Casual Conversations, Formal consequences!

April 17, 2011 Leave a comment

More often than not, when a LEO is “under investigation,” the entire agency knows about it! Let’s face it, as a profession were are good at respecting the privacy rights of the public, but “scoop” on our co-workers is generally fair game! This article is about the pitfalls of those casual conversations and the ever churning rumor mill present in so many, if not most, agencies.

Investigations into misconduct should be conducted in a confidential manner for several reasons. First and foremost, LEOs are professionals. An allegation into misconduct of a fellow professional is a serious matter. Therefore, the details, as well as the existence, of an investigation should be closely guarded to the same degree as a sensitive criminal allegation. Just as a false criminal allegation can destroy the reputation of a private citizen, the mere allegation of misconduct, even if unfounded, can signal the end of a LEO’s career.

The second reason to keep these matters confidential is simple; until proven, an allegation is just that and nothing more! Agency administrators are very sensitive to keeping criminal allegations under wraps until investigators possess sufficient probable cause to bring charges against a citizen. The same respect and presumption of innocence should be afforded to LEOs who are under investigation. Sounds like a due process issue to me, but what do I know. I’m just a lawyer!

The third reason to avoid casual conversations about pending investigations is to protect the integrity of the process. Standard investigative techniques mandate that we separate witnesses to avoid tainting their impressions and potential testimony. When the agency is buzzing with rumors and innuendo about an administrative investigation, you risk tainting the information to be gleaned from interviews. Those tainted statements will surface again in personnel hearings, criminal cases and lawsuits. By then, it is too late to “unring” the bell.

Finally, LEOs who are under investigation should beware of any casual conversations with anyone. Remember that Garrity protections apply to statements compelled by management. Any statements you make to a deputy chief who asks you what happened “off the record” may not be protected under Garrity. If this occurs, you will be required to show a court that you subjectively believed that you were required to answer those questions. While I would hope that such “off the record” conversations are not an attempt to entrap you, I was not born yesterday! This is particularly important in any use of force investigation.

So here is my advice for administrators and LEOs who are under investigation as well as any LEO in the agency. For the folks in charge, your agency should have a strict policy to keep any allegation of misconduct confidential. This includes investigations conducted by a criminal division, internal affairs or at the supervisor level. The consequences for failing to keep such allegations confidential should be the same as the consequences for leaking information on a sensitive criminal investigation to the public.

For the LEOs under investigation, speak only to the investigators and your attorney. Nothing good will come from discussing these matters with your co-workers. At the very least, you may taint the very testimony that can exonerate you. In the worst case scenario, you may place a friend at the center of an investigation that does not concern her. If you are approached by anyone who desires to speak “off the record,” you should respectfully decline the opportunity irrespective of the rank of the person who initiates the conversation. Tell them you are under orders from your attorney not to discuss the matter without counsel present. Any lawyer will give you this instruction once the lawyer is engaged to represent you. If you do not have an attorney to assist with your defense of the allegations, perhaps you should reconsider that decision.

For the rest of the LEOs in the agency, preserve and exemplify the highest standards of our profession by respecting the investigative process. Refuse to engage in the idle banter and rumor sharing and discourage others from doing so. Remember that your “off the record” statement could change the direction of the investigation and become the pivotal piece of evidence in a discipline hearing or trial. How will you defend the fact that your statement was based upon a rumor? Most important, recognize that you could be under investigation tomorrow. What level of professionalism should you expect from your fellow professionals?

Stay safe.

Filed under Case Law, Education, Legal Update, LEO Litigation Tagged with , , , , , , , , , ,

Wills Are For Rich Folks….and LEOs!

March 20, 2011 Leave a comment

If you’ve ever sat in one of my classes, you know that I always speak to LEOs about getting a will. I raise this issue no matter what class I am teaching because the topic is too important. I also tell my classes that I do not draft wills. I have a group of lawyers who help the LEOs that I send to them.

I often hear LEOs say that they do not have any money, so they do not need a will. I could not disagree more. First, if you are killed in the line of duty, your survivors will receive a considerable amount of money from several sources. Second, a will is your opportunity to give guidance to those who survive you. If you have ever lost someone close to you, you know that a will can be a comfort to your loved ones.

