Cameron Miranda
Police officers are tasked with enforcing the law, but what happens when they break the rules or selectively enforce them? In the United States, the principle of discretion gives police and prosecutors latitude in deciding whether to charge someone with a crime, which can lead to unequal treatment under the law. While the majority of law enforcement officers perform their jobs with integrity, incidents of police misconduct do occur, and understanding your legal rights when interacting with police is crucial. This includes knowing what constitutes a breach of civil rights, such as false arrests, unlawful stops, searches without probable cause, and more. When police break the law, they can be held accountable and punished just like any other citizen, but proving misconduct and seeking justice can be a complex process.
| Characteristics | Values |
|---|---|
| Selective enforcement | Occurs when police officers exercise discretion in deciding whether or how to punish a person who broke the law |
| Biased use of enforcement discretion | Based on racial prejudice or corruption |
| Prosecution types | Opportunity principle (discretionary) vs Legality principle (mandatory) |
| Prosecution operation | Independent with more discretion vs hierarchical with more conformity |
| Selective enforcement dangers | Undermining fundamental principles of justice and equality |
| Selective enforcement outcomes | Arbitrary outcomes, favoritism, and unequal treatment under the law |
| Selective enforcement impact | Harsh penalties for marginalized communities, while others escape accountability |
| US principle of discretion | Grants public prosecutors and police latitude in deciding whether to charge someone |
| US Immigration and Customs Enforcement | Prioritized pursuit of cases involving criminals and felons |
| DOJ investigations | Criminal or civil, the person whose rights are violated is the victim |
| Police misconduct | Excessive force, discriminatory harrassment, false arrests, coercive sexual conduct, unlawful stops, searches, arrests |
| Police misconduct remedies | Injunctive relief, changes in agency policies and procedures |
| Police accountability | Police officers can be punished and sentenced to prison, fines, and probation |
| Police breach of civil rights | False arrests, unlawful stops, searches without warrants or probable cause |
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What You'll Learn
Police misconduct and accountability
While the majority of law enforcement officers perform their jobs with respect for their communities and in compliance with the law, incidents of police misconduct do occur. Police misconduct refers to actions taken by law enforcement officers that violate the rights of individuals or engage in unlawful practices. In the United States, the Department of Justice (DOJ) is responsible for addressing and investigating police misconduct, which can include both criminal and civil statutes. These laws cover state, county, and local officers, as well as those working in prisons and jails, and federal law enforcement officers.
Federal laws prohibit state or local law enforcement officers from engaging in a pattern or practice of conduct that deprives individuals of their constitutional rights. This includes excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches, or arrests. To prove a pattern of misconduct, the DOJ must demonstrate that the law enforcement agency had an unlawful policy or that the incidents of misconduct were widespread. In civil cases, the DOJ seeks to correct the agency's policies and practices that led to the misconduct and may require individual relief for the victims.
In addition to federal laws, individuals have the right to file a complaint or lawsuit if they believe their rights have been violated by law enforcement. For example, if a person is arrested without probable cause, any evidence obtained during the wrongful arrest may be deemed inadmissible in court. Individuals may also be entitled to financial compensation for damages incurred due to police misconduct, such as hospital bills, lost wages, and pain and suffering.
To ensure accountability, it is important for individuals to understand their legal rights when interacting with police officers. While showing respect and cooperating with law enforcement is generally advisable, individuals should also be aware of their civil rights and the limitations of police authority. For example, police officers must have a warrant or probable cause before conducting a search and seizure or stopping a vehicle. Understanding these rights can help individuals identify and report instances of police misconduct and seek appropriate legal remedies.
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Selective enforcement and the danger of bias
While the majority of law enforcement officers perform their jobs with respect for their communities and in compliance with the law, there are incidents of selective enforcement and police misconduct. Selective enforcement occurs when government officials, such as police officers, prosecutors, or regulators, exercise discretion in choosing whether or how to punish someone who has broken the law. The biased use of enforcement discretion, based on factors such as racial prejudice or corruption, is considered a legal abuse and a threat to the rule of law. It can lead to arbitrary outcomes, favoritism, and unequal treatment, with individuals from marginalized communities facing harsher penalties while others escape accountability due to their social status or connections.
In the United States, the principle of discretion grants prosecutors and police latitude in deciding whether to charge someone and which charges to file. For example, it may be impractical for police officers to issue tickets to every speeding driver, so they may limit action to the most flagrant examples of reckless driving. However, selective enforcement can undermine the fundamental principles of justice and equality.
To address police misconduct, the Department of Justice (DOJ) enforces laws that protect the rights of all persons in the United States, including citizens and non-citizens. These laws cover state, county, and local officers, as well as those working in prisons and jails, and federal law enforcement officers. The DOJ seeks to correct the policies and practices that led to misconduct and may require individual relief for victims. For example, the DOJ may require changes in the agency's policies and procedures that resulted in or allowed the misconduct.
In civil cases, it is a crime for one or more persons acting under the color of law to willfully deprive another person of their rights protected by the Constitution or laws of the United States. This includes excessive force, sexual assault, false arrests, theft, or the fabrication of evidence resulting in a loss of liberty. The DOJ can file suit for violations of the Police Misconduct Provision, and these laws prohibit discrimination based on race, color, national origin, sex, and religion by state and local law enforcement agencies receiving financial assistance from the DOJ.
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Civil rights and individual rights
While the majority of law enforcement officers perform their jobs with respect for their communities and in compliance with the law, there are incidents where this is not the case. The US Department of Justice (DOJ) enforces laws that address police misconduct and explains how individuals can file a complaint if they believe their rights have been violated. These laws cover the actions of state, county, and local officers, as well as federal law enforcement officers, and protect all persons in the United States, citizens and non-citizens alike.
