PAX Centurion - January / February 2015

Page 26 • PAX CENTURION • January/February 2015 617-989-BPPA (2772) Legal Thoughts: Kenneth H. Anderson, Esq. Byrne & Anderson, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Protecting yourself from both the ignorant masses and your own police department W here did the good feeling go?As you all remember, in the aftermath of theApril 15, 2013 Boston Marathon bombings, Boston Police were given a standing ovation by throngs of people lining the streets as the police left the besieged section of Watertown where one of the bombers had been killed by his younger brother as the younger brother fled in a carjacked vehicle, and then was later arrested while hiding in a boat after a lengthy man- hunt. When the people needed police protection, the police’s response was amazing and earned due accolades for tremendous work. Boston police officers and EMTs were on the cover of Sports Illustrated, Time Magazine, and many other publications. They were honored at Fenway Park. They were heroes. Fast forward to November 24, 2014 and Ferguson, Missouri where a grand jury declined to indict a white police officer who had shot an unarmed black robbery suspect, and then fast forward to the ensuing aftermath from the December 3, 2014 decision of a Staten Island grand jury not to indict police officers for the death of a black individual who died during his arrest. Even though those two events had nothing to do with the City of Bos- ton or the state of Massachusetts, the good feeling was gone. People were marching in the streets claiming that Boston police officers have shot and killed too many unarmed suspects. I guarantee you that none of these protesters could name a single person shot by the police, nor could they describe the fact pattern surrounding any of the police shootings they were allegedly protesting against. Having sat with almost every officer involved in these police-involved shoot- ings over the past seventeen years, I can unequivocally tell you that each and every police-involved shooting was one hundred percent justified.Yet, these nitwits take to the streets and paint you all with a broad brush: they call you racist, trigger-happy, bullies, and their ignorant list goes on. They chain themselves to cement-filled barrels to block highways and protest over subjects they know little or noth- ing about. The hypocrisy is astounding. My favorite story is about a protester from Cambridge who was protesting police brutality when a Boston police officer performing crowd control commented (perhaps too loudly) to a fellow officer “here comes another clueless one now.” These protesters have every right to express their First Amendment rights, and that is what the protester was doing.Yet when the police officer, quite accurately, expressed his First Amendment right, he ends up at Internal Affairs. Their rights matter.Your rights do not. That is the way they see it. And sadly, that may be the way it is. Several weeks ago, I conducted a training session for the new BPPA House of Representatives, some of which covered how to prepare for and deal with Internal Affairs interviews. Although some of this may seem very basic, I thought it might be helpful to publish a portion of the outline I made for the House of Representatives so you can all be aware of some very simple yet important tips for dealing with your own Department as you defend yourself against them and some of the nitwits out there: Be prepared -- the most important thing about an Internal Affairs interview is to be prepared. Have the officer read their report several times before they are interviewed. Hopefully the report was well writ- ten so they have a solid foundation to begin with. Be truthful -- at the outset of every interview, officers are given a copy of Special Order 10-007, the “truthfulness policy.” This is the mechanism by which departments are now terminating officers they do not like -- by claiming they were untruthful. Almost everything is on video now too. Do not turn a non-termination case into a termina- tion case by lying. Be wary of what you say -- although your statement is currently being given to the Internal Affairs Division, your transcripts may be used in other forums: Produced to criminal defendants -- un- der case law, defense lawyers who follow a simple procedure can get your Internal Affairs interview transcripts. Produced in a civil lawsuit -- if an officer gets sued related to the ar- rest, the Internal Affairs interview transcripts will be produced as part of the lawsuit and the officer may well be cross- examined in federal court based upon what they told Internal Affairs. The Civilian Review Board (the COOP) has access to Internal Affairs interviews. Explain and justify your actions -- the way the interviews are generally conducted, there are preliminary questions and then the officer is given the opportunity to give a long narrative description of their actions before the investigator’s go back and ask specific questions regarding the incident. Be prepared to give this narrative explanation without any interruptions. Articulate the concepts of BPD Rules and Regulations -- dur- ing your interview, take the language or the concepts from the ap- plicable Rules and Regulations and use them to explain what you did. For example, say “I used the least amount of force necessary when I arrested the suspect” or “I was met with vigorous physical resistance so I deployed my O.C. spray.” This shows the investigators that you are aware of the rules, and if they go to discipline you, you can argue that you acted in accordance with their rules and their rules were bad. Cite to your training -- when articulating what you did, make sure you say that you did it in the manner in which you were trained. For instance, state “I took the suspect to the ground to handcuff him in the manner I was trained at the Boston PoliceAcademy” or “I gave a short burst of my O.C. spray the way I was trained at the in- service training.” If the Department does not like what you did, you can throw this back in their face and tell them that they trained you poorly, but you did what you were taught to do. See Protecting Yourself on page 33