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Tuesday, August 10, 2010

Arizona 1070 ruling

The U.S. District Court in Arizona blocked implementation of a portion of the controversial Arizona bill 1070 dealing with illegal immigration.  The decision by Judge Bolton is not surprising, it is in fact expected based on prior federal and U.S. Supreme Court precedent.  But this is a controversial and emotion laden issue whic has many in law enforcement divided.  Immigration policy  and enforcement is the sole province of the federal government.  Any state or local government initiative seeking to create immigration policy or control immigration violates the Supremacy Clause to the U.S. Constitution.  But, unfortunately, the federal government has failed miserably in carrying out its constitutional imperative.  The burden of failed immigration policy and control is then placed on the states and often local law enforcement is the front line in dealing with the poverty, crime and enforcement issues created by the federal failure.
I have previously written on this issue and the Catch-22 situation that police officers are placed within.  Police resources are already drained in this economy and added responsibilities sought by the federal government to be placed on local police for immigration enforcement and homeland security measures further strains these resources.
On the side bar is a brief analysis PoliceOne asked me to complete in connection with the ruling on the day it was released.  I have included additional links to prior articles I have written on this issue.

http://www.policeone.com/drug-interdiction-narcotics/articles/1856910-Immigration-enforcement-by-local-police

http://www.ethicsinpolicing.com/EiPJournal2009Vol2No1.pdf

Friday, April 9, 2010

Critical comment and whistleblowing by police officers

http://www.policeone.com/legal/articles/2035292-The-legal-landscape-of-police-employee-free-speech/

The issue of a police officer's right to speak freely about work related issues has always been limited but the aftermath of the 2006 U.S. Supreme Court decision in Garcetti v. Ceballos has brought about some unintended results within the various federal circuits.  My latest PoliceOne.com article, at the above link, discusses some of these issues and the danger that police speech relating to misconduct may be "chilled" by the present state of the law.  This is an issue I have discussed with various officers around the country and one which needs to be remedied by the courts.

Monday, February 22, 2010

Pitfalls in social networking sites for police officers

The U.S. Supreme Court agreed this past term to hear an appeal from the 9th Circuit Court of Appeals in Quon v. Arch Wireless. At issue is the extent of the privacy rights a public employee has in text messages sent over his department issued pager. The 9th Circuit found that Sgt. Quon, a member of the Ontario, California Police Department, had a reasonable expectation of privacy in the the text messages he sent from his department issued pager based on the past practice of his paying for any charges and fees in excess of those covered by his employer. As anticipated as this decision may be, especially for those of us working within the field of law enforcement representation and employment law, it highlights a growing trend among police in the United States. That trend is the increased frequency with which officers are being disciplined or finding themselves at the wrong end of a department policy based on their use (or actual misuse) of electronic media. Specifically social networking sites such as Facebook, Myspace and Twitter have caused some unexpected problems for officers. This trend just follows earlier internet related disciplinary run-ins resulting from officer blogs, viewing of internet pornography sites and officer websites displaying questionable material in terms of taste and propriety. While the viewing of prohibited internet sites from the workplace is a cause for employer discipline of an employee in both the public and private sector the issues surrounding social networking sites may be a bit more muddled. As a generation of new officers who have grown up with access to these social networking sites enter the ranks they are less inclined to see the problem with social networking sites and employer placed limits on their off-duty use. Just as a prior generation of officers were forbidden to frequent certain establishments when off-duty a new generation of officers may be precluded from their activity on the internet.

