Written by Arthur G. Sharp
“The police officer working the beat makes more decisions, and exercises broader discretion affecting the daily lives of people every day, and to a greater extent, than a judge will exercise in a week” — Chief Justice Warren Burger, United States Supreme Court, 1969-1986.
Discretion is the better part of valor, especially for police officers making motor vehicle stops. That discretion is a vital part of law enforcement operations, as the results of a recent author-conducted survey indicate.
Fifty law enforcement agencies were invited to share their views on the role of officer discretion in traffic violation enforcement. The results showed that, contrary to popular belief among citizens, police officers do not write traffic tickets for the sheer fun of it—they cannot afford to.
For one thing, they are held accountable for any tickets they write. For another, writing tickets can inconvenience them as much as it does the recipients, since officers sometimes have to appear in court on their own time to defend their decisions.
And, their decisions to write tickets, as opposed to issuing verbal or written warnings, can adversely affect them and their departments from a public relations standpoint. Those three reasons alone explain in part why officers exercise their discretion wisely before writing tickets.
The respondents said unanimously that their agencies grant officers complete discretion whether to issue tickets or warnings for traffic violations. Not only do they have the authority to issue verbal or written warnings or tickets at their discretion, but they can do so without supervisory permission.
Often, they have no guidelines to influence their ultimate decisions. Only 62% of the respondents noted that they have clear written policies in effect to dictate what procedures officers must follow when initiating traffic stops and determining their outcomes. One excellent example of written guidelines is those of the Arlington, TX Police Department.
Arlington’s general orders are varied and explicit. For example, they tell officers when verbal warnings are advisable: an officer may verbally warn a violator when the officer has confirmed that the violator has a valid driver’s license in effect, even though that license may not be in the violator’s physical possession at the time of the violation and in the officer’s opinion, the violation is apparently unintentional and non-hazardous in nature and conditions indicate the department’s ultimate goal is achieved as effectively as if a citation were issued.
The guidelines are as specific when it comes to citations versus physical arrests. For example, Transportation Code Section 543.003 requires that “…a citation is to be issued instead of physical arrest for speeding or Penal Code Sec. 49.03 open container violations committed by residents of Texas or other Nonresident Violator Compact state…who can be identified.” Concise guidelines like these make officers’ jobs easier when it comes to discretion. Regardless of the existence of written policies, though, officers are ultimately responsible for their decisions, as poll respondents indicated.
Examples? “Our officers do have discretionary powers,” said Lieutenant Barry Swanson of the Jamestown, NY, Police said. “However, they are accountable for their stops. They must base their stops on reasonable probable cause and inform the motorist of the reason for the stop.” That is the case in other jurisdictions, for example in Crawford County, MI, and Pierre, SD, where officers can use discretion, but they must justify their stops. In fact, 77% of the respondents observed that their officers have to notify their dispatchers of every stop, regardless of the outcome.
“The original reason for the stop must be referred to on the citation,” reported Sheriff Kirk Wakefield, of Crawford County. Similarly, Chief Allen Aden of the Pierre, SD Police Department said his officers have to give dispatch a reason for each stop. With discretion comes responsibility, though.
The South Windsor, CT, Police Department exemplifies that point. Not only are the officers and supervisors held responsible for their decisions regarding traffic stops, but they have to account for their citations as well. That means there is an audit trail for their stops, which ensures that they are held responsible for their discretionary choices.
The department’s “Operations Directive” reads in part: “…members of this agency shall be accountable for the traffic citations they are issued. Supervisors shall also be accountable for the citation books they issue to other personnel….Watch Commanders will maintain control of the citations by assigning the required misdemeanors and infractions to each patrol officer.”
Such audit systems are by no means rare. For instance, 41% of the poll respondents acknowledged that their officers have to verify stops for audit systems whether they issue tickets or not. Indeed, fourteen percent reported that they have to maintain audit trails for oversight bodies such as CALEA and civilian review boards.
Arlington offers guidelines similar to South Windsor’s. The extensive Traffic Enforcement Purpose and Policy General Order states that the purpose of this directive is to provide guidelines for officer discretion in enforcing traffic laws and regulations, procedures for traffic violator contact and initiation of prosecution, rules for the use of City of Arlington citation form, and procedures for specific traffic violations and violators.
