A blog by lawyers for law enforcement officers about law enforcement issues.
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. Criminal Testimony Process An individual has been arrested by a law enforcement officer for a traffic offense or other crime. The first step that they generally take is to hire a criminal defense attorney. The next thing that the officer knows is that they are being contacted by the prosecutor or their court liaison about court dates for an upcoming trial. The goal of criminal defense attorneys is to attempt to get a dismissal or otherwise dispose of a criminal case for a client. The goal of the law enforcement officer is to make sure that the individual is held accountable to the extent they should be and to testify for the prosecution in a manner consistent with law. Criminal defense attorneys vary, as do their tactics. Some criminal defense attorneys are very good at what they do and do so ethically. Some criminal defense attorneys do not and show up at the last minute and are unprepared. There are ethical rules which govern what a criminal defense attorney can do for their client. They cannot have any part in the falsification of evidence, or advise their client or other witnesses to lie, but they can try to use every tool to help their client. The central goal of a criminal defense attorney is to attempt to discredit or confuse a law enforcement officer during testimony. Tips for Law Enforcement Officers in Dealing with Criminal Defense Attorneys at Trial 1. Don’t Get Defensive During Testimony: A police officer should not get defensive during their testimony. Officer testimony is given a tremendous amount of credibility by both judges and juries. The number one way in which to reduce that credibility is to argue with criminal defense attorneys during trial. An officer is far better off answering the questions asked, politely, non-defensively and with an even voice. If a criminal defense attorney is able to rattle a police officer by getting him or her into an argument, it can play right into his or her strategy in discrediting the officer. Avoid this by being even keeled and police during testimony. If something in an officer's testimony needs to be rebutted or followed up on, the prosecutor can follow up with the officer on re-direct examination. 2. Do Not Take the Criminal Defense Attorney’s Actions Personally: As mentioned above, the criminal defense attorney’s job is to help his or her client. They are part of the criminal justice system as much as a police officer is. As a result, an officer needs to understand this and not take the questions or insinuations of a criminal defense attorney personally. A criminal defense attorney will represent an officer (if the time comes) just as aggressively as they do the individual the officer has arrested. It is important to keep that in mind. Criminal defense attorneys generally have an uphill battle in their cases, so they sometimes pull out all the stops to attempt to prevail. It is the police officer’s job to not take the bait. A police officer should not help a criminal defense lawyer distract a judge or jury from the issues on trial. Keeping cool, calm and collective and not venting anger towards the criminal defense attorney can help. If an officer does not keep cool during testimony it can impact his or her credibility. 3. Avoid Training History Pitfalls: Criminal defense attorneys will often question police officers if they received training on how to sound credible when they were in the police academy or through specialized training. The inference here is that the police officer has been trained in being deceptive, which is not true. The criminal defense attorney’s purpose in doing so is to allege that the officer is practiced at the art of deception. As a result, the officer should be prepared to respond that they received police training on how to testify professionally, logically and truthfully to attempt to dispel the notion that the police officer has someone been trained to be deceptive. It is especially important to be calm and polite during this type of questioning. 4. Dealing with Yes or No Questions: It is often the case that a criminal defense attorney will attempt to frustrate a police officer with yes or no questions in an effort to attempt to confuse what occurred or to infer that the officer didn't follow law or protocol. The criminal defense attorney will essentially try to put words in the officer’s mouth using these techniques. Don’t fall for it. If a criminal defense attorney interjects and badgers an officer by demanding that a question only can be answered by a yes or no, the officer should politely respond that they can only provide a truthful answer by responding in full. Wait for the court’s response before responding further. If the criminal defense attorney is allowed to push forward by the court, politely answer yes or no, and wait for the prosecutor to give you a full chance to respond. The information will all come out on re-direct examination, so it is important for the officer not to get upset or rattled by yes or no questions. Answering a difficult yes or no question with a polite yes or no may cause the criminal defense attorney to get frustrated. 