By Austin Nolen
Since Brandon Tate-Brown was shot and killed by a Philadelphia Police officer in December, people have been asking questions about the department’s internal investigation of the incident. These questions have only intensified recently as more but incomplete information began filtering out. In the absence of internal documents, however, many members of the public, including the author, have had to make educated guesses about the process, and sometimes we (and I) have gotten it wrong.
Now, for the first time, The Declaration is making the full internal policy guiding Philadelphia Police shootings and subsequent investigations publicly available on the internet. The document, Directive 10, was released to the author through a Right to Know request. Available at the bottom of this article, it answers, or helps to answer, many of the questions asked since the shooting – why were the police officers involved returned to duty before the investigation had fully finished? Did the officer who fired the shot give a statement?
The directive was updated in 2014 during the collaborative reform review process between the Department of Justice’s Office of Community-Oriented Policing Services (COPS) and the Department, and features, among other things, an increased focus on de-escalating situations to avoid use of deadly force.
1) Why were the officers returned to duty so quickly, and before the investigation finished?
The quick return of the officers involved to duty prompted a fresh wave of outrage when revealed, and according to journalist Chris Norris, Police Advisory Commission executive director Kelvyn Anderson said he “doesn’t understand why the officer who was involved in the shooting isn’t still on desk duty, given the case is still active.”
However, police policy does not in fact require officers to be off the street until an investigation is finished. As laid out in the directive, there are three steps in the internal investigation: first, Internal Affairs and other detectives gather evidence about the shooting, and it is during this first phase that they can recommend that officers be returned to duty. The second step is the completion of the report and its approval by the chain of command. Finally, the investigation is reviewed by the Use of Force Review Board, which makes the final determination about whether the shooting was justified under department procedure. It appears that the investigation is still in step one, pending a final decision by the District Attorney about criminal charges.
2) Has the officer who fired a shot given a statement?
There is conflicting information on this. On a single day several weeks ago, I was told by Police Public Affairs that the officer who shot Tate-Brown a) had given a statement, b) had given a very short statement and c) had given no statement, in that order. However, one or more people recently allowed to view the witness statements have apparently alleged that there is, in fact, a statement from the shooter. Today, police reiterated that there was no statement. The directive doesn’t help answer this directly, but by emphasizing that the officers are placed back on the street “as soon as possible” (in the words of the directive), it suggests that the cooperation of the shooting officer wasn’t a factor in his quick return duty, especially considering other department policies.
The Department doesn’t interview officers who fire shots until after a decision is made about whether they will face criminal charges. This is because, since a 1967 Supreme Court case Garrity v. State of New Jersey, public employees who are told to make a statement or be fired cannot have those statements used against them in a criminal prosecution. The Department of Justice’s Civil Rights Division (not necessarily known for their affinity for police) suggests that the best practice is not to compel a statement until criminal charges are declined, but to also permit officers to volunteer a statement – something Philadelphia does not appear to allow.
The document doesn’t answer all of the questions posed about the shooting. For instance, Brian Mildenberg, Esq., the lawyer for Tate-Brown’s mother, still maintains that video of the shooting contradicts the official police account, while the Police Advisory Commission has stated that the videos, from unhelpful angles and in poor quality, don’t contradict the police account or do much else to shed light on the matter. Still, if we want to understand the investigation, learning its framework is a basic first step.
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