By Karen J. Kruger, Legal Advisor to the Sheriff of Harford County, Maryland; Counsel, Maryland Chiefs of Police Association; and Board Member at Large, IACP Legal Officers’ Section
n the course of their official duties, law enforcement officers are required to recognize and respect the constitutional rights of the citizens they encounter. Police officers themselves are entitled to the same constitutional protections, and while there is “no constitutional right to be a policeman,”1 there are circumstances when officers may assert their individual rights in conflict with some public duty to which they may be obligated. The most common of these circumstances is when officers have been involved in a use of force that results in the death of or serious injury to a suspect or other person.
A controversial deadly-force incident is a critical event for both an agency and the involved officer, and the agency must handle it with considerable control and expertise. The important aspects include carefully investigating what happened, making timely and credible reports to the public, and attending to the needs of the employee, who may be traumatically affected by the event. This column focuses on the last consideration listed: how to handle the affected employee.
Because use-of-force incidents, particularly those involving a firearm, have the potential to subject officers to criminal investigation, officers involved in such incidents will be concerned about protecting their individual constitutional rights, such as the right against compelled self-incrimination, the right to counsel, and the right to be free from unreasonable search and seizure. Although officers are entitled to such rights, they have no broader entitlement under the U.S. Constitution than any other citizen under the same circumstances. The added difficulty police officers face, however, is the “circumstance” that their departments are acting as both enforcers of the law and public employers, giving rise to “role confusion.”
As a law enforcement agency, a police department is expected to investigate any conduct that could be criminal in nature. As a public employer, it is charged with managing its employees to “ensur[e] the highest integrity by those entrusted with discharging the duties of a peace officer,”2 to safeguard the public treasury against liability, to comply with state labor laws and collective-bargaining agreements, and to support and care for members of its workforce.
This role confusion affects officers in that their “duty to provide a report concerning [their] official actions is an essential element in the administration of our criminal justice system, and crucial to the maintenance of public confidence in it.”3 Indeed, officers have “an obligation to report the details of the incident promptly and completely to [their] department[s],”4 and agencies need to know what happened to inform government officials, the community, and the media.5 As described in the recent case Aguilera v. Baca, agencies may have “a legitimate need to determine whether an officer or officers had engaged in criminal behavior under color of office, and until the criminal investigation was resolved, . . . a duty to protect the public from the potential for further [misconduct].”6
But do this public duty and the needs of the community take precedence over officers’ constitutional rights? What constitutional rights can officers legitimately assert immediately after a critical incident? Are there measures that agencies should institute when conducting investigations into the use of deadly force, even if such measures are not required by the Constitution, to properly defend their officers and themselves in later civil litigation?
Administrative versus Criminal Investigation
When agencies investigate deadly-force incidents, they often assume that the criminal investigation is more important than the administrative investigation. This is not necessarily true,7 and there is no reason whatsoever that agencies cannot conduct parallel administrative and criminal investigations. The administrative investigation can and should have a defensive character but should still be focused on uncovering the truth of what happened. Unless there are initial, clear indications that an officer may have committed a crime, a criminal investigation may be deferred.8 Even if such evidence exists, the agency needs to collect evidence that will allow it to, in the first instance, respond to the community and not necessarily to make criminal accusations.
Obviously, an early determination as to whether probable cause exists to believe that an officer committed a crime by investigators and/or prosecutors based on scene evidence, witness accounts, medical information, and the like will alleviate any conflict that the involved officer will have with respect to cooperation in the investigation and willingness to make a witness statement.
Constitutional Rights at Issue
In general, when individuals are faced with the prospect of being investigated for the commission of a crime, they are concerned about protecting the rights provided by the Fourth Amendment (addressing unreasonable search and seizure), the Fifth Amendment (protecting against compelled self-incrimination), the Sixth Amendment (providing a right to counsel), and the Fourteenth Amendment (ensuring procedural due process) to the Constitution. These are complex matters of constitutional law that can be addressed here only with brevity.
The law is clear that “a law enforcement agency has the authority as an employer to direct its officers to remain on duty and to answer questions from supervisory officers as part of a criminal investigation into [their] alleged misconduct” without offending the Fourth Amendment.9 An agency can also “order its employees to cooperate in a criminal investigation as a condition of their continued employment . . . .”10 Such an order is not an unreasonable seizure under the Fourth Amendment.
