Cops: We Need Rights More Than You, Citizen
By Ken White
It's untrue that cops scorn constitutional rights. It's unfair to say that they oppose fair procedures designed to promote truth. It's inaccurate to say they oppose measures designed to protect suspects from coercion.
They understand and believe in all of those things.
For them.
Chuck Canterbury, president of the Fraternal Order of Police, wrote a revealing column in the New York Times today. He extolled the virtues of due process:
The right to due process, enshrined in our Constitution, is one of the cornerstones of our republic. The existence of this right – that everyone is presumed innocent and that everyone is entitled to a fair hearing – is woven tightly into American society. Why should this not be true for police?
Well, it is true for police. Practically speaking police are far more likely to receive methodical deliberation and the benefit of the doubt than the rest of us.
But when Canterbury says "due process," he means a little something extra for cops. They need it, you see:
This higher standard and increased visibility renders police vulnerable to unfounded scrutiny.
So. What kind of due process do cops want? They want bills of rights. Cops like Canterbury attempt to portray these as simply giving cops the same rights enjoyed by civilians:
Maryland was one of the first states to enact a "bill of rights" for its police, and other states followed. In other jurisdictions, those protections are a result of collective bargaining and embedded in negotiated contracts.
These laws and contracts do not protect the jobs of "bad cops" or officers unfit for duty. Nor do they afford police any greater rights than those possessed by other citizens; they simply reaffirm the existence of those rights in the unique context of the law enforcement community.
That's simply not true, unless Canterbury is using "the unique context of the law enforcement community" to mean "for people whose rights we actually respect and care about."
Let's take a look at Maryland's Law Enforcement Officer Bill of Rights that Canterbury mentions, and contrast the rights and procedures cops demand for themselves versus their habits in dealing with us.
Basis for starting an investigation.
Cops routinely start investigations based on hearsay tips from informants. Cops even take action based on wholly anonymous and uncorroborated informants. But when it comes to themselves, cops demand a sworn statement from a witness with direct knowledge:
(1) A complaint against a law enforcement officer that alleges brutality in the execution of the law enforcement officer's duties may not be investigated unless the complaint is sworn to, before an official authorized to administer oaths, by:
(i) the aggrieved individual;
(ii) a member of the aggrieved individual's immediate family;
(iii) an individual with firsthand knowledge obtained because the individual was present at and observed the alleged incident; or
(iv) the parent or guardian of the minor child, if the alleged incident involves a minor child.
Timeliness of investigation.
Cops start investigations whenever they want. But when it comes to them, they demand promptness:
(2) Unless a complaint is filed within 90 days after the alleged brutality, an investigation that may lead to disciplinary action under this subtitle for brutality may not be initiated and an action may not be taken.
Interrogation techniques
Many cops are experts at interrogation — the art of getting people to say things that, had they any common sense, they would not say. Cops want people to speak without a lawyer, speak against their best interest, speak based on a mistaken understanding of the situation, speak based on deceptive tactics.
They don't want any of that for themselves, though.
For instance, cops routinely lie about the scope of their investigation. But for them:
(2) Before an interrogation, the law enforcement officer under investigation shall be informed in writing of the nature of the investigation.
Cops routinely seek to interview subjects at times and places that will unsettle them and increase the chance of getting ill-considered statements. But for them:
(f) Time of interrogation.- Unless the seriousness of the investigation is of a degree that an immediate interrogation is required, the interrogation shall be conducted at a reasonable hour, preferably when the law enforcement officer is on duty.
(g) Place of interrogation.-
(1) The interrogation shall take place:
(i) at the office of the command of the investigating officer or at the office of the local precinct or police unit in which the incident allegedly occurred, as designated by the investigating officer; or
(ii) at another reasonable and appropriate place.
Cops love to play good cop/bad cop and use other multiple-interrogator tactics. But for themselves:
(h) Conduct of interrogation.-
(1) All questions directed to the law enforcement officer under interrogation shall be asked by and through one interrogating officer during any one session of interrogation consistent with paragraph (2) of this subsection.
