Citizen-Police interactions

[G M]

http://www.nytimes.com/2010/06/26/opinion/26macdonald.html?ref=opinion

Fighting Crime Where the Criminals Are
By HEATHER Mac DONALD
Published: June 25, 2010

THERE was a predictable chorus of criticism from civil rights groups last month when the New York Police Department released its data on stop-and-frisk interactions for 2009. The department made 575,000 pedestrian stops last year. Fifty-five percent involved blacks, even though blacks are only 23 percent of the city’s population. Whites, by contrast, were involved in 10 percent of all stops, though they make up 35 percent of the city’s population.

According to the department’s critics, that imbalance in stop rates results from officers’ racial bias. The use of these stops, they say, should be sharply curtailed, if not eliminated entirely, and some activists are suing the department to achieve that end.

Allegations of racial bias, however, ignore the most important factor governing the Police Department’s operations: crime. Trends in criminal acts, not census data, drive everything that the department does, thanks to the statistics-based managerial revolution known as CompStat. Given the patterns of crime in New York, it is inevitable that stop rates will not mirror the city’s ethnic and racial breakdown.

[JDN]

(Moved from Homeland Security and American Freedom per Crafty's request)

Speaking of "bully" feel about it, someone posted a while ago (I couldn't find it) that photography is allowed/protected in a public
place.  I agree; I enjoy photography (film) and am up on the laws.  Yet I find Police want to be exempt from the law - can't take the heat???
Or they just enjoy the intimidation?  No matter how you look at it, it's wrong.

http://www.time.com/time/nation/article/0,8599,2008566,00.html?hpt=T2


Anthony Graber, a Maryland Air National Guard staff sergeant, faces up to 16 years in prison. His crime? He videotaped his March encounter with a state trooper who pulled him over for speeding on a motorcycle. Then Graber put the video — which could put the officer in a bad light — up on YouTube.
It doesn't sound like much. But Graber is not the only person being slapped down by the long arm of the law for the simple act of videotaping the police in a public place. Prosecutors across the U.S. claim the videotaping violates wiretap laws — a stretch, to put it mildly.

Law enforcement is fighting back. In the case of Graber — a young husband and father who had never been arrested — the police searched his residence and seized computers. Graber spent 26 hours in jail even before facing the wiretapping charges that could conceivably put him away for 16 years. (It is hard to believe he will actually get anything like that, however. One point on his side: the Maryland attorney general's office recently gave its opinion that a court would likely find that the wiretap law does not apply to traffic stops.)

The legal argument prosecutors rely on in police video cases is thin. They say the audio aspect of the videos violates wiretap laws because, in some states, both parties to a conversation must consent to having a private conversation recorded. The hole in their argument is the word "private." A police officer arresting or questioning someone on a highway or street is not having a private conversation. He is engaging in a public act.

Even if these cases do not hold up in court, the police can do a lot of damage just by threatening to arrest and prosecute people. "We see a fair amount of intimidation — police saying, 'You can't do that. It's illegal,'" says Christopher Calabrese, a lawyer with the ACLU's Washington office. It discourages people from filming, he says, even when they have the right to film.

Most people are not so game for a fight with the police. They just stop filming. These are the cases no one finds out about, in which there is no arrest or prosecution, but the public's freedoms have nevertheless been eroded.

[Crafty_Dog]

Court Rules Police Can Pull Up Suspects' Saggy Pants
1,193 Views 39 Comments  Minneapolis Star Tribune via YellowBrix

September 15, 2010

ST. PAUL, MN – White Castle, weed and baggy pants. It has all the elements of a comedy, but throw in a concealed handgun, a suspected drug deal and a wardrobe malfunction, and it’s a Minnesota Court of Appeals case that even compelled a judge to quote an “American Idol” audition.

St. Paul police officer Kara Breci and her partner spotted a possible drug deal in a car at a White Castle parking lot in November 2008. They ordered the men out of their vehicle and told them to put their hands in the air. That’s when suspect Frank Irving Wiggins’ baggy pants, already dangerously low at the knees, fell to the pavement.

Breci hoisted the jeans and found a .38-caliber pistol inside the front pocket. Wiggins was eventually convicted of possession of a firearm by an ineligible person and sentenced to five years in prison. He challenged the legality of the pants-hoisting, with the case ultimately landing at the state Court of Appeals.

“This case requires us to determine the constitutionality of a novel police procedure which, as far as we can tell, has never been reviewed on appeal by this court or any other,” wrote Judge Kevin G. Ross in an opinion filed Tuesday.

Breci and her partner encountered Wiggins and another man in a car in a high drug-activity area. A third man popped into the backseat. His hands were suspiciously slider-free.

