January 03, 2011

The Erik Scott Case, Update 9: Mindset and Mutiny

Webster-Merriam defines “Mutiny” as “forcible or passive resistance to lawful authority.” The threatened mutiny of Las Vegas Police against lawful authority is the primary subject of this update. But first, a list of sources:

(1) Nevada Revised Statutes (NRS) dealing with Coroners may be accessed here.
(2) NRS dealing with Peace Officers may be accessed here.
(3) Kevin Scott’s (brother of Erik Scott) letter to the Clark County Commission (CCC) may be accessed here.
(4) Bill Scott’s (Erik’s father) letter to the CCC may be accessed here.
(5) A LV Review-Journal Story on Metro recruit training may be accessed here.
(6) A LV Sun story on threatened Police mutiny may be accessed here.
(7) A LV R-J story on threatened Police mutiny may be accessed here.
(8) A LV R-J story on a citizen killed by police tasers may be accessed here.

“Someone’s gonna have to get killed before they do anything.” So goes the common citizen’s refrain about intransigent, uncaring government, and like most such aphorisms, it is often true because it reflects a significant, unpleasant truth about human nature: We tend to ignore injustice and danger until the threat of personal consequences becomes too great to ignore.

And so it has been in Las Vegas for decades, but it didn’t take someone getting killed. It took a great many someones getting killed by the police--some 200 since 1976--and finally, one particular someone: Erik Scott, killed by three Metro officers on July 10, 2010. Although his death was the starting point for the process of change, even that wasn’t enough to force glacially slow local politicians to take the smallest steps toward correcting decades of injustice.

As I’ve noted in previous updates, when the Metro police shot Scott, they shot the wrong man. Scott was not someone with a shady past, engaged in criminal wrongdoing. He was a West Point graduate who served honorably as an officer of armor. He was a hard working, upstanding citizen licensed by the state to carry concealed weapons. He was, arguably, doing nothing more dangerous than shopping. In shooting Scott, Metro enraged the wrong family, a military family, a proud, just family. Admiral Isoroku Yamamoto, responding to Japanese elation after the attack on Pearl harbor, said: “I fear that all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” So has Metro done, for all indications are that Scott’s family will not rest until those responsible for Erik’s death are exposed. For the Scott family, this does not appear to be about money. There will almost certainly be no token, low ranking fall guys, no settlement, no sealed record. This shooting will not go down the memory hole, as have all the others, with the conclusion of the Coroner’s inquest.

The process of change began with a tool unavailable to many previous Metro victims: The internet. Through that medium, a few billboards, and the simple yet apparently threatening symbolism of Erik Scott remembrance ribbons displayed on citizen’s vehicles (which continue to provoke thuggish police harassment), unprecedented pressure was brought to bear on the Clark County Commission (CCC), particularly after the Coroner’s Inquest which showed a newly awakened Las Vegas citizenry and many around the nation how little regard Metro, and Las Vegas politicians, had for truth and the lives of citizens. The public learned that since 1976, only one of 200 inquests has found a police officer culpable in a shooting. So obvious was the bias, so clumsy the official cover up, so craven and unconvincing the police and prosecutors, even the CCC could no longer ignore the status quo and quickly established a commission to consider and recommend changes to Inquest rules and procedures.

THE LAW: Before continuing, let’s examine the law relating to Coroner’s Inquests. The applicable state statutes are Nevada Revised Statute (NRS) 259.050, 259.090, 259.100, and 259.110:

NRS 259.050: Investigation into cause of death; inquest.
1. When a coroner or the coroner’s deputy is informed that a person has been killed, has committed suicide or has suddenly died under such circumstances as to afford reasonable ground to suspect that the death has been occasioned by unnatural means, the coroner shall make an appropriate investigation.

2. In all cases where it is apparent or can be reasonably inferred that the death may have been caused by a criminal act, the coroner or the coroner’s deputy shall notify the district attorney of the county where the inquiry is made, and the district attorney shall make an investigation with the assistance of the coroner. If the sheriff is not ex officio the coroner, the coroner shall also notify the sheriff, and the district attorney and sheriff shall make the investigation with the assistance of the coroner.

3. The holding of a coroner’s inquest is within the sound discretion of the district attorney or district judge of the county. An inquest need not be conducted in any case of death manifestly occasioned by natural cause, suicide, accident or when it is publicly known that the death was caused by a person already in custody, but an inquest must be held unless the district attorney or a district judge certifies that no inquest is required.

NRS 259.090:Inquest: Summoning and examination of witnesses; examination of decedent; adjournment.
1. The justice of the peace may issue subpoenas for witnesses, returnable as the justice of the peace may direct, and served by such person as he or she may direct.

2.  He or she must summon and examine as witnesses every person who, in his or her opinion or that of any of the jurors, has any knowledge of the facts, and he or she may summon a qualified surgeon or physician to inspect the body, or hold a postmortem examination thereon, or a chemist to make an analysis of the stomach or the tissues of the deceased and give a professional opinion as to the cause of the death.

