Opinions

If arrested, an Alaska police officer faces the same drill as any citizen

Dear citizen, if you kill someone, whether by vehicle or gun or other means you will be investigated for murder or some lesser crime. Life is too precious for our police not to investigate. That is not to say you will be arrested. An arrest requires probable cause to believe you committed a crime. But an investigation to determine if you committed a crime will occur.

Killing another human being is a unique trauma, which most of us have not experienced. Unless experienced, we do not know how we would react, do not know what foolish words may be spoken in the immediate aftermath. Since accuracy in your description of what happened is essential during a criminal investigation, it would be wise to pause and think before speaking. The pause may include waiting until the next day or even consulting a lawyer before making a statement. Contrary to popular belief, lawyers do not want their client to lie but they do strive to have them give accurate testimony. Inaccurate testimony can later be spun as a lie when it may simply be the result of the trauma experienced.

This brings me to the recent opinion article by Marcelle McDannel (ADN, Sunday). Her conclusion that body cameras are good at catching "lawless police" is true. The cameras are also good at showing police using reasonable force in response to imminent threats of serious bodily harm or death.

McDannel poses two questions in the commentary: Why aren't officers who have just used lethal force subject to the same methods of interrogation as ordinary citizens, and why are police officers given the time and opportunity to construct an effective lie? She provides no answers other than to recommend body cameras. However, those questions can be more directly answered.

Most police departments that I have represented, by policy, conduct a criminal investigation of all uses of deadly force by its officers. Also, an investigation by that department's internal affairs section is conducted. Statements made during the criminal investigation are voluntary and may not be compelled. However, the department may compel officers to give statements during the internal affairs investigation and if refused, the officer may lose his or her job. Also, an officer knows that a civil lawsuit may later be filed wherein his or her personal assets are at risk, especially if punitive damages are alleged. Generally, governmental agencies do not indemnify for punitive damages. Therefore, a police officer has a lot at stake when a statement is given about the use of deadly force.

As to McDannel's first question, citizens who are put in barren rooms, sat in uncomfortable chairs and interrogated have typically been arrested based on probable cause. Their ticket out of the room is to invoke their Fifth Amendment privilege. Police officers who have used lethal force are usually not arrested at the scene because there is no probable cause to believe they have committed a crime. They are authorized to use lethal force so long as it is reasonable. Determining "unreasonableness" usually requires more than an immediate on-scene investigation. Therefore, such police officers are rightfully not treated as arrestees. If they are arrested, they will be in that same barren room.

As to her second question, any competent criminal defense attorney would advise a client being investigated for murder to not give a statement until the initial trauma has subsided and the client has consulted with an attorney. This is done for the ordinary citizen not to have them lie but rather to have them testify with the same accuracy as a camera.

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So too with police officers. The advice given to officers is sound: Time will be given for the officer to consult with an appropriate representative before he or she makes a statement. Ordinary citizens have the same right.

To use the vernacular, there are "good shootings" and "bad shootings." McDannel cites a couple of cases wherein there may have been "bad shootings." Yet the vast majority of police officers using deadly force are justified in using that force because the officers' lives or other lives were in immediate danger. Those officers were risking their lives to protect us and keep us from harm, because their job requires them to directly face that harm on our behalf.

Frank Koziol is a civil defense attorney in Anchorage. He has specialized in the defense of police officers and their departments throughout Alaska, and he has defended numerous cases involving allegations of excessive force by police officers.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary(at)alaskadispatch.com.

Frank Koziol

Frank Koziol is an Alaska defense attorney specializing in defense of police officers and departments.

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