(a) An officer should make an arrest or issue a citation only when doing so directly advances the goal of public safety. When authorized under governing law, an officer should issue a citation in lieu of a custodial arrest, or a warning in lieu of a citation, unless the situation cannot be effectively resolved using the less intrusive means.
(b) In conducting a stop or arrest, officers should minimize undue intrusions on the liberty, time, and bodily integrity of the person stopped.
(c) Legislatures and agencies should promote the use of less intrusive procedures, and should consider restricting the use of arrests for certain categories of offenses.
a. Summonses and arrests. Officers possess the power of arrest in order to further a number of societal goals: to maintain public order, initiate the criminal process against a defendant, facilitate the preservation of evidence, and help to ensure an individual’s appearance at later proceedings. At the same time, an arrest can impose a variety of costs. An arrest involves a serious—even if temporary—deprivation of liberty, which can be frightening and humiliating, and can disrupt an individual’s ability to fulfill family or work obligations. As a result of arrest, an individual may face significant fines and fees, loss of public housing, loss of a job, deportation, and child-custody consequences. These in turn can have serious ripple effects on the individual’s family and community. Studies show that once a person is taken into custody, and held there, the possibility of eventual incarceration increases. Any time an officer decides to make an arrest, there is some risk that the officer will encounter physical resistance that may necessitate the use of force—which can result in injury to both the officer and the civilian involved. Finally, arrests are expensive: an arrest typically takes an officer off the street for several hours, and imposes various other processing and administrative costs on agencies and courts.
In some circumstances, an arrest may be the most appropriate—and perhaps the only—way to achieve the aforementioned objectives. But in many instances, these same goals may be achieved in other ways. Officers often have options available to them other than arrest. For many defendants, a summons may be just as effective at ensuring their appearance in court. In some cases, a warning or other intervention may be sufficient to resolve the situation and deter future crimes or violations. In those situations, an arrest constitutes an unnecessary intrusion on individual liberty, and should be avoided. That is particularly true for individuals who are suspected of offenses for which the maximum penalty is a fine.
Finally, although a summons or a citation may be preferable to an arrest in many circumstances, it is important to note that these lesser sanctions can impose significant costs as well. For many individuals, having to pay even a small fine may mean forgoing other necessities such as food, electricity, or medical care. Some may simply be unable to pay. In some jurisdictions, individuals who cannot pay their fines and fees may face jail time or other consequences, such as loss of a driver’s license. Much like an arrest, a criminal summons or a citation also may result in a criminal record, which can affect an individual’s eligibility for employment or occupational licenses, loans, and public benefits. An additional concern with summonses and citations is that jurisdictions may come to see them as a revenue-generating mechanism. This can skew incentives and result in policies that encourage officers to issue summonses or citations in circumstances in which doing so does not in fact promote public safety, and instead imposes substantial burdens on communities that often are least able to bear them.
For all of these reasons, agencies should encourage officers to consider using lesser sanctions when doing so is consistent with the needs of public safety and permissible under governing law. Agencies should not impose minimum quotas or targets for citations or arrests, or evaluate officers based on the quantity as opposed to quality of enforcement actions taken. In addition, states and municipalities should revisit policies that incentivize agencies to issue citations in order to raise revenues either for the agency or for the municipality as a whole. Such policies often impose disproportionate burdens on low-income and minority communities and should be discontinued.
b. Minimizing the intrusiveness of encounters. All enforcement actions taken by the police represent a notable intrusion into individual liberty. They can cause considerable anxiety, discomfort, and disruption. There are a number of steps that officers should take—and agencies can encourage through policies and training—to limit the overall intrusiveness of encounters. To the extent practicable, officers should limit the duration of stops and noncustodial arrests, as well as the time that arrested persons spend in police custody. Officers also should avoid the unnecessary use of handcuffs and other restraints, particularly when dealing with juveniles and other vulnerable populations. And officers should take steps to minimize the intrusiveness of searches—by limiting the scope of a search to what is necessary to maintain officer safety or recover evidence, by ensuring whenever practicable that individuals are searched by an officer of the same gender, and by limiting the use of strip searches and other similarly invasive tactics.
c. Need for legislative and agency policy on citations and arrests. Agencies should provide officers with clear guidance on how the discretion to arrest should be used. Agencies typically are in a much better position to consider the costs and benefits of arrests in various circumstances, and to partner with other agencies and civic organizations in developing alternatives.
Many states, municipalities, and agencies already have adopted various policies and programs to encourage the use of lesser sanctions and to restrict the use of arrests. Most states permit officers to issue a summons or a citation in lieu of arrest for low-level offenses. Some require officers to issue a summons or a citation in lieu of an arrest for certain offenses unless an arrest is necessary to preserve the peace, or there is some reason to believe that the individual will fail to appear at later criminal proceedings. A number of jurisdictions have provided officers with alternative mechanisms for addressing disruptive or disorderly conduct that otherwise would necessitate arrest. These include crisis drop-off centers for the mentally ill, detox centers for individuals under the influence of drugs or alcohol, and homeless shelters where officers can take individuals who are in need of services and support. Jurisdictions also have taken steps to reduce reliance on formal sanctions for juvenile misconduct, which often can better be addressed through school discipline, counseling, or other services.
