2000 Conference materials
Legal Officers Section
International Assn. of Chiefs of Police


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DEADLY FORCE:
THE EXPANDING LEGAL TANGLE OF
CRIMINAL, CIVIL AND 
ADMINISTRATIVE ISSUES

Legal Officers Section
Annual Conference
International Association of Chiefs of Police

By Jody M. Litchford
Chief Assistant City Attorney
Past Chair, IACP-LOS
Orlando, Florida
November 14, 2000


Administrative Issues: Initial Interview of Officer(s) Involved

A. Requirement to answer

1. Voluntary statements made by officers can be used against them criminally, civilly and administratively.

2. Coerced statements cannot be used against the officer criminally.

3. An officer may be disciplined or terminated for refusing to answer questions, provided:

-the officer was ordered to answer

-the questions were specifically, directly and narrowly related to his/her job

-the officer was advised that the statements could not be used against him/her criminally

Garrity v. New Jersey, 385 U.S. 493 (1967) - Officers were compelled, under threat of termination, to answer questions regarding a "ticket fixing" scheme. The Court held that statements coerced under threat of termination could not be used against the officers in subsequent criminal proceedings.

Gardner v. Broderick, 392 U.S. 273 (1968) and Uniformed Sanitation Men Assn. v. Sanitation Commissioner, 392 U.S. 280 (1968) - Employees could not be fired for refusing to waive their Fifth Amendment rights. The Court noted that government employees could constitutionally be required to answer questions specifically, directly and narrowly related to their job performance, provided they were not required to waive their Fifth Amendment protections (given use immunity).

United States v. Camacho, 739 F.Supp. 1504 (S.D.FL 1990) - Officers were involved in a struggle in which the suspect received serious injuries (and ultimately died sometime later that evening). The sergeant arrived at the scene and briefly questioned all officers. He then ordered all the officers involved in the incident as either principals or witnesses to return to the station, in accordance with normal departmental policy. Several of the officers involved were charged with federal civil rights violations. They moved to suppress the statements made to the sergeant at the scene. The Court denied the motion, reviewing a number of factors and determining that the officers, at the time the statements were made, had not felt any compulsion to give a statement and waive their Fifth Amendment privilege. The court noted that "the mere fact that the Defendants may have felt compelled to give a statement at the scene to their colleagues and superiors as a normal part of their duties as police officers is not enough to invoke Garrity." Here, the questions were directed at identifying what had happened, no one had accused the officers of any wrongdoing, no effort had been made to distinguish "suspect" and "witness" officers, neither internal affairs nor any criminal investigators were involved.

Harrison v. Wille, 132 F.3d 679 (11th Cir. 1998) - Plaintiff, a deputy sheriff, was investigated for evidence thefts. At two pre-disciplinary hearings, he was specifically informed that he was not being compelled to answer any questions and was not being granted any Garrity immunity. He remained silent at these hearings and was ultimately terminated. The Court upheld the employer's actions. Due Process does not require that immunity be granted. Although Plaintiff could not be terminated solely based on his exercise of his Fifth Amendment rights, here there was other evidence against him supporting the underlying charges.

B. Requirement to be truthful

La Chance v. Erickson, 522 U.S. 262 (1998) - The Due Process Clause to the U.S. Constitution does not prevent a law enforcement employer from sanctioning (including terminating) an employee for making false statements during an internal investigation into misconduct. If answering the question would expose an employee to criminal prosecution, he may exercise his Fifth Amendment right to remain silent; his silence may however be taken into account in determining the resolution of the charges.

C. Right to a representative

National Labor Relations Board v. Weingarten, 420 U.S. 251 (1975) - Requires that an employee, if he so requests, be allowed to have a union representative in meetings which the employee reasonably believes may result in disciplinary action, provided granting the request would not unduly interfere with the employer's operations. Applies in states which have adopted the principle (almost all states). The NLRB has recently expanded this protection to non-union employees as well. The states have not yet had an opportunity to consider this expansion.

Weingarten rights will most likely not apply until the investigation has focused on the possible policy violation of an officer or officers and should not prevent commanders from acquiring general information at the scene of an incident. See, Florida Attorney General Opinion 90-65 (1990).