5. Repeating the Same Questions - The Circle: Criminal defense attorneys may ask an officer the same question several times, in different manners in an effort to confuse and/or to attempt to confuse a law enforcement officer in their testimony. The goal of a criminal defense attorney here is for them to obtain inconsistent or conflicting answers from the testifying police officer. A prosecutor can object on the basis that the question has been asked and answered. However, if the prosecutor does not object (sometimes they do not) an officer can politely and respectfully respond that they have already answered that question. The key is to look the criminal defense attorney in the eye, humbly, and use respect in responding. If this can be done, then the police officer will have done their job successfully leaving the criminal defense attorney with frustration. 6. Preparation with Prosecutor: It is important for the police officer to be in contact with a prosecutor ahead of their testimony. Prosecutors, like everyone else, are busy, so it is important that an officer follow up if key testimony is coming up. If nothing else, the reminder will get the prosecutor focused (or least put the case on their to do list) on the officer’s case. Also, it is very important for the officer to review all of their reports and the documents associated with the case ahead of time. Preparation is key to successful testimony before a court and in response to a criminal defense attorney. This cannot be understated. 7. Short and to the Point: It is important for an officer’s testimony, when questioned by criminal defense attorneys, to be short and to the point. It does not help a law enforcement officer’s testimony to add details not asked for in a question. Doing so, quite often, can cause damage to the police officer’s testimony. Keep in mind that a criminal defense attorney may be trying to latch onto any additional testimony as a means of causing doubt in the case. The key is to be short and to the point. The officer should be honest and answer the question that is asked. An officer should not answer the question that is not asked or provide detail not sought. Following this simple rule helps in many cases. Conclusion If a law enforcement officer needs counsel and likely legal representation in order to protect them. We represent law enforcement officers in their legal defense matters. Please contact our firm at (703) 668-0070, www.berrylegal.com or visit our Facebook Page.
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. What is Excessive Force? Typically, most experts say that "excessive force" is any force beyond what’s necessary to arrest a suspect and keep police and the public / bystanders safe. Excessive force typically refers to police incidents where law enforcement officers who are legally entitled to use force exceed the minimum amount necessary to address the situation or to protect themselves or others from harm. This can come up in many different potential situations, such as when handling prisoners or even during military operations. It is very easy, after the fact, to second guess an officer's actions. It can be very difficult, however, for the officer when they are facing life and death decisions. When excessive force involves law enforcement officers, especially during the arrest process, it is also referred to by complainants as alleged police brutality. The constitutional right to be free from excessive force is found in the reasonable search and seizure requirement of the Fourth Amendment and the prohibition on cruel and unusual punishment in the Eighth Amendment. These issues often come up after the arrest and when a lawsuit has been filed against the department and the officer. While court decisions are all over the place (and vary by jurisdiction) and vary based on specific fact patterns, the following is a simple general test that can be applied in evaluating alleged excessive force claims. The question, in such cases, is whethe the force applied: Was necessary to prevent the escape of further harm; and The police officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. It is always easy for the public to second guess an officer's decision in the heat of the moment or with respect to social media outrage, but law enforcement officers are placed under tremendous stress in these types of situations, and almost always, in our cases, have done their best to limit use of force to the minimum needed. The key Supreme Court case involving excessive force is Graham v. Connor, 490 U.S. 386, 396-397 (1989). In that case, the Supreme Court held that: With respect to a claim brought under 42 U.S.C. 1983 that a police officer has used excessive force in seizing an individual in violation of the Federal Constitution's Forth Amendment, the inquiry as to the officer's "reasonableness" is an objective one, with the question being whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting the officer, without regard to the officer's underlying intent or motivation; such reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight; not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment, and the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation in circumstances that are tense, uncertain, and rapidly evolving; an officer's evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force, nor will an officer's good intentions make an objectively unreasonable use of force