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Posted on Mon, Feb 15, 2010 : 6 a.m.

Discretion is the measure of a police officer

By Rich Kinsey


Downtown Ann Arbor is shown in shades of gray.

Rich Kinsey | For

Proper use of discretion is probably the most important measure of a police officer or department.

A police officer working the street would be like a dog chasing its tail if that officer strictly enforced every violation observed to the “letter of the law.” Furthermore, that officer probably wouldn’t have time to answer calls for service.

Looking back, when I first entered the field of law enforcement, I was naïve. I thought it would be easy. Things should be black or white, legal or illegal, and I would act accordingly. 

It didn’t take long to realize few things involved with human behavior are black or white. The best cops operate in the gray areas of human existence. The gray area is where we as citizens need the police to operate with confidence and good judgment.

Discretion can only be used on minor crimes. Felony crimes are black and white. If you commit a felony, you should get locked up. Many times when a suspect is caught, booked and spends a night or two in jail, it may be the only time that person will spend behind bars.

Prosecutors and trial courts are overburdened and necessarily must plea bargain most cases. The jails are too crowded, as are the state prisons. It all boils down to funding. The threats to society get locked up, and the nuisance criminals get a pass until they graduate into more serious crimes or become a nuisance that cannot be ignored. This is another level of discretion in the system.

One of my peers once said, “We give the citizens the lack of policing they demand.” For instance, Ann Arbor is famous for its original $5 fine for possession of marijuana. The fine was later increased to $25, which is ironically still $50 less than the fine for a minor in possession of tobacco. Clearly marijuana possession in small quantities was something citizens, through their city council, viewed as harmless and no big deal.  

Now put yourself in the shoes of an officer who pulls a motorist over for a minor traffic violation and sees a few burnt marijuana cigarettes - “roaches” - in the ashtray. Technically, if we were enforcing the letter of the law, those should be seized, logged into property, and a ticket issued. Once the ticket was issued, the officer would at some point in the shift drive to the station and log the roaches into property. 

So this $25 ticket takes an officer off the street for 20-30 minutes. Furthermore, it will take the property officer and clerk’s time to catalogue, store, inventory and later destroy the contraband. Is it perhaps a better use of the officer’s time to check out the driver and passengers, their demeanor and sobriety, the car (stolen or not) and “overlook” the roaches?

Should an officer write a traffic ticket to every driver pulled over for a traffic violation? Without discretion, this would have to happen. I can tell you from experience some people need tickets and other people deserve warnings, with a little lecture on traffic safety attached. 

I also believe an officer should either issue a ticket or give a traffic safety lecture, but not both. If you get a “break,” you will have to endure a short lecture why what you did was so hazardous. If you get a ticket, writing the check to the court should suffice as a reminder to drive more carefully. You don’t need a lecture.

The criminal justice system is far from perfect, but it works. Just like our government, there are checks and balances in the system. Patrol officers enforce the laws based on general directions given to them by their bosses, the prosecutor’s office and the courts. All of these entities represent the citizens who elect and fund the system. 

Some jurisdictions demand strict enforcement of the law. Other jurisdictions are less strict. The police should mirror the will of the people they serve.

Lock it up, don't leave it unattended, be aware and watch out for your neighbor.

Rich Kinsey is a retired Ann Arbor police detective sergeant who now blogs about crime and safety for



Wed, Feb 17, 2010 : 5:34 p.m.

No. I just removed the tinting. I was 19. I wasn't even thinking lawsuit.


Wed, Feb 17, 2010 : 12:58 p.m.

Did you file a lawsuit against the person(s) that sold you the car?


Wed, Feb 17, 2010 : 11:50 a.m.

The windows were already tinted when I bought the car and I had no idea it was illegal.


Tue, Feb 16, 2010 : 4:05 p.m.

Yes many people have illegaly tinted windows....people also speed every single day, and do not use turn signals. Ignorance of the law is no defense. I just always get a little sick of hearing "well I was breaking the law one day and then I got a ticket for unfair."


