The Legal Ramifications of Dishonesty for the Police Officer

The recent recommendation of Chicago Police Superintendent Eddie Johnson to terminate the seven police officers who lied in the investigation of the Laquan McDonald shooting death by Officer Jason Van Dyke is in step with expectations and outcomes in similar cases. Police officers who lie during the course of their employment have been terminated after disciplinary hearings. Lying during the interview phase or report writing phase of an official department internal investigation has often been the death knell for a police officer's career. In fact, many police departments have a zero-tolerance policy (as they should) that a sustained charge of lying is a terminable offense. Those officers who somehow survive an untruthful moment and, though disciplined, are still employed by their police department often find themselves in the embarrassing and career limiting position of being placed on a "Brady list." The list is so named as a result of the 1963 U.S. Supreme Court case of Brady v. Maryland which placed upon prosecutors an affirmative obligation to disclose to the defense all exculpatory information. This includes not only statements of witnesses and physical evidence, but any evidence that would impeach a prosecution witness. A sustained disciplinary finding that an officer had lied during an internal investigation would merit such disclosure to the defense if the officer was to testify in a criminal trial. As a result, approximately fifteen years ago, police agencies began to develop "Brady lists" and policies for disclosure of those offending officers. 

The fact that an untruthful, dishonest officer is a liability to any police agency is a statement made without argument. Similarly, that same officer is a threat to the populace he or she is sworn to serve and protect. The U.S. Supreme Court recognized the importance of integrity in the governmental workplace in LaChance v. Erikson, 522 U.S. 262 (1998) wherein the Court held that a government agency can take adverse administrative action against an employee because the employee made false statements in response to an underlying charge of misconduct. However, this only refers to administrative actions against the officer--what about criminal penalties? While the potential loss of employment is a heavy factor for anyone to consider, the reality of imprisonment is likely weightier. What would be the potential charge an officer could face? Perjury or any other criminal charge linked to lying generally requires there be some oath or affirmation involved. An example would be testimony in court or before a grand jury. An officer caught lying in one of those forums could expect swift reaction from the prosecution in the form of a criminal complaint. But, internal administrative proceedings are not in the same league and, even though most oral interviews of officers contain some preamble about the contents being an official record and that any false statements are punishable at law, this rarely, if ever, results in a criminal charge against the officer. State penal statutes dealing with dishonest testimony or false witness accounts are fairly narrowly written. Still, that does not mean a lying officer is in the clear. Prosecutions can resort to an obstruction of justice charge which is generally somewhat broader in its application and would readily apply to the situation where an officer lied about the facts and circumstances surrounding the deadly use of force by a fellow officer against an individual. Yet, even this course of action against an officer may not be so clear cut depending upon the relevant state law.      

A recent case out of the Michigan Supreme Court highlights my prior point. In 2009 a Detroit police officer while on duty assaulted a person who made a complain to the police department. An internal investigation followed and the officer made statements denying the allegation. These statements were made under the threat of being fired if he did not submit to a statement. Two other officers who were present during the alleged incident also provided untruthful statements to internal affairs investigators. The initial officer was subsequently charged with misdemeanor assault and battery and obstruction of justice and the other two officers were charged with obstruction of justice. On June 22, 2016 the Michigan Supreme Court, in three consolidated cases, People v. Harris, People v. Little and People v. Hughes, held that the obstruction of justice charges against the officers were to be dismissed since the charges were predicated upon the forced statements the officers were required to provide. Since the obstruction of justice charge could not be sustained without the use of the officers' administrative statements it had to be dismissed. In their appeal the officers asserted their 5th Amendment rights under the U.S. Constitution and the statutory protection under the Disclosures by Law Enforcement Act (DLEOA). The DLEOA is a Michigan statute (MCL 15.391 et seq.) which states that involuntary statements by law enforcement officers and any information derived from that statement cannot be used against the officer in a criminal trial. Clearly this is a significant legal protection for a police officer and an expansive grant of immunity from prosecution. The fact that the officers had to submit to a compelled statement under threat of termination during the internal investigation is enough to make it an involuntary statement. The Michigan Supreme Court, in an acknowledgement of the incongruous result, wrote, "We understand how this result may be viewed as unpalatable. But as this Court has long made clear, our statutory analysis i controlled by principles of interpretation, not palatability of outcomes...This choice may seem odd, or reflective of questionable or even bad public policy, but it was the Legislature's choice to make." The plain fact of the matter is that while it may be easy to terminate a lying officer prosecuting the officer for the actual lie is a whole different and more complex matter.

