about an officer in an OIS talking to investigators w/o attorney guidance [Archive] - Glock Talk

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Tilley
08-31-2011, 00:08
Too bad those guys aren't responding - I was actually interested to see what their answer would be. I seriously don't get why people would defend an opinion so vigorously when they haven't stated any reason that they hold that opinion.

If you are referring to me, guess again. My opinion of you is not good, so why in the world would I feel the need to discuss my credentials with a person I think to be an Internet warrior?

But that's just me. Perhaps I am wrong about you. Maybe you can take this discussion over to Cop Talk and express yourself regarding this specific topic...you know...the one about a police officer involved in a shooting talking to investigators without seeking guidance from an attorney.

I think I would be fascinated to see how well that goes over there.

Now if you will excuse me.

Bren
08-31-2011, 06:03
If you are referring to me, guess again. My opinion of you is not good, so why in the world would I feel the need to discuss my credentials with a person I think to be an Internet warrior?

But that's just me. Perhaps I am wrong about you. Maybe you can take this discussion over to Cop Talk and express yourself regarding this specific topic...you know...the one about a police officer involved in a shooting talking to investigators without seeking guidance from an attorney.

I think I would be fascinated to see how well that goes over there.

Now if you will excuse me.

In short: You have nothing to back up your opinion? If you don't want to tell about your awesome "credentials" you could just give a legal argument - that would have come with the "credentials."

Cop Talk? there are guys over there from the department where the shooting happened and other PD's in the county. It has been discussed on GT plenty and the police are very familiar with it. Heck, there are some members over there that I have trained on Use of Force law, in real life, using that case as an example.

RussP
08-31-2011, 06:29
If you are referring to me, guess again. My opinion of you is not good, so why in the world would I feel the need to discuss my credentials with a person I think to be an Internet warrior?

But that's just me. Perhaps I am wrong about you. Maybe you can take this discussion over to Cop Talk and express yourself regarding this specific topic...you know...the one about a police officer involved in a shooting talking to investigators without seeking guidance from an attorney.

I think I would be fascinated to see how well that goes over there.

Now if you will excuse me.Ask and ye shall receive...

DaBigBR
08-31-2011, 08:08
Well I'm confused.

Billua
08-31-2011, 08:14
Well I'm confused.

Yeah, so nhit! Me 2...

Patchman
08-31-2011, 08:15
I'm also confused. I'm bring my union rep in to clear up this confusion. In the meantime, never talk to the police.

merlynusn
08-31-2011, 08:16
Me too Brad.

It doesn't matter what the circumstances.... Any officer who is involved in a shooting needs the guidance of an attorney. IA is not questioning him, Homicide is, which makes it a criminal investigation.

dbcooper
08-31-2011, 08:24
Me too Brad.

It doesn't matter what the circumstances.... Any officer who is involved in a shooting needs the guidance of an attorney. IA is not questioning him, Homicide is, which makes it a criminal investigation.


Any officer, any citizen.

RussP
08-31-2011, 08:28
Well I'm confused.This was spun off from this thread What if they approach while you are holding them at gunpoint? (http://glocktalk.com/forums/showthread.php?t=1364961) starting around Post #66 (http://glocktalk.com/forums/showthread.php?p=17827435#post17827435).

:cool:

Patchman
08-31-2011, 08:37
This was spun off from this thread What if they approach while you are holding them at gunpoint? (http://glocktalk.com/forums/showthread.php?t=1364961) starting around Post #66 (http://glocktalk.com/forums/showthread.php?p=17827435#post17827435).

:cool:

And they mean business? Then it's time for fight or flight.

BailRecoveryAgent
08-31-2011, 08:50
<---Confused member is confused.

merlynusn
08-31-2011, 08:51
Any officer, any citizen.

And the question was in reference to an officer involved shooting.

I don't mind anyone asking for an attorney. It's part of it. It is your right and if you want to exercise your right to an attorney, good for you. Just remember, your Miranda Rights only attach if you are In Custody and being Interrogated.

Tilley
08-31-2011, 10:10
Long story short, at some point in the thread, a fellow named Bren stated if a police officer is involved in an on-duty shooting, it's okay to speak to investigators BEFORE consulting with an attorney.

I disagreed, then it got ugly. Bren gave out his vast experience as a police officer and now as an attorney, and wanted everyone who disagreed with him to give their experience. I didn't play his "who's is bigger" game and suggested he take his advice here.

