There has been a lot of emphasis on building trust and legitimacy in policing over the years. With some arguing that the public recognizes legitimacy only when they believe the police are acting in a “procedurally just” way. And others explaining that people are more likely to obey the police when they believe that police have the legitimate authority to tell them what to do.
So, when is that? When do the police have the legitimate authority to tell people what to do?
A recently released video of a 2017 traffic-stop out of Denver, Colorado, highlights the importance of answering this question. And, if you’ve seen the video, you know it is hard to watch.
You’re Not the Boss of Me
When Denver police attempted to pull over a car for a traffic violation, the driver failed to stop and instead drove to her house, where her boyfriend was waiting in the driveway. It quickly became clear that neither the man nor the woman believed the police could tell them what to do.
They would stand where they wanted; get in and out of the car when they wanted; yell, scream, and curse at the officers when they wanted. They would attempt to ridicule and intimidate the officers; even going so far as to give the officers direct and repeated orders to “back up!” The amount of confidence this couple displayed was extraordinary.
Predictably, the couple was arrested. They resisted. They were forced into handcuffs. They hired a lawyer.
When the City of Denver agreed to pay $500,000 to avoid the lawsuit, the president of the Denver police union expressed concern that individuals stopped for routine traffic offenses will believe that they don’t have to comply with police orders. That’s a legitimate concern. But what about the police?
What messages have the police been getting about their own authority? Do they know what orders they can give and lawfully enforce? Do they know how to defend them?
Fortunately, the courts have been very clear about the legitimacy of police authority, and as it turns out, society has every right to expect compliance with the lawful orders of its police.
No Time to Talk
De-escalation, persuasion, and efforts to achieve a sense of procedural justice should be commended. But the often-unpredictable chaos that police are called to manage does not always lend itself to securing on-scene consensus.
And when racism, malevolence, and injustice are believed to be motivating the police, even the most routine enforcement actions can generate intense emotional responses, violence, and outrage; leaving the police little time to discern the cause of the contempt or dissuade its holder.
When time and circumstances prevent the police from safely engaging in extended conversations, they should be confident in their authority to establish and maintain control. The legitimacy of that authority is never contingent on securing agreement from suspects or witnesses. Police are not required to sacrifice safety, control, or security in order to answer questions or defend their decisions.
The Luxury of Time
Officers frequently decide to slow things down and “buy time” for active listening and crisis counseling. They exercise tactical patience as they wait for the added deterrence of additional officers.
But these efforts to generate voluntary compliance, avoid force, and save suspects from the consequences of their bad decisions depend on an officer’s ability to first establish containment and control. They are response options, not prerequisites.
Consider how clearly this point has been made by our courts:
“During transactions that may give rise to sudden violence or frantic efforts to conceal or destroy evidence, the risk of harm to both the police and [citizens] is minimized if the officers routinely exercise unquestioned command of the situation.”U.S. Supreme Court1
“A police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety.”U.S. Supreme Court2
“It goes without saying that the police may take all reasonable steps to maintain safety and control, secure crime scenes and accident sites, and protect the integrity and confidentiality of investigations.”U.S. Federal Court of Appeals3
Unquestioned Command and All Reasonable Steps
“Unquestioned command” and “all reasonable steps” define the authority that society expects its police to exercise. Courts demand that orders be reasonable and support a legitimate law enforcement purpose. That “reasonableness” is assessed through the lens of reasonable officers. Officers who are ideally screened, hired, trained, and then lawfully empowered to recognize and immediately act when the risk of allowing an individual’s behavior to continue becomes too great. Officers who also appreciate that some of the most challenging people to manage, are innocent people lawfully stopped.
This balance between government interests and individual rights is imperfect and relies on the experience, discretion, and judgment of on-scene officers. Officers who are trusted to responsibly exercise the immense authority recognized by the Supreme Court, and to comply with any state and local laws, regulations, or agency policies that properly limits this authority.
Reason to Believe
Reasonable people can debate the ranking of government priorities. They can disagree on timing and the responsible acceptance of risk. And they can certainly argue the appropriateness of weapons and tactics.
But, if it is true that people are more likely to obey the police when they believe that police have the legitimate authority to tell them what to do, then it is up to our schools, media, politicians, families, and police leaders to end the debate. The legitimacy of the police is not in question; the courts have already given us reason to believe.
- Michigan v. Summers, 452 U. S. 692 (1981). [↩]
- Id. [↩]
- American Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) (citing Colten v. Kentucky, 407 U.S. 104 (1972); a Supreme Court case that recognizes officers are entitled to enforce laws free from interference or interruption from bystanders). [↩]
Legitimacy is an important topic to consider in police operations, however, I don’t believe the challenge is in the legality of police control and authority, rather the ability of the police to convince the citizenry of that authority. As mentioned in this article, the nation’s highest courts have consistently held that the police are in fact empowered with the authority to control and direct the actions of others. In routine patrol and enforcement activities as well as investigations, the challenge is securing the willing cooperation of the public. Citing court cases to citizens who perceive a history of disrespect and discrimination is useless and police officers need to be armed with the verbal tools to demonstrate the mutual benefit to their cooperation, before, during, and after an encounter. While it is true that this stigma needs to be addressed at every level and in every possible venue, it is up to individual officers to use whatever tools are at their disposal to have an effect on their own encounters.
Excellent as usual. The articles tone includes an emphasis on officers knowing ‘their rights’.
Von, you do such a good job crafting your message. Your efforts go to good use.
If the City of Denver paid $500k to settle claims that were brought by these two people shown on the video, then the City needs new defense counsel handling their Sec. 1983 claims. Admittedly, I don’t know the full story of what all was involved with the particulars of this stop, or the back story on the woman stopped and the male. But, having handled similar cases to this, it is almost inconceivable to me any money, let alone $500k, was paid to settle this claim in order to avoid a lawsuit.
That decision will just encourage more of this type of behavior. We went through this for years in Illinois until we became self-insured and began resisting this type of settlement. It all stopped after that or was reduced significantly. Some attorneys are known as ambulance chasers. They contact people who had been arrested,(via newspaper incidents) suggesting “too tight handcuffs” and other complaints.
“This balance between government interests and individual rights is imperfect and relies on the experience, discretion, and judgment of on-scene officers.”
Are you so sure about that?
“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government–even the Third Branch of Government–the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people–which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
United States Supreme Court
DISTRICT OF COLUMBIA ET AL. v. HELLER (2008)
Argued: March 18, 2008
Decided: June 26, 2008
It would be helpful for Mr. Kliem to include a description of how to recognize an illegitimate order by police and how best to defend against such violations.
I am of the opinion that there is a problem of epidemic proportions across the nation. Police departments have promoted administrative types to leadership positions to which they have no business being appointed to.
If people are in leadership positions and have to ask themselves if they think this comment was about them, then they are part of the problem. This is strictly my opinion based on observations and experiences , believe it or don’t.