In recent months, two cases have been brought to court in Louisiana that directly affect internal investigations and the records generated from those investigations. For many years, police administrations, civil service and internal affairs investigators have been looking for guidance when it comes to subject matter outside of the individual agency policy. Internal affairs investigations and records have proven to be a political hot potato. Nobody wants to bite the bullet and give information to the press, but if we don't, people and the press believe we have something to hide. If we do give out the information, then we are out the hang the officer, a no-win situation. In the decisions below, you will find that the courts have chosen reasonable paths on behalf of the individual police officer and the policing agency.
In William Marks versus New Orleans Police Department (No. 06-C-0575), a lawsuit was filed on behalf of an officer whose employment was terminated. In that lawsuit, it stated that the investigation exceeded the 60-day period to conclude an internal affairs (IA) investigation, as stated in the Police Officer Bill of Rights. The decision to terminate employment was upheld by the civil service commission but was later overturned by the Court of Appeals. This overturning had the effect of reinstating the officer and dismissing the allegations and investigation. However, this case did not die. It was brought before the Louisiana State Supreme Court. Justice Weimer stated in the decision rendered by the court,
"... although the statute provides, in part, investigation shall conclude within sixty-days, the statute does not contain a penalty provision. For reasons that follow, we hold where no prejudice is shown due to the delay and because the legislature has not established a penalty of dismissal statutorily, the court should not do so jurisprudentially."
All of that legal talk may sound a bit confusing and intimidating, but basically Justice Weimer appears to be right on target. Of course, the above is an excerpt of the entire decision rendered, but we can take a couple of good points from this passage. First, the courts have chosen to interpret the law as it was written and not write law from the bench. Second, if an internal investigation should take more than 60 days, and we know on occasion they do, so be it. The Police Officers Bill of Rights was written as a guide to aid administrations in internal investigations. It was designed to give agencies and officers something to fall back on, not to be a shield, but as a guide. If destined to be otherwise, it would have had a penalty attached to it for insurance.
Justice Weimer went on to say,
"... because the statute does not include a penalty and no prejudice has been demonstrated, summary dismissal of the charges is not statutorily mandated if the investigation is not concluded within sixty-days..."
In my mind, this quote is one of the most important passages of the decision. Investigations that proceed beyond the 60 day time period with the agency, investigation or investigator exhibiting no ill intent or preconceived notions will remain valid. However, if the agency, investigation or investigator are shown to have a malicious intent, then all bets are off. Basically, stay objective and impartial. Just for the sake of argument, the investigation in question started on November 12, 2002 and was concluded on January 13, 2003--just beyond the 60 day limit.
The other decision from Louisiana is in reference to public records requests directed at internal affairs investigations. The court's dissertation of events starts like this: