Police Misconduct Investigations

In this episode, I will talk about how law enforcement agencies typically handle complaints of officer/employee misconduct.

Transcript

SPEAKER_00 0:00

Should the police investigate themselves for misconduct or criminal activity? What kind of discipline do police officers receive for misconduct? To whom do you report police misconduct? Hello and welcome to Inside the Criminal Process, a podcast where I'll discuss and explain the criminal justice system in America using real-life examples and true crime cases. My name is Scott, and I'm a 29-year veteran law enforcement officer and an attorney. I've had many roles throughout my career and lots of stories and information to share. So let's get started with today's podcast. Today I'm going to discuss and explain typical law enforcement agencies' way of handling reports of misconduct by employees, officers, dispatchers, technicians, administrative employees, etc. Just like with civilian employers, a customer or citizen can call the police department or sheriff's department and complain about the conduct of an officer or any any of the agency's employees. The agencies I worked for, and let me make it make it clear here, policies and procedures are going to be different. And I know I said it on a couple podcasts ago that usually when somebody requests a supervisor, one has to respond, but that's not the case with all police departments. The ones I worked at, we did. If somebody asked for a supervisor, we were we were required to notify the supervisor. But there are there are different policies and procedures within all departments. So I'm going to preface this with I'm going to speak to the procedures and policies that I'm aware of from the departments and agencies that I worked for. At those agencies, if the complaint was minor misconduct, uh shift supervisor, usually a sergeant or lieutenant, could address the behavior, call the officer in, have a chat with him, and um document it. There's a period of time when one of the agencies I worked for, where every citizen complaint had to be referred to the Internal Affairs Bureau. Uh that got unmanageable. So they they switched it back to complaints could go to shift supervisors like sergeants and lieutenants, and they could determine whether or not if it was if it was serious enough to send to the Internal Affairs Bureau, which one's involved, getting the detective sergeants involved. And some agencies call internal affairs a professional standards unit. So the the sergeants typically were the ones that decided whether they could handle it, whether their supervisor needed to handle it, or whether it could go to internal affairs or the professional standards bureau. I'm going to call it the Internal Affairs Bureau because that's the one I'm most familiar with. Sometimes there's two separate investigations. So say a department gets an allegation of serious misconduct, they will have two separate investigations, the administrative internal affairs investigation and a criminal investigation. The difference in those is the burden and the possible sanctions for being found guilty. Like a criminal case, we talked about that in the last episode. For administrative cases, at least in the agencies I worked for, it's preponderance of the evidence. So in order for an agency to take action against an employee for misconduct, there has to exist enough evidence to reach the preponderance of the evidence burden that the employee did whatever was alleged. An internal affairs investigation can also disclose other misconduct related or unrelated to what had been alleged. So they may find that the officer didn't do what they were accused of doing, but they didn't follow a procedure or they did something they weren't supposed to do per policy and still take corrective or disciplinary action against them. Also, agencies have different policies and procedures for what is available for an employee if the allegations against him or her are substantiated. So some agencies allow appeals, others allow no recourse. Like you have nobody to to appeal to if you're found you're found guilty of the of the misconduct and they they instill the discipline, there's no there's no recourse after that's happened. In some agencies. So I can only speak to the the policy where I worked, at the policy the at the departments I worked at, the policy manual for each department was extensive, covering responsibilities, procedures, chain of command, prohibited conduct, et cetera. One of the departments actually had a no sleeping on duty clause in the policy manual. Uh the other department kind of felt that a no sleeping clause was too obvious, that employees were intelligent enough to know the basics of appropriate workplace conduct. So it wasn't written in there, but if you were caught sleeping on duty, obviously you were probably going to get written up. I will point out that the department with the clause in its policy manual actually had a union and the other department did not. That's a pretty important distinction when it comes to internal affairs because the union will support and defend its employees and agencies without agencies without unions, uh, you're on your own for the most part. You can get an attorney if you if you pay into a uh in the state that I work in, there's a couple organizations that you can pay in and become a member of, and they will they will represent you if you're accused of of on-duty conduct. So the process, the uh department will receive a complaint through the phone, email, in-person, etc. The complaints initially usually given to a supervisor who will review and and decide how the complaint needs to be addressed. Allegations of serious misconduct, like I said, will be forwarded to the Internal Affairs Bureau. Allegations of minor misconduct can usually be dealt with by the immediate supervisor if the policy allows it. At the agencies I worked for, the supervisors had some options. If the allegations, for example, um, if the complaint was that the officer cursed when dealing with somebody, supervisor could have a conversation and either give a verbal reprimand, a written reprimand, or a corrective, um, usually wouldn't rise to a disciplinary action. Depending on how much discretion supervisors were given, the history of misconduct by the officer, the seniority of the officer. Uh, latitude was typically given to newer and younger officers initially, for example. Um, they were a little more latitude was was granted when they were when they made mistakes, unless it was something serious. So if the Internal Affairs Bureau was going to handle the complaint, a detective sergeant from that unit will be assigned to conduct an investigation. So let's say there's an allegation of excessive force during an arrest. The detective would typically interview the complainant, the