The Police Law Blog

John V. Berry, Esq., Berrylegal.com

What is Disparate Discipline?

In our legal practice of representing federal, state, county and municipal law enforcement officers (LEOs or officers) in their administrative defense matters, we frequently come across cases where 2 officers have been charged or found guilty of the same type of misconduct, but have given different disciplinary penalties.  This is known as disparate discipline. This is a significant problem for law enforcement agencies, and the officers involved. It also can be extremely bad for Department morale.

One example that we frequently see involves the alleged misuse of patrol vehicles for non-official purposes by officers. For instance, we have had cases where we have defended an officer in serious suspension cases for the alleged misuse of a government vehicle for stopping for dinner following (or during) duty in a police vehicle.  In these types of cases, we have often been able to use disparate discipline as a defense because of other similar past cases involving other officers where they were either (1) not disciplined; or (2) received minor discipline (e.g. written counseling).

Proving Disparate Discipline

In disparate penalty cases, we argue that disciplinary actions given to officers in similar types of cases must be consistent.  In federal LEO cases (and similarly for state, county and municipal police officer cases), to prove disparate discipline as a defense one “must show that there is enough similarity between both the nature of the misconduct and other factors to lead a reasonable person to conclude that the agency treated similarly-situated employees differently . . . . “ Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012).  This type of legal defense has been successful in a number of cases.  The key to using this defense is to be (or become) knowledgeable, to the extent possible, about other similar disciplinary cases involving similar misconduct.  

Conclusion

When a law enforcement officer faces issues of administrative 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. 

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

Our law practice often represents federal, state, county and municipal law enforcement officers in disciplinary matters.  When doing so, it is often important to obtain as many of the investigative records about the underlying investigation as possible for purposes of legal defense.  Given that police departments (federal, state, county, and municipal) are organized differently, not all of them maintain an Internal Affairs Unit (IAU).  However, most of these law enforcement employers do maintain an IAU or have delegated investigative duties to another part of the department or within the officer or agent's chain of command.  Either way, the types of documents and materials sought for an officer's legal defense are similar and relevant to their legal defense should they be placed under investigation.    

Type of Internal Affairs Documents Available

Typically, an IAU investigation covers many aspects of an incident under investigation.  The types of documents contained within an IAU investigative file can include a number of useful items for an officer's legal defnese. These items can include: (1) the initial incident report or complaint; (2) investigative interviews and statements of the complainant and/or witnesses in the case (both in writing and possibly tape-recorded versions of the statements); (3) copies of relevant general or department orders pertinent to the investigation; (4) videotape footage of the underlying incident; (5) relevant photographs of the scene of the incident or related issues; (6) copies of the questions asked by investigators of the witnesses; (7) letters or documents to other police officials describing issues or the status of the investigation; (8) copies of any declinations of prosecution in the file; (9) relevant diagrams or reconstructions of an incident (where available); and (10) related court records or orders (where applicable). 

There may be other items available in a particular IAU investigative folder, but the above listed items are the types of documents that are most often included in these types of investigations.  

Usefulness of Such Documents for Legal Defense

Often times law enforcement officers meet with us and have not considered the possibility of seeking IAU documents for use in their legal defense when facing a potential disciplinary action.  We advise law enforcement officers to seek these documents whenever possible because they can uncover mistakes within the investigation.  Where mistakes in an investigation are found, or areas overlooked by investigators, this information can be used as a defense for the officer involved. With the proper use of such documents, a proposed disciplinary action may potentially be dismissed or the penalty or sanction may be reduced.

Depending on the police department involved, these documents can potentially be obtained through Freedom of Information Act (FOIA) requests, Privacy Act requests, Collective Bargaining Agreement requests, Due Process information requests and by other methods depending on the police department involved.  

Conclusion

When a law enforcement officer is facing a potential disciplinary action, it is important to obtain the advice of counsel. An officer or agent will want to obtain legal advice and assistance in obtaining relevant records for their legal defense. Our law firm stands ready to advise police officers and agents on the issues relating to their law enforcement employment. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

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

The first step in the resolution of allegations of misconduct by law enforcement officers is for the department or agency to conduct an administrative investigation into the allegations at issue.  When a police or other law enforcement officer is subject to this type of investigation it is important for them to obtain legal counsel prior to the administrative interview.  The following are the usual steps taken in the investigative process. 

Notification of an Investigation

Typically, the first step in the administrative investigation process for a law enforcement officer is a notification by their department of agency that an investigation is being conducted into allegations against him or her.  Depending on timing issues, this notice usually precedes the administrative interview.  Most law enforcement employers will provide a short notice as to the nature of the investigation.  Some law enforcement employers will even provide a copy of the administrative complaint.  Even if the law enforcement employer does not provide a full copy of the allegations under investigation, we find that most police officers are able to generally determine the nature of the allegations in an administrative investigation prior to the investigatory interview. 

