02/10/2018

Tips for Police Officers Dealing with Criminal Defense Attorneys

By John V. Berry, www.berrylegal.com

It is very important for police officers to be prepared to deal with criminal defense attorneys when trial is pending. Both police officers and criminal defense attorneys are just trying to do their jobs when dealing with the court process. The key for law enforcement officers is not to get upset or defensive in their dealings with criminal defense attorneys. It is not helpful to consider the criminal defense attorney an enemy, but part of the judicial process itself. It is also important to consider the following tips in dealing with criminal defense attorneys as a case goes to trial.

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Posted at 09:06 PM in Criminal Defense Attorneys, Testimony |

Tags: dealing with criminal defense attorneys, law enforcement officers, legal defense police, police attorneys, police lawyers, police officers, testimony for police officers, testimony tips for police officers

02/06/2018

What is Excessive Force?

By John V. Berry, www.berrylegal.com

The topic often of excessive force often comes up in our representation of law enforcement officers. Police officers can imagine why this would be a major issue given that it has the potential to end their career and/or cause them to be criminally prosecuted. The vast majority of law enforcement officers are only trying to do their job, while risking their lives, in protecting the public.  This article examines the basics of "excessive force" and offers some tips to law enforcement officers who may be subject to complaints. 

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Posted at 09:55 PM in Administrative Defense |

Tags: administrative, civil, criminal, excessive force, excessive use of force, Graham v. Connor, police attorney, police attorneys, police lawyer, police lawyers, Tips for Excessive Force cases

01/29/2018

Due Process for Officers Placed on Giglio or Brady Lists

By John V. Berry, www.berrylegal.com

One of the latest issues for law enforcement officers, which has come under increasing review involves Giglio-type or Brady-type lists that are compiled by prosecutor's offices and law enforcement employers. The existence of these lists have been both known and unknown to officers, but as the media has increased scrutiny over law enforcement officer-related media events/cases, these types of lists have come under renewed scrutiny. I have also seen cases where prosecutors have disliked a law enforcement officer and unjustly placed them on such a list knowing the employment ramifications for such officers. Frankly, even if well-intended, it is difficult for prosecutors to keep such a list accurate or evenly applied, in our experience. Additionally,  if such a list has been developed, it is important to develop strong due process procedures that permit the law enforcement officer to challenge their placement or continued listing on the Giglio-type lists.  

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Posted at 09:29 PM in Disciplinary Actions, Giglio |

Tags: attorney for police officers, Brady, Brady list, due process, Giglio, Giglio list, Law enforcement officers, lawyer for police officers, police officer, Police officers

01/12/2018

Tips for Police Officers and Social Media Accounts

By John V. Berry, Esq., www.berrylegal.com

One of the most important issues facing police officers these days is the issue of how to use social media in their private lives given their public careers. Social media can affect law enforcement officers in so many ways that multiple issues from private online activity can affect an officer at work.  The goal of this article is not to say that law enforcement officers should not have social media accounts, but that they should be careful in what they post.  

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Posted at 06:21 PM in First Amendment, Social Media for Police Officers |

Tags: Facebook, instagram, legal tips, police and social media, police law blog, police lawyer, police officers, social media, social media and police officers, time for police officers on social media, tip, twitter

01/04/2018

Baltimore Loses Court Case Regarding Funding of Police Pensions

By John V. Berry, Esq., www.berrylegal.com

A new case was handed down involving Baltimore police pensions.  The case, handed down by a Baltimore Judge, held that Baltimore managers broke their contract with many police officers, firefighters and retirees in 2010 by eliminating a key pension provision that has cost retirees millions in pension benefits. Baltimore Judge Julie R. Rubin ruled Tuesday that the former Mayor's overhaul of pension benefits unlawfully withdrew a "variable pension benefit" that paid out more money to retirees when the stock market improved.  The Baltimore mayor’s new law ultimately cut approximately $400 million in long-term pension costs by (1) reducing benefits, (2) raising the retirement age and (3) requiring higher contributions from workers. While the judge's ruling is positive, many of the underlying issues must still go to trial.  

The article by the Baltimore Sun can be found here.

