Cops: We Need Rights More Than You, Citizen

It's untrue that cops scorn constitutional rights. It's unfair to say that they oppose fair procedures designed to promote truth. It's inaccurate to say they oppose measures designed to protect suspects from coercion.

They understand and believe in all of those things.

For them.

Chuck Canterbury, president of the Fraternal Order of Police, wrote a revealing column in the New York Times today. He extolled the virtues of due process:

The right to due process, enshrined in our Constitution, is one of the cornerstones of our republic. The existence of this right – that everyone is presumed innocent and that everyone is entitled to a fair hearing – is woven tightly into American society. Why should this not be true for police?

Well, it is true for police. Practically speaking police are far more likely to receive methodical deliberation and the benefit of the doubt than the rest of us.

But when Canterbury says "due process," he means a little something extra for cops. They need it, you see:

This higher standard and increased visibility renders police vulnerable to unfounded scrutiny.

So. What kind of due process do cops want? They want bills of rights. Cops like Canterbury attempt to portray these as simply giving cops the same rights enjoyed by civilians:

Maryland was one of the first states to enact a “bill of rights” for its police, and other states followed. In other jurisdictions, those protections are a result of collective bargaining and embedded in negotiated contracts.

These laws and contracts do not protect the jobs of “bad cops” or officers unfit for duty. Nor do they afford police any greater rights than those possessed by other citizens; they simply reaffirm the existence of those rights in the unique context of the law enforcement community.

That's simply not true, unless Canterbury is using "the unique context of the law enforcement community" to mean "for people whose rights we actually respect and care about."

Let's take a look at Maryland's Law Enforcement Officer Bill of Rights that Canterbury mentions, and contrast the rights and procedures cops demand for themselves versus their habits in dealing with us.

Basis for starting an investigation.

Cops routinely start investigations based on hearsay tips from informants. Cops even take action based on wholly anonymous and uncorroborated informants. But when it comes to themselves, cops demand a sworn statement from a witness with direct knowledge:

(1) A complaint against a law enforcement officer that alleges brutality in the execution of the law enforcement officer's duties may not be investigated unless the complaint is sworn to, before an official authorized to administer oaths, by:

(i) the aggrieved individual;

(ii) a member of the aggrieved individual's immediate family;

(iii) an individual with firsthand knowledge obtained because the individual was present at and observed the alleged incident; or

(iv) the parent or guardian of the minor child, if the alleged incident involves a minor child.

Timeliness of investigation.

Cops start investigations whenever they want. But when it comes to them, they demand promptness:

(2) Unless a complaint is filed within 90 days after the alleged brutality, an investigation that may lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken.

Interrogation techniques

Many cops are experts at interrogation — the art of getting people to say things that, had they any common sense, they would not say. Cops want people to speak without a lawyer, speak against their best interest, speak based on a mistaken understanding of the situation, speak based on deceptive tactics.

They don't want any of that for themselves, though.

For instance, cops routinely lie about the scope of their investigation. But for them:

(2) Before an interrogation, the law enforcement officer under investigation shall be informed in writing of the nature of the investigation.

Cops routinely seek to interview subjects at times and places that will unsettle them and increase the chance of getting ill-considered statements. But for them:

(f) Time of interrogation.- Unless the seriousness of the investigation is of a degree that an immediate interrogation is required, the interrogation shall be conducted at a reasonable hour, preferably when the law enforcement officer is on duty.

(g) Place of interrogation.-

(1) The interrogation shall take place:

(i) at the office of the command of the investigating officer or at the office of the local precinct or police unit in which the incident allegedly occurred, as designated by the investigating officer; or

(ii) at another reasonable and appropriate place.

Cops love to play good cop/bad cop and use other multiple-interrogator tactics. But for themselves:

(h) Conduct of interrogation.-

(1) All questions directed to the law enforcement officer under interrogation shall be asked by and through one interrogating officer during any one session of interrogation consistent with paragraph (2) of this subsection.

Cops routinely prolong interrogations to wear down suspects. They also routinely threaten dire consequences if the suspect doesn't "cooperate." But for cops:

(2) Each session of interrogation shall:

(i) be for a reasonable period; and

(ii) allow for personal necessities and rest periods as reasonably necessary.

(i) Threat of transfer, dismissal, or disciplinary action prohibited.- The law enforcement officer under interrogation may not be threatened with transfer, dismissal, or disciplinary action.

Cops routinely avoid recording interrogation sessions. This allows them to claim that the suspect confessed without contradiction and conceal their interrogation techniques. But for themselves:

(k) Record of interrogation.-

(1) A complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer.

(2) The record may be written, taped, or transcribed.

(3) On completion of the investigation, and on request of the law enforcement officer under investigation or the law enforcement officer's counsel or representative, a copy of the record of the interrogation shall be made available at least 10 days before a hearing.

Right to review evidence.

Since this Maryland law was passed, cops have been demanding more protection during any investigation.

When cops interrogate you, they don't hand you all their evidence and ask you questions once you've had time to review it. They don't want you to know what they know. They're happy if you lie in a way they can easily disprove. That will help them prove guilt. So they'll pull the story out of you, a bit at a time, and show you pieces of evidence after you've committed to parts of the story, hoping to shake you.

But for themselves, cops want the right to review evidence, especially in an age of omnipresent video cameras. In Los Angeles, cops are demanding the right to view videos of incidents before giving statements about them:

The proposed policy would also allow officers to have a union representative with them when they review the video – and they can exclude the LAPD investigator looking into their actions during that process.

