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We, the people, put them in the position.EXPAND
We, the people, put them in the position.
Brian Maschino

Ditching the 72-Hour 'Cooling Off' Period for Cops Won't Be Easy or Simple

One part of the police reforms advocated by Dallas police Chief U. Renee Hall worries me. Apparently in response to calls from community activists for a more level playing field where police shootings are concerned, the chief is in favor of doing away with the so-called 72-hour “cooling off period” before a police officer can be interrogated in a police-involved shooting.

That’s not exactly the part that worries me. What worries me is the assertion that doing away with the 72-hour cooling off period will put cops and citizens on an equal footing.

OK, I don’t know if I should say this out loud. I don’t want to mess up my deal. But if I am ever suspected of bank robbery or manslaughter or anything like that, I personally am entitled to a 144-hour cooling off period before I have to make a statement.

If I feel like it, I get a 1,440-hour cooling off period. In fact I never have to make a statement. And I wish you would keep this between us for now, but you actually get the same deal.

The cops can’t make either one of us talk, ever. Not a word beyond identification. Only a judge can make us talk, and that’s only under certain circumstances.

No citizen of the United States can be compelled to give evidence against himself, unless the judge wants to give him immunity or cite him for contempt. When I was asking a criminal attorney friend of mine about this years ago, he told me if I ever found myself in a dicey position, like I thought I was shooting a burglar but I shot my neighbor instead, I should shut up until he got there.

I said, “Won’t they arrest me and take me to Lew Sterrett jail if I refuse to answer their questions?”

He said, “Yes, probably, but luckily for you I know where Lew Sterrett is.”

The difference here, in terms of my legal standing and my right not to answer questions, is not between me and a cop. The difference is between me and a guy who doesn’t have access to a good criminal attorney.

Let me give you another example of that. Some of the immediate energy behind the push for police reform comes from the recent horrible case in which a Dallas police officer shot and killed an innocent man in his own apartment. When she was subsequently criminally charged, she turned herself in for arrest and booking in a nearby county but not at the Lew Sterrett Justice Center in Dallas where the press would have been lying in wait.

The claim by community activists was that the former officer, Amber Guyger, was “allowed” to surrender outside of the county and away from the media glare because she was a cop and that this was a privilege never extended to mere civilians. Any citizen with access to a good lawyer will know that he or she can, in fact,  surrender to any Texas law enforcement agency.

Guyger didn’t get to turn herself in to authorities in Kaufman County because she was a cop. She was able to do it because she had a good lawyer.

I am not claiming here that all of this is fair and commonly known or even strictly observed by authorities. I don’t think the right to keep your mouth shut is observed by much of anybody. The Miranda warning, if you even get one, probably sounds something like, “Right-a-remain silent-thing use-again ford-attorney be-provide against-the-wall asshole.”

How many times do we think the police tell people, “Now, you are aware, of course, that you are under no legal obligation at all to speak to us and that in fact you would might even be much better off to remain absolutely silent until you have had an opportunity to confer with an expensive criminal attorney.”

None of the way this works is especially fair, but I’m not sure how much of that can be blamed on the cops. I would blame more of it on our having become an immorally inequitable society in which the benefits and protections of the Constitution depend overwhelmingly on how much money you’ve got.

But while we’re on the subject of unfair, the only fair thing to do is look also at the cop’s side of the story. A police officer who follows her department’s policy to a T — and shoots somebody — is immediately threatened legally by a set of circumstances that you and I do not have to worry about.

In addition to being subject to the same criminal laws and the same criminal investigation that I would face if I shot my neighbor (I have no particular neighbor in mind), a cop also automatically faces a second investigation and another set of legal and personal perils from the department’s internal affairs division. That’s a different deal, carried out by different investigators under a different set of protocols.

If I get nailed for shooting my neighbor and the criminal process decides he had it coming because of our recurring parking issue (just made that up), I’m done. But the cop is just beginning. Now his case goes to the IAD.

Here is where it gets really deep. In 1975, the U.S. Supreme Court ruled that a public employee cannot be compelled to answer questions in a departmental proceeding that might incriminate the employee in a subsequent criminal proceeding. Basically the court said you can’t set up a deal where a public employee loses the constitutional protections from self-incrimination that a regular American citizen enjoys.

In this case, it means you cannot reduce the legal and constitutional status of a police officer to less than that of any other person. The way that works out is this: yes, Chief Hall has the right and ability as chief of police to tell cops that they are compelled by her rules to offer statements or answer questions about a shooting right after it happens. But then that statement will be barred by law from being used as evidence in a subsequent criminal proceeding.

Bob Gorsky, a lawyer who represents police on these issues, explained to me Wednesday, “A prosecutor cannot take a compelled statement and use it in his or her case.”

The debate on forcing cops to give evidence in police-involved shootings goes quickly to the Constitution.EXPAND
The debate on forcing cops to give evidence in police-involved shootings goes quickly to the Constitution.
Bluszczokrzew via Wikimedia

It’s out. So ironically, the effect of ordering cops to talk, whether you call it a statement or a walk-through or whatever, may have an effect opposite the goal community activists may be seeking. Clearly the activists believe that getting a cop on the record right after a shooting will provide a more honest, less contrived rendering of what happened.

Some science disagrees with that, but let’s leave that all up to the scientists for now. Compelling a police officer to answer questions at any point, right after the event or weeks later, only puts that interview out of reach for prosecutors and may actually provide the officer with a free dress rehearsal.

If the IAD investigation is postponed and not on the table until later, if the only investigation an officer faces is the criminal one, then that officer cannot be compelled to answer questions unwillingly, because … Constitution. But, c’mon. Police have their ways, do they not, even in dealing with police.

I spoke yesterday about that with Mike Mata, president of the Dallas Police Association, the city’s largest police officer bargaining unit. The leverage, Mata said, would be that a police officer who refused to answer questions might be threatened with arrest.

Gorsky had a slightly different take on that. They can’t really arrest you for not answering questions, because you’re not legally required to answer questions, he said. But they can arrest you. Hey. They’re the cops.

If they say, “Jim, we think you shot your neighbor because you’re an idiot,” they can arrest me for that. Obviously. So the cop under pressure from the department to answer criminal questions right after a shooting knows that he may be taken to jail if he refuses to cooperate.

Mata, who is a cop, has a pretty dismal view of that. His point is that you and I put the cop out there, put a blue uniform and a badge on him, hang a gun on his hip and tell him to go protect us. If he follows policy and training perfectly and shoots somebody, Mata doesn’t think we should strong-arm him like a common criminal:

“You’re going to tell them, ‘I’ve given you the training to do something,'" he said. "'I have given you the authority to do it. I have given you the weapon to do it. Now you’re going to do it, and if you don’t give us a statement immediately, then we’re going to arrest you.’

“How is that going to go over to the rank and file?”

Of course the other side of that argument would be that the activists are not talking about the case in which the cop has done everything right. They’re talking about the case where the police officer has abused authority, has done everything wrong and has committed murder.

The problem is that murder is a verdict, not an opinion. You can’t get to the verdict without going through the process. The outside parameters of that process are set by the Constitution, not by policy or politics. Cops live inside those constitutional guarantees and rights just as you and I do. So nothing about this will be easy or obvious.

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