M I N N E S O T A C H I E F S O F P O L I C E A S S O C I A T I O N

DEDICATED TO THE IDEALS OF PROFESSIONAL POLICING

BOARD OF DIRECTOR’S MEETING

December 21, 2017 Minnesota Chiefs of Police Association HQ

803 Old Highway 8 NW New Brighton, MN

10:30 am – 1:00 pm 1. Call to Order President Michael Goldstein 2. Opening Invocation Tony Paetznick 3. Treasurer’s Report Susan Engel + Treasurer Tim Fournier

§ Approve November financial report § Approve signing of checks

4. Secretary’s Report Sec. Stephanie Revering § Approve minutes from November 16, 2017

5. 2018 Budget Presentation Exec Director Andy Skoogman + Engel 6. President’s Report Goldstein

§ Minnesota Chiefs of Police Foundation § LMC Critical Incident Response Model Policy

7. Legislative Committee Update Second VP Jeff Potts

§ ALPR Audits § LE Coalition working group

8. Professional Development Committee Bob Jacobson + Eric Werner

• 2018 Training Schedule • ETI Update • Strength and Resiliency Training

9. Communications Committee Andrew Wittenborg § 2018 Winter Magazine § Critical Issues Forum media coverage § Awards deadlines (Innovation + Statewide)

10. Executive Director’s Report Andy Skoogman

§ Critical Issues Forum recap § Membership Renewals

§ ETI Sales & Marketing Update § LMC Patrol Partnership § Region 9 Meeting

11. Old Business 12. New Business 13. Next Meeting: January 18, 2018 14. Adjourn

MCPA Board of Directors Meeting November 16, 2017

Roseville Radisson Hotel

In Attendance: Mike Goldstein, Susan Engel, Joel Scharf, Dave Ebinger, Mike Mastin, Bob Jacobson, Andy Skoogman, Andrew Wittenborg, Eric Werner, Roger Pohlman, Jeff Potts, Mike Risvold, Jeff Tate, Dan Hatten, Rodney Seurer, Stephanie Revering, & Tim Fournier Called to Order: President Goldstein called the meeting to order at 10:33AM. Opening Invocation: Pastor Dan Carlson Treasurer’s Report, Susan Engel/Treasurer Fournier See detailed financial report. Approve October Financial Report/Signing of Checks: Motion made to approve the checks and report by Past President Seurer and seconded by Third VP Potts; motion passed. Secretary’s Report, Stephanie Revering: Minutes from the October 19, 2017 meeting were submitted. Discussion: Past President asked that under the chaplain discussion that it is changed to represent that the committee met with all of the applicants. Motion to approve made by VP Hatten and seconded by Director Werner; motion passed. President’s Report

• Strength and Resiliency Training/Dr. Nystrom President Goldstein discussed this upcoming training and encouraged all to attend.

• Foundation Bylaws Discussion regarding the MCPA Foundation Bylaws. Motion made by Director Ebinger to approved the Bylaws, seconded by VP Hatten; motion carries.

Legislative Committee Update, Third VP Potts

• Approve 2018 Legislative Agenda Discussion regarding the 2018 Legislative Agenda. Motion made by Past President Seurer to approve the top 3 recommended legislative agenda items made by the committee, seconded by VP Hatten; motion carries.

• LE Coalition working group This group met and discussed many items related to officer accountability. Discussion will continue with future meetings ahead.

Professional Development Committee, Bob Jacobson • Training at NJPA on November 9, 2017 went well. The Leadership Academy will be the

first week of December and 30 people have registered.

Communications Committee, Andrew Wittenborg • Training E-Lert

Executive Director’s Report

• ETI Marketing Update See attached information. We are ahead of schedule compared to last year.

• 46K Foundation contribution options Many options were discussed. See attached information. A motion was made by VP Potts to use reserves for 2018 instead of a dues increase, seconded by Past President Seurer; motion denied. Motion made by Director Matsin to increase dues 10% for the 2018 year and fill in the rest with reserves, seconded by Sgt. at Arms Scharf; motion carries.

• Tactical Plan next steps ED Skoogman will come back to the board next month and give an update on the tactical plan.

Old Business None

New Business None Next meeting December 21 , 2017 at MCPA Headquarters. Meeting Adjourned, 11:45 AM.

December15,2017

To: MCPABoardofDirectors

From: AndySkoogman&SusanEngel

Subject: ProposedMCPAbudgetfor2018

TheMCPA2018budgetincludesmanyfamiliarelements,withrevenuescomingfromETI,core

academiesandothertrainings,magazineadvertising,productsales,investments,royaltiesand

Foundationsupport.Weareaimingforbreakevenonanoperatingcashbasis,thesameas2017.

However,therearealsomanynewinitiativesinthemixfor2018thatimpactbothrevenueand

expenditures.Followingthedirectiveslaidoutinthe2017StrategicPlan,wehaveaddedstaffand

increasedsalariessowecanworktoincreasememberparticipation,designacomprehensive

branding/recruitingcampaignandcreateorganizationalstability.

Wearealsoexperimentingwithsomenewtrainingformats,includingathree-partWellnessSeriesanda

redesignedAdvancedCLEOandCommandAcademy.Additionally,weplantolivestreamandarchive

sometrainingsformembersinoureffortstoreachmorememberswhoeitherlacktheresourcesorthe

timetoattendin-person.

WithETIinDuluththisyearcostswillbehigher,yetitremainstobeseenwhatimpactthenewlocation

willhaveonregistrationandsponsorships.Thus,whileourbreakevencashprojectionisthesameas

lastyear,itcouldbemuchmoredifficulttoachieve.

Theattachedsummarybudgetshowsoperatingcashflowofbreakeven($220),andanaccountingnet

lossof$34,050.Thedifferencecomesfromnon-cashexpensessuchasdepreciationanditemstobe

fundedfromtheStrategicInitiativesfund,suchasPeerSupport.Thisyearweareaskingfor$17,000to

fundthePeerSupportprogram,upfrom$10,000in2017,sincewehavelearnedthattheprogramhas

expensesbeyondsalary,includingpayrolltaxes,mileage,cateringandsupplies.

DetailsandAssumptions:

Revenue

• ETIrevenueof$409Kandprofitof$196K–$9,000higherthanlastyear.WhilefoodexpenseswillbehigherinDuluth,andspeakerfeesarebudgetedat$10,000higherthan2017,wehave

raisedpricesforattendeesandboothstooffsettheseincreases.SynergeticEndeavorsbelieves

sponsorshiprevenuecancontinuetogrow,soweareincludingthataswell.Attendanceis

budgetedatlevelscomparableto2017,althoughthatisanunknown.

• Feesfromotherclasses,royaltiesandacademicpartnersarebudgetedtoincreaseby$28,000to$132,445.TheNystromWellnessseriesisprojectedtocontribute$9,000ofthisadditional

revenueif30peopletaketheclass,andAdvancedCLEOwillcontributeasimilaramount.Weare

planningthreeLeadershipAcademies,upfromtwothisyear.Theothermixoftrainingsissimilar

to2017,withoneCLEO&CommandAcademy,threegrant-fundedclassesatNJPA,andatleast

twootherone-daytrainings.

• Foundationsupportdownfrom$46Kto$36K,withthe$10Kdecreasereplacedbya10%increaseinduesrevenue.NotethatiftheFoundationsupportdoesnotcomethrough,theBoardhas

approvedfundingthis$36,000fromreserves.

• Magazinesalesandprofitcomparableto2017• Smallimprovementinprofitfromtesting,permits,andothermiscellaneoussources,notquite

backto2016levels

• Investmentincomesimilarto2017–dividendsonly

Expenses

• Personnelexpensesincreasefrom$295Kto$360K.ThisincreaseismainlyfromreclassifyingtheFinanceManagerfromanoutsidecontractortoanemployee,plusthesalarybumpforadding

theOperationsrole.Inadditionwehavebudgetedanadditional$5,000foradministrative

supportandthecontractual2%salarybumpfortheExecutiveDirector.

• Directprogramexpensesincrease$20,466to$335,385.ThislineiswherethehighercostsforETIareincluded,alongwiththoseforAdvancedCLEO,theextraLeadershipAcademy,Wellness

Series,livestreaming,etc.

• Management&generalexpensesdropby$20,000to$79,834duetothefinance/accountingfunctionnowbeingmovedtopersonnel,plusnothavinganauditin2018.