Sharky7
08-31-2011, 10:17
Long story short, at some point in the thread, a fellow named Bren stated if a police officer is involved in an on-duty shooting, it's okay to speak to investigators BEFORE consulting with an attorney.

I disagreed, then it got ugly. Bren gave out his vast experience as a police officer and now as an attorney, and wanted everyone who disagreed with him to give their experience. I didn't play his "who's is bigger" game and suggested he take his advice here.

It's important to speak on scene and give a brief summary. Responding officers must know if there are other offenders they are looking for, basic details, etc. Safety of the community and officers is important - if it is still an active scene, I can't wait until tomorrow to update everyone.

That being said, I will give my full statement the following day after I have had a chance to sit down with my representation and walk through the incident back at the scene and in my mind a few times and take some notes. These incidents can be very emotional, so giving it some time can help take that emotion out of it and help deal better with the facts and help yourself recover and help your memory.

Patchman
08-31-2011, 11:11
It's important to speak on scene and give a brief summary. Responding officers must know if there are other offenders they are looking for, basic details, etc. Safety of the community and officers is important - if it is still an active scene, I can't wait until tomorrow to update everyone.

That being said, I will give my full statement the following day after I have had a chance to sit down with my representation and walk through the incident back at the scene and in my mind a few times and take some notes. These incidents can be very emotional, so giving it some time can help take that emotion out of it and help deal better with the facts and help yourself recover and help your memory.

^^^ Good common sense approach.

Can the agency compell you to answer all their questions NOW, or else face discipline (like suspension)? Probably. This is when a level headed union rep/atty can pave the way by noting for the record your emotional state so that the statements you're being compelled to make NOW may be incomplete, not fully accurate, etc...

Remember also that they can no longer use these compelled statement against you criminally. That's why the DA usually tell the agency to hold of from compelled interviews.

Patchman
08-31-2011, 12:20
Long story short, at some point in the thread, a fellow named Bren stated if a police officer is involved in an on-duty shooting, it's okay to speak to investigators BEFORE consulting with an attorney.

I disagreed, then it got ugly. Bren gave out his vast experience as a police officer and now as an attorney, and wanted everyone who disagreed with him to give their experience. I didn't play his "who's is bigger" game and suggested he take his advice here.


Is it OK to speak before speaking with an atty? Well, Yes, it's OK... but it would depend. Especially if you have a number of witnesses, video cameras, etc... who saw and recorded the whole shooting etc... I personally wouldn't feel comfortable doing so until after speaking with an atty. You know, bounce it off an impartial/unemotional third party.

DaBigBR
08-31-2011, 13:31
Carry Issues is GNG's retarded cousin in my book.

Bren
08-31-2011, 13:41
Well I'm confused.

Well, it's a GNG or Carry Issues thread where I used the example of Commonwealth v. Mattingly, a police shooting case where the officer, unlike 99+% of all officers here - declined to talk to investigators or describe his justification aftyer a questionable shooting (he's actually the only one I know of in KY and I know of more than most people).

Without a stated, subjective justification required by KRS 503.050 (self-defense), intentionally killing someone is the definition of murder, so Mattingly was indicted, charged, fired and went to trial, only to be found not guilty, because he acted in self-defense. He did not get his job or money back.

My point was that a self-defense explanation good enough to convince a jury of Louisville civilians to acquit, should have been good enough to head off the prosecution at an earlier stage, if he had presented it. But KY law doesn't have the "reasonable person" standard - it says the shooter can only be justified based on his own belief that he was in danger of death, serious injury, etc., so, without that, you are in trouble.

Many of the "never talk to the police" guys disagree, but give no argument as to why, beyond unsupported conclusions.

Interesting that some say an officer always gets to talk to an attorney. In Kentucky, the NEVER talk to an attorney, outside of maybe 2 cities and probably not there in most cases. Of course, here they don't have unions or attorneys on call for the police either (except, maybe, 2 cities, but I doubt it).

However, the original discussion was about civilian CCWers - they don't get to talk to an attorney before the decision is made to arrest or not arrest and, under our law, the explanation is a necessity if you don't want to be charged. Once you are charged by the police you will need a judge to uncharge you (a grand jury decision not to indict is simply the basis for a judge to dismiss the charges, it doesn't do so automatically).

