No “Officer Safety” Exception to the Constitution

  • Written by Huth, Charles, Colwell, Jack, Randy Means
  • 7 Comments

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 highest priority.

 

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.

 

Solutions

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 physically compromised.

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 officers.

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 officer safety.

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.

 

Ed. Note:

This 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 racial factoring.

 

Jack 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.

 

Charles 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.

 

Randy 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

.



Published in Law and Order, Jan 2015

Rating : 6.8



Comments 7 Comments

Well said

Posted on : Feb 27 at 3:51 PM By Hep LeDerp

Very well said.

I'm tired of having "officer safety" trump "citizen safety".

Police officer isn't even among the top 10 most dangerous jobs in America!

Statistically, it's more dangerous to be a gas station clerk!!!

Nailed It.

Posted on : Apr 22 at 3:09 AM By Chris

Excellent Article.

Great job!

Posted on : Feb 24 at 6:36 AM By Jeff Sexton

I don't normally praise cops, (I'm a Cop Block activist), but GREAT JOB guys!

I posed this article as a question to the local Sheriff candidates here and their responses were... disappointing, for the most part. Really wish more cops agreed with y'all on this. Maybe then we wouldn't have over a thousand people every year killed by cops on American streets.

Restore Honor to the Badge

Posted on : Feb 3 at 11:41 PM By Jack

Excellent article. I would like to see officers respect the outside boundaries of the Constitution, instead of finding ways to circumvent and deconstruct it. If officers lived by the principles of the article, and understood 99.9953% of Americans are not murderers, they would restore the honor and respect they would deserve.

The Right Balance

Posted on : Jan 25 at 6:16 PM By Sue Rahr, Washington State Criminal Justice Traini

Jack, Charles, and Randy,

Thank you for this excellent article. I am going to forward it to the President's Task Force on 21st Century Policing. You have stated in a most articulate way the difficult balance officers must judge when they perform their duties. As the Task Force deliberates on recommendations for our profession, this article offers a valuable perspective.

I am also going to include this in the list of mandatory reading for all police recruits going through their basic academy training in Washington State. Although your book, "The Power of Unconditional Respect" is on the recommended reading list, this article encapsulates the key points for new cops.

Again, thank you for this contribution to our profession!

-Sue

Wow

Posted on : Jan 23 at 12:18 PM By By 1081blue

Nice!

Spot On!

Posted on : Jan 21 at 8:33 AM By cwatler

Wonderful articulation of constitutional policing. Thank you. We must do more to connect the principles highlighted in the article with police practices on the ground and to inform communities of them.