An agency can require officers to remain on duty and at the workplace for questioning, and it can require officers to give a report of what happened, because such reporting is a job requirement. For instance, in Watson v. County of Riverside, Deputy Sheriff Tracy Watson was directed to prepare a report relating to his use of a baton during an arrest.11 Such reports were routinely required by the agency, but Watson resisted writing the report without consulting with the attorney provided by the Riverside Sheriff’s Association. The deputy’s superior ordered him to write the report and did not permit him to consult with counsel before or during the writing of the report. The court found that a directive to complete a routine report was not compelled self-incrimination, which is forbidden by the Fifth Amendment, because the writing of a report is “a public employee’s job requirement.”12 However, the court did grant a preliminary injunction based on the officer’s claim of a Fourteenth Amendment (due-process) violation and prohibited the department from using the report in the related arbitral review of his employment termination.
There are two well-known Supreme Court cases that address the Fifth Amendment issue in the public workplace: Garrity v. New Jersey13 and Gardner v. Broderick.14 These cases are generally referenced as standing for the proposition that public employees may not be forced to choose between retaining their public employment and exercising their right against compelled self-incrimination. In practice, this proposition is often applied more broadly than what the law actually provides.
It is fair to say that the cases do provide “that public employees cannot be compelled to choose between providing unprotected incriminating testimony or losing their jobs.”15 But in both Garrity and Gardner the police officers were compelled to testify before the attorney general or a grand jury in connection with specific criminal investigations, and both faced losing their jobs if they either invoked their Fifth Amendment privilege or refused to waive it. In these situations, the officers were literally forced to choose between retaining their Fifth Amendment privilege and retaining their jobs.
However, as pointed out in Aguilera,16 the Supreme Court “was careful . . . to preserve the right of a public employer to appropriately question an employee about matters relating to the employee’s possible misconduct while on duty.”17 The Supreme Court emphasized in Gardner that it is not unconstitutional for a public employer to require an officer to answer job-related questions unless the officer is also required to waive his privilege against self-incrimination while answering those questions.18 Moreover, it is important to recognize that “mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.”19
In a Maryland case, police officers who were involved in a shooting incident were required to take polygraph tests after being informed that a refusal to take the test would lead to disciplinary action, which could include suspension or termination of employment. They were not asked to waive their Fifth Amendment privilege against self-incrimination; they were never charged with any offense; and their statements were never used against them. However, they claimed that the tests violated their Fifth and Fourteenth Amendment rights. In dismissing their lawsuit against the department, the court found that the officers had not stated a claim based on their theory that the compelled polygraph examinations violated the Fifth Amendment. The court found that forcing the officers to answer potentially incriminating job-related questions did not implicate the Fifth Amendment because the officers were not compelled to waive their privileges. The government never made direct or derivative use of the officers’ statements, and the questions were narrowly related to the officers’ job performance; thus, no constitutional violation occurred.20
Accordingly, officers may claim a Fifth Amendment privilege only in the narrow circumstance where they have been required to waive the privilege under duress and there is at least the prospect that the statement obtained under that circumstance would be introduced in a criminal proceeding against them. In addition, the privilege applies only to those statements that could actually be self-incriminating; other nonincriminating but relevant parts of a compelled interview may still be admissible in criminal proceedings against officers. Thus, for instance, there may be a wide range of questions that agencies may ask of officers that are relevant to and useful for the “what happened” inquiry that would not be self-incriminating in the constitutional sense; thus, agencies may require their officers to answer them.
Whether or not officers involved in critical incidents are entitled to the assistance of an attorney under the Sixth or Fourteenth Amendment is a separate question.21 The Sixth Amendment right to counsel does not attach until a person has been formally charged with a crime,22 and law enforcement officers are not entitled to legal representation during questioning that may be related to a disciplinary investigation.23 State law enforcement officers’ “bill of rights” statutes may provide for a statutory right to counsel for officers who are being questioned, the applicability of those statutes varies by state, and agencies should consult with local counsel for clarification.24
Although neither the Fifth Amendment protection against self-incrimination nor the Sixth Amendment right to counsel applies to an employer’s questioning of an employee about a critical incident, some courts have found that police officers have a Fourteenth Amendment, substantive due-process right to counsel.25 In Watson v. County of Riverside, the court found that even though the officer did not have a Fifth Amendment right to refuse to complete a routine report following his use of force, that fundamental fairness under the Fourteenth Amendment dictated that he should have been allowed advice of counsel before completing the report, or even to choose not to complete the report.26 The court held that “[t]he government’s interest in obtaining the report is important, but is not particularly burdened by the provision of the constitutional safeguard of counsel.”27