Cops routinely prolong interrogations to wear down suspects. They also routinely threaten dire consequences if the suspect doesn't "cooperate." But for cops:
(2) Each session of interrogation shall:
(i) be for a reasonable period; and
(ii) allow for personal necessities and rest periods as reasonably necessary.
(i) Threat of transfer, dismissal, or disciplinary action prohibited.- The law enforcement officer under interrogation may not be threatened with transfer, dismissal, or disciplinary action.
Cops routinely avoid recording interrogation sessions. This allows them to claim that the suspect confessed without contradiction and conceal their interrogation techniques. But for themselves:
(k) Record of interrogation.-
(1) A complete record shall be kept of the entire interrogation, including all recess periods, of the law enforcement officer.
(2) The record may be written, taped, or transcribed.
(3) On completion of the investigation, and on request of the law enforcement officer under investigation or the law enforcement officer's counsel or representative, a copy of the record of the interrogation shall be made available at least 10 days before a hearing.
Right to review evidence.
Since this Maryland law was passed, cops have been demanding more protection during any investigation.
When cops interrogate you, they don't hand you all their evidence and ask you questions once you've had time to review it. They don't want you to know what they know. They're happy if you lie in a way they can easily disprove. That will help them prove guilt. So they'll pull the story out of you, a bit at a time, and show you pieces of evidence after you've committed to parts of the story, hoping to shake you.
But for themselves, cops want the right to review evidence, especially in an age of omnipresent video cameras. In Los Angeles, cops are demanding the right to view videos of incidents before giving statements about them:
The proposed policy would also allow officers to have a union representative with them when they review the video – and they can exclude the LAPD investigator looking into their actions during that process.
Similarly, in Dallas, the police chief announced a new rule requiring officers to wait 72 hours before giving statements about use of force incidents so that they can review any videos or witness statements. That change just happened to follow an incident in which a video of a police officer shooting an unarmed man turned out to contradict the officer's immediate statement about the shooting.
"Cooling off" periods.
If you're in a fight, or a crash, or some sort of upsetting incident, cops don't wait for you to cool down and collect yourself. They want your statement now. They want you to be unbalanced, emotional, vulnerable. But for cops, it's a different story. In Dallas, for instance:
Alexis Artwohl, a nationally known behavior consultant for law enforcement agencies, said studies show officers need rest before they can accurately recount traumatic events.
"They are not passive observers watching something from an easy chair," she said. "They are at the scene where life-and-death decisions are being made, and they're an integral part of it. So of course they are going to be impacted."
Brown said in his email that the science was "fairly conclusive." He also said at an October news conference that he experienced memory problems when he was shot at once.
"It wasn't until two or three days later to where I remembered it accurately," he said.
The Search for the Truth
Cops like Canterbury aren't just saying that cops need special administrative rights because of the unique circumstances of being a government employee being investigated. Instead, cops relentlessly portray these rights as promoting truth and accuracy in investigation. Canterbury says:
These requirements help to protect the officer as a public employee but also ensure the integrity of the investigative process.
In Los Angeles, the Chief echoes him:
In the past, Beck has said it's valuable to have an officer review video because it improves the accuracy of their account. The proposed policy reflects that view.
"The accuracy of police reports, officer statements, and other official documentation is essential," the policy states.
Perhaps that's true. If so, what does that say about cops' typical tactics?
Cynics might say that these policies simply empower police officers to lie effectively — to use time, information, and deliberation to frame a story consistent will all of the available evidence. But maybe that's not right. Maybe the police are genuinely worried about the truth and believe that these techniques: delay, non-coercive circumstances, opportunity to review evidence — promotes the search for the truth and the accurate recollection of facts.
So why don't they extend those same practices when they interview suspects? Why aren't they as concerned about accurate statements from us?
To me, when the police demand these special procedures, it necessarily means one of two things. Either they (1) want to protect their ability to lie, or (2) don't give a shit about whether their regular interrogation tactics used on us are fair or reliable.
Or maybe a little of both.
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April 29, 2015 at 12:23PM
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