Tue, Feb 16, 2010 : 3:38 p.m.

Really? Because I see tinted windows all the time and this was many years ago. Besides, I wasn't "crying", thank you very much.


Tue, Feb 16, 2010 : 2:32 p.m.

"question, are speed traps considered part of the discretion equation?" No..the discrretion part somes in after you've broken the law and the PO let's you slide or marks your ticket down for less than it should be....or doesn't; at their discretion.


Tue, Feb 16, 2010 : 2:19 p.m.

@Loka Good point I wish I would have thought of it first


Tue, Feb 16, 2010 : 2:13 p.m.

"Hmm...I wonder if it was discretion when I was pulled over in Monroe for tinted windows." Yes it was discretion that no one had given you a ticket for driving around illegaly for years. YOU probably should have done a little research into it. Sorry I just picked one post...lot of crying going on in these responses.


Tue, Feb 16, 2010 : 1:36 p.m.

@Wings19 - You never know. I was sent to outpatient rehab for a first offense marijuana possession. Granted, outpatient is different, but I also took a deal (I think they call it a 7411) which the person in question may not have been able to get. People are court ordered to probation, and the probation officer can decide that you need stricter rehab/more community service than the court decided.


Tue, Feb 16, 2010 : 9:48 a.m.

Hmm...I wonder if it was discretion when I was pulled over in Monroe for tinted windows. When I told the officer that this is the first time it's been a "problem" in the 3 years I owned the car, he responded by saying that they're building a new police station. Nice.


Mon, Feb 15, 2010 : 8:38 p.m.

This is a difficult one. Discretion as in well-exercised common-sense prioritizing is necessary. Pretty much everyone is committing a "felony a day" as a recent book title states - well, maybe not a felony but certainly a misdemeanor. And people are at risk of getting ticketed, arrested, or worse, for disrespect of cop and not for serious crimes. So if the officers do not exhibit the utmost professionalism, it's asking for abuses of our civil liberties. Therefore, we have to focus on having the best-trained, well-balanced, common-sense police force that we can afford, or we'll end up with the equivalent of anarchy, perpetrated by thugs with badges.


Mon, Feb 15, 2010 : 7:51 p.m.

Wings19 - "And police don't break down doors without reason. "...that statement is just wrong. Do you recall this event? granted this isn't AA...but this is a great example of cops using "discretion" in the wrong way....these people did nothing wrong...but the cops shot their place up and killed their animals...the worst kind of discretion and any one of us could have been these people....


Mon, Feb 15, 2010 : 6:32 p.m.

@hard core ann arborite LOL, People don't get sent to dawn farm for minor infractions, or if they do, it's certainly not for a first infraction. And police don't break down doors without reason. If your "friend's" door gets kicked in and they get sent to dawn farm, maybe they should rethink their lifestyle. As for discretion by the police, I agree it's subjective. But there is a really simple solution; Don't break the law. It takes no effort to not go over the speed limit, etc. And in my experience, most people who lament "discretion" by the police are those who cry the loudest when ticketed for speeding, etc.


Mon, Feb 15, 2010 : 6:21 p.m.

You couldn't get me to be a cop if you put a gun to my head. What was a difficult profession many years ago has become impossible today. This guy is getting slammed even when he is trying to give us a break. There will always be those who take the art of nit-picking to a level of perfection unattainable to the rest of us peons. "If you don't ever drive.ooooo8 mph over the speed limit, you won't have to worry about....." Stuff and nonsense. By that metric, we'd have to have 60 judges on hand deciding if this or that infraction should be punishable or not. "Can't have the dull witted, discriminatory, racist cop deciding those issues, eh?" Racist: Anyone preoccupied with race.


Mon, Feb 15, 2010 : 4:48 p.m.