Likethepastfewyears,wearepresentingabudgetsummarythatincludesthreescenarios,labeledLow,

MiddleandHigh.TheMiddlescenarioisthebaselinefor2018.TheLowscenariorepresentsthe

possibleresultsifallareasweretocomeinwellbelowplan(membership,grants,ETI,sponsorships,

Foundationsupport,etc).Similarly,theHighscenarioshowstheupsidepotentialforprofitifallareasdo

betterthanexpected.TheHighscenarioalsoincludesanadditional$24,000incorporategrantsbeyond

theETIsponsorshipsandFoundationsupport.

INFORMATION MEMO Planning for Critical Incident Responses

(Draft, November 15, 2017)

In a critical incident, more so than any other police action, every decision made by officers and supervisors will likely receive close scrutiny during the criminal investigation, in the media, and in the civil litigation that may follow. Having a plan in place for thoughtfully and effectively navigating these circumstances is crucial.

I. Introduction This document accompanies LMCIT’s model Critical Incident Response Policy, and provides Minnesota law enforcement agencies with background information and guidance to assist with planning for and managing critical incidents (“CIs”). It is prepared with officer-involved shootings (“OISs”) in mind as the primary example, but some or most of the guidance might also be applicable to other situations such as in-custody deaths, as well as officer-involved crashes or other force incidents that that result in death or serious injury. The framework outlined in this document will aid agencies in managing situations where:

• A law enforcement officer has used force or taken other actions; • That resulted in death or serious injury to another; • Such that review of the officer’s conduct for compliance with criminal laws is

likely to occur regardless of whether there is a citizen complaint; • It is foreseeable that the event will result in at least some degree of media

interest or public scrutiny toward the agency and officer; and • The circumstances will warrant due consideration for the emotional health and

wellbeing of the officers involved. This guide is not intended to aid your agency in conducting investigations of such incidents, but rather in navigating the multiple challenges that arise for an agency that employs officers who have been involved in a critical incident. A thoughtful and methodical approach to incident management is called for because of the many issues that must be addressed in the aftermath, including but not limited to:

• A review of the officer’s conduct for compliance with criminal laws, such as those governing the authorized use of force and deadly force;

• A criminal review or investigation of any other outstanding criminal issues—for example, the crime that brought the suspect and officer together at the time force was used;

• An “internal,” or administrative review of the officers’ conduct to determine whether it was in compliance with agency policy;

• Assuring appropriate communications and responses to public and media inquiries;

• Providing support for employees who are emotionally impacted by the incident; • Responsibly anticipating any civil litigation that will arise from the incident; and • Responsibly managing the human resources components of the response to the

incident.

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II. Before the event While the odds of any individual officer becoming involved in a shooting remain relatively low, the available statistics indicate that OISs continue to occur in Minnesota at a relatively steady rate.1 As with other low-frequency events such as floods and tornadoes, there is much you cannot know in advance. However, there are some common features and resource needs that you can anticipate and prepare for. A. Prepare officers and leaders to expect unusual dynamics In the day-to-day functioning of a healthy law enforcement agency, officers and their leaders function collegially and as a team to provide for the safety and security of their community. It naturally follows that when an officer experiences a significantly disruptive event, either at work or elsewhere, agency leadership will want to be supportive, and officers will likely expect to receive support from those in leadership positions. The occurrence of a CI, however, can place an agency and its leaders in a situation with potentially conflicting obligations. On one hand, the agency has an obvious interest in supporting officers who have done their duties in difficult circumstances so they are later able to return to work in a healthy and engaged way. On the other hand, law enforcement and prosecutors have an obligation to ensure that a thorough, unbiased, and objective review of the incident is conducted. This means that, while it is appropriate for police agencies to be “supportive” of their employees following a CI, they must also guard against the appearance of favoritism, or failing to thoroughly evaluate the officers’ actions. The following measures are suggested for having supportive processes while guarding against the appearance of bias or favoritism:

• Develop a policy or plan for incident management that anticipates and addresses officers needs while providing for an objective review process;

• Provide or facilitate access to resources that will aid officers in maintaining their emotional health in the aftermath of an incident;

• Strive to ensure that agency and municipal leaders take a thoughtful, reasoned, and predictable approach to human resources issues, such as administrative leave and limited duty assignments; and

• Provide training to officers so they know what to expect and what resources will be available to them following an incident.

B. Resources As with other forms of contingency planning, there is considerable value in thinking in advance about the challenges that may arise and the resources you can call on to help meet them when planning how your agency will respond to a critical incident.

Investigative resources: As noted above, there may be a need for up to three different kinds of fact-finding investigations in the aftermath of a CI: (1) a review of the officers’

1 Brandt Williams, 13 Fatal Police Shootings this Year Could be Most in Minnesota History, MPR NEWS, Nov. 28, 2016, https://www.mprnews.org/story/2016/11/28/13-fatal-police-shootings-this-year-could-be-most-in-minnesota-history.

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conduct for compliance with criminal laws; (2) a criminal investigation of other non-police conduct; and (3) an “internal” or administrative review of the incident.

Agencies often outsource the criminal investigations to assure that they are independent, and to tap into the expertise of typically larger agencies with experience investigating such matters. It will be helpful to consider ahead of time who your agency will call for an investigation should the need arise.

EAP/Healthcare: Critical incidents can, but do not necessarily, result in emotional trauma for the personnel involved. Involvement in such an incident does not by itself create grounds for evaluating an officer’s fitness for duty. See infra section V(C). However, the agency and involved employees both have an interest in making sure that those impacted receive individual counseling after involvement in a CI. Questions to be considered in developing your plan or policy include: (1) Should meeting with a psychologist after an incident be mandatory or optional?; (2) If counseling will be provided at municipal expense, will the provider be a generalist or one that specializes in working with officers in CI situations?; and (3) Which provider will your agency use? Legal resources: A host of legal issues can arise following an incident, including questions about what information can or must be released under the Minnesota Government Data Practices Act, labor and employment issues pertaining to the status of officers on leave, and proactively addressing the risks of any foreseeable tort claims arising from the incident. You may want to consider speaking with your city attorney or legal advisor when developing your plan so he or she has an opportunity to consider the various kinds of inquiries that might be forthcoming.

Communications resources: Following a CI, you may be fielding questions from local and national news outlets, monitoring and responding to social media, and otherwise confront a variety of challenging communications scenarios. An able and seasoned Public Information Officer may be invaluable in such circumstances. Absent that resource, you may find value in seeking expert communications guidance from an outside professional. III. Priorities in the immediate aftermath Although the circumstances that could give rise to a critical incident are highly varied, it is still possible to identify basic priorities that will be common to most situations. The guidance and steps below are intended to supplement regular agency practices, not replace them. Accordingly, this document and the model policy both list the priorities that should be addressed following a critical incident, but do not provide detailed instructions for accomplishing them. A. Immediate priorities Common priorities in the immediate aftermath of an incident include:

1. Summoning emergency medical care for and providing first aid to any individuals

with serious injuries or medical conditions; 2. Summoning appropriate resources to the scene; 3. Protecting the public against any risks posed by ongoing hazards or dangerous

people at large;

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4. Obtaining and broadcasting information to aid in the apprehension of any dangerous suspects; and

5. Notifying command staff and agency leaders of the incident.

Because each situation will be different, the model policy includes a statement that officers will need to use their professional judgment to decide which issues are the most pressing. This language helps assure that courts view these decisions as discretionary and immune from liability. B. Establishing on-scene command and control There should be an understanding or plan in place for who will be initially in charge of your agency’s personnel and resources at the scene of the incident. If the incident occurs in a location over which another agency has primary jurisdiction, then officers from your agency will likely be expected to relinquish control of the scene once that agency has sufficient resources on hand. If the incident happens in your jurisdiction, however, you will likely be expected to continue managing the scene until an outside agency arrives to conduct the investigation. The model policy includes options for implementing and using an incident command approach to managing the scene, and for immediately identifying who is in charge. Ensuring that someone is in charge promotes a structured, organized approach to managing the incident, rather than allowing officers to independently identify and address priorities. The model policy includes a mechanism for identifying a non-supervisor as the incident commander. In selecting the most appropriate option, note that officers who were at the scene and witnessed the incident when it occurred, although “uninvolved” in a legal sense, may nonetheless have been exposed to significant stress that could impair their abilities to perform. An officer who neither participated in nor witnessed the incident may be a more suitable choice to serve as incident commander. This incident command mechanism might not be necessary if your agency is of sufficient size and staffing to know that a supervisor who was not involved in the incident will be available afterward to take charge of the scene. IV. Incident management activities Regardless of whether the fact-finding investigation(s) will be outsourced to a different agency, immediate steps may still be necessary to protect public safety and to prevent the loss or destruction of evidence. These steps are outlined below. A. Relieving involved officers from further involvement The model policy calls for the incident commander or on-scene supervisor to promptly identify any involved officers and then, to the extent possible, relieve them from further duties at the scene. The term “involved officer” has a special meaning under the policy. It is defined as those officers who used force or took other actions that resulted in death or serious injury to another. Principle Seven of the POST Board model policy on Professional Conduct of Peace Officers states that officers are required to avoid taking action where a conflict of interest exists unless required by law or policy. Following an incident, the focus of law enforcement efforts will transition over time from immediate life and safety issues to protecting the scene and safeguarding evidence. Involved officers may need to take immediate steps following a CI to aid the injured and to protect public safety as

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envisioned above, in section III(A). But involved officers should be relieved of further responsibilities as soon as possible to avoid a conflict of interest situation.

