Write a three page paper (double spaced) on police discretion. What are the benefits and the potential dangers of police discretion?

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Examining Police Discretion and the Use of Firearms
Involving the New York City Police Department
James F. Albrecht
The issue of police discretion has often been evaluated as a factor that may cause disparate
impact against minority communities, particularly in the United States. The New York City
Police Department, the largest municipal law enforcement agency in the USA, has
repeatedly come under criticism from civil rights group as it relates to police-suspect
interaction. Even more so, shootings involving the police have routinely been labeled as
racially biased. The NYPD has taken steps to reduce the number of police shootings, mainly
through enhanced tactical training and through the promotion of the use of such non-lethal
weapons as pepper spray and electronic shock devices (e.g. Taser). The US Supreme Court
has also played a major role as it examined and interpreted the legality of specific police
shooting scenarios. Policy implications and the impact of this significant court legislation
and improved instruction will be comprehensively examined.
Police, Shootings, Disparate Impact, Racial Discrimination
In an effort to ensure efficiency in government organizations and in private
business, an agency should compose a handbook or manual that delineates the
specific policies, procedures, regulations and practices of institutional operations.
These instructions should be distributed and/or accessible to all employees, and
compliance should be regulated and enforced. By developing its guidelines in
written fashion, the agency is able to defend itself against civil liability, discipline
employees for misconduct, and become recognized as a professional organization
after achieving its accreditation status (Peak, p.34). Even more importantly, the
ready availability of this material (in the United States under the “Freedom of
Information Law”) will permit the public service agency to expose its policies to the
public in an effort to provide the organizational transparency that the community
expects. With the advent of the internet, the public (in the USA) often has
immediate access to agency rules, regulations, statistics and contact information.
Transparency should be a desired goal, as it provides a two way communication
feedback mechanism for community input and agency insight (Curtain,Article 2.2).
One concept that applies to the sphere of law enforcement is discretion. It is the
task of the top agency executive to balance unfettered discretion and complete
standardization. There are some who differentiate between policies, procedures and
Pakistan Journal of Criminology
Volume 3, No. 2 & 3, April – July 2011, pp. 1 – 10 1
rules. There are others who consider the terms interchangeable. When the
designations are distinctly defined, then “policies” are considered to basically be
guidelines related to the organization’s philosophy and mission which assist in
interpreting those elements to agency personnel. “Procedures” are “more flexible
that policy but less restrictive than rule or regulation,” describing a “method of
operation while still allowing some flexibility within limits.” Rules and regulations
tend to be more stringent and distinct with limited flexibility and discretion
(Sheehan and Cordner, pp. 446 – 447). Often violation of rules and regulations can
(should) lead to disciplinary and corrective actions by agency managers.
The issue of discretion in law enforcement remains a topic that receives much
attention and scrutiny. Police discretion is the autonomy granted to police
practitioners to make decisions and enforce the law. Ideally, police discretion
involves a professional judgment that “preserves community and citizen safety,
respect for the law, and citizen rights to due process and equal protection of the law”
(Champion, p. 195). It is the scrutiny of police use of discretion that is the
predominant source of allegations of police misconduct in the United States. The
use of discretion by law enforcement personnel is, however, unique when compared
to other trades, since their actions may lead to seizure, custody, use of force, and
ultimately to the taking of a human life. Unfortunately many accusations of
inappropriate police action are sensationalized by the media, and paint individual
officers and law enforcement agencies in a negative light.
Police misconduct can be divided into a number of “negative” actions by police
personnel, or in more realistic terms, accusations of perceived injustice by law
enforcement personnel. These actions include: corruption, physical abuse and
excessive force, verbal and psychological abuse, and violations of civil (legal) rights
(Carter, pp. 150 – 152). While all involve serious integrity issues, the authority
granted to law enforcement personnel to legally utilize force to accomplish their job
tasks is a discretionary issue that often places officers and their actions “under the
microscope” and susceptible to media, public and legal scrutiny. The use of force by
police as it relates to law enforcement in the United States ofAmerica and New York
City will now be further highlighted and analyzed.
