What do you do when Internal Affairs show up?
Hopefully you’ve never been the subject of an Internal Affairs investigation. But if you have, you know how unnerving it can be.
While federal law governs some aspects of these investigations, the reality is that individual state laws govern most of the actual process from one location to another.
For instance, under Texas law, an officer’s discipline can be disclosed to the public. In California, it cannot.
As a result of the differences in law from state to state, it is difficult to provide a detailed training guide to Internal Affairs investigations. There are simply too many jurisdictional variables. However, there are still some basics that cops should remember if they are in the hot seat.
So here it goes . . .
If you wonder whether you need an attorney, you probably do. You may dislike lawyers, but one advocating your defense might become your best friend.
Don’t lie. If the alleged offense isn’t enough to terminate your services, lying is. Moreover, do not lie for your partner. It would be a bummer to get fired for lying while your partner keeps his job.
If your department asks if you’d like to resign in lieu of termination, it is probably a better option, but consult your attorney.
When they read your Miranda rights to you, DO NOT waive them.
It’s usually a bad idea to offer information in the form of a question regarding topics that are not previously discussed. I.e. do you plan to search my locker? Does our policy prohibit using steroids? Did you interview the stripper, Bambi?
Be sure you are given an order to provide incriminating information before doing so. While you can refuse to incriminate yourself under Miranda, your employer still has the right to compel answers under threat of termination due to insubordination. If it is a major offense, request an order before falling on your sword. Furthermore, answer questions succinctly. Do not offer unabated narratives. However, do not leave the interview with exonerating information left unsaid either.
As the subject officer, expect to be interviewed last. As a result, the investigator will likely know the answer to most questions before you answer.
Your attorney cannot change facts. There is no magic wand issued in law school enabling him or her to abracadabra events out of existence.
Learn your rights BEFORE you land in hot water. In California, the police officer’s Procedural Bill of Rights (POBR) are covered under Government Code 3300-3313. We try to drill these rights home to our officers, although many remain in the dark. Your state probably has something similar.
Most patrol officers cannot answer a majority of the questions that follow. Yet they will impact your career if/when you are accused of misconduct. As a result, you should probably do some homework or talk to your union/association representative while seeking answers or guidance:
- What statute governs your rights as a police officer?
- When do the provisions of the act apply?
- How should you be notified that you’re a subject of an Internal Affairs investigation?
- What kind of advance notice is required prior to an interview?
- What materials will you be entitled to review prior to the interview?
- Are the ground rules for the interview codified? In other words, how many investigators can participate in the interview, are they prohibited from threats and intimidation, etc.
- Are you authorized to record the interview?
- Will you be provided with a transcript if they request a follow-up interview?
- Is there a standard admonishment that includes Miranda as well as an order to compel a statement?
- Can you be charged with insubordination for refusing to answer questions once compelled?
- Is there a statute of limitations regarding policy violations?
- Do you have a legal right to read and sign adverse comments placed in your personnel file?
- Can your organization compel a polygraph?
- Do you control the release of your photograph to the press or Internet?
- Are there certain job classifications within your agency that allows them to compel personal financial disclosures?
- Can your locker or storage space be searched without your presence or prior notice?
- What due process protections are in place? I.e. who imposes discipline; how is it appealed?
- Are you allowed to have a representative present (attorney or union rep.) during the preliminary interview, follow-up interview, final hearing, or appeal?
- Is your organization allowed to release your name along with findings to the press?
- What reports are you entitled to see once discipline has been proposed?
- If there is a criminal investigation, how does this affect the ongoing Internal Affairs investigation?
- Will your local prosecutor ask to see your administratively compelled statement even though it cannot be used against you in criminal court?
- What are the variances in the disposition for the IA? I.e. Unfounded, Exonerated, Not Sustained, Sustained. Do you know the difference?
- Does you policy apply to non-sworn personnel?
- Is a negative comment in a performance evaluation deemed punitive action?
- Is there a remedy for a negative comment in an evaluation?
- Do your specific police officer protections apply to probationary employees or recruits in the academy?
- Does your agency compel a blood or urine sample following a critical incident? I.e. OIS or fatal traffic collision.
- How long will your agency maintain personnel complaints?
- Are police officer personnel records confidential in your state?
This list of questions probably looks imposing to the average officer on the street. However, the more you become familiar with the statutes in your jurisdiction that covers these issues, the more confident you’ll be if/when it becomes relevant.
Furthermore, if you are a first line supervisor, this information will come in handy when handling officers who’ve gone through a traumatic incident. Not only that, but having this knowledge may keep an overzealous IA investigator on the rails.
Do not get legal advice from the guy who is constantly in trouble. His knowledge of the process can be misleading. This is probably why he’s been in trouble so often.
Take advantage of your rights. For instance, if your state allows you to record the interview, do it.
Finally, know who to call for legal representation. Place the phone number to your legal defense rep/attorney in the address book on your cell phone.
– Jim McNeff, editor-in-chief, Law Enforcement Today . . . and assigned to handle major Internal Affairs investigations for five years during a 30-year-career.