Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, Officer-Involved Shootings Part 3. Here are just a few of his responses.
Audience Question: Rick you said that a Garrity or a Gardner advisory. Is there standard languaging that we should be using or that should be used kind of similar to Miranda?
Rick Hodsdon: I think most agencies have developed over time a relatively standardized Garrity Advisory if you want to call it that. It’s also often called an order to provide a statement or something like that. They may not use Garrity in the title, but it gets to the same place. Part of that is going to be dependent what you do. There isn’t a national one simply because with about two-thirds of the states having discipline procedures investigation law, sometimes your advisory has to incorporate that so I have seen some fairly stripped-down small versions that are relatively standard. But before you start using those and you can find them at IACP, a variety of sources have them as far as that goes. My email is on the screen. I could mail a sample version of what one of those would look like, but you also want to double-check as Chris said earlier double-check with your legal advisor before you implement it because you may have to actually add something to it.
Audience Question: Rick kind of piggy-backing on that you said a reverse Garrity warning. Did we hear you right?
Rick Hodsdon: Yes. What I mean by reverse Garrity is because the whole key of Garrity is the coercion that I felt I had to give a statement or I would have had something bad happen to me in employment. A reverse Garrity simply goes exactly the opposite and says you don’t have to talk to us. Nothing bad is going to happen to you by virtue of the fact you wouldn’t talk as if you choose not to. You’re not under any obligation to give a statement to tell us your version of what happened. I think a lot of folks as I mentioned in the presentation would say well, then why would anybody give you the statement and the answer is, first of all, a lot of times especially the officer-involved shootings, the officer didn’t do anything wrong and well knows that and wants to get their version out. I’ve even used it in cases in which government employees are being investigated for other forms of misconduct. Depending on the approach used, I think my experience is some of them are so narcissistic they think they can you know schmooze their way out of the situation by giving you a statement even though they’re told they don’t have to. Multiple people go to jail and prison thinking that they were going to be able to do that. So it seems like it might be a tool more often to be used than not that if you’re not going to wait and let the criminal case play its course.
Audience Question: For those in probation or for probation agencies that allow their officers to carry a firearm, do these same guidelines also generally apply?
Rick Hodsdon: Yes government is government. As I mentioned the Garrity-Gardner discussion applied even in the case of the example I gave you the director of a welfare department. The use of force criteria for those agencies that allow their court service officers to be armed everything we’ve discussed is pretty much equally applicable whether they’re certified and licensed officers or court services probation parole agent.
Audience Question: Does anything about Garrity in the laws that you talked about and discussed today, does anything change when it’s off-duty work contracted through the agency?
Rick Hodsdon: Not really. There’s been cases in which the courts have pretty clearly said the same principles apply whether I’m working on the clock for my city or where I work in secondary employment, for example, in some kind of security capacity if I get involved in an officer-involved shooting pretty much all those same rules are going to apply.
Audience Question: What would be considered a public safety statement or question?
Rick Hodsdon: General Public Safety at the scene rather than an investigative interview would be you know, again, you’re trying – you’ve got people arriving, things are still a little bit chaotic, you want to make sure that any weapons have been located, if there are additional suspects where they went, what happened, maybe first aid to someone who’s been injured. Those kinds of General Public Safety as opposed to once you start to go through a detailed step-by-step discussion about what happened into much greater detail, I think you’ve gone past the public safety into more of an investigative interview. Certainly, historically one of the criteria that often were used is you are right there in the scene, you are the first supervisor in the scene, you’re trying to sort this out. That’s different than when you sit down in an office and turn on the recorder. Now with body cameras, and as we discussed in one of our earlier sessions it will be interesting to see how that body camera factor plays out. Right now, so far, it hasn’t changes much but that might happen just be because cameras are so new in so many places.
Audience Question: Rick, is there a difference between a peace officer and a law enforcement officer? Are these really two terms that are actually interchangeable at this point?
Rick Hodsdon: That also is going to be depending on the laws of your state. You’ve heard me several times talk about being a licensed peace officer. Licensing is a term used in Minnesota and a few other states. The majority of the states use the term certified officer. That’s a subset typically of the law enforcement officer. Law enforcement officer in some jurisdictions at least tends to have a broader implication. For example in Sheriff’s offices you might have – everybody might be called a deputy but when you start looking into details, you have your civil process deputy who is not licensed or sworn. You’ve got your detention deputy which is not licensed or sworn and then you have your patrol road deputy, which is. That’s going to be dependent on the vocabulary, the laws of your jurisdiction.
Audience Question: Can information shared in a post-critical incident debriefing, can that information be used against an officer?
Rick Hodsdon: There are states that have attempted and are continuing to attempt to create a privilege to allow to protect against the use of that information being used. Some states already have that. For example, critical incident debrief is typically classified as non-public personnel information in the personnel context, but the reality is if there’s a lawsuit, for example, there’s a plaintiff’s lawyer that really wants that information. My experience is it may take them a lot of effort. It may take a court order. It may take an order of the federal judge if it’s a 1983 action, but in all likelihood, they will get those records. So I think the legislative effort across the country, at least I know in many places have been pushing the direction of trying to protect the privacy of those records and not let them be used in civil, criminal, administrative proceeding to push back on some of the transparency open government folk are going the exact opposite direction. They want anything that exists about an officer especially one involved in a critical incident available and open to whoever wants it out there in the public.
Audience Question: We often hear that it’s a good thing to let people get a little bit of sleep before they provide a statement especially if they’ve been working for a long period of time, that one’s memory under pressure or duress may not be as accurate. How does that relate to officers so in officer-involved incidents?
Rick Hodsdon: We actually talked about that a little bit in I think our second session in the timing of when an interview should be conducted and yes the psychologist do tell us in particularly an officer-involved shooting very shortly at the time or shortly after you have your adrenaline factor you have a huge amount of psychological stuff going on. An officer could legitimately say they discharged the weapon three times and yet all 12 rounds have been discharged. They’re not lying. It’s just the distortion of sight, sound, time. Those are stressful critical incidents. So many of the psychologists, police psychologist that I’ve worked with over the years do suggest, you know a cooling-off period, come in the next day or the day after. On the other hand you don’t want to wait too long simply because you’re going to create a huge amount of anxiety for these officers who know in this day and age, this is a big deal. They could be in trouble. You have to kind of strike that balance between giving them a chance to get oriented, organized and yet not leave them dangling out there on the hook.