Maybe I have devoted too much of my life to law enforcement and the criminal justice system to not be jaded by much of what I have experienced and continue to see. Maybe I am just getting cranky. Or maybe, despite 40 years working in the legal system, I still believe in the idea of equal justice.
Whatever it may be, I do not think I am off-base when pointing out certain inequities in our justice system. While it may not be perfect, it is better than most and I will still put my faith in our constitutional system than the alternative. But whenever the Constitution is mentioned in certain circles of law enforcement, I am often astounded by the simple misreading of it by those who have sworn to uphold the protections provided within the document, specifically the Bill of Rights.
Our system of civil liberties depends upon a vigorous defense of those rights, which brings me to the concept of fair and impartial policing. This is a familiar term to many police and undoubtedly a topic in training. It emanated from an evidence-based approach to policing focusing on the concept of implicit bias and officer recognition of that bias. The goal of fair and impartial policing is admirable. Law enforcement must consistently be responsive to the public and the varied, multi-ethnic, multi-cultural environments it serves.
The hypocrisy behind fair and impartial policing
Some of the basic tenets of fair and impartial policing I have read on police departments’ websites tout the protection of basic freedoms, such as privacy, speech, assembly and religious practice, while also espousing equal treatment of every citizen. The concept is extended to organizational transparency as a means of facilitating trust and confidence within the community. Again, these are admirable standards that should be followed by every police agency, but there is hypocrisy in these professed policing models that often overlook one class of individuals − police officers.
In my 20 years of representing law enforcement officers in hundreds of disciplinary matters, administrative and courtroom trials, critical incidents and grievances, I have seen the opposite of fair and impartial policing when applied to internal investigations of alleged misfeasance or misconduct on the part of an officer. While I can attest to many investigations that were fair and impartial and professionally handled, I can also attest to many that were not. The latter were plagued by lying supervisors, hidden evidence, undisclosed documents, witnesses who were never interviewed, improper ex parte communications with the hearing officer by agency counsel, and tampering with an administrative judge’s decision and subsequent removal from the case.
In one case I handled, a potentially exculpatory video was withheld by the agency, a supervising officer caught in a lie was allowed to “clean up” his testimony after the hearing concluded, agency attorneys denied the existence of a document created by a high-ranking officer (which thankfully I already had a copy of), and my clients were made the scapegoats for a favored supervisor’s alleged criminal conduct.
During the administrative litigation, I was quoted by a local newspaper to the effect of if this was what the agency does to its own, how can the public expect to be treated?
This is the other side of policing the public does not often see, except when the offending agency is hit years later with a civil verdict. That is what happened with my former clients who were referred to a civil rights law firm and after nearly six years of litigation won a several million-dollar verdict for compensatory and punitive damages against their former police agency. A federal jury found there was nothing fair and impartial about the way they were treated.
These are not isolated stories
Over the past six years, I have spoken with police officers across the country who have been mistreated by their agencies. Careers have been derailed either by lack of advancement or forced resignation because officers have not gone along with a false agency narrative concerning an incident, have pointed out corruption, acted as whistleblowers, or spoken up about sexual harassment, gender discrimination and racial discrimination.
The stories are not isolated. There are too many of them to not signify a cultural problem with the way some police administrations, large and small, approach these issues. Sworn police officers and other department employees require the same level of fairness and impartial treatment when subject to investigation as their agency’s professed goals of fair and impartial policing toward the public reflects. Smart, professional and competent police supervisors and administrators know this, and their organizations uphold these standards of consistency. The ones that do not follow these standards find themselves at the wrong end of jury verdicts.
The foregoing should be read for what it means to be fair and impartial when investigating and adjudicating internal cases involving police officers and not, as some may inaccurately read, as an excuse for police misconduct. In a 2017 article, “The Washington Post” investigated police terminations in large U.S. departments since 2006. Of the 1,881 officers fired, 450 were reinstated after an appeal mandated by the union contract. Nearly 25% of those fired won back their jobs after either an arbitrator’s or administrative law judge’s review. Most cited reasons were either a procedural error, too harsh a punishment for the disciplinary offense, failure to interview witnesses, lack of evidence, or some other agency failure in properly investigating and adjudicating the matter.
As noted in the article, this sometimes led to the forced reinstatement of guilty officers. However, just as the police are expected to properly investigate a case when accusing an individual of a crime − otherwise the law provides the accused a remedy under the law − so too do the rules apply when seeking to deny an officer a property right to continued employment.
More recently, in a 2020 website article on police accountability, the Innocence Project noted that “complex laws, policies, and contracts…have consistently shielded law enforcement and allowed them to act with effective immunity. These protections stand in stark and perverse contrast to the policies that ensnare innocent citizens at the earliest stages of a wrongful conviction.” What the article fails to acknowledge is the way in which the same laws and policies have prevented wrongly terminated police officers from being able to effectively vindicate themselves. Many of these officers have been the good ones who have pointed out wrongdoing but were sacrificed at the altar of department politics.
Not all officers are as lucky as those who have received substantial seven-figure verdicts after years of litigation. In cases involving a police officer, it is wise for police administrators to realize the protections of the constitution apply to them and that property rights embedded in an officer’s interest in continued employment cannot be deprived without due process of law. This includes representation by counsel. Some of those who espouse fair and impartial policing toward the public seem to ignore this fundamental right when overseeing matters impacting police officer rights. It may be time to reckon with the face in the mirror.
