Is It Ethical to Allow Police, Under Investigation, to Resign

[huntsab]

"Name one RIGHT that a driver at a DUI checkpoint is forced to give up?"
4th Amendment right to be free of unreasonable seizures. Police need reasonable suspicion. Being allowed to avoid the checkpoint does not work in the real world because many police do not respect the rules. In my town the "roving patrols" go after everyone who chooses to turn before the stop.

[jk]

"Name one RIGHT that a driver at a DUI checkpoint is forced to give up?"
4th Amendment right to be free of unreasonable seizures. Police need reasonable suspicion. Being allowed to avoid the checkpoint does not work in the real world because many police do not respect the rules. In my town the "roving patrols" go after everyone who chooses to turn before the stop.

SCOTUS has ruled that the intrusion is reasonable so no, they do not give up their 4th amend rights, at least in the current status of our laws.

[cdwjava]

"Name one RIGHT that a driver at a DUI checkpoint is forced to give up?"
4th Amendment right to be free of unreasonable seizures. Police need reasonable suspicion.

The USSC would disagree with you that any rights are truly lost. Read Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). Among others.

Being allowed to avoid the checkpoint does not work in the real world because many police do not respect the rules.

That has not been my experience, but if that's the case in your city perhaps someone needs to bring it up. The rules are rather simple.

Here in CA where we live, here are the rules:

In Ingersoll (1987) 43 Cal.3d 1321, the California Supreme Court established guidelines for what it would consider to be lawful sobriety checkpoints. The eight "functional guidelines" provide guidance for departments and the courts in evaluating sobriety checkpoints:

(1) Supervisory-Level Decisions. "The decision to establish a sobriety checkpoint, the selection of the site and the procedures for the checkpoint operation should be made and established by supervisory law enforcement personnel, and not by an officer in the field."

(2) Neutral Formula. "[A] neutral formula such as every driver or every third, fifth or tenth driver should be employed."

(3) Safety Precautions. "Proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are necessary to minimize the risk of danger to motorists and police" and the "checkpoint should be operated only when traffic volume allows the operation to be conducted safely." The court noted that screening procedures may be altered depending on volume.

(4) Reasonable Location. "The location of checkpoints should be determined by policy-making officials rather than by officers in the field" with safety factors "considered in choosing an appropriate location" and the sites chosen being the "most effective in achieving the governmental interest; i.e., on roads having a high incidence of alcohol related accidents and/or arrests."

(5) Time and Duration. "[L]aw enforcement officials will be expected to exercise good judgment in setting times and durations, with an eye to effectiveness of the operation, and with the safety of motorists a coordinate consideration."

(6) Indicia of Roadblock. "The roadblock should be established with high visibility, including warning signs, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers" for safety reasons and because "advance warning will reassure motorists that the stop is duly authorized."

(7) Length and Nature of Detention. "Minimizing the average time each motorist is detained is critical both to reducing the intrusiveness of the stop on the individual driver and to maintaining safety by avoiding traffic tie-ups." The court noted that drivers displaying signs of intoxication could then be directed to a separate area for a roadside sobriety test.

(8) Advanced Publicity. "Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock." Note, however, that a sobriety checkpoint that complies with the rest of the Ingersoll guidelines but is not preceded by advance publicity is not invalid under the Fourth Amendment. (Banks (1993) 6 Cal.4th 926, 931, 949.)

When a checkpoint stop is challenged, the People must introduce sufficient evidence to establish the legitimacy of the checkpoint. (Alvarado (2011) 193 Cal.App.4th Supp. 13.)

Note that it does NOT say that detour signs and routes need be indicated before you get to the location only that there be "advanced publicity" and that there be "indicia of [the] roadblock."

Which of these have you seen violated, and what have you done about it? Notify the media? Notify the local law enforcement agency in charge? Speak to city officials? And if the program is funded by an OTS grant, perhaps you can speak to the OTS.

In my town the "roving patrols" go after everyone who chooses to turn before the stop.

Are they making these stops without reasonable suspicion or probable cause? All because an officer follows and stops someone does not mean the stop is unlawful.

Where I used to work in So Cal we used to set up the warning signs in an area where there was a dual set of double yellow lines (forming an "island" in the middle of the road). You could turn right onto the obvious side street, or flip a U-Turn over the island and commit a Vehicle Code violation. We would position a car to watch for the U-turn. Oddly enough almost every vehicle that ever flipped a U-Turn had an impaired driver! Had they just gone to the right, they would have been fine.

All because there are cars set to investigate drivers that might deviate at the indicia of the checkpoint does not mean anything unlawful was done.

[huntsab]

Justice Brennan's dissenting opinion in Michigan on the issue of reasonableness:
"Indeed, the opinion reads as if the minimal nature of the seizure ends rather than begins the inquiry into reasonableness. Once the Court establishes that the seizure is ''slight,'' it asserts without explanation that the balance ''weighs in favor to the state program.'' The Court ignores the fact that in this class of minimally intrusive searches, we have generally required the Government to prove that it had reasonable suspicion for a minimally intrusive seizure to be considered reasonable. Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action. . . . By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police. I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework. . . .I do not dispute the immense social cost caused by drunken drivers, nor do I slight the Government's efforts to prevent such tragic losses. Indeed, I would hazard a guess that today's opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis. . . ."

