What Is Law Enforcement Defense
Law enforcement defense is a niche within the legal field that specializes in representing current and former law enforcement officers in investigations, disciplinary actions, and criminal prosecution. It is separate from general criminal defense, which refers broadly to representation in criminal cases.
Attorneys with law enforcement defense experience, like those specializing in police misconduct cases like Robert Tsigler, typically have backgrounds in criminal prosecution, administrative law, or both. Their familiarity with law enforcement procedures and regulations allows them to more effectively advocate for their clients’ rights and interests.
Law enforcement defense lawyers understand that being accused of a crime can have serious consequences , even if you are innocent. Their expertise can help current and former law enforcement officers secure more favorable outcomes with less loss of income and reputation.
Disciplinary proceedings often take into consideration the accused officer’s training and experience when accusations are made. In administrative law, knowledge of police procedure is especially important for defense lawyers representing officers under investigation. Their expertise can make a significant difference in the outcome of these cases.
Frequent Legal Issues Police Officers Come Across
Whether acting in the line of duty or off the job, law enforcement officers face specific legal challenges. The most common is the criminal charge of excessive force, which may be brought during a valid arrest. Other allegations, such as official oppression, racially or civically motivated conduct, fabrication of evidence, deprivation of liberty, and malfeasance in office, may also occur during an arrest. A wrongful conviction or verdict can wreak havoc in your life, affecting wages, promotions, as well as your reputation, employment, and job performance. Unfortunately, you may not realize you need representation until it is already too late. For that reason, you should consult with a seasoned attorney at the beginning of any legal situation you face.
Methods in Which Defense Attorneys Shield Officers
Law enforcement defense attorneys employ a variety of strategies to protect their clients in a disciplinary hearing, give advise about statements that will be given to the press, and possibly seek protection from criminal prosecution, civil lawsuits, and administrative disciplinary action. Familiarity with rules and procedures, as well as the fact that law enforcement defense attorneys are typically former law enforcement officers, gives them an edge. Furthermore, their credibility within the law enforcement community ensures that they will be taken seriously when representing an officer’s interests and fighting to ensure that the officer’s rights are not violated.
When an officer is involved in a critical incident, it is crucial for them to invoke their Miranda rights as soon as possible which will immediately begin to protect their rights under the Fifth Amendment to the United States Constitution against self-incrimination. Miranda rights are triggered when it is likely an officer is going to be arrested or he or she is taken into custody and then questioned about a crime. The officer can invoke his or her rights by asking for an attorney to be present and asserting the right to remain silent.
A defense attorney will often advise a law enforcement officer to not give a statement without first consulting with a defense attorney. The attorney can then prepare the officer in advance of the questioning or interview so they know what information is going to be presented to them and determine the best strategy for how their testimony should proceed. A defense attorney will know whether the officer should remain silent, what answers the officer should give to questions, and how to assert the officer’s constitutional rights. In addition, the attorney can represent his or her client if he or she is called to testify in a criminal case.
A defense attorney will assist a law enforcement officer to assemble evidence, research the law, and prepare for a personnel investigation or administrative hearing. The attorney will make sure that his or her client receives the benefit of qualified immunity, that he or she is allowed to present a defense, and that the officer is treated with proper confidentiality and respect.
Selecting a Defense Attorney
When you have made the decision to retain a law enforcement defense attorney of your choosing, there are a number of factors to consider in making your choice. First, consideration should be given to the attorney’s experience in a particular field. In other words, is the attorney familiar with and has he had experience with the offenses or issues with which you are charged? Is the offending agency, department or unit one with which the attorney is familiar and has worked? Secondly, is the attorney experienced in prosecuting cases in the appropriate administrative forum, as well as participating in any federal or state court litigation that may need to be pursued in order to get the best possible results for his clients? Third, is the attorney’s approach to the litigation one which coincides with the individual officers, their goals , and their comfort level with how litigation should be handled? Fourth, does the attorney have a history in the civilian community, which allows him to have been exposed to any number of people whose expertise will result in more effective representation? For example, investigators who can be called on to review and evaluate other investigators work product, forensic experts who can be relied upon to validate or invalidate forensic work, and medical personnel who can be relied upon to advise on medical issues which may be present in a case or to review and evaluate medical records. Finally, is the attorney your lawyer and not subject to any loyalty to the offending agency, department, or supervisor? Is the attorney willing to go the extra mile, either through academic or trial preparation or advocacy before a judge, agency or jury?
