The State of American Law Enforcement - Rules of Engagement

In smaller agencies, policy manuals—if they existed—were just a few policy statements. Now there are multiple bound volumes that no officer can be expected to memorize, let alone understand. — Tom Aveni, Police Policy Studies Council

Author Dean Scoville Headshot

By definition, policy is a course of action, a guiding principle or procedure considered expedient, prudent, or advantageous.

By practice, the policies of a law enforcement agency dictate the protocol by which officers are expected to conduct their duties, often carrying with it the added responsibility of mitigating potential liability resulting from those duties. By all accounts, it is often more restrictive than what the law requires, than what cops desire, and more than what their employers would want in an ideal world.

As a result, many officers increasingly view policies as de facto restraining orders inhibiting their peace of mind and, therefore, their initiative.

In response, administrators are quick to point out that cops are often their own worst enemy, saying that much of the blame for disagreeable policies can be traced directly to the doorsteps of dunderheaded officers whose practices gave them genesis.

Conformity and Consistency

Lt. Rich Daniels of the Los Angeles County Sheriff's Department (LASD) says there are two basic purposes for a policy. The first is to restrict the use of prerogative. The second is to establish an expectation of standardization.

The paramilitary strictures of law enforcement have conventionally led to public expectations of uniformity, but is standardization necessarily coveted in all areas? Is it reasonable to expect that a deputy working the beaches of Malibu would wear the same attire as one assigned to the arid landscape of southern Utah? Is it truly reasonable that female officers perform the same feats of strength as their masculine peers?

Reconciling expectations of uniformity in a non-conformist world isn't always easy. Nonetheless, the LASD has relaxed policies on a variety of fronts. In doing so, it is hardly unique, as many other law enforcement agencies have relaxed rules pertaining to tattoos, body piercings, and alternate lifestyles. Increasingly, the prevailing attitude seems to be one of, "We may not all look or act alike, but we're all in this together."

It's Not Your Prerogative

While society has encouraged law enforcement to loosen up on some fronts, it has simultaneously expected it to tighten up on others. This uneven treatment often harkens back to that first concern: the restriction of prerogative.

Deadly force, driving immunities, and search and seizure are but a few areas where an officer's prerogative comes into play on the job. Policies governing use of discretion in these areas seek to prevent abuses of authority, minimize threats to the community, mitigate the need for civil redress, and generally keep the employing agency out of the headlines.

It is the overzealous nature with which some agencies' policies restrict officer prerogative that concerns Tom Aveni, a New Hampshire law enforcement officer who works with the Police Policy Studies Council.

Aveni sees a growing phenomenon of law enforcement agencies that tailor policies to suit ends beyond what has historically been their purpose.

"Conventional wisdom states that we modify human behavior by changing the way people think and react to certain circumstances," notes Aveni. "That's the whole purpose behind training and we've always embraced that. That's the reason there has been historically so much emphasis on bettering police training.

"Policy is supposed to be instructive to the extent that it codifies what we do under general circumstances. The problem with policy today is that we tend to make it a one-size-fits-all proposition. We've attempted to minimize discretion in ways that certainly suggest that we haven't trained officers well enough to use discretion wisely. That's really the root of the problem as I see it: more restrictive policy in some of the more extreme cases," Aveni adds.

As an example, Aveni cites LAPD's moratorium on an officer's ability to shoot at a moving vehicle when that vehicle is being used as a weapon. Aveni openly wonders what the attendant cost will be for an officer's hesitance to use deadly force if faced with an incident of a motorist intentionally mowing down pedestrians, as has happened in Las Vegas, Reno, New York City, and even Chapel Hill, N.C.

"It is to me indicative of the fact that police administrators are trying to squeeze more out of policy than they should. Training operationalizes policy and somehow we're putting the cart before the horse by putting so much reliance on policy and restricting what our officers do on the street."

Officer Friendly

Within law enforcement circles some agencies enjoy a reputation for having more "officer friendly" policies than others.

The Phoenix Police Department has only recently allowed its officers to inquire about the citizenship status of its contacts. In contrast, Maricopa County (greater Phoenix) Sheriff Joe Arpaio has for years encouraged his deputies to not only make such inquiries but to arrest illegal immigrants.

Aveni is sympathetic with the plight of police administrators in some communities and the "no win" positions they often find themselves in.

"I think the first thing we have to accept, whether we want to or not, is that agencies serving some communities are really behind an eight ball," Aveni says.

"If you're a police officer in Detroit and your mayor has just been locked up, the vast majority of the people probably aren't favorably disposed to supporting law enforcement," Aveni explains. "The mind-set of police administrators in a community like that is going to be different than police administrators working in a rural setting, where for the most part people are law abiding and support police. If somebody there is shot or TASERed by police, they are more likely to shrug their shoulders than engage in any violent disobedience. We've got to make that concession.