Bren
08-31-2011, 13:50
Is it OK to speak before speaking with an atty? Well, Yes, it's OK... but it would depend. Especially if you have a number of witnesses, video cameras, etc... who saw and recorded the whole shooting etc... I personally wouldn't feel comfortable doing so until after speaking with an atty. You know, bounce it off an impartial/unemotional third party.

As I said, here both police and civilians almost universally explain their justification at the scene. Without a justification, the police complete discretion to arrest them for murder, based on intentionally shooting someone. With a justification, the police are prohibited from arresting them unless they have probable cause to believe they were not justified (burden is reversed). KRS 503.085.

The fact is, once you become a murder defendant, the deck is stacked against you. It isn't worth that risk to decide to "bounce it off an impartial/unemotional third party" later, IMO.

Obviously, the risk is not the same for civilians and police, it was just coincidence that I used a police case as my example of someone who was tried for murder, possibly because the situation snowballed from his decision not to explain his actions at the scene.

Nick.45
08-31-2011, 15:05
However, the original discussion was about civilian CCWers - they don't get to talk to an attorney before the decision is made to arrest or not arrest and, under our law, the explanation is a necessity if you don't want to be charged. Once you are charged by the police you will need a judge to uncharge you (a grand jury decision not to indict is simply the basis for a judge to dismiss the charges, it doesn't do so automatically).

Civilians don't have the right to a lawyer when they are arrested, only when they are being interrogated. Just because they are taken in or volunteer to go to the station to be questioned/interrogated by detectives, does not mean that they are under arrest. But they may or may not be charged and arrested after.

An officer after firing his weapon in the line of duty is being questioned by detectives and should have the right to have an attorney/union rep, etc present.


ETA: I am only a non sworn jailer, so I may or may not be wrong.

RussP
08-31-2011, 15:27
Carry Issues is GNG's retarded cousin in my book.Wonderful, just ****ing wonderful. I work for six years and that's what you have to say. :steamed:

ray9898
08-31-2011, 16:03
Every situation is different but if you take a life you will have to explain your actions. The best course in my opinion is a brief explanation to initially guide the investigators and a more detailed account after things calm down and I can discuss it with my attorney.

I would expect nothing more from Joe Blow on the street so I would hope my fellow LE officers would not expect more from me.

Those who simply refuse to make any statement other than pointing at the dead body are stacking the deck against them in my opinion. Many forget a self defense shooting is a unique situation. Nothing can take away that dead body, it is either a criminal act or it can be justified under specific circumstances. Without the shooter cooperating to provide those critical details to show justification it ends up being a mess.

Bren
08-31-2011, 16:08
Wonderful, just ****ing wonderful. I work for six years and that's what you have to say. :steamed:

He just said "retarded" not "more retarded than GNG." Obviously it's not that.:rofl:

Technically, a less retarded cousin is still a retarded cousin.

FiremanMike
08-31-2011, 16:39
Many of the "never talk to the police" guys disagree, but give no argument as to why, beyond unsupported conclusions.



I'll give you a reason why.

After shooting someone, very few people have the mental capacity to immediately give an accurate account of the events. It is much better to cool off at least overnight, speak with an attorney who can help you organize your thought process, and then go from there.

Doing otherwise would be irresponsible, for police officer and citizen alike.

steveksux
08-31-2011, 17:50
As I said, here both police and civilians almost universally explain their justification at the scene. Without a justification, the police complete discretion to arrest them for murder, based on intentionally shooting someone. With a justification, the police are prohibited from arresting them unless they have probable cause to believe they were not justified (burden is reversed). KRS 503.085.

The fact is, once you become a murder defendant, the deck is stacked against you. It isn't worth that risk to decide to "bounce it off an impartial/unemotional third party" later, IMO.

Obviously, the risk is not the same for civilians and police, it was just coincidence that I used a police case as my example of someone who was tried for murder, possibly because the situation snowballed from his decision not to explain his actions at the scene.Seeing as how a police officer is going to get a bigger benefit of the doubt from the system than the average joe, its a damn good example. Civilians can expect no better outcome than he got. Likely worse (though having a hard time imagining what "worse" would look like...)

In your case though, seems the quirks of KY law make that somewhat of a special case, not necessarily good candidate for generalizations about other states... IMO, and I'm neither a lawyer or a cop.

Randy

RussP
08-31-2011, 17:56
Every situation is different but if you take a life you will have to explain your actions. The best course in my opinion is a brief explanation to initially guide the investigators and a more detailed account after things calm down and I can discuss it with my attorney.

I would expect nothing more from Joe Blow on the street so I would hope my fellow LE officers would not expect more from me.

Those who simply refuse to make any statement other than pointing at the dead body are stacking the deck against them in my opinion. Many forget a self defense shooting is a unique situation. Nothing can take away that dead body, it is either a criminal act or it can be justified under specific circumstances. Without the shooter cooperating to provide those critical details to show justification it ends up being a mess.Some key words and phrases...

Patchman
08-31-2011, 18:29
As I said, here both police and civilians almost universally explain their justification at the scene. Without a justification, the police complete discretion to arrest them for murder, based on intentionally shooting someone. With a justification, the police are prohibited from arresting them unless they have probable cause to believe they were not justified (burden is reversed). KRS 503.085.


I totally agree that a LEO involved in a shooting (on-duty or off-duty) needs to make some statement(s) outlining the events (who, what, when, why) to the investigators immediately after the shooting. A total refusal by a LEO is probably against agency policy and may even be against state statute.

Beyond that, answering the specific questions posed by the shooting team, and offering more detailed explainations of the events, should be done after consulting with a union rep/atty, and with a lawyer present. Doesn't need to the next day, or 24 or 48 hours later. It can be an hour after the shoot. But you first need to talk with somebody uninvolved. Diarrhea-of-the-mouth can be prevented by OCing a lawyer.

Dukeboy01
08-31-2011, 18:40
Interesting that some say an officer always gets to talk to an attorney. In Kentucky, the NEVER talk to an attorney, outside of maybe 2 cities and probably not there in most cases. Of course, here they don't have unions or attorneys on call for the police either (except, maybe, 2 cities, but I doubt it).



I'm with one of the two cities of which Bren speaks. The answer as to whether or not we get an attorney is "Yes, but not immediately."

From our collective bargaining agreement:

Section 5. Critical Incidents
A. When a Member is involved in an incident resulting in death or serious physical injury to another, L.F.U.C.G. shall notify the Lodge President or his designee. The Lodge shall provide L.F.U.C.G. with appropriate telephone numbers for said notification.
B. Nothing in this section shall be deemed to give any Member the right to refuse or fail to cooperate in providing critical scene information after a critical force incident.
C. When a Member is to be interviewed by the Bureau of Investigations as a result of his involvement in a critical force incident, the Member shall be informed of his right to counsel, and be given sufficient time to contact and have counsel present. The Member shall also be informed when counsel is present and/or otherwise available for advice.
D. Members shall not be required to provide a statement concerning involvement in a critical force incident during a criminal investigation with a Bureau of Internal Affairs representative present.
E. L.F.U.C.G. may require a Member involved in a critical force incident to take a drug and alcohol test pursuant to the procedures as established in Appendix 1.

Section B requires us to provide critical scene information, which in practice means that we are expected to tell the first responding officer (and, more importantly, the first supervisor on scene) what happened so that the scene can be secured, suspects can be apprehended, and everyone can be safe. If the officer dummies up at this point, he can (and should, IMO) be charged with insuburdination.

Now, if you've straight up murdered somebody, losing your job might be a good trade. But if you're right, you're just buying trouble.

Section C dictates what happens at headquarters. It's going to be an in- depth interview with our Homicide detectives. We have a policy in place (seperate from our contract) that guides everyone involved. The FOP president is called and he gets ahold of the attorneys. We have several on- call and they'll meet the officer at headquarters.

We were using the same shyster when we ratified that language in our first collective bargaining agreement that the Louisville FOP had been using for years, so I imagine that their contract's language is identical.

Cav
08-31-2011, 18:55
If you did your job right, you should have no issues talking with investigators. Garity or a reverse garity could be attached.

For my department we seperate officers, collect guns, issue out guns, and do an interview with the officers.

Then a day or two later you might write a statement/do your report.

You should know if you need a lawyer. If you were in fear for your life or anothers life, you have an obligation to use deadly force.

I would have no issue giving a basic statement of what happened (not very detailed).

Maybe it depends on the agency or the state...

FiremanMike
08-31-2011, 19:07
You should know if you need a lawyer. If you were in fear for your life or anothers life, you have an obligation to use deadly force.



IMHO regardless of the circumstances, you NEED a lawyer. Society is extremely anti-cop now. I would definitely not face even the most justified shooting in the world without at least speaking to a lawyer.

beatcop
08-31-2011, 19:08
What PD doesn't get the union lawyer/use of force expert there to comb out the wording of a report? I'm sure most guys just start blabbing, but come out ok. However, some advise a check out at the ER...great stress, perhaps a little sedative....ok, now no interview under the influence.