Similarly, in Dallas, the police chief announced a new rule requiring officers to wait 72 hours before giving statements about use of force incidents so that they can review any videos or witness statements. That change just happened to follow an incident in which a video of a police officer shooting an unarmed man turned out to contradict the officer's immediate statement about the shooting.

"Cooling off" periods.

If you're in a fight, or a crash, or some sort of upsetting incident, cops don't wait for you to cool down and collect yourself. They want your statement now. They want you to be unbalanced, emotional, vulnerable. But for cops, it's a different story. In Dallas, for instance:

Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.

“They are not passive observers watching something from an easy chair,” she said. “They are at the scene where life-and-death decisions are being made, and they’re an integral part of it. So of course they are going to be impacted.”

Brown said in his email that the science was “fairly conclusive.” He also said at an October news conference that he experienced memory problems when he was shot at once.

“It wasn’t until two or three days later to where I remembered it accurately,” he said.

The Search for the Truth

Cops like Canterbury aren't just saying that cops need special administrative rights because of the unique circumstances of being a government employee being investigated. Instead, cops relentlessly portray these rights as promoting truth and accuracy in investigation. Canterbury says:

These requirements help to protect the officer as a public employee but also ensure the integrity of the investigative process.

In Los Angeles, the Chief echoes him:

In the past, Beck has said it's valuable to have an officer review video because it improves the accuracy of their account. The proposed policy reflects that view.

“The accuracy of police reports, officer statements, and other official documentation is essential,” the policy states.

Perhaps that's true. If so, what does that say about cops' typical tactics?

Cynics might say that these policies simply empower police officers to lie effectively — to use time, information, and deliberation to frame a story consistent will all of the available evidence. But maybe that's not right. Maybe the police are genuinely worried about the truth and believe that these techniques: delay, non-coercive circumstances, opportunity to review evidence — promotes the search for the truth and the accurate recollection of facts.

So why don't they extend those same practices when they interview suspects? Why aren't they as concerned about accurate statements from us?

To me, when the police demand these special procedures, it necessarily means one of two things. Either they (1) want to protect their ability to lie, or (2) don't give a shit about whether their regular interrogation tactics used on us are fair or reliable.

Or maybe a little of both.

Last 5 posts by Ken White

Comments

  1. says

    It does increasingly seem that they're trying to keep their 'one-rule for you, no rules for us' method of handling the public going as best they can, be it via declining to prosecute, hiding the facts from oversight (see Baltimore, where the city can't be told how many lawsuits an officer is facing) or by trying to make it impossible to show wrongdoing by allowing a skewed narrative to be given, as with these rules.

  2. Mu says

    When the cops interview suspects, they're aiming for a conviction. When they interview fellow LEOs, they aim for "truth". Neither process is designed to give facts.
    Why don't one of you lawyers come up with a constitutional amendment (probably for the state level first) that prevents these kind of two levels of due process, whether achieved due to some "bill of rights" or worse, collective bargaining rules where both sides have an interest in hiding any misdeeds.

  3. Joel says

    Ugh, "This higher standard and increased visibility renders police vulnerable to unfounded scrutiny."

    It's not unfounded. The more power you have, the more visibility and scrutiny you NEED to be subject to. It's one of the tradeoffs for said power. I don't need to prove myself more than the average person because I have the same privileges and power as the average person. A police officer has more privileges and power than the average person, and already has their fingers dangling into the whole criminal justice process, so they do deserve special treatment–more rigorous treatment, to ensure that they aren't using their inherent advantages to skirt the system. This is common sense and, to use their own rhetoric against them, the fact that they're lobbying so hard against it makes it seem like they're trying to get away with something.

    (Also all those things they keep getting away with make it seem that way, but that's another discussion altogether).

  4. The_Jack says

    Heh. And this doesn't even touch that cops have more robust second amendment rights.

    They're exempt from most all gun control laws for their duty weapons. Police don't have to abide by magazine limits, AWBs, or even the limit on post 86 machine guns.

    In some cases even for personal weapons. Massachusetts safe handgun roster. Which limits which firearms residents of that state can purchase… safe for police officers. Including personal weapons. Indeed not only can they purchase a non-roster handgun but they can then sell it to a non-LEO resident.

    And that's not even getting into how carry laws (even when off duty, even when in a different state) are far more permisive.

  5. Dan Weber says

    I actually think this is great. No sarcasm, it's great.

    Because when we want to say how suspects under investigated should be treated, we can point to a fucking president of the FOP and say "this is how suspects should be treated, and he's a cop."

    We can leave the "he only intended it for cops" unsaid; if challenged, respond with "I'm sure he doesn't think cops deserve more rights than citizens, right?"

  6. says

    Lawyers (commenters or Popehat guys), I have a question:

    If you live in Maryland and are interrogated under harsher techniques than the cops have for themselves – any chance of arguing that the cops themselves said their version yields the truth. Therefore yours doesn't. Therefore it should be thrown out?

  7. Craig says

    Off-topic, but what's changed about Popehat's HTML lately? It used to be that when I pasted a Popehat URL into Facebook, FB would show the title of the post and the first few lines of text. Now it just shows "Popehat" and "A group complaint about law, liberty, and leisure" — I have to hand-edit it to get the headline and representative text in. Is that something you've changed within the last few months? It's kind of annoying.

  8. says

    Wait, so am I reading this correctly that if Maryland's cops arrest someone and beat them in the course of that arrest, and there's video evidence, they still can't even be INVESTIGATED until the victim, their immediate family, or a direct witness swears out a complaint?