Police Use of Force in the United States
The justifiable use of force by law enforcement personnel in the United States
has its roots in English Common Law. In its original stages, force was permitted by
all citizens, at the minimum, to detain a recognized criminal violator, and physical
punishment, exile and death were common and acceptable penalties for alleged
criminal conduct. When taken to the extreme, any convicted felon could (and would
likely) be put to death. A person who opted to flee the scene of a serious crime
James F. Albrecht
Pakistan Journal of Criminology
became a “fleeing felon,” and since death was the likely punishment, it became
common practice for those tasked with law enforcement to merely kill the
perpetrator before he could completely escape. This practice was transported to the
thirteen colonies in North America and eventually became permissible law once the
United States of America was founded. The “fleeing felon” concept was standard
operating procedure for many American police agencies through the 1980s, and
remained a legal standard in mostAmerican states until that time.
Areview of the Rules and Regulations of the New York City Police Department,
the precursor to the NYPD’s current Patrol Guide, reveals that shooting a fleeing
felon, firing warning shots, and putting a horse or other animal out of its misery were
suitable and necessary actions in police work. By the early 1980s, these guidelines
had become more restrictive. With the acknowledgement that New York City had
evolved into a densely populated metropolis, the feasibility of firing bullets into the
air or into a dying animal were no longer acknowledged as low risk actions for police
personnel to take. A random bullet could cause both physical injury and property
damage, and worse yet, lead to the death of an innocent bystander. Plagued from
1960 through the mid-1990s with an uncontrollable murder rate, there was no need
for the police to add to this unwanted statistic.
Due to the population density in New York City and the escalating crime and
violence rate, the New York City Police Department had instituted more restrictive
guidelines into its “Use of Deadly Force” policy than was legally permitted. As
stated above, it was lawfully sanctioned within Article 35 of the New York State
Penal Law that police personnel could use deadly physical force to apprehend a
fleeing felon within the State of New York. NYPD policy emphasized the value of
human life and the use of the minimum amount of force necessary to accomplish the
mission as the preferable practical options for agency personnel faced with that
undesirable situation. As such, the New York City Police Department policy
delineated that officers could only use deadly physical force (discharge their
firearm) in situations in which deadly physical force was used or threatened against
them or another person. Additional restrictions were applied, including the
prohibition against firing at a moving motor vehicle that is threatening the officer
unless there is another source of deadly physical force being utilized or apparent.
Warning shots and putting a disabled or injured animal out of its misery were no
longer viable options.
In 1985, the United States Supreme Court acknowledged the changing times
and evolving standards of decency and decided the famous Tennessee v. Garner case
(47 U.S. 1, 1985), which prohibited the use of deadly physical force to apprehend a
fleeing felon. The Supreme Court specifically held that a police officer may not use
deadly physical force to apprehend a fleeing felon who does not pose a “significant
threat of death or serious physical injury” to the police officer or to others at the
scene. In essence, the United States Supreme Court was not only creating new
legislation, but also law enforcement agency policy. The contributing factors in the
court’s reasoning were the elimination of the death penalty for all crimes except for
murder, based on Coker v. Georgia (422 U.S. 584, 1977), and the revision of penal
codes to include non-violent crimes in the felony category, which would have
allowed a police officer to shoot at a fleeing tax evader or shoplifter under certain
circumstances. The United States Supreme Court was merely elevating the
“Justification” statutes outlined in state legislation to reflect contemporary
While this court decision did not have an overwhelming effect on New York
City Police Department procedures, it did have a dramatic impact on many law
enforcement agencies across the nation. Many police departments with liberal use
of deadly physical force guidelines were faced with the overnight responsibility of
revising agency policy to meet this legal demand. And many, if not all, American
states found their “Justification” statutes within their jurisdictional penal codes to be
immediately obsolete and unconstitutional.