NRS 259.100  Witness failing to attend punishable for contempt.  Any witness failing to obey the subpoena of the justice of the peace may be attached and fined for contempt in like manner as in a justice court.

NRS 259.110  Rendition of verdict: Certification; contents.  After inspecting the body and hearing the testimony, the jury shall render their verdict and certify the same by an inquisition in writing, signed by them, and setting forth the name of the deceased, when, where and by what means the deceased came to his or her death; if by criminal means, the name of the person causing the death.

ANALYSIS: Nevada law basically requires each county coroner to investigate unattended deaths. An attended death would be an expected death, such as the death of one suffering a terminal illness in the hospital, or the obvious death by natural causes of an elderly person. If a death seems criminal, the district attorney (DA) and sheriff are involved. However, a DA or a district judge may, apparently at their discretion, certify that no inquest is necessary. A justice of the peace is appointed to conduct the inquest and is empowered to subpoena witnesses of various kinds, who may be imprisoned and/or fined for contempt of court should they fail or refuse to appear. Finally, the inquest jury is responsible for a verdict, in criminal cases, that establishes how the person was killed and who was responsible. Those interested in the more procedural portions of the statute I’ve omitted here may access the link at the beginning of the update.

Let us also take a moment to familiarize ourselves with the obligations of Nevada Peace Officers (the statutory term for all Nevada law enforcement officers), particularly NRS 289.120 and 289.027:

NRS 289.020  Punitive action: Prohibited for exercise of rights under internal procedure; opportunity for hearing; refusal to cooperate in criminal investigation punishable as insubordination.

3. If a peace officer refuses to comply with a request by a superior officer to cooperate with the peace officer’s own or any other law enforcement agency in a criminal investigation, the agency may charge the peace officer with insubordination.

I’ve left out the first two sections of this statute which refer to peace officer’s rights in administrative processes. Those interested may access that information at the link provided in the beginning of the update.

NRS 289.027  Law enforcement agency required to adopt policies and procedures concerning service of certain subpoenas on peace officers.

1. Each law enforcement agency shall adopt policies and procedures that provide for the orderly and safe acceptance of service of certain subpoenas served on a peace officer employed by the law enforcement agency.

2.  A subpoena to be served upon a peace officer that is authorized to be served upon a law enforcement agency in accordance with the policies and procedures adopted pursuant to subsection 1 may be served in the manner provided by those policies and procedures.

ANALYSIS: Nevada officers are required by law to participate in criminal investigations and if they refuse, may be charged with insubordination. Such a charge may result in dismissal or lesser punishments at the discretion of the officer’s employer.

There are two primary types of subpoenas with which the police regularly deal: The subpoena ad testificandum and the subpoena duces tecum (legal terminology is in Latin). A subpoena ad testificandum is an order to present oneself at a particular place and time to give testimony. A subpoena duces tecum is an order to bring documentary or other physical evidence. Police officers know that if they are subpoenaed, they will be testifying and they automatically bring any and all physical or documentary evidence with which they have any relation. Such evidence is usually spelled out on the subpoena and/or they speak with the prosecutor beforehand to determine exactly what they want the officer to bring. In any case, in the criminal justice system, “subpoena” encompasses both types of testimony.

NRS 289.027 simply allows an agency to accept subpoenas on behalf of individual officers rather than requiring that an officer be individually served--the actual subpoena placed in that officer’s actual hand--by one empowered to serve subpoenas. Considering the sheer number of subpoenas issued, this is a necessary time and labor saving device and is common throughout the nation. The process normally works like this: The prosecutor’s office sends the day’s subpoenas, which are usually little more than documents listing the defendant’s name, the officer’s name, the case number, the prosecutor’s name and the date and time of the hearing, to the secretary designated to handle them. That secretary places them in the officer’s mailboxes. This may also be accomplished by e-mail. They also commonly review them to determine when an officer will need to appear, and if an officer won’t be back on duty to find the subpoena before that date and time, will give them a call to let them know about the subpoena. Even so, sometimes officers don’t get subpoenas until after a hearing. In such cases, hearings are usually simply rescheduled because everyone involved understands that such things happen due to the very nature of the system.

THE COMMISSION: The overwhelming majority of those watching the televised Erik Scott Coroner’s Inquest came away with a very bad taste in their collective mouths and deluged the Clark County Commissioners with expressions of their displeasure and outrage. The primary emerging issue was the obvious lack of complete, competent questioning, leading to a pre-determined result that has, with only a single exception since 1976, favored the police. As a result, the CCC established a commission, seating (in alphabetical order):

Christopher Blakesley, Professor at UNLV Boyd School of Law (Commission Chairman)
Richard Boulware, NAACP
Chris Collins, Police Protective Association (Metro Police Union)
John Fudenberg, Clark County Coroner's Office
Doug Gillespie, Metro Sheriff
Phil Kohn, Clark County Public Defender
Bill Maupin, retired Nevada Supreme Court justice
Margaret McLetchie, ACLU
David Roger, Clark County District Attorney
Jose Solario, a former school board member (1993-1994), was added to the Commission at a November 3rd meeting of the CCC, apparently in response to demands for a hispanic member.