Posted at 08:22 PM in Current Affairs |

Tags: Baltimore pensions, court, cut pensions, firefighters, pension benefits, police officers, retirees

12/02/2017

FLSA Pay Issues for Police Officers

By John V. Berry, www.berrylegal.com

It is not uncommon for police departments across the United States to have pay issues.  One of the most common pay issues that police and federal law enforcement officers face is the failure of police departments to pay overtime correctly under the Fair Labor Standards Act (FLSA) or similar state overtime provisions.  The number of issues that an officer can face regarding such issues are practically endless and ever evolving.  This article discusses some of the issues that police departments and law enforcement agencies have with respect to the correct payment of overtime.  For police departments and other law enforcement employers, making a mistake in the payment of overtime or other calculations is a major risk and can, in some cases, cause double damages, the payment of attorneys fees and other damages.  In some states, like Massachusetts, incorrect overtime payment has the potential to cause "treble" triple damages. Because each state overtime laws vary, this article will focus on the FLSA.

What is the FLSA?

The FLSA establishes minimum wage and overtime pay standards affecting full-time and part-time workers in the private sector and in Federal, State, and Local governments. The FLSA is far more complicated with respect to law enforcement officers.  There are numerous types of FLSA issues that can rise to lawsuits for pay issues not properly handled.  These can range from not paying overtime or compensatory time properly, to not paying for certain compensable activities.  The FLSA can be enforced by officers in a number of forums, including the U.S. courts or, where appropriate, in arbitration.  

Law Enforcement and the FLSA

Law enforcement personnel are employees who are empowered by federal, state or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; who have the power to arrest; and who have undergone training in law enforcement. 29 U.S.C. 207 (k) provides a partial exemption for employees in the law enforcement by requiring them to work 43 hours per week (not the standard 40) before overtime compensation is required to be paid. Law enforcement activities involve work directly and primarily concerned with patrol and control functions, executing the orders of a court, planning/conducting investigations related to violations of criminal laws. 

The federal statute which governs this is 29 USC 207(k) provides as follows:

(k)  Employment by public agency engaged in fire protection or law enforcement activities. No public agency shall be deemed to have violated subsection (a) with respect to the employment of any employee in fire protection activities or any employee in law enforcement activities (including security personnel in correctional institutions) if--

  • (1)  in a work period of 28 consecutive days the employee receives for tours of duty which in the aggregate exceed the lesser of (A) 216 hours, or (B) the average number of hours (as determined by the Secretary pursuant to section 6(c)(3) of the Fair Labor Standards Amendments of 1974) [29 USCS § 213 note] in tours of duty of employees engaged in such activities in work periods of 28 consecutive days in calendar year 1975; or
  • (2)  in the case of such an employee to whom a work period of at least 7 but less than 28 days applies, in his work period the employee receives for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in his work period as 216 hours (or if lower, the number of hours referred to in clause (B) of paragraph (1)) bears to 28 days, compensation at a rate not less than one and one-half times the regular rate at which he is employed.


29 U.S.C. 207.

Police departments may pay some FLSA overtime benefits to officers with compensatory time, instead of overtime payments in certain circumstances. Compensatory time in lieu of payment for FLSA overtime must be paid at the the rate of time and one-half.  A police department may limit the number of hours an officer may carry in their FLSA compensatory leave, in any amount up to 480 hours. However, police departments may not impose a "use it or lose it" system where time must be used of forfeited.  However, police departments may require officers to "use accrued FLSA compensatory time, or may buy out FLSA compensatory time from officers.  The scope of the law with respect to compensatory time remains subject to change.  I expect that this area of law will be more fully clear in the next 5-10 years. 

Examples of FLSA Cases for Law Enforcement:

1. Who Gets LEO Overtime

Court of Federal Claims held that federal air marshals  were entitled to overtime compensation under the Fair Labor Standards Act for hours that they worked in excess of 43 hours per week. Federal Air Marshals v. U.S., 84 Fed. Cl. 585 (Fed. Cl. 2008).

