25 de set de 2009

Ética Policial: a Responsabilização Entre os Próprios Pares



Fonte original da matéria e das ilustrações:
http://www.fbi.gov/publications/leb/2009/august2009/peer_to_peer.htm

“uma maioria dos policiais... não denunciaria um companheiro policial que engajou em um desvio de conduta menos grave. Por outro lado, eles também concluiram que 'a maioria dos policiais denunciaria um colega que subtraiu algo de uma bolsa encontrada em um local de crime de arrombamento'.
(tradução livre e adaptação)

Agosto de 2009 -- FBI Law Enforcement Bulletin
Replicado sob permissão expressa do Editor da Publicação

Peer-to-Peer Accountability
By Jennifer Bills, Ke Ching-Chung, Roy Heringer, and Dave Mankin

“There always is a conflict of loyalty when the actions of a colleague do not seem to be at the standard required by the duty of a professional. Yet, for a police officer to act according to duty in the instance of any unlawful action should be no different if the perpetrator is a member of the police service. ‘When faced with malpractice by any officer, your duty is clear…there is no room for equivocation of any kind when you see wrongdoing by a police officer or when you obtain any other credible evidence of it.’” 1

Much of the literature about ethical leadership within the law enforcement profession focuses on modeling ethical behavior and making ethical decisions regarding policy and police practice. But, what about peer-to-peer accountability? Why do some officers speak up when they see a peer act inappropriately? What prevents others from doing so? Is the choice related to the circumstances surrounding the incident? Do they fear conflict or retaliation? Has society created a culture that tolerates the small compromises everyone makes for the greater good to prevail?

For 24 hours a day, seven days a week, law enforcement officers police their communities, enforcing laws, preserving the peace, and protecting lives. Whether in response to a call for service, an observation, or a tip from an informant, they maintain order in a complex and ever-changing society. In that process, however, they commonly deal with conflicts in which they have only limited information regarding underlying issues. Clearly, some duties prove dangerous while others are noncritical and low risk. At the end of a shift, regardless of the type or number of calls for service handled, officers have made several decisions that significantly impacted those with whom they came into contact.

Decision Making

Officers weigh numerous variables and apply a measure of discretion prior to arriving at a final plan of action. This decision-making process can take as long as several minutes or as little as a fraction of a second. During this time, they likely will consider applicable federal, state, and local laws; department policy; and last, but perhaps most important, their morals, which certainly influence their decisions.

Officers must be able to differentiate between ethical dilemmas (an occurrence that forces them to choose one core value over another, both having equal worth or importance2) and moral temptations (the considered option may violate their core ethical values; be a violation of law, policy, or custom; or cause them to think “this just does not feel right”). For example, two officers are assigned to a traffic detail enforcing the 25 mile-per-hour school zone. Twenty minutes later, they have stopped 12 vehicles and cited each driver. Then, one of the officers clocks a suspect vehicle at 40 miles per hour and motions the driver to pull over. The driver is an off-duty fellow officer driving his child to school. The on-duty officer gives him a verbal warning, rather than a citation.

Were the officer’s actions justifiable? If stopped for speeding, would public officials hope for a warning or insist that the officer issue a citation? Officers sometimes do, in fact, give warnings to traffic violators. So, what, if anything, makes this situation unique? Such questions generate attention to the various potential and reasonable outcomes that might be available to the officer in resolving the enforcement action. Some might argue that the scenario places the officer issuing citations in an ethical dilemma. Does the public, moreover, the law enforcement agency itself, really expect its officers to cite off-duty ones for minor traffic violations? How might that affect esprit de corps among those sworn to protect not just the public but also each other? If the citing officer navigated through an ethical dilemma, then his choice to cite or not was “rooted in one of eight basic core values:

truth versus loyalty: honesty or integrity versus commitment, responsibility, or promise keeping;

individual versus community: us versus them, self versus others, or the smaller group versus the larger group;

short-term versus long-term: immediate needs may conflict with future goals or prospects;

justice versus mercy: fairness, equality, and evenhanded application of the law conflict with compassion, empathy, and love.”3

Based on these choices, or ethical paradigms,4 one most likely would assume the core values at odds are justice versus mercy. In this case, justice refers to upholding the law, and mercy means being compassionate and showing empathy. Making tough decisions or choosing one core value over another is not unique to the law enforcement community; most people face this on a daily basis. Individuals may more easily resolve matters by differentiating those that truly rise to the level of ethical dilemma, as opposed to moral temptations. To that end, officers should ponder several questions. Is it against the law? Does it go against my moral principles rule base (does it create a “pit” in my stomach)? Would I want to see the results on the front page of the newspaper? If I were my mother, would I do it?5
Further, officers should consider potential outcomes prior to coming to a final decision: do what is best for the greatest number of people; follow their highest sense of principle; and do what they want others to do to them.6

Therefore, in the speed enforcement detail scenario, when the citing officer decided not to issue a citation to the off-duty one, he should ponder several questions. Was the act of not citing the off-duty officer a criminal act or in violation of a departmental edict? Probably not, but some agencies are considering policy adjustments to address this issue. Would such a decision cause mental anguish on the part of the on-duty officer? Likely not because officers are permitted to use discretion when managing many types of enforcement activities. Would such an event, if published on the front page of the local newspaper, result in citizens’ surprise or disapproval? Possibly, but many would argue that the decision exercised a discretionary enforcement action. However, the public’s perception of officers gaining preferential treatment due to their profession erodes public trust. Finally, would his mother have done the same thing if placed in such a position? Perhaps, but this answer is inconclusive.