Revising Police “Use of Force” Policy in the United States
The Tennessee v. Garner case was not the only significant factor influencing
law enforcement policy revision involving police use of deadly physical force.
Other relevant United States Supreme Court actions include the 1978 Monell v.
Department of Social Services (436 U.S. 658, 1978) and the 1980 Owen v. City of
Independence (445 U.S. 622, 1980) decisions, which permitted civil litigation by
victims (or family members of victims) of alleged police misconduct. This has
resulted in fundamentally every police-involved shooting leading to a civil suit
against the jurisdiction or municipality involved. Jurisdictional leaders (i.e.,
governors, mayors, county executives, sheriffs, etc.) therefore have strong financial
incentive to influence their respective law enforcement agency in revising pertinent
policy in an attempt to reduce police shootings.
Another factor that has affected police “Shoot – Don’t Shoot” policy is the
enhanced tactical training now available for police personnel. Tactical
considerations now call for the emphasis on cover for improved survival, even with
the advent of comfortable and light weight body armor. Contemporary law
enforcement training highlights the use of a tactical retreat, which would not have
been a realistic (permissible) option within the police academy environment prior to
1990. Many new technological devices are now available to simulate genuine
confrontational situations that may lead to use of force by police personnel. Video
supported shooting ranges allow law enforcement officers to shoot real or computer
James F. Albrecht
Pakistan Journal of Criminology
adjusted firearms, and measure shooting effectiveness. The ultimate goal is now to
reduce the likelihood of firearm discharge, and sharpen an officer’s ability to make
that difficult split second decision.
In addition, other options are now available to law enforcement personnel to
avoid using firearms and opt for a non-lethal weapon other than the police baton.
The development of chemical or pepper spray and electronic stun devices (e.g.,
“stun gun” and “taser”) now offer police officers an intermediate tool that can be
used to incapacitate a resisting or noncompliant and armed offender or emotionally
disturbed individual.
The final factor that can be said to influence police department use of force
policy is alleged racial discrimination. It is not uncommon for minority group
advocates to blame the police when a minority offender is the recipient or target of
police use of force. Of course, cries of racism routinely draw the attention of the
media, and eventually the attention of reelection-oriented politicians. The end
result is repeated pressure on law enforcement administrators to reduce the
frequency of police involved shootings. While practitioners recognize that the
number of minorities involved in police shootings normally reflect regional arrest
(and described offender) rates (Fyfe, 1981), some view the disproportionate number
as resulting from institutional or individual racism.
Policy Influences on Police Use of Deadly Physical Force
Much of the research conducted on police use of deadly physical force
(actually police firearms discharges) was conducted prior to the Tennessee v. Garner
decision. One of the first studies to examine the impact of the Tennessee v. Garner
decision in Tennessee revealed that, within the state of Tennessee, this policy
revision resulted in a -40% reduction in police firearm discharges within the first 3
years of this groundbreaking decision (Culliver and Sigler, p. 187). From a national
perspective, it has been estimated that the Tennessee v. Garner decision has
decreased the number of justifiable police shooting related homicides by 60
annually throughout the United States. This amounts to a -16% reduction through
the 1990s, indicating that this important court decision and its resultant policy
revision has had positive results on police practices (Tennenbaum, p. 241). It should
be noted that these results may not be exclusively affected by the Tennessee v.
Garner decision, but may also be attributed to changes in agency tactical ideology.
A number of studies have attempted to evaluate the influence of a more
restrictive “use of deadly force” (i.e., firearm discharge) policy on the number of
police shootings. One of the earliest studies in the era before the Tennessee v.
Garner decision was an analysis of police-involved shootings by New York City
Police Department personnel following the implementation of a “defense of life”
policy revision (i.e., police personnel could only discharge their firearms in defense
of their own life or the life of another due to the immediate threat of deadly physical
force) in the 1970s. Not only did the number of police firearm discharges decrease,
but the number of police officers killed in the line of due in firearm confrontations
also declined, which refuted the common practitioner belief that a more restrictive
policy would endanger law enforcement personnel on patrol (Fyfe, 1979, p. 309). A
more recent study of firearms discharges involving the New York City Police
Department in the 1990s supported the earlier findings (Fyfe, 1996, p. 191).
