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September 2011

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The Handgun Trigger Pull Assessment for New Law Enforcement/Security Candidates

By Bruce Cameron

Recruitment plays a crucial part in the success or failure of a business. In terms of organizational or corporate behavior, hiring the right people can make all of the difference in the world. This really rings true with law enforcement and security departments. Police and security administrators and trainers need to know what kind of people they will be bringing on board for a variety of very important reasons. It is essential that they learn as much they can about the individual candidate before the hiring and training process begins. The more information they have the better. Their decisions will indeed affect the future and safety of the department and the outcomes of people’s lives. Currently, there are a number of performance tests and other evaluations that law enforcement and security departments can use to ascertain, diagnose, and measure certain skill levels. Here are a few examples and all have their place:

  • Physical Fitness Tests (ie, Endurance, Agility, Obstacle Course, Dash)

  • Weapon Proficiency Tests (Manipulation and Marksmanship)

  • Specific Written Tests (on Appropriate Subjects/Standardized Tests)

  • Written Assignments (Writing An Essay, Short Answer Questions)

  • Reading Comprehension Examinations (Reading Diagnostics)

  • Psychological Screenings and or Personality Tests

  • Polygraph Tests

  • Interviews (Oral Communications)

  • Job Aptitude Tests

  • Cognitive, Observation or Memory Tests

  • Scenarios or Role Playing, Talking in Front of an Audience

When combined with background investigation information, a valid job task analysis, and a set of standards and job specific prerequisites, the results of these tests definitely help employers make good sound decisions about their new personnel. The ability to pre-test and screen new law enforcement and security recruits is the first step to creating an effective, productive, and professional group. If not, the alternatives and consequences may stay with you for a long time.

Handgun Trigger Pull Assessment – A Screening/Pre- testing Technique or Tool

The handgun trigger pull assessment is one unique technique that can be used to supplement the pre-testing process for new recruits. Note: It is essential that you discuss this with your personnel, legal or human resource department, so that it meets your hiring/testing criteria. From a reliability and validity perspective, it is recommended that you try it out first and “not” use it as a qualifier or disqualifier until you deem appropriate. The real rationale and purpose of this article is to emphasize that there are demonstrable tools available that can be used to assess the future training “needs” of new personnel while determining people’s strengths and weaknesses at the same time. Understanding initial proficiency levels will give you (the trainer) the opportunity to plan ahead and make good choices about who you hire and how you train.

You will want to discover as much as you can about the individual candidate in a relatively short period of time as you can. But in so doing, you will need to provide a reliable test under fair conditions so that everyone has an opportunity to succeed.

The trigger pull assessment can be a significant learning/teaching tool particularly in getting prepared for firearms training, helping new recruits improve their grip strength prior to them entering the program, planning for remedial training, and setting goals for the curriculum. You can discern many things by watching how an individual picks up and handles a weapon for the first time for example. It may allow you to correct unsafe behavior on the spot. It may provide you time to demonstrate certain techniques, and or it may give you a good starting point in determining what their firearm capabilities will be when they enter your training program. So it will help you help them a lot.

First of all, on the day of pre-testing, the trigger pull assessment can be used in conjunction with the other types of activities you may choose to do. It must be performed in a safe place (for example, it could be a firing range, a simulator room, or secure training/classroom area etc.) with an empty weapon, and to set the stage for later on, have the candidates follow all range safety rules as a part of the operation. It must be run in an organized fashion like you would do on the range. The handguns themselves must be dedicated “training or classroom” weapons (perhaps set aside for activities such as this) that have been deactivated and they must be marked (color coded) and inspected accordingly. No live ammunition should be present. Empty handgun speed loaders or magazines also could be used. When the weapons are handed out, have everyone face in down range mode, and please inspect them again and double check to make sure everything is clear. Basically this is a dry fire exercise but it should be handled as if you were out on the firing line using range commands and range procedures.

