by Douglas Gutscher, POAM Assistant General Counsel
We represent nearly 12,000 law enforcement officers or related public employees across the State of Michigan. Each year there are a varying number of critical incidents across the State. Critical incidents include the discharging of a firearm, death in custody, an allegation of assault, and other miscellaneous internal or criminal investigations. A surprising number of these investigations and incidents go unreported to the local union officials, the POAM business agents (and, in turn, the POAM legal staff). What is most alarming is the number of cases in which an officer neglects to assert their constitutional and statutory rights during the course of these investigations and incidents. In my former position as an Assistant Prosecuting Attorney, I was involved in the investigation of public officials. With POAM, I, along with the rest of the legal staff, have defended police officers across the state in various criminal investigations and cases. General Counsel Frank Guido and the rest of the attorneys with POAM have appeared in various forums across Michigan, including Federal court proceedings. This experience provides us with the expertise and knowledge to handle the cases unique to the law enforcement officer. There is a reason why the attorneys here work exclusively for POAM. It is so you can be comfortable in dealing with attorneys who are experienced, competent and familiar with the unique issues of law enforcement officers. We have chosen to work for you and encourage you to utilize our experience when necessary. Recently we have noticed an influx of officers not requesting either union representation in internal matters or even attorneys during the course of criminal investigations. In a few extreme cases, officers have even ignored the advice of their union representatives (or counsel) and made unprotected statements to investigators. Ultimately, whether to make a statement during the course of an investigation is an individual decision. That decision, however, should only be made after careful consideration of all the facts and circumstances. There are no absolutes and there are always ramifications for the choices that you make, but you should always make an informed decision. It is imperative that when you are approached regarding an internal investigation that you explicitly request a union representative. This will, at the very least, ensure that you have a witness present to document any conversation that occurs. Remember, regardless of what your employer says, you have rights. These rights are in place to protect you. You should not be embarrassed or intimidated to invoke your rights. In a criminal investigation, you should always speak with counsel before meeting with investigators. You should not provide any statements without the advice of counsel. These investigations are not to be taken lightly. They are serious matters and can have serious ramifications. Your career, reputation, and in many cases, your very ability to provide for your family, is at stake. Do not be careless in dealing with these investigations. If you are a member of the POAM Criminal/Civil Plan, call and speak to one of us. It is why we are here. Each case is unique, but we have experience dealing with various offenses, from life felonies to ordinance violations. If you do not call us, we cannot assist you. It is important to remember that your police reports are statements. They can and, if necessary, will be used against you in a criminal prosecution. Please use caution and common sense when writing a report involving a critical incident. When in doubt, make the call to the business agent and let us assist you. Please keep in mind that it is you who must assert your rights. Do not be passive and do not be bullied into making unprotected statements. The law is on your side. The United States Supreme Court in Garrity v New Jersey stated that officers are not entitled to a watered-down version of the Constitution. Further, Michigan MCL 15.391 et seq., the Disclosure By Law Enforcement Officers Act, provides statutory protections regarding compelled internal statements. We all understand that there are consequences for your choices and actions. You have to live with the ramifications of your decisions, but they should be informed decisions. In your line of work, you see every day that bad things happen to good people. It should come as no surprise that you are not immune. Sometimes the protectors need assistance in protecting themselves.