TWO LITTLE WORDS THAT ARE VERY POWERFUL IN LAW ENFORCEMENT
Sometimes Officers Do Not Have Discretionary Powers.
Dear Ask A Cop,
Have you ever arrested someone that you really did not want to arrest? If you have, how did it make you feel? If you have not, would you ever do so?
Evan K.
Dear Evan,
Of course. Many times.
Almost every officer who has been on the job for any length of time has had to arrest someone that they didn’t really want to arrest.
The fact of the matter is, law enforcement officers swear an oath to enforce the law fairly, justly, and uniformly to every citizen. What is against the law for one is against the law for all others who fall under that statute.
One particular instance that has stuck with me for many years was a Registered Nurse, who I stopped for a traffic violation. She was very nice, apologetic, and told me right away that she thought she might have an active warrant for a court date that she missed on another ticket she had received. She was on her way to work, so I said to myself, if it’s just a traffic charge then I’m going to let her be on her way to work and tell her to take care of it.
When dispatch came back with the return the girl had eight outstanding warrants for her arrest, all for traffic violations that she had missed court on! But, other than the fact that she was a horrible driver and never went to court, she was a great person.
She cried all the way to the jail.
But what about “Officer Discretion?” you may ask. It’s true, peace officers have the ability to utilize their discretion in some situations, but not all.
You see, there are two little words in the English language that are very powerful despite their small size, and both of these words are found throughout the Code of Criminal Procedures of every state; these words are “may” and “shall”.
For example:
"An Officer Shall":
Suppose an officer receives a report of a domestic disturbance where there is clear evidence of physical violence and harm. In this case, according to Texas law, the officer shall make an arrest if they have probable cause to believe that an offense has occurred. This action is mandatory because it's in the interest of public safety and the prevention of further harm.
"An Officer May":
Now, let's consider a situation where an officer encounters a minor incident involving a dispute between neighbors over a property boundary. While there's some disagreement, there's no immediate threat to safety or well-being. In this case, the officer may choose to mediate the situation, provide advice on civil remedies, or suggest seeking legal counsel. Taking formal legal action is at the discretion of the officer.
So, while officers do have the ability to utilize their discretion about how best to handle a situation, sometimes the law tells them that they must make an arrest.
During a previous marriage, I arrested my sister-in-law for an offense that fell under that “shall” make an arrest part I mentioned.
Like I said, I did that during a previous marriage!