June 23, 2011

The Erik Scott Case, Update 12.2: Litigation and Mutiny

It was in Update 9 “Mindset and Mutiny” on January 3, 2011 (available here) that I first addressed the issue of Las Vegas Metro police officers, led by the head of the Police Protective Association (PPA) Chris Collins, threatening to withhold cooperation, not only with Metro, but with the Las Vegas criminal justice system, if they were asked to submit to adversarial questioning in newly revamped Coroner’s Inquests. Since that post, much has occurred. Speaking for the PPA, Collins has removed all doubt that Metro officers intend to refuse to cooperate with Metro investigations into their official actions and that they also intend to refuse to cooperate with Coroner’s inquests under the newly written rules adopted by the Clark County Commission.

In Update 11, “Heroism and Loathing In Las Vegas” on April 17 (access the Erik Scott Archive in the right hand section of the home page for all Scott articles), I reported on the attempt by the PPA to change Nevada state law in such a way that the Clark County DA’s office—or the Coroner—would have absolute authority to simply dispense with a Coroner’s Inquest in any police shooting. Testifying before the Assembly Governmental Affairs Committee on April 15, Collins shocked those present by announcing that William Mosher and Joshua Stark had been given awards for heroism by the National Association of Police Organizations. Collins, a member of the board of directors of that organization, nominated them for the “honor.” Conspicuously absent was former Metro Officer Thomas Mendiola, who with Stark and Mosher, shot and killed Erik Scott. Mendiola had been arrested for knowingly giving a firearm to a convicted felon and has since been dismissed from Metro. Reportedly due, at least in part, to Collins’ arrogance, the Committee killed the bill and several legislators were reported to have commented that it would be dead at any time in the future as well.

This seemed, at the time, to be the end of this part of the Erik Scott story, but as this update will reveal, it was not. The PPA is now trying to get a local judge to halt Coroner’s Inquests under the new procedures (here). The first such inquest is scheduled for July 12. Sheriff Gillespie has commented (here) that he has 18 officers who cannot return to their regular duties until the inquests scheduled due to their actions have been held. He has had no further comment on the matter.

As usual, Collins has not been silent on the matter. Collins’ comments:

"Our officers' rights are being violated. Their constitutional protections are being stepped on."

"Now that they've changed the rules, it's no longer fair."

Maggie McLetchie of the American Civil Liberties Union of Nevada has a differing view:

“The PPA has consistently throughout the process taken a position that they are above the law.”

The most fundamental change in the inquest process is the appointment of an “ombudsman” whose role will be to represent the families of the victims of police shootings and the interests of the public. As I’ve pointed out in past updates, this is an inherent conflict of interest. However, the ombudsman does have the power to ask questions of police officer witnesses in inquests. It is this simple fact that has the PPA worried. There are a variety of other changes that are certainly displeasing to Metro and the PPA, but this is the largest sticking point, hence the PPA legal action to halt inquests in their tracks.


As citizens, police officers retain all of their Constitutional rights. They may, if they choose, invoke their Fifth Amendment right against self-incrimination (commonly known as “taking the 5th”). The new inquest procedures do not--cannot—in any way infringe on this right. In cases where they are involved in shootings, Metro officers are expected to do several things:

(1) Write complete and honest reports about their actions.

(2) Speak with Metro detectives and/or superior officers, as often as required, about their reports and their role in the events being investigated, being honest and complete in their statements.

(3) Speak with any other properly constituted authority having a role in the process, as often as necessary, also being completely honest and forthcoming in their statements.

(4) Testify, under oath, in a Coroners Inquest, which is required by law in Nevada.

(5) Testify, under oath, in any other kind of properly constituted hearing, including criminal and civil hearings, as often as necessary.

Officers are, in fact, expected to do all of this as necessary regarding any of their official actions. None of this is unique to Metro, Las Vegas, or Nevada. While Coroner’s inquests are not universal, they are held in a great many jurisdictions across the nation. This is the minimum expected of any police officer and rightly so.

