By John V. Berry, www.berrylegal.com
When a police officer or supervisor comes to our Firm and is faced with a pending investigation or a potential disciplinary action, there are a number of considerations to take into account when we prepare to defend them. The first consideration is usually to make sure that we have all of the documents necessary in order to defend the police officer / supervisor under investigation or who has been accused of alleged misconduct.
Police officers and supervisors have a number of tools at their disposal in seeking information or documents in representing them. These tools vary somewhat based on whether the police officer or supervisor is employed by state, local or Federal employers, and whether the officer or the officer’s union (when applicable) requests the information on their behalf.
Types of Documents Sought in Officer Defense Cases
No matter what stage a police officer or supervisor is at during a departmental administrative investigation (anywhere from notification to the completion of the administrative inquiry) it is very important for the individual or law firm representing them to seek out key documents in defense of the allegations and to do so as early in the process as possible. The reason why we do so as early as possible in cases is that documents can easily be lost or misplaced later in the process.
The first type of document that should be requested when facing a potential investigation, if it is possible to obtain, is a copy of the administrative complaint which lists the alleged misconduct under investigation. Sometimes the rules of individual police departments or a police union’s collective bargaining agreement (where applicable) provide that an officer or supervisor investigated regarding misconduct be provided a copy of the investigative complaint within so many days. Often times, even when this is required, it still is not provided unless one asks.
The next types of documents that we usually try and obtain in an officer’s defense case are the relevant General Orders or Department Orders governing the alleged conduct which is the subject of the investigation or complaint. A police officer or supervisor will generally have access to these documents through their employment and may have been issued a set of them by their department when they began employment. These documents are critical in that they define the conduct at issue and assist us in planning the officer’s defense.
The third type of documents that are usually important to request in regards to administrative investigations are any written or recorded statements by witnesses, followed by copies of correspondence/emails between witnesses and/or department employees. These types of documents or records are usually made available later in the administrative process, following the completion of the administrative investigation. The key is to obtain these materials as early in the process as possible.
Mechanisms for Obtaining Evidence for Administrative Defense
Depending on where a police officer or supervisor is employed (local, state, federal), there are a few additional ways in which one can attempt to seek information and/or documents related to these investigations. An officer’s options generally depend on where the individual is employed and also whether or not they are employed in a unionized department.
These tools for seeking information include:
1. Collective Bargaining Agreement (CBA) Requests: These types of requests are based upon provisions within applicable police union CBAs which provide officers access to certain types of information that is required to be provided under the terms of an individual CBA. For example, many police union CBAs require that the department provide a copy of all complaints filed against an officer or supervisor within a certain number of days.
2. Union Information Requests: Typically, these kinds of requests can be initiated by federal sector law enforcement officers through their unions. There is a provision, under 5 U.S.C. § 7114(b) of the U.S. Code which provides that a federal sector union can seek copies of information (documents, data, recordings) which are relevant to their defenses and/or grievances. In other public sector departments (i.e. Local (city) or State), similar laws can also provide for police union access to relevant information on behalf of police officers. Therefore, if the officer is employed in the union sector, this can provide an important right to obtain certain types of information for use in officer defense.
3. Freedom of Information Act Requests: Freedom of Information Act (FOIA) requests can be sent by any private citizen under 5 U.S.C. § 552 to a federal agency or federal police department, seeking information that might be helpful in cases. Many states and local jurisdictions have their own versions of FOIA, so be sure to consider these avenues when seeking relevant information.
4. Due Process Requests: These types of requests are based upon the constitutional right of public employees to obtain documentation relied upon by a public employer in disciplining a public sector (federal, state or local) police officer. It is based on the Fifth Amendment of the United States Constitution and can provide a basis for relevant information that can be used to defend police officers and supervisors when they are defending against allegations lodged against them.
5. Discovery Requests: Discovery requests can seek needed information from a variety of litigation contexts. For instance, if an officer or supervisor in the federal sector is disciplined or removed from service, often times you can take an appeal of the action to the Merit Systems Protection Board (MSPB). When such an appeal is filed, an officer has a number of important rights in seeking documents. Many states have similar types of appeals boards like the MSPB where discovery can be used in that process. This principle can also apply when a police officer or supervisor has been sued or has filed a lawsuit against the department relating to misconduct. In such a case, an officer or supervisor might be able to use the civil process to obtain important documents in their respective cases.
When a police officer or supervisor is facing a disciplinary investigation or action, there are many methods in which to attempt to seek documents in order to defend them. As explained, there are many potential methods available for seeking these documents, but the key is to work on doing so as early in the process to ensure the best defense possible for the police officer or supervisor. If you have individual questions about your individual situations, please contact our law firm at www.berrylegal.com to schedule a time to discuss them.