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IACP
 

Ethical Defensibility: Should an Officer’s “Willingness to Deceive” Result in Automatic Certification Revocation?

By Thomas Martinelli, Adjunct Professor, Wayne State University, Detroit Michigan, Independent Training Consultant, Institute for Intergovernmental Research, Tallahassee, Florida, and Michigan State University’s Intelligence Toolbox Program, East Lansing, Michigan, and Member, IACP Police Professional Standards, Ethics, and Image Committee




The concept of Ethical Defensibility provides all sworn personnel with the philosophical tools and analytical skills necessary to weigh value-based alternatives, resulting in the repetitive acts needed to protect, preserve, and defend the integrity of the police profession.


“Oh, what a tangled web we weave,
When first we practice to deceive!”
—Sir Walter Scott, Marmion

Lying, deception, and the omission of truth (when duty dictates), all fall under a “willingness to deceive” in police character policies. A character policy specifically addresses the ethical challenges demanded of all public servants regarding the mandatory need for and relationship between truth-telling, duty-bound honor, and justice. This is not about perjured written or spoken words; they clearly are illegal and unconstitutional. Rather it is about the philosophical tenets of the profession that are necessary to instill and reinforce the honor, pride, and higher standards that are the foundations of policing. Protecting the integrity and image of the profession involves educating officers at all levels of an agency to prioritize truth telling, without exception. It is a critical part of the job description.

The challenge today in policy compliance training (or core values training) is that many character policies are written in generalities, leaving them susceptible to arbitrary and subjective interpretations. More times than not, they are rarely defined, explained, or translated into real, everyday policing situations. The profession arms its street-level officers with tools for success, both weaponry and street survival tactics, but generally ignores the philosophical ethical dilemmas involving character that officers are confronted with in the performance of their duties. Such an oversight in training circles can be costly from a litigation standpoint, both from citizen lawsuits as well as internal litigation associated with running a department.


Policing in general and sworn testimony in specific will always be about an officer’s character and that is why core values training and vigilant supervisory reinforcement of character issues are critical to an agency’s future successes.



Core value-based training curriculums and scenarios provide the rank and file with a clearer understanding of the differing levels of distinction associated with truth telling in law enforcement and sends them a message that a breach of this policy, when severe enough, could cost them their career. It is incumbent upon the leaders of the profession to demand higher standards of character for all sworn members specifically regarding core values initiatives and policy compliance. Expecting high standards of character cannot be taken for granted or implied, rather, those standards must be defined, discussed, and supervised in order for the profession to thrive.

Policies such as Conduct Unbecoming, Neglect of Duty, Insubordination, and a Willingness to Deceive, when litigated in labor law hearings and courts of law, can be capricious, arbitrary, and difficult to grasp. Terminated public servants, through their counsel, will argue there are more appropriate, lesser disciplinary alternatives than termination that would be adequate regarding such minor character policy violations. Even civilian jurors may not be convinced termination is the appropriate sanction for police officer deceptions.

Firing a veteran police officer for failing to tell the truth in any employment-related scenario can be financially crippling in civil courts, create a challenging precedent in disciplinary hearings, and damage a department’s morale. Additionally, suspended officers who feel unfairly disciplined for what they perceived were appropriate acts (the gray areas of ethical policing) may say, “Next time I will choose not to get involved and avoid such situations. It is not worth it.”

Yet, clearly the criteria for termination is subject to a higher standard when depriving a public servant of his or her property right to work. Many years of training and experience are invested in law enforcement employees, and termination over character issues such as deception or omissions is costly for all parties involved. Taxpayer monies and agency manpower hours are often wasted in civil court litigation defending a chief’s decision to rightfully terminate an unethical “bad apple” in an effort to preserve the integrity, image, and morale of his or her department. Avoiding such liabilities can only prove fruitful for any agency in the long run. Balancing administrative policy compliance measures of “doing the right thing” with subjective, subordinate perceptions for the job is stressful, demanding, and many times, a losing battle.

The key is to vigilantly self-police one’s agency in the specific core values critical for professional success. It is imperative to teach and supervise the rank and file in the differing levels of acceptable and unacceptable police deceptions defined by case law, arbitration awards, and the agency’s policy makers and put them in written form with specificity and clarity. In doing so, leaders provide employees with a roadmap for executing the value-based alternatives available to them when confronted with philosophical ethical dilemmas, both on and off the job. This is the foundational concept of Ethical Defensibility: forcing employees to consider the philosophical side of policing (reduced internal investigations, citizen complaints, and lawsuits), coupled with the larger picture of protecting the agency’s (and profession’s) image.