“Uninvolved” officers, on the other hand, are those who have not taken actions that will be subject to criminal review, and thus do not have a personal stake in the outcome of the investigation. Accordingly, from a legal perspective, these officers may be assigned to such tasks as are necessary, including identifying witnesses and safeguarding evidence. However, officers who have been first-hand witnesses to a critical event may, like those who were involved, experience an emotional response that impairs performance. It is not safe to automatically assume that uninvolved officers will be capable of assisting with further law enforcement efforts at the scene, and they may in fact require special assistance and the assignment of a care officer. See infra section IV(J). Supervisors and investigators arriving at the scene later will want to obtain a preliminary understanding as to what occurred, and will need to know which officers were involved and which were not. Because involved officers face criminal review, the Fifth Amendment protects them against compelled self-incrimination. They cannot be required to give statements that could be used against them in criminal proceedings, and may exercise the right to remain silent. In addition, involved officers may lack the ability to immediately provide accurate information due to the stress of the incident itself. As a result, it may be more productive for supervisors and investigators to seek preliminary information from other sources. B. Consider taking Public Safety Statements As noted above, the initial priorities at the scene are focused on life and safety. Supervisors, investigators, and perhaps even other officers arriving on the scene immediately after a critical incident, will need some amount of information to determine whether there are still persons present who need medical attention, whether there are suspects who remain at large and how to identify and find them, and whether there are any ongoing risks to the community. If there are uninvolved officers who have this information, they may be called upon to provide it without any concerns as to their Fifth Amendment rights. Likewise, information from digital recording systems could in theory supply the requisite information. When it is necessary to request information from involved officers, many agencies use some variation of a Public Safety questionnaire, with questions designed to elicit information about ongoing risks and threats, and to avoid topics that would lead an officer to invoke the right to union representation, counsel, or the right to remain silent. The questions are usually limited to seeking information for the purposes of finding and treating the injured, identifying and apprehending suspects at large, and for assessing and dealing with any ongoing threats to public safety. There is no requirement to seek such statements in all cases. Rather, they are best thought of as an option for situations where involved officers might be either the sole or most reliable source of the needed information. Examples of appropriate questions to be asked during a public safety statement include:

• Are there any other individuals who are injured and, if so, where are they? • Are there any ongoing threats to public safety or suspects at large?

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• As to suspects at large, what crimes did they commit, are they dangerous, did they leave on foot or in a vehicle, and in what direction?

• Please indicate the direction of flight and likely impact area of any rounds that were fired.

There is evidence suggesting that officers’ memories as to locations, distances, and where they went during critical incidents may be impaired because of attentional focus on the threat, to the exclusion of other information.2 Those conducting or reviewing public safety statements should be mindful of these possible limitations. C. Identify witnesses and the evidence they possess Officers at the scene should take immediate steps to identify any witnesses present. If witnesses wish to leave, officers should use appropriate methods to seek their identification and contact information, but should not violate the rights of such individuals to go about their affairs without police interference. It may also be beneficial and appropriate to ask the witnesses if they made any cellphone or other recordings of the event, and if they will provide the recordings to law enforcement. Depending on the circumstances, it may be appropriate to take immediate action to secure and store recordings.

Whether officers at the scene should immediately attempt to interview witnesses is a determination that must be made on a case-by-case basis. Immediate interviews may be less than optimal for a number of reasons. First, like the officers involved in the event, witnesses may be traumatized by their exposure to the incident and will require some period of time for recovery before being able to give a cogent account. See infra section V(C). Next, the interviewer may not yet have a sufficient understanding of the incident to conduct an informed interview. Finally, when officers from the involved agency take statements instead of independent investigators, it may open the agency up to allegations of a biased investigation. On the other hand, waiting to conduct interviews involves risks that the witnesses’ memories will become contaminated by information from others or received over social media. While these factors will generally weigh in favor of deferring witness interviews until a later time, there may be sound reasons for attempting to conduct interviews immediately. D. Preserve the integrity of the scene The scene of the incident will likely be thoroughly examined and documented as part of the investigation, and its integrity must be preserved until that time. Accordingly, one or more perimeters should be established, and a log of personnel entering and exiting the perimeters should be maintained. E. Evidence preservation Ideally, the tasks of collecting and preserving physical evidence would be left to an outside investigating agency to eliminate any basis for claiming bias in the investigation. However, weather and other circumstances can result in evidence being degraded or permanently lost and destroyed, meaning that officers from your agency may need to take on an active role in safeguarding it. The emphasis should usually be on preserving

2 William J. Lewinski, Jennifer L. Dysterheft, Matthew M. Priem & Robert W. Pettitt, Police Officers’ Actual vs. Recalled Path of Travel in Response to a Threatening Traffic Stop Scenario, POLICE PRACTICE AND RESEARCH: AN INTERNATIONAL JOURNAL, 17(1), at 51-67 (2016).

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evidence rather than actually collecting it to avoid potential contamination. Consider both the conditions at the scene and the estimated arrival time of any evidence team when determining whether immediate action is warranted. Any actions taken should be well documented. F. Protect digital evidence from being overwritten The League of Minnesota Cities has published model policies on both body-worn cameras an in-car cameras that make provision for special handling of electronic evidence following a critical incident. Regardless of how this evidence will eventually be handled, immediate steps may be necessary to preserve it: some electronic evidence systems may begin overwriting the recording of event if left in the “record mode” for too long afterward. Agencies may wish to provide specific instructions based on their own technologies and business practices. G. Notify and coordinate with the investigating agency If the incident occurred in your jurisdiction, you will need to request assistance from the outside agency that you wish to conduct the investigation, and find out what immediate steps that agency wants you to take. Decisions will need to be made about who will secure the scene, protect the evidence, and interview the witnesses. You should seek to arrive at a clear understanding as to the scope of the other agency’s investigation. For example, will the outside agency examine only the conduct of officers who used force, or will it also review potential crimes committed by non-police personnel before, during, or after the incident? Finally, you should find out when the investigating agency can be expected to arrive at the scene, which will inform your decisions regarding appropriate measures in the meantime. If the incident occurred in a place outside of your agency’s territorial jurisdiction, then these issues will be handled by or should be coordinated with the agency having jurisdiction. H. Preserve the evidentiary value of officers’ weapons The firearms and other devices that officers used during a critical incident should be regarded as constituting or likely to yield relevant evidence, and care should be taken to preserve both the evidentiary value and the chain of custody. Apart from state of the weapon itself, it may also host DNA and other biologic or forensic evidence. As to firearms, the chain of custody should be kept as short as practicable, and depending on the circumstances it may be appropriate for the officer to keep his or her firearm holstered pending the arrival of an investigator or agent. If it is necessary to secure the firearm sooner, take appropriate steps such as the use of gloves and an appropriate container, and ensure the chain of custody is in intact and well documented.

It appears to be a standard practice across the law enforcement industry to immediately replace any handgun taken from an officer with one that functions identically, unless there are circumstances that warrant disarming the officer following the incident. The firearm is replaced to preserve the officer’s ability to protect his or her own safety following the incident, and to avoid any implicit message of mistrust that could result from requiring the officer to remain unarmed. The firearm is replaced with one that functions identically to avoid errors that could arise from a mismatch between “muscle memory” and the replacement device.

