Post-critical incident conversations: Be careful what you say, and to whom you say it

This is something that every officer should be knowledgeable about. It is not something that is paid much attention to in a young officer’s career. It is gone over in the Police Academy but not in depth and it is not something that I really worried about. If you are ever involved in a critical incident it is imperative that you be aware of this. If you are not aware of all your rights then get a union rep asap before answering any questions from superiors.

Police Liability and Litigation
with Terrence P. Dwyer, Esq.

You are on patrol, thirty minutes until the end of your week-long midnight shift rotation, you are tired, a bit hungry and thinking about your six year old child’s birthday party later in the afternoon. Mentally you are reviewing your day’s itinerary: go home, get a few hours sleep, then help your spouse set up for the party and pick up the cake. A check of a commercial district in your patrol sector will be your last run of the shift before heading to the station to gas up and sign-out.

As you pass behind a row of stores you see a lone subject exit a door that appears to have its lock broken. You hit your spot light and the individual takes off. As you exit your patrol car you call in your location and involvement in a foot pursuit. The chase leads to a wooded area behind the row of stores. You yell at the suspect to stop and show his hands when suddenly the suspect stops, crouches, and turns toward you. You see an object in his right hand, order the suspect not to move, but he continues in one motion and his upper body leans forward. You fire two rounds striking the suspect in the chest and shoulder.

While keeping the suspect covered you cautiously approach, call in the shooting, and request an ambulance. You check the suspect’s pulse—it is weak. On the ground near the suspect’s right hand is a cell phone. No gun or other weapon is found on or near the suspect.

Within ten minutes of the shooting the suspect will die from his wounds. Your day has suddenly taken a dramatic turn. A person is dead; it is a homicide, whether or not it is justifiable will be determined by grand jury review. You will be questioned and expected to provide answers. What protections are in place for you? Criminal defendants have rights—what are yours?

The Fifth Amendment provides important individual protections against the awesome power of the state. As a public servant though, a police officer is not as insulated from official questioning as a civilian would be in the same situation. The extent of the Fifth Amendment privilege as well as other testimonial privileges as applied to a police officer after a critical incident can be a minefield.

While the above scenario is dramatic it can be equally relevant to a vehicle pursuit resulting in the suspect vehicle crashing and the operator succumbing to injuries, or a violent domestic in which one of the participants is injured by responding officers. This article will focus on fellow officer and union official-union member conversations which are generally considered benign, non-formal conversations.

Although they are not officially-compelled conversations, as in a Garrity situation, they can come back to haunt the officer and have serious repercussions. A review of the present state of the law as it pertains to non-formalized post-critical incident statements made by officers is warranted.

Fellow Officer Conversations and the Self-incrimination Privilege
An important aspect of the Fifth Amendment in the immediate aftermath of a critical incident is the privilege against self-incrimination—the admonition to not be a witness against oneself. In today’s litigious, blame-the-cop-for-everything society, it is prudent for police associations, unions, and fraternal lodges to have a police attorney available on call. The attorney will be the officer’s first line of defense. But, often the first one an officer speaks to after a shooting, use of force, car chase, or critical incident is not an attorney but a fellow cop or a union representative.

Communications with other officers at a scene can have a potentially adverse affect for the involved officer and the responding officer in a situation never before contemplated. A simple query such as, “What happened?” can have the responding officer in court testifying to exactly what the involved officer said. Will it be contradictory to a version the involved officer gave to IAB or the patrol supervisor? Can something an officer divulged to a fellow officer later be compelled in court from the officer?

The more important question is: how reliable are spontaneous, post-critical incident versions of events?

There is enough academic and medical literature available to establish that it is best not to interview a person immediately after a traumatic event. Officers involved in shootings have told investigators shortly after the event they fired two rounds, only to be later confronted with the evidence they emptied an 18-round clip. Was the officer lying? Covering up? To the uninformed public it may appear so, but officers under stress often revert back to the training modules drilled into them, which generally is to fire in two round bursts. The officer’s mind might have been telling him one thing under stress but his body was doing another.

A citizen who hears the officer fired eighteen rounds but claimed to only have shot two rounds may assume excessive use of force, or worse, criminality. It is not criminal behavior the officer is exhibiting, it is human behavior. Unfortunately, in the real world of policing, officers do not have the same luxuries as other citizens. They are accountable for their actions and need to provide immediate details of the event. After an incident, officers will have to speak to a supervisor — within the negotiated collective bargaining guidelines — but communications should be limited to their stated purpose.

Involved officers at a scene will be working off adrenaline, responding officers would do well to calm their colleagues down and be less concerned with a chronology of events and more inclined to ensure their colleague is okay and shielded from the curious.