To presume all officers have mastered the subtleties, nuances, and constitutionality of police ethical decision making falls under the “supervisory logic of good faith” paradigm, that is, “they should have known better, they are professionals.”1 This article is intended to be a thought-provoking continuation of previous Police Chief articles, case law, and policies that have addressed police deceptions, lies, and omissions; the disciplinary process; and the future trends involving character issues in policing. The emphasis here is to better educate the rank and file in order to mentally prepare them for the difficult ethical dilemmas officers face on a daily basis and give them the tools to make the best decisions possible and that can be used as a defense whenever challenged.


The Brady Progeny
The Latest of the Brady Progeny
  • Smith v. Cain, 565 U.S. ______ (2012): Under the Brady progeny formula, “the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material, to the defendant’s guilt or punishment” (emphasis added), citing Brady v. Maryland, 373 U.S. 83, 87 (1963); See also Giglio v. U.S., 405 U.S. 150 (1972); U.S. v. Agurs, 427 U.S. 97 (1976).
  • Evidence is “material” within the meaning of Brady, when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” U.S. v. Bagley, 473 U.S. 667, 682 (1985).
  • The prosecutor has an affirmative duty to discover any favorable exculpatory, material evidence and give it to the defense. Kyles v. Whitley, 514 U.S. 419 (1995).
  • “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine confidence in the outcome of the trial’” (emphasis added). Smith, 565 U.S. ______ (2012).
In Smith, the undisclosed detective’s statements that directly contradicted the sole testimony tying the defendant to the crime scene and his involvement violated the defendant’s Fifth and Fourteenth Amendments’ guaranteed right to a fair and equitable trial. Failing to tender this critical exculpatory evidence demanded a new trial for the defendant.
See also: LaChance v. Erickson, 522 U.S. 262 (1998).

When officers are found to have intentionally engaged in deceptive misconduct, whether on the streets, in administrative investigations, in civil proceedings during depositions, in internal affairs investigations, or in labor law (disciplinary) hearings, they not only taint their own ability to continue to serve as law enforcers, but tarnish their department’s reputation on a wider scale. Once it has been internally adjudicated that an officer intentionally was deceptive, or worse, demonstrates a pattern of deception, his or her future effectiveness as a litigation witness is jeopardized. Failing to train, as demonstrated by the landmark case Brady v. Maryland and its contemporary progeny, is organizational negligence that will cost a department both financially and in regard to the good will of the constituency served.

When one references the Brady progeny in law enforcement training curriculums, the focus of that specific training block deals with police officer truthfulness and candor in relation to the job and an employee’s effectiveness as a credible litigation witness. The Brady v. Maryland ruling will celebrate its 40th anniversary this year, and its use and application are still continually cited today. It is repeatedly referenced in U.S. Supreme Court case law addressing officer character, credibility, evidence handling, and transparency issues within the profession. In philosophical arguments dealing with character, integrity, and professionalism of public servants, courts focus on the overt duty of law enforcers to always be truthful as demanded by the Due Process Clause of the Fifth and Fourteenth Amendments.2 Untruthful law enforcers taint the entire criminal justice system and the public’s perceptions of the profession.

The philosophical, legal argument constitutionally posited by judges is that the government and its agents cannot deprive a citizen of life, liberty, or property without a fair and equitable opportunity to be heard. In theory, the efforts to pursue justice by all government agents must be honest, transparent, forthright, and as proactive as possible in the presentation of the prosecution’s case.

Any evidence the defense counsel (or appellate lawyers) can produce post trial proving otherwise may result in constitutional rights violation rulings; retrials; media scorn; public backlash; and, most unforgiving, dismissal of all criminal charges. Instead of protecting society, by cutting corners, embellishing, withholding exculpatory evidence, or not telling the whole truth, unethical officers (or prosecutors) actually might free society’s predators. The Brady progeny are the result of decades of U.S. Supreme Court efforts to raise the standards of accountability for those in law enforcement in order to uphold the integrity of the system.

The onus of truth seeking will always be on the government and its agents in order for the system to be fair and equitable and to zealously protect the integrity of the process. Ethical Defensibility training is about protecting the integrity of the criminal justice process and recognizing the need to zealously do so in every facet of law enforcement. Any appearance of improprieties regarding officer untruthfulness (or prosecutorial misconduct) results in the negative perceptions and negative ramifications regarding the agency’s image and reputation and the overall criminal justice system.


