FBI Law Enforcement Bulletin - July02leb

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Domestic Violence in LawEnforcement Relationships

By Karen J. Kruger andNicholas G. Valltos

High-Speed Police Pursuits By John Hill

Investigating InternationalTerrorism Overseas By Michael J. Bulzomi

1

July 2002Volume 71Number 7

United StatesDepartment of Justice

Federal Bureau of InvestigationWashington, DC 20535-0001

Robert S. Mueller IIIDirector

Contributors’ opinions and statementsshould not be considered an

endorsement by the FBI for any policy,program, or service.

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Agencies must provide their officerswith appropriate pursuit training andclear pursuit policies.

A comprehensive approach can helplaw enforcement agencies combatdomestic violence in their ranks.

25

14

Officers investigating terrorist acts mustunderstand how the Constitution affectstheir actions in foreign countries.

20 PerspectiveThe Problem with Gratuities

24 Book ReviewDigital Evidence and Computer Crime

July 2002 / 1

Domestic violence remains aprevalent social and lawenforcement problem in the

Dealing with Domestic Violencein Law Enforcement RelationshipsBy KAREN J. KRUGER, J.D., and NICHOLAS G. VALLTOS, M.A.

United States, and the public de-mands that law enforcement agen-cies work aggressively to prevent it.Sadly, several studies show that toomany law enforcement officersthemselves commit acts of domesticabuse,1 which is not only devastat-ing to the families of these officersbut also damaging to the agenciesand communities that they serve.This unlawful behavior underminesthe credibility and effectiveness of

the officer and diminishes the stan-dards of the department and theprofession.2

As law enforcement respondsto the demands of the communityfor stronger enforcement of domes-tic violence laws, it cannot ignorethose within its own ranks whocommit the same offenses. Law en-forcement managers must respondwhen domestic violence occurswithin the ranks—to enforce thelaw, to protect the integrity andreputation of the agency, and toreflect the ethical standard of

stewardship expected of law en-forcement leaders.

Responding appropriately andadequately when domestic violencehits “home” often is not as easy as itmay sound. The problem comprisesmany issues and requires a compre-hensive approach, involving leader-ship, recruitment screening, poli-cies and procedures, training, andviolation investigation and re-sponse. As always, because stateand local laws may vary, read-ers should consult their legal advi-sors before embarking on a new

© Don Ennis

2 / FBI Law Enforcement Bulletin

Major Valltos recently retiredfrom the Prince Georges’ County,Maryland, Police Department.

Ms. Kruger is an assistantattorney general for the stateof Maryland in Baltimore.

departmental policy and responseplan. Be forewarned, however, lawenforcement administrators shouldnot delay in implementing such aplan. The next family tragedy couldfall squarely on anyone’s doorstep.

Step One: LeadershipEffective law enforcement ex-

ecutives lead both by example andby setting clear expectations for thebehavior of those who serve underthem. The first step in establishingan effective intradepartmental re-sponse to domestic violence in-volves the leader demonstrating in-tolerance for such behavior,speaking out against it, and standingas an advocate for those who areharmed by it. Leaders’ public poli-cies, established for enforcement bythe officers in their communities,must remain consistent with thosethat they establish for their law en-forcement personnel.

Domestic violence has manyfaces and harms many victims. It

proves critical that administrators’messages address all of the forms ofprohibited conduct to place all per-sonnel fairly on notice and to deterall family violence. To have an ef-fective message, managers musthave a good understanding of thedynamics of domestic violence.

Domestic violence is defined,in part, by the nature of the relation-ship between two individuals and,in part, by the conduct of the of-fender. It includes abuse inflictedon spouses; children; older or other-wise vulnerable adults, includingparents; and any other persons simi-larly situated to a spouse, child, orparent. The abusive conduct may bephysical, sexual, emotional, orfinancial.

The behaviors identified as do-mestic violence are varied, but haveseveral common unique character-istics.3 First, it occurs within anintimate relationship. Officers maycommit physical violence against afamily member that they never

would consider inflicting on acriminal suspect, in part, because ofthe perceived “safety” of the inti-mate relationship. Second, domes-tic violence is a learned behavior; itcannot be attributed to genetics, ill-ness, use of alcohol or other drugs,or stress, although these elementsmay increase the likelihood thatviolence will occur. Behavior islearned and reinforced as an accept-able, or even expected, way ofbehaving toward family members.Finally, domestic violence is recur-rent and generally follows a cycleand involves various abusivebehaviors.

Keeping all of this in mind, lawenforcement administrators mustexplore ways of helping their em-ployees avoid violence in theirpersonal relationships. To have aneffective approach to officer-involved domestic violence, man-agers must begin with—

• a good understanding of thedynamics of domestic violenceand the magnitude of theproblem;

• a commitment to addressingthe problem and the support ofother top members in doing so;

• an ability to create a culture ofdisapproval of abusive behav-ior and the means to communi-cate that position; and

• the resources to followthrough on the commitment.

Step Two: RecruitmentScreening and BackgroundInvestigations

Ironically, individuals whomake good law enforcement offi-cers often share some personality

July 2002 / 3

traits with those who batter or abusetheir family members, such as theinclination to maintain control inemotional and tense circumstances,the tendency to establish a positionof power and authority, and thephysical presence to use weaponsand other methods of physical con-trol when needed.4 However, everypolice recruit also must demon-strate the ability to recognize andcurtail inappropriate, aggressive be-havior. Those who cannot must bescreened out during the recruitmentprocess.

Because domestic abuse is alearned behavior, effective back-ground investigations, including apolygraph examination and a medi-cal/psychological screening, canhelp identify potential or currentbatterers. The background investi-gation must include a thorough in-terview with all immediate familymembers to determine the existenceof any domestic violence during thepotential recruit officer’s formativeyears. The applicant investigatormust probe this extremely delicateand private matter with sensitivityand understanding. Because of thelearned behavior aspect of domesticviolence, this line of questioningproves absolutely essential becauseit represents one of the best predic-tors of possible future domestic vio-lence.5 Investigators should ques-tion each family member in alimited but direct manner, using ap-propriate follow-up questions asnecessary. Some pertinent ques-tions include the following:

• Have you ever been the victimof domestic violence?

• Have you ever witnessed anact of domestic violence

against a member of yourimmediate family?

• Are you aware of an act ofdomestic violence committedby a member of your immedi-ate family against anyone?An affirmative answer to any of

these questions may not suffice asthe sole basis for disqualifying anapplicant. However, it providesanother avenue for the applicantinvestigator to explore and certainlyis an area that the investigatorshould share with the mentalhealth professional conducting thepsychological evaluation of theapplicant.

how it will deal with court orders,and the necessity of psychologicalfollow-up.

In general, agencies can andshould have simple and straightfor-ward policies. Two standard regula-tions will apply to most of thesesituations: conduct unbecomingand failure to conform to law.Agencies also should promulgateregulations that are specific to do-mestic abuse, in part, to underscoreits significance and to serve as adeterrent.6

Agencies should require offic-ers to immediately report any in-stances in which they are the re-spondent to any ex parte protectiveand peace order, and the supervisorshould make appropriate commandnotification. At the command level,managers should determine investi-gative responsibility: first-line su-pervisor or internal affairs, depend-ing on the seriousness of the allegedconduct. Investigators should beginwith in-person visits to the victimsto ensure their safety and topromptly collect any evidence re-lated to officer misconduct. Admin-istrators also must make a decisionconcerning the seizure of any de-partment-issued equipment, espe-cially firearms, from a liabilitystandpoint. At this point, involvedofficers should receive a psycho-logical referral prior to returningto duty. Agencies also should con-sider reciprocal agreements withsurrounding jurisdictions to ensuretimely, official notification ofofficer-involved domestic violence.

Step Four: Training

The key to any long-term strat-egy in preventing domestic violence

Step Three: Policiesand Regulations

To institutionalize an agency’s“zero tolerance” for domesticviolence, administrators must havelegally based policies and regula-tions (e.g., “General Orders”) inplace to articulate their agency’sposition. Additionally, the policyshould state clearly and succinctlythe potential punishment and otherrepercussions for any violation as-sociated with domestic abuse mat-ters, including the agency’s in-tended administrative response,


is based on training. To institution-alize an agency’s zero tolerance fordomestic violence, the departmentinitially should train recruit officersin all aspects of domestic violence.Recruit officers should learn notonly about the dynamics of domes-tic violence as it pertains to citizensbut also, more specifically, aboutthe silent problem of officer-in-volved domestic violence. As offi-cers progress in their careers, theyshould have the lessons theylearned in basic training reinforcedthrough periodic in-services.

This emerging phenomenon ofofficer-involved domestic violencehas placed on-duty officers in con-frontation with other police officerswho are overwhelmed by a personalcrisis situation. The calm profes-sional demeanor usually displayedby the participant officer now maybe replaced with the emotionallydistraught bearing of an individualwho may not be thinking in a ration-al manner.

To better prepare officers forthis phenomenon, training mustcover a broad spectrum of activi-ties, including response, tactics, andofficer safety. Classroom instruc-tion should encompass the originand history of domestic violenceand should include a history of of-ficer-involved domestic violence,perhaps using adjudicated depart-mental cases generically to ensureconfidentiality. The field strategiesand techniques in which the officersare trained should be aimed at of-ficer and participant safety. The useof role-playing and group forumsrepresent excellent training modelsthat interactively involve officers indiffusing and mediating domestic

violence. In addition, some law en-forcement executives, who wouldsay that they “think outside thebox,” should assign new police of-ficers to work several hours takinghotline calls at their local domesticviolence crisis center.

Employing trained practitio-ners (whether in-house employeeassistance personnel or privatemental health providers) as instruc-tors and facilitators brings re-sources and experience, in a theo-retical sense, that range fromgeneral to specific relevance of do-mestic violence. The use of these

practitioners should present the in-formation because of their uniqueinsight into personal crisis situa-tions. The incorporation of a “prac-titioner” approach gives the officerssignificantly more tools in their ar-senal and could create a new foun-dation of how they, as law enforce-ment professionals, can handledomestic calls more effectively.

The practitioner also can proveinvaluable in the area of supervi-sory and command in-service train-ing, providing an overview of howto conduct basic crisis assessmentthat can lead to a more appropriateavenue of referral. This importantstep, in the initial stages of domesticviolence situations, could representthe most effective vehicle, short ofphysical arrest, at an agency’s dis-posal by which it can mitigate, andactually prevent, officer-involveddomestic violence. Supervisors alsomust learn to recognize the riskfactors and behavioral clues thatpeople who are abused or are com-mitting abuse commonly exhibit. Itis, in the first instance, the super-visor’s responsibility to monitorsuch factors and to refer employeesfor appropriate counseling, educa-tion, and support as an early inter-vention technique.

Step Five: ViolationInvestigations

The passage of new laws andthe increased media attention on thenumber of officer-involved domes-tic violence cases has prompted po-lice administrators to critically as-sess their agencies’ responses tothis emerging crisis. Every agencyshould respond with a comprehen-sive approach to the underlying

same practitioners in family andgroup orientations constitutes anexcellent, nonthreatening outreachmodel to educate the families of re-cruit officers, as well as veteran of-ficers, in intervention, resolution,and prevention strategies.

In-service and roll-call trainingshould reinforce the initial instruc-tion that all officers receive, withupdates that focus on contem-porary issues and trends in domes-tic violence. Once again, trained

July 2002 / 5

problems and not merely with a su-perficial quick fix.

Depending upon the unique cir-cumstances of each case, agenciesshould have their internal affairspersonnel immediately conductan inquiry into the facts of the case.The results of this inquiry willdictate the need for a formal inter-nal investigation. This investigationshould follow established agencyprotocol for criminal misconductcases. If criminal charges arepending, the prosecutor’s officeshould screen the case; if theprosecutor declines to prosecute,the investigator should obtain awritten declination.