Tilley
08-31-2011, 20:34
Two words: Fullerton Police

There is a huge group of people that want murder charges against these 6 officers.

razdog76
08-31-2011, 21:14
Interesting that some say an officer always gets to talk to an attorney. In Kentucky, the NEVER talk to an attorney, outside of maybe 2 cities and probably not there in most cases. Of course, here they don't have unions or attorneys on call for the police either (except, maybe, 2 cities, but I doubt it).

However, the original discussion was about civilian CCWers - they don't get to talk to an attorney before the decision is made to arrest or not arrest and, under our law, the explanation is a necessity if you don't want to be charged. Once you are charged by the police you will need a judge to uncharge you (a grand jury decision not to indict is simply the basis for a judge to dismiss the charges, it doesn't do so automatically).

Regardless of whether you are sworn or not, you get to talk to an attorney the moment you contact one.:dunno:

A civilian could talk to an attorney before that decision was made, but it would depend a lot on how accessible the attorney was. Of the friends I have that, ahem, are members of the bar, most are not leaving their house after midnight, and probably not answering their phone either.

Many departments have a policy requiring the Officer must complete a statement. Garrity rights would be read, and if the Officer declines, then discipline would follow, so even if the then former Officer went to court and won, then the termination for disobeying a direct order/insubordination would stand.

Ohio law differs, the prosecutor presents the case to the grand Jury, if it is "no billed," then the prosecutor could present it again at a later time. If the prosecutor declines to continue, then there is no case.

A judge may dismiss a case, but in my experience is much more likely to be withdrawn without prejudice by the prosecutor way before trial in case more evidence is available later. It is too costly to prosecute cases that are marginal, unless there is a big political motivation.

Fallout
08-31-2011, 21:49
Having been present during OIS's from both a boots on the ground and supervisor stand point I think that it is important to give a brief summary of what happened to another officer on scene if no one else was present. Basic information.

That being said, I work for a department that is very forward thinking and officer minded and has a policy in effect that will not allow us to give an official statement for a minimum of 24 hours. We farm out our shootings to the Texas Rangers, the ones who work in my area are all aware of the policy and have no problem with it.

I think an officer should have an attorney when writing his statement from the mere stand point of properly wording it so you dont say something stupid and get in a bind when the civil trial begins. An agency's or Entity Funding that Agency's Legal Team (City/County/State Government) will look for Policy violations or try and prove that you acted outside of normal and accepted practice to remove themselves from the lawsuit even if you were completely justified in using force and are cleared from the criminal proceedings.

Hasnt happend in any of the instances at my agency (yet) but several surrounding agencies their lawyers were quick to look for an out to leave the officer defending himself.

wprebeck
08-31-2011, 22:05
Well, it's a GNG or Carry Issues thread where I used the example of Commonwealth v. Mattingly, a police shooting case where the officer, unlike 99+% of all officers here - declined to talk to investigators or describe his justification aftyer a questionable shooting (he's actually the only one I know of in KY and I know of more than most people).

Without a stated, subjective justification required by KRS 503.050 (self-defense), intentionally killing someone is the definition of murder, so Mattingly was indicted, charged, fired and went to trial, only to be found not guilty, because he acted in self-defense. He did not get his job or money back.

My point was that a self-defense explanation good enough to convince a jury of Louisville civilians to acquit, should have been good enough to head off the prosecution at an earlier stage, if he had presented it. But KY law doesn't have the "reasonable person" standard - it says the shooter can only be justified based on his own belief that he was in danger of death, serious injury, etc., so, without that, you are in trouble.

Many of the "never talk to the police" guys disagree, but give no argument as to why, beyond unsupported conclusions.

Interesting that some say an officer always gets to talk to an attorney. In Kentucky, the NEVER talk to an attorney, outside of maybe 2 cities and probably not there in most cases. Of course, here they don't have unions or attorneys on call for the police either (except, maybe, 2 cities, but I doubt it).

However, the original discussion was about civilian CCWers - they don't get to talk to an attorney before the decision is made to arrest or not arrest and, under our law, the explanation is a necessity if you don't want to be charged. Once you are charged by the police you will need a judge to uncharge you (a grand jury decision not to indict is simply the basis for a judge to dismiss the charges, it doesn't do so automatically).

