Current Affairs

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

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

06/29/2015

Washington Supreme Court Finds Protected Speech for Verbal Abuse Towards Officers

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

In a decision by the State of Washington Supreme Court, issued on June 25, 2015, the court found that the offensive speech of an arrestee was protected speech.  The incident arose in the context of an arrest of an intoxicated resident of a house.  Police arrived and attempted to calm the individual down.  While this was ongoing, another resident of the house told officers not to use a nightstick on the other individual who happened to be his sister.  The individual was directed away from the scene, became irate and began yelling profanities and calling the officers abusive names.  

COURT'S RULING ON VERBAL ABUSE

Eventually, the individual was told that he was engaging in obstruction and then was arrested for the charge of obstruction of a law enforcement officer. The court, in its ruling, found that individual arrested had the right to criticize how police were handling an incident. The court held that "obstruction statutes may not be used to limit citizens' rights to express verbal criticism, even abusive criticism, at police officers."  The Washington Supreme Court cited the U.S. Supreme Court's decision in City of Houston v. Hill, 482 U.S. 451, 454 (1987) for this position.  

The court also found that the arrestee had the right to use profanity and criticism towards officers so long as the individual did not physically interfere with the officer. Despite the fact that the ruling only applies in the State of Washington it is important for law enforcement officers to be aware of these potential issues should this ruling be adopted by other jurisdictions.  It can be very difficult for police officers to anticipate safety issues that may arise while at the same time dealing with difficult individuals engaging in verbal abuse.  The key, for at least this ruling, is that the individual did not physically interfere with the officer.  

The case of Washington v. E.J.J., Case No. 88694-6 (Wash. 2015) is attached through this link.  

CONCLUSION

It is important to understand freedom of speech 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 02:17 PM in Current Affairs |

Tags: arrest, First Amendment, law enforcement officer, police officer, protected speech, verbal abuse, Washington Supreme Court

05/12/2015

Legal Issues Involving the Use of Personal Cellphones and/or Data Devices for Police Officers

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

With the significant number of high profile police cases in the media in 2015 law enforcement officers have found the need to be extra careful in every aspect of performing their public duties. In our practice of representing law enforcement officers, this concept should extend to a law enforcement officer's use of personal (non-Department) cellphones, tablets, etc.  

Due to the development of technology, law enforcement officers have been subject to increasing public scrutiny.  Often times, at any given traffic stop or other interaction with the public there are individuals with camera cellphones who record or otherwise attempt to capture footage of an officer performing his or her duties.  The natural reaction to this type surveillance by the public is for an officer to want to keep their own photographic or video records.  Our advice is to be careful in doing so for a number of reasons.

BE CAUTIOUS IN USING PERSONAL CELLPHONES

Taking photographs, video recordings or audio of events involving the public can cause a number of issues to arise for an officer.  Four immediate issues come to mind when we evaluated the downsides to an officer using their own personal cellphone or tablet while on duty.  

First, many departments ban the use of personal cellphones or tablet devices while on duty.  Hence, the officer can get into trouble by using their personal device.  We have defended officers that have received disciplinary actions for the use or possession of such devices while on duty.  Thus, it is important to find out the department policy (to the extent one exists) on the use of personal cellphones or devices on duty.  

Second, and equally important is the increase in litigation.  As the number of major media events involving police officers have increased over the years, so have the number of lawsuits.  One of the major issues that the courts are now seeing, once a lawsuit has been filed, are discovery requests which seek inspections of all of a police officer’s personal cellphones and/or data devices for information related to an incident. For instance, a plaintiffs' or criminal defense attorney might ask for copies of all photographs taken from an incident.  It is likely that the courts will further open the door to requiring officers to produce such information in the years to come.  

Third, depending on the jurisdiction (federal, state, county, local), taking audio, photographs or video of a private citizen may be restricted by law. There may be privacy laws which govern and restrict the ability to maintain or use such information.  In addition, in some jurisdictions video or audio recordings taken by an officer while in the line of duty might be considered public records and have a requirement that they be turned over.  

Fourth, no matter what the department rules or laws are that govern, it is very important that officers not post or otherwise disclose such information (video, recordings or other information) from an incident on the Internet.  We have seen this type of issue give rise to law enforcement offices in the form of department discipline and it is likely to increase in the years to come. Lawsuits have already been filed by individuals photographed, videotaped or recorded by officers on various grounds, on privacy grounds.  When these cases come to light the officer is inevitably charged administratively with discipline for doing so.  