THE FRUITS OF THE COMMISSION: The Commission was given 45 days to make recommendations. Among the most contentious issues was that of if, and how, the families of police shooting victims should be represented. Under current inquest rules, families are allowed to submit questions to the presiding justice, but the justice may decide to ask some, all or none. According to the Scott family, only a fraction of their submitted questions were asked, and not always in the format submitted. Other than that, they had no role whatever. From the beginning of the process, Chris Collins, the police union representative, threatened that officers would refuse to participate in any inquest should the process become at all adversarial.

The CCC tentatively approved the recommendations of the Commission on December 7th with the final vote, after some tinkering, to be held on January 4, 2011. Some essential features of the new rules are:

(1) Juries will be replaced with “inquest panels” which will make “findings of fact,” rather than finding fault.

(2) Two pre-inquest meetings will be held with all parties involved.

(3) Investigative files are to be shared with officers and the families of those killed by officers.

(4) Both sides would determine the “scope” of questioning which will be focused on what happened.

(5) Officers may have a union attorney present during the inquest.

(6) An “ombudsman,” who would be a local attorney, will be appointed to represent families.

While a potential improvement on the current system, each of these proposed improvements has its own problems. As state law makes clear, at the end of any inquest, the jury, “inquest panel,” or whatever the CCC eventually calls it will still be required to issue, in writing, a signed statement “...setting forth the name of the deceased, when, where and by what means the deceased came to his or her death; if by criminal means, the name of the person causing the death.” The potential change seems to suggest the Clark County is attempting to get away from assigning any sort of blame by becoming a fact finding panel, but if the case is potentially criminal, that’s not an option Clark County can legislate away with semantic sleight of hand.

While two pre-inquest meetings are mentioned, it’s difficult to believe that the police will, in any way, participate in good faith. It is unlikely that the Prosecutor will be amenable to cooperating with victim’s families even though the Prosecutor’s job is to represent the public. Even should Clark County establish criminal sanctions for failing to appear, the police can show up and simply fail to meaningfully cooperate. Metro has a long established reputation for refusing to fully cooperate with requests for files, evidence, documents, etc. As previous updates have suggested, if the police are mishandling evidence, failing to properly document evidence and their actions, or simply lying, one might as well request old candy wrappers which would have the same reliability and value as evidence. And with the newly added wrinkle of officers refusing to participate in police investigations, there will likely be little of value to share, which is, of course, the point. The process, as proposed, does nothing to address these issues.

Regarding both sides determining the “scope” of questioning, this is apparently a sop to the police which will invalidate the entire process. The police have made plain that they intend not to cooperate in any way and consider anyone asking them questions that might reveal them to be less than knights in shining armor to be completely out of bounds. It takes little imagination to understand that the scope of questioning agreed to by the police will be very narrow indeed and will not be conducive to revealing the facts or the truth, or at the least, any version of the facts or truth contradictory to the official Police version of events.

Why, by the way, would officers who may refuse even to show up, and who will certainly refuse to cooperate or testify, need a union attorney at an inquest they will not attend?

A significant issue is that of the ombudsman. The mere fact of establishing such a position makes it clear that he--or she--will not be directly representing the victim or their family. By definition and common practice, an ombudsman is a neutral professional adjudicating matters between opposed parties while directly representing none of those involved. In the criminal justice system, there are two parties: The State, represented by the District Attorney and the accused, represented by their attorney. At inquests, the state--and in Las Vegas, the Police--is represented by the District Attorney. At present, the families of victims have no voice, no representation at all. Therefore, whom will the ombudsman represent? The people? The DA is supposed to do that. The Victim and their family? If that was the intention of the CCC, no ombudsman would be necessary and private attorneys would simply be authorized, with the option of public defenders appointed for indigent families. Why would the family of a victim, or the public for that matter, have faith in an ombudsman who doesn’t really represent them and their interests at all? Is this actually progress or merely the appearance of progress?

As this update is being written, these and other contentious issues revolving around these potential changes are still being considered. At the moment, Sheriff Doug Gillespie apparently supports the changes, including the ombudsman, but is demanding substantial police input in choosing ombudsman. This would, of course, raise reasonable questions as to the independence and effectiveness of any ombudsman. As a party with a direct and compelling personal and institutional interest in an outcome favorable to him and to Metro, the Sheriff should have no direct hand in such appointments, such involvement being the virtual definition of conflict of interest.