Deputy U.S. Marshal who was employed by United States Marshals Service and who was assigned to court support section and providing security for day-to-day operation of working courtroom is not administrative employee exempt from overtime under FLSA; such position is classified as law enforcement officer as defined in 29 USC § 207(k), and plaintiff is subject to limitations set forth in § 207(k) regarding number of hours for which he would be entitled to overtime compensation. Roney v. United States, 790 F. Supp. 23 (D.C.D. 1992)

Employees working as firearms instructors for the Federal Law Enforcement Training Center (FLETC) were entitled to overtime pay under 29 U.S.C. 207 because they could not be considered as exempt employees when they did not meet regulatory requirements for teaching professionals. The court further held that the FLETC could not be considered educational establishment; instructors were not required to have any teaching experience to work at Center, did not participate significantly in teaching plans or programs offered, were not classified by Office of Personnel Management as education employees, and were not engaged in activity that imparted knowledge on participants. Astor v. United States, 79 Fed. Cl. 303 (Fed. Cl. 2007).

While there is nothing improper about state or local government employer adopting 29 U.S.C. 207 (k) framework in order to take advantage of statute's provisions, employer may not impose sham changes in its employment scheduling and compensation policies so as to evade FLSA. Ball v. City of Dodge City, 67 F.3d 897 (10th Cir. 1995).

2. Canine Officers

Pursuant to the FLSA, all time that is worked is considered to be compensable and must be paid. For officers who work as canine handlers, the time they spend at home or outside their scheduled work shift providing, caring or working with their for dogs is considered work time. Thus, canine handlers must be paid, often with overtime compensation, for time they spend caring for their dogs.  

Time spent by police canine officers administering medications, feeding and training their dogs, and cleaning their kennels were compensable under the FLSA and must be paid as regular overtime. The court held this despite the fact that canine officers were paid an additional $1000 per year did not constitute an agreement between the parties. Lewallen v. Scott County, 724 F. Supp. 2d 893 (E.D. Tenn. 2010).

Federal Court of Claims held that DHS canine enforcement officers were owed up to 4 additional hours of compensation a week for time spent laundering towels and preparing training aids for contraband-sniffing dogs, but off-duty time spent grooming the dogs or practicing with firearms was not compensable. DHS was then held liable for double damages for willfully failing to compensate 60 customs officers for overtime. Bull v. United States, 68 Fed. Cl. 212 (Fed. Cl. 2005).

3. Roll Call Time

Police officers must, in most circumstances, be compensated for work activities that are performed before or after their work shifts when those activities are an integral and indispensable part of the principal work activities for which the person is employed. For police officers, time that is spent attending roll calls,  maintaining law enforcement equipment, evaluating firearms, attending meetings, writing incident or other reports, are often considered to be an integral and indispensable part of the principal work activities and must be compensated with overtime. 

Police detectives in Emporia successful in asserting overtime claims for lunch periods; liquidated (double) damages allowed. Armitage v. City of Emporia, 782 F.Supp. 537 (D. Kan. 1992).

4. Donning and Doffing

Donning and doffing cases have sought, with very limited success, to seek FLSA compensation for failing to compensate police officers for putting on uniforms and gear.  Police officers typically have argued that the time spent donning and doffing the uniform and related gear was compensable.  

An employer's requirement that pre-or post-shift activities take place at the workplace may indicate that the activities are integral and indispensable to an employee's duties. Alvarez v. IBP, 339 F.3d 894, 903 (9th Cir. 2003) (holding that that donning and doffing of protective gear in that case was integral and indispensable activities in part because they had to be performed at the workplace), aff'd, 546 U.S. 21 (2005). Other cases have held the opposite. Bamonte v. City of Mesa, 598 F.3d 1217, 1231 (9th Cir. 2010) (holding that donning and doffing of police uniforms were not integral and indispensable activities in that case because they were "not required by law, rule, the employer or the nature of the police officers' work to be performed at the employer's premises").

The U.S. Court of Appeals for the Second Circuit recently held that it was possible that donning and doffing of City Law Enforcement rangers' uniforms could be integral and indispensable to their principal work duties and compensable. Perez v. City of New York, 832 F.3d 120, 123 (2nd Cir. 2016). Under the right facts, a donning and doffing case in the future could have potential.  

Conclusion

Law enforcement officers and their unions should be aware of FLSA issues that affect them and their compensation. Our law firm advises and represents law enforcement officers in FLSA matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here. 

