The difference between cops & civilians widens - bp/dt warning

[vaskidmark]

I was originally going to use the line below as the title of this post, but then realized that without the bp/dt warning I would be putting some of you in mortal danger.

Compare/contrast how cops want to be dealt with after a shooting incident to how they treat us mere "civilians".

I'm seriously thinking about printing this off, putting it in my wallet and telling the cops that I want them to follow these guidelines should I ever be involved in a shooting situation.

I really wonder how a judge would react should they face a petition to enforce/ensure this protocol were followed.

Now, I really do think that Force Science Institute has done a tremendous amount of good in the study of the use of force, and especially in answering those pesky questions of how someone could have "X" bad thing happen if the police used "Approved Technique Y" exactly as they were trained to.  That and the whole thing about explaining why someone the cop was shooting at ended up getting shot in the back.  I'm not against anything FSI does, and so far everything they have published as a recommended practice has made tremendous sense.  I have absolutely no misgivings about these recommendations - only a complaint that they are not being applied to "civilians" as well.

stay safe.
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From Force Science News Transmission #199 ( www.forcescience.org )
I. Police attorney offers "best practices" tips to civil rights overseers

Last November, the Civil Rights Division of the US DOJ sent a 9-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 communique 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 www.snyderandhoagllc.com 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:

TAPE RECORDING. "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."

WALK-THROUGH. 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.

RECOVERY TIME. 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.... n one case, based on [the] officer's condition, an agency [was persuaded] to wait 2 weeks to conduct its interview."

MEDICAL CHECK. "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."

PEER SUPPORT. 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."

DEBRIEFING. 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."

CONFERRING. 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.

Hoag can be reached by email at: jhoag@snyderandhoagllc.com

[Monkeyleg]

Do you mean to say that cops shouldn't be cuffed, put in the back of a sqaud, put in jail, wait for the DA, and then hope they don't have to sit in jail again before seeing a grand jury?

[cassandra and sara's daddy]

can't a civilian just say i want to talk to my lawyer and that ends it? or take the fifth?  isn't garrity just a way to preserve those rights for a cop while at the same time allow an investigation to move forward?

http://www.iaff2919.org/Docs/GARRITY.pdf


how would you apply those things outlined in your article to civilians? and why?

[Blakenzy]

I thought this was going to be a post about how people on the Police Force were becoming more likely to be overweight than those in the general population. 

[vaskidmark]

(1) can't a civilian just say i want to talk to my lawyer and that ends it? or take the fifth? 
(2) isn't garrity just a way to preserve those rights for a cop while at the same time allow an investigation to move forward?

http://www.iaff2919.org/Docs/GARRITY.pdf

(3)how would you apply those things outlined in your article to civilians? and why?

1 - This would not involve any change to Miranda/Edwards rights.  It eliminates the adversarial approach to investigating and negates the "guyilty until proved innocent" attitude so commonly found.  A question back at you - why are almost all OIS events treated as "good shoots" until proved otherwise while almost all LAC [legally armed citizen] events treated as some form of homicide until proven otherwise?  Yes, there is a trend towards more frequently than in the past seeing "no charges filed/self defense" determinations, but that is not having any real statistical impact.

2 - No.  Garrity goes much further, as it removes disciplinary action as an option when refusing to give an otherwise compelled statement.  Cops must chose between asserting 5th Amendment rights and making a compulsory statement.

3 - I'd apply them to "civilians" in precisely the same way that FSI/Hoage suggest applying them to OIS incidents.  Because the investigation ought to be about discovering the truth, not about determining what charges to bring in order to at least hold a suspect until better/different information can be developed.  That old goose/gander thing.

stay safe.

[roo_ster]

LEOs, unless enlisted in the military or commissioned by Congress as an officer in the military, are also civilians.

Yes, this is yet another way agents of the government are more equal than the rest of us.

[cassandra and sara's daddy]

i think most lawyers would crap themselves if a client did a reenactment or many of the things in that article

you make a great point about the presumption about it being a good shoot if its a cops. i'm not seeing around here the reverse being true but it seems that varies greatly by location.

2 - No.  Garrity goes much further, as it removes disciplinary action as an option when refusing to give an otherwise compelled statement.  Cops must chose between asserting 5th Amendment rights and making a compulsory statement.


from the garrity info page
Garrity does not give an officer the right to refuse to answer a question if there are non-criminal consequences attached such as termination or other discipline.

