Some words cause me concern when I hear or read them. I start worrying when my 16-year-old says, “Before you look at the car, let me explain what happened.” The words “Good morning, Mr. Gallegos. This is Agent so-and-so from the Internal Revenue Service” cause me great concern. Among the most concerning words I hear connected with law enforcement are, “The officer/deputy had a history of…” and the sentence ends with some bad behavior, like excessive force, illegal searches or arrests, violence or anger issues, sexual misconduct, or dishonesty.
I’m not referring to mistakes made by officers where they learned a lesson and didn’t repeat the behavior. The stories that worry and puzzle me are when an officer’s misconduct has been substantiated several times for similar acts, and yet they are still officers.
When I learn about these stories, these questions come to mind:
- How did they stay on the job so long?
- Why didn’t other officers or the agency administration intercede to prevent the pattern of misconduct?
- How many other wrongs did the officer commit that went unreported by fellow officers or other victims?
Integrity and accountability are characteristics of any occupation that calls itself a profession. And law enforcement should be the profession that others look to for examples of those traits. A mentor once told me that if we in law enforcement didn’t police our profession, someone from outside would intervene and police us. So why are some officers and administrators not policing law enforcement as they should? And how does the duty to intercede help maintain or restore public trust in the integrity of our chosen profession?
What Is “Duty to Intercede?”
Recent police reform discussions have focused attention on an officer’s duty to intercede in instances of excessive force, but the concept is not a new one.
While many use the phrase to refer only to an active intervention in another officer’s use of excessive force, a broader interpretation of the duty to intercede is much more useful when evaluating behavior and charting a path forward; it is an obligation for every officer to prevent or stop any misconduct by another officer and to report officer misconduct when they become aware of it.
Agencies should have policy content that requires a periodic review of each officer’s performance to look for indicators of conduct that may require intervention to correct.
In some jurisdictions, statutes and case law mandate the duty to intercede and report wrongdoing. But the obligation to intervene in and report misconduct is the ethical foundation of every law enforcement officer’s requirement to police themselves and the profession. Consider the Code of Ethics adopted by the International Association of Chiefs of Police in 1957:
I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of police service. I will never engage in acts of corruption or bribery, nor will I condone such acts by other police officers. I will cooperate with all legally authorized agencies and their representatives in the pursuit of justice.
Why Do Some Officers Not Intercede in Misconduct?
So, if officers have an ethical, and maybe even legal, duty to intercede and report misconduct, why is it that some aren’t? And why are there still officers in the profession who “have a history of …”?
An officer’s perception of agency culture, friendships and even fear of retaliation, can cause them to have second thoughts about interceding in or reporting misconduct. This can be true for administrators too.
Although an officer may know interceding and reporting is the right or required thing to do, some have concerns about being labeled a “snitch” if they report misconduct. Or they may rationalize that it is not their place to say another officer is wrong in their conduct.
Managers and administrators sometimes don’t address misconduct because they don’t want to be the bad guys. Or maybe they feel like they won’t receive support from higher up if they do.
Well-Written Policies Reduce Misconduct by Boosting Intercession and Reporting
Agency leadership can reduce some of these challenges by developing and communicating policies that create a culture of self-policing and accountability, and by appropriately addressing bad behavior through training, discipline or termination.
Since laws differ across jurisdictions, agency policy managers must work with their legal counsel to develop policies that comply with federal, state and local laws and case law.
Following are some areas where policy manual guidance on the duty to intercede and report misconduct may be appropriate:
Use of Force
Agency policy should include requirements for any officer present and observing another law enforcement officer using unreasonable force to intercede to prevent the use of such force when in a position to do so. Policy should also require any officer who observes another officer use potentially unreasonable force to promptly report their observations through appropriate channels.
Since officers engage in interactions that can rapidly become chaotic, and perspective is crucial, agencies may want to implement policy language advising observing officers to consider the totality of the circumstances and the possibility that officers using what appears to be unreasonable force may have additional information regarding the threat posed by the subject.
Finally, policies should mandate that any use of force by a member be documented promptly, thoroughly and accurately in an appropriate report. Officers should be required to articulate the perceived factors and why they believed the use of force was reasonable under the circumstances.
Agencies should have policy content that requires a periodic review of each officer’s performance to look for indicators of conduct that may require intervention to correct. Performance reviews can serve as an early warning system of officer misconduct and possible training needs.
Potential early indicators of misconduct may include but are not limited to the frequency and number of:
- Use of force incidents
- Involvement in and conduct during vehicle pursuits
- Personnel complaints
- Claims and civil suits related to the officer’s actions or alleged actions
- K-9 bite incidents
- Personnel investigations
- Case rejections by prosecutors
- Intentional or unintentional firearm discharges (regardless of injury)
- Vehicle collisions
- Missed court appearances
- Documented performance counseling
Policies should require supervisors to monitor officer performance and take appropriate actions, such as counseling, additional training or discipline, when discovering potential misconduct trends.
Conduct and Reporting
Officers must conduct themselves appropriately and not exceed lawful peace officer powers by unreasonable, unlawful, or excessive conduct. To this end, organizational policy manuals should include language that specifically requires officers to conduct themselves, whether on- or off-duty, according to the law and agency policies, and consistent with the agency’s values and mission. Agency policy should also make misconduct grounds for discipline or termination if warranted.
Why are some officers and administrators not policing law enforcement as they should? And how does the duty to intercede help maintain or restore public trust in the integrity of our chosen profession?
Policy should also communicate an officer’s duty to promptly report activities on their part, or the part of any other agency member, that resulted in contact with any other law enforcement agency or that may result in criminal prosecution or discipline under organizational policy.
Agencies should also require officers to promptly report any arrests, convictions and court orders, regardless of the status of the matter, that could impact their ability to perform law enforcement duties or prevent them from possessing a firearm.
The organization’s policy should communicate that all complaints regarding the conduct of its members will be taken seriously and addressed per policy and applicable laws and rules. Policy should also mandate that a member immediately notify a supervisor if they become aware of alleged misconduct by any other member of the organization.
Supervisors must also be required to initiate and document complaints based upon observed or alleged misconduct. Any retaliation against any member who reports misconduct must be prohibited.
All complaints should be recorded in a tracking log that is regularly reviewed to determine patterns of misconduct by specific members or other issues that need to be addressed.
Policies should require that records related to officer misconduct be maintained according to established records retention laws and rules. Policy should also allow for the retention of any prior sustained disciplinary records beyond required periods if they relate to patterns of misconduct.
The duty to intercede and report misconduct is more significant than one officer stepping in to prevent another officer from using too much force. It is a bedrock requirement for agencies committed to professionalism, service and accountability through the policing of their own ranks.
Such agencies weave the duty to intercede and report misconduct throughout their policies and training to create a top-down culture that can change possible histories of misconduct into legacies of agency integrity and high public trust in the policing profession.