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View Diary: Why Ferguson Incident Report Unlawful & How Obtained (190 comments)

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  •  Here is how I would view it (118+ / 0-)

    This is not an issue where the Garrity Rule applies - as you correctly point out - he is not accused of anything and is not being investigated (at least not by that department, at that time) - and thus questioned - and in particular coerced to give that testimony (all necessary for Garrity).

    He does, however, have that RIGHT - to decline to fill out the report - but then he has to formally invoke that right (he has not - as I have verified) and he still could face disciplinary actions for that failure.

    •  As I understand it.... (19+ / 0-)

      He has the right to invoke it. If ordered by a superior officer, he has to write one, but it cannot be used against him criminally. If he still refuses to write one he will likely be fired on the spot.

      That's how I understand the rule but others here may have more experience with it. I deal with them mainly from the civil side going at officer and department civil liability.

      Blessed are the peacemakers, the poor, the meek and the sick: The "party of Jesus" wouldn't invite him to their convention - fearing his "platform."

      by 4CasandChlo on Mon Aug 25, 2014 at 01:54:07 PM PDT

      [ Parent ]

      •  Why can't it be used against him criminally (16+ / 0-)

        Any piece of paper I create in my private sector job can be used against me criminally. And my job requires me to create a lot of paper.

        Why is he different? If he can't do his job he should be fired, and his work product should be no more "protected" than mine.

        (-5.50,-6.67): Left Libertarian
        Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

        by Sparhawk on Mon Aug 25, 2014 at 02:00:41 PM PDT

        [ Parent ]

        •  Exactly. Incident reports are the lionshare of (25+ / 0-)

          law enforcement documentation. And the military I might add. But what he is saying is the Garity Rule would be implemented at the moment you are informed you are being interviewed as part of an internal or administrative investigation, and you wouldn't have to answer any questions that would incriminate you. Like Miranda. That would seem to include your incident report...again, an assumption.

          But since no investigation is being conducted, he would logically be required to write the damn report, because that is just the machine in motion.

          lol..."So Daren, take the month off and please...don't write a report, we really don't want to know how you fucked this all up."

          “...I'm glad I'm not afraid to be lazy!” ― Augustus Mc Crea, "Lonesome Dove"

          by nutherhumanbeing on Mon Aug 25, 2014 at 02:21:46 PM PDT

          [ Parent ]

        •  You can't be compelled to incriminate yourself (6+ / 0-)

          That's a clear 5th Amendment violation.

          Compelled statements are usually taken by a department after an officer-involve shooting when the cop in question refuses, usually on the advice of counsel, to file a report.  They are typically internal documents, say for example an IA investigation, and information gleaned from these can be used in the investigation but can't be used in trail against him. Again, you can't compel someone to make a statement against their own interest in a criminal matter.  

          There is some case law that says compelled statements can be used for impeachment purposes, but I'm not sure what the law in Missouri is on that.

          Re: your comments about work documents. You're not being compelled by the government to produce those documents, so that makes all the difference in the world...there's no Constitutional question attached. It's apples and oranges. If there were a routine police report, not compelled, then yes, that can be used against the officer involved.

          I have no idea if a compelled statement was given in this case. Most cops are smart enough to lawyer up in these situations, and the most a department can do to a cop who refuses to give a statement is discipline him.

          Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

          by Pi Li on Mon Aug 25, 2014 at 02:51:40 PM PDT

          [ Parent ]

          •  PS (7+ / 0-)

            Everyone in this diary who is saying that a cop has no 5th Amendment right agains self-incrimination is wrong. Period. Yes, they can be compelled to make statements, but the worst that can happen to them in this case is departmental discipline.

            Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

            by Pi Li on Mon Aug 25, 2014 at 02:54:45 PM PDT

            [ Parent ]

            •  FOLLOW LAWFUL ORDERS (3+ / 0-)

              As an employee he must truthfully fill out a complete report. That report is a legal document and part of his employment contract. He doesn't give up his 5th protections, but he has to invoke them and the 5th doesn't protect employment so he can have the job and file an accurate report, quit, or be subject to discipline up to and including discharge.

              The police force is certainly going to claim any illegal acts by a cop are his own idea and they are not responsible. Although they would have to prove that they trained and disciplined cops to prove they actually had a policy of protecting the rights of citizens which would appear pretty tough considering the track record in Ferguson and St. Louis County.

