The Erik Scott Case, Update 10.3, Stealth Legislation and Misdirection

Since the posting of Update 10.2, additional information relating to the issues it raised has come to light in the local Las Vegas media (here). Officers Mark Hatten and Timothy English, who were placed on administrative suspension following the taser death of Anthony Jones have been put back to work in unspecified jobs that allow no public contact. In addition, most of the approximately one dozen officers similarly suspended over the last five months after fatal shootings or in-custody deaths have also been placed in similar, unspecified duties.

Kathy O’Connor, Sheriff Doug Gillespie’s Chief of Staff said:

“There’s really no reason we need to leave these officers sitting at home. We’re just looking to be as efficient as we possibly can.”

O’Connor also observed that the practice of keeping officers off duty until after a coroner’s inquest was of long standing and common in law enforcement. She characterized the practice as giving the officers time for counseling and emotional recovery.

According to Clark County Assistant Coroner John Fundenberg, inquests will take place from four to six months after an incident. Two decades ago, they often began in as little as two weeks, and in recent years, within six weeks. Commenting on the changes in the process wrought by the Clark County Commission, Fundenberg, who has apparently had his sense of irony surgically removed as a condition of employment, said:

“People didn’t believe the district attorney acted as an impartial party in the past. I disagreed with that, but they were accused of being partial.”

Multiple cases awaiting a coroner’s inquest will have to wait until late May, at the earliest, though Fundenberg hopes they will be caught up by the end of the year.

Chris Collins, President of the Las Vegas Police Protective Association--the police union--did not depart from the union line. He said that participation in inquests would open officers to civil liability. Collins claimed that four unnamed attorneys came to that conclusion.

“We warned them, if you will, that if they made this process so adversarial we would not participate.” Collins added “It’s a shame. The process before worked. It was open to the public. And now, in my opinion, the tail wagged the dog and the small vocal minority has taken away what was once an open process.”

ANALYSIS:

DOES THE PPA REPRESENT THE BEST INTERESTS OF THE CITIZENS OF LAS VEGAS? One expects a union boss to do and say whatever is necessary to advance union interests above all else, however, Mr. Collins not only engages in substantial misrepresentation, he departs from the truth in this pursuit. Police officers are always at risk of civil liability for their official acts, and the criminal justice system of which they are a part is, by design, adversarial. Anyone suggesting that police officers are somehow being unfairly treated by being expected to play their societal and statutory role in the very system they labor to serve and uphold is either badly misinformed, or is purposely misleading the public. Any officer unable to stand up to adversarial questioning is simply unfit for duty.

Coroner’s inquests are not a whim of unnamed forces out to harm innocent Las Vegas police officers, they are mandated by Nevada law and in large part regulated by local county commissions. In other words, they exist as an extension of the will of the people of Nevada. Despite the suggestions of some, coroners, and coroner’s inquests, exist throughout the nation and all unattended deaths, whether they have police involvement or not, are examined. Police testimony at inquests is common.

The “small, vocal minority” Collins decries was sufficiently large to motivate an unprecedented change by a county commission previously characterized by doing little or nothing to change the status quo, and to at least some degree, flies in the face of powerful, entrenched local interests, including Metro and the police union.
Collins’ suggestion that a previously “open process” has been “taken away” is simply false. The new inquest rules require that each inquest be broadcast live on the Clark County public access TV channel. Collins surely knows this, and more.

BEHIND THE SCENES:

Mr. Collins’ misleading of the people of Las Vegas is yet more egregious and cynical. The PPA is energetically lobbying for a bill sponsored by Assemblyman John Hambrick (R, Clark County, District 2). Assemblyman Hambrick should know better. His background information on the Legislature site indicates that he is a “retired investigator,” who apparently worked in federal law enforcement investigating fraud. The bill had its first reading on March 18, 2011 and has been referred to the Committee on Government Affairs. It reportedly has not yet been considered by that committee, but it is likely that it will be. Here is the bill, from the Legislature’s pending bill site, in it’s entirety.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 259.010 is hereby amended to read as follows: 259.010 1. Every county in this State constitutes a coroner’s district, except a county where a coroner is appointed pursuant to the provisions of NRS 244.163.

