Law enforcement officers can’t cite every jaywalker, stop every speeder, and arrest every underage drinker, nor would most people want them to do so. Wisely exercising discretion is an important part of an officer’s work. At the same time, North Carolina has a statute that makes it a crime for an officer willfully to fail to discharge his or her duties. That statute has occasionally been used to prosecute officers who chose not to enforce criminal laws. This post considers the extent to which the statute constrains an officer’s discretion.
Courts have recognized the discretion inherent in law enforcement. Because law enforcement officers have limited time and other resources, they must decide what to prioritize and what to put on the back burner. The Supreme Court of the United States has described the discretionary nature of policing as “deep rooted,” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005), and “common sense,” Chicago v. Morales, 527 U.S. 41 (1999). Most recently, in Texas v. United States, 599 U.S. __, 143 S.Ct. 1964 (2023), it rejected several states’ attempts to challenge immigration arrest and prosecution priority guidelines promulgated by the Biden Administration, noting that “the Executive Branch (i) invariably lacks the resources to arrest and prosecute every violator of every law and (ii) must constantly react and adjust to the ever-shifting public-safety and public-welfare needs of the American people.” (I wrote about that decision here.) A commentator puts it more bluntly: with few exceptions, “police have unfettered discretion not to arrest a person, despite the strength of the evidence.” Alafair Burke, Policing, Protestors, and Discretion, 40 Fordham U. L.J. 999 (2013).
In our state jurisprudence, the discretion inherent in law enforcement has been recognized in the context of attempts hold officers civilly liable for failing to prevent crimes. In Braswell v. Braswell, 330 N.C. 363 (1991), the state supreme court wrote that “[t]he general common law rule, known as the public duty doctrine, is that a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals. . . . This rule recognizes the limited resources of law enforcement and refuses to judicially impose an overwhelming burden of liability for failure to prevent every criminal act.”
G.S. 14-230 criminalizes an officer’s willful failure to discharge his or her duties. At some point, the exercise of nonenforcement discretion may shade into laxity or nonfeasance, and a state statute seeks to prevent the latter. G.S. 14-230 provides in part that “[i]f any . . . sheriff . . . or official of any of the State institutions, or of any county, city or town, shall willfully omit, neglect or refuse to discharge any of the duties of his office . . . he shall be guilty of a Class 1 misdemeanor.” A law enforcement officer is an “official” within the meaning of the statute. See State v. Hord, 264 N.C. 149 (1965) (concluding that because they exercise sovereign authority, “a chief of police as well as a policeman, when duly appointed to such position, pursuant to statutory authority, is an officer within the meaning of G.S. § 14–230”).
Prosecution of allegedly derelict officers. G.S. 14-230 and its predecessors occasionally have been used to prosecute law enforcement officers who have failed to enforce criminal laws. An early case was State v. Furguson, 76 N.C. 197 (1877), where a constable received an arrest warrant and met with the person who was the subject of the warrant, but did not arrest him based on a friend’s assurance that the subject would appear in court. After the subject fled, the constable was prosecuted for failure to discharge his duties. He was convicted and the state supreme court affirmed, opining that “when there is jurisdiction and the warrant is not otherwise void, [the constable] as a ministerial officer is obliged to execute it.”
There was a momentary explosion of reported cases in this area in 1965. At that time, the prosecutor in Mecklenburg County indicted the Charlotte police chief and several other officers under G.S. 14-230 for failing to investigate certain crimes and charge the perpetrators. A superior court judge quashed the indictments, and the state appealed. The lead case was State v. Hord, 264 N.C. 149 (1965), the case against the chief. He had been charged with multiple counts based on his alleged failure to investigate and prosecute a woman running a brothel, failure to investigate and make an arrest in a commercial break-in, failure to investigate the theft of over 1,000 gallons of gas from a gas station, and other matters. The Supreme Court determined that many of the counts in the indictment had been properly quashed, some on the basis that the indictment lacked sufficient detail and others on the basis that the indictment failed to provide “any reason why the defendant should have concerned himself particularly with those cases” rather than leaving them in the hands of his subordinates. However, the Supreme Court reversed the lower court as to two counts alleging that the chief had failed to investigate and charge one Babe Broadway for maintaining a structure for the purpose of prostitution. This ruling left the door open to the use of G.S. 14-230 against officers who turn a blind eye to criminal activity.