              If a cop can't be compelled to fill out an accurate report only stupid cops would bother and no one would give any weight to a report not required to be accurate in any court anywhere.

              Police management has included them selves in illegal action here by accepting self serving shoddy work from a very likely suspect in a murder.  

              •  Sure, by all means, fire him (3+ / 0-)
                Recommended by:
                westcoastdefender, VClib, patbahn

                Yes, yes, cops can be compelled under certain circumstances to file a report. And if they don't they can be terminated.  And? And? So in this case his department didn't instantly terminate him. Is that sign of a cover up?  Well, maybe.  But again, how do you propose to compel him? Draw and quarter him? All you can do is fire him.  

                And sue the Ferguson PD if there's a claim to be made. I'm sure there will be multiple lawsuits filed over the shooting & the aftermath.

                You just seem annoyed that he didn't do something stupid and write a report when he was probably aware that there might be some criminal exposure. And equally annoyed that his department didn't fire him. And you know, it's quite possible, even probable, that he's already talked to investigators about it, and such statements wouldn't be part of an incident report, and thus not public record. As far as I know, we have no idea at what point he invoked his 5th Amendment rights (he certainly has by now).  Nor, for all practical purposes, does it matter.  He refuses to file, that's it, the most you can do is tell him to clean out his desk and send him home.

                Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

                by Pi Li on Mon Aug 25, 2014 at 04:59:25 PM PDT

                [ Parent ]

                •  Re (8+ / 0-)
                  You just seem annoyed that he didn't do something stupid and write a report when he was probably aware that there might be some criminal exposure.
                  This doesn't bother me in the slightest.
                  And equally annoyed that his department didn't fire him.
                  I am considerably annoyed at this, it is true. We The People are owed an incident report and I expect to either get it or see the personnel involved be fired.

                  (-5.50,-6.67): Left Libertarian
                  Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                  by Sparhawk on Mon Aug 25, 2014 at 05:48:19 PM PDT

                  [ Parent ]

                  •  Well, sure (5+ / 0-)

                    I'm not saying the Ferguson PD is acting appropriately, ethically, legally, or even competently here. If a report was written, it should be produced. If Wilson refused to file a report, he should have been compelled to. If he still refused, the department should have engaged in whatever disciplinary measures were available to them based on his employment/union contract.

                    But I'm not discussing what should be. I'm simply looking at practical ramifications of what's actually happening. There are two options:

                    1) Wilson never wrote an indecent report, in which case there's nothing to produce. If he refused to write a report, he should have been disciplined per departmental policy.
                    2) He did write an indecent report, and the PD is burying it. In which case, you can be sure it will come to light and heads will roll at that department. I'm assuming the FBI doesn't have 40 agents on the ground there to simply investigate the shooting.

                    (also, thought my comment was response to someone else...if responded to you for something you didn't say, I apologise).

                    Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

                    by Pi Li on Mon Aug 25, 2014 at 05:58:35 PM PDT

                    [ Parent ]

                  •  Sparhawk - this is an area of the law about which (0+ / 0-)

                    I know very little. However, it is complex and there is a concept called "Garrity Rights" that plays an important role. There was a recent diary on the topic which you can find here:

                    http://www.dailykos.com/...

                    "let's talk about that" uid 92953

                    by VClib on Mon Aug 25, 2014 at 08:32:24 PM PDT

                    [ Parent ]

                    •  Wrongly decided IMO (1+ / 0-)
                      Recommended by:
                      colbey

                      My private sector employer has plenary power to fire me for any reason they see fit. I assure you that if I got into a situation where I was accused of on-the-job malfeasance and I refused to testify to either my employer or the government I would be fired very quickly. No "due process", nothing. Just get out.

                      I see no reason the government shouldn't have similar power in cases where an employee is accused of malfeasance.

                      No one has a "right" to a government job. If you can't execute the duties and obligations of it, you must be fired. I'm sure there are plenty of other would-be cops out there who are perfectly capable of writing out simple incident reports. If you've pled the Fifth you are tainted and cannot be trusted to work as a cop, at least in the short term.

                      Otherwise, what stops cops from "claiming the Fifth" all the time? After all, every tiny bit of testimony they ever give comes with criminal risks for them.

