Fifth Circuit Tells Bad Cop That Being Placed On The ‘Do Not Call’ List For Witnesses Does Not Violate His Rights

Legal Issues

from the 'being-a-cop'-is-not-a-right dept

If cops screw up enough, they may get blacklisted by prosecutors. These lists — known as “Brady” or “Giglio” lists (depending on jurisdiction) — inform prosecutors that they may not want to ask these officers to testify due to their long histories of misconduct.

Most lawsuits generated by cops appearing on these lists deal with the lists themselves. Defense attorneys are often denied access to these lists, preventing them from challenging testimony from cops even prosecutors feel are too untrustworthy to provide their insight in normal criminal prosecutions.

This lawsuit is an anomaly. It’s being brought by Manuel Adams, an officer who managed to ascend to the position of captain over his 18 years with the Harahan (Louisiana) Police Department. Louisiana is especially forgiving of its worst cops. So is the Fifth Circuit Court of Appeals, which is the appellate district most likely to award qualified immunity to rights-violating officers.

This decision [PDF] is an exception that proves multiple rules. First, there’s Captain Adams himself, who did enough bad things during his 18-year career that his previously unblemished record was blemished by Chief Robert Walker, who discovered a great many details about Cpt. Adams’ public service after taking office.

HPD Chief of Police Robert Walker (“Chief Walker”) determined that Adams was guilty of numerous offenses, including: (1) Conduct Unbecoming an Officer; (2) Unsatisfactory Performance; and (3) False Statement.

Captain Adams took full advantage of his rights as a law enforcement officer. He appealed this determination as allowed by state law. But this didn’t happen until Chief Walker forwarded Adams’ name to the county district attorney’s office, which added it to its “Giglio list,” marking Captain Adams as someone whose testimony wasn’t to be trusted.

Adams sued, claiming his inclusion on this list meant the end of his law enforcement career.

Adams alleges that an officer’s inclusion on the Giglio list is effectively a “death knell to a career in law enforcement.” Because the Giglio list is at JPDA’s discretion, a successful appeal by Adams would not force JPDA to remove his name from the list. Faced with no guaranteed way to get his name off of the Giglio list, Adams sued the City.

Adams overstates his case. First, being included on a prosecutor’s no-call list does not often end officers’ careers. Instead, it possibly encourages them to commit more rights violations, seeing as they won’t be called to testify and, given prosecutors’ steady refusal to turn over these lists to defense attorneys, their lack of input won’t make much difference to prosecutions.

Second, there shouldn’t be any “guaranteed” way to remove your name from a Giglio list. Nothing but several years of pristine public service should allow an officer to clear their name from these lists. Trust is easily destroyed. That it takes years to rebuild this destroyed trust isn’t a cause for action.

The lower court made a mess of this. While it ruled that the PD did not violate Adams’ due process rights by forwarding his name to the DA, it did rule that there was some sort of “right to have the job one prefers.”

It rejected Adams’s assertions that the City unconstitutionally violated his property interest because he was afforded due process when he exercised his right to appeal Chief Walker’s determinations. It then evaluated whether the City violated his liberty interests. Notably, it recognized Adams’s “liberty interest in his occupation as a law enforcement officer.” It reasoned that the Supreme Court supported its conclusion that Adams has a right “to engage in any of the common occupations of life.” Kerry v. Din, 576 U.S. 86, 94 (2015). It then held that the City violated his right by failing to provide him the “opportunity to be heard at a meaningful time and in a meaningful manner” before reporting his disciplinary charges to JPDA.

This is all wrong, says the Fifth Circuit. While there may be some common law right to not be prevented from obtaining a job, there’s no right guaranteeing your current employment, much less an eternally greased wheel ensuring you never face any difficulty whatsoever in carrying out your duties.

Here, Adams fails to establish that he has a liberty interest in his continued employment in law enforcement that is protected by procedural due process

That’s a fact. There is no constitutional right to employment. There are constitutional rights that prevent people from withholding employment, but there’s nothing in the law that guarantees a job for everyone.

Furthermore, there’s nothing on the record that suggests Captain Adams was unable to continue being employed as a law enforcement officer. He simply claimed that being placed on the Giglio list was a “death knell” for his career. And he alleged that despite not being fired by his employer, which decided to retain his services despite his utter uselessness in criminal court.

Captain Adams made his “right to be a cop without being censured” pitch in the cop-friendliest court in the land. And he walks away emptyhanded.

We have never held that an individual has a liberty interest in his right to engage in a specific field of employment that is protected by procedural due process. Accordingly, we decline to recognize such an interest now.

If you’re looking for more anecdotal proof that cops think they’re on a higher plane than the people they serve, read that conclusion again. This cop argued he was constitutionally entitled to be a cop, even though it has been clear since the beginning of the free market system jobs are not guaranteed by the Bill of Rights. The Constitution, its amendments, and several federal laws may provide solace when you’ve been fired or denied employment for numerous reasons, but none of those things guarantee that public servants can sail through their careers without being disciplined or criticized.

This case was never going to go anywhere. That this cop persisted suggests there’s a sense of entitlement innate to law enforcement officers — one that actively encourages good cops to be bad, bad cops to be worse, and officers like this one to sue when they’re told they’re no longer worthy of the public’s trust.

Filed Under: 5th circuit, brady list, due process, giglio list, harahan, harahan pd, louisiana, manuel adams