August 14, 2011

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".


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."

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.


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.


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?


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.

William B. Scott
Father of Erik B. Scott

Posted by MikeM at August 14, 2011 09:14 PM

With regard to the Crooks case, five months is not inordinate or unusual length of time for a serious disiplinary case, especially a case where dismissal is likely. On agency side, they want to get it correct, so that disiplinary action, when reviewed by the courts as such are, is upheld. Both the officer and most probably the PPA will be fighting this case to the bitter end. I might point out that the BART Police Department lost at least one of the disiplinary actions in the Oscar Grant shooting. BART PD leapt to conclusions about law and facts, and was shot down by an appointed mediator.

I don't think that any major law enforcement agency would act quickly in any high profile case. The more high profile, the slower they act, especially in a State or agency where employees have legal rights of appeals.

Far too many people comment on law enforcement disiplinary proceedures when their knowledge is based on a viewing of LA Confidential, where officers could be given serious disipline or termination at the discretion of the Police Chief.

Well, you can't do that now, except in the small number of agencies where law or employment contracts limit appeal rights.

Check out this story of the Oakland PD who fired an officer but was forced to hire him back:

Here is one of the BART officers that was fired but BART lost the mediation:

Better to get it correct, that do it wrong and have to walk it back.

Posted by: Federale at August 15, 2011 01:12 PM

William Scott's letter. He knows nothing of employment law or the Constitution.

First, no person can be forced to testify against himself, including at a Grand Jury or Coroner's Inquest.

In fact, no officer has refused a GJ subpeona, so Scott's wild claims are not on point.

Second, a judge is reviewing the officer's challenge to the clear violations of the 5th Amendment. The county should not and no attorney would advise them to take action before judicial review is finished.

Third, Clark County cannot just declare it no longer recognizes the LVPPA. The LVPPA is the lawful representative of bargaining unit members. They have a contract. They can legally advise their members not to cooperate with a violation of their 5th Amendment rights.

Fourth, RR fired federal employees for illegally striking, not for acting to preserve their 5th Amendment rights against self incrimination.

The real solution is to return to the previous method of inquests. There, the elected District Attorney questions officers as his want before the Coroner. If you don't like the DA's questions, vote against him or her. That is the solution. You can also elect a new sheriff who will change policy.

It should also be pointed out again, that if the DA wants to get more anwers, then he can put the officers before a GJ. But, for those who know about the GJ process, you cannot force a suspect or someone who will incriminate themselves. Those persons have to come voluntarily.

But perhaps the new policy should be an investigation before the Coroner's Inquest.

In federal cases, the FBI or appropritate Office of Inspector General or other internal affairs unit investigates a federal officer or agent's shooting. Then the case is presented to the US Attorney's Office. Perhaps that proceedure should be adopted. The Sheriff's IA component, or perhaps a State investigative agency, investigates the shooting and presents evidence of criminal activity to the prosecuting authority.

A coroner's inquest is an antiquated proceedure and clearly not working.

In a criminal investigation, employees can get their appropriate Garrity or Kalkines warnings, and then give appropriate statements, either voluntarily or compelled. In such a case one would start with the witnesses and build up to the involved officers, eventually progressing through those officers with lesser possible culpability to those with greater possible culpability, but without the threat of coerced self incrimination.

But then is that compatable with the political agenda of certain parties of this controversy. Especially those with pecuniary interests?

Posted by: Federale at August 15, 2011 01:31 PM

Dear Federale:

Metro is indeed slow in handing out discipline by any standard, and I suspect you know my background well enough to know that your "LA Confidential" straw man is just that.

In the case of Officer Colling or any similar officer, the process in any normal, professional agency, would be much faster. I'll illustrate, using an extraordinarily long time frame.

Upon starting an investigation, all that would be necessary would be to read all the related reports, examine evidence, interview all the witnesses, including the victim Crooks and other officers present. We'll give the police—supervisors, internal affairs, detectives, etc.—three weeks to do that and to produce their report which will simply state the facts, and whether those facts indicate that the officer—Colling—violated policy and/or the law. The report is forwarded to Colling's division commander. In reality, this could easily be done within a week.

The Division Commander discusses the case with other commanders, reviews department precedent to ensure that the discipline he is contemplating is in line with similar infractions in the past. In an agency the size of metro, there is a very great deal of precedent so there is no unnecessary dithering and hand wringing. The relevant issues are well known. The DC may or may not confer with the agency's legal advisors. Let's give them three weeks to chat and write their report, which is essentially a final recommendation to the Sheriff on the discipline to be imposed. Again, this could easily be done within a week.