Consider the facts from People v. Probasco, 795 P.2d 1330 (1990) as an example of a responding officer’s good intentions gone wrong for the shooting-involved officer. The defendant, a county deputy sheriff, called in a vehicle stop. Soon thereafter responding officers found Deputy Probasco’s vehicle unoccupied with the emergency lights activated. Within a short distance of the vehicle, responding officers found Probasco kneeling over the motorist’s body. The individual had been shot in the head. A responding sergeant testified that Deputy Probasco was “shaken up and overwhelmed with what was going on.”

While the sergeant took control of the investigation and began resuscitating the victim other officers were asked to tend to Deputy Probasco. Two officers took Probasco back to his patrol car. As Probasco sat there, a third officer, Leon Smith, joined them and in an effort to make conversation asked the deputy how his radio and baton ended up on the porch of a nearby home.

With that, Probasco stated “let me tell you what happened” and gave on account of a foot chase after being shoved by the driver, the driver hiding in some bushes, and attacking Probasco a second time. During the second struggle Probasco had his gun out and the suspect struck the weapon causing it to go off.

Deputy Probasco was subsequently charged with criminally negligent homicide. At trial the defense moved to suppress the statements made to Officer Smith as an un-Mirandized custodial interrogation. On appeal to the Colorado Supreme Court, the trial court was overturned. The appeals court noted that none of the normal indications of custody were pre
sent. Rather than attempting to interview Probasco, the responding officers were trying to calm him down and keep him company. While a reasonable person in Probasco’s position might consider himself in custody, a reasonable police officer would not. The court indicated Probasco was not handcuffed, abused or threatened, and the inquiry from the fellow officer was no different than an officer asking a motorist “what happened?” after an accident.

The Fifth Amendment provides that an individual shall not be compelled to be a witness against himself and Miranda provides specific warnings prior to custodial interrogation, but you cannot close the barn door once the chickens have escaped.

Casual banter among officers should not take place during the aftermath of a critical incident otherwise officers may find themselves in similar situations as described above.

The 2003 U.S. Supreme Court decision in Chavez v. Martinez, 538 U.S. 760 (2003) is an example of the narrowing limits of Fifth Amendment protection. The Court addressed the self-incrimination privilege not as a stand-alone right but one which rests on subsequent use of a compelled statement. In Chavez , a defendant was being treated for gunshot wounds received in a battle with the police. The defendant (Martinez) was questioned in the hospital by a police officer who, among other things, threatened to withhold treatment until Martinez provided the information sought. None of the information Martinez provided to the police was used against him in the criminal case. Martinez sued for violation of his Fifth Amendment right not to be compelled to be a witness against himself and his Fourteenth Amendment due process rights. The Supreme Court rejected Martinez’ claim and refused to find the actions of the police officer amounted to a violation of his civil rights. The Court indicated the Fifth Amendment self-incrimination is specific in its protection and merely guarantees non-use of compelled statements.

This decision continues a twenty year effort to limit the effect of the decision in Miranda v. Arizona and further define the contours of the Fifth Amendment privilege against self-incrimination. Chavez left open the possibility of a civil claim under the Fifth Amendment if the defendant’s statements were used against him in a trial to his detriment.

This reasoning may be bolstered by the Sixth Circuit’s decision in McKinley v. City of Mansfield, 404 F.3d 418, (6th Cir., 2005), rehearing denied, 2005 U.S. App. LEXIS 16624, cert. denied 2006 U.S. LEXIS 46 (2006), in which the municipal defendant was denied certiorari by the Supreme Court. In McKinley an Ohio officer was questioned regarding an internal investigation. The officer exercised his administrative rights and requested a union delegate. A delegate was provided and the officer subsequently gave a statement with a Garrity preamble attached. The officer was subsequently recalled by the IAB investigator to provide further information. This was done after the IAB investigator uncovered information which led him to believe the officer had lied during his first interview.

When the officer returned for his second interview the IAB investigator advised him the second statement was still subject to Garrity. An exception to Garrity immunized statements exists when the officer has lied or falsified information. The statement can then be used in a perjury prosecution against the officer. McKinley was indicted based on information provided in his second statement which contradicted what he had previously told the IAB investigator. McKinley initiated a civil rights claim based on several factors, one of which was his compelled self-incrimination in violation of the provisions of Garrity and the Fifth Amendment.

The Sixth Circuit denied the defendant municipality’s summary judgment motion on this issue in finding that there was sufficient question of fact as to whether McKinley was compelled to be a witness against himself. If so, the Sixth Circuit held out the possibility that the statements used against McKinley in the criminal trial are actionable as a civil rights claim for a willful violation of the officer’s self-incrimination privilege.

What does all this mean for officers after a critical incident? Simply, it is easier to keep your mouth shut and speak only to those you are required to speak to than to litigate the admissibility of statements you made.

Union Official-Union Member Privilege
What if the above described Probasco scenario was shifted a bit and the officer did not converse with responding officers but with his union representative? Would this communication be protected as a privileged communication? The immediate answer is no.

