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©1999 - 2012
Edward D. Reuss
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NY COP FORUM MAY  1999

QUESTION:
Police Officers of the NYPD are not questioned by the District Attorney in cases involving use of deadly physical force unless certain circumstances exist. This is known as the “48 hour rule”.  This policy has come under criticism by persons prominent in society, perhaps due to lack of knowledge about the legitimate purpose of the rule. What is your opinion about the “48 hours rule”?

 
FEEDBACK:

"I think it's ridiculous.  The officers involved in the incident should be questioned immediately while the details are still fresh in their minds.  The 48-hour rule give the public the impression that parties involved have the time to "get their stories straight."

E-mail from "Andersen"

"I feel that the 48 hour rule is necessary because after a police officer is involved in a tragic incident such as a shooting, he or she needs time to be treated for possible trauma. After all, in my eyes the well being of the officer involved is of the utmost importance."

Pointman62@aol.com


"Not being familiar with the wording of this rule, it is my opinion that the use of deadly physical force is not an issue to be subject to the whims of certain segments of our society whose politics become self-serving......While all actions with a firearm or any dangerous instrument is hoped to be used in a proper manner under severe stress...does not society, in its demand for certain balances in hiring and lowering of standards not share a strong responsibility in the final police performance created?"

Dsolve@clinic.net

EDITORIAL NOTE:

When a police officer is to be questioned in connection with an official investigation, whether as the subject or witness, in serious situations such as the use of deadly physical force or allegations of brutality, the officer is entitled to obtain legal counsel prior to such questioning.

The present NYPD procedures allow a period of "48 hours" to permit the officers involved to be represented by the attorney of their choice.

Historically, this procedure has resulted in unfair criticism of both the police officers themselves and the Police Department.

The contracts between the City of New York and members of the NYPD had previously had a "Bill of Rights" provision, that a recent court decision has taken from those members who are ranking officers and detectives. Police Officers still have the provision in their contract.  It does not seem likely that the Patrolman's Benevolent Association, which represents police officers, will be able to overcome the current trend.

So the "48 hour rule" appears to be on the way out.  What are the implications of this?  What problems may develop as a result of the changes in process?

First, the Captain or above who investigates a serious police incident is required to conduct a preliminary investigation in such on-going street situations that may involve community unrest and violence. Many times, these incidents occur during nighttime hours when it is extremely difficult to obtain the services of an attorney.

 How many counselors-at-law are available at three or four in the morning? Do they monitor their pagers and cell phones to respond forthwith into a high-crime area in their Lexus or BMW at a moment's notice?  Do they jump out of bed and race to provide instant legal counsel to a police officer being interrogated in the highly emotional charged atmosphere of a police shooting?

Many shooting incidents or serious incidents occur on the late tours when there are the least number of police supervisors available.
Captains working the late tours are usually called "Duty Captains" because they are not in Command of a particular precinct.  They are overworked and usually obtain little recognition for their services.  They are not the "rising stars" of the Police Department. However, the street cops who see them working with them in the dead of night, and who stand side-by-side with them in violent and frightening police incidents do appreciate them. One Duty Captain is responsible for all police supervision for an entire Borough Command of many precincts during the hours when the most violent and serious incidents occur. For those who have a great deal of experience in policing, the most important and critical action is that taken by the first responder to the scene of the police incident.  The preliminary investigation is conducted under emotionally charged and often violent circumstances.  The confusion in police incidents may involve many bystanders who may be merely attracted to the scene by responding units and can also include those who are motivated to add to the problems of the police.  When the Duty Captain is on the scene, he is charged with the investigation. He earns his pay at that point.  The decisions that he makes have ramifications that may be far-reaching.  His actions may result in community unrest, civil liability for the officers and the City of New York, criminal prosecution of the officers involved, as well as his own future career. 

To add to the difficulties of the Duty Captain, police incidents of a serious nature are determined to be newsworthy and therefore are reported by the NYPD to the media. The public has right to know the news on a timely basis. Often, the media pressures the NYPD to get facts that the Duty Captain has yet to obtain. The Captain confers with the patrol supervisor who usually is a Sergeant on patrol.  The Sergeant, who knows the identities of the police officers, their assignments, and can verify their authorized firearms from precinct records, provides assistance.  Precinct detectives conduct a canvass of the scene for possible witnesses, and evidence is safeguarded. An initial judgment regarding the actions of the police officers is extremely critical.  The District Attorney will determine if the police officer (s) should be subject to interrogation regarding their actions.

Second, the police officer who is involved in a shooting or other serious police incident has undergone psychological and physical trauma. Such officers are routinely transported to the hospital for examination and evaluation. They cannot be interviewed during such evaluations. Many times, the officers are required to go on sick report as a result of the traumatic circumstances. If he is injured, that may require his hospitalization.

Third, the Constitutional Rights of the police officer.  It is not a requirement for a police officers to relinquish their rights under the United States Constitution in order to become a sworn member of the NYPD.  They retain all such rights as a citizen. They cannot be made to testify against themselves in a court of law or waive their rights regarding self-incrimination.  Therefore, when police officers are to be interrogated about an act that may involve a criminal charge, those officers have the right legal counsel, and to remain silent upon advice of counsel. In addition, no questioning may take place once the right to counsel has "attached".  That right attaches from the instant that the officer requests such counsel. These investigations do not occur in a vacuum. When a serious incident occurs, the Duty Captain will ensure that the local District Attorney's Office is notified of the preliminary facts. So, from the very outset of the investigation, the DA is involved in the decision to interrogate the officer.

