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Ethical Defensibility: Putting Police Ethics on Trial

By Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan, Independent Training Consultant, Institute for Intergovernmental Research, Tallahassee, Florida, and Michigan State University’s Intelligence Toolbox Program, East Lansing, Michigan, and Member, IACP Police Professional Standards, Ethics, and Image Committee; and Norman Beasley, Lieutenant Colonel (Retired), Arizona Department of Public Safety, Chairman, Arizona Counter Terrorist Information Center


The concept of Ethical Defensibility provides all sworn personnel with the philosophical tools and analytical skills necessary to weigh value-based alternatives, resulting in the repetitiveness needed to protect, preserve, and defend the integrity of the police profession.

“That ethics stuff, I never really bought into all of that mumbo jumbo.”

A veteran homicide detective shared these sentiments recently after a training session and it gave pause in the post-training debriefing. The authors eventually had to acknowledge that in order to be more effective in their counter-terrorism training, more work had to be done addressing the everpresent negative perceptions and occupational biases regarding the ethical side of policing. Clearly, policing privacy and the sensitive handling of personally identifying information of citizens entails respecting both the legal and ethical sides of law enforcement. Omitting or ignoring such perceptions, whether valid or not, could prove to be costly to any agency down the road. The authors feel that any training curriculum needs to delve into the nexus between the legal and philosophical sides of policing in order to be effective.

Who failed this officer in his policing maturation process? The profession, his organization’s chief executives, his middle managers, first line supervisors, his academy trainers? Whose duty was it to instill and monitor this officer’s moral compass? Or was it his screening process that failed to detect this personal disdain for the nobility expected of his chosen profession? Or possibly was it learned behavior from years of growing cynicism from the job—from his perceptions of ungrateful, disrespectful citizens to a growing distrust of his superiors so common in the police subculture? Or was it a combination of all of the above?


A Cop’s Cop—What Does It Mean?

In the debriefing, concerns were broached regarding what this detective’s definition might be of a “cop’s cop.” Would he say that his boss was a “cop’s cop” when he or she “took care of their people” (whatever that meant to him), or was his boss one who went “by the book” and was a straight arrow who believed in lessons learned from mistakes made? Or was there a perceived “professional blending” of the two supervisory styles that fit both the legal and ethical duties of a supervisor?

Taking care of one’s subordinates is such a subjective concept and has a great deal of ethical baggage attached to it, good and bad, in the police profession. For example, how ethical is it for a supervisor at any level to grant a subordinate time off for reasons not considered valid by top brass? Or how ethical is it to allow officers to play softball, attend college classes, sleep, or handle personal business while on duty? How many times have middle managers looked the other way while their subordinates perform tasks for their “second jobs” while on the clock? One could argue all of these qualify as supervisory examples of “taking care of one’s people,” but are not universally considered unethical administrative acts.

Taking care of one’s people could also be interpreted as acting as a protective buffer between one’s subordinates and top management, in a team sense, in regard to policy non-compliance issues or alleged misconduct.

For example, first line supervisors in specialized units may convene their officers after an arrest to coordinate their stories before making any statements or drafting their arrest reports. Creative writing or editing may be considered a necessary evil in certain policing circles to make a case stick (though this has proven to be very costly to an agency or its leaders, when discovered). Or a supervisor may tell his or her unit officers not to divulge the whole truth about an incident to department investigators or prosecutors, for unit reasons or due to their own distrust of the current administration, Internal Affairs, or the criminal justice system as a whole.

This traditional, internal “us versus them” mentality has been nurtured throughout the years and constantly reinforced by Hollywood portrayals. It is precisely this stereotype wherein “the bad guys,” the chief, Internal Affairs investigators, or prosecutors, stroll into a precinct and the unit, as a whole, clams up and circles the wagons. In television, David Caruso has been typecast for years in this buffer role, representing the stereotypical first line supervisor, “taking care of his people” from any and all “outsiders.” His was a self-appointed role of protecting his own in shows such as N.Y.P.D. Blue and C.S.I. Miami.

