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Newsletters
Los Angeles District
Attorney Officer-Involved Shooting Program
The Los Angeles County District
Attorney's Office has announced that it will reinstate its officer-involved shooting program. Effective January 15, 2000, Deputy District
Attorney's and investigators from the Special Investigations Division will respond to critical incidents, including officer-involved shootings with hits, in custody deaths and related acts of law enforcement resulting in injury or death. The District
Attorney's Office expects prompt notification and complete cooperation. At least one deputy district attorney and district attorney investigator will be sent to the scene and conduct an investigation contemporaneous with the criminal and administrative investigations of the local agency.
Although the DA has indicated its members will attempt to adopt the involved departments investigative protocol, and work with the police investigators, the special investigations division will conduct its own independent investigation if necessary. The role out team expects to be present and have full access to all witnesses, evidence and involved officers. They expect to ask questions and directed evidence be collected. However, they will not talk with the shooting or involved officers (other than witness officers) unless required. At this time, the
DA's office will not participate in coerced (non-voluntary) statements of involved officers.
The Los Angeles County District Attorney's Office states its purposes to conduct a Athorough and neutral
examination of the incident to determine Athe potential criminal liability of the
officer's/deputy's actions. The DA's Office is not interested in examining questions of department policy or the tactics of the officers. Instead, the department will focus solely on the
officer's actions to determine if they complied with the law.
The DA's Office intends to issue a protocol that will apply to the two categories of incidents with which they are most concerned within Los Angeles County. The protocol will likely include permitting full access at the scene so that the District
Attorney's Office can advise and assist the investigating officer on criminal law issues. The roll out team will observe and participate in the police investigation, taking their own photographs and recording witness statements separate from those of the investigating officers. Depending upon the circumstances, the DA team may conduct a fully independent investigation.
At the present time, the DA's Office will not be present during any compelled interview and will not receive any information concerning the content of a non-voluntary statement. The
DA's view is that a compelled statement may be inadmissable in a criminal proceeding and does not play well before a jury.
Our firm attended a meeting with members of the special investigations division of the Los Angeles County District
Attorney's Office last month to hear a presentation on the reinstatement of the officer-involved shooting program and the preliminary protocol. A major point of discussion was the use of voluntary versus compelled statements of the involved officers. The
DA's office believes that compelled statements can not be used in a criminal courtroom and, therefore, such statements will not be used by the
DA's office to decide criminal culpability of the officers. Our review is that compelled statements can be used to prosecute defendants but not against the involved officers. At the time of our meeting with the Special Investigations Division, no specific statute or case law was provided to support the District
Attorney's position.
The purpose of this letter is to inform our clients of their rights during an officer-involved shooting and this
firm's opinion on the District Attorney's direct involvement in the investigation. We roll out on all officer-involved critical incidents when requested and will provide advise at the scene to the involved officers, which advise will vary depending upon the circumstances of the incident. Following is our general view of this new program.
As most of you know, most of your rights under the Public Safety Officer's Procedural Bill of Rights Act (Government Code '3300 and following) are waived should you provide a voluntary statement. Those protections are found in Government Code '3303 and 3304.
When you are ordered to provide a statement (that is, a coerced statement), that statement can not be used against the officer in any subsequent criminal and civil proceeding. Of course, any statement an officer makes, coerced or voluntary, can be used against him or her administratively during future disciplinary proceedings, if any. Thus, when you speak voluntarily to anyone other than an attorney concerning your actions during a shooting or other potential criminal act, those statements can be used against you should the District
Attorney's Office charge you with a crime. Further, those statements can be used against you should you and your department be sued for wrongful death, wrongful injury or civil rights violations.
Our experience is that police officers are placed under a tremendous pressure to make voluntary statements whenever they are involved in a shooting, in-custody death, or a pursuit which results in civilian injury or death. Various reasons (excuses) are given by the investigating agency and the District
Attorney's Office, such as the public's right to know, so that the officer's version of the events is placed on the record, to avoid the
a code of silence accusations, and to provide the department with information they otherwise would not be able to obtain. In our view, these reasons (excuses) do not justify an officer making a voluntary statement.
In addition to waiving many significant rights under the PSOBOR Act, the officer gives up his or her constitutional rights and exposes him or herself to criminal prosecution solely on the officers own statements. In truth, the officer will provide a full and complete statement to anyone with authority to order that the officer answer questions or write a report or prepare a memorandum. All that has to be done is to order the officer to answer questions. At that point, the
officer's verbal or written statements are coerced (non-voluntary) and attached to them are all of the constitutional and statutory protections guaranteed to the officer so long as they are invoked.