[BobR]

We had an officer involved fatal shooting (one of several) in our neck of the woods recently. The LEO pulled his unmarked cruiser into a dark area of a business where there had been reports of prowling. When the armed business owner went out to check on the car parked next to his business he ended up dead. Not only did the LEO not have to make a statement that night, he was allowed to go on his previously scheduled vacation to Hawaii before he had to sit down and give a statement.

To say this one particular incident did more to erode the public trust in police more than any one incident in memory would be an understatement.

I am all for giving the LEO time to collect his thoughts before making a formal statement, but I would expect the same consideration be given to people involved in a self defense or protection or property shooting (where legal to whack someone for stealing your gas, esp in the dark ).

bob

[cassandra and sara's daddy]

LEOs, unless enlisted in the military or commissioned by Congress as an officer in the military, are also civilians.

Yes, this is yet another way agents of the government are more equal than the rest of us.

http://myeverettnews.com/2011/07/12/epoa-and-fired-everett-police-officer-troy-meade-provide-my-everett-news-his-10-page-letter-for-re-instatement/
an interesting snapshot of training
"Regarding his Training and Experience as cited in his dismissal letter…  “The letter I received also reviews “Training and Experience” In the letter it is stated that I have ‘received 40 hours annually of refresher courses that included segments focused on defensive tactics and handgun skills training.’ The actual time segment spent on defensive tactics is approximately 5 hours annually of the 40 hours.  The last 2 times I have attended these refresher courses, the defensive tactics segment consisted of riot control training that was limited to marching in formation as a team.  Five hours a year on defensive tactics is insufficient.  Furthermore in all of the academy training, the 5 hour annual training, and the fire arms training, not once have we trained on getting an uncooperative, intoxicated male out of a locked car. We were however, trained NOT to reach into a car with a running engine and to NOT try to grab the keys or the individual this could result in our being dragged by the car, and it exposes our gun to the suspect.” "

[cassandra and sara's daddy]

I would expect the same consideration be given to people involved in a self defense or protection or property shooting

people don't have a union in their corner.  they do have the right to remain silent

[BobR]

people don't have a union in their corner.  they do have the right to remain silent

Bingo!!!!

All though that pesky right to remain silent most likely will end up costing you a few hours to days in jail, not lounging on the beach.

bob

[roo_ster]

http://myeverettnews.com/2011/07/12/epoa-and-fired-everett-police-officer-troy-meade-provide-my-everett-news-his-10-page-letter-for-re-instatement/
an interesting snapshot of training
"Regarding his Training and Experience as cited in his dismissal letter…  “The letter I received also reviews “Training and Experience” In the letter it is stated that I have ‘received 40 hours annually of refresher courses that included segments focused on defensive tactics and handgun skills training.’ The actual time segment spent on defensive tactics is approximately 5 hours annually of the 40 hours.  The last 2 times I have attended these refresher courses, the defensive tactics segment consisted of riot control training that was limited to marching in formation as a team.  Five hours a year on defensive tactics is insufficient.  Furthermore in all of the academy training, the 5 hour annual training, and the fire arms training, not once have we trained on getting an uncooperative, intoxicated male out of a locked car. We were however, trained NOT to reach into a car with a running engine and to NOT try to grab the keys or the individual this could result in our being dragged by the car, and it exposes our gun to the suspect.” "

Relevance?

   <--- Pertinence Police

   <--- Impertinence Police

[Jamisjockey]

So far so good.  These threads have a habit of becoming uncivil and derailed.  Please consider this fair warning.

[Hawkmoon]

NOTICE: That which is sauce for the goose is not sauce for the gander.

That is all.

So, we're saying that some citizens are more equal than others? Like we needed a reminder?

[cassandra and sara's daddy]

Relevance?

   <--- Pertinence Police

   <--- Impertinence Police

probably not all that relevant just stumbled across it and thought that it was "intellectually challenged" to waste that training time marching as opposed to preparing for something more critical. i suspect its easier to put together a training session of marching than a worthwhile one dealing with use of force so that what they got.  they being the cops and then the folks they serve. does not work out at all well

[grampster]

One thing we need to remember, police are expected to confront and advance on dangerous situations.  The rest of us are not.

