The Erik Scott Case, Update 13.2 Stalling and Consequences

For some time, the updates in the Scott case have dealt with issues not consistently directly related to the outcome of that case. I've focused on issues such as attempts by the Metro Police Protective Association (union) to do away with the newly minted inquest rules, and bizarre cases of Metro officer misbehavior and brutality that tend to illustrate the incompetent and corrupt culture of Metro from the lowest officer on the street to the Sheriff, Doug Gillespie.

This update will deal with two primary issues: The continuing case of Officer Derek Colling who beat and falsely arrested Mitchell Crooks for filming what was apparently completely proper police behavior, and the continuing efforts of the PPA to shelter Metro officers from having to fully account for their actions when they kill citizens.

However, on Wednesday, August 17,2011 I will publish Update 14, which is quite a lengthy analysis of Metro's actual interviews of the officers that shot Erik Scott. While long, it is very much worth your time. Until I was able to obtain copies of Metro's official reports and related documents in the Scott case, my only sources of information were the testimony of officers at the inquest, media accounts, and information gathered from willing sources in informed positions. What the metro reports reveal is very much in line with my earlier analysis, but is even more disturbing. Metro's culture and behavior is bizarre and unprofessional beyond anything I had previously imagined. Don't miss Update 14.

Before I begin, here are the links to previous updates and other sources quoted in this update:

(1) Go here for a Las Vegas Review-Journal story about a sort of half-disposition in the Colling case.

(2) Go here for a Review-Journal story on the continuing obstruction of the new inquest process by the PPA.

(3) Go here for a Las Vegas Sun article on the battle over the inquest process.

(4) Go here to Update 10.2 where I first addressed the issue of Off. Colling.

(5) Go here to Update 11.2 for a follow up on that case.

(6) Go here to Update 10.3 where I began addressing the attempts by the PPA or interfere with the inquest process.

(7) Go here to Update 12.2 for continuing information on that issue.

(8) Go here to Pajamas Media where I published an article on the law relating to citizens photographing police officers. The Colling case is mentioned in that article.

(9) Go here for a Review-Journal article on the potential resumption of inquests.

NOTE: Every article relating to the Scott case is available in our dedicated archive. Go to the right hand side of the CY home page. It's under "Archives by Category": "Erik Scott Case".

THE MITCHELL CROOKS CASE:

On July 29, the Review-Journal reported that Mitchell Crooks, the victim of a beating and false arrest by Metro Officer Derek Colling, received notice from the Metro Internal Affairs Bureau that Colling violated Metro policies. It was also reported that Colling has been on paid suspension since April 1, which was apparently not previously made public. However, the internal investigation is still ongoing, and Metro is not releasing the specific policies Colling may have violated, nor has any punishment—if any—apparently been decided.

Crooks is suing Colling and Metro, as are the parents of a 15 year old man Colling shot and killed. In 5 and ½ years working for Metro, Colling has shot and killed two citizens, much like William Mosher who in about the same time frame, shot three, killing two. Crooks reported that in June he was stopped and cited for no insurance by an officer who apparently recognized him. According to Crooks, that ticket was dismissed, which would tend indicate that Crooks did have insurance or the judge involved was otherwise convinced the charge had no merit.

Several lower-ranking Metro officers were not on Colling's side. One said: "The majority of us think Colling made a mistake. All the officers I talked to understand that citizens will see this video, and yeah, we know it looks bad."
ANALYSIS:

The beating and false arrest of Mitchell Crooks took place on March 20, 2011. As I mentioned in earlier updates, Metro seems to take an unbelievably long time to deal with disciplinary issues. It is nearly five months after the incident and the matter is not resolved? In professional Law Enforcement Agencies (LEAs), such things are commonly handled in days or weeks at most.

The process would normally work like this: When reading reports at the end of a shift, a supervisor (usually a Sgt.) would recognize a problem and begin an informal investigation. If warranted, he would begin a formal investigation, and this would normally be started within a day or two. In smaller agencies without an internal affairs unit, the shift supervisors (Sgt/Lt.) would normally complete the investigation, identify which specific policies/rules had been violated, and recommend appropriate punishment. Their report on the incident and recommendations would normally be forwarded to their division commander (usually a Capt. or higher) and then to the Chief who would review and alter, or sign off on, the recommendations of the shift supervisors and division commander. For smaller, more routine violations of policy, this could be completed within just a few days. For more serious incidents which could result in an officer's firing, a few weeks might be required, or a month at the outside.