The only difference between a coerced and a voluntary statement is the ability of the District
Attorney's Office (and the California and Federal Departments of Justice) to use the voluntary statement to prosecute the officer. The District
Attorney's Office wants very badly a voluntary statement so that its decision to prosecute the officer is not impeded by the lack of the officers own statements.
One of the scare stories frequently used by criminal investigators and prosecutors is to threaten the officer with arrest on the basis that they do not know what really happened because they do not have a voluntary statement from the officer. That is pure bunk. They can review as often as they like the
officer's coerced statements; the only difference is they can not use those statements to prosecute the officer. As a result, criminal investigators and prosecutors refuse to accept coerced statements, thereby putting pressure on the officer to make a voluntary statement. By reviewing the coerced (non-voluntary) statement, criminal investigators and prosecutors will know everything that happened from the involved officers.
All of our clients and association members involved in a shooting or other critical incident resulting in injury or death should never give a statement to anyone until they have spoken to an attorney. Only an attorney can receive statements from the officer (his/her client) which are then privileged and can not be revealed. A non attorney, such as an association representative or pier officer, can be ordered to reveal statements an officer makes concerning a potential criminal event. Our firm practice is to carefully review the
officer's actions in light of the circumstances of the incident, criminal law, department policy and training. After this consultation, we may assist a client/officer to make a voluntary statement when appropriate and if requested by the officer. However, the vast majority of officer-involved shootings do not require voluntary statement and one can not be accurately made.
Most shootings are confusing and frightening incidents where emotions erase memory and bad judgment after the fact surfaces. It has been our long experience that an officers initial statements are not accurate. Most of the time the criminal investigation is not sufficiently complete in order to compare the known facts with the potential voluntary statement. Many departments recognize this fact and do not ask the officer for any questions, voluntary or coerced, until they have fully completed their on-scene investigation and know exactly what happened before questioning the officer. We can think of nothing worse than an officer making a voluntary statement based upon the few seconds of his/her involvement in a shooting which later turns out to be dramatically different than what the department and prosecutors happened. Our files are full of such cases and, generally speaking, officers who have volunteered statements have suffered under civilian and prosecutorial criticism in the media and in the courtroom because their statements did not exactly match the supposed facts or the public version of what happened. The Riverside and Claremont cases are classic examples of how
officer's statements taken immediately following the shooting are torn out of context and used as fodder for self-proclaimed community spokespersons and other critics of the shooting. Similarly, representatives of prosecutorial agencies (state and federal), under extreme public pressure to prosecute officers, look to the
officer's statements as justification to criticize and prosecute.
We understand the pressures placed on officers to quickly make a statement to ostensibly vindicate the shooting and give the appearance that they acted appropriately. Too many times officers are slapped on the back and told by department managers that their shooting looks clean and it is okay to make a statement.
That's the moment of greatest vulnerability for an officer who frequently has been shepherd into a supervisors office and leaned on to make a statement. Even when an officer is inclined to make a voluntary statement, the first thing he/she must do is ask to speak to the associations attorney. We are a quick phone call away to talk about it first. We will very quickly respond to the scene and remain with you during all phases of the criminal and administrative investigations. We do not go home until you go home. There is but one reason why you should make a statement prior to talking to an attorney: when an armed suspect remains on the loose. But all you are required to say under present law is to provide a description of the suspect and direction of travel. This is the so called
public safety exception which was generated by the U.S. Supreme Court permitting police officers to question suspects of the whereabouts of their weapons. Beyond this brief description of fleeing suspects, your department can not lawfully order you to give a statement before you speak with your attorney providing that you ask to speak to your attorney first.
When you think about it, deceased suspects are not going to be prosecuted. Surviving suspects will be prosecuted based upon the available evidence, including your coerced (non-voluntary) statement. Such a coerced statement can be lawfully used against a suspect when and if prosecuted by the District
Attorney's Office. The only purpose in obtaining a voluntary statement at this early stage of the investigation is to prosecute you or other officers involved in the shooting.
In conclusion, the worse possible time to make a statement (voluntary or otherwise) is immediately after your involvement in a shooting. The very best thing you could do is to ask an association representative to contact their attorneys and have them respond. We will assist you in making your statement, whether voluntary or coerced. Please remember our job is to protect your job; the advise we give you will be based solely on this purpose.
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