 

Posted at 10:11 PM in Fair Labor Standards Act |

Tags: 207(k), compensatory time, doffing, donning, Fair Labor Standards Act, FLSA, FLSA for police, law enforcement, law enforcement overtime, overtime, police, roll call time

10/22/2017

Tips for Police Officers in Dealing with Criminal Defense (and other types of) Attorneys in Testimony

By John V. Berry, www.berrylegal.com

Our law firm represents and advises law enforcement officers in legal proceedings. One of the principal functions of police or other law enforcement officers is to provide testimony in criminal, civil or administrative cases.  We often defend law enforcement officers when allegations are made against them and often advise police officers regarding their testimony in administrative, civil and criminal matters.  We have provided below, the following tips for law enforcement officers to consider when providing testimony in any of these forums in order to present the best case possible.

We realize that attorneys, whether government or defense attorneys will focus on attempting to discredit or "trip up" an officer on the stand, so it is important to prepare, in advance of testimony.  Our tips follow:

  1. Focus on the Question Asked: an officer should respond directly and honestly to the questions being asked by the defense or government attorney during testimony, but the best advice is not to try to add additional testimony to justify an action taken. We have found that officers that politely and shortly answer a defense attorney's questions increase the importance of their testimony and minimize criminal defense attorney attacks on cross-examination. It is not usually advisable for an officer to provide additional information that has not been sought. Many a case has taken a turn for the worse when an officer adds additional information that was not asked by a criminal defense or other attorney.
  2. Don't be Defensive: the more calm and collective that a police officer is during his or her testimony, the more credible that testimony is. Many criminal defense attorneys will try to rattle a law enforcement officer by attacking them during testimony.  The officer should keep a proper mindset, before, during and after testimony and wait until the defense attorney is done speaking, pause, and then politely respond. We have found that no matter the forum, the more calm a police officer is in responding to aggressive tactics, the more credible that officer's testimony will be.  If an officer responds aggressively, it can weaken their testimony. It is important for a law enforcement officer to also do their best to manage their body language. The calmer an officer appears, the more credible he or she will appear to others.  It is critical that when the defense attorney attempts to present the officer as biased that he or she politely responds in the negative. Many criminal defense or government attorneys will try, on purpose, to get into an argument with the officer. Officers are advised not to take this bait.  In short, the calmer the law enforcement officer response, the worse it is for criminal defense attorneys in their case.
  3. Preparation for Testimony is Key: preparation for testimony is also of key importance for the law enforcement officer. It cannot be overemphasized that a police officer should prepare for any testimony that will be given, regardless of forum (criminal, civil, administrative). If the case involves a criminal proceeding, a law enforcement officer should ensure that they have reviewed all evidence, any related reports and kept in contact with the prosecutor to ensure that they are all on the same page for the criminal case. This also applies when the officer is testifying in the forums, such as disciplinary or civil proceedings. 
  4. Keep Answers Short and to the Point: along with Tip #1, regarding focus, it is generally important for a law enforcement officer to answer questions asked as succinctly and to the point as possible.  Some of the best testimony I have seen by police officers was where they politely, with a calm voice, answered no or yes to a question without elaborating. A more advanced response technique that I have seen is that after the yes or no, the officer appears as if he or she is about to testify with additional information and then simply remains quiet.  If a criminal defense attorney or government attorney seeks additional information they will ask it (and sometimes they will forget to do so).  
  5. Look Polished and Put Together: It is important, on the day of testimony, for the law enforcement officer to dress well, look polished and sit up straight during testimony.  This is very helpful. A more polished police officer will be deemed more credible in most situations.  A sharp police uniform, or suit (e.g. if assigned to detective duties), can do wonders about the believability of testimony.   

There are many other tips and thoughts for the law enforcement officer who will be testifying in criminal, administrative or civil proceedings but these are some of the ones that come to mind given our practice in representing law enforcement officers over the years. 

Conclusion

Law enforcement officers should keep updated on changes in law enforcement technology within their department and department policies regarding these types of devices.  Law enforcement technology is changing so fast these days that an officer can potentially get into administrative trouble and need legal defense when department's technology outpaces their policies in handling or disclosing such information. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here. 