“No one in the car appeared to be eating,” Ross wrote.

The officers approached, and the backseat passenger admitted that a plastic bag contained marijuana. That’s when the men were ordered out, and the pants fell.

Breci felt the gun through Wiggins’ pants and asked him about it. He denied knowing what it was. Breci removed the gun.

Wiggins, 24, later tried to suppress the gun evidence in his case before district court, citing unlawful seizure and pat-search, but was denied.

Ross wrote that the circumstances of the drug search would “lead a reasonable officer to suspect that Wiggins was engaging in a drug deal,” and that Breci’s actions were not unconstitutional.

The judge wrote that Breci’s actions weren’t a search, but “incidental contact.”

“Perhaps [Breci] decided to raise Wiggins’ pants to afford him a bit of dignity regardless of her planned search,” Ross wrote in the opinion. “Or perhaps she wanted to avoid the risk of contacting his genitalia through his underwear during her pat-search.”

Breci’s actions were intended to provide Wiggins with privacy, not deprive him of it, as a search would, Ross wrote. “We acknowledge that one might be offended by an officer’s realigning of his pants: It is the sort of thing that one usually prefers to do for himself,” the decision read. "Wiggins argues that affirming the district court would encourage officers to trample the privacy of young people who participate in this baggy-pants fashion trend. The concern is unwarranted.

“We are confident that our opinion will not be misconstrued to suggest that an officer can freely meddle with a person’s clothes to the refrain, ‘Pants on the ground, pants on the ground’…”

[Crafty_Dog]

http://www.policeone.com/patrol-issues/articles/2018727-Prone-subjects-Deadly-in-an-instant

[Crafty_Dog]

The intro comment is by an LEO friend whose judgment I greatly respect:
===================
Because several officers together did not have the ass to take this man into custody, he killed one of their brethren shortly thereafter...
 
----------------------------------------------
 
Excerpt from a Wash Post article yesterday:



About 1:30 p.m. Sept. 23, McDonald spotted a 1997 burgundy Buick with a broken taillight. He ordered the driver, Shermell Howard, 27, to pull over, according to a police report. In the car with her was Daniel Giddings, also 27, a 240-pound felon whose physique one official would describe as "prison buff." The Taurus was tucked into his waistband.



Giddings had been released from prison 36 days earlier after serving eight years of a 12-year sentence for aggravated assault. A judge had ordered him to report to a halfway house, but Giddings soon absconded in violation of his parole. When several police officers, acting on a tip that Giddings was at a house in the area, tried to arrest him, he fought with them and escaped. Now, he was wanted for aggravated assault on the officers as well as the parole violation.



As McDonald walked up to the vehicle, Giddings jumped out and ran. McDonald chased him three blocks through the North Philadelphia neighborhood known as Strawberry Mansion, a place of boarded-up buildings and painted brick rowhouses with metal bars on the doors and windows.
 
"White T-shirt, brown jacket," McDonald breathlessly told a police dispatcher as he called in the incident on his police radio at 1:46 p.m. and gave his location. "Twenty-four hundred Colorado. Just got on a red bike."
 
McDonald didn't say - maybe he didn't have time - that Giddings had knocked a child off the bicycle.
 
McDonald caught up to Giddings, losing his hat along the way. The officer grabbed Giddings and drew his ASP police baton. The two fought. The felon threw the officer to the ground. Both drew guns, Giddings's Taurus against McDonald's Glock 9mm service weapon.
 
Shots were traded, and McDonald was hit several times, including a round that went through his shoulder and pierced his heart.
 
Giddings then stood over the officer and pumped more bullets into him...

[Crafty_Dog]

http://policelink.monster.com/news/articles/147680-charges-allege-city-hired-unlicensed-police-officers?utm_source=nlet&utm_content=pl_c1_20101209_unlicensedofficers

[G M]

Wow. That is so horrifically bad, it's hard to imagine.

[The Tao]

Wow. That is so horrifically bad, it's hard to imagine.

Actually, most police departments have a rule that they aren't allowed to go any more than 15 mph faster, yet just a few days ago I saw a highway patrol officer doing well in excess of 100mph.

http://www.fdle.state.fl.us/Content/getdoc/8fc2b35b-7475-47e7-82dc-95c831217327/Lenemier.aspx

I'm not saying that the guy should have been a police officer and I hate rapists. I'm saying that the fact that the guy was a criminal doesn't mean that there isn't plenty of sworn LEO's that aren't also breaking the laws routinely and little is done about it.

[G M]

No, it depends on the state laws and departmental policy covering pursuits and emergency response. I've never seen anything that says 15 MPH over the posted limit for LE. Care to cite your source?

