Possible consequences of a police officer volunteering to serve as a defense witnesses in a criminal matter
Green v Philadelphia Housing Authority, 105 F.3d 882
Sometimes a police officer is asked to volunteer to be a defense witness at a criminal trial or at a preliminary criminal proceeding. The Green decision explores a number of issues that could arise when a law enforcement officer agrees to serve as a witness for a defendant in a some aspect of a criminal proceeding and the possible consequences of such participation.
Donald Green, a police officer for the Philadelphia Housing Authority, appeared at a bail hearing but did not give testimony. The authority later transferred Donald Green from special drug enforcement duty to regular patrol duty.
Green contended that his transfer constituted unlawful retaliation for his participating in a protected First Amendment activity. He sued the Authority and a number of his superiors. He failed, however, to persuade the U.S. Circuit Court of Appeal, Third Circuit, that his rights had been violated.
Green had agreed to serve as a character witness for Herbert Keller, the son of a long time friend. He sought and obtained approval to do so from his superiors, provided he participated "during his lunch hour and in civilian clothing." When Green appeared at the hearing, he learned that the charges pending against Keller "included organized crime activity in connection with the Stanfa crime organization." Green told Keller he could not be associated with the case and left the hearing without testifying.
Conceding that there was no information, or even any suspicion, that Green was involved with organized crime, PHA claimed that his transfer was nonetheless justified. It explained that Green was reassigned "in case there was anything where [the Housing Authority Police Department] might be embarrassed . . ." and because it "was right for the organization."
The Court, applying the "Pickering Pickering U.S.
a. His court appearance must constitute "speech ... on a matter of public concern;" and
b. The public interest favoring his expression "must not be outweighed by any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees."
The Circuit Court decided that a public employee's appearance as a witness, even in the absence of actual testimony, is "speech" under Pickering
Although Green satisfied both of these requirements according to the Court, this did not prove sufficient for him to win his appeal. The question as to whether Green's free speech interest in testifying as a character witness is outweighed by any injury the speech could cause to the interests of the Housing Authority Police Department as the employer proved to be the critical element in the Court's analysis.
On this issue the Court concluded that "if Green's court appearance could potentially disrupt the work of the Housing Authority Police Department, and this potential for injury outweighs the public's interest in Green's speech, then judgment for the Authority is proper." The Court agreed with the district court's ruling in the Authority's favor as a matter of law. The District Court had decided that Green's appearance at the bail hearing injured PHA's interests in minimizing departmental disruption and maintaining an environment of trust and security.
The Circuit Court held that the fact that Green appeared as a witness at a bail hearing in contrast to serving as a witness at a trial was not compelling when compared to the interests of the Housing Authority Police Department as an employer to:
a. fight drugs and crime successfully;
b. protect the safety of its officers and other members of the community;
c. foster trust and confidence among its officers and between its officers and other law enforcement drug units; and
d. protecting the Housing Authority Police Department's reputation.
The Court rejected Green's argument that he should not be held responsible for creating the potential disruption because he followed departmental procedures and testified only after receiving express permission to do so from his superiors.
Significantly, the Circuit Court held that a public employee in a sensitive position like Green's cannot turn a blind eye to the possible consequences of his voluntary testimony. The responsibility must lie with Green to investigate the nature of the criminal charges, and to bear any risks associated with his voluntary court appearance.