Totality of the Circumstances: What’s Up With Officer Discretion?

Most law enforcement actions and encounters occur in private, away from the public eye. What goes on behind the scenes? Police contacts spark curiosity. Law enforcement behavior is monitored and evaluated by almost every citizen. It is often displayed through the media and sometimes lodged in perpetuity on the internet. This auditing has caused many individuals to question, research, and assess police methodologies.

Law enforcement officers have to make many decisions in a career lifetime. In fact, daily they are relying upon their education and experience to properly apply to each situation. Each call concludes with some type of resolution.

One of the most common inquiries I received as a police officer was questioning a decision from another officer. Why did the police give Sally a citation and Allen got a pass for the exact same traffic infraction or violation? Those type of “what ifs” or evaluations always made me cringe and most often I refused to answer them or comment on another officer’s determination. 

Officer discretion is a vague locution which baffles and frustrates many citizens when it comes to the application of laws and keeping order. Basically defined, it is the power and authority given to law enforcement which allows them to decide how and when to enforce actions and laws. Confused yet? It means police can decide when to pursue enforcement.

But don’t the laws of the land govern that peace officers shall enforce all laws within the statutory language? The statutes are clearly defined as to violation and penalties. The Uniform Traffic Code is equally clear. Rules are rules. Is law and order black and white? On paper, yes. So why do officers have discretion?

Literally, there is no statute that says officers have discretion. It is a known given authority. Police discretion is not absolute. It is also entirely subjective, circumstantial, and based upon time and events-varied from officer to officer. Sounds dangerous, doesn’t it? It is a bone of contention in racial profiling and discrimination complaints.

However, used properly, discretion is a necessary authority bestowed upon law enforcement which allows for the human factor. It permits for breaks and warnings. Additionally, it eliminates the criminal justice system from being flooded with unnecessary arrests.

Humanizing law and order is essentially what the public demands, but occasionally complain about. It seems to contradict what we want out of law enforcement. Why the dissension?

In short order, it is probably because of fairness. Discretion isn’t always fair. At the same time, police are prohibited in using it to discriminate. Although an officer must articulate using discretion in situations, it is rarely questioned until a problem arises or a complaint is made.

Who keeps the checks and balances? The public. The individual officer. The administration. The government. And now the cameras. All officers are aware of the consequences of their actions when they are accused and/or charged with misuse of power. To misuse police power is a disgrace and will lead one down the road to quickly squashing a promising career and/or possibly facing criminal charges.

Mitigating factors or additional investigation might be reasons to use officer discretion in conditions whether an arrest could be made. Furthermore, special circumstances such as medical emergencies or response demands might provide a different outcome than ticketing or taking a person into custody.

Another element of discretion is an officer’s judgement in utilizing alternative solutions. Perhaps an officer may choose to counsel a subject or refer them for services rather than throw the book at them. An example would be an officer who finds a juvenile drinking but instead of charging that person with misdemeanors; the officer instructs the child to dispose of all alcohol beverages and call his or her parents to come to the location to speak with the officer and retrieve them.

Law enforcement often base their decisions upon commonly phrased considerations: the totality of the circumstances. Totality of circumstances is often referred to in the criminal justice system when making a decision on a call, building a case, or in court contexts and rulings.  Police must consider all the facts, frames of reference, and actions under the color of the law before arriving at a decision.

By using their emotional intelligence, knowledge of laws, policies, and procedures combined with education and experience, officers become effective problem solvers. Add time and circumstance to all these components, and an officer’s discretion becomes very important. Discretion is very powerful. It must be applied appropriately and used wisely in certain situations. I think most citizens would agree with that. Do you?