The Legal and Social Definition of Police in the United States

Much of any definition of police officers is legally codified; peace officers are one of the very few specific types of person to be legally defined in such detail and differentiated from the rest of the population (e.g., citizens or civilians), primarily by a grant of author­ity to do things that would otherwise be illegal.

Despite the extensive codification of police powers, considerable official and public ambiguity attaches to definition of the role. One can argue that a lot of the ambiguity is a matter of design. Although American police officers are not held to very strict standards of conduct, the standards are operationally defined and qualified such that the applicabil­ity of the standards to actual incidents can often be determined only after much wran­gling.

Consider the official name and definition of the job. Section 830 of the California Penal Code defines “Peace Officer” (note the difference between the title and public per­ceptions regarding the job's essential attributes) as, “Any person who comes within the provisions of this chapter and who otherwise meets all standards imposed by law is a peace officer, and notwithstanding any other provision of law, no person other those des­ignated in this chapter is a peace officer.” There follows a long list of types of peace offi­cers and cross-references, then Section 830.1 defining the peace officer's scope of au­thority to include any place in the state:

(1) As to any public offense committed or which there is probable cause to believe has been committed within the political subdivision which employs the peace officer.

(2) Where the peace officer has the prior consent of the chief of police, or person authorized by him or her to give consent, if the place is within a city or of the sheriff, or person authorized by him or her to give consent if the place is within a county.

(3) As to any public offense committed or which there is probable cause to believe has been committed in the peace officer's presence, and with respect to which there is immediate danger to person or property, or of the escape of the perpetrator of the offense.

This is a pretty broad scope of authority, with more than a little ambiguity as to what constitutes, for example, immediate danger or probable cause. Probable cause is proce­durally defined in California Penal Code, Section 991, i.e., defined in a manner consis­tent with our common law tradition that has developed, unlike civil law traditions, “with its obsession with facts and concrete situations, and its disdain for generalization and sys­tematization” (Glendon, Gordon, and Osakwe 1982: 46). Immediate danger is not de­fined in the Code, its presence or absence is determined by weighing facts and concrete situations using the same kind of process required to determine probable cause.

Despite the label of “peace officer,” it seems certain that the general public as well most police single out the use of coercive force as the defining characteristic of the job. The force has to be used in a legal or legitimate way, the definition of which contains as many shades of gray as the peace officer's scope of work. Because the duty of the officer is generally constructed as maintaining the peace and responding to public offenses, it follows that they are expected to intervene as necessary and to direct, arrest, or detain persons as required—required here means for the most parts as determined by the indi­vidual officer (cf. Davis 1975: 164-165), acting with probable cause, in response to the dictates of an immediate situation. Persons are required by law not to resist arrest by a police officer (California Penal Code, Section 834a) and this is generally (but, recently, not always) interpreted to include even a situation where the arrest may not be lawful. Boundaries on the police officer's use of force to effect an arrest are defined in the most general terms in the Code:

An arrest is made by an actual restraint of the person, or by submission to the custody of an officer.

Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance (California Penal Code, Section 835a).

When the arrest is being made by an officer under the authority of a warrant, after information of the intention to make the arrest, if the person to be arrested either flees or forcibly resists, the officer may use all necessary means to effect the arrest (California Penal Code, Section 843).

With a few notable exceptions, such as the labor movement earlier in this century, this language, or similar wording, for many years seemed to work throughout the United States, wasn't seriously scrutinized, and caused little or no grief for police, courts, or the vast majority of Americans. The second sentence in Penal Code Section 835 was intro­duced around 1957 in California, but it is only a minor reworking of the sixth of Sir Robert Peel's nine principles of policing, which holds that legitimate force is the mini­mum force necessary to secure the observance of the law or restore order. Sir Robert in­troduced his principles in the late 1820s as part of his drive to reform English policing so that the occupation no longer served “to prostitute the useful employment of a thief-taker to the procuring of both public and private rewards, at the shameful and shocking price of innocent blood.” British discontent with the practices of thief-takers, at that time, was associated with sweeping changes in the political economy of England as it became fully embroiled in the industrial revolution's dislocation (often unwillingly) of a mostly rural labor force, and as it became truly a colonial empire on which the sun never set.

Sir Robert's need to make certain that police use of force was legitimate and reason­able was directly related to a common perception that as matters stood it was often nei­ther one nor the other.

The norms which define the permissible use of violence by a policeman are appropriate to the purposes for which he is given instruments of violence. He is permitted to use force either to effectuate the official purpose of taking certain categories of criminals into custody or preventing certain sorts of crimes, or to defend himself. The law provides, however, that he use only the minimum amount of force necessary to effectuate these purpose....The critical question concerning the content of these norms, of course, is the word “reasonable.”... More frequently... the word “reasonable” is used to mark a normative concept. It is used by courts and legislatures to cover a variety of cases too wide for precise definition.

Not so long ago, police and the public in the most of the United States typically un­derstood legitimate or reasonable force to include elements of punishment as well as ap­prehension, and the use of lethal force to apprehend suspects did not draw much criticism either. Due process wasn't much on people's minds, and where the courts differed too much from public sentiment on an issue, the courts could be openly disregarded and even blamed for forcing nonjudical if not extralegal solutions to criminal behavior, as occurs in the posters advertising a reward “Dead or Alive” for apprehension of accused trans­gressors.

Neither police nor police stations today are equipped with, for example, bamboo splinters, iron maidens, acid vats, or whipping posts, but it should be recalled that flog­ging was practiced in England as late as 1948 and was still legal in some southern U.S.

Changes in the legal system and police work being wrought by external social forces and statutory law do not always manifest themselves in the Penal Code itself, although, for example, use of both “him” and “her” in Penal Code Section 830.1 to describe a po­lice chief could not have been considered necessary or descriptive of possibly factual states of affairs until very few years ago. With a few exceptions, the General Orders de­veloped in individual police jurisdictions often respond to local rulings and sentiments. Again, in line with our common law tradition, whether or not local definitions, police, and decisions can stand legal muster are matters that can be and increasingly are adjudi­cated in local, state, and federal courts on a case-by-case basis.

In court, the normative concepts of reasonable or necessary conduct as applied to any citizen, including police officers, are examined in the light of admissible evidence, and what is “admissible” also masks a normative concept. Evidence codes in the United States allow for the exclusion of evidence if, in the opinion of the court and subject to ju­dicial review, there is, e.g., “probability that its admission will (a) necessitate undue con­sumption of time or (b) create substantial danger of undue prejudice, or of confusing the issues, or of misleading the jury” (California Evidence Code, Section 352).

These remarks briefly describe the controversial status of police power, especially that involving the use of violent or coercive force, in the United States today. They are meant to show also that our common law tradition is predicated on the existence of some uniformity in and acceptance of norms applied by the public to human conduct and judgment, and to indicate certain conditions destructive of normative uniformity that have developed in our society over the past several decades. In the following section we describe “police” powers in a number of other societies and times, and consider what an­thropologists and other scholars have been able to infer based on knowledge of this broader cultural and historical context. Finally we examine changes regarding police use of force that have occurred in a specific local U.S. jurisdiction during the last thirty years.