The new candidate will be asked to participate in two trigger pull assessments with the handgun of your choice. It would be wise if you use the same weapon that your department utilizes in order to better judge the results and also it would better simulate your qualifications and courses of fire. The factory authorized trigger pull weight should also be paralleled. What these two assessments will hopefully give you in return is this. You may wish to make a check sheet out of the following:

  • Do the individuals have the strength needed to pull the trigger the appropriate number of times in order to meet firearm training and qualification criterion.

  • Do the individuals have the skills to safely manipulate the weapon (for example, hand dexterity and strength, locking the slide to the rear, closing the slide, loading an empty magazine, lowering the hammer, performing safety function checks etc.)

  • Do the individuals know what low ready and muzzle control mean. Or is he/she pointing their weapons in different directions.

  • Does he/she understand range commands and follow directions. Or do they look confused.

  • Can he/she perform weapon tasks sequentially (in the right order).

  • Do individuals understand the basic rules of firearm safety and the concept of downrange, how one picks up a weapon or hands a weapon off to another party.

 

For those who do “not” do well on the numbers – you may have a problem/weakness with those students in the class – i.e., poor firearm fundamentals, carpal tunnel syndrome, nerve damage, or lack of strength. If students cannot pull the trigger a certain amount of times with an empty weapon, how do you expect them to do it with a “live weapon?” These people will have to practice and you will need to inform them of that fact. You should also give them exercises to do to strengthen their grip. It also may give people time enough to improve. The trigger pull assessment is to be conducted by members of your training staff. There have been no norms established per se for the trigger pull assessment. However, it should be expected that perspective students be able to complete the qualification course (Assessment #1) with no problems. Based on our current research, scores at least a minimum 50 with the strong hand and a minimum of 35 – 40 with the weak hand on Assessment 2. Average scores should range much higher (70s and 80s) and you may see some in the 100s. This has proved to be pretty good data so far but please keep in mind there have been no scientific studies done on this yet. If they score in the 40s or lower, it “may” mean you have to come up with a plan for them. It is also a good idea to provide warm up periods (stretch, shake out the hands) and a small break in between the tests. Departments should use their own courses of fire and times and adjust things that best suit them. Try it yourselves and see how you do.

 

Assessment #1

To establish a baseline, the new candidate will be required to safely pull the trigger x amount of times (for example, x =2, 3, 4, or 6 etc. rounds fired.) within the allotted time limits (i.e. 3, 5, 10, 20 etc. seconds) for each stage of fire of your qualification course. You should use your own Departmental Handgun Course of Fire when you do this. The assessment should be patterned after your course and conducted in the same series of stages and intervals as you would on the range. At your discretion, the time frames involved may be modified to account for position changes or when you are simulating reloading. The training officer will call the course out loud and the candidate will respond to the directions by pulling the trigger the appropriate amount of times for each stage. The candidate should use the right, left, or both hands (as dictated by the course) and they should use the position that is specified (i.e., kneeling, standing, or prone). An example of a quick and easy score sheet is listed below. The candidate will be given a break between the first and second assessment. All stages will begin from the low ready. Most people will not have any problems with this so use it as a warm – up. If you have available holsters, please feel free to use them as well.

Sample Course of Fire

Stage(s) of Fire Times Number of Rounds Position

EXAMPLE: “Your first stage of fire will be at the three yard line. From the low ready, you will move into the standing position and fire two rounds center mass in 3 seconds. Then go back into the low ready. Is the line ready? The line is ready, fire.”

Insert Your Departmental Course of Fire Here

Assessment #1 Score sheet:

Completed All Stages of Fire __________

Did Not Complete: _________

(Annotate number of rounds fired for each stage).

Stage I _____

Stage II _____

Stage III _____

Stage IV _____

Stage V _____

Stage VI _____

Comments: Example Note: Shooter has problem with weak hand. And can only pull trigger 10 times._______________________________________________________

_________________________________________________________________.

Assessment #2

To gauge strength and endurance, each candidate will be asked to pull the trigger as many times as he/she can within a time period of 60 seconds. This exercise will be done twice.

