Skip to main content

View Diary: Breaking: MSNBC - No incident report for shooting at all (Ferguson PD) (409 comments)

Comment Preferences

  •  So it's obstruction when a defendant ... (4+ / 5-)

    refuses to give a statement or testify?  Does the constitution only apply to some people and not others?

    "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

    by Neuroptimalian on Thu Aug 21, 2014 at 08:55:37 PM PDT

    [ Parent ]

    •  He's not a "defendant" until charges are filed. (55+ / 0-)

      Until then, he is a police department employee who is required to file reports on his actions and certainly on his explanation of the justification for the discharge of his weapon.

      You apply some interesting standards here.  Police routinely file reports on the discharge of their service weapons all across the nation, including those incidents where people die.

      It. Is. Their. Job.
       If the police were to go out on the street everyday and refuse to file reports on their actions -- any actions, let alone shooting people -- then the legal system would come to a halt.

      Meanwhile, I've found another winner in my Irony contest featuring comments and sig lines:

      "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

      "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

      by YucatanMan on Thu Aug 21, 2014 at 09:08:13 PM PDT

      [ Parent ]

      •  Heh! Thanks YucatanMan for your irony (29+ / 0-)

        contest.

        And this poster to whom you are replying has a history of always rushing to defend those who kill black people. It has become particularly noticeable.

        It's *Gandhi*, not Ghandi

        by poco on Thu Aug 21, 2014 at 09:16:14 PM PDT

        [ Parent ]

      •  The 5th Amendment applies anyway (4+ / 0-)

        You are protected by it even if you haven't been charged with anything. If it wasn't the case, the cops simply wouldn't charge you with anything until you gave up incriminating statements or evidence.

        •  Is this another case of Canadians explaining our (20+ / 0-)

          rights to us? Your statement makes absolutely no sense. Have you read the Fifth Amendment or only watched tales about it in movies?

          "No person ... shall be compelled in any criminal case to be a witness against himself ..."
          At the time of the writing of a police report, there is no criminal case. The officer is not testifying against himself, but completing the requirements of his job. Example:
          Thoms said he walked over and saw Williams on his abdomen with his hands underneath him. He said Williams voluntarily put his hands behind his back, and Ticcioni handcuffed him.

          Police reports of the arrest say Ticcioni "ended up on top of Williams with the suspect facing down."

          Williams, his hands cuffed behind him, repeatedly told officers he couldn't breathe for at least 15 minutes between the time of his arrest and his death, records say. He first made the complaint as he lay facedown, Ticcioni pressing a knee across his back, the report says.

          Thoms testified he did not hear Williams complaining that he could not breathe.

          You assert your Fifth Amendment rights when the government is prosecuting you and you are required to provide information against yourself. At that point, you object. See the example article in full to see how it played out for those police officers -- who did complete reports on their actions for the incident in question because that was their job.

          In the case of police officers -- and I was one -- you are required as a part of your job to provide reports on all of your activities and interactions with citizens, particularly violent interactions, citations, arrests, crime scenes, accident scenes, etc.

          You are required. Period. End of story.  If you don't want to provide reports to the department of your actions and incidents on patrols, don't sign on to be a police officer.

          You're simply wrong about your assertion.

          By the way, I recently met with my old "chief" -- head law enforcement officer in my former agency -- who is retired. He handed me a stack of my years' worth of daily reports, handwritten as they were back then.  Therein, I "testified" against myself on numerous occasions on anything from backing into a citizen's car (explainable but very embarrasing) to violent incidents to everything you can imagine. I wrote out my activities for each day, for each incident, each and every day for years.

          How exactly do you propose that police do their jobs if they do not provide reports of their actions?

          Going by your reasoning, no American could be compelled to complete a tax return, because that information might be used against them in a prosecution.  Just as Americans ARE compelled to complete tax returns, officers are compelled to complete incident reports or reports on their daily activity.

          More armchair quarterbacking coming from a lack of knowledge and a few extra steps removed. Laughable.

          "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

          by YucatanMan on Thu Aug 21, 2014 at 11:09:03 PM PDT

          [ Parent ]

          •  Just to be clear, where above I say: (17+ / 0-)
            You assert your Fifth Amendment rights when the government is prosecuting you and you are required to provide information against yourself.
            I am talking about police officers and their requirement to write police reports, versus testify in prosecutions against them.