    So if I see a beatdown happen over a security camera, and by the time I get on scene they've cleaned everything up, I can't make a complaint, even with video evidence. Heck, the cops could video it themselves and post it publicly on YouTube, and that wouldn't be enough to start an investigation. (It would be incredibly stupid to do, but if you did it when no non-cops could see you directly and chose as your victim a mentally disabled homeless man with no known immediate family…)

  9. Kratoklastes says

    It's hard to disagree with the doughnut-inhalers' rep: after all, statistically speaking, being a pig is almost – but not quite – as risky as being a teenage girl. So obviously they can haz the right to shoot unarmed, prone men in the back, or smash out the teeth of an already-subdued 5'4" 120lb woman – otherwise the terrrrrrrrrrrrrrrrrrrrists win.

    I'm with Clark on this: burn the entire fucking thing to the ground. State-run monopoly provision of law enforcement and 'justice' results in the same low-quality, high-cost, corruption-ridden, degraded output as State-run monopoly provision of bread.

    Plus, as anyone with an IQ above 80 knows, since South v Maryland (1856), the pigs have absolutely no affirmative duty to protect.

    So in that sense they are very much the 'sheepdogs' that they claim to be: they exist to ensure that the sheep are shorn and butchered as and when their master (.gov) pleases.

    This story invokes my version of two famous misdirections… "With great power comes no responsibility" and "Power doesn't corrupt: it attracts the already-corrupt".

  10. says

    For those of us who aren't provided with the benefits of this high-falutin', Cadillac-level version of due process, I suggest learning a simple phrase: "I want a lawyer." Repeat it in response to everything any police officer says to you, as in "What's your name, sir?" "My name is I want a lawyer." "Do you have a driver's license?" "My driver's license is I want a lawyer."

    Now, it's actually questionable if you can go so far as to refuse to identify yourself, but I have clients who need to be given this instruction before they understand that I don't want them saying a damn thing to the cops, ever, and that I don't trust them to be smart enough to say the right things at the right time, even the ones who really are (otherwise) smart.

  11. Richard says

    Theoretically, most of these statutes only apply to employment disciplinary proceedings and not to criminal investigations. In these proceedings, the employer can require the employee to answer questions or be sanctioned while the officer may refuse to answer questions in a parallel criminal investigation. Again, theoretically, the coerced statement can't be used against them in the criminal proceedings (except for the all encompassing exception of you can use anything for impeachment.)

  12. Gbear says

    Henry The Sixth, Part 2 Act 4, scene 2, 71–78. All these bills of rights are authored by lawyers, not pigs.

  13. Dead Man Tate says

    Would this give every non-LEO in those jurisdictions grounds to claim their 14th amendment rights (specifically the equal protection clause) have been violated after they're subjected to any of those things? Or would that make too much sense?

  14. Matthew Cline says

    To me, when the police demand these special procedures, it necessarily means one of two things.

    There's a third possibility: they consider themselves to be the good guys, and consider civilian suspects to be the bad guys.

  15. Malc says

    @Dead Man Tate: I reckon that would be as effective as someone in, say, Manning or Snowden's position arguing that Petraeus got better treatment and therefore the they did not receive equal protection: the favors extended to Petraeus and LEOs are billed as courtesies, not rights, and in the case of the LEOs, should the "courtesies" be ignored, other cops go on strike… but the case against the suspect LEO will not be impacted.

  16. Doctor X says

    FOUR LEGS GOOD! TWO LEGS BAD! FOUR LEGS GOOD! TWO LEGS BAD! FOUR LEGS GOOD! TWO LEGS BETTER!

    But really, if the police "have nothing to hide" why do they need due process at all?

  17. nk says

    There should be a kindling point for starting an investigation into an officer's misconduct otherwise a police department would be paralyzed by frivolous complaints.

    The Blue Shield and stonewalling is bad (and its rationale is BS psychobabble). Darren Wilson's lawyering up and shutting up for two days caused the riots in Ferguson by allowing only the lies to be disseminated and the public's imagination to run wild. I think something like that is happening in Baltimore. A better way would be a use immunity: "Tell us WTF happened right now so we can inform the public and we won't use what you say in a criminal prosecution. If you don't tell us, we're assuming the worst and throwing you to the dogs."

  18. stillnotking says

    You know, there's a reason quid custodiet ipsos custodes was first written in Latin. This is not a new problem.

    I'd argue that our country handles it better than most of its contemporaries and nearly all of its predecessors. Not to denigrate the efforts of civil libertarians, of course, who are largely responsible for that, but it still bears remembering.

  19. Richard says

    I'm fine with these new rights. I think that they should be put into place immediately. I only want one simple change: replace all occurrences of "a law enforcement officer" with "anyone."

    If such a change wouldn't impede investigations against LEOs, (and I'm sure it won't, or why would they put it in place?*), then it shouldn't hinder investigations against anyone else.

    *Yes, I'm being ironic here.

  20. piperTom says

    For eons, people have had a negative but natural reaction to The Other, people who are not like them, different and apart. Usually, this is bad: racism, nativism, and religious intolerance grow from it. Yet, it's there and must be dealt with.

    Good people, while preserving their identity and culture, don't unnecessarily flaunt their otherness. They do want to be included in society. Many police and all police unions seem not to understand this. They dress differently; they behave differently; they demand separate law; they treat others like enemies. They are The Other. If you treat people as enemies, people become your enemy. Hatred grows.

    For all their armor and weaponry, police cannot win a war with the society they live in.

  21. Richard says

    It seems to me that the municipal policy and practice prong of a 1983 action for excessive force should be established as a matter of law in states with such protective statutes. If the department can't by law investigate suspected brutality unless a certain level of evidence is met, they have a policy and practice of not investigating, and therefore not responding to, a whole category of brutality by officers.