MINDSET: Most interesting--and disturbing--is the response of the Metro police, as communicated by their Union President Chris Collins, who represents approximately 2,800 officers. According to Collins, not only will officers--even those who merely witnessed the actions of fellow officers--fail to testify at inquests, they will refuse to make statements to investigators--usually Metro homicide detectives--after a shooting or death caused by other means. Apparently Collins has gone so far as to suggest that officers will refuse to honor subpoenas.

Collins objected to the idea that officers might have to repeatedly testify about their actions. Remember that in the past, officers have typically had to testify only at an inquest, and even so, their testimony, as in the Erik Scott case, has been less than complete. “now we’re saying ‘screw it’--you only have to answer twice instead of four times: Answer in the deposition and the federal case and skip the homicide investigation and skip the inquest,” Collins said.

Collins apparently believes that all officers will have to do is to simply inform the judge and prosecutor before the inquest that they won’t answer questions--in essence telling them that they intend to take the Fifth--and they’ll be able to ignore subpoenas. Collins said that skipping inquests will be good for officers because it will allow them to avoid the embarrassment and discomfort of pleading the Fifth Amendment to every question from the witness stand.

Reaction to Collins and his threats, express and implied, has been equally interesting.

CCC Steve Sisolak (he voted against the proposed changes): “They said this was what they were going to do. I don’t know if everyone thought they were bluffing.”

CCC Chairman Rory Reid: “Just to say ‘we’re going to take all our marbles and go home.’ doesn’t seem like a reasonable response.”

ACLU Attorney Allen Lichtenstein: “What they’re really saying (is) they’re happy enough to show up when they’ll only be asked questions by friendly DAs, but when they’re asked tough questions by people no in their corner, they don’t want to participate.”

CC DA David Roger (he was against the proposed changes) doesn’t think not having officer’s statements will affect his decision making process. “We talk to homicide detectives all the time where they don’t have statements from suspects.” Indeed DA Rogers, but such suspects aren’t usually police officers and the victims aren’t usually killed by the police. There may be some small difference there that DA Rogers appears to be missing.

The mindset of the police, represented by Collins and Sheriff Gillespie, is at least consistent: Abject and utter contempt for the public and the law. Collins and Gillespie express their contempt somewhat differently, but neither apparently believe themselves to be public servants (a representative of public servants in Collins’ case), but rather, masters of the public.

Part of the problem is undoubtably the fact that Metro officers are unionized. This is far from universal throughout the nation. Unionized officers are often able to get away with things that would be unthinkable to non-unionized cops elsewhere. I do have some sympathy for police unions. I have known law enforcement agencies where officers were mistreated, denied their rights to safe--under the circumstances--working conditions, due process and equal protection under the law, and if that was all that unions worked to protect, I’d have no difficulty with them. However, when unions began to see themselves as more important than the public officers serve, bad things inevitably happen as they have in Las Vegas for many years. Then Governor of Massachusetts Calvin Coolidge, in a Sept 14, 1919 telegram to AFL President Samuel Gompers wrote: “There is no right to strike against the public safety by anybody, anywhere, any time.” I couldn’t agree more, yet some states and municipalities essentially surrender to unions this kind of tyrannical power.

MINDSET OUTSIDE OF LAS VEGAS: In the world of law enforcement and the criminal justice system outside of Las Vegas, in competent, non-corrupt law enforcement agencies, such talk on the part of police officers is confined to under-your-breath locker room or coffee shop bull sessions, quickly done to let off steam, and as quickly abandoned. Few would think of saying such things in public, to say nothing of actually saying them. This is so not only because it would be politically foolish and dangerous, but because most would consider it to be dishonorable.

The job of a police officer is in many ways hopelessly complex, but it can be boiled down to its essentials. Police officers deter crime, investigate crime, write complete, factual and honest reports about everything they do, and testify--as often as necessary--about what they do. Particularly for more serious and convoluted crimes, it is not uncommon for an officer to testify many times in many kinds of hearings such as inquests, preliminary hearings, motion hearings, actual trials where an officer may initially testify once but be called back once or more, and even potentially, motion hearings post trial. And while most officers will testify only once or twice in a given case. it is entirely possible that they could testify five or more times in a given case. Every honest officer knows, understands and accepts this. It’s as much of an essential part of the job as a doctor’s frequent hand washing. An officer whining about being abused because he had to testify multiple times regarding any case would be laughed out of the room in most agencies. If he didn’t learn his lesson, his supervisors would surely conduct an attitude adjustment/reality infusion session.

This is where the importance of complete, factual and truthful reports comes into play. A Sgt. might tell a given officer “be sure you cover your ass on this one,” yet he is not telling an officer to lie. He is telling the officer to be sure that his report is complete, detailed, factual and that he leaves nothing out. People arrested by the police will often lie to avoid punishment and to make themselves look as good as possible to their friends and family. An officer’s best defense is a well written and complete report accompanied by the same from other officer/witnesses.

