All investigative and enforcement activity by officers or agencies should be based on, and should further, a legitimate policing objective.
Comment:
Agency officials undertake a variety of investigative and enforcement activities—including making stops and arrests, interviewing witnesses and suspects, conducting surveillance, gathering forensic evidence, and reviewing publicly available information on social media. In addition to the more specific protections set out in the Chapters that follow, these activities should be based on and should further a legitimate policing objective, including: preventing, deterring, or investigating unlawful conduct; promoting traffic or pedestrian safety; ensuring officer safety; rendering aid; and facilitating the exercise of constitutional rights. See also §§ 1.02 (Goals of Policing); 1.03 (Constitutional Policing).
Conversely, agency officials should not undertake these sorts of activities to pursue illegitimate ends. Officers should not, for example, initiate investigative or enforcement activities out of personal animus or political disagreement, or for personal gain. Nor should they undertake these activities in order to intimidate or harass. Just as important, enforcement activities should not be motivated in whole or in part by a desire to meet an official or unofficial quota—and agencies should avoid structuring their promotion and evaluation systems in a manner that encourages this sort of activity. Enforcement quotas, which a number of states prohibit as a matter of state law, can lead to both over-enforcement and racially disparate enforcement, and are inconsistent with the principles on harm-minimization and procedural justice enumerated in §§ 1.04 and 1.07. Finally, both officer and agency activities should be consistent with the principles on policing for the purposes of revenue generation, § 1.10, and policing on the basis of protected characteristics and First Amendment activity, § 1.11.
Reporters’ Notes
Agencies should ensure that officers exercise their authority only in pursuit of legitimate ends, such as investigating or deterring unlawful conduct, promoting public safety, or rendering aid. See also § 1.02 (Goals of Policing). Although many departments have policies that prohibit officers from undertaking investigative activities for impermissible purposes—such as personal animus, political disagreement, or financial gain—often these prohibitions are contained in specific policies having to do with accessing department databases or using specific surveillance technologies. See, e.g., The Los Angeles County Sheriff’s Department’s Automated License Plate Recognition (ALPR) Privacy Policy § I (listing authorized purposes for which ALPR technology may be used); http://shq.lasdnews.net/content/uoa/epc/alprprivacypolicy.pdf; Ga. Code Ann. § 35-1-22(d)(1) (making it a misdemeanor to use ALPR technology “under false pretenses or for any purpose other than for a law enforcement purpose”); Detroit Police Department Manual 307.5 (listing prohibited and allowable uses of facial-recognition technology), https://detroitmi.gov/sites/detroitmi.localhost/files/2019-04/FACIAL%20RECOGNITION%20Directive%20307.5.pdf; U.S. Dep’t of Just., Criminal Justice Information Services (CJIS) National Data Exchange (N-DEx) System Policy and Operating Manual § 1.3.4 (listing the acceptable uses of the National Data Exchange system). Agencies should make clear that all investigative activities, however minor, should have a legitimate basis. See, e.g., Anaheim Police Department Policy § 322.5.2 (prohibiting “[t]he wrongful or unlawful exercise of authority on the part of any member for malicious purpose, personal gain, willful deceit or any other improper purpose”) https://www.anaheim.net/DocumentCenter/View/29459/APD-Policy-Manual; The Justice Collaboratory at Yale Law School, Principles of Procedurally Just Policing 37-39 (2018) (proposing that investigatory stops be “limited to circumstances in which they promote public safety and do not unnecessarily harm police-community relations”). Just as it would be inappropriate for an officer to access a license-plate-reader database to track the whereabouts of an intimate partner, it also would be inappropriate for an officer on duty to tail an individual for reasons unrelated to an investigation or public-safety concern.
Agencies also should avoid the use of quotas and performance incentives that encourage officers to take enforcement actions in order to satisfy evaluation criteria or improve their standing within the department. Experience in various jurisdictions makes clear that quotas—both formal and informal—encourage officers to take enforcement action in circumstances in which they otherwise would not. And they often can exacerbate racial disparities by prompting officers to look for what they may perceive to be “easier” targets in low-income communities and in communities of color. See, e.g., Guy Padula, Utah v. Strief: Lemonade Stands and Dragnet Policing, 120 W. Va. L. Rev. 469, 524 (2017) (quoting NYPD officers explaining that the way they met the department’s alleged enforcement quotas was by going “to the well”, meaning the lobbies of public-housing buildings). For this reason, a number of states already prohibit agencies from using quotas for stops, citations, or arrests. See, e.g., Ark. Code Ann. § 12-6-302 (prohibiting the use of arrest quotas); Cal. Vehicle Code § 41602 (West) (prohibiting use of arrest quotas); Mont. Code Ann. § 46-6-420 (prohibiting quotas for arrests, citations, or investigative stops); Conn. Gen. Stat. Ann. § 7-282d (prohibiting quotas for traffic citations); Md. Code Ann., Pub. Safety § 3-504(a)–(b) (prohibiting quotas for arrests and citations, and prohibiting agencies from using the number of arrests and citations as a “primary” criterion for promotion); 71 Pa. Stat. Ann. § 2001 (prohibiting agencies from requiring—or even suggesting—that officers issue a specific number of traffic citations); Utah Code Ann. § 77-7-27 (prohibiting the use of quotas for arrests or citations). Agencies further should ensure that their evaluation schemes do not inadvertently create the same enforcement incentives as would a more formal quota system.