If and when criminal or admin-istrative charges are imposed, agen-cies must suspend involved offi-cers’ police powers and reclaimtheir weapons and departmental ve-hicles. Administrators should orderthat these officers be placed in anoff-duty status and that they receivepsychological evaluations to deter-mine their fitness for any type ofduty.

If the psychologist determinesthat the officers are fit for duty,agencies may transfer them fromleave to noncontact assignments un-til the criminal charges are adjudi-cated. Internal affairs investigatorsshould attend all hearings related tothe cases to ensure that the agenciesremain aware of all case develop-ments. If agencies contemplate re-storing the officers to full duty priorto the adjudication of administra-tive charges, if any, they should un-dertake such a decision cautiouslyand in concert with their psycho-logical examiners, internal affairspersonnel, the officers’ command-ers, and legal advisors.

If officers return to full dutyduring the course of a criminal orinternal investigation, their supervi-sors should conduct periodic fol-low-ups to ensure that the officersfully comply with any applicablecourt orders. Administrators mayfind it prudent to issue a personnelorder that concurs with, or evenexceeds, the terms of a court orderor stands in the place of such or-ders. If officers violate these stand-ing orders, agencies immediatelyshould suspend these officers fromduty and initiate an investigationinto charges of insubordination, ifappropriate.

Step Six: Violation ResponsesIf a deliberate, proactive inves-

tigation establishes evidence thatan officer has committed acts ofdomestic abuse, agencies musttake prompt and effective disciplin-ary action. In many jurisdictions,agencies can impose disciplinaryaction only after they have pre-scribed an administrative, eviden-tiary hearing. To be effective,

agencies must consider certain de-tails to ensure a successful adminis-trative prosecution.

If the suspect officer has beencharged criminally, the administra-tor and legal advisor may determinethat it is wise to defer an administra-tive investigation until the criminalprosecution is completed. How-ever, even in the interim, the agencymust take steps to both protect itsadministrative investigation andguard against liability while thecriminal charges are pending. If theadministrator decides not to delaythe administrative investigation, theagency must keep it separate fromthe criminal case.7

While either the criminal or theadministrative investigation re-mains pending, the agency mustconsider whether the facts indicatethat it should revoke the officer’spolice powers or suspend the officerfrom duty, pending resolution. Gen-erally, an agency should suspendthe police powers of any officerwho is under investigation for cred-ible or substantial allegations of

Officers are trained to separate the domestic complaintants to hear both sides ofthe story. The officers position themselves so they can see each other during theencounter and will later compare notes to determine a fair and safe outcome.


domestic violence. Multiple rea-sons underlie this recommendation.

First, applicable court orders ina given case may prohibit a respon-dent officer from possessing a fire-arm as long as the order is in effect,thereby prohibiting the officer fromperforming some essential job func-tions. Second, officers embroiled indomestic problems may be temptedto misuse their police powers andequipment in a misguided—or evencriminal—effort to manage thoseproblems. Such inappropriate ac-tions could create civil liability foragencies. Third, the public may sus-pect the integrity, impartiality, andeffectiveness of an officer under in-vestigation for domestic abuse. Itparticularly would be inappropriatefor such officers to respond to do-mestic calls.

Agencies also should preparethe administrative prosecution un-der the assumption that the victimof the domestic abuse will be unableor unwilling to testify against theabuser.8 It is all too common a fea-ture of domestic abuse situationsthat once an acute episode is over, a“honeymoon phase” occurs in therelationship, causing the victim torethink punishing the abuser.9 How-ever, if the internal affairs investi-gators have followed the same stepsas criminal investigators wouldhave under the circumstances andobtained the necessary evidence,such as reporting to the scene on theinitial call, securing the 911 audiotape, taking crime scene and follow-up photographs, obtaining state-ments, and collecting documentsand court transcripts, an administra-tive prosecutor can prepare andpresent a successful case.

Following adjudication of themisconduct charges, administratorsmust determine the appropriatepunishment. If the officer suffered acriminal conviction from the under-lying domestic events, terminationof employment is appropriate innearly every case.10 Moreover, azero tolerance policy would seem todictate that dismissal constitutes theexpected punishment absent somecompelling mitigating circum-stances. In other words, it is theunusual case in which the officershould not be fired.

However, many officers feelthat they can reason with their fel-low officer who is involved in adomestic dispute. Responding of-ficers seem to fail to realize thatthey are not dealing with a rational,level-headed law enforcement of-ficer, but, rather, a police officer,man or woman, engaged in a fightwith a “significant other” and over-whelmed with heated emotion. Theinvolved officer knows every tacticand ploy and may have received thesame, if not more, specialized train-ing than the responding officers andmay outrank them. The involved of-ficer has ready access to a serviceweapon, as well as other defensiveweapons, such as pepper spray, thatthe officer could use offensively.And, the involved officer invariablyknows that the domestic eventscould result in dismissal from theagency. Often, the victim is awareof this probability as well.

Administrators have an obliga-tion to institutionalize agency re-sponse to officer-involved domesticviolence/disturbance cases and sup-port the officers who attend to thesecalls. In addition to the basicreports, appropriate supervisoryand command notification, whetherthe officer is employed with the re-sponding agency or not, should oc-cur. Agencies should mandate thisnotification, with variations to thereporting procedures by supervi-sory approval only.

If an agency allows its officersto treat officer-involved domesticviolence/disturbance cases differ-ently from those involving othercitizens, the agency could faceserious liability issues—specifi-cally, allegations of deliberate

Step Seven: RelatedProblems and Concerns

Responses to officer-involveddomestic violence/disturbancecases pose a variety of problems forthe law enforcement administrator.How the responding officers handlethe unique situation in which a fel-low officer is a suspect representsone of the most significant. The re-sponse to these calls is far from rou-tine and, in fact, should trigger ahigher level of caution in respond-ing officers.

indifference with regard to thevictim’s well-being. If officer-in-volved domestic violence becomesmore prevalent, the agency needs toenhance proactive strategies in han-dling and reporting protocols.

Citizens, as well as law en-forcement employees, demand thebest from those who direct publicsafety activities. Promoting effec-tive policies and contingencies topersonal crises within law enforce-ment’s ranks is the least that theprofession can do to better serveeveryone.

ConclusionWhile domestic violence cre-

ates a repugnant reaction in everycivilized human being, the thoughtthat those who protect and serve thepublic also may participate in suchoffenses goes beyond most people’scomprehension. Unfortunately, thisproves true in all too many cases.The law enforcement communitymust unite in an effort to eradicatesuch behavior from its ranks notonly to restore the public’s faith andtrust in the profession but, more im-portant, to show that it will not tol-erate such actions by any indi-vidual, regardless of position orauthority.

Law enforcement agencies canimplement several strategies tocombat domestic violence in theirranks. Most require a comprehen-sive approach that includes effec-tive leadership, recruitment screen-ing, straightforward policies andprocedures, appropriate training,and efficient violation investigationand response. By incorporatingsuch actions into their daily efforts,agencies can safeguard its membersand their families from the toll that

The opinions expressed in this articleare the authors and not those of theMaryland attorney general or his staff.

domestic violence takes on the lawenforcement community and thecitizens it serves.

Endnotes1 Darrell L. Sanders, “Responding to

Domestic Violence,” Police Chief, June 1997,6.

2 For a comprehensive overview, see U.S.Department of Justice, Federal Bureau ofInvestigation, Domestic Violence By PoliceOfficers (Washington, DC, 2000).

3 Lenore Walder, The Battered Woman(New York, NY: Harper-Row, 1979), 43.

4 Supra note 2, 15.5 Stephen F. Curran, Ph.D., “Law Enforce-

ment Response to Domestic ViolenceCommitted by Police Officers: Pre-EmploymentSelection,” lecture at annual conference of theInternational Association of Chiefs of Police,November 2000; Patricia Tjaden and NancyThomas, U.S. Department of Justice, Office ofJustice Programs, Extent, Nature, andConsequences of Intimate Partner Violence:Findings from the National Violence AgainstWomen Survey (Washington, DC, July 2000);Douglas R. Marvin, “The Dynamics ofDomestic Abuse,” FBI Law EnforcementBulletin, July 1997, 13-18.

6 See a model policy endorsed by theInternational Association of Chiefs of Police,“Officer-Involved Domestic Violence ModelPolicy,” IACP National Law Enforcement: ACompilation of Model Policies, Volume IV,Section 77, April 1, 1999; and as a state model,see the “Model Regulation for Law Enforce-ment Agencies Relating to Domestic ViolenceCommitted by Law Enforcement Officers”issued in 1997 by the Legal Advisors Com-mittee to the Maryland Chiefs of PoliceAssociation.

7 Supra note 6 (IACP).8 George Wattendorf, “Prosecuting Cases

Without Victim Cooperation,” FBI LawEnforcement Bulletin, April 1996, 18-20.

9 Douglas R. Marvin, “The Dynamics ofDomestic Abuse,” FBI Law EnforcementBulletin, July 1997, 13-18.

10 Under 18 U.S.C. 922 (g) (9), a personwho is convicted of a misdemeanor crime ofdomestic violence is prohibited from possessinga firearm or ammunition.

July 2002 / 7

Wanted:Notable Speeches

he FBI Law EnforcementBulletin seeks transcriptsT

of presentations made by crim-inal justice professionals forits Notable Speech depart-ment. Anyone who hasdelivered a speech recentlyand would like to share theinformation with a wideraudience may submit a trans-cript of the presentation to theBulletin for consideration.

As with article submis-sions, the Bulletin staff willedit the speech for length andclarity, but, realizing that theinformation was presentedorally, maintain as much ofthe original flavor as possible.Presenters should submit theirtranscripts typed and double-spaced on 8 1/2- by 11-inchwhite paper with all pagesnumbered. When possible, anelectronic version of the tran-script saved on computer diskshould accompany the docu-ment. Send the material to:

Editor, FBI LawEnforcement BulletinFBI AcademyMadison Building,Room 209Quantico, VA 22135telephone: 703-632-1952,e-mail: [email protected]


On a rainy November night in a large south-ern city, a uniformed patrol officer, 38years of age with less than 12 years of law

enforcement service, was assigned to a one-person,marked patrol vehicle. He received a radio broadcastto respond to assist other officers working a burglaryassignment at a local school. The responding officerheard the officers on the scene request help after theyobserved a male inside the school. He then realizedthat this was not just another accidental burglaryalarm that frequently goes off on rainy nights.

The rain was the first the city had received in overa month, making the asphalt streets very slick. Theofficer activated his emergency equipment andheaded toward the school. At a curve in the roadway,the officer lost control of his vehicle and slid into atree. He never arrived at the school; he was killed onimpact. It took rescue personnel several hours to cutthe officer out of the vehicle. The accident reconstruc-tion team estimated his speed at less than 50 miles perhour. This was within the speed limit, but unsafe forthe existing road conditions at that time. The officer’sdeath was very traumatic for his department, fellowofficers, and the community he served.

Unfortunately, this type of incident is not iso-lated, and statistics reflect that these types of acci-dental deaths are increasing throughout the UnitedStates.1 In the past two decades, 1,407 officers havedied feloniously in the United States while 1,362officers have died accidentally. However, in 1998, astartling change in this trend began to emerge. Thenumber of accidental line-of-duty deaths surpassedthe number of officers killed by felons. A dramaticshift in 1998 showed that 20 more officers died inaccidents (81) than due to criminal action (61). Thisclimb continued in 1999 with 23 more officers dyingaccidentally (65 to 42) and culminated in 2000 with33 more officers losing their lives in accidents thanin felonious incidents (84 versus 51).2

These numbers become more disturbing and ofeven greater concern when seen in a broader context.Many officers are involved in various types of on-duty accidents that do not result in their death.Unacceptable numbers of these officers are confinedto beds, wheelchairs, or otherwise totally disabled.Many others, although not totally disabled, will neverwork in law enforcement again. Moreover, mostofficers personally know at least one fellow officer

Accidentally DeadAccidental Line-of-Duty Deaths

of Law Enforcement OfficersBy ANTHONY J. PINIZZOTTO, Ph.D.,

EDWARD F. DAVIS, M.A.,and CHARLES E. MILLER III

Research Forum

© Mark C. Ide

July 2002 / 9

disabled through some type of on-duty accident.Clearly, the law enforcement community must exam-ine ways to reduce these tragedies that increasinglyare decimating its ranks.

