Scholarly article: Litigating the Blue Wall of Silence

Scholarly article on corruption and abuse.

How to Challenge the Police Privilege to Delay Investigation

University of Chicago Legal Forum, Forthcoming
U of Chicago, Public Law Working Paper No. 555


Under state law, municipal codes, and collective bargaining agreements, police officers in many jurisdictions benefit from a set of heightened procedural protections. These frequently include provisions restricting the timing and manner by which investigators interview or interrogate police, which we call “interrogation buffers.” One specific buffer is a mandatory period of delay between a use-of-force incident and ensuing investigation or interrogation. Such “delay privileges” have the predictable effect of obstructing investigations, diminishing the likelihood that culpable officers are subject to effective internal investigation, and correspondingly increasing the probability that officers disposed to use excessive force will continue to work the streets without reprimand or supplemental supervision. This Article demonstrates that federal and state tort and contract law — municipal liability under 42 U.S.C. § 1983 or the public policy doctrine of contract invalidity — can be leveraged to improve the efficacy of post-incident investigations by challenging delay privileges. Although such suits will not always succeed, there are powerful reasons to use them to raise the fiscal and reputational cost of maintaining a widespread policing practice that serves largely to promote unlawful police violence.

Number of Pages in PDF File: 29


On July 19, 2015, a University of Cincinnati police officer named Ray Tensing shot and killed an unarmed African-American motorist called Samuel Dubose. Explaining his decision to use deadly force, Tensing reported “being dragged by [Dubose’s] vehicle and [having] to fire his weapon,” an account corroborated by at least another officer.1 Tensing, however, was wearing a body camera that documented a different set of events. As the camera showed, Dubose neither threatened nor harmed the officer. No-one was dragged behind his car. 2 Eleven days after the shooting, the Hamilton County prosecutor indicted Tensing on murder charges, explaining that Tensing’s initial account had been fabricated.3 The officer who corroborated Tensing’s false account was not indicted; he apparently remains on active duty.4 The Dubose shooting is exemplary of recent instances in which video evidence reveals a schism between officers’ ex post reports of how force was employed, and the events in question.5 In particular, the Dubose case is illustrative insofar as it involved concurring false exculpatory testimony from plural officers. 6 Officers do not always shield their colleagues. In other instances, officers witnessing their colleagues’ use of excessive force choose to become whistleblowers.

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