Non-Compliant Deception Is a Violation of Public Policy

The Police Chief has, over the years, repeatedly published legal and philosophical articles that have addressed the need for self-policing in the virtues of honesty, integrity, and professionalism, using the Brady progeny as a foundation.3 It would behoove all academy trainers and middle managers to review those articles and make them a part of their training curriculums. They provide a better understanding of the evolution of case law regarding Brady and the U.S. Supreme Court’s trend for a more focused demand for public servant accountability from a due process perspective. The justices, over the years, have repeatedly placed the legal and ethical burden on government, to police itself regarding character issues and integrity, and this trend will continue. Just as the Department of Justice consent decrees have been used to bring police agencies in compliance with best practice standards, the judiciary branch has made overt attempts to do so from the bench.

There is no need to discuss these past articles due to space constraints, but a Police Chief column written by Professor Elliot Spector in April 2008 bears summarizing here for clarity, emphasis, and foundation.

In 2008, a state court of appeals had ruled that a dishonest officer is “unfit for duty” using the Brady progeny as a public policy basis. They concluded that as a matter of public policy, the officer’s intentionally deceptive demeanor (thus a breach of his office) precluded him from testifying in the future as a government witness. Brady v. Maryland and its progeny dictate that, to be fair and transparent, the prosecutor would have to repeatedly tender to the defense counsel this officer’s history of deception in every case he was a proposed witness. This officer’s character flaws would undoubtedly be addressed in cross-examination and closing arguments, and cases would be, or could be, lost as a result of his past, dishonest nature. The court’s message was “dishonest cops are compromised witnesses.”

The appellate court wrote that the officer’s “proven record of dishonesty prevents him from useful service as a law enforcement officer. To require his reinstatement to a position of great public trust in which he cannot possibly serve violates public policy.”4 Granted not all evidence in an officer’s personnel file of past “deceptions” may be allowed into the record of a criminal case, but if it is found relevant by the presiding criminal court judge via a defense motion the due process clause allows defendant’s counsel to play the “once a liar, always a liar” card. Policing in general and sworn testimony in specific will always be about an officer’s character and that is why core values training and vigilant supervisory reinforcement of character issues are critical to an agency’s future successes.

Professor Spector strongly advocates the profession adopt the appellate court’s ruling as a step in the right direction and reinforced the need for the top administrators to draw clear lines between “sanctioned lying and prohibited lying.” The trend in policing is to better educate officers in the nuances of acceptable deceptive tactics and the agency’s specific dos and don’ts in a proactive attempt to circumvent disciplinary measures for officer untruthfulness or deception. Clearly sanctioned deceptions in policing are necessary tools to fight crime under very limited circumstances. Yet, a failure to specifically define those circumstances for the rank and file is a disservice to them, as well as the citizenry they serve and can be used against an agency in a civil court of law.

Additionally, he suggested that academy training circles teach all police officers, from day one, that they can lose their jobs, pensions, and property right to work as a result of job-related, intentional deceptiveness. By holding sworn employees to a higher character standard of behavior and defining what those standards are, will not the officer’s stakeholders (him- or herself and his or her family and dependents), the public, the courts, the police profession, and the citizenry be better off?

“[I]ssues of credibility regarding police will be greatly reduced, leading to more successful prosecutions, a reduced number of constitutional violations, and fewer liability cases and losses,” and it might diminish or “eliminate the ‘code of silence’ completely.”5 As a matter of public policy, terminating deceptive officers can only enhance the profession in the long run. Brady gave police chiefs the authority and wherewithal to adopt and enforce such proactive measures regarding officer character issues and the need to maintain a high level of professional integrity in this regard.

Interestingly, the challenge here is that this appellate case was overturned by that state’s supreme court in 2009, for not having gone far enough. In their reversal, the message to police policymakers and trainers was very succinct: without explicitly and definitively prohibiting employees from engaging in the act of intentional deceptions (overt and omissions), termination is too extreme, unconstitutional, and not the appropriate remedy.6



For chiefs, middle managers, or disciplinary board members, the administrative duties associated with disciplining officers in deceptive policy violations are challenging, to say the least. Terminating a veteran officer for character indiscretions, major or minor, is a very difficult chore to embrace but a hurdle that must be confronted.