We pay police officers to enforce the law. Writing honest and complete reports and honestly and completely testifying about their official actions is an integral part of being a police officer. Every officer understands this and accepts it. These obligations are taught from the earliest days of their basic police academies and constantly reinforced throughout their careers.

All of this makes perfect sense. Should we not expect police officers to write complete and honest reports about their official actions? Should we not expect them to fully cooperate with their employer and other agencies in recounting their official actions? Should we not expect them to testify honestly and completely, as often as necessary, about their official actions? Of course we should, and any suggestion to the contrary is patent nonsense.

So what’s the problem? Why is the PPA so upset? Two words: adversarial questioning. For the past 30 years in Las Vegas Coroner’s Inquests have been mere formalities. Questioning was entirely done by the District Attorney, and while relatives of shooting victims have been able to submit questions—in writing--it has been solely up to the judge if any have been asked. For some 200 inquests, the results were virtually uniform: no culpability for the police, and in the single exception, the DA did not prosecute. The locally televised inquest in the Erik Scott shooting exposed the one-sided, cozy relationship between the DA and Metro to a public that was finally paying attention. Almost universal outrage, and the revised inquest procedures were the result.

The fears of the PPA are clearly expressed by Collins who asserts that the officer’s constitutional rights are being violated and that the process is no longer fair. Ridiculous. For the first time in decades, officers will be required to fully do their duties, just as innumerable police officers around the nation do every day. Their constitutional rights are not in the least infringed by asking them to do their duties, the duties they voluntarily sought and sacrificed to do. What Collins and the officers he represents fear is taking the 5th on the witness stand.

Regardless of their motives, no one, officer or civilian alike, may ignore a subpoena to appear in court, whether a criminal or civil trial or an inquest. Anyone failing to honor a subpoena may be arrested and brought before the judge who will demand that they explain why they should not be held in contempt of court. It their reasons are not convincing, the judge may jail and fine them at his discretion. Unless Las Vegas judges are willing to abandon their duty in this regard, PPA threats to refuse to show up are hollow indeed, though it’s possible that they might be foolish enough to try, at least as a publicity stunt. I suspect that if they do, they’ll quickly discover that public sentiment is not on their side.

Once sworn to tell the truth, an officer has a choice: he can testify truthfully, commit perjury, or take the 5th. If he has done his duty properly, he can testify truthfully and answer any question, adversarial or otherwise, without fear. If he has not done his duty properly, his choices are somewhat more restricted. If we assume that he does not want to testify truthfully—and it is certainly possible that the PPA is making this assumption—he can either commit perjury or take the 5th. The consequences for committing perjury include losing one’s career and one’s liberty. And while there is no question that some officers have lied, and that some will lie in the future, it’s reasonable to believe that most police officers would avoid this option. However, taking the 5th is also problematic.

What must any citizen think about a police officer who, in explaining his official actions, the actions he is paid to do--his duty--takes the 5th? Wouldn’t it be reasonable to assume that he believes that if he testifies truthfully and completely, he may be criminally prosecuted? If he believes it, why shouldn’t the public believe it? Why shouldn’t the public be asking Sheriff Gillespie why he is hiring and retaining officers who take the 5th when asked about their official actions while under oath?

It is true that when a citizen takes the 5th Amendment, judges will instruct a jury not to consider that fact in their deliberations. Human nature being what it is, they will anyway, one way or another. There is no such prohibition for the public when a police officer takes the 5th and refuses to testify about what he has done on their behalf. The public is free to draw any conclusion they choose, and the most likely conclusion is that the officer has something to hide, something that would get him in serious trouble if it was known. When these officers have shot and killed a citizen, the logical conclusion is that they do not believe they were justified, which might mean charges of manslaughter, negligent homicide or worse. One officer taking the 5th would be bad. Several officers doing it—particularly in any single case or related group of cases--would be potentially deadly to the careers and lives of officers from the newest patrolman to the Sheriff of Metro. This is what the PPA and the officers it represents fear. This is why they want to stop the inquest process at any cost.

