PUBLIC SAFETY STATEMENT—DO IT RIGHT!
There seems to be a lot of confusion out there on the street about the Public Safety Statement (PSS). The Department revised the statement at the end of last year, so it might be time to go through the basics again.
The Public Safety Statement is an exception to the Miranda rule. The Miranda rule was implemented in 1966 when the Supreme Court decided that Ernesto Miranda’s confession of kidnapping and raping a woman had been obtained without advising Miranda of his rights.
He obtained a new trial but was convicted again and sentenced to prison for 20–30 years. He was paroled five years later and made money signing police officers’ Miranda cards. Karma visited him in 1976, and he was stabbed to death during an argument in a bar.
Perhaps sympathy for an exception to a strict adherence to the Miranda rule was started in 1977 when Ronald Korn kidnapped Trudy Farber and confined her in a poorly ventilated box in the woods. Officers arrested Korn, and he made admissions that he knew where she was and then tried to negotiate a ransom. When pressured by the officers, he demanded an attorney. Dutifully, the officers stopped the questioning, and Trudy suffocated while awaiting rescue. Sometimes following the niceties of constitutional law ends up with horrific results.
In 1984, the Supreme Court established an exception to the Miranda rule in New York v. Quarles. A woman told a police officer that the man who had raped her had just went into a supermarket. The officer went in and confronted Quarles, who ran and was out of the officer’s sight for a short time. When the officer caught Quarles, he handcuffed him and found that Quarles was wearing an empty shoulder holster. Imagine a kid someday finding the gun in this very public supermarket. “Where is the gun?” the officer asked. Quarles pointed out the gun’s location among some boxes, and the officer recovered it. Quarles was an ex-con, and his statement directing the officer to the gun’s location was used against him. Since no Miranda warning had been given to this handcuffed prisoner, the issue of suppression of the statements went up on appeal. The Supreme Court found that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic [Miranda] rule….” And so, the Public Safety Statement was born.
PSS grew legs over the years and became part of the LAPD protocol at categorical uses of force. The latest revision came at the end of last year. It reflects a balance between an officer’s right to have representation before making a statement regarding an incident that might end up in punitive action versus the safety of the public.
Keep the purpose of the Public Safety Statement in mind. There is no time to wait for representation because of the threat to public safety. For instance:
• Which direction did you fire, and were you fired at? Maybe a stray bullet struck someone who is now bleeding out. There is a need to go look.
• Are there outstanding suspects? Which way did they go? What is their description and mode of travel? How long have they been gone? What weapons do they have? Are there additional victims or witnesses? These are all questions leading to the prompt apprehension of the suspects whose continued freedom endangers the public.
• Are there any weapons or evidence that needs to be secured or protected? A gun or knife in the bushes could be found by a child. Evidence might be stolen if not secured. All of these issues are time-sensitive. There is no time to wait for the League attorney or ORS to arrive.
But, what happened, why did you shoot, what did the suspect do, are all conversations that can wait for representation to arrive. No one is going to die because you waited for your attorney before you told your story. And you will be ordered to tell your story before you are allowed to go home.
Last month, it was pointed out that there are political reasons that encourage, or even demand, that police officers be prosecuted for uses of force. The local District Attorney campaigned on that premise, and this year the state Attorney General has been mandated to criminally investigate all officer-involved shootings in which the suspect turned out to be unarmed, and is charged with prosecuting officers who they have opined committed a crime.
In fact, in any categorical use of force investigation, Force Investigation Division
has a criminal team whose duty is to see if an officer has committed a crime. That
is why, if you are the shooter, the administrative team, not the criminal team, will
order you to submit to an interview. The criminal team knows that if you are compelled to give a statement, it cannot be used against you in a criminal trial.
This is because of the federal Garrity case that states when an officer gives a statement under compulsion from his/her employer, the officer can be terminated for failing to comply. But, on the other hand, compelled statements given by the officer cannot be used against that officer in a criminal proceeding. This is a balancing test to keep things fair. The chief needs to know what happened as quickly as possible, and an officer being compelled to make statements close to a life-endangering experience needs protections.
Thus, the title of this article: Public Safety Statement—Do It Right!
There are two people who need to know what they are doing during the Public Safety Statement procedure. The first is the supervisor asking the questions. The second is the officer answering the questions.
The procedure is broken down into four parts: turning off the body-worn video/DICVS; the order to give the statement; the questions themselves; and the follow-up orders.
Turning off the BWV/DICVS: Contact with the citizen is over and the officer is separated from other persons. The order requires that the video cameras be turned off. They are to be collected and preserved for FID.
The order to give the statements: The officer is required to give a Public Safety Statement by the Department before the League attorney arrives. That is why it is important for the supervisor to order and inform the officer why he or she must answer the questions immediately without representation. The Department demands that the following language be read to the officer verbatim: “Officer, I am ordering you to give me a Public Safety Statement. Due to the immediate need to take action, you do not have the right to wait for representation to answer these limited questions.” [emphasis added]
This provides the officer, who has just been through a high-stress experience, with protection while safeguarding the public by obtaining necessary information for public safety.
Officer, if you have an uninformed supervisor who forgets this important step, speak up. Insist that it is done correctly.
The questions themselves: Answers should be short and to the point. Remember the purpose of the Public Safety Statement. It is to answer questions that must immediately be answered to protect the public. Direction of shots fired, description of escaping suspects, location of weapons—these are all hot items that need immediate attention. The story of what happened does not. It can wait until the arrival of representation.
Follow-up orders: Supervisors, pay attention to this. Failing to address these issues are probably the most common reasons for Administrative Disapproval at Use of Force Boards along with command-and-control issues. You are required to ensure that the officers give their Public Safety Statements separately. You are responsible for continuing to ensure that officers remain separated and to see that they are monitored. You are mandated to order each officer not to discuss the incident with anyone (including you) until the officer’s representative and FID arrive. You “shall direct each involved/witness employee not to view any media coverage, recordings or reports of the incident, to include television, DICV, BWV, social media or any video or audio from any source.” You also must order the officers not “to communicate information regarding the incident via email, phone, text, Mobile Data Computer or social media until authorized by the assigned Force Investigation Division (FID) investigator or representative.” And finally, you are precluded from discussing any particular tactics with the officer involved in the incident.
A lot to remember, but, as they say, that’s why you get the big bucks! Clip the attached portion of the order printed here and keep it in your pocket, especially if you are an officer in Patrol, just in case you have to loan it to the first responding supervisor.
Be legally careful out there.