Nationally these two trends were replicated when more restrictive agency firearm
discharge policies were instituted prior to the Tennessee v. Garner decision. One
study revealed that between 1971 and 1984, the number of police related shooting
deaths declined -50%, while the number of officers killed in shooting confrontations
declined almost -70% across America (Sherman and Cohn, p. 5). These statistics
are supported by official FBI Index Uniformed Index Crime statistics that revealed
that there were 339 justifiable police related homicides annually on average
between 1965 and 1979, and 142 annually on average between 1985 to 1989. This
amounts to a decline of -58% between the pre- and post-Garner eras. One statistic
of note is that the New York City Police Department had accounted for
approximately 29% of all justifiable police homicides in the United States through
1990 (Albrecht, 2000, p. 107).
The deployment of new non-lethal weapons clearly has reduced the need for
firearm usage as the primary option for police personnel dealing with an armed or
resistant suspect. By promoting the use of chemical (mace) or pepper spray and
electronic stun devices, the number of police shootings has dramatically declined,
while confrontations rectified through the use of optional non-lethal weapons has
increased exponentially. As a clear example, the number of justifiable police
shootings in New York City had declined -70% from 1994 through 2000, while the
number of confrontations rectified through the use of pepper spray over the same
time frame had increased over +600% (Albrecht, 1996, p. 4). By arming law
enforcement personnel with viable tactical options, law enforcement personnel
conducting enforcement functions no longer have to rely solely on a firearm to
terminate a threat in an armed or violent confrontation, but can turn to a less lethal
Improved professional training has enhanced the abilities of police personnel
when confronted with an armed adversary. In addition to advocating non-lethal
weapons, many agencies have upgraded their side arms to semi-automatic pistols,
with additional readily available magazines. The computerization of firearms
tactical training has allowed agencies to instruct their personnel under more realistic
situations and scenarios. By promoting the use of available cover and emphasizing
James F. Albrecht
Pakistan Journal of Criminology
the practicality of tactical retreat, one could deduce that the number of police firearm
discharges should decline. In fact, this has occurred in NewYork City. The result of
the improved training has resulted in a -50% decrease in police-involved shootings,
with a concurrent -45% decline in the number of rounds (bullets) fired from 1994
through 2000, and agency records reveal that this dramatic reduction continued
through 2010. These finding are quite astonishing and equally impressive as the
number of bullets available to each police officer on patrol increased from 18 to 46,
and the number loaded in each firearm increased from 6 to 16. In addition, the
complement of the NYPD increased +40% over the same time frame (Albrecht,
2000, p. 107). Many civil libertarians had concluded that the opposite should have
resulted. This improved training has also had a drastic impact on the civilian
complaint rate in New York City. The number of civilian complaints filed against
New York City Police Department from 1994 through 2000 had declined – 20%
since the inception of the 9MM sidearm as the firearm of choice for patrol personnel
and since the promotion of non-lethal weapons as tactical options. More
importantly, the number of complaints of excessive force by police decreased -32%
over the same time frame (Albrecht, 2000, p. 106).
The final issue that will be addressed is the issue of racial discrimination raised
by minority group leaders after justifiable shootings and homicides involving
minority suspects and police personnel. When evaluating these statistics in New
York City from 1990 through 2001, even with the dramatic decline in fatal police
shootings over that time frame (-77%), the percentage of minority suspects
tragically killed in these confrontations has remained stable at approximately 90%.