In the alternative, a supervisor perceived as a “cop’s cop” may have the reputation of being that straight arrow, following policy to the strict letter of the law, holding himself or herself accountable for what transpired on their shifts. They lead by example and their repetitive actions lay the foundation for their moral character and a perception of professionalism. They religiously refer to the agency’s manual, arbitration rulings, and past practices regarding policy questions, disciplinary issues, differing opinions, and/or confusions without interjecting their own subjectivity for individual interpretations. Without question they implement the chief’s policies though they might not agree with all of them. They hold themselves to as high a standard as they hold their subordinates and set the tone for their subordinates. Some might consider such a supervisory philosophy to be too restrictive in dealing with the grayer ethical issues that arise in policing.

Or is police supervision such a challenge, today, that there can be an acceptable blending of styles that works? With the deluge of oversight measures, arbitration rulings, paperwork, and agency accountability (both up and down the hierarchy), can one truly carve out his or her own supervisory philosophies? When “taking care of one’s people,” can one management philosophy be more unethical than another? Or, more importantly for this discussion, is it more defensible, for an agency in labor hearings or a court of law, than another?

And so this “cop’s cop” question was incorporated into the training curricula in order to break the ice with supervisor attendees, to obtain buy-in itself, and to demonstrate the challenges involved in these grayer areas of supervising ethical policing. The key was in defining ethical dilemmas and solutions most easily (and consistently) employed within the profession to resolve such dilemmas. Failing to have annual, in-service core values training fosters a work environment wherein individual, arbitrary, and subjective resolutions (and a lack of uniformity) can create liability issues, both internally and externally.

The authors’ legal and ethical curriculum became more focused on the supervisory duties of implementing ethical awareness, appreciation, and analytical contemplation in the intelligence realm. The more focused theme of the training, then, was to impress upon supervisors, middle managers, and above, how critical it was for them and their subordinates to analytically engage in the thoughtful contemplation of the philosophical challenges in law enforcement and the authority that goes with the badge and position of office. Policing privacy is a more challenging topic than “free cups of coffee” in discussing ethical issues. Knowing and appreciating the “spirit behind each law,” as well as being educated in the latest nuances of the law, provides all officers with a defense for professional decision making and a legal defense for the agency in court. Managing risk in policing demands constantly monitoring the moral compass of one’s organization, and educating each new generation of officers in the agency’s core values and related expectations is a recipe for future successes. The concept of Ethical Defensibility provides the foundations necessary to achieve these goals.


Ethical Defensibility as a Defense

But what is ethical policing, truly? How does the profession define police ethical behavior so that a chief can successfully monitor his or her agency’s moral compass? How do academicians define the philosophy of policing and the ethical systems involved in resolving serious policing ethical dilemmas? What core values make up a “cop’s cop?” And, most importantly, how to develop an ethical template of defensibility, one that can successfully be used in a court of law?

The focus here is meant to be a universal template, one the chief of police, commander of a precinct, or unit supervisor can use as readily as the agency’s newest hire, in using moral reasoning to defend each individual officer’s decision-making processes. From conducting a traffic stop, to making an arrest, to infiltrating a gang to disciplining a subordinate, the template is a tool meant to provide analytic guidelines that are as uniform as possible for repetitive implementation, which entails combining the application of the law with the philosophical defenses, “the spirit of the law” discussed in the training. It is a template that incorporates the philosophy of the profession; is easily adoptable; and, yet, one that could be used to successfully defend both tactical and managerial decisions in all courts of law for criminal, civil, or internal labor hearings.

The concept of Ethical Defensibility contemplates the repetitive need for every sworn member to analytically compare, contrast, and reconcile their own personal ethical values with those of the profession and their organization. It empowers officers to recognize their roles on a grander scale as representatives of their agencies and a noble profession. Perceptions are reality, and maintaining a constant air of professionalism (both legal and ethical) benefits all parties. Managing risk is an everyday affair that entails keeping a pulse on your organization’s moral compass before the scandals occur. The crucial task for any police chief or public safety director is to define critical core values for their subordinates, discuss their application, and devise training scenarios wherein those core values were employed (or ignored) and the differing results.


Do Humans Have Ethics?

The police subculture to some extent has co-mingled the terms ethics, morals, and values, as they have evolved in our language. As a result, “police ethics training” has not always been embraced, as it should be, by law enforcement practitioners, both rank and file.