d. Mandatory arrest policies. In many jurisdictions, officers are required either as a matter of department policy or state law to make an arrest in certain circumstances—typically in cases that involve domestic violence. The goal of these provisions is to protect victims by ensuring that officers take claims of abuse seriously, and that the alleged perpetrator is removed from the area and unable to cause further injury. Limiting officer discretion in these cases also reduces the risk that officers will take some claims of abuse more seriously than others based on factors that are unrelated to the severity of the harm imposed. Increasingly, however, practitioners and scholars have come to doubt that mandatory-arrest policies are in fact an effective means of achieving these objectives. In particular, studies suggest that mandatory-arrest policies may discourage victims from calling the police for fear of the collateral consequences of an arrest on the suspect and family. These findings suggest that, at the very least, jurisdictions should continue to assess whether the policies have had their intended effects, and whether these same goals might be achieved in ways that minimize some of the attendant harms. Whatever the benefits of these arrests, they are, like other arrests, costly to the individuals arrested and to their communities, and should be justified by clear public-safety needs.
Certain enforcement actions are simply part of what police officers do, and what we expect them to do. A number of offenders will need to be arrested. In the course of conducting arrests, searches will be required. Acting in lieu of arrest, officers will issue summonses.
Although these actions are at times necessary, and are certainly familiar, this Section recognizes that all actions that law-enforcement officers take during the course of an encounter impose some costs, which officers should strive to minimize to the extent possible. Handcuffs limit an individual’s ability to move, and can be painful and humiliating. All searches, however brief, subject individuals to unwanted contact with strangers. The costs associated with these actions can be exacerbated if undertaken in a manner that accounts insufficiently for the individual’s dignity. For example, searches and frisks of an individual’s person are more intrusive when conducted by an officer of the opposite gender, or when conducted in public view.
An arrest in particular constitutes a serious intrusion on an individual’s liberty and imposes any number of additional harms, from dignitary costs to threats to one’s livelihood. See, e.g., Amanda Gellar et al., Aggressive Policing and the Mental Health of Young Urban Men, 24 Am. J. Pub. Health 231, 232 (2014). This is true even if the individual is detained only briefly and ultimately is not charged. See Gary Fields & John R. Emshwiller, As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime, Wall St. J. (Aug. 18, 2014, 10:30 PM), www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402. An arrest may lead to loss of employment, eviction from public housing, or even loss of custody of one’s children. See, e.g., Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809, 826-833 (2015); 24 C.F.R. § 966.4(l)(5)(iii)(A) (2016). It can have immigration consequences as well. See Jain, supra. Arrests increase the likelihood of pretrial detention and conviction, as well as longer prison sentences. See Christopher T. Lowenkamp et al., Laura & John Arnold Found., Investigating the Impact of Pretrial Detention on Sentencing Outcomes (2013), https://perma.cc/8DLL-FJ35; Mary T. Phillips, New York City Criminal Justice Agency, Pretrial Detention and Case Outcomes, Part I: Nonfelony Cases 26, 30, 35, 40 (2007). The consequences of arrest may spill well beyond arrestees themselves and affect parents, spouses, children, and the communities to which they belong.
Arrests may be costly for officers and agencies as well. Arrests are dangerous. An arrest may provoke a violent response, risking the physical safety of officers, bystanders, and the individual in question. See Cynthia Lum & George Fachner, Int’l Ass’n of Chiefs of Police, Police Pursuits in an Age of Innovation and Reform: The IACP Police Pursuit Database 7 (2008), https://perma.cc/XZ96-NPDD (finding that one of the most common circumstances of officer death, second only to an automobile accident, is an arrest situation). Arrests also are expensive: studies estimate that each arrest costs departments several thousands of dollars and takes officers off the street for hours. See Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307, 319 (2016) (noting that an arrest takes an officer off the street for between four and 13.5 hours).
Although fines (and accompanying fees) sometimes are available as an alternative to arrest, these sanctions themselves are not costless. Individuals may not have enough money to pay the fines, and may face consequences similar to those that result from arrest. In some jurisdictions, for example, individuals who cannot pay fines face jail time. See, e.g., Ariz. Rev. Stat. Ann. § 13-810 (2017); Mo. Rev. Stat. § 558.006 (2016). In others, they can be stripped of their driver’s licenses, severely limiting their ability to work. See Va. Code Ann. § 46.2-395; but see Thomas v. Haslam, 329 F. Supp. 3d 475 (M.D. Tenn. 2018) (holding that a Tennessee law that permits the state to revoke an individual’s driver’s license for failure to pay court costs is unconstitutional as applied to indigent defendants). Even if an individual can pay, the money spent on the fine is money not available for other necessities like rent, food, utilities, or medical care. Criminal summonses and citations also may create a criminal record and trigger many of the collateral consequences associated with arrests. See also § 1.10 (Policing for the Purpose of Revenue Generation). Any rational system of criminal justice would take those costs into account. The proper approach, outlined in this Section, is one of minimization. See Rachel A. Harmon, Why Arrest?, 115 Mich. L. Rev. 307, 362-363 (2016). Stated simply, policing agencies and officers ought to pursue legitimate public-safety purposes using the least intrusive means available, so long as their actions are within the bounds of governing law. If a less intrusive means would accomplish the public purpose equally well, the officer should not use the more intrusive tactic.