The Right to Choose

Hannah Pobol-Duncan

Discretion has a place in police forces all around the world. In the year of 2019 it has

become more and more apparent. There have already been cases against several officers for

using their own personal judgement rather than the laws and rules put in place by officials. Most

of today’s society is all for the idea of officers being able to use discretion. I, however, am not. I

do not believe discretion should be used in police forces. I believe that it creates more problems

than it solves. Police forces have introduced many new technologies to help and prove their

points as to why discretion is actually helpful. However, it has proved the exact opposite in many

circumstances.

There have been many times where police discretion has done more harm than good for

American citizens. Over the years several cases have been created against single officers or the

cities themselves. These cases were created by citizens that believed that police being allowed to

use discretion made decisions against them because of either race/ethnicity or living conditions.

There are three cases that have graced the court system of America that are combating discretion.

An issue has been brought to light also around this issue. It seems that now we have come into a
more modern time, all eyes are on the police. Will they do right by us or will they make the

wrong judgement call?

There are thousands of cases that have been created against police discretion.

These are just two cases that prove discretion is dangerous. The first case that we will be

discussing is the case of ​Tolan v. Cotton​. In this case, Robbie Tolan was wrongfully shot

by a police officer in the driveway of his parents’ home after being mistakenly suspected

of driving a stolen vehicle.1 The case was settled in the lower circuit of the court system.

The Legal Defense and Educational Fund (part of the NAACP) argued that the shooting

was tainted by the basis of racial discrimination due to the fact that, the officer shot Tolan

within 30 seconds of arriving on scene.​1​ This case shows how discretion can also tie into

racial profiling. Tolan was profiled as a thief because he is black, so the officer, using

discretion had the idea that Tolan was stealing the vehicle. He did not ask Tolan any

questions or even if he lived on the property. His first act was to shoot.

In another case residents and their visitors filed a lawsuit against the New York

City Housing Authority (NYCHA) and the City of New York. The 2010 case of ​Davis v.

The City of New York, ​was based on residents and visitors of the NYCHA challenging the

NYPD’s practices of unlawful stops and arrests for criminal trespass without sufficient

evidence and to their race/ethnicity.2 Many of the stops were a product of “vertical

1
​"Tolan v. Cotton." NAACP Legal Defense and Educational Fund. Accessed July 02, 2019.
https://www.naacpldf.org/case-issue/tolan-v-cotton/​.
2
​"Davis v. City of New York." NAACP Legal Defense and Educational Fund. Accessed July 15, 2019.
https://www.naacpldf.org/case-issue/davis-v-city-new-york/.
 sweeps”. Most of them took place in communities of color.​2​ Many of the Plaintiffs in this

case were arrested in their own buildings. Don’t they deserve to feel safe? To not be

afraid of being discriminated against every time they go home?

In the last case, a mother who was with her 18 month old daughter filed a lawsuit

against the police for opening fire near a restaurant in May of 2005. A police team in

Harlem, New York were firing upon an armed robbery suspect that opened fire on several

officers.3 This led to the case of ​Johnson v. The City of New York. ​Police officers have

been exempt from these type of lawsuits due to the fact that in dense urban communities

it is easy to have bystanders in the cross-fire.​3​ In August of 2010 there was a similar

event. Larry Garlick was an innocent bystander when police opened fire once again in the

city of Harlem. Garlick gave notice of filing a lawsuit against the police alleging that

officers were not properly trained to recognize the danger of firing “into a crowd of

people”.​3​ In Ms. Johnsons case, two of the police officers involved said they did not look

to see if their were bystanders while shooting and one of the officers stated that he did not

look for bystanders until ​after ​the shooting.​3​ Judge Lippman, who was presiding over the

case, asked, “How do you know that they are exercising their discretion correctly if they

don’t look and have any idea that there are innocent bystanders?” he also added, “They

didn’t look, that’s what's troubling me. How do we know they exercised the discretion

appropriately without sorting out some of these facts?”.​3​ I​ f a judge has to raise the

question of whether or not the police use discretion appropriately, is it really a good

3
​Baker, Al. "Police Discretion Is Issue in Injured Bystander's Suit." The New York Times. October 21, 2010. Accessed July 21,
2019​. h​ ttps://www.nytimes.com/2010/10/21/nyregion/21bystander.html.
 thing? Is it something worth having multiple people injured over? We have to take into

consideration that we may not be safe in our communities.

