Friday, January 6, 2017

What the "48-hour rule" really looks like after an officer-involved shooting

The year 2016 brought about many positive changes in policing across the country. Locally, I’ve shared many of the ways we’ve updated our training over the past few years on everything from de-escalation to emotional proximity.

Despite top-notch training, police still are sometimes required to respond with deadly force. Earlier this year, I explained what happens in the investigation of an officer-involved shooting. I want to continue to address potential issues that have cropped up elsewhere before they become a point of contention in Kansas City. This past year, police departments in major cities have changed their policies regarding the so-called 48-hour rule for officers involved in a shooting to make a statement. In some places, these rules held that officers who had used deadly force could not be interviewed by investigators until 48 hours after the incident.

Let me first say that is not the case in Kansas City. Officers involved in a shooting here have up to 48 hours after the incident to voluntarily make a statement. Nothing prohibits them from coming in earlier. They can go straight from the scene to Headquarters to describe what happened, if they choose. Should the need arise to obtain a formal statement sooner rather than later for the purposes of filing charges and/or keeping a suspect in custody, officers are asked to make reasonable efforts to provide a statement to the Department within the timeframe necessary for filing charges.

We’ve heard criticism such as, “Well if I shot somebody, I’d be put in custody and taken to Headquarters and asked to give a statement.” If there was clear evidence of criminal wrong-doing, yes, you would. So would a police officer. If evidence at the scene indicates a police officer violated the law when using force, that officer also would be taken into custody and questioned. And both you and the officer would have the right to refuse to say anything. That’s why, upon arrest, police say, “You have the right to remain silent.” Both you and the officer would be presented with a Miranda form, and both of you could refuse to sign it and refuse to speak to detectives. And both the officer and you would have the right to legal representation should either of you decide to speak to detectives. Both cases would be considered criminal investigations.

On the flipside, if you shot a person in self-defense, and initial investigation determined that you acted lawfully, you would be given time (say, up to 48 hours) to come in and give a statement to police. A police officer who, upon initial investigation, also appears to have acted in self-defense gets the same treatment.

There have been numerous and sometimes conflicting studies on when the best time is for someone involved in a traumatic incident to make a statement: when their recall is most accurate, when might be most impactful on their mental health and a number of other factors. I’m not going to get into those here. I just wanted to provide some insight into how the “48-hour rule” following an officer-involved shooting in Kansas City really works. Fundamentally, a resident who shoots someone in self-defense is treated the same way an officer would be, and vice versa. Police officers have the same constitutional rights as any other citizen. 

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