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A standardized police code of conduct faces huge hurdles 

EDITOR'S NOTE: This essay is one of a pair that debates the concept of standardizing a uniform code of conduct for police and was originally published in the December issue of CITY under the "Two Views" section.

This year heralded a near global call to re-imagine policing and the relationship between law enforcement and the communities they serve. A culmination of activist efforts across the country have demanded changes to police oversight, contending that the police cannot police themselves.

To reform something, though, you first have to identify what is broken. What is flawed in policing can be attributed to indifferent police management and ineffective policy.
click to enlarge Rochester Police Locust Club President Michael Mazzeo. - FILE PHOTO
  • Rochester Police Locust Club President Michael Mazzeo.
One school of thought suggests that national standards for hiring and training should be developed. This has been a goal of the police labor movement, and it has only been marginally successful in unionized states thanks to collective bargaining rights. Police chiefs and political leaders often speak of setting standards until it comes to paying the cost of implementing them, including hiring, recruiting, training, and continuing education. For far too long, police executives have dodged needed changes by unfairly disciplining or terminating an officer for an incident that raised any level of public criticism. By dismissing the problem as an individual failure, they completely avoided the need to examine what role policy, training, or a lack of resources for the officers working the streets played in the incident in question.

A national uniformed police code of conduct is an idea that sounds good on paper, but comes with many hurdles. Perhaps the largest among them is setting a standard that defines an appropriate use of force. The 1989 U.S. Supreme Court decision in Graham v. Connor established that determining whether reasonable force was used “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” That standard has stood the test of time. How would a code of conduct for use of force be different? Chief Justice Rehnquist wrote in that decision, “The test of reasonableness is not capable of precise definition or mechanical application.”

In 2015, the Police Executive Research Forum (PERF), a Washington, D.C.-based think tank, created “30 Guiding Principles” for police use of force. The guidelines proposed that force should be based on “proportionality.” In other words, the use of force should be proportional to the threat and totality of the circumstances. Researchers challenged officers to ask, “Will my actions be viewed as appropriate by my agency and by the general public-given the severity of the threat and totality of the circumstances?” The question suggests that the opinion of the general public, whoever or whatever that means at any given time, would eventually determine whether force used by an officer was acceptable.

Police executives around the country embraced the principle and incorporated it into their internal reviews of officers. What they did not embrace, however, was PERF’s recommendations for additional training to accompany that change. Nor did they consider educating the public and elected officials on police training and use of force.

In the legal profession, oversight is handled by independent bodies comprised of attorneys and non-attorneys. These panels review complaints against lawyers and determine if there is probable cause to investigate or dismiss the allegation. They can make a non-public determination, or, in more serious matters, publicly release its findings and punishment. The medical profession has similar oversight.

There are benefits to considering a similar process for policing.

In both the legal and the medical professions, though, what information about individual lawyers and doctors becomes public is considerably less than what was has come to pass in New York with the recent repeal of a section of Civil Service Law known as 50a. Those professions, and others, also allow for varying degrees of discipline. In policing, the primary outcome of a disciplinary action is either a suspension or a termination. Why not remedial training or education-based discipline? Why not explore ways to help officers reduce stress or introduce behavioral health resources to address and correct undesirable actions?

Some hospitals are known as “teaching hospitals,” which implies that the medical professionals there have varying degrees of experience and are in the process of learning. Well, a police department is a “teaching department.” Every department has new recruits and veterans with various levels of experience. Should a new recruit, recently weaned from his or her training officer, be expected to know exactly how to respond in every stressful, highly-fluid situation, some of which they will be encountering for the first time? Of course not. Yet every police officer accused of misconduct is investigated in the same manner and is judged publicly, regardless of how little relevant experience or training they have had.

If change is going to happen, labor must be at the planning table, not to prevent reform but to ensure that policies are fair and safe for officers and the community.

Improving the way we police requires changes that make good cops better and sharpens the focus on precisely what needs policing. Until meaningful policy change occurs, we should not expect police reform to be the solution to, or the blame of, all our problems.

Michael Mazzeo is the president of the city’s police union, the Rochester Police Locust Club.
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