One agency in New York State has sought to define these limits by enacting a policy for an officer's use and postings on social networking sites. City of Utica Police Chief Mark Williams has crafted a use policy that focuses on protecting the reputation of the department and the individual officer. An ex-con arrested in NYC for possession of a weapon was able to have charges dismissed by using the arresting officer's MySpace and Facebook statuses against him. At the criminal trial NYPD Officer Vaughan Etienne was questioned by defense counsel as to why his Facebook status as the trial neared had him "watching 'Training Day' to brush up on proper police procedure." He further had to explain why his MySpace page was set to the mood of "Devious" on the day of the arrest. The officer also had to explain comments he made on a video about using excessive force on suspects. This officer, as reported in the Gothamist, had a prior suspension for steroid usage. The suspect alleged the officer planted the gun found on him and with the help of the officer's online postings was able to convince a jury. Incidents such as that which occurred to NYPD Officer Vaughan Etienne are not only an embarassment to the officer but a compromise of the integrity of police work. Police departments across the country are looking to implement departmental policies on officer use of social network sites. Other have already done so such as the City of Utica Police Department and more recently the Minneapolis Police Department. A copy of the MPD policy adopted this past December is provided at the end of this post.
So what are the limits that a police department can place upon its officers? A police department can regulate officers as it determines is necessary to accomplish agency mission and service goals. Court challenges to this authority is seldom successful. In Kelley v. Suffolk County Police Department, 425 U.S. 238 (1975) the U.S. Supreme Court recognized a municipality’s right to “organizational structure for its police force,” structure which “gives weight to the overall need for discipline, esprit de corps, and uniformity.” In this context a police agency can regulate officer conduct, even off-duty conduct, that may discredit the agency or negatively impact an officer's ability to do his/her job.
U.S. agencies and administrators do not hold exlcusive claim to such disciplinary problems within the ranks. A January 2010 article in the online version of the London Daily Mail reported a number of British officers disciplined or fired for looking at pornographic website while on-duty. This report was followed by a February report in the online ZDNet UK that Ministry of Justice and Metropolitan Police have been suspended or fired for misuse of Twitter and Facebook accounts. Scotland Yard responded by issuing a guide for officers on the use of such sites. One of the rules is for officers not to identify themselves as police employees, the other is that if they do identify themselves as officers they are to disclaim that their views do not reflect those of the employer. In the U.S. many officers rely on the First Amendment right to free speech and their off-duty status as protection from any job action. This reliance however is often misplaced and is likely moreso in light of the U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006) which put further limits on a public employees free speech and narrowly defined the contours of that speech.
Police administrators are well advised to adopt a social networking policy if they have not already started to do so. Police officers are advised to keep content unobjectionable at the least but would be better off staying clear of online postings and video rants. The democratization of media use has created a "big brother" of monstrous proportions and it is a trap for the careless officer.
MINNEAPOLIS POLICE DEPARTMENT SOCIAL NETWORKING POLICY
Section 7-119 SOCIAL NETWORKING (12/15/09)I. PURPOSETo establish policy regarding employee use of social networking web sites.
II. DEFINITIONS
Social Networking Websites: Sites which focus on building online communities of people who share interests and activities and/or exploring the interests and activities of others. Examples of social networking websites include: Facebook, MySpace, Friendster, Linked In, Twitter, and sites that allow users to post personal blogs. The absence of, or lack of explicit reference to, a specific site does not limit the extent of the application of this policy.
III. POLICY
The MPD has a duty to protect the reputation of the organization and its employees, as well as guard against liability and potential legal risk. Therefore, MPD reserves the right to monitor these websites, and employees are advised of the following:
Employees should exercise caution and good judgment when social networking online. Employees should be aware that the content of these social networking sites can be subpoenaed and used in criminal and civil trials to impeach the employee’s testimony.
Any individual who can be identified as an employee of the MPD has no reasonable expectation of privacy when social networking online, and is subject to all pertinent City of Minneapolis policies, MPD policies, local, state, and federal laws regarding public information on arrests, investigations, and personnel data.
This policy supplements the City of Minneapolis’ Electronic Communications Policy.
IV. PROCEDURE / REGULATIONS
A. Failure to comply with the following may result in discipline, up to and including discharge:
Where the poster can be identified as an employee of the MPD, any postings involving offensive or unethical content are not permitted.
Employees shall not represent that they are speaking or acting on behalf of the MPD, or that they are representing or presenting the interests of the MPD.
Employees are prohibited from using social networking sites to harass or attack others, including those who work for the MPD.
B. Authorized exceptions to the above regulation include utilizing social networking websites for MPD-approved public relations and official investigative and/or work-related purposes as approved by Police Administration.

