By Thomas 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 Professional Standards, Ethics, and Image Committee; and David L. Carter, PhD, Professor of Criminal Justice, Michigan State University, East Lansing, Michigan, Director of the MSU Intelligence Toolbox Program
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.
hose in the Information Sharing Environment (I.S.E.) are tasked with the laborious duty of gathering, analyzing, interpreting, vetting, and disseminating information about alleged acts of criminality and criminal associations while simultaneously protecting the privacy rights of those they investigate. If there are truly any policies in the field of law enforcement that are philosophically based, with higher standards and modes of self-accountability, they are the policies, codes, and rules of the Intelligence Led Policing (ILP) paradigm. There is a critical, philosophical, and ethical reason for this, and all facets of the profession can take a page from this evolving paradigm in regards to constitutional accountability.
The ILP model demands such high legal and ethical standards because it encompasses the pre-crime realm of the conspiracy stages of criminality. Information gathering for the intelligence process involves balancing the privacy expectations of individuals (although they are in the planning stages of a criminal act or threat), with law enforcement’s need to thwart such criminal acts before they come to fruition. As seen from the recent past, many pre-crime behaviors are legal actions but have future, illegal intentions (as was the case with the Oklahoma bombing). Appreciating the balance between enforcing the law, constitutionally, and protecting the integrity of the process, ethically, is the key for success in the ILP function. So too, constitutional vigilance by all law enforcement personnel, at the pre-crime stage of investigations and during traffic stops and interviews, involves knowing the philosophical parameters of police authority and adhering to such parameters in the performance of their everyday duties. The unique sensitivities associated with the ILP model provides insight into such duties.
The gathering of tips, leads, and suspicious activities, regarding potential gang activity, terrorist acts, and organized crime or Racke- teer Influenced or Corrupt Organization (RICO) cases, delves into the handling of the Personal Identifying Information (PII) of target indi- viduals during the pre-crime stage. When mishandled, mislabeled, or disseminated in violation of codes, regulations, and strict policies, the potential for serious liability exists and breaches the strict tenets of the ILP model. These guidelines, regulations, and policies are drafted to specifically protect the integrity and core values espoused within the I.S.E. and are policed by all who participate in the intelligence function. Knowing the law, respecting the rules of 28 CFR Part 23, and vigilantly honoring the core values associated with handling the PII of all citizens (target or innocent) is the key to avoiding allegations of “unconstitutional policing” and is a defense in a court of law.
Respecting the Spirit of the Law
On a law enforcement continuum of proofs, the pre-crime realm of ILP and conspiratorial acts is found to the far left of mere suspicion, reasonable suspicion, and probable cause. The further left on the proofs continuum, or the lesser amount of validity and reliability one has regarding a tip or lead, the higher the systemic accountability associated with privacy expectations. The handling of the PII of target individuals is a very sensitive process. It involves an acute understanding of both the legal and ethical ramifications of prejudicial decision-making processes and the costly liability associated with policy non-compliance, privacy rights violations, or worse, allegations of racism, classism, corruption, or negligence.
Many times, civil libertarians and critics of the ILP function cannot argue that specific intelligence methods are illegal from a criminal statutory definition. Rather, they will argue that the secrecy of the information gathering methods or expanded scope of legal authority in such investigations are “creepy” and have an air of impropriety about them. They do not champion the illegality of the acts; rather, they argue that the philosophical “spirit of the law” has been breached. Their contention is that law enforcement methods of infiltration and warrantless searches used to sidestep the Fourth Amendment are an occupational breach justified by some in the ILP realm to protect and serve.
When law enforcement officials misuse their authority, circumvent the rules of their profession, and rely more on their personal prejudices and less on their training, education, and street experiences, they subject themselves and their agencies to accusations of racial profiling, constitutional rights violations, and negligence. For example, once in a great while, an officer might suggest that all Muslims are extremists or jihadists; thus, all Muslims (or Middle Easterners) must be scrutinized (or unconstitutionally searched or surveilled) because as jihadists, they all hate Americans, are terrorists, or have terrorist ties or sympathies.
It is this naïve, broad-brush mind-set that leads officers to commit acts of unconstitutional policing, engage in privacy rights violations, and subject their agencies to potential federal civil rights investigations and civil liability. It must zealously be avoided at all costs. Knowing the law, understanding the spirit behind the laws, respecting constitutional limitations, and policing each other, in the ILP realm and in policing in general, is a formula for professionalism, successes, and public appreciation. Minimizing all litigation, through education and training, is managing risk.