Technically speaking we humans do not have ethics. What we have are our own core values, our own childhood upbringing, and our own moral compasses based on our religious beliefs, our role models, and our life’s experiences that we use to measure the good and bad alternatives of certain situations. Our moral compass is our conscience. Ethics is the analytical, subjective weighing of individual core values and applying them for the benefit of all parties involved. An ethical person is one who chooses the most moral alternative when confronted with conflicting ethical scenarios that benefits their community, society as a whole, their colleagues, and stakeholders, all depending on the ethical dilemma confronting him or her.

Ethics is an applied philosophy, causing each one of us to individually categorize, prioritize, and assign our own personal core values when confronted with differing scenarios. It demands a self-awareness, a self-realization, and a self-measurement that is the result of one’s life experiences combined with an analytic thought process acquired from years of practice. In policing, like in any profession, uniform implementation of organizational core values demands training curriculums that mold individual personal values into the professional core values unique to the law enforcement profession. Clearly not everyone has the unique moral compass to be a law enforcement officer.

Through organizational training, discipline, and practice, the reinforcement of this contemplative thought process is the critical defense mechanism behind the concept of Ethical Defensibility. Having officers engage, time and time again, in considering the ethical ramifications involved in their decision-making processes, both on and off duty, creates an ethical workplace environment that can only succeed and flourish. It is a cultural mindset that, as a legal defense, can be the “benefit of doubt” in departmental legal proceedings if, and only if, rank and file are trained in the nuances of core values and managerial expectations and consistently implement them. How many of us know an officer who says he or she is “ethical,” but in the dark corners of street-level policing, they act unethically under pressure?

Professional ethics is a more focused, fine-tuned philosophical application of the rules of conduct for a specific profession. Whether it be policing, doctoring, or lawyering, each of these professions has its own set of core values that when contemplated, analyzed, and measured, are applied to the unique ethical dilemmas associated with its line of work. Just as lawyers are taught not to commingle their clients’ monies with their own and to report conflicts of interest, or doctors are trained in the importance of protecting client privacy issues and honoring the doctor-patient privilege, so too, law enforcement has its own ethical guidelines pertaining to how the job is to be performed and how that performance is to be judged. A profession’s ethics are an acquired art through years of training; experience; and, sometimes, costly mistakes.

In the limited realm of policing, the relevant parties whose interests must always be considered in occupational ethical dilemmas are the organization as a whole, its sworn and civilian personnel, the citizens they are tasked to serve, and the profession’s image itself. Core values training is as much about guidelines of acceptable professional behavior as it is about preserving, protecting, and defending the image of the profession. Defining, emphasizing, and enumerating what core values are expected of your subordinates is the critical first step in understanding and implementing the concept of Ethical Defensibility and provides a foundation of success for future generations of your agency. Humans do not have ethics; humans use ethics to guide the decision-making process.


Managing Risk Involves Core Values Training

In law enforcement, the legal side of the job cannot be divorced from the ethical side. They go hand in hand under a successful risk management rubric. Risk management, in policing, is about reducing, minimizing, and/or eliminating employee misconduct, citizen complaints, internal grievances, and civil lawsuits. Time and time again, middle managers are heard complaining about being inundated with paperwork and being tied down to their desks. When all they truly wish to do is be out on the streets with their officers. By teaching and advising subordinates of the “best practices” use of core values, first-line supervisors can prevent bad habits, demonstrate an honorable respect for the law and the ethical side of the job, and instill a sense of accountability and pride for their subordinates.

Police ethicists have said for years, “All illegal behavior by the police is unethical, not all unethical behavior is illegal, but can still cost officers their jobs.” A recent study of a large organization concluded that there was little agreement or consensus regarding its core values and that, in fact, many of its websites across the agency listed 31 differing organizational values, causing an ambiguity within its own ranks.1 Failing to define your organization’s primary core values and the application and expectations of such core values opens any agency up to allegations of “deliberate indifference”2 or the liability of omission.

The liability of omission refers to the organizational failure to train, implement, supervise, and discipline in the nuances, expectations, and core values of the job, as other professional police organizations are currently doing. Ethical Defensibility scenarios provide a “uniformity defense” to any challenges of omission or negligent training causes of action.