Each hand – one hand only (i.e., the right and the left) will be used. The amount of times that the trigger is pulled for each hand will be counted and recorded (indicated below). The trainer will do the timing. In addition, you can have an additional trainer do the counting or if done in relay groups, have a partner of one of the students do it.

Number of Right Hand Trigger Pulls ________

Number of Left Handed Trigger Pulls _________

Comments: ___________________________________________________________________

_____________________________________________________________________________.

Summary

I hope this little exercise during the pre-screening process for new hires will help. In the long run, we have found here, that it is a very valuable tool for detecting firearm related problems before they begin. At the same time, it is a process that will benefit the trainer and the student for the future in meeting the demands of the times.

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By Brian Willis

Let me start by saying I am a huge advocate of safety in training and it is critically important that you have safety rituals in place for conducting reality based training. We must stop killing officers in 'training accidents'. Having said that, I have come to the realization over the years that too many trainers are using 'safety' as a crutch and an excuse not to conduct realistic and potentially life saving training. 

Trainers preach to officers to "never place yourself in a crossfire situation". Avoiding crossfire is sound tactical advice. What if however, the subject places the officers in a crossfire situation? Are the officers prepared to win that fight or are they going to hesitate because of training, or lack there of?In Lakewood, Washington the subject entered the coffee shop intent on killing four officers and created a crossfire situation. In Maryland, a bank robbery suspect leaves a bank with a gun to a hostages head and is challenged by a number of armed officers. When he slips on some ice the hostage runs away and the hostage taker runs into the group of armed officers creating a crossfire situation. An officer is fighting over his weapon with a subject who is attempting to disarm and kill him. Because they are in contact range the cover officer now finds herself in a crossfire situation. In each of these situations the subject's actions created the crossfire situation. The officers did not violate their tactical training and place themselves in this position. These situations often cause officers to hesitate as they have never been trained to shoot effectively at close range or when a crossfire situation exists. 

I believe the solution is simple. Make time in training to address these types of situations. Use plastic training guns and place officers in a variety of situations like the ones above and let them work through the problem. The solution may very well be for one or more of the officers to close the distance and shoot the subject from an inch or two away. The sad reality is that very few agencies in 2011 are teaching this tactic in the academy or at an inservice level. In fact, the closest many officers ever get to a target they shoot is the 3 yard line at the range.

Too many trainers fail conduct training for winning fights when officers are in a crossfire situation and use safety as an excuse. Trainers fail to train officers to shoot someone from inches away and use safety as an excuse. While safety may be a valid reason for not using non lethal training ammunition in some drills it cannot be an excuse for failing to provide proper training. 

Trainers use safety as the reason officers are not allowed to move on the range and then wonder why officers fail to move in a gun fight or struggle to draw their gun while they are moving. Trainers use safety as an excuse for why officers are not allowed to pick up a fully loaded magazine if they drop it on the range. As a result some officers are conditioned not to pick up that magazine on the ground that may save their life.

It is time to stop using safety as an excuse. Find a way to conduct safe, effective training that truly gives officers the skills they need to win fights and go home to their families. 

Next week I will look at safety excuses during control tactics training. 

Take care.

Brian Willis

 

Is Safety Killing Officers?
Part 2

Last week I addressed some firearms training issues where I believe safety is being used as an excuse to avoid conducting effective training. These excuses may be costing officers their lives in the field. This week I will continue with that theme by exploring training and environmental awareness.  

Trainers continually encourage officers to have 'environmental awareness' despite the reality your training programs may be doing just the opposite. During subject control tactics training the environment is often strictly controlled to ensure there is adequate room between officers. This is done for 'safety' reasons to prevent collisions during takedowns, officers tripping over each other or someone being struck with a training baton during drills.