The DLEOA statute, enacted in 2006, appears to codify the protections outlined by the U,S Supreme in Garrity v. New Jersey,  385 U.S. 493 (1967). However, it begs the question as to whether Garrity sought to protect public employees from the use of false statements as opposed to incriminating statements. There is a world of difference between the two and it is a subject worthy of further analysis and comment. Stay tuned.

Utah v. Strieff and its limited impact upon Terry stops

The Supreme Court's June 20 decision in Utah v. Strieff provided an interesting analysis and application of the attenuation principle as applied to an unlawful police stop of an individual. The majority opinion of Justice Clarence Thomas held that the subsequent revelation of an outstanding traffic warrant was an intervening event that separated the unlawful stop from the search incident to arrest. Naturally, drugs were found during the search and this became the focus of the suppression issue. However, since there was a valid warrant for the individual the Court ruled that the search was attenuated or separated from the initial illegal stop by the existence of the valid warrant. In a sharply worded dissent Justice Sotomayor lambasted the logic of the majority opinion and wrote: "Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants--even if you are doing nothing wrong." While Justice Sotomayor's concern is valid, it is not as valid for what the opinion actually stated as much as it is for how it may be interpreted by law enforcement.  If law enforcement interprets it as Justice Sotomayor fears then there is a problem, but the actual reach of the majority opinion is more limited. Justice Thomas' opinion responds to this concern: "Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We thin that this outcome is unlikely. Such wanton conduct would expose police to civil liability." Time will if a flawed reading and interpretation of Strieff will find its way into police training curricula. Hopefully it will not, although we have witnessed prior narrow Supreme Court decisions get twisted into a flawed police procedure. Take the case of Oregon v. Elstad, 470 U.S. 298 (1985) wherein the Supreme Court said that even though a prior, un-Mirandized incriminating statement was inadmissible a suspect's subsequent Mirandized written confession was admissible under the "cured statement rule." Interpretation of this decision led some police training to advocate a "question now, Miranda later" practice which had officers obtaining incriminating statements from custodial suspects and then providing Miranda warnings and obtaining a repeat of the incriminating statement. This deliberate tactic was later ruled unconstitutional as a 5th Amendment violation in Missouri v. Seibert, 542 U.S. 600 (2004). The State of Missouri tried to argue that Patrice Seibert's murder confession was admissible under the logic of Oregon v. Elstad and that the cases were indistinguishable. The Court said the question-first strategy proffered by the state "disfugures" the holding in Elstad. In Elstad there was no intentional circumvention of the Miranda requirements, whereas in Seibert there was a deliberate, strategic plan to initially avoid Miranda warnings. Justice Souter succinctly described the matter in the first sentence of Seibert, "This case tests a police protocol for custodial interrogation..." That protocol was obviously found to be constitutionally infirm. I would hope the recent Strieff opinion does not travel a similar interpretive path as Elstad. I would expect not since police training has significantly improved in the thirty-one years since Elstad and dedicated police attorneys are more actively involved with training issues and curriculum. Still, we find that not all training is uniform across the country and recent events have increased the call for a national standard for police training. If Justice Sotomayor's warning ever became reality it would be a sad statement for the quality of law enforcement training in place wherever it were to occur.

