|Letter to Deputy Chief Gerlicher: Proposed Changes to Critical Incident Policy|
Direct Dial: (612) 676-2301
Deputy Chief Scott Gerlicher
--1 Since the Federation’s objections were first presented to you at the Labor Management Committee and since we were requested by the Federation to put those objections to you in writing, there has been one critical incident and one incident that a lieutenant improperly characterized as a critical incident. Thus, we are uncertain whether the proposed policy changes have in fact already been implemented. If so, we request that you reconsider based on the concerns raised herein.
--2 "Current policy" as used in this letter means the policy prior to implementation of the changes addressed herein if, in fact, those changes have been implemented.
--3 Although the statement is voluntary, the policy implies that officers who are not ready to give a statement within 48 hours will not be allowed to make a statement once 48 hours have elapsed. Further, we believe that the Department will attempt to pressure officers to give statements within 48 hours, even when they are not ready, which will lead to potentially inaccurate information being conveyed and may result in the officer feeling compelled to give the statement, rendering in no longer voluntary.
--4 The Hennepin County Attorney’s Office presents officer-involved shootings to the grand jury and prosecutes suspects who are charged with felonies against officers involved in shootings.
--5 We understand that the Department may have been given a legal opinion that the public policy statement qualifies as a "public safety exception" to the Fourth Amendment. If so, this opinion is inaccurate. While it is true that there exists a "public safety exception" to the requirement that a Miranda warning be given before questioning a suspect, it is strictly limited to unstable situations where the public may be in immediate danger. See, e.g. State v. Hazley, 428 N.W2d 406 (Minn. Ct. App. 1988)(holding that, while locating a missing gun that is accessible to the public meets the public safety exception, locating missing accomplices does not). The information compelled in the "public safety statement" is no so limited. More importantly, there is no public safety exception that would turn a compelled statement under Garrity into one which is not compelled. Thus, even if the Incident Commander only order the officer to provide information limited to unstable situations where the public may be in immediate danger, the statement would still be compelled, and thus, could not be used against the officer.