In many combatives rooms or training areas all objects are removed from the floors so that no one trips over anything and falls or rolls an ankle. On the face of it this makes perfect sense and may be appropriate during the very early stages of training where officers are just learning skills and tactics. Unfortunately, trainers often maintain this strict control throughout entire training programs.

My concern is this type of strict environmental control eliminates the need and the ability for officers to actually develop environmental awareness.

Consider placing striking bags and other obstacles on the floor early in training and force officers to be aware of their environment. As soon as possible get the officers out of the open environment into rooms with furniture and people. This will help officers to be aware of the environment while also learning to deal with subjects in realistic environments. 

As officers progress through training you can take away some of the room between officers and groups. This forces the officers to be aware of their environment and the people and objects around them. You can have other people or objects in the area that may pose an additional threat to the officer. Doing so creates an environment where officers need to get their head on a swivel scanning for threats as soon as the highest priority threat is in control. By simply adding these environmental and contextual factors in an incremental manner throughout training you can develop the skill of environmental awareness in your officers. 

There must always be a balance between safety in training and training appropriate skills and environmental awareness. Safety is a critical element in training. At the same time you must be aware of becoming the 'over protective parents' you accuse of coddling the younger generations. 

Take care.

Brian Willis

Brian Willis is an internationally recognized thought leader, speaker, trainer and writer and President of the innovative training company Winning Mind Training. Brian was a full time police officer with the Calgary Police Service from 1979 to 2004. He is the recipient of a Lifetime Achievement Award in recognition of his contribution and commitment to Officer Safety in Canada and was named Law Officer Trainer of the Year for 2011.

Brian serves as the Deputy Executive Director for the International Law Enforcement Educators and Trainers Association (ILEETA). He is the editor and contributing author for the acclaimed books W.I.N.: Critical Issues in Training and Leading Warriors and W.I.N. 2: Insights Into Training and Leading Warriors, If I Knew Then: Life Lessons From Cops on the Street. And If I Knew Then 2: Warrior Reflections. He is also a contributing writer for the book Warriors: On Living with Courage, Discipline and Honor.

He can be reached through his website at www.winningmindtraining.com 

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By  John Reid & Associates

A witness is anyone who possesses direct information pertinent to an investigation. Sometimes witnesses are forthcoming and fully cooperative, other times they are reluctant to get involved and occasionally they are deceitful in an effort to protect themselves, an accomplice or loved one. There are many factors that may influence the accuracy of a witness' statement including trauma, passage of time, prejudices, influences of drugs or alcohol, age, and psychological/ physiological disorders. Finally, witnesses are interviewed in a number of different settings, ranging from a totally uncontrolled setting (outside a bank that was just robbed) to a semi-controlled environment (the witness' home or office) or in a controlled setting (the investigator's office).

With all these variables, obviously there is no single best technique to develop information from a witness. Consequently, this web tip will present a number of different concepts relating to witness interviews which the investigator will need to appropriately apply. There is, however, a single underlying principle: the more time the investigator spends talking to the witness, the more information will be learned. Regardless of how cooperative a witness may be, the investigator should never accept a witness's first version of an event as final and complete. A witness rarely initially volunteers all the information he or she possesses; the investigator must draw it out by asking follow-up questions and perhaps even consider using memory-enhancing techniques.

1.     Identifying a good witness. Consider that a pedestrian was struck by a car when crossing the street. By the time the police officer arrives on the scene, ten individuals have congregated around the accident. The officer may be tempted to approach a person in the crowd and ask, "Did you see what happened?" This direct approach to locate a witness is likely to produce a response such as, "I can't help you. I just got here."

The officer would be much more productive in identifying a knowledgeable witness by initially asking an individual in the crowd, "Do you know who may have seen this happen?" This question is likely to produce a response such as, "That woman over there was here when I arrived and by the way she's acting it looks like she saw the whole thing." Armed with this insight, the officer could approach the identified woman and state, "Ma'am, I understand that you were here when this happened. Would you help me out by telling me what you saw and heard?"

