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 Joseph A. Schafer, PhD, Professor and Chair of the Department of Criminal Justice, Southern Illinois University Carbondale, Illinois.
|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.|
olicing philosophies are complex, sometimes confusing, and definitely conflicted. Police academics, leaders, and trainers are often guilty of emphasizing philosophical platitudes such as honor, integrity, honesty, loyalty, duty, and professionalism in their law enforcement curriculums, while failing to elaborate on the practical applications of such concepts. They omit tangible examples of what these concepts mean, how they translate to real street-level scenarios and how officers should resolve situations when various legal and ethical job-related concepts conflict.
From a civil liability perspective, officers need a clear understanding of what the consequences are for policy non-compliance and failing to “do the right thing” when confronted with ethical dilemmas. Ethical Defensibility training in core values puts the “meat on the bones” of this issue in regard to implementation of these concepts, provides a legal defense to rational decision making, and preserves the nobility and image of the profession.
An agency’s failure to specifically define what it means to act with honor, integrity, and professionalism (or their antitheses) can result in confusion and subjective applications. Worse, it can potentially lead to organizational liability for negligence. Officers need an understanding of how these concepts apply to both their on-duty and off-duty behavior. There is the theoretical side to core values training in public service, and there is the more challenging realistic application. Many times these two are diametrically opposed to one another and internal, subcultural conflicts arise. Policing is truly a conflicted profession and core values training is a component all agencies must embrace to provide their rank and file with the uniform, ethical analytic tools needed to succeed in their chosen profession.
Professor Jerome H. Skolnick penned one of the early pieces on police ethics, character, and deception. His characterization best sums up the thesis of this article:
Police thus work within a severe, but often agonizingly contradictory, moral order, which demands certain kinds of fidelities and insists upon other kinds of betrayals. The milieu is normatively contradictory, almost to the point of being schizophrenogenic. Norms regarding deception, written and implied, abound in this moral order.1
Ethical Defensibility training provides trainees with consistent definitions, guidelines, and standards of practice, critical to an agency’s policy makers and specifically unique to their organizational needs. It gives officers enough discretionary decision-making authority to allow for individual, subjective interpretations in the application of these major policing tenets within the constraints of any agency’s core values paradigm.
Applied Ethics: Using the Code for Clarity and as an Organization Due Process Defense
Today’s critics of the IACP Code of Ethics (Code) (union representatives, plaintiff attorneys, and some civil libertarian groups, to name a few), argue that the tenets of the Code are often unattainable, unenforceable, and unrealistic. They claim that the Code is philosophical in nature, sounds good when recited at academy graduations, and is full of “feel good” postulates and platitudes. It is not, however, an attainable template for real-world standards officers can easily apply on the streets, on the job or in their personal lives.
Granted, the Code can be arbitrarily abused by management to discipline officers for non-compliance and many times is conflicted itself through contradictory applications. Some critics side with the argument that while the Code is appealing because of its symbolism, no agency can strictly use this verbiage to discipline officers. Its concepts are too broad, too vague, and too subjective in nature to use in labor and disciplinary hearings or courts of law. Time and again, agencies have been frustrated in their efforts to terminate their non-compliant, “bad apples” because of “void for vagueness” arguments. Failing to give notice of what an agency considers “unethical behavior” violates the fair and equitable philosophies of the U.S. legal due process system. Time and again, bad cops are reinstated by arbitrators or appellate jurists due to their successful use of the “void for vagueness” defense by their attorneys.
The Code’s verbiage is a bit lofty as written, but it is not as difficult in its application as some would suggest. The key is to recognize that ethical conflicts exist in policing. The profession is “schizophrenogenic” and it is critical to provide guidelines of clarity and uniformity for officers through effective leadership and training. The real-world ethical dilemmas officers face on a daily basis deal as much with conflicting concepts as they do with the conflicting discretionary police supervision regarding “doing the right thing.” Failing to define an agency’s definitions and unique applications of ethical policing could result in allegations of abuse, arbitrariness, and favoritism.