It's important to keep this in mind for several reasons. Professional agencies can't afford to keep officers in limbo for any length of time. They don't have the resources and it's terribly damaging to morale, not only for the officer(s) involved, but for every officer to realize that they might be hanging over the precipice for months, perhaps years, because higher ranking officers can't make decisions or are testing the political winds. It's also terrible public relations. The public has to wonder why things are taking so long. In the real world of work, it doesn't take months, even years, to figure out if someone has done something wrong, or realizing that they have, to assign appropriate and rational discipline. Even if the public doesn't understand the workings of police agencies, they know that when things take so long, something is fishy. This is a state of affairs that no professional LEA welcomes for any reason.

Why has this matter taken so long? It would not be unreasonable to believe that Metro is so unprofessional, so corrupt that they are simply unable to do in months what other LEAs routinely accomplish in days or weeks. One might also be tempted to believe that something underhanded is afoot, or that Metro is trying to run out the clock and allow this case to go down the Vegas/Metro memory hole like so many others.

As with the Erik Scott case, we also see what is apparently thuggish harassment of Mitchell Crooks by other officers. As regular readers will recall, in the aftermath of the Scott killing, many Las Vegas Residents put magnetic remembrance ribbons on the rear of their vehicles, and many were repeatedly followed, stopped and cruelly taunted and made to fear for their lives by Las Vegas and Henderson officers, including Erik Scott's girlfriend, Samantha Sterner, who was standing mere feet away when Scott was gunned down.

As I noted in past updates, professional officers do their best to avoid people who are involved in ongoing litigation. If they have no choice but to act, they do so professionally, briefly and with witnesses, but smart officers know that even the appearance of harassment or retaliation is terribly damaging, not only the ongoing cases, but to the reputations of police officers everywhere. In addition, officers understand that they might be criminally liable for tampering with witnesses. Apparently Metro has no such professional worries or fears.

Note that one unidentified officer said that Off. Colling "made a mistake," and that they realize the video "looks bad." That officer is reported to be speaking for the majority of Metro officers. There is indeed a code within law enforcement whereby officers tend not to speak ill of other officers, particularly to the public and press. This is both good and bad. On one hand, the public and particularly the press, don't understand the stresses and demands of the job and are often quick to misunderstand or take innocent comments in the worst possible light. Being circumspect about such things is a necessary and rational bit of protection for all officers against people willing to blow minor mistakes out of proportion and false, malicious charges. On the other hand, officers deserving of discipline might be given unwarranted cover.

Consider that this unnamed officer was willing to say—for public consumption--that Colling made a mistake. This likely means that among themselves, officers are saying the Colling really screwed up. Likewise, saying that the video looks bad is very much an understatement. Professional officers know that the video looks absolutely horrible, because any citizen might see them selves in Crooks' position. They have to wonder: If this guy is out there attacking citizens for no reason, how many more are doing the same? What happens to me if I run into one of them?

Speaking from an officer's perspective, when I saw the video, the first thought that came to mind was "this guy's screwed," meaning he was obviously and unmistakably deserving of being fired and sued. Speaking from a supervisor's perspective, there was no doubt in my mind—having no idea of Off. Colling's past—that Colling should be fired, not only because he was obviously unfit to be a police officer, but because to keep him on the job would subject his supervisors and Metro to unnecessary liability for negligent retention. Obviously, Metro doesn't think this way.

It might also be worthwhile to wonder about the minority of Metro officers who apparently don't think that Colling made a mistake. How large, exactly, is that minority? Five percent? Twenty-five? Do they believe that Off. Colling's behavior represents the reasonable exercise of professional police behavior? That Metro—or any LEA—might employ people who think that Off. Colling is blameless is very, very disturbing.

THE OBSTRUCTION OF INQUESTS:

By the end of July, nine months had passed since the last coroner's inquest, conducted under the old, rubber stamp rules. Since the implementation of rules giving the survivors of Metro killings substantial rights and the ability to ask questions of officers, not a single inquest has taken place.