My experience has been that many officers believe all communications between them and their union official are private and confidential. Nothing can be further from the truth. There is a distinct dichotomy between the statuses accorded a union official in employment-related matters and those considered more tangential to the employment relationship.

The New York experience has been to acknowledge a quasi-privilege related to disciplinary matters. See City of Newburgh v. Newman, 70 AD2d 362 (3d Dept., 1979). Under New York State Civil Service Law the questioning of a union official or forced disclosure of communications relating to “observations and communications with a fellow officer…facing disciplinary charges” amounts to an improper practice. Other New York courts have found “a species of privilege for labor union leaders” but restricted the privilege to “intra-union communications on labor matters.” See Seelig v. Shepard, 152 Misc. 2d 699, 578 NYS 2d 965 (NY Co., 1991).

Outside the realm of labor-relation matters, no generalized privilege akin to the attorney-client privilege exists. The Second Circuit Court of Appeals considered this exact issue in In Re: Grand Jury Subpoenas Dated January 20, 1998, 995 F.Supp. 332 (E.D.N.Y., 1998). This case stemmed from the infamous Abner Louima assault in Brooklyn by NYPD officers. Several union officials were subpoenaed by the U.S. Attorney to testify about conversations they had with officers being investigated by a federal grand jury. The PBA claimed a broad evidentiary privilege but also relied on the fact that shortly after having met with the involved officers, the union officials obtained attorneys for them. This, they claimed, brought them under the shield of the attorney-client privilege.

The Second Circuit rejected the notion that a common law privilege existed between the officers and their union officials. The court further noted that the New York Governor vetoed 1996 legislation seeking to codify such a privilege. Similarly, in addressing the PBA’s piggy-back claim of an attorney-client privilege, the court, citing Walker v. Huie, 142 F.R.D. 497 (D. Utah, 1992), said such a claim of privilege is strictly construed. Therefore, the court continued, there has to be an already established attorney-client relationship wherein an agent of the attorney is providing services directly related to legal representation. Traditionally this relationship has only been extended to paralegals or investigators working for an attorney.

The law recognizes several privileged communications. The most well-known are the attorney-client, doctor-patient and pastor-penitent privileges. The reason for these privileges can be summarized in four words: to ensure full disclosure. Absent this legal protection, an individual would have what he told his lawyer repeated against him in open court, his medical problems discussed in public, or his inner demons exposed for ridicule. Thus, full, open, and honest disclosure is the basic theory underlying the privileges.

This logic follows suit in similar form for other recognized privileges. Without the privilege being in place, the possessor of the privileged communication would be stymied in performing his job. Most of the rec
ognized privileges extend to the class of professions wherein confidences are a necessary part of the job. The balance in consideration of extending any communication privilege is the public’s right to know, or to obtain the evidence, versus the protection of a specified relationship between the parties. As for the union official-union member relationship, there has been no recognition by the courts of a generalized privilege. Only within the narrow confines of labor relations has this privilege been applicable. Even in recognizing the limited privilege courts have further narrowed it by applying it only with respect to employer inquiries. Criminal inquiries, those involving grand jury investigations or trials, are outside the claimed protection. Attempts to codify the privilege have likewise been turned down in California, and other state courts have rejected the claimed privilege. See eg., American Airlines v. Superior Court, 8 Cal. Rptr. 3d 146 (2003); Hunt v. Maricopa County Employees Merit System Commission, 619 P.2d 1036 (Az., 1980).

Presently there is only one state which recognizes the union official-union member privilege. In 2006 the state of Illinois added the privilege to its civil procedure law creating a broad privilege on par with the attorney-client, doctor-patient and pastor-penitent privileges. The new statute prevents a union official from being compelled to disclose any communication with or from a union member. The union official must be acting within his representative capacity or attending to his professional duties. See 735 ILCS 5/8-803/5. Absent legislative action, the courts are not prone to readily accept new privileges such as the union official-union member. A key consideration in the grant of any claimed privilege is whether or not it is a relationship the community is willing to recognize and whether it is one the community agrees needs to be protected.

In United States v. Nixon, the Supreme Court refused to adopt a general Presidential privilege in all communications with his advisors. This is indicative of the caution with which the courts will proceed in considering evidentiary privileges. If anything, the law will lean toward the admissibility of relevant evidence.

The foregoing should be a warning for officers to keep their comments and conversations after a critical incident to a minimum. Collective bargaining agreements, department policy, and local district attorney protocols will provide some guidance as to how officers are treated in this situation. While officers need to be forthright in explaining their actions, they do not surrender the ability to legally protect themselves. The best way for officers to do so is to limit who they speak to after a critical incident, thereby limiting the potential for contradiction and unintended adverse fellow officer testimony.

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