"Police administrators are under extreme pressure to do things that they probably don't want to do. Do I like that? Not at all. Does that mitigate police administrators doing all the wrong things with policy? I don't think so. I just realize that they're under a lot of pressure."

What the Hell Were They Thinking?

The pressure exerted on police administrators can reach geological proportions. Geological forces can convert coal into diamonds. Unfortunately, in the world of law enforcement, policy making sometimes results in something far less refined.

The situation is often one of administrators looking at the actions of some officers and asking themselves, "What the hell were they thinking?" then promulgating some new policy to prevent a recurrence in the future. The new policy is presented to patrol officers who, in turn, sometimes find themselves asking the same question of the administrators.

William McKechnie, former president of the Transit Patrolmen's Benevolent Association, certainly thought as much in response to the New York City Transit Authority's one time decision to man toll booths with police officers in a bid to impact toll evaders.

"This system of putting a uniformed cop in front of a booth is asinine," McKechnie said at the time. "That would be fine if everything else was fine and people were not more and more victimized by homicide, robbery, and rape. I believe it's misplaced priorities."


While common sense eventually tempered such commitments for the Transit Authority, the theme of misplaced priorities continues to resonate throughout the law enforcement community.

The Vetting Process

LASD's Daniels notes that however disagreeable some officers may find certain policies, they aren't created in a vacuum.

"We'll try to catch ways a policy can be misinterpreted [before it goes into effect]," Daniels explains. "We run it by the chiefs who are going to be affected by it, the Office of Independent Review (OIR), department legal advisor, with an eye toward looking at the unintended consequences of the policy. We try to tailor these things through the eyes of the patrol deputy. The departmental attorneys may have a different view on it in terms of civil implications. The OIR will examine it from the perspective of how it impacts the community. The policy is part of the vetting cycle."

The vetting cycle includes an assessment phase wherein the department evaluates the outcome of the policy: Has it accomplished its purpose? Does it need modification? Or is it fundamentally impractical?

Protecting Officers Whether They Want It or Not

One policy that will soon go through an assessment phase at the LASD is the department's rules on foot pursuits. The new policy forbids one-man foot pursuits or separation of partners and is recognized as one of the most stringent foot-pursuit policies in the nation.

Asked for the rationale behind a policy that some see as draconian, Daniels points to the number of injuries and deaths incurred by both law enforcement officers and subjects incident to such pursuits. He cites the Tom Pohlman incident of 30 years ago as a major factor in tailoring the foot pursuit policy. Pohlman, working a one-man day shift, initiated a foot pursuit of a drug suspect who he eventually cornered in a backyard. The suspect was able to wrestle Pohlman's firearm from him and execute him with it.

Daniels makes the argument that the enforcement effects of such pursuits are not worth the danger to officers.

"We know we cannot conduct law enforcement with no risk. The criminals just won't allow it," Daniels acknowledges. "We try to get the minimum reasonable risk that we can. Another thing that we restrict is line of sight. If you lose sight of somebody, the foot pursuit is over. That goes back to officer safety.

"Again, the relative weight question comes into play: Is the tactical advantage that has been gained by the suspect worth the potential loss of a deputy's life? One thing we're well aware of through the field of psychology is as people become stressed and as they become subject to influence of adrenaline, just the normal physiological stresses of a pursuit, their judgment is diminished. Are we going to allow certain criminals to escape who we might otherwise catch? Absolutely. That's the price tag. What's the benefit that we get? Hopefully, fewer Tom Pohlmans."

Still, it appears that the policy has apparently failed to win the hearts and minds of the very people it was ostensibly developed to protect: deputy sheriffs.

Among the critics is Dep. George Hofstetter, a director with the Association for Los Angeles Deputy Sheriffs, who has found his union repeatedly defending deputies who've been disciplined for out-of-policy foot pursuits.

"If you see somebody you believe to be a bad guy and they take off running, it's almost an instinct to chase after them," Hofstetter said in an interview with the Los Angeles Times. "A lot of times you're not thinking, 'Am I in policy or out of policy?' It's one of those things that becomes ingrained in you: to catch the person and take them to jail."

Hofstetter is but one of many deputy sheriffs who see the foot-pursuit policy as an abdication of law enforcement responsibility. Many officers view policy makers as little more than pencil pushers who try to design something that will insulate the political powers within their department from liability while effectively leaving cops out to hang. It is the reason why many take any justification for a given policy with a huge chunk of salt.

Discussing amorphous policy phrasing such as "pursuits should be terminated within a reasonable period of time," one deputy defined that to mean "approximately one second before a traffic collision."


Last Resort

Tom Aveni finds such cynicism disheartening but understandable. He cites LAPD's knee-jerk reactions in modifying its officers' flashlights, both in their physical appearance as well as their use-of-force policy, which now prohibits flashlight strikes as an example of a policy that bewilders officers.