Couple of points -


If youre talking about McKenzie, he DI get his job back, if only in a ttechnical sense. It was part of the settlement arranged after his acquittal. He is currently employed in bardstown as an officer with their police department. I followed that case closely, since it was local and involved my wife's agency.

Secondly, every agency in Kenyuckt that is in the FOP Legal Defense plan will have a lawyer come out to a critical incident. For sure, Louisville and Lexington do. Our primary is Mary Sharp, but Dave Fuller and Steve Schroering do FOP work, as well.

SAR
08-31-2011, 22:13
On our Department, we have quite a few OIS's. Everything we do is by policy. Immediately subsequent to an OIS, you are required to provide a "public safety statement" to a supervisor. This is a bare minimum statement of facts that do not go into the hows or whys of the shooting, but rather, which direction did you shoot? Anyone hit? Any outstanding suspects? That sort of thing. The supervisor then has to stay with you until you have a chance to speak to an attorney or union rep, and then to investigators. You can waive your right to an attorney or union rep, but nobody ever does. Our Force Investigation detectives are all on board and will not even try to solicit a statement without offering you representation.

wprebeck
08-31-2011, 22:14
Forgot to add -

McKenzie was prosecuted for political expediency. I'll leave it at that. His statement was that he thought Newby was reaching towards his waistband for a gun, and he fired. This occurred immediately after a struggle for the officer's gun, during which a shot was fired. Newby stopped trying to get Mackenzie's gun, did what we call "establishing a reactionary gap", and reached for his waistband. McKenzie fired, and shots into what some would later call Newby's back. Actually looked liked side to me, but hey, what do I know?

Oh, and Newby's waist? A .45 caliber pistol was found. He never should have been ccharged, and Chief White was talking about McKenzie's guilt BEFORE the PIU investigation was even completed....on TV, no less.

Again, McKenzie was sacrificed on the altar of political correctness. That is all there was to it. Like I said, he's a cop in Bardstownnow, about 40 miles away.

JohnnyReb
08-31-2011, 23:00
Forgot to add -

McKenzie was prosecuted for political expediency. I'll leave it at that. His statement was that he thought Newby was reaching towards his waistband for a gun, and he fired. This occurred immediately after a struggle for the officer's gun, during which a shot was fired. Newby stopped trying to get Mackenzie's gun, did what we call "establishing a reactionary gap", and reached for his waistband. McKenzie fired, and shots into what some would later call Newby's back. Actually looked liked side to me, but hey, what do I know?

Oh, and Newby's waist? A .45 caliber pistol was found. He never should have been ccharged, and Chief White was talking about McKenzie's guilt BEFORE the PIU investigation was even completed....on TV, no less.

Again, McKenzie was sacrificed on the altar of political correctness. That is all there was to it. Like I said, he's a cop in Bardstownnow, about 40 miles away.


Poor guy. The aftermath is terrible enough, without having to be drug through that.

wprebeck
08-31-2011, 23:18
Poor guy. The aftermath is terrible enough, without having to be drug through that.

Being local, this case sticks with me. Unfortunately, its one of those things that tends to make an officer hesitate before employing deadly force. He lost his job (no matter the end result...he was fired initially), lost his marriage, and raked over the coals. All so PC could be appeased.

You gotta wonder....would your family be better off, if you died a hero....rather than be tried as a murderer?

Tilley
08-31-2011, 23:29
On our Department, we have quite a few OIS's.

Are you LAPD?

Bren
09-01-2011, 05:13
Regardless of whether you are sworn or not, you get to talk to an attorney the moment you contact one.:dunno:

A civilian could talk to an attorney before that decision was made, but it would depend a lot on how accessible the attorney was. Of the friends I have that, ahem, are members of the bar, most are not leaving their house after midnight, and probably not answering their phone either.

Atround here, you (civilians, anyhow) contact your attorney after you get to jail and when you pause the conversation to make a phone call, that's when handcuffs go on. I do understand the police are more "sensitive" in some states.

razdog76
09-01-2011, 06:49
Atround here, you (civilians, anyhow) contact your attorney after you get to jail and when you pause the conversation to make a phone call, that's when handcuffs go on. I do understand the police are more "sensitive" in some states.

Has nothing to do with sensitivity.

A person wanting to consult an attorney, and having other people contemplating PC for an arrest are independent things. The person involved in the shooting can call their attorney at any point between the incident, and when the interview/interrogation began, or not make a statement at all. I sure hope there is better PC than the person wanting to call an attorney to make an arrest.