                      (-5.50,-6.67): Left Libertarian
                      Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                      by Sparhawk on Mon Aug 25, 2014 at 09:06:08 PM PDT

                      [ Parent ]

                      •  5th amendment Due Process (1+ / 0-)
                        Recommended by:
                        VClib

                        Employees have a procedural due process right
                        and property interest in their job.

                        if an officer is supposed to issue a report, as per
                        policy and doesn't for 5th amendment substantitive
                        rights for maintaining silence, they can but they
                        can still be subject to civil actions and given a hearing
                        and disciplined for that.

                        •  Well (0+ / 0-)

                          As a private sector worker I have zero of any such rights (I can be fired at any time for any reason or no reason) so forgive me if I don't care so much if government workers don't get them either.

                          Especially in cases like this one.

                          (-5.50,-6.67): Left Libertarian
                          Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                          by Sparhawk on Mon Aug 25, 2014 at 09:13:42 PM PDT

                          [ Parent ]

                          •  well sorry to break this to you (0+ / 0-)

                            but the constitution protects all of us from the government,
                            rarely from our employers.

                            Name the one part of the US Constitution that compels
                            individual citizens?

                          •  "The government"... (0+ / 0-)

                            ...isn't acting as the government in this instance, but as the employer of the cop. The prosecutory part of the government is a completely different thing that should be handled completely differently.

                            You don't get "procedural due process" or whatever nonsense for a job. I don't get it, no reason for government employees to get it either. You get due process when you are trying to avoid going to prison.

                            (-5.50,-6.67): Left Libertarian
                            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                            by Sparhawk on Tue Aug 26, 2014 at 04:27:33 AM PDT

                            [ Parent ]

                          •  Board of Regents v Roth ( 408 US 564) (1972) (0+ / 0-)

                            You may feel this way, You may think this way
                            but the Supreme Court sure hasn't ruled that way.
                            Hate to be a jerk but i spent 4 very long grueling months
                            studying this.

                            The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. These interests - property interests - may take many forms.

                            Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Goldberg v. Kelly, 397 U.S. 254 . Similarly, in the area of public employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, and college professors and staff members dismissed during the terms of their contracts, have interests in continued employment that are safeguarded by due process. Only last year, the Court held that this principle "proscribing summary dismissal from public employment without hearing or inquiry required by due process" also applied to a teacher recently hired without tenure or a formal contract, but nonetheless with a clearly implied promise of continued employment.

                            Certain attributes of "property" interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

                            Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law - rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to welfare payments that was grounded in the statute defining eligibility for them. The recipients had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.

                          •  Real simple "due process" hearing (0+ / 0-)

                            "Did you file the incident report as required by your job description? No? Great, you're fired."

                            Any "due process" should solely center around whether he did, or did not, file the required police report. Everything else is not relevant. Not doing your job is grounds for dismissal under due process.

                            (-5.50,-6.67): Left Libertarian
                            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

                            by Sparhawk on Tue Aug 26, 2014 at 09:15:36 AM PDT

                            [ Parent ]

                          •  The Due Process is likely much more complex (1+ / 0-)
                            Recommended by:
                            white blitz

                            as the Police union has likely negotiated strong due process protection.

                            The most important way to protect the environment is not to have more than one child.

                            by nextstep on Tue Aug 26, 2014 at 01:04:30 PM PDT

                            [ Parent ]

                          •  yes but (0+ / 0-)

                            you have to notify the subject.

                            Give them reasonable time periods to consult an attorney,
                            collect evidence, witnesses,

                            30-90 days.

                            but you can suspend without pay, on a presumptive basis.

                      •  Sparhawk - I just thought you would find having (1+ / 0-)
                        Recommended by:
                        Sparhawk

                        some understanding of the current state of the law to be useful. As I noted I know little about this segment of the law. I am trying to read the cases, and some analysis, on the whole Garrity field so I can better understand the Wilson case.

                        "let's talk about that" uid 92953

                        by VClib on Mon Aug 25, 2014 at 09:25:38 PM PDT

                        [ Parent ]

                    •  VCLib Garrity rule applies to "internal investi (1+ / 0-)
                      Recommended by:
                      white blitz

                      gations" not filing a police report.