[The Tao]

No, it depends on the state laws and departmental policy covering pursuits and emergency response. I've never seen anything that says 15 MPH over the posted limit for LE. Care to cite your source?

There are several and the link above from the Florida Department of Law Enforcement states it clearly in the middle of the pdf file that the link leads to.

All in all, police routinely break laws that normal people would never get away with, such as the CHP officer doing well over 100mph, talking on cell phones, perjuring themselves, ad infinitum.... They have a brotherhood, and they look out for each other even when they are in the wrong. It's been proven time and time again and they are simply above the law.

If you'd like more instances of this, I'll provide the links.

[G M]

I didn't see anything about 15 MPH as a limit for pursuits or emergency response in the PDF.

I noticed you're a cop-basher, and thus most likely a criminal. So what have you been arrested for?

[The Tao]

I didn't see anything about 15 MPH as a limit for pursuits or emergency response in the PDF.

I noticed you're a cop-basher, and thus most likely a criminal. So what have you been arrested for?

It's right in the middle of it requiring supervisor approval for anything exceeding 15 miles an hour above the speed limit.

Expecting everyone to tow the line in regard to the law makes me a criminal? How so?

[G M]

It says code 2 response. Do you know what code 2 means? Code 3?

You are denying a criminal history? Yes or no?

Hint: The criminal personality tends to project criminal conduct on everyone as a mechanism to justify their own misconduct.

[The Tao]

It says code 2 response. Do you know what code 2 means? Code 3?

You are denying a criminal history? Yes or no?

Hint: The criminal personality tends to project criminal conduct on everyone as a mechanism to justify their own misconduct.

I'm actually trying to determine why you're supportive of people that have sworn an oath to uphold the law, yet break it. You want to go into what codes mean instead of why criminals that wear badges and have sworn to uphold the law aren't prosecuted for it. Let's talk about that.

To answer your question, no I'm not a criminal.

[G M]

Your whole premise is bogus. Law enforcement officers have more liability, both civil and criminal than anyone else in society. Law enforcement officers are also empowered to do things like ""running code 3" than others are not. Why are you an ignorant cop-hater?

[G M]

Do you understand the difference between policy and law? It appears not.

[The Tao]

Your whole premise is bogus. Law enforcement officers have more liability, both civil and criminal than anyone else in society. Law enforcement officers are also empowered to do things like ""running code 3" than others are not. Why are you an ignorant cop-hater?

Really? That's not true. Rampart ring a bell? How many years did that go on with their partners knowing?

Ignorant cop hater? I don't hate cops. I train with some. I hate people that take a vow and then break it as well as people that tolerate it.

What is ignorant about expecting people to abide by the oath that they took? They're even worse than criminals. The criminals never took any such oath, and yes, I'm talking about even something as ridiculous as talking on a cell phone while driving. You either respect your oath or you don't and if you don't, you're even worse than the criminals that you're going after.

Is there a problem with that?

No. I understand both completely.

[G M]

So, you bash cops in general because of the actions of a few? I don't know if CA's cell phone law exempts the use of cell phones for official purposes, do you?

[The Tao]

Official uses? I know police here and let's pull the logs while they're on duty. See what we find, added to which, if they can do it safely, "officially," why can't I or anyone else?

You're not very good at answering questions, are you?

[G M]

Gosh, i'm sorry Mr. "Should society forgive criminal convictions?" What question don't you have answered?

You know the police there? Really? Tell us how you know the police.

[The Tao]

Let's start with why police officers have carte Blanche when it comes to breaking the laws. They are after all, the ones that took an oath.

Who I know is none of your business and certainly not for public knowledge. You're avoiding the question.

Your assertion that it is only the actions of a few is false and I will respond with a list of which that proves it in a couple of hours.

You think that I'm anti-police, when in fact, I'm anti-police that think that they're above the law. Your writings here demonstrate that it is indeed a systemic problem.

[G M]

http://dmv.ca.gov/pubs/vctop/d11/vc23123.htm

V C Section 23123 Hand Held Wireless Telephone Prohibited Use
Hand-Held Wireless Telephone: Prohibited Use

23123.  (a) A person shall not drive a motor vehicle while using a wireless telephone unless that telephone is specifically designed and configured to allow hands-free listening and talking, and is used in that manner while driving.

(b) A violation of this section is an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

(c) This section does not apply to a person using a wireless telephone for emergency purposes, including, but not limited to, an emergency call to a law enforcement agency, health care provider, fire department, or other emergency services agency or entity.

(d) This section does not apply to an emergency services professional using a wireless telephone while operating an authorized emergency vehicle, as defined in Section 165, in the course and scope of his or her duties.