Your estate consists of all of the things you own at the time of your death. If you do not have a will, your estate be handled according to state law. Your property will be divided and a court will appoint someone to manage that process. The person who manages your estate also has the ability to bring suits on behalf of your estate. That means if someone is responsible for your death, your estate has the right to bring a suit against them. This could be an individual, a motorist or a company regarding any sort of product liability.

When you draft a will, you should also consider guardianship for your minor children and an advanced directive or similar document that allows someone to make medical decisions on your behalf. Finally, you can set up one or more trusts for your children. If you think there will not be any money to fund those trusts, think again.

A line of duty death has the potential to bring compensation from several sources. Most departments provide a death benefit and most FOP lodges do the same along with the Grand Lodge of the Fraternal Order of Police. If you are an NRA member, there is a $25,000 benefit and other funds available for scholarships for the dependents of fallen LEOs. The United States Department of Justice also has benefit programs for line of duty deaths and severe disabilities and many states have similar programs. Concerns of Police Survivors or COPS, has a list of resources available to survivors.

I am asked all the time if you should write your own will. In my humble opinion, that is like using a “neurosurgery at home” kit. You can save a lot of money, but good luck fixing your mistakes! I hired a lawyer to draft wills for my wife and me because it was too important and I do not write wills everyday. I’m certain that there are lawyers in your communities willing to provide reduced will related services for LEOs in your community. All you need to do is ask.

Make certain a trusted friend or two has a copy of the will to make things easier and let other friends and relatives know where they can find a copy. Your survivors will have a lot on their shoulders. These small steps will help them.

I know you feel the same way about needing a will as I do in one respect. The Grim Reaper better not bring a sickle to a gunfight ’cause I am not going anywhere without a fight! However, there is no denying that we will all leave this earth at some time. Far from being a way to divide a fortune, a will helps your survivors through the most devastating time in their lives.

Something to think about. Stay safe.

Filed under Case Law, Education, Legal Update Tagged with , , , , , , , ,

Freedom of Speech After Snyder v. Phelps: A Lesson for LEOs

March 6, 2011 1 Comment

The news, in every form, has been buzzing this past week about the United States Supreme Court’s opinion in Snyder v. Phelps. This is the case involving protests by a church at the funerals of United States service members. Although the media did not focus on this issue, this church also protested at the funerals of firefighters and LEOs. You can read the full opinion here and, as always, I encourage you to do so. The opinion contains a summary known as a syllabus. However, you should take the time to read the entire opinion. Opinions from the United States Supreme Court on the First Amendment are relatively rare. Therefore, you will likely learn a lot from the opinion as the Court reviews past cases in light of the facts of this case. Part of that discussion relates to the First Amendment protection afforded matters of public concern. That is a critical analysis for LEOs.

First, let’s discuss the opinion from the United States Supreme Court. As you probably guessed, the news stories missed several key facts concerning both the reasoning and basis of the Court’s decision. I have come to expect this as court opinions do not lend themselves to sound bites. This is especially true of the opinions from the United States Supreme Court. As an example, read the Court’s opinion in Columbia v. Heller regarding Second Amendment rights. I know many of you are familiar with that opinion.

The Court’s opinion in Snyder was not focused upon the vile statements made by the protesters. In fact, it appears that the protesters did not dispute that the statements were offensive. While this was a critical reason for the $10,900,000 jury verdict, the Fourth Circuit Court of Appeals was focused upon whether or not the statements, however vile, were protected by the First Amendment. Like the Fourth Circuit, the USSC was required to analyze the specific facts surrounding the protest. I found some of those facts surprising.

  • The protest took place approximately 1,000 feet from the church where the funeral was held.
  • The protesters have publicized the same message for 20 years.
  • The protesters have picketed nearly 600 funerals.
  • Several buildings separated the picket site from the church.
  • The picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses.
  • None of the picketers entered church property or went to the cemetery.
  • The picketers did not yell or use profanity, and there was no violence associated with the picketing.
  • Church members had the right to be where they were.
  • Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged.
  • The picketing was conducted under police supervision.
  • Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.
  • The funeral procession passed within 200 – 300 feet of the picketers.
  • The statements were not provably false, and were expressed solely through hyperbolic rhetoric.
  • The picketers obtained a permit and conducted their protest within the strict requirements of that protest.

