Legal counsel for an Indiana police officer who was arrested — but later had a drunk driving charge dropped and his record expunged — argued before the state supreme court on Thursday that pending disciplinary action related to the incident should not be allowed to move forward.
The state’s law enforcement board responsible for handling disciplinary matters, on the other hand, maintained that “expungements are not gag orders,” and held that the board should first be able to decide through its own proceedings whether the officer engaged in misconduct.
The officer, anonymously referred to as “R.L.” in court documents, was arrested July 5, 2021.
His employer — an unnamed Hoosier sheriff’s office — reported the arrest to Indiana’s Law Enforcement Training Board on Aug. 4 of that year. It’s not clear if R.L. is still employed as an officer in Indiana.
Court documents indicate the board later sent a letter to the officer in April 2022, stating that it had “learned of the event that may lead to the revocation of [his] Indiana Law Enforcement Basic Training Certification and authority to act as a law enforcement officer.”
Specifically, the board alleged that R.L. “committed conduct” that met the elements of Level 6 felony criminal confinement and Class C misdemeanor operating a vehicle with an alcohol concentration equivalent of .08 or more.
After receiving the letter, R.L. petitioned in July 2022 to expunge all records associated with his arrest, and the Martin Circuit Court subsequently agreed to the request.
In his response to the training board, the officer claimed he had only been charged with operating while intoxicated, but that the charge had since been dismissed. R.L. additionally maintained that because the arrest had been expunged the board should dismiss any related disciplinary proceedings which could impact his license to act as a law enforcement officer.
The board refused, however, prompting R.L. to request injunctive relief — which was granted by the circuit court.
The law enforcement board appealed, and the Indiana Court of Appeals ultimately reversed, concluding that — although the board can’t consider expunged records in its proceedings — it may consider “independent evidence that the officer engaged in the actions that gave rise to the arrest.”
The Indiana Supreme Court granted transfer and assumed jurisdiction over the case earlier this year. The high court justices heard arguments from both sides on Thursday and will now decide if — or how — the expunged records are permitted in the law enforcement board’s disciplinary considerations.
To date, the board has not carried out hearings or sanctioned R.L. for his conduct related to the July 2021 arrest.
Board pushes back on lower court decision
Evan Comer, on behalf of the state and the law enforcement training board, told the justices that it’s up to the board to decide what evidence should be considered during its proceedings.
It’s the board’s role — not the trial court’s — “to make a decision about whether or not R.L. committed misconduct, based on that evidence,” he said, adding that the lower court’s interference in the board’s process “short-circuited” administrative review.
“Expungements are not gag orders. They don’t wipe the memories of witnesses. They don’t erase the harm caused by a defendant’s bad acts,” Comer said.
“This case boils down to one key point. By ordering the board not to consider any facts related to R.L.’s expunged arrest, the trial court improperly interfered with an ongoing, independent agency disciplinary action,” Comer continued. “The trial court’s decision effectively excluded evidence before the board, barring the agency from determining the facts for itself, which is a matter left solely to its own discretion.”
Comer further argued that R.L. “should have exhausted his administrative remedies before turning to the courts.” Had he done so, “it’s entirely possible” that the officer could have successfully challenged the admissibility of the evidence, meaning it would have never been allowed in the disciplinary hearing to begin with.
“If R.L. believed that his expungement actually barred him from being held professionally accountable for his his misconduct, that was an issue he could have raised — either as an objection to the admission of the evidence before the board, or as a defense to the board,” Comer said.
Justice Christopher Goff asked how the court should balance the intended purposes of expungements.
“You’ve got some folks you want to give a second chance to, and the language is broad. But on the other hand, you’ve got populations of folks that do very important work and are in positions of trust. … How should we look at that?” he asked. “I don’t think we have much guidance from the General Assembly …”
Comer emphasized that expungement pertains to “documents … the paper trail that arises throughout the course of the pending litigation.” He noted, too, that expungements are “meant to take away the stigma of having the arrest or the conviction tied to your name as a legal fact.”
“It doesn’t take away, it doesn’t erase the harm that you have actually caused,” Comer said. “For example, if the case said that R.L. was coming from a grocery store, does that mean that we have to always and forever pretend that R.L. was never at that grocery store? Does that mean that we can never sanction him for anything he did at that grocery store?”
The state pointed to “uncharged conduct that is at the center of this disciplinary proceeding.” Comer said that specifically relates to R.L.’s alleged criminal confinement of his wife on the same night as his OWI arrest. While the officer was never charged for that crime, Comer said it could still be relevant to the law enforcement board’s disciplinary proceedings.
Officer’s lawyer addresses high court justices
Tyler Helmond, representing R.L. alternatively said the board “seems intent to use information that, in our view, it can’t use.”
“It’s our position that it would be inconsistent if the General Assembly intended for there to be a broad exception to seal all the records, but then say we can call witnesses and introduce that evidence later in the hearing,” Helmond said in his arguments.
He maintained, too, that state statute allows law enforcement agencies to consider an expunged record when making an employment decision, but that sealed documents can’t be used to revoke an officer’s license.
Still, Goff questioned why the officer couldn’t have made his case before the law enforcement board — rather than immediately seeking to stop any potential disciplinary hearings.
“Either he goes through, he gets a decertification, or he’s not disciplined, and everybody has faith in the system. That actually we’re taking this obligation seriously, and allegations against folks in these very important positions are being investigated,” Goff said. “Why can’t you have both?”
Helmond said the board should not be allowed to “call any witness to just repeat things from the record that is otherwise sealed.”
“That becomes a very narrow construction, and it really doesn’t further the purpose. It really frustrates it,” he said. “You could just call the police officer and say, ‘What are the facts of this case?’ And now we’re going to use that … instead of using the arrest. It basically eliminates (expungement) as as a useful remedy when it’s clearly designed to give somebody a second chance at employment, to give somebody a second chance at housing, to give somebody a second chance at health care.”
Justice Geoffrey Slaughter pushed back, asking whether the “non-material record has to be ignored” even if there was no conviction.
The justice additionally pressed Helmond about his client’s decision to circumvent the law enforcement board’s administrative proceedings.
“You seem to be suggesting that the injury is the mere investigation. … You know, there’s no doubt that you’re injured if and when the board imposes its discipline,” Slaughter said. “The question is, is he injured before that by the mere investigation?”
Helmond said the board’s “only basis for discipline” comes from information that has since been sealed, and that because the threat of possible discipline put R.L.’s employment and livelihood at stake, he was justified in seeking injunctive relief.
Chief Justice Loretta Rush did not provide a timeline for the court’s decision, which could take several weeks or months.
By Casey Smith — The Indiana Capital Chronicle is an independent, not-for-profit online news organization that covers state government, policy and elections.