                      Also, remember, the Ferguson Police are not saying Officer Darren Wilson is invoking 5th Amendment ... the Ferguson police are saying Wilson did not file an “incident report” on because they turned the case over to St. Louis County police almost immediately.

                      It would seem to me that a failure to file a police report after the police shot and killed a person is a violation of the victim's [Mike Brown's] Civil Rights (I'll check into that though).

                      One last thing, if all police had to do was "not" file a police report after an incident, there would be far more corrupt cops not filing incident reports.

                      •  As I noted this is an area of the law about which (0+ / 0-)

                        I know very little except that "Garrity Right" will play a role in this case to some degree, at some point. I am trying to learn more about these public employee rights, so I can better understand the conversation and analysis of this case.  

                        "let's talk about that" uid 92953

                        by VClib on Tue Aug 26, 2014 at 05:06:36 AM PDT

                        [ Parent ]

                    •  If you read the article ... (0+ / 0-)

                      I directly address whether Garrity rights apply here - they do not.

          •  Re (5+ / 0-)
            You can't be compelled to incriminate yourself (0+ / 0-)
            That's a clear 5th Amendment violation.
            You can't be compelled under criminal sanction.

            However, no one, including the government, owes you a job. The government should simply fire employees who take the 5th with regard to their official duties. They are in a position of public trust.

            See how long you last in a private sector job for refusing to comply with a lawful government inquiry.

            (-5.50,-6.67): Left Libertarian
            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

            by Sparhawk on Mon Aug 25, 2014 at 03:10:04 PM PDT

            [ Parent ]

            •  Well who cares? (5+ / 0-)

              We don't disagree.

              As I said, he can be disciplined by his department, up to and including termination, for refusing to file a report.  So what?  It goes without saying that we're talking about 5th Amendment protections as they relate to criminal sanctions.

              Given the choice between being fired (when his career as a LEO is done anyway) and helping the prosecution put him in jail for the rest of his life, most cops will choose to lose their jobs.

              It's like refusing a breathalyser on a DUI...either give up your licence, or give the state evidence that can be used against you. Unless you're quite certain you're not over the legal limit, you don't blow.

              Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

              by Pi Li on Mon Aug 25, 2014 at 03:50:00 PM PDT

              [ Parent ]

              •  And with this department, (1+ / 0-)
                Recommended by:
                reflectionsv37

                I don't think they'll want to discipline him.

                •  And that's a huge problem (1+ / 0-)
                  Recommended by:
                  Sparhawk

                  Assuming all of this is true, that the officer doesn't have to incriminate himself by filing a report, then laws must be changed.

                  It could be a very simple law change. If a law enforcement officer ever claims the right of self incrimination due to an on the job activity, he is immediately terminate, with complete loss of all benefits including pension and can never work again in any capacity of law enforcement anywhere in the country again.

                  That little change should take care of these problems.

                  Failure to do anything else is giving LEO a license to kill with impunity. They can kill anyone they want, claim the 5th and know full well that their fellow officers and the department they work for will back them 100%. They also know their chances of being convicted of murder by a jury are almost zero.

                  I suspect LEO's are probably fully aware of these legal options. But now that the public is becoming aware of them, I think we're going to see many more cases where and officers simply refuse to write reports if they think there is even the slightest possibility their actions could illegal.

                  The laws have to be changed to ensure this doesn't become standard procedure.

                  •  reflectionsv - the diary on Garrity Rights (1+ / 0-)
                    Recommended by:
                    reflectionsv37

                    is worth reading. You can find it here:

                    http://www.dailykos.com/...

                    "let's talk about that" uid 92953

                    by VClib on Mon Aug 25, 2014 at 08:34:23 PM PDT

                    [ Parent ]

                    •  Thanks for that!... I think? (1+ / 0-)
                      Recommended by:
                      VClib

                      I missed that one. I'd like to say I feel much better after reading it, but I don't!

                      So essentially this SCOTUS ruling indicates that no police officer, if he thinks he might possibly have done something wrong is required to write up an incident report. Even if writing up incident reports is part of your job. And you can't be fired for refusing to do it.

                      I know you spend a good deal of time here explaining law to us laymen, but I think there is something so fundamentally wrong with the current procedures that it makes my freakin' head spin!

                      How can we ever hold a police officer responsible for their actions?

                      What pisses me off even more, is that this only applies to public employees and law enforcement officials. You certainly don't have these rights when you work for a private company.

