Choosing to Enforce the Law

 

Introduction

illegal immigration vs. other laws

Key Points

Factors where officer/agency has a choice in enforcement

Factors where officer/agency does not have a choice whether to enforce


Introduction

Can a law enforcement officer choose to enforce the law sometimes and not others?

Can a law enforcement officer choose to enforce some laws and not others?

Can the Director of a law enforcement agency give an official order to not enforce certain laws?

These are some of the questions we will examine here.


illegal immigration vs. other laws

The issue of illegal immigration is what initially prompted me to investigate this topic.

Yet, I have come to realize that statements which apply to enforcement of illegal immigration might not apply universally to other areas.

Regarding the enforcement of illegal immigration: Presidents have actually instructed federal agents to not enforce the laws. City councils have created havens for illegal immigrants. Do these elected officials have the authority to make such directives?

The short answer is: no.

But what about other jurisdictions and other laws? What about a Chief of Police telling his staff not to bother with prostitution cases, focusing instead on more serious crimes. Is this different?

The short answer is: yes

 

There are numerous levels of laws, and numerous jurisdictions. This can range from wearing hats in class to the killer holding innocents hostage.

Clearly, there will be variances on how much choice an official has in enforcing the law, depending on several factors. We will examine some of the factors in this article.


Key Points

Although there will indeed be variances for each situation, there are some common elements.

For most laws, in most situations, we can state the following key points:

 

A. The law enforcement officer, agency, or director CAN choose which crimes to enforce based on:

1. Available personnel

2. Available facilities

3. Available time

4. Seriousness of the crime

5. Frequency of the crime

6. Physical safety of the public

 

B. The law enforcement officer, agency, or director CAN choose which persons to pursue regarding a type of crime, based on:

1. Available personnel

2. Available facilities

3. Available time

4. Adequacy of evidence

5. Likelihood of effective results

6. Extenuating circumstances

7. Broke letter of the law but not intent of the law

 

C. However, the law enforcement officer, agency, or director CANNOT choose which crimes to enforce based on:

1. Personally disagreeing with the law

2. Difficulty or hardship in enforcing the law

3. Simply don't want to enforce the law


Factors where the law enforcement officer/agency has a choice in enforcement

 

1. Available personnel

If a law enforcement office has limited personnel, then the Director can choose to instruct his staff to focus on some crimes while ignoring others.

Thus, in this case it is acceptable for the law enforcement agency not to enforce a particular law if there is not enough staff to handle all the crimes, and if the Director makes a reasonable determination as to which crimes should be enforced first.

 

2. Available facilities

If the area has limited facilities (jails, courts, and prisons which are at or near maximum capacity), then the Director can choose to instruct his staff to focus on some crimes while ignoring others.

Thus, in this case it is acceptable for the law enforcement agency not to enforce a particular law if there are not enough facilities to detain and process all the criminals, and if the Director makes a reasonable determination as to which crimes should be enforced first.

 

3. Available time

If a law enforcement office has limited time, then the Director can choose to instruct his staff to focus on some crimes while ignoring others.

This applies mostly to officers which enforce laws mostly through investigation and collecting evidence (rather than those officers who actually witness a crime taking place).

Thus, in this case it is acceptable for the law enforcement agency not to enforce a particular law if there is not enough time to investigate all the potential crimes/law-breakers which are brought to the attention of the office.

 

4. Seriousness of the crime

If the law enforcement office has limited resources, then the Director can be allowed to set criteria for which crimes to enforce first.

One of the criteria is the seriousness of the crime.

 

• Felonies vs. Misdemeanors vs. Citations/Fines

• Felonies should always be enforced first

• Misdemeanors should be enforced second

• Acts which result in citations or fines should be enforced last,

and can be ignored altogether if not enough resources.

 

• Violent Crimes vs. Non-Violent Crimes

• Violent crimes should always be enforced before non-violent crimes

 

5. Frequency of the crime

If the law enforcement office has limited resources, then the Director can be allowed to set criteria for which crimes to enforce first.

One of the criteria is the frequency of each type of crime.

 

What is the most common crime in the area?

Drugs? Vandalism? Mugging? Murders?

Because of limited resources, the Director of a law enforcement agency may choose to focus on the most common crimes in the area.

 

6. Physical safety of the public

If the law enforcement office has limited resources, then the Director can be allowed to set criteria for which crimes to enforce first.

One of the criteria is the physical safety of the public.

 

Note that when discussing the limited resources of a law enforcement agency and the safety of the public, we must consider not only crimes, but responding to accidents and natural disasters.

 

• Law enforcement should always respond to fires, floods, and traffic accidents.

• Violent crimes should always be enforced before non-violent crimes

 

 

7. Adequacy of evidence

In some situations, there is not enough evidence to proceed further.

This could be because no crime has been committed, or it could be because the evidence is difficult to obtain.

For whatever reason, if the evidence is not there, or seems difficult to obtain, and the office has limited resources to do more investigation, then the Director might choose to not enforce the law on a particular person.

 

8. Likelihood of effective results

In some regions, there might be some courts (judges or juries) who tend to not enforce certain crimes.

If this is the history, then the law enforcement officers might feel that their time has been wasted.

In these situations, the Director of the law enforcement agency might direct his staff to ignore these crimes, instead focusing on crimes which get more effective results.

 

9. Extenuating circumstances

If the person who broke the law did so because of extenuating circumstances, then the individual law enforcement officer can choose not to enforce the law. (In legal language, this is known as the "affirmative defense."

 

• Example #1:

Breaking the law: Driver speeding down highway

Extenuating Circumstance: Needs to get passenger to hospital

 

• Example #2:

Breaking the law: Driver ran through a red light.

Extenuating Circumstance: Car is malfunctioning and driver is unable to stop.

 

 

10. Broke letter of the law but not intent of the law

If a person did not really break the law, then he should not be detained or punished for breaking the law.

It very often happens that an innocent person is really following the law, but broke the law on some technicality. Then a law enforcement officer comes along and gleefully punishes the innocent person.

This is not the way it is supposed to be.

 

In these discussions, note two areas of intent:

a) intent of the person to break the law

b) the person broke the law, as written, but not the intent of the law

 

There are three main situations:

1. If the person did not have intent to break the law, then the law should not be enforced.

 

2. If the person did not breach the intent of the law, then the law should not be enforced.

In this case, the person broke the law on a technicality, but not in actuality, and therefore he did not break the law.

 

3. If the person intended to act, and the law was clear, yet the person did not know he was breaking the law, then the officer might or might not enforce the law.

In this case a warning or notice may be appropriate. However, if the law is enforced, the punishment should be less than usual.

 

• Example #1

A person hit a police officer. Usually hitting a police officer carries a significant punishment.

However, suppose the police officer was not in uniform, and not on duty. At that point, the person being hit was not really a police officer but just another person, and the assault should not carry the same weight as assaulting a police officer.

 

• Example #2

(This is a real example)

A male was sleeping in his bed in his home. Police were called in (the reasons why are not important).

The police officers burst in the door, and held a bright flashlight to his face. The guy naturally was disturbed, and knocked the flashlight out of the police officer's hands.

The police officers then arrested him for assaulting a police officer.

This was taken to court.

Technically, you could say this was assaulting a police officer. Yet from they guy's view, he was woken from sleep, in his own home, with a bright light shinning in his face. He didn't even know it was a police officer.

The jury found him innocent.

 

• Example #3

(This is another real example, from my personal experience)

The driver pulled up to the stop sign and stopped. Then he turned right.

According to the police who pulled them over, he said it was "failure to come to a complete stop." The fine was $200.

The location was a quiet side road. There was no other vehicles in any direction as far as could be seen. (This is except for the police car who was hiding in the bushes.) Thus, even if there was failure to stop, there would have been no cars to accidentally run into.

The video (which we requested) clearly showed that we were under 5 mph. And, we were turning right, not going straight.

In my opinion, we should not have gotten a $200 fine for "failure to stop" when we were traveling a maximum of 5mph on a quiet road. The intent of the law of "failure to stop" really applies to those people who don't stop at all, particularly in busy intersections, and/or traveling excessively fast through the stop sign. We did none of those things.

Therefore, in this case, the law should not have been enforced.

 


Factors where the law enforcement officer/agency does not have a choice whether to enforce

 

 

1. Personally disagreeing with the law

In general, a law enforcement officer (or the Director of a law enforcement agency) cannot ignore a law because he personally disagrees with it.

In general, law enforcement officers cannot pick and choose which laws they like.

Consider the year of Prohibition. As Elliot Ness has said: it doesn't matter whether we agree with prohibition or not; it doesn't matter whether we believe alcohol is acceptable or not; what matters is that we enforce the law.

 

However, there are other factors to consider:

A. Law Enforcement as primary job or secondary job

• If law enforcement is your primary job, then you should enforce all laws whether or not you agree with the law.

• If law enforcement is a secondary part of your job, then you might be ethically right in not enforcing some laws that you do not agree with. (For example, a teacher might choose not to enforce the school rule on wearing hats in class).

 

B. Laws passed by Legislators vs. Regulations created by Agency

The amount of public input has a great importance in this issue. If the public had input into the law, then the law must be enforced, even if some members of the public (including some law enforcement officers) personally disagree with the law.

• If a law was passed by the legislature, then no law enforcement officer can ignore the law because he disagrees with it. The people, through the legislature, have spoken on that area of law.

• If a regulation was created by an agency, and there was sufficient public input, then no law enforcement officer can ignore the law because he disagrees with it.

• However, if a regulation or procedure was created by an agency, and yet the public was not allowed to provide sufficient input, then the validity of the rule is uncertain. The people have not clearly spoken. Therefore, the law enforcement officer, being also a citizen of the community, has an ethical right to ignore the rule if he personally disagrees with it.

 

 

2. Difficulty or hardship in enforcing the law

A law might be difficult to enforce, but that doesn't mean the officers should not bother with enforcement.

Some laws are difficult to enforce because of the territory covered. Some laws are difficult to enforce because the evidence is difficult to obtain. Some laws are difficult to enforce because the criminals are creative. Yet none of this matters to the issue of should the law be enforced.

Again, consider Prohibition. The law was difficult to enforce. The gangsters were very violent. Some of the police were corrupt. That didn't matter to Elliot Ness and the Untouchables. They enforced the law, regardless of the difficulty.

(You can find a good biography of Elliot Ness, describing many of his good deeds, accomplished despite all of the difficulties, at the Crime Library website: Elliot Ness True Biography).

 

3. Simply don't want to enforce the law

This is an issue of laziness. This is not an actual reason.

Therefore, again, the law must be enforced.

 


Summary

 

A. The law enforcement officer, agency, or director CAN choose which crimes to enforce based on:

1. Available personnel

2. Available facilities

3. Available time

4. Seriousness of the crime

5. Frequency of the crime

6. Physical safety of the public

 

B. The law enforcement officer, agency, or director CAN choose which persons to pursue regarding a type of crime, based on:

1. Available personnel

2. Available facilities

3. Available time

4. Adequacy of evidence

5. Likelihood of effective results

6. Extenuating circumstances

7. Broke letter of the law but not intent of the law

 

C. However, the law enforcement officer, agency, or director CANNOT choose which crimes to enforce based on:

1. Personally disagreeing with the law

2. Difficulty or hardship in enforcing the law

3. Simply don't want to enforce the law

 

M.F.

7/7/07