For example, the Code dictates that officers must always be “honest in thought and deed” both on and off duty, always keeping one’s “private life unsullied as an example to all,” and never “permit personal feelings, prejudices, political beliefs, aspirations, animosities or friendships to influence my [the individual officer’s] decisions.”2 A strict application of the Code suggests officers must be more like robots than arbiters of human social interactions. Differing interpretations of the Code (and its resulting applications) can be subjective and arbitrary, so much so that the Code can be misused, abused, and contorted by management and rank and file. Arbitrary and conflicting application of the Code’s tenets can lead to repeated losses in arbitration hearings, wrongful discharge lawsuits, and lowered morale that agencies can ill afford.
All parties benefit when agencies educate their personnel about subcultural definitions of ethical concepts, outline ethical priorities, and discuss street level ethical dilemma scenarios. Administrators and trainers must define, discuss, and illustrate exactly what the agency’s expectations are and how a breach of those expectations can result in disciplinary action. Scenarios, examples, and an ongoing ethical dialogue are all helpful to develop a better agency-wide philosophical awareness. This training fosters a greater understanding that legal but unethical behavior could still result in serious disciplinary outcomes. Such training is critical to defend an agency against a disciplined officer’s “lack of notice defense,” under the due process clause in either labor arbitration cases or civil litigation.
The Policy Conflicts of Whistleblowing, Loyalties, and Deception in Policing
When officers have direct or vicarious knowledge of illegal, unconstitutional, or unethical conduct by co-workers, the expectation that they will act as a whistleblower is rife with conflicting duties, loyalties, emotions, and resolve. By no means is it suggested that whistleblowing is easy, stress free, or a routine activity. It takes courage, soul searching, and a belief that administrators, co-workers, and the public will support and protect the whistleblower rather than the organization’s image. It is admirable for administrators to demand that all employees report the illegal, unconstitutional, or unethical transgressions of their co-workers, both on and off duty, but clearly it is easier said than done.
There are challenges in rewarding and protecting all whistleblowing employees for their exemplary actions. Whistleblowing in any profession can result in incompatible and conflicted loyalties. More times than not, it requires a courageous resolve, wherein, an officer’s duty and loyalty to his or her colleagues is ethically trumped by the subculture’s oath of office, a commitment to the ideals of the profession and the noble image associated with policing.
Whistleblowing on “lesser” forms of unethical police acts (such as accepting gratuities, lying [not perjury], or drinking/ sleeping on duty) is even more challenging. The potential to ruin a fellow officer’s career, jeopardize a friendship, and breach a code of loyalty over a subjective, philosophical duty to report unethical transgressions can be interpreted as an unrealistic expectation. Looking the other way, handling it on a personal level, or simply ignoring the policy violation may be viewed as more realistic alternatives for officers than strict policy compliance (i.e., reporting misconduct). Such a subcultural loyalty to shift-mates and supervisors, it has been argued, is the highest virtue in policing and often is “exclusive” of many other occupational virtues.3
In order to protect and preserve the integrity of the profession, police administrators and middle managers must take disciplinary action against employees who violate policy as well against those who “cover” for such non-compliant act. Trainers must recognize and discuss this conflicted loyalty between coworkers and their occupational duty to report misconduct. Police leaders must emphasize the acceptable alternatives available so officers are mentally and emotionally prepared for such ethically challenging scenarios. When compelled to report wrongdoing of police coworkers, it is more personal than professional, more emotional than utilitarian (the greatest good for the greatest number), and more difficult because it is about “affection rather than reflection.”4
Deception in Policing Truly Is Schizophrenogenic: Discuss It!
A tenet of the IACP Code of Ethics that requires officers be “honest in thought and deed” is truly one of the most challenging core values in policing. Honesty has so many differing connotations, both on and off the job, that one could argue it is a double-edged sword. Clearly, certain police deceptions are necessary in the war on crime. Nonetheless, a failure to educate personnel in the nuances and conflicts associated with truth telling (or lack thereof), legally accepted police deceptions, and the ills of “testilying” can expose agencies to unnecessary liability.5 Whether in lawsuits, in the good will of the public, in credibility in the courtroom, or in the termination of veteran employees who lost their focus, occupational conflicts in the application of police deceptions can greatly affect the morale of any organization.