With OIS, there are contractual issues to consider. If what wprebeck, and Dukeboy01 says is true, there are contractual issues, and a politically volatile situation too. Contractual issues, and police duties do not supersede the Officers rights as a citizen; however, employment hangs in the balance.

You, as the attorney know who will be the only "winner" in a situation like this after the dust settles, and it isn't the Officer (assuming it was a good shoot), department, taxpayers, or anyone that was even at the OIS.

poodleshooter1
09-01-2011, 08:22
Atround here, you (civilians, anyhow) contact your attorney after you get to jail and when you pause the conversation to make a phone call, that's when handcuffs go on. I do understand the police are more "sensitive" in some states.

So you arrest someone for exercising their right to an attorney? And I thought forcing people to convince the Police they are innocent right then and there was bad...

Sam Spade
09-01-2011, 09:13
So you arrest someone for exercising their right to an attorney? And I thought forcing people to convince the Police they are innocent right then and there was bad...

Probable Cause: Articuable facts and reasonable inferences showing that a crime was, is, or is about to be committed by the suspect.

There's a body on the ground, there's a gun in your hand. We've met the probable cause standard already. You want to lawyer up? Fine. But we don't get to *not* make a decision in things. If the only information we have is coming from the body and his friends, then that's the information we'll use.

There are three relevant boxes on the report, one of which gets checked. You can be a witness. You can be a victim. Or you can be a suspect. If you want to be the victim when there's a body laying on the street, then you need to act like one. Maybe, just maybe, others are going to speak out and show that you were the victim. But it seems to me that just as you take responsibility for your own defense, you might want to take responsibility in the aftermath.

So, no. You don't get arrested for exercising your rights. You get arrested because there's probable cause to do so and you've done nothing to correct misconceptions.

OXCOPS
09-01-2011, 09:26
Probable Cause: Articuable facts and reasonable inferences showing that a crime was, is, or is about to be committed by the suspect.

There's a body on the ground, there's a gun in your hand. We've met the probable cause standard already. You want to lawyer up? Fine. But we don't get to *not* make a decision in things. If the only information we have is coming from the body and his friends, then that's the information we'll use.

There are three relevant boxes on the report, one of which gets checked. You can be a witness. You can be a victim. Or you can be a suspect. If you want to be the victim when there's a body laying on the street, then you need to act like one. Maybe, just maybe, others are going to speak out and show that you were the victim. But it seems to me that just as you take responsibility for your own defense, you might want to take responsibility in the aftermath.

So, no. You don't get arrested for exercising your rights. You get arrested because there's probable cause to do so and you've done nothing to correct misconceptions.

Alot of people see things clearly in hindsight. However, some often forget that those officers on the scene....right then...right there...have to make the best decisions they can with the information available to them at that time.

KentuckyPatriot
09-01-2011, 14:23
Atround here, you (civilians, anyhow) contact your attorney after you get to jail and when you pause the conversation to make a phone call, that's when handcuffs go on. I do understand the police are more "sensitive" in some states.

Bren...do you know the specifics of the retired J-town officer shooting the civilian in the Stoneybrook parking lot in Louisville? This was an interesting case as the public and some of the media vilified him based on some of his career events, however, he was never charged. I do believe he gave a brief statement to responding officers that the other party was being vehicularly aggressive and then made a poor choice to wave a handgun at the officer.

In another local case, we have the two individuals (one white, one black IIRC, and at least one a sports standout at UofL) who had an altercation in the middle of the street. Dead guy reached into CCW vehicle and assaulted the passenger (again IIRC) at which time the CCW party shot and killed offender.

Again, I believe a brief statement was given immediately that the parties feared for their lives or whatever and they were not charged despite the anti-gun sentiment of the current prosecutor and the dead offender's family.

As an instructor I strongly advocate that civilians articulate at least a basic fear for their life to the first responding units...and then continue to make their basic statement to other officers as necessary. If their facts seem to match the scene they should be allowed to leave the scene at some point. It is at that point I suggest contacting an attorney as a more in-depth interview will likely be coming within the next 24 hours.

It is ok to say you don't want to give any statement other than "he tried to kill me"....but don't whine when the cuffs go on because the officers on scene can't decide which side of the event you are on....

Do you agree?