CONTRIBUTING FACTORSTO ACCIDENTAL DEATHS

The authors’ experiences and research suggest thatmany factors have contributed to reducing the numberof felonious deaths over recent years.3 These includeimproved training practices and procedures and in-creased supervision directed toward safety concernsduring high-risk tactical situations.

To try and uncover what has led to the dramaticincrease in accidental line-of-duty deaths, the authorsexamined 5 years (1996-2000) of data pertaining tothese incidents. They had a twofold purpose: first,to describe similarities and differences that surfacedduring the examination of accidents that resulted inthe deaths of law enforcement officers and, second, toraise a number of questions and issues that officersand administrators should consider to reduce thenumber of officers accidentally killed in the lineof duty.

The authors used data from the FBI’s annual LawEnforcement Officers Killed and Assaulted (LEOKA)

report, which contains statistics not only regardingfelonious killings but also information about acciden-tal deaths. An analysis of the circumstances in rela-tion to these accidental deaths indicated severalfactors that the authors compared with the resultsof their earlier research regarding felonious deathsand assaults. In these previous studies, behavioraldescriptors surfaced for officers feloniously killedand assaulted, including being hardworking, notfollowing departmental rules, and tending to perceivethemselves as service oriented.

Currently, no behavioral descriptors exist forofficers who have died accidentally. However, afterreviewing annual LEOKA data and interviewing alimited number of peers and supervisors of officersaccidentally killed, the authors found that severalcharacteristics emerged. These included a certainmind-set of some officers who think, “It will neverhappen to me,” regarding the possibility of an acci-dental, duty-related death. These officers seemed topossess an increasing feeling of invincibility wheninside a departmental vehicle. A sense of invincibilityoften accompanies a higher level of risk-taking be-havior. For example, one officer, off duty and drivinghome in his cruiser, observed a disabled vehicle in anice storm. The officer stopped in the middle of the

Circumstances Total 1996 1997 1998 1999 2000Total 344 51 63 81 65 84Automobile accidents 197 33 33 48 41 42Motorcycle accidents 23 4 4 3 6 6Aircraft accidents 19 0 4 4 4 7Struck by vehicles 59 7 15 14 9 14

Traffic stops/roadblocks 22 4 4 4 3 7Directing traffic/assisting motorists 37 3 11 10 6 7

Accidental shootings 12 2 1 3 3 3Other (e.g., drownings and falls) 34 5 6 9 2 12

Source: U.S. Department of Justice, Federal Bureau of Investigation, Law Enforcement Officers Killed andAssaulted 2000 (Washington, DC, 2001), 64.

Circumstances of Accidental Deaths1996-2000


highway to determine if the driver needed help andwas struck accidentally and killed by a vehicle thathad lost control. Consistent with the attributes ofofficers killed and assaulted in the line of duty, thisofficer was hardworking and service oriented.

These descriptors pertain to the majority of offi-cers, regardless of their age or years in law enforce-ment. However, when combined with other factorsthat the authors have uncovered, these attributes canincrease the potential of an accidental fatality. Theother factors include an officer’s particular level ofperformance comfort and a lack of in-service training.

Increasing Comfort LevelOfficers develop a particular level of performance

comfort, or a “comfort zone,” by successfully com-pleting various law enforcement tasks over anextended period of time. This comfort zone interactswith their sense of invincibility, enabling officers totake greater risks. These risk-taking behaviors oftenresult in successful outcomes that, in turn, lead tocommendations by their agencies for performanceabove and beyond the call of duty. The greater therisk, the higher the reward. Hardworking officers

• To be of assistance to anyone, the officermust arrive safely.

• A great percentage of electronic alarms arefalsely activated.

• Officers must know their physicallimitations.

• Officers must understand that their physicallimitations increase while driving at night.

• Officers must accept vehicle limitations,especially taking into account weather androad conditions.

• Officers must balance the benefit of aparticular arrest with the possible damage tothe community and citizens by having anaccident.

Safety Issues

Characteristics of Officers Killedin Vehicle Accidents

• Mid-30s with approximately 10 years of lawenforcement service

• Works hard and takes risks

• Possesses sense of invincibility (e.g., “It won’thappen to me.”)

• Develops performance comfort (e.g., a “com-fort zone”) from years of successfully carryingout duties

• Lacks motor vehicle in-service or refreshertraining

• Pursues misdemeanor property crime suspectsunder high-risk conditions more often thanless-experienced counterparts

who observe coworkers win such awards attempt toincrease their productivity by learning shortcuts thatoften involve greater risk-taking behaviors.

Because these officers have succeeded in thesehigh-risk situations for many years, their sense thatan accidental fatality “will never happen to me”increases. In 1996, researchers examined 246 situa-tions of law enforcement vehicle pursuits.4 Theyconcluded that veteran officers were more likely toengage in pursuit of misdemeanor property crimesuspects under high-risk conditions than were theirless-experienced counterparts.

Diminishing Physical SkillsOperating a police vehicle involves a set of

physical skills that officers develop during academytraining. Unlike weapon proficiency, where a set ofphysical skills continually are reinforced through in-service training programs, driving skills rarely, ifever, are augmented through in-service training. Thislack of periodic training leads to an eventual erosionof the motor skills needed for emergency driving. Onestudy stated, “Although many police officers andsupervisors recognize the inherent dangers of pursuit

July 2002 / 11

Training ProceduresBasic motor vehicle training has helped law

enforcement recruits develop successful and safedriving skills. As in other areas of law enforcementsafety, agencies should tailor the specifics of trainingto address their own needs. For example, agenciesshould use national law enforcement data on acciden-tal deaths only as a point of reference when makingdecisions that affect local training needs. Weatherconditions; roadway construction; volume of vehicu-lar and pedestrian traffic; jurisdictional/geographic

size; diverse sizes, types, andmanufacturers of vehicles em-ployed; and different departmentalpolicies represent variations thatagencies should consider. Manag-ers first should analyze their owndepartment’s accidents, as wellas those from similar jurisdictions,to identify correctly areas wheretraining will provide the greatestbenefit to the patrol officer.

The results of these analysescan assist law enforcement man-agers in identifying importantproblems that they can address

through in-service training. Common areas of concernmay include, but are not be limited to, the following:

• Is speed a primary contributing factor?

• What particular shift or time of day do theaccidents generally occur?

• Is fatigue (perhaps resulting from tour of duty,court attendance, overtime, or part-time employ-ment) a possible factor?

• Does a correlation exist between vehicular deathsand officer activity type (e.g., patrol, emergencyassistance, nonemergency assignment, vehiclepursuits, or traffic stops)?

Safety Supervision

Subsequent to an accidental, as well as a felo-nious, death of an officer, many questions occur.Should the officer have initiated a vehicular chase?Should the officer have given or requested more

and are making efforts to control them, this studyreveals a lack of initial and continuing training onthe issues involved.”5

In contrast to actuarial data from automobileinsurance companies that show males under the ageof 25 are more likely to be involved in vehicularaccidents, law enforcement officers face a differentexperience. In law enforcement, once these physicalskills have diminished and an increased sense ofsecurity has developed, officers in their mid-30s withapproximately 10 years of law enforcement experi-ence face a greater risk of dying ina duty-related automobile acci-dent,6 the primary cause of acci-dental law enforcement deaths(197 officers died from 1996-2000).7 The next leading, albeitsignificantly lower, cause of deathinvolves officers struck and killedwhile out of their vehicles (59officers died from 1996-2000).8

This category includes situationswhere officers engage in trafficstops, investigate accidents, orrender assistance to operators ofdisabled vehicles. Again, periodicin-service training highlighting the dangers of suchactivities while providing supplementary instructionin safely handling these assignments could helpreduce accidental deaths.

REDUCING ACCIDENTAL DEATHSIn the authors’ previous studies of felonious

deaths and assaults on officers, training surfaced as akey factor in reducing the number of felonious deathsand assaults.9 In reviewing data on accidental deaths,they found that no easy answers exist to the compli-cated problem of reducing accidental deaths in thelaw enforcement profession. Rather, they discoveredquestions, considerations, and factors for agencies toconsider within the scope of their own department’ssize, area of patrol, number and kinds of vehicles,budget, and demographics. Overall, four main issuesemerged as needing review: training procedures andtactics, safety supervision, equipment checks, andfurther data analysis.


information from the dispatcher before engagingemergency equipment? Should the officer havestopped the chase earlier? Did the officer follow allestablished policies and guidelines? With closer,timely, and aggressive supervision, some of thesequestions can be addressed during the activity inquestion.

When supervisors closely monitor activitieswithin their location, they are more aware of possibledangers that might be reduced before an officer is hurtor killed. This in no way removes the necessarydiscretion that officers should have in their everydaywork. Rather, what supervision might offer is a moreobjective evaluation ofthe set of circum-stances that has turnedinto a highly emotionaland volatile scene.Agencies shouldanswer some basicquestions to discoverhow they can providetheir officers with thebest supervision toensure their safety.

• Have agencymanagers writtenand implementedpolicies for the safeoperation of motor vehicles (e.g., the mandatorywearing of seat belts)?

• Do the written policies clearly specify the typeof radio assignments designated as emergencysituations?

• Do the written policies clearly define whenofficers may conduct high-speed pursuits andwhen they must discontinue them?

• Do all supervisors enforce these written policies?

• Does the agency reevaluate and alter the policiesas needed?

• Do supervisors ensure that departmental vehiclesare inspected regularly and are in compliancewith local safety regulations?

• Do supervisors of officers regularly monitoremergency dispatched assignments and individualresponses?

• Do supervisors respond to and monitor propervehicle placement and stop location selectionsites for personnel?

• Do supervisors ensure that officers attend peri-odic safety-related in-service training?

Equipment ChecksTraditionally, equipment checks of vehicles in

many departments merely meant that sergeants notedwhen cruisers or patrolcars received regularservice. This fre-quently covered onlysuch items as changingthe oil, ensuring thatemergency equipmentfunctioned properly,and repairing majorobservable damage tothe vehicle. Recently,however, a moreaggressive approach tovehicle maintenancehas begun to entail notonly the vehicle but

also how an officer operates the vehicle. Supervisorsneed to become more alert to the dangers in whichofficers sometimes place themselves by improperlyusing their vehicles, a tool that sometimes can causemore damage than the weapons they carry. In addi-tion, law enforcement officials and managers shouldbecome aware of potential hazards that added fea-tures on vehicles (or their absence) could present toofficers.

• Are departmental vehicles purchased based onprice or safety considerations?

• Are airbags safer than harness restraints?

• Are vehicles equipped with side air bags neces-sarily any safer?

• Are electronic door locks a help or hindrance inan accident?

© Mark C. Ide

July 2002 / 13

• Is the location of the fuel source of the vehicleacceptable by national safety standards?

• Are antilock braking systems required for agencyvehicles?

• Is the installation of governors (speed regulators)on agency vehicles feasible, acceptable, desirable,or counterproductive?

• Would wearing a safety helmet by officersoperating agency vehicles significantly decreasetheir chances for injury?