[Monkeyleg]

True, Grampster. It's also true that the police have unions. It's true as well that officers more than likely give other officers more leeway than they would give a civilian. So, even if the NRA had attorneys available to send to a shooting scene immediately (our equivalent of a union, so to speak), we wouldn't be extended the professional courtesy nor sympathy other officers will give to their shooter.

[Hawkmoon]

Let's look at each of these and see how many the "authorities" might apply equally to us normal citizens as opposed to our citizen overlords, the police:

TAPE RECORDING. "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.

Imagine one of us objecting to having our initial "interview" recorded. An officer expresses anger and that's grounds for keeping his interview secret. If one of us expressed "raw anger" it would be duly noted for use against us at trial.

"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.

None of us have children who might get taunted at school? Why should a police officer's children be entitled to any more protection against "taunting" than my children? Even if I'm Machine Gun Kelly, my kid didn't shoot anyone.

"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."

Why? And why is an ordinary citizen who has been through a shooting not afforded the same "right"?

WALK-THROUGH. 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.

So ordinary citizens DON'T have "perceptual auditory, visual, or memory distortions" after a shooting? Why should police officers be allowed to return to the scene and be sure they have their story straight when other people are absolutely prevented from doing the exact same thing? If a walk-through leads to a more accurate statement from a police officer, it should lead to a more accurate statement from any citizen.

RECOVERY TIME. 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.

ALL of these apply equally to any citizen involved in a self-defense shooting.

"[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.... n one case, based on [the] officer's condition, an agency [was persuaded] to wait 2 weeks to conduct its interview."

Again, the same applies to anyone. If being rested leads to a more accurate and complete statement from an officer, the same would apply to a citizen.

MEDICAL CHECK. "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."

Ditto again. Obviously, this is equally true for anyone who has been involved in a shooting. Why should the medicak exam be afforded only to police officers?

PEER SUPPORT. 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."

DEBRIEFING. 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."

This makes no sense at all, because after a shooting a police officer is almost always taken off patrol and assigned to desk duty while the shooting is being investigated. However, if the police want to be requalified immediately following a shooting, why is the citizen's firearm imponded? Why aren't WE taken to the range and requalified?

CONFERRING. 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."

Again, if they can confer "because it results in a better interview with more details and fewer mistakes," then why isn't the same true for citizens? But the police don't WANT us to provide more details and fewer mistakes -- they WANT us to make mistakes, so they can use any inconsistencies between the recollections of multiple witnesses or participants as evidence of wrong-doing. Double standard, front and center POST!

[gunsmith]

A few years ago  cleared leather on a huge road rager who had pushed me and verbally threatened me.

I told the cops that being he was twice my size and had already assaulted me plus the verbal threat and me still recovering from knee surgery was sufficient reason for me to clear leather and make him go away.

They tried for hours to trip me up and find a reason to arrest, they were upset that I had crossed all my t's and dotted my i's .

Thank God I spent all those hours in the good old days on THR going over what if situations and discussing legal stuff.

[griz]

Most shootings that officers respond to are not obviously self defence situations.  According to uninvolved witnesses, the latest one here had two citizens getting in to an argument at a convienience store and shooting each other.  Both survived, so there are three versions of the story, and I'll bet both of the shooters will claim self defence.  So it would be difficult to afford them both the assumption of acting defensively, even though it could be done.

The best point I've heard here is that officer shootings tend to have more of an assumption of innocence, and that seems true to me.  We, or at least I, tend to look at it from a legitimate self defence perspective, so that is a powerful argument to me.  But I can at least see it from the LEO side where they seldom run in to "good" shootings.  Tricky ground here.

[Hawkmoon]

The best point I've heard here is that officer shootings tend to have more of an assumption of innocence, and that seems true to me.  We, or at least I, tend to look at it from a legitimate self defence perspective, so that is a powerful argument to me.  But I can at least see it from the LEO side where they seldom run in to "good" shootings.  Tricky ground here.

Good shoot or bad, run through that list again and at least half the statements are just as true investigating a questionable shooting as when investigating an officer shooting. Perceptual distortion? Check. "Pumped up"? Check. More details after resting? Check. Children should not be exposed to taunting? Check.

And not all police shootings are "good" shoots ... even when they are ruled good shoots by whatever authority investigates. I know of more than one officer shooting involving vehicles driving AWAY FROM the officer in which the officer was ruled to have killed the driver in self defense.

