Friday, August 19, 2016

Dallas eliminates special protections for officers after police shootings

Great news out of Big D, where police accountability activists scored a major victory this week. Reported the Dallas News (Aug. 18):
The Dallas Police Department has discontinued its policy of waiting 72 hours to interview officers involved in police shootings.

The announcement came late Thursday as part of the department's response to a 14-point list of demands made by the Next Generation Action Network. The group has railed against police brutality nationwide and called locally for more community oversight in officer-involved shootings.

"Effective immediately, every officer will be provided the same legal rights as any other citizen who is the subject of a criminal investigation," the department said in a statement. ...

The department's policy had given officers 72 hours before they were asked to make a formal statement to detectives in the special investigations unit, which studies all assaults and shootings involving police officers.
Regular readers may recall Grits blasted that policy when DPD enacted it in 2013, so this is welcome news. Grits can't immediately tell from the coverage if the change applies to all misconduct allegations or only shootings, but the former would be preferable to the latter.

The question immediately arises: Might other Texas jurisdictions follow suit? The answer is maybe, it's complicated.

Dallas Chief David Brown could do this unilaterally because  their negotiators did a better job retaining power over the disciplinary process in their "meet and confer" (read: collective bargaining) agreement with the local union than, say, their counterparts in Austin or Houston.

The Dallas agreement (pdf, p. 7-8) does not dictate that agency's disciplinary process the way Austin's does. Instead, it specifies that, "the City shall retain the sole, exclusive and vested right, prerogative, power and authority to ... establish, eliminate, modify, review, and enforce rules and standards governing job performance, personal conduct and appearance, uniforms and equipment, safety, training, education, attendance, discipline, and efficiency ... [and] the right to establish, abolish or modify processes and procedures for investigating and reviewing Officer conduct and complaints relating to that conduct."

Under their situation, the chief can make that decision unilaterally.

By contrast, Austin's meet and confer agreement (pdf) is much more detailed and dictates every detail of the disciplinary process. When Austin PD interrogates cops over misconduct, they receive an array of special protections which don't apply to average citizens.

For example, not less than 48 hours before an Austin police officer must give a statement to investigators about alleged misconduct, he or she must be provided with "a copy of the complaint(s)," as well as any additional allegations discovered by investigators which are not included in a complaint. The officer and their attorney may also "review the portions of any document(s) in which it is alleged that the Officer provided false, incomplete, inconsistent, or conflicting information, or in which it is alleged that the Officer omitted information in violation of any law or Department policy," as well as "any report, supplement use of force report, or other statement recorded or written by the Officer, setting forth particulars or facts regarding the operative conduct which is the subject of the allegation(s). In addition, officers are also "provided an opportunity to review any videotape, photograph or other recording of the operative conduct or alleged injuries, if any, which is the subject of the allegations if such a recording is within the possession or control of the Department."

In Houston, by contrast, their 48-hour rule is enshrined in HPD's stand-alone section of the state civil service code. There it dictates that officers receive notice 48 hours before being subjected to interrogation under the statute. But their meet and confer agreement goes further, letting officers see copies "of the statement/affidavit/complaint that serves as the basis for the complaint by the complainant at the time the 48 hour notice is given," as well as any "written statements or affidavits received or gathered by the investigative authority from witnesses, officers or supervisors obtained during the investigation before the officer's interrogation."

Imagine these same protections being applied to regular criminal defendants. Basically, the stuff the Michael Morton Act says most defendants get to see after they're formally charged, Austin and Houston police officers get to see before they're ever even questioned by investigators. As a former GOP DA candidate in Dallas, Toby Shook, said when their policy was enacted, "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." Police officers, however, are held to a far lesser standard and those sort of "gotcha" tactics don't apply to them.

Bottom line: the new Dallas rule is a good one but some other jurisdictions may be prevented from implementing something similar without revisiting the subject in their meet and confer contracts. Chief Brown could accomplish this quickly because past collective bargaining agreements did not tie his hands on officer discipline. Other departments which weren't as wise must wait until their contracts expire before it's possible to follow suit. When that happens, they should seek contract language closer to what's in the Dallas agreement.

RELATED: On the limits of enacting police reform through union contracts.

13 comments:

Anonymous said...

Why do you think defendants get to see discovery under MMA after they are formally charged? It's a battle we have been fighting for a while now, what does as soon as practicable really mean, the CCA has not really made it clear either. Curious why you have the opinion its post-indictment/information the defendant can have discovery and not after arrest/pre-indictment.

Gritsforbreakfast said...

I think they don't get to see it it before they're interrogated. Do you disagree?

Anonymous said...

@10:37… Because there's not a "defendant" until a prosecution commences. And there's not a prosecution until a prosecutor or grand jury files a charge.

Anonymous said...

@12:35 ... No, that is not true. Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL. (a) A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.

If that were the case, then no one would get appointed attorneys until indictment/information.

@Grits, I take "formally charged" to mean information/indictment, so I took it to mean you were saying the things MMA provides for do not get released to a defendant until they are indicted/filed on. But if you are saying after 'accused/charged' then I would take that to mean pre-indictment/information.

What's your opinion about the dispute on "as soon as practicable"? Do you think we should get discovery prior to indictment? I think it should follow the logic of 1.051.

Gritsforbreakfast said...