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I. Assign a liaison to work with the investigating agency An officer/investigator should be assigned to liaise with the outside agency conducting the investigation. The liaison can help connect the investigating agency with access to records, evidence, and personnel, and can facilitate any requests or communications between the agency and investigators. J. Assign a “Care Officer” to each involved officer Officers involved in a critical incident may experience some or many of the same reactions as others do when victimized by a violent crime. In addition, they may be required to remain at work for an extended period so evidence can be collected from them. The duty of the “Care Officer” is to meet the reasonable needs of the involved officer following an incident, and this role may begin immediately afterward and continue until no longer needed. Care Officers should be instructed that there is no legal privilege for any communications with the involved officer. Tasks that may be carried out by the Care Officer include, but are not limited to:

In the immediate aftermath:

• Providing the officer with transportation away from the scene to the police station or law enforcement center, or another appropriate location. The officer being transported should not be placed in the back seat or in any other prisoner transport area, both for the wellbeing of the officer and to avoid a misperception that the officer has been taken into custody. If the officer is transported to a hospital or medical facility, the Care Officer should accompany and remain with the involved officer until properly relieved.

• Addressing the involved officer’s basic physical needs, such as access to a restroom and to medications, food, and hydration.

• Ensuring that the officer has an appropriate place to wait following the incident, being mindful that some officers may prefer a private setting while others might find isolation to be distressing. Officers should not be directed to wait in places where criminal suspects are detained, or in places that are used for the administration of discipline.

• Assisting the officer with immediate communication needs, such as contacting family members, spiritual advisors, legal counsel, and union representatives.

• Picking up or delivering replacement clothing if the officer’s own garments will be collected as evidence.

• Meeting reasonable needs for transportation. • Assisting the officer in dealing with interruptions to his or her abilities to meet

scheduled parenting, familial, or other obligations.

During any period of administrative leave:

• Maintaining contact with the officer to help him or her stay abreast of developments within the agency.

• If appropriate, conveying any messages on behalf of the department’s leadership.

The duties of the Care Officer are not fixed and certain, and may vary depending on the circumstances. The Care Officer should be encouraged to seek guidance and clarification from agency leadership if in doubt as to the appropriate scope of duties.

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K. Ensure the preservation of evidence Even though another agency may be in charge of the investigation, your agency will still need to take an active role in helping to assure the preservation of important evidence. This can include digital evidence from in-car camera systems and body-worn cameras, recorded radio traffic and telephone calls, the clothing and equipment of involved officers, and the clothing and effects of others who were involved in the incident, including those who have been hospitalized. L. Post-incident chemical testing As a matter of course, investigators conducting the criminal review may ask involved officers to voluntarily provide blood samples for chemical testing. To maintain the voluntary nature of this testing, the model policy specifies that the employing agency will not penalize officers for refusing to provide samples as part of the criminal investigation. It also allows members of the employing agency to assist officers in providing voluntary samples, such as by supplying transportation to a hospital or clinic, or witnessing the collection of the sample. Providing this assistance might be particularly appropriate in circumstances where investigators are still hours away from the scene and request help from the employing agency in obtaining voluntary samples. Chemical testing for employment, purposes, however, is another matter. Minnesota law prohibits employment-based drug and alcohol testing except when conducted pursuant to the employer’s written policy, and allows such testing only upon reasonable suspicion that the employee is under the influence, is using or possessing drugs or alcohol in violation of the employer’s work rules, sustained a personal injury or caused another employee to be injured, or caused an accident at work involving the operation of machinery or equipment. Minn. Stat. § 181.951 (2016). An officer’s involvement in a critical incident, by itself, does not give rise to reasonable suspicion authorizing a drug or alcohol test. V. Post-incident administrative issues It is routine to place officers on administrative leave for some period of time following a critical incident, and to provide officers with psychological services to assist them in dealing with the incident. In addition, state law requires that the agency report firearm discharges to the commissioner of public safety. A. Administrative leave The IACP model policy on officer-involved shootings lists placement on “mandatory leave” as a routine step. A study published in 2008 found that the majority of agencies surveyed had a policy of automatically placing officers on leave following an OIS to allow officers to “unwind” from the incidents, to obtain counseling, and to allow for a thorough investigation without interfering with the officers’ duties.3 “Paid administrative leave” is not the same as a disciplinary suspension for doing something wrong. For the employee, it is a continuation of pay, grade, and benefits

3 James Guffey, Chandrika Kelso, James Larson & Dennis Porter, Paid Administrative Leave for Officers Involved in Shootings: Exploring the Purpose, Cost, and Efficacy, 3 PROFESSIONAL ISSUES IN CRIMINAL JUSTICE, no. 2, 2008, at 67, available at https://www.researchgate.net/publication/ 242185906_Paid_Administrative_Leave_for_Officers_Involved_in_Shootings_Exploring_the_Purpose_Cost_and_Efficacy.

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without the necessity of reporting to work. Courts recognize that leaves of this nature are not considered a disciplinary action. Singletary v. Missouri Dep’t of Corr., 423 F.3d 886, 891 (8th Cir. 2005). Administrative leave should only be assigned when doing so does not violate any governing labor agreement, and it may be appropriate to consult with your city’s labor counsel in developing your policy. The model policy includes three options for establishing an administrative leave policy for critical incidents. Factors that may legitimately be considered in determining an appropriate period of leave include the timing of any investigatory interviews, the timing of any scheduled counseling appointments for the involved officer(s), the apparent wellness of the officer following the incident, and the apparent public reaction to the incident. As to this last consideration, Principle Three of the POST Board Model Policy on Professional Conduct of Peace Officers recognizes that “[l]aw enforcement effectives requires public trust and confidence.” If the public’s reaction to initial information about an incident is one of substantial mistrust, then it may be difficult for involved officers to function effectively in their regular assignments until the matter has been fully investigated and adjudicated. Extended administrative leave, or providing an assignment involving limited public contact (i.e., “desk duty”) may be appropriate from the agency’s perspective. Cities are encouraged to consult their city attorney or labor counsel for advice in determining an appropriate approach to administrative leave assignments.

B. Ongoing limited duty/public contact Following a CI, circumstances may render it imprudent to assign involved officers to regular patrol duties or to duties involving visible interaction with the public. Public mistrust or animus may make it difficult and even dangerous for officers to serve in their normal capacities. In those situations, employing agencies should work with their labor counsel to consider special or modified assignments on a case-by-case basis, or consider continuing the officers on administrative leave. C. Psychological services The IACP Psychological Services Section recommends that involved officers meet with an appropriately qualified and experienced mental health professional within one week of the incident. 4 The primary purpose of the meeting is to educate the officers about what is normal during and after an incident, with the goal of reducing the officer’s worry and negative self-assessment. The Guidelines recommend that agencies make these meetings mandatory so officers do not opt out to avoid the “stigma” of working with a mental health professional.5 Uninvolved officers and other agency personnel might also benefit from these services following an incident. The model policy contains language for mandatory counseling, and envisions that both involved officers and others impacted by the event (such as first-hand witness officers) may be directed to participate. The model policy differentiates between education and counseling meetings with mental health professionals after an incident, and evaluations to assess and report on an officer’s mental fitness to resume work. Involvement in a shooting or critical incident, by itself, generally will not establish grounds for requiring officers to undergo a

4 IACP Police Psychological Services Section, Officer-involved Shooting Guidelines, 2013, http://www.theiacp.org/portals/0/documents/pdfs/Psych-OfficerInvolvedShooting.pdf [hereinafter “IACP Psychological Guidelines”]. 5 Id. § 6.2.

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psychological fitness for duty evaluation (“FFDE”). Rather, such examinations may be conducted only when objective, legitimate, and non-discriminatory reasons arise for doubting an employee’s “capacity to perform his or her duties” or raise questions as to whether an officer is “psychologically fit for the rigors of active police work.” Wisbey v. City of Lincoln, Neb., 612 F.3d 667, 674 (8th Cir. 2010) abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011); Watt v. City of Crystal, No. 14-CV-3167 (JNE/JJK), 2015 WL 7760166, at *7 (D. Minn. Dec. 2, 2015) (using “rigors of active police work” language). Officers are trained and legally authorized to use deadly force in certain circumstances, and carrying out those duties is not by itself evidence of unfitness. Decisions about requiring officers to undergo FFDEs must be made on a case-by-case basis, and should be made in conjunction with your city attorney or labor counsel. D. Critical incident stress debriefing The model policy recognizes that group or peer-to-peer counseling may be beneficial for some, but takes the position that officers who face the prospect of criminal or civil liability should not participate in these processes.