In contrast, in Ward v. City of Portland, employees challenged the constitutionality of a policy that required officers who were involved in fatal shootings to write incident reports before consulting with counsel.28 Although not issuing a final ruling on this question, the court indicated that a city may require officers to write incident reports before consulting with counsel because the city had a compelling interest in obtaining prompt, accurate reports that were “unvarnished.” The city had argued to the trial court that its interests included the police department’s keen interest in better training or equipping its officers to prevent future shootings.29
Avoiding the “Collision”
The Watson court recognized that, in critical law enforcement situations, an officer’s public duty and individual rights may “collide.”30 In addition, deadly-force encounters are frequently distressing and emotional events for police officers, causing them to be ill-prepared to describe accurately “what just happened.” In a report titled “Investigation of Incidents of Excessive/Deadly Force by Police,” the IACP explains, “Officers themselves may inaccurately describe a deadly force incident. They cannot recall details such as the number of shots fired, or the lighting at the location, or the distance involved. Psychiatrists inform us that these audio and perceptual distortions are to be expected in a highly stressful situation . . . .”31
A recent bulletin from Force Science News describes a new British report on the nature of human memory called Guidelines on Memory and the Law. The bulletin, summarizing the 52-page report, claims that the findings “could help clarify many misconceptions about memory that hamper fair and impartial use-of-force reviews and trials in the U.S. and other countries.” 32 The study notes that human memories are always fragmented and incomplete, are prone to error, and are easily influenced by the environment in which they are recalled; they are not exact replications of actual events.33
In considering this report, Dr. Bill Lewinski of the Force Science Research Center notes, “It’s not unusual in officer-involved shootings, for example, for shortcomings in officers’ memories or contradictions with what other witnesses remember to be regarded as evidence that officers are lying or being evasive, when what’s really involved is the basic, uncontrollable biology and psychology of memory itself.”34
Agencies can institute policies that minimize the risk of inadvertently compromising officers’ constitutional or statutory rights and protect officers who have acted within the law from later being unfairly accused of wrongdoing. There are two simple practices that can be useful: allow officers time to recover from the trauma of the event and recall the underlying facts and allow officers to consult with counsel if they request to do so. As the IACP points out, “The officer’s assistance and cooperation in putting together the facts of a deadly force incident are of paramount importance.”35
Experts point out that delaying the interview of the involved employee “will not alter the evidence at the scene or the statements of other witnesses” and is in fact more likely to “have any statement given reflect the most accurate version of the events.”36 Moreover, the setting, the timing, and the kind of questioning that is used can either help or interfere with a person’s recall. Again, Dr. Lewinski notes that a “department has an obligation to facilitate the best conditions possible for everyone concerned” when conducting an interview about a shooting.37
Investigators at such scenes have plenty of other tasks to perform and information to gather that will actually inform their questioning of the involved officers, and there is little reason to demand an immediate statement from the officers. Because stress can undermine memory and sleep deprivation can also cause the brain to generate false memories,38 there is even more reason for agencies to allow officers time, rest, and nutrition before subjecting them to an interview that may be one of the most critical events of their lives.
Likewise, allowing officers to consult with counsel is unlikely to affect the outcome of investigations and can also avoid any constitutional pitfalls. Police labor counsel are usually experienced enough in the field both to protect their clients’ rights and to recognize agencies’ legitimate needs. Frequently, these attorneys will give a factual “proffer” of how their clients would describe the events if they were to give a statement. This information is often enough to allow agencies to provide general information to the community without either “implicating” officers or conceding liability in a future civil lawsuit.
Under most circumstances, agencies can require officers who are involved in critical events to provide a routine report of what happened. However, most often this is not the best practice; agencies should use alternative methods of gaining immediate information, such as collecting scene evidence and other witness statements, reviewing audio and video footage, and accepting attorney-provided statements.
Most officers who are involved in such situations are not criminals, and unless there is evidence of criminal conduct, agency investigations should not treat them as suspects. The goals of an investigation into a deadly-force event are multiple: to protect officers who have acted within the law and implicate those who have acted improperly; to identify training, supervision, and equipment shortcomings; to reassure the community that the police force is trustworthy; to assist in the defense of a civil lawsuit against agencies and officers; and to prosecute suspects who may have harmed or attempted to harm others, including police officers. As a result, such investigations can be quite complex and must be handled by investigators who are aware of these aspects and who have the tact and sense to treat involved officers appropriately, bearing in mind that police officers have rights, too. ■
1McAuliffe v. Mayor, etc., of City of New Bedford, 29 N.E. 517, 517–518 (Mass. 1892).
2Aguilera v. Baca, 510 F.3d 1161, 1168 (9th Cir. 2007).
3Watson v. County of Riverside, et al., 976 F. Supp. 951, 954 (C.D. Cal. 1997).
4Will Aitchison, The Rights of Law Enforcement Officers (Portland, Oregon: Labor Relations Information System, 1990), 195.
5U.S. Department of Justice Community Relations Service, Police Use of Excessive Force: A Conciliation Handbook for the Police and the Community (Washington, D.C.: U.S. Department of Justice, 1999), 21, http://www.usdoj.gov/crs/pubs/pdexcess.htm (accessed January 5, 2009).
6Aguilera, 510 F.3d at 1174.