In two of these cases, it is easy to see that the main issue with discretion is tied

into race/ethnicity, but in the third discretion is seen as a dangerous tool to allow officers

to shoot in unfavorable situations. There are many more different types of situations that

discretion is used. An example is in Domestic Violence cases. These types of cases rely

heavily on the use of police discretion. When police encounter a female/male victims that

are distraught and having trouble with reciting the true nature of the events4, they have to

use their own judgement as their tool out in the field. The result of this is that in most

cases they do not make an arrest or help the victim get away from the situation. This can

be dangerous in numerous ways. Another issue with discretion is that it is an example of

he said she said. We are using one persons against others instead of the written law.

Many will argue that the use of discretion can be positive in a number of ways.

One of the most common arguments is that it helps police officers make decisions in

unpredictable situations.5 While it may be helpful, it can also be dangerous. With

unpredictable situation can bring unpredictable thoughts and or actions. For example, say

you were walking down the street, you have no idea that there is an armed person on the

loose that fits your description. The police see you and discern that you are the suspect

4
​Articles, Acme. "Pros and Cons of Police Discretion." Pros and Cons of Police Discretion. January 01, 1970. Accessed July 21,
2019.​ ​http://policediscretions.blogspot.com/2014/08/police-discretion.html.
5
​Articles, Acme. "Pros and Cons of Police Discretion." Pros and Cons of Police Discretion. January 01, 1970. Accessed July 21,
2019.​ http://policediscretions.blogspot.com/2014/08/police-discretion.html​.
 they are looking for, can you trust that they will make the right decision? While all

officers are different, there are those that shoot now and ask questions later. Another

argument would be that it helps the officers develop a culture of accountability for every

decision that they make.​6​ While this may help them with making more acceptable

decisions based on using protocols and policies under their department, it does not always

work. Take the previous case we talked about, ​Tolan v. Cotton​, for example. The officer

did not bother to ask Tolan what he was doing on the property. Why was his first thought

to shoot him? Was the officer aware that he was creating accountability for actions? Did

he even care? There are so many questions that could be asked, but many will go

unanswered. Another argument that is made is that discretion ​improves the officers’

courage to make personal decisions, inputs and respect to other officers’ conscience even

if the decisions made are later on revoked by their superior.6 While this may be true for

many officers, many will let this go to their heads. Even if their superiors revoke their

decisions, it does not mean that their fellow colleagues will not. Being in a police force

makes you part of one big family. The main thing that happens in a family, is that they

share ideals and morals with one another. Also, if their superiors do not revoke the

decisions they had made, it will only make the problem worse. Many of those officers

will develop what is called a God complex. When you develop one, you believe that you

control everything and everyone around you. It is very common in fields where the

associates/employees have a badge and uniform. More common than not it is based on

the fact that many police officers let the power of a badge get to their head. They forget

6
​Articles, Acme. "Pros and Cons of Police Discretion." Pros and Cons of Police Discretion. January 01, 1970. Accessed July 21,
2019​. ​http://policediscretions.blogspot.com/2014/08/police-discretion.html​.
all of their morals and could seem to care less about it. Is this really the world we want to

live in? One where we have to live in fear of the police on a day to day basis?

In conclusion, I believe that discretion should not be used by police officers. I

would rather be able to not walk down the street and hope that I am not in the wrong

place at the wrong time. When I have children, I want to have the peace of mind that the

police officers that are protecting my community/city are using all the legal protocols and

policies. I want those who have different skin color other than white and those who live

in urban areas to feel like they can live a normal life, not one in fear of being shot or

being unlawfully arrested. I want the communities all over the United States to be free of

discretion for the sake of our families and friends safety.