Critical incident stress debriefing (“CISD”) is generally a structured group process, led by a trained peer or facilitator, to assist personnel in mitigating the effects of a critical incident. It may also be offered as one-on-one peer counseling. Minnesota law protects the information that officers disclose during these sessions.6 However, the legal protection is limited. Minnesota statutes section 181.973 provides that information obtained during peer counseling cannot be used as evidence in disciplinary and occupational licensing matters, but the law is silent with respect to the use of such information in civil and criminal proceedings. Minnesota statutes section 13.43, subdivision 9, classifies public safety peer counseling data as private, but private data may be lawfully disclosed pursuant to a court order.7 Because of the limited nature of these protections, it would be legally imprudent for involved officers to make any statements during debriefing or peer counseling that could be even remotely construed as misgivings about their actions. Moreover, it may be quite difficult for persons who witnessed the event to keep their memory of the incident separate from what they learned later in a group debriefing session. Involved officers should be directed away from participating in group debriefings or peer-to-peer counseling, and channeled toward obtaining services from a licensed psychologist or licensed social worker. The law provides stronger protections for communications between clients and the psychologists and licensed social workers from whom they obtain counseling or treatment.8 E. Firearms discharge report Minnesota law requires the submission of a report to the commissioner of public safety whenever a peace officer discharges a firearm in the line of duty for purposes other than training or killing an animal that is sick, injured, or dangerous.9 The head of the officer’s

6 Minn. Stat. § 13.43, subd. 9 (2016); Minn. Stat. 181.973 (2016). 7 Minn. Stat. § 13.43, subd. 4 (2016). 8 Minn. Stat. § 595.02(g) (2016). 9 Minn. Stat. § 626.553, subd. 2 (2016).

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department must file the report within 30 days of the incident.10 The model policy contains language reflecting this requirement. VI. Investigative Issues This section discusses some of the unique issues that arise in the course of investigations into critical incidents. A. Commitment to respecting constitutional rights Officers who face the possibility of their statements being used against them in a criminal proceeding have, like any other individual, a constitutional right to remain silent and not speak about the matter. Garrity v. New Jersey, 385 U.S. 493, 497-500 (1967). It follows that officers may condition their willingness to speak to criminal investigators—or write reports that could be used against them in court—on being able to speak to an attorney first. While employers can compel officers to give statements for administrative purposes, a compelled statement cannot be used against the officer in a criminal proceeding, and taking one could potentially compromise the criminal investigation. See infra section VI(C). The model policy contains language reflecting the agency’s commitment to respecting officers’ constitutional rights. B. Written reports Current BCA policy for deadly force investigations holds that officers who will be interviewed will not be asked to write a report; the officer’s interview is designated as constituting his or her written documentation of the event.11 The model policy provides two different options, both with built-in flexibility, for written reporting requirements following a critical incident. C. Timing of statements from involved officers Because officers cannot be compelled to give statements that could be used against them in a criminal prosecution, officers facing such questioning retain, in reality, a large degree of control over when they will speak to investigators. When an officer declines to be interviewed as part of the criminal review, the agency may of course proceed with its internal investigation and compel a statement under Garrity. But the statement cannot be used in any criminal prosecution of the officer who gave it, and the mere existence of a compelled statement becomes a hurdle for prosecutors to clear if they determine that criminal charges are appropriate. See State v. Gault, 551 N.W.2d 719, 723-24 (Minn. Ct. App. 1996). A decision to compel a statement should be made only after careful consideration and consultation with investigators, legal counsel, and the prosecutors who will be reviewing the case. There are varying opinions as to the best time to interview an officer to maximize the accuracy of his or her statement. Some opinions hold that interviews should be conducted without delay to capture the officer’s existing state of knowledge and emotional response to the event, and to avoid opportunities for additional information to contaminate the officer’s memory. Some researchers acknowledge conflicting considerations: intense stress from an incident may impair memory, but delays in 10 Id. The reporting form and instructions are available at https://dps.mn.gov/divisions/bca/bca-divisions/mnjis/Documents/Firearms-Discharge-Report.pdf. 11 Minnesota Bureau of Criminal Apprehension, Policy BCA-1005, Police Use of Deadly Force Investigations (Feb. 8, 2017).

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interviewing can also result in memory impairment.12 The IACP Psychological Services Section recommends officers be provided “some recovery time” before being asked to give a full statement, and cites research indicating that “[a]n officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.”13 The Force Science Institute has advocated allowing officers at least 48 hours after an incident before scheduling interviews as a “rule of thumb,” to allow officers two sleep cycles.14 There is no indication this debate about the best time to conduct interviews will be settled soon. In the end, because officers facing criminal review have the right to remain silent, the timing of the interview is largely a matter to be worked out between the involved officer, his or her attorney, and the agency conducting the criminal investigation. When an officer refuses to give a statement during the criminal investigation, the recourse for the investigating agency is to complete its inquiry without the benefit of whatever information the officer might have provided. The employing agency is then left with the option of compelling a statement for use in its internal investigation, or taking disciplinary action against the officer who refuses a direct order to provide a statement for use in the internal investigation. When it comes to fashioning an appropriate policy, it bears observing that reasonable, well-intentioned officers who are familiar with the research could conclude that some amount of recovery time will improve their ability to give an accurate account of what happened. Because officers have a constitutional right to insist on this recovery period before speaking, it makes little sense for the agency to have a policy implying that officers are being uncooperative by declining to be interviewed earlier. The model policy includes language reflecting the rights of officers to defer interviewing for purposes of rest and recovery. D. Officer interviews: review and use of digital evidence At present, there is neither an empirical basis nor a consensus best practice to guide decisions about whether officers should be permitted to review video footage and audio recordings of incidents they were involved in before providing a statement to investigators. There are, however, arguments for and against, and these are considered in turn. The argument for: The Police Executive Research Forum (“PERF”) recommends that officers be allowed to review video footage of an event before giving a statement.15 PERF asserts that allowing officers to view the recordings will help them remember the

12 Rebecca Hofstein Grady, Brendon J. Butler & Elizabeth F. Loftus, What Should Happen After An Officer-Involved Shooting? Memory Concerns in Police Reporting Procedures, 5 JOURNAL OF APPLIED RESEARCH IN MEMORY AND COGNITION, no. 3, at 246-251 (2016) [hereinafter “Grady & Loftus”]. 13 IACP Psychological Guidelines, supra note 4, § 5.2. 14 Force Science Institute. (2014). Force Science News #254, http://www.forcescience.org/fsnews/254.html (last viewed October 14, 2017). 15 Lindsey Miller & Jessica Toliver, POLICE EXECUTIVE RESEARCH FORUM, Implementing a Body-Worn Camera Program: Recommendations and Lessons Learned, at 45 (2014), http://www.policeforum.org/assets/docs/Free_Online_Documents/Technology/implementing%20a%20body-worn%20camera%20program.pdf (last viewed November 9, 2017).

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events more clearly, which will in turn result in more accurate statements.16 Other researchers, while stopping short of the same recommendation, note that negative downstream effects can occur when officers do not watch the video first, i.e., officers may be accused of lying when their accounts do not match up perfectly with the video footage, even though such factors as stress and being focused on the threat might fully account for the inaccuracies.17 The argument against: A video recording device is likely to take in far more information than the human brain can perceive and process at any given time. As a result, when an officer reviews a recording, he or she will likely be introduced for the first time to information that was neither perceived nor considered at the time of the incident. Next, because the brain naturally works to fit information into a cohesive narrative,18 it may be natural for officers to fit the newly acquired information together with their memory of the incident to provide a cohesive account of what happened. Once this new information has been taken in, it will quite possibly become a permanent feature of the officer’s memory.19 It is also theorized that reviewing video may skew the efforts that officers make when giving a statement: they may focus more on working to explain the events on screen, and less on trying to recall all of the details, some of which may not have been captured on camera.20 The hybrid approach: The model policy recommends a hybrid approach of: (1) not allowing officers to view video before the interview session; (2) allowing officers to review the video and other digital evidence during the course of the interview, and then asking questions or allowing opportunities to clarify any issues that surface as a result; and (3) starting the interview process with a recognition that there will likely be some differences between the officer’s memory and the digital evidence. Providing this recognition is recommended to address officers’ fears over uninformed games of “gotcha” being played later by cataloging the various discrepancies between human memory and digital recordings. The recommended policy language allows agencies to depart from this process when circumstances might dictate a different approach. E. Meeting officers’ needs during the investigation It is normal for officers to be anxious and have heightened concerns about what may happen in a case as they await adjudication. While it is likely not appropriate to provide officers with any “insider information” about legal developments, it is appropriate and helpful to ensure that officers are kept up to date as to the scheduling of key events, such as grand jury proceedings and the like. Agency leaders may elect to communicate this information directly, through the assigned Care Officer, or through the officer’s counsel as may be appropriate under the circumstances. VII. Agency administrative review Although there is usually no need to start an administrative review of the incident right away, making sure that one gets completed is important for legal reasons. By conducting a close review, the agency shows vigilance in detecting and addressing

16 Id. 17 Grady & Loftus, supra note 12. 18 See generally DAVID EAGLEMAN, INCOGNITO (iBooks ed. 2011), p. 338. 19 Grady & Loftus, supra note 12. 20 Id.