CURRENT CASELAW

There have not been many reported court cases which have developed where the plaintiff, prosecutor or defendant seeks an officer’s private personal cellphone or tablet records, but they are certainly coming.  The most on point case, thus far, occurred in New Mexico, in State v. Ortiz, 215 P.3d 8111 (NM Ct. App. 2009).  In the Ortiz case, the defendant was  charged with driving while intoxicated.  The defendant’s attorney sought all records, including personal cellphone records from the officer involved in the arrest which may have aided in the defendant’s legal defense.  The court in Ortiz held that the government was required to turn over the officer’s cellphone records.

Not many cases have followed Ortiz as of yet, but as I mentioned above they are coming.  There is little doubt that evidence taken (e.g. photographs / video recordings of a crime scene) on an officer's personal cellphone will be likely required to be turned over in the future by the courts as the law in the area develops.  

CONCLUSION

Law enforcement officers are cautioned to know department policy when using personal cellphones or tablets while on duty.  Officers should also take care, even when authorized, to be aware that recordings (audio or video) may be later sought by a plaintiffs’ attorney or prosecutor.  Our law firm advises and represents law enforcement officers in disciplinary and civil 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 Berry & Berry Facebook Page. 

 

Posted at 03:56 PM in Administrative Defense, Current Affairs, New Court Cases |

Tags: attorney, civil lawsuit, lawyer, legal defense, legal issues, litigation, police attorney, police officer cellphone, representing police officers, subpoena, tablet

01/13/2015

Legal Issues Involving Body Cameras for Police Officers

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

Police departments nationwide are beginning to purchase body cameras for use in officer interaction with the public.  This, in part, is due to the advancement of technology, in addition to increasing civil suit liabilities faced by these departments.  The law, so far, has not caught up with many of the issues that will arise or have already arisen.  A number of questions are now being asked about the use of this technology and many legal issues are sure to eventually arise.  

LEGAL ISSUES REGARDING BODY CAMERAS

Some of the initial legal issues that have arisen regarding the use of body cameras by police officers include the question of privacy, including whether or not an officer has to notify members of the public that they are being recorded. That seems to have been answered by police departments, and most likely the law, in the negative.  Public areas have generally been accepted as open to such recordings.  Other issues have arisen about the privacy of police officers (and their conversations) when not involved in an incident but where they are merely just interacting with other police officers.  

POSITIVES OF BODY CAMERA USAGE

One of the major issues that the recordings will help to resolve mainly involves the issue of civil suits and citizen complaints. In our representation and defense of law enforcement officers, it is clear that the use of body cameras will more likely help than hurt in officer defense cases.  Usually, claims in civil suits against police officers are not borne out when there is video evidence available of the incident in question. A great many claims are invented but must take their time through the complaint and/or legal system becuase no evidence to the contrary exists when claims have been made.  For instance, if excessive force is alleged, most often video evidence will show that nothing actionable took place.  It is the absence of video proof which has often lead to cases against law enforcement officers either settling or succeeding. The unique cases in the media which appear to show negative conduct on the part of a police officer are definitely the exception, and not the norm.  It is likely that the use of body cameras will have the effect of vindicating officers from allegations and doing so more quickly. 

The Department of Justice has recently published a good article on the issue of body cameras for police officers which should be read by law enforcement officers.  DOJ Article on Body Cameras  The article discusses many of the goals for police departments and law enforcement through the use of body cameras.  

CONCLUSION

Many departments believe that the use of body cameras will eventually become standard procedure in the future and are preparing for this eventuality now. When a law enforcement officer is faced with civil/administrative issues related to their employment, it is important for them to have counsel. Our law firm advises and represents law enforcement officers in disciplinary and civil 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 Berry & Berry Facebook Page. 

Posted at 07:04 PM in Administrative Defense, Current Affairs |

Tags: administrative defense. legal defense, body camera, civil suit, department, law enforcement officer, lawsuit, lawyers, legal, liability, police, police lawyer, police officer

04/06/2014

Legal Defense for Off-Duty Police Misconduct

By John V. Berry, Esq., Berrylegal.com

In our legal practice of representing federal, state, county and municipal law enforcement officers, we frequently represent police officers in investigative and disciplinary investigations.  One of the most common areas in which we represent police officers involves off-duty misconduct.  This is one of the biggest growth areas for police misconduct complaints.

