After the Webinar: The Rights of Police Officers, Sheriff’s Deputies, and Other Law Enforcement Professionals. Q&A with Wayne Beyer

Webinar presenter Wayne Beyer answered a number of your questions after his presentation, The Rights of Police Officers, Sheriff’s Deputies, and Other Law Enforcement Professionals. Here are just a few of his responses.

 

Audience Question: What impact does Brady have on the rights of police officers, especially the right to privacy related to off-duty affairs? 

Wayne Beyer: Brady, for somebody who might not need to be familiar with it, is an obligation that runs not so much to the officers but to prosecutors to disclose information that may be helpful to the defense of a criminal case. I think that would involve a weighing an outside affair. The obligation doesn’t run from the officer to the defense counsel, it does exist between the officer and the prosecutor. I don’t think that an affair that has not caused any disruption in the department, discipline for dishonesty, or so on is something that one would have to disclose in a Brady context. If it resulted in discipline though, an officer who’s been disciplined for dishonesty, let’s say as a result denying something that occurred let’s say, you have to create a hypothetical for something like this, you deny that you had an affair with a subordinate officer, it turns out that’s a lie, and you’re written up for it. That is Brady material. And that’s one of the reasons I mentioned that social media things create Brady problems because if you’re known for bias, as a result of your social media posts that could lead to Brady violation, Brady disclosure requirements.

 

 

Audience Question: Having so many limitations on off-duty personal behavior can act as a real impediment in recruiting new officers. Do you have suggestions on how recruiters can ensure candidates are aware of these limitations while still encouraging them to become part of a law enforcement agency? 

Wayne Beyer: I think you will appeal to the higher better instincts of police officers. As a police officer, it’s your mission to serve and protect, and you’re serving and protecting the entire community, and that probably places a higher burden. You have the benefits of being in a high-level position because of your authority as a police officer serving and protecting the community. That also puts some additional burdens on you because you have to serve as an example to the community and you can’t engage in things that make you look bad and that your department looks bad. You have to consider that when you’re signing up to police officer. You’re giving up a little bit of this. You’re giving up a little to get a lot back. And that if you’re signing up as a police officer, most, most general orders and standard operating procedures are available to the public and would be available to a recruit. Now some things that involve law enforcement methods and operations are not generally available and you might not give to a potential recruit. But I would say to a recruit, this is a big responsibility, but we also have to hold you to our guidelines. And here, if you’d like to see what the guidelines are, here they are. And I know as an aside, I know because I belong to the IACP, the police executive research forum, to the Sheriffs Association, and I get emails all the time and understand that recruiting is now a difficult issue because of the some of the anti-police sentiment which I believe is unjustified in the country but recruiting is an issue but I think you have be upfront with the recruits.

 

 

Audience Question: Can personnel be disciplined for discussing operations within the department with an elected official? And wonder what circumstances might be allowed or prohibited?

Wayne Beyer: Well, I think the question is, how much does the official have the right to know what’s, who’s the official? What’s the relationship? How private is this? What’s the operation that’s the issue. Let’s start with what’s the public or quasi-public information? A lot of departments have their general orders just on a bookshelf or they’re available to anybody who wants to look at them. Certainly, a public official gets that. But if you’re getting into law enforcement methods, I think that’s something else. What I would do is to direct an inquiry if he came into a line officer or to an official, something, you would run up the chain of command and says, This is what this person wants to know. And let’s set up an appointment and see. See, specifically. I want I’m sorry to give you a lawyer-like answer on it, but I would want to know, I would want to know that, the hypothetical or the specific facts of it. The mayor comes in and says, tell me about such and such. Generally, you’re going to provide information unless it’s very sensitive information.

 

 

Audience Question: Does an officer have to be made aware of an adverse action that is being brought under question? Or can an administrator keep a file and then drop all of the actions on the officer simultaneously, in an attempt to terminate them?

Wayne Beyer: I guess what I’m reading in into the question is, you keep a book on the officer. And there is a cumulative effect of small offenses or maybe small and large offenses and all the sudden that dropped on the officer. Due process requires notice and an opportunity to address the charges. I guess the question would be, “Would they do have to address each charges that comes along?” Or can you wait and say, “Here’s the book we’ve got against you.” Again, you’d have to be somewhat fact specific about how much time had gone by and when these charges arose. You need as an officer on the officer side of that you need a notice and you need an opportunity to contest the charges, if it’s been so long, that the department, the charging official can’t give you specific dates or witnesses that you could call it a hearing and so on. I think that that deprives you of due process. I think though if you – I don’t see any I have not seen any law or rule that says that you have to – that there’s a time limit between an offense and the discipline. It’s certainly bad management to allow somebody to be not disciplined for something and then to hold that back until later. I think you should do it as things come along. But you would an officer is entitled to notice,  if you particularly if you’re going to terminate somebody, you have to give them, as they said in the presentation, you have to give them notice, you have to witnesses, you have to have particulars. You have to serve that on the officer. You have to give the officer a reasonable time to prepare their case to get a lawyer to get a union rep or whoever’s going to represent them. So, they’re entitled to, to a full-fledged hearing of evidentiary hearing. At some point, when you’re facing termination, they shouldn’t be terminated. You know, if you’re fired, then you’ll get a post-termination hearing, but at any rate, due process requires notice of all of the charges and a hearing.

 

 

Audience Question: I believe it’s referencing their right of a law enforcement officer to sue someone that they’ve arrested. Can you provide a few clear examples of the difference in defamation between a statement of fact and a statement of opinion? At what point does it cross that line and become something that you could potentially pursue with a lawsuit successfully?

Wayne Beyer: Well, I think the easy ones are, “You’re a bad police officer. You beat people up, you’re corrupt. You’re dangerous”. I mean, those are conclusively statements about an officer if a statement of fact would be on such and such a day I saw an officer hit so and so with an impact weapon when the person was simply standing by passively, that’s a statement of fact. The idea that somebody is a cruel, dangerous officer who beats people up, those are mere statements of the opinion that a court would regard as not statements of fact. You get down to the specifics of it. But again, these although you have a right as an officer to countersue somebody, because of the litigation context and the right to make citizens’ complaints, it’s a fairly high burden for officers to make. But I think, you know, somebody gets up at a city council meeting or something and says something against an officer. I would at least prefer it to your lawyer and have your lawyer write down the letter back saying cut it. Now whether that is enough to, to satisfy you, that’s something else. But if it results if this person’s statements, either in writing or verbal to you have resulted in adverse action against you. It’s certainly something you would want to follow up on it, and let the court decide whether it’s a statement of fact or, or statement of opinion.

 

Click Here to Watch a Recording of The Rights of Police Officers, Sheriff’s Deputies, and Other Law Enforcement Professionals.  

 

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