Police literature has volumes of articles, studies, and case law that deal with the use of deception within the law enforcement profession. From an accepted police “Typology of Lying” (see accompanying box) to a “No Lies Policy” and everything in between, agencies must have a specific block of training that defines, quantifies, limits, and explains the nuances associated with police deceptions, lies, and omissions.6 The “deception paradigm” in law enforcement never changes. It may at times be reshaped, paired down, or even judicially expanded, but it rarely loses its ethical foundations as applied to the nobility of the police profession.
|Defining the Typology of Lies in Policing|
Accepted Lies (defensible or sanctioned)
- Used to control a citizen without having to use force
- Deception in undercover work or sting operations
- Lying to the media/public to protect the innocent (i.e., during a kidnapping case), calm the public during a crisis, or close in on a predator
Tolerated Lies (necessary evils)
- Not admitting to a lack of resources to prevent or solve crimes
- Deceptive techniques used in interrogations
- Lying about selectively enforcing the law
- Misrepresentation of an agency policy to the public, for the sake of image
Deviant Lies (illegal, unconstitutional, policy non-compliant)—those that violate substantive and procedural law and policy to achieve perceived legitimate goals of an agency.
- Testilyng in court (perjury)
- Lying during Internal Affairs investigations to cover up wrongdoing of oneself or colleagues
- Lying in civil proceedings to cover up policy non-compliance in depositions or interrogatories
Professor Skolnick’s article on policing deceptions is a comprehensive, seminal, and thought-provoking essay that addresses the philosophical norms regarding the differing levels of police deceptions. Lying can be an element of “good” “acceptable” front-line police work, from post hoc manipulations of facts to the paradox of interrogation methods (lying to obtain the truth) or it can be illegal and unconstitutional with the suppression of potentially exculpatory evidence for short-term, myopic purposes.
The policeman lies because lying becomes a routine way of managing legal impediments—whether to protect fellow officers or to compensate for what he views as limitations the courts have placed on his capacity to deal with criminals…Thus, the policeman characteristically measures the short-term disutility of the act of suppressing evidence, not the long term utility of due process of law for protecting and enhancing the dignity of the citizen who is being investigated by the state.7
Herein lies the bipolar administrative challenges deeply imbedded in the police profession. Clearly there are inherent contradictory norms associated with lies or mistruths committed within policing and the challenges top administrators face in disciplining subordinates who work in this schizophrenogenic occupation. Many times, the law and courts condone the detective, vice officer, or street investigator’s employment of deception or untruths in order to get to the truth to fight crime. The problem with this, Professor Skolnick hypothesized, is that such “judicial condonance” of investigative half-truths and embellishments could directly lead to embedded police perjury in courts.8 This balancing of deceptions must be illuminated, for all police personnel through in-depth training modules, that clearly define the differences between lies for justice (unique to the profession) versus lies that are unconstitutional (also unique to the profession) and lies that are employed to cover up policy non-compliance. Skolnick’s message here is clear. With this “ends justifies the means” rationale, the profession (to its own detriment) perceives the legal system as full of due process hurdles, constitutional impediments, loopholes, and legal obstructions. Instead of the U.S. Constitution being perceived as a tool for police successes, it is seen as an inconvenient obstacle that sometimes requires deceptive circumvention in order to achieve its ultimate goal, convictions.
When to lie and when not to lie is a blurred occupational line or slippery slope in policing that can be very costly in regard to an agency’s public image or to an individual officer’s career, or both. Failing to extensively train in the levels of deception of policing (both acceptable and unacceptable) and the complexities associated with deciphering the different conflicts found within policing, is possibly organizational negligence in and of itself. Further complicating this issue is the morality behind “police placebo lies,” mistruths, half-truths, or statements meant to “protect,” used by law enforcement to calm citizens, pacify their concerns, or protect citizen victims during an ongoing crisis, such as the recent school hostage situations. The challenge here is defining the moral justifications and differentiations (and conflicts) between “placebo lies,” deception, and unconstitutional lies.9
What other public servant profession has its own “typology of lies” that have, in part, been condoned in limited application by U. S. Supreme Court case law? Professors Barker and Carter comprehensively discussed this typology of lies to better illustrate the innate conflicts found within the police profession.10 They categorize the differing types of lies in law enforcement as accepted lies, tolerated lies, and deviant lies. All administrators and trainers should have a working understanding of their typology. Clearly a typology of lies is in diametric conflict with the IACP Code of Ethics, Oath of Honor, and the IACP Model Policy on Standards of Conduct, regarding honesty and the tenets of police integrity and character.11 Reconciling these philosophies and elaborating on their innate conflicting existence is one of the challenges embraced in Ethical Defensibility training.
