LCW Obtains Victory For Agency In Police Officer Termination Appeal

Category: Fire Watch
Date: Oct 4, 2019 11:05 AM

LCW Managing Partner Scott Tiedemann and Associate Attorney Amit Katzir defeated a former police officer’s lawsuit seeking to overturn his termination.

In this case, an officer injured himself on duty and filed a workers’ compensation claim.  The officer signed a waiver allowing the workers’ compensation division to obtain his medical records in order to determine his benefits.

The workers’ compensation division then sent the officer’s medical records to a physician to help them identify a diagnosis.  In reviewing these records, the physician discovered that the officer appeared to be taking a large number of opiates while employed as an officer and that he had failed to disclose multiple medical injuries on his pre-employment medical history form.  The physician was the same person who performed the officer’s pre-employment medical examination.  The physician opined, based on what the physician believed was a clear pattern of repeated, heavy opiate use, that the officer could not safely perform the functions of a police officer.  The physician reported his opinion to the law enforcement agency.

The agency subsequently initiated an investigation into the officer and interviewed the physician.  Thereafter, the physician prepared two reports for the investigation.  The reports outlined the physician’s opinion and provided the underlying medical records. The agency terminated the officer for: omitting information in his pre-employment medical examination; failing to disclose that he was prescribed thousands of opiate painkillers during his employment; and dishonesty in the internal affairs investigation.

After the agency’s legislative body upheld the termination, the officer filed a petition requesting that the Superior Court review the agency’s decision. The officer argued that the physician’s disclosure of his medical records violated his privacy rights and that the agency should not have considered the medical evidence.  The officer argued that the exclusionary rule, which generally applies to illegal searches and seizures in criminal cases, made his medical evidence inadmissible.

The agency argued that its acquisition and use of the medical records were privileged under the Civil Code and that the exclusionary rule did not apply.  While the court declined to address the privilege issue, it determined the agency did not need to exclude the medical records under the exclusionary rule.

The court first noted that there was a real question as to whether the exclusionary rule applied to the officer’s appeal hearing before the agency’s legislative body.  The purpose of that rule is to deter the police from violating the Fourth Amendment prohibition on illegal searches and seizures.  Moreover, courts extend the rule to civil proceedings only when the proceedings are so closely related to the aims of criminal prosecution that they are deemed “quasi-criminal.” 

Here, the court reasoned that the agency did not obtain the records from an illegal search.  Instead, the physician lawfully obtained the medical records through the waiver the officer signed.  While the physician’s decision to turn over the medical records to the agency may have gone beyond the original stated, workers’ compensation purpose of the waiver, the court concluded the agency did not receive the medical records through an unlawful search or seizure.

Second, the court reasoned that even if the exclusionary rule applied, it did not prohibit the agency from considering the officer’s records.  The court noted that when the exclusionary rule applies, courts use a balancing test to determine whether to exclude the evidence.  Although the agency used the officer’s medical records in the course of its investigation, the court found that the agency was justified in doing so under the circumstances. The physician independently raised concerns about the officer’s potential drug use.  The agency did not ask the physician to create the reports until after it interviewed the physician, and after the agency had developed the reasonable suspicions that: the officer was using drugs he did not disclose; and that the officer had been untruthful on his pre-employment medical statement. 

The officer argued that admitting his lifetime medical history into evidence at the hearing was egregious and shocking.  The court disagreed.  As a police officer, the officer owed a unique duty of loyalty, trust, and candor to his employer and the public at large.  Therefore, when the agency received a credible concern from the physician about the officer’s potential drug abuse, the agency had the authority to investigate and discipline a betrayal of that trust.

Thus, the court determined that the agency’s legislative body did not abuse its discretion in considering the officer’s medical records in terminating the officer.


One of the key points that the court relied upon was that the agency methodically reacted to information it received from the physician through its internal investigation process.  The physician provided the department the medical information on his own, the department interviewed the physician, and then the agency developed a reasonable suspicion about the officer’s misconduct.  The agency’s methodical approach gave the court reason to decide that even if the exclusionary rule did apply, the agency acted reasonably and lawfully as to the medical records.   Agencies can count on LCW to be a trusted advisor that gives insightful advice throughout an investigation and disciplinary process.

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