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By The Book

Written by Ross Swope

You owe it to yourself.

You have just graduated from the police academy. You have studied hard, are physically fit, can shoot well and drive a car like a road racer. The department's general orders, policies and procedures are fresh in mind and you are confident you know them all. The first day out you are assigned to a Field Training Officer, who tells you, "Forget everything you learned in the academy." Wrong.

That is likely coming from someone who does not know what you just learned and someone with no interest in learning it. It is not likely to be coming from someone who, by way of comparison, has found what is taught in the academy does not work. In fact, what is taught in the academy does work. The most professional, effective, committed and ethical police officers both know their books well and apply that knowledge every day on the job.

Fast-forward. That special day has arrived. You are being promoted to sergeant or lieutenant. You have just ended a month or more of long hours devoted to the study of the traffic regulations, laws of search and seizure, Alcohol Beverage Control laws, municipal regulations, the criminal laws, and your department's orders.

"Well, that is it. No more books for me. I have succeeded. My studying days are through." All those books are now relegated to the capture of dust in your locker. Wrong. I guarantee you are going to forget much of what you learned. Slowly but surely it will happen.

So what? The public you serve has a legitimate expectation that you know what you are doing and that what you are doing is lawful and according to your department's policies.  If you are a police supervisor of any rank, the "so what", is compounded. Now you have a squad, section, or platoon that has a legitimate expectation that you know what you are doing, and that what you are directing them to do is lawful and according to your department's policy.

You would be more effective as incident commander at the scene of a barricade situation, critical missing child, or multiple fatality accident if you knew chapter and verse how the directives read. At best, failure in these situations makes you look like the preverbal "dumb cop" or "stupid sergeant." At worst, it can result in a violent offender going free or you finding yourself under cross examination in a civil action trying to explain why you did not know what you were supposed to do.

Recent court decisions concerning search and seizure can affect investigations. Changes in the law could determine if someone is summarily arrested. Updates in departmental policy can affect daily operations. Here is the point: It is not just what you might be slowly forgetting. It is also what you might not be learning.

Court decisions can significantly change search and seizure procedures. In 1985, the District Court of Appeals for the District of Columbia handed down what became known as the "Douglas-Bey Decision." In short, this decision found that a warrantless entry into a defendant's apartment by police, after another officer had already made a valid emergency search of the apartment for victims or someone involved in a shooting, was illegal.

In the case in question, the responding officer, who had cause to enter the apartment, then left the premises. Sometime later, other police arrived and they recovered evidence used to convict the defendant. The evidence was suppressed and the conviction overturned.  This case was so significant that the D.C. Police put out a Special Order on the case to make all aware of its implications.

Nine months later, patrol officers received a radio assignment for an unconscious person in a townhouse. They found a man who had been shot several times and was dead. They searched for additional victims, witnesses, evidence that may be destroyed and suspects.  Finding none, they exited the townhouse and called for a police official and homicide detectives to come to the location.

The homicide detectives and a police lieutenant arrived at about the same time and were briefed by the patrol officers. Following the brief, the lead detective called for a mobile crime unit and started to enter the townhouse. The uniform lieutenant then informed the detective that he would need a search warrant to enter the property.

Predictably, words were exchanged requiring the attendance of the Criminal Investigative Division's Watch Commander. In short the CID Watch Commander knew, like the uniform police lieutenant, that a search warrant was needed and directed the lead detective to apply for one immediately.

Fortunately, the only damage was to the lead detective's ego, with a healthy dose of embarrassment. Had the uniform police lieutenant not been present, essential evidence may have been recovered but would have been suppressed in court. Lesson One, court decisions can fundamentally change standard operating procedures. Lesson Two, police must stay up to date on court decisions, which can change procedures. Lesson Three, detectives are not immune from the requirement of career long learning / study.

Of supreme importance, court decisions give us guidance on how to judge the use of both less-lethal for and, of course, deadly force. The 1985 Garner v. Tennessee case set guidelines that should be considered in the exercise of deadly force: Is there a threat of serious physical harm to officers or others; if the suspect is fleeing does the police officer have probable cause to believe the suspect had been involved in an offense that caused or threatened serious bodily harm or death.