The state supreme court, in essence, ruled that it was not “fair” (and thus a violation of the Fifth and Fourteenth Amendments regarding due process) to terminate an officer, as a matter of public policy, for his past indiscretions of misconduct and untruthfulness, solely based on the Brady progeny. The court overturned the lower court ruling by insisting that it did not go far enough in demanding there be specific criteria, spelled out either in agency policies, procedures, case law, and/or arbitration reports. In order to justify terminating an officer, the internal affairs mechanisms in policing had to be much more forthright in defining such character policies, non-compliant deceptions, and the disciplinary potentials for such policy non-compliance. Termination was not an appropriate sanction under these facts due to a lack of “notice,” in failing to comprehensively define job-related intentional deceptions.

In order to successfully terminate deceptive police officers as being “contrary to public policy,” the state supreme court ruled that there must exist a public policy that is “explicit, well defined, and dominant” specifically elaborating and focusing on the nexus between police honesty and job retention.7 Attempting an end-around sweep by suggesting the prosecutorial duties espoused in the Brady progeny are specific enough criteria for terminating deceptive police officers fails as a policy standard and is bad law, according to these justices. Because the Brady progeny addresses the due process duties specifically placed on prosecutorial acts or omissions (and indirectly, then, on law enforcers), officer termination in this case was unconstitutional.

The cases requiring disclosure of an officer’s history of untruthfulness have not commented on whether such an officer could continue to be employed. As a result, there is no explicit, (or even implicit) statement regarding the continued employment of an officer found to be untruthful. Further, even if the Brady case law constituted a public policy against reinstatement of an officer found to be dishonest, it provides no guidance regarding what level of dishonesty would prohibit reinstatement.8 (emphasis added)


Here, the justices do not suggest agencies cannot terminate sworn personnel for major character flaws regarding dishonesty, deceptions, and omissions, that is, major unethical acts. Their strongly worded decision emphasizes that if an agency wishes to terminate an officer for such egregious character transgressions, as a matter of public policy, it must have a written policy specifically saying so. It must be in writing, and officers must be trained in, supervised in, and disciplined in the policy. They specifically stressed that such a policy must be “explicit,” “well defined,” and “dominant.” Then, when a police chief moves to terminate a deceptive officer, or successfully does so and the ex-officer sues for reinstatement, the agency can defend such decisions pursuant to the tenets of the Fifth and Fourteenth Amendments, arguing that the officer “knew lying, deception, and/or omissions” related to the job could end his or her law enforcement career.

Whether this state case is ever challenged is irrelevant to this discussion. Though this ruling is solely limited to that state’s jurisdiction, the message is clear. The law enforcement profession has to recognize police deceptive practices and character issues will continue to be major administrative challenges, and it would behoove policy makers to better educate themselves and their subordinates in the recent court rulings referenced to continue to engage in best practices.


Subcultural Trends That Can Be Costly
Read the first three installments of this series on Ethical Defensibility in the November 2013, December 2013, and January 2014 issues of Police Chief online.


It would be remiss not to briefly acknowledge some subcultural pushback trending recently in regard to disciplinary issues and officer untruthfulness in relation to the Brady progeny.

For chiefs, middle managers, or disciplinary board members, the administrative duties associated with disciplining officers in deceptive policy violations are challenging, to say the least. Terminating a veteran officer for character indiscretions, major or minor, is a very difficult chore to embrace but a hurdle that must be confronted. It is not unusual to find a scenario wherein a first-line supervisor writes up a subordinate for a policy non-compliant act and is forced to add a second charge for lying if the officer denied engaging in such misconduct when initially confronted.

As a result of the trending Brady-Giglio issues discussed previously, there has been a tendency to dismiss the lying charge as unfounded or reduce it to a generic Neglect of Duty charge by higher ups, in order to protect the officer’s career. Or an agency’s disciplinarians may engage in “euphemisms” in the charging sheet or sentencing guidelines regarding the officer’s deceptions in order to protect him and the agency against Brady challenges down the road.9 This creates internal tensions between first-line supervisors who may be trying to “do the right thing” and their superiors who may be more interested in protecting a veteran officer or the agency and the agency’s image or both.

