Expert: Loren Stevens - 6/2/2004

Question
I have to do a presentation for my class and if you have ever seen Penn & Tellers' show "Bullshit" that's the way we have to present. We must weigh out the pros and cons of the topic, whether we agree or disagree.

My question is do police officials in the United States have too much authority?

Thankyou and I appreciate your opinions.

             Tara Graves
     student at the University of North Texas

Answer
Hi Tara,
My counsel to you, is to break it down some more.
By law, and technically speaking, Prosecutors are also law enforcement officials. I assume you do not want to factor them into your presentation. They have the option to not prosecute a case because "it lacks prosecutorial appeal",
in other words, they don't want to, for a variety of reasons.
Police officers per se, are governed by statutory law, be it fereral, state statute, city or county ordinance. The assumption, is that ALL laws are created by a legislative body. In a debate or speach, be prepared for challenge. The two primary areas of essential challenge, are: definitions, and assumptions.
This brings me to the assumption that ALL law is legislated, per the Constitution, ie "Congress chall pass all laws...."
However, "case law" is binding, as are "executive orders". If there is governmental edict, by any other name, it is "LAW."
The one area you want to focus in on, is that which does NOT fall into any and all areas of LAW, which by their very nature, is required response.
This area in police work, is commonly reffered to as: "POLICE DESCRETION", where it is the perrogitive of the officer on how to respond, and if to respond at all.
Areas of "police descretion are by and large associated with petit or misdemeanor offenses, eg, minor infractions, most traffic violations et al.
There are exceptions to this, that have been mandated, taking the descretion out of the police officer's hands.
This would include matters of domestic violence, etc. This is where social activists groups lobby for a mandate of specific response.
You see, MOST misdemeanors require the officer to witness the errant conduct to take an action. What is unique with domestic violence cases, is they happened (usually) prior to the officer arriving at the scene, ergo not in his presence, but reason to beleive violence did occur.
Another example, is a traffic accident. One of the drivers most usually was at fault, by violating a traffic law. Usually these are misdemeanors, and usually NOT witnessed by the officer. Yet, the officer talks to witnesses, measures skid marks etc and determines fault, and issues a citation. This process evolved by the lobby of Insurance company's for obvious reasons. But here again, a misdemeanor occuring NOT in the presence of the officer, who is then required to issue an action.
Most other areas of misdemeanor related DESCRETION offer essentially 4 options for the officer to entertain:
ignore, warning, citation, arrest, obtain a warrant. As you know, a citation is in leiu of an arrest, where the citizen promises to appear or respond to court.
Can you imagine the quagmire it would creat if there was no police descretion in these areas? It would recognize no borderline issues, and no extraordinary circumstances eg, slightly speeding to get a ready to deliver woman to the hospital etc.
Plus, the city atty and Dist. Atty does not have the wherewithal to respond to an additional huge volume of petit cases. And, the courts would go bonkers. As it is now, and even with the varying degrees of required proof, the criminal justice system is nearly at gridlock. It's like trying to put a gallon of action into a pint jar....every day!
So, in those specific areas where "descretion" is allowed, it is prudent for agencies to articulate reasonable parameters.
All in all, this is cost effective, and understandable to the masses. Is it a perfect system? absolutely not, but what do you replace it with?
Then, there is the issue of who would know ALL of the laws on the books, local, county, state, and federal, plus the regulatory areas?
Remember, your talk requires a beginning, a middle, and end.
Challenge your listeners by taking BOTH sides of the issue, which will compell a stimulated response at the end....you made them think!
On your next "caper" deal with " the exclusionary rule", which always tends to raise the anxioty index of folks.
good luck, sorry to ramble on, hope it was useful, and please excuse my structure, spelling etc.
loren