I think the reason people are so talkative about this isn't the concept of police using their discretion, that's common sense. The issue is that this idea is presented as if there's no discrimination, no corruption, and no unfair enforcement. That's the real matter at hand, how to allow the police to apply their discretion without allowing them to take advantage of it. What oversight would be required? What transparency? That's the part of this discussion that would lead to improvements in policing and life in the community. And the old adage of a few bad apples spoiling the bunch is usually misapplied when discussing police abuses, in case anybody wanted to bring that up; usually it's stated as some sort of excuse, explaining away the few bad apples without condemning the rest, but in reality that statement condemns the entire system based on the actions of a few bad cops.

hard core ann arborite

Mon, Feb 15, 2010 : 4:35 p.m.

This is a great article, and presents the realities of the job well, IMHO. I am amused, though, by the characterization of Ann Arbor's penalty for marijuana possession, which much of the country probably thinks is still a $5 fine. Just three years ago a young woman I know had her front door broken down at 6AM by the local narcotics enforcement team. They made her and her partner stand in handcuffs, naked in their living room, for an hour as the cops tore the place apart, pulling down the drop ceiling and dumping out drawers. All they found was one joint's worth of pot on the coffee table, left from a small party the night before. In the end, after a $125 ticket (not $75 or $5), a defense attorney's retainer, two 10 week stints at Dawn Farms for "rehabilitation", 100 hours of community service, a year's probation (with costs), and court costs, the total financial outlay excluding lost wages was over $4600. Now, THERE's your $5 fine! That's a big penalty for a youngster who works as a supermarket cashier. All I can say is, drug prohibition is a complete and utter failure, and people who think AA is lenient about pot possession are sadly misled. I applaud the police who understand the inherent trade-offs in their jobs and focus on the serious crimes, especially stopping violence of any kind, but think our legislators need to wake up, and LAWNET should be disbanded or re-directed.

Grand Marquis de Sade

Mon, Feb 15, 2010 : 3:08 p.m.

I hope the person who suggested that GPS tattle tale devices be installed in cars was kidding.

Eric P

Mon, Feb 15, 2010 : 2:25 p.m.

@ Ann Arbor Girl- Skatboarding downtown is a civil infraction, and last time I checked it carried a $75 dollar fine. The reason that it was outlawed in the '80s was that downtown merchants lobbied for it to be outlawed as they felt it 'Scared away customers". Most of those merchants are now gone despite the ban on skate boarding.


Mon, Feb 15, 2010 : 2 p.m.

Police discretion is a fact of life but let's not confuse discretion with assigning priorties. Whether or not an officer decides to stop someone for a traffic violation or prevent an assault, does not involve the use of discretion but the establishment of priorities. Discrimination is also a fact of life whether it be race, dress, attitude, or whatever rubs someone the wrong way. Cops can definitely be rubbed the wrong way. Whether they use their discretion to operate within the parameters of the law or outside those parameters is an issue of concern. There's a difference between arresting someone, and arresting the same person with a few uneccesary, but well placed whacks with a baton. There are officers who abuse their discretionary powers just like there are citizens who abuse their discretionary powers. It's not a perfect world but I think there should be more concern when sworn, armed officers function on the border of discretionary legality. Rank has its privledges and its responsibilities and those commissioned for the task should be held accountable for even a hint of abuse.


Mon, Feb 15, 2010 : 1:32 p.m.

Jake C---A voice of refreshing. It seems that if Kinsey wrote the "Earth is round" a bunch of you would have to chime in and claim it wasn't.