The Administrative Investigation

Following notification, the investigators assigned to an investigation will generally schedule an investigatory interview with the officer involved. This interview will be conducted, in most law enforcement agencies, by their Internal Affairs Unit (IAU).  However, many law enforcement agencies are not large enough to maintain a separate IAU or may be large enough but instead decide to assign such investigations to supervisors within the chain of command. 

During the interview stage, investigators typically start the interview in one of three ways: (1) they just began asking questions of the officer; (2) they ask the officer to sign a voluntary statement form prior to the interview; or (3) they compel / order the officer to provide a statement (usually doing so by providing a Kalkines Warning, a form referring to the case of Kalkines v. U.S., 473 Ct. Cl. 1391 (Ct. Cl. 1973).  Unless the officer is certain that the conduct at issue does not involve related criminal issues, we typically recommend that the officer require the law enforcement agency to order the client to provide a statement. 

This is distinguishable from a situation where the agency brings an officer in and starts asking questions of the officer without giving such an order.  In that type of situation, where the officer responds voluntarily, he or she can be deemed to have provided a voluntary statement which can then be used in both an administrative and criminal context.  If a public employee is required (ordered) to give a statement (and there is evidence of the order), then the statement may usually only be used in an administrative and not an criminal context.  If this has the potential to become an issue, it is important for the officer to have counsel advising them prior to the interview, if possible. 

Disposition of the Administrative Investigation

When the investigation is concluded, most law enforcement officers typically receive a notice as to whether or not the investigation has been sustained, not sustained or unfounded.  The disposition categories vary be law enforcement agency.  If not sustained or unfounded, typically that is the end of the matter and the case is closed.  However, if an allegation is sustained, the next step for a law enforcement agency is likely to be to propose discipline.  If that is the case, it is critical if a law enforcement officer has not already gotten legal representation, to do so as soon as possible. 

Conclusion

When a law enforcement officer is facing an administrative investigation it is important to obtain the advice of counsel where potential issues might arise. A law enforcement officer, in most cases, should obtain legal advice prior to the completion of an administrative investigation. Our law firm stands ready to advise individuals on the issues involving these types of legal defense issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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

We often represent law enforcement officers in disciplinary defense matters.  Our law firm represents federal, state and local law enforcement officers that find themselves subject to disciplinary actions, including suspensions or terminations, relating to both on duty and off duty conduct.  When facing such an action one of the first important steps to take is to evaluate which general orders from the department involved apply, could apply or might apply.

Once you have determined which general orders are applicable, one can start to
plan and outline the police officer’s defense to the proposed disciplinary action. 

General Order Basics

Each police department, whether federal law enforcement or local law enforcement generally maintain a set of general orders which govern procedures within the department.  Typically, these are provided to police officers upon hire and then are updated as needed.  Each police department is different in their practices regarding the training provided to officers regarding these general orders.  Some departments
provide officers extensive training on what is contained in the general orders, while
others do not.  Either way, when an issue or incident arises, each officer is expected to know and follow the rules and procedures contained therein.  When a problem arises, the departments first response will be to contend that the officer had a duty to know the contents of all of the general orders and to follow them. 

How General Orders Can Help in Officer Defense Cases

General orders, however, are a two-way straight.  Not only do they apply to officers but they also apply to managers.  This fact can help officers when defending against disciplinary actions.  When facing a proposed disciplinary action, the first step in a case is to review the proposed disciplinary charges.  When our law firm represents police officers, our next step is to obtain a copy of the relevant general orders which impact the alleged charges in question.  Typically, there is always a department general order that covers the department's disciplinary process.  There also usually tends to be a general order that covers general misconduct or conduct unbecoming charges which can be helpful in outlining a police officer’s disciplinary defense.

In addition, we also check for general orders that outline procedures that are related to the specific charges at issue.  For instance, if a charge alleges misconduct by the officer regarding the use of his/her government vehicle, we request a copy of the general order which covers vehicle usage and policy.  Or, in cases where it is alleged
that an improper arrest was performed, we ask for a copy of the general order
which covers the specific arrest procedures for the department.  Often times you can find that the department has not followed their own policies that they are attempting to hold the officer to.  Other general orders involving how investigations into misconduct are to be conducted can be helpful to an officer's defense as well. 

It is fundamentally important for an officer to review and utilize their departmental general orders in preparing for their legal defense when legal defense becomes necessary.

Conclusion

When a law enforcement officer is facing a disciplinary action it is important to obtain the advice of counsel. A police officer will want to obtain legal advice prior to responding to a disciplinary action.  Our law firm stands ready to advise federal, state and local police officers in their disciplinary defense.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.