While this could be interpreted as racism, since the minority population has been
reported at approximately 60% within New York City, these numbers are actually
deceiving. A better correlate would be arrest statistics, which reveal that about 92%
of all apprehended suspects are non-white. This would lead a reasonable individual
to conclude that approximately 90% of the criminal population would likely come
from minority populations. These numbers are supported by victim and witness
descriptions of their perpetrators, which revealed that 90% of offenders were
minority group members; and by documented police-suspect interactions (“Terry”
reasonable suspicion stops) which were determined to involve approximately 85%
non-Caucasians as an annual average since the mid-1990s (Albrecht, 2000, p. 102 –
104). One could therefore conclude that this statistical disparity is not based on
racial discrimination, but rather on the disproportionate number of minority group
members at poverty or worse levels (with lower socio-economic status), which has
been shown to be highly correlated to violence and higher crime rates. Reality, not
racism, is the underlying factor. Even as far back as 1981, it was determined that the
most likely adversary in a police shooting in an urban American setting was “an
armed, black male between the ages of 17 and 30 at night in a public location”
(Geller and Korales, p. 56).
Summary and Discussion
This paper has examined the relationship of policy revision, implementation,
and, ultimately, evaluation as it relates to law enforcement use of deadly physical
force (firearms) policy in the United States, and more specifically in New York City.
It is clear that the Tennessee v. Garner decision by the United States Supreme Court
has had tremendous impact on use of firearm procedures across the nation. This
court decision immediately created a need for both revised state and local legislation
and for alterations to law enforcement agency policy and procedures. The outcome
was equally as significant as these revisions caused dramatic declines in police
involved shootings and justifiable police homicide rates. Just as important was the
decision by many policing agencies, both before and after the Garner decision, to
move to a “defense of life” protocol when faced with a “Shoot – Don’t Shoot”
scenario. Since 1990, the number of police shooting incidents and justifiable police
homicides in New York City and the United States have generally continued to
decline, supported by a trend toward non-lethal weapon options, enhanced selfdefense and tactical training, improved firearms, and

declining violence and serious
crime rates.
Based on the above findings, it can be concluded that a more restrictive use of
deadly physical force policy will not only reduce the number of police shootings, but
also justifiable police homicides, and more importantly, firearm related police line
of duty deaths, as well. These declines have been found not to be related to
jurisdictional population size, law enforcement agency complement, index crime
and violent crime rates (Milton, et al, p. 5). On the other hand, one could be forced to
disagree with this conclusion. If the violent and serious (index) crime rate in New
York City is examined from 1990 into the new millennium, there is a clear
correlation between index and violent crime decline (-80%) and the decrease in
justifiable police homicides (-77%). One could easily support the premise that a
dramatic reduction in violent crime could lead to an equally impressive reduction in
police shooting incidents and the need to deploy deadly physical force against noncompliant or threatening suspects. One should also

not hesitate to conclude that
the breakdown of justifiable police homicides will racially reflect that of the
criminal population in that jurisdiction, and that this would be most apparent in large
metropolitanAmerican cities, which tend to have larger minority populations.
Since 1970, law enforcement agencies in the United States of America have
made strong efforts to revise use of deadly force policies by making them more
restrictive. These efforts have increased over time and have become more common
James F. Albrecht
Pakistan Journal of Criminology
since the ground breaking Tennessee v. Garner decision by the United States
Supreme Court in 1985 which prohibited the shooting of fleeing felons by police
personnel. Thereafter, technological training enhancements, the development of
non-lethal weapons, revised tactical strategies, and effective enforcement initiatives
have lead to dramatic reductions in police involved shooting incidents. One can
conclude that the implementation of more restrictive use of deadly physical force
policies will not increase the danger to law enforcement personnel on American
streets, and will reduce the propensity for police firearms usage, justifiable police
homicides, and line of duty deaths ofAmerica’s police personnel.