Most neophyte officers learn embarrassing lessons on the witness stand when defense attorneys force them to explain why they failed to document details in their reports. Most of the time, it’s nothing but an honest oversight by tired, overworked officers writing one too many reports hours after a busy shift, but after one exposure to that kind of heat, competent officers don’t make the same mistake again. Before signing an officer’s report, it is a Sergeant’s duty to be sure to direct an officer to clarify unclear writing and to include any details he may have inadvertently left out. After an officer completes a report, after a supervisor reviews and signs it, that report is never again altered and necessary corrections or additional details that come up are documented on supplementary reports with the same identifying case number as the original. This is done to avoid even the hint that an officer might have, for any reason, changed a report after the fact.

Many additional reasons for such attention to detail should be obvious to readers, but the most compelling reason is that no officer can know which report he’ll need to remember and when. In a given year, any officer will write hundreds of reports and deal with hundreds, even thousands of people. No one can remember with perfect clarity every report they’ve written and every detail therein. I’ve had to testify, for example, at a civil trial held many years after an unremarkable traffic accident and was thankful indeed that I always wrote highly detailed reports, reports that went far beyond minimum requirements. In fact, really good reports can often ensure that an officer won’t have to testify. Defense attorneys reading such reports know that they don’t want to take on that officer on the witness stand and work the best plea bargain they can get. No competent officer likes to say “I can’t remember because I didn’t bother to write it down” on the witness stand, yet all competent officers expect to testify--as often as necessary--and take pride in their preparation and skill in giving credible, convincing testimony.

In the world outside Las Vegas, officers who find a subpoena in their mailbox or in their e-mail in-box immediately obtain a copy of the related reports and get in touch with the assistant prosecutor who will be handling the case to see if there is anything they need. It would not occur to them to fail to appear in court. If anything, that would be worse than failing to show up for duty as not only would they face certain sanction from their agency, they might also be held in contempt of court. There would simply be no excuse, no sympathy from fellow officers or from supervisors whether an officer accidentally overslept or merely decided not to show up. Police work is an adult endeavor, an endeavor where reliability and honor matter. Honest, professional officers simply would not think of failing to show up when subpoenaed, ready to competently testify.

Refusing to cooperate in an investigation, refusing to write reports, to do one’s duty, can, will and should cause an officer to be fired. In such cases an officer who reasonably suspects that their legitimate, lawful conduct might be twisted against them for political reasons might say, “I’ll cooperate fully and hand in a complete report as soon as I’ve had the opportunity to speak with my attorney.” While such an officer might be disciplined, such discipline has a reasonably good chance of being overturned later, and if the officer has a good relationship with his superiors, no discipline may result. All officers know that the best interests of their agency aren’t always necessarily theirs. But in such a case, unless an officer has committed a crime and will invoke the Fifth Amendment, the worst offense of which they’ll be guilty is not completing reports and speaking with their superiors as soon as they desired. Such an offense will generally be survivable, even reversible.

The idea of taking the Fifth Amendment is also highly problematic for competent officers. Every officer involved in a citizen death should, by all means, fully cooperate with the resulting investigation, just as soon as he has the advice of his attorney. Even in good agencies, politics can always potentially play a role and a respected, competent officer might unexpectedly find himself a political scapegoat. Only in such a circumstance, where what’s really happening is clear not only to the officer involved but to his or her fellow officers, can an officer ever get away with taking the Fifth. Even so, some people will always believe the worst regardless of the eventual outcome. Taking the Fifth where it is not clearly and unmistakably justified is tantamount to throwing away every scrap of credibility an officer has worked years to build. It is a betrayal of public confidence, and fellow officers--to say nothing of the criminal justice system--can never again trust that officer. Even threatening to take the Fifth would, at minimum, cause alarm among an officer’s peers and supervisors. At minimum, if such an officer was retained, they would likely find themselves relegated to important filing duties and never allowed to work the street again.

MUTINY: Implied in the threats of Metro Police as expressed by Collins is also refusal of officers involved in a citizen death to complete reports relating to the incident. After all, if you wrote a complete report about the incident, what would be the point of refusing to testify about what you wrote, which, if complete and truthful, would be as potentially incriminating as verbal testimony? On the other hand, if one’s reports were deceptive, refusing to testify or taking the Fifth would become an unlawful better choice. From the apparent standpoint of the Metro officers Collins represents, the best of all possible worlds would simply be not to write reports, not to cooperate with investigations and not to testify, or if forced, to take the Fifth.

By their own admission, the Metro Police now intend to refuse to cooperate in any way in the lawful investigation of any death in which they have a role. Why? Because the house no longer has the advantage. The stacked deck, the wired roulette wheel, the loaded dice have been discovered and the Police might, for the first time in more than 30 years, have to play by the rules, the same rules observed by police officers around the nation.

