A recent decision by the Atlanta Police Department’s Office of Professional Standards involving my client James Hereford provides yet another example of the APD’s inability or unwillingness to discipline Atlanta police officers who violate the law, especially where Fourth Amendment issues are concerned.
This failure to impose appropriate discipline exposes the city to direct financial liability. Since the mayor and police chief seem unwilling to fix this serious and ongoing problem, perhaps it is time for the City Council to step in.
Over the past few years the APD has demonstrated a pervasive pattern of failing to discipline officers who violate the law.
This pattern includes the failure to discipline a single one of the dozens of officers against whom the Atlanta Citizen Review Board has sustained a complaint; the failure to discipline numerous officers whose unlawful conduct caused the city to pay legal settlements or judgments; the failure promptly to discipline or dismiss officers arrested for crimes ranging from drug possession to DUI; and the failure to discipline any of the officers who violated the law during the Eagle raid in September 2009.
Another example involves several Atlanta police officers who were cited by a federal judge on Oct. 15, 2009, for being “less than candid” in sworn testimony; under the regulations of the Atlanta Police Department a truthfulness violation requires dismissal, yet these officers are apparently still on the police force.
Other cities take a different approach: A Smyrna police officer recently was arrested for possession of marijuana, and he was dismissed the very next morning; an Atlanta police officer was arrested for possession of marijuana three months ago and, though suspended, has yet to be dismissed.
The decision regarding James Hereford’s internal affairs complaint is typical of this problem. A police officer encountered Hereford walking down a public stairwell at Underground Atlanta on his way back to work after eating lunch at the food court. The officer had not observed Hereford do anything suspicious. In fact, according to the officer’s own sworn statement, he simply “was not expecting anyone to be there when I opened the door” to the stairwell.
But despite having no reason to suspect Hereford of any criminal activity, the officer raised his fist to Hereford, frisked him for weapons, searched the contents of his pockets, took his cellphone and scrolled through the call log and text messages, and handcuffed Hereford and took him to a police station for questioning. Hereford was released a few hours later, and no charges were ever filed against him.
On April 14, the Atlanta Citizen Review Board voted unanimously that the police officer should be disciplined for false arrest and false imprisonment.
But despite multiple constitutional violations established by the officer’s own sworn statement (including unlawful frisk, unlawful search and unlawful arrest), the APD’s Office of Professional Standards exonerated the officer of any wrongdoing.
In fact, neither the officer himself nor internal affairs even seemed to understand that Hereford was arrested at all; they seem to think he was merely “detained pending further investigation,” despite clear Supreme Court cases that establish that transporting a person to a police station for questioning against his will is virtually the definition of an arrest, which requires probable cause.
The failure to discipline officers for violating the law sends a message to other officers that such behavior will be tolerated, and it actively encourages future misconduct.
Even more directly, courts have held that a city’s failure to discipline police officers is itself a basis for financial liability in future lawsuits.
As one court said, a city cannot shield itself from liability simply by having an internal affairs procedure in place: “The investigative process must be real. It must have some teeth. It must answer to the citizen by providing at least a rudimentary chance of redress when injustice is done. The mere fact of investigation for the sake of investigation does not fulfill a city’s obligation to its citizens.”
If Atlanta is serious about requiring its police officers to obey the law — both to protect the rights of its citizens and to reduce the cost of avoidable lawsuits — we must reform our broken internal affairs system and begin to discipline officers who break the law or fail to tell the truth.
Changing the decision in the Hereford case would be a step in the right direction, as would disciplining officers responsible for the now 18-month old Eagle raid, but even that would only be a beginning; if we expect our police officers to obey the law and tell the truth at all times, we must promptly, fairly and consistently discipline the few who do not.
Daniel J. Grossman, an Atlanta attorney, represented the Eagle bar and its patrons in a lawsuit against the Atlanta Police Department.
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