for police to effectively do their jobs, this power must be balanced against the due process rights of the accused. This is not an easy task, as decisions made in the exercise of police power are rarely “cut and dried.” Often, the lowest-ranking police officers have the most discretion because they are often alone on the street, sometimes with potentially dangerous suspects, and have much power to act as they see fit. Additionally, members of historically oppressed communities often regard officers on patrol as their enemies and distrust their motives.

While some members of the public are primarily concerned with the rights of the accused, others believe that crime control should be more important, and these individuals tend to expect police to use their power to intrude despite legal restrictions. It can be difficult to please both sides. Officers who use their power to enforce the law based on their experience and on-the-job training may not find support from the more conservative observers; officers who use their power to enforce the law based on the letter of the law may not find support from more liberal observers. Consequently, police may feel vast pressures on them and believe that their powers are limited by politics, precedents, and various interpretations of the law.

Reasonable Suspicion

What gives an officer the power to intrude? Case law has set precedents for proper police behavior on the streets. Regardless of the amount of discretion police have, they are bound by the law. There are different levels of intrusiveness possible by the police, such as encounters as serious as a search-and-seizure based on probable cause, a stop-and-frisk initiated on reasonable suspicion, or encounters in which police and citizens are simply engaging in verbal interaction.

Under the Fourth Amendment to the Constitution, police may arrest and take suspects into custody with probable cause. Probable cause means that arresting officers believe, based on the circumstances and facts at hand, that crimes have been or are about to be committed. In Terry v. Ohio (1968), however, the US Supreme Court ruled that police could act on less than probable cause, or what is called reasonable suspicion. This case set a precedent that justified police action without probable cause. Instead, a lower standard of proof can be used to justify a stop-and-detention if officers reasonably believe that suspects are committing or are about to commit crimes. Previously, officers could not act unless they believe their own lives were in danger. Yet while reasonable suspicion allows police to make the initial “stop,” frisking, or patting down, is legally allowed after a stop only when the evidence discovered elevates an officer’s level of suspicion.

Citizen Perceptions and Police Ethics

Modern police and police administrators have increasingly incorporated public perceptions into their decision making. Community-oriented policing and civilian police academy programs are among the new efforts being made to coordinate community views into the roles police should play.

Policing research has been focused on educating laypersons about the role of police while determining the role that citizens want police to play. The difficult next step has been to train police to place themselves in the citizens’ place to determine how the power they use may be interpreted by the public. Balancing their legal rights against the strict scrutiny of others is a challenging task. However, to take away police power or to limit their discretion could have disastrous consequences. The main reason police have so much discretion is that often no clear-cut responses to street encounters are known.

Part of the problem with entrusting police with so much power is that individual officers handle their power differently. Discretion may work well in the hands of fair, ethical, and moral officers. However, some officers do not adhere to the same standard and thus exercise their power in unfair, prejudicial, and inequitable ways. It may be that only time will tell if efforts to improve police-citizen relations will close the gap in perceptions of legitimate uses of police power.

Bibliography

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