Plaintiff attorneys suing municipalities and their police, time and time again, have used the discovery rules of civil procedure to obtain training records and training curricula to show deficiencies in a “standards of practice” argument regarding an agency’s negligent training practices. There are cases in federal law wherein individual officer’s personnel files (and disciplinary records) have been allowed into the court records to demonstrate organizational negligence and training omissions.3 The liability of omission contemplates the fact that other policing agencies across the United States engage in core values training, send officers to train-the-trainer seminars, and use annual, in-service core values training to maintain a work environment founded on “ethical awareness” recognitions. Omitting such a core values training from your agency’s curriculum can be used against you and your policy makers in a court of law.

Instilling core values training and Ethical Defensibility concepts provides an agency with a defense to allegations of unethical conduct, misconduct, and unconstitutional policing. It empowers officers to be mentally prepared for the ethical dilemmas commonly found in the profession. Additionally, it provides guidelines for whistleblowing policies and empowers officers to have the courage and administrative support to report colleague misconduct. It is the “benefit of the doubt” jurors can hang their hat on in court regarding the discretionary, gray areas of policing.

It also should define examples of both officer and administrative retaliation and how any form of retaliation will not be tolerated.4 Core values training gives notice to sworn personnel as to the organization’s expectations for both on- and off-duty behavior, deters misconduct, and addresses the concept of “shared responsibility.”5 Shared responsibility in policing empowers all officers, rank and file, to have the courage to confront one another in ethical dilemmas during the contemplative analytic stage, preventing a colleague from making a costly decision, both for him or herself and for the agency.

Additionally, core values training addresses the nuances of policing privacy and the challenges confronting street-level officers—and their supervisors—in today’s technologically savvy world of cellphones, iPads, and laptops. This training educates officers in their agency’s mission statements and spells out the goals of the agency, the unit, or the precinct and can be referred to as a measuring stick for goal attainment or the lack thereof. The ethical issues officers face today are endless. From questionable searches, seizures, and arrests to racial profiling, excessive force, infliction of emotional distress, a failure to protect, false imprisonment, and due process violations, to list a few causes of action, policing is rife with street-level ethical dilemmas.6

Is there any doubt a “cop’s cop” must be a supervisor with well-defined core values and a habitual implementation of those values?


Concluding Thoughts

Police ethics training is not about “teaching morality,” it is about discussing, recognizing, and problem solving in regard to the serious ethical dilemmas associated with the job.7 Educating in the contemplative duty all sworn members have when confronted with a set of facts that may have a negative ripple effect on their careers, their organization and the image of the profession itself is paramount. This is not solely about “coffee shop ethics” of the past, rather it is about recognizing the more advanced ethical challenges in policing today.

These newer challenges are associated with technological advances; a more astute, informed, and demanding public; and potential liability issues. Despite the fact that most police investigative work is conducted in the seclusion of the streets and back alleys and through infiltration operations—all outside of the purview of first line supervisors, the public, and the media—officers do not work in a vacuum. If anything was learned from the tragedy of the Rodney King incident, it is that someone, somewhere is always watching, even colleagues whose sworn duty is to report alleged misconduct. In the alternative, as a deterrent, officers should always respect the nobility of the profession. Ethical Defensibility training reinforces the whistleblowing demands of the job and forces sworn personnel to repeatedly get in the habit of holding themselves up to the highest standards of the profession.

Public servants, and specifically the police, do not have a choice to act ethically; it is a mandatory part of the job description. It is a de facto standard of the profession, in that, plaintiff’s attorneys will use poor training and policy non-compliance arguments as the foundations for their lawsuits for constitutional rights violations. The Bill of Rights limits the governmental authority the police have. The contemplative analysis instilled through Ethical Defensibility training empowers officers to comprehensively evaluate the “bigger picture” in all of their decision-making endeavors. When so many other agencies around the United States mandate core values training in their yearly curriculums, a conscious decision not to provide such training clearly can be argued to be organizational negligence. The costs of not engaging in ethics training far outweigh the costs to provide it.

From a risk management liability argument, training in ethical policing choices and defining your agency’s core values is a template for a successful defense in a civil court of law or labor law hearings. Unlike the law, wherein criminal procedures and case law continue to evolve as society’s needs and wants evolve, the philosophical tenets of policing have generally remained the same for decades. Continuity, stability, and uniformity are key components in facilitating police core values training, and the concept of Ethical Defensibility provides that foundation.

