By Elliot Spector, The Spector Criminal Justice Training Network, Inc., Hartford, Connecticut
received a call from an 18-year veteran law enforcement professional who informed me that he had been suspended with pay and was told he was being subjected to an internal affairs investigation and potentially a criminal investigation. The incident in question involved an alleged illegal search that resulted in the prosecutor throwing out some drug arrests. The officer understood why his actions may have been improper but did not understand why he was being suspended or what the possible criminal implications could be. After much discussion, he and I concluded that the administration may have been reacting to pressure from the prosecutor’s office.
The following day I attended an all-day seminar on police suicides. The main speaker addressed a number of factors that lead to police suicides. The wife of a police officer, who had been dedicated to his job, spoke about the reasons why her husband committed suicide. Among them was his perception of being treated unfairly and betrayed by his department. The words of the speakers, “treated unfairly” and “betrayed by the department,” were the same words used by the officer I spoke to the previous day. This officer mentioned to me the enormous stress he was feeling, which was again the same type of stress the seminar speakers said leads to depression, negatively affects the performance of officers, and sometimes results in suicide. I immediately called the officer, realizing that my role in providing positive emotional support for the officer had to take precedent over the legal advice.
All too often, police administrators take disparate action against officers based on outside influences. The same type of misconduct can be treated in a far different manner depending on media coverage, perceived public opinion, political influence, pressure from community leaders, or other factors that should be unrelated to the manner in which the issue is investigated or ultimately dispositive of the imposition of discipline. Police administrators have told me that this view is unrealistic because they have to nurture outside relationships and public perception—and political considerations factor into how much they receive in the next fiscal budget. On the other hand, most officers agree that discipline should be evenhanded, and officers understand that discipline should be accepted when warranted. It is also undisputed that some of the most important attributes of a good leader include fairness, objectivity, loyalty, and trust. When police administrators allow outside influences to factor into how they treat officers during the disciplinary process and what their ultimate disciplinary decisions are, they undermine confidence in the police administration, hurt morale, and negatively affect the performance of their officers.
This article provides some examples of legal precedent to help administrators effectively deal with these outside influences when encountering difficult situations and act in a fair and objective manner while maintaining the loyalty and trust of their officers and the community.
Evaluating the Misconduct
The evaluation of misconduct is an ongoing process starting from the time an administrator learns of the misconduct through the determination of ultimate discipline. Administrators should attempt to diminish the effect of outside influences by not looking at the misconduct through the eyes of the media, politicians, or community bloggers but instead through the eyes of the officer or officers who allegedly committed the act of misconduct. The law is clearly established that an officer’s conduct must be viewed from the perspective of the officer. As police recruits, all administrators learned from Terry1 and its progeny that an officer’s actions are based on the training and experience of a professional officer whose perspective may differ from that of a layperson.
Administrators should ask whether the officers intentionally committed the act of misconduct or whether they made an objectively reasonable mistake. The U.S. Supreme Court stated the obvious in Saucier v. Katz,2 when it reminded us that police officers are humans, and humans make mistakes. Officers may very well have violated citizens’ civil rights based on their erroneous perceptions of the factual situation or their mistaken applications of the law. The question is not whether the officers were right or wrong but whether the mistakes were objectively reasonable under the circumstances.
Over the past 27 years, courts have applied the good-faith exception to the exclusionary rule when officers’ violations of law are not flagrant.3 If it is determined that the officer may have made such an objectively reasonable mistake, perhaps counseling or training may be reasonable alternatives to discipline. More recently, the U.S. Supreme Court has rejected application of the exclusionary rule unless the police exhibit “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” as stated in Herring.4 The court again rejected application of the exclusionary rule, stating “about all that exclusion would deter in this case is conscientious police work.”5 Perhaps administrators should consider the deference afforded police by the U.S. Supreme Court when some outside source is pushing for an officer’s termination.
Should the Officer Be Disciplined?