                      There is something so wrong with this. I wish I had an answers. Do you have any thoughts on this could be improved? Or do you agree with the system the way it is now?

                      •  This is an area of the law about which I know (1+ / 0-)
                        Recommended by:
                        reflectionsv37

                        very little, and is more complex than the diary suggests. It's not quite as black and white as you state. I am starting to learn more so I can better understand this case. In any event people need to understand that there are these "Garrity Rights" that do play a role and that most of us were completely unaware of.

                        "let's talk about that" uid 92953

                        by VClib on Tue Aug 26, 2014 at 05:02:28 AM PDT

                        [ Parent ]

                        •  Thanks VClib! (1+ / 0-)
                          Recommended by:
                          VClib

                          It will be interesting to see how much of this the media makes the public aware and how the public reacts to this information.

                          I was certainly never aware of this and I suspect much of the general public isn't aware either. I don't remember anything about this ruling back in 1967, but I was young then and there were many other things going on at the time that had my attention.

                          As you learn more about these "Garrity Rights" please share it with us here. We all need to know more about this and find a more effective way to hold our police departments responsible for their actions.

                          •  I hope you see this (0+ / 0-)

                            This issue is keeping me awake at night. Arrgh!!

                            While laying awake last night I was thinking bout this some more and then started thinking about how these "Garrity Rights" apply to drug testing. It seems to me that a police officer, or any public official, could refuse to take a drug test or take one and fail, and that they could not be fired as the result of the test. I know that the drug laws are "special" but where does this end? It's sounding more and more like police and possibly public employees are above the law.

                            Do you have any idea of the political atmosphere that was going on when this case was heard? Was it a controversial case? I wonder who wrote amicus briefs supporting the officers. Seems there were lots of racial tensions going back on during the period this case was heard. I wonder if those racial tensions had anything to do with the outcome of this ruling?

              •  well rather then don't blow, ask for a blood test. (1+ / 0-)
                Recommended by:
                Prognosticator

                request they send an EMT to take the blood.

                when the EMT arrives, demand that the blood be
                drawn by a doctor, or under a medical order,
                no EMT can put a needle into you w/o a medical order,
                which means they have to transport you to an ER.

            •  PD responsibility to report? (0+ / 0-)

              Does the Ferguson PD have the responsibility to provide reports of such incidents to the citizens who employ and pay them?

              If the officer involved has a right to refuse to complete an incident report because to do so would could potentially incriminate him, doesn't his employing public agency (Ferguson PD) still have the responsibility to produce an agency report of the incident?  How else can its citizen employers make informed decisions, say, in the next election or budget hearings?

              Or once a public servant has committed a crime and invokes the Fifth, does that invocation shield everyone up the chain of command within the agency so nobody has to produce a report of that incident?

          •  I understand this. (15+ / 0-)

            And I actually agree. The Fifth Amendment has to be absolute, even when invoked by people we may not like.

            What I don't understand (from a legal perspective) is why the police officers who were on the scene immediately afterward aren't being compelled to complete a report, provide statements, etc.  They were on the scene. They should have started an investigation right then, right?  

            © grover


            So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

            by grover on Mon Aug 25, 2014 at 03:13:55 PM PDT

            [ Parent ]

          •  Pi Li, we often disagree (4+ / 0-)
            Recommended by:
            Sparhawk, white blitz, nice marmot, Pi Li

            Pi Li, we often disagree, likely because you are a lawyer and I typically want the law to say something else…..

            But we finally agree on something, while other (likely) lawyers have posted information about Garrity Rules opposite of what you expressed:

            If there were a routine police report, not compelled, then yes, that can be used against the officer involved.
            This seems to be where the disagreements begin.  I am understanding from these other folks that a person can ALWAYS invoke 5th Amendment rights, even in the case of providing routine reports.

            I have argued that failure to provide routine reports are grounds for termination.  And again, these other lawyers are suggesting that is the very definition of coercion.