In this case, the on-duty officer could choose to follow up with the off-duty one regarding his lack of caution. He could discuss the awkwardness of the stop and the potential for other citizens to assert improprieties on the part of the officer or agency as a whole. Or, he could report the event to a supervisor. Furthermore, were others involved in the traffic-stop scenario (e.g., the second officer working the speed-enforcement detail) placed in an ethically compromising position? Will that officer question his coworker’s actions? Clearly, the off-duty officer who was stopped committed a minor traffic violation, and many would argue that his actions needlessly placed innocent children simply walking to school in harm’s way.

In another case, two officers were called to a home where a residential burglary had occurred earlier in the day. The residents were not at home, and the officers began clearing the house of potential suspects. While inside, one officer saw his partner walk past a bookshelf, pick up a small object, and put it in his pocket. Shortly thereafter, the witnessing officer asked his partner what he had retrieved from the bookshelf. He responded, “I didn’t touch anything; what are you talking about?” Clearly, the officer rightfully confronted his partner, but his partner’s response was incongruent with the observation. Is the witnessing officer now faced with an ethical dilemma or a moral temptation? Believing the accuracy of his observation, what options might the witnessing officer exercise? Should the offending officer admit wrongdoing and place the object back on the bookshelf? If so, does that eliminate the issue? The act of taking property that belongs to another is a criminal act. Therefore, the witnessing officer is obligated to report the matter to his supervisor. However, some may argue that the law enforcement profession is affected by a subculture that unfortunately may influence the witnessing officer’s decision to protect the actions of his partner.

Subculture

Literature regarding organizational and occupational cultures and subcultures exists, and such phrases as the code, the code of silence, and the blue curtain have emerged in recent years to describe rogue police subcultures. Regrettably, such negative subcultures can lead to the demise of individual officers, partners, teams, shifts, divisions, or, although rare, an entire department. Although it is important to know and study large failures, it proves just as critical to delve into acts of single officers. The law enforcement profession needs to learn and teach the lessons of these acts, not hide them. All levels of agencies should know, understand, and address actions that could turn a positive police subculture into a negative one because corruption can occur at all ranks by both sworn and nonsworn members. To achieve accountability throughout organizations, members need to become more proactive in policing themselves internally.

Though the term subculture often may be derogatory in nature, it can prove positive as well. “The group solidarity formed in a police subculture can elevate morale through esprit de corps, and it can promote fellowship and mutual responsibility among those who share danger and stress.”7

One renowned neurologist and psychiatrist advised that an existential vacuum developed in the 20th century, in part, by the diminishment of traditions that once created and molded officers’ behavior.8 “No instinct tells him what he has to do, and no tradition tells him what he ought to do; sometimes he does not even know what he wishes to do.”9 Those entering the law enforcement profession bring their traditions, faiths, and ethical and moral compasses. While assimilating into the culture, they exchange their individual identities for that of team members. They wear uniforms, often attend an academy away from their families and homes, and may be treated as new recruits who lack value until becoming sworn members of the force. As training continues, they are inculcated into the culture of their department and the profession. If officers lack a strong personal, traditional, or ethical basis, the custom of the department supplants theirs and becomes their core value. In this instance, the thin blue line is created.

With the advent of modern policing and the visible arena in which law enforcement now functions, the issue of ethical decision making has risen to the forefront. Several high-profile cases have garnered national attention and made the actions of law enforcement officers come into question and focus. One such incident involved presumably ethical officers not speaking up or not preventing a peer from seriously injuring a handcuffed suspect. When such a gross violation occurs and no one intervenes, it is not surprising that some officers let the minor transgressions go unaddressed. “The bottom line is, sometimes we cover for each other. For most of us, there is the realization that what happened was wrong. We see our behavior as a setback, not a victory. We analyze what went wrong and try to fix it before it happens again. But, no matter how we feel or what we believe, we are judged by our actions, not our intentions, and the costs can be horrendous. When confronted with video camera footage or audio recordings, the code becomes a trap and the first cop to tell the truth is usually the only one to escape permanent damage.”10

