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/

Indiana's "right to resist" law

Indiana Governor Daniels recently signed legislation passed by both the state Senate and House providing citizens the "right to resist" unlawful law enforcement entry into the home.  Naturally, Indiana law enforcement has been vocal in its opposition to the law.  There are several flaws with the law, not the least of which is the potential increase for violence against law enforcement.  The creation of this statutory justification leaves the possibility of the type of tragic consequences we have witnessed with similar themed legislation such as Florida's "stand your ground" law.
http://www.policeone.com/legal/articles/5326619-Can-the-right-to-resist-become-a-license-to-kill/

U.S. Supreme Court Review for 2011

It was an active year in 2011 for the Court in the area of criminal procedure and 2012 looks to bring forth at least two interesting decisions from the Court which will have an immediate impact on our nation's police officers.  Click the link below for the full PoliceOne article with my review of the year's important cases for law enforcement.
http://www.policeone.com/legal/articles/4781656-2011-in-Review-7-key-decisions-of-the-U-S-Supreme-Court/
Let us remember our fallen fellow officers and service members.  Tragically 2011 is ending as did 2010 as a bloody December for our nation's police officers.  To all stay safe and secure this year and always.

Videotaping the Police -- A Brief Legal Analysis

It seems there are more stories these days about police officers arresting citizens who videotape them in public while performing their duties.  Often times the story is a follow up to the charges being dismissed and the citizen and his or her civil attorney announcing a lawsuit for false arrest.  Are these arrests advisable?  Are they legitimate arrests?  It all depends on the grounds for the arrest and the surrounding factual circumstances.  An arrest for exercising a right -- very likely a 1st Amendment right -- is not permissible, however, if in the exercise of that right a citizen violates a specific law then the arrest is for conduct other than the exercise of the guaranteed right.  Still, it is dangerous ground for an officer to tread.  Officers are public figures and have to be expected, in this age of advanced technology and social media, to be scrutinized more closely.

A quick legal analysis is provided at PoliceOne by clicking the link below: 

http://www.policeone.com/legal/articles/3801254-Videotaping-the-police-A-brief-legal-analysis/

Safety for cops and the community

The news media is overflowing with stories out of Wisconsin, Ohio and other parts of the country placing daily blame on public sector salaries and benefits for present economic woes.  Police officers are being laid off across the U.S. in numbers not seen since the 1970's.  On the streets officers are being killed at alarming rates that have increased over the past two years.  Where is the accountability at the local, state and federal level for officer safety? 
http://www.policeone.com/patrol-issues/articles/3439420-Accountability-and-officer-safety-Whos-got-our-backs/

Police Memorial

R.I.P. Detective Falcone, City of Poughkeepsie P.D., killed in the line of duty, February 18, 2011.
http://www.policeone.com/patrol-issues/articles/3385216-Mourning-our-slain-LEOs/

The Art of Testifying

Say what you will but no matter how good a police officer may think he or she is at their job they are only as good as their last conviction.  If an officer does not know how to work with the district attorney's office, how to handle pesky defense attorneys on cross-examination and how to deliver their testimony then they have only half of the job figured out.  Testifying in court and being comfortable while doing so is a learned and acquired skill.  Too many officers do not take the time to improve this crucial job skill.  The link below is to a recent article for PoliceOne I wrote.  It is not meant to be inclusive but just to highlight some important aspects of the art of testifying.

http://www.policeone.com/legal/articles/3325033-4-keys-to-success-on-the-stand/

Use of Force Policy Implementation

http://www.policeone.com/legal/articles/3199248-Key-considerations-for-good-use-of-force-policies/

As always the use of force remains the number complaint against police officers and the main source of departmental liability.  When a critical incident occurs or a lawsuit is filed agency administrators do not want to be scrambling to up date use of force policy.  By having sound, current policy in place administrators can be confident their officers will respond properly and be protected in the aftermath.

Cop Bashing Without All the Facts

http://www.policeone.com/legal/articles/3257436-The-legal-system-versus-inflammatory-rhetoric/

All too often now we witness zealous plaintiff's attorneys jumping on the anti-police bandwagon without sifting through the facts.  Trials are held in the media and facts are distorted.  The full range of facts on this NYPD case are not all disclosed yet -- maybe the officers were wrong in their behavior and then maybe they were not.  But it is not a matter to be tried in the press.

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

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.

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.

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.

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.