Union advises officers not to testify in new police fatality review hearings

By Jackie Valley

Tuesday, Jan. 8, 2013 | 5:40 p.m.

The Las Vegas police union’s stance on officer testimony has not changed despite what it calls “positive changes” in the new police fatality review process, approved Monday by the Clark County Commission.

The union representing Metro Police officers — the Las Vegas Police Protective Association — sent a letter to its members Tuesday advising them to not testify if subpoenaed for an officer-involved shooting case.

“While the decision to testify is up to the subpoenaed officer, our legal team still believes that it is not in your best interests to waive your constitutional rights and testify at the hearing,” the union’s executive director, Chris Collins, wrote in the letter.

The new process approved by commissioners is considered an extensive overhaul, but it keeps some practices from the controversial coroner’s inquest, including an ombudsman to represent the public and victim’s family. The power to call witnesses, however, lies in the hands of the district attorney.

The police fatality review process will come into play whenever the District Attorney’s Office makes a preliminary ruling that a fatal officer-involved shooting was not criminal. At that point, a presiding officer and an ombudsman will be chosen for a hearing, and they will receive access to investigatory documents used by the prosecutor. Those documents can be shared with the victim’s family.

During a hearing, the prosecutor is to present the essential facts of the case, which could include testimony from the police officer charged with investigating the officer-involved shooting. The prosecutor could call other relevant witnesses, who could be questioned by the ombudsman and the presiding officer.

Police union leaders note that the district attorney could “change his mind, at any time, and elect to file criminal charges against you.”

In addition, the union asserted that officers’ sworn testimony could be used against them in civil cases involving the department.

Instead, union officials said they would be willing to disclose officers’ “Garrity”-protected statements.

“By doing so, we believe the public will receive the information they desire, and at the same time, you will be able to retain your constitutional rights,” Collins wrote. He goes on to say that, “Simply put, there is no upside to waiving your rights and testifying at such a hearing.”

The “Garrity Rule” stems from a 1967 U.S. Supreme Court decision that a public employee, such as a police officer, can be compelled to give statements about issues related to their employment under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual.