POLICE MISCONDUCT LAW - - - "Blue Code of silence"

[The new recruit] becomes aware that "nobody's perfect," and the only way in which
one can be protected from his own mistakes is to protect others. Among members of a
particular squad, this "no rat" rule has deep and meaningful roots. Violations of the rule
are met with swift (albeit informal) disapproval. Since all officers have at some time in
their career broken a rule or regulation, the conspiracy-like network of support remains
intact. The tacit norm is to never do something which might embarrass another officer.
To draw critical attention to a colleague is strictly taboo in the police world. On the other
hand, it is acceptable and often demanded that one cover for the mistake of another.
While citizen complaints are felt to be unavoidable occupational hazards, fellow officers
go to great lengths to insure such complaints against one of their squad members will
be ruled unfounded. The sergeant plays a critical role in this regard for he screens all
reports written by his men. If an account on, for example, an arrest report contains an
ambiguous phrase which could possibly be interpreted negatively by the court, or the
report fails to mention a detail (factual or otherwise) which might keep an officer (and,
by implication, the squad and the sergeant) out of trouble, he will have the man rewrite
the report until it is flawless in his eyes. fn1

Van Maanen addresses a phenomenon that virtually all observers and administrators of
police departments have known for many years. fn2 In 1936, a leading police administration
expert, August Vollmer, wrote: "It's unwritten law in police departments that police officers
must never testify against their brother officers."

fn1 Van Maanen, Kinsmen in Repose: Occupational Perspectives of Patrolmen.

fn2 See Chin and Wells, The "Blue Wall Of Silence" As Evidence of Bias and Motive to
Lie: A New Approach to Police Perjury, 59 U. Pitt. L. Rev. 233 (1999).

This code of silence does more than prevent testimony. It mandates that no officer
report another for misconduct, that supervisors not discipline officers for abuse, that
wrongdoing be covered up, and that any investigation or legal action into police misconduct
be deflected and discouraged.

Other participants in the criminal justice system abet this policy: prosecutors are highly
reluctant to indict police for their illegal acts, judges rarely disbelieve even incredible police
testimony, and allegations of police abuse are often the cause for more severe treatment of
the accuser.

Fortunately, a policy that is so entrenched and so pervasive cannot be hidden entirely

from public view, Former police officers, police administrators, sociologists, the media, and
the courts have at various times analyzed these aspects of police work. Often the disclosure
is dramatic. The film "Prince of the City," for example, portrays how the code of silence
dominated the New
York City Police Department.

The existence of the code of silence has been documented in litigation. In a case in
New York, an off-duty police officer shot his wife, causing her serious brain damage, and then
killed himself. She sued, alleging that her husband was not psychologically fit to carry a gun
and that the police department's program for detection of dangerous officers was inadequate.
Experts testified that the system was doomed because it relied upon fellow officers to report
symptoms of dangerousness and they simply refused to do so. The jury awarded the woman
substantial damages against the City of New York. The court of appeals affirmed, stating the
conclusion was justified by the problems created by the code of silence. fn3 A number of
police officers who have been subjected to adverse employment actions, or harassed by
other officers, because they have broken the code of silence have made successful claims
against their employers based on the municipal policy of tolerating the code. fn4 In an ironic
twist, one officer sued unsuccessfully, claiming a denial of equal protection because his
misconduct was exposed and he was denied the benefits of the code of silence. fn5

Law enforcement officials themselves have occasionally exposed the code of silence.
For example:

1. Queens County (N.Y.C.) district attorney investigating allegations of police use of

stunguns on suspects told the press that "some cracks" have developed in a "blue wall" of
silence. Police Commissioner Benjamin Ward said that prison sentences for convicted officers
might help to shatter "the blue wall of silence." fn6

fn3 Bonsignore v. City of New York, 521 F. Supp. 394 (S.D.N.Y. 1981), aff'd, 683F.2d
635 (2d Cir. 1982).
fn4 See cases cited at footnote 14.
fn5 Diesel v. Town of Lewisboro, 232 F.3d 92 (2d Cir. 2000).
fn6 NY Times, May 3, 1985, at 1.