constitutional. The Graham case boils down to a deference for police action in these types of cases, but one based on reasonableness as viewed from a third party's observation. In other words, whether an excessive force case is dismissed or moves forward depends on the reasonableness of the officers involved. We have provided some tips to law enforcement officers facing these difficult use of force situations: 10 Tips for Officers to Consider in Excessive Force Cases Witnesses: When difficult situations arise involving use of force, hopefully the officer has another officer present that can testify as to what has transpired. I find that this is probably one of the biggest ways in which to alleviate excessive force claims. A police officer wants to avoid a one on one confrontation with an individual in an excessive force case. When there are witnesses, the risk of liability to the police officer goes significantly down. Call for Backup or Supervisor: Time permitting (and this cannot happen in many situations), it is critical that an officer call for backup (or for a supervisor) on the scene prior to force being used. Again, this cannot always be done given the fluidity of most excessive force situations, but where possible, it is important to try to get a supervisor or other officer on scene prior to using force. Relay the Situation, on a Play by Play Basis, with the Dispatcher: Where possible, an officer should dictate each step that he or she has taken regarding a use of force situation. These calls are recorded and can be used later for an officer's legal defense. For example, if an officer can state, on the radio, that the "individual has moved his hand towards his pockets" or "the suspect is running down the street armed" it can help in the officer's legal defense later in the process. Essentially, the officer needs to document their law enforcement actions, step by step. Be Familiar with the Law in the Officer's Jurisdiction: It is important for a police officer to be familiar with the standards for excessive use of force claims in their respective states. This can help alleviate problems that later arise. Each state's laws and application of these laws vary, so it is important to be aware of state specific laws and cases on the issue of excessive force. Be Aware of Department's Use of Force Policy: Each use of force policy varies between police departments and law enforcement agencies so it is very important for an officer to be aware of the applicable policy and follow it when difficult situations arise. The officer will need to ensure that they have followed their individual use of force policies in order to protect themselves. Think Carefully Before Writing the Incident Report: One of the biggest issues that officers come across is that they sometimes quickly draft an incident report without thinking through the incident that has occurred. The better (and more thorough) the statement, the better the outcome when a complainant brings an excessive use of force claim against an officer. The statement should be thorough and well thought out. It is important not to leave out key details that can help an officer later in defending against a use of force claim. Ensure that the Department Knows About a Use of Force Claim: Sometimes, police officers will get a civil complaint in the mail, alleging use of excessive force and other issues. Keep in mind that there is no guarantee that the police department knows about the civil complaint. The complaint should be immediately provided to the department's counsel or a supervisor as soon as possible. This is not the time to make assumptions. There have been cases where officers have not responded to complaints which have then led to default judgments against the officers involved because the department was unaware of the case. Body Camera or Other Footage: If an officer's jurisdiction supports the use of body cameras or other video footage, then an officer should attempt to obtain a copy of it to review as soon as possible. This can be invaluable later when a complaint of excessive force is raised. Stay in Public View, if Possible: Another tip that we often provide for law enforcement officers is to stay in sight of other officers and the public when possible during potential use of force claims. An individual is more likely to claim excessive use of force when there are few other witnesses. This goes along with Tip #1. Also, where possible use voice commands that can be heard by others prior to the use of force. Get Legal Advice: When a use of force claim arises it is very important to get legal advice. This is not the time to wing it. It is critical that the officer contact legal counsel that can advise them of their rights and who they can and cannot speak to. It is not unheard of for plaintiffs' lawyers to attempt to contact an officer directly right after an arrest. The officer involved in the use of force claims should not be speaking with them, but their own counsel or the department's attorneys. Conclusion If a law enforcement officer has been accused of excessive force, they need to obtain counsel and likely legal representation in order to protect them. We represent law enforcement officers in the defense of excessive force allegations. Please contact our firm at (703) 668-0070, www.berrylegal.com or visit our Facebook Page.
