Agencies that exercise policing powers should, to the extent feasible, pursue the goals of policing in a way that reduces attendant or incidental harms. Toward that end, agencies should adopt rules, policies, and procedures that promote the preservation of life, liberty, and property; reduce the risk of injury to both members of the public and officers; avoid unnecessary intrusions on individual privacy, autonomy, and dignity; minimize the discriminatory impact of policing on communities of color and other marginalized groups; minimize collateral harms to both individuals and communities; and promote the well-being of officers and community members alike.
Comment:
a. Reducing harm. This Section reflects the principle that agencies exercising policing powers should strive to the extent feasible to reduce the harms they impose both on the targets of police activity and on the broader community. In the policing context, the potential harms are varied, including loss of life or liberty, risk of injury to officers or members of the public, damage to property, invasion of privacy, emotional distress, and dignitary and racial harms. Reducing those harms is essential to advancing the goals of safety and security outlined in § 1.02.
Although some of these harms are cognizable as a matter of constitutional law, agencies should strive to minimize the overall harms of policing beyond what constitutional law requires. Thus, in addition to fulfilling their constitutional obligation to avoid engaging in arbitrary and discriminatory policing, see § 1.03, agencies also should strive to the extent possible to reduce the overall discriminatory impact that policing can have on communities of color and other marginalized groups, and to minimize unnecessary invasions of privacy, including intrusions that may not rise to the level of a constitutional “search” or “seizure” within the meaning of the Fourth Amendment. Agencies also should take into consideration the individual and aggregate harms of police actions, including lawful intrusions such as stops and arrests, in evaluating agency strategy and practices. For instance, the fines and fees that follow from citations and arrests can impose significant hardships, particularly on indigent individuals who are unable to pay, trapping them in cycles of debt and leading to a variety of collateral consequences, such as the loss of a drivers’ license. See § 1.10 (discouraging policing actions for the purpose of revenue generation.) (While some intrusions are justified to protect individuals and promote public safety and order, agencies should further the goals of policing in ways that limit these harms. In choosing among means of achieving policing goals, both agencies and officers should select less harmful means, when they are available.
Importantly, reducing harm sometimes requires taking action as opposed to refraining from doing so. For example, in order to uphold the public’s rights to free expression and assembly, police officials may need to take steps to protect protesters from physical harm by those who hold opposing views. Similarly, in order for individuals genuinely to feel secure in their persons and effects, they require not only the state’s forbearance but also its protection. Historically, some of the same communities that have born the costs of over-policing also have felt under-protected from serious crime. Certain categories of offenses, such as sexual assault, also have at times been under-enforced. In addition to adopting strategies that minimize the collateral harms of policing, agencies should work diligently to investigate crime, protect witnesses who step forward, and partner with other agencies to ensure crime victims get the resources and support they need.
Many of the Principles included in the Chapters that follow are intended to promote the goal of reducing harm. For instance, the Principles on the use of force are guided by a “sanctity of life” philosophy that recognizes the preservation of all life as a core principle of policing. See §§ 7.01-7.06. Likewise, the Principles in Chapter 4 encourage agencies to minimize the intrusiveness and collateral costs of police–citizen encounters—for example by issuing warnings or citations in lieu of arrest when doing so is consistent with promoting public safety and preserving order. See § 4.05 (discussing use of warnings and citations in lieu of arrest). The Principles in Chapter 8 outline the steps that agencies should take to ensure the accuracy and reliability of their investigations, and to fulfill their obligation to not only to identify wrongdoers but also to rule out innocent suspects. And the Principles in Chapter 13 address the internal policies and practices that agencies should develop to promote officer safety and well-being—which are essential not only for the benefit of officers but also for community members who depend on their officers to provide effective, caring, and respectful service.
Reporters’ Notes
In recognition of their important function, policing officials are entrusted with wide-ranging powers—to utilize force, engage in surveillance, seize persons and property, and question suspects. Policing officials should ensure that the use of these powers is limited to the minimum amount necessary to achieve the goals of policing. See Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761 (2012); Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094, 3106-3110 (2015); see also § 1.01. Accordingly, agencies and their constituent communities should work together to define those powers and monitor their use so as to ensure that they are exercised in a way that protects officers and the public and reduces or eliminates unnecessary harms.
The values expressed in this Section reflect the idea that policing should “impose[] harms only when, all things considered, the benefits for law, order, fear reduction, and officer safety outweigh the costs of those harms.” Harmon, The Problem of Policing, at 792. The principle of harm-minimization already informs a variety of specific policing policies and practices. The National Institute of Justice, for instance, calls on police to “use only the amount of force necessary to mitigate an incident, make an arrest, or protect themselves or others from harm.” Nat’l Inst. of Justice, Police Use of Force, http://nij.gov/topics/law-enforcement/officer-safety/use-of-force/pages/welcome.aspx (last visited Dec. 1, 2015). See also Los Angeles Police Dep’t Manual, Vol. 1 § 115; U.S. Gov’t Accountability Office, Report No. GAO-05-464, Taser Weapons: Use of Tasers by Selected Enforcement Agencies 7-8 (2005). This principle is part of standard police officer training. United States Dep’t of Justice, Office of Justice Programs, Use of Force By Police: Overview of National and Local Data vii (1999).