Off-Duty Misconduct

Many police officers that we represent and advise come with a common question, which is whether or not they can be disciplined because of actions they take outside of normal duty hours.  The answer is yes.  We have seen any number of issues arise outside of police officer’s duty that give rise to an off-duty police misconduct complaint.  Police agencies generally have the authority to discipline law enforcement officers for off-duty conduct which has a connection to their employment.  See Gunville v. DOI, 2013 MSPB LEXIS 5341 (M.S.P.B. Oct. 22, 2013) (termination of federal law enforcement officer upheld due to off duty assault arrest).  

Most police departments, in their general or department general orders have a provision which states that a police officer remains a police officer 24 hours a day. This leaves open the door for them to regulate the off-duty conduct of a police officer.  Even without such a provision, it is clear that police departments generally have the authority to discipline police officers for “conduct unbecoming a police officer.”  This is a general catch all phrase which covers, in theory, most off-duty misconduct.

A typical general order covering “conduct unbecoming” might read as follows:

"Conduct unbecoming an officer, including actions detrimental to good discipline, conduct that would adversely affect the employee’s or the agency’s ability to perform effectively, or violations of any law of the United States, or of any law, municipal ordinance, or regulation of the State."

Examples of Potential Off-Duty Misconduct

While there are any number of potential types of off-duty misconduct cases, some of the more frequent examples include the following:

1. An arrest for an alcohol-related driving offense;

2. An arrest or temporary protective order issued to a police officer (often the result of a spousal/boyfriend/girlfriend complaint to internal affairs);

3. The use of force by an off-duty police officer (which a department can deem to be off-duty when they feel it is appropriate);

4. The loss of a weapon, off-duty, by a police officer;

5. An allegation that an officer has not been honest in his/her dealings with others;

6. Issues involving a police officer’s actions in his/her private life (morality issues, associations with known criminals, etc.);

7. Issues arising from a civil action unrelated to a police officer’s duties (e.g. an officer involved in litigation with others regarding a business or real estate dispute); and 

8. Engaging in outside employment without permission.

These are just examples.  There are a number of other types of issues that can give rise to off-duty misconduct cases.  

Off-Duty Misconduct Defense

When we represent a police officer in an off-duty misconduct charge it is important to line up an officer’s legal defense as early as possible.  Some potential defenses to off-duty misconduct include: (1) that there was no nexus between the off-duty issue and the individual’s position as a law enforcement officer;  (2) disparate (different) treatment of officers by a police department involving the same alleged off-duty misconduct; (3) the First Amendment (for issues involving speech or association); and (4) infringement by a police department on privacy rights.   

In addition, the rules for preparing an effective legal defense change a bit when responding to off-duty misconduct charges.  When we defend against on-duty charges we find that most of the information needed to prepare a legal defense is maintained by the department, which makes discovery easier in that it comes from one location. However, in on-duty cases the police department can attempt to keep some information to themselves without disclosing it.  In contrast, when dealing with off-duty police misconduct there is usually a lot of information held by third party witnesses and other entities.  While it may require more footwork to obtain information held by third parties, the good news is that this can often lead to better information (and more complete disclosure) to use in a police officer's legal defense.  

Conclusion

When a law enforcement officer faces issues involving off-duty misconduct, it is important for them to have counsel. Our law firm advises and represents law enforcement officers in administrative defense cases. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. 

Posted at 05:34 PM in Administrative Defense, Current Affairs |

Tags: administrative discipline, conduct unbecoming, different disciplinary penalty, disciplinary action, employment lawyer, general orders, law enforcement officer, legal defense, leo, misconduct, off-duty, Off-duty misconduct, Off-duty police misconduct, police defense lawyer, police lawyer, police lawyer, Police misconduct, police officer

02/04/2014

Giglio Issues for Law Enforcement Officers

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

In our legal practice of representing law enforcement officers in their administrative defense and civil matters, it is important to always keep issues of truthfulness and candor under consideration when investigations or other types of cases arise. If a law enforcement officer has been accused of being dishonest in some way, it is very important to rebut these allegations as soon and strongly as possible in order to avoid long term career difficulties in law enforcement. In our experience, sustained allegations of untruthfulness or lack of candor often lead to termination or removal actions from law enforcement employment, and from there they can lead to a difficulty for the individual in obtaining a new law enforcement position. For these reasons, the concept of Giglio is very important to law enforcement officers and agents.  