person who made the complaint. The first um, that would be the first step to make sure he or she has all the information. Uh the detective would then interview witnesses, and he or she would collect any evidence, video, oddity, audio, officer's body cam, footage, any witnesses that happen to be recording the incident, get all that stuff together, and then talk to the uh accused officer. If the allegations could result in criminal charges, the detective had to advise the officer of his or her rights under Garrity. So Garrity rights for an officer, they that comes from the name of the case. Uh it's called the Garretti Garrity versus New Jersey. It was a 1967 case. And um one of the agencies I worked in, everybody was given Garretti as soon as they came into the Internal Affairs Bureau if they were a subject of investigation. Basically, this case stemmed from there were some New Jersey officers that were accused of fixing tickets. The Attorney General's office conducted a criminal investigation into the fixing of the tickets. And the officers were interviewed by the Attorney General investigators, advised they had a right to remain silent, but if they did, they risked getting terminated and that anything they said could be used against them in a criminal case. So the officers cooperated and their statements that were then used against them in a criminal case. That went all the way up to the Supreme Court, and the Supreme Court said that violates the officers' Fifth Amendment rights. And public employees don't, the the holding was basically that public employees don't have to forfeit their constitutional rights as a condition of employment. So the Garretti advisement states that you don't have the right to remain silent, but anything you say during an internal administrative investigation can't be used you in a criminal trial. There was a case that that I was aware of, I wasn't involved in it, that where a female employee had been um was at the prison, and the the there was a captain walking through the prison, and he thought he saw some movement in her office that she had those those windows that were kind of frosted. So he went up and tried to get in, it was locked, he knocked on the door, there was no answer. He went down, he got the keys, he went up there. He missed her. He was going up the stairs and she was coming down the elevator or something, so he missed her leaving and um but notified the the investigator. The investigator came back, came to the prison. The female employee wasn't there, so he called her and she came back to the she came back to the prison and she reported that that she had been raped by the inmate in her office. I think she thought that the captain had seen something that that he hadn't. So she had gone home and showered, and she said she threw her clothes in the wash. Uh they they interviewed the they got her a victim advocate to talk to. They interviewed the inmate, and he lied initially and said that uh that they weren't having sex, and then he found out that she was accusing him of of sexually assaulting her and and said, No, this isn't true. We've been having a consensual relationship for about six months. And there were things located in the inmate's cell that corroborated his story. So during the administrative investigation, uh the female admitted after the Gardy warning that she had been having consensual sex with the inmate, but the admission could not be used against her in a criminal case. So the DA actually didn't file those charges. Sometimes a full investigation is unnecessary. Uh for example, I was once accused of stealing jewelry from a female I arrested. She claimed that when I placed her in the holding cell at the station, that I had collected all of her jewelry, and all that jewelry was not in her property when she was released from the jail. So a detective was assigned because the allegation included a criminal accusation, theft, obviously. The detective interviewed the woman at length, made sure she was absolutely positive. She had the jewelry when she was arrested, and that she claimed I took it from her while she was in the holding cell. And she said, she said, absolutely he took it from me. And we we typically did when we took an arrestee to the to the station. We'd take all of their jewelry, fill out all the paperwork, and then they would stay in the holding cell until the sheriff's van could come and pick them up and take them downtown to the jail. So there's cameras all over at the police station, even back in the day. And at the holding cell, the hallways in the station, there's cameras everywhere. So the detective watched um the video from the time I pulled into the parking lot till the time I left the station, and at no time did I take any jewelry from this woman. And so, like I said, we would take jewelry from them, but it would always go in their property bag, and she didn't even have any jewelry for me to put in her in her property bag. And luckily the camera clearly showed that I didn't take any jewelry from this woman. He basically called me and asked me if I stole anything, and obviously, my my typical response is I'm not going to compromise my integrity, my freedom, a decent job for any amount of money. Uh the detective explained they needed to ask me, but there was no evidence of wrongdoing on my part. So they the the agencies I worked at didn't typically charge people for false reporting. Like in this case, she wasn't charged with false reporting because they thought it would it would chill the the citizens from actually making complaints. Because they, you know, if if they thought that the the we weren't that the d misconduct wasn't gonna be caught or the misconduct wouldn't be hadn't been witnessed so that and there was no evidence to show it, they worried that citizens would think that we were gonna charge every one of them for false reporting. That wasn't the case, but you know, it kind of goes with the job. You're gonna be accused of of stuff, and uh you just have to, as long as you're not doing anything wrong, it's it's all gonna play out in the end, right? There's like I said in the last episode, if there's no evidence of any wrongdoing, I have nothing to worry about. So one of the issues with internal investigations and procedures in general is that there's some unavoidable subjectivity in the process. Sometimes that can result from vague wording in a policy manual. Um, other times it's due to different attitudes on the proper way to handle calls, things of that nature. One department I worked at tried to objectify the process as much as possible and adopted the system that was kind of like a flowchart. Seemed like a good idea. It would say, if the officer's done this, then you do this. If they've done this, you you do this. If you do this, if they've done this, you do this. So it it was a