            I did my best to substantiate my argument with I even provided portion of a Garrity related case (Uniformed Sanitation vs Commissioner, 1968):

            At the same time, petitioners, being public employees, subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.
            And more recently, further down this thread, came across Watson v. County of Riverside, 976 F. Supp. 951 (C.D. Cal. 1997):

             

            “Accordingly, the court finds that the report in issue here regarding Watson’s arrest of an incarcerated prisoner WAS a requirement of plaintiff’s job and DID NOT constitute a compelled self-incrimination. As the element of compulsion was absent, the court finds that there is not a reasonable probability of success on the merits of Watson’s contention that his Fifth Amendment right was violated by defendants when they ordered him to write the report. In weighing this factor against the balance of hardships and possibility of irreparable injury to Watson, the court will DENY the motion as resting on this assertion.”
            Am I missing something or do you believe that Officer Wilson can be terminated for refusing to complete a routine report, even a report that could implicate him in a crime?
          •  did you read the full explanation (13+ / 0-)

            linked in the diary? I'm guessing you didn't, because OP explicitly addresses this point:

            ...an Incident Report is not testimony in an investigation by the government agency into the actions of the officer. It is, instead, a routine duty of the officer and an essential and necessary part of the Department’s mission to enforce the laws and to conduct proper and effective policing to the public.

            See for example the following from Watson v. County of Riverside, 976 F. Supp. 951 (C.D. Cal. 1997)

               “Accordingly, the court finds that the report in issue here regarding Watson’s arrest of an incarcerated prisoner WAS a requirement of plaintiff’s job and DID NOT constitute a compelled self-incrimination. As the element of compulsion was absent, the court finds that there is not a reasonable probability of success on the merits of Watson’scontention that his Fifth Amendment right was violated by defendants when they ordered him to write the report. In weighing this factor against the balance of hardships and possibility of irreparable injury to Watson, the court will DENY the motion as resting on this assertion.”
            Further:
            While there is no coerced self-incrimination in requiring an officer to file a routine Incident Report that could invoke Garrity – an officer may still choose [to] invoke the fifth amendment if they believe that the filing of the report, or particular information in it, may be “incriminating.” In that case they do not have the same protections as provided under Garrity – and they may be disciplined and even fired for insubordination or failing to fulfill the duties of their office.

            HOWEVER, if an officer does invoke their fifth amendment right, they must do so explicitly and formally. Thus if such an invocation of the right against providing self-incriminating testimony occurred on the part of Officer Wilson there would, again, have to be a public record to this effect. So I made that request of the Ferguson Police Department. In their response, that there was no such record, they have thus answered the question: No, Wilson has not invoked the fifth amendment.

            (empasis in original)

            Seems pretty airtight to me, but what do I know....I'm so crazy I think someone empowered by the state to kill should be required to explain themselves to the public.

            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 Mon Aug 25, 2014 at 03:27:50 PM PDT

            [ Parent ]

            •  I think people really need to go read the (11+ / 0-)

              link.
              I found it amazing, how thorough the diarist documented what was going on, and it appeared to me that Chief really did not want to follow the law and release the report.
              Email went Dow, his phone was dead. I guess he couldn't use a land line?  
              Well done, diarist!  
              I bookmarked the page.

              "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 Mon Aug 25, 2014 at 03:39:18 PM PDT

              [ Parent ]

              •  Yeah, it's called coverup. (4+ / 0-)
                Recommended by:
                patbahn, geekydee, snoopydawg, a2nite

                If Wilson did nothing wrong as they state, then what is the problem in writing the routine report as required for your job.

                Logic dictates that Wilson knows he did something wrong therefore doesn't want to put anything on paper. The chief is not doing his job by requiring Wilson to write the routine report. The chief should have fired Wilson when he didn't write the report. Now the chief is complicit. I cannot believe Wilson is getting paid now.

                DOJ can file some obstruction of justice charges I assume.

                The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. - Elbert Hubbard -9.62/-8.15

                by GustavMahler on Mon Aug 25, 2014 at 04:34:54 PM PDT

                [ Parent ]

            •  Well (4+ / 0-)
              I'm so crazy I think someone empowered by the state to kill should be required to explain themselves to the public.
              If you think just because you're a cop you lose your right to self-incrimination...yes, that is crazy.  What, we give that right to child molesters and serial killers, but if you're a cop you lose it? Please.

              Again, that's not to say he can't be fired for refusing to give a statement, but other than taking his job, what do you want to do to him? What do you suppose you can do to him?

              And whether he specifically asserted his Fifth Amendment rights as a legal matter is something for the lawyers to sort out. But as a practical matter, it's all the same...the most they can do is fire him.

              Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

              by Pi Li on Mon Aug 25, 2014 at 04:17:09 PM PDT

              [ Parent ]

              •  so (1+ / 0-)
                Recommended by:
                nice marmot

                Nothing whatsoever about any of the material that Grapski wrote. I still don't think you've read his full post because you haven't even bothered to address any of it.

                If you think just because you're a cop you lose your right to self-incrimination
                No. You're a lawyer, you can read better than that. I said "empowered by the state to kill." Who has, in fact, killed someone, which is not in dispute. If I am understanding this correctly, for the purposes of the incident report, Michael Brown was the "criminal" (or suspect, anyway). Wilson's 5th Am protection does not apply to that report, unless he specifically invokes it, which he has not. Grapski has documented this in detail through communication with FPD and has publicly documented the email exchanges.
                Again, that's not to say he can't be fired for refusing to give a statement
                Wilson hasn't been fired yet. It's been more than two weeks now. They don't need a six-month blue-ribbon panel to determine whether he filed a report or not. They already know.

                Missouri has a Sunshine Law. Grapski cited it repeatedly to Lt. Burk and it clearly got the legal dept's attention. They released the incident report--complete with surveillance video--of the run-in with the clerk at the convenience store before they so much as released Wilson's name, let alone the incident report involving an officer using lethal force.

                Think Eric Holder's curiosity might have been piqued at that? This is bigger than just Wilson's 5th Am rights. The whole department is exposed right now.

                How's it going to look to the grand jury when they find out that either 1) there's no incident report or 2) they're hiding and stonewalling the real report and they gave Grapski a bullshit substitute? Did you miss out the part about the dates? (Of course you did, you haven't read it.)

                The date it was filed – was Tuesday August 19th. This is after the original denial (August 13th) – AND – after my request (August 17th). Thus – recognizing they had a legal obligation to produce the record upon my request – rather than produce the the original report, if one existed as was required by law, policy, and practice, what they did is REDEFINE what their policy and practice was and what they routinely put in Incident Reports – and then CREATED A NEW one according to that new definition.
                Wilson can claim the 5th if he wants--according to FPD Lt. Burk he hasn't--but the whole department can't just blow everyone off indefinitely on something they're entitled to.

                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 Mon Aug 25, 2014 at 05:31:11 PM PDT

                [ Parent ]

                •  What I'm saying is it doesn't matter (2+ / 0-)
                  Recommended by:
                  VClib, nice marmot
                  If I am understanding this correctly, for the purposes of the incident report, Michael Brown was the "criminal" (or suspect, anyway). Wilson's 5th Am protection does not apply to that report, unless he specifically invokes it, which he has not. Grapski has documented this in detail through communication with FPD and has publicly documented the email exchanges.
                  As I said, whether Wilson specifically invoked his 5th Amendment rights or not, as a practical matter, is irrelevant. If he invoked his 5th Amendment right in refusing to file a report, his department could probably still discipline him (I don't know their specific policy or employment contract). If he merely refused to file, the most his department can do is discipline him, including firing him. There's no other method of coercion available to the department to get Wilson to file a report.  

                  As for the actions, or lack of actions, of the department, that's another matter. They appear to be, at best, incompetent and at worst are engaging in a cover up to protect one of their own (and themselves). I imagine looking into the Ferguson PD is part of the reason the DOJ has 40 FBI agents on the ground there.

                  Wilson can claim the 5th if he wants--according to FPD Lt. Burk he hasn't--but the whole department can't just blow everyone off indefinitely on something they're entitled to.
                  Who is "everyone" and what are they "entitled" to? How can they produce a report Wilson (apparently) never wrote?  I guess, yeah, the can fire him, and I doubt he'd care at this point. Firing him still wouldn't  mean a report would magically appear. Are you suggesting there's some secret incident report out there that Wilson wrote that the PD hasn't released?  Because any statements Wilson gave as part of the investigation (NOT the indecent report) are not public record.