Initially, the PPA swore that officers would not cooperate, in essence that they would ignore subpoenas, and tried to trick the legislature into passing a law that would have allowed the DA or Coroner to simply decide not to have inquests. That law was written in such a way that it would have applied only to Clark County. When that failed, the PPA made its threats of officers refusing to testify or otherwise do their duty more clear and strident and filed a lawsuit to block implementation of the new rules.

At first, the Clark County Commission canceled all scheduled inquests and planned to wait out the legal process. However, on July 25, 2011 the Review-Journal reported that 14 inquests were on hold (two more officer-involved shootings have since occurred) and speculated that the legal battle wouldn't be resolved until at least 2013, by which time the number of inquests would have more than doubled.

County Commissioners have expressed frustration on behalf of the survivors of victims of police shootings. Commissioner Steve Sisolak has even suggested that officer shootings be adjudicated by a grand jury. Sheriff Gillespie has suggested that he might allow his internal use of force board to clear officers and return them to duty regardless of whether an inquest is ever held.

The usual suspects maintained their usual thinking. PPA head Chris Collins said: "We're saying this process is not fair to ... anybody carrying a gun and a badge in this town." Collins continues to suggest that inquests be abandoned and that the DA be the sole official deciding on criminal charges. Collins then went even further than previously. According to the R-J story: "Even if the coroner's inquest returned to its previous form without an ombudsman, Collins said he doubts officers would ever participate, especially since they face no repercussions if they don't. 'I think the damage has been done,' Collins said."

DA Rogers, whose office has never criminally charged a Metro officer in the death of a citizen, also wants to do away with inquests in favor of making the decision alone. The R-J said that Rogers would "post every report and piece of evidence on a website for public review." Rogers made his familiar complaints about the work necessary to conduct inquests, and suggested that because of the backlog, it would be impossible to do future inquests, to say nothing of those already awaiting hearing: "I doubt we'll ever catch up" he said.

Former District Judge David Wall was to have been the ombudsman capable of questioning officers in the first inquest scheduled under the new rules. He noted that police resistance to the new inquests is based on the fact that officers will be, for the first time, subjected to potentially adversarial questioning. Wall observed: "To me that just perpetuates the notion that the tough questions weren't being asked."

Commissioner Chris Giunchigliani is also concerned. She said: "It's extremely frustrating. I'm especially worried about the families being caught up in this legal gamesmanship."
Giunchigliani suggested that the inquests could have proceeded even if the officers took the Fifth on the stand, believing that this would allow the process to proceed and would have, according to the R-J: "allowed closure for families and officers while helping police and government officials identify training and policy shortcomings that could be addressed to prevent future shootings." Giunchigliani said: "If people want to sue, fine, but it shouldn't stop our process."

On July 31, 2011, the Las Vegas Sun reported that Commissioner Sisolak—who opposed the creation of an Ombudsman—was suggesting that inquests be handled entirely by the DA or a grand jury, a potential change very much favored by PPA head Collins who said: “if they make that change, I’d be in favor of it becoming permanent.”

However, on August 3, the County Commission ordered that the next inquest in line (not the inquest currently being litigated) be scheduled and held, while noting that if the PPA filed a lawsuit to stop that inquest, the Commission—and the public—would be right back where they started.

ANALYSIS:

Inquests are mandated by Nevada state law, and considering that the performance of Collins before a committee of the legislature not only thwarted the PPA's efforts to legislatively overturn inquests, but convinced many legislators not to touch the matter with a ten foot pole in the future, suggestions that Clark County can simply abandon inquests may be wishful thinking. In order for a judge to grant the PPA's attempt to obstruct inquests, he would have to essentially declare the relevant state law unconstitutional, which seems unlikely at best, making this little more than a harassing and delaying action on the part of the PPA and its member officers.

Putting inquests in the hands of DA Rogers would be no different than the old inquest process, even if Rogers kept his promise to post all evidence on line. In either case, Rogers decides exactly how much—or how little—evidence is involved. The same is true of taking cases before a grand jury. In each case, the public would know only what Rogers (and Metro) wanted them to know. It is often said that a DA can get a grand jury to indict a ham sandwich because a DA alone decides what evidence they hear. In addition, grand jury proceedings are secret, defense attorneys are not allowed, and no transcript is made public. A grand jury would be even less transparent than the all but opaque old inquests, the inquests, which with the Erik Scott case caused such public outrage that the Commission had no choice but to at least give the appearance of making inquests more transparent.