2. The provisions of this chapter, except NRS 259.025 , 259.050 and 259.150 to 259.180, inclusive, do not apply to any county where a coroner is appointed pursuant to the provisions of NRS 244.163.

Sec. 2. NRS 259.050 is hereby amended to read as follows: 259.050

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. In all cases where it is apparent or can be reasonably inferred that the death may have been caused by a peace officer while acting in his or her official capacity:

(a) Through the use of force, including, without limitation, physical force, the use of chemical agents, electric force or the use of a firearm; or

(b) As a result of a motor vehicle accident caused, in whole or in part, by an action of the peace officer, ␣ the coroner or the coroner’s deputy shall notify the district attorney in the county where the inquiry is made and the district attorney shall investigate the death as a homicide.

4. The holding of a coroner’s inquest pursuant to subsection 1 or 2 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.

[4.] 5. If an inquest is to be held, the district attorney shall call upon a justice of the peace of the county to preside over it. The justice of the peace shall summon three persons qualified by law to serve as jurors, to appear before the justice of the peace forthwith at the place where the body is or such other place within the county as may be designated by him or her to inquire into the cause of death.

[5.] 6. A single inquest may be held with respect to more than one death, where all the deaths were occasioned by a common cause.

7. As used in this section, “peace officer” means any person upon whom some or all the powers of a peace officer are conferred pursuant to NRS 289.150 to 289.360, inclusive, when carrying out those powers.

Sec. 3. Sec. 4. 259.200

NRS 259.200 is hereby repealed. This act becomes effective on July 1, 2011.

What does it mean? It’s quite simple. Inquests involving police officers are required unless “the district attorney or a district judge certifies that no inquest is required.” In other words, it’s up to the DA, not and, but OR, a district judge to decide whether a given police-involved inquest--or any police-involved inquests at all--take place.

Considering the history of the DA’s office in Las Vegas, it may not be unreasonable to believe that any police-involved death that was not obviously absolutely and conclusively fully justified would not be held. In fact, it would not be stretching the bounds of credulity to think that there would never again be a police-involved inquest in Las Vegas. If this is not the motivation behind the law, what could the motivation be? To save money? I’m sure that those pushing the law would cite that reason, but there are certainly areas of government that are far more expensive and wasteful and the timing of this particular bill is, should we say, interesting.

I have contacted Assemblyman Hambrick to ask him to clarify his intentions regarding this bill, but have yet to hear from him. If he does respond, I’ll relay his comments in their entirety.

If the DA’s office and the Corner’s office are aware of this bill and the push to pass it, and it may not be unreasonable to believe that they are not only aware of it, but may also be pushing it, Mr. Fundenberg’s comments take on less an air of opinion and more an air of misdirection.

If this bill passes, there are several harmful effects, all no doubt intended:

(1) The PPA and Metro officers will have established that they are in charge of Clark County, Nevada, and not its citizens or Sheriff. They will have demonstrated the power, through threat, intimidation and the exercise of deceptive political power to bend the law to their whims, not to honor their oaths to uphold and enforce it. They will be encouraged to be even more lawless.

(2) Where law enforcement is concerned, the minimal transparency that now barely exists will be extinguished. In Clark County, it is only coroner’s inquests that have provided the scant factual information available to the public when police officers kill citizens, something that occurs with alarming frequency. Absent inquests, the public will know nothing other than what Metro is willing to release. In essence, Metro will investigate Metro--or pretend to--and will inevitably conclude that Metro is blameless in every instance, just as it has for more than a decade, with a single, small exception.

