by William K. Rashbaum, The New York Times
A much-criticized Police Department regulation that bars for two days the interrogation of officers suspected of misconduct can no longer be negotiated into the police union’s contract with the city, a state hearing officer has ruled. Police officials said yesterday that they planned to use the ruling to eliminate the regulation.
The police union, the Patrolmen’s Benevolent Association, which represents the city’s 24,000 rank-and-file officers, said it would fight to retain the often misunderstood regulation, known as the 48-hour rule. They said they would appeal the decision, which was handed down April 30 by a hearing officer with the Public Employment Relations Board.
The department has long sought to eliminate the regulation, contending that it has hampered investigations of some police abuses. Critics of the department contend that it adds to the perception that officers accused of crimes get special treatment.
But for more than 30 years, the rule has been a part of the city’s collective bargaining agreements with the officers’ union, and its longevity in the face of widespread criticism had been viewed as a sign of the union’s enduring political muscle. The regulation has already been eliminated for the city’s four other police unions, which represent detectives, sergeants, lieutenants, and captains and other senior officials.
“It is the intention of the city to see to it, as with all the other police unions, that the 48-hour rule be eliminated,” Police Commissioner Raymond W. Kelly said yesterday.
The rule is widely misunderstood. It gives police officers 48 hours to get legal or union representation before they are questioned by investigators from the department’s Internal Affairs Bureau. But police officials contend that it seldom affects cases of misconduct that rise to the level of a crime, because statements officers make in such interviews — statements compelled under penalty of dismissal — and information derived from those statements cannot be used against them in court. As a consequence, prosecutors often ask Internal Affairs not to interview officers under investigation until an investigation is nearly completed.
The hearing officer’s ruling was nonetheless hailed by some state and federal prosecutors, and by other critics of the regulation.
“It’s a long-overdue reform that hopefully will help the truth-seeking function in police investigations,” said a senior federal prosecutor who has handled a number of police corruption cases and would speak only on condition of anonymity.
The rule was cited in a civil lawsuit brought against the city, the Police Department and the P.B.A. by Abner Louima after he was tortured in a station house in 1997. Lawyers for Mr. Louima, who settled the lawsuit for $7.1 million from the city and $1.6 million from the union, have argued that the rule interfered with the investigation of the officers who assaulted him and those who shot and killed Amadou Diallo in 1999.
“It’s a critical issue,” said Barry C. Scheck, one of Mr. Louima’s lawyers. He praised Commissioner Kelly for moving to eliminate the rule, and former Mayor Rudolph W. Giuliani, who had long opposed it.
“There has to be a complete rethinking as to how officers are questioned at the scene of incidents where there is potential misconduct or a firearms discharge,” Mr. Scheck said.
But the police union and several police officials argued that the rule’s elimination would change little because it usually comes into play only in cases of minor misconduct and violations of department policy, not in cases in which officers are accused of crimes. The union “will file an exception to the finding, which is in effect an appeal,” said Albert W. O’Leary, a P.B.A. spokesman.
A senior union official said the job of police officer is “probably the only profession” in which people are “forced to answer questions or face the loss of employment.” Because of that, the official said, officers need this special protection.
The ruling on the regulation was part of a binding arbitration hearing before a three-member panel that will determine how much the city will pay its police officers.
The 45-page decision by Philip L. Maier, an administrative law judge, ruled on whether several disputed issues would be subject to the collective bargaining process. Mr. Maier wrote that the 48-hour rule could not under law be subject to the process, because the interrogation of officers is an essential part of the disciplinary process that should be determined by the police commissioner.