  22. Marc Zifcak says

    If there is probable cause that a person committed a crime, he or she can be arrested or indicted. He or she can be taken in custody by force, against his or her will and subjected to interrogation. The person will have the right to remain silent and the right to have an attorney present. The person NEVER has to answer question unless put before a grand jury.

    The police chief cannot order the person to answer questions or else lose his or her job.

    Funny…

    If there is probable cause that a police officer committed a crime, he or she can be arrested or indicted. He or she can be taken in custody against his or her will and subjected to interrogation. The police officer will have the right to remain silent and the right to have an attorney present. The police officer NEVER has to answer question unless put before a grand jury. But…

    The police chief CAN order a police officer to answer questions or else lose his or her job.

    No LEOBR anywhere in the US changes that.

    The LEOBR is for non-criminal matters such as courtesy, use of force outside of the rules of the department and improper behavior based upon the employer's rules. It is administrative law NOT criminal law. It is meant to deal with the fact that a police officer's constitutional right to remain silent conflicts with the police department's need to get answers.

    It is not the LEOBR that keep officers silent. It is the Fifth Amendment.

  23. Richard says

    Marc Z., some of the provisions are designed to deal with the problems you reference. A bar on a department investigating suspected wrongdoing within its ranks unless it receives a written complaint from a limited universe of people is just one example of a provision is not one of those provisions.

  24. Mikee says

    @ Marc Z

    Absolutely nothing in your comment has anything to do with the original post. Nobody is claiming officers can't be arrested against their will or that officers can't remain silent. The post states the facts that officers receive additional protections normal citizens do not, which makes it easier for them to delay, hinder, and obstruct investigations into their wrongdoing. If an anonymous tip is enough to investigate a citizen, then it's enough to investigate an officer. If officers require written complaints filed by named individuals, then citizens deserve the same treatment. If cops deserve to see all evidence being used against them BEFORE making a statement about their actions, then citizens deserve the same treatment.

    Why don't you skip on back to the top of the page and actually read the article you're commenting upon?

  25. John says

    Ken is a much more intelligent person than I am, but as I ready the Law Enforcement Bill of Rights it refers to investigations for internal discipline. Officer are required and do not have a choice about being involved in an internal investigation. Under Garrity v. New Jersey, if the officer if compelled to provide a statement in an internal investigation, it is considered coerced and cannot be used in a criminal investigation.

    How does the bar respond to anonymous allegations of improper action against attorneys?

  26. gbear says

    These officers do not operate in a vacuum. The DA/prosecutors office has some responsibility if they are aware constitutional rights are being violated, and take no action. I doubt a Mike Nifong would be much of a civil libertarian, so the problem exists in some jurisdictions with a wink and a nod. NK's suggestion is the answer to a lot of the problem when there is a justifiable use of force, and an honest DA's office.

  27. Whey Standard says

    Mark Z,

    Absolutely not true, Garrity v. New Jersey is not exactly an obscure case, I've asked at least 10 officers if they knew about it, all 10 did.

  28. Malc says

    It seems to me that this whole nonsense of a special set of rights because you're a cop is in large part caused by the fact that the people who investigate cop malfeasance are cops, colleagues of the investigated cop. A solution, therefore, would be a non-cop investigator unit that only investigates cops.

  29. Marc Zifcak says

    @Richard – The bar to which I think you refer, in Maryland at least, only applies to allegations of brutality. In fact, this is rarely followed and I don't believe the courts have ever enforced it. I know that the requirement that it be in writing is also disregarded in Maryland due to case law. Most departments still investigate allegations for the department has one year from the day it learned of the incident with which to charge the police officer. Conceivably, you could complain about a bad act that occurred twenty years ago. The department has a year to do something about it.

  30. Marc Zifcak says

    @Whey Standard – I'm not sure I understand you. Garrity is the case from which most LEOBRs derive. In Garrity the court recognized the difference between the constitutional rights of a US citizen employed as a police officer and the authority of the police chief as boss to conduct and investigation into an employee's actions. Garrity basically says that if an officer is ordered to answer questions under threat of penalty, it is coercive, therefore the testimony cannot be used against the officer at a latter criminal trial. Interestingly, this is what generally keeps police investigator from interviewing police officers in criminal investigations. If the officer is ordered to answer questions in fear of losing her or his job, the investigator cannot use the answers in the trial directly. There is always a grand jury, but again, grand jury testimony is generally sealed. But Garrity really only applies when criminal and administrative investigations occur simultaneously. Officers don't invoke Garrity for wearing the wrong color undershirt.

  31. Marc Zifcak says

    @Mikee – Disclosure: I am a cop like Canterbury. The article I read contrasted "the rights and procedures cops demand for themselves versus their habits in dealing with us." The rights and procedures Chuck Canterbury is speaking about are procedural rights for police officers in administrative investigations when the police chief as boss investigates the police officer as employee after receiving a complaint from a member of the community. The administrative investigation is not a criminal investigation and only results in action any boss could take with any employee in any workplace. The "habits in dealing with us" I presume refers to police conducting criminal investigation. Criminal and administrative law are two different areas.