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officer misconduct and the use of excessive force, and does not, by its failure to thoroughly investigate shootings and other critical incidents, tacitly approve of such behaviors. See generally Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The criminal investigation will likely bring forward the vast majority of evidence that must be considered in the administrative review process, so in most cases it will make sense to await the results of the criminal inquiries. If either the results of the criminal investigation or other information arises providing grounds for believing that an officer engaged in misconduct during the incident—and that disciplinary action may be warranted—then the matter should be handled as any other disciplinary matter. Any investigation must be conducted consistently with Minnesota Statutes, section 626.89 and any applicable provisions of the collective bargaining agreement. The following flowchart illustrates the typical procedural steps and decision points:

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There may be atypical cases that weigh in favor of completing the administrative review before the criminal processes have reached their conclusion, such as where the agency believes it cannot await the outcome of the criminal process before making a personnel decision. In such cases, however, the agency must exercise considerable caution to guard against tainting the criminal process by conducting Garrity interviews. Agencies are encouraged to consult with their legal counsel, investigators, and assigned prosecutors in evaluating such circumstances and charting an appropriate course of action. VIII. Benefits for families and survivors of officers killed in the

line of duty.

There are a number of potential sources of benefits for survivors of officers killed in the line of duty. The following is not warranted to be an all-inclusive list, nor is any representation offered that benefits will actually be available from the sources listed:

• Death benefits paid through the Public Safety Officers’ Benefits Program, administered by the United States Department of Justice, Office of Justice Programs.

• Statutory death benefits paid under Minnesota law, Minn. Stat. § 299A.44. • Continued health insurance coverage for the deceased officer’s spouse and

dependents under Minnesota law, provided by the employer pursuant to Minn. Stat. § 299A.465, subd. 2.

• Educational benefits for children of officers killed in the line of duty, administered by the Minnesota Office of Higher Education.

• Workers compensation benefits. • Pension benefits through PERA. • Death benefits to survivors of officers killed in the line of duty from MPPOA. • Legal assistance in seeking available benefits, available to members of the

MPPOA Legal Defense Fund. • Benefits through the Minnesota 100 Club. • Concerns of Police Survivors (“C.O.P.S”) is an organization that serves the

families of fallen officers, and maintains state-by-state lists of survivor benefits and resources: https://www.nationalcops.org/survivorbenefits.html

CRITICAL INCIDENT RESPONSE POLICY League of Minnesota Cities Model Policy [Draft Nov. 15, 2017]

This League model policy was thoughtfully developed by our staff and…. Models should be customized as appropriate for an individual city’s circumstances in consultation with the city’s attorney. Helpful background information on this model may be found in the accompanying memo, Planning for Critical Incident Responses. Where optional provisions are offered in the model, you must choose one of the options, but selecting “option 1,” for example, does not require you to choose “option 1” at every choice point.

This icon marks references or explanatory comments. References to the Planning for Critical Incident Responses memo point to specific sections in that document that explain why particular language is included in the model, or provide background information to assist with proper implementation. In other cases, these comments will help you choose from among the different possible approaches offered in the policy. Delete these references and comments before adopting your customized policy.

[Italic brackets] Text marked this way is a placeholder for agency-specific language.

CITY OF [CITY NAME] CRITICAL INCIDENT RESPONSE POLICY

Purpose This policy establishes a framework and guidelines for responding to critical incidents involving members of this agency. The guidance and steps below are intended to supplement rather than replace regular agency practices. Accordingly, this policy identifies tasks and priorities that should be addressed, but does not provide detailed instructions as to the manner of completing them. Policy This agency will respond to critical incidents in a manner that protects public safety, fosters trust in and accountability for law enforcement, and addresses the needs of personnel who have been exposed to threatening circumstances and acute stress. Because situations may vary significantly, personnel must exercise sound judgment in determining how and when to implement the procedures set forth in this policy. Definitions The following phrases have special meanings as used in this policy.

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1. Critical Incidents include officer-involved shootings and other situations involving most or all of the following circumstances:

• A law enforcement officer has used force or taken other actions; • That resulted in death or serious injury to another; • Such that review of the officer’s conduct for compliance with criminal laws is likely

to occur regardless of whether there is a citizen complaint; • It is foreseeable that the event will result in at least some degree of media interest or

public scrutiny toward the agency and officer; and • The circumstances will warrant due consideration for the emotional health and

wellbeing of the officers involved.

2. Involved Officer means an officer employed by this agency who used force or took other actions that resulted in death or serious injury to another.

3. Uninvolved Officer means an officer employed by this agency who may have

participated in, witnessed, or responded to a critical incident, but who did not use force or take other actions that resulted in death or serious injury to another.

4. Employing Agency means the agency that employs one or more involved officers.

5. Investigating Agency means another law enforcement agency that will independently

investigate the use of force or other circumstances that resulted in death or serious injury. Independent Investigation [Your agency] will request an independent investigation whenever officers of this agency use deadly force or take other action that directly results in death or serious injury to another. For incidents occurring within the territorial jurisdiction of the City of [ ], the chief or chief’s designee shall contact an Investigating Agency to request assistance. For incidents occurring outside the territorial jurisdiction, the chief or designee shall coordinate the request with the agency having jurisdiction over the place where the event occurred. This agency will provide all reasonable cooperation and assistance to the Investigating Agency.

See Planning for Critical Incident Responses, § II(B) (Investigative resources) (hereinafter, “Planning Memo”).

Immediate Priorities Because situations may vary significantly, officers on the scene or who arrive there in the immediate aftermath of an incident must exercise professional judgment to determine the order in which to address potentially competing priorities. Involved Officers, until relieved, and Uninvolved Officers shall take appropriate actions to:

1. Summon emergency medical care for and provide first aid to any individuals with serious injuries or medical conditions.

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2. Summon appropriate resources to the scene.

3. Protect the public against any risks posed by ongoing hazards or dangerous people at

large.

4. Obtain and broadcast information to aid in the apprehension of any dangerous suspects.

5. Notify command staff and agency leaders of the incident. See Planning Memo, § III(A) (Immediate Priorities).

Establishing On-Scene Command and Control As soon as practicable, an appropriate officer or supervisor should identify himself or herself as the Incident Commander, who will have charge over other personnel at the scene and will be responsible for assuring that appropriate personnel and resources are directed to the highest priorities.

Choose one:

1. [Option 1] The first supervisor to arrive at the scene following the incident will be the Incident Commander until relieved by higher authority.

1. [Option 2] The most senior uninvolved officer at the scene when the incident occurs will

be the Incident Commander until relieved by higher authority.

Or, 1. [Option 3] The first uninvolved officer to arrive at the scene following the incident will

be the Incident Commander until relieved by higher authority. 2. The Incident Commander shall identify himself or herself over the radio to dispatch and

others. Any officer or supervisor assuming command of the incident thereafter shall identify himself or herself over the radio to dispatch and others.

3. Officers may, by quick consensus, designate a more experienced or more suitably trained

officer at the scene to serve as the Incident Commander. See Planning Memo, § III(B) (Establishing on-scene command and control).

Incident Management Activities Although the Investigating Agency will likely respond to the scene, immediate steps may still be necessary to protect public safety and to prevent the loss or destruction of evidence. Accordingly,

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the [Incident Commander] [on-scene supervisor] shall determine which of the following tasks are of the highest priority and shall assign appropriate personnel to address them:

This section implicitly assumes that command staff will respond and assume control over the agency’s management of the incident, but authorizes the Incident Commander or on-scene supervisor to implement necessary measures in the absence of higher authority.