Data AnalysisDifferences in the size, type, and location of law

enforcement agencies allow for only general recom-mendations and guidelinesregarding the safe use of vehiclesin law enforcement. Therefore,agencies should research andanalyze what is occurring withintheir own departments. Agenciesof any size might benefit fromdeveloping a working relationshipwith local colleges, universities,and technical institutes to collectand analyze various aspects of thecomplex phenomenon of acciden-tal deaths in law enforcement.Such institutions may have freshand innovative insights into thisproblem. The more information gathered and ana-lyzed, the greater the likelihood that appropriate andapplicable answers may be found and, ultimately,result in lives saved.

CONCLUSION

When law enforcement officers die in the perfor-mance of their duties, their agencies, their familiesand fellow officers, and the communities they servesuffer greatly. While those deaths attributed tocriminals represent truly tragic occurrences, thosecaused by accidents, especially vehicle accidents,often create the additional heartache of unresolvedissues about the reasons for these incidents. In theformer, agencies capture the offenders and the court

Dr. Pinizzotto is a clinical forensic psychologist in theBehavioral Science Unit at the FBI Academy. Mr. Davisis an instructor in the Behavioral Science Unit at the FBIAcademy. Mr. Miller is an instructor with the FBI’s CriminalJustice Information Services Division in Clarksburg, WestVirginia.

system renders justice. In the latter, who resolves an“accident?” The officer is just as dead; the family isjust as devastated; the loss is just as tragic, perhapseven more so because it may have been preventable.

Everyone within the law enforcement communityhopes that the day will arrive when felonious killings,serious assaults, and accidental deaths are only a partof law enforcement’s history. However, realistically,the profession accepts the sad, but inevitable, realitythat deaths and assaults will continue to occur.Although they may continue, law enforcementagencies, local governments, civic groups, andacademic institutions can work toward reducing theirnumber by analyzing past incidents, developing newtraining procedures, and reminding officers of the

dangers inherent in the profes-sion. The dedicated men andwomen of law enforcement whotirelessly serve and protect thepublic deserve no less.

Endnotes1 U.S. Department of Justice, Federal

Bureau of Investigation, Law EnforcementOfficers Killed and Assaulted 2000 (Washing-ton, DC, 2001).

2 Ibid.3 U.S. Department of Justice, Federal

Bureau of Investigation, Killed in the Line ofDuty (Washington, DC, 1992); and Anthony J.Pinizzotto, Edward F. Davis, and Charles E.Miller III, U.S. Department of Justice, Federal

Bureau of Investigation, In the Line of Fire (Washington, DC, 1997).4 Geoffrey P. Alpert, Dennis Kenny, Roger Dunham, William Smith,

and Michael Cosgrove, U.S. Department of Justice, Institute of Justice,Police Pursuit and the Use of Force (Washington, DC, 1996).

5 Geoffrey P. Alpert, U.S. Department of Justice, Police Pursuit:Policies and Training, Research in Brief (Washington, DC, 1997), 7.

6 Supra note 1, 73.7 Supra note 1, 64.8 Supra note 1, 64.9 Supra note 3.


High-speed police pursuitsand the inherent risk of in-jury and death that can re-

sult constitute an important law en-forcement and public safety issue.Police pursuits are dangerous.Available data indicate that thenumber of pursuits continues to in-crease, as well as the number ofpursuit-related injuries and deaths.A traffic accident constitutes themost common terminating event inan urban pursuit,1 and most peopleagree that these pursuits should becontrolled. Yet, researchers note awidespread lack of accurate data onthe subject.

Officers face the basic dilemmaassociated with high-speed pursuitsof fleeing suspects: Do the benefitsof potential apprehension outweighthe risks of endangering the publicand the police?2 Research indicatesthat too many restraints placed onthe police regarding pursuits canput the public at risk.3 On the otherhand, insufficient controls on policepursuit can result in needless acci-dents and injuries.

The Dangers of PursuitThe interpretation of the term

“pursuit-related crash” representsone common police practice that

affects accuracy of reporting. Of-ten, police officers or their agencieswill make the determination that acrash occurred right after a pursuitwas “terminated,” hence the crashis not pursuit-related. Agencies im-mediately can determine if this oc-curred by replaying tapes of radiotransmissions during the pursuit,even days after completing a com-prehensive accident investigationor reconstruction. Either way, theprocess can be very subjective.

Some research indicates thatpolice pursuits result in about 350deaths per year and the number ofpursuits increases each year.4 One

High-Speed Police PursuitsDangers, Dynamics, and Risk ReductionBy JOHN HILL, M.S., M.A.

© George Godoy

July 2002 / 15

organization estimates that about2,500 persons die each year as aresult of police pursuits and that an-other 55,000 are injured.5 Althoughsome law enforcement sources ar-gue that these estimates are exag-gerated, they concede that the 350figure may be too low.

The National Highway TrafficSafety Administration (NHTSA)reported that 314 people were killedduring pursuits in 1998. Of this to-tal, 2 were police officers and198 were individuals being chased.The remaining 114 were eitheroccupants of unrelated vehicles orpedestrians.6 The total was higherin each of the 4 previous years.

The lack of a mandatory report-ing system hampers attempts byNHTSA to track pursuit fatalitiesand results in the collection of aslittle as one-half of the actual data.7

Typically, only 90 percent of statesreport pursuit fatality data toNHTSA. By extrapolating the 5-year totals to include 100 percentreporting, calculations would showan average of 375 deaths per year.Even conservative estimates byvarious researchers recalculate theactual number of fatalities between400 to 500 deaths per year.

Police pursuit records providesome frightening statistics. First,the majority of police pursuits in-volve a stop for a traffic violation.8

Second, one person dies every dayas a result of a police pursuit.9 Onaverage, from 1994 through 1998,one law enforcement officer waskilled every 11 weeks in a pursuit,10

and 1 percent of all U.S. lawenforcement officers who died inthe line-of-duty lost their lives invehicle pursuits.11 Innocent third

parties who just happened to be inthe way constitute 42 percent ofpersons killed or injured in policepursuits.12 Further, 1 out of every100 high-speed pursuits results in afatality.13

Research indicates that pursuitsbecome dangerous quite quickly.For example, 50 percent of all pur-suit collisions occur in the first 2minutes of the pursuit, and morethan 70 percent of all collisions oc-cur before the sixth minute of thepursuit.14

Although the public sympa-thizes with the law enforcementcommunity’s position on pursuits,they do not want to be placedin harm’s way. Public support forpursuits decreases as the severity ofthe offense that led to the chase de-creases.15 One study found that 58percent of people interviewed re-ported that police act correctlywhen they pursue a motorist whodoes not stop.16 When asked if thepolice act correctly when thepursuit endangers public safety,support decreased by one-half to 29

percent. Almost two-thirds (64 per-cent) of respondents said that theyfelt police overreact sometimes orvery often when pursuing motoristswho do not stop.17 To decrease thedangers associated with pursuit,agencies must increase training andensure that they have clear pursuitpolicies.

Training and PolicyA lack of training can increase

risks of pursuit-related injuries.Only recently has classroom in-struction included training on ve-hicle pursuit tactics, policy, andliability. Previously, agenciestaught pursuit-driving techniquesbehind the wheel without accompa-nying classroom training. Officerslearned how to pursue but not whento pursue. Inadequate or inappli-cable training often resulted, andofficers rarely followed training inactual practice. Law enforcementmust approach pursuit trainingsimilar to firearms training. For ex-ample, for every hour agenciesspend on training officers how to

Mr. Hill, a retired New Jersey police officer, serves as aninstructor of criminal justice at the University of Phoenix.


shoot, they also spend several hoursteaching when to shoot.18

The training deficiency trendhas changed in the past few years.Although many agencies have in-creased or added pursuit training,most have done so only for newofficers at the police academy.Therefore, most veteran officers,with their academy days far behindthem, lack contemporary pursuittraining.

Training should teach officersthe phenomena present while theypursue. Tunnel vision makes themoblivious to what is going onaround them. Some 96 percent ofofficers involved in a pursuit focuson catching the violator “if it’sthe last thing (they’ll) ever do.”19

Research shows that this holds truefor many officers.20

While effective pursuit trainingcan curtail certain dangerous situa-tions, policy constitutes another im-portant aspect in police pursuits.21

An overwhelming majority of po-lice agencies implemented theirpursuit policy in the 1970s.22 Al-though most of these same agencies

modified their policies in the past 2years by adding restrictions due toliability, problems remain. Insuffi-ciencies still exist in data collec-tion, reporting procedures, and ac-companying accountability.23

One comprehensive studyshows that officers can use termina-tion as an effective option to reducethe risks of pursuits.24 This studyinvolved interviews of 146 jailedsuspects who had been involved asdrivers in high-speed chases. Morethan 70 percent of the suspects saidthat they would have slowed downif police had terminated the pursuitor even backed off a short dis-tance.25 Fifty-three percent of thesuspects responded that they werewilling to run at all costs from thepolice in a pursuit, and 64 percentbelieved they would not becaught.26 While 71 percent said thatthey were concerned for their ownsafety, only 62 percent said thatthey were concerned for the safetyof others.27 Clearly, the police mustbe concerned with public safetyduring pursuits because the sus-pects are not.

An integral part of pursuit train-ing involves giving officers a clearunderstanding about the decision toterminate a pursuit. The ArkansasState Police recently created newpursuit training for state and localofficers that stresses keeping pur-suits under control and advises thattermination is an option.28

Alternatives to PursuitThe most effective way to re-

duce risks is to terminate a pursuit.Clearly, too many pursuits continuethat officers obviously should haveterminated. Research on pursuitdata and statistics show that termi-nation dramatically could reducetraffic accidents, fatalities, and in-juries. Police must reevaluate theirthinking and mission.29 Agenciesrarely can justify endangering thepublic to pursue a violator.

Although many electronic de-vices still are being evaluated foreffectiveness, technology also candecrease pursuit risks. Officers cancarry spiked strips (or “stop sticks”)in their trunks and deploy them inthe path of a fleeing suspect. Thestrips create a controlled loss of air(not a blowout) from the suspect’stires. Once the violator crosses thestrips, the deploying officer quicklypulls them from the roadway toallow pursuing police vehicles topass. Agencies have begun to usethese strips with increasing effec-tiveness. For example, departmentsin Cincinnati, Ohio, successfullyused them after they sought risk-reduction techniques following astring of pursuit tragedies.30 Simi-larly, the Ohio State Highway Pa-trol, the Utah Highway Patrol, andthe Pennsylvania State Police also

Fatalities in Crashes InvolvingLaw Enforcement in Pursuit

1994–1998DeathsYear 1994 1995 1996 1997 1998Suspects 283 249 267 194 198Bystanders 102 127 118 111 114Officers 3 10 5 1 2

Source: Fatality Analysis Reporting Systems – ARF, NationalHighway Traffic Safety Administration, Washington, DC, 2000

July 2002 / 17

are reporting recent successful useof the spiked strips.

One electronics company istesting a radar warning system thatpolice can activate that sends a sig-nal to any motorist with a radar de-tector of an approaching police pur-suit. Motorists then can pull over tothe side of the road or otherwise getout of the way.

Other technological ideas in-clude an ultrasonic device thatshoots a burst of microwave energyat a fleeing suspect. This causes thesuspect vehicle’s electronic systemto fail, thus immediately disablingthe violator.31 Experts are studyinga similar technology in which a ro-bot-like cart jettisons from the frontof the primary police pursuit ve-hicle. The cart then attempts toovertake the fleeing vehicle andelectronically “zaps” the engine outof service. Researchers also aretesting radio-technologic devices(similar to stolen car tracking sys-tems) that electronically would dis-able the fleeing vehicle.32

Agencies have used helicopterswith good results in pursuits, inparts of California and in cities,such as Baltimore, Maryland;Miami, Florida; and Philadelphia,Pennsylvania. The versatility,range, and vantage point of thehelicopter allows ground officers todecrease the use of high-speed pur-suits and increase apprehensionrates.33 With a helicopter observingthe suspect, ground units can slowdown and retreat to reduce accidentrisks. While most agencies cannotafford their own helicopter, theycan develop regional interagencyassistance plans.

