Police attorney offers 'best practices' tips to civil rights overseers
By Charles Remsberg
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:
“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.”
“[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.”
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.
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