Not unlike the ILP training paradigm, defining key concepts regarding your agency’s core values, high ethical expectations, and the need for strict adherence to “character policies” is a recipe for defensive success whenever an agency’s enforcement decisions are challenged in a court of law. These proactive steps demonstrate an agency’s due diligence to avoid negligence. Too many times, agencies spend an inordinate amount of training focused on the law (and its exceptions) and less on the spirit behind the laws themselves.
Today, judges and juries are looking at law enforcement’s intentions, motivations, and biases in civil rights violation cases, especially when there is a lack of articulable or definable criteria to support probable cause or even reasonable suspicion to take police action. Whether a traffic officer searches a vehicle with a drug sniffing dog or a special unit decides to infiltrate a suspicious group or gang or simply retains PII on its members, respecting both the law and the spirit behind the Fourth Amendment limitations is the key to success. U.S. Supreme Court case law and the core values of the profession reflect the higher standards of character and nobility law enforcement officers are held to and has become a key component in courtrooms around the United States.
Simply put, the philosophy behind the Fourth Amendment’s restrictions on searches and seizures is limited in scope to protect the sanctity of privacy all citizens enjoy, whether innocent, suspicious, or criminal. If the police arbitrarily expand their searches in such a fashion without articulable, definable, and defensible cause, such actions belie the spirit of the law. This was not the intent of the drafters of the Constitution, nor is it acceptable in today’s courts of law. Ethical defensibility training incorporates conditioning officers to always contemplate the big picture; to balance their duty to protect and serve with their duty to obey the law, literally and figuratively; and to ethically serve. This training module emphasizes the need to protect the integrity of the profession, to engage in thought-out, knowledgeable decisions based on specific execution of the law, core values, and policy adherence and implementation. This lays the foundation for a credible defense in both criminal and civil courts.
Defining Your Agency’s Core Values for Uniform Implementation
Words are tools for success in all facets of policing, as well as in criminal and civil courts and labor law hearings. Words, labels, and categorizations, when used proficiently, can obtain successful convictions and search warrants and can be effectively used to defend against allegations of unconstitutional policing, wrongful discharge, sexual harassment, and disciplinary sentences. Yet, when used negligently or prejudicially, they can be very costly to law enforcement organizations in all courts of law, from slander and libel actions to intentional infliction of emotional distress and defamation within the business community. Agency trainers, first-line supervisors, and chiefs cannot afford to assume all sworn personnel understand and accept the philosophical tenets of the profession. Omitting such training blocks has proven to be costly, and it can be considered organizational negligence.
For example, 28 .CFR Part 23 training for the I.S.E. encapsulates the intended spirit of the law while reinforcing the critical core values needed to engage in the gathering, analyzing, and disseminating of criminal information and intelligence. It is simply a rule, a code, an oath, but with words and policy implications that need to be strictly adhered to in order to preserve, protect, and uphold the integrity of the I.S.E. It is a code that directly applies to the highest standards regarding individuals’ character in policing. The negligent, or worse, prejudicial use of words or labels in a police report, warrant request, or intelligence bulletin, more times than not, will result in constitutional rights violations litigation. Such negligence, gross or prejudicial, can lead to causes of action in libelous or slanderous lawsuits, intentional
infliction of emotional distress, and loss of business or reputation in the community, as mentioned above, as well as constitutional rights litigation for violations such as racial profiling, breaches of privacy, and due process-equal protection of the law.
The federal statute that addresses negligent acts of law enforcement personnel that subject citizens “to the deprivation of any rights, privileges or immunities” guaranteed to them through the U.S. Constitution is 42 U.S.C. 1983. (18 U.S.C. Sections 241 and 242 address the more serious intentional and conspiratorial deprivations of rights.) Most state laws strictly adopt the verbiage found in Section 1983. The ILP training model, and more specifically, 28 CFR Part 23, provides meticulous guidance and de facto standards used in the field of intelligence emphasizing a uniform template (for all intelligence functions) demanding a focused discretion, precision, and implementation of the core values associated with the “pre-crime realm” as a basis (and defense) for all intelligence-related decision-making processes.
