#6: The Powers of the Police

[RPGnet Columns]

http://www.rpg.net/columns/legal/legal6.phtml

Summary:

What can police really do?

Go to the column (http://www.rpg.net/columns/legal/legal6.phtml) for more information.

[M. J. Young]

It's a good summary.

Since you are a bona fide alien to these United States, I'll offer a bit of clarification in response to this:Whilst the UK has the everything included in a single document called the Police and Criminal Evidence Act 1984 (PACE), US legislation is more complex with some rules being issued at federal level and others at state level depending on which branch of the police service is under question.At its founding the "United States" was just that: thirteen independent "states" in the same sense that England and France were independent "states", "united" by an overarching unification treaty reasonably analogous to the European Economic Community. The powers of that central authority grew over time, first when the Articles of Confederation were replaced with the Constitution, and then gradually thereafter as the meaning of this unity expanded.

Technically, the federal government cannot make laws governing anything that happens within individual states, except in rather narrowly defined circumstances essentially found in the Constitution and its subsequent amendments, such as the Bill of Rights. One of those is that the federal government regulates interstate commerce, and so if there is a question of goods or funds crossing state lines, the federal government becomes involved. The federal government also has authority to protect the rights guaranteed by the constitution, and thus they have jurisdiction in relation to firearms, freedom of speech/assembly/religion, search and seizure, due process, and a few other areas. They are also charged with settling disputes between states, between citizens of different states, and between the citizens of any state and its own government. There are a few other aspects that fall within federal jurisdiction, but the list is still rather limited.

Everything else is left to the authority of the states individually, as sovereign states. A state can make its own laws about anything and everything, provided that it does not attempt to preempt federal law in the area. Thus California can (and does) enforce stricter air pollution standards than the Federal Government, but no state can allow what the federal government has forbidden in that area. Driving laws are decided on a state-by-state basis, and so will change when you cross state lines, because you can't possibly drive in two states at once, and therefore unless you are crossing state lines for purposes that come under the purview of the Constitution (e.g., interstate commerce), the Federal Government has no say over how you will drive.

This in turn leads to politically-oriented laws. For a long time there was a universal maximum speed limit in the United States of 55mph (roughly 85kph), because the Federal Government decided that it would attach a maximum speed limit clause to highway subsidies, so that if states wanted federal funds to pay for the maintenance of their major roads they had to post and enforce the mandated speed limit. That did not give the federal government authority to create and enforce speed limits, but only gave it muscle to get states to do so. (That speed limit has since been changed, as many states decided that it was not worth the money to enforce so low a maximum speed, so Congress raised it.)

Anyway, that's the short form introduction to states rights and federal authority, and it should throw some light on your understanding of the oddities of the American system.

Thanks again for the articles.

--M. J. Young

[L.J.Steele]

The UK system is quite well organized, tho it does have an unfortunately love of acronyms. There are also some very helpful materials, mostly designed for attorneys available:

http://www.cps.gov.uk/publications/prosecution/index.html

Edwards, Advising a Suspect in the Police Station (2006) is also quite handy, but a bit expensive for all but the most obsessive GMs. (If you are that kind of obsessive GM, ask your library if they can get it by interlibrary loan.) The book is designed as a handbook for an attorney who's been called to aid a client at the station -- what to do, what to look for, when the client should give a statement, and why.

The American system is far more complex.
I'll humbly recommend GURPS Cops, tho it may be out of print, as a starting point. GURPS Mysteries also has some guidance.

The problem is decentralization. There are hundreds of local, state, and federal agencies and offices, each with its own traditions and procedures. The federal constitution provides a general set of protections for all police -- for example, all use of force has to comply with the U.S. Supreme Court decisons in Graham v. Connor (1989) and Tennessee v. Garner (1985), but these cases provide only very broad outlines. Federal agencies will have their own procedures, and have to deal with the restrictions on searches, seizures, etc. imposed by their federal district courts (at least one per state), the federal appellate courts (regional, 11 & D.C.), and, of course, the U.S. Supreme Court.

Each state has its own constitution, which its courts can interpret to provide more broad protection than the US constitution (i.e. the rights of gays to marry in Mass.), but not less broadly (no state could, for example, disenfranchise voters by race). This can affect how search and seizure, or evidence admissibility works in that state.

FREX:
PACE requires UK police to record a custodial interrogation start-to-finish.
The U.S. Const. has not been interpreted to require it. It is against FBI policy to record interrogations -- an agent wishing to do so needs a supervisor's approval (or so they've testified). Some states, such as Mass., effectively impose a recording requirement either by statute (Texas), or by interpretations of the state constitution (Minnesota and Alaska), or by the court's interpretation of its evidence rules (Mass.).