1. Promptly identify Involved and Uninvolved officers and, to the extent feasible, relieve

Involved Officers of active participation in any ongoing scene management and law enforcement activities. Uninvolved Officers who witnessed or participated in the event should be assessed to determine if they are capable of assisting with further law enforcement efforts.

See Planning Memo, § IV(A) (Relieving involved officers from further involvement).

2. Consider and, if necessary, obtain Public Safety Statements from the Involved Officers,

using the form attached hereto as Appendix A. A Public Safety Statement may not be necessary if there are other sources that can provide the required information.

See Planning Memo, § IV(B) (Consider taking Public Safety Statements).

3. Identify witnesses and the evidence they possess, and obtain immediate statements from

witnesses only if there is reason to believe the witness will be unwilling or unable to be interviewed or provide an accurate account later.

See Planning Memo, § IV(C) (Identify witnesses and the evidence they possess).

4. Establish one or more perimeters to control the scene and restrict access, and keep a log of personnel entering and exiting the perimeter.

See Planning Memo, § IV(D) (Preserve the integrity of the scene).

5. Safeguard physical evidence that could become lost or degraded before the scene is methodically processed.

See Planning Memo, § IV(E) (Evidence preservation).

6. Prevent electronic evidence stored in body-worn cameras and in-car camera systems from being overwritten by deactivating any systems left in “record” mode.

See Planning Memo, § IV(F) (Protect digital evidence from being overwritten).

7. Notify and secure assistance from any outside criminal investigative agency that will be utilized; obtain that agency’s estimated time of arrival at the scene; and coordinate with that agency as to any immediate steps that should be taken.

See Planning Memo, § IV(G) (Notify and coordinate with the investigating agency).

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8. Preserve the evidentiary value of weapons that officers have used or fired during the

event.

See Planning Memo, § IV(H) (Preserve the evidentiary value of officers’ weapons).

9. Assign a liaison to work with the Investigating Agency.

See Planning Memo, § IV(I) (Assign a liaison to work with the investigating agency).

10. Assign a “Care Officer” to each Involved Officer. The duties of the Care Officer will include removing the Involved Officer from the scene to an appropriate location, and providing reasonable assistance to meet the Involved Officer’s basic needs following the incident. The Care Officer may also be asked to verify that the Involved Officer committed to his or her care had no contact with other Involved Officers or witnesses from the time of the Care Officer’s assignment until the time the Involved Officer is released from duty. There is generally no legal privilege for communications between Care Officers and Involved Officers. A list of potential additional duties of Care Officers is attached hereto as Appendix B. It may also be appropriate, depending on the individual’s status, to assign a Care Officer to any Uninvolved Officers who participated in or witnessed the event and were traumatized by it.

See Planning Memo, § IV(J) (Assign a “Care Officer” to each involved officer).

11. Provide for or coordinate the appropriate notification to the families or survivors of any individuals killed or seriously injured during the incident.

12. Consider the advisability of providing public information about the event.

See Planning Memo, § I(B) (Resources). Involved Officers Involved officers shall:

1. Refrain from assisting with any ongoing law enforcement or scene management activities as soon as adequate uninvolved personnel are available at the scene.

See Planning Memo, § IV(A) (Relieving involved officers from further involvement).

2. Preserve the integrity of physical evidence such as blood, fingerprints, and other

biologics on the officer’s person, clothing, and equipment until it is collected.

3. Remain in the company of the officer’s assigned Care Officer or at the location designated until relieved from duty.

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4. Not discuss the incident with others who were involved in or witnessed the incident, or with other employees of this agency, until the criminal and administrative review processes have been completed. This section shall not be construed, however, to prohibit officers from discussing the incident with the officer’s attorney, psychologist or licensed social worker, clergy member, or spouse.

Minn. Stat. § 595.02, subd. 1(a)-(c) and (g) (identifying legally privileged communications).

Rights of Involved Officers

1. Nothing in this policy shall be construed as limiting or depriving Involved Officers of their rights to remain silent and to consult with an attorney prior to giving any statements or making any reports that could be used against the officer in a criminal proceeding.

See Planning Memo, § VI(A) (Commitment to respecting constitutional rights).

2. Involved Officers shall not be subject to employment-based drug or alcohol testing, unless based on reasonable suspicion and conducted pursuant to the city’s drug and alcohol testing policy. As a matter of course, investigators conducting the criminal review may ask Involved Officers to voluntarily provide samples for blood and alcohol testing as part of the criminal investigation. This agency will not penalize the refusal to voluntarily participate in such testing. Personnel from this agency may assist Involved Officers in voluntarily supplying the requested samples, such as by providing transportation to a hospital or clinic, or witnessing the collection of the sample.

See Planning Memo, § IV(L) (Post-incident chemical testing). Written Reports

Choose one:

[Option 1] Decisions about whether to require reports from Involved Officers and officers who witnessed the incident will be made in consultation with the Investigating Agency. Officers who were involved in or witnessed the incident shall not prepare reports unless specifically directed to do so.

Or,

[Option 2] Officers who were involved in or witnessed a critical incident shall not be required to prepare a written report concerning the incident unless specifically directed to do so.

Current BCA Policy for deadly force investigations holds that officers who will be interviewed during the normal course of the investigation will not be asked to write a report; the officer’s interview is designated as constituting his or her documentation of the event. Option 1 requires consultation with the Investigating Agency before issuing instructions to officers about preparing written reports, and may be the better choice if you do not know the Investigating Agency’s

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preferences ahead of time. Option 2 is likely the better choice for agencies that will request the BCA to assist as the Investigating Agency. See Planning Memo, § VI(B) (Written reports).

Administrative Leave

Choose one:

[Option 1] Each involved officer shall be provided with reasonable administrative leave following an officer-involved shooting or officer-involved critical incident.

[Option 2] Officers shall be placed on administrative leave for [three] [four] [five] [days] [shifts] following an officer-involved shooting or officer-involved critical incident.

Or,

[Option 3] Officers shall be placed on administrative leave for three [days] [shifts] following an officer-involved shooting or officer-involved critical incident, as determined by the chief or the chief’s designee. The chief or designee may, in his or her discretion, provide for more extended leave on a case-by-case basis.

Cities are encouraged to consult with their city attorney or labor counsel for advice in determining an appropriate approach to administrative leave assignments. Option 2 represents an inflexible approach that should likely be avoided absent circumstances that require treating all situations the same. See Memo, § V(A) (Administrative leave).

Critical Incident Stress Debriefing and Psychological Services

1. The chief or chief’s designee may schedule a critical incident stress debriefing session following the incident for Uninvolved Officers, uninvolved support personnel such as dispatchers and CSOs, and other personnel impacted by the incident. Authorized attendees may use work time or be compensated for attending the session. The sessions shall be conducted in private and closed to the public and nonparticipants. Personnel who participate in the debriefing shall not disclose any information or opinions acquired as a result of the session.

See Planning Memo, § V(D) (Critical incident stress debriefing).

2. Officers facing criminal review or the prospect of civil liability shall not participate in

group debriefing sessions or peer-to-peer counseling, but instead [shall] [may] be referred to individual counseling with a licensed psychologist or licensed social worker.

See Planning Memo, § V(D) (Critical incident stress debriefing).

3. Officers involved in a critical incident and other impacted personnel shall, upon direction

from the chief or chief’s designee, attend one or more confidential meetings with a licensed psychologist or licensed social worker. The city will pay for the cost of such services. The meeting shall be confidential as between the officer and the mental health

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professional. Should a fitness-for-duty evaluation be required, it shall be conducted by a separate mental health professional and with an appropriate release to allow the examiner to provide information to the city.

See Planning Memo, § V(C) (Psychological services).

Firearm Discharge Report The chief shall, within 30 days of the incident, complete and submit the firearms discharge report required by Minn. Stat. § 626.553, subd. 2. Statements from Involved Officers

1. Because the criminal investigatory interviews of Involved Officers are conducted on a voluntary basis, the time and place of such interviews is a matter to be worked out between the Involved Officers, their attorneys, and the criminal investigators assigned to the matter. To the extent that this agency is requested to assist in scheduling or facilitating such interviews, the following guidelines shall apply: A. The rights of officers to take time for rest and recovery from the incident before

giving a statement for criminal investigatory purposes shall be respected. Current published recommendations call for providing officers some amount of time for recovery and rest prior to providing a full statement about the event, in the range of 48 hours.