If an officer’s actions are reasonable and lawful, if their reports are professional, complete and truthful, if the investigation of their actions is professional and not as shot through with anomalies as a Swiss cheese, an officer should have no fear of testifying to their actions as often as required because the facts, the truth, will not change. The very fact that their testimony does not change, that the facts are unassailable will only lend credibility to them and to their actions. However Mr. Collins has made clear that they don’t see things that way. They aren’t used to such rough treatment--actually having to testify in an adversarial hearing--and they’re not going to take such abuse! That the American criminal justice system is by design and nature adversarial seems to somehow have escaped them. Apparently irony is not a part of the curriculum at the Metro Police Academy, but more on that shortly.

The law on such matters is quite clear. Any citizen, police officer or civilian, may invoke their Fifth Amendment right against self-incrimination at any time, and in police work as in the civilian context, they generally may not be punished for so doing. However, in Nevada, any officer who fails to cooperate in an investigation or who fails to honor a subpoena may be charged with insubordination (for the latter, not specifically by state law, but because insubordination is generally considered to be refusal to obey orders and/or follow established procedures), which could conceivably, in some circumstances, be a firing offense. In addition, an officer ignoring a subpoena, as opposed to having a reasonable explanation, can expect to be cited for contempt of court, which can lead to imprisonment and/or fines, particularly if they have advertised their intention to break the law beforehand, as every Metro officer, through their union representative Chris Collins, has now done.

Keep in mind, however, that the right against self incrimination applies only to the individuals directly involved. Officers who are witnesses, before, during or after the fact of a police shooting, have no such right. And it seems obvious that in Las Vegas, no officer may reasonably portray themselves as a political scapegoat. The entire system, at least up to the office of the Prosecutor, seems to be set up to ensure that no officer will ever be prosecuted for the unjustified killing of a citizen, the Erik Scott case being the most egregious, recent known example of this potentially criminal status quo.

Indeed, no officer who has witnessed, in any way, other officers involved in the death of a citizen may legitimately refuse to write a report, refuse to participate in an investigation, ignore a subpoena or refuse to testify, and to testify as many times as necessary. The only possible reason for such refusal could be to protect other officers from the consequences of criminal wrongdoing. This seems to concern Collins and those he represents not at all. That Collins seems completely secure in asserting that such criminal dereliction of duty is not only appropriate but necessary is a telling indicator of the level of corruption in Metro and potentially, in the entire Las Vegas criminal justice system. Should officers blatantly break the law and local judges exact no immediate and meaningful penalty, there can be no further doubt that the rule of law does not exist in Las Vegas.

Astute readers will notice that I haven’t yet addressed an important issue: What about police supervisors and administrators? What about the Sheriff? Don’t they have any duty to deal with this? Absolutely. Officers willfully refusing to participate in investigations or refusing to honor subpoenas should be immediately relieved of duty and suspended, their issued badges and weapons confiscated. The Sheriff should immediately announce that this will be the policy of Metro with no exceptions. Further, he should confer with the chief administrative judge of the Las Vegas system and negotiate a policy, in writing so that it can be widely disseminated, that any officer failing to honor a subpoena in such matters will be immediately arrested and brought before the involved judge to show cause why they should not be held in contempt of court. Should his excuse lack integrity, he will be found in contempt and immediately jailed and fined. In most states, such an offense provides sufficient justification for firing of a law enforcement officer and revocation of their certification and justifiably so.

I’ve observed in previous updates that honest, professional agencies care a very great deal for their public image. The slightest hint of impropriety is promptly attended. Having officers publicly promising to break the law and refusing to participate in investigations relating to the police killing of citizens would be unimaginable virtually anywhere else in America. Any competent, non-corrupt police executive would be handling the matter as I have suggested and doing so publicly to try to minimize public relations damage and to restore public confidence. Otherwise, what citizens have long suspected--officers can and will kill citizens with impunity--can only be considered by the public to be confirmed by the Police themselves.

Does this sound harsh, paranoid even? What the Metro Police are doing is nothing less than declaring mutiny. Mutiny against lawful authority. Mutiny against those from whom every iota of their power comes: The People. They are putting themselves outside the law, above it. They are declaring that when they kill a citizen, none shall have the power to review their actions, not their employer, not the courts because they are accountable only to the highest power: Themselves. How can any citizen possibly be criticized for thinking the absolute worst of every officer employed by Metro, up to and including the Sheriff? How can any citizen fail to fear for their life when they have contact with Metro Police?

TEST CASE: There is a case in the pipeline that will likely be the first test case in the new inquest system. On December 11, 2010, Anthony Jones, 44 was shot with a Taser “several times,” according to Police spokesman Sgt. Jon Sheahan. As is usual Metro practice, only the sketchiest of details have been released. According to the Police, Jones was pulled over by police about a mile from his home. The Police claim that Jones ran and violently resisted the officers, Mark Hatten (35, employed by Metro since 2007) and Timothy English (24, employed by Metro since 2008). Jones died at Valley Hospital Medical Center shortly after the incident.