There is no argument that an officer should be disciplined when the investigation proves a violation of the department’s code of conduct. The question this article addresses is whether outside influences should determine or even factor into the disciplinary decision. Perhaps administrators should look to the law on qualified immunity when deciding what discipline, if any, should be imposed. The interests of the administrators are consistent with the interest served by qualified immunity. As stated in Elder v. Holloway, “The central purpose of affording public officials qualified immunity from suit is to protect them from undue interference with their duties and from potentially disabling threats of liability.”6 And according to Trapnell v. Ralston, “But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken with independence without fear of consequences.”7
The U.S. Supreme Court has recognized that the risk of liability may deter police officers from performing their lawful duties. The reality is that with civil indemnification statutes, the risk of discipline poses a far greater potential of personal negative consequences for officers than liability cases. It is not uncommon to hear officers who believe they have been unfairly disciplined say that the next time they will not get involved. Because it is in the interest of society to have officers conscientiously and actively perform their duties, police supervisors should carefully consider whether officers could have reasonably believed that their actions were appropriate even if it is later determined that, in fact, their actions were wrongful or possibly even unlawful. The U.S. Supreme Court has repeatedly explained, including in Saucier v. Katz, and Anderson v. Creighton, that “qualified immunity protects those officers who reasonably yet mistakenly believe their conduct is reasonable, which is to say, those officers are in effect ‘reasonably unreasonable.’ ”8 This is especially true in use-of-force cases where acquiescing to layperson after-the-fact opinions is specifically what the court has told us we must not do. Paraphrasing Graham v. Connor, we must judge the reasonableness of the use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight, and we must make allowance for the fact 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.”9
Should Officers Be Arrested?
When officers commit criminal acts off duty and unrelated to their law enforcement responsibilities, they should be prosecuted and made to suffer the same consequences of any other citizen committing the same act. Administrative sanctions brought against officers for such criminal behavior are usually and understandably more severe because officers should be held to a higher ethical standard than the average citizen. There are times when the media or some other non–law enforcement entity believes that an officer has committed a criminal act during the performance of duties and calls out for the prosecution of the officer. This is especially true in use-of-force incidents. In such cases, some administrators feel the need to put officers through the criminal justice process to avoid the appearance of a cover-up and to create the impression that they are acting impartially. It undoubtedly takes courage for the police administrator to inform the complainant, the community group, and potentially the media that the complaint will not be processed criminally. Reliance on the law will help administrators explain their position and allow them to be truly fair and impartial.
Prior to prosecuting a police officer or any other person, the law requires that the subject of the prosecution have fair warning that their act was unlawful. As stated in United States v. Harriss, “The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”10 Further, according to the court in United States v. Lanier, “Before criminal liability may be imposed for violation of any penal law, due process requires ‘fair warning . . . of what the law intends.’ ”11
Officers are required to use force in performing their lawful duties. Unfortunately, sometimes the use of force is perceived by the public to be unreasonable, and sometimes the force is greater than the law or the department policy allows. The fact that an officer’s use of force is unreasonable, even when coupled with some public outcry for prosecution, does not mean the officer should be put through the criminal justice process. Before making such a decision, administrators should look at the facts of the case from the officer’s point of view at the time the force was employed, in accordance with Graham v. Connor.
The administrator should pay special attention to the officer’s specific intent. According to United States v. Bradfield, “Criminal deprivation of civil rights requires a different variety of intent, because instead of qualified immunity we are concerned about constitutional principles of notice and lenity.” Further, “It is well-established that specific intent is a state of mind representing the greatest level of culpability. Specific intent is also the most difficult state of mind for a prosecutor to prove.”12 The pivotal question should be whether the officer intended to accomplish a legitimate governmental purpose or whether the officer intended to commit the specific crime in question. If the administrator determines that the officer used excessive force with the intended purpose of performing an otherwise legitimate governmental function, perhaps disciplinary action might be the better remedy. Many states have criminal indemnification statutes requiring entities to pay economic losses on behalf of officers arrested for acts done within the course of their duties when criminal charges are subsequently dismissed or result in acquittals. Administrators should factor in their fiduciary duty to their communities, which may suffer the economic consequences when officers are not successfully prosecuted.