The ILP codes, standards, and guidelines, when zealously followed, provide a uniform defense against plaintiff attorneys’ allegations of privacy violations, racial profiling, and civil liberty deprivations. Such police discretion is obtained through rigorous training, field experience, and common sense. The decision-making processes emphasize the cognizant slant toward defensible, legal, and ethical contemplation, weighing all competing alternatives and arriving at an educated, defensible strategy. To establish liability, plaintiff attorneys try to create a nexus between their clients’ alleged damages (or harm) and an agency’s broken system or policy non-compliance.
They will attack an agency’s poor training and poor adoption or teaching of core values and claim any resulting illegal or unethical acts were due to training deficiencies. They try to demonstrate to a civil jury that the agency’s overall system of accountability is flawed, in comparison to agencies around the United States, and thus, organizational liability is clear. The argument is that if an officer repeatedly engages in unethical policy violations, this demonstrates a disrespect for laws, policies, rules, authority, and the profession itself; therefore, it is reasonable to believe he or she could engage in unconstitutional policing.
One of the criticisms civil libertarians raise regarding the relatively new ILP paradigm is that, because it is not precise in its implementation, it results in innocent Americans’ privacy rights being trampled through data mining and a broad-brush approach to information gathering. They allege that the U.S. Constitution was drafted specifically as a guideline for precision so as to avoid such arbitrary and invasive violations. Unfortunately, such a narrow interpretation of the application of consti- tutional law would fail to benefit a democratic society of diversity, whose needs and wants continually evolve as time goes on. In fact, the drafters of the Constitution intentionally used words of generality, philosophy, and equity in order not to handcuff those whose job it was and still is to protect and serve, legally and ethically.
The philosophical nature of the Constitution as a document that both grants citizens’ rights and allows for the needs of law enforcement to access certain information demands an ongoing balancing assessment, as demonstrated by the U.S. Supreme Court’s statement that “while the Constitution protects against invasions of individual rights, it is not a suicide pact.”1 The court, here, emphasized that each case will be adjudicated on its facts and merits, and a reasonable conclusion will be drawn in relation to constitutional law applications and the spirit behind the law. The application of law cannot be bent over backwards to protect individual rights to the detriment of society’s expectations to be free from crime and disorder. This is why U.S. Supreme Court case law employs words and concepts such as “reasonableness,” “good faith,” “due process,” and “equity,” allowing reasonable minds to use common sense and apply the law in a fair and equitable manner. This fair and equitable application of constitutional law balances law enforcement personnel’s need to protect and serve with their duty to perform such tasks with integrity and professionalism.
It is critical that words and labels such as jihadist, terrorist, extremist, unindicted coconspirator, Sovereign Citizen, the Bloods, or the Crips are specifically defined, with defensible criteria, within your agency’s differing units and by those who work in the I.S.E. In the pre-crime realm, it is not only imperative that such definitions are defined as precisely as possible, but it is also incumbent that those who gather, collect, and store criminal information on target citizens zealously pursue the validity and reliability of the data they obtain. Just as the proper use of words are tools for success, they can also be used against law enforcement personnel in a court of criminal or civil law.
Intelligence analysts (not necessarily sworn personnel) are trained to be even more precise. Their mantra is, by necessity, “as precise as possible.” Their training encompasses the use of inductive and deductive reasoning to analytically weigh each tip, lead, and suspicious activity report for validity, reliability, common sense, and its place in any potential threat picture. They are specifically trained in weighing competing hypotheses in regard to the suspicious activity reports they receive in relation to target citizens’ behavioral signatures and are tasked to put together a threat puzzle without having all of the pieces. Preventing serious crimes in their jurisdictions is critical, but intelligence analysts recognize they are obligated to protect the privacy expectations of innocent citizens whose names erroneously ended up in a tip or lead file. The words they use, the core values they bring to their job, and the constitutional respect and sensitivity they employ daily, exemplifies the highest ethical standards found in law enforcement. Theirs is a template of success that all law enforcement personnel should emulate.
Core Values Training to Minimize Risk in Court
Ethical Defensibility training needs to be as precise, as uniform, and as zealously implemented as possible during all law enforcement investigations. The curriculum should address the core values critical to the leader of the organization. One must consider how to define such core values in addressing ethical dilemmas in policing, both on and off duty, and examine how the agency’s policies reflect the expectations placed on officers. For example, all officers have a mandatory duty to report misconduct—their own or their colleagues. Are there examples of best practices (or lessons learned) within the agency that best define and illustrate administrative expectations? Are the disciplinary processes designed to implement an agency’s expectations in order to appropriately discipline employees for policy non-compliance and reduce the appeals process?
