Police attorney offers 'best practices' tips to civil rights overseers
By Charles Remsberg
Last November, the Civil Rights Division of the US DOJ sent a nine-page “technical assistance” document to the mayor of Seattle, emphatically recommending certain changes in how the city’s police department investigates officer-involved shootings. This communiqué is part of an ongoing federal scrutiny of the PD, underway for nearly a year, to “ensure compliance with constitutional rights.”
The recommendations deal primarily with whether involved officers should automatically be given Garrity protection after any major use of force, particularly shootings. Automatic Garrity warnings that result in a statement being considered “compelled” are not appropriate or justified in most force investigations, the DOJ feels, in light of case law it cites in the document. Instead officers with rare exception should be encouraged to give strictly voluntary statements, which can then be entered without restriction into the investigative record.
Recently, veteran police attorney John Hoag, a Force Science certification instructor whose law firm represents law enforcement unions throughout the Pacific Northwest, drafted a response to the DOJ directive, which he has circulated among his clients and their agencies. The issues he discusses may be useful to officers elsewhere who are trying to move their own departments, through persuasion or collective bargaining, toward more progressive practices in OIS investigations.
You can read the exchange in full online. Go to this website and click on “Year 2012 Special Edition” in the left-hand column.
Essentially, Hoag agrees with the DOJ’s position on Garrity. He generally favors voluntary rather than compelled OIS statements because they permit the officer and his attorney much more leeway in controlling the investigative interview.
Only twice in more than 40 OIS incidents he has been involved in has Garrity been a contention, Hoag says, and both those cases were unintentional discharges and not intentional uses of force.
His point in writing to civil rights officials was “not to challenge their interpretation of Garrity but hopefully to expand their recommendations,” he told Force Science News. “They need to understand that there are other critically important aspects to an OIS statement besides voluntariness that they should be supporting and advocating in the interests of a fair, impartial, and factual investigation.”
Among other things, Hoag in his letter to DOJ explained what he considers “best practices” in the following areas, based on his personal experiences with officers he has represented and on Force Science research:
“We will never allow for an officer’s voluntary interview to be tape recorded,” Hoag wrote. “It is not uncommon for an officer to break down and cry” during an interview or to “express raw anger” that a suspect forced him to use lethal force. “In many states as soon as the investigation is complete it becomes a public record. In Oregon a videotape of an officer crying during an OIS interview got posted on YouTube.
“No officer who has been through an OIS and then relives it during an interview should have to have [his] emotions recorded for the world to view. The officer’s family should not be subject to that as it is not uncommon for an officer’s children to be ...taunted about their parent being a killer.
“A skilled investigator can prepare a detailed report of what the officer said during the interview, and the officer can review and approve it. We owe officers who have been through an OIS the right to keep their emotions private.”
Hoag favors a “walk-through with the [involved] officer, preferably under the lighting conditions that existed at the time the OIS occurred,” he said. But “investigators do not accompany us” because “it is very common for an officer to have perceptual auditory, visual, or memory distortions after an OIS.” Consequently, “we would not want the officer to be giving a statement before, during, or right after the walk-through.” Aided by the walk-through as a stimulus, the officer should have time to “reflect on what occurred” without investigative pressure and questioning.
As to when an interview should be conducted, Hoag pointed out that “right after an OIS the officer is ‘pumped up’ for a period of time. The officer’s mind is racing. It is hard to slow the officer down to get a fully detailed statement. Then at some point the adrenalin rush wears off and the officer feels like he or she has been run over by a steamroller. All that officer wants to do is to go home, and that can cause the officer’s answers to questions to be shorter than they might otherwise be.
“[A] ‘cognitive interview,’ which we believe produces the best [statement], takes a lot of time and requires the officer’s full cooperation and exhaustive participation. It should not be undertaken without the officer being well rested.... [W]aiting to conduct the interview for 48 hours seems to be a reasonable and prudent practice.... [I]n one case, based on [the] officer’s condition, an agency [was persuaded] to wait two weeks to conduct its interview.”
“We suggest that an officer be given a medical exam with documentation of the officer’s vital signs,” Hoag wrote. “Many times they are highly or even dangerously elevated.”
Unless conversation with a peer support officer is protected by a confidentiality statute, statements made by an officer in that context “would be admissible in court,” Hoag pointed out. With that in mind, “officers should be instructed not to discuss the incident with peer support officers until the investigations and any civil litigation are over.”
In addition to a mandated, confidential visit with a police psychologist to debrief the incident and receive information about potential PTSD symptoms, Hoag recommended that OIS survivors be required to “go to the range and qualify before going back out on the street.” He explained: “I want the officers to be able to say to themselves that they are ready to use deadly force again, if necessary.”
In a section of his letter sure to raise the hackles of police critics, Hoag wrote favorably of allowing officers to confer among themselves in preparing statements about OISs that involved multiple officers. “In the United Kingdom officers regularly confer before they give statements” and this is duly noted, he stated. He cited a Force Science study that found that conferring resulted in “better interviews afterwards with more details and fewer mistakes.”
In addressing these and other recommendations to Jonathan Smith, chief of the Civil Rights Division’s Special Litigation Section, and Jenny Durkan, US Attorney for the Western District of Washington State, who signed the directive to Seattle, Hoag said he hoped his suggestions would be “of some assistance” and offered to discuss them in greater detail. At this writing, he is awaiting a response.