Most experts agree that in-creased criminal penalties also will

reduce pursuits. Individuals whoelude and flee the police shouldface severe criminal penalties. Con-sequently, some states have madeeluding a second-degree crime.34

ConclusionHigh-speed police pursuits con-

stitute an important public safetyissue. Research clearly indicates thedangers associated with these pur-suits. While some are necessary,many are not. Curtailing unneces-sary pursuits can reduce the inher-ent risks associated with this dan-gerous practice.

Law enforcement agenciesshould provide appropriate pursuittraining to recruits during theirinstruction at police academies,as well as to seasoned officers.Additionally, police administratorsshould ensure that their depart-ment’s pursuit policy provides clearguidance and they should make useof available technology that can aidin safer pursuits. Taking such initia-tives can help departments increasethe effectiveness of pursuits while

simultaneously reducing the risksinvolved to citizens and officers.

Endnotes

1 National Highway Traffic SafetyAdministration, Fatality Analysis ReportingSystems – ARF, Fatalities in Crashes InvolvingLaw Enforcement in Pursuit 1998 (Washington,DC, 2000).

2 G. P. Alpert, U.S. Department of Justice,National Institute of Justice, Police Pursuit:Policies and Training (Washington, DC,May 1997).

3 Ibid.4 Supra note 2.5 R. Van Sant, “High-Speed Chases:

Mayhem on the Street,” The Cincinnati Post,May 19, 1998.

6 Supra note 1.7 D. P. Van Blaricom, “He Flees—To

Pursue or Not to Pursue: That is the Question,”Police 22, no. 11, (1998).

8 Supra note 2.9 Supra note 1.10 Supra note 1.11 In the Line of Duty: Police Pursuits

Prove Deadly, (National Law EnforcementOfficers Memorial Fund: Washington, DC,1997).

12 Supra note 7.13 D. Falcone, “Police Pursuit: In Pursuit of

Policy, The Empirical Study, Volume II,” AAAFoundation for Traffic Safety (Washington,DC, 1992).

Police Pursuit Fatalities1994–1998

0

100

200

300

1994 1995 1996 1997 1998

SuspectsBystandersOfficers


14 G. P. Alpert, U.S. Department of Justice,National Institute of Justice, Pursuit Manage-ment Task Force Report (Washington, DC,1998).

15 Supra note 2.16 Criminal Justice Policy Foundation

Survey IV: Police Pursuits, (Criminal JusticePolicy Foundation: New Haven, CT, 1998).

17 Ibid.18 Supra note 7.19 Supra note 7.20 U.S. Department of Justice, Federal

Bureau of Investigation, Law EnforcementOfficers Killed 1996 (Washington, DC, 1997).

21 Supra note 7.22 Supra note 2.23 Supra note 2.24 Supra note 2.25 Supra note 2.26 Supra note 2.27 Supra note 2.28 P. Hill, “Training, Stiffer Penalties

Considered to Curb Pursuits,” NorthwestArkansas Times, December 14, 1997.

29 Supra note 7.30 T. Bricking, “Flattened Tires End Chase,”

The Cincinnati Enquirer, June 2, 1997; T.Bricking, “Group Advocates Safer Pursuits,”

The Cincinnati Enquirer, June 21, 1997; andJ. Prendergast, “Cops Pursuit Rules Vary,”The Cincinnati Enquirer, June 17, 1997.

31 J. Hill, “Police Pursuits and The Risks toBystanders,” doctoral program paper presentedto Nova Southeastern University (FortLauderdale, FL, 1999).

32 Ibid.33 G. P. Alpert, U.S. Department of Justice,

National Institute of Justice, Helicopters inPursuit Operations (Washington, DC, August1998).

34 Supra note 31.

Snap Shot

Boat Accident

© Chris Preovolos/Indianapolis Star, Indianapolis, IndianaSubmitted by Indiana State Police

While on a boating trip on Indianapolis,Indiana’s White River, two couples and an

infant hit an obstruction that damaged the propel-ler of their boat so extensively that it could notdevelop sufficient thrust to keep out of the strongcurrent leading to the spillway. The boat wentover the spillway and lodged as depicted in thephotograph. Over the next several hours, multipleattempts to rescue the occupants by boat, ropepulley, and fire truck ladder proved unsuccessful.Two officers from the Indiana State Police arrivedin the department’s helicopter and rescued all fivepeople on the craft in less than 15 minutes.

Bulletin Reports

July 2002 / 19

VictimsJuvenile Delinquency and Serious Injury Victimization

(NCJ 188676) draws on data from two studies (the DenverYouth Survey and the Pittsburgh Youth Study) by the Officeof Juvenile Justice and Delinquency Prevention (OJJDP) toexplore the interrelationship between delinquency and victim-ization. This bulletin, part of OJJDP’s Youth DevelopmentSeries, focuses on victims of violence who sustained seriousinjuries as a result of the victimization. Being victimized maylead to victimizing others. The studies found that many victimswere prone to engage in illegal activities, associate with delin-quent peers, victimize other delinquents, and avoid legal re-course in resolving conflicts. A clearer understanding of thepatterns and predictors of victimization offers the potential forincreased effectiveness in design-ing and implementing strategiesto reduce both victimization andoffending. For a copy of thisreport, call the National CriminalJustice Reference Service at 800-851-3420 or access its Web site athttp://www.ncjrs.org.

The Office for Victims of Crime (OVC) presents theOVC National Directory of Victim Assistance FundingOpportunities 2001, which lists, by state and territory, thecontact names, mailing addresses, telephone numbers, ande-mail addresses for federal grant programs that provideassistance to crime victims. The directory includes informa-tion on grant programs that assist state and local agencies toprepare for and respond to incidents of domestic terrorismand criminal mass casualty. It also provides a complete listingof professional colleagues nationwide that state victimassistance program administrators can contact for helpfulinformation. This OVC directory provides useful informationto state and local organizations interested in applying for stateor federal funding to support crime victim assistance pro-grams. For a copy of this 266-page directory (NCJ 189218),call the National Criminal Justice Reference Service at 800-851-3420. It also is available electronically at http://www.ojp.usdoj.gov/ovc/fund/nrd/2001/welcome.html.

Grants/Funding

/cgi-bin/outside.cgi?http://www.ncjrs.org

/cgi-bin/outside.cgi?http://www.ojp.usdoj.gov/ovc/fund/nrd/2001/welcome.html


Until 1997, I was in charge of the DetectiveBureau in Norwalk, Ohio, which is a rela-

some service.2 The issue becomes cloudy as towhether the acceptance of free coffee and free ordiscounted meals is actually, by definition, a gratuity.Even if the acceptance of free or discounted itemsis not classified officially as a gratuity, does thismean that its acceptance is ethically sound? What doofficers think? What do community members think?What do the owners of the businesses offering thegratuities think?

DiscussionI have interviewed many police officers of

various ranks within their departments about theirviews on what practices are ethical as they relate togratuities.3 Some officers have departmental policiesthat state that officers can accept gratuities as long asthey do not solicit them. Other officers draw distinc-tions between what is an allowed gratuity. For ex-ample, the cost of the item, the reason it is given, andthe expectation associated with the item determinesone officer’s opinion. Could ethical arguments ofaccepting gratuities be a matter of opinion, or are theacceptance of gratuities a community social act thatshould continue as a bridge between the communityand the police? Varying opinions exist among offi-cers, as well as in literature that I reviewed.

The Problem with GratuitiesBy Mike White

“I will never act officiously or permit personal feelings,prejudices, political beliefs, aspirations, animosities,or friendships to influence my decisions. With nocompromise for crime and with relentless prosecutionof criminals, I will enforce the law courteously andappropriately without fear or favor, malice or ill will,never employing unnecessary force or violence andnever accepting gratuities.”1

tively small town, but very professional and proactive.When I first came to the department in 1983, officerscommonly accepted free coffee and discounted meals,along with other services. But, in 1991, a new chiefwas hired and these practices stopped.

In 1997, the chief of police position opened inMonroeville, Ohio, the community where I grew up.The department is a small one in the Midwest that,like other departments, is experiencing a change inthe culture of law enforcement. I applied for thechief position and was hired on September 1, 1997.I started under a blanket of controversy because Iwas the first chief that did not progress through theranks of the Monroeville Police Department (MPD).This caused some resentment, but nothing comparedwith the response I received when I notified myofficers that they were not to accept gratuities. Whileall agreed that they understood, many felt that I wasinterfering with long-standing practices. In fact, oneofficer informed me that accepting gratuities hadbeen a benefit of working for the police departmentfor the past 15 years and that he did not see any harmin accepting free or discounted items. He said thatwe work in a small town and that we need to takecare of the locals who, in turn, will take care of us.

Are law enforcement officers unethical to acceptthese gifts? What I saw as an unethical act wasviewed by others, entrenched in the culture of thedepartment, as an entitlement. Gratuity is somethinggiven voluntarily or beyond obligation usually for

Chief White heads theMonroeville, Ohio,

Police Department.

Perspective

July 2002 / 21

One officer asked me if I would turn down a cupof coffee offered by a friend or neighbor while offduty, and I answered no. Does this make it okay toaccept one while on duty? I think that different rulesapply while officers are on duty. Police officersrepresent their communities and have powers thatregular citizens do not. The public has no way ofknowing if the free coffee is given under subtlecoercion.

Another officer advised me that his agency’spolicy states not to accept gratuities. However, if theshop owner becomes insistent, the agency’s policystates that officers should lay the money on the tableto be used as a tip or payment and then leave theestablishment. Differentiating between gratuities andcorruption is not a clear concept. “Within the largercommunity of any police jurisdiction, the practice of

exchanging gifts, swapping services, and extendingprofessional ‘courtesies’ is accepted by all citizens.It is a normal part of business relations for a salesmanto offer a bargain to a steady customer or for a manu-facturer to obtain favorable advertising space on amagazine or newspaper by paying ‘extra.’ Employeeson public payrolls also receive gifts for professionalservices rendered.”4

The payment of free coffee and discounted mealsor services from businesses to police officers is awidespread, traditional practice in many jurisdictions.Free coffee is perhaps the most commonly receivedgratuity. Extra services that businessmen expect inreturn for giving a gratuity may include such immedi-ate acts as additional protection during business hoursand after closing, police escorts to banks, and fre-quent patrol of the business vicinity.

Arguments For and Against Gratuities

• They help create a friendly bond betweenofficers and the public, thus fosteringcommunity-policing goals.

• They represent a nonwritten form ofappreciation and usually are given withno expectation of anything in return.

• Most gratuities are too small to be asignificant motivator of actions.

Allowing Gratuities

• The practice is so deeply entrenched thatefforts to root it out will be ineffective andcause unnecessary violations of the rules.

• A complete ban makes officers appear asthough they cannot distinguish between afriendly gesture and a bribe.

• Some businesses and restaurants insist onthe practice.

• The acceptance violates most departments’policies and the law enforcement code ofethics.

• Even the smallest gifts create a sense ofobligation.

• Even if nothing is expected in return, thegratuity may create an appearance ofimpropriety.

Banning Gratuities

• Although most officers can discern be-tween friendly gestures and bribes, somemay not.

• They create an unfair distribution of ser-vices to those who can afford gratuities,voluntary taxing, or private funding of apublic service.

• It is unprofessional.

When law enforcement officers offer additionalservices to private businesses in exchange for a freecup of coffee, they detract from other citizens withintheir communities. Police service cannot be perceivedas going to the highest bidder; decisions must bebased on need.