It may also be beneficial to observe the behavior of potential witnesses in a crowd to identify a person who is likely to possess information and be willing to share it. The individual may appear animated in discussing the incident with those around them, appear approachable by exhibiting an open posture and a friendly facial expression. When the investigator attempts to make eye contact the willing witness may turn toward the investigator and return mutual gaze.

2.     Interview multiple witnesses separate from each other. Consider that three people witnessed the same fight in a bar. If the investigator approaches them and asks, "What did you see?" one witness is likely to do most of the talking while the other two nod in agreement. Three individuals can witness the exact same event but their recollections of the event may differ slightly. To account for individual differences, it is important that the investigator conduct three separate interviews. This technique is also useful to identify possible biases or omissions within a particular witness' statement.

3.     Create the most private environment possible for the interview. Almost every witness statement attributes blame to someone or something for the observed event. Psychologically, pointing a finger at a responsible person is difficult for most individuals. This difficulty increases substantially when a witness' statement incriminates a friend, family member or accomplice. To ease the psychological burden of implicating others, the investigator must afford the witness privacy.

Once a witness is selected from a crowd it would be appropriate to escort the witness 15 or 20 feet from the crowd before asking questions about the occurrence. In some situations, it may be appropriate to place the accused person in custody in the back seat of a squad car and then privately question the witness out of the accused person's presence. There may be instances where the witness' statements will be so critical to the successful prosecution of the guilty that the investigator may choose to interview the witness in the confines of an interview room in a law enforcement center. Regardless of the circumstance, the important message is that once a witness is located the investigator should do whatever is possible to afford the witness privacy before expecting that person to provide accurate and meaningful information.

4.     Do not elicit personal information from the witness (full name, address, telephone number) early during an interview. The reason many witnesses are reluctant to offer information is the fear of getting involved in the legal system (testifying in court, being named as a source of information to obtain an arrest warrant, etc.) Consequently, once an investigator identifies that a person may have information pertinent to an investigation, the information should be elicited in a casual manor, e.g., "Good evening sir. I'm a police officer investigating this incident. Can you tell me what happened?" Only after the witness has provided the desired information should the investigator elicit personal information.

For much the same reason, the investigator should refrain from taking written notes early during the interview. Not only does note-taking remind the witness of the permanency of the statement, but it can be a distraction and affect the natural flow of information. Once the witness has made a complete oral statement the investigator can pull out a pen and paper and document what was said.

5.     Introduce each area of the interview with an open question. Research and empirical observations clearly indicate that the most effective technique to develop full and accurate information from a witness is to start with a broad question, e.g. "Please describe the car for me" than to ask a series of closed-ended questions, e.g. "What color was the car?"; "Was is a van or sedan?" How old do you think the car was?"

When asking an open question the investigator should not influence the witness' statement by making assumptions within the question. Witnesses are often nervous when talking to an authority figure and may be eager to please the investigator by saying what they think the investigator wants to hear (or already knows). Consider that a woman heard a loud noise coming from the liquor store across the street and saw a person run out of the store following the sound. As it turns out, the liquor store was just robbed and the clerk was shot dead. It is improper to ask this witness "Describe the man who robbed the liquor store" because the question assumes that the robber was a man and that the person being described is the person who robbed the liquor store. Rather, the investigator should ask "Describe the person you saw leave the liquor store after you heard the loud sound."

Once the witness starts to respond to the investigator's open question, the investigator should not interrupt the account. Rather, he should encourage the witness to fully respond to the question with phrases such as "please continue," "I understand," or "alright." Certainly, during the course of an open account additional questions will occur to the investigator. However, if the investigator interrupts the witness' response with a detail question, e.g."How many shots did you hear?" the interview will quickly deteriorate to an undesirable question and answer session.

