Police officers involved in on-duty shootings should have the right to fully recover their memory of such a traumatic event before giving a statement
Memory gaps are formed as the result of a traumatic event such as an officer involved shooting. A true recollection of that event does not come back until at least 48 hours have passed. That is why many police agencies have a 48-Hour Rule in their contract which allows an officer involved in an on-duty shooting to wait 48 hours before making any statement.
Portland, Oregon officers were protected by a 48-hour Rule until a former mayor withdrew the rule from the police union contract. Here is an abbreviated copy of an article from The Oregonian that discusses the rights of Oregon officers involved in on-duty shootings.
MULTNOMAH COUNTY DA: POLICE CAN’T COMPEL OFFICER IN FATAL SHOOTING TO SPEAK UNTIL CRIMINAL INQUIRY DONE
By Maxine Bernstein
The Oregonian
July 13, 2017
Portland police are considering a new policy that could cause a delay of weeks before an officer who kills someone on duty would be compelled to say what happened.
The proposed policy change results from the legal advice of the Multnomah County district attorney based on a 1984 Oregon Supreme Court ruling and an interpretation of the state constitution.
But it's raising concern among advocacy groups and the director of the city's Independent Police Review who worry that further delays in getting a statement from an officer involved in a fatal shooting would set the city backward and contradict repeated recommendations from hired police consultants.
The changes would follow the hard-fought and successful elimination of the controversial "48-hour rule" in the police contract that had allowed the officers to wait at least two days before making a statement to internal affairs.
"If the city abides by the district attorney's desire to delay administrative interviews, it may be in a position of not having a 48-hour rule but a de facto 40-day rule,'' Constantin Severe, director of the city's Independent Police Review, said in a memo to the mayor and police chief.
Under the proposal, police internal affairs investigators couldn't order an officer who fatally shoots someone or is responsible for a death in custody to answer questions for an administrative review without getting the approval of the Multnomah County district attorney. That approval would come only after the officer testified before a grand jury in the criminal investigation and no indictment was returned.
The only exception to compel an interview with an officer would be when information is "immediately necessary to protect life and/or ensure the safety of the public,'' according to a draft of the Police Bureau's revamped directive on use of force.
Officers still could volunteer statements earlier to investigators, but that would be up to them -- and it's been rare in fatal shootings.
The proposed directive also would allow the officer who fired the fatal shots to wait to write a report until after completion of a criminal investigation – contrary to what the U.S. Department of Justice sought last year.
The changes are the result of a legal opinion by Underhill and his staff, buoyed by support from the Oregon Department of Justice, which rests on a state Supreme Court ruling in a 1984 case called State v. Soriano. Underhill has met repeatedly with the U.S. Attorney's Office and federal civil rights lawyers, who say they now recognize Oregon's legal constraints.
"The legal landscape in Oregon is different," Oregon's U.S. Attorney Billy J. Williams said. "I think it's very important to understand that DAs have to comply with the realities of Oregon law. We don't want to be putting a policy in place that's going to affect the potential prosecution in a case."
In practice, the Police Bureau already has begun to adhere to Underhill's legal advice, outlined in a late March memo.
After a Feb. 9 shooting, for example, internal affairs interviewed all involved officers within 48 hours. After a police shooting on May 9, it was more than a month later before the officer involved was interviewed by either a detective doing the criminal investigation or internal affairs investigators doing the administrative review, Severe noted.
So far, the proposal has drawn the ire of Severe and the Albina Ministerial Alliance's Coalition for Justice and Police Reform.
"A return to delayed interviews of Police Bureau members in officer-involved shootings is untenable from the standpoint of community expectations and investigative best practice,'' Severe wrote in his letter.
The community coalition criticized both the proposal, posted on the Police Bureau's website, and the time afforded to weigh in on the changes. Coalition leaders are urging the City Council to require a public hearing before the Police Bureau adopts the changes.
"Otherwise Portland will be stuck with the 'Ten Times 48-Hour Rule' for years to come,'' the coalition wrote in a statement.
The crux of the issue is the dueling nature of separate police investigations when officers shoot or otherwise kill someone in the course of their jobs.
There's the criminal investigation when detectives seek to learn what occurred and if anyone should be held criminally liable. There's also a police internal affairs administrative review where police investigators work to determine whether an officer's actions followed bureau policies, procedures and training.
In recent years, the two investigations have occurred at the same time. Detectives in criminal investigations can't force an officer to talk or the officer would be granted immunity from prosecution. But until now, internal affairs investigators had the ability to compel officers to give a statement with no immunity from criminal prosecution.
In late March, Underhill advised Portland police and city officials that ordering an officer who has used deadly force to talk to internal affairs violates the officer's right against self-incrimination even if internal affairs doesn't share the information with detectives doing the criminal investigation.
"Such compulsion, absent a sufficient grant of immunity, is unlawful and violates Article 1, Section 12 of the Oregon Constitution,'' wrote Deputy District Attorney Ryan Lufkin in a memo to Underhill shared with police.
In state v. Soriano, the Oregon Supreme Court said the state could not realistically erect a wall between the officers who solicit a compelled statement and the prosecution team.
"It is unrealistic to give a dog a bone and to expect him not to chew on it. ... We hold that Article 1, Section 12, of the Oregon Constitution forbids giving the dog the bone. Only transactional immunity is constitutional in Oregon,'' the court said.
Transactional immunity precludes the state from prosecuting someone for an offense related to their compelled statements. Case law has held that the state cannot force the statements of a witness without granting transactional immunity because they have the right to remain silent, according to the district attorney's office.
Underhill said he had growing concerns about Portland police being pushed by federal Justice officials to quicken the internal administrative investigations of police shootings.
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