The process is no longer fair to police officers? To use a metaphor with which citizens of Las Vegas will be intimately familiar, until now, the deck has always been stacked in favor of the house. With the new inquest procedures, the marks aren’t in control, not by a long shot, but they at least have a statistically significant chance of beating the house. That’s what the PPA, and almost certainly the leadership of Metro, fears.

We will, of course, continue to report on the process of the PPA’s legal action and its effect on the inquest process.


Among the comments accompanying the June 20 Las Vegas Review/Journal story was this comment by “Plastron”:

“Plastron wrote on June 20, 2011 08:45 PM:
You have to remember, The word "Protective" in their title, "Las Vegas Police Protective Association," means to PROTECT the "POLICE" (especially at inquests). Apparently if they want to cook something up for an inquest they feel it's something like their constitutional right to arrange/rearrange the facts as they see fit. And they are SO GREAT (at least in their own minds) that nobody "NOBODY" should be asking them questions they don't want to hear.

On the "Ziggy62" post about cell phone cameras. Interesting to note, about three months ago I ran into a former law enforcement person I know, we talked about the COSTCO shooting. He said Metro did confiscate some cell phones at the COSTCO shooing. "I'm" not saying it's true, he did, he's connected.

At any rate, PPA, keep it up . . . you are digging your own grave. I did a 25-year career in law enforcement (not out here) and I NEVER saw the crap pulled in that 25 years that I've read about out here (and, by the way, experienced).”

Of greatest interest is his comment that “a former law enforcement person” told him that Metro did confiscate an unknown number of cell phones at the scene of Erik Scott’s shooting. I do not know “Plastron,” nor can I vouch for the accuracy of this assertion. It has always been a source of some concern that in our digital age, no citizen videos of at least the aftermath of the shooting have surfaced. Part of this is no doubt due to the fact that only a handful of seconds elapsed from the moment the officers first laid eyes on Erik Scott until he was face down on the pavement, dying or dead from the seven rounds they fired in the middle of the crowd of people leaving the Costco store at their order. However, the absence of any citizen video—to say nothing of video from the many police cars, present, the police helicopter, and from Costco sources—is disturbing. If the assertion of “Plastron” is true, we may know the reason, at least as far as citizen video is concerned.

I would encourage “Plastron” or anyone who knows him to get in touch with me. I’d be very interested in verifying this account, if possible. My contact information is available in the “Contact/About” section at the top right of the home page.


As I noted in Update 12, the Erik Scott civil case proceeds, despite the predictions of some that it would summarily dismissed. The outcome of the battle over inquest procedure will not have a direct effect on that case, but it will determine whether Las Vegas police officers will be held to account, just as officers are every day around the nation, for their official actions. For thirty years, this has not been the case. In a very real way, the outcome will determine whether Metro officers truly are above the law.

Posted by MikeM at June 23, 2011 09:10 PM

Mike, you sir. Are a great American. Thank You for your efforts.

Posted by: LAZRTX at June 24, 2011 07:14 AM

It is true that when a citizen takes the 5th Amendment, judges will instruct a jury not to consider that fact in their deliberations.

Slight clarification -- in a criminal matter, the judge will instruct the jury not to consider that fact. In a civil trial, the jury will instruct the jury that they may take an adverse inference, meaning that the jury can assume that if the witness had testified, he would have been forced to testify exactly like the other side.

So if they take the fifth in an inquest under oath, that is evidence that may be used in a civil trial to infer that what the Scott witnesses claim is 100% correct.

Posted by: Phelps at June 24, 2011 11:09 AM


Correct, however...