B. Officers should be given a choice as to the location of the interview, and should not be interviewed in places where criminal suspects are typically interrogated.

See Planning Memo, § VI(C) (Timing of statements from involved officers).

Choose one:

2. [Option 1] It is the policy of this agency to allow officers to review video recordings from

the officer’s assigned vehicle or body camera prior to giving a statement to criminal investigators.

Or,

2. [Option 2] The [agency] recognizes that video and audio recordings from an event will

likely contain more information than officers could perceive or take into account at the time of taking action, and there will therefore likely be differences between officers’ recollection of events and what is captured by a digital recording device. Unless directed otherwise by the chief or chief’s designee, the agency will utilize the following procedures in an effort to assure that digital evidence is fairly used and considered in the course of investigations into critical incidents:

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A. The [agency’s] video and audio recordings of an event will not be made available to an officer for review prior to the officer’s statement to investigators.

B. The [agency] expects that digital recordings will be used in a fair manner and to

arrive at an accurate understanding of the incident and the officer’s actions, based on what was known to the officer at the time of acting. This agency will utilize the following procedures, and communicate these procedures to any outside Investigating Agency:

1. The officer will be reminded at the outset of the interview that differences

between digital recordings and the officer’s memory are to be expected;

2. The officer, together with the officer’s attorney, will be provided with an opportunity to review and reflect on relevant digital recordings before the interview has been concluded; and

3. The officer will be provided with a fair opportunity to address any additional

issues or concerns that arise from consideration of the digital evidence.

C. This policy does not govern officers’ review or use of digital evidence in matters other than critical incidents, such as in the course of preparing reports in arrest situations.

See Planning Memo, § VI(D) (Officer interviews: review and use of digital evidence).

Agency administrative review

1. This agency will review all critical incidents to determine whether the force used or actions taken by officers were in compliance with governing law, agency policy, and agency training. The timing of this review will be determined on a case-by-case basis, and the review will encompass an examination of all relevant evidence.

2. If the results of the review establish there was no misconduct, the results of this determination shall be documented and the matter closed.

3. If the results of the review conclusively establish that misconduct occurred, then the chief or chief’s designee shall determine appropriate remedial or disciplinary action and document the findings, and the matter shall then be closed. The provisions of this policy do not abridge the rights of officers to challenge or appeal any disciplinary action under the collective bargaining agreement or other applicable procedures.

4. If the results of the review suggest that misconduct may have occurred, then an administrative investigation shall be conducted consistently with the Peace Officer Discipline Procedures Act [and the applicable collective bargaining agreement].

See Planning Memo, § VII (Agency administrative review).

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[Critical Incident Response Policy—Appendix A] CITY OF [CITY NAME]

Public Safety Statement Questionnaire The initial on-scene supervisor or Incident Commander may use the following questions to obtain immediate information about ongoing life and safety issues after a critical incident: Date of Incident: ________________________ Time of Statement: _______________ Name of Officer: _______________________________________________ “Officer, due to the potential need to take immediate action to protect life and public safety, I am requesting you to provide the following information”:

1. Are there any persons injured who have not yet received medical attention and, if so, where are they?

2. Did any suspects leave the scene? • Please provide identifying information and their direction and mode of travel? • Were any of the suspects armed and, if so, with what type of weapon? • How long has it been since the suspect left?

3. Are there any other hazards or conditions that pose a threat to public safety?

4. Please indicate the direction and likely impact areas of: • Any rounds fired by officers? • Any rounds fired by suspects?

(to enable a search for any others who may have been injured)

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[Critical Incident Response Policy—Appendix B] CITY OF [CITY NAME]

Duties of Care Officers Instructions to Care Officer: The duties of the Care Officer are not fixed and certain, and may vary depending on the circumstances. The Care Officer should be encouraged to seek guidance and clarification from agency leadership if in doubt as to the appropriate scope of duties. You should consider your communications with Involved Officers to not be legally privileged. You may be asked to verify that the officer committed to your care did not have any communications with other Involved Officers or witnesses from the time you were given this assignment until the officer is released from duty.

In the immediate aftermath:

• Provide the officer with transportation away from the scene to the police station or law enforcement center, or another appropriate location. The officer being transported should not be placed in the back seat or in any other prisoner transport area, both for the wellbeing of the officer and to avoid a misperception that the officer has been taken into custody. If the officer is transported to a hospital or medical facility, the Care Officer will accompany and remain with the involved officer until properly relieved.

• Addressing the involved officer’s basic physical needs, such as access to a restroom and access to medications, food, and hydration.

• Ensuring that the officer has an appropriate place to wait following the incident, being mindful that some officers may prefer a private setting while others might find isolation to be distressing. Officers should not be directed to wait in places where criminal suspects are detained, or in places that are used for the administration of discipline.

• Assisting the officer with immediate communication needs, such as contacting family members, spiritual advisors, legal counsel, and union representatives.

• Picking up or delivering replacement clothing if the officer’s own garments will be collected as evidence.

• Meeting reasonable needs for transportation.

• Assisting the officer in dealing with interruptions to his or her abilities to meet scheduled parenting, familial, or other obligations.

During any period of administrative leave:

• Maintaining contact with the officer to help him or her stay abreast of developments within the agency.

• If appropriate, conveying any messages on behalf of the department’s leadership.

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[Critical Incident Response Policy—Appendix C] CITY OF [CITY NAME] Incident Management Checklist

Immediate Priorities:

Summon care for/provide care to those with serious injuries. Summon appropriate resources to the scene. Protect the public against any risks posed by ongoing hazards or dangerous people. Broadcast suspect information. Notify command staff/agency leadership. Implement incident command. Incident Management Activities:

Identify Involved Officers, and Uninvolved Officers incapable of performing, and relieve from further duty.

Consider and, if necessary, obtain Public Safety Statements. Identify witnesses and the evidence they possess; take statements only if necessary. Establish one or more perimeters; keep a log of those entering and exiting. Safeguard physical evidence to prevent loss or degradation before scene is processed. Prevent body-cam and dash-cam recordings of the event from being overwritten. Secure assistance from and coordinate with the Investigating Agency; obtain ETA. Preserve the evidentiary value of police weapons. Assign a liaison to work with investigating agency. Assign a Care Officer to Involved Officers and, if necessary, to others relieved of duty. Provide for or coordinate notifications of death or serious injury. Consider the advisability of providing public information about the event.

From: Andy Skoogman andy@mnchiefs.orgSubject: Re: South St. Paul ALPR Audit

Date: December 15, 2017 at 12:31 PMTo: Bill Hutton bhutton@mnsheriffs.orgCc: lutsencup lutsencup@aol.com

On December 6, 2017 at 2:42:52 PM, Bill Messerich (bmesserich@southstpaul.org) wrote:

Hi Andy, I am just curious to see if any other police agencies are having issues with the ALPR audits. We complied with the statue and paid for an audit, yet the committee basically would like to now conduct their own audit. I believe this is a waste of public dollars and time for our agency. Please call if you have any questions. ThanksBill William MesserichChief of Police South St. Paul Police Department 125 3rd Avenue North South St. Paul, MN 651-554-3300 Fax 651-554-3301 Office 651-554-3302 From: Maren Bardal [mailto:Maren.Bardal@lcc.leg.mn] Sent: Wednesday, December 06, 2017 10:51 AMTo: Bill Messerich Cc: Rep.Peggy Scott ; Callie Lehman ; Nicole Reineke

Subject: South St. Paul ALPR Audit Good Afternoon Chief Messerich, My name is Maren Bardal. I am the Research Assistant for the Legislative Commission on Data Practices (LCDP). We recently received the South St. Paul Police Department Automated License Plate Reader (ALPR) Audit, completed by FRSECURE. The Commission appreciates you supplying us with the audit summary, but would like more information to ensure South St. Paul’s compliance with the ALPR statute, statute 13.824. It is our understanding that South St. Paul’s audit summary satisfied parts of 13.824, but did not provide certain details on how South St. Paul is complying. At this time, the Commission is requesting more information on how South St. Paul has complied with 13.824. I have attached the Department of Administration’s ALPR Audit Review handout

attached the Department of Administration’s ALPR Audit Review handout that outlines and supports our request for further information. Below is a list of what the Commission is requesting, this list is consistent with th