As with the Scott case, even after the inquest, it is difficult to make definitive judgements. Jones was shot “several times.” By one Taser? Multiple Tasers? Was he shocked simultaneously by multiple Tasers? This seems likely, otherwise, why would two officers be suspended? If only one officer used his Taser on Jones, the other officers would be mere witnesses, unless they in some other way potentially contributed to his death. It should go without saying that those who manufacture Tasers do not recommend shocking people with multiple weapons simultaneously. Such practices allow electricity to transit the body between the barbs of the two (or more), weapons and has, for example, the very real potential to stop the heart or disable the nervous system in fundamental, deadly ways.

It is certainly true that some people die after being subjected to a single Taser shock. But once again, based on the information currently available, Metro is involved in a suspicious citizen death. If long standing trends hold true, we’ll know little more after the Inquest and all officers involved will be absolved regardless of the new changes, that is, if the officers involved elect to participate.

TRAINING: In one of a recent week-long series of reports on Metro basic police training, the Las Vegas Review-Journal had this interesting passage: “Not so for Thomas Mendiola. A recycled recruit who graduated with Class 6-09, he was one of three officers who shot and killed a man with a gun outside the Summerlin Costco store last summer. The officers’ actions were deemed justified by a coroner’s inquest jury, but the controversial shooting helped lead to changes to the inquest.”

Officer Mendiola, readers of this series will recall, was one of the two officers who repeatedly shot Erik Scott in the back after Officer William Mosher had already shot Scott in the chest and thigh. The article did not explain why Mendiola washed out of an earlier basic training academy or how he redeemed himself sufficiently to be on the street in uniform on July 10, 2010, the day he shot and killed Scott. However, this will surely become an item of some interest at the upcoming civil trial.

What is also interesting is the tone of the articles. The Metro Academy is apparently a six month long affair obviously styled as a pseudo Marine boot camp, complete with screaming, abusive drill instructors, endless pushups and similar exercises, and what appears to be an intensive emphasis on the probability of an officer facing violent death at any moment.

Ultimately, the series focuses on former real estate agent Nathan Herlean, a recent academy graduate out of field training and patrolling on his own. Herlean is one of eight officers on his graveyard shift. Of that number, the most experienced officer has only 2.5 years on the job. Recall too that the three officers who shot Scott had scant police experience. Herlean is perhaps just a bit wired.

“On duty or off, he's always on alert, like someone flipped a switch that never turns off.”

“He took a vacation to San Diego and couldn't relax. He catches himself at stoplights staring down people in the next car.”

"’You're always on guard, but I don't want it to be that way,’ he says. ‘But I'm not going to win that battle.’"

“There's also the threat of getting killed on the job.”

“Herlean says he's scared of dying, and he figures he'll be shot at sooner or later.”

One cannot, with any knowable degree of accuracy, diagnose the nature of an entire police agency and its officers from press reports of basic training. That said, considering what is known about the behavior of Metro officers and of their superiors, a few general observations can be reasonably made. Their accuracy and applicability to the Scott case--and others--is up to readers, and the Las Vegas public, to judge.

While police agencies are para-military organizations, most have abandoned the boot camp model, understanding that intelligent, capable officers respond best to more adult forms of motivation and that limited training time is best utilized when officers aren’t in pain and sweating profusely. There is no doubt that physical training and ability are important, but more important is instilling in a police recruit and understanding of the necessity of maintaining a high level of fitness and the desire to continue that practice. From the appearance of some officers, including Off. Mosher, physical fitness standards at the Academy and post academy are not identical.

The series focused relatively little on the curriculum, but in more advanced police training, substantial time is spent in the classroom as more and more, police officers must be expert in not only local and state law, but in constitutional law and its interpretation and application. Most citizens don’t realize that the Constitution, and all of the related court decisions relating to law enforcement, have a very direct daily effect on police officers and the ways in which they carry out their duties.

Substantial time is also devoted to firearm training, but more is devoted to proper tactics and to knowing when and when not to shoot, as I’ve outlined in previous updates. Officer Herlean is no doubt like many new officers, but considering what I’ve read in the series, I am concerned that he, and other Metro officers, have been conditioned to see every citizen as a potentially deadly threat.

Every police officer must be alert; they are different than the rest of the public, with necessarily different responsibilities and perspectives. But apparently Herlean was never taught that he doesn’t always have to be on guard, at least not to the degree that he apparently is, and unless he is an aberration--different from most academy graduates--that should be of concern to all Las Vegas citizens.