"While it is constitutionally permissible to draw an adverse inference from a party’s invocation of the Fifth Amendment in a non-criminal proceeding, the party cannot be found liable solely on basis of reliance on Fifth Amendment. Assertion of Fifth Amendment in answer to complaint does not constitute an admission of the allegations and does not relieve the plaintiff of the need to adduce proof."*

Hence, there must be other evidence.

(*taken from my legal adviser, back in the day....been there, done that)

Posted by: Buck Turgidson at June 24, 2011 12:55 PM

Dear Phelps and Buck:

Thanks for the additional information! That's just one of the many things Bob and I appreciate about CY readers.

Posted by: Mike McDaniel at June 25, 2011 12:18 PM

Any obligation under law to participate in any hearings, adversarial or not, are restricted by the Constitution and the right not to be required to testify against oneself.

Therefore all your claims about mutiny, which is the failure to obey lawful orders by a member of the military, are falacious and slanderous. No police officer, much less a member of LVMPD, can be held liable for mutiny for failing to appear or testify at any hearing if that officer choses to exercise his rights under the Constitution.

This issue proves that so-called gun rights advocates don't care for the Constitution as a whole, just one part of it. Once one part of the Constitution presents an obstacle to their agenda, the Constitution goes out the window.

Posted by: Federale at June 26, 2011 07:08 PM

Federale, anyone can appear and please the Fifth. The question is whether cops have the right to ignore subpoenas altogether. Do ordinary citizens also have this right, and if not then why not?

Posted by: ctb5 at June 27, 2011 04:15 PM

Dear Federale:

I hope you know that my use of the term "mutiny" as it refers to the Metro Police and their union is metaphorical. I am not saying that what they are threatening to do is a mutiny in the strictly classical, military sense. Rather it is a betrayal of their duty, of the lawful authority loaned them by the citizens of Las Vegas. In the sense that refusing to do their duty is a rebellion against lawful authority, they are certainly engaging in potential mutiny. Refusal to obey lawful orders is properly understood as insubordination.

You are correct in asserting that no officer will be held liable for mutiny for refusing to honor a subpoena, but that's not what I said. I made clear, I believe, that failure to honor a subpoena is punishable by a citation for contempt of court.

Regarding your comment about guns and guns rights, I'm sorry, but I have no idea what you're saying as the post to which you are responding says or implies nothing at all about that issue.

That said, thanks, as always, for your comments.

Posted by: Mike McDaniel at June 27, 2011 05:52 PM
"While it is constitutionally permissible to draw an adverse inference from a party’s invocation of the Fifth Amendment in a non-criminal proceeding, the party cannot be found liable solely on basis of reliance on Fifth Amendment. Assertion of Fifth Amendment in answer to complaint does not constitute an admission of the allegations and does not relieve the plaintiff of the need to adduce proof."*

Sure, which is why I said that the instruction would be to assume that his testimony would match that of the plaintiff's witnesses (the original proof.)

Invoking the fifth with the absence of any other evidence does not meet the burden of proof for preponderance of the evidence. Invoking the fifth in the face of testimony of a tort being committed is enough to show that liability by the plaintiff is more likely than not (i.e. prove by a preponderance of the evidence.)

Posted by: Phelps at June 29, 2011 04:52 PM

What you are trying to describe is insubordination and failure to flow lawful orders. Police officer and other government employees can certainly be disiplined, even dismissed, for those actions.

Mutiny is a loaded and inaccurate word to describe their actions.

If what they were ignoring was a subpoena, then the court can presumably hold them in contempt and issue warrants. I am thinking that a Cororner' Jury cannot do that. If it could compel attendance and testimony, then, of course, they would do that. However any statement by the officers could not be used against them.

But, in any event, it comes down to them exercising their right against self incrimination. That right holds even for police officers. It is that right that you and others are riding roughshod over. You think that the 2nd Amendment and political issues around it trump the 5th Amendment. Pretty simple and straightforward.

Posted by: Federale at July 1, 2011 11:35 AM