Giglio Background

Giglio comes from the case of Giglio v. United States, 405 U.S. 150 (1972).  Giglio was a United States Supreme Court opinion in 1972 which held that prosecutors essetnially acquired a duty to disclose evidence about the credibility of government witnesses (often law enforcement witnesses) which had to be turned over following a request by defense counsel.  “Giglio material” refers to material tending to impeach the character or testimony of a prosecution witness in a criminal proceeding.  Defense counsel will then use the findings of deceptiveness or dishonesty to impeach a law enforcement officer's account in a criminal proceeding.  

The major problem for law enforcement officers, in our practice, has been that once a negative credibility determination against them has been sustained, that it tends to impact their career. If the officer tends to be a primary or solo witness in a pending criminal case, a prosecutor may decline to take the case forward because of this issue, even if the case is meritorious. Furthermore, a prosecutor may also decline to take future criminal cases involving the officer forward where he or she is the primary or sole witness. This, in the view of some police departments, has lessened the value of Giglio impaired officers.  Many law enforcement agencies take the view that a Giglio impairment reduces the law enforcement officer’s value to such an extent that he or she should not be retained. As a result, when allegations of dishonest conduct against an officer have been sustained, these sustained allegations often lead to termination proposals. Such officers have been often referred to as Giglio-impaired. 

A 'Giglio-impaired' law enforcement officer, generally, is one against whom there is potential impeachment evidence that would render the officer or agent’s testimony of debatable value in a case, meaning that a case that depends primarily on the testimony of a single Giglio-impaired witness is at risk. See Hathaway v. Department of Justice, 384 F.3d 1342, 1349 (Fed. Cir. 2004). Giglio impairment varies in severity between jurisdictions and many prosecutor's offices do not maintain consistent data on which officers are effected. There should be far more nationwide consistent standards for dealing with these types of Giglio issues. 

What Should Officers Facing Giglio Issues Do?

Law enforcement officers facing Giglio issues should consult an attorney as soon as possible in order to obtain legal advice and representation to attempt to resolve the Giglio issues. The earlier the allegation of character or dishonest conduct is challenged, the better the chance that the allegation can be rebutted or resolved. Typically, police officers face these types of issues in numerous types of situations, from on-duty report writing, to off-duty conduct in many forms.  

For example, a Giglio disclosure can arise from the following examples (and many others): (1) a sustained internal affairs complaint of deceptive conduct or truthfulness by the officer (even if there is no discipline issued), (2) a finding that a police officer withheld information from an internal or external law enforcement investigation, (3) sustained allegations that a police officer improperly reported their working hours or overime, (4) sustained allegations of theft by the officer, or (5) a finding that the officer was not truthful in personal or public life.  The examples are numerous. 

Two Recent Giglio Cases

As one can see, Giglio can play a role in termination proceedings, especially in the federal sector.  Giglio issues do not always result in termination, but they often can.  A few recent cases are attached below: 

Ramos v. DHS, 2014 MSPB LEXIS 202 (M.S.P.B. Jan. 14, 2014) (law enforcement officer removed for sustained findings of lack of candor related to alleged false statements made to other law enforcement officers during traffic stop in addition to potential Giglio concerns). 

Walker v. DHS, 2013 MSPB LEXIS 1114 (M.S.P.B. Feb. 28, 2013) (agent removed for sustained findings about allegedly providing false statements about evidence obtained in a case) (MSPB upholding deciding official’s termination decision, noting that a law enforcement officer was sworn to tell the truth, and now that he was “Giglio impaired,” he would be unable to perform his job duties and could not be rehabilitated).

Conclusion

When facing issues of truthfulness or candor it is important for a law enforcement officer to obtain the advice of counsel where potential Giglio issues might arise. Our law firm stands ready to advise law enforcement officers on  issues involving truthfulness concerns and their administrative defense. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page can also be found here. 