The USSC protected the speech of the picketers, in large part, because the picketers made a case that their protest involved matters of “public concern.” This is critical for LEOs. This public concern protection allows LEOs to engage in the political process and voice their opinions regarding everything from the effect of layoffs on public safety to the danger posed by allowing LEOs to drive vehicles at high speeds when the odometer passes 150,000 miles….or more. The public concern doctrine is important. You should read the opinion to learn more about it. While it is not a bright line rule, the Court relies upon it often. The opinion actually strengthens the public concern doctrine and for that reason, LEOs will likely rely on this opinion in the future.

Justice Samuel Alito was the sole dissenter in the opinion. As he states,”Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.  . . . On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations.  . . . Allowing family members to have a few hours of peace without harassment does not undermine public debate.” Finally, he wrote, “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like [Snyder].”

The Court pointed out that this opinion is very narrow and applies only to the facts before the Court in this case. As Justice Breyer stated in his concurring opinion,  “The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings.” Some 44 states and the federal government have recently enacted statutes to prevent or limit these types of protests. It remains to be seen if those statutes will survive the scrutiny of the USSC. Of course, it is the LEOs on the street who will supervise those future protests and uphold the law including this recent opinion from the USSC.

As the Snyder opinion holds, “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” While I may not agree with the way this case turned out, I do support your right as LEOs to speak on matters of public concern. Toleration of extreme divergent views is the price we pay for freedom as one man’s divergent view is another man’s moderate opinion. Given the suppression of free speech throughout the world, I much prefer our Constitution and our system.

Remember that the USSC said the picketers could not be held liable for money damages in our courts. However, I believe there is a higher authority who will judge the picketers. When they face that judgment, Marine Lance Corporal Matthew Snyder will be watching. I venture a guess they will seek his forgiveness and intervention at that time.

Stay safe.

 

 

 

 

Filed under Case Law, Education, Legal Update, LEO Litigation, Politics & Current Affairs Tagged with , , , , , , ,

“Garrity” statements: New Georgia Case Law

November 13, 2010 Leave a comment

In 1967, The United States Supreme Court issued an opinion entitled, Garrity v. State of NJ. The case is perhaps the most important ruling regarding the rights of LEOs. In that case, the USSC held that officers who were forced to either incriminate themselves in a criminal investigation or lose their jobs did not make voluntary statements to investigators. Therefore, those statements could not be used against them in a criminal prosecution. The opinion is a great read. You can read the entire opinion here.

The Garrity opinion, as you can imagine, has been studied and examined by courts and departments all over the United States. Fortunately, the critical points in Garrity hold true today. Those points are based on a few simple principles. First, a department has an obligation and right to investigate allegations of misconduct and incidents that involve their LEOs. These investigations are focused on clearing officers, determining the effectiveness of policies and maintaining the integrity of the department. Second, the department should be able to compel officers to comply with internal investigations. This principle is based the focus of internal investigations. Third, a LEO, like any other citizen, has the right to remain silent during any criminal investigation. As Justice Douglas stated in the opinion, “We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”

This week, the Georgia Supreme Court issued an opinion entitled, State v. Thompson. You can read the full opinion here. Following a shooting, Dekalb County Police Officer Torrey Thompson gave statements to internal affairs investigators and criminal investigators. Prior to the statements and two “walk-throughs” of the scene, he was told that he was not permitted to leave the area to avoid the media gathered at the scene. The Georgia Supreme Court held that Officer Thompson’s “subjective belief” that he would be punished if he did not cooperate with the criminal investigators was enough for the court to find that his statements to the investigators were NOT voluntary. Therefore, the State could not use those statements against him in the criminal case. It is important to note that Officer Thompson told the court that the department’s policy manual required him to participate in investigations, he was told he was not free to leave, he was never explicitly told that he had to cooperate and answer questions and the criminal and internal investigations were taking place simultaneously. The Georgia Supreme Court determined that the trial court must examine the “totality of the circumstances” to decide if the officer had a reasonable subjective belief that he was forced to provide the statements at issue. If the officer reasonably believed, based upon the totality of the circumstances, that he was required to answer the questions of the criminal investigators, those statements cannot be used against the officer in a criminal trial.

So, a few things to consider. Are you familiar with your department’s policies regarding investigations? Are you familiar with and able to articulate the laws of self defense? Most important, do you still believe you should not have a lawyer present at the scene of a shooting? Something to think about now…before the shooting.

Stay safe.

Filed under Case Law, Education, Legal Update

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