By: Brett Pugach
On July 28, 2015, John J. Hoffman, Acting Attorney General, issued a supplemental directive regarding the Uniform Statewide Procedures and Best Practices for Conducting Police Use-of-Force investigations ("Supplemental Directive") and also issued Directive No. 2015-1, regarding Police Body Worn Cameras ("BWCs") and Stored BWC Recordings ("BWC Directive").
Deadly Force Investigations
The Supplemental Directive supplements, and to the extent it is inconsistent, supersedes contrary provisions of prior Directive 2006-5. It concerns use-of-force investigations, which pertains to any use of force by a law enforcement officer involving death or serious bodily injury, or where deadly force is employed with no injury, or where any injury to a person results from the use of a firearm by a law enforcement officer.
The Supplemental Directive requires a comprehensive conflicts inquiry when use-of-force investigations are conducted by the County Prosecutor or the Division of Criminal Justice, followed by appropriate action to, for example, reassign the investigation or order recusal of specific persons so as to not compromise the impartiality and independence of the investigation. It also requires that prior authorization be granted by the assistant prosecutor or assistant/deputy attorney general supervising the investigation, prior to disseminating investigative information to the principal of the investigation and/or other witnesses.
Additionally, employees of the police department or agency that employs the principal of the investigation are generally not permitted to participate in the investigation (although they can still act as first responders to a scene, help secure a scene, and facilitate medicate assistance to injured parties). There are some exceptions to the rule for good cause, when such employees are necessary to assist in the investigation (e.g. those with specialized crime scene investigation skills and forensic testing expertise).
Furthermore, the Supplemental Directive provides that generally, use-of-force matters investigated must be presented to a grand jury for independent review if the use of force resulted in death or serious bodily injury, or if the interests of justice would be served by having the matter reviewed by a grand jury. Such matters are not required to be presented to the grand jury where the undisputed facts indicate that the use of force was justifiable under the law. However, where the matter is investigated by the County Prosecutor, and he/she determines that the matter does not need to be presented to the grand jury for independent review, the Prosecutor must prepare and submit a report summarizing the results of the investigation and explaining the reasons for such recommendation. Such report shall be reviewed by the Director of the Division of Criminal Justice (“Director”), who will make the determination as to whether the matter should be presented to the grand jury. Where the matter is investigated by the Attorney General Shooting Response Team, and the Director determines that the matter does not need to be presented to the grand jury, the Director must prepare a similar report, to be reviewed and acted upon by the Attorney General in similar fashion.
The Supplemental Directive gives specific direction on what types of instructions are required to be given to the grand jury in such matters. Moreover, it provides that two different grand juries are needed in such cases, as two separate determinations need to be made: (1) the underlying offense giving rise to the police use of force (i.e. crime alleged to have been committed by civilian injured by police force); and (2) whether the police use of force was unlawful.
For such matters that are not presented to a grand jury or where the grand jury returns a “no bill”, the County Prosecutor (or Director in matters investigated by the Attorney General Shooting Response Team) must prepare a statement for public dissemination with specific information, including but not limited to specific findings regarding the factual circumstances of the incident and the lawfulness of the police use of force. Such statement must be provided to the Attorney General or his/her designee, and, after being released to the public, must be made available on the internet. Furthermore, in such circumstances (no presentation to grand jury or “no bill”), the matter shall be referred to the appropriate agency for administrative review in accordance with the AG’s Internal Affairs Policy and Procedures manual.
Body Worn Cameras
The BWC Directive applies when a police department decides to deploy body cameras, in which case such police departments must promulgate and enforce a policy that complies with the BWC Directive within 60 days of its issuance. For those police departments that have not deployed body cameras, they must first promulgate such a policy prior to adopting their use. However, the BWC Directive does not mandate that police departments require the use of such body cameras. Additionally, while the BWC Directive provides foundational requirements concerning the use of body cameras, individual police departments are permitted to impose additional requirements that are not inconsistent with the BWC Directive.
The BWC Directive requires that certain notice be given to generally inform citizens that the police department deploys body cameras, as well as specific notice to certain individuals during an encounter. It also requires that, in most circumstances, officers respond truthfully when a civilian inquires as to whether or not the device is activated.
The BWC Directive sets forth instances wherein body cameras must be activated, which include instances such as traffic stops, witness interviews, custodial interrogations, protective frisks, searches, and arrests. Moreover the body cameras must be kept on during deadly force incidents and related on-scene investigations. By contrast, body cameras may not be activated where it would expose an undercover officer or a confidential informant, or where a civilian requests that the device be turned off in certain circumstances. Further limitations are placed on private homes, schools, hospitals, or places of worship, unless the situation involves responding to a crime or emergency.
Furthermore, the BWC Directive requires that BWC recordings be retained for a period of not less than 90 days, subject to additional or extended retention periods for certain criminal investigations, prosecutions, and internal affairs complaints. It also provides restrictions on access to, use, and dissemination of BWC recordings, and public disclosure of same.
For more information regarding these directives and best practices for implementing appropriate policies and procedures concerning use-of-force investigations and/or body cameras, please contact Joseph M. Hannon, Esq. at firstname.lastname@example.org or Brett M. Pugach, Esq. at email@example.com, attorneys in the firm's Labor Law Practice Group, or call 973-533-0777.