Complex? Oh yes...

As to other places -- far more complex. The written rules may have little bearing on unwritten custom, corruption, political patronage, or misuse of force by ill-trained police.

[JRM]

What can police really do?

If you're running a historical / fictional game the equivalent of police could have quite different duties.

For example the original 'polis' were slaves guards at civic buildings in ancient Greek cities. As well as watching the building, they ran crowd control during public meeting, booted out undesirables and handled prisoners, so they resembled a cross between a bouncer and a jailer.

Some of the larger ancient Roman cities had vigiles whose primary duty was watching for and extinguishing fires. Since they spent a lot of time watching the streets they'd often come across criminal acts, so they were given powers of arrest although I don't believe they had any investigative mandate, at least not officially. They were also given the right to beat up those who neglected the fire-safety regulations, break into a building if it was on fire, or demolish it if the fire threatened to spread - to assist them into the latter vigiles had water buckets, grass-mats for smothering flames, water-pumps mounted on wagons and demolition equipment which ran from iron bars up to siege engines. The city of Rome also had the Urban Cohorts, who were basically riot police intended for fighting gangs and mobs, and the Praetorian Guard, the famous Imperial bodyguards who (obviously) had a mandate to protect the Emperor. This included investigating suspected traitors, so the Praetors could be compared to a cross between the US Secret Service and an elite military force - one that occasionally murdered Emperors for money.

I can also imagine having Science Fiction / Fantasy settings where the equivalent of police have a different range of duties - they could be a combination of paramedic and nightwatchman, for example, or be more concerned with counselling disturbers of the peace and settling disputes than investigating crimes.

[Crimsondude]

It's a good summary.

Since you are a bona fide alien to these United States, I'll offer a bit of clarification in response to this:At its founding the "United States" was just that: thirteen independent "states" in the same sense that England and France were independent "states", "united" by an overarching unification treaty reasonably analogous to the European Economic Community. The powers of that central authority grew over time, first when the Articles of Confederation were replaced with the Constitution, and then gradually thereafter as the meaning of this unity expanded.

Moreover, as far as criminal law goes federal common law (that is, major court decisions like Miranda v. Arizona) serves as a minimum basis as far as rights go (although this has only been a relatively recent development), but states can and do expand limits on rules of evidence and criminal procedure through constitutional provisions, statutes and common law.

[M. J. Young]

Mr. Steele has brought to my mind another aspect that particularly impacts referees attempting to run historical games. Crimsondude mentions Miranda v. Arizona. I'm old enough to remember a time when the Miranda warnings were a new requirement; Miranda was decided in 1966, and any case prior to that would not have included it, unless on appeal. That means that if you were arrested after Miranda, the police would pull out the cards they were issued and start reading you your rights--but before that decision, if you didn't know your rights, that was your tough luck and no one was going to alert you to these unless you happened to ask for an attorney and kept your mouth shut until you got one.

I'm not sure, but I think the similar warning requirements became law in the U.K. subsequent to that, following the American example. (The rights are different, as anyone who watches both American and British police procedural dramas and mysteries has probably noticed.)

Thus if you are attempting to run a historically accurate version of such settings, it may be necessary to figure out what the critical cases are that determine what the police can and cannot do and when each of them was decided. Getting the dates is relatively easy if you have the case names (Wikipedia will give them to you, and there are other sites such as Landmarkcases.org (which I just found) that will provide more assistance). There was a time not that long ago when the police could easily ride roughshod over many of the citizens' "rights" as long as the citizen was ignorant of the fact that they weren't allowed to do that. It's really only been in the latter half of the twentieth century that any of these practical protections were put in place. Prior to that you might be intimidated, starved, beaten, or otherwise coerced to confess, and although you might have a suit for battery against whoever attacked you (if you could identify him), as long as your confession fit the facts it could be used against you.

So when and where are both important if you're doing the historic fiction route.

I'll again mention my article series at Places to Go, People to Be (http://ptgptb.org/), Law and Enforcement in Imaginary Realms, particularly the second in the series, The Course of Law (http://ptgptb.org/0010/law2.html), which deals with police powers and citizen's rights. (All three articles are linked from this Google search page (http://www.google.com/search?as_q=Law+Enforcement+Realms&hl=en&num=10&btnG=Google+Search&as_epq=&as_oq=&as_eq=&lr=&as_ft=i&as_filetype=&as_qdr=all&as_nlo=&as_nhi=&as_occt=any&as_dt=i&as_sitesearch=http%3A%2F%2Fptgptb.org%2F&as_rights=&safe=images) for those interested in the other two as well.)

--M. J. Young