    My post was intended to point out that in a criminal investigation, police have no more rights than anyone else. Chuck Canterbury isn't advocating for more rights for police officers in criminal investigations. The article repeatedly compares what police do in criminal investigations with police officers' rights in an administrative investigation. Criminal interrogations are custodial, the person being questioned is not free to leave, and the interrogation is governed by the rules of criminal procedure (i.e. Miranda warnings, etc.). Administrative interrogations are non-custodial and conducted in the course of business. They are largely not restricted by the US Constitution nor Supreme Court decisions. In a criminal matter, to make an arrest the police must establish probable cause and cannot convict unless they can prove the case beyond a reasonable doubt. In administrative matters, the standard of proof is a mere preponderance of the evidence, in most places. To charge a person with a crime, the police officer must generally sign and swear to all warrants. People can mail in anonymous complaints against police offers.

    Although, a complaint may result in both a criminal investigation and an administrative investigation being conducted concurrently, the LEOBR conveys no additional rights to police officers who commit a crime. Yes, police receive deference from the courts and perhaps benefit of any doubt. But, the press and the public frequently judge police officers solely on the outcome of an encounter and not on the facts. That is the basis for police officers asking for rigorous procedure in the internal investigation of a complaint.

  32. Ryan says

    "It would be difficult to imagine interrogations to which these criteria of duress were more completely inapplicable, or in which the requirements which have subsequently been imposed by this Court on police questioning were more thoroughly satisfied. Each of the petitioners received a complete and explicit reminder of his constitutional privilege. Three of the petitioners had counsel present; at least a fourth had consulted counsel but freely determined that his presence was unnecessary. These petitioners were not in any fashion 'swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion * * *.' Miranda v. State of Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1621. I think it manifest that, under the standards developed by this Court to assess voluntariness, there is no basis for saying that any of these statements were made involuntarily."

    now all we need to do is get congress to make that opinion into law

  33. Mikee says

    http://nyti.ms/1HVFoiw

    The New York Times is swimming in your wake, Ken.

    @Marc Z
    I have no problems with law enforcement, I'm glad the police exist and I believe they serve a vital function. But bad cops do more damage to society than any criminal ever convicted in America has ever done.

    Yeah, it certainly sucks when a good cop is lumped in with bad cops and might suffer because of it. But it certainly sucks even more when a good citizen suffers because of bad citizens. It's a double edged sword no matter how you look at it, and the fact is, police are given special legal protections that citizens do not enjoy. How many citizens are given 10 days before they have to respond to police demands for an interview during the investigation of a crime? Would 'none' be an accurate answer? Then that's how many cops deserve 10 days to get their story straight.

    So when a citizen shoots somebody, it's automatically a criminal investigation and they automatically lose certain rights to allow the police to investigate the crime. If a police officer shoots somebody, it's automatically an 'administrative investigation' and the police officer loses no rights, and actually gains some, until that first investigation is over and then depending on the outcome it may or may not become a criminal investigation where they're treated the same as a citizen. And you really don't think that's special legal protection not afforded to a citizen?

    If a gang member shoots someone do the police wait for the gangs administrative investigation to finish before they start the criminal investigation? Are terror cells that have been uncovered before they can carry out their deadly plans allowed 10 days to gather their stories with their friends? The only time I ever hear of any law enforcing agency allowing a suspect to surrender the following day is when that suspect is loaded with cash and that's certainly a special legal protection afforded to the rich that is not enjoyed by regular citizens.

    If you want to deny that cops are given special treatment, neat, but that's a red flag to me and strikes down the 'cops are good until proven otherwise' status in my eyes. If you can't see the conflict of interests playing out here, then I doubt you ever will see them, and have to wonder if you're simply protecting and serving your own selfish interests.

    edit: The police version of Spiderman's motto:

    With great power comes great ability to sidestep the legal system.

  34. Grock says

    For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer fine upstanding citizen who told jurors that Willingham confessed the crime to him.

    Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited reinforced the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

    More recent evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gave his first detailed account of how he lied on the witness stand told the truth in return for efforts by the former prosecutor to reduce Webb’s prison sentence and arrange thousands of dollars in support from a wealthy Corsicana rancher because he was a fine upstanding citizen.

    Demand everyday citizens have the same rights in our criminal justice system as cops? How dare ordinary citizens display such poor etiquette by demanding such an extravagant thing. I mean it’s not like our lives might depend upon it right?

  35. Ken Barker says

    @Marc Zifcak May 1, 2015 at 8:46 am

    "But, the press and the public frequently judge police officers solely on the outcome of an encounter and not on the facts."

    What if we make a substitution?
    But the police frequently judge a citizen solely on the basis of an encounter and not on the facts.

  36. Noah Callaway says

    I actually don't have a problem with any of these demands. It seems like a very reasonable restriction that intends to balance the needs of the investigator with the rights and dignity of the suspect.

    It's such a good idea, in fact, that I think we should immediately apply it to every citizen and all suspects. Someone should introduce that bill, then ask the Fraternal Order of Police for a comment.

  37. Terry Cole says

    The "Economist" is carrying a thoughtful article on policing in America. The writer makes three points worth drawing attention to:

    "… first, inescapable finding is that almost all cops think they get a hard time from the media.
    … Second, cops think that the public underestimates the threats to their life—and why the use of force is sometimes necessary. Most of the officers I interviewed say that guns poison policing in America.
    … Third … the public have unrealistic expectations of what [police] can do … police officers cannot be expected to deal with social problems, like mental illness or drug addiction, without resorting to force… mental illness is a particular problem because cops do not know how to identify it… [police] are not the right people to deal with people who are mentally ill, most concluded—but they have been made so by cuts to other services."

    I'd guess that lmost anywhere but in the USA, this problem would begin to be addressed by some sort of pragmatic limits on the public and the police. Americans however have state and federal constitutions which place limits on pragmatism.