Agencies that engage in policing should consider harm minimization on a macro scale as well. Those agencies should weigh carefully both the short- and long-term costs and benefits of policing tactics, procedures, and technologies—including both tangible measures like crime rates and budgetary expenditures, as well as intangibles like community trust. See Rachel Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U. L. Rev. 870 (2015); Vera Institute of Justice, Advancing the Quality of Cost-Benefit Analysis for Justice Programs.
1. Preserving life, liberty, and property; avoiding physical injuries. One of the core goals of policing is to preserve human life. The sanctity of all life—including the lives of officers, suspects, and community members whose safety may be threatened by criminal activity—is central to policing. See President’s Task Force on 21st Century Policing: Final Report 19 (2015) (“[A] clearly stated ‘sanctity of life’ philosophy must also be in the forefront of every officer’s mind.”). Policing agencies should incorporate the “sanctity of life” principle into their use-of-force policies both for the safety of officers and the safety of the public. See Police Executive Research Forum, Guiding Principles on Use of Force 34 (2016) (“Agency mission statements, policies, and training curricula should emphasize the sanctity of all human life—the general public, police officers, and criminal suspects—and the importance of treating all persons with dignity and respect.”); see also Albuquerque Police Department, Our Mission, http://apdonline.com/our-mission.aspx (last visited Jan. 4, 2016) (“We respect the sanctity of life, the dignity of all people, and use only that force necessary to accomplish our lawful duty.”); Philadelphia Police Department, Directive 10.1 “Use of Force—Involving Discharge of Firearms” (emphasizing that officers should “hold the highest regard for the sanctity of human life, dignity, and liberty of all persons”). Policing agencies also should take steps to minimize the risk of physical injury to officers, suspects, and bystanders; to avoid unnecessary damage to property; and to minimize the infliction of emotional or psychological distress.
Agencies also should minimize undue restrictions on liberty, including arrests as well as lesser intrusions, such as investigative stops. As discussed in greater detail in Chapter 4, although stops and arrests further a number of important law-enforcement purposes, they also can have significant consequences both for the individuals and officers involved and for police–community relations more broadly. See §§ 4.03 to 4.05 (Sections on investigative stops and arrests). For individuals, the costs of an arrest potentially may include fines and fees, loss of public housing, loss of a job, deportation, and child-custody consequences, in addition to intangible consequences such as embarrassment and resentment. See Rachel Harmon, Why Arrest?, 115 Mich. L. Rev. 307, 313-319 (2017). Arrests also carry a risk of injury for officers, suspects, and the community. See Cynthia Lum & George Fachner, International Association of Chiefs of Police, Police Pursuits in an Age of Innovation and Reform: The IACP Police Pursuit Database 7 (2008) (reporting that 14.9 percent of police officer deaths were caused by “arrest situations”). Individuals who are stopped by the police—particularly if they are not in fact involved in any wrongdoing—may perceive that they are being unfairly targeted, which can undermine agency legitimacy. See, e.g., Tom R. Tyler, Jeffrey Fagan & Amanda Geller, Street Stops and Police Legitimacy: Teachable Moments in Young Urban Men’s Legal Socialization (Columbia Law School Public Law & Legal Theory Working Paper Group Paper No. 14-380, Apr. 2014).
2. Protecting privacy interests. Agencies that engage in policing should strive to minimize invasions of privacy. Privacy is fundamental in a democratic society. As the President’s Commission on Law Enforcement and Observance recognized in 1965, “privacy of communication is essential if citizens are to think and act creatively and constructively.” Challenge of Crime 202. It “is crucial to democracy in providing the opportunity for parties to work out their political positions, and to compromise with opposing factions, before subjecting their positions to public scrutiny.” Ruth Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 456 (1980).
The need for agencies to take care to protect privacy interests is particularly acute in light of new technologies that have expanded the potential scope and pervasiveness of government surveillance. This includes both law enforcement use of technology—such as GPS tracking, bulk data collection, license-plate tracking, and closed-circuit television (CCTV) cameras—as well as the public’s use of technologies like cell phones, computers, and social media that are vulnerable to surveillance. As the U.S. Supreme Court recognized in Riley v. California, 134 S. Ct. 2473, 2491 (2014), “a cell phone search [today] would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” Policing agencies therefore should, consistent with the Principles that follow, develop rules, policies, and procedures to address the use and surveillance of new technologies—and should involve the public in the process to ensure that these decisions are consistent with community values. See President’s Task Force, supra, at 35. See Chapters 2, 3, and 5.