The citizens an agency serves (as well as the rank and file) need to know that the discretionary use of their public servants’ police powers, day in and day out, are based on solid legal and ethical thought processes. These processes are a learned skill set acquired through years of training and experience passed down from generation to generation of officers. With so many conflicting values in the police profession, it is incumbent that the training curricula address core values expectations in order to provide a basis for these decision-making processes. It provides a template of continuity and a defense in legal proceedings. Long gone are the days of giving a recruit a badge, a gun, and the general orders and say, “now go do the right thing.”
One of the major challenges with this training is that philosophical discussions of police core values are, more times than not, difficult and abstract, resulting in a lack of uniformity, consensus, and clarity. Officers who understand the expectations of their agency’s leadership, when paired with an appreciation that the profession itself possesses competing, conflicting, and overlapping core values, provide a sound legal defense against charges of unconstitutional policing, noble cause corruption, and the wrongful discharge of duties.
In fact, most of the Department of Justice (DOJ) Consent Decree litigation against agencies across the United States address broken systems of both legal and ethical accountability. Offenses such as racial profiling, excessive force, privacy violations investigations, abuses of authority, poor investigative procedures, poor disciplinary processes, and a lack of meaningful subordinate evaluations involve more of a lack of core values implementation, rather than an overt failure to follow the law. Failing to follow the law is negligence; intentionally violating the spirit of the law is a more serious character flaw directly related to a breach of trust.
For this discussion, one must be cognizant of the modus operandi of plaintiff attorneys. In order to convince a judge or jury that an agency’s organizational negligence resulted in his or her client’s deprivation of constitutional rights, they will attack the policies, procedures, training curricula, supervision, and the overall implementation process or lack thereof. It is their goal to place in evidence a systemic failure of accountability on the part of the agency, which opened the door for unethical behavior by its officers. They argue that unethical cops are bad cops. They contend that an agency’s leaders’ deliberate choice not to engage in core values training, implementation, and zealous oversight of such character issues was an egregious omission and a direct cause for their client’s damages. In essence, they argue that the agency was negligent in the protection of their client’s guaranteed constitutional rights.
Their argument is “perception must be reality”; therefore, when there is proof or an appearance of a lack of professionalism, integrity, and respect for citizens, it lays the foundation they need to prevail in civil courts. With regular media reports of allegations of racial profiling, warrantless stops and searches, “testilying” (perjured officer testimony), and an overall daily disdain for minorities in the neighborhoods, plaintiff attorneys simply must prove there is a 51 percent more likelihood that a lack of comprehensive training, poor standard policy implementation, and inadequate supervision, coupled with cursory disciplinary slaps on wrists for serious policy non-compliance involving character issues, create a work environment rife with unethical officers, unaccountability, and misconduct.
Plaintiff attorneys also argue that chiefs and top administrators knew or should have known they had a “bad apple” in their ranks. Whether there are officer character issues regarding a “willingness to deceive” (which involves lying or omissions) or allegations of domestic violence, sexual harassment, or not “keeping one’s private life unsullied as an example to all,” once an officer’s disciplinary record is admitted into the court record, the agency has lost any benefit of the doubt.2 Whether in interrogatory answers, in deposition testimony, or in court, once it has been established that the officer has a history of poor character judgment resulting in past serious policy violations, this becomes a difficult hurdle to cross. The character of officers is such an elemental part of these types of proceedings, that there have been databases used to collect evidence of officer character flaws from their divorce proceedings, child support litigation, and other private civil litigation for the defense attorneys to access should they seek to impeach a police witness.3
Granted, not all personnel files are subject to the procedural discovery rules in civil law cases. Much of the time it is up to the judge to decide the relevancy of their admission regarding character flaws, unethical acts, and a lack of core values implementation. However, with the DOJ’s litigations so prominent in addressing unconstitutional policing and civil rights issues, it is not a stretch for judges to reasonably allow character issues into the court record, if relevant.
Even if the judge rejects the admission of personnel files, plaintiff attorneys have cleverly found a way to circumvent such obstacles. In the past, they have elicited sworn testimony from middle managers (in depositions or open testimony) regarding the subject officer’s character and disciplinary record. If the middle managers know of the officer’s disciplinary history, they must testify to that, and, if they were not aware of the officer’s disciplinary history, the plaintiff attorney can then motion for leeway to delve into such a sensitive area.
