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You’re in Trouble: Now What?

You’re in Trouble: Now What?

Dr. Richard Weinblatt

Know Your Legal Precedents

Departments generally go with a standard that has been backed up by court decisions such as U.S. Supreme Court cases Garrity v. New Jersey, (1967) and, for the feds, Kalkines v. United States, (1973). Officers under an administrative investigation can refuse to answer questions. This is really applicable if there is the belief that a criminal component could arise. However, refusing to answer questions may form the evidentiary basis for charges. Officers, like other governmental workers, can be compelled to answer within an administrative context, as that is a condition of employment.

It is important in this process is that the department should also explain that this an administrative process and that any criminal charges that could arise from the officer’s acts or omissions are to be handled separately from the internal affairs investigation. Those matters should be referred to an appropriate criminal investigation unit or, better yet to avoid the appearance of a conflict of interest, another agency. The idea here is that the employee should not be forced to choose between his or her Constitutionally protected fifth amendment right against self-incrimination (think Miranda v. Arizona) and his or her job.

The Garrity Warning should be in writing. Some agencies issue it and have the target officer sign it as a matter of course. Others do so only when they feel there is a good chance that a criminal component may arise out of the officer’s conduct. Importantly, false statements are not protected against criminal prosecution during any part of the investigation.

Legal Counsel?

Most agencies will not allow legal counsel during the administrative investigation interview. Some will, however, allow you to have a non-involved supervisor present. Others, particularly in the Northeast, will allow you to have a union representative accompany the officer. Agencies tend to audiotape or videotape the interview.

Be aware that property owned by the employing governmental entity is subject to search. Unless otherwise restricted by local protocol, most agencies can search your departmentally issued equipment including the patrol car, locker, and computer.

Next Page: So What’s Next?


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  • Ronwestptjune2011_max50

    CaptainOrso

    over 3 years ago

    32 Comments

    As long ago as 2000, The Feds (I THINK Dept. of Labor) stated every time you walk outside you had a 78% chance of being on a video, camera or satellite. That was 11 years ago...Act like you always are...

  • Photo_user_blank_big

    BForJuvCor

    over 3 years ago

    846 Comments

    Great article. Thank you Dr. Weinblatt

  • Photo_user_blank_big

    dcreasey

    over 3 years ago

    46 Comments

    I'll second that tape recorder comment. Now that have audio/video recorders that clip to your lapel. Those are great and hardly noticable....

  • Csi_max50

    haim357

    over 3 years ago

    72 Comments

    Very good article thank you Richard,

  • 1410_max50

    CITYPATROL1099

    over 3 years ago

    332 Comments

    I been SAVED BY THE BOOK many times. Several of my complaints stem from the Sgt NOT KNOWING THE BOOK, or keeping updated on a policy change.

  • Photo_user_blank_big

    SHARRI8

    over 3 years ago

    106 Comments

    LETS HOPE THATS WHAT HAPPENED IN MY CASE IN WILLIAMSTOWN WEST VIRGIINIA....THAT THE TRUTH WAS TOLD.....FOR THE SAKE OF MY GRAND-DAUGHTER.

  • Officer_w_pavey_max50

    napd270

    over 3 years ago

    72 Comments

    One of the best things that I ever carried was a tape recorder. I can tell you that helped me out on several occasions. Another thing was to join the Legal Defense Fund. I joined it when it first came out, but I never had to used it during my carrer. I still thought that it was money well spent.

  • Photo_user_blank_big

    mp5811

    over 3 years ago

    12 Comments

    Very important and informative article. Should your problem stretch beyond legal problems and encompass substance abuse, dont hesitate to contact Safecallnow. This is a confidential crisis referral service based in WA State. Laws here SPECIFICALLY protect callers and are confidential under state law RCW 43.101.125 and you will ALWAYS speak to a live person directly involved with Public Safety.
    http://www.safecallnow.org/ or call 206-459-3020 24 hours a day, 365 days a year.
    Stay safe.

  • Photo_user_blank_big

    Anonymous

    over 3 years ago

    Agree with svlnj: Every agency had a dick who holds a grudge against subordinates in general. We had one here as well. That bastage is gone and I'm still standing. The dude was such a d-bag, behind his back nobody had any respect for this man. He took a job with a small dept upon retirement and eventually took a shot at an unarmed motorist who ran from a traffic stop. It's laughable because he would have tried to fire anyone under his charge if they had done the same thing on his watch. Like I said, this loser was a huge d-bag and most wish him nothing but torment for the rest of his miserable life. It's sad because you don't have to be that way with people.....especially those who you work with. God has a special place for losers like this.

    Thanks Richard, good stuff to review for all LE.

  • 1979_max50

    Robocop33

    over 3 years ago

    14642 Comments

    Great article my Brother. It is very difficult to be a LEO, especially when you first start out. With cell phone video etc it is even more difficult to defend yourself against an edited or a portion of your actions being shown. This is why I firmly believe that you should have a IA review board that consists of not only a few senior Officers but also some retired Officers who understand the streets and have so much experience.

  • Mwg_-_copy_max50

    nracfi

    over 3 years ago

    96 Comments

    This is why it is good to have a back-up like the National Police Defense Foundation (http://www.npdf.org/) in addition to your PBA or FOP legal representation!

  • John_groh_max50

    wiseass0282

    over 3 years ago

    10976 Comments

    Bump darsavmo on this one. And I would add that I have found that people are born with common sense. It is not something that can be taught. So many of the young Officers that worked for me over the years did not have it and it ended up with them causing them self many problems over the years.

  • Thinker_max50

    darsavmo

    over 3 years ago

    11362 Comments

    The most important thing to have and use in LE is common sense. Have and use that and have 50% of what it takes to survive a LE career. Then come knowing both the law and your department policies. Last but not least is integrity. Most officers go down for integrity problems, usually lying about or trying to cover up your mistake, not the actual mistake itself. I had a Chief once tell me, if you don't get an occasional complaint, you probably aren't doing your job. But learn from your mistakes, don't repeat them, and with maturity and wisdom the complaints will be further and farther between...

  • Ship_patch_max50

    KB3MMX

    almost 4 years ago

    136 Comments

    With how hostile the Media, some of the public and special interest groups are toward LE, it
    seems very likely to happen sometime during your career nowadays.

  • Patch_max50

    svlnj

    about 4 years ago

    4 Comments

    What about cases where the administration has a vendetta against an individual ???

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