1. CHAPTER 6
Discretion and Dilemmas
Lecture slides prepared by Lisa J. Taylor

2. Significant Areas of Liability
for Law Enforcement
• Discrimination
• Investigative practices
• Use of force

3. Moral Dilemmas of
Law Enforcement Officers
 Frequent and unavoidable
 Not academic
 Always unpopular with some groups
 Usually resolved quickly
 Dealt with alone
 Involves complex criteria

4. Klockars’ Types of Control
• Authority and power: police officers generally tells
us what to do and we respond.
• Persuasion: authority that officers use in order to
coerce in a nonphysical manner.
• Physical force: officers use whatever physical
methods to control the situation.

5. Discrimination
Occurs when a discretionary decision-maker
treats a group or individual differently from
others for no justifiable reason.
•Sexual orientation
•Race
•National origin
•Poor
•Other?

6. Konerak
Sinthasomphon
e
Victim of
Jeffrey
Dahmer
(1994)
• Laotian boy found wandering the streets,
incoherent, naked, and bleeding from the
rectum.
• Had escaped from Jeffrey Dahmer’s apartment
after being drugged, tortured, and sexually
abused.
• Two African-American women called the police,
and tried to tell police that he was injured and
that Dahmer was the one who hurt him. Despite
their attempts, police helped Dahmer take him
back to Dahmer’s apartment.
• Had police examined him, they would have
seen acid-filled holes drilled in his head.
• Police dismissed the case as a “homosexual
thing,” and left.
• Sinthasomphone was strangled shortly after the
police left.

7. Forms of Discrimination
 Enforcing the law differentially
 Withholding the protection of the law
Greater disrespect
Greater use of force
Racial profiling
Greater use of pretext stops

8. Racial Profiling
Occurs when an officer uses a “profile” to stop
a driver usually to obtain a consent to search for a
vehicle. Minorities are highly targeted based on
the assumption that they are more likely to commit
criminal acts.

9. Law and Racial Profiling
U.S. v. Martinez
Fuerte
425 U.S. 931 (1976)
•Legitimized the use of
race as a criterion in
profiles.
Wren v. US
517 U.S. 806 (1996)
•Pretext stops upheld.
•The law allows race to be
considered as only one
element in deciding to stop
an individual.

10. Racial
Profiling
Progress
by N.J.
State
Police
(2011)
•For 10 years, the federal government has
scrutinized the NJ State Police by gathering data
on the number of drivers that were stopped, what
percentage were minorities and how police
handled the stops — all part of a plan to eliminate
racial profiling — an identified problem with the
department.
•The new report, which covers the second half of
2009, shows the percentage of African-Americans
pulled over decreased slightly, from 17.9 to 17
percent, but rose slightly for Hispanics (10.9 to
11.4 percent) and Asians (6 to 6.3 percent).
Arrests decreased for African-Americans, 34 to 32
percent.
•By comparison, in the first set of data gathered
by federal authorities, African Americans
accounted for 40 percent of all arrests from
January to April 2000.

11. Arizona
Immigratio
n Bill
(2010)
• The Support Our Law Enforcement and Safe
Neighborhoods Act (AKA -SB 1070) is a
legislative Act in Arizona that at the time of
passage was the broadest and strictest anti-illegal
immigration measure in recent U.S. history.
• Bill was and continues to be very controversial.
• In addition to what federal law already stipulates,
the Arizona Act makes it a state misdemeanor
crime for an alien to be in Arizona without carrying
the required documents, requires state law
enforcement officers attempt to determine an
individual's immigration status during a "lawful
stop, detention or arrest", or during a "lawful
contact“ when there is reasonable suspicion the
individual is an illegal immigrant.
• Critics say this bill encourages racial profiling.
• The U.S. Supreme Court struck down key parts of
the bill but let stand a controversial provision
allowing police to check a person's immigration
status while enforcing other laws.

12. Reactive Investigation
• Attempts to reconstruct a crime after it occurs.
• Consists of gathering evidence to identify and prosecute
the offender.
• Investigator(s) may develop early prejudice about likely
perpetrator, which might cause them to:
o be tempted to engage in noble-cause corruption to
obtain a conviction;
o ignore or conceal evidence that contradicts their
beliefs;
o overstate existing evidence; and/or
o manufacture or alter evidence.

13. Proactive Investigation
• Attempts to document crime as it occurs
• Requires a more active police role
• Often involves deception by police
• Requires “targeting” based on reasonable
suspicion
• Changes police role from discovering who has
committed a crime to discovering who might
commit a crime.

14. Typology of Lies
• Klockars:
- Placebos, such as lying to a person about how a loved
one was killed
- Blue lies, used to control a person and make the police
officer’s job easier
• Barker and Carter:
- Accepted lies, such as those used during undercover
investigations or sting operations
- Tolerated lies, “necessary evils” such as lying during
interrogations
- Deviant lies, such as false testimony in court to make a
case, or covering up police wrongdoing

15. Broward
County, FL
“Brady
List”
• List of officers whose testimony is
considered suspect by state
prosecutors because their credibility
has been questioned.
• The list contains137 officers who
have been arrested or convicted of
crimes, or they are under
investigation for falsification, perjury,
or theft.
• The title, “Brady”, refers to Brady v.
Maryland, a case that resulted in the
requirement of prosecutors to
disclose potentially exculpatory
information to the defense.

