Investigating Police Use of Force

The subject of use of force, particularly deadly force, by police has become a topic of intense interest in the past couple of years. In a January 20 article in the Salt Lake City Deseret News, Ken Wallentine, a longtime police officer and current police consultant was quoted as saying, “while most police departments in Utah have the same policy when it comes to when deadly force can be used, the training and investigations of such incidents are widely varied.”

This is the situation in many, if not most states. Additionally, it is important for people to understand that in the case of police use of deadly force or force causing serious bodily injury, there are actually two investigations at the local level. (There may also be investigations at the federal level, but that will be addressed in another post.)

Criminal Investigation

The first is a criminal investigation. The purpose of this investigation is to determine if the officer violated any criminal laws, i.e. laws which could cause him/her to go to jail. This is similar to the investigation conducted by police into any case of possible criminal conduct.

However, in the case of police use of deadly force, the best practice is for that investigation to be conducted by someone other than investigators from the involved officers’ agency. If for no other reason, there should be no perception of favoritism which may accompany investigation by people who may be friends of the involved officer. In my experience, the best solution is a task-force, made up of trained investigators from several agencies, who are called into service if a deadly force incident occurs.  In the Deseret News article, Paul Boyden, executive director of the Statewide Association of Prosecutors, said “county attorneys, particularly in smaller jurisdictions, will look solely at whether criminal charges should be filed when reviewing an officer-involved shooting, but they will not review whether department policy was followed.”

In the criminal investigation, it is critical that experienced investigators and prosecutors be utilized. The criminal investigation into the actions of a police officer is no different, nor should it be, than the investigation of similar actions by any citizen.

Administrative Investigation

Unlike investigations into actions by a citizen which result in death or serious bodily harm, the police officer is also subject to a separate administrative investigation, sometimes called an internal affairs investigation. This investigation is typically conducted by the officer’s own agency.  Its purpose is to determine if the officer’s actions violated any policies of the police department. It is important to remember that it is entirely possible for police policies to be violated, even though a deadly force incident incident might be ruled acceptable under the criminal law.

In the administrative investigation, the rules regarding the conduct of the investigation are different from those employed in a criminal investigation. This is because the administrative investigation is a personnel activity, and the police officer is not subject to incarceration or criminal fines. The most severe punishment in an administrative investigation is termination of employment.

The most important difference between the criminal and administrative investigations is that, in the administrative investigation, the officer does not have the ‘right to remain silent.’ This provision, commonly called the Miranda Rule, applies solely to criminal investigations. Because of the personnel nature of the administrative investigation, the officer may be compelled to give a truthful accounting of the incident, under penalty of termination. This rule is commonly called the Garrity Rule, and comes from a 1967 United States Supreme Court decision.

The officer also does not have a right to a lawyer, unless she/he is subject to a collective bargaining agreement (union contract).

Because the basic right to a lawyer and to remain silent accorded to all persons, even police officers, being investigated for criminal violations is at odds with the Garrity Rule, the results of an administrative investigation may not be shared with criminal investigators. Television shows, and some police agencies, have the criminal and administrative investigations being conducted by the same investigators. This should never be done.

Civilian Review

In the realm of administrative investigations, some police agencies also have civilian review of the administrative process, often called a Civilian Review Board, or something similar. In some cases, civilian review personnel are empowered to conduct a separate administrative investigation, looking at policy issues. In this case, there is de facto a third investigation of the officer’s actions at the local level. (I will discuss civilian review boards further in a subsequent post.)

More Consistency Needed

As the Deseret News article points out, there is still considerable disparity in the way investigations of police use of force, particularly deadly force, are handled in this country. The best thing citizens, and local political leadership in particular, can do is to familiarize themselves with the best practices for such investigations and to be sure those practices are in place before they are needed.

 

** I must note that I am not a lawyer and that the opinions presented here are a result of my training and experience investigating multiple officer involved use of deadly force incidents, both as a criminal investigations commander and as an internal affairs commander.

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