            No citizen can be compelled to give any information to the police at any time, other than honestly identifying themselves, their home address and other identifying information (name, address, perhaps phone number).  The courts have repeatedly ruled that you are not required to "produce ID" but that you must honestly give your name and address at a minimum.

            Generally, giving a bit more information eases the "transaction" and everyone parts in peace (fingers-crossed). But if you want to wait it out, you are only required to give your name and address. Enjoy.

            The police are in a different category. As agents of the government, responsible for their actions, their actions are self-reportable to the government -- and thus ourselves -- as the citizens are theoretically "the bosses" of the police.

            Citizens are theoretically in charge in a democracy. If there were no police reports, we wouldn't know what our employees were up to, would we? Would it be acceptable that the police arrest people and not disclose who they arrested and why?  Would that be remotely democratic in nature?  No, it would be a freaking police state, pretty much by definition: unaccountable police.

            The very concept that any police officer could simply begin declining to produce police reports on Fifth Amendment grounds would be: 1) grounds for immediate dismissal and 2) an ironic confession that police activity is illegal and, thus, subject to prosecution.  Hmmmmm.....

            "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

            by YucatanMan on Thu Aug 21, 2014 at 11:41:05 PM PDT

            [ Parent ]

          •  Yes, this is a Canadian explaining it (3+ / 0-)
            Recommended by:
            vernonbc, acerimusdux, slipper

            The whole rationale of the Miranda decision was that Fifth Amendment rights extended beyond the courtroom so that if police took you into custody you had those rights (and had to be informed of). Note that this occurs before you are necessarily charged with anything and before there is a prosecution.

            Barron's Law Dictionary:

            SELF-INCRIMINATION, PRIVILEGE AGAINST the constitutional right of a person to refuse to answer questions or otherwise give testimony against himself or herself which will subject him or her to an incrimination.
            Black's Law Dictionary
            SELF-INCRIMINATION: Acts or declarations either as testimony at trial or prior to trial by which one implicates himself in a crime. The Fifth Amendment, U.S. Const. as well as provisions in many state constitutions and laws, prohibit the government from requiring a person to be a witness against himself involuntarily or to furnish evidence against himself.
            US Courts, up to the Supreme Court, have held that the right against self-incrimination includes not only the right not to say something at trial but also the right not to say anything that also puts one at risk of arrest or prosecution.

            In Hoffman v United States

            The Court reversed defendant's conviction, holding that, under all of the circumstances, defendant had a reasonable concern that answering the questions might subject him to federal criminal liability, and defendant was therefore entitled to the protection afforded by the Fifth Amendment against testimonial self-incrimination
            (http://www.lawschoolcasebriefs.net/...)

            If you have a problem with that, take it up with the Supreme Court, not me.

            •  The Bill of Rights isn't absolute (2+ / 0-)
              Recommended by:
              YucatanMan, GoGoGoEverton

              There are many exceptions.  Just as a member of the Armed Services agrees to waive their first amendment rights, a police office does as well.  Officers are required to give a full, truthful accounting of their actions under the color of law.

              •  Hmmm...got a reference/citation/case for that? (1+ / 0-)
                Recommended by:
                Neuroptimalian

                I don't recall ever seeing such a broad assertion in the past. Is there specific legal precedent on this point?

                Oh, and service members don't completely surrender their First Amendment rights; they are limited in particular areas, but they are not restricted 'across the board.'

                The word "parent" is supposed to be a VERB, people...

                by wesmorgan1 on Fri Aug 22, 2014 at 08:12:44 AM PDT

                [ Parent ]

            •  While those are the broad outlines of (1+ / 0-)
              Recommended by:
              GoGoGoEverton

              "our rights," I think you will find, if you look further, that there are many exceptions for specific cases.

              Are you advocating for secret police forces, without records of arrests, shootings, searches?  No officer ever has to write a report, because he/she may have engaged in criminal activity?

              False imprisonment. Kidnapping. Breaking and entering. Aggravated assault. Murder?   All those are "Crimes" which the police engage in during the course of their work, but there are "dispensations."

              Breaking and entering may be done legally if a search warrant is granted.  The officers who undertake the breaking and entering have to write a report of their actions so that we - the public - knows they were conducting their "burglary" according to the limits of the search warrant. There is a mountain of case law on this.  For example, if they are searching for a stolen car, the police may not empty dresser drawers.  That would be "going too far."

              Kidnapping - the police may kidnap someone and hold them for "ransom" -- bail or bond -- upon sufficient cause and legal justification and with the participation of the courts. The physical act, even the money, are nearly identical to criminal kidnapping, yet it is legal and permissible.

              Police have to complete reports on their activity. That is a flat out reality. Accept it or not.  It is reality for police officers every day.

              "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

              by YucatanMan on Fri Aug 22, 2014 at 08:57:33 AM PDT

              [ Parent ]

          •  Hard to believe that you have to (5+ / 0-)

            spell out facts to people on this site, isn't.
            Most of aren't police, yet we know the rules when an officer discharges his gun, or when he kills someone.
            WTF is going thru these 'folks' minds, or they just being dicks?  

            "I find it incredible that Keith Alexander can sell secrets and is free to make a huge profit without being slammed with Espionage Act charges and Snowden is stateless" Jesselyn Radack.

            by snoopydawg on Fri Aug 22, 2014 at 12:16:59 AM PDT

            [ Parent ]

          •  As to being required to submit tax returns, ... (0+ / 0-)

            if a citizen opts to provide false information that could later be used against him, that was his choice.  A citizen is only required to report accurate information, which, of course, is not a crime and cannot be used against him.  It's strange that such a counter-argument is even being proposed.

            "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

            by Neuroptimalian on Fri Aug 22, 2014 at 07:08:26 AM PDT

            [ Parent ]

            •  No, it isn't strange because both go to the point (0+ / 0-)

              of the government requiring citizens to provide information.

              People have sued the IRS over this and the courts have ruled consistently that the Fifth Amendment (along with privacy rights, etc, etc) does not apply.  You may be compelled to provide information.

              A police officer, as well, has official duties wherein he/she is required to complete reports of their activity.

              Just as accurate tax information is not in-and-of-itself "a crime", an officer's reporting of their activity is not.  

              What's he going to do? Deny that he fired his gun? He has to give a statement of what happened from his point of view. That's how we know what our government is up to.

              Are you advocating for secret police forces with no accountability?  That's where the road to "no police reports" leads us.

              "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

              by YucatanMan on Fri Aug 22, 2014 at 08:50:47 AM PDT

              [ Parent ]

              •  No, I'm not advocating for secret police forces, (0+ / 0-)

                all I was doing was wondering aloud how the Fifth might impact particular instances like this inasmuch as it hadn't occurred to me before to consider the impact vis-a-vis police officers who may have committed a crime.

                "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

                by Neuroptimalian on Fri Aug 22, 2014 at 02:19:41 PM PDT

                [ Parent ]

          •  Yuc's right, but we have plenty of Canadians (0+ / 0-)

            here pontificating at us, along with 'expats' as well.

            While you dream of Utopia, we're here on Earth, getting things done.

            by GoGoGoEverton on Fri Aug 22, 2014 at 09:18:09 AM PDT

            [ Parent ]

          •  As is usual (1+ / 0-)
            Recommended by:
            rduran

            The Canadian in this debate understands US constitutional law better than the American.

      •  I was referring to ALL defendants, ... (0+ / 0-)

        in the general sense.  If I'd meant to refer to Wilson, I'd have used his name.

        Yes, of course police officers generally file incident reports.  It just occurred to me to wonder whether, constitutionally, they were required to when their possible guilt was an issue.  I'm actually surprised that it hasn't been raised as a legal issue before (that I'm aware of).  But it would seem that they cannot be required to under these types of circumstances, nor could they be terminated for exercising their constitutional rights.  The only recourse would be to charge them, if appropriate, and subject them to the same process that all non-police defendants are subjected to.  Are you aware of precedent that suggests otherwise?

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Fri Aug 22, 2014 at 07:02:17 AM PDT

        [ Parent ]

    •  This is unbelievable. That's like saying IRS can (7+ / 0-)

      seize your bank accounts, but asking them to explain why is a violation of their 5th Amendment rights. I bet you wouldn't say that, you mammon worshiping righty.

