Assume you’re involved in a critical incident involving the use of deadly force against a criminal suspect and that your actions result in the suspect receiving severe injuries, such as paralysis. Further, assume that you charge the suspect with several felonies in violation of your state laws.
It goes without saying that you should expect a civil rights lawsuit to follow soon after the shooting incident. Further, the suspect is entitled to a jury trial regarding the pending criminal charges against him. In the meantime, an outside investigatory agency has been assigned to investigate your actions relating to the shooting of the criminal suspect.
Imagine all of these things are occurring at or around the same time. Is the criminal suspect entitled to the records and reports relating to the officer-involved shooting for purposes of his criminal trial before the investigation is complete? Is he permitted to have access to the information relating to the shooting investigation for purposes of his civil rights lawsuit against you before the investigation’s conclusion? The answer: It depends.
If the criminal suspect, in his federal civil rights lawsuit, issues a subpoena to the agency conducting the investigation of the shooting, the agency can file a motion to quash the subpoena, asserting the law enforcement privilege applies. The agency can do this because the investigation is still pending and releasing the information sought in the subpoena to the defendant before the agency has completed its investigation could hinder its efforts. The agency should assure the criminal suspect that it’s not seeking to withhold the information forever, but simply until the investigation is complete.
Officers who are subject to the shooting investigation must keep in mind that the law enforcement privilege can’t be asserted by them. Instead, the agency assigned the investigation1 is the only entity that can invoke the privilege.
To assert the privilege, “the responsible official in the department must lodge a formal claim of privilege, after actual personal consideration, specifying with particularity the information for which protection is sought, and explain why the information falls within the scope of the privilege.”2 Once the federal court finds that the agency has properly raised the law enforcement privilege, the next question is whether the agency should still be required to divulge the material.
This is because the law enforcement privilege is not an absolute privilege. Rather, it is a qualified common law privilege, the purpose of which is to “prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with
an investigation.”3
Because the agency claiming the privilege bears the burden of justifying its application, the agency must explain with particularity the reasons the information sought is privileged. Once this is accomplished, the court must balance the need for secrecy against the criminal suspect’s need for access to the information.
The factors to be considered when balancing the law enforcement
privilege include:
• Whether disclosure will thwart governmental process by discouraging citizens from giving the
government information;
• The impact on persons who have given information of having their identities disclosed;
• The degree to which government self-evaluation and improvement will be chilled;
• Whether the information is factual or evaluative;
• Whether the party seeking discovery is an actual or potential defendant in any criminal proceeding pending or likely to follow;
• Whether the police investigation has been completed;
• Whether any interdepartmental proceedings have or may arise from the investigation;
• Whether the plaintiff’s suit is non-frivolous and brought in good faith;
• Whether the information sought is available through other discovery; and
• The importance of the information sought to the plaintiff’s case.4
Once the court balances the criminal suspect’s need of the information with the need to keep the information private pending the investigation, the court will either grant or deny the agency’s motion to quash the subpoena.
Many states have laws or common law privileges similar to the federal law enforcement privilege that can be used during the underlying state criminal prosecution or in a state civil matter.5 It’s important that police officers know their state laws regarding any law enforcement privilege as they may be called to testify, for example, in the underlying criminal trial of the criminal suspect described above who was shot (relating to the criminal charges against him). Under those circumstances, the state prosecutor or district attorney may not even be aware that there is a pending investigation by an outside agency (or your own agency) regarding the justification of the shooting.
Therefore, it behooves you to advise the prosecutor of the investigation so that they can contact the investigating agency as to whether you (or any other witnesses, for that matter), should be testifying. After all, anything you testify to under oath may affect the pending investigation. That said, if the privilege is properly invoked by the outside investigatory agency, and if the court grants the agency’s motion to quash your testimony (or subpoena, if one is issued), it merely delays your testimony or production of documents, but not for reasons that are unimportant.
Again, the delay may be necessary so that the pending investigation of the shooting can get the proper attention it deserves without any interference or meddling from outside sources.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
References
1. The privilege can be asserted by your own agency if it’s conducting the investigation itself.
2. See United States v. Winner, 641 F.2d 825, 831 (10th Cir. 1981).
3. In re Dept. of Investigation of City of New York, 856 F.2d 481, 485 (2nd Cir. 1988).
4. Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341 (D.C. Cir. 1984).
5. E.g., 5 ILCS 140/7(1)(b)(v) and (c) (Illinois exemptions to disclosure under the Freedom
of Information Act).