Police Chief Cannot Be Sued For False Testimony In Arbitration Hearing

Dennis Rolon was a police officer in the Town of Wallkill, New York. Rolon was the target of nine disciplinary charges involving 15 specifications arising from a series of events between May 10 and July 24, 2000. Rolon filed suit alleging that the Police Chief, Robert Henneman, had violated his constitutional right to due process. By way of settlement of the lawsuit, Henneman and Rolon agreed to submit the pending disciplinary charges to arbitration.

The disciplinary charges were considered during 14 days of arbitration. Henneman and Police Officer Ari Moskowitz provided factual bases for most of the charges against Rolon. During Moskowitz’s cross examination, the Arbitrator directed Moskowitz to produce his personal notebooks. Moskowitz left the hearing with the intention to retrieve the notebooks. He failed to return, and the Town refused to order Moskowitz to return with the notebooks. Because of Moskowitz’s actions, the Arbitrator struck his testimony in its entirety.

In a 60-page decision, the Arbitrator found that neither Henneman nor Moskowitz provided truthful or credible testimony, and that Henneman’s personal hostility towards Rolon motivated many of his actions. The Arbitrator found Rolon guilty of only three charges of misconduct and ordered two days’ suspension without pay. Rolon was found not guilty of the remaining charges and was ordered reinstated to the police force with full back pay.

Rolon then filed a lawsuit in federal court alleging, among other things, that Henneman’s false testimony during the arbitration hearing violated his right to due process. The federal Second Circuit Court of Appeals dismissed the claim.
The Court found that Henneman’s testimony was protected by “absolute immunity” – meaning that it could not provide the basis for a lawsuit even if intentionally untruthful. The Court observed that “the Supreme Court has extended absolute immunity to police officers testifying at judicial proceedings on the grounds that without such immunity, a witness’s apprehension and subsequent damages liability might induce self-censorship, either by making witnesses reluctant to come forward in the first place or by distorting their testimony. The truth-seeking function of arbitration is no less robust than that of the judicial process itself. Because the nature of this arbitration was materially indistinguishable from that of formal judicial proceedings, and because Henneman performed the same function as his judicial witness counterpart, absolute immunity is attached to Henneman as a testifying witness at the arbitration hearings.”

Rolon v. Henneman, 517 F.3d 140 (2nd Cir. 2008).

This article appears in the June 2008 issue