    Combine that with the sense of entitlement of those who have something to lose, and there's no remedy short of internal war.

  38. Marc Zifcak says

    @Mikee – No,no,no,no,. All police shootings are criminal investigations, period. Every case where one person kills another is presumed to be a crime of murder. The police investigate them all as if they were homicides, even their own. Unless the killing can be justified (i.e. self-defense, diminished capacity, accident, etc.), someone is going to be charged. This is true of police officers and everyone else. A police officer has to justify the use of force twice, maybe three times. First, there is the criminal investigation, which may include a grand jury. Second is the internal administrative investigation by the police department. Third is the civil trial where the family sues the officer and the police department for wrongful death. The LEOBR only applies to the second one.

    Administrative investigations usually don't start until after it is known the officer is no longer in jeopardy of being charged criminally. You cannot really conduct an administrative investigation until the criminal is over. That's the point. A police officer who may be charged with a crime has an absolute right under the fifth amendment to remain silent. He has 1 million days if he wants. The police chief can order the police officer to answer questions, (that's when the ten days start, by the way) but any interrogation compelled for administrative purposes would be inadmissible in the case in chief against the police officer. That's Garrity v. New Jersey.

    And a police officer absolutely does not get 10 days before an interrogation if they commit a crime. He gets UP TO 10 days before he can be interrogated by the police department if the police chief is investigating him for violating a departmental rule. If a prosecutor is investigating him for murder, he can be arrested and dragged into an interrogation room where he has the exact same rights as you. All you need is probable cause. Then, he lawyers up, and that's it. That's the US Constitution at work. If you want him to speak, you have to put him before a grand jury, but he gets some protection there, too. Just as you would.

    And, I didn't say police officers don't get special treatment. In fact, I admitted that they do. They get deference more than anything else. But they have no more rights than you do when charged with committing a crime.

    My question is why is the District Attorney in Baltimore circumventing the grand jury? Is she afraid of what the officers will say to the grand jury? The witnesses? Now the officers never have to talk unless they take the stand in the trial.

  39. Kos says

    (disclosure- serving police) I'm not in the USA, but police where I live shoot less people, hence we have less issues. We still get legally ordered to answer administrative questions. No due process- answer or lose your super/pension/job. Which means, if you are going to do something wrong it had better be for 200,000 or whatever you super is worth. In one sense it's a good thing, but not being allowed to say nothing does feel like a double standard, when what is on the line is effectively your life. In criminal proceedings, we are dealt with the same as anyone else.
    Conflating the two is either
    1. slack legal understanding not worthy of a 1st year law clerk
    or
    2. intentional misrepresentation of the facts.. um.. like lying
    or a combination of the two..right? surely there is no 3rd option…

  40. Lindsay K says

    @Marc

    The state's attorney didn't circumvent anything. If you look at Maryland's case lookup system you see the first court date is for a preliminary hearing on 5/27. That means that the cases were filed on a statement of charges, which is a factual summary of the probable cause basis for the charge. The judicial officer (court commissioner) signs off if the probable cause is there and has the option to either issue a warrant or a summons. Once the warrant is served, if the charge is a felony then the case is set for a preliminary hearing roughly 30 days out. (If it's a misdemeanor, it's just set in for a trial date.) At the preliminary hearing, a judge hears witness testimony and determines if there is probable cause to proceed on the felony charges. If there isn't, the judge dismisses the felony charges and sets the misdemeanor charges (if any) in for trial in the district court. If the judge finds probable cause to proceed on the felonies, the case is forwarded to circuit court and set in for trial (only the circuit court has jurisdiction over felony trials, and only the circuit court has juries). The state's attorney has the option to circumvent the preliminary hearing under two circumstances: if the preliminary hearing is waived, the state's attorney can file a criminal information in the circuit court, which doesn't require involvement of the grand jury, OR (this is what happens in virtually all cases) the state's attorney can submit the case to the grand jury and ask for an indictment. That obviates the need for the preliminary hearing because it is then the grand jury that determines whether or not there is probable cause for the felony charges.

    I can't speak to the procedure in other states but this is the procedure for Maryland. It happens in virtually all cases that the arrest comes first, then the preliminary hearing is set, then the case is indicted. Cases where the state's attorney asks the grand jury for an indictment before a warrant is issued and an arrest made are comparatively rare, the context I've seen them in is usually when there's an ongoing drug or conspiracy investigation where the cops don't want to make arrests and alert the targets until after the whole thing is sewn up. If the grand jury returns the indictment the state's attorney then takes the indictment to a judge and asks for a warrant to be issued on the basis of the indictment.

    I would be extremely surprised if the officers were called to testify at either a preliminary hearing or grand jury proceeding. Possibly the sa will present their statements to the investigators if they're not too self-serving. But a preliminary hearing or grand jury proceeding are a very specific kind of hearing designed for only one purpose: to safeguard against wholly frivolous charges by requiring the state to prove they have enough evidence to hold the defendant. That's it. That's why so many attorneys have commented on how bizarre and crazy it was that Ferguson and NYC turned their grand juries on killings by cops into quasi-trials. That's not what they're for, and that's not how they're used for any other citizen the prosecutor wants to charge with a crime. The prosecutor doesn't conceal evidence but they don't actively put on witnesses for the defense either. Their goal is to convince the grand jury that there is sufficient evidence to charge for the crime, not to throw everything at the wall and see what sticks.