Knowing the law, successfully enforcing the law, and respecting the spirit behind the law are key to criminal procedural successes in the criminal justice system, specifically regarding law enforcement. The same holds true for strict policy compliance. Teaching and educating your workforce on your agency’s core values expectations such as being “honest in thought and deed,” including what that means and the exceptions associated with this virtue, can minimize an agency’s liability regarding truthfulness and character issues down the road.
With Ethical Defensibility training modules, officers can be armed with the knowledge and education necessary, along with a template for employing uniform ethical responses. Additionally, this template can be used as a good faith defense in both criminal and civil courts to allegations of racial profiling, illegal searches, and unconstitutional policing charges, in general. Officers confronted with ethical dilemmas can “do the right thing” by recognizing that complex realities of human interactions may complicate their efforts toward achieving their ideal visions of high ethics and morality. The challenge for police leaders and personnel “is how to embody idealized traits and habits (the Code’s tenets) within imperfect systems and dynamic circumstances, while bearing the burden of being a fallible human.”12
A Costly Case Scenario of Conflicting Values
Whether egos, pride, arrogance, ambition, or “noble cause corruption,” what compelled a presiding judge, prosecutor, and two narcotics officers to engage in a deceptive conspiracy to withhold the truth in a major drug case might never be known. What is known is that from a risk management viewpoint, all four veteran public servants lost or quit their jobs and lost their credibility, good names, possibly their pensions, and their liberty. A brief summary of this incident illustrates the thesis of this article.
It has been widely reported that in this incident a paid drug informant repeatedly perjured himself in a major drug case in order to achieve a conviction.13 He testified that he did not know the narcotics detectives prior to this major drug case, that he had no idea cocaine was in several duffel bags that he possessed during the drug deal and implied that he simply was a “mule” caught up in a major drug ring.
The conspiratorial problem here for the officers, prosecutor, and eventually, the judge was that this paid informant had been used before this case by these narcotics officers and that he initiated the actual drug buy and was party to the whole sting operation. His testimony was the same at the preliminary exam and two evidentiary hearings as well as during several criminal trials. Such a conspiratorial deception by the government’s agents prevented the accused’s defense counsel from attacking their credibility.
Neither the officers nor the prosecutor made any attempts to correct this deception, and in fact, the prosecutor told the judge privately in chambers of this perjured testimony and the need to allow it in order to protect the informant. The judge not only agreed to allow the perjury to remain undisturbed on the record, but she also condoned the withholding of this information from the defense, the jury, and ultimately, the public. Furthermore, in closing arguments, the prosecutor championed the “mule” role the paid informant played and minimized his function in the entire arrest process.
Once the truth was exposed on appeal, this prosecutor pled guilty to a single felony—misconduct in office— and was sentenced to 6 months in jail and disbarred. The two officers pled guilty to the misdemeanor charge of willful neglect of duty, were sentenced to 90 days in jail, and lost their jobs. All three individuals faced felony charges of conspiracy to commit perjury, which carried a potential life sentence, as well as several other related felonies. Each of them cut a plea deal to the charges described above. The judge’s case has yet to be tried.14
Whether it was deceit by commission, deceit by omission, or deception through a willful neglect of duty, media pundits validly questioned if this was a first time instance or if this type of deception was part of previous cases in the jurisdiction. Was this an isolated incident wherein good public servants lost their professional focus and moral compass in an effort to protect society from a serious predator, or was it a pattern or practice that was finally discovered?
Though there is no defending the egregious actions of these individuals, noteworthy for this discussion of core values is the ever-present rationalization of their actions regarding conflicting values. In policing there is always a balancing of interests. On the one hand, public servants are tasked with serving citizens and protecting them from criminal predators. On the other hand, upholding the philosophical and constitutional tenets (and integrity) of policing demands transparency, vigilant respect for all citizens’ constitutional protections, and the potential of losing a case as a result of these demands.
Telling lies, encouraging lies under oath, and a conspiratorial willingness to deceive or cover up others’ misconduct perverts the criminal justice system as a whole. When one’s role is the overt duty to pursue the truth, as officers, prosecutors, and judges are tasked to do in the U.S. legal system, such corrupt dealings by those individuals are “flawed and unconstitutional” and “disgraceful and plainly reprehensible,” as experts and jurists alike have opined.15 Clearly, this particular incident was a costly lessons learned example of core values gone awry.