The DOJ's investigations into police misconduct can be criminal or civil in nature. In a criminal case, the evidence must establish proof "beyond a reasonable doubt," while in civil cases, the burden of proof is lower, requiring only a "preponderance of evidence." In criminal cases, the DOJ seeks to punish the wrongdoer through imprisonment or other sanctions, while in civil cases, the focus is on correcting the law enforcement agency's policies and practices that led to the misconduct. The DOJ may also seek individual relief for the victim(s) and require changes to the agency's policies and procedures.
The Code of Conduct for Law Enforcement Officials, outlined by the OHCHR, emphasizes that law enforcement officials shall respect and protect human dignity and uphold the human rights of all persons. These rights are identified and protected by national and international laws, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, among others. Law enforcement officials are authorized to use force only when strictly necessary for the prevention of crime or the lawful arrest of offenders, and any act of corruption or abuse of authority is incompatible with the profession.
When it comes to interacting with law enforcement, individuals have certain rights that they should be aware of. If stopped by the police, individuals have the right to remain silent and do not have to answer questions about their activities or whereabouts. They can also choose to observe and record events that are plainly visible in public spaces, as long as they do not interfere with the officers' activities. If arrested, individuals have the right to make a local phone call and can call a lawyer, who the police cannot listen to. It is important to write down details such as officers' badges and patrol car numbers, and to get contact information for witnesses. If injured, individuals should seek medical attention and document their injuries with photographs. They can then file a written complaint with the agency's internal affairs division or a civilian complaint board, usually anonymously.
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The legality principle vs the opportunity principle
The legality principle and the opportunity principle are two contrasting approaches to criminal justice systems. The legality principle establishes an obligation to prosecute when there are grounds for suspicion that an individual has committed a criminal offence. This principle is based on the idea that the prosecution is mandatory and that the prosecuting authority must take action when a crime has been committed. On the other hand, the opportunity principle, also known as prosecutorial discretion, gives the prosecutor the right to choose not to initiate or conduct criminal proceedings against a person, even if the legal conditions for prosecution are met.
The opportunity principle is often based on practical considerations, such as the cost of proceedings and the amount of monetary fines, as well as the complexity of obtaining relevant evidence. For example, in Dutch law, there are three types of cancellation of prosecution: policy sepot, where petty crimes are not prosecuted to free up capacity in the legal system; technical sepot, where there is insufficient evidence to obtain a conviction; and conditional sepot, where the suspect is spared prosecution if they do not commit any further crimes. Similarly, the Croatian corporate criminal liability legal framework allows prosecutors to dismiss a criminal complaint or abandon a prosecution if the legal person owns no property or if their property is of insignificant value.
In contrast, the legality principle aims to remove prosecutorial discretion and ensure that all criminal offences are prosecuted consistently. For instance, the new German corporate criminal liability framework requires prosecutors to initiate proceedings whenever there is sufficient reasonable suspicion of a criminal offence attributable to a legal person. This framework also applies to both legal persons and natural persons, holding companies and individuals accountable for their actions.
The debate between the legality principle and the opportunity principle highlights the complexities of criminal justice systems and the challenges of ensuring fair and effective prosecution. While the opportunity principle allows for flexibility and the allocation of resources to more serious crimes, the legality principle emphasizes the importance of mandatory prosecution to uphold justice and equality before the law.
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Prosecution of police officers who break the law
Police officers are not exempt from the law and can be prosecuted for criminal behaviour. However, they are statistically more likely to get away with crimes than civilians and often face less severe punishment once convicted. This is due in part to the legal protection of qualified immunity, which shields officers from being charged or sued for actions necessary to their job, such as handcuffing or restraining someone. Officers have also used qualified immunity to protect themselves from allegations of assault, misconduct, and murder.
The prosecution of police officers who break the law is essential for maintaining community trust and confidence in law enforcement. In Canada, for example, the Ontario Special Investigations Unit (SIU) is a civilian law enforcement agency that investigates and, where necessary, lays criminal charges against the police. However, little is known about the nature of the offences committed, the prosecution, trial process, and sentencing for police officers, and how this mechanism of police oversight functions in practice.
In the United States, the Department of Justice investigates and prosecutes allegations of Constitutional violations by law enforcement officers, including the use of excessive force, sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody. To prove that a law enforcement officer violated a person's Constitutional rights, the government must provide proof beyond a reasonable doubt that the officer knew their actions were wrong and against the law and decided to do them anyway.
Selective enforcement, or the biased use of enforcement discretion, can also play a role in the prosecution of police officers. While selective enforcement can be necessary in some cases, such as when it is impractical for police officers to issue traffic tickets to every speeding driver, it can also lead to arbitrary outcomes, favouritism, and unequal treatment under the law.
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Frequently asked questions
No, whether on or off duty, police officers must obey the law. Police officers are accountable for their wrongdoing, misconduct, and illegal acts.
A police officer who breaks the law can be punished just like any other citizen. A judge can sentence the officer to punishments such as prison time, fines, and probation.
Police misconduct includes but is not limited to:
- Excessive force
- Sexual assault
- Discriminatory harassment
- False arrests
- Coercive sexual conduct
- Unlawful stops, searches, or arrests
- Theft
- Intentional fabrication of evidence
If you are arrested, you have the right to remain silent and ask for an attorney. A criminal defense attorney can help you determine if the police did anything illegal and formulate a defense strategy. You can also file a complaint with the Department of Justice (DOJ) if you believe your rights have been violated.
Some examples of illegal actions by police officers include:
- Arresting a person without probable cause
- Conducting a search or seizure without a warrant or probable cause
- Lying about having a search warrant
- Stopping a vehicle without probable cause