Mon, Feb 15, 2010 : 12:47 p.m.

ivaltron, From your post: "Why do you have to bring race into this? More importantly you are over looking something very fundamental for all of us. In this country we are all innocent until proven guilty. Should we be charged with a crime we have the right to a trial and be judged by a jury of our peers." First of all, no one can be so naive as to think that race does not play a part in how people view people. Please. Let's be honest. And this can also play in reverse....a black officer can look at a white man as needing to learn how it feels to get a ticket. The point is we do not KNOW what an officer is thinking when he uses his own personal discretion to decide if a person should or shouldn't get a ticket. Second of all, we have a right to a trial and to be judged by a jury of our peers. That's exactly it. The officer is not a judge. Maybe he shouldn't be deciding who gets a ticket and who doesn't. That's the point. It certainly provokes a lot of thought. I think there are things to think about seriously when one person, not sworn to be a judge but sworn to uphold the laws...decides to use discretion. Right or wrong, there is much to think about.


Mon, Feb 15, 2010 : 12:07 p.m.

question, are speed traps considered part of the discretion equation? Look at this long list of speed traps that people have reported in have to wonder if all these people would take the time to write about these traps if they weren't real. seems to me that AA has way too many cops if they have time to man all these speed traps. One thing is for sure....discretion in this town isn't equal.


Mon, Feb 15, 2010 : 12:01 p.m.

Skateboarding is not a crime. Legalize weed.

Jake C

Mon, Feb 15, 2010 : 11:59 a.m.

I'm not sure why so many people are getting bent out of shape by this article. The point is that when a police officer is on the job, he will probably observe more "illegal activity" than he can handle at one time, thanks to our huge criminal code. Jaywalking, speeding, parking near fire hydrants, running red lights, smoking pot or drinking in public, graffiti, assaults, shoplifting, robbery, etc., can all occur simultaneously, and it's up to the officer to decide which violations deserve his attention the most. After all, just because an officer is writing one person a ticket doesn't mean everyone else starts behaving entirely within the law. And if a cop patrolling Main Street ticketed everyone who jaywalked or was publicly intoxicated or drove 2 MPH over the speed limit (instead of just giving them a quick warning) he probably would miss a dozen other more serious violations happening.


Mon, Feb 15, 2010 : 11:22 a.m.

I disagree with the premise of this article. Legislatures make laws, Judges interpret them, the police enforce them. That is how the system is designed and is supposed to work. If there is any "discretion" in the system, it is at the interpretation level with judges. It pains me everyday to hear how some get out of traffic citations, while others don't. There are many reasons this happens, but it is all to common to find pretty young women getting off with warnings at a much higher rate. This is not even the "discretion" espoused by the article's writer, but the "discrimination" mentioned by an earlier poster. This example is just a microcosm of what happens when officers take on duties not assigned to their role in the legal system; discretion becomes discrimination.

ann arbor girl

Mon, Feb 15, 2010 : 11:14 a.m.

Lesko blue, skateboarding downtown isn't a crime. There are just a few downtown sidewalks where skateboarding has been disallowed because of the great number of pedestrians (e.g. Librety Street), and the rapid speed of skateboards doesn't mesh well with slow strolling pedestrians. The number of sidewalks where it is disallowed can be counted on one hand - and the number of sidewalks where it is perfectly fine to skateboard are in the hundreds. This seems like a reasonable way to have us all coexist without conflict.


Mon, Feb 15, 2010 : 11:09 a.m.

The job of the police officer is to enforce the law, not to make it or determine the guilt or innocence of anyone. It is inappropriate for officers to use "discretion" when determining whether to apply the law or not. This is a form of corruption. There are far too many cases of officers in the country applying the law in a non uniform manner. Whether it is letting friends and family off the hook for a speeding violation or harshly treating a young male driver who looks suspicious, unequal treatment cannot be accepted. As far as the comment on speeding violations is concerned, if you speed you should pay the fine. It shouldn't be a matter of whether the officer catches you or not or decides to let you go because you were polite and had no record. They get around this in Germany by having traffic cameras set up. You speed, they take a picture, you pay the fine. No issues. Even better solution. Put a GPS in every car. It will know where you are, what speed you are going and whether you were speeding or not, then send you a ticket. No more games of trying to evade the law.


Mon, Feb 15, 2010 : 10:40 a.m.