(3) Knowing, finally and beyond doubt that they are the masters of the public rather than the servants of the public, Metro officers will hardly behave in a more restrained, professional manner. The public may come to universally fear and despise their police force ( there are credible indications that much of the public already does). No sane police administrator or police officer could possibly welcome this state of affairs which is incredibly dangerous for the police and the public.

(4) Knowing that they will not be held accountable for the deaths of citizens, Metro officers may be involved in an ever-increasing number of them.

SUSPENSIONS:

Regarding returning officers to limited duty, Ms. O’Connor is partially correct. Officers relieved after a shooting or other death are on paid leave, and are removed from duty, in part, to allow for recovery and counseling. In fact, many agencies require psychological counseling and the written authorization of a psychologist before officers are allowed to return to duty. However, equally important is the protection of the public and its interests. Officers must remain out of contact with the public until a police agency can be certain that they have not committed a crime. In these cases, such crimes would virtually always be felonies. Officers under suspicion of criminal wrong doing, or who are convicted felons may not serve as law enforcement officers. Only until an inquest has been completed and the involved prosecutor has clearly ruled on whether an officer will be charged can this be known with certainty. In addition, police agencies must be reasonably certain that an officer is physically and psychologically fit to return to duty. Any competent police executive must see that all of this is done to avoid potentially ruinous civil liability for his officers, his city or county, and himself.

In Las Vegas, however, it would appear that policies and procedures considered to be current best professional practice elsewhere have little or no application. The new inquest procedures have been established since the beginning of the year. Why is it taking so long to hold inquests? Ombudsmen have been chosen (for discussion of the lack of wisdom of and likely motivation for that policy, scroll down for Updates 9 and 9.2), and there is apparently nothing else to be done in preparation, so what’s the impediment?

WHAT’S TAKING SO LONG?

One possibility is that Metro is waiting until Assemblyman Hamrick’s bill is passed and takes effect on July 1. At that point, one can argue all they like that pending cases are not included in the law because they took place prior to July 1. In that the US Constitution forbids ex post facto laws, this may indeed be the case, but in Las Vegas, when the DA and Metro speak, who can stand against them? Even if a citizen or the ACLU filed a civil suit, it would likely take years to adjudicate and by then, witnesses will have moved away, even died, memories will have dimmed, and pending cases, like so many other cases in Las Vegas history, will have gone down the Clark County memory hole.

Absent that, the primary impediment would appear to be the Metro officer’s union and the lack of an effective, professional response by Sheriff Gillespie, the Clark County Commission and the courts. To what should they respond? I’ve gone into this in significant detail in Updates 9 and 9.2, but to recap:

An integral part of every police officer’s duty is to write complete, factual and honest reports about their official actions and to testify, as often as necessary and in as many different venues as necessary, about those actions. Officers are also expected to cooperate fully in all investigations conducted by their agencies. There is nothing unusual in any of this, any more than expecting fire fighters to participate in all aspects of fighting fires and cleaning and maintaining their equipment afterward would be considered unusual. Suggesting, as Collins has repeatedly done, that police officers are being somehow abused by being required to do this basic, fundamental aspect of their duties is simply wrong, and if Collins, knowing it is wrong persists, deceptive and outrageous.

As I’ve previously noted, police officers retain their full constitutional rights, and may, if they consider it necessary, retain an attorney and even invoke their Fifth Amendment right against self-incrimination if they wish, but none of this absolves them of their duty or protects them from punishment for failing to do it.

Nevada law assumes that officers will cooperate in internal investigations and allows their agencies to charge them with insubordination if they refuse. Insubordination is most commonly defined as refusal to obey lawful orders, and officers may be disciplined for insubordination relating to any aspect of their duties. Sheriff Gillespie certainly understands this, yet appears to be abiding insubordination.

What’s at stake is who--if anyone--is in charge of the Metro Police, and whether the Las Vegas Criminal Justice system can function as designed or whether it will be controlled by special interests, in this case, the Metro Police and their union.