it was sold to the department and it seemed very good on paper, but in reality, it didn't work. We had three officers involved in a it was a a drunk naked male in the middle of the street, and as they were dealing with him, and he he started fighting them, a drunk driver came through and s actu actually hit the two officers as they pushed the man out of the way so he didn't get hit, the man they were dealing with, and then another officer went and and pulled over the the drunk driver. So in the end, after the entire because the the person that the initial person, the naked man complained, the drunk driver complained, and they did an investigation, and it it ended up in some ridiculous. I think the two officers were were given some time off because of they they they had violated some small policy when they no they hadn't even violated a policy, it was a it was a self-initiated activity that they saw the drunk guy and they they started that. So they got points against him for that, and they got they got points for the use of force, and it it just punished officers for stuff that they couldn't control. So so when all was said and done, the two officers dealing with the the naked guy got days off, but they also got life saving, life-saving medals and certificates and the chief's recognition for uh for doing a great job. So that's how this wonderful objective process ended up working in the in the long run. I want to explain what a Brady officer or a giglio officer is. So those are officers that are deemed to have departed from the truth or lied during an investigation. They identify them as Brady or Giglio officers. Those are based on court cases. Um that basically govern the prosecution's duty to disclose all evidence to the defense. So it's Brady versus Maryland and Giglio v. the United States. Brady material is any exculpatory and impeachment evidence that's favorable to the defendant, has to be given by the prosecution to the defense. Giglio material is evidence that could affect the credibility of a key witness. So they've previously been caught lying during an investigation or have been disciplined for previous misconduct, something of that nature. So requirement, because of the requirement under Brady that exculpatory evidence that doesn't pertain to credibility must be disclosed. All giglio material is Brady material, but not all Brady Brady material is giglio material. So in reality, if someone is deemed a Brady or Giglio officer, he or she can't reasonably stay employed as a law enforcement officer. Testifying in court and performing a job with integrity are required of peace officers. So if you have an officer that that can be impeached with prior bad acts or prior bad conduct, uh that makes the district attorney's job really hard. So answers to the questions at the start, should the police investigate themselves for misconduct or criminal activity? So if an officer is accused of criminal activity, um the agency with jurisdiction over where the officer allegedly committed the crime will investigate. If it's within the jurisdiction of the agency the officer works for, sometimes that agency will have another agency complete the investigation to avoid the appearance of improperty. It's kind of a, you know, if if you investigate it and you don't charge them, um, it looks bad. So it's it's kind of nice sometimes to have another agency to come in and to do the investigation. And as far as investigating themselves administratively, yeah, I mean internal affairs is is the agencies that I worked for, professional standards and internal affairs, the investigators were were objective, you know, they were usually at a supervisor level or above. And um, so they, you know, they didn't have relationships with most of the people that they were they were dealing with. Obviously, if there was a conflict of interest, uh, somebody that everybody knew, they would get an outside agency to come in and do the do the criminal investigation, or they'd find somebody else. Uh you can do an administrative investigation for another agency, but that's not that's not really too common, or it wasn't when I was when I was an officer. What kind of discipline do police officers receive for misconduct? Depends on how serious the offense is. Uh punishment can include verbal reprimand, written reprimand, corrective action, performance improvement plans, disciplinary action, suspension, demotion, fines, termination. Some agencies have, one of the agencies I had worked worked for had a disparate treatment clause that means people who commit similar acts of misconduct are punished, that that required that they be punished similarly. So you couldn't have one person in one district that did something and got a day off, and another person that did it in a different district did the same type of um prohibited behavior, and that person just got a written reprimand. It didn't work. So they'd review that and make sure that that they were staying consistent with the punishment. To whom do you report police misconduct? Most agencies have a specific person or unit that handles the complaints. You can always call the police department and ask them for the internal affairs number or the number of the supervisor to report misconduct. Incidentally, that line, that that number or that bureau is also the bureau that takes compliments for officers. So you can call and give give an officer an accolade, and that's that doesn't happen near as much. But the the one agency I worked for, they gave us business cards, and you had to give it to anybody who asked for it. Number of internal fares was on the card, and it reminded people they could submit a compliment for employees as well. It doesn't happen a whole lot, though. I did get a nice letter written by an elderly lady that had stalled in traffic one day during rush hour. It was it was weather was horrible, it was freezing. I had her sit in my car. We called a tow truck and followed it to the repair shop. Uh, she filled out the paperwork, and then I took her home and she sent a letter to the police department and wrote a narrative that sounded as if I had saved her life. Uh it was really sweet. They read the letter and roll call. Um, but of course, after the after the sergeant read it, he said, signed by Scott's mom, which cracked everybody up. So I appreciated the letter and the fact that she appreciated me. Again, it was a learning experience because I hadn't considered that people appreciate the small things that cops do for them. You can get jaded pretty easily after working as a cop and dealing every day with people who hate you for no other reason than that you have a badge and some authority. Thanks for listening. I want to give a special shout out to Christy, Rachel, and Renee for listening. Next week I'll talk about crime scene processing. Until then, take care.