Thursday, October 28, 2004

ACLU: Limit Cops Operating Outside Jurisdiction

This afternoon ACLU of Texas delivered testimony, authored by yours truly, to the Texas House Criminal Jurisprudence Committee related to one of their Interim Charges, which are complex issues committees work on in between legislative sessions to prepare legislation. The charge in question reads as follows:

Interim Charge Number 3:

Review Code of Criminal Procedure Article 2.13 and Art. 14.03 as they relate to a peace officer’s authority to act outside of the peace officer’s geographic or territorial jurisdiction.

I've removed some of the technical and legal detail and adapted the testimony slightly for the blog format, but here's the gist of what ACLU had to say:

Issues


A. Byrne Grant-Funded Drug Task Forces


Drug task forces raise specific jurisdictional issues relevant to the committee's charge. Though section 14.03(g) of the Texas Code of Criminal Procedure (CCP) disallows officers from detaining citizens for traffic violations outside their jurisdiction, Byrne-grant funded drug task force officers routinely do so.

A recent study by ACLU of Texas entitled Flawed Enforcement (May 2004, pdf file) found that of the thousands of motorists stopped by drug task force officers, about 98% of them received no ticket (p. 11). That’s partly because task force officers, who wear uniforms from their home jurisdiction, are stopping motorists in other counties than the one where they are employed. (A former task force officer says another reason is that motorists who haven’t received a ticket yet are more likely to give consent to search.) This creates two concerns:

  1. Confusion among motorists over why they’re being stopped by an officer wearing a uniform from another area.
  2. Most importantly, which jurisdiction receives ticket proceeds? Task forces have found that, rather than reconcile this politically sticky issue, it’s simply easier to not give tickets at all. If the money goes to the county where the ticket is given, as with DPS, then agencies are paying officers to generate revenue for other jurisdictions.

To the extent giving out tickets at traffic stops fulfills real-world public policy goals like deterring traffic offenses, task force traffic interdiction isn’t helping. To the extent ticketing generates revenue, local governments are foregoing millions in revenue statewide from traffic enforcement performed by their officers.

Drug task forces not only have officers enforcing laws outside their jurisdiction within the task force area, they frequently trade officers to perform undercover work in other task force regions by agreement. Given their notorious liability issues, this creates potential problems for all involved.


B. Officers can arrest outside jurisdiction for most offenses.


CCP 14.03 contains provisions that appear contradictory at first glance. Subsection (d) allows officers to arrest outside of their jurisdictions for felonies, breaches of the peace, disorderly conduct and drunkenness committed in their presence. That is a reasonable limitation that allows officers to keep the peace but, by itself, restricts routine law enforcement to officers employed in the jurisdiction.


CCP 14.03(g), however, expands that power dramatically, allowing arrests for “any offense” except traffic violations. (Drug task force officers are even exempt from that.) 14.03(g) completely overrides and subsumes 14.03(d), for the worse, allowing officers to arrest for even the most petty misdemeanors, even fine-only offenses, punishments for which don’t even merit incarceration. That’s too broad.


C. Proliferation of Special Force Risks Abuse

Proliferation of various types of small law enforcement agencies risks inexperienced, poorly trained and unaccountable officers acting anywhere and everywhere without restraint. Article 2.12 of the Code of Criminal Procedure lists 32 different types of specialized police officers in addition to municipal police and sheriffs. Many of those officers don’t receive the same level of training or oversight as regular law enforcement agencies, or, e.g. arson investigators, on paper possess narrow jurisdictions and expertise. Thanks to the problem described in "B" above, though, these officers can bring the full force of law to bear on even the most minor offenses, whenever they want. That risks all sort of obviously problematic situations.

Recommendations


  1. Most important: Delete CCP 14.03(g). The provision in 14.03(d) provides out of jurisdiction officers all the leeway they need to keep the peace. 14.03(g) removes all restrictions on officers actions, making them as powerful outside their jurisdiction as within it. Officers in their jurisdiction are subject to supervision and oversight; outside their jurisdictions they become potential loose cannons, creating liability with every law enforcement action.
  2. Disallow drug task force highway interdiction. Require that officers only enforce traffic laws in their home jurisdiction. See the report, Flawed Enforcement, for a much more detailed criticism of drug task force highway interdiction practices and problems created by task force officers operating outside their home jurisdiction.
  3. Strictly regulate the ability of drug task forces and other agencies to bring in out of jurisdiction officers through cooperative agreements. Clarify that the both the requesting agency and the home jurisdiction will be liable for any misconduct by officers working by agreement outside their jurisdiction.
  4. Consider implementing restrictions on the law enforcement powers of specialized police forces listed in CCP Art. 2.12

6 comments:

bejah said...

Why? Aren't you concerned about drugs getting to our streets? We already have too many drug trafficers getting through. Why make it easier for drug dealers and harder for police officers?

Gritsforbreakfast said...

The short answer is that we're not Communist Russia; American police aren't and shouldn't be all-powerful. The point of the testimony is that officers already have the tools they need if they spot a drug deal being committed. But when they're operating outside of their jurisdiction, they're also outside of their chain of command and outside all mechanisms to ensure accountability, so they shouldn't have the same scope of power when their on vacation as when they're walking the beat day to day.

When cops effectively solve crime it's because they operate as part of a team, not a bunch of rugged-individualist Lone Rangers for whom the end justifies the means. Society bestows special powers upon them and requires obedience and accountability in return, which is as it should be. In a democratic society police should never get unfettered power, and asking them to operate under their own chain of command is imminently reasonable, IMO.

jmarquis2point5 said...

"People willing to trade their freedom for temporary security deserve neither and will lose both."
-Benjamin Franklin

jmarquis2point5 said...
This comment has been removed by the author.
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