No wonder Collins would be in favor of such an arrangement. Not only would things return to the bad old days when officers could be assured that they would always be vindicated, the public would know even less than ever. Ms. Giunchigliani is apparently well meaning, but the point isn't about a process that changes none of the problems of the past. Nor would such a process allow Metro to make changes for the better; they've had decades to do just that and have apparently seen no need. Having officers refuse to testify would hardly bring "closure" to anyone except corrupt officers and officials who would never face justice.

Restarting the inquest process is nothing more than a political ploy. The commissioners surely know that the PPA will simply file another lawsuit for each and every inquest the Commission tries to hold.

The primary issue was clearly identified by Judge Wall: Metro fears anyone asking officers questions, particularly while under oath, about their official actions in the killing of citizens. In the past, Metro officers could be certain that the DA would rubber stamp whatever they did. In 34 years, and some 200 inquests, a Metro officer was found criminally liable in only a single case, and the prosecutor declined to prosecute in even that case.

As I've mentioned in past updates, any Nevada police officer who refuses to cooperate with his own agency in such matters may be punished for insubordination; this is state law. The larger issue is that of taking the Fifth Amendment on the witness stand. Any officer who does this had better be able to conclusively prove that they are taking the Fifth because they are being unfairly, even criminally framed or made the scapegoat. Otherwise, what is the public to think? Isn't a police officer taking the Fifth in regard to their official, public duties, particularly when the death of a citizen is involved, saying that if they told the truth about what they did, they would be criminally liable? Of course they are, and the public can come to no other reasonable conclusion.

An officer who takes the Fifth under such circumstances has opened a very ugly can of worms. How can any honest, honorable police officer trust him in the future? How can the public trust him? True, he cannot be held liable by the justice system for taking the Fifth, but the court of public and officer opinion has no such stricture. They can and will try, judge and find him wanting. And in finding that officer untrustworthy, many citizens will make no distinction between him and every other police officer. Judges and attorneys--prosecution and defense-- will have no confidence in his reports and testimony. Officers will have no idea whether he will truthfully support them. Citizens will fear for their safety, even their very lives whenever an officer approaches.

Such an officer will be an albatross, yet the Metro PPA is intent on putting officers—and Metro—in just this insane position. They have even said that officers who merely witnessed the actions of officers taking the lives of citizens will take the Fifth! There is, of course, no possible justification for this as it might arguably amount to witness tampering, obstructing justice, or even the subordination of perjury should an officer feel compelled to testify by modifying the truth rather than taking the Fifth.

And then we have DA Rogers, the chief prosecutor of Clark County, pledged to faithfully and impartially uphold the law. Rogers is essentially adhering to the PPA line. Instead of demanding full accountability and transparency, he would be happy to do away with inquests entirely, releasing only that evidence he deems appropriate. Based on his past actions and statements, one might be forgiven for believing that such evidence would be very sparse indeed and that 34 years hence, another 200 or more killers of citizens will have been found to be blameless. Surely even 1% of such killings might be criminal?

FINAL THOUGHTS:

The Erik Scott civil trial is going to occur and is now in the discovery phase. In recent weeks Metro has reached several multi million dollar settlements with innocents harmed by Metro's unprofessional, corrupt actions. Even in a town with as much money floating about as Las Vegas, the eventual judgment—a settlement is highly unlikely--rendered in the Scott case will likely be sufficient to give even a casino owner pause. It will surely be much more than any Las Vegas taxpayer wants to pay in higher taxes.

The inquests will one day continue under the new rules. The PPA's lawsuit---almost certainly their lawsuits—will be combined and heard as one (unless, of course, the Commissioners simply give up and let the PPA run Clark County) and will be dismissed as the frivolous and cynical attempt to protect the guilty and deceive the public that they are. Then the next chapter in the battle will be played out.

Officers will likely fail to honor subpoenas to appear in court. If judges do not hold them in contempt of court and hand out substantial punishment, the matter will end there and the PPA will win. If judges do their jobs and protect the public, officers will be forced to make the choice between perjury and taking the Fifth. In either case, there will be hell to pay.

PPA head Collins is betting that there will be no consequences for behavior that would cause officers to be fired and/or imprisoned virtually anywhere else in America. Remember that even if the inquests returned to their old form where officers endured only the most friendly possible questioning by the DA, Metro officers would no longer participate, as he put it: "especially since they face no repercussions if they don't." Collins is betting that Las Vegas judges—and Metro police supervisors and administrators—will not impose consequences. Las Vegas history would suggest that he could be right.