2. The United States Attorney for the Eastern District of Pennsylvania, in

recommending leniency for a police officer who testified in a police corruption trial, said:

But I don't think that the extraordinary cooperation alone would justify the
recommendation that I am making today. It is clear to the public and I think it is clear to
this court, that there is a custom that has developed within the Philadelphia Police
Department that Philadelphia police officers will acquiesce in the illegal and improper
conduct of their fellow officers and that when called to tell the truth, as is the duty of
every other citizen in this nation when called before a grand jury or questioned by lawful
authorities, that the Philadelphia police officer will remain silent. I cannot express
strongly enough how insidious and dangerous this practice is. Police officers exercise
extraordinary power over the lives of everyday citizens. They have guns, and are given
 the authority to kill based upon their own judgment as to when it is proper to use deadly
force. They can lawfully use physical violence in the execution of their duties, and even
when the use of such violence may be questionable, the benefit of the doubt is always
with the police officer, and that's the way that it should be. The code of silence must be
broken if the Philadelphia Police Department is ever going to have a chance to cleanse
itself of the sordid history represented by these prosecutions. Otherwise, seven years
from today, five years from today, two years from today, we will be staring in the face of
the same conduct that we are seeing here today. fn7

3. A former Florida police officer testified that he helped to cover up the fatal beating of
a black insurance executive in Mi- ami because of an unwritten code among police officers
not to "fink" on one another. fn8

4. Washington, D.C., police chief commended an officer who broke the department's
unwritten "code of silence" by reporting that a fellow officer had assaulted a defenseless
suspect. The chief also reported that the officer had been harassed by fellow officers as a
result. fn9

fn7 Philadelphia Inquirer, Feb 13, 1985.

fn8 New York Times, Dec 11, 1980.
fn9 Washington Post, Dec 16, 1983.

Just how deeply revelations of the code of silence have intruded on the public
consciousness is difficult to gauge. Most people still tend to accept police testimony as truthful
and police behavior as beyond reproach. Others are quite willing to believe that there are a
few "bad cops," but that the police generally are truthful to their law enforcement
responsibilities. Comparatively few understand the relationship of the code of silence to the
general dynamics of police abuse.

Despite a recent increasing recognition of the code of silence, the task of convincing a
jury of the operation of the code (and its applicability to a given case) remains a difficult one.
How can one persuade a jury that two, five, or ten officers, all of whom tell the same story,
and all of whom may appear sincere and honest, are not credible? What is the most effective
means of exposing and penetrating the "blue shield"? Should the attack be direct or should it
be more subtle, with proof by suggestion rather than explicit evidence?

Of course the police testimony may be vulnerable because of internal inconsistencies,

testimony of neutral observers, irrefutable physical or documentary evidence, or its generally
unbelievable character. In many cases, credibility will turn on these traditional factors.

There are, however, recurring situations that can only be explained by the code of
silence. If, in fact, a number of officers participate in, witness, or otherwise cover up an
incident of abuse, their testimony denying such involvement is a classic example of how the
code operates. In some cases, the facts may be so overwhelming that an argument can be
made that the officer's actions and testimony cannot be understood except as a direct result
of the code of silence.

An effective means of proving the code of silence is through the presentation of expert
testimony. Former police administrators and scholars in the field are qualified to testify
concerning the general theory of the code of silence and may be able to correlate the code
with the particular aspects of the case on trial. With regard to the general concept of the code,
the expert can testify, backed up by an impressive and growing body of literature fn10 and his
own relevant experience concerning the persuasiveness, meaning, and relevancy of the code
to police work and police testimony.

fn10 Skolnick & Fyfe, Above the Law: Police and the Excessive Use of Force (Free
Press 1993); Ahern, Police in Trouble (Hawthorne Books, Inc. 1972); Goff-man, Stigma
(Doubleday & Co. 1963); Maas, Serpico (Viking Press 1973); Neiderhoffer, Behind the
Shield (Doubleday Co. 1967); Reiss, The Police and thePublic (Yale Univ Press 1971);
Rubenstein, City Police (Farrar, Straus and Giroux 1973); Skolnick, Justice Without
Trial; Law Enforcement in a Democratic Society (John Wiley and Sons 1966);
Wittemore, The Super Cops (Stein and Day, 1973); Whyte, Street Corner Society
(Chicago: University of Chicago Press 1943); Wilson, Varieties of Police Behavior
(Harvard University Press 1968) Wright, & Lewis, Modern Criminal Justice (McGraw,
Hill 1978); Vann Maanen, Observations on the Making of a Policeman, 32 Human Orgs
408-18 (1973); Webster, Police Task and Time Study, 61 J Crim L Criminology & Police
Sci 94-100 (1970); Westley, The Police: A Sociological Study of Law, Custom Morality,
Ph.D. Dissertation at University of Chicago.

