Complaint tests law designed to protect NC from bad cops

Law enforcement officers play a critical role in our society. It makes sense for government to take steps to ensure that they perform their work with integrity.

But any government action carries the risk of unintended negative consequences. That’s why it’s worth watching a lawsuit moving now through North Carolina courts.

The General Assembly voted unanimously in 2021 for House Bill 536. Titled “Law Enforcement Duty to Intervene,” one of its provisions covered reporting requirements linked to “Giglio material.”

The name stems from a 1972 US Supreme Court precedent, Giglio v. United States. The nation’s highest court ruled that prosecutors must disclose to a criminal defendant any information that might hurt the credibility of a prosecution witness.

Based on that precedent, prosecutors developed the “Giglio letter.” It warns police officers that they will not be called as witnesses in criminal cases because of questions about their credibility. An officer who receives a Giglio letter typically loses his job. North Carolina’s branch of the Southern States Police Benevolent Association described it as “the ‘death letter’ for a law enforcement officer’s career” in September 2021.

HB 536 required an officer to report a Giglio letter within 30 days to the officer’s agency, along with a state law enforcement education and training standards commission. Once entered into a statewide database, information about the Giglio letter would be available to any agency considering hiring the officer.

The law’s intent appears sound. If a cop’s dubious credibility causes him to lose his job, other potential employers ought to know that background. Transparency helps support public safety.

But the law provides no recourse to challenge a Giglio letter.

That’s where SeanPatrick Leech’s lawsuit enters the picture. Leech worked for Roxboro police in 2021 when his department investigated a reported rape. Leech played no part in the initial investigation. His involvement started when the alleged victim contacted police after she discovered a boxcutter when returning home days after the alleged attack. The victim said the tool was not used during the assault.

Leech collected the boxcutter. He said he contacted his supervisor and the officer who responded to the rape. Leech sought confirmation that the boxcutter was not needed for the investigation.

Once he had that confirmation, he got rid of the boxcutter. He “did not knowingly dispose of evidence,” according to the North Carolina Court of Appeals’ recent opinion in his case.

About a week later, the district attorney’s office contacted Roxboro police to recover the boxcutter. Leech “immediately explained the situation,” according to the appellate opinion.

Leech cooperated with an internal affairs investigation. Yet DA Michael Waters sent him a Giglio letter in September 2021. The letter cited Leech’s “dishonesty” about conversations with his supervisor.

“This assertion of dishonesty conflicted with the findings of the internal affairs investigation,” the Appeals Court opinion explained. The investigation found only “inconsistency” between statements from Leech and the supervisor.

The Giglio letter prompted Roxboro police to warn Leech that he could resign or be fired. He resigned.

A 2023 hearing before a state standards commission “found no probable cause to support either of the accusations in the Giglio letter,” according to the Appeals Court. Yet that finding did not rescind the “death letter” or have Leech’s name removed from the Giglio database.

When Waters refused to withdraw the letter, Leech filed suit. He challenged the DA’s actions but also targeted the 2021 Giglio law as unconstitutional.

A trial judge dismissed the case in June 2024, but a unanimous three-judge Appeals Court panel reversed that ruling on Oct. 1. Leech can return to a trial court to make his arguments.

Appellate judges took no stance on the merits of Leech’s arguments. Much of their decision addressed the trial judge’s treatment of evidence. Yet the appellate court highlighted a key piece of the officer’s claim.

“Plaintiff contends that law enforcement officers are denied any due process protections including notice or hearing prior to being listed in the Giglio database based on vague and subjective standards,” wrote Judge April Wood.

That type of claim could end up before a three-judge panel to assess the law’s constitutionality.

It’s not clear whether Leech ultimately will win his case. Regardless of the outcome, he raises important legal questions.

If a Giglio letter amounts to the effective end of a law enforcement officer’s career, procedural safeguards should ensure that the letter stems from legitimate concerns. Protection against bad cops is good. Blocking good cops from plying their trade is not.

North Carolina should not allow its Giglio law to cause unintended harm.

Mitch Kokai is senior political analyst for the John Locke Foundation.