You put your finger on a key point: "officer shootings tend to have more of an assumption of innocence." That's true ... but the "more" part of that statement should not be. Remember, under our system of law anyone is supposed to be "presumed" innocent until proven guilty beyond a reasonable doubt. Certainly, the police should investigate shootings. But when they enter the investigation with the presumption that it must have been a bad shoot and they just need to find a way to prove it, there's that double standard again. Officer involved shootings are presumed to have been good shoots and the investigations are geared to finding exculpatory evidence. "Citizen" shootings are presumed to have been bad shoots, and the investigations focus on finding as much as possible to support that presumption.

And that dichotomy is wrong.

[griz]

Over all I do agree, the not guilty assumption should be the same until evidence proves otherwise.  reminds me of a case I heard about where somebodies house burnt down.  The police charged them with arson because their arson investigator had "proof".  The defense found several contradictions in the evidence and successfully pointed out that an "arson investigator" is predisposed to conclude it was arson as his title shows.  He was found not guilty.

[grampster]

Over all I do agree, the not guilty assumption should be the same until evidence proves otherwise.  reminds me of a case I heard about where somebodies house burnt down.  The police charged them with arson because their arson investigator had "proof".  The defense found several contradictions in the evidence and successfully pointed out that an "arson investigator" is predisposed to conclude it was arson as his title shows. He was found not guilty.

Underlining to highlight:mine.

That argument reminds me of the time that I was looking for a guy who had shot up a local bar with a shotgun.  I saw him walking down the sidewalk a few block away.  He had the long gun.  He ran up a driveway while I was calling it in and then exiting my cruiser in pursuit.  I flopped down on the ground along the corner of the foundation of the house the driveways served, thinking if he wanted to shoot me, he'd be looking for me to walk around the foundation.  I had noted a 10 foot tall fence at the end of the driveway, so I knew he wasn't going anywhere.  I had my revolver extended out and peeked around the corner.  He was standing at the end of the drive with his shotgun at his shoulder aiming as I thought he would; as if I would walk around the corner.  I had the drop on him and was going to shoot him, but in a nanosecond he threw the long gun over the fence. Trust me...it happened really really fast.  I arrested him on a variety of offenses, one being Attempted Felonious Assault on a Police Officer.

A few days later the prosecutor advised me he had dropped all charges letting him plead to "Careless Use of Firearms".  I was outraged.  The prosecutor's notion was that because I had on a "uniform" my presence was "inherently coercive".  This was the mid 60's and the prosecutor was a recent law school graduate.  Looking back, I should have shot the prosecutor.

Sometimes, discussions and decisions made by non peace officers make assumptions based on information that comes from people who have become jaded and defensive because of situations like the above.  I do not believe peace officers should be held to a lower standard.  I think I do understand why it seems they are.

[Monkeyleg]

Note to LEO: before attempting to apprehend suspects, get naked.

[T.O.M.]

I've been read my Garrity rights while I was a prosecutor...now that's frightening.

I think one thing that often gets overlooked in our discussions is that under the law, self-defense is an affirmative defense.  In other words, you admit that you've committed an act that meets the statutory definition of a crime...say homicide...but that the circumstances are such that there is a legal justification for that act to have occurred, taking it out of the scope of the statute.  In plain Engllish, that means that you have to prove the justification exists.  There is no assumption that the justification exists.  And, in raising the justification, you are essentially admitting to the offense.

So, bottom line, the law itself presumes that the shooter is guilty unless/until the shooter proves the justification exists.  Now I know taht someone is going to say "Chris, the law presumes you are innocent until proven guilty" and I'll say you are 100% right.  The problem is that in order to raise the self-defense justification or affirmative defense, you must also admit to the elements of the underlying offense.  You can't say "I feared for my life so I shot him" without saying "I shot him."  If the shooting was fatal, you have admitted to a homicide charge.  The justification is key.

This is where I often find myself debating with other 2A supporters.  The standard line is "never talk to the police," which I understand, and in general is good advice.  But, that advice is aimed at preventing any statement from being used against you at trial.  My thought is "give a statement with counsel" in an effort to get the justification on record, and perhaps prevent the indictment and eliminate the trial.  Don't know the answer, and hope I never get personal experience on this theory...