Sunday, January 31, 2010

9th Circuit taser decision: thoughts & concerns

On December 28, 2009 the 9th Circuit Court of Appeals issued its decision in Bryan v. McPherson, No. 08-55622, which some media sources cited as a monumental repudiation of the police use of Tasers. Quite the contrary the 9th Circuit followed previously established law and precedent. What is of note from the decision is the different standard from other federal court circuits the 9th Circuit employs in considering use of force issues. While the standard for the reasonableness of the use of force is considered under the framework established by the U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989) the 9th Circuit has modified the considerations. First let's discuss the Graham standard, which is that use of force claims are to be evaluated under the 4th Amendment's "reasonableness" inquiry. In assessing reasonableness the question to be resolved is whether the officer's actions were "objectively reasonable" in light of the facts and circumstances confronting the officer. Subjective motivations or intent of the officer have no bearing, it is a purely objective test. Relevant factors in this inquiry are the following: 1) severity of the crime being investigated; 2) is the suspect an immediate threat to the safety of the police or others; 3) is the suspect actively resisting arrest or attempting to avoid arrest by fleeing. The 9th Circuit modification also considers the amount of force used and the availability of alternative methods of subduing or capturing the suspect (see eg., Beaver v. City of Federal Way, 507 F. Supp.2d 1137 (WD Wa, 2007)). This is not an analysis of the use of force employed by all federal circuit courts and an issue which becoming ripe for Supreme Court review. Nonetheless, there are aspects of the Bryan decision which concern me. At the outset I want to deal with the opinion itself and the perpetuation of two myths the 9th Circuit has signed onto. On page 16745 of the opinion the court cites the fact of the suspect Mr. Bryan being struck on the side of the arm and back and then falling away from the officer as indicative of the non-immediate nature of the threat. Does this mean that in the moment before the officer fired the taser round the suspect could not have been approaching? That there is no difference in offender position and location prior to expelling a round and after the round is spent? There have been many cases of officer involved shootings with offenders sustaining wounds in the back which activists and defense attorneys attempt to use to contradict officer testimony of the immediacy of a threat. Often the result has been proof at trial that the officer's testimony was truthful and the offender facing the officer only to turn in reaction to or flight from the lawful use of force by the officer. The other exception I take with the 9th Circuit is the 20/20 hindsight the court resorts to on page 16753 when it describes Mr. Bryan as a non-dangerous felon or flight risk. This is not employing the detached calculus called for in Graham with a view of the facts as seen from a reasonable officer at the scene. It is evident from the facts presented in the opinion that Officer McPherson was confronted with an individual on a car stop who exited his vehicle in a distraught state, began talking to himself, cursing to himself while hitting his thighs all the while clad only in sneakers and boxer shorts. What was a reasonable officer at the scene to assume? That Mr. Bryan was just like any other individual out on a drive that Sunday morning? The question I have for Justice Wardlaw, the opinion's author, is whether taking the same set of facts and Mr. Bryan was acting as such but standing in front of Justice Wardlaw's house would he call the police? If so what would be his motivations, or more specifically, what objectively reasonable conclusion would he have made of Mr. Bryan's actions? These above two items are just my criticism of judicial overreaching with the facts of the case. Minor as they may seem they are often the type of second-guessing that can have officers on the defensive, whether as a civil defendant or criminal defendant.

This case is a federal civil rights lawsuit brought under Title 42 US Code section 1983. The appeal to the 9th Circuit resulted from a denial of Officer McPherson's summary judgment motion based on qualified immunity. The concept of qualified immunity is not foreign to most officers. It provides relief from liability if the officer's conduct does not violate clearly established constitutional or statutory rights of which a reasonable person would be aware (see eg., Harlow v. Fitzgerald, 457 U.S. 800 (1982)). The 9th Circuit opinion paved the way for Mr. Bryan's case to proceed to trial wherein a jury will decide whether Officer Mc Pherson used excessive force. The 9th Circuit, viewing the facts in the light most favorable to the plaintiff, ruled that as a matter of law if the facts are as alleged the conduct of the officer would be viewed as excessive. Summary judgment assumes no facts are in dispute and requires a decision based solely on an issue of law. Officer McPherson's actions may still be found justifiable and not civilly liable by a jury. The issue that remains is not the isolated questions remaining to be resolved in this case but the longer term effect of this and other use of force decisions involving ECD's (electronic control devices). Officers are aware their use of force may entail civil liability and that the spectre of criminal liability looms with questionable use of force scenarios. The 9th Circuit opinion and the seemingly increasing negative response to taser use should have training academies and in-service instruction focusing on the legal as much as the technical aspects of taser usage. Labeling a device a less than lethal force alternative may provide a comfort zone for officers that makes taser use commonplace. The courts have been clear that use of a taser is not excessive use of force. They have even held taser application to be a minimal use of force compared to physical confrontation. But the issue remains that as long as a taser is on an officer's duty rig the potential for claims of wrongful use are as live as the current emanating from the device. The claims of excessive use of force are more problematic with ECD's than firearms for the simple fact that they are considered a less than lethal alternative and their use is more frequent.