In one city, officers arrested a local shop ownerfor drunk driving. The shop owner had supplied freecoffee and discounted meals to department personnelfor years. The shop owner took the arrest as a breachof an unwritten contract where he would receivespecial privileges in return for supplying free coffeeand discounted meals. Apparently, the local policedepartment had never done anything to give the shopowner this opinion. The shop ownerbecame irate and demanded that thedepartment drop the charges, whichit could not do. Instead, the officerstook up a collection and paid hisfines. But, the shop owner still wasnot satisfied. He went to the localnewspaper with the names ofofficers who had received 1,300 freecups of coffee (apparently, theofficers had to sign for the cups). Inaddition, a list of 300 discountedmeals, along with the officers’names, appeared on the front pageof the local newspaper. Some citizens argued that theofficers accepted the coffee with no intention ofgiving favorable treatment to the shop owner oranyone else, while others claimed that no one elsewould have had their fines paid by the police. “Todetermine if corruption exists, use the totality ofcircumstances. Was there quid pro quo, or werespecial privileges given in return for the free item?”5

Most officers agree that offering free goods andservices as an entitlement and basing efforts inhandling a complaint on what the complainant hasgiven the officer is unethical. But, according to themajority of officers I spoke to, a huge gray areaexists, especially in the acceptance of free coffee toincrease officer presence. Perception is important;accepting a free cup of coffee may be harmless.However, the public’s perception is important in thesupport and view that the community has for their

law enforcement agency. One officer I interviewedadvised that a new restaurant opened in her town andthe owners gave free meals to police officers. Subse-quently, the city implemented a policy that began tocharge businesses after the police department re-sponded to a limited number of false alarms. The newbusiness received a bill because of its number of falsealarms, but the owners refused to pay based on thelong list of free meals given to the police department.The media published the story, which reflected poorlyon the department.

Many argue that the coffee is inexpensive andthat owners are showing appreciation by offering acup and enjoying the fact that officers spend time in

their shops. Therefore, what is theharm? On the other hand, whathappens in discretionary issueswhere officers stop the owner or anemployee for speeding? They maybase their decision whether to citeon the fact that they received freecoffee. Should the free coffee factorin the officers’ decisions?

I spoke with an officer whowrote the policy on gratuities for hisdepartment. He advised that officersmay accept gratuities but not solicitthem. He explained that the depart-

ment did not want to deny its officers from taking acup of coffee or meal as a goodwill gesture. Hedistinguished between the solicitation and acceptancebecause when an officer asks for a gratuity, it can beconstrued as expected. If the gratuity is not given, theperception of retaliation may become an issue if theofficer was put into the position of enforcementagainst the store owner or employee. I asked theofficer if the public’s perception was a problem, andhe advised that it has not become an issue. In thisexample, the thought behind the acceptance andgiving of the gratuity is important. “What makes agift a gratuity is the reason it is given, what makes itcorruption is the reason it is taken.”6 The officer alsoexplained that on a discretionary call the possibilityremains that the officer may decide in favor of theviolator based on the giving of gratuities, but this hasnot happened in his department.

“

”

Differentiatingbetween gratuitiesand corruption is

not a clear concept.


RecommendationsClearly, no overall consensus exists on the

acceptance of gratuities or even what constitutes agratuity. As an administrator, the commonsenseapproach would be to not allow officers to accept freecoffee and discounted or free meals. Accepting gratu-ities can lead to unwanted perceptions by the publicand bring the agency’s discretion into question. How-ever, a Christmas gift given by a private business to adepartment may be accepted as a token of a workingrelationship. Additionally, agencies should feel free toaccept contributions from fraternal organizations thatdonate to programs that help the overall community.But, when an individual officer accepts items on aroutine basis, an unhealthy relationship may developor be perceived as such. To eliminate doubt, agenciesshould implement a policy against the acceptance offree or discounted items by individual officers.

ConclusionPolice officers often face the dilemma of accept-

ing gratuities. Some officers view the acceptance offree coffee and free or discounted meals as an entitle-ment, while others view it as an unethical act. Lawenforcement agencies should consider the perceptionof communities, as well as business owners, whenaccepting gratuities.

Departmental policies on gratuities vary amongagencies, and officers may question exactly whatconstitutes a gratuity. To eliminate confusion, depart-ments should ensure that their policies clearly distin-guish what is acceptable.

Endnotes1 International Association of Chiefs of Police, Code of Ethics; http://

www.theiacp.org; accessed February 28, 2002.2 Merriam Webster’s Collegiate Dictionary, 10th ed. (1996) s.v.

“gratuity.”3 The FBI hosts four 10-week sessions each year during which law

enforcement executives from around the world come together to attendclasses in various criminal justice subjects and conduct academic researchon a variety of related topics. I attended the 206th session of the FBINational Academy and interviewed numerous law enforcement officerson their perceptions of gratuities, as well as their departmental policies onthis topic.

4 International Association of Chiefs of Police, Training Key 254,“Police Corruption,” vol. 11, 81.

5 William McCarthy, A Police Administrator Look at Corruption(New York, NY: John Jay Press, Inc., 1978).

6 John Kleining, The Ethics of Policing (New York, NY: CambridgeUniversity Press, 1996).

Wanted:Photographs

The Bulletin staff isalways on the lookout

for dynamic, law enforce-ment-related photos forpossible publication in themagazine. We are interestedin photos that visually depictthe many aspects of the lawenforcement profession andillustrate the various taskslaw enforcement personnelperform.

We can use either black-and-white glossy or colorprints or slides, although weprefer prints (5x7 or 8x10).Appropriate credit will begiven to contributing photog-raphers when their workappears in the magazine. Wesuggest that you send dupli-cate, not original, prints aswe do not accept responsibil-ity for prints that may bedamaged or lost. Send yourphotographs to:

Art Director, FBI LawEnforcement Bulletin,FBI Academy, MadisonBuilding, Room 209,Quantico, VA 22135.

July 2002 / 23

/cgi-bin/outside.cgi?http://www.theiacp.org

Digital Evidence and Computer Crime:Forensic Science, Computers, and the Internetby Eoghan Casey, Academic Press, San Diego,California, 2000.

As a place to begin in the investigation ofcomputer-based crime, Digital Evidence andComputer Crime represents a very good start.As the title implies, the author works toward acomprehensive explanation of a series of verycomplex and technical, yet related, issues. Fortu-nately, he provides well-written and easilyunderstandable explanations, albeit technicallyabbreviated, throughout. The information heprovides in this context allows for concepttransition as the text continues into the strategicand tactical application of pursuit. For a newinductee into the world of computers and lawenforcement, this book should be on the shelf.While it will not solve the case, it will provide the“rookie” with a number of very well-describedstarting points.

The chapters are designed to build off theprevious ones in terms of an introduction, throughbasic vocabulary and terminology, and then step-ping into the issues associated with law enforce-ment response. Perhaps, the best aspect of thisbook is the inclusion of case examples, whichhighlight various points Mr. Casey makesthroughout.

Two of the chapters focus on the behavioral/motivational aspects of computer crime. Eachembraces the topic from academia and containgood information, although somewhat limitedwith respect to long-term utility. While thetechnology continues to evolve, so too will thetargets and the suspect’s methodology.

One chapter focuses on the legal and juris-dictional aspects of these issues. The referencedcases occurred in the mid to late 1990s and, interms of relativity to the discussion, are pertinent.There is, however, a growing list of additionalcase law, which should be thoroughly researchedin any specific investigation involving search andseizure, intercept, and other complex issues. Fromthe perspective of jurisdiction, the text brieflycovers an issue that proves significant at any levelin responding to and prosecution of computer-related crime.

Accompanying the text is a multimedia CDseparated into several sections, including an intro-duction, a cases section, and a reference section.The cases section permits the reader to commencehands-on pursuit of computer criminals byfollowing a very basic fact set and using someof the knowledge from the book. These scenariosare primers only, but afford the reader with anopportunity for familiarization by hands-oninteraction. The reference section provides a listof 24 Internet locations for the reader to continuelearning or to obtain law enforcement assistance.

As with any new area of law enforcement, thescope and breadth of understanding and responsevary by individual, as well as by location andagency capability. This book is a great resourcefor any individual seeking knowledge or begin-ning to understand this growing phenomenon,as well as some of the issues associated with theoperational and related strategic challenges.

Reviewed byResident Agent in Charge Matt Parsons

U.S. Naval Criminal Investigative ServiceOkinawa, Japan

Book Review


July 2002 / 25

Legal Digest

nternational terrorism hasbecome more than somethingoccurring in some faraway

security and safety of citizensagainst individual rights. Criminalinvestigations involving terroristsmust be conducted in accordancewith the provisions of the U.S.Constitution.

Local, state, and federal investi-gators will find themselves workinghand in hand on terrorist taskforces investigating internationalterrorists. Cases will be brought inboth state and federal courts. Inves-tigators will need to gather evi-dence, either testimonial or docu-mentary, and assets from withinthe United States and fromforeign sources. This will require

cooperation with foreign law en-forcement and security agencies.The subjects of these investigationswill include both foreign nationalsand U.S. citizens living abroad. Thecitizenship of suspects and the levelof participation of American lawenforcement in the overseas inves-tigation will determine the legalstandards to which American inves-tigators will be held when prosecut-ing these cases. For these reasons, itis important that investigators un-derstand how the U.S. Constitutionlimits their actions in foreign lands.This article examines how Ameri-can law enforcement officials may

Iplace that Americans see on thenightly news. It is now a crime to bedealt with in America itself. Ameri-can law enforcement faces a diffi-cult and dangerous task in investi-gating international terrorism. Thegoal of these investigations is toidentify terrorists, deter future ter-rorist attacks, seize financial assets,and build cases that will lead to theconviction of those involved interrorist acts. At the same time,investigators must carefully bal-ance actions designed to ensure the

Investigating InternationalTerrorism OverseasConstitutional ConsiderationsBy MICHAEL J. BULZOMI, J.D.

© Digital Stock


seek foreign assistance in their in-vestigations. It also will considerthe constitutional restraints uponthese investigations.

Foreign AssistanceThe Fourth Amendment guar-

antees the privacy of persons,houses, papers, and effects againstunreasonable searches and sei-zures.1 The U.S. Supreme Court hasestablished the principle that for asearch to be reasonable under theFourth Amendment, it must be au-thorized by a search warrant or oneof the recognized exceptions tothis warrant requirement.2 How-ever, American magistrates do nothave the authority to issue searchwarrants authorizing overseassearches.3 Fortunately, there areother ways to gather evidence fromforeign jurisdictions. One approachis through the use of a mutual legalassistance treaty (MLAT). If anMLAT does not exist between theUnited States and the foreign nation

involved, then one may seek a letterrogatory or possibly a subpoena.

MLATs between the UnitedStates and foreign governments es-tablish procedures by which evi-dence may be obtained from foreignnations. MLATs allow federalprosecutors to request that foreignlaw enforcement officers gatherevidence in their countries for usein U.S. proceedings. The terms ofan MLAT may include the actualinvolvement of U.S. officials in theevidence-gathering process. For ex-ample, U.S. officials may be able tobe present, or even participate in,the foreign investigations. The mainadvantage of MLATs is that com-pliance on the part of the signatoriesis mandatory. At present, the UnitedStates has entered into MLATs withthirty-four nations.4

If an MLAT does not exist be-tween the United States and the for-eign nation involved, then investi-gators may consider a letterrogatory. A letter rogatory is simply

authority from a federal court to re-quest the assistance of the foreignjurisdiction. The foreign authoritiesmay honor the request by using evi-dence-gathering tools allowed themby their own laws. Any resultinginformation or evidence is then for-warded to the requesting Americanauthorities. However, assistancerendered through letters rogatory isdiscretionary on the part of the for-eign nation.5

U.S. authorities seeking infor-mation from overseas also may con-sider the use of subpoenas issued topersons or entities located withinthe United States that have actual orconstructive possession of the in-formation located overseas. Somecourts, however, may refuse toenforce subpoenas for evidencelocated abroad on comity groundsbecause compliance with the sub-poena may expose the respondingparty to criminal liability under thelaws of the foreign nation.6 The fac-tors a court must consider include—

• the vital national interests ofeach of the states;

• the extent and the nature ofthe hardship that inconsistentenforcement actions wouldimpose upon the person;

• the extent to which the re-quired conduct is to take placein the territory of the otherstate;

• the nationality of the person;and

• the extent to which enforce-ment by action of either statecan be reasonably expected toachieve compliance with therule prescribed by that state.7

“

”

...it is importantthat investigators

understand how theU.S. Constitution

limits their actionsin foreign lands.

