[ MAUKA-MAKAI ]
PHOTOS BY BURL BURLINGAME / BBURLINGAME@STARBULLETIN.COM
Retired police officer Gary A. Dias
HPD Blues in black and white
employs insight, humor and
compelling storytelling in a new book
about police work in Hawaii
Chapter 24: "Discretion" Have you ever been stopped by a police officer for driving in some fashion that the Traffic Code says you ought not to be doing? Then you sit waiting for him to come up to your car and you're wondering if he'll be "nice" enough to give you a warning? There are some things you can do to help the cop sway toward a warning instead of a citation. Here are a few rules to follow when stopped by the nice police officer.
An excerpt from 'Honolulu Cop'1. Don't call out "Whaaat? What I did?"
2. Even though you're secretly hoping the cop is suffering from a bad case of rash in places he won't even show his wife, do say "Good Morning or Good Evening." Pleasantly.
3. Acknowledge your guilt early. Even though you're absolutely certain you were only doing 35 mph coming down Pali Highway. Of course, you know that absolutely no one does 35 mph coming down Pali Highway.
4. After saying "I'm sorry," do state that you will "be more aware of your speed." Don't say you'll never do it again. We all know that as soon as the cop leaves you'll be speeding.
5. When you feel like challenging his observation that you violated the law, see Rule # 3. Particularly, never state "How could you tell from your position? Huh? Huh?"
6. Praise his choice of dark glasses. A suggestion is "I like your glasses. Where did you get them?" Stop there. Do not add "Longs?"
7. Never say "Hurry up, I gotta be at a meeting in 10 minutes."
8. It is permissible to try the claim "I was speeding 'cause I really gotta go bathroom."
9. Cry. And state "My husband is going to hit me again when he finds out about this." This rule has shown to be very effective in changing the tag to a warning. Male motorists may use this rule, but should state "My wife" instead of "My husband" but don't hold your breath.
10. If you're brave enough to say "I'll see you in court!" ... you will.
Police discretion is founded in the belief that people don't always intend to commit a crime or break the traffic code. We make mistakes. Police officer's girlfriends, boyfriends, spouses, sisters, brothers, dads, moms and kids make mistakes, and we all hope for a break in those cases. So society tells law enforcement that police officers need the ability to use their discretion and make a better judgment based on mitigating or aggravating circumstances.
There is a clear difference between the concept of "the letter of the law" and "the spirit of the law." The letter of the law means that the law is specific and that our society intends that police enforce it without exception. Murder, for example. It would be totally uncool for a homicide detective to discuss with his lieutenant: "Boss, the guy was Joe's third cousin on his mother's side, why don't we just look the other way this time?"
On the other hand, there are times when there is a societal need to have a specific law on the books, but society wants the police officer to make a judgment about enforcing that law because there may be valid mitigating circumstances. The classic example is the traffic citation. It is during these circumstances that the community has an expectation that the officer is mature enough, has had the proper training and development, and will take the best interests of the community into consideration when making discretionary judgments.
Of course, being related to or a friend of a police officer is also an important consideration. Remember the hiring interview question "Would you tag your mother?" Never try this excuse on a cop by using my name.
"Oh, officer, You remember retired Major Dias? He's my good friend."
That could get you arrested depending on who the cop is who stopped you.
Usually discretion does not fall into the criminal side of the law, but there are times when society would be offended if we pursued certain cases. One example of this is a story I call "Aku Eye and the Potato."
One day when Tom Pickard was the Receiving Desk Captain, and I was the Receiving Desk Sergeant, an officer brought in a shoplifting arrest from a major grocery chain. The "suspect" was an elderly Japanese woman. She had to be in her 80s. She was bent over and walked on crooked legs that had probably seen many years of hard work, and she looked traumatized to be in the Receiving Desk among all the officers. As we took custody of her, the officer went into Pickard's office to explain the arrest. The Juvenile Crime Prevention Division 200 yards across the street probably heard the resulting explosion.
The woman was arrested by store security for stealing one, yes, you read that right, just one potato. She told the HPD officer who arrived to take custody of her that her husband was sick in bed and that they did not have any food. She did not take the potato for herself. She needed it for her husband. The store manager, however, told the HPD officer that shoplifting is shoplifting. They felt bad for her, but the law is the law, after all.
The mistake that the HPD officer made was not using his discretion and bringing the old woman into the desk to Captain Pickard.
He stormed out of his office leaving the arresting officer behind. He looked at the old woman and smiled at her as he pulled up a chair.
"Mama," he asked, "your husband sick?"
The woman nodded. "I think he dying. He very weak. We no more food."
"Is that why you took the potato?"
The woman nodded again and tears fell from her eyes.
Pickard patted her on the back and stood up. He took a $20 bill from his wallet and handed it to an officer.
"Take her with you, go buy her food, then take her home."
He pointed at me, his aku eye bulging.
"You call the Salvation Army, Catholic Charities. I don't know who, I don't care who, you find her help and someone who is going to follow up with her. Now!"
He looked at the arresting officer who was feeling quite small.
"You, use your head next time. And don't you ever bring in an old woman who took a potato for her sick husband."
We bought her food and took her home. I found her help.
This incident brought home a statement made to me by my father on the day I graduated from Recruit School: "Remember the little guy."
My dad worked all his life on the waterfront as a longshoreman and stevedore. He left intermediate school to work and help support his family. He knew what it was like to struggle to feed your kids. He knew what the word sacrifice meant to people who had very little money. When he told me to remember the little guy, I kinda thought that he meant to respect people.
Aku Eye and the potato incident made my father's words very clear. To not only have respect for people who have little money for people who are struggling. To have compassion as well. The compassion that Tom Pickard showed to that old woman burned into my mind. This was part of the great respect I have for Tom "Aku Eye" Pickard. That and the fact that his common-sense approach to police work reminded me of my father. I think if Dad were aware of the concept, he would have told me that the spirit of the law was equally, if not more important than the letter of the law. I think he would have said to temper action with respect and compassion and if possible, to learn the "why" behind someone's behavior.
Years after this incident, I began teaching courses on criminal justice or criminology at various colleges and universities in Honolulu. Inevitably the topic of ethics and values would arise in one form or another and I like to open the discussion with the question "What would it take in your life for you to steal?"
Initially, students usually claim that there is no condition that would force them to steal. Then I change the paradigm just a little and ask "Would you steal to feed your children?" To a person, each student would answer "yes." Then I would introduce the story of Captain Tom "Aku Eye" Pickard and the Potato and begin a discussion on police ethics, values and discretion.
So, next time you're stopped by a police officer for speeding, try this:
"Good morning, Officer. I'm sorry, it was all my fault. And say, I like your glasses. Did you know I'm a friend of Gary Dias, and I really gotta go to the bathroom. (start sobbing) "And, Oh God, if you give me that ticket my wife is going to hit me again."
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