The Sheriff has the choice of overturning, modifying or signing off on the recommendation. Let's say he takes a full month to make his decision. Two and a half months have passed since the investigation began. What possible reason could there be for taking longer? This could easily be done in a single day.

The reality is that regardless of unions or other factors, issues of disciplinary appeal and litigation are well known to competent police executives and they need not reinvent the wheel every time they contemplate firing someone. Any competent police administrator can attest that in a case as obvious as that of Colling, it should not take anywhere near the many months that have passed to deal with discipline, for the reasons outlined in the Update and expanded upon here.

Regarding your comments about Mr. Scott's letter to the Clark County Commission and your more indirect references to the Update, you are engaging again in erecting straw men and also citing facts not in evidence, putting words and inferences into the mouths of others that they did not make. This is fundamentally dishonest.

I have never argued, nor has Mr. Scott, that anyone can be compelled to testify against himself. Neither Mr. Scott nor I have argued that anyone has refused a subpoena of any kind, but merely have reported on the PPA's threats to disobey subpoenas and analyzed the consequence of such disobedience should it come to pass.

No judge will be reviewing "clear violations of the 5th Amendment." No such violations have occurred, nor would the new Inquest procedures require them despite the PPA smokescreen. If they go ahead, all that will occur is that officers will be subpoenaed to appear at inquests. As I have repeatedly written, they then have the option of testifying fully and truthfully, committing perjury, or taking the 5th. Anyone, civilian or officer, may invoke the 5th Amendment, and I have made this quite clear, over and over in the updates relating to this situation.

There are, in fact, several ways under state and federal laws that unions may be decertified. Unionism is not, contrary to what unions would like us to believe, forever. The PPA is hiding behind the 5th Amendment, but no one, not Clark County, and certainly not Mr. Scott or I have suggested that officers be compelled to testify, only that they must honor lawful subpoenas. They must show up as ordered. Their employer and the courts can indeed punish them for failing to do their duties if they refuse a lawful subpoena. There is nothing unusual in this at all and police officers across American understand it.

Because there has been and will be no violations of anyone's 5th Amendment rights, the PPA is behaving irresponsibly, perhaps even illegally, in counseling officers to refuse to do their duties and to refuse to cooperate with their own agencies and in counseling officers to refuse to do their duties by refusing to honor subpoenas. That is the issue in this case. The PPA knows it and is trying to avoid having officers refuse to do their duties because they know that there is no possible moral or legal justification for it.

Your statement that no one may be compelled to testify against himself before a grand jury is true but framed in a misleading way. If officers involved in a shooting have acted lawfully, how can they claim suspect status and refuse to appear before a grand jury? They can't hold both positions. Either they are blameless and therefore willing to testify fully and truthfully to their actions in any hearing, or they are culpable and have the option of invoking the 5th, in a grand jury, inquest or elsewhere. Unless they wish to self-identify as suspects, giving up the presumption that they acted legally and honorably in doing their jobs, they have no choice but to honor subpoenas. It is refusing to cooperate and honor subpoenas that the PPA seeks to delay and avoid.

A large part of Metro's problem is a debilitating lack of public trust. Metro investigates itself in every respect and the public rightfully believes that the DA and inquests in the past have been nothing more than cynical rubber stamps for Metro's malfeasance. Surely you recognize this? Many agencies call in outside investigators, including state police or even federal agencies in officer involved shootings to avoid even the appearance of impropriety. Metro could institute this policy tomorrow, yet they do not. You are right that the old inquests were clearly not working. That is why Clark County wants new rules, and it is within the power of the elected representatives of the people of Clark County to establish such rules.

There is no threat of "coerced self incrimination," nor will there be such a threat, but all police officers are expected to do their duty, a duty that includes routinely testifying about their official actions in court as often as required. If they take the 5th, they may not be punished for that invocation of their rights (in a criminal setting), and no one is suggesting that they should be. As I pointed out, an officer taking the Fifth will surely be seen as lacking in the integrity necessary to serve as a police officer by the public and other officers. He may not be disciplined for doing it, but there are, indeed, consequences.

As to "pecuniary interests," and political agendas, seeking justice is hardly a political pursuit of the kind you imply, and I have no doubt that the Scott family, and the many families of Metro victims, would much rather have their loved ones back than any amount of money. However, sufficiently large judgments may have the effect of saving the lives of others in the future.

Posted by: Mike Mc at August 15, 2011 11:47 PM

Once again Mike, you did a fabulous job. I get excited each time I see an update.
I spent so many years in Vegas watching the LEO get away with so very much. It's given me so much hope that honorable officers such as yourself can step forward and make a difference.
I know you can't possibly realize this, but you have truly given honor to law enforcement...after years of me simply accepting that all officers must be corrupt (because of their silence).
Since I left Vegas a few years ago added to reading your blog, I am once again approaching officers to thank them for their service. And thank you for yours!

