Constitutional Issues in the Criminal Prosecution of Law Enforcement Officers

• Publication year: 2004
• Pages: 55

33 Colo.Law. 55 Colorado Lawyer 2004.

2004, March, Pg. 55. Constitutional Issues in the Criminal Prosecution of Law Enforcement Officers

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55

Vol. 33, No. 3, Pg. 55

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page 55]

Specialty Law Columns
Criminal Law Newsletter
Constitutional Issues in the Criminal Prosecution of Law Enforcement Officers
by J. Michael McGuinness

This column is sponsored by the CBA Criminal Law Section. It features articles written by prosecutors, defense lawyers and judges to provide information about case law legislation, and advocacy affecting the prosecution, defense and administration of criminal cases in Colorado state and federal courts.

Column Editors:

Leonard Frieling, a criminal defense attorney in private practice, Boulder - (303) 449-0092, lfrieling@lfrieling.com; Morris Hoffman, a judge for the Second Judicial District Court, Denver

J. Michael McGuiness

About The Author:

This month's article was written by J. Michael McGuinness, Denver, an attorney licensed in North Carolina, Massachusetts, and the District of Columbia. McGuinness is litigation counsel for law enforcement officers in a wide variety of criminal, civil, and civil rights cases in state and federal trial and appellate courts - (303) 296-3292, jmichael@mcguinnesslaw.com.

Law enforcement officers often face multiple criminal charges for duty-related

misconduct. Officers also may be subject to charges involving civil, administrative, and personnel violations. This article discusses special rules that apply to these potentially complex disputes.

The conduct of police and other law enforcement officers is a controversial public interest topic throughout the United States.1 Following high-profile media reports of police conduct, everyone seems to have their own expert opinions about the propriety of officer conduct. The changing landscape of law enforcement in Colorado and throughout the country has resulted in more frequent criminal investigations and prosecutions of law enforcement officers.2

Criminal allegations against law enforcement officers for duty-related misconduct often present unique constitutional issues for the criminal justice system because of overlapping investigations and multiple charges. A number of special rules have emerged to govern investigations and prosecutions of officers.

This article examines some common issues in criminal litigation against police officers. These include constitutional issues arising from overlapping investigations, immunity, and interpretations stemming from Garrity v. New Jersey,3 as well as use of force concepts. The article also provides an overview of federal criminal charges pertaining to law enforcement officers, searches of officers' workplaces, and related matters.

Complaints Against

Officers

Law enforcement officers are attractive, high-profile targets for many kinds of complaints. They face indictments from multiple sources, including the U.S. Attorney General, the U.S. Department of Justice ("DOJ") and its specialized law enforcement prosecutions unit, U.S. Attorneys, State Attorneys General, special prosecutions units, and local prosecutors. The DOJ has a 71 percent success rate in prosecuting law enforcement officers charged with federal criminal civil rights violations.4

Law enforcement officers are subject to a wide range of potential state and federal criminal charges arising from routine law enforcement encounters and other duty-related conduct. Historically, officers have been subjected to criminal charges that arose from the criminal justice process itself, such as obstruction of justice, witness tampering, perjury, and related integrity crimes. However, recent trends suggest a greater likelihood of criminal prosecution in duty-related areas that historically have been handled in civil and administrative actions. As addressed in this article, police and other law enforcement officers are being increasingly subjected to criminal charges for alleged excessive force.

Colorado Laws

Affecting Officers

Law enforcement officer conduct is regulated through a maze of criminal, civil rights, civil, and administrative statutes and regulations. Colorado has enacted a plethora of criminal laws that potentially apply to almost every aspect of the law enforcement function.

Colorado's use-of-force statute, CRS § 18-8-803, is consistent with national norms of acceptable force. The nature of police work sometimes results in the loss of life, thus exposing officers to Colorado and/or federal homicide charges. Colorado officers may be charged with: (1) manslaughter, where they recklessly cause the death of another;5 and (2) criminally negligent homicide, where they cause death by conduct constituting criminal negligence.6

In addition to statutes that address traditional homicide charges, Colorado has enacted numerous general criminal conduct laws applicable to police officers. Several state statutes prohibit obstruction of public justice.7 Colorado also has enacted an additional layer of offenses that preclude various forms of abuse of public office,8 including misuse of official information, official oppression, embezzlement of public property, and other official misconduct offenses.9

CRS § 18-1-707 regulates the use of physical force in making an arrest or preventing an escape. These statutory standards are consistent with federal constitutional standards and provide that officers are

justified in using reasonable and appropriate physical force upon another person when and to the extent that the officer reasonably believes it necessary. . . .10

Colorado has long recognized the doctrine that officers may use deadly force based on apparent necessity, rather than actual necessity.11

CRS § 18-8-802 provides that officers have a specific duty to report the use of force by other officers.12 Failure to make a written report within ten days of the use of force constitutes a misdemeanor.13 Arguably, these kinds of reporting statutes are consistent with sound public policy. However, they are ill-defined and, thus, can present a minefield of problems for law enforcement officers.

Officers' Split-Second

Use-of-Force Decisions

Law enforcement officers are required to instantaneously evaluate and potentially employ deadly force against criminal suspects to combat apparent dangers to citizens, bystanders, fellow officers, and themselves. The Seventh Circuit Court noted, "[A]n officer oftentimes has only a split second to make the critical judgment of whether to use his weapon."14 In use-of-force cases, the central issue typically is whether an objectively reasonable officer could have reasonably believed that the force employed was appropriate.

The examination of a duty-related law enforcement incident with possible criminal implications necessitates a contextual analysis of instantaneous decision-making. A...