Litigating the Blue Wall of Silence: How to Challenge the Police Privilege to Delay Investigation

Abstract

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.

Keywords: Fourth Amendment, police force, tort liability, collective bargaining agreements