6.     Ask clarifying questions before detail questions. As the name implies, clarifying questions are intended to draw out further information about a topic mentioned within an open response. Examples of clarifying questions include, "Tell me more about what you heard prior to the fight;" "Describe the vehicle that struck the woman"; or "Tell me again about what caused you to step out of your house?"

Detail questions seek specific answers and should be reserved for the conclusion of the interview. They fill in gaps of missing information not volunteered by the witness through the use of open or clarifying questions. Examples of detail questions are, "What time did this happen?" "What color was the car?" "Did he strike him with his left or right hand?" Because detail questions force the witness to offer specific information, they are the most likely questions to elicit false information. Failure to offer a definitive response to a detail question holds a negative connotation - the witness is stupid, the witness is uncooperative, the witness is withholding information. Consequently, witnesses are prone to lie to detail questions.

7.     Memory - enhancing techniques. It is the investigator's goal to develop accurate and complete information from a witness. The previously listed techniques are designed to increase the accuracy of information. To increase the amount of information a witness recalls, consider these tactics:

Traumatized witnesses should always be re-interviewed at a later date. Especially when the witness is also a victim, it is important to gain immediate information in an effort to quickly identify a possible suspect and collect relevant evidence. Frequently, however, a traumatized witness will be able to recall further information 24 or 48 hours following the incident. After taking the initial report, the investigator should prepare the traumatized witness for a second interview with a statement such as the following:

"Linda, I know this has been difficult for you and I really appreciate your assistance. In cases like this, I have found that a person will remember more about what happened if given some time to think about it. I would like to talk to you again tomorrow afternoon to update you on our investigation and to find out what else you remember. Would that be alright?"

Have the witness write down their recollections. Many individuals are kinesthetic thinkers in that the act of writing will help stimulate and organize memories. This should not be introduced as a "written statement" but rather as a technique to assist the witness' recollection. For example, the witness may be given a sheet of paper with the numbers one through ten listed as a column and asked to write down, in sequence, ten recollections about the event. Once this task is completed, the investigator can ask the witness to try to add two more recollections following each of the ten points.

Consider using cognitive interviewing techniques. These specialized techniques are specifically designed to enhance a person's recall. They require a cooperative witness and should be utilized in a controlled environment. The witness should be relaxed and comfortable. It may also be appropriate to ask the witness to close their eyes to help concentrate.

The first technique involves recalling the incident in reverse order. The witness would be asked to start their story with the last recollection, and working toward the first recollection. The investigator could also ask the witness to tell their story from a different perspective. For example, in a hit and run accident, the witness could be asked to tell the story from the victim's perspective.

A second concept within cognitive interviewing involves asking hypothetical questions about the recalled event. In the process of answering these questions, further memories may be stimulated within the witness. Examples of these questions include:

"Did he remind you of anyone you know?"
"Why do you think he was dressed the way he was?"
"What do you think the man did for a living?"
"Where do you think he was from?"
"Did the man mention any names?"

Conclusion

Developing accurate and complete information from witnesses is critical to any criminal investigation. This information may determine whether or not a crime was committed, the direction in which an investigation goes and the identification of the perpetrator of a crime. Yet, too often, investigators engage in procedures that fail to identify valuable witnesses to a crime, or question witnesses with techniques that result in missing or erroneous information. Of primary importance, investigators need to create a private environment to interview witnesses which will, in turn, allow for more structure within the interview. Specifically, the investigator should start the interview by asking open questions followed by clarifying questions. Only at the conclusion of the interview should the investigator ask detail questions, take written notes and obtain personal information about the witness.

 Credit and Permission Statement: This Investigator Tip was developed by John E. Reid and Associates Inc. Permission is hereby granted to those who wish to share or copy the article. For additional 'tips' visit
www.reid.com; select 'Educational Information' and 'Investigator Tip'. Inquiries regarding Investigator Tips should be directed to Janet Finnerty johnreid@htc.net. For more information regarding Reid seminars and training products, contact John E. Reid and Associates, Inc. at 800-255-5747 or www.reid.com.