Expert testimony is clearly relevant to a case which involves a code of silence issue.
Plaintiff's theory may be that liability.

1. there was a police coverup;

2. that the officers are telling the same story because of the code; or
3. that the statements and actions of the defendants and others in the department
were molded to protect against

TRIAL OF THE CASE

The expert can explain why in the particular case all of the testimony may be similar,
and why the jury should not expect to hear conflicting police testimony. The evidence should
also be admissible to demonstrate the potential bias of police witnesses who testify for the
defense. Extrinsic evidence is admissible to show bias. Evidence of a witness's membership
in an organization that requires or encourages its members to lie for each other is admissible
and probative to show bias. fn11

fn11 United States v. Abel, 469 U.S. 45 (1984). U.S. v. Hankey, 203 F.3d 1160 (9th
 Cir. 2000), cert. denied, 530 U.S. 1268, 120 S. Ct. 2733, 147 L. Ed. 2d 995 (2000)
(police officer expert on gangs, including the gang involved in the case, allowed to
testify about code of silence among gang members). For a detailed discussion of using
the code of silence to demonstrate bias on the part of police witnesses, see Chin and
Wells, The "Blue Wall Of Silence" As Evidence of Bias and Motive to Lie: A New
Approach to Police Perjury, 59 U. Pitt. L. Rev. 233, 242 (1999).

Because the expert will testify about matters and facts which are not generally known to
the public and are part of police administration, a field of specialized knowledge, and
procedures, his testimony should meet the test of assisting "the truer of fact to understand the
evidence or to determine a fact in issue . . ." Fed. R. Evid. 702. fn12

fn12 See 11:7. See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982);
Bonsignore v. Police Dep't, 521 F. Supp. 394 (S.D.N.Y. 1981), affd, 683 F.2d 635 (2d
Cir. 1982); Thomas v. City of New Orleans, 687 F.2d 80 (5th Cir. 1982).

Even without expert testimony, counsel can develop certain evidence that will tend to
prove the code of silence. This is a matter which should be probed during discovery with all
police witnesses. Officer should be asked about the existence of the code of silence, both as
a general phenomenon and as to whether it is a problem in their department. Inquiry should
also be made regarding the officer's observations of the effects of the code of silence. For
example, has the witness ever initiated a complaint against an- other officer, or testified
against another officer in any criminal, civil, or administrative proceeding? Has any police
officer he knows done so? Does he think he would be concerned about get- ting support or
back-up in the future from other police officers if he were to testify against a fellow officer?
fn13

fn13 Exploration at a deposition of an officer's individual attitude toward the code of

silence may prove quite fruitful. In the example which follows, police officers had injured
several people at a demonstration. Virtually all of the officers, both defendants and
witnesses, who had been deposed had denied seeing any civilians struck or any
officers doing anything improper. A large number of civilians were, however, taken to
the hospital from the demonstration. At the deposition of one of the non-defendant
officers, the following information was elicited:

Q. Have you ever heard of something called the code of silence?

A. Yes.
Q. What is it?
A. Don't squeal on your friends. That's just what I get out of it. Loose lips sink
ships
Q. Have you ever reported an officer who was using excessive force
A. No.
Q. -or who was otherwise acting beyond his authority?
A. No.
 Q. Would you, if you saw someone using excessive force, report it?
A. To be truthful, I don't think so, no. That's what the code of silence is. I never
squeal on another guy.
Q. Is it your understanding that is how most members of the department would
react?
A. I'm only speaking for myself I couldn't say. * * *
Q. Now, [counsel] asked you some questions about the code of silence and you
indicated that speaking very frankly you didn't think you would report another
officer that you saw use excessive force.
A. That's correct.
Q. Given that, if we asked you here today in this proceeding about another officer
and whether that officer had used excessive force in this incident and you felt he
had, would you answer our questions honestly?
A. I don't think so, no.