In what may come as a surprise to some motorists, the officers are advised not to make stops for their own benefit. Section 421.03, Traffic Violator Contact, states under “Objectives”: “In contacting traffic violators, officers should be aware that while the immediate objective is to take appropriate enforcement action the ultimate objective is to favorably alter the violator’s future driving behavior. Officers will use tactics approved and taught through the Training Section in making contact with traffic violators [and] will present a professional image in language and demeanor while being alert for the unexpected, but not obviously apprehensive.”
Certainly, there is reason for some officers to be apprehensive when making traffic stops—and they are not all related to their ultimate decisions regarding warnings or tickets.
One thing they must take into account when making a stop is the reason they made it in the first place. For this, 67% of the respondents observed that their officers do not have to issue warnings and citations only for the original violation which prompted the stop. Rather, they can downgrade the charge—from speeding to a seatbelt violation—at their discretion. There is some difference of opinion among respondents as to whether this “no see,” option, overlooking certain violations, is viable.
Swanson noted that in Jamestown, “We do not utilize a ‘not see’ approach. The motorist must be advised of the problem so they correct it,” he revealed. On the other hand, Major William Chapman, of the Clinton, CT, Police Department, said that, “As an agency we support our officers and encourage them to be proactive. The patrol officers find many more violations as a result of ‘looking beyond the stop,’” he averred.
Chapman cited one case in which “One of our officers pulled a vehicle over for a seatbelt violation and found that the driver was wanted for a cold-blooded, execution-style murder in Rhode Island the day before.” Granted, not every traffic stop will result in such an outcome, but this particular story illustrates the benefit of granting police officers discretion in how they handle individual stops. Sometimes, however, no matter what officers decide when making a traffic stop, they are “damned if they do and damned if they don’t.”
There appeared in the May 24, 2003, Boston Globe an article that lambasted Massachusetts police officers for circumventing the law by stopping motorists strictly for violating state seatbelt laws, a practice which state law prohibits. According to the law, officers can stop drivers for specified traffic offenses, then cite them just for seat belt violations—but they cannot stop them just for seatbelt violations.
As some state and law enforcement officials see it, that is a good thing. They suggest that officers are simply using their discretion, as the reporters suggested, “…to drive home a safety message while sparing drivers heavy fines and costlier insurance.”
Not everyone agrees. As the reporters wrote, “Civil libertarians and other proponents of limiting police power said the pattern shows that police are circumventing the intent of the seat law.” That may be the case: after all, police officers do not always know exactly what they are going to do at the moment they initiate a traffic stop.
Some people suggest that officers have their minds made up whether to issue a ticket or a warning before they get out of their cars. The poll results refute that idea, though. Half of the respondents did admit that is the case. However, 23% said it is not; the rest were not sure. As Lieutenant James Hogue, Lafourche Parish, LA, Sheriff’s Department stated, “It’s hard to speak as to the mindset of every officer.” Besides, there are mitigating factors involved in every traffic stop, which can influence an officer’s discretion regarding tickets.
Consider the North Carolina Highway Patrol’s policy on “charging.” It reads in part that members shall issue a North Carolina Uniform Citation or arrest for all definite, clear-cut and substantial violations. Members shall not issue citations or make arrests for frivolous, technical, or borderline violations. They violate the guidelines at their own risk.
The guideline continues with a caveat: factors such as race, sex, economic standards, familial, political or fraternal affiliation shall not influence a member in any manner whatsoever. Every arrest made or citation issued shall be in accordance with North Carolina law and patrol policy. Members who violate the law or patrol directives may be subject to discipline by the patrol.
The threat of disciplinary action against Patrol officers no doubt influences their choices in situations where they exercise their discretion. Another factor is whether the administration will support them in high-profile cases. Often, police officers have no idea who they are pulling over until they actually stop violators. Cases of this type abound.
Significantly, 95% of the respondents to the poll emphasized that their administrators fully support citations written by their officers, even if they are issued to influential people—politicians, fellow officers, and celebrities. The other 5% said they do “Sometimes.” Perhaps the respondents answered the question in some cases based on theory. But, there are enough actual cases to put theoretical answers to the practical test—not all of which bring unwanted attention to the police.
