Direct Dial: (612) 676-2301
Email: jmichels@ricemichels.com
October 22, 2007

Deputy Chief Scott Gerlicher
Minneapolis Police Department
350 South Fifth Street
Room 130 City Hall
Minneapolis, MN 55415

RE: Proposed changes to Critical Incident Policy

Dear Deputy Chief Gerlicher:

I have discussed with the Federation its response to the Department’s proposed changes to the Critical Incident Policy.¹ The Federation takes issue with many of the provisions, some of which are in direct conflict with provisions of the labor agreement and others which are simply ill-advised and contrary to the best interest of officers, the Department, the City and its citizens.

History of the Policy

The concept of a having a Critical Incident Policy first arose in 1999, following then-Chief Olson’s decision to change the investigation protocol from having the Homicide Division investigate to having an external agency conduct the investigation. The sudden change in policy, particularly since it occurred at the scene of the incident and in front of the involved officers, had a serious negative effect on the involved officers and all officers who subsequently learned of the events. Thereafter, the Federation proposed to the Department that a Critical Incident Policy be developed to ensure that there was a fair and consistent protocol in place so that officers, supervisors, representatives, the community and the media would know was going to happen following every officer-involved shooting.

In preparation for negotiations to create the new policy, the critical incident policies of other departments were researched, along with the Officer-Involved Shooting Guidelines ratified by the IACP Psychological Services Section. Further, the City and County Attorneys’ offices were consulted for their input into the policy. Much care was taken by all concerned to formulate a Critical Incident Policy that protected the constitutional rights of the witness and involved officers, while also ensuring a prompt but fair investigation of officer-involved shootings. In fact, the Minneapolis Critical Incident Policy became a model policy that has been shared with and used by other Departments throughout Minnesota and the United States.Over the years since its original adoption, the Federation and the City have from time to time negotiated changes to the Policy as deemed necessary with equal care and deliberation. The proposed changes do not reflect either the spirit in which the original policy and subsequent amendments were adopted or the once-mutual concerns regarding the overriding impact of the policy. Our specific objections are addressed in detail below.

Proposed Section 7-810.02 (Regarding Public Safety Statements)

The proposed section reads:

The Incident Commander shall ask the Involved Officers a limited number of questions to ensure the safety of the general public. These questions must be narrowly focused and restricted to:

1) Getting the direction of fire to locate anyone who may be injured.
2) Determining the location of any known firearms or dangerous weapons.
3) Determining if there are any outstanding suspects, their description, direction of travel, vehicle, weapons they possess and crimes they have committed.

This provision purports to compel involved officers to provide the above information to the Incident Commander.

As you know, Section 16.6 of the labor agreement governs critical incidents. Subdivision (b) was negotiated by the parties to allow the Department to expeditiously obtain, with the officer’s voluntary consent, the information which the Department has included in its proposed "public safety statement" policy:

Subd. (b) Communication With and Among Officers Following a Critical Incident. Neither Witness Officers nor Involved Officers shall voluntarily talk to or be asked to voluntarily talk to anyone about the incident, except to:

(1) provide details to enable the primary responders or investigators to secure the scene;
(2) facilitate the commencement of the investigation;
(3) apprehend suspects;
(4) allow for officer or civilian safety at the scene; or
(5) consult with legal counsel.

Thus, the labor agreement provides that the so-called public safety statement (and any other statement by a Witness or Involved Officer other than a police report) is voluntary. Proposed Section 7-810.02 purports to unilaterally change the nature of the statement from voluntary to compelled.

Unilateral implementation of a change to a labor agreement constitutes an unfair labor practices under Minn. Stat. § 179A.13. If the Department attempts to unilaterally implement the policy compelling officers to give "public policy statements," the Federation may pursue its legal options.

Aside from the legal implications relating to this change, I am unaware of any need for it. Thus, this change appears to be a solution in search of a problem. To my knowledge, since the Critical Incident Policy was negotiated and implemented there has never been an incident in which investigators were not provided with the information contemplated under the above-referenced section of the Labor Agreement in a timely fashion. If such an incident has occurred, please advise me accordingly. The Federation and I would be glad to discuss the particular circumstances of that case and collaborate to resolve any avoidable problems so that the situation does not occur again. In the absence of any such issues, however, the policy change is misguided, unnecessary and needlessly creates legal liability for the City.

Statements within 48 hours

In addition to objecting to the institution of a compelled "public safety statement" as an unfair labor practice, the Federation believes that public policy interests demand careful scrutiny with regard to any form of compelled statements from officers and to the timing of voluntary statements.

The current policy² never placed time restrictions on when officers should give statements to investigators. This was not an oversight—rather, it was a conscious decision based upon the professional opinions of psychiatrists and psychologists who have expertise in working with individual officers and the departments that employ them regarding the psychological impacts on officers following involvement in a critical incident. These experts have uniformly and consistently determined that persons who have been involved in traumatic experiences are not always able to immediately recall many important, specific details about the event. In keeping with the recommendations of professionals specializing in the functioning of the human brain and psyche, the Federation, Department, and County Attorney’s Office (representing the interests of both the prosecutors and the investigators from the Sheriff’s Office) agreed that officers are in the best position to determine when they are psychologically able to give a clear and accurate statement. The need for the officer’s first statement to be as complete and as accurate as possible should be obvious.