D. Right to be informed of Miranda rights

Miranda v. Arizona, 384 U.S. 486 (1966) - Applies only in "custodial" situation. Courts have held that questions posed to officers at the scene of a critical incident or in the normal internal affairs interview at the station are non-custodial in nature, even if criminal charges are pending.

E. Other sources of potential rights

1. Police Bill of Rights

2. Union Contract

3. Right to Counsel - Constitutionally, applies only after the initiation of adversarial judicial proceedings,

U.S. Department of Justice, I.N.S. v. Federal Labor Relations Authority, 975 F.2d 218 (5th Cir. 1992) - Union proposal that employees be given up to 48 hours to consult with union representative before agency could question employees about shooting incident interfered with management rights and was not a negotiable item under federal labor law.

F. Other process issues

Overlap of Administrative and Criminal Process

A. Coordination with prosecutor's office

B. Suspension from duty

C. Use of force policy/use of force statute

Tennessee v. Garner, 471 U.S. 1 (1985) - Deadly force can be used if the suspect threatens the officer with a weapon or if the officer has probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, if necessary to prevent escape of the suspect and if feasible, some warning has been given.

First Amendment Issues

Pickering v. Board of Education, 391 U.S. 563 (1968) - Established balancing test when government employees speak on a matter of public concern. Restrictions are appropriate only when the interests of the employer in promoting the efficiency of the public service it performs outweighs the employee's interest in the speech.

Connick v. Myers, 461 U.S. 138 (1983) - Only speech on matters of public concern, not personal grievances, are protected by the First Amendment. Matters of public concern include subjects of interest to the community for social, political or similar reasons.

A. Orders not to discuss the case with other principals or witnesses

Los Angeles Police Protective League v. Gates, 579 F.Supp. 36 (C.D. Cal. 1984) - Police officers' challenge to internal affairs division order that officer under investigation not discuss the investigation with other suspects or witnesses until the completion of the investigation dismissed. The Court applied the Pickering balancing test and found that "the balance in this case clearly weighs in favor of the State. The State has a compelling interest in protecting the integrity and efficiency of its police departments….Especially in the face of suspected wide-spread corruption, the state had an overriding concern with conducting a spotless investigation and quickly restoring the public's faith in its police department."

Black v. City of Auburn, Alabama, 857 F.Supp. 1540 (M.D. Ala. 1994) - Police officer accused of sexual harassment challenged, among other issues, the Chief's order not to discuss the case with other parties to the incidents during the investigation. The Court upheld this order, finding it not to violate either Due Process or First Amendment protections: "it seems entirely reasonable to limit the communication between parties to an investigation in order to insure the most accurate and efficient investigation possible."

Fraternal Order of Police v. Rubin, 26 F.Supp.2d 133 (D. D.C. 1998) - The Court found, in evaluating qualified immunity issues, that it was objectively reasonable for an investigator to limit the communication among the parties to an ongoing internal investigation.

B. Statements to the Press

Busby v. City of Orlando, 931 F.2d 764 (11th Cir. 1991) - The Court upheld a qualified immunity defense for City officials who barred a police civilian employee from publicly voicing complaints of malfeasance unless and until the police internal affairs department had an opportunity first to investigate.

Biggs v. Village of Dupo, 892 F.2d 1298 (7th Cir. 1990) - Police officer's statements to the press regarding politicians who interfered with departmental operations held protected absent any evidence of actual disruption in police operations attributable to the speech.

Matulin v. Village of Lodi, 862 F.2d 609 (6th Cir. 1988) - Police officer's statements to the press about her pending discrimination charges were neither offensive or insulting and were not shown to have adversely impacted the department and hence held to be protected by the First Amendment.

Maxey v. Smith, 823 F.Supp. 1321 (N.D. Miss. 1993) - Court issued temporary injunction reinstating police chief who had been dismissed following comments reported in newspaper critical of outside investigation ordered by City Council into murder/rape investigation.

© 2000, by Jody Litchford. May be reproduced for law enforcement instructional purposes, but not for commercial profit.