Lack of Discretion

Texas State Legislative sessions are always interesting to watch. They only occur every other year, and the regular session is limited to 140 days. The idea is to limit the time elected officials have to mess with things and avoid some of the idiocy that often passes for governing in states with full-time legislative bodies. The concept seems to work, but the highly compressed time frame often leads to legislative mistakes, outlandish laws being passed and needed laws ending up on the trash heap.

The latest Texas legislative session was no exception. However, this article is not about the legislative agenda in general. It is about one of the interesting little battles that took place within the session. The battle waged by a number of high-profile police chiefs and a few other entities to limit the power of the police officers in the State of Texas.

Several chiefs banded together to oppose the passage of a bill that would have made it illegal for police departments or cities to pass policies or laws that would limit the authority of police officers to investigate the immigration status of people committing crimes or being found under suspicious circumstances.

The merits of the bill in question are not the issue here. They were also not the real issue for the protesting police chiefs. The opposition to the bill from the police chiefs was another attempt by police administrators to limit the ability of the officers under their command to exercise the discretion given to them by law.

From the first London Bobby to the modern-day police officer, discretion has been essential to the enforcement of laws and rules within free societies. To be clear, the term discretion here does not mean keeping a low profile or simply avoiding doing something stupid. The term discretion in the criminal justice world means the ability of the police officer, prosecutor or other official to exercise his or her judgement when enforcing the law.

At its most basic, this concept comes into play every time a police officer makes a traffic stop. Regardless, of what the officer may say, in the vast majority of cases, the officer has the authority and ability to take one of several actions. The officer can issue a citation to the violator. The officer can give the violator a written warning. Or, the officer can simply tell the violator to be more careful in the future and send him on his way.

The concept of police discretion described above does not sit well with some people. The idea that a police officer has the latitude to simply ignore some violations of the law and to enforce others, completely at the officer’s discretion seems arbitrary, capricious and simply wrong to many people. However, the authority to act in that seemingly capricious manner is essential to effective law enforcement. It is also the law.

Texas, and other states, clearly give this latitude to law enforcement officers. Consider the following. The Texas Code of Criminal Procedure – Article 14.03. Authority Of Peace Officers states in part:

Art. 14.03. [214] [261] [249] AUTHORITY OF PEACE OFFICERS. (a) Any peace officer may1 arrest, without warrant:

(1) persons found in suspicious places and under circumstances which reasonably show that such persons …………

The inclusion of the word “may” is a problem for many people, including police administrators. Another problem for many is the fact the law says nothing about a police department or any other government entity having this power. The power to make an arrest, or simply detain someone is vested solely with the police officer. As one can imagine, this does not sit well with many police administrators, mayors, city councils and similar entities.

Police administrators and others have worked for decades to minimize a police officer’s discretion. As a former chief of police, this writer made the same attempts within the department he led. However, the law is clear, and limiting an officer’s discretion is difficult.

It is not possible to know for certain why the chief’s of several large departments in Texas opposed the so-called sanctuary city bill. Their opposition might have been political or practical in nature. The published reports of their objections tend to lead this writer to believe they were afraid of losing more control of the officers they command.

The law quoted previously says an officer may take action. The ambiguity of the word may allows police administrators to write policies they hope will limit a police officer’s use of his or her discretionary authority. After all, the law says officers may, not that officers must, take action.

Police administrators feel they have the right to publish guidelines designed to help officers make enforcement decisions. The sanctuary city bill would have stopped administrators from writing policies that would limit an officer’s discretion in the area of immigration violations, and the chiefs could not allow that to happen.

The need police chief’s feel to more closely control the officers they lead is understandable. Officers must make decisions in a matter of moments at times. Sometimes, these decisions are made under stressful circumstances and giving an officer policies and procedures to follow helps them avoid mistakes. Still, it is dangerous to limit an officer’s use of discretion to the extent some seem to advocate. Anyone doubting this assertion needs to look no farther than the three-ring circus known as the Transportation Safety Administration (TSA).

The TSA is an example of an enforcement agency that does not allow its officers to exercise any independent judgment. Because of the history of the TSA, the word discretion has obviously been expunged from the vocabulary of all involved. The proof of this statement can be found in the TSA’s own words. After every public outcry over the way TSA operates, the response is always the same, “The officer was simply following policy.”

The TSA has a difficult job. It is a thankless job in some ways. Still, the number of publicly embarrassing incidents and complaints coming out of TSA operations is absurd, and clearly tied to administrative policy. The TSA has made it clear any number of times. Its employees have no discretionary authority.

They cannot look at a wheelchair bound invalid and decide the risk of the person being a threat is so low, there is no need to embarrass her or her family by searching her diaper! They cannot look at a toddler traveling with her parents and decide that patting her down like a terrorism suspect is unneeded. They must, if the situation falls within dictated standards, at like puppets and cause a scene.

The TSA is arguably one of the most important tools available in the efforts to keep the skies safe. Yet, it has become an object of anger and derision because it cannot break out of its “by the book” mentality. If local police departments operated the way the TSA does, the average tenure of a police chief would be a few months instead of a few years. Police officers and citizens would be in revolt and effective law enforcement would be nonexistent. We can only hope police administrators never succeed in controlling their officers to the extent the TSA controls its employees.

© OneOldCop – 2011

About S. Eric Jackson

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