    Here in Maryland the state's attorney prefers the grand jury to the prelim, because at the grand jury the defendant has no right to be present and there is no cross-examination of witnesses. It's a secret proceeding. It would be deeply, deeply weird to call a defendant to testify to the grand jury (and why would you? their testimony is almost guaranteed to be self-serving), so if the state's attorney goes the grand jury route with these officers, it is extremely unlikely that they would be called to testify.

  41. Diablo says

    If you remember the "Stop Snitching" movement that started in Baltimore, you know what inspired and kept that going for so long? The Baltimore police. One of the big reasons why its a terrible idea to cooperate with police in Baltimore is that it only costs about $200 to get a your arrest report. That's gonna include all the info you need to take out informants against you.

    Cops don't respect snitches. So if you end up being firebombed and your family killed for cooperating with them, oh well…they got their bribe.

    I fully admit, as child of Baltimore, I have a very jaded view of the police. They don't live in the community. They come down when they need to make their arrest quota or someone doesn't pay their protection money. They know that the vast majority of the drugs in MD are consumed in the suburbs. But they center in on the city because the low level dealers and corner boys can't afford attorneys so its easy to make convictions.

    Ain't nothing ever gonna change.

  42. Marc Zifcak says

    @Lindsay

    For police officers as the target of the investigation it isn't ordinary. Putting the matter before a grand jury is her choice. At the grand jury she is under no obligation to present any mitigating information. She gets to make her best case. Yes, she can go before a commissioner and get a warrant, and then have a probable cause hearing before a judge later, or have the case reviewed by a grand jury and get an indictment. I don't know when was the last time in Maryland a State's Attorney didn't put a police shooting or death at police hands before a grand jury? I can't recall when the officers were arrested before indictment for acts committed in their official capacity. It certainly appears to be influence from the crowds.

    Let me ask you, could the grand jury independently subpoena the officers? If the grand jury wants to hear from them, she cannot prevent them from issuing a subpoena, can she?

    Would you agree that the LEOBR is moot at this point?

  43. Grifter says

    I had either never heard of Garrity v New Jersey, or forgotten about it. Am I correct in understanding that if my boss as a private employer says "Hey, cooperate in this investigation or you're fired", that's NOT coercion, but if it's a police officer, it is?

  44. says

    I completely agree when you say "It's untrue that cops scorn constitutional rights.." but for a completely different reason. You see, first, in order to scorn something, you must know what it is.

  45. Lindsay K says

    @Marc

    I'm not prepared to engage in extensive analysis, but I don't believe the LEOBR is moot because the officers have already received the crucial protections from interrogation to which it entitles them.

    I agree that Mosby's actions are unusual in terms of how police accused of wrongdoing are usually treated by prosecutors who investigate and charge them. While that doesn't have to do with the LEOBR, it does rather drive home the special treatment that officers feel they are entitled to, doesn't it? Ordinary citizens get a warrant as soon as the investigation shows criminal conduct, followed later by an indictment, but officers get weeks of prolonged investigation to make absolutely super duper sure, followed by a polite criminal summons, or maybe a warrant on which they can turn themselves in at a convenient time and place. The officers weren't given some special unfair treatment, just the treatment that any other citizen accused of a crime is afforded. I expect the decision to proceed this way was made in full awareness of the message it would send. That may have been part of the point, although you'd have to ask the sa to be sure.

    As for whether and to what extent Mosby's choices are motivated by the public reaction to Gray's death, again, who can be sure? And if her choices are influenced by the crowd, is that entirely unreasonable given that her position is an elected one, which makes her directly accountable to the voters for her actions in office? She has to work with the police, but most of them live outside the city; they are not her constituents. I'm not venturing an opinion on whether taking public opinion into account in the manner in which you charge someone is ethical or not (although charging someone if you didn't have the evidence to prove it is unethical in any case), I'm just suggesting that it's a foreseeable consequence of making the prosecutor an elected official.

    As for your question, yes, the grand jury has its own subpoena power. I believe they can issue a subpoena on their own initiative whether the case is one the prosecutor has brought them or they are engaged in their own investigation. I'm not sure how often it actually happens. So if the grand jury issued a subpoena, and if the officers elected to testify (they still have a fifth amendment right not to) I don't see how the prosecutor could stop them.

  46. John says

    @Grifter
    Here is my take on that although I would be interested in the opinion of others:

    I think there is an argument to be made the a statement to the police that your boss required you to make should be suppressed, if your boss is not the government it might be a difficult argument to win.

    Colorado v. Connelly involved a mentally ill person who confessed to a crime because the voices in his head told him he had to. The Court ruled since the coercion was not done by the police, the confession could be admitted. This supports your theory and this is a post-Miranda decision.

    There are a number of pre-Miranda cases that use due process to determine if a statement can be admitted. (Lisbana v. California, Spano v. New York, Bram v. United States, Stein v.New York). All of these cases pre-date Mirnada and focus on whether the statements were made voluntarily. Colorado v. Connelly has some pretty strong language to the contrary "The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." I think there is an argument to make that involuntary confessions should not be admitted, although Connelly may make that difficult. Even if you couldn't win the case on Due Process grounds, you might win on Fifth Amendment grounds.

    State v. Bowe is a case from the Supreme Court of Hawaii where a basketball player was required to speak to the police by his coach. Hawaii ruled the statement was coerced and could not be admitted despite the ruling in Connelly. However, the decision was based on the Hawaii Constitution and the U.S. Constitution.

    Coercion by the government is generally viewed differently than coercion by third parties.

  47. Marc Zifcak says

    @Lindsay

    "…, but I don't believe the LEOBR is moot because the officers have already received the crucial protections from interrogation to which it entitles them."

    What protections have they already received from the LEOBR?

