OFFICER RIGHTS SEMINAR – DEADLY FORCE ENCOUNTERS

September 02, 2004

The Nashua Police Patrolman's Association (NPPA) recently sponsored a seminar on Police Officer rights following deadly force encounters. Speakers included labor and criminal law attorneys who have experience in advising officers who have been involved in deadly force encounters, an officer who has been involved in several deadly force encounters, and a use of force expert. Some of the topics covered by the speakers were:

Eighteen different labor union/associations from every part of NH attended this seminar. The NPPA should be commended for the outstanding presentation given. For more information, please contact NPPA Vice-President John Yurcak @ E-mail: jyurcakjr@aol.com  or by telephone: Contact John Newell or John Yurcak at (603) 594-3500

 

One of the handouts provided at this seminar dealt with the Acute Signs and Symptoms following a Critical Incident. This form should be provided to the officer(s) involved immediately after a critical incident. Click on the PDF File below to download it.

Acute Signs and Symptoms

WEINGARTEN RIGHTS –

September 13, 2004

When management begins to ask you questions that could lead to your being disciplined, you don't have to face it alone. If you have a reasonable belief that answers you give could be used by the supervisor to discipline you, the U.S. Supreme Court says you can refuse to answer any questions until the union steward is on the scene and has had a chance to talk things over with you first.

It's your right to have the steward present during the questioning to advise you, ask supervisors for clarifications, and provide additional information at the end of the session.

The employee subject to the interview must reasonably believe that the investigatory interview will result in disciplinary action. A meeting called by the employer for the purpose of informing the employee of the imposition of discipline already decided, is not an interview subject to Weingarten rights.

Management is not required to inform the employee of his/her Weingarten rights; it is the employee’s responsibility to know and request. Once you've asked for the steward, any attempt by management to continue asking questions before a steward gets there an unfair labor practice. If supervisors pressure you by telling you that "you're only making things worse for yourself" by asking for a steward, that's against the law. So be sure to:

• Request the presence of a Union representative.
• Ask if you are a suspect in a criminal matter.
• Do not consent to a search of person or property. Ask to see a search warrant.
• Do not waive any rights, including the right to remain silent.
• Do not sign a waiver-of-rights form, admit or deny any allegations, or make any written or oral statement unless an attorney and/or Union representative is personally present. These are not complete guidelines—always consult with a union representative and/or attorney.
 

When the employee makes the request for a union representative to be present management has three options:

1)      it can stop questioning until the representative arrives.

2)      it can call off the interview or,

3)      it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)


Unions should encourage workers to assert their Weingarten rights. The presence of a steward can help in many ways. For example:   

·        The steward can help a fearful or inarticulate employee explain what happened.

·        The steward can raise extenuating factors.

·        The steward can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and         

      guilt.

·        The steward can help prevent an employee from making fatal admissions. 

·        The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.  

·        The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.

Investigations and Weingarten Rights - PDF Form

The above PDF Form References:

1)      Chapter 71 of Title 5, United States Code, “The Federal Service Labor-

Management Relations Statute”

2)      Federal Labor Relations Authority Decisions

3)      Court Decisions

 

GARRITY RULE -

September 13, 2004

QUESTIONS YOU SHOULD ASK WHEN YOU ARE BEING INTERROGATED?

1. I respectfully request that I be informed of the nature of the charges and/or complaints being made against me.

If the reply to this question is that there are no charges or complaints pending, then the further question should be asked:

2. Why and for what purpose am I being interrogated?

If information is forthcoming on which there is an answer to this question or to the previous question, every effort should be made to have the particular incident or incidents pinned down to a specific time and place and further efforts should be made to attempt to ascertain whether these are all the charges or complaints pending at that time. The police officer then being interrogated then should use this further question:

3. I respectfully request time to consult my notes and witnesses so that I may refresh my recollection as to all the facts in question.

If this request is denied, the further question should be asked for the record:

4. Are you refusing me the opportunity to avail myself of information to enable me to file an accurate and truthful report?

One other question which should be brought up is that the person being interrogated should formally ask:

5. May I have an opportunity to consult and counsel with an attorney regarding the situation?

A GARRITY RULE PARAGRAPH THAT YOU CAN USE IN A LETTER THAT YOU'VE BEEN ORDERED TO WRITE?

 

All police officers should be familiar with Garrity and its protections. If you are involved in an incident, your employer can compel you to make a statement as a condition of employment. However, since this is a violation of the 5th amendment, the statement can not be used against you in criminal proceedings. Nevertheless, it can be used for administrative agency action. Further, the Weingarten Decision gives unionized police officers the right to union representation; nonunion police officers have no such right.

Consider using this language:

"On (date) at (time) at (place), I was ordered to make this statement by (name/rank of individual). I submit this statement at (his/her) order as a condition of employment. In view of possible discipline for insubordination, I have no alternative but to abide by this order.

It is my belief and understanding that the agency requires this statement solely and exclusively for internal purposes and will not release it to any other agency. It is also my understanding that this statement, since compelled, will not and can not be used against me in any criminal proceeding. I authorize the release of this statement to my attorney or designated union representative.

I may amend or correct any portion of this statement upon reflection to correct any unintended mistake without subjecting myself to a charge of untruthfulness.

For any and all purposes, I hereby reserve my constitutional right to remain silent under the fifth and fourteenth amendments to the United States Constitution and any other rights prescribed by law. I specifically rely on the protection afforded to me under the doctrines set forth in Garrity v. New Jersey, 385 U.S. 493 (1967) and in Spevack v. Klien, 385 U.S. 551 (1956) in submitting this statement."

 

(Start statement here)

 

 

A variation on the above Garrity Rule for written statements. You may consider using this language as well:

"On ___________(date) ___________(time) at _____________(place) I was ordered to submit this report (give this statement) by _____________________(name & rank). I submit this report (give this statement) at his order as a condition of my employment. In view of possible job forfeiture, I have no alternative but to abide by this order."

"It is my belief and understanding that the department requires this report (statement) solely and exclusively for internal purposes and will not release it to any other agency. It is my further belief that this report (statement) will not and cannot be used against me in any subsequent proceedings. I authorize release of this report to my attorney or designated union representative.

I retain the right to amend or change this statement upon reflection to correct any unintended mistake without subjecting myself to a charge of untruthfulness.

For any and all other purposes, I hereby reserve my constitutional right to remain silent under the FIFTH and FOURTEENTH AMENDMENTS to the UNITED STATES CONSTITUTION and any other rights PRESCRIBED by law. Further, I rely specifically upon the protection afforded me under the doctrines set forth in Garrity v. New Jersey, 385 U.S. 493 (1967), and Spevack v. Klien, 385 U.S. 551 (1956), should this report (statement) be used for any other purpose of whatsoever kind or description."

(Start statement here)

 

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