The code of silence may also be a basis for proving municipal or supervisory liability. In
many police departments the code oper- ates to prevent officers from reporting abuses or
wrongdoings of fellow officers. fn14

fn14 Kinney v. Weaver, 301 F.3d 253 (5th Cir. 2002) (suit by police trainers whose
classes were boycotted because they testified as expert witnesses for a 1983 plaintiff;
court notes "invoking notions of 'conflict of interest,' 'personal loyalty,' and `principles of
cooperative responsibility'... [the defendants] appear to be employing euphemisms for a
`code of silence' prohibiting persons who work in law enforcement from speaking out
about misconduct on the part of others working in law enforcement"); Simon v.
Naperville, 88 F.Supp.2d 872 (N.D. Ill.) (police department tolerated code of silence
under which officers who reported misconduct were subjected to retaliation, and officer
was subjected to retaliation after reporting sexual harassment); Katt v. New York, 151
F.Supp.2d 313 (S.D.N.Y. 2001) (officer was justified in not making internal complaint
about sexual harassment due to fear of retaliation as a result of code of silence); A
number of police or corrections officers have filed suit for having been disciplined as a
result of making allegations of misconduct against other officers. See Jeffes v. Barnes,
208 F.3d 49 (2d Cir. 2000); Blair v. City of Pomona, 223 F.3d 1074 (9th Cir. 2000);
Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999); Breaux v. City of Garland, 205
F.3d 150 (5th Cir. 2000); Thomas v. City of New Orleans, 687 F.2d 80 (5th Cir. 1982).

Further, where citizens file complaints of misconduct, the investigations are conducted
in a manner to exculpate the police and to protect the officers and the department. This
combination encourages police to abuse citizens, prevents the department from properly
disciplining or training its officers, and is highly conducive to police cover-ups. As one federal
district court has ruled:

Due to a code of silence induced by peer pressure among the rank and file officers and
among some police supervisors, few--if any--formal complaints were ever filed by police
 personnel. Furthermore, when complaints were filed by citizens, little disciplinary action
was apparently taken against the offending officer. Instead, a standard form letter,
bearing Mr. Chapman's signature, was mailed to each complainant, assuring the
person that appropriate action had been taken by the Police Department, even if such
action had not in fact been taken. This tended to discourage followup measures by the
complaining citizen. Perhaps, Mr. Chapman's belief that it was better to take no
disciplinary action than to act and later be reversed by a review board was responsible
for this obviously inadequate solution. The end result was twofold: (1) Mr. Chapman's
procedures were highly conducive to "covering up" officer misconduct; (2) the Police
Director and many of his supervisors were totally insulated from knowledge of
wrongdoing by officers as a result of policies in effect during that period of Mr.
Chapman's relatively new administration. fn15

fn15 Brandon v. Allen, 516 F. Supp. 1355, 1357 (W.D. Tenn. 1981), as quoted in
Brandon v. Holt, 469 U.S. 464, 467 n.6 (1985) (affirming liability).

When plaintiff inquires at a deposition of supervisors as to the existence of a code of

silence, the supervisors face an interesting dilemma. To admit the code may be to make a
substantial admis- sion regarding liability issues in the case or, at the very least, one which
will undermine the credibility of the individual officers who are defendants. On the other hand,
to deny the existence of the problem in the face of the overwhelming evidence of it (and the
testimony of plaintiff's expert at trial) is virtually to acknowl-edge that the defendant has a
policy of failing to address a signif- icant issue of training, supervision, and discipline within
the department.

Proof that the code is so entrenched as to amount to a policy, practice, or custom of the
department, and that the police commissioner or municipal officials refuse to combat its
operation (or their ready acquiescence in its life in the department), should be sufficient to
establish liability under Monell v. Department of Social Services. fn16 Of course, the burden
on the plaintiff is not only to prove the existence of the code, but to demonstrate that it wasa
cause of the unconstitutional actions of the police. In all probability, plaintiff will require expert
testimony on this subject.

fn16 Morten v. Department of Social Servs., 436 U.S. 658 (1978). Sledd v. Linsday,
102 F.3d 282 (7th Cir. 1996) (error to dismiss municipal liability claim where plaintiff
alleged that city maintained a code of silence); McLin by and through Harrey v. City of
Chicago, 742 F. Supp. 994, 1002 (N.D. Ill. 1990). See 3:5.

In a death case, or where for other reasons the plaintiffs not available to testify, the
code of silence can impose a substantial obstacle to proving what happened. However, the
plaintiff isentitled to the inferences that might be drawn from circumstantial evidence. In
Walmsley v. City of Philadelphia, fn17 plaintiff died in police custody. Death was caused by
head injuries. Althoughthe plaintiff had been in a fight with a friend before he was arrested,
witnesses said they did not see head injuries. The court ruled that a reasonable jury could
draw the inference that the police had inflicted the fatal injuries.

fn17 Walmsley v. City of Philadelphia, 872 F.2d 546 (3d Cir. 1989).