      •  Along the lines of the IRS, US courts have (9+ / 0-)

        repeatedly ruled that US citizens can be compelled to complete and file tax forms, even though those very forms may be used in prosecutions of them by the IRS. The act of completing the form is not, in and of itself, testifying against yourself, although that very form may eventually become evidence against you.

        If and when you end up in court, you may refuse to answer any and all questions (unless provided a grant of immunity) about your taxes, your income and your tax forms.

        Apply that same reasoning to a police report and we're done. The police are required to complete police reports. Period.

        "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

        by YucatanMan on Thu Aug 21, 2014 at 11:24:46 PM PDT

        [ Parent ]

    •  HR for violation of DBAD. (6+ / 0-)

      He hasn't been charged, he's not a defendant.  And this is just a dickish comment front to back.  

      To make this a "constitutional issue" when the civil rights (i.e. constitutional rights) of protesters and journalists are being trampled is ballsy as hell.

      Minority rights should never be subject to majority vote.

      by lostboyjim on Thu Aug 21, 2014 at 10:25:31 PM PDT

      [ Parent ]

      •  Thank you. (OP) (0+ / 0-)

        "If you're in a coalition and you're comfortable, you know it's not a broad enough coalition /= GTFO" Dr. Bernice Johnson Reagon + JVolvo

        by JVolvo on Fri Aug 22, 2014 at 08:43:21 AM PDT

        [ Parent ]

      •  He doesn't have to be charged (2+ / 0-)
        Recommended by:
        slipper, Neuroptimalian

        to invoke 5th amendment rights. He can be fired for non-cooperation with the investigation, but he doesn't have to give evidence against himself... that's the constitution.

        This underlines the importance of dash-cams and lapel-cams.

        Please withdraw the HR, the comment reflected an accurate assessment of US law, not some trollish opinion.

        … the NSA takes significant care to prevent any abuses and that there is a substantial oversight system in place,” Sen. Dianne Feinstein (D-California), said August 23.

        by mosesfreeman on Fri Aug 22, 2014 at 10:06:21 AM PDT

        [ Parent ]

    •  yes (3+ / 0-)
      Recommended by:
      Lost and Found, aitchdee, JVolvo

      the past two weeks have demonstrated quite clearly that the Constitution only applies to some people and not others. Probably not the groups you had in mind when you wrote that, though.

      The American weakness is that we try to rule the world with public relations, then end up believing our own con jobs. We are adrift in a mythical ship which no longer touches land.--Gustav Hansford

      by nota bene on Thu Aug 21, 2014 at 11:44:36 PM PDT

      [ Parent ]

    •  Actually there is a whole line of criminal (5+ / 0-)

      Constitutional law dealing with exactly this issue.  Essentially the law enforcement agency can require the officer to give a statement as a part of his usual duties as an officer.  And to cooperate with any internal investigation.  And they can fire him if he doesn't.  The Constitutional protection is that a statement made as a part of that investigation isn't available to the state in a criminal prosecution against him.  With some exceptions.  So, yes, essentially, he can be compelled to give a statement or testify.  

      "Speak the TRUTH, even if your voice shakes."

      by stellaluna on Fri Aug 22, 2014 at 06:00:17 AM PDT

      [ Parent ]

      •  Do you have a cite handy for that? (1+ / 0-)
        Recommended by:
        mosesfreeman

        I'm particularly interested in the argument that "the Constitutional protection is that a statement made as a part of that investigation isn't available to the state in a criminal prosecution against him."

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Fri Aug 22, 2014 at 07:16:21 AM PDT

        [ Parent ]

        •  here (1+ / 0-)
          Recommended by:
          Neuroptimalian

          "Speak the TRUTH, even if your voice shakes."

          by stellaluna on Fri Aug 22, 2014 at 02:20:35 PM PDT

          [ Parent ]

          •  sorry link didn't work (1+ / 0-)
            Recommended by:
            Neuroptimalian

            "Speak the TRUTH, even if your voice shakes."

            by stellaluna on Fri Aug 22, 2014 at 02:21:13 PM PDT

            [ Parent ]

            •  Well, I see what you're trying to say, ... (1+ / 0-)
              Recommended by:
              stellaluna

              and thanks for taking the time to dig up the cite, but do you have anything which covers a situation where an actual police officer was granted immunity and then compelled to give a statement concerning activities which encompassed the officer's possible criminal acts?  Immunity is typically given where the prosecutor is going after someone other than the witness who was given immunity; in the Wilson case, I'm not sure I can see a prosecutor giving him immunity in exchange for a statement that can't be used against Wilson.  What would be the purpose?  Plus, there's the likelihood that the statement would be released under FOIA (or just leaked), which Wilson's attorney would argue would taint the jury pool, etc.