I can assure readers that professional officers—the majority in America—look at the kind of bizarre behaviors taking place in Las Vegas in absolute wonder. They can't imagine how any police officer could possibly get away with even a portion of what goes on in Las Vegas every day. They know that in their communities, they'd be fired in a moment, and every rational officer would expect the same.

I can also assure readers that professional police supervisors are wondering what is wrong in Las Vegas. In police work, Sergeants are much feared and respected. Their word is law. Officers expect their Sergeants to discover and swiftly and effectively deal with wrongdoing. In order for the kinds of behaviors that are obviously happening daily in Metro, a substantial number of Sergeants and higher ranking officers are either incompetent, corrupt, or both.

Some might think that corrupt officers around the nation might be tempted to go to Las Vegas where they would find fertile hunting grounds. Perhaps they already have.

ADDENDA: What follows is a copy of the August 2, 2011 letter Bill Scott, Erik Scott's father, sent to the Clark County Commissioners.

Dear Commissioner,

As the parent of a Las Vegas Metropolitan Police Department shooting victim, Erik Scott, I'm asking that you take immediate action to reinstate coroner's inquest hearings under the new process. The latest Metro killing, that of Rafael Olivas, marks yet another senseless death-by-cop, the ninth this year. This one touched you and your fellow Clark County public servants. Will the next Metro shooting strike even closer? Will the victim be YOUR son, daughter, husband, wife, brother, sister, father, mother or other loved one?

A few months ago, you, as a body, courageously ruled to change an extremely flawed, unjust coroner's inquest process to one more fair to all parties involved. Since then, the local police union has tried repeatedly to undermine and negate the will demonstrated by you and your constituents, Clark County citizens. The PPA's recent frivolous lawsuit filing is nothing more than another desperate tactic to end-run a lawful, more-just process that finally gives victims' families a voice.

The PPA has made its position ultra-clear: Chris Collins and his ilk do NOT want police officers held accountable for shooting and killing citizens. The PPA's arrogant, above-the-law attitude and actions are self-serving and repugnant. Since Sheriff Doug Gillespie is either unwilling or incapable of exercising proper leadership by ordering his officers to cooperate with investigators and testify at inquest hearings, that task falls to you, the Clark County commissioners. Otherwise, you fuel a rapidly growing perception that Metro cops are out of control, the PPA is running Metro, and that you, taxpayers' elected officials, are powerless or unwilling to exercise oversight responsibilities.

In American communities that adhere to the rule of law and civilian control of police forces, the following is the norm:

* Any police officer involved in an officer-involved shooting, who refuses to cooperate with the investigation of that shooting, is immediately charged with insubordination under state statutes. That officer automatically is placed on unpaid administrative leave.

* Any officer refusing to appear and testify at a coroner's inquest hearing or before a grand jury is subject to the same action: Charged with insubordination and placed on unpaid administrative leave.

* Any police union advocating that its members defy the orders of a police chief, sheriff, other department leader or an oversight entity (eg., county commission) to testify at a coroner's inquest hearing or grand jury is declared an illegitimate representative of those public employees. For example, you, the Clark County Commission, can declare that it no longer recognizes the Las Vegas PPA as a legal representative of police officers, and refuses to negotiate contracts or other matters with that union. Ronald Reagan did exactly that in the 1980s and fired thousands of air traffic controllers. You have the authority to do the same with uncooperative Metro police officers and the local PPA.

Citizens are infuriated that their elected representatives are bending to the screeches of in-your-face union thugs, instead of carrying out taxpayers' will. For the safety of both your fellow citizens and the remaining professional, good officers on the force, it is absolutely imperative that you take action to reestablish civilian control over the Las Vegas Metropolitan Police Department.

The first step in that direction is to immediately reinstate coroner inquest hearings under the new process and procedures. There's absolutely no justifiable reason to delay these hearings any longer. It is time to allow victims' families to be heard, and for Metro officers to be held accountable for their deadly decisions and actions.

I respectfully implore you to reject the PPA's weak, pathetic arguments and desperate legal maneuvers. Please allow ALL pending coroner inquest hearings to proceed without delay.

Regards,
William B. Scott
Father of Erik B. Scott