2012 U.S. Supreme Court Review for Law Enforcement

With a few important U.S. Supreme Court decisions expected to be released in 2013 the past year provided some interesting cases as well.  The most talked about in the realm of law enforcement likely being the Court's decision in U.S. v. Jones, the GPS tracking case.  2013 will bring Court decisions in the area of dog sniffs and the 4th Amendment as well as the admissibility of the pre-arrest, pre-Miranda silence of a criminal defendant when questioned by the police.  While those cases and others await their determination from the Court the below link provides a look at the past year's law enforcement and criminal procedure related cases:

http://www.policeone.com/legal/articles/6072090-2012-in-Review-Supreme-Court-decisions-affecting-cops/

Risky Business: Law Enforcement & Social Media

Law enforcement agencies without a comprehensive social media policy are behind the times but not so   much from a technological sense as from an employment law or human resources management perspective.  I have lectured in this area and helped draft policy yet I am still never surprised to find many agencies without a basic policy in place.  Policy and training of staff are essential to minimize social media incidents that may damage a department's community standing and jeopardize an officer's employment.

Below are links to articles in a two-part PoliceOne series on social media risk to law enforcement:

http://www.policeone.com/police-technology/articles/6068508-Risky-business-Law-enforcement-and-social-media/

http://www.policeone.com/social-media-for-cops/articles/6087762-Risky-business-Social-media-and-your-job-security/

Cell phones, privacy & the 4th Amendment

The introduction of new technology challenges the U.S. Supreme Court's 1967 guidelines in Katz v. U.S. that the 4th Amendment protects a person's "reasonable expectation of privacy."  What is a person's reasonable expectation of privacy in their cell phone contents, such as stored numbers or text messages?  What about a person's location, now trackable through GPS devices embedded within cell phones, is there a reasonable expectation of privacy in location?  These are, as of yet, unanswered questions which the U.S. Supreme Court will likely be required to confront in the near future.  In U.S. v. Jones (2011) the U.S. Supreme Court only ventured minimally into this area without committing itself to a definitive stance and reverting back to 18th century trespassory logic to resolve a 4th Amendment claim.  Always slow to respond to technology the Court will have to one day consolidate the varying federal and state court treatments of search issues surrounding cell phones and other forms of portable (and intrusive) technology.  The attached article discusses some of the different results from U.S. courts when it comes to cell phone searches.
http://www.policeone.com/legal/articles/5907286-Cell-phones-privacy-and-the-Fourth-Amendment/

Disclosure of media information in officer involved shootings

How a police agency disseminates information in the aftermath of an officer involved shooting (OIS) can have repercussions long after the incident.  A proper balance must be struck between the public and the media's right to know and the protection of the release of information in an ongoing investigation.  Most police agencies are guilty of either releasing either too much information or too little information after an OIS.  The former situation occurred this past May when New York State Police command staff failed to adequately control the release of information after a State Trooper shot and killed an armed perpetrator who attacked the trooper responding to a home invasion.  The subsequent media coverage did not give an adequate account of the trooper's response and failed to explain the relevant state law involved in such deadly physical force situations.  There was a further lack of discipline among New York State Police uniform and investigative command staff in the release of information resulting in not one media contact and official police version of the events leading up to the shooting but at least three independent and variant source quotes.  But worse of all was the inexplicable inability of the Troop K Commander to express to the media and the public during the extensive coverage of the incident how lucky the involved troopers were to survive the incident and how their extensive training benefitted them and the victim homeowners.  In a time when ambush attacks on our nation's police officers are becoming all too common the very blunt official State Police responses that a grand jury investigation would determine the lawfulness of the trooper's actions was an ambush of a different variety.  Unfortunately with shrinking department budgets across the U.S. many police agencies have done away with the position of public information officer resulting in some unfortunate media relations between police brass and reporters.  Risk avoidance and management doesn't end after the critical incident has passed, continued vigilance in the aftermath of an incident, even in something as seemingly benign as press releases and media contact, must be maitained.  The following article provides some further guidelines:  

http://www.policeone.com/media-relations/articles/5814509-Disclosure-of-information-in-the-aftermath-of-an-officer-involved-shooting/

U.S. Supreme Court on governmental immunity

The U.S. Supreme Court issued decisions in 3 cases from February to April 2012 dealing with the extent of governmental immunity.  A fourth decision on governmental immunity was released this past week in the case of Reichle v. Howards. While the linked article went to the editor prior to the release of the USSC decision I will review the Court's decision in a separate posting. http://www.policeone.com/investigations/articles/5603451-US-Supreme-Court-examines-scope-of-governmental-immunity/