The plaintiff attorney’s goal is to demonstrate to the fact finder (the mediator, judge, or jury members) that (a) this officer has a lack of respect for the job, its expectations, and its high standards; (b) he or she repeatedly demonstrates this lack of respect through unethical acts and policy non-compliance, (perhaps evidenced by citizen complaints); and (c) the agency knew (or should have known) this was a poor employee and should not be trusted in public service, but they took no or minimal corrective action in re-training, reevaluating, or removing this individual.
Additionally, plaintiff attorneys depose the agency chief, asking about the drafting of policies, the chief’s interpretation and implementation of relevant policies, possibly their definition of core values, and prior disciplinary measures taken against other employees who have violated policies pertinent to the misconduct allegation being adjudicated in the case before them. Then they depose assistant chiefs, captains, lieutenants, and sergeants in the chain of command and ask them the same questions in an effort to elicit different answers. Then, finally, they depose the officer or officers involved in the case and again try to elicit different answers to the same questions and same policies. By the time mediation of the case arrives, or the trial date, they have amassed evidence of subjective, arbitrary, possibly confusing, and individual interpretations of the same policies for the same agency. They fortify their agency negligence argument (deliberate indifference) by demonstrating that a lack of training, poor policy education of subordinates, and individual supervisory subjectivity are the direct cause for their client’s constitutional rights deprivation or other cause of legal action. There is no defense to such an argument if Ethical Defensibility training never occurred.
Ethical Defensibility training provides value added to an agency’s successful efforts toward maintaining its professionalism. Whether the training is in defense strategies in courts or labor law hearings or intended to deter officers from ever engaging in misconduct or to give whistleblowers the courage to step forward and report colleague misconduct, it is a tool for uniformity and accountability that provides philosophical perspective for the entire workforce.
Everyone makes mistakes, and at times, any person may act professionally unethical when backed in a corner. It is what is learned from those mistakes that make officers the professionals that they are. No one has all of the answers regarding the delivery of police services. Deliberate indifference, as a cause of action, entails a pattern or practice of an agency’s broken disciplinary system, commencing with poor training curricula through to poor disciplinary accountability. The key is for vigilant supervision, a department-wide commitment to core values training and implementation, and an effort to maintain that professional pride that brought officers to public service in the first place.
The ILP philosophy of policing oneself, each other, and even other agencies is a strong template to follow. Precision in the words and labels the I.S.E. uses, a healthy respect for the privacy guarantees citizens and the media have come to expect, and a cognizant effort to minimize or eliminate police malpractice in the profession are a recipe for success. The old insurance industry saying, “pay us now or pay us later” is applicable here. Invest now in training subordinates using the Ethical Defensibility concepts to adopt the core values critical to you and your organization (both in the academy and in annual in-service training) and avoid the astronomical costs (of taxpayer monies and to the agency’s public image) associated with unnecessary and avoidable civil litigation down the road. ♦
1Kennedy v. Mendoza-Martinez, 372 U.S. 144, 162 (1963).
2The International Association of Chiefs of Police, "Law Enforcement Code of Ethics," http://www.theiacp.org/PublicationsGuides/ResearchCenter/Publications/tabid/299/Default.aspx?id=82&v=1 (accessed November 1, 2013).
3Lisa A. Judge, “Disclosing Officer Untruthfulness to the Defense, Is a Liars Squad
Coming to Your Town,” The Police Chief 72 (November 2005): 10–11.
|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 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. |
David L. Carter, PhD, is a professor of criminal justice at Michigan State University (MSU), East Lansing, Michigan, and the director of the MSU Intelligence Toolbox Program. Dr. Carter manages several intelligence training grants from the Department of Homeland Security, is a member of the Justice Intelligence Training Coordination Working Group, and is the author of the Community Oriented Policing Services (COPS)-funded book, Law Enforcement Intelligence: A Guide for State, Local, and Tribal Law Enforcement Agencies.
|Police Ethics Series: Part Three of Four |
“Ethical Defensibility: Minimize Liability by Clarifying Conflicting Police Values”
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 David L. Carter, “Ethical Defensibility: Using the Intelligence Led Policing Template to Avoid the Appearance of Unconstitutional Policing,” Research in Brief, The Police Chief 80 (December 2013): 52–56.