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Police Rulemaking Revisited: Some New Thoughts on an Old Problem

NCJ Number
107167
Journal
Law and Contemporary Problems Volume: 47 Issue: 4 Dated: (Autumn 1984) Pages: 123-183
Author(s)
G H Williams
Date Published
1984
Length
61 pages
Annotation
This article analyzes the strengths and weaknesses of Kenneth Davis' and Ronald Allen's contrasting views of the scope and extent of the constitutional and statutory power of police to develop discretion-limiting rules and guidelines.
Abstract
In reviewing the issues, this paper concludes that police do have authority to develop rules to control arrest decisions and that police agencies should use this authority to achieve greater uniformity in decisionmaking. Thus, the courts should recognize police rulemaking. Statutes have had some effect in limiting the political influence on police action, but they have never completely controlled officers' arrest decisions. Discretion under these statutes is expected by the legislators. A review of State constitutional separation of powers and delegation principles likewise leads to the conclusion that police have the power to develop law enforcement rules. At the very least, the police may develop arrest guidelines applicable to minor or low-visibility crimes. If the police do not have explicit uniform arrest guidelines, courts have authority to interpret the constitutional doctrines of due process and equal protection as requiring such guidelines. 361 footnotes.

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