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. What is a Giglio list? A Giglio or Brady list is a list compiled usually by a prosecutor's office or a police department containing the names and details of law enforcement officers who have had sustained incidents of untruthfulness or some type of candor issues. As most law enforcement officers know, Giglio and Brady are two Supreme Court cases which touch upon the duties of prosecutors to turn over key materials to defense attorneys. These types of lists are used sometimes for disclosure purposes to defense attorneys in connection with prosecutions. When a police officer testifies as a government witness, the prosecutor has the same obligation as with other government witnesses to seek out and disclose Giglio/Brady type information. As a result, prosecutors seek out such information. The prosecutor may then use such information in a case and/or also maintain a file of that information for future cases. If an officer falls on a Giglio or Brady-type list, prosecutors may decline to take any criminal cases associated with these officers forward in the future. They can still do so, but often choose not to because some prosecutors are risk adverse. These types of lists, unfortunately seem to often be inconsistent, too broad and are not applied evenly through law enforcement employers. Furthermore, these types of lists can lead to employment issues without meaningful redress by the officer. Sometimes when a jurisdiction maintains a computerized Brady or Giglio list, more problems arise because data is not input in the same manner or with the same consistency by each prosecutor. As a result, an officer could be potentially Giglio-impaired, but still not on the list and then not be disclosed. This can cause problems later if a conviction results. Giglio Lists Have Become Too Broad, Inconsistent and Usually Lack Due Process Many Giglio lists have started to become far too expansive. In some cases, we have seen officers alleged to have Giglio issues because they have engaged in conduct unbecoming or simply did not follow orders; items having nothing to do with their honesty or credibility. We have seen other prosecutors attempt to get ethics opinions from local state ethics counsel to confirm their belief that they would need to turn over negative information about law enforcement officers. This can be unfair because the officer, in many cases (jurisdictions) has no ability to challenge (or even be heard) before such determination is made. The determination is too often in the eye of the beholder, leaving situations where officers may be placed on such a list and others not placed, even if based on the same or similar conduct. Some jurisdictions have provided special protections for officers, but officers nationwide deserve (at the very least) the ability to challenge an alleged Giglio or Brady issue. There needs to be legislation requiring that an officer have the ability to challenge such a determination, either administratively, or through the courts. Otherwise, the process given to a law enforcement officer is just not fair considering the serious risks that they take everyday to protect the public. Proposed Resolutions for Congress and the States In order to protect law enforcement officers, they need the absolute right to challenge Giglio materials (or placement on a list), be it on a case by case basis in the courts or through an administrative process. One proposed process would be to provide the following rights to a law enforcement officer: Step 1: A federal, state or local prosecutor identifies a potential Giglio or Brady issue involving an officer; Step 2: The law enforcement officer is placed on a Giglio or Brady list identifying him or her as having potential credibility issues; Step 3: The law enforcement officer is notified by the prosecutor's office that there is a potential Brady or Giglio issue regarding their testimony in a particular case, or in general; Step 4: The law enforcement officer is provided the basis and evidence for the Brady or Giglio allegation; Step 5: The law enforcement officer is given the opportunity to respond to the Brady or Giglio issue before an impartial judge; Step 6: If the impartial judge finds that their is no Giglio or Brady issue, he or she then notifies the prosecutor that they have met their Brady/Giglio duty to investigate and that such information need not be provided because no credibility issue exists; and Step 7: If mitigated, the law enforcement officer will then have no further duty to disclose the issue and the prosecutor will have met their burden of providing of due diligence without damage to the officer's career. The difficulty with the present system is that many officers get placed on a Giglio or Brady list right now, but have no ability to challenge such an allegation made by the prosecutor. As a result, it is often the case that the prosecutor then notifies the officer's employer that they will never use the officer's testify again and the officer is then terminated but has no or little ability to challenge the allegation that they are Giglio or Brady impaired. The system presently in place for most law enforcement officers in this regard is completely unfair and unjust. The system of protection for law enforcement officers must change to enable them to challenge false or suspected Giglio or Brady allegations. Conclusion Law enforcement officers and their unions should be aware of Giglio or Brady issues that affect them and their careers. Our law firm advises and represents law enforcement officers in these types of 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.