 

Posted at 08:12 PM in Administrative Defense, Current Affairs, Testimony |

Tags: criminal defense attorney tactics, law enforcement testimony, police defense attorney, police defense lawyer, police officer testimony, testimony tips for police, Tips for police officers in testimony

10/13/2017

Court Rules that License Plate Reader Information Not Always Protected

By John V. Berry, www.berrylegal.com

Our law firm represents and advises law enforcement officers.  A relatively new issues that has come up as of late involves law enforcement department devices which collect massive amount of information.  The technology has advanced so far, that significant amounts of information is collected and retained every day.  While it has been assumed for some time that this type of information was not obtainable through information request sought by the general public, a new case has cast some doubt or at least some new arguments on the issue that law enforcement should be aware of.  In a recent decision, information collected by law enforcement officers from automobile drivers through license plate readers has been ruled not to be necessarily be protected from disclosure.  The California Supreme Court recently held in late August that the information collected by law enforcement officers on motorists does not necessarily constitute "investigative records" which are normally kept from the general public.  A copy of the opinion can be found here.

Automated license plate readers used by law enforcement officers are very high-speed cameras which are mounted on police vehicles or on light poles (mainly at intersections or other fixed locations). The technology is such that these devices continuously scan and record the license plate of every passing vehicle. Additionally, the date, time and location may be recorded, with a photograph of the vehicle and possible photos of the driver/passengers. Many police departments, on a national basis, utilize the information as a tool to potentially track the whereabouts of criminal suspects. 

There are some localities have prohibited the use of the cameras because of potential privacy concerns because the vast majority of drivers being tracked are completely innocent of any criminal activities. One of the additional problems, however, is that the information captured may be maintained for weeks to years.  The California Supreme Court, in ACLU v. County of Los Angeles, S227106 (CA Aug. 31, 2017), described the issues with Automatic License Plate Reader (ALPR) technology in the case:

"The ALPR data collection system at issue here utilizes high-speed computer-controlled cameras mounted on fixed structures or on patrol cars. The cameras automatically capture an image of the license plate of each vehicle that passes through their optical range. For each image, the ALPR system uses character recognition software and almost instantly checks the license plate number against a list of license plate numbers that have been associated with crimes, child abduction AMBER alerts, or outstanding warrants. This list of license plate numbers comprises the investigative “hot list.” When a hot list match occurs, the system alerts either officers in a patrol car or a central dispatch unit, depending on whether the ALPR unit that detects a match is mounted on a patrol car or a fixed structure. Most license plate numbers that ALPR units capture do not match the hot list and have no perceived connection to any crimes, AMBER alerts, or outstanding warrants.3 The ALPR technology records each scanned license plate number, together with the date, time, and location of the scan, and stores the data on confidential computer networks. LAPD estimates that it records data from 1.2 million cars per week. It retains license plate scan data for five years. LASD estimates that it records between 1.7 and 1.8 million license plates per week. It retains scan data for two years. When new investigations arise, real parties query their stored databases to obtain any available location history of relevant vehicles. Both the LAPD and LASD restrict database access to law enforcement."

The lawsuit arose when the ACLU and the Electronic Frontier Foundation, the plaintiffs, requested information under the California Public Records Act (CPSA), seeking records related to those agencies’ use of ALPR technology, including "all ALPR data collected or generated" during a one-week period in August 2012, consisting of, ‘at a minimum, the license plate number, date, time, and location information of each license plate recorded.’ ” The police departments in Los Angeles who received this request refused to provide that information based on the law enforcement investigation exemption in the CPSA, which is contained in many other similar state and federal records request laws.  

The California Supreme Court, in one of the first rulings of this kind, did not automatically uphold the police department's exemption, and held that:

"ALPR scanning does not produce records of investigations, because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes. The scans are conducted with an expectation that the vast majority of the data collected will prove irrelevant for law enforcement purposes. We recognize that it may not always be an easy task to identify the line between traditional “investigation” and the sort of “bulk” collection at issue here. But wherever the line may ultimately fall, it is at least clear that real parties’ ALPR process falls on the bulk collection side of it. Nor does the act of querying the database for information on particular vehicles transform existing ALPR scan records into exempt “[r]ecords of . . . investigations” (§ 6254(f)). A plate scan in itself always remains a result of bulk data collection, rather than a record of investigation, even if it has the potential to match a future search query. The fact that a database has been searched or that a plate in the database has been matched in a search does not increase the concerns identified in Haynie with respect to disclosure of the database. Moreover, a contrary rule would enable an agency to exempt such data, purportedly to advance some more traditional “investigation,” simply by searching the entire database. Therefore, the bulk collection of raw ALPR data here is not exempt from disclosure under section 6254(f)."