Special Agent Bulzomi is a legalinstructor at the FBI Academy.

July 2002 / 27

“

ConstitutionalProtections Overseas

Constitutional protections areassured to any person within theUnited States whether they areU.S. citizens or not, including ille-gal aliens. However, U.S. constitu-tional guarantees may not extend topersons located overseas. The U.S.Supreme Court has struggled withthis issue for years.

The question of whether U.S.constitutional protections extendbeyond the shores of the UnitedStates was first debated in Ross v.McIntyre.8 The Court confrontedthe issue of whether the SixthAmendment right to trial by juryapplied to a U.S. citizen being triedby an offshore American court. Thedefendant in this case was chargedwith committing a murder on anAmerican vessel in Japanese terri-torial waters. Pursuant to a treatywith Japan, Ross was tried and con-victed in an American consularcourt sitting in Kanagawa, Japan.The consular court consisted of theU.S. consul-general who, with fourother persons appointed by him, de-termined Ross’ guilt. Prior to trial,Ross had made a demand for a trialby jury; his demand was denied.

Following his conviction, Rosspetitioned for a writ of habeas cor-pus, arguing that the statute estab-lishing the consular courts was un-constitutional. The U.S. SupremeCourt rejected this argument, not-ing that consular courts establishedby governments to try their citizensin foreign countries for violations offoreign laws dated back to theMiddle Ages. The Court stated thatbecause the Constitution has noextraterritorial force, treaties

extending American judicial powerinto foreign countries were control-ling. Consequently, the Court con-cluded that consular courts wereconstitutionally created under Con-gress’ treaty-making power. How-ever, this view, that the Constitutionhad no extraterritorial force, waslater repudiated.

In 1957, the Supreme Court de-cided the case of Reid v. Covert.9 Inthis matter, the wives of two Ameri-can servicemen were charged withmurder. The women were tried andconvicted in U.S. military courtssitting in the countries where the

plurality opinion, which was joinedby three other justices, JusticeBlack said that when the govern-ment acts abroad by reaching outand punishing an American citizenfor his acts outside of the UnitedStates, the Bill of Rights and theConstitution should not be strippedaway just because the citizen hap-pens to be in another country.10

The Reid case established thatthere are constitutional protectionsfor U.S. citizens while overseas.Unanswered, however, was thequestion whether constitutionalprotections extend to aliens lo-cated outside the United States,but facing charges in the UnitedStates. In United States v. Verugo-Urquidez,11 the Supreme Courtruled that the Fourth Amendmentdoes not apply to a U.S.-directedsearch in Mexico. In this case, U.S.DEA agents, working with Mexicanpolice, searched a home belongingto a Mexican national living inMexico. The DEA agents did notseek a search warrant from anAmerican court because no Ameri-can court can authorize an overseassearch. Instead, they obtained au-thorization for the search from thedirector general of the MexicanFederal Judicial Police. Chargeswere filed against the defendant inthe United States, and the defendantmoved to suppress evidence ob-tained during the search, arguingthat the search violated his rightsunder the Fourth Amendment.

The district court granted themotion and the appellate court af-firmed, citing the Reid decision, andholding that the Constitution im-poses constraints on the federalgovernment when it acts abroad.

murders were alleged to have oc-curred. This procedure was in ac-cordance with executive agree-ments in force between the UnitedStates and the countries where thecrimes occurred. These agreementspermitted U.S. military courts toexercise jurisdiction over Americanservicemen and their dependentswho committed crimes overseas inviolation of foreign laws.

The women argued that theywere entitled to a civilian trial. TheCourt agreed with the women, butcould not agree on a rationale. In his


“

The U.S. Supreme Court reversedthe appeals court. The Court ruledthat the appeals court’s global viewof the application of the Constitu-tion was contrary to its decisions inReid and Ross. The Court stated thatin light of those cases, it could notbe said that every constitutionalprovision applies wherever the U.S.government exercises power. TheCourt held that the subject of thesearch, a Mexican citizen, had nosubstantial voluntary attachment tothe United States, despite the factthat he was being prosecuted in U.S.courts.

In Verugo-Urquidez, the U.S.Supreme Court limited FourthAmendment protections to searchesand seizures within the UnitedStates. The Court refused to en-dorse the view that every constitu-tional protection applies whereverthe U.S. government exercises itspower. That is not to say, however,that constitutional protections neverapply in the overseas context. TheReid case makes that clear. Whatprotections apply overseas, and towhom, are questions that slowly arebeing answered by the courts.

Fourth Amendment ProtectionEvidence that is seized during

foreign investigations often is givento American authorities for use inU.S. investigations. Generally,American legal standards do not ap-ply to the seizure of this evidencewhere a foreign country is conduct-ing the investigation independentlyand seizes evidence that later is in-troduced into an American court.

United States v. Callaway12 il-lustrates this point. Canadian policesearched two cars they suspected

were stolen. They uncovered evi-dence regarding the theft of cars inAmerica and their subsequent salein Canada. The searches were notbased on probable cause as requiredby courts in the United States. Theevidence from these searches wasgiven to American law enforcementand used to prosecute the defendantin the United States. The defendantmoved to have the evidence sup-pressed on the basis that thesearches violated the FourthAmendment. The U.S. District

As the court in Callawaypointed out, there are two circum-stances where U.S. courts may ex-clude evidence gathered by foreigngovernments: 1) where there is jointaction by both the U.S. and foreigngovernments, and 2) where solo ac-tions by the foreign governmentshock the conscience of the U.S.court.

Joint VenturesJoint investigations between

U.S. and foreign law enforcementcan create constitutional consider-ations for American law enforce-ment operating overseas. The ac-tions of foreign officials againstU.S. citizens abroad may be held toAmerican legal standards and sub-ject to the exclusionary rule—theywere not independent actions but,rather, “joint ventures.”13 If anAmerican official substantiallyparticipates in the activities of theforeign agency against Americancitizens or American concernsoverseas, these activities could bedeemed “joint ventures” and sub-ject to U.S. constitutional scrutiny.Whether or not such a joint ventureexists depends upon the facts ofeach case.

In United States v. Behety,14 anAmerican vessel was searched byGuatemalan authorities. Americanauthorities alerted them to the pos-sibility that cocaine was aboard.In Guatemala, probable cause tobelieve that evidence or contrabandis aboard a vessel is not requiredfor Guatemalan officials to conducta search of a vessel. Americanauthorities did not actually partici-pate in the search of the vessel, butwere present and videotaped the

Court of New Jersey decided not toapply the Fourth Amendment prob-able cause standard to the searchesof the vehicles in question. Thecourt found that the searches oc-curred in a foreign country; wereconducted by foreign law enforce-ment officials who were not actingin connection, or cooperation, withAmerican law enforcement authori-ties; and actions of the Canadianofficials were not so outrageous asto shock the conscience of thecourt. Accordingly, the court re-fused to suppress the evidence.

July 2002 / 29

search. The court held that substan-tial participation by American au-thorities is required before theFourth Amendment reasonablenessstandard is used to judge the search.The court found that providing in-formation concerning possiblecriminal misconduct and video tap-ing the Guatemalan search did notconstitute substantial participation.

United States v. Barona,15 illus-trates that the Fourth Amendmentreasonableness standard is appliedin cases where there is substantialparticipation by American authori-ties. This case involved an interna-tional drug conspiracy “joint ven-ture” investigation involvingAmerican, Danish, and Italian au-thorities. Danish police interceptedphone calls of the main suspects atthe request of the DEA. Transcriptsof the intercepted calls were intro-duced at the defendants’ trial in theUnited States. Following their con-viction, the defendants appealed,claiming an unconstitutional searchand seizure on the part of the DEAin conjunction with foreign investi-gators. The U.S. Circuit Court ofAppeals for the Ninth Circuit re-jected the defense contention on thegrounds that the interception waslawful under the Fourth Amend-ment if it was reasonable. Accord-ing to the court, reasonableness inthis context means that the foreignauthorities either followed theirown law, or the U.S. agents acted inthe good faith belief that the inter-ceptions complied with foreign law.In this case, foreign law was ad-hered to. The court pointed out thatthe Fourth Amendment applies onlyto the people of the United States.However, even when American

citizens are not the subject of theoverseas investigation, violations offoreign law by foreign investigatorscould result in a judicial finding thatthe actions of the foreign govern-ment shock the conscience of thecourt and may result in the exclu-sion of the evidence.

Shocks the Conscienceof the Court

As noted in several of thesecases, not all evidence gathered byforeign investigators in foreignlands will be admitted into Ameri-can courts, even if the evidence iscollected with no U.S. involvement.

the evidence was introduced by theU.S. government at the defendant’strial, he challenged it on thegrounds that the wiretap had notbeen properly authorized underFilipino law. American authoritieswere unaware of its illegality andhad been assured that proper au-thority was sought. The U.S. Courtof Appeals for the Ninth Circuitnoted that Philippine law governedthe reasonableness of the search,but American law governed its ad-missibility into U.S. courts. Thecourt held that the seized evidencewas admissible under the good faithexception to the exclusionary rule,because American investigators re-lied in good faith upon the assur-ances of the Filipino authorities. Inaddition, the court ruled that the ac-tions of the Filipino authoritieswere not sufficiently outrageous toshock the conscience of the court.

Fifth AmendmentProtection Overseas

The Fifth Amendment volun-tariness standard and the rights tosilence and counsel announced inthe Miranda18 case clearly apply tocustodial interrogations of U.S. citi-zens abroad by U.S. investigators.19

However, confusion exists regard-ing whether Fifth Amendmentrights apply to overseas interroga-tions of nonresident aliens byAmerican interrogators. Two U.S.district courts faced this issue andreached opposite conclusions.

In United States v. Raven,20 thedefendant, a Dutch citizen, wascharged with drug offenses in theUnited States. He was in custody inBelgium when American officialssought permission from Belgium

Evidence obtained in a shockingmanner, such as through torture orphysical abuse, may be excluded asevidence in an American court as adue process violation.16 However,mere violations of foreign law byforeign governments do not neces-sarily cause an American court toexclude evidence.

In United States v. Peterson,17

evidence was collected from awiretap conducted in the Philip-pines by Filipino officials. When

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authorities by a letter rogatory tointerview him. American investiga-tors were instructed that Belgiumlaw does not permit a defendant’slawyer to be present. Raven wasinterrogated by American investi-gators without his lawyer and madestatements the government wishedto introduce at his trial. The defen-dant moved to have the statementssuppressed because he was deniedcounsel during the interrogation inviolation of both the Fifth and SixthAmendments to the Constitution.

In denying the motion to sup-press, the U.S. District Court for theDistrict of Massachusetts held thatforeign nationals simply are notprotected by the U.S. Constitutionduring custodial interrogations thattake place overseas. The court citedthe Supreme Court case of Johnsonv. Eisentrager21 for the propositionthat the Fifth Amendment does notprotect aliens outside of the UnitedStates. The court went on to say thatbecause the Supreme Court has re-jected the extraterritorial applica-tion of the Fourth and Fifth Amend-ments, it also would likely reject theextraterritorial application of theSixth Amendment right to counsel,even though the Court had not yetanswered the question directly.

