I’ve been asked several times lately whether it is a good idea for an officer to use his or her personal cell phone to take work-related photographs, such as photographs of a crime scene or photographs of seized items. In this post, I explain why I think that’s OK, so long as it is consistent with agency policy. Continue reading
Tag Archives: officers
I’ve recently been asked by several people whether it is lawful to require officers to issue a certain number of citations, or to make a certain number of arrests, per day or per month. Generally, I think it is lawful, subject to some important caveats.
Let me start by noting that the use of quotas for officers doesn’t seem to be widespread. In fact, every agency responding to one recent survey about quotas denied using them. Still, every now and then a public records request or a personnel lawsuit by a former officer will reveal quotas in use. You can read some media reports about quotas here, here, here, here, here, and here.
Now on to the law. A number of states have statutes prohibiting the use of quotas. For example, 71 Pa. Stat. 2001 states that “[n]o political subdivision or agency of the Commonwealth shall have the power or authority to order . . . or . . . suggest to any police officer . . . that said police officer . . . shall issue a certain number of traffic citations, tickets or any other type of citation on any daily, weekly, monthly, quarterly or yearly basis.” Likewise, a Michigan statute provides that “[a] police officer shall not be required to issue a certain number of citations for violations of [the motor vehicle laws] or of local ordinances substantially corresponding to provisions of [the motor vehicle laws], including parking or standing violations, unless the issuance of citations is a part of a police officer’s performance evaluation system and the issuance of citations is not given any greater consideration than any other factor in the evaluation of a police officer’s performance.”
However, North Carolina does not have a general anti-quota statute. There is one for the Highway Patrol: G.S. 20-187.3 provides that “[t]he Secretary of Crime Control and Public Safety shall not make or permit to be made any order, rule, or regulation requiring the issuance of any minimum number of traffic citations, or ticket quotas, by any member or members of the State Highway Patrol. Pay and promotions of members of the Highway Patrol shall be based on their overall job performance and not on the basis of the volume of citations issued or arrests made.” But there is nothing similar for other law enforcement agencies.
The lack of a general statutory bar to the use of quotas does not end the inquiry, however. We still must consider whether the practice is unconstitutional. This question, in turn, breaks down into two parts: whether quotas violate officers’ rights, and whether they violate the rights of those cited or arrested.
Courts have generally rejected officers’ constitutional claims. Consider, for example, Gravitte v. North Carolina Div. of Motor Vehicles, 2002 WL 451803 (4th Cir. Mar. 25, 2002) (unpublished), a case brought by a DMV enforcement officer who alleged that the Division imposed various quotas on its officers. His 42 U.S.C. § 1983 suit was dismissed for failure to state a claim on which relief could be granted, and the Fourth Circuit affirmed:
The policy adopted by the DMV helps to ensure a minimum quantity of work from its law enforcement officers and helps to prevent shirking on the job. An employment policy enacted in pursuit of these goals, goals that would be shared by any reasonable employer, can hardly be deemed “egregious” or “outrageous,” even if it impinges on traditional police discretion and imposes more burdensome working conditions on law enforcement officers. The plaintiffs’ allegation that officers are “pressured and coerced to violate the law as a result of the ongoing ticket quota scheme,” J.A. 224, does not alter our conclusion. While it is conceivable that officers might be tempted to fill their quota by issuing citations for borderline or non-existent violations out of laziness, there is no allegation that the numerical quotas are so onerous that it is impossible for a diligent DMV officer to meet them without breaking the law.
“Soft” quotas, targets, or the consideration of average citation and arrest levels in evaluating officers’ performance are even more clearly permissible. See, e.g., Wells v. Miller, 2009 WL 2981945 (W.D. Pa. Sept. 11, 2009) (unpublished) (notwithstanding Pennsylvania’s statutory prohibition of quotas, it was proper to consider “station averages” in evaluating state troopers’ job performance). However, note the Gravitte court’s suggestion that quotas that are impossible or very difficult to meet may be improper. For example, requiring traffic enforcement officers to write 50 tickets per shift, or requiring felony investigators to make four arrests per day, would likely be impermissible quotas.
As to whether quotas violate the constitutional rights of those cited or arrested, the answer seems to be no, so long as the citation or arrest is supported by probable cause, because the subjective motivations of an officer in issuing a citation or making an arrest are irrelevant under Whren v. United States, 517 U.S. 806 (1996). That being said, if a quota is so high that it is likely to drive police misconduct, the legality of the quota itself may again come into question. Cf. Diaz-Bernal v. Myers, 758 F.Supp.2d 106 (D. Conn. 2010) (subjects of an immigration raid sued the officers who conducted the raid and their supervisors, alleging in part that the raid was the result of an ICE quota system that required each team of fugitive officers to make 1000 arrests per year; plaintiffs claimed that the system violated the Fourth Amendment; the court denied, in pertinent part, defendants’ motion to dismiss plaintiffs’ Fourth Amendment claim, stating that “plaintiffs have put forth a plausible claim that [two supervisors] are subject to . . . liability because their actions imposing intense pressure to make arrests [including the quota system] . . . created a policy under which constitutional violations occurred.”); Colbert v. City of Atlanta, 2010 WL 6397559 (N.D. Ga. April 5, 2010) (unpublished) (civil suit by persons against whom corrupt officers executed a search warrant; in the course of denying the city’s motion for summary judgment, the court noted that “there is ample evidence in the record that APD had a quota system that required officers to achieve a certain number of arrests and obtain a certain number of search warrants monthly,” which an officer claimed drove unlawful police practices).
