Police Officers Have Discretion When Dealing With Essay

  • Length: 6 pages
  • Sources: 5
  • Subject: Business - Law
  • Type: Essay
  • Paper: #52570807

Excerpt from Essay :

police officers have discretion when dealing with domestic violence? Answer: YES with qualifications. An in-person survey might work best here because citizens don't all see police as protectors of society; some see them as threats.

Discretion is lately recognized as a "necessary evil" according to the police science faculty at North Carolina Wesleyan College (ncwc.edu). Discretion can be put to effective use in a domestic violence situation when it is "structured properly" but on the other hand there is a potential for the "abuse of discretion" when poor choices are made by the officers involved in the dispute (ncwc.edu). Discretion "as judgment" is the exact opposite of "routine and habitual obedience," according to ncwc.edu; police do not follow exact, precise orders like soldiers are obliged to -- they "…must adapt…rules to local circumstances" because every instance of domestic abuse is unique in some meaningful way (ncwc.edu).

In serious discussions involving police discretion, the concept of discretion offers the police "…the privilege to go against the rules, disobey your superiors, be less than optimal or perfect all the time"; and police can take discretionary actions in a domestic dispute instance without destroying the trust between the officer and his community (ncwc.edu). The bottom line according to the faculty at North Carolina Wesleyan College is that no matter what discretionary actions are taken -- and law enforcement officers understand that the statutes "are full of ambiguity" -- at the end of the day officers have to be accountable.

When the U.S. Congress passed the Violence Against Women Act (VAWA) (1994) and President Bill Clinton signed it into law, money was available to states and cities to provide "…police training…on mediation, dispute resolution, verbal judo and intervention without the use of force in domestic violence incidents" (Jackson, 2007, p. 541). As a result of the VAWA, states passed laws that required "mandatory arrest laws" that required police to arrest batterers and encouraged "…criminal prosecutions against batterers without the victim's consent" (Jackson, 541). On page 540 the author points out that "mandatory arrest laws" aren't always mandatory at all; based on domestic violence cases and state laws, the High Court has held that police do operate with discretion when they interpret mandatory arrest laws and restraining orders, "…which means they are not truly mandatory."

Added to the complications of domestic violence cases is the fact that the High Court has held that law enforcement officers "…are not required to enforce restraining order even under a state law mandate" (Jackson, 540). That's because of the "public duty" doctrine, which means that police overall are sworn to protect "general society," and hence no duty is "owed to protect specific individuals," Jackson explains (540). In other words, even if a restraining order against a person that has been physically abusive is in place, which mandated enforcement by state law, the "public duty" doctrine "limits the liability" of an officer who does not enforce the restraining order. If that officer sees a situation in which he or she has discretion to act to protect individuals, the restraining order takes a back seat to the officer's discretion (Jackson, 540).

Research Survey Question 2: Should a citizen's right to bear arms be removed from the U.S. Constitution? Answer: Disagree. This is an appropriate polling question for the telephone because most everyone will have a quick answer.

First of all removing the 2nd Amendment of the Constitution would take a national legislative effort. The U.S. Congress (both houses) would have to approve any changes or additions to the Bill of Rights. A Constitutional Amendment would have to be approved by a two-thirds supermajority vote in the U.S. Congress (Longley, 2012). Without the need to have the president sign it, the proposed change would then go to the 50 states and three-fourths of the 50 state legislators would have to approve the proposed change to the Bill of Rights (Longley). The only time this has ever been accomplished was the repeal of the 21st Amendment (Prohibition).

Secondly, the powerful National Rifle Association would spend millions of dollars on television ads decrying any person or group that attempts to have the 2nd Amendment changed in any way. Thirdly, the U.S. Supreme Court (SCOTUS) ruled in District of Columbia v. Heller that the 2nd Amendment protests the right to keep and bear arms "…for the purpose of self-defense," hence the SCOTUS struck down an ordinance that banned the possession of handguns in people's homes in the District of Columbia (Stephens, et al., 2011).