I think a majority of society would be willing to waive their right for the benefit of their community, too. I do not complain about DUI checkpoints. I don't pretend they are Constitutional. There are times that the public good outweighs our own individual rights.

Police could show some willingness to forego some of their rights for the public during critical events, as well, especially, when they are acting as the government.

[jk]

and you notice:

Justice Brennan's dissenting opinion

I guess that means the majority agreed with an opinion in contrast to Brennan's.


That is why I said:

at least in the current status of our laws.

our laws are not written in stone nor are the opinions of the court.


but what does a DUI checkpoint have to do with:

Is It Ethical to Allow Police, Under Investigation, to Resign

[cdwjava]

Justice Brennan's dissenting opinion in Michigan on the issue of reasonableness ...

That's the dissenting position and NOT the holding of the court. As such, you are not deprived of your rights at a DUI checkpoint. You can disagree with the ruling if you like, but they are lawful and saying that they are unconstitutional is simply untrue.

Police could show some willingness to forego some of their rights for the public during critical events, as well, especially, when they are acting as the government.

They forego a great many while in the course of their employment. And officers can lose their jobs even for off-duty conduct! But, an officer who is inclined to knowingly commit a criminal act is hardly going to stand tall to take his punishment when other options are available to him. And even if an officer quits rather than accepts termination, he can and will still be prosecuted if a case can be made for criminal conduct.

As has been mentioned, the employer cannot force the employee to stay working just so that he can be compelled to make a statement and later fired. And, of course, he can STILL refuse to make a statement and face ... uh ... yeah, termination.

And, I agree with JK here, the issue of DUI checkpoints has nothing to do with the original topic which, I think, has been explained.

[huntsab]

"As has been mentioned, the employer cannot force the employee to stay working just so that he can be compelled to make a statement and later fired. And, of course, he can STILL refuse to make a statement and face ... uh ... yeah, termination."

No one forced the cop to stay working. They did not want to compel any statement. They wanted to get rid of him. They asked him to resign because they did not want to deal with the public embarrassment of one of their officers committing a serious crime on duty. He was not prosecuted. It probably was not even officially investigated, which would explain him being hired in the neighboring town. They got rid of their problem. And we, perhaps, unknowingly, inherited it.

[jk]

They got rid of their problem. And we, perhaps, unknowingly, inherited it.

It happens but unless/until he is investigated fully and found to be in violation of some law or policy, he is not guilty. that's life. The former employer does not have a duty to continue the administrative investigation or, if it was a criminal act, a criminal investigation. that is how our system works.

[cdwjava]

No one forced the cop to stay working. They did not want to compel any statement.

And you know this ... how?

Understand that no law REQUIRES the agency to issue the Lybarger admonishment to compel a statement. No law requires the employee to even attend the interview or speak to investigators. His refusal can result in termination, but no law will compel him to do so. And since the agency must work with the employee to accommodate a reasonable time for the employee and allow him time to access representation either by counsel or association representative, these interviews can take many days or sometimes weeks (if the matter is serious enough) to arrange.

They wanted to get rid of him.

The best way to do that is to get a statement admitting to violating policy. But, if not, his resignation will do.

They asked him to resign because they did not want to deal with the public embarrassment of one of their officers committing a serious crime on duty.

If a crime was alleged, the CRIME does NOT go away if he quits!

He was not prosecuted.

That's not a decision that the employing agency could make. Talk to the DA.

It probably was not even officially investigated, which would explain him being hired in the neighboring town. They got rid of their problem. And we, perhaps, unknowingly, inherited it.

Or, a few other possibilities ... Perhaps there was insufficient evidence to proceed with a criminal prosecution, and perhaps the internal investigation was inconclusive with regards to any policy violation. And, perhaps, the newly employing agency did a shoddy background, or chose to disregard what had been uncovered to that point.

Understand that what you may "know" of the incident by virtue of the media, rumor, or even friends does not equate to "proof" or even sufficient grounds to show that a violation of policy or law occurred.

[huntsab]

"Understand that what you may "know" of the incident by virtue of the media, rumor, or even friends does not equate to "proof" or even sufficient grounds to show that a violation of policy or law occurred."
You are absolutely right. I am still trying to understand how a disaster could have happened. Something, many things, had to have gone wrong. You said, a long time ago, "bad things happen." I do not disagree. But when a person dies we have to examine every detail- pick it apart. Why did it happen?

When 4 rookie CHP officers were killed at one traffic stop many years ago, the CHP made sweeping changes in how traffic stops were conducted. They used the disaster as a training tool. Many agencies adopted and benefitted from those changes.
When a civilian is killed in police custody, that, too, deserves an honest, hard look at what police could have done differently.

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cdwjava, We have a legitimate role in policing as watchdogs. There is a lot we simply do not understand because most police, unlike you, do not talk to us. I really appreciate the depth of your knowledge and how graciously you share that with us.