Thursday, May 05, 2016

The (weak) case for waiting 48 hours before questioning cops about shootings

The website this week offered this defense of the rule giving police officers who shoot someone 48 hours before they can be questioned by their employer about the incident.
The call for the Portland Police Department to remove the “48 hour rule” that is currently required before an officer can be interviewed following a deadly shooting is another attack on law enforcement that may seem harmless to some but it is dangerous to the profession.

The demand made by a police oversight panel is just another uneducated, baseless request that makes no sense unless you want to harm law enforcement.

Of course the rule exists, hopefully in every agency, because of the sound research and past history of interviewing officers immediately after a critical incident.  One component of a high stress situation is a loss of memory.  Research calls it a “memory gap” and immediately after a shooting or other high stress event, those involved will often not remember details or misinterpret facts.  Those gaps begin to fill in and after a few days officers will have a clear picture of what occurred.

The importance of a 48-72 hour window after a critical incident is vital if you want an accurate depiction of what happened.  I have been there and witnessed it myself.  This so called “oversight committee” would have no clue and the only reason anyone would push for the elimination of this sound practice is to harm the reputation and/or indict more cops.
As Grits and others have pointed out in the past, if memory improves by waiting two or three days to question someone, why aren't suspects given time to compose themselves, speak to their lawyer, review any available video or other evidence, etc., before giving their statements? After all, their memories must be equally imperfect and "the only reason anyone" would want to question them sooner would be if they seek to "harm the reputation and/or indict" a presumed-innocent suspect, according to this way of thinking.

In the 70 or so agencies operating under Texas' civil service code, officers can't be questioned about any complaint against them, not just after critical incidents, unless they've been provided with a written copy of the allegations 48 hours in advance. And when they're questioned, interrogations "may not be unreasonably long." Moreover, as we saw recently in this case, if an officer reveals incriminating information when his or her employer does question them, those details can't be used in court.

By contrast, during the first 48 hours after a shooting, civilian suspects are often subjected to intense, lengthy questioning. As Dallas defense attorney Toby Shook has noted, "Police detectives often get very damaging statements from suspects shortly after the incident. At trial if the defendant’s story changes the prosecutor quickly argues to the jury that the defendant has changed his story and is lying."

Over time, these sorts of double standards breed understandable distrust.

If departments really believe memory is so fragile that their officers can't accurately recall incidents that occurred the same day, then the same protocols should apply to suspects. Otherwise, there's really no excuse for it beyond providing an additional layer of protection keeping bad cops from being held accountable for their misdeeds.


Anonymous said...

Why isn't this challenged in court on an equal protection claim? People in the same situation--involved in shootings--being treated differently than others by the law.

Gritsforbreakfast said...

Totally guessing, 9:18, IANAL, but perhaps it's because a) interrogation of cops is covered by employment law as well as criminal law, with the intersections generally favorable to the officer and b) it's hard to find someone with standing to make an equal protection claim, particularly when the shot person dies. Perhaps attorney-readers can suggest other reasons.

FWIW, in TX civil service cities the 48-hour thing is a state statute set by the Legislature back when Dems ran the state. In Portland, about which the article was commenting, it's a policy negotiated as part of their local union contract.

sunray's wench said...

That's fair enough, but I would then expect police officers to wait 48 hours before questioning any member of the public suspected of committing a crime. That would at lest help to remove "guilty by means of intoxication and unable to follw the line of questionning".

He's Innocent said...

Hmmm........ Sunray leads me to wonder would the same hold for the driver pulled over for DUI be able to lay claim to those 48 hours to sober up before they are questioned and tested for being under the influence?

I know, circular (or dumb?) thinking, but I'm honestly sitting here wondering about the huge black hole this switch in application would lead us into and how it might alter the outcome of so many brushes with the law. Lord knows the CJ system is all about pleas now but nobody can get a fair trial due to poor public defender services. This might be a way to disrupt the status quo?

Now my mind is spinning 100mph at all the possibilities! Hm....

Anonymous said...

I'm guessing here but I'd be willing to bet officers would trade the 48 hour waiting period if given the same ability to plead the 5th the rest of us have. All a person has to do to avoid those lengthy interrogations is tell his inquisitors that he wants a lawyer and is pleading the 5th Amendment. This might be a simplified version of how it works but for the most part, it is accurate. I join in with those who would extend a waiting period to the rest of us rather than take it away from some.

Gritsforbreakfast said...

They DO have the same ability to plead the 5th, but they have to answer questions if they want to keep their job. A job is not an entitlement and they have no right to it. Nobody says they MUST be employed as a peace officer. It's a choice. The 48-hour rule is a perk.

If we must choose, I'm fine with extending the same 48-hour courtesy to everyone else. Since IMO that will NEVER happen in my lifetime, for now I'll satisfy myself with calling for abolition of the 48-hour rule until the day I hear a police union rep advocate extending it to suspects. Then perhaps I'll reconsider.

Anonymous said...

