Spend time at any law enforcement
training facility in the country and you will likely hear a familiar refrain,
“Officer safety is our number one priority.” In fact, this may be the most
revered of our guiding principles. When considered figuratively, it can create
appropriately strong motivation for law enforcement officers to approach their
duties carefully, even cautiously. If interpreted literally, it becomes
problematic and perhaps even paradoxical.
A number of law enforcement agencies
are currently under fire for their patterns and practices of “stop and frisk.” This
is only the present manifestation of what has been for decades a national
epidemic of illegal police practices rationalized by the mantra “officer
safety.” Frisks are not supposed to be the rule in Terry-type stops; the rule
would be no frisk. The same is true for handcuffing subjects and placing them
in the back of police cars.
Yet, some officers perform these
actions as “routine officer safety precautions” even in the most ordinary of
investigative detentions. These intrusions on privacy and liberty are supposed
to be reserved for those exceptional Terry-type situations in which there is an
articulable reason to believe that present threats require them.
The words “officer safety” do not
complete the required articulation; they hardly begin it. But where “officer
safety is our number one priority” an officer is explicitly urged to put that
concern above all others—including the law we have sworn to obey—and some
officers are happy to find this rationalization so conveniently available.
If officer safety were truly the
priority for law enforcement officers, we would not do dangerous things like
responding to armed robbery calls, engaging in high-speed pursuits of violent
offenders, or struggling to pull a crash victim from a burning vehicle. It
would be a great deal safer to wait until the robbers leave then respond to
take a report, refuse to drive at twice the speed limit, and stay away from all
burning cars and buildings. These are not typical law enforcement responses
because, although officer safety is always a priority, it is not always the
“Legal” Ethics of Field Law Enforcement
As one might expect, there’s a lot of
law in law enforcement. Federal Constitutional law governs a number of the most
critical and often high-risk police actions: use of force, seizures of persons,
investigative detentions and arrests, searches of persons, vehicle stops and
searches, entry into private premises, and the concepts of reasonable suspicion
and probable cause.
Violations of the Federal Constitution
can cause evidence suppression in major cases, massive civil liability, career
devastation, and even criminal prosecution of law enforcement officers. But
avoidance of these horrendous negatives is not the best reason for an officer
to follow the Constitution. The best reason is a shining positive: keeping
faith with the oath of office.
On the day an officer takes that oath,
the Constitution becomes more than a legal obligation. It becomes an ethical
duty, a matter of promise keeping—keeping the most solemn promise made in a law
enforcement career—to support, uphold and defend the Constitution of the United
States of America. But however lofty
that promise, it is hollow—without a thorough understanding of what the
Constitution requires of us.
Our training helps provide that
understanding by teaching what we can and cannot lawfully do under the United
States Constitution. This knowledge is a powerful tool for achieving
investigative goals. It also helps us stay out of trouble. Most importantly, it
empowers us to attain the ethical standards that we have so ardently pledged,
adding meaning and value to our oath of office—the promise made to a community
by those who police it, the promise in exchange for which one is allowed to be
a police officer.
Every officer understands that
obligation at a basic level, but this clarity of purpose can quickly become
clouded when viewed from the perspective of officer safety above all else.
Constitutional law does not make police officer safety the highest priority.
Rather, particularly in Fourth Amendment law, the Supreme Court uses a
balancing test to decide what police officers can and cannot do under the
Constitution. On the one hand are individual freedoms and privacy. On the other
hand are the interests of government, including officer safety.
So, where does one find the officer
safety exception to the Constitution? Generally speaking, it doesn’t exist. Generally,
the rights of the people trump the rights of an officer to be guaranteed a safe
outcome in dangerous situations. This can be an uncomfortable truth, but to
ignore it is to operate in a virtual reality that only exists in one’s own
mind. The truth is law enforcement is a hazardous undertaking and there is
nothing that can be done to eliminate all of its physical risks.
If the choice is between feeling safer
by violating someone’s Constitutional rights or taking calculated risks while
honoring our oath, the pledge we made when our badges found their home on our
chests is supposed to win every time. As
in military service, doing our duty and following lawful orders will regularly
put us at heightened physical risk.
None of this is to suggest we should
abandon officer safety concerns. If anything, it should heighten motivation for
us to train, condition and prepare even more diligently. Most officers will do
just that, but there may always be some who leverage the “officer-safety-first”
mindset to systematically violate the rights of others while destroying
relational capital and creating friction with our communities.
Ironically, the worst offenders often
make little effort to integrate comprehensively safe practices into their
routines. The mindset of these misguided few makes it seem valid for them to
refuse to wear body armor or seat-belts, take ridiculous chances behind the
wheel, and maintain a lifestyle that leaves them mentally, emotionally and
How could anyone be surprised when the
fear and over-reliance on posturing occasioned by their lack of preparedness
manifests itself in discourtesy, illegal stops, improper searches, and even
disproportionate use of force? This negative dynamic is predictable and preventable.
Awareness and self-discipline are the first lines of defense. Positive peer
pressure must be normative and organizational discipline should enter the
picture as necessary.
More demand for accountability and
transparency grants us opportunities to build stronger relationships with our
communities that enhance officer safety in the most comprehensive sense. This
atmosphere expands trust and exposes the true villains in our communities. We
are not soldiers fighting a war, but servant leaders striving to find a way to
inspire others to be accountable and to participate actively in securing safety
and prosperity for all law-abiding community members, including police
If we are truly committed to officer
safety, we must commit to a mindset that acknowledges the realities of the
operating environment while respecting the rights of the people who trust us to
do right by them.
Officer safety must be more than just a
mantra. It must represent a commitment to being skilled, conditioned, prepared
and invested in positive community relations—and not an excuse to marginalize
the concerns of others or disregard the fundamental tenets of our oath. We must
find constitutionally compatible protocols for assuring reasonable levels of
Police work done well—properly and
lawfully—is one of the beautifully noble things under the sun. Law enforcement officers are heroes who
typically embody the best of humanity. They deserve respect, understanding and
grace for their dedication and perseverance. It is that dedication and
perseverance—that humble commitment to be better—that allows our noble calling
to rise to each new challenge, including this one, and no doubt we will.
article did not take on the related issue of when Terry-type stops may be
lawfully initiated and associated concerns about racial profiling. Suffice to
say, for now, having some suspicion that a particular officer might find
reasonable does not assure the presence of reasonable suspicion in the legal
sense, the threshold requirement for a constitutionally permissible
investigative stop. Nor does it assure the absence of constitutionally impermissible
Colwell retired from the Kansas City, Mo. Police Department as co-founder and
head of its Leadership Academy after a nearly three-decade career that involved
almost every type of assignment, including SWAT. He is co-author, with Charles
Huth (below), of the book Unleashing the Power
of Unconditional Respect – Transforming Law Enforcement and Police Training and a graduate of the Army’s University of
Foreign Military and Cultural Studies Red Team Course.
Huth is a Captain and watch commander with the Kansas City, Mo. Police
Department. During his nearly
quarter-century career, he has executed or supervised more than 2,500 high-risk
tactical actions. He is past President of the National Law Enforcement Training
Center, a non-profit organization in Kansas City, and an Army veteran. He is a
widely known expert in police tactics.
Means is a 35-year full-time police legal advisor and trainer. He was formerly
in-house counsel to a major city police department, head of the legal
department at a state law enforcement training center, head of the national
association of police legal advisors (IACP-LOS), and executive officer on a
small combatant naval vessel. He is author of the book The Law of Policing.