Dragoon44
09-01-2011, 18:14
A person wanting to consult an attorney, and having other people contemplating PC for an arrest are independent things. The person involved in the shooting can call their attorney at any point between the incident, and when the interview/interrogation began, or not make a statement at all. I sure hope there is better PC than the person wanting to call an attorney to make an arrest.


Are you freaking kidding me? anyone involved in a shooting is at the very least in the category of "detained". Your dept lets "detained" people make phone calls if they feel like it? really?

I am not flaming you, just trying to figure out what the deal is.

merlynusn
09-02-2011, 12:02
As an instructor I strongly advocate that civilians articulate at least a basic fear for their life to the first responding units...and then continue to make their basic statement to other officers as necessary. If their facts seem to match the scene they should be allowed to leave the scene at some point. It is at that point I suggest contacting an attorney as a more in-depth interview will likely be coming within the next 24 hours.

It is ok to say you don't want to give any statement other than "he tried to kill me"....but don't whine when the cuffs go on because the officers on scene can't decide which side of the event you are on....

Do you agree?

True, but there also cannot be a huge disparity of force. If someone rearends you in a traffic accident, you can't just shoot them and say "I feared for my life" and get off. There has to be a reasonable presumption that you feared for your life which is why you shot the offender. Yes, someone waving a gun at you would meet that. A simple accident would not.

razdog76
09-02-2011, 12:31
Are you freaking kidding me? anyone involved in a shooting is at the very least in the category of "detained". Your dept lets "detained" people make phone calls if they feel like it? really?

I am not flaming you, just trying to figure out what the deal is.

No, the OP just indicated that there is no opportunity to talk to an attorney, when all I am saying is that there is.

That person could call one from the point of "bang," until the cavalry arrives. There are many places, where that could be quite a while. Hell, in my county that could be 20 minutes running priority one.

Semantics I know, but much of this thread appears to be that.

DaBigBR
09-02-2011, 13:26
Are you freaking kidding me? anyone involved in a shooting is at the very least in the category of "detained". Your dept lets "detained" people make phone calls if they feel like it? really?

I am not flaming you, just trying to figure out what the deal is.

State Code in my state:

Iowa Code 804.20

Any peace officer or other person having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person's family or an attorney of the person's choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.

The statute is a holdover from pre-Miranda days that has survived at least one major revision of the state criminal code. Through a tremendous number of decisions, the rights afforded by the statute have been upheld and, arguably, expanded. It's worth pointing out the last line: if a peace officer willfully violates the section, they may be criminally charged (never heard of it happening, though).

So what this ends up amounting to is that if I arrest, detain, or otherwise "restrain a person's liberty" for any reason, and transport them to a place of detention, they get to use the phone. They don't get to talk all day, but they get to use the phone.

Not saying I completely agree with the statute or that something similar exists in any other jurisdition, just posting for the sake of discussion.

Dragoon44
09-02-2011, 14:06
No, the OP just indicated that there is no opportunity to talk to an attorney, when all I am saying is that there is.

That person could call one from the point of "bang," until the cavalry arrives. There are many places, where that could be quite a while. Hell, in my county that could be 20 minutes running priority one.

Semantics I know, but much of this thread appears to be that.

Ok, that I understand. thank you for the clarification.

Dragoon44
09-02-2011, 14:09
So what this ends up amounting to is that if I arrest, detain, or otherwise "restrain a person's liberty" for any reason, and transport them to a place of detention, they get to use the phone. They don't get to talk all day, but they get to use the phone.

ehh, I can understand once they have been transported to a place of detention. It was what appeared to be the previous poster was saying they could call at any time. ( he has since cleared that misunderstanding up. And it appears thier policy is much like yours.)

DaBigBR
09-02-2011, 16:12
ehh, I can understand once they have been transported to a place of detention. It was what appeared to be the previous poster was saying they could call at any time. ( he has since cleared that misunderstanding up. And it appears thier policy is much like yours.)

Yeah...calls from the scene...not so much. Very limited circumstances.

ray9898
09-02-2011, 17:23
So you arrest someone for exercising their right to an attorney? And I thought forcing people to convince the Police they are innocent right then and there was bad...

That is not what he said. The handcuffs only go on when the legal standard is met.

The situation he is describing is one where there is already evidence to arrest. A common scenario is a suspect is taken for an interrogation and instead invokes his right to counsel. The arrest is made at that point because the investigation is over since the attorney is not going to to submit their client for questioning immediately anyway.