(e) This section does not apply to a person when using a digital two-way radio that utilizes a wireless telephone that operates by depressing a push-to-talk feature and does not require immediate proximity to the ear of the user, and the person is driving one of the following vehicles:

[The Tao]

"In the course and scope."

Let's pull the records and see how many were personal phone calls, especially when many of the conversations are conducted via radio, shall we?

[G M]

Let's start with why police officers have carte Blanche when it comes to breaking the laws. They are after all, the ones that took an oath.

**Ok, as I've already explained to you, sworn officers are empowered to do things, like high speed pursuits that others cannot. If an officer does something criminal, then that's a different issue.

Who I know is none of your business and certainly not for public knowledge. You're avoiding the question.

**Gee, you assert you "know things". I call BS. You accuse me of not answering a question.

Your assertion that it is only the actions of a few is false and I will respond with a list of which that proves it in a couple of hours.

**Oh wow. A list of bad cops. Name a profession, I'll show you members that did criminal acts.

You think that I'm anti-police, when in fact, I'm anti-police that think that they're above the law. Your writings here demonstrate that it is indeed a systemic problem.

The systemic problem is scumbags such you. Tell us how the bad ol' police were mean to you and got sand in your vagina.

[G M]

Get a court order and see.

[The Tao]

I have a question.

I have been respectful, haven't called anyone any names, but you have to resort to name calling.

I respect you. I don't find it wise to tolerate people that are supposed to be enforcing the law, breaking the law.

Sand in my vagina? For what? Expecting everyone to abide by the law? What is criminal or feminine about that?

[Crafty_Dog]

I have just floated home in a beautific grooviness trance from my Bikram Yoga class to find this    This is not the tone of conversation that we look to have around here.   Let's all take a deep breath, sing kumbaya, and have a group hug please.  

[The Tao]

I have just floated home in a beautific grooviness trance from my Bikram Yoga class to find this    This is not the tone of conversation that we look to have around here.   Let's all take a deep breath, sing kumbaya, and have a group hug please.  

My bad Guro. Will do Sir.

[Crafty_Dog]

GM?

[G M]

Forgive me. I'm tired of seeing a very large, diverse group of people, the vast majority of whom do a very difficult job ethically and honorably, getting smeared by those who couldn't and wouldn't do the job, and are ignorant of it's realities.

[The Tao]

For the record, nothing would make me happier than serving in uniform, busting scum that give drugs to children or hurt people. That's what I think about police work.

[G M]

LAPD is hiring. After 3 years on patrol, you can put in for Internal Affairs.

[The Tao]

No... I'd rather be in Mexico shooting drug cartel. I've been writing the PGR, with mixed results. It's truly where I would like to serve as people that would just kill people that way need to be dealt with.

I apologize if I offended you somehow. I was screwed up on drugs since my early teens and went on to organized crime. I've changed to a law abiding person for some 20 years now, and I realize that many like me don't go that route.

If you're going to take an oath, honour it to the letter. That's all I'm saying. Nothing more, nothing less. I wish with my whole heart that I was allowed to serve and to be honest, doing your very best, in every single thing that you do, only to always have people look down on you is disheartening, but I won't give in, nor will I quit demanding the best from myself. That's a personal issue I know, but nonetheless, it would be nice to be able to serve my people. I would do it with honour.

[G M]

The oath is to the constitution, not to never talk on a cell phone. Still, I will agree that if it isn't official business, it shouldn't happen. I'll be willing to bet that were an officer to be involved in an accident, IA would subpoena the cell records and if the officer was on a call that wasn't official, it would potentially result in internal discipline and/or charges.

BTW, if IA interviews a cop, the officer does NOT have the right to remain silent or have legal council present.

[Crafty_Dog]

PGR= Procuraduria General de la Republica?

[The Tao]

PGR= Procuraduria General de la Republica?

Yes Guro.

I speak Spanish fluently and I have someone there that I converse with. I've been very upfront with them about my past. Currently, the primary issue is that I'm not a naturally born Mexican citizen, and they haven't told me no, just that I'm not able to this current moment.

I wrote them back in regard to the almost one hundred people that were beaten to death with bats, many of whom were women and asked them that even though I'm not a Mexican citizen, perhaps I could have saved some of their lives, in addition to which, I'm not asking to make a fortune as a LEO, but really to just help people in a place where the reality is, if they catch you, they are going to torture you. We'll see what happens. Psycho? Maybe, but it needs to be addressed. Ultimately, it would only do good here in the U.S. too and I have a personal axe to grind with people that help children get drugs as that is by and large, how my life to become so screwed up at such an early age, and I will forever hate them for it. Anyhow...