However, in United States v.Bin Laden,22 the U.S. District Courtfor the Southern District of NewYork reached the opposite conclu-sion. In this case, two alien defen-dants suspected of involvement inthe bombings of U.S. embassieswere subjected to repeated custo-dial interrogations by American andforeign officials after their arrests inKenya and in South Africa. Bothdefendants were given modified ad-vice of rights forms, informing

results from overseas interrogationby U.S. investigators. The court rea-soned that a Fifth Amendment vio-lation occurs only when the U.S.government introduces the state-ment against the defendant at trial.Therefore, the location of the inter-rogation is irrelevant. In addition,the court opined that the only way toensure a defendant’s (alien or citi-zen) privilege against self-incrimi-nation is protected—wherever theymight be arrested—is to requireAmerican interrogators to complywith the Miranda warning andwaiver regimen.

The court recognized that thecontent of the warnings provided todefendants interrogated abroad willvary. Warning overseas defendantsof the right to silence and that anystatements made may be used in acourt of law is no problem. How-ever, informing overseas defen-dants of their right to counsel duringcustodial interrogation poses par-ticular difficulties. Because the de-fendants are in foreign custody,they may not be permitted access tocounsel under local law. The courtresolved this difficulty by sayingthat American interrogators shoulddo or say nothing that would fore-close any right to counsel, eitherretained or appointed, that the de-fendants may have under foreignlaw, and the warning should con-form as much as possible to the lo-cal circumstances under the laws ofthe foreign country.

A related issue is whether or notMiranda protections extend tooverseas custodial interviews of in-dividuals by foreign officials. InUnited States v. Welch,23 Welchwas arrested by Bahamian officialsin Bahama for attempting to deposit

them that they had the right to re-main silent and that anything theysaid could be used against them in acourt of law. They also were toldthat had they been questioned in theUnited States, they would have hadthe right to have an attorney presentduring questioning, but becausethey were not in the United States,the interrogators could not ensurethat a lawyer would be appointedbefore questioning. Both defen-dants waived their rights as pre-sented and made statements. Prior

to trial in the United States, bothdefendants moved to have theirstatements suppressed, arguingthat their Fifth Amendment rightswere violated during the overseasinterrogations.

The court ruled that the FifthAmendment privilege against self-incrimination did protect thesealien defendants, even though theinterrogations occurred overseas.The court went on to hold that U.S.courts should use the Mirandawarning and waiver framework tojudge whether the government mayintroduce an alien’s custodial state-ment, even when the statement

July 2002 / 31

a stolen U.S. Treasury bill in a Ba-hamian bank. He was taken to thelocal police station to be interro-gated. Prior to the interrogation, hewas warned of certain rights underBahamian law. The warning did notinclude all of the rights mandated inthe Miranda case. Welch waivedhis rights and made statements tothe Bahamian interrogators. TheU.S. government later attempted touse those statements against Welchin his trial for offenses regardingthe stolen Treasury bill. Welchmoved to suppress the statements,arguing that they were taken by Ba-hamian officials in violation ofMiranda.

The U.S. Court of Appeals forthe Second Circuit ruled that therequirements of the Miranda casewere inapplicable to overseas cus-todial interrogations conductedsolely by foreign officials. Thecourt stated that the Mirandawarning and waiver requirementwas developed to deter Americaninvestigators from using coercivetechniques during custodial interro-gations. When the interrogators areforeign officials, Miranda does nothave its intended deterrent effect.The only test regarding the ad-missibility of statements takensolely by foreign officials overseasis whether the statement is volun-tary under the totality of the cir-cumstances.24 Here the statementwas voluntary and, therefore,admissible.

ConclusionWith increasing frequency,

American investigators are calledupon to conduct investigationsoverseas in conjunction with for-eign investigators. Consequently,

American courts are faced with thedifficult task of deciding what con-stitutional protections extend tothese overseas investigations.While the law is still developing,some conclusions can be drawn.

American investigators actingabroad must be aware of which con-stitutional rights have extraterrito-rial effect. The application of theserights depends upon several factors:whether the investigations are con-ducted by foreign investigatorsalone, foreign and American inves-tigators acting jointly, or American

applicability of a constitutionalright arises.

When working jointly with for-eign officials overseas, investiga-tors should be mindful that theiractivities will be subject to constitu-tional limitations when the subjectis an American or an American in-terest. Substantial participation insearches or interrogation on thepart of American investigators willinvoke constitutional protections onthe part of the subject. Investiga-tors should ensure that these pro-tections are adhered to under thesecircumstances.

Robert Ingersoll said, “Give toevery human being every rightthat you claim yourself.”25 If inves-tigators follow that simple rule,they will have few legal obstaclesinterfering with their efforts over-seas in identifying terrorists, inter-dicting their operations, seizingtheir assets, and securing criminalconvictions.

Endnotes

1 U.S. Const. amend. IV.2 Flippo v. West Virginia, 120 S. Ct. 7

(1999).3 United States v. Verugo-Urquidez, 494

U.S. 259 (1990), at 274 (noting that warrantsissued by U.S. magistrates are ineffectiveoutside the United States).

4 U.S. State Department Website, http://travel.state.gov/mlat.html. Currently, there are19 MLAT’s in force with Argentina, Bahamas,Canada, Hungary, Italy, Jamaica, Korea,Mexico, Morocco, Netherlands, Panama,Philippines, Spain, Switzerland, Thailand,Turkey, United Kingdom (Cayman Islands),United Kingdom, and Uruguay. There are 15MLAT’s that have been signed but are not yetin force with Antigua and Barbuda, Australia,Austria, Barbados, Belgium, Columbia,Dominica, Grenada, Hong Kong, St. Lucia,Luxembourg, Nigeria, Organization ofAmerican States, Poland, and Trinidad.

5. Title 28, U.S.C. Sec. 1781.

investigators acting alone. It alsodepends upon whether the target ofthe investigative action is an Ameri-can citizen or a foreign national.

Some conclusions are clear.American investigators acting over-seas always should comply withforeign laws. To the extent pos-sible, American investigatorsabroad should conduct their investi-gations as if they were operatingin the United States. American in-vestigators operating abroad shouldconsult with their prosecuting attor-neys whenever a question of the

© Digital Stock

Law enforcement officers of other thanfederal jurisdiction who are interested inthis article should consult their legaladvisors. Some police procedures ruledpermissible under federal constitutional laware of questionable legality under state lawor are not permitted at all.

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6. This was the case in United States v. FirstNational Bank of Chicago, 699 F.2d 341 (7thCir., 1983) where compliance with a subpoenaissued to a Greek bank would have exposed thebank and its employees to criminal liabilityunder Greek bank-secrecy laws. The court inthis case refused to enforce the subpoena.However, in United States v. Nova Scotia, 740F.2d 817 (11th Cir., 1984), the court ignoredforeign bank secrecy and “blocking” statutesthat made compliance to the U.S. subpoena anillegal act and enforced the subpoena.

7 Id. at 827, citing Restatement (Second) ofForeign Relations Law of the United States(1965).

8 140 U.S. 453 (1891).

9 354 U.S. 1 (1957).10 Id. at 6.11 494 U.S. 259 (1990).12 446 F.2d 753 (3rd Cir., 1971).13 See Stonehill v. United States, 405 F.2d

738 (9th Cir., 1968)14 32 F.3d 503 (11th Cir., 1994).15 56 F.3d 1087 (9th Cir., 1995).16 See United States v. Toscanino, 500 F.2d

267 (2d Cir. 1974).17 812 F.2d 486 (9th Cir. 1987).18 Miranda v. Arizona, 384 U.S. 1 (1968).19 See Reid v. Covert, 354 U.S. 1 (1957)

(The Court extended Fifth and Sixth Amend-ment protections to U.S. citizens overseas).

20 103 F. Supp. 2d 38 (D. Mass 2000).


21339 U.S. 763 (1950)22 132 F. Supp. 2d 168 (S.D.N.Y. Feb. 16,

2001).23 455 F.2d 211 (2nd Cir., 1972).24 See Bram v. United States, 168 U.S. 532

(1887).25 Robert Green Ingersoll, 1833-1899, U.S.

lawyer, agnostic, and writer, Amercian CollegeDictionary, Random House (1970).

The Bulletin Notes

Law enforcement officers are challenged daily in the performance of their duties; they face eachchallenge freely and unselfishly while answering the call to duty. In certain instances, their actionswarrant special attention from their respective departments. The Bulletin also wants to recognizetheir exemplary service to the law enforcement profession.

Lieutenant Klug Officer Kiser Officer Hoffpauir

A concerned motorist stoppedat the main gate of the Bureau ofEngraving and Printing, WesternCurrency Facility, in Fort Worth,Texas, and reported that a vehiclehad driven off the road and into aditch near the facility. Someonewas trapped inside the vehicle andwas yelling for help. LieutenantThomas L. Klug and OfficersJerry L. Kiser and Edward L.Hoffpauir of the Bureau of Engrav-

ing and Printing Police Force responded to the scene of the accident. After arriving at the scene, OfficerHoffpauir alerted passing traffic of the accident and began monitoring and directing traffic. LieutenantKlug and Officer Kiser found a vehicle partially submerged in the water-filled ditch. Ignoring therushing water and heavy rain and disregarding their own safety, Lieutenant Klug and Officer Kiserentered the ditch in waist-high water and contacted the lone female occupant, who told them that shehad injured her left leg and arm during the accident. She had difficulty moving and could not get out ofthe vehicle. To avoid aggravating the victim’s injuries or hindering extraction efforts, Lieutenant Klugand Officer Kiser stayed at the vehicle with the victim and monitored the rising water until medical andemergency personnel arrived. Lieutenant Klug and Officers Kiser and Hoffpauir exhibited professional-ism and courage in handling this incident and subsequently prevented the victim from drowning.

Sergeant Apffel Nominations for the Bulletin Notes should be basedon either the rescue of one or more citizens or arrest(s)made at unusual risk to an officer’s safety. Submissionsshould include a short write-up (maximum of 250words), a separate photograph of each nominee, and aletter from the department’s ranking officer endorsingthe nomination. Submissions should be sent to theEditor, FBI Law Enforcement Bulletin, FBI Academy,Madison Building, Room 209, Quantico, VA 22135.

Late one night, a subject armed with a semiautomatic pistol shot andseriously injured two men. A short time later, the same subject rode by anoccupied fast food restaurant and fired several shots into the establishment.Sergeant Jerry Wayne Apffel of the Fauquier County, Virginia, Sheriff’s Officeobserved the suspect approximately 1 hour after the shootings. The subjectrefused to pull over and a high-speed pursuit began in the direction and path ofthe first shooting crime scene, where deputies were present. Sergeant Apffel,fearing for the deputies in the street, quickly alerted them to get out of the wayseconds before the pursuitpassed through. SergeantApffel employed aprecision immobilization

technique, which brought the suspect’s vehicleto a stop. As Sergeant Apffel approached thevehicle, the suspect raised a pistol in an effortto shoot him. Sergeant Apffel discharged hisweapon, disabling the suspect. Sergeant Apffel’squick and decisive action led to the promptapprehension of a dangerous offender.

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Patch Call

The outline of the Oneida, New York, PoliceDepartment patch represents Madison County, and thered star pinpoints the location of the city of Oneida.The house featured in the circle is the home of thefounder of Oneida. It also was the location of the firstbank in the city and currently is the home of theMadison County Historical Society.

The patch of the Rockland, Maine, Police Depart-ment features the lighthouse and the breakwater thatprotects the Rockland Harbor on Penobscot Bay.Rockland Harbor is Maine’s largest natural harborand is home for numerous coastal sailing schooners,as well as commercial fishing vessels and recreationalboats.

Documents

FBI Law Enforcement Bulletin - July02leb