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Reprinted from  WWW.PATC.COM

Supreme court vacates warrant requirement for child interviews

June 2011
by Brian S. Batterton, Attorney

On May 26, 2011, the United States Supreme Court decided Camreta v. Greene et al., [i] and vacated a decision of the Ninth Circuit Court of Appeals which had effectively required child protective service officers to obtain warrants in order to interview victims of child abuse, absent parental consent. The facts of Camreta are as follows:

In February 2003, police arrested Nimrod Greene for suspected sexual abuse of a young boy unrelated to him. During the investigation of that offense, the boy's parents told police that they suspected Greene of molesting his 9-year-old daughter S.G. The police reported this information to the Oregon Department of Human Services, which assigned petitioner Bob Camreta, a child protective services caseworker, to assess S.G.'s safety. Several days later, Camreta, accompanied by petitioner James Alford, a Deschutes County deputy sheriff, went to S.G.'s elementary school and interviewed her about the allegations. Camreta and Alford did not have a warrant, nor had they obtained parental consent to conduct the interview. Although S. G. at first denied that her father had molested her, she eventually stated that she had been abused. Greene was indicted and stood trial for sexually abusing S.G., but the jury failed to reach a verdict and the charges were later dismissed. [ii]

Sarah Greene, S.G.’s mother, sued Camreta and Alford on her behalf under 42 U.S.C. § 1983 for allegedly violating S.G.’s Fourth Amendment rights to be free from an unreasonable seizure. The District Court granted summary judgment for all defendants in the case. S.G. appealed to the Ninth Circuit Court of Appeals.

The court of appeals held that the officers violated S.G.’s Fourth Amendment rights when they seized and interrogated her without a warrant, absent court order, exigent circumstances, or parental consent. However, the court granted the officers qualified immunity from suit because there was not clearly established law that put the officers on notice that their conduct was illegal. In deciding the case, the court of appeals said that it wanted to “provide guidance to those charged with the difficult task of protecting child welfare within the confines of the Fourth Amendment.” [iii] Specifically, the court of appeals stated

[G]overnment officials investigating allegations of child abuse should cease operating on the assumption that a 'special need' automatically justifies dispensing with traditional Fourth Amendment protections in this context. [iv]

Camreta and Alford then petitioned the United States Supreme Court to grant certiorari to hear the case. The Supreme Court granted certioriari.

The two issues before the Court were as follows:

  • May government officials who prevail on grounds of qualified immunity obtain the Supreme Court’s review of a court of appeals’ decision that the officials conduct violated the Constitution?
  • If the first issue is answered affirmatively, did the Ninth Circuit correctly decide that the interview in this case violated the Fourth Amendment?

In addressing the first issue, the Supreme Court discussed their authority to adjudicate legal disputes under the Constitution. First, the litigants must have a personnel stake in case that remains an issue when the Supreme Court hears the case. In this case, the Supreme Court noted that the government officials do still have a present stake in this case, even though they have been awarded qualified immunity from the lawsuit. Their “stake” comes from the fact that the Ninth Circuit’s decision has greatly impacted how child welfare workers and police officers perform their duties, since these officials must now comply with this now “clearly established” law. As such, future violations of the holding would likely result in a denial of qualified immunity since the law had been clearly established.

The court also discussed the fact that they typically decline to hear a case at the request of the prevailing party. However, the Court stated that in certain types of cases such as this case, they may choose to depart from their normal practice. Specifically, the Court stated

We think just such a reason places qualified immunity cases in a special category when it comes to this Court's review of appeals brought by winners. The constitutional determinations that prevailing parties ask us to consider in these cases are not mere dicta or "statements in opinions." They are rulings that have a significant future effect on the conduct of public officials -- both the prevailing parties and their co-workers -- and the policies of the government units to which they belong. And more: they are rulings self-consciously designed to produce this effect, by establishing controlling law and preventing invocations of immunity in later cases. And still more: they are rulings designed this way with this Court's permission, to promote clarity -- and observance -- of constitutional rules. We describe in more detail below these features of the qualified immunity world and why they came to be. We hold that taken together, they support bending our usual rule to permit consideration of immunized officials' petitions. [v] [internal citations omitted]