The court left open other potential ways in which the information could be potentially protected from disclosure, but that the question remained open.  The court then remanded the case so that the lower court could balance, on a case by case basis, whether disclose of such records (and disclosure to what extent) is proper.  The court also placed the burden on the police departments to show why such information should not be disclosed.  The court left open many questions, but an issue that was seemingly closed, the disclosure of mass information collected by law enforcement devices, may now be open to re-examination not just by California but many other states and localities as these issue arise through the use of advanced law enforcement technology. There are certain to be more cases to come.  It is not hard to imagine plaintiff's lawyers seeking the information related to civil proceedings involving automobile accidents or perhaps criminal defense attorneys.  Given this potential, it is important for officers to at least be aware of these types of questions.  

Conclusion

Law enforcement officers should keep updated on changes in law enforcement technology within their department and department policies regarding these types of devices.  Law enforcement technology is changing so fast these days that an officer can potentially get into administrative trouble and need legal defense when department's technology outpaces their policies in handling or disclosing such information. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here. 

 

 

Posted at 08:05 PM in Current Affairs, New Court Cases |

Tags: ALPR, automatic license plate reader, exemption, investigative records, legal defense for police, legal defense for police officers, license plate, license plate information, license plate readers, police, police attorney, police defense lawyers, police officers, public records, public records requests

09/22/2017

Police Officer Disciplinary Cases from Investigation to Arbitration

By John V. Berry, www.berrylegal.com

We often have represented police officers in our legal practice in arbitration proceedings in regards to their disciplinary cases. While each police department and collective bargaining agreement (CBA) with each different police union varies, many of the processes are the same. This article discusses some of the unique aspects of the police grievance and arbitration process and how we get to this point.

Prior to Arbitration - The Investigation Process

Each serious disciplinary case involving a police officer will almost start with an investigation. There are varying types of internal investigations, so it is important to understand your own department or agency’s internal investigatory processes. Most departments have an internal affairs unit or office of professional responsibility for more serious disciplinary cases. For less serious cases, investigations may be taken on by direct supervisors. Generally, the officer is interviewed by investigators often with the assistance of a union representative. Once the investigative process in complete, a recommendation closing the case or referral for potential discipline is provided by investigators. If discipline is recommended it is reviewed by human resources personnel.

Disciplinary Process

If a department’s human resources personnel and/or managers decide that disciplinary action against an officer or agent is appropriate, the next step for the department is to analyze the proposed discipline. Once the proposed disciplinary action is considered and issued, the officer or agent will generally have the opportunity to respond to the proposed discipline before a decision is issued. When the final disciplinary action is issued, depending on internal appeals procedures, the union CBA or applicable laws, the officer must decide where they can appeal the action. In most cases, that the officer will likely consider arbitration as an option, where applicable.

Grievance Process

Depending on the CBA in place, an officer or agent affected by a disciplinary action might have to first file a grievance (written dispute) of the disciplinary action or, in some cases, seek permission to go to arbitration directly from a police union. Either way, if not resolved, the matter can potentially move to the arbitration process for a decision. Again, depending on the specific process involved there can be a number of options.  Depending on the grievance procedure, an officer and police union can have between 2 and 5 steps to the grievance process before requesting arbitration.  

Arbitration Hearing Process

The most typical situation where an officer takes their case to arbitration involves serious disciplinary actions such as termination cases or serious suspension cases. In such cases, the burden of proof is typically on the government agency to show that the action taken was for “just cause.” Just cause is a standard which essentially means that the government had a legitimate and provable reason for taking the action that it did and that when all factors, including mitigation are considered, that the action was just. In most cases, the police union has to approve the officer's request to go to arbitration.  In many cases, we present the case that a matter should go to arbitration to the police union involved before it can even go to arbitration. 

For police officer arbitrations, one arbitrator is usually selected jointly by the parties to hear the case. The arbitrator is not employed by the government and instead is compensated equally by both sides in most cases. As a result of this process, arbitrators tend to be fairer in hearing cases than administrative judges. They are paid by both parties.  There is generally less of a desire to uphold a decision that is wrong than if the officer was before an administrative judge. Administrative judges generally tend to rule more often in favor of the government than an arbitrator.