    The criticism I am seeing of the LEOBR is unwarranted mainly because in all of the incidents receiving attention over the past twelve months, the outcome has been death. Once there is a homicide, the investigation is criminal. The right to ten days before being interrogated in an internal investigation is trumped by the fifth amendment. The officers can remain silent forever.

    If the police department ordered them to answer questions, the officers could rest on their fifth amendment derived right to remain silent. The department could then try to fire them for refusing to answer, but that would likely fail as the police department cannot retaliate against a police officer, or anyone, for exercising a Constitutional right.

    @Grifter

    If a police officer is ordered to answer work related questions under threat of discipline up to and including dismissal, the answers provided cannot be used directly against the officer in any subsequent criminal trial. They can be used in a limited way to impeach the officer's testimony in court.

    If you're not employed as a police officer, or other law enforcement profession, there is probably no conflict between your Constitutional rights and your work duties. Your boss cannot both charge you with a crime and fire you for not providing information about what you did on the job. But, honestly, private sector employment law is not my area of expertise.

  48. Deniable Sources says

    @Marc,

    All police shootings are criminal investigations, period. Every case where one person kills another is presumed to be a crime of murder.

    I think that the crux of the matter lies here. I have to be honest – I don't believe that for a moment.

    Ostensible legal niceties aside, I believe that when a police officer shoots a civilian in what is alleged to be the line of duty, the burden of proof and the actual presumption lie entirely in the favor of the officer. I believe that the inevitable bias toward a friend, the desire to preserve the dignity of the uniform, and even the generally professional behavior of many officers would tend to create this presumption even in the absence of malign factors. Furthermore, this presumption lies in the same direction as that which would be produced by laziness, incompetence, and even outright criminality on the part of the police. So to the outside and uninformed (i.e. the vast majority of the citizenry), the game is rigged and the outcome is a foregone conclusion except in the most egregious of cases.

    So given this regrettable but I think completely supportable impression on the part of the citizenry who do NOT enjoy a monopoly on the use of casual force, in what universe is it a good idea to put forward a complex set of rules apparently designed to whitewash investigations and protect abusers from the only investigatory relief – administrative review – that appears to be even slightly operational?

  49. Marc Zifcak says

    @Deniable – I understand your sentiment. The people have lost faith in the system meant to benefit them, and not without cause. The usual caveat, "I know that most police officers are trying to do the right thing," is true. Police officers, on the street as opposed to in leadership positions, are directed by the executive branch, which hires, trains, equips and manages them. The Police Chief sets the enforcement priorities. Police chiefs control the disciplinary process. Police, on the streets, are enforcing laws enacted by the legislative branch, as interpreted by the executive branch. Police are limited through both decisions of the judicial branch and laws from the legislature. Police officers on the streets are doing the job they are told to do, with what they have been given, how the expectation has been set, in most cases with only a high school diploma. That's offered as a fact, not an excuse.

    @Ken Barker – "But the police frequently judge a citizen solely on the basis of an encounter and not on the facts." Yes. Absolutely right. So we agree it is unfair for any citizen, those employed as police officers, and those not. Give police fewer laws to enforce, there will be fewer reasons to accost their fellow community members. "The more laws, the more offenders." – Thomas Fuller

    Absent the LEOBR, there would still exist rights for police officers under Garrity, Weingarten, and Loudermill. An LEOBR is a procedural law that tries to establish due process consistently for police officers in a given jurisdiction. It attempts to take into account the unique nature of a job that may require you to take action, in the course of your duties, that would be illegal for anyone else in society. The LEOBR isn't delaying the interrogation of police officers that may have committed a crime such as theft, assault, manslaughter or murder. Look to the fifth amendment as your bogey man on that one.

  50. Grifter says

    @Marc Zifcak:

    I fail to see why an officer being required to testify or be fired (which is a civil matter) is any MORE coercive than a "regular" citizen being required to testify by their employer or be fired (also a civil matter), though, was my point, and I rather wonder how exactly it was considered so by the courts. I understood what it meant in regards ot the testimony, to be sure, but the "coercion" involved is use of the job's power, not use of the State's-as-State.

    I'm not a law-talkin'-guy, though, so I'm sure there's a nuance I don't understand.

  51. CopWatcher says

    @Marc Zifcak:

    It is interesting to always hear the cops cry "We are good, don't judge the majority of us by the few bad apples." when they are, as a group, doing everything in their power to cover up the actions of the "bad" cops and protect them. The reality is, to an outsider, it appears that the majority of cops are bad and the few good ones are those that haven't been in the force long enough to get corrupt.

    For my money the Fraternal Order of Police is the biggest and most violent criminal organization in the US and should (with its entire membership) be treated as such. Time and again we hear of cops with multiple complaints for excessive force against them upheld in court who are still on the force and are proud of their record. Personally, if I see a cop in trouble, as a CHL holder, I will probably not come to their defense unless civilian bystanders are also threatened because the cop probably initiated the situation he is in.

    Kinda sad the state of the relationship with the cops that Americans have nowadays, whatever happened to protect and serve, and why is the new police motto seemingly "Abuse and Harass"?

  52. Tommy Gilley says

    Marc Zifcak

    The problem with LEOBOR being only for internal investigations is that without fail an internal investigation is for a criminal act. I can't think of scenario where an internal investigation would be warranted which didn't involve a criminal act.

  53. Martin says

    Unless someone could credibly argue these are necessary to do their job (I don't see how they could), it seems like a straightforward violation of the Equal Protection clause of the 14th amendment, but IANAL. There are probably reasons I don't follow why section 1 wouldn't apply.