Fourth, the District Attorney is in the picture from the very beginning of the investigation.  He is forthwith notified of the incident and if criminal charges are likely against the officer involved.  If there is that possibility, the DA will prohibit the Duty Captain or other ranking officer from conducting any interrogation of the officer.  The reason? As a matter of procedure, the PBA advises police officers facing interrogation as subjects in an investigation to request counsel.  At that point, the inviolate "right to counsel" has attached and no questioning can take place without the presence of the officer's attorney.  So for all purposes, other than interviews of non-subject witnesses or members of the service who are not in any way subjects of the investigation, the Duty Captain does NOT conduct an interrogation of the subjects of the investigation.  Any statements that are made to such a Duty Captain or ranking officer in violation of the Miranda Decision can jeopardize any subsequent prosecution.  The doctrine of the "fruit of the poisoned tree" can disallow subsequent evidence that is learned as a result of such statements.

So who is to blame for the "cover-ups" or "blue wall of silence" Are the police officers "getting their act together" or stalling for time as has been suggested? It is time that this misunderstanding of the "48 hour rule" be revealed by the light of truth.

 Our system of justice is built upon concept that a defendant is innocent until proven guilty beyond a reasonable doubt by a jury of peers. A police officer is the physical representative of the law. When an officer takes police action, the officer is not doing so as a mere individual. The officer is the executing the laws that our legislative representatives have enacted for our protection. When a police officer errs in  judgment, or exercises poor decision-making, such an officer is proving only to be a human being, capable of error.  We arm our police officers with firearms and they are strictly controlled regarding their use.  Necessary use of deadly physical force is a duty that all police officers dread. It is not taken lightly.

When the DA determines that a police officer is likely to face criminal charges for actions while acting in the performance of duty, it is always a hard choice. There is a period of time to make sober judgments however, because the DA must present the facts before a Grand Jury that will determine if the officer should be INDICTED on criminal charges.  Sometimes, the Grand Jury proceeding can take a long period of time.  It is during this period of time, that the public can be misled by allegations of misconduct and cover-up by the DA, the Police Department, and the individual officers charged. This must not be allowed to continue.  The press and those in the media must educate the public regarding the rights of accused police officers.
  
What problems may develop as a result of the elimination of the "48 hour rule"?
It would seem likely that future incidents might become increasingly difficult to investigate. No PBA representative worth his or her salt will fail to have a police officer that is the subject of an investigation to immediately invoke the right to counsel.  Under Miranda, the right to counsel attaches, no questioning can take place without an attorney being present, and no attorney worth his salt will allow a police officer to answer questions that may result in criminal charges in the emotionally charged atmosphere of an on-going police investigation. Anyone who questions the actions of a defense attorney who protects the rights of his client under such circumstances had better start reading constitutional law.

Current procedures of the NYPD require that a police officer that invokes the right to remain silent under Miranda must be suspended.  The officer must surrender  firearms, shield, and identity card.   At that point, the officer and his family are without an income.
This inevitably will result in a dilemma for the NYPD and the City of New York.  Without a breathing space of 48 hours during which time an attorney can confer with the officer and properly advise him regarding any interrogation, will suspensions be a decision that is forced upon the NYPD? 

There is a trend to obtain LEGAL INSURANCE by police officers. Just as medical insurance is a must in today's world, so too legal insurance may be the way to go for cops.  It is obvious in criminal matters, but the civil law has greater potential for harm to a police officer. The Federal statute Title 42, USC Section 1983 has such broad language that it can be abused in lawsuits against the police. The civil liability protection that the City of New York provides for its police officers has very specific parameters. The City will provide the assistance of the Corporation Counsel to defend the actions of a police officer and the City will pay any resulting judgment if it is determined that the police officer was 'ACTING IN THE PROPER DISCHARGE OF DUTY".   That phase is loaded with ramifications.  Civil litigation can result in judgments that amount to millions of dollars in damages.  Attorney fees can ruin a police officer that has no legal representation. When the City refuses to defend a police officer in a civil suit, is it possible that the Corporation Counsel may be protecting the City from such judgments?
Are cities like New York that are feeling the effects of millions of dollars in judgments rendered in lawsuits motivated to defend cops?
 
It there is any doubt about the need for LEGAL INSURANCE for police officers, just visit the Corporation Counsel office in the Municipal Building in Manhattan. You will see an overworked and harried staff of civil service attorneys buried under a mountain of backlogged cases.  Contrast that scene with a private law firm staffed with capable attorneys who represent civil litigants seeking judgments against the City of New York.  Who do you think is going to fare the best in litigation?

Time will tell if the pressure to eliminate the "48 hour rule" will result in an intelligent discussion of this issue.  It seems advisable to retain this rule until such time as arguments are brought forth that either confirm its retention or reject them.

CaptainReuss@Verizon.net

Copyright © 1999 Edward D Reuss

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