One of the
most frustrating problems facing organizations and individuals involved
in the defense of law enforcement officers against charges of wrong
doing is the fact that basic rights once established are rarely adhered
to by police management. Custom and practice combined with what is
nearly a presumption of guilt within many police departments that
"where there is smoke there is fire" - too many in law
enforcement accept the idea that most cops charged with misconduct are
likely guilty of something. All of the most basic protections of due
process involved in protecting citizens accused of misconduct from
over-reaching governmental imposed punishment are regularly violated by
police departments charging, investigation, and punishment.
The IUPA
recognized some time ago the importance of police organizations and
those charged with defending accused law enforcement, acting to make the
basic principles set forth in Cleveland Board of Ed. v. Loudermill a
reality. Loudermill requires that prior to the imposition of any
discipline which could reduce a non-probationary law enforcement
officer's pay or benefits or do injury to any law enforcement officer's
reputation or future employability, the officer must be informed of the
charges against him, be given access to evidence supporting the charges,
have a right to defend himself, and have a right to a full
post-discipline process hearing. These rights are often ignored but must
be rigorously enforced.
Like the
situation with regard to full due process protection or cops charged
with misconduct, the Supreme Court's constitutional rules applicable to
the investigation and interrogation of cops charged with misconduct have
been more often breached than followed. Garrity v. New Jersey, 385 U.S.
493 (1967) and Gardner v. Brodick, 392 U.S. 273 (1968) established four
principles:
If a law
enforcement officer is not provided with immunity, any statement
given under threat of adverse personnel action is unconstitutionally
coerced (Garrity holding);
If a law
enforcement officer is not provided with immunity, the taking or
threatening to take any adverse personnel action in response to the
assertion of the privilege against self-incrimination has an
unconstitutional chilling effect upon the privilege (Gardner
holding);
If a law
enforcement officer is granted immunity but nonetheless refuses to
answer questions specifically, directly and narrowly related to
official duties, the officer may be dismissed (Gardner dicta); and
If a law
enforcement officer is granted immunity and answers questions
specifically, directly and narrowly related to official duties, the
officer may be dismissed if the answers provide cause for dismissal
(implicit in Garrity). See Warnken, "The Law Enforcement
Officers' Privilege Against Self-Incrimination," 16 University
of Baltimore Law Review 452 (1987).