Posted by: Reason111 at August 16, 2011 06:52 AM

Anyone, even a police officer, can take the 5th. In fact, federal prosecutors are prohibited from attempting to place witnesses in the GJ who have possible culpability without a signed agreement. You might not like it, but police officers have 5th Amendment rights. Alot here think that they surrender their 5th Amendement rights once they join up. That is not true. You might wish it not, you might disagree with the reasoning of the Supreme Court when they made that decision, but you have to face facts. A police officer may be suspected of culpability, but he still has rights.

It is clear that you are trying to make you hostility to the LVMPD and the LVPPA square fit into a round Constitutional hole.

I suspect if this were the case of an army officer shooting a gun next to the head of an Iraqi terrorist in order to get that terrorist to talk, you would be singing another tune.

Posted by: Federale at August 16, 2011 11:12 AM

Dear Federale:

OK, this will be the last response to you on this particular post. I have to wonder if you are incapable of reading and understanding what I have written and specifically clarified or whether you are purposely ignoring it.

I have never so much as implied that police officers lack 5th Amendment protections, in fact, I wrote that they unquestionably do in the very comment to which you are responding. I respect all Constitutional protections for every citizen. Therefore, there is no argument over the Fifth Amendment other than the argument you seem determined to manufacture out of whole cloth. The true issue discussed in this Update is police officers, through their union representatives, trying to avoid doing their duty. There is no Constitutional protection that allows this. In effect, Metro officers are saying: "Sure, I'll work the streets and shoot people, but I won't testify about how or why I shot them." That, and that alone is the issue; the 5th Amendment is not involved except that at some point in the future Metro officers may invoke it to avoid testifying about their actions. No one will prevent them from doing that. The courts and Metro will not punish them for doing that. However, the public and other officers are free to draw whatever conclusions they wish. I can only hope that this is sufficiently clear that you no longer try to suggest that the Fifth Amendment, or my fictional opposition to its invocation by Metro officers, is in any way the topic of discussion.

Any "hostility: I might have toward the LVMPD and LVPPA stems from the fact that their conduct exceeds the boundaries of professional and honorable police and labor practice. I have the same "hostility" toward any police agency, any police officer, or any police union that breaks the law, abuses citizens, abuses their authority, lies, misleads the pubic and encourages or defends others that do the same. Every citizen should rightfully hold such hostility.

And in your last assertion, you are, in a very general sense, correct, however what you imply has absolutely no relation to what is occurring in Las Vegas. The Constitution does not provide protection to illegal enemy combatants engaged in waging war against Americans, nor does any international agreement to which the United States is a party.

Posted by: Mike Mc at August 16, 2011 03:46 PM

Yes, that is exactly what you are saying when you claim that a police officer can be forced to testify or make a statement regarding his culpability. You need to familiarize yourself with the Constitutional precedent decisions. Do you know anything about Garrity or Kalkines warnings that are required in such employee cases? Clearly not.

A police officer who is a mere witness maybe compeled to testify or write a report, but an involved party may not be absent specific advice and warnings.

And, yes, a union may advise its membership on their legal options. And, no, the LVPPA never advised its members to refuse a subpoena, GJ or otherwise. It did take the stand that said officers have rights under the 5th Amendment. PATCO was dissolved because it organized an illegal strike. You can't dissovle a union or bargaining unit without significant evidence of criminal or other misconduct. Legal advice is not one of those.

There is the fundamental issue. You claim that you understand their 5th Amendment rights but in reality you don't.

I also note that you did not address the substance of my recommendation, that police shooting investigations be executed by a third party law enforcement agency. Your little jihad against the LVMPD and LVPPA is clearly your motive, not rational discourse on the rights of bargaining unit employees, other employees, and competant investigations of police shootings.

If the LVMPD has such a poor reputation in Clark County because of police shootings, then why haven't the voters run the DA and Sheriff out of town on a rail by electing more responsive candidates? Talk about facts not in evidence. It is clear that the public has consented to the policies you decry.

And therein lies the problem, you got an agenda, crucifying some poor Joe from LVMPD because you think that some shootings were unjustified.

But it all goes to the facts of each incident, and I remind you that your ally from Shotgun News and the LV Review-Journal, Vin Suprynowicz, dropped Erik Scott like a hot potato. He saw the truth, Scott was a deranged junkie whose bad decisions got himself killed. He is no different from the smack addict who kills himself with an overdose or a drunk driver who wraps himself around a tree.

But, hey, thanks for letting me know you will not respond to this.

Posted by: Federale at August 18, 2011 12:26 PM