Recent Scrutiny of Police Shootings in Pakistan
Given the recent scrutiny placed on Pakistani security forces involving the
alleged shooting of an unarmed criminal suspect that was caught on video tape
(Black et al, 2011), there appears to be the need to evaluate the legislation and
policies of the Pakistani police in order to enhance safety during police-suspect
interactions. A greater criticism further involves the need for swift prosecutorial
and court review of this and similar incidents to determine if criminal conduct
played a role. Prompt judicial action in such cases reportedly is not routine in
Pakistan (Black et al, 2011). Recommending revisions to law enforcement use of
force and other policies is clearly not unique to the United States, but should be
considered by police officials when public criticism leads to questions of legitimacy
and transparency. There is sufficient research available globally for government
officials and law enforcement administrators in Pakistan and other jurisdictions to
make competent recommendations to improve agency policy and procedure.
Albrecht, J. 1996. Avoiding Violence during the Police Arrest Encounter. (Paper
Presentation) at The 4th Sino-American Criminal Justice Symposium at the
Central Police University of Taiwan, August 1996; and in Central Police
University 1996 Annual Report (Published in Chinese), 1996.
Albrecht, J. 2000. “Racism, Human Rights and the Police: A Close Look at
American Policing” in Policing in Central and Eastern Europe: Ethics,
Integrity and Human Rights, Pagon (ed.) College of Police and Security
Studies, Slovenia, pp. 95 – 108.
Bayley, D. 1993. “Back from Wonderland, or Toward Rational Use of Police
Resources” in Thinking About Police Resources, Doob (ed.) University of
Toronto Centre for Criminology.
Black, P., Habib, N. and Basu, M. (June 10, 2011) “Video captures shooting of
unarmed man, sparks unprecedented anger.” Reported on CNN website:
Carter, D. 1986. “A Taxonomy of Prejudice and Discrimination by Police Officers”
in Police Deviance, Barker and Carter (eds.), Cincinnati, Ohio, Pilgrimage
Champion, D. 2003. Administration of Criminal Justice: Structure, Function, and
Process, Upper Saddle River, New Jersey: Prentice Hall.
Coker v. Georgia (422 U.S. 584, 1977).
Culliver, C. and Sigler, R. 1995. “Police Use of Deadly Force in Tennessee
Following Tennessee v. Garner” in Journal of Contemporary Criminal Justice
11 (3): 187 – 195.
Curtain, R. 2000. “Towards Greater Transparency in Policy Making,” Canberra
Bulletin of Public Administration, No. 96, 1 – 4 (Article 2.2).
Fyfe, J. 1979. “Administrative Interventions on Police Shooting Discretion: An
Empirical Examination” in Journal of Criminal Justice, 7 (4): 309 – 323.
Fyfe, J. 1981. “Race and Extreme Police-Citizen Violence,” in Race, Crime and
Criminal Justice, McNeeley and Pope (eds.), Beverly Hills, Sage Publications.
Geller, W. and Karales, K. 1981. Shootings of and by Chicago Police, Chicago Law
Enforcement Study Group.
Milton, C.; Halleck, J.; Lardner, J. and Albrecht, G. 1977. Police Use of Deadly
Force, Washington, DC: Police Foundation.
Monell v. Department of Social Services (436 U.S. 658, 1978).
Owen v. City of Independence (445 U.S. 622, 1980).
Peak, K. 2004. Justice Administration: Police, Courts and Corrections
Management, Upper Saddle River, New Jersey: Prentice Hall.
Sheehan, R. and Cordner, G. 1989. Introduction to Police Administration,
Cincinnati, Ohio:Anderson Publishers.
Sherman, L. and Cohn, E. 1986. Citizens Killed by Big City Police, 1970 to 1984,
Washington DC: Crime Control Institute.
Tennenbaum, A. 1994. “The Influence of the Garner Decision on Police Use of
Deadly Force” in Journal of Criminal Law and Criminology, 85 (1): 241 – 260.
Tennessee v. Garner (471 U.S. 1, 1985).
James F. Albrecht is a graduate professor of homeland security at Pace University in New York and a
retired police chief in the US State Department police program assigned to the EULEX Police in Kosovo
after completing a 20 year career in the New York City Police Department.
James F. Albrecht
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