Evil only wins when good people do nothing.

[JDN]

BTW, if IA interviews a cop, the officer does NOT have the right to remain silent or have legal council present.

I have the upmost respect for police officers and the difficulty of their work especially in the inner city.

Also, in the spirit of full disclosure I was once arrested at age 17 for an open beer container, but since then
I have never been arrested.  I have no criminal record.   

That said, while I don't know about your jurisdiction, in Los Angeles, the LAPD and officer DOES have the right to have
legal counsel.  The Police Union is very proactive.

Further it is my understanding that in ALL jurisdictions a police officer has the same constitutional rights that any
normal citizen has; perhaps more so here since the LAPD Union is quite strong.  He may of course be fired for not responding to IA,
but then so would I be possibly fired by my boss for not answering questions.  But I do NOT, NOR does a police officer
have to incriminate himself.

Regarding yours and Zen's comments, I think the exchange got a little out of hand.  I think what he was driving at
is that some/many police officers take advantage of their uniform.  I've rode along and listened to officers in their cars talk to their wives,
or speed if they are late for a staff meeting.  I've watched numerous times officers park in red zones to go buy a hamburger.  I've seem them ask for free food.
I've had friends (cute) being asked out for a date when they are being given a traffic ticket; i.e. give the number and no ticket.  
Heck, I have had cute friends have their ticket erased for a date. I've had police officers butt in line and say, "I'm a police officer" when they are with a
date or their wife, etc. etc.  At my old house my neighbor was a LAPD police captain.  His dog barked all night
long.  I complained and he basically said, "What are you going to do about it" and he laughed at me.  Happy ending,
I bought him lots of imported beer and he quieted the dog.  But again, he used his authority....

A big deal? No.  Nothing "criminal" about it.  But it shouldn't happen. No.  I too like to think an officer should obey
the law equal to me and/or even greater than me since he is an officer in a position of trust and authority.  
I "trust" policemen like teachers and doctors, and I am disappointed if they do not live up to my trust.

[The Tao]

ps... if one is thinking about a career with a Mexican agency, outside of AFI (their version of the CIA), PGR is the way to go. There are several other agencies, but these two are by far the most potent.

[G M]

Garrity and additional caselaw have clarified that a law enforcement agency investigating an officer for misconduct that may be criminal in nature can interview that officer without legal representation and the officer must answer all questions truthfully or face departmental discipline, up to and including termination. A criminal investigation of the same incident cannot use the compelled statements, UNLESS the officer chooses to testify on his or her behalf in the criminal trial, then the internal investigation, including the compelled statements can be admitted into trial. There isn't much like that for those not employed by a law enforcement agency.

[JDN]

Since you did not address the issue, then obviously you agree that case law entitles a police officer to legal counsel at ALL times.  Basic rule; you first
call is to your Union.

Garrity merely gives a police officer ADDITIONAL benefits that I don't have.  In the private sector in CA (CA is basically an at will state) I too may be required to answer to my boss without legal representation, but if I don't answer the questions satisfactorily, or if I irritate him or demand an attorney, I too may face discipline or termination for not answering his questions.  AND whether I chose to testify in my behalf in a criminal trial or NOT, these statements (as I try to honestly explain my actions to my boss) CAN be AND probably WILL be used against me in criminal court.  You are right, "there isn't much like this for those not employed by a law enforcement agency".  I and all private citizens are JEALOUS of the EXTRA protection given TO law enforcement personnel. 

[G M]

You may call your union, however there is no requirement that an internal affairs investigator allow representation to be present for the interview related to an internal investigation. In an internal investigation (Unless there is an agreement between the employer and the union). In my state. unions have no legal standing. In an internal investigation, there is no right to remain silent and no right to an attorney.

[Crafty_Dog]

"In an internal investigation, there is no right to remain silent and no right to an attorney."

Which makes sense to me.

@ZG:  I'm sorry, I am not clear.  You are a naturalized Mexican citizen?  Ay you no doubt know very well, from well before the narco wars the law down there has been and is VERY harsh concerning foreigners and guns.  Additionally, as noted on the US-Mexico thread, the Mex Army is getting concerned about the US military getting involved in Mexico.  Given the conspiracy minded nature of Mexican political thought about the US (not without raw material one might add!) it would be very easy to get caught in the crossfire of these politics-- especially any person of other than native born citizenship as I understand you to be.

