Sunday, March 26, 2017

Creating new discretion for police to use deescalation methods

An excellent and necessary bill that's so far flown under the radar needs a quick referral and vote if it's going to pass this year. HB 3824, filed on the next to last day of bill filing by state Rep. Toni Rose, alters antiquated language about Texas law enforcement duties which has been in place in Texas since the days of the Republic (when there were far fewer laws, and lawmen).

The legislation changes a couple of "shall" arrests to "mays," making Texas law more amenable to officers implementing deescalation strategies in the field. If the law says the officer "shall" arrest the kid who stole a candy bar from the corner store, for example, then what choice did she have but to chase him into traffic?

In real life, officers exercise this sort of discretion every day. Why not codify what's already reality instead of pretending that officers can even know about, much less enforce, all the minor crimes sprinkled everywhere through Texas statutes. Police officers don't use the full force of arrest to punish every minor breach of the peace. Not only don't they do that, no one thinks they should. So the law shouldn't mandate an absurdity just because somebody wrote it that way before the Civil War. A lot's changed since then.

RELATED: Thompson seeks upgrades on police use of force, disciplinary process.


Anonymous said...

I bet shop owner of the corner store where the kid stole the candy bar would disagree. Or, knowing the police won't follow the law, maybe the shop owner should enforce his own law with a loaded gun behind the counter.

The language used to write law is specific. If the police (or other state actors) aren't following the law (as John Q. Public must) then disciplinary actions must take place.

Sec. 311.016. "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute:

(1) "May" creates discretionary authority or grants permission or a power.
(2) "Shall" imposes a duty.
(3) "Must" creates or recognizes a condition precedent.
(4) "Is entitled to" creates or recognizes a right.
(5) "May not" imposes a prohibition and is synonymous with "shall not."
(6) "Is not entitled to" negates a right.
(7) "Is not required to" negates a duty or condition precedent.

Gritsforbreakfast said...

There are LOTS of situations in the modern world where Texas cops don't follow SHALL. For example, many departments have policies that cops shouldn't pursue in vehicles for low-level misdemeanors because it would endanger the public They don't arrest for every Class C misdemeanor, though this seem to say they "shall." They can give tickets instead of arresting for 7 different Class B misdemeanors. They're already exercising discretion. The law should track what they're doing and not require them to do things that they in fact cannot and will not.

Matt Carter said...

First, I agree with the intent of the revisions. Second, this part of the code operates in conjunction with Chapters 14 and 15, Arrest Without Warrant and Arrest With Warrant, respectively. Taking Chapters 2 and 14 together, the only offense for which a peace officer SHALL arrest is Violation of a Protective Order. This is why peace officers are permitted, by statutes, to use discretion.

Again, I agree with the revisions and appreciate the attempt to clarify the intent of peace officer authority. However, the substance of the law revision doesn't change what has already been permissible.

This comment, and a couple of bucks, will get you a cup of coffee...

Gritsforbreakfast said...

@ Matt: The origin of this is that Austin PD brass claimed this statute was the reason they and other departments could not implement a proportionate response/de-escalation policy that reform advocates wanted and the city council required in a budget rider. So a change in the law was sought. If it turns out that argument was just a lie thrown up to prevent reform and isn't really true, I've been in politics long enough not to be surprised. But in that case, nobody should mind updating anachronistic language that isn't really in effect, anyway, 7:52's dissertation on mays and shalls notwithstanding.