The Administrative Suspension Option
Some administrators faced with a significant media event or a politically unpopular incident feel they must suspend officers pending the results of the investigation. While the U.S. Supreme Court case of Gilbert v. Homar, concerned a suspension without pay of an officer after his arrest on drug felony charges, the language of the court may be useful in determining whether officers should be suspended with pay pending the investigation of disciplinary or criminal allegations.13 Of greatest significance is the court’s question of the legitimate governmental interest in suspending an officer. Questions administrators might ask would include whether or not keeping the officer on duty, working in a regular position or elsewhere, would undermine public confidence. Further, while pending the investigation, can the employee perform some useful purpose? Is placing the employee on paid suspension or having to pay another employee to replace the suspended officer in the economic interest of the taxpayers?
Administrators might also want to ask how serious or offensive the allegation is, how strong the existing evidence is against the employee, and, most importantly, if there are any health or safety concerns about having the employee continue to perform duties?
Under Gilbert, the decision to suspend an officer without pay after an arrest for a serious offense is an easy decision. On the other hand, suspending an officer even with pay is punitive because it is seen as disciplinary action and usually has negative economic consequences for the officer who cannot work overtime or private duty jobs. To justify this harm, the department should have some significant legitimate interest to give reason for the negative economic consequences to the taxpayers and to the officer as well as the emotional harm and the potential negative effect such actions have on morale.
The speakers in the suicide seminar spoke of the greater expectations placed on officers and the increased scrutiny they are exposed to, which creates higher levels of stress. While officers should adhere to the law and the department code of conduct, it is not unreasonable for them to expect fair treatment during the disciplinary process and fair punishment when warranted. This article is not written with the intent of encouraging administrators to favor officers when faced with misconduct allegations. The intent of the article is to encourage administrators to be fair and objective when handling disciplinary actions and administering sanctions against officers. I am told that it is naïve to expect chiefs not to be influenced by the media, politicians, community groups, or administrators from other government agencies. I also realize there are numerous other factors to consider when making decisions related to disciplinary actions. I do, however, know there are police administrators who have informed outside influences, in a professional manner, that these decisions are their responsibility and that they will act in a fair and objective manner in making their decisions within the law. Such administrators maintain the respect and trust of their employees; the community; and, even most often, with those clamoring for harsher treatment. The intent of this article is merely to provide some legal basis for justifying such a response to those who wish to influence the chief’s decision based on their own personal beliefs.
Special caution should be taken when those seeking input have little or no knowledge of the law or no police experience or understanding of the realities of policing. It may be relatively easy to reject the lay opinion of community leaders or media representatives. It is much more difficult to address the opinion of the mayor, the town manager, or the civilian agency director who may be the chief’s boss. However, fairness and justice require that these civilians be educated on both the law and police standards, which must factor into all disciplinary decisions. ■
1Terry v. Ohio, 392 U.S. 1 (1968).
2Saucier v. Katz, 533 U.S. 194 (2001).
3United States v. Leon, 468 U.S. 897 (1975).
4Herring v. United States, 555 U.S. 135, 144 (2009).
5Davis v. United States, 131 S. Ct. 2419, 2429 (2011).
6Elder v. Holloway, 510 U.S. 510, 514 (1994).
7Trapnell v. Ralston, 819 F.2d 182, 183 (1987); quoting Pierson v. Ray, 386 U.S. 547 (1967).
8Saucier, 533 U.S. at 197; quoting Anderson v. Creighton, 483 U.S. 635, 643 (1987).
9Graham v. Connor, 490 U.S. 386, 396-97 (1989).
10United States v. Harriss, 347 U.S. 612, 617 (1954).
11United States v. Lanier, 520 U.S. 259 (1997); quoting, McBoyle v. United States, 283 U.S. 25, 27.
12United States v. Bradfield, 225 F.3d 660 (6th Cir.2000); compare Ratzlaf v. United States, 510 U.S. 135, 137 (1994).
13Gilbert v. Homar, 520 U.S. 924 (1997).
Please cite as:
Elliot Spector, "Dealing with Outside Influences in Disciplinary Decisions," Chief’s Counsel, The Police Chief 78 October 2011): 1213.