Obviously, the fact that reasonable quotas are generally permissible doesn’t mean that they’re necessarily good policy. I don’t have any expertise on that issue and am agnostic about it.
As a final aside, officers don’t generally seem to like quotas, but neither are they enamored of disgruntled motorists’ questions about them. In online officers’ forums, I saw several proposed responses to questions about quotas, including “No sir, we don’t have a quota. I’m allowed to write as many as I like,” and “Yes ma’am, we do have a quota. One more ticket and I get a free toaster oven.”
A recent court of appeals case, Blaylock v. N.C. Department of Correction-Division of Community Corrections, has spurred to write about something I’ve been meaning to write about for a while: probation officer liability when a supervised offender hurts someone.
In Blaylock, a probation officer was supervising a mentally ill probationer named James Oakes who had been identified as a “sexual offender.” When Mr. Oakes didn’t have a proper place to the live the officer made some calls to help him find accommodations. She called and eventually visited a pair of Oakes’s relatives, a married couple with four children, to see if he could live with them. Despite seeing children in the home, the officer did not inform the couple of Oakes’s history as a sexual offender. Two days after the couple agreed to let him move in, Oakes sexually assaulted two of their children.
The couple sued the Division of Community Corrections (DCC) before the Industrial Commission (that’s where you sue state agencies – which would otherwise be immune – under the State Tort Claims Act). They alleged that DCC’s agent, the officer, failed to exercise reasonable care in placing Mr. Oakes in the couple’s home.
DCC raised the public duty doctrine as a defense. Under the public duty doctrine, individual citizens generally have no claim that government officers are obliged to protect them from harm caused by third parties. For example, you typically can’t succeed in a lawsuit against the police department when you’re the victim of a crime – the police have a duty to protect the public at large, but that duty cannot be said to extend to any specific individual. Braswell v. Braswell, 98 N.C. App. 231 (1991). The rule recognizes the limited resources of law enforcement and a refusal to “judicially impose an overwhelming burden of liability for failure to prevent every criminal act.” Id. The doctrine was first extended to North Carolina probation officers in Humphries v. Department of Correction, 124 N.C. App. 545 (1996), where it barred a claim against a probation officer who failed to take action when an offender’s electronic leg band broke, and the offender went on to kill a woman.
The Full Commission disagreed with DCC’s argument and denied its motion for summary judgment, concluding that even if the public duty doctrine applied, this situation might fall within the special relationship exception to the doctrine. On interlocutory appeal, the court of appeals affirmed the Commission’s denial of summary judgment, holding that the public duty doctrine applied, but there was a genuine issue of material fact as to whether the special relationship exception was applicable.
The special relationship exception is one of two generally accepted exceptions to the public duty doctrine (I’ll talk about the other one in a moment). The exception exists when, as you might have guessed, there is a special relationship between public authorities and a person who gets injured, such that the authorities can be said to owe a specific duty to the individual. The most frequently cited example is the relationship between the police and a witness or informant: if the witness is harmed as a result of law enforcement’s negligent failure to protect him or her from retaliation, the public duty doctrine will not bar the witness’s tort claim against the police.
The other exception is the special duty exception, which applies when authorities fail to make good on a specific promise of protection to an individual. General promises of protection or assurances of safety won’t do; they must be specific and detrimentally relied-upon by the victim. For example in McKendall v. Webster, __ N.C. App. __, 672 S.E.2d 768 (2009), the court of appeals said a sheriff’s failure to deliver on a promise to seize a husband’s weapons before the husband killed his wife fell within the exception.
Back to Blaylock, the court of appeals said the probation officer might owe a duty to the assaulted children under the special relationship exception to the public duty doctrine. The officer directly called Mr. Oakes’s relatives and followed up with a visit to talk to them about Oakes moving in. She gave them her card and told them to call her with any questions. The officer’s actions, the court said, placed the children “at a greater risk of being sexually assaulted than they would have been had Mr. Oakes not been placed in their home.” Considered together, these facts might give rise to a special relationship between the officer and the children such that the officer’s negligence in failing to warn about Oakes’s criminal history might be said to breach a duty owed to them as individuals. The case will now go back to the trial court to sort that out.