Why police officers can be forced to explain a shooting

Tribune wins fight to get interview used in internal investigation.

After every police shooting in Utah, prosecutors investigate to determine if the officer who pulled the trigger followed the law. That officer doesn’t have to participate. Like all Americans, officers can invoke their constitutional rights and say nothing. A growing number take that option.

But these officers don’t have the same rights in internal investigations. Police chiefs can force them to talk, and those interviews — while they can’t be used in criminal proceedings against officers — may become public.

That’s what happened in the case of Zane James, a 19-year-old who was shot by a Cottonwood Heights officer in 2018 and later died. A judge ruled in early July that James’ family could use the officer’s interview in its civil suit.

Separately, The Salt Lake Tribune sought the officer’s interview in a public records request. Cottonwood Heights police denied that request. The Tribune appealed to the State Records Committee.

The records committee sided with The Tribune in May, but the city is fighting that ruling in the courts. Litigation is pricey and takes resources that requestors don’t often have. One of the higher estimates for Tribune legal costs in the Cottonwood Heights suit ranged from $60,000 to $100,000, editor Lauren Gustus said.

At the same time, some in Utah law enforcement are considering calling for legislation to specifically bar these compelled interviews from becoming public. Similar debates are taking place among police departments, courtrooms and legislatures throughout the country.

[READ MORE: Utah couple say internal police interview contradicts Cottonwood Heights on shooting death of son]

The shooting of Zane James

These interviews often are more detailed than the voluntary interviews police give to investigators for county prosecutors because that review is focused narrowly on whether the officer broke the law.

In his interview, Officer Casey Davies, who shot James in 2018, contradicted the story Cottonwood Heights shared with the public. The police said James crashed his motorcycle. In his interview, Davies said he purposefully rammed James with his car because he thought the 19-year-old was reaching for a gun. The officer said he didn’t see a gun, though a realistic-looking fake gun was found on James after Davies shot him.

(Leah Hogsten | The Salt Lake Tribune) Aaron James holds a photograph of his son, Zane James, who died after being shot by a Cottonwood Heights officer on May 29, 2018.

By law, Salt Lake County District Attorney Sim Gill didn’t have access to Davies’ interview and couldn’t have used it if he did. Davies exercised his Fifth Amendment rights and refused to talk to Gill’s investigators.

In his findings letter, Gill said he was forced to “infer” Davies’ rationale for shooting. Gill ruled the shooting was legally justified. The Police Department’s shooting review board also said Davies acted within policy.

The compelled interview Davies, who now works for the Herriman Police Department, gave to the Cottonwood Heights investigator is known as a Garrity statement, after a 1967 Supreme Court decision. That decision established the right of police departments to require officers to talk in administrative investigations — like reviews of fatal shootings. However, because the officers are being forced to forgo their Fifth Amendment right against self-incrimination, those statements can never be used in a criminal case against them.

The high court didn’t rule that these Garrity statements had to remain private.

Still, in court filings, Davies’ then-attorney Jeffrey Jensen attempted to prevent the statement from being used by the James family in its civil lawsuit. He argued prosecutors could still charge the officer — there is no statute of limitations on murder or manslaughter — and if that happened, it would be “essentially impossible” to determine if the source of the information used came from the Garrity statement. A federal judge ruled the James family can use the Garrity statement in an amended lawsuit.

The public’s right to know

The State Records Committee sided with The Tribune in ordering the release of the statement, rejecting the argument made by an attorney for Cottonwood Heights that the “impact of a [Garrity] warning on an officer interviewee’s constitutional rights tips the balance in favor of restricting access.”

The committee found “the public’s right to know ‘substantially exceeds’ individual interests of public officials or police officers.”

Cottonwood Heights and West Jordan, which also withheld Garrity statements given by two officers who fatally shot Michael Glad in 2018, are appealing the records committee’s decision, taking The Tribune to court to stop the release of these records.

In addition, the Washington County Sheriff’s Office has filed a suit to overturn a similar records committee decision. The Tribune is seeking access to internal investigation reports into four shootings involving its deputies.

Utah’s system places the burden for defending the State Records Committee’s decision on the original requestor, in this case, The Tribune. For individual Utahns or other organizations with fewer resources, this can present a major roadblock to accessing public records.

Other cities have also refused to release Garrity statements to The Tribune, including West Valley City.

At the same time, some law enforcement agencies have released such statements or information derived from them, including the state’s Peace Officer Standards and Training and the Granite School District, West Bountiful, Syracuse, Herriman, and Saratoga Springs police departments.

A Garrity statement given in an investigation of a police shooting should “absolutely” be publicly released, said Stephen Downing, a former Los Angeles deputy police chief. “An officer that the public hires is making life and death decisions, and [their] compelled statements… tell us what [their] state of mind is. It tells us how [they] understand the policies of [their] department.”

The statement “tells you everything, including how well your police department is functioning,” said Downing, who advocates for police reform as part of the Law Enforcement Action Partnership.

Utah County Attorney David Leavitt sees some value in releasing these interviews. “My general philosophy is that we need to favor transparency,” he said. “Generally, I believe that transparency of every nature, including this, is in the interest of the public.”

Using Garrity statements

“The Fifth Amendment protects you from having statements used in a criminal prosecution… not necessarily [from] having a statement released in the court of public opinion,” said Margo Frasier, an attorney and the former police monitor for Austin, Texas. She now serves as the board vice president for the National Association for Civilian Oversight of Law Enforcement.

Leavitt and his counterparts in Davis and Salt Lake counties back that up, rejecting the suggestion that releasing a Garrity statement could lead to criminal charges.

Davis County Attorney Troy Rawlings said criminal investigators reviewing shootings “never get” Garrity statements and would not use information from Garrity statements that may be published.

Gill, the Salt Lake County district attorney who declined to file charges against Davies, said his office uses a “taint team” to review investigatory documents and determine whether they can be legally used.

Some police departments may have a “misunderstanding” about what protections Garrity actually affords officers, Gill said. It protects them from prosecution, but the information they give could be used in a criminal case against fellow officers.

Available in other states

After Utah’s records committee sided with The Tribune, law enforcement officials began conversations around drafting a bill that would bar the release of Garrity statements. The Utah League of Cities and Towns, which lobbies on behalf of municipal bodies, has also had discussions with “stakeholders” over concerns that the records committee’s decisions could have “negative and unintended consequences,” such as public employees no longer feeling they can be “candid” in interviews given in internal investigations, Executive Director Cameron Diehl said.

Sen. Curt Bramble, R-Provo, a lawmaker who often sponsors public records bills, said he is taking law enforcement proposals to make Garrity statements private “under advisement” and is waiting to see the outcome of the court efforts to overturn the records committee’s decisions.

A handful of states have clarified whether Garrity statements should be considered public. In some, such as Michigan and Missouri, courts have ruled that Garrity statements can be released under public records laws — though a couple of years after the Michigan opinion was issued, the Legislature there passed a bill, supported by police unions, that makes Garrity statements private.

In other states, such as Illinois, California, New York, Georgia, Louisiana, Arizona, Tennessee, Colorado, Minnesota, Connecticut and Ohio, either courts or legislatures have recognized the value of the public being able to access all or some internal police investigations, including compelled statements. Some of these states have protections for ongoing investigations. Once they are closed, however, many records are presumed public.

This story is part of a collaboration with FRONTLINE’s Local Journalism Initiative, which is funded by the John S. and James L. Knight Foundation and the Corporation for Public Broadcasting.