I am not unfamiliar with Mexico (e.g. I train the SWAT team for the State Penitentiary for el Estado de Mexico every time I go down there for a seminar.  The situation there is very complicated right now and the narcos have penetrated to very, very high levels.  For example IIRC last year the man who schedules the President's itinerary was caught accepting the equivalent of $400,000 US a month!  Having no personal knowledge of your teammates and their environs upon arrival, I caution you that you would be a pigeon flying with eagles.  This is said with love and respect.

[G M]

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2008-pdfs/may08leb.pdf

Double
Exposure
Civil Liability
and Criminal
Prosecution
in Federal
Court for
Police
Misconduct
By RICHARD G. SCHOTT, J.D.
The law enforcement
profession comes with
many risks, most of
which are knowingly accepted
by its members. As in many
other occupations, lesser known,
more subtle risks also
are inherent in law enforcement.
When officers are involved in a
physical struggle or violent confrontation,
they run the risk of
sustaining injury or even death
to accomplish their law enforcement
mission. They may be
called upon to meet force with
force, sometimes having to use
deadly force. All uses of force
by law enforcement are subject
to review; none subject to more
scrutiny than the use of deadly
force. Officers can quickly
become familiar with internal
review boards, citizen review
boards, presentations of cases to
local grand juries to determine
whether state criminal charges
are appropriate,1 and civil lawsuits
brought in state courts by
alleged victims against individual
officers (or their employing
agency) that allege wrongdoing
on the part of the officer
(or entity).2 Under federal law,
there are two additional and
distinct causes of action that
officers may find themselves
encountering —a civil civil
rights lawsuit3 and a criminal
civil rights prosecution.4 Familiarity
with these federal actions
will help officers navigate
the potential minefield of
consequences that may result
from one single action.

[G M]

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2002-pdfs/june02leb.pdf

The Supreme Court has subsequently
held that a police officer
can be threatened with job loss for
failure to answer questions or otherwise
cooperate with investigators.
However, any answers given under
such circumstances cannot be used
against the officer in a criminal
trial.4 This ruling has led to the creation
of the so-called “Garrity
warning” used in internal investigations.
This warning, in various
forms, advises law enforcement
employees that they must answer
questions posed by investigators or
face the possibility of administrative
sanction, including job loss.
The warning also advises that answers
provided by the employees
cannot be used against them in a
criminal proceeding. In cases where
criminal prosecution against law
enforcement employees is contemplated,
the employees are advised
that they do not have to answer
questions but that any answers can
be used against the employee in a
criminal proceeding.

[G M]

http://apbweb.com/featured-articles/202-police-force-in-living-color.html

Use of force by police in this country for the past 17 years has been judged by Graham v. Connor [490 U.S. 386, 109 S.Ct. 1865 (1989)]. Very few citizens have had the opportunity to sit in judgment, whether criminal or civil, in police use of force cases. There aren't that many criminal cases brought (cops, after all, are the only ones that society gives authority to use force proactively), and the civil suits are most often settled or dismissed before trial.

When there is a trial, what jurors wrestle with are the requirements set forth by the Graham case. When police must use force, the Court says, the force must be "objectively reasonable" with respect to the facts and circumstances the officer is facing, and without 20/20 hindsight.

The court decided that, "The ‘reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation." Also what must be considered are the severity of the crime, the immediate threat to the safety of the officers or others, whether the suspect is resisting arrest or attempting to evade arrest by flight.

The list of facts to be considered is lengthy, but its highlights include: the number of suspects and officers involved; the size, age and condition of the suspect; the known or perceived fighting ability of the suspect; the duration of the action; the experience level of the officers; the distance from the officers to the suspect; and the weapons (including the officers weapons) in the immediate vicinity of the suspect.

Law enforcement officers are unique in society because they are permitted by law to use physical force to compel others to do their bidding. Officers intervene in a variety of urgent, unpredictable situations, and their mission is to keep the peace or to restore it. This awesome power must be wielded sparingly in a democratic society. The public rightly holds public administrators, including police officials, responsive to public preferences and demands. When officers use force they must do so to control a situation, not to punish an offender.

Use of force by police naturally upsets onlookers across the street as well as viewers of the six o'clock news. Conditioned by fictional media depictions of sanitized violence on one hand and fantastic "megaviolence" on the other, most people have no frame of reference other than personal emotions to evaluate an incident. The average viewer has little or no experience with real violence and the chaos that typically surrounds it.

People tend not to understand even legitimate use-of-force incident dynamics; people are repulsed when they see force applied to a fellow human being. But force is used in relatively small percentages of police confrontations, and people should not be surprised or offended that police must occasionally use force.

[JDN]

"In an internal investigation, there is no right to remain silent and no right to an attorney."

Which makes sense to me.

