Police Officers - You're In Trouble: Now What? By: Dr. Richard Weinblatt As Originally Published on Policelink.com Tel: (407) 739-9089 Email Dr. Weinblatt Website: www.thecopdoc.com

Most police officers and deputy sheriffs are honorable men and women trying to do a difficult job. I regularly deal with law enforcement issues that involve law enforcers in bad circumstances. Whether they are in fact responsible for an act involving intent or omission, many officers, particularly those at the beginning of their careers, are baffled by the process that most end up confronting at some point. This article covers a general overview and gives you some insight into what happens to the officer who "gets in trouble."

The policies and laws that govern personnel in law enforcement vary from agency to agency and state to state. Specific nuances of each area cannot be covered in this generalized article.

All officers end up having a complaint lodged against them at some point in their career. Some areas see more complaints while others appear to generate less. Officers who take certain steps can minimize the frequency of complaints lodged against them. That will be a future article. This PoliceLink.com article covers what to do if you get the dreaded call from the "Sarge."

Complaints: Where They Come From

Complaints usually are generated by misunderstandings of a police - civilian interaction. I have long said that we in policing are own worst enemies as we tend to miss opportunities to diplomatically explain what we are doing and why. That has often done the trick for me in my experience and I have observed that it does so for others as well.

That said there are times when either the officer actually handles a situation badly or the person complaining cannot be reasoned with. Whatever the case, the sequence of events begins with the original complaint.

Whether you are a newly minted or veteran officer (or an aspiring one targeting a particular agency to work for), "must reading" is the department's policies and procedures manual. That "bible" of the agency should be in writing and should reflect the status of current applicable statutes and case precedents, (you laugh, but quite a few "old school" administrators are not in touch with this concept).

While there is no national policy manual to govern the many local law enforcement agencies in the United States, laws, precedents, and past exemplary practices have helped to shape what are normal, standard of care parameters. The International Association of Chiefs of Police (IACP) and the Commission on Accreditation of Law Enforcement Agencies (CALEA) have formulated model policies that address many of the officer complaint issues.

Whatever the origin of your agency's policy book, that all-important document should clearly delineate what happens in the complaint process. It should be geared to treat the complaining party as well as the officer in a fair and impartial manner.

The First Stop

The first stop on the journey is usually the officer's supervisor. In some departments, uniformed patrol supervisors can handle the complaint, while more egregious allegations need to be forwarded up the chain of command or to the professional standards or internal affairs unit.

Your agency should treat all complaining parties with the respect and fairness you would hope would be afforded to your family members if they were to come forward with an allegation. Only by doing so, will the process be respected and the findings have credibility.

At this point, it should be readily apparent that any documentation you have concerning your actions is vital to your defense. Police reports should contain a tremendous amount of relevant (key word - relevant) detail. Police reports that are vague and lack important detail are not helpful in the criminal prosecution and can be damaging to you during any civil tort action taken against you and or your agency. Other types of evidence, such as patrol car dash cams, can go a long way towards quickly resolving a complaint.

For example, as a police chief, I received complaints of officer conduct during traffic stops. A review of the in-car video footage was all it took usually to get at the truth and exonerate the officer in question. A good administrator will examine all available evidence to be able to come to a fair and impartial determination.

Generally speaking, officers in heavily unionized departments, such as in the Northeast portion of the United States, are afforded a little more protection. Officers in right to work states, such as in the Southeast, have less recourse. In the Southeast, many of the elected sheriffs, as ruled by the courts in North Carolina, have more ability to discipline and terminate their deputies, who are serving at will, than police chiefs do with municipal police officers.

Depending on the severity of the allegation and the supervisory staff's preliminary determination of that misconduct's probability of occurrence, the employee may be suspended with or without pay pending further investigation.

If the agency is following an accepted standard of internal investigation procedures, the accused officer will have the right to have the accusation or complaint shown to him or her in written form. The officer would also be interviewed at a reasonable hour or within their normal working hours, as well as be afforded reasonable breaks during the interview.

Know Your Legal Precedents

Departments generally go with a standard that has been backed up by court decisions such as U.S. Supreme Court cases Garrity v. New Jersey, (1967) and, for the feds, Kalkines v. United States, (1973). Officers under an administrative investigation can refuse to answer questions. This is really applicable if there is the belief that a criminal component could arise. However, refusing to answer questions may form the evidentiary basis for charges. Officers, like other governmental workers, can be compelled to answer within an administrative context, as that is a condition of employment.

It is important in this process is that the department should also explain that this an administrative process and that any criminal charges that could arise from the officer's acts or omissions are to be handled separately from the internal affairs investigation. Those matters should be referred to an appropriate criminal investigation unit or, better yet to avoid the appearance of a conflict of interest, another agency. The idea here is that the employee should not be forced to choose between his or her Constitutionally protected fifth amendment right against self-incrimination (think Miranda v. Arizona) and his or her job.

The Garrity Warning should be in writing. Some agencies issue it and have the target officer sign it as a matter of course. Others do so only when they feel there is a good chance that a criminal component may arise out of the officer's conduct. Importantly, false statements are not protected against criminal prosecution during any part of the investigation.

Legal Counsel?

Most agencies will not allow legal counsel during the administrative investigation interview. Some will, however, allow you to have a non-involved supervisor present. Others, particularly in the Northeast, will allow you to have a union representative accompany the officer. Agencies tend to audiotape or videotape the interview.

Be aware that property owned by the employing governmental entity is subject to search. Unless otherwise restricted by local protocol, most agencies can search your departmentally issued equipment including the patrol car, locker, and computer.

Following the conclusion of the investigation, findings and recommendations are made and forwarded up the chain of command with one of the four (or similar) following dispositions:

1. Sustained: The officer did as the allegation said.
2. Not Sustained: The allegation could not be proven or unproven.
3. Unfounded: The allegation is false. The officer wasn't present during the allegation or the actions did not occur.
4. Exonerated: The officer did the act or omission alleged, but that it did not constitute a violation of policy.

Most agencies will provide a written copy of the findings to the officer, as well as to the originator of the complaint. The disposition also tends to make its way for a period of time into performance reviews, as well as to specialized assignment transfer requests.

Employees in a probationary employment status with a finding of sustained are particularly vulnerable during the disciplinary phase as their protections are few, if any. In most places, there is little recourse as a probationary officer can be terminated at any time during that probationary period. Probation is normally pegged at one year, although there are a few departments where it can run for two years. It can also be extended under remedial or disciplinary instances.

If it is sustained and the employee is terminated, he or she (if off probation) usually has the ability within a certain time frame to appeal or grieve the matter to a neutral party such as the civil service board or the city manager.

If the sustained allegation results in a suspension, departments usually have guidelines as to how that suspension is served. For example, with a smaller suspension punishment, the employee may be able to use accrued vacation time to settle the matter. For longer periods, they may be able to only utilize half.

Some departments will send the employee to remedial training. This is seen quite a bit for officers who are involved in on-duty vehicle crashes who are sent to driver training. Officers who use inappropriate language are often enrolled in human diversity or sensitivity training.

Being in trouble is no fun either as a teenager or an adult law enforcer. The key difference for the officer or deputy sheriff is to remain calm and be professional in the face of the allegation. Emotional or irrational actions will only lend credibility to any complaint and not help the search for the truth or your service to the community.