16. Informants
Individuals who are not police officers but assist
police by providing information about criminal
activity.
They are:
• Motivated by monetary profit, revenge,
dementia, kicks, a need for attention,
repentance (guilt), and coercion.
• Able to operate under fewer restrictions than
police.

17. Ethical Issues
• Becoming too intimate with informants
• Overestimating the veracity of information provided
• Potential for being duped by informant
• Using informants to entrap people (“creating” crimes)
• Engaging in unethical or illegal behaviors on behalf of
the informant
• Using coercion and intimidation to force informant’s
cooperation
• Protecting informants who continue to commit crime

18. Undercover Operations
• Undercover officers deceive suspects and others
• Difficult for officer and his or her family
Continuum of privacy concerns
Short Term
Non-intimate relations
(Buy/bust)
Long Term
Intimate relations
(“Donnie Brasco”)

19. Donnie
Brasco –
Undercove
r FBI Agent
– Example
of
Undercove
r Operation
•Real name – Joseph Pistone
•Infiltrated the Mafia
•Posed as small-time jewel thief.
•Lived as a “wannabe wiseguy.”
•Just as he was about to be “made,”
he was pulled out.
•Led to 200 indictments, 100
convictions, and a $500K contract on
his head.
•Still lives in hiding to protect identity.

20. Entrapment
When police encourage or entice a person
to commit an illegal act.
Approaches:
• Subjective—Focuses on the defendant and
his/her predisposition to crime.
• Objective—Focuses on the government
and whether it provided “essential element”
to the crime.

21. Entrapment
Criticisms (Stitt & James):
• Allows police to tempt former offenders who might
otherwise not have been tempted
• May rely on hearsay and rumor
• May stigmatize the individual charged
• Allows police to choose their own targets
• Degrades the criminal justice system through the
use of deceit

22. Undercover Operations
Suggested Limitations:
• Require a probable cause–
based warrant for any
interaction longer than 24
hours.
• Ban officers’ engagement in
intimate relationships.
• Evidence obtained by
violating the first two
limitations should be
excluded at trial.
Objections to Limits:
•There is no need for an
undercover operation if
probable cause exists.
•It is often impossible to get a
warrant.
•Most undercover operations
exceed 24 hours.

23. Interrogation
Cannot involve physical force (the “third degree”)
Techniques of deception (Skolnick & Leo):
• Calling an interrogation an “interview”
• Negating the effectiveness of the Miranda warnings by method of
presentation
• Misrepresenting the seriousness of the offense
• Manipulative appeals to suspect’s conscience
• Making leniency promises beyond the interrogator’s power to offer
• Interrogator misrepresenting his/her identity
• Using fabricated evidence to make suspect think case against
him/her is strong

24. Excessive Force
Lawful force is force that is reasonably necessary
for lawful purpose.
•One of the most serious and divisive human rights
violations in the U.S.
•Continuum of force (escalation because of resistance).
•Use of force depends on discretion of the individual officer.
•Individuals who question or refuse to recognize police
authority become vulnerable to the use of force.

25. Culture of Force
The Los Angeles Police Department
and the Rodney King Incident
• L.A.P.D. policy was to use escalating force proportional to a
suspect's "offensive" behavior.
• This policy justified all but the most blatant abuse of police power.
• L.A.P.D. culture tolerated, even encouraged, a high level of
violence.
• Leadership did not actively discourage excessive force.
• L.A.P.D. management was responsible, to some extent, for the
brutality of the Rodney King incident.

26. The Research on Excessive
Force
• The true number of excessive force incidents is difficult to
detect.
• Few encounters end in the use of any force, much less
excessive force.
• A small percentage of officers are responsible for most
excessive force incidents.
• Race and socioeconomic status are associated with
excessive force.
• But other factors (such as demeanor) are more influential.

27. Who Uses Excessive Force?
Certain characteristics associated with officers
who use excessive force:
•Lack of empathy
•Antisocial and paranoid tendencies
•Proclivity toward abusive behavior
•Inability to learn from experience
•Tendency to not take responsibility for own actions
•Cynicism
•Strong identification with the police subculture

28. • Suspect being male
• Suspect's race
• Suspect's demeanor
• Suspect agitation/emotionality
• Suspect intoxication
• Suspect’s use of force
• Suspect having a weapon
• Socioeconomic status of
suspect
• Gang involvement
• Officer being male
• Officer’s race
• Age of officer (younger)
• Officer having prior injuries
• Encounter involving a car chase
• Number of citizens present
• Number of police officers
present
• Knowledge suspect committed
prior (especially violent) crimes
Factors in the Use of Excessive Force

29. Determining Excessive Force
• Use of official documents in incident
reports.
• Asking police officers about their actions
and those of their peers.
• Civil rights complaints or public opinion
surveys.
• Observers in police cars who record
interactions between police and citizens.