                  Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

                  by Pi Li on Mon Aug 25, 2014 at 05:49:12 PM PDT

                  [ Parent ]

                  •  ... (1+ / 0-)
                    Recommended by:
                    nice marmot
                    Who is "everyone" and what are they "entitled" to?
                    The citizens of Missouri, under the Sunshine Law.
                    610.200. All law enforcement agencies that maintain a daily log or record that lists suspected crimes, accidents, or complaints shall make available the following information for inspection and copying by the public:

                    (1) The time, substance, and location of all complaints or requests for assistance received by the agency;

                    (2) The time and nature of the agency's response to all complaints or requests for assistance; and

                    (3) If the incident involves an alleged crime or infraction:

                    (a) The time, date, and location of occurrence;

                    (b) The name and age of any victim, unless the victim is a victim of a crime under chapter 566;

                    (c) The factual circumstances surrounding the incident; and

                    (d) A general description of any injuries, property or weapons involved.

                    And....
                    Are you suggesting there's some secret incident report out there that Wilson wrote that the PD hasn't released?
                    Are you saying that possibility can be ruled out? Maybe it's more likely he just didn't write one, and they're just in CYA mode, but it's not like they've done much to earn the benefit of the doubt recently....

                    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 Mon Aug 25, 2014 at 06:35:56 PM PDT

                    [ Parent ]

                    •  Hmmmm (2+ / 0-)
                      Recommended by:
                      VClib, nice marmot

                      Well, again, I agree that if an incident report was created, it's a public record and should be produced. No one disputes that.

                      If a report wasn't created, then there's nothing to produce.

                      If the PD there is burying a report, or if they are violating their own policies by not compelling Wilson to file a report, the DOJ will find out about it, you can be sure of that.

                      Dammit Jim, I'm a lawyer, not a grammarian. So sue me.

                      by Pi Li on Mon Aug 25, 2014 at 06:40:19 PM PDT

                      [ Parent ]

                •  Regarding reading: (2+ / 0-)
                  Recommended by:
                  VClib, nice marmot

                  Burk doesn't work for the FPD. He works for St. Louis County.

                  The video was released by the FPD.

                  Burk had nothing to do with it.

                  Charlie had nothing to do with it.

                  Charlie's involvement (8/17) followed the 8/15 release of the video and the robbery report. It did not cause it.

                  I could go on, but I think I'll just go back to hitting my head against the wall. There is so much wrong in this diary/comments that it would be impossible to know where to begin or end.

                  •  thank you for the correction on Burk (2+ / 0-)
                    Recommended by:
                    nice marmot, Villanova Rhodes
                    Charlie's involvement (8/17) followed the 8/15 release of the video and the robbery report. It did not cause it.
                    It took me a second to grok this, because I was mistaken about Burk. I was talking about the shooting incident report, not the convenience store one.

                    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 Mon Aug 25, 2014 at 06:55:28 PM PDT

                    [ Parent ]

        •  Here is the explanation (4+ / 0-)

          IF he is COERCED - by the government (which is the employer in this case - not in yours) - to provide a statement.

          THAT statement is not able to be used in a CRIMINAL case against him  It can be used in the Adminsitrative investigation though.

          But the DA could not use that document - if it was COERCED - over a fifth amendment claim.

          But that doesn't give him immunity from being prosecuted - and having those same questions ask of him - if he takes the stand.

          •  Threatening to fire him isn't coercing him (1+ / 0-)
            Recommended by:
            godlessmath

            No one has any right to a job. The government often fires people merely because it doesn't have the money to keep them on.

            Coercion means criminal charges if you don't comply.

            (-5.50,-6.67): Left Libertarian
            Leadership doesn't mean taking a straw poll and then just throwing up your hands. -Jyrinx

            by Sparhawk on Mon Aug 25, 2014 at 03:32:00 PM PDT

            [ Parent ]

    •  So, then, by not giving notice of formal (1+ / 0-)
      Recommended by:
      sethtriggs

      investigation, he couldn't refuse the incident report?

      It's difficult to see how that works. He was suspended. I know that. Pending internal affairs review, I assumed, but if what you say is true, he would be required by regulations to write an incident report, which they can read.

      Urgh.

      Interesting stuff, btw. Thanks for this.

      In the military, there is no Maranda, or Garrity Rule that I know of. And as far as I know, you don't have the right to remain silent.

      “...I'm glad I'm not afraid to be lazy!” ― Augustus Mc Crea, "Lonesome Dove"

      by nutherhumanbeing on Mon Aug 25, 2014 at 02:11:08 PM PDT

      [ Parent ]

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