Posted at 01:46 PM in Administrative Defense, Current Affairs |

Tags: administrative, candor, candor, giglio, giglio attorney, giglio impaired, giglio lawyer, giglio lawyers, giglio material, internal affairs, law enforcement officer, MSPB, MSPB Lawyer, police lawyer, police officer, truthfulness, truthfulness

12/14/2012

Police Union Sues WMATA Over Illegal Termination of Officer

By John V. Berry, www.berrylegal.com

In an interesting case, Fraternal Order of Police Metro Transit Police Labor Committee v. WMATA, 1:12cv1387 (E.D. Va Dec. 4, 2012), the union that represents WMATA police transit officers, the FOP/Metro Transit Police Labor Committee, has filed suit in the U.S. District Court for the Eastern District of Virginia, asking that an officer be reinstated to his position.  The officer involved was terminated from his employment with WMATA for alleged misconduct and subsequently appealed his matter to arbitration through his union.  An arbitration board appointed to hear the case, later rescinded the firing and instead imposed a suspension of one-year as a disciplinary penalty in the case. 

The officer was then brought back  to work as an employee and placed on paid administrative leave.  However, in August of this year, the Maryland commission
which certifies law enforcement officers in that jurisdiction for WMATA denied his
recertification as a police officer.  Apparently, as a result, WMATA has refused to reinstate the officer involved in the matter because of the credentials issue.  The union argued, in their filing, that other officers were not required to have credentials but were still permitted to function as police officers. 

The union has filed the lawsuit at issue seeking the reinstatement of the officer, lost
backpay, litigation costs, attorneys fees and other remedies in this matter.  The case is interesting and one that will be of interest to police officers on the issue of wrongful
termination and to police unions on the issue of certification and continued employment.  The complaint is attached here.   Download Metro Transit Wrongful Termination Case

Posted at 02:58 PM in Current Affairs, New Court Cases |

Tags: arbitration, back pay, certification, court, credentials, fop, lawsuit, metro transit, officer, police officer, termination, virginia, wmata, wrongful termination

06/22/2012

Berry & Berry PLLC, Proudly Representing FOP Legal Plan Insured Police Officers Since 1999

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

The law firm of Berry and Berry, PLLC represents police officers, supervisors and other police professionals in administrative, civil and criminal matters under the Fraternal Order of Police (FOP) Legal Defense Plan (www.foplegal.com). For more information, please visit our main website at www.berrylegal.com or contact our office by telephone at (703) 668-0070.  We have represented police professionals under the FOP Plan for over 12 years and strongly believe in it's ability to help those officers that have encountered difficulties resulting from their police employment. 

Our Experience Representing FOP Legal Plan members

Berry & Berry, PLLC is a law firm based in the Metropolitan Washington, D.C. area that has represented hundreds of law enforcement professionals across the United States under the FOP Legal Defense Plan since 1999. If you are a member of the FOP Legal Defense Plan, we can assist you in your employment as a police professional.  Our law firm is on the FOP Legal Defense Plan’s list of approved counsel. 

We represent federal law enforcement professionals nationwide under the FOP Legal Defense Plan, in addition to state, city and local law enforcement professionals in Washington, D.C., Virginia, New York, Maryland, Michigan, Massachusetts and Maine. Through the FOP Legal Defense Plan we represent police professionals in internal affairs unit investigations, disciplinary / adverse actions, employment appeals, civil action defense and some criminal matters. 

The FOP Legal Defense Plan Claim Process

In order for our attorneys to represent you in your employment defense, the first step that you need to take is to contact our office at (703) 668-0070 or through our website at www.berrylegal.com in order to start your claim and represent you. Once contacted we will promptly set up an in person or telephone consultation with you to go over your legal issues.  Please keep in mind that the timeline to submit FOP Plan claims is generally 30 days after an officer is notified of the pending investigation so it is important that you file your claim in a timely manner.

Our law firm has proudly assisted law enforcement officers over since 1999 across the country and look forward to assisting you in your legal defense. 

Posted at 03:19 PM in Current Affairs |

Tags: administrative, approved counsel, civil, civil actions, criminal, D.C., disciplinary actions , FOP Legal Defense Plan, FOP Plan, internal affairs unit, investigations, law firm, lawyer, lawyers, Maine, Maryland, Massachusetts, Michigan, New York, police officers, Virginia, Washington

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