By John V. Berry, www.berrylegal.com
One of the most frequent issues that tends to come up in our law firm’s law enforcement officer practice area is the issue of how best to handle police department investigations against officers and supervisors. Police officers and supervisors, when they are first notified of a pending investigation, should immediately consider consulting an attorney or their local police union (FOP, etc.).
INITIAL CONSIDERATIONS AFTER NOTIFICATION
Depending on the police department involved (state or federal) (small or large department), there can be many different types of varying practices with respect to internal police investigations. Often times only the larger (more than 50 members typically) police departments have the resources to maintain their own internal affairs unit. For smaller departments, in the absense of an internal affairs unit, there can either be designated police officers and supervisors for the purpose of these investigations or a permanent investigator assigned departmentwide.
CONSIDERATIONS BEFORE GOING INTO THE INVESTIGATORY INTERVIEW
The first area of consideration should always be for the police officer or supervisor to consider what exactly is being investigated by the department before they go into the interview. Sometimes the case under investigation involves the person being interviewed and sometimes it involves others in the department where the person is merely called as a witness to the events in question. Usually, it is my experience that most of the time police officers and supervisors have at least some idea about why they have been called in for an investigatory interview.
In other words, an officer of police supervisor may have some idea of the matter under investigation from a recent event, such as a difficult traffic stop or arrest, or a particularly difficult interaction with a member of the public. Other times, someone within the department will give advance information to the person being investigated (either officially or unofficially). Then there are other times in which an officer or police supervisor will have little idea about why they have been called in for an interview.
One of the most common occurrences involves a citizen complaint following an arrest or the issuance of a traffic ticket. Many individuals will attempt to file a complaint against an officer in the hopes of helping their defense later on. The difficulty with police department investigations lies in the fact that regardless of the issue complained of, that they generally are required to conduct an investigation into every complaint, no matter how baseless. There is also no statute of limitation which cover these types of police investigations, so timeliness tends not to be a bar to a department having to conduct an investigation in most types of cases.
No matter the circumstances, it is important to take any Internal Affairs Unit or departmental interview seriously. If the investigation at issue involves a serious issue, such as an alleged or potential criminal activity, misuse of force, theft or dishonesty, it is especially important to speak to an attorney as quickly as possible to obtain representation and legal advice. This is especially the case if there is the potential for any criminal investigative issues. If so, it is important that the police officer or supervisor refrain from talking about the issues involved with co-workers to protect themselves.
THE INVESTIGATORY INTERVIEW
Typically, an investigatory or Internal Affairs interview is conducted with 2 or more investigators, a tape recorder and a Garrity/Kalkines statement for an officer or supervisor to sign. Usually, there is enough advance notice of the interview in order for the officer to obtain a union or legal representative, which the investigator should not generally have a problem with. If there are any issues with the attendance of a legal or union representative during an interview, Counsel can get involved and attempt to resolve these issues prior to the meeting.
Most labor, department, municipal and federal regulations provide officers with the ability to be accompanied by a labor or legal representative. When the investigatory interview begins, the parties at the interview usually identify themselves on audio tape (most common) or before the court reporter (much less common) and the police officer or supervisor is asked to review and sign a statement ordering them to answer all questions truthfully, under the penalty of termination. These are often referred to as an officer’s Kalkines or Garrity rights statements (named after two key cases involving public employee rights). They have the effect of requiring the officer to answer all of the questions involved truthfully, but also can protect an officer or supervisor’s rights should the matter involve a criminal question.
Problems at the beginning of the interview process can arise when a department requests that an officer provide a voluntary statement (i.e. not being ordered to provide a statement). Usually, in this type of situation, the officer or supervisor walks into the interview and the questions start right away before the officer is provided a statement of rights. This can be viewed as a voluntary interview and is generally to be avoided. In this type of situation, if anything is considered to be criminal in nature, the officer can be viewed as providing voluntary information. In general, voluntary statements provide little or no protection to a police officer or supervisor that is interviewed. United States v. Friedrick, 842 F.2d 382 (D.C. Cir. 1988). If an officer is deemed to have given a voluntary statement, then it might be used against them later in a criminal prosecution or administrative disciplinary matter.
Once the investigatory interview begins, most interviews usually (depending on the incident and details in the complaint) generally last anywhere between 30 minutes to a few hours. Representation during this stage provides some general protections. Many officers and supervisors are protected against general harassment during interviews through their collective bargaining agreements or agency regulations. An officer’s attorney or representative can usually protect against this sort of treatment in the case that it occurs.
It is also important to have a legal representative present during an interview because they can also help clarify questions asked of an officer or supervisor if they are unclear, in addition to providing moral support to the officer in what can be a difficult situation. An attorney can also provide legal guidance in serious matters under investigation in the interview process. Often times I find that it is very important to take breaks during an interview to properly advise a client on an area of questioning as sometimes the direction of an investigation can change midway through an investigatory interview.
FOLLOWING THE INTERVIEW & CLOSING THOUGHTS
When the investigatory interview with the department investigator concludes, most of the time an officer or supervisor is cautioned against speaking to other individuals or co-workers (besides their attorney or union representative) about the interview. Be very cautious about speaking about the case with anyone other than your counsel or union representative (only your counsel in criminal matters), because it is common for investigators to start secondary investigations based on violations of this order.
To put it briefly, it is always important to be extremely cautious when a police officer or supervisor is facing an investigative interview. As always, I recommend legal representation from the first notification of the interview process, either through your union or an attorney. Counsel can often provide on the spot protection from overly aggressive investigators, and moral support as you proceed through the process. Questions regarding strategy for investigatory interviews should be directed to an experienced attorney as individual circumstances require specific legal advice.