Several related cases were decided by the state supreme court the same day. In each case, the superior court had quashed the bills of indictment, and in each case, the reviewing court affirmed. For example, in State v. McCall, 264 N.C. 165 (1965), the defendant was a supervisor of detectives. He was indicted for willfully failing to discharge his duties in investigating several thefts. In one case it was alleged that he intimidated a prospective witness for the state and allowed the suspect to “go home after apprehension without bond.” The Supreme Court ruled that the superior court had correctly quashed the indictment. Particularly as to allowing the suspect to go free, the court stated that “the case was apparently in the investigative stage since no formal charge had been lodged against the suspect at the time,” and therefore the court did “not construe the conduct of the defendant, as set out in these bills, to be of such nature as to charge any criminal misconduct on his part.”
A more recent case is State v. Stanley, 60 N.C. App. 568 (1983). There, a Topsail Beach officer was convicted of failing to discharge his duties after he and another officer stopped a car, found drugs and guns inside, and essentially took the guns in exchange for not charging the occupants. The court of appeals affirmed, finding sufficient evidence that the defendant was “guilty of willfully failing to discharge the duties of his office by failing to make an arrest.”
How much does G.S. 14-230 limit police discretion? The cases cited above don’t directly address the impact of G.S. 14-230 on police discretion. That’s unfortunate, because is possible to read Hord, in particular, as profoundly limiting an officer’s discretion. The court seems to have sustained the criminal charge on nothing more than (1) an allegation that the officer knew of a crime (“that the defendant knew that Babe Broadway was operating a place of prostitution in violation of the law, on East Ninth Street in the City of Charlotte”) and (2) an allegation that the officer took no action (“he [willlfully] and corruptly did omit to investigate and bring to prosecution Babe Broadway for such violation”).
Although that’s an accurate summary of the pertinent part of the Hord opinion, I am hesitant to read Hord as effectively requiring an officer to charge every crime known to him or her or to risk being charged with failing to discharge his or her duties. First, Hord was an appeal of a judge’s order finding an indictment to be deficient. The court wasn’t considering the sufficiency of the evidence to support a conviction and the defendant hadn’t yet offered any justification – such as competing priorities or limited resources – for his alleged failure to bring Babe Broadway to justice. We don’t know how the court would have evaluated arguments of that kind, which might be highly pertinent to whether an officer had the requisite mens rea for the offense. Second, considering all the 1965 cases together, the Supreme Court found that every charge against every defendant was properly dismissed with the sole exception of the charges against Chief Hord regarding Babe Broadway. The court certainly did not signal an enthusiasm for the use of G.S. 14-230 to second-guess nonenforcement decisions, and the lack of much subsequent case law suggests that the signal was received.
My sense is that G.S. 14-230, and similar laws in other states, are most likely to be invoked when an officer fails to act as a result of corruption, or perhaps obstinate incompetence. In Stanley, the officer’s failure to make an arrest was part of a corrupt quid pro quo. Likewise, in People v. Nieves, 197 A.D.2d 542 (N.Y. App. Div. 1993), a New York court interpreting a similar statute found the evidence sufficient to convict an officer of official misconduct where “the defendant permitted [a drug dealer] to possess and sell drugs, by failing to arrest him.” The court indicated that the officer was in league with the dealer and sought for himself “a steady, local, and reliable source of drugs.” As to obstinate incompetence, in State v. Hozer, 116 A.2d 193 (N.J. 1955), the court affirmed a police sergeant’s conviction for nonfeasance after he failed to mount an effective investigation of a large-scale gambling operation despite repeated direction to do so.
If officers, agency attorneys, or others have thoughts or experiences relevant to the intersection of G.S. 14-230 and police discretion, I would be interested to hear from you. And if anyone knows more about the background of the 1965 kerfuffle in Charlotte, I would be interested to learn about that too.