The upcoming articles in this series address the need in defining the core values critical to your agency’s successes and recognizing ethical conflicts unique to the police subculture. They will broaden the reader’s understanding of the ethical dilemmas within the profession and use policing scenarios or case law to give substance to the philosophical concepts associated with Ethical Defensibility training concepts. ♦

Notes:
1Stephen Maguire and Lorraine Dyke, CACP Professionalism in Policing Research Project (Canadian Association of Chiefs of Police, 2012), http://www.cacp.ca/media/library/download/1242/Survey_Results.pdf (accessed September 16, 2013).
2T.J. Martinelli and Joycelyn M.Pollock, “Law Enforcement Ethics, Lawsuits, and Liability: Defusing Deliberate Indifference,” The Police Chief 67 (October 2000): 52-57.
3Deary v. Glouster, 9 F3rd 191 (1993). A plaintiff’s attorney questioned a supervisor about Officer A’s “reputation of untruthfulness.” The supervisor testified he had no personal knowledge of such a reputation for “untruthfulness.” That opened the door for the plaintiff’s attorney to enter into the record Officer A’s internal disciplinary conviction for “untruthfulness” for credibility purposes. Officer A was brought back on the stand and had to admit, under oath, he had been untruthful in an internal investigation years earlier, and the jury was allowed to consider the veracity of his testimony in that criminal case.
4See the IACP’s Model Policy #121, Retaliatory Conduct by Employees (January 2012).
5Patricia A. Robinson, “Shared Responsibility: The Next Step in Professional Ethics,” The Police Chief 71 (August 2004): 76–81, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=360&issue_id=82004 (accessed September 17, 2013).
6Additionally, the list of problematic gray ethical areas regarding internal police administration issues is overwhelming. Abuse of sick time, lying in internal investigations, time theft, sexual harassment, gratuities, covering for a colleague (“I heard shots fired, but I was taking cover, so I didn’t see what happened”), not seeking medical attention for a citizen who clearly needs it whether he asked for it or not, “contempt of cop” (issuing misdemeanor tickets or making an arrest for disorderly conduct, not because the conduct was disorderly, rather the citizen was not respectful enough to the officer), sleeping on duty, sex on duty, drinking on duty, lying on one’s expense sheets, conflicts of interest, taking “police action” in off-duty civil matters, nepotism, cronyism, privacy violations not reaching a level of criminality, withholding exculpatory evidence from the prosecutor, and the list goes on.
7One of the authors created the Police Legal and Ethical Awareness Training Program, or the P.L.E.A.T. Program as part of a research project at Michigan State University. The basis of the program is to educate officers on legal and ethical transgressions, both on and off duty, that can subject them to disciplinary action using their own agency’s past disciplinary cases as well as case law to put meat on the bones of “doing the right thing.”

Thomas J. Martinelli, JD, MS, is an adjunct professor in Detroit, Michigan. He is a practicing attorney and an independent training consultant for both the Institute for Intergovernmental Research, Tallahassee, Florida, and the Michigan State University’s Intelligence Toolbox Program, East Lansing, Michigan. He trains in police ethics and liability and Intelligence Led Policing practices, specifically addressing Constitutional policing issues and privacy protections. He is a member of the IACP’s Police Professional Standards, Ethics, and Image Committee.

Lt. Col. Norman Beasley (Retired), Arizona Department of Public Safety, is Chairman of the Arizona Counter Terrorist Information Center, Intelligence Advisory Committee. He also is a training consultant for the Michigan State University’s Intelligence Toolbox Program, East Lansing, Michigan. He trains in counter-terrorism issues and Intelligence Led-Policing ideologies.

Police Ethics Series: Part Two of Four
“Ethical Defensibility: Using the Intelligence Led Policing Template to Avoid the Appearance of Unconstitutional Policing”

The concept of Ethical Defensibility provides all sworn personnel with the philosophical tools and analytical skills necessary to weigh value-based alternatives, resulting in the repetitive acts needed to protect, preserve and defend the integrity of the police profession.

Please cite as:

Thomas J. Martinelli and Norman Beasley, “Ethical Defensibility: Putting Police Ethics on Trial,” Police Ethics: Part One of Four, The Police Chief 80 (November 2013): 60–63.

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From The Police Chief, vol. LXXX, no. 11, November 2013. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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