The city attorney is not always your friend
Some disturbing practices appear to exist with regard to the city attorney’s office that are at best unfair and at worst underhanded. Normally, the city attorney is on the officer’s side and defends him or her in the lawsuits that are routinely filed against officers for arrests, shootings, traffic accidents or just no reason at all. They do a great job and deserve our praise and gratitude.
But what happens when it is an officer suing the Department? This is a game-changer. Now the city attorney is defending the Department and City against the plaintiff officer. Based on recent jury verdicts in favor of some officers, these suits must have some basis in fact. Nevertheless, the Department doesn’t like to lose.
Many times officers are witnesses to some of the abuses visited upon their fellow officers by members of management. They get subpoenaed to the trials by the plaintiff officer’s attorney. We know this is dangerous because at least two officers have been fired because of allegations arising out of being witnesses against the Department.
What is happening recently is that officers are being ordered into interviews with the deputy city attorney representing the Department. The officer’s attorney, who is suing the Department on behalf of the officer, will send a list of their witnesses (other officers) to the deputy city attorney to be produced for the trial. Risk Management Division officers will contact the officers and order them to appear for an interview with the deputy city attorney.
If the officer’s testimony is not favorable to the Department, this can be awkward. The problem is that the order to appear is sometimes the next day. Bear in mind that usually the officer has been interviewed by Internal Affairs over this same lawsuit and there is a tape recording of that interview in existence. The officer is ordered in by Risk Management, not given a transcript of the tape (or the tape itself) and told they must meet with the deputy city attorney. If the attorney who represented the officer isn’t available at that particular date and time, too bad. The officer is told to be there anyway.
In one case, the officer contacted his attorney for a next-day interview. The attorney was not available. The officer requested another date and time, but was refused and told that if he did not appear he would be in violation of Department policy. He called the League. We found an attorney whom we could get down to the city attorney’s office at the ordered time. The officer showed up at the city attorney’s office and told the Risk Management people that his attorney would be there shortly. Instead of being allowed to wait for his attorney, he was ushered into the city attorney’s office and told that the city attorney would like to start the interview. In the meantime, the League attorney arrived in the reception area and was told that no officers were waiting. The officer, sitting in front of the city attorney, called the League to find out where the attorney was. The League attorney called the League to find out where the officer was and, finally, they were put in contact with each other. A misunderstanding? Maybe, but the more cynical might believe something else.
It would appear that the goal is to make it as difficult as possible for the officer to be represented. The Department, of course, wants to win the case. This results in the witness officer being placed in the middle. The officer witnessed something that turned out to be not good for the Department’s case. The officer is routinely interviewed by Internal Affairs (lawsuits automatically generate personnel complaints) months before the trial, so everyone already knows what the officer is going to say. So why the games? Again, the more cynical might believe it is a game of intimidation, or a hope that the unrepresented officer will make some sort of mistake that can be used to impeach the officer’s testimony.
If not, the fair way to handle this would be to schedule an interview and be cognizant that the officer may need to reschedule to a different time, when his or her attorney is available. The officer should be provided with the transcript of his or her interview, and the discussion should be limited to whatever the city attorney needs to ask to clarify the officer’s previous statement.
If you find yourself in this situation, realize that if this interview you are being ordered to could reasonably result in punitive action against you, you are entitled to representation. Stick to your guns, demand representation and call the League.
The Internal Affairs advocate is also not always your friend
The advocate is the person who puts on the Department’s case against an accused officer at a Board of Rights. Kind of like the administrative version of the prosecutor in a criminal case. Again, we have had problems regarding the witness officer.
The first problem, as written about in previous months, is Internal Affairs’ objection to any representation of the witness officer at the Board. The League has a lawsuit pending against the Department on this issue. But we have also had complaints from officers who are ordered in by advocates to discuss their testimonies. These interviews sometimes become accusatory when the advocate believes the officer’s expected testimony will be different from the paraphrased statement from the previous Internal Affairs interview.
Hear warning bells because Internal Affairs has charged witness officers with making false statements after Boards of Rights. If you are a witness officer and the advocate is ordering you in to discuss your testimony, above all, you need to review your previous statement tape. Do not trust the paraphrased statement. Remember that both the Department and the accused officer’s representative have that tape recording in their possession and woe be to you (from either side) if your current testimony is not consistent with your previous interview.
Again, if you reasonably feel that your interview with the advocate could lead to punitive action, you are entitled to representation. Call the League and, if you are a member of the legal plan, take an attorney with you for the interview and also to be present to represent you when you are testifying.
Be afraid, be very afraid When anyone shows reluctance to allow you to have representation, you have to ask yourself why. Why do they want you alone without counsel (or witnesses)? None of the reasons can be good. The hairs on the back of your head should stand up. Conversely, those with pure motives couldn’t care less if you bring a representative. Why? Because if everything is on the table, it doesn’t matter if there are two sets of eyes looking. It is what it is. It’s only when there is sleight of hand in the plan that too many eyes become an issue. Beware.
Be legally careful out there