"The most useful policies are those that define parameters of behavior given certain generic circumstances but also afford a so-called last resort clause," Aveni says. "A last resort clause in a policy would read something like, 'Only approved impact weapons shall be used by police when an impact weapon is justified. Items not on the approved list of impact weapons will only be used as a last resort, i.e., police flashlights.'

"So what you're saying in your policy statement is you don't want guys using their flashlight as an implement of force. However, if an officer is pinned against the wall or pinned down on the ground and the only thing he has at his disposal to save his life is his flashlight, then that falls within the realm of a so-called last resort. No other viable alternative is available and we're going to say under those circumstances that the officer can resort to using his flashlight as an impact weapon."

These thoughts are echoed in another cop's sentiments: "The logic of thinking that a cop with a Streamlight in hand is going to drop it and draw another weapon when faced with a threat requiring a good solid rap or two has always eluded me. Why make a policy that you know is going to be broken? It seems better to spend the effort on teaching officers the best way to utilize their available weapons as safely as possible."

Whether or not it concerns itself with use of force, pursuits, or flashlights, Aveni believes that the pernicious effects of bad policy go beyond any particular issue: It can metastasize like cancer and destroy the agency.

"It undermines morale," Aveni says. "When police think that policy is stacked against them in a way that the influences bear on their occupational safety, it is something that is going to weigh heavily against officer morale. Officers have to believe that policy is fair, that it reflects established case law, that it gives them enough discretion on the street to ensure their own safety within parameters that are universally objectively reasonable. We're not getting that anymore."

Lack of Trust

Aveni sees these policies as end products of a bigger problem: A lack of trust in officers by the men and women who oversee them.

"What we're getting is every indication that police administrators tend to trust their officers less in a time when they're theoretically better trained—and definitely better educated—than ever before. We're seeing less confidence and less trust in officers than ever before, at least in my lifetime and beyond that."

Volumes and Volumes

Aveni is astounded at the synergy between policy promulgation and officer inhibition.

"Let's face it. Thirty or 40 years ago a policy manual would have been hard to find in any agency," Aveni says. "In most agencies, it didn't exist. In smaller agencies, policy manuals—if they existed—were just a few policy statements on who knows what. Now there are volumes—literally multiple bound volumes—that no officer can reasonably be expected to memorize, let alone understand and operationalize on the street. It's gone way beyond the realm of being able to use this stuff effectively on the street."

If there is one area that the rank and file agree upon, it is their shared concern that any prospective liability can be enhanced by the adoption of strict policies. It is because of such concerns that John C. Hall, an instructor with the FBI Academy, recommends that agencies consider including specific disclaimers. A prime example is one agency's deadly force policy, which includes the statement, "Nothing in this policy and the attached commentary is intended to create or does create an enforceable legal right or private right of action."

Policies are formal declarations of what an agency is expected and willing to do. They have import. They have purpose. Perhaps one day, they will allow greater leeway for officers to exercise their authority and greater latitude for the men and women who evaluate their discretion so that if they can't temper justice with mercy, then perhaps with a little common sense.

In the meantime, it would appear that some officers will be expected to sign financial disclosure statements, be selective in the laws they enforce, and, on occasion, play dodge car. For those who don't, the writing is on the wall, sometimes literally in signage that states, "To err is human. To forgive is against department policy."

In January 2008, POLICE Magazine launched a year-long article series focusing on the “state of American law enforcement.” If you’d like to read the other chapters, click on the links below.

Chapter 1: The Thinning Blue Line.  Law enforcement agencies nationwide are competing for a dwindling population of recruits.

Chapter 2: The Blue Mosaic.  Policies meant to diversify law enforcement agencies have changed police demographics and will continue to do so in the future.

Chapter 3: Teaching to the Test.  Does law enforcement training focus too much on qualifying and not enough on skills that can help you win fights?

Chapter 4: A Love-Hate Relationship.  Most people only meet an officer when they are arrested, questioned, or cited. That makes it hard for them to like cops.

Chapter 5: Can the Average Cop Thrive in the Age of Specialization?  The generalist cop is part of a dying breed, which means many of today's officers will need to excel at a specialty.

Chapter 6: Women Warriors.  Female police officers must walk a fine line between fitting in and making their own way in law enforcement.

Chapter 7: Working on the Front Lines.  The patrol officer is the backbone of American policing, but a lot of agencies don’t want to admit it.

Chapter 8: SWAT: Breaking the Mold.  Agencies nationwide model their tactical teams on LAPD SWAT. So what does it mean if that unit changes its policies to be more politically correct?

Chapter 9: Stopping the Next 9/11.  Improvements in intelligence gathering, training, and equipment give you a good chance of preventing the next attack and saving lives if it happens.

Chapter 11: Gangster Nation.  Big city street gangs have taken root in small town  America, bringing mayhem to Main Street.

Chapter 12: Damned If You Do, Damned If You Don't.  When a cop uses - or doesn't use - a less-lethal weapon in contemporary America, there can be hell to pay.

About the Author
Author Dean Scoville Headshot
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