As I have always said at the dozens of training programs at which I have been asked to speak on this topic, there are four certainties resulting from every critical incident—even those in which the officer’s conduct was captured on video tape and was clearly justified: there will be a criminal investigation in which the officer is the suspect; the incident will be reviewed for potential disciplinary action against the officer; there will be a public outcry from a variety of special interests; and, with almost 99% certainty, the officer and his/her employer will be sued civilly by the person or estate of the person who was shot. An inaccurate or incomplete statement compromises each and every one of these circumstances.

While the City may not care about the criminal or employment consequences to its police officers, it should be concerned about its own civil liability and about community relations. Therefore, the City should also be concerned that the initial statement by officers be as complete and accurate as possible. Requiring an officer to give a statement within 48 hours unduly pressures the officer to give a statement before he or she may be ready to do so³ and, therefore, is contrary to the best interests of the City as well as the officer.

Because statements to criminal investigators are voluntary and since police officers have no fewer constitutional rights than anyone else, the 48-hour statement policy may well result in officers refusing to give a voluntary statement at any time. That result would certainly not be in the best interest of justice and it has the very real potential to increase the City’s civil liability.

As with the proposed change to make the public safety statement compelled, we do not see a reason for this change. It is our understanding that these changes result in large part to a lack of communication between the Department and the Federation with regard to one incident in which the officers’ counsel was out of town, leading to the postponement of the officers’ statements. Unfortunately, no one from the Department notified the Federation that it wanted to take statements sooner than what occurred. Had someone from the Department simply called the Federation and expressed the Department’s concerns, the Federation could have resolved the issue, most likely by arranging other counsel for the officers.

We also know that the consultant hired to audit the Internal Affairs operations recommended that statements be given within 48 hours. We do not know the consultant’s rationale for this recommendation or his credentials to make such a recommendation. Therefore, we trust the recommendations of psychological professionals experienced in addressing the affects of critical incidents more.

The proposal to require or at least pressure officers into giving a statement within 48 hours is misguided and will have numerous adverse consequences that far outweigh any potential benefits (which to this point none have been articulated). When we addressed this issue specifically in our Labor Management Committee meeting, the Federation representatives were amazed by the cavalier attitude of the Department toward the civil liability implications. While one may wonder why the Federation cares about the City’s liability when City officials seemingly do not, it is because we actually do care about the City and because we care about the officers who too often wind up being made the scapegoat by some elected officials and the media whenever the City pays out on a judgment or settlement.

Compelled Statements

One of the hallmarks of the current Policy, which was reviewed, edited and approved by the County Attorney’s Office,⁴ is that officers’ statements be voluntary, not compelled. The changes propose to make the "public safety statement" compelled and, by stating that statements shall be given within 48 hours creates the potential that a court could rule all statements under the policy are compelled.

Statements that are compelled by the Department (either by an explicit Garrity warning, or by order of a supervisor) are considered "coerced confessions." Pursuant to the Fourth Amendment, coerced confessions cannot be used against the officer in a criminal proceeding. Moreover, any information obtained through a compelled statement is considered the "fruit of the poisonous tree," and similarly cannot be used against the officer in a criminal proceeding. Evidence can be tainted simply by having two persons working in the same police department having access to the officer’s compelled statement. Furthermore, the prosecutor bears the burden of proving that evidence is not tainted by the compelled statement. The end result is that, if an officer uses unlawful deadly force, and his/her compelled statement is either the only evidence of the shooting, or if the prosecutor cannot prove that other evidence was free from the taint of a compelled statement, the officer cannot be prosecuted.⁵

While it is the Federation’s duty to represents the best interests of Minneapolis police officers, it also is concerned about the Department, the City and the community for reasons of citizenship and self-preservation. The life and livelihood of a police officer is dependent upon working in an environment of mutual trust among the majority of the citizenry. If it were to ever happen that an officer guilty of an unjustified homicide escaped prosecution due to improper investigatory procedures, all police officers would suffer the consequences from the horrific impact such an event would have on the public’s trust in law enforcement and the legal system.

Given the fact that the Department seems determined to implement these changes even though you have admitted to the Federation that they are NOT supported by the County Attorney’s office, we can only conclude that you do not share the Federation’s concern for the best interests of police officers or the criminal justice system.

The Federation may or may not undertake legal challenges to these policy changes if you elect to unilaterally implement them. We will, however, be the first to remind you and the public that "we told you so" if any of the predicted adverse consequences to your changes ever come to pass.

Very truly yours,

James P. Michels

cc:
Mayor R.T. Rybak
Members of the City Council
Chief Tim Dolan
Deputy Civil City Attorney Peter Ginder
County Attorney Mike Freeman
Assistant County Attorney Paul Scoggin
Lt. John Delmonico, President POFM
Fred Bruno

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--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.