HUMAN RIGHTS WATCH Shielded from Justice: Police Brutality and Accountability in the United States
Investigations into Shootings
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Though less frequent than beatings, shootings by police officers occur in every city we examined and are often the source of police-community tensions. In the face of such serious abuses, community trust and accountability are undermined by investigative procedures that are biased in favor of the officers involved. Police investigators may be inclined to accept the officers' accounts uncritically, and responsibility for investigating shooting cases may be left solely to police investigators (from internal affairs and/or homicide divisions), with no external review. Even where citizen review agencies have investigative powers, shooting investigations are usually led by the department itself (which may or may not work with the district attorney's office).

Even though investigators agree that an essential part of any successful investigation is the collection of statements from involved parties and other witnesses as soon as possible so that memories do not fade or become influenced by others, police officers who are involved in shootings may be allowed to delay providing a statement to investigators. In New York, for example, officers involved in shootings are allowed to wait forty-eight hours before providing statements to investigators; in practice, the officer is often allowed more than forty-eight hours because an investigator must request an interview before the forty-eight hour clock begins, and weekends are not counted.145

In Los Angeles, after an "officer-involved" shooting, internal investigators conducted group interviews of the police involved. As the Christopher Commission noted, this allowed officers under investigation to "get their stories straight."146 In cases reviewed by the commission, officers' statements were not recorded until after a pre-interview, and the district attorney's office was not allowed to interview the officer or witnesses until the police department was finished. The commission concluded, "[O]ther law enforcement agencies have successfully conducted shooting and other investigations without resorting to these techniques. The commission perceives no legitimate reason why the LAPD continues to engage in these practices."147 The department did discontinue this practice.

Police departments may compel officers involved in shootings (and other abuses) to provide statements as a condition to remaining on the force. Under U.S. law, such statements cannot be used in criminal proceedings.148 Such a warning is required when a police officer is ordered to give a statement regarding actions taken by him or her while employed with a police department. Because the failure to answer such questions may form the basis of an officer's dismissal or result in disciplinary proceedings against that officer, the officer's right not to be forced to incriminate him or herself has been interpreted by the U.S. Supreme Court to mean that any such statement, or its fruits, cannot then be used in any subsequent criminal proceeding against the employee, except in cases of alleged perjury by the employee giving the statements in which the criminal charge is based upon the falsity of the given statement. As a result, criminal prosecution of officers is more difficult. Once an officer's statement is compelled, the officer is effectively shielded from prosecution on the basis of that statement. If applied in good faith, this Supreme Court ruling would often require a trade-off between purging bad officers through administrative means versus criminal prosecution. In practice, compelled statements tend to protect officers from any sanctions, since criminal prosecution is unlikely and administrative disciplinary sanctions are applied inconsistently if at all.

Officers are usually allowed to have an attorney present before speaking with investigators following a shooting. In some of the cities we examined, however, procedures do not provide for any non-police personnel to respond to the scene as representatives of a person who may have been shot unjustifiably. Oversight of officer-involved shooting investigations in Los Angeles, for example, was dealt a setback in 1995 when the district attorney's (D.A.'s) office discontinued its "roll-out" program of sending assistant district attorneys or special D.A. investigators to all shooting scenes. And in September 1995, the D.A.'s office ended its review of officer-involved shootings unless the relevant police agency requests the office's involvement. Around the same time, the police union created a roll-out team for officers involved in shootings, meaning that D.A. investigators are not on the scene, but attorneys to assist the officers under investigation always are.

This unequal provision of oversight at the shooting scene may pose a serious risk to the integrity of an investigation. For example, the Atlanta police department's investigation into a December 1995 fatal shooting of a motorcycle shop customer during a botched police raid revealed serious problems of bias and incompetence among police investigators. Witness accounts disputed the officers' version of events and indicated that one of the police shot an unarmed man while he lay on the ground, but Homicide Division investigators ignored these accounts. (Witnesses went to the press with their story. In response to the publicity surrounding the shooting investigation, the head of the Homicide Division was transferred to the internal affairs unit - a response that did little to improve investigative tactics in sensitive cases involving the Atlanta police force.)

In many cities we examined, the officer involved in a shooting is allowed to remain on the scene as fellow officers investigate. The officer is thereby allowed to provide his version of events, if he so chooses, and to convince investigators that he acted in a justifiable manner. Even if the involved officer does nothing untoward, his presence on the scene gives the appearance of impropriety.

145 For example, after the December 25, 1997, fatal shooting of William Whitfield by a Brooklyn police officer, investigators did not immediately request an interview and the officer was to be interviewed at least six days after the shooting. Robert D. McFadden, "Police officer has yet to give his account of fatal shooting," New York Times, December28, 1997. Some experts believe that investigators delay taking the statements of involved officers to avoid compelling testimony that as a result would not be admissible in court if the officer engaged in a possibly criminal offense. (See below.)

146 Christopher Commission report, p. 161.

147 Ibid., pp. 161-162.

148 In these circumstances, officers under investigation receive a "Garrity warning." Garrity v. New Jersey, 385 U.S. 493 (1967).

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© June 1998
Human Rights Watch