The City of Chicago and the village of Oak Park within the City had similar laws to those of the District of Columbia, and Chicago believed that their laws banning handguns were constitutional because they interpret the Second Amendment as having "no application to the states" (Stephens, 70). The Chicago ordinance read that "…no person shall & #8230; possess & #8230; any firearm unless such person is the holder of a valid registration certificate for such firearm"; moreover, the Chicago law prohibits "…registration of most handguns," in effect banning the possession of handguns by nearly all citizens in the City (Stephens, 70).

What was the specific reason for the handgun law? Chicago has one of the highest murder rates in the United States, and other violent crimes committed in the City "exceed the average in comparable cities," Stephens continues on page 70. However there were petitioners that argued in court that the Chicago and Oak Park laws "violate the right to keep and bear arms" for two reasons: a) the right to keep and bear arms is "…among the 'privileges or immunities of citizens of the United States'"; and b) the 14th Amendment has a "Due Process" clause that the petitioners assert "incorporates" the Second Amendment right (Stephens, 70). The SCOTUS ruled that "self-defense is a basic right" and as the Court held in Heller, individual self-defense is a "central component" of the Second Amendment (Stephens, 71).

Research Survey Question 3: Should some constitutional rights be ignored in order to have a more secure nation, i.e., should wiretaps be allowed without warrants? Answer: No. This survey could be conducted on the telephone or in a questionnaire online so an answer can be more than just yes or no.

This has been a controversial issue for many years, and the Supreme Court has issued a number of rulings as to the legality of wiretapping without a warrant. The U.S. Congress in 1968 passed Title III, setting out the regulations for granting of warrants for wiretaps; but that did not settle the issue of whether and when a wiretap "violates the Fourth Amendment" (Shultz, 2005, p. 523). In 2001 the SCOTUS ruled (in Kyllo v. United States) that technology "in the general public use" can be used even without a warrant from a judge, Shultz explained (523). But what does "general public use" really mean? Shultz writes that there has not (as of the publishing date of Shultz's book, in 2005) been a "reasonable interpretation" (523).

The U.S. Congress in 1986 passed the Wiretap Act following the breakup of the monopoly of AT&T; once there were private phone companies, Congress made sure private and public phone companies were covered under the act. Basically the Act protects three kinds of communications: a) wire transmission (a voice traveling through wires); b) oral (communication by sound waves when a person has the "expectation that such communication is not subject to interception"); and c) electronic (wireless communication, signals, writings, images, "and other date transmitted over a wide range of mediums") (Kanovitz, 2012, 291).

It should be noted that if a suspect is on his cell phone at a grocery store and speaking loud enough to be heard by someone standing next to him -- and an undercover officer next to the suspect hears every word -- that conversation is not covered under the Wiretap Act because the person speaking isn't expecting his words to be private (Kanovitz, p. 293).

Meantime, President George W. Bush pushed the envelope when he authorized the National Security Agency (NSA) to wiretap citizens without warrants. In doing so -- allegedly to stop future terrorists from carrying out their plans by intercepting their phone and email messages -- Bush violated the law passed by Congress in 1978 called the Foreign Intelligence Surveillance Act (FISA). When the truth about those unlawful wiretaps was leaked out, Bush said his administration was monitoring Americans' international emails and phone calls to protect American lives. The FISA requires warrants for any wiretaps of this nature.

A federal judge (Judge Vaughn R. Walker) issued a 45-page decision in 2010, ruling that by wiretapping a "now-defunct Islamic charity in Oregon" (Al Haramain) the federal government had violated that FISA statute (Savage, et al., 2010). The lawyers for Al Haramain sued the federal government asserting that the plaintiffs had been "subjected to unlawful surveillance" and the judge agreed (Savage, p. 1).

Research Survey Question 4: Should "enemy combatants" have constitutional rights once they have been captured? Answer: Yes. An…

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