Chief Kevin Stenson, Lindstrom, MN, Police Department, is one administrator who offers his complete support to his officers, regardless of to whom they issue citations. “Our agency has issued citations to City Council members and the mayor,” he acknowledged. “I guess we are blessed in that these people, instead of becoming angry, have used these as examples that their police department is fair.”
Fairness is a key issue in high-profile arrests, and the level of support that administrators provide their officers in such cases can have a profound effect on their use of discretion—and on the public’s perception of the equal application of the law.
Consider two recent DUI arrests. On January 1, 2004, a Metropolitan Washington Airports Authority (MWAA) police officer arrested the chief of the Transportation Security Administration (TSA) at Dulles International Airport. On February 24, 2004, a Dodge County, WI, Sheriff’s Department deputy arrested the state’s Attorney General for the same reason. The responses of the two agencies involved say volumes about public perception and the support offered to arresting officers in such cases.
In the first case, MWAA officials were not anxious to speak about the arrest. That does not mean they did not support the arresting officer, who pulled over the TSA chief at one a.m. after observing him driving erratically. Their response to a request from this author for an analysis of their support for the arresting officer drew a short response from Tara Hamilton, Public Affairs Manager: “Thank you for your inquiry. I have been asked by our Public Safety officials to decline your request for an interview.”
Granted, the denial for information may be innocuous, but even the suggestion that the department has something to hide from the public conjures up among citizens and officers alike a suspicion of impropriety. The Dodge County sheriff’s response, on the other hand, removes any such suspicions.
The Wisconsin Attorney General was driving 32 mph in a 65-mph zone on the evening of February 24. A Columbus, WI police officer, Mark Handel, tracked her on radar. The Attorney General slowed down to 12 to 15 mph when she approached him. He followed her for a short distance, until she swerved off the road and into a ditch. Handel asked her if she had been drinking. Her response was “a couple drinks.”
Dodge County Sheriff’s Corporal Paul Nell took over the investigation and administered field sobriety tests. She registered 0.12 on the preliminary breath test. Nell arrested her. He had nothing to worry about when it came to support from Sheriff Todd Nehls—or from the Attorney General, for that matter.
Nehls reported that she acted politely and professionally, and she neither asked for preferential treatment nor received any. As he explained about the case, “I provide a great deal of discretion to the deputies. Without discretion, you have stripped the deputies of any and all decisions they may make.”
He noted that, “There is little discretion in OWI cases. You are either impaired or not impaired. We arrest those that exhibit impairment and wait for test results. We have a zero tolerance with OWI offenders in Dodge County and proudly publish our numbers, which reflect a significant increase in OWI arrests since I took office.”
Nehls suggested that his deputies did not treat the Attorney General any differently than they would other drivers suspected of driving while impaired. That has to do somewhat with Wisconsin’s laws. “We are a SFST (Standardized Field Sobriety Testing) state,” he explained. “We have in-house instructors to ensure uniformity in our OWI process.”
“We also have two certified Drug Recognition Experts that are called anytime day or night for drivers that show impairment but not signs of alcohol use. This gets to those who are impaired due to over-medication, illegal drug use or illegal drug use.”
As Nehls concluded, “The Attorney General’s arrest only solidified our policy of drink, don’t drive.” There is no discretion involved in those cases, he stressed. “The discretion comes in when you pull someone over for other traffic violations, speeding, stop sign, illegal passing, and decide whether to issue a citation or warning.
“We provide significant latitude for every officer to take all factors into consideration for those types of stops,” he said. “For OWI, there is zero tolerance.” Apparently, there is plenty of administrative support for the deputies who make arrests in such cases, regardless of who they arrest.
There is no doubt that administrative support plays a significant role in how and when individual officers exercise their discretion when making traffic stops. In essence, officer discretion is at the heart of agency’s success when it comes to evaluating their overall success in traffic enforcement.
As Lieutenant Bob Cutler of the Eureka County, NV Sheriff’s Office asked, “If you take away the officer’s discretion, what do you have left?” He answered that question in one word: “Discord.” That is one thing that agencies cannot afford—especially if they want their officers to exercise both discretion and valor.
Arthur Sharp is a professional writer, educator and frequent contributor. He may be reached via e-mail at firstname.lastname@example.org.
Photographs courtesy of Christy Whitehead.