The guy was released after he sobered up which is standard practice. If it was a felony drunk driving (3rd offense) he may have gone to jail but not on a misdemeanor. He will have to appear in court at a later time. He was not released because of discretion.


Mon, Feb 15, 2010 : 10:25 a.m.

Cash, Why do you have to bring race into this? More importantly you are over looking something very fundamental for all of us. In this country we are all innocent until proven guilty. Should we be charged with a crime we have the right to a trial and be judged by a jury of our peers. As the news article indicates, Mr DeRoche was arrested, jailed, his car was impounded and he was charged with DUI. He was let go after he sobered up because there is no proof that he was driving the car. No body reported seeing him in the car and police found no evidence of alcohol in the car. Remember, its the prosecutors burden to prove Mr DeRoche was driving the car while intoxicated and not Mr DeRoche burden to prove he wasnt. Your race speculation is unnecessary and inappropriate. The Discretion article was interesting. Lets say you run a yellow light, your behavior will greatly influence the officers use of discretion. If you display an attitude as the officer talks to youre likely going to end up with a ticket. Would that be discrimination? The answer is NO. The use discretion is not a function race, age or gender. Its a function of common sense and self control. Give the police a hard time and youll get just what you deserve.


Mon, Feb 15, 2010 : 10:23 a.m.

I've seen those silly-looking "bike cops" downtown pull people over for the stupidest things all the time. someone should give them a copy of Rich's article.


Mon, Feb 15, 2010 : 10:09 a.m.

In this time of budget crunches, there's certainly no breaks to go around (, and unfortunately, discretion is usually reserved for other officers (


Mon, Feb 15, 2010 : 9:30 a.m.

Those of you who do not like "discretion", the next time you get stopped by the cops for speeding or whatever, do not ask for a break. Also, if there was no discretion, then once you hit 26 mph in a 25 mph zone, you would get a ticket. I bet you would complain about that.


Mon, Feb 15, 2010 : 9:15 a.m.

I agree with this THEORY, however Cops are human beings too, there is no way of dictating common sense. So unfortunately things have to be regulated and enforced equally by a set of rules that need to be followed. Personal Vendettas combined with a badge does not make a good formula for equal enforcement or protection under the law.


Mon, Feb 15, 2010 : 8:49 a.m.

I agree with Cash, and wonder how you reconcile the use of discretion with the ideal inscribed on the Supreme Court of "Equal justice under law".


Mon, Feb 15, 2010 : 8:34 a.m.

Sarcastic, Exactly.That's why we need to be careful about how we proceed in discretionary areas.


Mon, Feb 15, 2010 : 8:28 a.m.

Always a racist in the crowd.


Mon, Feb 15, 2010 : 8:27 a.m.

I agree with Cash. As in any profession there are those who should not be allowed to practice. How does discretion work then? I have to admit, I have been more than happy when I have received the stiff lectures given to me by officers using discretion. On the other hand I also learned my lesson about speeding from the ticket I was issued. As always I enjoy Rich Kinsey's blog and learn something new from each of his postings. Keep up the good work Rich. You are still busy keeping our citizens safe.


Mon, Feb 15, 2010 : 8:08 a.m.

I fear the word "discretion". It's way too close to another "d" word....discrimination. Is discretion what was used when the prominent political figure who is white was found drunk with his vehicle disabled, knocking things over in a Saline store? Discretion told the police to let him go "after he sobered up". Same thing would have happened if he was a young black man out of Detroit visiting Saline in the same condition, right? discretion - the power or right to decide or act according to one's own judgment; freedom of judgment or choice: It is entirely within my discretion whether I will go or stay. the quality of being discreet, esp. with reference to one's own actions or speech; prudence or decorum: Throwing all discretion to the winds, he blurted out the truth. discrimination - treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit. Discretion is certainly defended in your article. But we must know that every police officer will use discretion with no preconceived bias. Do we know that? Not saying the article is right or wrong. Just saying, it's something for all of us to think about. Thanks.