Perhaps it "makes sense" but it is not true.  A Police Officer DOES have the absolute right to remain silent AND demand
an attorney.  He has the SAME constitutional rights that you and I do working for our private employer.  Frankly, the police officer has
MORE rights and protection!

Let's say you work for IBM in LA.  Let's say that their internal audit department thinks you have been
stealing and they want to interview you.  You are ordered to appear; you have the the choice to attend and answer their questions
honestly and forthrightly without and attorney present or refuse.  Hopefully, since you are honest person you will attend and that will be the
end of that.  But maybe you did do something wrong?  Or maybe you don't like how the flow is going?
At all times you have the absolute right to remain silent and ask for an attorney, to leave the building and the 5th
amendment right to refuse to answer any further questions.  However, if you do, IBM may threaten you with
job loss and subsequently will probably terminate your employment.  That makes sense to me.

As a police officer anywhere in America you have the same constitutional rights; you have the absolute right to remain
silent and demand an attorney in an internal investigation.

Garrity, as GM posted above never stated that a police officer cannot refuse to answer questions or demand an attorney.
It only advises law enforcement employees that they must answer questions posed by investigators or face the possibility of administrative
sanction, including job loss.  The exact same situation as our fictitious IBM employee who will probably face sanctions or lose his job if he
refuses to answer questions.  However if there is any concern of criminal culpability the police officer may at any time constitutionally
refuse to answer questions and demand and attorney.

In fact, to facilitate compliance, Garrity protects and gives rights/benefits to police officers MORE than the common citizen.  In my analogy above,
if after the IBM internal audit interview it was determined by the IBM internal audit investigator that you had committed a crime, your
testimony and comments to audit WOULD be discoverable and could be admitted at trial whether you chose to testify or not.  A thorough internal
investigation could be damning but Garrity uniquely PROTECTS police officer from their testimony and comments being discoverable. 
"The warning also advises that answers provided by the employees cannot be used against them in a criminal proceeding"

[G M]

Garrity and other caselaw says there has to be a wall between an IA (administrative investigation) and a criminal investigation. The administrative investigation does not allow for you to seek legal council or refuse to answer questions, unless there is a prior agreement between the employing entity and a union, which does not apply in most law enforcement jobs across the country. In my neck of the woods, the unions have no legal standing, you have no right to a lawyer or union rep in any investigative questioning for an IA.

As I said before, the "wall" between the IA and any criminal investigation can be breached if in going to trial, the accused officer wishes to testify in her/her defense.

How is this different from the IBM scenario? The bosses at IBM don't have powers of arrest.  As I'm sure you know, JDN, companies sometimes eat losses from internal theft rather than have bad press from a criminal trial.

Not only does an officer face jeopardy from an IA, state level criminal charges and potential state level civil litigation, but federal actions, both civil and criminal

The LAPD officers in the Rodney King case were cleared internally, then aquitted on the state charges, then after the riots, convicted on the federal civil rights violation charges. Nobody at IBM faces anything like that.

[G M]

http://www.policeone.com/patrol-issues/articles/1747434-P1-Exclusive-Infamous-killer-cops-case-has-lessons-for-the-street-today/

Things people at IBM don't have to worry about.

[JDN]

Private employees too can be and often are sued in civil court (and probably will have to pay out of their own pocket versus public funds)
as well as being exposed to criminal charges for their actions.  And private citizens do not have the protection of Garrity.  Also, private citizen/employees
are subject to both State and Federal charges and penalties.

GM, that being said, it is not my intent to second guess or criticize after the fact police officer's decisions in the field.  I and I think everyone
agrees it is a very stressful and difficult job.


The two leading Supreme Court decisions that apply to IA interviews of public
employees are Garrity v. New Jersey (1967) and NLRB v. Weingarten (1975).

Police officers who are interviewed in a disciplinary setting should be warned that they
are under investigation for violation of departmental rules, that they are obligated to give
statements for internal purposes, and their answers may not be used against them in a
criminal proceeding. (added by me; private employees do NOT have this protection.)

Absent a statute on point, a warning is technically unnecessary unless the employee
declines to answer a question. However, state Bill of Rights laws, where applicable,
might require a written warning. For example, 50 Illinois Compiled Statutes 725/3.8(a)
reads:
“No officer shall be interrogated without first being advised in writing that
admissions made in the course of the interrogation may be used as evidence of
misconduct or as the basis for charges seeking suspension, removal, or discharge;
and without first being advised in writing that he or she has the right to counsel of
his or her choosing who may be present to advise him or her at any stage of any
interrogation.”

Constitutionally, the warning is essential before any disciplinary action can be taken for a
refusal to cooperate in the interview. Lybarger v. Los Angeles (1985).

