SURVIVING AN INTERNAL AFFAIRS INVESTIGATION

It is always my pleasure to represent members of my former profession in these difficult times. Several years ago I began representing officers and civilian police employees in police department internal investigations. Most of these investigations involve departmental policy violations that usually, at worst, result in paper in the employee’s file. The employee’s supervisor or the department’s internal affairs division conducts these investigations. Most investigations don’t have long lasting consequences, with the exception of bruised pride. Most of these investigations don’t negatively affect the terms and conditions of employment or prohibit future employment.

However, there are more serious investigations involving major policy violations and criminal law violations. The investigations I have been involved in are in the South Florida area, Miami-Dade and Broward Counties specifically. Fortunately, I have been able to achieve favorable or at least non-career damaging results for my clients. Recently as part of another investigation, I reviewed a couple internal affairs investigations where the outcome for the officer was not so favorable. It is these cases that I would like to make some observations on, which may assist someone in surviving an internal affairs investigation. I am familiar with how internal affairs investigations are conducted in my local area so any information herein may not be applicable to your department. These observations are general in nature and do not constitute a complete guide for dealing with all internal affairs investigations.

OVERVIEW OF AN INTERNAL AFFAIRS INVESTIGATION

An internal affairs case starts when someone makes a formal complaint or provides information that an employee is engaged in some type of prohibited conduct. Fortunately, at least in this part of the state, internal affairs divisions don’t seem to be proactively looking to initiate cases against officers the way they do in other regions. If the initial complainant is unable or unwilling to make a formal complaint the Chief or Police, Sheriff, or other management level employee will usually be deemed the complainant.

The case will be assigned to an investigator and then we are off to the races. In Florida the department has 180 days to complete the investigation but there are several circumstances that toll or stall the 180-day time limit. These circumstances are listed in §112.532, Florida Statues (2015), Law enforcement officer’s and correctional officer’s rights. I suggest you review and become very familiar with the Bill of Rights as soon as you are notified you are the subject of such an investigation.

The subject officer is usually the last person interviewed in the investigation. If the investigation involves allegations of criminal conduct it will be reviewed by the State Attorney’s Office for a determination on the filing of criminal charges. If the State Attorney declines to prosecute the officer a disposition will be conveyed to the investigator informing the department to handle the matter internally. At this point you will receive your invitation to visit internal affairs to make a statement. This may be the first time you are aware an investigation is being conducted. As soon as you learn you are the subject of such an investigation contact your attorney or representative of your choice, don’t wait until the day before the scheduled statement.

The investigations I am discussing here are administrative investigations, if your internal affairs statements begins with “you have the right to remain silent,” I suggest you do remain silent and contact a criminal defense attorney immediately. Remember, you have the right to remain silent, you must also muster the ability to remain silent.

YOUR STATEMENT

When your day comes to sit across the table from the internal affairs investigator remember that internal affairs investigators are trained to do their specific jobs just like you are and they go to specialized schools too. The investigator knows beforehand what questions are going to be asked and usually they are prepared with a list of questions including follow-up questions. These questions are specific and narrowly tailored to the issues the investigator has identified as violations, or they should be. The investigator will know the answer to most of the questions they ask and they will be looking for you to give conflicting answers.

The statement will be recorded and you will be read an opening investigative statement by the investigator. DO NOT waive your right to anything, make sure the investigator is following the rules. MOST importantly, do not waive your right to review all the evidence and witness statements the investigator has. I don’t care if there are 50 witness statements and 300 pages of documents, review them all carefully. Ideally, the investigator will provide you with a copy of their file before your statement but I’ve seen plenty of cases where the first time the officer saw any evidence is when they sat down to give their statement.

After you’ve reviewed the entire case file, try to anticipate the questions you are going to be asked and your responses. If your attorney is experienced in internal affairs investigations he or she should have a good idea of the types of questions you’re going to be asked. Think carefully about your response, take your time to think about the question before beginning to answer. Do not try to “wing it” when you walk in for your statement. In administrative investigations, the investigator has wide latitude during questioning and you don’t want to provide any more information than what the investigator asks for. I have seen a few cases where officers brought forward damaging information the investigator was not aware of. Also, you will be told that anything you say cannot be used against you criminally with one huge exception, perjury. You’ll also be informed that if you refuse to answer or cooperate with the investigation, you will face discipline up to and including termination.

So now you are sitting there with the internal affairs investigator, and hopefully your attorney, and here come the questions. The questions should be narrow in scope, so therefore, your answers should be equally as narrow. Ideally, the questions should be yes or no type questions, if so, try to stick to yes or no answers. Avoid answers such as “I do not recall at this time.” Internal affairs investigators are trained to key in on such responses. Sometimes questions cannot be answered clearly with a yes or no and require an added explanation, keep your explanatory answers to a minimum. Going off on a tangent here can be really dangerous, so don’t give an internal affairs investigator more ammunition. The last couple investigations I reviewed involved an officer that went off on a lengthy explanation of why something was done and therefore was not a policy violation when just the simple act of doing what the officer did was a violation in itself. If the violation you are accused of states you can’t do A unless B, don’t try to make a C into a B circumstance.   When the investigator has overwhelming evidence and documentation, including collaborative witness testimony, you did something in violation of a policy and you deny doing it, the sharks will begin to circle. In the investigations I just reviewed, you could tell the exact point in the subject officer’s statement where the officer began lying. The change in voice, tone, fluctuation and character were as obvious as could be. In response, the internal affairs investigator led the officer down the yellow brick road to termination. In other words, don’t try to lie your way through a statement because if the investigator can tell you’re lying they’ll pounce on you.

THE ROLE OF THE ATTORNEY

In administrative investigations, the role of your attorney is important.   During the actual statement, objections and arguments will get you nowhere fast so the best strategy is to thoroughly prepare before the statement and clarify any issues that need clarifying at the end of the statement, on the record. Although there is no formal procedure for your attorney to ask questions at the end of the statement, I have never been denied the opportunity to ask clarifying questions of my officer. Actually, I never ask if I can ask questions, I just start asking them when the investigator appears finished, the investigators have all, thus far, acquiesced. Your attorney should sit down with you and prepare you for your statement. I don’t mean the morning of your statement either, but long before the statement so if there are any issues that need looking into, they can be done well before the statement. The way I prepare my officers is that I get a full copy of the investigative file, outline it, identify the issues the investigator is focusing on and try to formulate a list of questions I would ask if I was the investigator. If necessary, I also consult a colleague who was an internal affairs sergeant for years. I’ll schedule a meeting with my officer well in advance of the statement and go over all the anticipated questions and the case evidence with them.

In the investigations I just reviewed, the officer’s attorney, a union attorney, said virtually nothing during the officer’s statement and it was obvious the officer was ill prepared to give the statement.   The key to surviving your internal affairs investigation is to be well prepared. Good luck!

Patrick J. McGeehan, Esq. is a criminal defense and family law attorney in Miami, Florida.  He has over 20 years of law enforcement experience in the South Florida region.  Mr. McGeehan was a police instructor in several areas as well as a court certified expert witness in D.U.I., speed measurement, accident reconstruction and other law enforcement fields.  Mr. McGeehan has been featured on numerous national news networks, radio and print media regarding his legal work.  He can be reached at the Law Offices of Patrick J. McGeehan, P.A., One Biscayne Tower, 2 South Biscayne Boulevard, Suite 3760, Miami, Florida 33131, 305-577-4933, patrick@pjmlawyer.com; www.pjmlawyer.com.