Ensuring Officer Integrity and Accountability: Recent Court Decisions
Schofield, Daniel L., The FBI Law Enforcement Bulletin
Recent Court Decisions
Law enforcement organizations must be vigilant about the conduct of officers in order to merit public trust and confidence. Public trust is undermined whenever officers lie or remain silent when questioned about law enforcement matters. In his exceptional book "Character and Cops," Professor Edwin Delattre observes that:
Those who serve the public must hold to a higher standard of honesty and care for the public good than the general citizenry does.... A higher standard is not a double standard. Persons accepting positions of public trust take on new obligations and are free not to accept them if they do not want to live up to the higher standard. A higher standard as such is not unfair; granting authority to an official without it would be unfair to the public.(1)
In ethical terms, a "...duty of veracity is concerned with straightforwardness in communication" and officers who lie or remain silent when questioned are not being straightforward.(2) "Accountability-like authority and power - depends on information."(3)
This article discusses recent court decisions involving officers who failed to meet this higher standard and then unsuccessfully challenged on federal constitutional grounds the resulting personnel action taken against them by their departments. Specifically, the article answers four questions relevant to a law enforcement agency's efforts aimed at ensuring officer integrity and accountability. First, does the Constitution's Due Process Clause shield officers from departmental discipline for falsely denying allegations of misconduct? Second, after being afforded Garrity immunity, may officers be compelled to answer work-related questions and terminated if they remain silent or respond in less than a fully candid and honest manner? Third, may an adverse inference for purposes of imposing discipline be drawn from an officer's decision to lawfully exercise his Fifth Amendment right to remain silent? Fourth, may officers who exercise their Fifth Amendment right to remain silent be transferred or reassigned when that silence raises legitimate security or fitness for duty concerns?
Due Process Right to Falsely Deny Charge Rejected
The essence of procedural due process protection is a meaningful opportunity for employees to respond to evidence of alleged misconduct before disciplinary action is imposed. One question of particular importance to the issue of officer integrity is whether this "meaningful opportunity to respond" includes a right to falsely deny the alleged misconduct and a concomitant right not to be subject to discipline for making that false statement.
In 1998, the Supreme Court answered that question in LaChance v. Erickson(4) by ruling that the Due Process Clause does not preclude a law enforcement agency from sanctioning employees for falsely denying alleged employment-related misconduct. In that case, a Department of the Treasury Supervisory Police Officer, Lester Erickson, was charged with misconduct and for making false statements during an agency investigation. The misconduct charge was based on evidence Erickson encouraged a third party to make a "mad laugher" telephone call to another police officer during duty hours. The "mad laugher" calls were made to employees at their duty stations during which the caller would laugh continuously and then hang up. The falsification charge was based on Erickson's denials to an agency investigator that he had knowledge of or participated in the "mad laugher" calls. The falsification charge resulted in Erickson's removal whereas the misconduct charge alone would have only resulted in a suspension.
An appeal to the U.S. Court of Appeals for the Federal Circuit resulted in a ruling that Due Process protections prevented the agency from charging Erickson with falsification based on his denial of the misconduct allegations or from enhancing his penalty on the misconduct charge based on his false denial. …