Firearm guru Col. Jeff Cooper developed a color code system to illustrate relative awareness. Code white is the state of most people. They’re unaware of the world around them, oblivious to potential danger, hence unable to effectively and promptly respond if placed in imminent danger. Code yellow is the next step, and this is where every police officer should be. This state may be maintained indefinitely with no physical or psychological harm. It is a relaxed state of awareness that requires being aware of one’s surroundings and the potential for danger. No paranoia is involved. It allows one to quickly and properly react to potential danger because they can anticipate it, see it coming. Police officers and anyone who carries a concealed weapon should live in this state. A police officer who “...catches himself at stoplights staring down people in the next car,” is past code yellow and is inevitably going to do harm to himself and others.

I wonder if the Metro academy staff taught their recruits that it might be a good idea to smile at people upon occasion, and that not every citizen has murderous intent, or were they too busy screaming at them while forcing them to do push-ups?

No doubt, the attorneys for the Scott family will have found the LV R-J series interesting and will have a number of equally interesting questions for Metro witnesses.

FINAL THOUGHTS: Previous readers of this series will notice that I have been substantially less reluctant to criticize Metro than in past updates. Perhaps the threatened Metro mutiny--they don’t appear to be kidding, nor do they appear to have any sense of humor of which they are aware--has finally convinced me that Metro no longer deserves any benefit of the doubt.

That said, I still understand that I could be wrong about matters great and small. We still know relatively little about the Scott case and every partial revelation of information has raised far more questions and concerns than have been answered. As always, if I am wrong, I welcome contact from Metro officials or individual officers to set the record straight and I will be glad to make any necessary corrections, promptly and prominently. I know that most Metro officers are likely dedicated and honest men and women, but as far as I know, I’ve yet to hear from any. Their insights will be appreciated and their confidence kept.

My thanks to our faithful readers for their comments, support and insight. I hope this series continues to inform and perhaps, to spur the Las Vegas public and their elected officials to action that will correct what appear to be serious problems with their police force. I’ll continue to follow and report on this case, and I look forward to your comments and suggestions.

Posted by MikeM at January 3, 2011 02:54 AM

"...the right against self incrimination applies only to the individuals directly involved. Officers who are witnesses, before, during or after the fact of a police shooting, have no such right."

Unless they have already provided false or misleading information as part of an attempted cover-up. But the solution to that is to immunize those 'witnesses' from prosecution for any - prior - false or misleading statements.

Then they have no excuse not to talk.

This whole thing needs to be approached just like they are all members of organized crime.

Which, it appears, they are.

Posted by: ThomasD at January 3, 2011 11:52 AM

If the possible end result when dealing with the police is your death, then why not change this result with overwhelming premptive gunfire? After all we have the right to defend ourselves from assault regardless of who is assaulting us. This attitude if adopted would see a dramatic shift in police procedures, they might remember their job is to "PROTECT AND SERVE"!

Posted by: David at January 3, 2011 05:16 PM

And Eric Scott have enough illegally obtained prescription drugs in his system to kill the proveribal horse.

It is nice to see that you think that police officers don't have 5th Amendment rights against self incrimination. That is what this is all about.

And this certainly is not a mutiny, as the officers are just exercising their rights. They cannot be compleled or ordered to testify. Therefore they are not resisting or impeding legal authority. Nor are they in "concerted revolt (as of a naval crew) against discipline or a superior officer."

Posted by: Federale at January 3, 2011 05:24 PM

Your comment makes no sense - these officers are not wanting to obey their legal obligations to comply with the possibility of receiving subpoenas and then, on the stand, claiming their 5th Amendment rights on each indiviudal question.

They seem to want to say, f..k you, we won't obey the subpoena because we've already answered the questions elsewhere.

Posted by: Bryce at January 3, 2011 08:38 PM

There is another wrinkle in this pleading the 5th strategy.

In civil court, you can plead the 5th just like in criminal court. If you do, however, the judge has a duty to instruct the jury that they are to infer an adverse inference, meaning that the testimony you would have given would have been incriminating and that it would support the testimony given by witnesses against you.

In other words, if they plead the 5th in the inquest (sworn testimony) then it gets entered in the civil case as an admission of guilt and a confirmation of the plaintiff's witnesses.

Posted by: Phelps at January 4, 2011 08:36 PM

You may hate cops, but they still have 5th Amendment rights. They don't go away because you oppose those rights for cops. You are like the left who claim adherence to the 1st Amendment, but want to arrest anyone who disagrees with them.

If you want their testimony, then you have to waive criminal prosecution. You may not like it, but the 5th Amendment stands in your way.

No cherry picking of Constitutional Amendments allowed.

Posted by: Federale at January 5, 2011 11:50 AM

Federale, you have been full of nothing but a total disregard for the arguments as laid out combined with baseless accusations.

All of which is blatant evidence that you have nothing of substance to stand on.

A weaker argument could not be made. Bravo for discrediting yourself so succinctly.

Posted by: ThomasD at January 6, 2011 01:19 AM