7International Association of Chiefs of Police, “Investigation of Incidents of Excessive/Deadly Force by Police” (unpublished training manual, 2000), 73 (arguing that the administrative investigation is the most important first step in managing a controversial incident).
8See id. at 76, noting that very few instances of police use of deadly force are criminal in nature, perhaps less than 1 percent.
9Aguilera, 510 F.3d at 1168.
11Watson, 976 F. Supp. 951.
12Id. at 955.
13Garrity v. New Jersey, 385 U.S. 493 (1967) (holding that states cannot use incriminating statements of employees obtained when employees are threatened with job loss in subsequent criminal proceedings).
14Gardner v. Broderick, 392 U.S. 273 (1968).
15Aguilera, 510 F.3d at 1171; see also Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392 U.S. 280 (1968) (ruling that the firing of city employees for refusing to sign waivers of immunity or for invoking their privilege against self-incrimination was unlawful).
16Aguilera, 510 F.3d at 1161. The Aguilera court also noted that the related administrative actions taken by the sheriff, including a reassignment, did not transform routine questioning into a “coercive police investigation.” Id. at 1174.
17Id. at 1171; see also Lybarger v. City of Los Angeles, 40 Cal.3d 822 (1985) (suggesting that the state law should be construed to permit employers to impose sanctions only when employees refuse to answer questions relating to official duties or fitness for police duty).
18Gardner, 392 U.S. at 278.
19Chavez v. Martinez, 538 U.S. 760, 769 (2003), cited in Aguilera, 510 F.3d at 1173 (noting that constitutional injury results only from the use of the compelled incriminating statement in a criminal prosecution).
20Wiley v. Mayor of Baltimore, 48 F.3d 773 (4th Cir. 1995), cert. denied, 516 U.S. 824 (1995).
21Unless officers being subjected to law enforcement questioning are also in custody, they do not have a Fifth Amendment right to counsel. See Randy Means, The Law of Policing: Federal Constitutional Principles (Portland, Oregon: Labor Relations Information System, 2007), 81.
23Aitchison, Rights of Law Enforcement Officers, 172 n. 4, notes that officers may be entitled to representation by a collective-bargaining representative, if any, under National Labor Relations Board v. Weingarten, 420 U.S. 251 (1975).
24See, for example, California Public Safety Officers Procedural Bill of Rights Act, California Government Code, sec. 3300–3313; Maryland Law Enforcement Officers’ Bill of Rights, Annotated Code of Maryland, Public Safety Articles, sec. 3-101; Law Enforcement Officers’ Bill of Rights, State of Rhode Island General Laws, sec. 42-28.6-1.
25See Aitchison, Rights of Law Enforcement Officers, 195 n. 4 (asserting that “[t]he law is becoming more settled that officers have the right to counsel after being involved in the use of deadly force,” citing Watson).
26Watson, 976 F. Supp. 951, 954 (C.D. CA 1997). The court noted that the officer could be subject to discipline for failing to complete the report. Id. at 956.
27Id. at 957. The officers had completed the reports without consulting with counsel, and no disciplinary or criminal charges were brought against them.
28Ward v. City of Portland, 857 F.2d 1373 (9th Cir. 1988).
29Ward v. City of Portland, U.S. District Court for the District of Oregon, D.C. No. CV-86-1027-JU (1987).
30Watson, 976 F. Supp. at 954.
31International Association of Chiefs of Police, “Investigation of Incidents of Excessive/Deadly Force by Police,” 77; see also William A. Geller and Michael S. Scott, Deadly Force: What We Know—a Practitioner’s Desk Reference on Police-Involved Shootings (Washington, D.C.: Police Executive Research Forum, 1992), 289; and Lou A. Reiter, ed., Law Enforcement Administrative Investigations (Tallahassee, Florida: Lou Reiter and Associates, 1998), 9.8.
32Interview with Bill Lewinski, quoted in “A Compilation of Important Memory Issues,” Force Science News, no. 112, http://www.forcescience.org/fsinews/2008/12/fs-news-112-a-compilation-of-important-memory-issues/ (accessed January 7, 2009). The report discussed by Lewinski, by the British Psychological Society Research Board, Guidelines on Memory and the Law: Recommendations from the Scientific Study of Human Memory, June 2008, can be accessed at http://www.bps.org.uk/downloadfile.cfm?file_uuid=07F99CF1-1143-DFD0-7EBD-70F5FDA6CE19&ext=pdf (accessed January 8, 2009).
33Interview with Bill Lewinski, quoted in “A Compilation of Important Memory Issues.”
35See International Association of Chiefs of Police, “Excessive/Deadly Force by Police,” 77 n. 27.
36Reiter, ed., Law Enforcement Administrative Investigations, 9.8 n. 27.
37“A Compilation of Important Memory Issues.”