3. Reducing disparities. Policing agencies should strive to minimize the overall discriminatory impact that policing can have on communities of color or other marginalized groups. Various studies have shown that certain policing strategies—such as the proactive use of traffic and pedestrian stops—can produce substantial racial disparities. See § 4.03, Reporters’ Notes. Agencies should, consistent with this Section and the Principles in Chapter 4, consider limiting the use of these tactics in order to minimize these effects. Policing that is perceived to be arbitrary and discriminatory risks undermining police effectiveness by eroding community trust. See President’s Task Force, supra, at 9-18; Tracey Meares, The Legitimacy of Policing Among Young African-American Men, 92 Marq. L. Rev. 651, 655-660 (2009). As the International Association of Chiefs of Police (IACP) recognized in a 2015 report on police–community relations, even well-intentioned policies can have the unintended consequences of “reduction in perceptions of police fairness, legitimacy, and effectiveness.” IACP National Policy Summit on Community-Police Relations: Advancing a Culture of Cohesion and Community Trust 7 (2015). This erosion in trust has long-term implications for policing, particularly given reliance on cooperation and participation in the criminal-justice system.
4. Minimizing collateral harms. Agencies also should consider—and strive to minimize—the collateral harms to both individuals and communities that may result from agency enforcement practices. As discussed above, individuals who are arrested may experience a variety of collateral harms—including the loss of housing, employment, or child custody—that go beyond the intrusiveness of the arrest itself. The same is true when it comes to the fines, fees, and other legal-financial obligations that follow citation and arrest. As discussed in greater detail in § 1.10, individuals who are unable to pay the fines and fees that result from discretionary enforcement decisions—such as traffic citations—may face additional fines, lose their drivers’ licenses, or even imprisonment. Brandon L. Garrett, Sara Greene and Marin Levy, Fees, Fines, Bail, and the Destitution Pipeline, 69 Duke L.J. 1463-1472 (2020). This can significantly impact not only the individuals who are directly affected, but also the communities in which they live. Agencies should consider both these individual and aggregate harms in formulating enforcement strategies, and consider whether less intrusive or costly mechanisms might be available to address public safety concerns.
5. Ensuring the accuracy of police investigations. Policing agencies have an obligation to seek the truth and to work diligently both to identify potential wrongdoers and to clear the innocent. Consistent with these obligations, a number of major law-enforcement organizations have incorporated a commitment to accuracy and reliability both as part of their organizational value statement and as a basis for specific department rules, policies, and procedures. For example, the IACP Canons of Police Ethics state that “The law enforcement officer shall be concerned equally in the prosecution of the wrong-doer and the defense of the innocent.” Likewise, the Austin Police Department’s policies on eyewitness identification emphasize the importance of complying with the outlined procedures to “maximiz[e] the reliability of identifications, exonerate innocent persons, and establish[] evidence that is reliable and conforms to established legal procedure.” Austin Police Department Manual at 243. See also Chapter 10.
6. Promoting officer well-being. Ensuring the well-being of officers is critical to achieving the other goals of policing. Their well-being affects not only officers themselves, but also public safety: an officer burdened by physical or mental illness can be a danger to himself or herself, his or her fellow officers, and the larger community. See President’s Task Force, supra, at 61. Policing is by its nature a high-stress profession. Stephen M. Soltys, Officer Wellness: A Focus on Mental Health, 40 S. Ill. U. L.J. 439 (2016). Undiagnosed mental illnesses can hamper an officer’s ability to maintain calm in high-stress situations or to engage with the public in a positive way. See Mora L. Fiedler, Officer Safety and Wellness: An Overview of the Issues 4, Community Oriented Policing Services, U.S. Dep’t of Justice (2012).
Protecting officer well-being requires taking an expansive view of the risks faced by officers. Police face direct threats in the form of physical violence: 135 officers were killed in the line of duty in 2016. Nat’l Law Enf’t Officers Memorial Fund, Preliminary 2016 Law Enforcement Officer Fatalities Report 1, http://www.nleomf.org/assets/pdfs/reports/Preliminary-2016-EOY-Officer-Fatalities-Report.pdf. But they also face myriad indirect threats, including heightened rates of suicide, sleep disorders, alcoholism, and post-traumatic stress disorder. See Fiedler, supra, at 9; see also John M. Violanti, Dying for the Job: Police Work Exposure and Health (2014). Police departments must consider officer safety holistically in order to protect their officers and the public.
Policing agencies should take steps to further this broad understanding of officer well-being, by providing for adequate training, safety standards, and up-to-date equipment, and by prioritizing officer safety and well-being at all levels of the department. See Letter from Jane Castor, Chief of Police, City of Tampa, to the President’s Task Force on 21st Century Policing, Feb. 23, 2015. Toward this end, police departments should work to transform department culture so as to ensure that officers “feel respected by their supervisors” and to “overturn the tradition of silence on psychological problems.” President’s Task Force, supra, at 61. Consistent with the notion of procedural justice, departments also should implement “internal procedural justice” reforms to ensure that officers are treated fairly in internal department proceedings. See Ron Safer & James O’Keefe, Preventing and Disciplining Police Misconduct: An Independent Review and Recommendations Concerning Chicago’s Police Disciplinary System (2014).