07-20-2007, 10:04 PM
What I write I am writing because we in HPD have too many new Officers that do not fully understand their rights as Police Officers. Yes, this is a subject most cops never think about and this is very natural. After all most law abiding citizens never think about their Miranda rights and other constitutional rights that are afforded to them. That is why most average citizens after being involved in a crime are so easily interrogated by the police. If most citizens knew that all they have to say is that “I want a lawyer” and the interrogation would stop at that time, most citizens would. Yes they are read Miranda, but one thing is being read Miranda and another is being represented by counsel! And for all you cynics yes I know in many places the interrogation would not stop anyway, but even a good system can be derailed by evil men.
Here then leis the problem. Most officers are good men and women that would never see themselves on the wrong side of the law. However, many good officers have thought the same thing and ended up on the wrong side, even with just public perception which these days will convict you before you get into a courtroom. Unlike Miranda most of the rights afforded to officers, the officer Must Invoke! Yes if the officer does not invoke the right it does not apply. This leads up to Garrity.
Garrity came about because we all, including police officers, have the Fifth Amendment right not to self incriminate ourselves. Cases in the past put officers, who had committed a possible criminal act, in a hard position. The officers had to choose whether to tell what occurred and face possible criminal prosecution or refuse to make any statement and face termination for insubordination. Well the US (Not the Hialeah City Council) Supreme Court stated in Garrity that an officer’s compelled statement could not be used against them for criminal purposes because it would violate their Fifth Amendment right. Sounds simple enough, but here is the catch the statement must be compelled! If there is any doubt the statement was not compelled, the statement has a chance of being used against the officer in proceeding criminal charges. Yes our Use of Force policy states that every member of the department must complete such after being involved in a “Use of Force” or they will be discipline up to termination. Sounds great, it sounds like a compelled statement to me. However, the State Attorney would disagree.
Just ask Ex-Officer G. Castillo. In his case the State tried, unsuccessfully, to bring in the Use of Force statements. The State said the written statements were not compelled because the officer could have asked to consult with an attorney. For example in shootings even without any injuries the Subject officer was not compelled to write a subject statement. Our Use of Force policy does not address why in a shooting even a non-contact shooting the subject officer does not have to fill out a Use of Force Statement. The State said that if the supervisor on the scene would have given Officer Castillo a direct order then Garrity would have attached. Then there was a dispute of whether the supervisor on the scene had actually told Officer Castillo to write the statement or if Officer Castillo had written the statement on his own will following departmental policy.
Moral of the story is that even though the statements were not used criminally our policies left the door open for the State to try and trample on a fundamental right of being a Police Officer. This door can easily be shut by the individual officer writing Garrity or the supervisor writing on his or her statement that he or she issued a direct order for the officer to write the subject statement. This way there are no unanswered questions. Remember that when these issues come up, just like a law abiding citizen, something questionable has happened and the last thing on your mind should be whether your compelled statements will be used criminally against you. As of right now, HPD officers have been ordered not to write Garrity and supervisors not to write that they gave the officer a direct order to write such a statement. Therefore it is up to the Individual officer to ask his supervisor if he or she must write a Use of Force and then have the supervisor give them a direct order to write such. The Officer will then document that they were given such an order and if not ask for Legal Counsel. Once you are denied legal counsel then it is automatically a compelled statement. However, these rights must be exercised by individuals and can not be exercised as a group. If you are not willing to stand up for your rights then you do not deserve them. Remember that men and women have bleed so we could all have these rights. Do not allow people who have political thoughts from other Countries with totalitarian types of political systems water down your rights. We have come from many different places, but are united in being Americans. Other than on a much smaller scale, this is no different than what Washington, Lincoln, or Martin Luther King, JR fought for. Justice for all!!!!
Why the department would fight us on this I do not know. How this can this hurt the City I do not know! I have spoken to the PBA representatives, who in my opinion are not doing enough to stand up for us, but then again neither are we. I had never thought of running for PBA rep before, but the things I have seen in the last few months have made me sick.
Here then leis the problem. Most officers are good men and women that would never see themselves on the wrong side of the law. However, many good officers have thought the same thing and ended up on the wrong side, even with just public perception which these days will convict you before you get into a courtroom. Unlike Miranda most of the rights afforded to officers, the officer Must Invoke! Yes if the officer does not invoke the right it does not apply. This leads up to Garrity.
Garrity came about because we all, including police officers, have the Fifth Amendment right not to self incriminate ourselves. Cases in the past put officers, who had committed a possible criminal act, in a hard position. The officers had to choose whether to tell what occurred and face possible criminal prosecution or refuse to make any statement and face termination for insubordination. Well the US (Not the Hialeah City Council) Supreme Court stated in Garrity that an officer’s compelled statement could not be used against them for criminal purposes because it would violate their Fifth Amendment right. Sounds simple enough, but here is the catch the statement must be compelled! If there is any doubt the statement was not compelled, the statement has a chance of being used against the officer in proceeding criminal charges. Yes our Use of Force policy states that every member of the department must complete such after being involved in a “Use of Force” or they will be discipline up to termination. Sounds great, it sounds like a compelled statement to me. However, the State Attorney would disagree.
Just ask Ex-Officer G. Castillo. In his case the State tried, unsuccessfully, to bring in the Use of Force statements. The State said the written statements were not compelled because the officer could have asked to consult with an attorney. For example in shootings even without any injuries the Subject officer was not compelled to write a subject statement. Our Use of Force policy does not address why in a shooting even a non-contact shooting the subject officer does not have to fill out a Use of Force Statement. The State said that if the supervisor on the scene would have given Officer Castillo a direct order then Garrity would have attached. Then there was a dispute of whether the supervisor on the scene had actually told Officer Castillo to write the statement or if Officer Castillo had written the statement on his own will following departmental policy.
Moral of the story is that even though the statements were not used criminally our policies left the door open for the State to try and trample on a fundamental right of being a Police Officer. This door can easily be shut by the individual officer writing Garrity or the supervisor writing on his or her statement that he or she issued a direct order for the officer to write the subject statement. This way there are no unanswered questions. Remember that when these issues come up, just like a law abiding citizen, something questionable has happened and the last thing on your mind should be whether your compelled statements will be used criminally against you. As of right now, HPD officers have been ordered not to write Garrity and supervisors not to write that they gave the officer a direct order to write such a statement. Therefore it is up to the Individual officer to ask his supervisor if he or she must write a Use of Force and then have the supervisor give them a direct order to write such. The Officer will then document that they were given such an order and if not ask for Legal Counsel. Once you are denied legal counsel then it is automatically a compelled statement. However, these rights must be exercised by individuals and can not be exercised as a group. If you are not willing to stand up for your rights then you do not deserve them. Remember that men and women have bleed so we could all have these rights. Do not allow people who have political thoughts from other Countries with totalitarian types of political systems water down your rights. We have come from many different places, but are united in being Americans. Other than on a much smaller scale, this is no different than what Washington, Lincoln, or Martin Luther King, JR fought for. Justice for all!!!!
Why the department would fight us on this I do not know. How this can this hurt the City I do not know! I have spoken to the PBA representatives, who in my opinion are not doing enough to stand up for us, but then again neither are we. I had never thought of running for PBA rep before, but the things I have seen in the last few months have made me sick.