As many of you know, the Clark County Commission convened public hearings to discuss changes to the existing procedures for conducting Coroner’s Inquests following officer involved deaths.
While most people employed in the law enforcement profession felt that the existing fact finding procedures were sound and provided adequate fairness and due process for the deceased’s families, the involved officers and general community interests, several civilian groups lobbied our County Commissioners for changes that were designed to place more of an adversarial spin on the Inquest procedure and obtain future results that negatively impact law enforcement. Simply put, it is the belief of many who participated in the review process that the sole intent of these changes was to acquire skewed findings that can be used to prosecute and/or civilly sue officers involved in the use of deadly force.
More recently on October 25, 2012, the Nevada Supreme Court struck down the Coroner's Inquest Ordinance as unconstitutional, as it required Justice Court judges to preside over the inquest proceedings -- a requirement that infringed upon the Legislature's power to determine the scope of the Judge's duties.
Based upon communications with the District Attorney’s office, our member Associations and other non-member law enforcement Unions, it was previously determined that it is in the best interests of our Clark County members (specifically the "shooters" in an OIS or "hands-on" officers in an in-custody death) NOT to participate in any investigations conducted by the agency’s homicide investigators (unless the circumstances of a particular case require otherwise) or to testify at the subsequent Coroner’s Inquest proceeding. The Nevada Supreme Court's ruling does not alter our recommendations. In fact, due to the continued uncertainty of the Coroner's Inquest process, our recommendations are as strong as ever.
The reasons for these recommendations are simple: (1) the new Coroner’s Inquest rules will allow for an Ombudsperson (a licensed attorney) to be appointed to represent the deceased’s family in all inquest proceedings, meaning that officers and all other witnesses will now be subject to cross-examination designed to implicate the officers in criminal or civilly liable conduct; and (2) pre-Inquest conferences will now be conducted with the Ombudsperson and the deceased’s family, who will be given complete access to all police investigative files and Coroner’s files (including any statements you provide) involving the death – a discovery tool that can be used to further muddy the facts and attempt to implicate officers in wrongful conduct during the Coroner’s Inquest.
We understand that our members perform righteously in these circumstances and they have nothing to hide by refusing to speak to investigators. However, providing statements shortly after these critical incidents that merely add to the array of unprotected and non-privileged statements that others may use to place the officers in harm's way, is not the way to go. Lawyers who ultimately represent the families of deceased persons have ample access to the courts to seek justice for their clients. The District Attorney's office has the ultimate word on criminal prosecutions following the OIS or other critical incident. The family has the right to file civil lawsuits seeking monetary compensation for the death, which will involve depositions that seek to obtain sworn, detailed statements from the officers -- shooters and witness officers alike. In addition, all involved officers may be subjected to internal/administrative interviews regarding the incident under Garrity protections. Internal training reviews may subject the involved officers to further statements. Again, while there may be absolutely nothing to hide, the officers' multiple statements (perhaps 2, 3 or 4 statements that he/she has given) will undoubtedly be reviewed with a fine toothed comb to locate even the most benign and meaningless inconsistencies. Those may be all that a lawyer has to present a case to a jury against an officer, but lawyers are skilled at developing the proverbial "mountain out of a molehill." So, it seems to be common sense to simply limit the number of statements given by a stressed officer who has justifiably taken a human life in the performance of his/her duties.
Please understand that members SHOULD continue to provide what has become known as a “Public Safety Statement" to the first responding supervisor at the scene. A Public Safety statement is generally defined as including:
(1) Information relating to any injuries to officers, surviving suspects or witnesses
(2) The location of the incident
(3) Information regarding any outstanding suspects, including vehicle information
(4) The direction of any shots fired
(5) The identities of any witness officers or civilians
(6) Any other evidence located at the scene
However, this information should be provided in a summary manner, and the member is cautioned against engaging in a full interview or interrogation at the scene until Union representatives arrive. Keep in mind that evaluations of a deadly force response are based upon the involved officer’s state of mind at the time of the incident – what he/she knew or reasonably believed that led them to shoot or use other deadly force. That is NOT part of a Public Safety statement and should not be discussed with anyone other than your designated Union lawyers or lawyer representatives.
Of course, there is the "walk through" that is typically used by the homicide investigators at the scene shortly after the incident occurred. This is important to the investigative process and it is NOT recommended that officers refuse to participate in that process. It may be necessary for investigators to be briefed on officer positioning, lines of fire, backdrops, location of bullet casings, etc. However, officers should be mindful of any investigators who use the walk through as a field interview which goes into greater details of the incident, especially since the walk through may be observed by more than just the criminal investigators -- they are often observed by training personnel, non-sworn crime scene investigators, uninvolved supervisors or command personnel who are mere curiosity seekers, etc. Even the news media is capable of evesdropping on walk throughs with their sophisticated technology. Anything that those people hear during such an interview is NOT protected from disclosure and misuse by those who want nothing more than to find fault with the officers.
Our recommendation against shooters participating in the homicide investigation, either at the scene or in follow-up interviews, is not meant to discredit the investigators of your agency. Unfortunately, they are caught in the middle of this process because while officers want to cooperate with their brethren to obtain important information about the incident, any such statements will now be the subject of pre-Inquest discovery by the deceased’s families and the Ombudsperson who may attempt to use those statements to distort the real facts of the case. If you are a shooter and are asked to participate in voluntary post-incident interviews conducted by any investigators, simply advise them that, "Upon the advice of my representatives, I do not wish to participate in any interviews at this time." Your representatives will advise you at every step of the process, and will recommend such statements if they become necessary.
There will always be the inherent desire to tell your story to investigating officers and the public at the Coroner’s Inquest. We understand and respect that need. However, the new Coroner's Inquest rules were not designed to assist an unbiased fact finding mission. Rather, they were designed to permit an adversarial proceeding with the ultimate intent of prosecuting officers and providing discovery options that will foster more frivolous lawsuits against officers and their agencies. Once again, the District Attorney’s office and the civil Courts are still available to redress criminal or civil wrongs. The Coroner’s Inquest should not be another adversarial proceeding designed to persecute peace officers for doing their jobs.
These new rules have been in effect for more than a year and the recent Supreme Court decision will require that they be modified in some ways. Clearly, the process will continue to evolve. More questions will arise and more answers will be forthcoming as modified Inquest rules take shape. NAPSO will continue to provide updated information and recommendations as they are needed. In the meantime, if you have any questions, please feel free to contact the NAPSO office at (702) 431-2677.