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Law enforcement officials often find themselves in dilemmas with conflicting ethical decisions, even within their official code of ethics. The role of the police is often understood to be two-fold: to protect and to serve. Police protect communities from harm through enforcement of laws, and they serve by putting the needs of the community before their own desires. Law enforcement can be understood as making sure that everyone follows the rules (which lends to a deontological understanding) while at the same time working toward a common good (which lends to a consequentialist understanding).
To help officers with such dilemmas, many law enforcement agencies explicitly require their employees to use the International Association of Chiefs of Police “Law Enforcement Code of Ethics.” This code was first adopted in 1957 and has been regularly updated since then. It states in part:
However, the code will not always help an officer make a decision where either of two options can be interpreted as obligatory to the code, or where two options are in violation of the code.
IN CONTEXT
On many highways the speed limit is 50 miles per hour. A driver is speeding, and breaking the law, if they exceed the upper limit of this speed. A rule-based understanding of enforcing the law would require patrol officers to ticket anyone who was traveling over that rate. However, not all speedometers are calibrated equally well. Thus, someone might believe that they were driving just under the speed limit, when in actuality they were driving over the speed limit.
Moreover, the speed of traffic often slightly exceeds the posted speed limit. Driving under, or even at, the speed limit can interrupt the smooth flow of traffic. The consequences of pulling over every vehicle who was slightly over the speed limit could result in a dramatic traffic backup as driver after driver is ticketed for speeding. To resolve this, most areas have a margin of era of 5-10 miles per hour over the speed limit. However, even as people learn and adjust to the “real” speed limit, there will still be people slightly over this limit and the same dilemma of whether or not to pull them over. In short, the ethical obligation to enforce the law is contradicted by the question of when this enforcement protects or serves the public.
In their attempt to enforce laws, police sometimes do violate the laws that they are sworn to uphold.
EXAMPLE
An officer pursuing a criminal who is exceeding the limit has to decide whether it is more important to apprehend the suspect or engage in a chase that is high-risk to pedestrians and innocent bystanders.On the one hand, when the police are bound to follow the law, they are at the mercy of those who are willing to break it. On the other hand, numerous situations in attempting to enforce the law could further endanger the public safety. Many police departments may have regulations when an officer should or shouldn’t speed to apprehend a criminal, but the nature of the situation requires a split decision where all possible outcomes are not evident.
In general, we can see the actions of law enforcement as following a consequentialist understanding of ethics, with some rule-based prohibitions that provide guidelines on what actions are acceptable and which ones are not. The examples above are largely decided not by a broad ethical rule, but by the outcomes of various legal decisions. These reflect the attempts by various courts to adhere the constitution of the United States, and not a specific ethical theory.
Another situation that presents an ethical (and legal) dilemma is the idea of telling the truth during an investigation. In both the United States and in Canada, it is legally acceptable for law enforcement to engage in deception while investigating a crime. In the United States, this was affirmed by the Supreme Court in a 1969 case named Frazier v. Cupp. This case, like many TV dramas, had two suspects in custody and interrogated separately. The police lied to one suspect and told him the other had already confessed, thus leading to his own confession. Such deception was condoned by the highest court.
In the 1981 case Regina v. Rothman the Canadian Supreme Court ruled affirmed a similar right by law enforcement to use deceit when investigating a crime, with the exception of deceit that would “shock the community.” By this they mean what the court termed “dirty tricks” such as an officer pretending to be clergy or a public defender to obtain a confession.
In effect, both countries thus have similar rules regarding police deception. Police can engage in undercover operations where they pretend to be someone they are not (like a drug dealer, or a sex worker) in order to provide the opportunity for someone to solicit breaking the law (e.g., purchasing drugs or a sex act), but there are limits on what is acceptable.
Similarly, it is acceptable (and common) in the midst of an interrogation for law enforcement to lie to a suspect about what evidence they have. It is acceptable to claim that the police have fingerprints, a statement from a co-conspirator, or that the victim has died from wounds suffered in a crime.
Despite this legally approved ability to deceive, it is not permissible for law enforcement to actually fabricate evidence. In other words, the police can claim to have photo evidence of a suspect at the scene of a crime, but they cannot create a digital photo to that effect and bring it into an interrogation. It also is the case that while deception is allowed in the midst of an investigation, it is not permitted while testifying in court. This sets up an interesting ethical situation where in some instances it is permissible to lie but in other situations it is not.
We saw earlier that many decisions in law enforcement are consequentialist and focus not on the action itself, but on the various outcomes, the potential good of an action versus the possible harm. At the same time, there is an expectation that the laws apply to everyone equally and that citizens ought to act in respect for the law. This displays the extent to which deontological understandings of rule following underlie the expectations of law enforcement.
There is an ancient Roman question, “Quis custodiet ipsos custodes?” that can be translated as “who watches the watchmen?” This phrase asks us to think about how a society ensures that those who are in charge of enforcing the law are themselves following it. In many cases we have established structural safeguards to “watch the watchmen.” Just as the Magna Carta provided protections for British citizens from capricious actions by royalty the United States Constitution establishes limits to governmental power, including the power to arrest, hold, bring to court, and punish individuals.
Through transparency of action, a society can see if due process is occurring for anyone accused of a crime, if everyone is being held to equal standards of law, and if the process for arresting and charging someone with a crime is done fairly and with respect to the rights guaranteed in the constitution. Standards such as Miranda Rights (named for the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona) ensure that the rights protected by the 4th, 5th, and 14th Amendments to the Constitution are protected. When those standards are violated the evidence that follows from the investigations cannot be used in court.
All of this points to a deontological expectation of rule following and respect for persons in the criminal justice system. As we have also seen, while in the process of investigating a crime it is common for the police to utilize a consequentialist approach to ethics. Can this deception lead to a confession? Is chasing this suspect going to lead to more or less danger for others on the road? The language that we use to talk about first responders often relies upon descriptors that are in keeping with virtue ethics. We talk about a wise detective, a brave patrolman, and the integrity of the system.
Our mixed understanding of the ethical basis of evaluations used in law enforcement reinforces the complexity of applied ethics. There is much in common between how these three approaches (as well as those also discussed in the course) would understand what it means to do good in enforcing the law. It also is the case that by looking at the actions through the multiple lenses of these theories we can come to understand how complicated it is to be an ethically good professional.