Ethical Defensibility training helps define an agency’s core values by clarifying what is unacceptable, unethical behavior. It also gives all employees notice and a better understanding of common whistleblowing scenarios in order to address the innate conflicts found in policing concepts. It illustrates an administrative commitment toward bettering the police product and addresses the need to see the bigger picture—the need to protect the integrity and image of the agency (and thus the profession)—and dictating the need for all employees to vigilantly police themselves and each other, both on and off duty. Ethical Defensibility demands that law enforcement professionals hold each other accountable to the highest ethical standards associated with this noble calling.
Admitting mistakes were made and understanding how to avoid the same mistakes in the future fortifies an agency’s commitment to professional policing. More times than not, the discipline meted out for the “cover up” is far greater than the discipline officers would have received had they admitted to or reported their wrongdoing. The old police adage “you lie, you die” encapsulates the management mantra that misdeeds and mistakes can be forgiven, but intentional deceptions, conspiracies, and cover-ups cannot. ♦
1Jerome H. Skolnick, “Deception by Police,” Criminal Justice Ethics 1, no. 2 (Summer/Fall 1982): 40–54.
2IACP, “Law Enforcement Code of Ethics,” http://www.theiacp.org/PublicationsGuides/ResearchCenter/Publications/tabid/299/Default.aspx?id=82&v=1 (accessed November 26, 2013).
3John Kleinig, Handled with Discretion: Ethical Issue in Police Decision Making (Lanham: Rowman & Littlefield, 1996).
4Joycelyn M. Pollock, Ethical Dilemmas and Decisions in Criminal Justice, 5th ed. (Belmont, CA: Thomson-Wadsworth, 2007).
5The Mollen Commission coined the phrase “testilying” in 1994 by combining police officer testimony, under oath, with lying, or perjured testimony, to make a case stick against an accused wherein minor oversights may have occurred, procedurally, that if revealed, could result in an acquittal of all charges. See Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, Commission Report (New York, 1994 ) 36, http://www.parc.info/client_files/Special%20Reports/4%20-%20Mollen%20Commission%20-%20NYPD.pdf (accessed November 26, 2013).
6Jeff Noble, “Police Officer Truthfulness and the Brady Decision,” The Police Chief 70, no. 10 (October 2003), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=118&issue_id=102003 (accessed November 26, 2013).
7Skolnick, “Deception by Police.”
9Carl B. Klockars, “Blue Lies and Police Placebos: The Moralities of Police Lying,” Am. Behavior Sci. 27, no. 4 (March–April 1984): 529, 535 and 543.
10Thomas Barker and David L. Carter, eds., Police Deviance, 3rd ed., (Cincinnati, OH: Anderson Publishing, 1994): 153–167.
11IACP, “Law Enforcement Oath of Honor,” http://www.theiacp.org/LinkClick.aspx?fileticket=Kjd0kaxsqgg%3d&tabid=150 (accessed November 26, 2013); IACP National Law Enforcement Policy Center, “Model Policy on Standards of Conduct.”
12Joseph A. Schafer, Effective Leadership in Policing, Successful Traits and Habits (Carolina Academic Press, Durham, North Carolina, 2013): 51.
13Joe Swickard, “Former Inkster Cop Sentenced in Drug Perjury Scandal,” Detroit Free Press, March 23, 2011, http://lawreport.org/ViewStory.aspx?StoryID=5949 (accessed December 26, 2012).
14Joe Swickard, “Wayne County’s Former Top Drug Prosecutor Disbarred after Perjury Scandal,” Detroit Free Press, March 21, 2012, http://www.freep.com/article/20120321/NEWS02/120321022/Wayne-County-drug-prosecutor-scandal-disbarred (accessed December 26, 2012).
15David L. Moffitt, “Court Rejects Appeal over Drug Trial at Which Judge, Officials Allegedly Lied,” Detroit News, December 2, 2010, http://www.detnews.com/article/20101202/METRO01/12020450 (accessed December 1, 2013).
|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. Joseph A. Schafer, PhD, is a professor and chair of the Department of Criminal Justice at Southern Illinois University Carbondale, Carbondale, Illinois.|
Please cite as:
Thomas J. Martinelli and Joseph A. Schafer, “Minimize Liability by Clarifying Conflicting Police Values,” Ethical Defensibility Part 3, The Police Chief 81 (January 2014): 40–43.