The legal trend now is to have a written policy strictly forbidding job-related officer deceptions, lying, and omissions. The policy should define the disciplinary sanctions for lying in such a fashion that replicates indiscriminate sentencing guidelines, with minimums and maximums (the maximum, of course, being termination). Then blocks of academy training and annual in-service training must explicitly detail examples of unacceptable, punishable deceptive practices versus legal, but limited police deceptions. Such acceptable deceptive practices must be designated as “unit specific,” limited in nature, and necessary to achieve crime enforcement goals. The rank and file, disciplinary unit, Internal Affairs investigators, and policy makers must all understand the nuances between the two.10 What should be considered, or in the very least cannot be ignored, in any character policy drafting and training curricula is for all sworn personnel to know the following:

  1. They can be charged, departmentally, for lying, omissions, or deceptive acts defined as a “willingness to deceive” (denials or cover-ups), in addition to the original, underlying allegations of misconduct.
  2. Courts are trending toward stricter public policy demands for honesty and integrity in policing, through self-policing measures.
  3. Personnel files can be used to impeach an officer’s credibility in labor law hearings and in criminal and civil courts.
  4. There are efforts around the United States wherein databases are created for criminal defense attorneys that are compiled from non-criminal justice realms such as divorce proceedings and child custody battles demonstrating officers’ character flaws and deceptions, with a potential to be used in the discovery phase of criminal and civil cases.
  5. There is no justification or defense for lying or failing to tell the whole truth during all internal investigations at every level, and termination is the only appropriate sanction for such policy non-compliant acts in this limited scope.

Automatic certification revocation for deceptive acts of sworn personnel may be harsh and overreaching. But character flaws involving deceptions in policing can never be tolerated and notice to sworn personnel that unacceptable, deceptive police acts may be grounds for termination is the first step in changing a subculture’s perceptions in this regard.


Recommendations

Proactive leadership entails knowing and recognizing the pitfalls and challenges of any profession and taking whatever measures necessary to minimize or eliminate the potential for liability. Policing is truly one of the last noble professions, and it takes very unique individual character traits to be a successful law enforcer.

Ethical Defensibility training empowers sworn personnel with the analytic tools necessary to professionally address ethical dilemmas associated with public service. Police ethics requires analytic contemplation. Contemplation presupposes that a uniform knowledge, experience, and common sense exist. Instilling in sworn personnel these philosophical tools for success creates a culture of integrity within an agency and provides a solid defense to any allegations of character misconduct or unethical behavior. ♦


Notes:
1John Crank and Michael Caldero, Police Ethics: The Corruption of Noble Cause (Cincinnati, Ohio: Anderson Publishing, 2010).
2U.S. Const. amend. V and XIV.
3Jeff Noble, “Police Officer Truthfulness and the Brady Decision,” The Police Chief 70, no. 10 (October 2003), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=118&issue_id=102003; Lisa A. Judge, “Disclosing Officer Untruthfulness to the Defense: Is a Liars Squad Coming to Your Town?” Chief’s Counsel, The Police Chief 72, no. 11 (November 2005), http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=744&issue_id=112005; Elliot Spector, “Should Police Officers Who Lie Be Terminated as a Matter of Public Policy?” Chief’s Counsel, The Police Chief 75, no. 4 (April 2008): 10–12, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=1458&issue_id=42008#3 (all accessed January 7, 2014).
4Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 165 P.3d 1266, at 1271 (2007).
5Spector, “Should Police Officers Who Lie Be Terminated as a Matter of Public Policy?”
6Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 219 P.3d 675 (2009).
7Id.
8Id. at 679.
9Noble, “Police Officer Truthfulness.”
10The International Association of Chiefs of Police has model policies available to all agencies that can assist in the drafting of policies that specifically address officer deceptions. Standards of Conduct, Early Warning Systems, Interrogations and Confessions, and Criminal Investigations are several “Unit-Specific” policies that would prove valuable in defining sanctioned and prohibited officer deceptive practices. Model policies can be purchased by visiting www.theiacp.org/policycenter.

Thomas J. Martinelli, JD, MS, is an adjunct professor in Detroit, Michigan. He is a practicing attorney and an independent training consultant for both the Institute for Intergovernmental Research, Tallahassee, Florida, and Michigan State University’s Intelligence Toolbox Program, East Lansing, Michigan. He trains in police ethics and liability and intelligence led policing practices, specifically addressing constitutional policing issues and privacy protections. He is a member of the IACP’s Police Professional Standards, Ethics, and Image Committee.


Please cite as:

Thomas Martinelli, “Should an Officer’s “Willingness to Deceive” Result in Automatic Certification Revocation?” Ethical Defensibility Part 4, The Police Chief 81 (February 2014): 24–29.

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From The Police Chief, vol. LXXXI, no. 2, February 2014. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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