Grits, I concur with your last comment and I am a former State Trooper. If it is OK to wait 48 hours to interview a LEO after a shooting, why not extend the same courtesy to a defendant involved in a shooting incident or other violent action? I know this can be a real slippery slope to deal with, but the Lege, if they so chose could define the area's where someone has 48 hours wait time before and interview. Of course, someone driving under the influence would be exempted from said 48 hour rule, for obvious reasons. Like you, for now, I am all for doing away from the 48 hour rule unless it is extended to everyone. I never thought I would say this, but my experience with the judicial system leaves me with a strong distaste for multiple reasons.

Anonymous said...

I am not a LEO, but in my long personal experience my thoughts and recollections are clearer closer to the sentinel event. Having more time elapse merely affords me the opportunity to put a better "spin" on my actions, and with even MORE time to think I am agle to make up new explanations and descriptions that had not formed initially.

48 hours for all or 48 hours for none.

Prison Doc

Anonymous said...

Si, I'm with you on this one Doc.

Anonymous said...

I'm not sure the 48 hour rule is necessarily good, but a "double standard" complaint is not really an argument against it. The difference is obvious -- a non LEO has a Fifth Amendment right not to answer questions at all -- whether 24 or 48 hours later or whatever. The fact that they've been arrested doesn't really change the calculation since your Fifth Amd rights don't kick in until custody anyway.

A cop, on the other hand, normally has no choice -- well, he has no choice if he doesn't wanna get fired. And if he's under that threat, whatever statement he makes can't be used against him anyway.

Look at it this way -- if I work at Jack in the Box, and I get arrested for some domestic violence thing, JITB isn't gonna say to me, "You better answer our questions, or you're fired." But that's precisely what happens to a policeman.

Again, I'm not sure that 48 hours is really necessary, but it simply isn't true that "during the first 48 hours after a shooting, civilian suspects are often subjected to intense, lengthy questioning." By using the word subjected, you make it sound completely involuntary. Don't worry -- there are plenty of suspects that clam up and exercise their right to silence. I'm not criticizing -- I'd do it myself. But at least I'm not risking my job by keeping my trap shut.

Anonymous said...

I wish I had 48hrs to recover my memory when I took tests in high school. Screwing up certainly fuels one's imagination least it improved the caliber of my excuses back in the day. So yeah, this 48hrs isn't about memory recovery. It's about story time. -The End

Anonymous said...

anon 1:19pm

you are right, jitb doesn't wait to ask questions they just fire you for being arrested.

Mark M. said...

Jack in the Box employees aren't entrusted by the people to use deadly force against other citizens. This isn't comparing apples and oranges; more like apples and 100-yard sprints.

Anonymous said...

Well, yeah, Mark M., I agree -- which is why in most departments policemen HAVE to answer questions if there's been an incident. Which, in turn, will make those statements inadmissible because the courts consider them involuntary.

I mean, obviously, this 48 hour thing is a sop to police unions who complain about being forced to answer questions. But think of the alternative -- if there was no 48 hour rule there would probably be (more importantly) no rule that cops have to answer questions. In which case, I guarantee you, cops would probably lawyer up and exercise their right to silence 100% of the time.

Anonymous said...

1:19 here again.

These rules and policies are designed to prevent officers from receiving criminal repercussions for their actions. The reason why Unions are allowed this privilege is because municipalities also directly benefit from those policies come lawsuit time. If you have an improper shooting and a cop making statements which establish detailed facts which serve the case of it being improper, then you are adding to the municipality's liability. It is in the economic interest of both cops and municipalities that cops get their story straight before delivering it to an investigator. I would even go as far as to say citizens condone this implicitly....until someone they know or their own son gets shot and killed. Then you have an unprotected minority--race being usually involved but not always.

These backdoor dealings never come to light until lawsuits come into the picture. Journalists can't get access to police shooting records unless someone gets convicted. Dead suspects are difficult to convict. Officers...impossible to convict.

There should be a standard procedure for investigating officer involved shootings and all of the findings should be made public every single time it happens...if for no other reason than officer safety. You want to give officers 48hrs to prep their story? Fine. But make the entire process far more transparent than it is today. Make the audio and video of the incident public at that same 48hr interval. That way the public can ascertain what really happened and they don't have to rely upon Officer Mark Twain's best short story skills.

The biggest problem with officer involved shooting investigations is that there is no standard procedure for how to conduct them. I challenge any journalist to look at 5 officer involved shootings. Read the investigator reports. The investigators don't even account for all of the audio/video gathered at the scene of an incident. They don't because no one and no law forces them to do so. This 48hr get your story straight policy is just the tip of the iceberg.

The only real change occurs when citizens and journalists unite to shine a continual light on this problem. Ultimately, only transparency can help guide policy.

I've served on a police review board along side law enforcement. The real LEO's in public service want what regular citizens want--to get rid of the bad apples--weed them out. They want the public's trust and they don't mind additional transparency to prove it. Anyone standing in the way of transparency doesn't care about the public's trust...which is a very different problem.

Anonymous said...

8:39, 100% right. F.R. Buck Files(butt flies) in Tyler uses this 48 hour rule to his advantage to help the prosecution even though he is the defense attorney!

Anonymous said...

10:18 -- Huh? I don't think I'm reading your sentence right. How does a defense attorney "use" a rule (that applies only to cops) to "help" the prosecution? Help them do what?