POLICEPOLICEPOLICEPOLICEPOLICE
This topic summarizes New Jersey law concerning
the areas of police duty, misconduct, liability and use of
force, and the issue of selective enforcement. (See also,
MISCONDUCT IN OFFICE, DEFENSES, FOUR-
TEENTH AMENDMENT, this Digest).
I. DUTY TO ENFORCE THE LAW
A police officer’s most basic duty is to enforce the law.
Canico v. Hurtado, 144 N.J. 361, 365 (1996). The police
are expected to use “all reasonable means” to enforce the
law and catch perpetrators. Id.; State v. Cohen, 32 N.J. 1,
9 (1960). An off-duty plain clothes policeman, who is
working as a security guard, has the duty to enforce the
law and apprehend a perpetrator. State v. Hinds, 143 N.J.
540, 548 (1996).
A police officer has no discretion in enforcing the law.
The officer must take whatever action is necessary in good
faith and with reasonable diligence to bring criminals to
justice. State v. Secula, 153 N.J. Super. 539 (App. Div.
1977). A police officer’s duty to enforce the law also
includes the duty to refrain from interfering with the
enforcement of the law in another jurisdiction. State v.
Carminati, 162 N.J. Super. 234, 245-46 (Law Div.
1978).
II. WILLFUL VIOLATION OF PRESCRIBED
DUTY
Police officers, as public servants, are subject to the
criminal code for the offense of official misconduct.
N.J.S.A. 2C:30-2, replacing N.J.S.A. 2A:135-1 (neglect
of duty) and N.J.S.A. 2A:85-1 (offenses indictable at
common law). See State v. Hinds, 143 N.J. at 544-46;
State v. Maioranna, 225 N.J. Super. 365, 368-69 (Law
Div. 1988), aff’d and remanded, 240 N.J. Super. 352
(App. Div. 1990), certif. denied, 127 N.J. 327 (1991).
Official misconduct is a second degree crime. N.J.S.A.
2C:30-2. If an officer is convicted of an offense “involving
or touching” his or her employment, the officer is also
subject to forfeiture of office. N.J.S.A. 2C:51-2; State v.
Lazarchick, 314 N.J. Super. 500 (App. Div.) (police
officer convicted of simple assault of a teen during a traffic
violation warranted removal), certif. denied 157 (1998);
State v. Pitman, 201 N.J. Super. 21 (App. Div. 1985)
(correction officers who pled guilty to disorderly persons
offenses related to moving an inmate warranted removal
and bar of future offices); State v. Lore, 197 N.J. Super.
277, 288 (App. Div. 1984) (conviction for crime not
required for forfeiture).Generally, N.J.S.A. 2C:30-2 is designed to
encompass wrongful and unlawful acts or failure to act.
State v. Hinds, 143 N.J. at 545-46. The crime of official
misconduct regarding a police officer’s failure to act is
limited to those circumstances in which “an officer
refrains from performing a duty to ‘obtain a benefit for
himself or another or to injure or to deprive another of a
benefit’.” Id. at 549 (quoting N.J.S.A. 2C:30-2).
Although the specific duties of police officers are not
enumerated by statute, their duties are inherent or
implicit. State v. Hinds, 143 N.J. at 546.It is a basic tenant of law that police officers should
not commit crimes, see State v. Molnar, 81 N.J. 475, 484
(1980); State v. Peterkin, 226 N.J. Super. 25, 37-38 (App.
Div.), certif. denied, 114 N.J. 295 (1988), nor solicit
others to commit crimes, State v. Cohen, 32 N.J. 1
(1960). Any less scrutiny would undermine public
confidence “in the impartiality and fairness of the judicial
process.” State v. Molnar, 81 N.J. at 485; see also State v.
Gookins, 135 N.J. 42, 49 (1994).Police officers can commit official misconduct when
off duty. See State v. Hinds, 143 N.J. at 540 (off duty
police officer who shoplifted), State v. Bullock, 136 N.J.
149 (1994) (suspended officer who represented himself
as a police officer while committing a crime); State v.
Johnson, 127 N.J. 458 (1992) (off duty trooper wore
uniform and faked drug arrest); Moore v. Youth
Correctional Inst., 119 N.J. 256 (1990) (off duty
correctional officer who trespassed on supervisor’s
property to harass); Sparkman v. City of Atlantic City, 237
N.J. Super. 623 (App. Div.), certif. denied, 121 N.J. 660
(1990) (police officer indicted for attending a party
where cocaine and marijuana were present and officer
failed to act).Instances of police misconduct falling within a police
officer’s “color of office” include: police officer sold police
identification cards, State v. Rockholt, 96 N.J. 570
(1984); police chief falsely swore to a State Grand Jury
investigator, regarding acts of police corruption, State v.
Bielecki, 196 N.J. Super. 332, 337 (App. Div.), certif.
denied 99 N.J. 216 (1984); police chief offered
immunity, without authority, to mayor’s son, State v.
Secula, 153 N.J. Super. 539; New York detective
convicted in New Jersey of extortion, State v. Barts, 132
N.J.L. 74 (Sup. Ct. 1944), aff’d 132 N.J.L. 420 (E. & A.
1945), and police chief took bribe to influence DWI