When applying the above standard to the facts of this case, the Supreme Court noted that the Ninth Circuit specifically made their ruling in Camreta in order to provide instruction to government officials regarding future in-school interviews of child sexual abuse victims, that ruling has far reaching policy impacts on public official (child welfare workers and law enforcement officers), and the rule could result in preventing immunity in future cases.

Therefore, the Supreme Court held that the decision is reviewable even though Camreta prevailed on qualified immunity.

The Supreme Court then sought to clarify the limits of their holding on the first issue in this case. The Court stated:

We emphasize, however, two limits of today's holding. First, it addresses only our own authority to review cases in this procedural posture. The Ninth Circuit had no occasion to consider whether it could hear an appeal from an immunized official: In that court, after all, S.G. appealed the judgment in the officials' favor. We therefore need not and do not decide if an appellate court, too, can entertain an appeal from a party who has prevailed on immunity grounds. Second, our holding concerns only what this Court may review; what we actually will choose to review is a different matter. That choice will be governed by the ordinary principles informing our decision whether to grant certiorari -- a "power [we] . . . sparingly exercis[e]." [vi]

Having determined that they can choose to review case brought forward by the prevailing party, the Supreme Court then examined S.G.’s stake in this case. S.G. now lives in Florida and is only months away from her 18th birthday. She stated that she does not intend to return to Oregon. Therefore, the Supreme Court concluded that S.G. has “not the slightest possibility” of being seized and subjected to an interview while in school. [vii] The Court stated

When subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur, we have no live controversy to review. [viii] [Internal citations and quotations omitted]

Thus, the case is moot and the Supreme Court determined that it lacked jurisdiction to hear the case.
Since the Supreme Court determined that they do not have jurisdiction to hear the case, they had to decide what to do regarding the second issue. To review, the second issue is very important because dealt with whether or not the officers violated the Constitution when they conducted a warrantless interview of the alleged child sex-abuse victim in school. The Supreme Court stated:

When a civil suit becomes moot pending appeal, we have the authority to "direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." 28 U.S.C. § 2106. Our "established" (though not exceptionless) practice in this situation is to vacate the judgment below. [ix]

This is done out of fairness to the party that cannot have the court address their controversy. The court stated the rule as follows:

A party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, we have emphasized, ought not in fairness be forced to acquiesce in that ruling. The equitable remedy of vacatur ensures that those who have been prevented from obtaining the review to which they are entitled [are] not . . . treated as if there had been a review. [x] [internal citations and quotations omitted]

In other words, the Court states that it would be unfair to fail to decide the merits of the case because some unforeseeable circumstance renders a case unreviewable. Thus, court looks to apply an equitable remedy. As such, the ruling of the Ninth Circuit, to the extent that it ruled the officers violated the Fourth Amendment, is vacated.

  • This ruling does not mean that the interview conducted in Camreta was constitutional. Rather, it means that the portion of the Ninth Circuit’s holding in Camreta regarding S.G.’s interview is vacated and no longer binding case law. The law is again not clearly established in regard to future conduct.
  • Government officials should remember that they are still bound by the specific laws of their state that govern conduct during interviews with juveniles.

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Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.

[i] 09-1454, 09-1478, 2011 U.S. LEXIS 4016

[ii] Id. at 11

[iii] Id. at 13

[iv] Id. (quoting Camreta v. Green, 588 F.3d 1011, 1033 (9th Cir. 2009))

[v] Id. at 20-21

[vi] Id. at 28

[vii] Id. at 32

[viii] Id.

[ix] Id. at 34-35

[x] Id. at 35

               

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