Reciting a disciplinary warning is also a good practice, because it clarifies the purpose of
the interview and delineates rights and responsibilities. A typical “Garrity Warning”
follows:
Employee Disciplinary Interview – Advice of Rights
“You are being questioned as part of an administrative investigation of the Police
Department. You will be asked questions that are specifically directed and
narrowly related to the performance of your official duties or fitness for office.
You are entitled to all the rights and privileges guaranteed by the laws and the
constitution of this state and the Constitution of the United States, including the
right not to be compelled to incriminate yourself. You also have the have right to
an attorney of your choice, to be present during questioning.
“If you refuse to answer questions relating to the performance of your official
duties or fitness for duty, you will be subject to disciplinary charges which would
result in your dismissal from the Police Department. (note added by me; again it
is the same as private industry; the employee may be terminated for non compliance.)

“If you do answer, neither your statements nor any information or evidence which
is gained by reason of such statements can be used against you in any subsequent
criminal proceeding. (note added by me; in the case of a private employee to his disadvantage, 
such statements and information or evidence which is gained can and probably will be used against you
in any subsequent criminal proceeding.) However, these statements may be used against you in
relation to subsequent departmental charges.” 

[G M]

Private employees too can be and often are sued in civil court (and probably will have to pay out of their own pocket versus public funds)

**Private employees do NOT face federal and civil liability in addition to state criminal and civil liability for a single act. In addition, any monetary penalty for a civil rights violation lawsuit CANNOT avoided through bankruptcy. Any lawsuit against an officer as an individual is not covered by one's employer. An officer only has protection if the act was in good faith and within the scope of his/her employment. If you step outside laws, policies and ethical behavior, there is no protection against personal liability. Most litigation is focused on the employing agency, as that's where the deep pockets are.**

as well as being exposed to criminal charges for their actions.  And private citizens do not have the protection of Garrity.  Also, private citizen/employees
are subject to both State and Federal charges and penalties.

**Where would a private citizen face both civil and criminal charges at the state and federal levels for a single act? Example please.**

GM, that being said, it is not my intent to second guess or criticize after the fact police officer's decisions in the field.  I and I think everyone
agrees it is a very stressful and difficult job.


The two leading Supreme Court decisions that apply to IA interviews of public
employees are Garrity v. New Jersey (1967) and NLRB v. Weingarten (1975).

Police officers who are interviewed in a disciplinary setting should be warned that they
are under investigation for violation of departmental rules, that they are obligated to give
statements for internal purposes, and their answers may not be used against them in a
criminal proceeding. (added by me; private employees do NOT have this protection.)

**Do you think that a private employer could interview an employee with a LEO present and have any statement made by the suspect under the duress presented by the employer admitted into a criminal trial? I'd tend to think not. Can you cite a case where that was allowed?**

Absent a statute on point, a warning is technically unnecessary unless the employee
declines to answer a question. However, state Bill of Rights laws, where applicable,
might require a written warning. For example, 50 Illinois Compiled Statutes 725/3.8(a)
reads:
“No officer shall be interrogated without first being advised in writing that
admissions made in the course of the interrogation may be used as evidence of
misconduct or as the basis for charges seeking suspension, removal, or discharge;
and without first being advised in writing that he or she has the right to counsel of
his or her choosing who may be present to advise him or her at any stage of any
interrogation.”

Constitutionally, the warning is essential before any disciplinary action can be taken for a
refusal to cooperate in the interview. Lybarger v. Los Angeles (1985).

Reciting a disciplinary warning is also a good practice, because it clarifies the purpose of
the interview and delineates rights and responsibilities. A typical “Garrity Warning”
follows:
Employee Disciplinary Interview – Advice of Rights
“You are being questioned as part of an administrative investigation of the Police
Department. You will be asked questions that are specifically directed and
narrowly related to the performance of your official duties or fitness for office.
You are entitled to all the rights and privileges guaranteed by the laws and the
constitution of this state and the Constitution of the United States, including the
right not to be compelled to incriminate yourself. You also have the have right to
an attorney of your choice, to be present during questioning.
“If you refuse to answer questions relating to the performance of your official
duties or fitness for duty, you will be subject to disciplinary charges which would
result in your dismissal from the Police Department. (note added by me; again it
is the same as private industry; the employee may be terminated for non compliance.)

“If you do answer, neither your statements nor any information or evidence which
is gained by reason of such statements can be used against you in any subsequent
criminal proceeding. (note added by me; in the case of a private employee to his disadvantage, 
such statements and information or evidence which is gained can and probably will be used against you
in any subsequent criminal proceeding.) However, these statements may be used against you in
relation to subsequent departmental charges.”