@1:39, I think it's a dispute that has not been resolved. And of course, IANAL. Make me Philosopher King and I'd say give discovery ASAP. IMO that's what the Lege intended. But whether that's what TX courts will rule is another question entirely. Until they say so, though, we know for sure they can get discovery after indictment - before then, criminal defense lawyers may be arguing they should get it, but as far as I know that's not been determined yet.

Regardless, my point was not to plumb the depths of undecided legal doctrine around Morton. Rather I aimed to emphasize the quite-well-established point that criminal defendants do NOT get to review all the evidence against them before submitting to interrogation, in the manner to which police officers in these jurisdictions are accustomed.

Anonymous said...

@1.39...What adversarial proceeding? Until there's a charge filed it's speculative at best as to whether there will be any adversarial proceeding. Which judge will enforce the provisions of 39.14 until jurisdiction becomes vested in a particular court?

Anonymous said...

Good for Dallas! At least they are trying to do the right thing. Cops will probably always get away with murder in Comal County / New Braunfels. They don't even get their hands slapped for lying. Here's part of a blog by Susan Schoon (Schoonlawfirm.com) about a cop caught lying in Court (it's been over a year and the cop is still welcome on the witness stand.)
...Recently I filed a motion to suppress evidence in a case because I believed the officer obtained the drug evidence by violating the law. The Judge agreed with me, and the evidence was suppressed and the case dismissed. The most appalling thing that occurred in that hearing, though, was that the officer was caught lying in his police report, his sworn affidavit, and during his testimony at the hearing (under oath). It is not that I am so na├»ve to believe that an officer won’t lie, it’s that we are rarely able to prove it. This time, though, I had solid proof and when confronted on the stand, he was backed into a corner, and had no choice but to admit it. Here’s the most concerning part, to me: the lying was unnecessary to his case. If he had told the truth, it would not have hurt his case at all. It could even be considered a minor detail. That, I believe, is what makes this officer dangerous. If he will lie about a detail that doesn’t even matter, why would we expect him to be honest about crucial, life-and-death matters. The worst case scenario for my client would have been probation. What if this officer is involved in a case for which the punishment is life in prison, or death? One of the many reasons bad cops are a big deal. As of this writing, I have turned over the transcript of the hearing to the Comal County District Attorney to review for potential prosecution for aggravated perjury. We’ll see if Jennifer Tharp agrees that it is a big deal.

Julian Ramirez said...

You are confusing protections afforded during the administrative investigation (to determine policy violations), where an officer can be compelled to give a statement with those provided during a criminal investigation in which an officer can never be compelled (short of beyond given immunity) to give a statement under the Fifth Amendment. To be sure, the change in Dallas is a positive one, but it pertains to criminal investigations and removes the special protections that had been given. The waiting periods you describe in Austin and Houston apply to administrative investigations in which officers are required to give statements. In Houston, criminal investigators can and do ask officers to provide a voluntary statement regarding the incident immediately afterward.

Gritsforbreakfast said...

@ Julian Ramirez. You're correct that Chief Brown had extended what are usually protections in the administrative realm to his officers' criminal cases. But the underlying issue is the same. Giving the officer an opportunity to craft a false story to align with investigation results doesn't serve justice, either in criminal court or in the administrative realm.

DLW said...

The former Criminal District Attorney of Taylor County, who is about to be the Judge of the 42d District Court, argued with me last week that an officer was not committing perjury or even lying if he believed his sworn testimony to be true at the time he made it in spite of absolute proof showing it to be false.

There is the problem.

Anonymous said...

What Julian is trying to nicely point out is that your claim that the officers somehow had it "better" than the average citizen is not very persuasive. As an example, you say:

"Rather I aimed to emphasize the quite-well-established point that criminal defendants do NOT get to review all the evidence against them before submitting to interrogation, in the manner to which police officers in these jurisdictions are accustomed."

It's that "submitting to interrogation" thing that seems over the top. A non-officer citizen NEVER has to "submit" to interrogation. However, administratively, an officer does have to do it. I'm not trying to defend lying cops or murdering cops or cops-trying-to-get-their-stories straight or whatever. But I think it needlessly clouds the issue when you compare a guy who can simply refuse to answer questions to an officer who must talk to investigators as a condition of his employment.

So, in sum, a regular guy can walk away from interrogation while, in your view, an officer has time to "craft" a story (in an administrative proceeding). It seems to me like the guy who doesn't have to talk at all has the advantage.

Gritsforbreakfast said...

So 5:18, suspects never "submit to interrogation"? And if they do, do they get to see all the evidence against them before they're questioned, the way Dallas cops did under the old rule? Claiming the situations are not comparable is just obfuscation.

Otherwise, officers don't have to submit to the admin interrogation, either, they just can't remain officers if they choose to reject questioning about their jobs from their employers, and understandably so. The 5th amendment right to remain silent is a constitutional right. But cops don't have a constitutional right to their job.

Anonymous said...

No, Grits, I said a defendant never "has to" submit to interrogation. It may shock you that many suspects actually exercise their right to silence. As they should.
Look, I know that you think an in-custody suspect is inherently coerced into speaking, even with Miranda warnings. And I appreciate that your views on that issue are (perhaps) beyond the scope of this particular post. But it just seems facially wrong to explicitly state that ordinary suspects HAVE to talk (without a grace period) and that officers have it so good because they get (or got) all that time to craft a good story.
As I've said before, there are good reasons to quibble with the police union bargained-for interrogation rules. But saying that they have it better than a citizen with real Fifth Amendment rights is overstating things a bit.