Legal Updates

Fair Internal Affairs Investigations: Getting Management on Your Side
Aaron Nisenson, General Counsel I.U.P.A.

Several recent cases and law review articles highlight the importance of ensuring that internal investigations of officers are done fairly, with an eye toward finding the truth and not just prosecuting the officer. From the point of view of the officers, the need for a fair investigation is obvious, and has undoubtably been communicated by the union to management.

However, if the interests of the officers have not motivated management to provide a fair investigation process, it may be helpful to remind management that a fair and unbiased investigation is important for the department itself. Some of the reasons are the same as for the officers; fair investigations increase morale in the department, ensure that good officers are not unfairly disciplined, and decrease turnover and training costs. Yet perhaps the most important reason, from the department’s perspective, is that unfair and biased investigations can result in the department having to pay large unjustified monetary damages to citizens who sue over a use of force or other perceived wrongs.

Some Courts have recently held that Plaintiffs suing a police department are entitled to copies of Internal Affairs files, and that reporters may also have access to these files. Gray v. Rhoads, 268 Va. 81 (2004); Local 2489 AFSCME v. Rock County, 277 Wis. 2d 208 (2004); Frierson v. City of Terrell, 2003 WL 21955863 (N.D. Tex. 2003). This includes statements that an officer may have made, even if these statements were made on the scene or after a Garrity warning. See Frierson. While I.U.P.A. does not believe this is appropriate, and many Courts hold the opposite view, management must recognize the danger that unfair internal affairs investigations pose to their departments.

The danger in unfair internal affairs investigations arises from two problems: first, interviews are often done immediately after an incident, when the officer is still traumatized and unable to provide a clear and accurate recollection of the events; and second, investigations are often pursued with intention of showing what an officer did wrong.

An article in the Virginia Lawyer explains why statements taken immediately after an incident may be inaccurate, and why accurate statements are important for defending the department in litigation. (Available at http://www.vsb.org/publications/valawyer/dec04/.) (This article is particularly helpful as it was written by lawyers from a large firm that defends local law enforcement agencies in wrongful death and excessive force cases.) The authors explain that:

“attorneys representing law enforcement officers and law enforcement agencies must pay even closer attention to the manner in which these interviews are conducted and the resulting statements of the officers. Because statements taken from officers within hours of an incident are inherently problematic, attorneys must know how such statements are elicited. After a struggle with a suspect, which often results in bodily injury to both the officer and the suspect, an officer may be scared and running on pure adrenaline. Many officers experience tunnel vision following the incident and their memory may not be clear. The office may think he or she knows what he or she did and why, but could actually have only a vague recall of what happened before the incident.”

The attorneys then recommend that, “local government attorneys and their outside counsel should scrutinize the procedures used by detectives in the police department and the internal affairs division. This will ensure that both the department and the officer are not left with an inaccurate and cursory statement that a plaintiff's attorney will be able to effectively use against an officer at trial.”

Similarly, an unfair presumption of wrongdoing can be very dangerous for a department if there is a civil lawsuit, and can greatly increase the possibility for a substantial monetary judgment against the department. As the Virginia Lawyer article explains, this is often not appreciated by internal affairs investigators, and often the investigator “is not conducting the interview with any thought that the end product will become critically important to the officer or the agency in a possible civil lawsuit.”

Therefore, if your department lacks fair protections for officers being interviewed, or if the investigator’s approach is to emphasize officers’ mistakes instead of simply finding the truth, you can use this material to remind management that it is in the best interests of the department to correct these problems.

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