Vol. 16 No. 4- Critical Incident Protocol

May 15, 2001

To: All Police Chiefs and Sheriffs

From: Martin J. Mayer


Recently quite a few of our clients have forwarded copies of letters they received from a PORAC law firm in northern California. The thrust of the letter is that the firm has adopted what appears to be a uniform policy applied to all of its clients whereby they will advise officers involved in officer involved shootings and/or other critical incidents to refuse to give a voluntary statement to investigating officers. They indicate the officer would be willing to provide a compelled statement and make statements, therefore, under “duress” or “coercion.” In this way statements made by those officers could not be utilized in any subsequent criminal or civil proceeding arising out of that incident.

The letter, and much more importantly the approach, has created much concern among police chiefs and sheriffs, in particular those located in northern California. This approach or philosophy has been fairly prevalent in southern California for several years.

Attorneys who represent peace officers, and many of whom I hold in high esteem, believe that it is in the best interest of the individual officer for them to take this position. With all due respect I do not believe that it is in any client’s best interest to adopt a general policy regarding a legal issue.

In our opinion, the interests of the officers, law enforcement generally, and the public specifically, are better served when determinations as to whether or not voluntary statements should be given are made on a case by case basis.

It has been my experience that the overwhelming percentage of law enforcement officers attempt to perform their duties in an appropriate fashion. In many instances the “state of mind” of the officer is as crucial as the factual circumstances surrounding a critical incident. Frequently, once it has been determined what facts and circumstances did exist at the time of the incident, the criminal investigation focuses upon the subject and not the officer. Nonetheless, it is important to understand why attorneys are rendering this “across the board” advise.

Officers and their attorneys are frightened; they are frightened of the fact that police officers are investigated and prosecuted for course and scope activity, far more frequently today than ever before. When an attorney from the union or the association undertakes representation of an individual officer, the attorney’s total obligation is to ensure that the officer is protected. The attorney’s obligation is not to “society,” nor to the agency, nor to anyone other than the officer. It is because of this I suggest a determination on a case by case basis, as to whether or not a voluntary statement will be made, is the only way to provide individualized legal advice and protection to the officer(s) involved.

The question that has been posed to us frequently is whether anything can be done to change this type of “across the board” approach. The concern is that it creates a schism between law enforcement and the prosecuting attorneys who must present their cases. Prosecutors who put material witnesses on the stand must do so having confidence in the credibility and reliability of a witness. If a witness had to be compelled, ordered, or coerced into stating that he or she was about to be victimized and, therefore, took lawful, appropriate action in response, the effectiveness and weight of that testimony can be seriously damaged.

Attorneys from this office have been involved in defending numerous situations which could be classified as critical incidents; many of them officer involved shootings. In the overwhelming percentage of those incidents the officers acted properly and a clear, articulate statement by the officer not only added to his or her credibility but provided the prosecutor with the necessary information and support permitting successful prosecution of the perpetrator.

The conflict is obvious: the Constitutional right of an officer to refuse to make a voluntary statement as to why he or she utilized force versus the need for the criminal justice system to function effectively. The refusal of the public official, the peace officer, to state why he or she engaged in certain behavior on behalf of the public, obviously makes it more difficult for the other part of the government entity, the prosecutor, to perform his or her function.

We are not recommending that officers involved in critical incidents not confer with legal counsel or a union representative before making a statement. It is just that we are urging that the “lock step” approach that is applied, apparently in all critical incident situations, needs to be reconsidered. The attorney should review and analyze the facts presented and make a determination as to whether or not a statement can be made by the officer, thereby enabling the other elements of the criminal justice system to move forward in an efficient and effective manner.

Communication between labor and management on this particular issue is of paramount importance. It is not the type of situation where one should wait until an incident occurs, but rather take whatever time and effort is necessary to attempt to come to some agreement regarding procedures before it is needed. An evaluation of each set of circumstances, and how it impacts upon each individual, is an obligation of any attorney in providing advice and guidance to a client. We submit that there should be no blanket policy which is applied in all situations but rather each situation should be reviewed and analyzed case by case.

As always we urge that before you take any legal action you confer with your designated legal advisor. If you wish to discuss the comments set forth above, please feel free to contact Martin Mayer at (714) 446-1400 or MJM@Jones-Mayer.com.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]