Officer Survey

Police and government agencies, public safety commissions, and scholars all have examined the issue of police misconduct. A common root or precursor of the topic eludes those seeking causation, solutions, and answers. To that end, the authors explored what role officers might play in self-policing the conduct of peers. They surveyed 136 command-level law enforcement personnel, representing agencies from the United States and 23 foreign countries, who responded to 11 hypothetical misconduct scenarios.11 The vignettes were scaled from minor to severe, and respondents had to determine if, as a peer officer, they would intervene, report the activity to a superior officer, or take enforcement action based on the misconduct observed.
Respondents were not prompted to consider potential disciplinary consequences, public opinion, or personal or professional feelings regarding the events, which mirrored those likely to occur in police organizations regardless of size or geographical location. The authors specifically chose situations that ranged from relatively minor transgressions involving a simple policy violation to felonious behavior. Interestingly, despite the nature of the misconduct, in none of the cases did all respondents unanimously record an answer wherein intervention would occur or the misconduct would be reported.

Results

Scenarios 2, 3, 8, and 9 simulated events where discretionary intervention may or may not have been warranted based on an officer’s interpretation of the facts. Of the 136 total responses, 103 indicated in scenario number 2 that they probably or very likely would have intervened; 88 in 3; 105 in 8; and 16 in 9. But, even these cases imply conduct where coworkers might engage in impropriety. Is it odd that peer police officers do not feel obligated to at least approach the offending officers and engage them in conversation that might prompt reflection or, at least, set the witnessing officer’s mind at ease?

On the other hand, scenarios 1, 4 through 7, 10, and 11 incorporated an environment of obvious misconduct. A clear need to intervene would be expected in these situations, particularly when observing the on-duty peer criminal activity. Interestingly, respondents showed different points of view: 64 advised that they probably or very likely would have intervened in scenario 1; 112 in 4; 89 in 5; 129 in 6; 118 in 7; 80 in 10; and 113 in 11. The remaining in each case were either undecided or likely would not have intervened. Where misconduct was evident, one might clearly expect far greater, if not unanimous, numbers to appear in the very likely to respond category.

The authors’ results are similar to those of a National Institute of Justice (NIJ) survey that polled 3,235 officers, representing 30 U.S. agencies, regarding their inclination to report misconduct as depicted in hypothetical scenarios.12 The NIJ survey also varied severity of the misconduct from minor to felonious activity. Results indicated “a majority of officers… would not report a fellow officer who engaged in…less serious misconduct.”13 On the other hand, they also found that “most police officers…would report a colleague who stole from a wallet found at a burglary scene.”14

Even in the NIJ survey, not all officers responded that they would report the felonious conduct. Such reluctance may be attributed to a tainted personal value system, the police subculture, or other barriers. Hence, research clearly indicates the need for contemporary law enforcement agencies to proactively engage in ethics training. Including ethical decision-making exercises where participation occurs throughout the agency likely would create an atmosphere of robust and enlightening discussion.

TABELA OMITIDA

Conclusion

Law enforcement officers must be able to distinguish ethical dilemmas from moral temptations. They have an obligation to confront peers they believe have committed a professional transgression. Such accountability clearly endures where perceived wrongdoing might question a fellow officer’s integrity or tarnish the reputation of the respective agency or, worse, the entire profession.

Supervisors at all levels of an organization should uniformly train, stress, and enforce clear comprehension of the law and departmental policies, rules of conduct, and memoranda of understanding. Agencies must aggressively confront misconduct issues and vigorously educate personnel to avoid future impropriety at all levels. Peers, as well as supervisors, should remain vigilant about malfeasance, or pending actions of it, and have the fortitude to sway the person from such behavior. If the employee cannot be deterred from the misconduct, fellow officers always should report the situation.

Endnotes

1 P. Haggard, Police Ethics (Lewiston, NY: The Edwin Mellen Press, 1994), 30.
2 R. Kidder, How Good People Make Tough Choices (New York, NY: Simon and Schuster, 1995), 17 and 117.
3 Ibid., 18
4 Ibid., 117.
5 Ibid., 184.
6 Ibid., 154.
7 E. Meese and P. Ortmeier, Leadership, Ethics, and Policing (Upper Saddle River, NJ: Prentice Hall, 2004), 95.
8 Viktor E. Frankl, Man’s Search for Meaning, 5th ed. (Boston, MA: Beacon Press, 2006).
9 Ibid., 106.
10 M. Quinn, Walking with the Devil (Minneapolis, MN: Quinn and Associates, 2005), 19.
11 The authors conducted their research while attending the FBI National Academy. The FBI hosts four 10-week sessions each year during which law enforcement executives from around the world come together to attend classes in various criminal justice subjects.
12 Carl B. Klockars, Sanja Kutnjak Ivkovich, William E. Harver, and Maria R. Haberfeld, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, “The Measure of Police Integrity,” (Washington, DC, May 2000); http://www.ncjrs.gov/pdffiles1/nij/181465. pdf.
13 Ibid., 2.
14 Ibid., 2.

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