Case Examples and Successes
Client success examples are from high profile administrative action and case law. I have represented police officers, accountants, engineers, marketing representatives, doctors, nurses, real estate agents, and firefighters. I was recently contacted in a high profile police officer criminal case in Omaha, Nebraska. Prior to being asked to assist, the police officer had been accused of several crimes one being that she had criminally assaulted her boss. She had been investigated by an outside agency and eventually left her position. Fortunately, she contacted us prior to being charged with a crime, allowing us a long runway in her defense. We flew to Omaha and were able to determine a pre-witness interview date. I secured a psychotherapist to clear our client for trial. I was given the privilege of conducting the trial in Omaha Nebraska as her retained counsel. Prior to trial I made a strong record against the Omaha Police Department alleging that they were violating the officer rights as a prisoner by restricting her access to "favored" food and spending money. It was a very successful pre-trial public relations campaign and the subject of news stories. After spending several weeks between Suiter’s office and Omaha we were prepared when we arrived. We had some of the top forensic experts retained to rebut the state’s evidence. We had taken depositions of witnesses in the case obtaining incriminating testimony and concealing scandalous conduct of state witnesses. The jurors were hot from the start and said they wanted to see police arrest records on the witnesses. When the prosecutor called our most damaging witness to testify, he admitted on the witness stand that he was a felon and still did not deny that she had been assaulted. We obtained a directed verdict of not guilty at the close of the state’s case and had our client released.
The Next Phases in Law Enforcement Defense
The future of law enforcement defense will be shaped as much by public perceptions as by legal developments. We live in an era of intense media scrutiny, where video in the form of cell phone recordings and news helicopter footage offer instant accounts from a distance. This proliferation of visual accounts lacks context and does not convey the full story, but it often drives public perception. Police departments and law enforcement officials often feel compelled — or even threatened — to take immediate action to satisfy the public’s call for justice against officers involved in controversial incidents. This may lead to premature conclusions couched in terms such as racism, brutality or excessive force. Breaching the chain of custody of evidence, making premature conclusions in the face of compelling and critical challenges to the official narrative of a "bad shooting" and other cases, has resulted in cases such as Freddie Gray in Baltimore, and Michael Brown in Ferguson, Missouri, turning into highly-publicized failures of law enforcement. The perception of the public in these instances has been well-established: that officers are protected by large internal investigations, are insulated from punitive actions, and often are rewarded for overreactions and failings that in any other walk of life would lead to termination.
It is not unusual that an officer involved in a shooting is suspended and placed on leave. The investigation into these incidents often involves as many as 15 agencies, and the process can take several months. Investigations and juries — even grand juries — have been known to return verdicts that may be unsupported by the facts of a case. This all produces an environment rife with tension and uncertainty for officers facing criminal prosecution for conduct that may be wholly justified. Officers have found themselves in the position of having to hire their own forensic experts to present their story. Not only have they had to develop their own legal defenses , they are often under siege from their own brethren — often using the threat of criminal prosecution or departmental discipline — to coerce them into remaining silent. There is always fear of losing their badge, benefits, pension or even their freedom.
The future of law enforcement defense involves the use of well-known experts to counter the narrative of the government. Experts will be essential to both attacking the premises of a prosecution and to explain to a jury why critical facts are properly evaluated in the context of totality. These experts must consider, evaluate, and be able to explain all the empirical data available in a given case: use-of-force continuum, unanimity in expert consensus, and the weight of experience of the accused officer. They should expect challenges on everything from fees charged for services to credentials and how much experience they have actually had in any given area. They should be thoroughly prepared for serious cross-examination as the government will do everything possible to gut the testimony. Officers need outside legal help who are familiar with this process, can anticipate the moves of the government and are not afraid to go shoulder-to-shoulder with prosecutors when required.
Another trend in law enforcement defense concerns a growing number of federal cases that are accusing law enforcement officials of violating federal civil rights statutes. A case that was decided in October 2014, Rodriguez v. City of Houston (U.S. 5th Cir. 14-20464), rejected several of these cases on jurisdictional grounds, seeking to limit the ability of plaintiffs to sue an officer or municipality under federal law. It is also worth noting that the recent U.S. Supreme Court decision in Kingsley v. Schkmert (U.S. 15-0340) has made it easier to establish constitutional violations in excessive force cases. The decision removed the question of subjective intent from the continuum that controls excessive force cases and replaced it with an objective standard. It is important for officers and departments to utilize law enforcement defense attorneys who are attuned to these new developments.