WHAT SHOULD HAVE ALREADY HAPPENED:

The day after the Union announced its mutiny against the lawful authority granted the Sheriff by the public, Sheriff Gillespie should have announced, to the public and in writing to every officer, to be read by every shift and division commander to their officers, the following:

(1) That every employee of Metro is expected to fully cooperate with official investigations, and is ordered to do so.

(2) That every employee of Metro is expected to write full, complete, and accurate reports of their official actions, and is ordered to do so.

(3) That every employee of Metro is expected to fully honor each and every notice or subpoena to appear in any judicial hearing relating to their official acts, to include, but not limited to: Coroner’s Inquests, preliminary hearings and trials. Every employee of Metro is ordered to do so.

(4) That every employee of Metro is expected to honestly and completely testify when directed at such hearings, and is ordered to do so, but retains all of their rights under the Nevada and US Constitutions.

(5) Any officer may invoke their right against self-incrimination, but those who do will be subject to immediate suspension and internal investigation.

Any officer refusing to obey these lawful orders should be immediately charged with insubordination, relieved of duty without pay, relieved of their gun, badge and credentials, and subjected to termination proceedings. If this seems harsh, consider that these orders are merely confirmations and reflections of what honest, professional officers are expected and required to do, and on a daily basis do everywhere else in the nation.

And it is entirely reasonable to immediately suspend and investigate any officer who “takes the 5th.” This is not a violation of their rights or in any way underhanded. In criminal cases, taking the 5th may not be held against a criminal suspect at trial, but this protection does not apply to administrative matters where all that is at stake is a job. Insubordination and willful neglect of duty are not protected by the Bill of Rights, nor is concealing knowledge of a crime, particularly where an officer is not directly involved, but is merely a witness before, during or after the fact.

And consider carefully what is happening when an officer takes the fifth: A police officer is saying that if he tells those who hire and entrust great power to him--the public--how he is using that power, he could be convicted of crimes! If a police officer who is paid to be knowledgable about the law believes that, should we not take him at his word and ask what crimes he believes he has committed? Wouldn’t any police officer ask such questions of anyone he suspected of committing crimes? Is that not what he is paid and expected to do?

Further, the Sheriff should have conferred with the chief judge of the Las Vegas courts and reached an agreement that any officer refusing to honor a subpoena to appear at an inquest or any other judicial proceeding will be immediately arrested and brought before the appropriate judge to show cause why he or she should not be held in contempt of court. If their explanation is union boilerplate, or otherwise without merit, they must be put on the witness stand and afforded the opportunity to do their duty. If they refuse to take the stand or refuse to answer questions, they should be immediately jailed and fined. This too should have been disseminated to the public and to every officer.

WHAT SHOULD HAPPEN:

(1) Any effort to subvert Nevada law to allow corrupt officials to avoid their duties, obstruct public transparency, and to allow potentially guilty parties to escape detection and prosecution must be defeated. Police reports are public documents.

(2) It must be made, once and for all and unmistakably, clear to the union and its officers who is in control of law enforcement in Las Vegas and Nevada.

(3) The public must take back control of their politicians and of law enforcement.

(4) A complete and professional outside review of Metro should be done and every unprofessional, corrupt influence removed and prosecuted as appropriate.

If transparency is eliminated, if corruption and criminal wrong-doing by the police and others is not exposed and prosecuted, it can only be because the Sheriff, the police and local and state politicians want it to be that way. Absent removing the offending elements via the ballot box, moving to a state or city where the rule of law holds sway may be the only rational option.

As always, any misrepresentation or misstatement of fact in these pages is unintentional and may result from a lack of complete, factual information in the hands of Metro and related agencies. I continue to invite contact from representatives of Metro or any other involved agency or individual. I will keep their confidence and promptly and prominently correct any inadvertent error, and will continue to report on and analyze new developments.