Following the selection of an arbitrator, usually a senior lawyer or retired judge with a background in hearing law enforcement matters, the disciplinary case is then set for a hearing. In preparation for the hearing, each side will gather witnesses and documentation in order to present their side. In many police arbitration cases, management presents manager witnesses and the police union will present witnesses who are mostly officers. Exhibits often consist of investigative interviews, the personnel action taken, redacted similar personnel actions, general or department orders, witness statements and an officer’s personnel records. Sometimes, expert witness reports, prior arbitration decisions or other documents may be introduced by the parties.

The hearing generally begins with opening statements by both the officer’s union and the department’s representative or counsel. Typically, after opening statements, the department’s case goes first because they have the burden of proof to show why the officer should be disciplined. They will examine witnesses and present their case as to why a police officer should be disciplined.  Each of the department's witnesses will be examined by the union counsel.  Following the department's case, the union will present their case as to why the discipline was unfounded. 

Decision

Following the hearing, the parties may present post-hearing briefs summarizing their arguments.  The arbitrator will then issue a decision in the case.  Depending on the jurisdiction, it is often the case that the decision is final within 30 days. However, it is important to examine each jurisdiction for specific rights of all of the parties.  

Appeals

Depending on the venue for the police arbitration, their are generally appeals rights for the police officer facing disciplinary action if he or she loses; the department can often appeal.  The losing party can generally appeal the case. That being said, it is hard to overturn a case once an arbitrator has issued a decision.  The key is to attempt to present the best case during the arbitration process for the police officer. The most successful type of appeal generally involves the allegations that the arbitrator did not properly interpret the law. Generally, arguments that an arbitrator did not decide a case fairly or evaluate credibility properly are likely to be dismissed.

Conclusion

For police officers, it is very important to understand the arbitration process should the need for legal defense over a disciplinary action arise.  Our law firm advises and represents law enforcement officers in police arbitration matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070.  The Firm's Facebook page can be found here Berry & Berry Facebook Page. 

Posted at 11:04 PM in Disciplinary Actions |

Tags: appeals, arbitration for police officers, arbitrator, collective bargaining agreement, disciplinary action, disciplinary actions, lawyer for police officers, police arbitration, police attorney, police lawyer, police lawyers

09/08/2017

Personal Civil Liability for Police Officers

By John V. Berry, Esq., www.berrylegal.com

I drafted an earlier version of this article in 2014. A lot has happened since then. I am updating the article in light of recent events and the increased issues involving personal liability for civil actions filed against police officers.  Police officers, given increasing scrutiny in light of recent media events across the country, have been subject to countless lawsuits and public scrutiny. With such scrutiny comes an increased number of civil lawsuits filed in relation to on-duty and off-duty actions related to a police officer’s employment.  It is important that police officers be ever vigilant and take steps to become aware of their potential for personal liability for actions taken in the line of duty which could result in a personal lawsuit against them.  

Personal Liability for Police Officers

Personal liability for a law enforcement officer is just the legal theory that a police officer can be held civilly responsible for their actions related to their law enforcement position.  Civil lawsuits can be brought against officers under any number of various legal theories, such as intentional personal injuries (torts) and pursuant to 42 U.S.C. § 1983.  Lawsuits under Section 1983 are the most common against law enforcement officers and can be brought against an officer when he or she violates statutory or constitutional rights under law.  This is commonly referred to as a Bivens action, named after the case of Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Since 2014, there have been far more cases involving civil actions against police officers given social media and the Internet.  

The most common examples of civil claims against police officers include:

1.   Those alleging false arrest (sample case)

2.   Those alleging excessive force (sample case); 

3.   Those alleging malicious prosecution (sample case); and

4.   Those alleging that a law enforcement officer failed to intervene in the unlawful actions of a fellow law enforcement officer (sample case).

Usually, when a police department or federal law enforcement agency is sued for a law enforcement officer’s actions, the individual police officer is sued personally as well as a matter of course. Usually, the principal target of damages by plaintiffs' lawyers are a municipality or police department, due to their ability to pay larger judgments or settlements, but an officer typically is targeted as well and a personal judgment is sought. This can cause significant stress for a police officer as the civil process unfolds. I have represented many police officers who are afraid of being required to forfeit their house or pension to satisfy a potential judgment. Just the thought of such consequences can dramatically affect a law enforcement officer's perspective.  Thankfully, the courts still provide a significant amount of deference to police officer actions.  

