- Police Officers
A police officer has the duty to use all reasonable
means to enforce laws applicable in his jurisdiction, and
to apprehend violators. He also has a duty to abstain from
soliciting others to commit crimes. A police officer must
not himself violate laws he is sworn to enforce applicable
in his jurisdiction. State v. Cohen, 32 N.J. 1 (1960).
A police officer is not invested with discretion to
decide whether the law should be enforced. He is obliged
to take such lawful action as in his discretion and in the
exercise of good faith and reasonable diligence is necessary
to bring criminals to justice. A police officer’s discretion
is limited to the determination of the steps to be taken to
that end. A police officer may not offer immunity to a
witness. To do so may constitute misconduct in office.
State v. Secula, 153 N.J. Super. 234 (Law Div. 1978).
In making an arrest, a police officer is permitted to
use only such force as may be reasonably necessary to
effectuate the arrest. A police officer’s use of excessive
force in making an arrest will subject him to criminal
liability not only for assault, but also for the crime of
official misconduct. State v. Lore, 197 N.J. Super. 277
(App. Div. 1984).
A police officer commits official misconduct if, with
purpose to obtain a benefit or to injure another, he
conducts unauthorized surveillances, or fails to inform
his superiors of his surveillances and fails to turn over to
his superiors the photographs, tape recordings and other
materials which he compiles from these surveillances.
Bayonne Municipal Investigating Committee v. Servello,
200 N.J. Super. 413, 417-18 (Law Div. 1984).
A police officer is not authorized to conduct a search
in a manner proscribed by the Fourth Amendment to the
United States Constitution or by Art. I, ¶ 7 of the New
Jersey Constitution. In particular, a police officer who,
without probable cause, conducts a strip search of a non-
misdemeanor traffic violator acts contrary to this
proscription and may therefore be prosecuted for
misconduct in office. State v. Stevens, 203 N.J. Super. 59
(Law Div. 1984), aff’d, 222 N.J. Super. 602 (App. Div.
1984), aff’d, 115 N.J. 289 (1989); see also N.J.S.A.
2A:161A-1 et seq. (regulating the process for conducting
strip searches but declaring that only administrative
sanctions, and not criminal sanctions, shall be imposed
upon persons who violate these statutory provisions).
- Prosecutors
The duties of a prosecutor require that he investigate
each matter with care; that he examine the available
evidence, the law and the facts applicable to each other;
that he intelligently weigh the chances of successful
termination of the prosecution, having always in mind
the relative importance to the county he serves of the
different prosecutions which he might initiate. His
discretion as to whether to prosecute must be exercised in
good faith and in accordance with established principles
of law, fairly, wisely, and with skill and reason. If the
prosecutor wilfully refuses to act, without just cause or
excuse, then he is guilty of a breach of his duty rendering
him liable to indictment. State v. Winne, 12 N.J. 152
(1953).- Sheriffs, Undersheriffs and Constables
In State v. Grimes, 235 N.J. Super. 75 (App. Div.
1989), the Appellate Division reversed defendant’s
official misconduct conviction, finding that the law of
constables’ duties in tenant removals is so undefined and
uncertain that the law does not give a person of ordinary
intelligence fair warning what conduct is proscribed.State v. Silverstein, 76 N.J. Super. 536 (App. Div.
1962), aff’d, 41 N.J. 203 (1963). An undersheriff, like
the sheriff, stands in a fiduciary relationship to serve the
public with the obligation to exercise his discretion in
good faith, with honesty and integrity, and to the best of
his ability. The indictment in this case, which charged
the undersheriff with misconduct in office, was sufficient
because it alleged that the undersheriff failed in this
obligation by knowingly accepting false affidavits of
justification of bail bond sureties, and by knowingly
accepting unsworn affidavits.- Councilman -- fixing a traffic ticket
State v. Gora, 148 N.J. Super. 582 (App. Div. 1977),
certif. denied, 74 N.J. 275 (1977).The proofs at trial demonstrated that defendant, a
former president and member of a city council, accepted
money for the purpose of fixing a traffic ticket. The
Appellate Division held that this was sufficient to show
that defendant committed an “act or omission in breach
of a duty of public concern” and thus rendered defendant
liable for conviction for the pre-Code crime of
misconduct in office.