|
Newsletters
Peace Officer Rights in Critical Incidents
With everyone worried about the suspect's rights, the victim's rights and the agency's liability, who is worried about your rights as an officer involved in a shooting, serious accident, inmate death or other critical incident? Is it your employing agency, whose primary objective is to escape liability? Is it the local District Attorney's Office, who make career advancements prosecuting cops? The truth is the only one looking out for you in a critical incident is your representative.
When a critical incident does occur, the most important and first thing that should be done is to contact an attorney who represents officers in critical incidents. Now is not the time to call brother-in-law who is a family law attorney. Your association likely has a list of attorneys to call or if you are a PORAC member there is a 24 hour number to call the Legal Defense Fund. The reason this is the first thing that should be done is most critical incidents occur at night and to get an attorney out to the scene is going to take at least an hour depending on your location and from where the attorney is rolling. Every shift should have a primary and secondary person who is responsible for contacting an attorney in a critical incident. While waiting for the attorney you should pick a representative to look out for your rights. Hopefully you have someone available who has a working knowledge of the Public Safety Officer's Bill of Rights. The 60 to 90 minutes you are waiting for your attorney are the most important. When officers get in trouble it is usually from something they do or say in this 60 to 90 minute window. Keep in mind the following rights you have as a California Peace Officer:
Right to Representation
California Government Code section 3303(i) and case law gives an officer the right to have representation of his/her choice in any interrogation where discipline is a possible result. While you can pick anyone to be your representative, in critical incidents, where there is a possibility of criminal charges, it is very important to have an attorney. For example, you get in a shooting and one of your fellow officers represents you. Section 3303(i) protects your fellow officer from compelled disclosure of any information you told him in any civil or administrative proceeding. The problem arises when that nice Deputy District Attorney you had lunch with last week is prosecuting you for the incident and he calls your representative to testify as to what you said. In the case of your fellow officer, it is admissible and possibly very damaging. If you have an attorney acting as your representative, Attorney/Client privilege comes into play and the attorney can never be compelled to disclose what you may have told him.
So what happens while you are waiting for your attorney to show up and the Sergeant walks up to you and asks you, "what happened?" You tell him that your attorney is on the way and you would like to wait until he/she gets there. If the supervisor is not willing to wait, get a tape recorder and record the following:
"I understand that I am being ordered to make a report or answer questions and that if I do not comply with the order, I may be disciplined for insubordination. Therefore, I have no alternative but to abide by the order. However, by doing so, I do not waive my Constitutional rights to remain silent under the Fifth and Fourteenth Amendments to the United States Constitution, and the protections afforded me under case law. Furthermore, by submitting to this coerced interview, I am waiving no right afforded me under the Public Safety Officer's Bill of Rights Act."
The Courts are very protective of officer's due process rights. That is why it is important that the officer be able to show he/she was compelled to answer questions or write reports without prior representation being present. For example, if you do answer questions after asking to wait for your attorney, it is possible to have those statements suppressed at any future disciplinary hearing. Hanna v. City of Los Angeles (1989) 260 Cal.Rptr. 782, 212 Cal.App.3d 363. This includes being asked to write an incident report. You have the right to have your attorney present while you write your report and if your agency refuses, your report will not be admissible against you in any disciplinary proceedings Watson v. County of Riverside (1997) 97 Daily Journal D.A.R. 13065.
Remember, these rights only apply in an interrogation where punitive action is possible. Your supervisor is entitled, if asked, to a very brief description of what happened for the purposes of securing the scene or locating outstanding suspects. The agency may compel an officer to give public safety information before your attorney arrives. Ward v. City of Portland (9th Cir. 1988) 857 F2d 1373.
Your Rights in the Interrogation
Your rights while being interrogated are the same in a critical incident as they are in any interrogation in which disciplinary action is possible. Under section 3303(c) of the Government Code, you are required to be told the nature of the investigation prior to any interrogation. Under 3303(b) no more than two interrogators can be asking you questions at one time, and yes, that includes a captain or chief. Under 3303(g) you have the right to bring your own tape recorder and record the interrogation. If this is a second interview, you have the right under 3303(g) to any reports and complaints as well as a copy of your statements from the first interview. These are the more important rights of many you have in an interrogation setting. Make sure you have a competent representative there to assert these and other rights that may come into play. After a shooting or other critical incident, you are going to have so many things running through your head. Trying to figure out what your rights are by yourself, while under stress, should not be one of them. Call your Attorney!
Always give a coerced
statement
If you give a voluntary statement, it can be used against you in a subsequent criminal and/or civil proceeding. That is why in every interrogation, you should make sure that you are not there of your own choosing, but only because you are ordered to be there and ordered to answer questions. If you are not ordered to answer questions then don't. This applies to other agencies investigating such as the FBI or the D.A.'s office. (The FBI is not your friend!) Politely tell them you do not want to talk to them (unless ordered to do so by your employing agency), and then only with counsel present.
Remember, in any critical incident, take advantage of those dues you pay and get some representation there. Do not make any statements while waiting for your representative, unless ordered to after you make clear on tape, that you want your representative present before answering any questions.
|