The 1989 Graham v. Connor case ruled officers should consider the severity of the crime; if the suspect is an immediate threat; if the suspect is actively resisting arrest; if the suspect is attempting to evade arrest by flight. These court cases, stated here briefly, should be reviewed at length as a regular part of all officers' maintenance study in their obligation to which they took an oath.

Legislators at the state, county or municipal level regularly change laws that directly affect the police. During my career I saw laws go from criminal violations to civil violations, like littering. New laws were enacted - like aggressive panhandling for example while others were rescinded, like vagrancy. Some involved changes in the elements of a crime (what actions had to take place in order for it to be a criminal offense) - disorderly conduct is one example. Other changes involved specifically defining what was not a criminal offense, like obscenities directed at a police officer.

New laws changed felonies to misdemeanors for some drug offenses, while others changed misdemeanors to felonies - like carrying a pistol without a license. New laws also increased the list of probable cause misdemeanors (meaning the police officer did not have to witness the misdemeanor offense and could make the arrest based on probable cause).

Most police departments have some type of written directives, whether they are called general orders, police manual, or policies and procedures. These directives probably are regularly updated, changed, revised, rescinded, or replaced to continually keep police operations up to date.

A police procedure manual is changed for any number of reasons, i.e., new technologies, political events, public demands, new tactics or strategies, new laws, court decisions, outcomes of civil litigation or administrative investigative findings. Whatever the reason, their purpose is to see to it that police operations are ethical, professional, effective and legal.

One of the more high-profile and perhaps controversial changes in some police departments' policy is their vehicle pursuit guidelines. Some now only permit a vehicle pursuit in the case of a felony (in contrast to a traffic violation). Some go even further and only permit a vehicle pursuit in the case of a felony involving serious bodily injury or the threat of serious bodily injury. In all probability, these changes were well publicized and everyone informed.

No books needed here? Officers have to know which offenses are felonies. Further, you may have to know the elements of a crime to determine if it is a felony. In the District of Columbia Code; Threats in a Menacing Manner; Threats to do Bodily Harm; and Threatening to Injure a Person are similarly sounding offenses but only the latter is a felony. If you don't know the elements of the crime, you can't determine if it is a felony and whether a pursuit is authorized.

Some departments require "reasonable suspicion", while others require "probable cause" in determining if a vehicle pursuit is justified. Are you able to explain the differences and are you able to articulate what events led you to believe you had reached that level?  Maybe a little time in the books is not a bad idea.

Whatever you wish to call it or how you define it, continued learning, studying, or reading is critical to the successful police officer or police official. This process is akin to what we expect of and what medical doctors do. They test, acquire certification, read medical journals, and stay current on new treatments, methods and technologies throughout their careers.

We expect nothing less than that from them and you should expect nothing less of yourself. Police officers have at least as much power, authority and influence over others as medical doctors. Both professions are afforded a great amount of discretion. In fact, the police have the authority to deprive someone of their freedom and exercise non-negotiable deadly force.

The bottom line is this: Officers of all ranks should know, had better know, what they are doing. The only way to accomplish this is by staying up to date on court rulings, changes in the laws, new departmental procedures, and engaging in some maintenance work on what you know.

All police and law enforcement agencies have annual, semi-annual or even more frequent firearms qualifications. Everyone recognizes the need to be proficient in using their firearms. Everyone recognizes that this is a diminishing skill that must be maintained, and that often new tactics, skills, firearms, or ammunition are introduced, and added, and the old removed. As critical as this is, is it not just as critical that police officers have the up-to-date knowledge to perform optimally?

"I did not know" does not work. Some time regularly dedicated to brushing up on the old and exploring the new will go a long way in the reduction of mistakes, misconduct, poor judgment and errors; some of which could be critical and / or very costly in many ways; in citizen confidence, in the reputation of the department, for police morale, life, property, and monetarily.

Everyone has on-duty down time or slow periods. Take advantage of that time, perhaps one hour a week, but do something. You owe it to yourself to be the best. You owe it to your department and you owe it to the public you have sworn to serve. To be effective, respected, competent and confident, the learning / study of your profession must be a career-long commitment.

Ross E. Swope is a retired Commander, Metropolitan Police Department, Washington, D.C., and retired Chief of the US Supreme Court Police. He may be reached atrswope@supremecourt.gov. Photos by Mark C. Ide.

Published in Law and Order, Dec 2012

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