Not Unconstitutional To Bar Recording IA Interviews

This article appears in the January 2023 issue of our monthly newsletter, Public Safety Labor News.

Cincinnati residents may lodge police misconduct complaints with the City’s Citizen Complaint Authority. The Authority consists of a team of investigators, an executive director appointed by the city manager, and a seven-person board appointed by the mayor. In response to a complaint, the Authority conducts an investigation that usually includes interviews with the relevant officers, any com­plainants, and any other witnesses.

The officers, as a condition of employment, are required to participate in such investigations. If the Authority interviews an officer, he or she may bring a representative from their union to the interview. The Authority video records the interviews. After the Authority finishes the investigation, it prepares the findings and recommendations for the Board’s review. The Board then holds a hearing and approves or rejects the findings and recommendations. The report later becomes available to the public.

In the summer of 2021, Sergeant Daniel Hils, the President of the Fraternal Order of Police Lodge 69, reported troubling behavior with respect to some of the Authority’s investigations. Hils alleged that Investigator Ikechukwu Ekeke, in recording an officer’s interview during an investigation, selectively turned off the recording when the officer made exculpatory statements. Another time, Hils saw Ekeke threaten an officer before the interview.

Hils decided to make his own recordings of the interviews, which he planned to keep and, if appropriate, share with others. In July 2021, he tried to record an interview of Officer Charles Knapp, whom he represented. The Authority investi­gator asked Hils to stop the recording, Knapp refused, and the investigator ended the interview. A day later, Ekeke, along with the Director of the Authority, Gabriel Davis, formally put in place a policy that prohibits officers or their representatives from recording the interviews. If an officer refuses to stop the recording, the Authority reserves the right to end the interview and, if need be, to complete the investigation without it.

Hils and three affected officers sued Ekeke, Davis, and the City of Cincinnati for violating their free speech and due process rights. Hils and the officers sought damages and declaratory and injunctive relief under § 1983 of the Civil Rights Act. Lodge 69, meanwhile, filed an unfair labor practice charge against the City arising from the same conduct. This charge led to a partial settlement agreement, in which the City agreed to completely record all interviews.

A federal Court of Appeals rejected the free speech lawsuit. As the Court put it: “Start with the text of the First Amendment. The relevant language – guaran­teeing ‘freedom of speech, or of the press’ – does not by itself cover this conduct.

A prohibition on recording speech is not a prohibition on speaking.

The Union representative, Hils, indeed freely spoke about the City’s recording policy and made some headway in changing it.

“Based on his objections as well as the unfair labor practices charge, the City of Cincinnati changed part of its policy, requiring investigators to record all the interviews, not bits and pieces of them. Nor may Hils or the officers seek protection, at least as a textual matter, as members of the press, or as individuals engaged in any such activity. They have not shown that they operate a ‘press,’ that they engage in such activity, or that they otherwise fall within any special Press Clause protections.

“One risk of permitting the release of, say, a videotaped interview in the midst of an investigation ought to reso­nate with the claimants. It’s the risk that only part of the interview will be shared with the media or that the media will use only part of the video during the nightly news. If it is unfair to an officer charged with misconduct to turn a recording on and off during an interview of him, it is equally unfair to the integrity of the investigation and the objective of public confidence in it to share bits and pieces of the investigation with the public before the full investigation ends.

“The City’s desire to prevent re­cordings of government investigations during an ongoing investigation does not violate the First Amendment. In the case of an interview of a police officer, the City of Cincinnati permits only a few interested parties into the Authority’s investigative interviews: the Authority’s members, the police officer, and his or her union representative. It has decided, quite fairly, not to open these interviews into allegations of police misconduct to the public, and one would expect the officers and their union representative to appreciate why. Hils and the officers may wish to record the interviews for ‘posterity’ and ‘possibly’ to ‘release’ them ‘to conventional and non-conventional media.’ The Authority has legitimate in­terests in maintaining order and fairness during its interviews by ensuring the ongoing interviews are not selectively broadcasted, by ensuring the integrity of the investigation, by protecting the subjects of the investigation from unfair and precipitous public criticism, and by trying to prevent other subjects of the investigation from knowing all that was said in prior interviews.”

Hils v. Davis, 2022 WL 16731082 (6th Cir. 2022).

Also in the January 2023 issue:

  • Member Cannot Bring Bad Faith Bargaining Charge Against Union
  • Reasonable Accommodation And Cold Baths
  • Unsubstantiated Rumors Do Not Start Bill Of Rights Statute Of Limitations
  • Firefighter Loses Free Speech Lawsuit Over Voicemail
  • Due Process And Changing Disciplinary Charges
  • Back Pay Can Include Overtime
  • Court Upholds Arbitrator’s Award On Leave And COVID Quarantine
  • Officer With Bipolar Disorder Loses ADA Claim
  • Corrections Officer Entitled To ‘Assault Pay’
  • No Obligation To Bargain Over Selection Of Fire Chief
  • Q&A
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