Wednesday, January 6, 2010

Fear and Loathing: Internal affairs and due process

Here's an imaginary scenario that isn't so imaginary. A police officer is falsely accused by supervisors of a crime which is a total fabrication. The officer is formally charged administratively, fights the charges, wins and is subsequently vindicated in an external administrative proceeding. The officer sues in federal court for civil rights violations and after being stonewalled in discovery by the attorney general's office (those who represent the officer's employer and supervisors) the officer gets to depose his internal affairs tormentors. Now for the interesting part, one of the IA investigators testifies to destroying files associated with the investigation and the resulting lawsuit. When confronted with the agency's rule and regulations pertaining to reports and retention policy the IA investigator testifies that the rules apply to field officers not internal affairs investigators or supervisors. This is confirmation of what so many cops have been saying for years, IA operates under a different set of standards and rules. Due process rights for police officers have suffered serious infringements in many jurisdictions as a result of the behavior of self-righteous, crusading internal affairs personnel who eschew proper constitutional procedure and engage in "means-end" justifications. It is a case of "nobler-noble cause" corruption which is deserving of closer scrutiny. Just as the concept of prosecutorial misconduct was unheard of three decades ago and is now at the forefront of criminal justice discussions, due process violations by internal affairs investigators are coming more to the open. So too has the unscrupulous acts of some IA officers infected the overall process of internal affairs investigations. While internal affairs is a necessary element of policing and an integral part of the command structure abuses of officers' rights have resulted. As the U.S. Supreme Court stated in Garrity v. New Jersey police officers are not subjected to a "watered down" version of due process.

So, back to my not so fictional officer, what is his recourse? There is the possibility of a civil tort lawsuit based on defamation. If the defamatory comments (libel if written, slander if oral) are communicated to a third party then that may be the basis for a cause of action. Certainly any individual officers or investigators involved in the defamation or its perpetuation can be held accountable. Officers are now resorting to civil rights law suits against their employers and individual actors based on 42 USC section 1983. While these cases have become more commonplace as they are brought by officers against their agencies, supervisors and co-workers, many are dismissed on summary judgment motions. Careful attention must be paid as to whether federal court and a constitutionally based civil rights cause of action is the best choice of forum and complaint.

Within the realm of constitutional violations committed against officers during the course of an internal investigation the 6th Circuit Court of Appeals gave us an interesting case a few years ago. In McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir., 2005) the court found that a second interview of an officer in violation of the ruling in Garrity could be the basis for an actionable constitutional violation since the results of that interview were admitted into evidence against the officer in a criminal trial. Similar results have been followed in other circuits based on McKinley, though applied in a different context (see eg., Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006). But prior to McKinley the U.S. Supreme Court in Chavez v. Martinez, 538 U.S. 760 (2003) held that section 1983 is not an avenue to provide relief from the simple failure to provide a Miranda warning, especially in that case wherein none of the defendant's statements were used in a criminal proceeding against him. The McKinley court, applying the logic to Garrity in place of Miranda, clearly distinguished the fact that the product of the second internal affairs interview of Officer McKinley was used at trial against him, thus raising the potential constitutional injury.

However, in order to recover damages for an alleged unconstitutional conviction or imprisonment a section 1983 plaintiff must prove the conviction or sentence was reversed on direct appeal, expunged or declared invalid, Heck v. Humphrey, 512 U.S. 477 (1994). A similar rationale would appear to apply to disciplinary charges. The bottom line is that officers have due process protections, though somewhat minimized in the disciplinary context, that should be carefully fought for and guarded. Further, when confronted with a disciplinary interview officers must insist on representation whether it be pursuant to state law, contract or collective bargaining agreement. We know from experience there is no bounds to the extent some individuals will go to make a case, especially against an officer.