Deference by the Court System

The relatively good news for police officers is that the majority of lawsuits filed against police officers are dismissed based on the defense of law enforcement officer immunity.  Most law enforcement officers do not have unlimited means to pay attorney fees or significantly high judgments out of their own funds and are rightfully concerned about these kinds of cases. I have seen so many officers stress needlessly about this issue.  What the news does not report, however, is that most courts tend to provide a high level of discretion to law enforcement officers as to how they perform their duties. It is often the case that a law enforcement officer will be immune to suit because of this high level of deference. It is the unusual case where a law enforcement officer’s case is not given deference (those typically are the cases that are profiled in the news).  

Caselaw

The current caselaw regarding police immunity is best discussed in the 2017 case of Rand v. Lavoie, Case No. 14-cv-570-PB, in New Hampshire.  The standard for police immunity in police cases is as follows.  In order to overcome an immunity defense for a police officer, the alleged victim must show that they “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). The U.S. Court of Appeals for the First Circuit has explained that there are two aspects to this inquiry: “(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established’ at the time of the defendant’s alleged violation.” Stamps v. Town of Framingham, 813 F.3d 27, 34 (1st Cir. 2016) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 32 (1st Cir. 2011)).

A Fourth Amendment excessive force claim requires proof that “the defendant officer employed force that was unreasonable under the circumstances.” McGrath, 757 F.3d at 25 (quoting Kenney v. Floyd, 700 F.3d 604, 609 (1st Cir. 2012)). In general, an officer may not use deadly force defensively or to prevent escape unless a “reasonable officer [in the same circumstances] would believe that [an individual] posed a ‘threat of serious physical harm either to the officer or others.’” See Young v. City of Providence ex rel. Napolitano, 404 F.3d 4, 23 (1st Cir. 2005) (quoting Tennessee v. Garner, 471 U.S. 1, 12 (1985)). The courts have held that in assessing the reasonableness of an officer’s conduct, courts balance “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). A court must take into account the “totality of circumstances,” Garner, 471 at 9, and “slosh [their] way through the factbound morass of ‘reasonableness,’” Scott v. Harris, 550 U.S. 372, 383 (2007). The Fourth Amendment’s reasonableness test is objective: it focuses on how a “reasonable officer on the scene” would act, rather than an officer’s actual state of mind. As a result, courts must avoid analyzing an officer’s conduct “with the 20/20 vision of hindsight” and should be mindful that “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97.

Courts, in general, have gone out of their way to provide defense to police officers in most cases given the significant personal and safety issues they face in the scope of their employment.  

The Government Typically Represents the Police Officer

The standard for action against a police officer is high, as mentioned above.  Additionally, it is also important for the police officer to know. news for law enforcement officers regarding personal liability is that the government usually steps in to defend the officer after a civil lawsuit is filed.  Federal agencies,  states and localities typically have laws or regulations that require them to step in and represent an officer sued for official misconduct. The plaintiff will typically expect this.  These laws vary by state. It can be the case that the state or locality may represent both the state and the officer in defending against a civil action. It is often in the interests of the government to do so to avoid complicating the legal defense for a case of alleged misconduct. Furthermore, when the government decides to settle a case, they often require the plaintiff to agree to a full release against the officer as well as the government. In the vast majority of cases, police officers have little to worry about in terms of paying a judgment. 

Insurance in the Context of a Civil Claim 

A private insurance policy should always be considered by a law enforcement officer.  Law enforcement officers should maintain an insurance policy to cover them for legal defense for civil lawsuits related to duty-related actions and to perhaps pay judgments or settlements.  These policies vary.  It is important for law enforcement officers to explore this option given the litigious nature of law enforcement today.  There are various policies that exist and a law enforcement officer would do well to explore these options.  We have represented police officers in the past under the FOP Legal Defense Plan. Our law firm recommends that all law enforcement officers maintain civl liability insurance for the rare case in which the state or municipality declines to represent an officer.  

Conclusion

For police officers, it is very important to understand personal liability issues as a law enforcement officer and for an officer to take steps to protect themselves.  Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070.  The Firm's Facebook page can be found here Berry & Berry Facebook Page. 

 

 

 

Posted at 10:11 PM in Personal Liability |

Tags: civil liability, civil suit, department, law enforcement officer, lawsuit, legal, legal defense, liability, personal civil liability, personal liability, police, police defense lawyer, police lawyer, police officer

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