              Again, thanks again for taking the time and trouble to find the cite.

              "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

              by Neuroptimalian on Fri Aug 22, 2014 at 04:09:48 PM PDT

              [ Parent ]

              •  It's just "use immunity". Basically the way it (1+ / 0-)
                Recommended by:
                Neuroptimalian

                works is if the officer is compelled to give a statement under threat of losing his job if he doesn't cooperate.  Then the statement can't be later used against him at the criminal proceeding.  The officer frequently gets a "Garrity" warning rather than "Miranda".  It's a pretty basic and frequently used concept in officer-involved shootings and other alleged misconduct.  The way it would work in this case is that Wilson has to give a statement about what happened or he could be fired for refusing to comply with police policy and procedures.  He gives that statement after being advised of his rights under Garrity.  Then, later if the State decides to prosecute that case against him the statement can't be used.  That doesn't mean they can't prosecute him.  However, because the lines are fuzzy with Garrity exceptions in my opinion I would advise officers whom I think might be criminally charged that it would be better to get fired than to give a statement.  But the short answer is that they can still compel him to give a statement or fire him if he doesn't.  

                "Speak the TRUTH, even if your voice shakes."

                by stellaluna on Fri Aug 22, 2014 at 08:48:52 PM PDT

                [ Parent ]

    •  Uprated for HR abuse (3+ / 0-)
      Recommended by:
      slipper, rduran, Demeter Rising

      There is nothing HRable about this statement. Invoking fifth amendment rights is not considered obstruction under US law. It doesn't matter if he's not been accused of a crime yet, he is not required to testify against himself, period.

      He should be fired for not providing the incident report, and not cooperating with the investigation. He also may be indicted for the crime, but in no case can his testimony be compelled.

      … the NSA takes significant care to prevent any abuses and that there is a substantial oversight system in place,” Sen. Dianne Feinstein (D-California), said August 23.

      by mosesfreeman on Fri Aug 22, 2014 at 10:01:17 AM PDT

      [ Parent ]

    •  Also uprated for HR abuse (3+ / 0-)

      These are HRs for disagreement. Exercising one's Fifth Amendment rights are not obstruction, as mosesfreeman said. To those who are saying the Fifth Amendment right to refuse to self-incriminate can never apply unless you have already been charged with a crime, you are mistaken.

    •  Legal misunderstanding isn't HRable (2+ / 0-)
      Recommended by:
      slipper, Neuroptimalian

      And I'm actually curious, since this lies at the the intersection of a public servant's duties--many of which may attach criminal penalty--and the Fifth Amendment.  Can you charge someone with obstruction if, in the course of their duties, they refuse to submit to procedure that may incriminate themselves?  Asking the lawyers out there.

      •  I'm not a lawyer so I don't know for sure (2+ / 0-)
        Recommended by:
        rduran, Neuroptimalian

        but I think a refusal to self-incriminate cannot be grounds for an obstruction charge. Wilson is the target of the investigation, therefore he has the right to refuse to self-incriminate and as far as I understand, that is absolute.

        Another question would be, can he be fired for not following police procedure (filling out a report) if that procedure could be self-incriminating in a potential criminal case? Again I'm not a lawyer, but my guess is that the state would have a very difficult time justifying firing someone for exercising their constitutional rights. The US Constitution overrides report-filing procedures of local police departments.

        •  Fifth Amendment doesn't protect your job (1+ / 0-)
          Recommended by:
          slipper

          at least not my understanding of it.

          •  With government employment (2+ / 0-)
            Recommended by:
            rduran, Neuroptimalian

            especially unionized government employment like police officers, I think it would be really hard to fire someone for not filing a report due to the Fifth Amendment. The union would go apesh*t and certainly file a grievance. Government agencies have to justify a firing (deprivation of property) and Wilson would have a pretty good constitutional retort to a claim by the police that he was fired for not filing a report..

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site