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. The following are some tips for law enforcement officers in what issues to avoid when they post to their social media accounts. Be Extremely Careful What You Post Despite the fact that many believe that the First Amendment protects police officers in their posting on social media, it cannot be overstated that police officers need to take special care in what they post. I have seen several cases where law enforcement officers have to deal with departmental disciplinary actions related to social media postings they have made. Typically, the most concerning issue happens when a law enforcement officer means no harm, but posts something that can be taken as an off-color comment or harassment of some form. Even if the police officer screens his friends list and security profile, we have seen numerous cases where law enforcement officers are disciplined as a result of what they have posted on Facebook, Twitter, Instagram, etc. A good rule of thumb is to not post anything that the officer would not be comfortable with his or her supervisors seeing. I have had more than a few cases involving comments made about a police supervisor that somehow gets back to the supervisor and then the officer is charged with insubordination or some general conduct unbecoming charge related to such comments. It is far easier to avoid making comments about a supervisor online than to defend against them later. We have also had police disciplinary cases where other police officer witnesses have posted information, contrary to their testimony in disciplinary hearings, on Facebook. I have had cases like this where such information was not even protected by security protocols and open to the public. Other law enforcement officers have posted what borders on pornography or inappropriate photos on social media, and their supervisor, who was a friend on Facebook, files a complaint the following day with the department's Internal Affairs unit. It is very important to treat Facebook as a public and not a private forum. Furthermore, security settings on these social media accounts change so often that what seems private one day, can be publicly posted the next. The best solution is to just be careful in what the officer posts. Other problematic posts involve highly charged posts by law enforcement officers that end up in the media. The best tip here is to not post something on social media that you would be ashamed to have a supervisor see. Do Not Discuss or Reference Cases or Investigations on Social Media We have also represented officers that have gotten into trouble for posting clear (and not so clear) details about ongoing police investigations or court cases in which they are involved. It is very important that law enforcement officers leave investigative details, references and related photos off of social media. Also, it is advisable not to post anything related to law enforcement duties and members of the public. These issues have turned into serious disciplinary cases when a suspect or arrestee has found out that their case has been referenced on the Internet or social media. I have seen cases where we have had to defend officers that have posted pictures of traffic stops or of suspects. Again, it is not something that a law enforcement officer should necessarily be disciplined over, but it happens, someone complaints and then police departments tend to take action. We have even seen police officers disciplined over posting photographs of crime scenes or suspect pictures. Do not post anything related to cases, arrests or investigations (open or closed) on social media and avoid these problems. Avoid Jokes About Fellow Law Enforcement Officers Another issue that has arisen is where a police officer makes a seemingly harmless joke about a fellow officer. In some circumstances, this has led to the other officer (or someone else even) in filing a department complaint about bullying or harassment. This doesn't mean that an officer has to completely eliminate this, but the officer should be careful. The number of complaints of bullying within a police department is on the rise, and we have seen officers confronted with copies of their social media postings during investigatory interviews. Do Not Friend Individuals Under Investigation This may also go without saying, but it is very important that a law enforcement officer not become "friends" or otherwise linked through social media to individuals under law enforcement investigation (assuming that the officer is aware of this) or with significant criminal histories. We have seen a number of cases where individual officers have gotten into disciplinary or security clearance (where applicable) problems where officers were friends with an individual under investigation or with a major criminal background, leading to an investigation into that officer's connection with the individual. It is much better to avoid this issue altogether, so police officers should screen the people that they friend on social media. Keep Private Information to a Minimum A final tip is for police officer to be careful about the level of information about family and contact information that they place on social media. Suspects and others can use such information to attempt to track where a law enforcement officer or their family lives. In other words, just be careful. You can never really control the level of security on social media and should take caution in posting any personal information. It is better to be safe than sorry. Police officers should protect their privacy as a matter of officer safety. Conclusion In sum, law enforcement officers should be careful with social media. Social media 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. It is also a problem because many police departments have not developed strong or completely understandable social media policies. 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.
Baltimore Loses Court Case Regarding Funding of Police Pensions
Baltimore Judge Rules Against City in Police Pension Case
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.
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.
Tips for Police Officers in Dealing with Criminal Defense (and other types of) Attorneys in Testimony
Tips for Police Officers in Dealing with Criminal Defense 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: 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. 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. 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. 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). 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.
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.
Police Officer Disciplinary Cases from Investigation to Arbitration
Representing police officers in arbitration cases
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.
Personal Civil Liability for Police Officers
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.