Negotiators Gaining from Training: Publishing Hostage and Barricade Situations, and the Ethical Concerns
The Author extends thanks to Assistant District Attorney Ann L. Diamond, J.D. and Professor Tomas Mijares, Ph.D. for their help in developing the material for this paper. Their insights are appreciated.
Abstract and Issue
The time has long-passed when information gathered or disseminated by law enforcement can be utilized for training and other purposes without adequate consideration of both the ethical and legal ramifications of doing so. Witness those instances of potential plagiarism when specific materials or personal or copyrighted information has been used without attribution or consideration of the consequences of such acts. Members of law enforcement often refer to themselves as being professionals. To be a true professional, one must act professionally. Part of doing this effectively is to take seriously and personally the ethical and legal aspects of how information is handled.
The issue addressed here concerns the ethical and practical considerations involved in publishing case studies and other manuscripts describing hostage and crisis situations faced by law enforcement in the United States. Specifically, the requirements that must be heeded when detailed information is published about critical incidents, and the actors within these incidents, will be discussed. The personal privacy aspects of utilizing certain information obtained during these police incidents is of continuing concern in specific counterpoint to the needs of these specially trained law enforcement personnel to learn from what has taken place. Such knowledge is indispensable to the successful management of future situations. A flow chart is provided to aid in resolving both the ethical and legal issues that may be present.
Case studies are encountered from many sources. Such studies are often submitted to professional or trade journals or received by trainers. Journals probably receive the greatest share of these studies. As such, they are related to field procedures and practical direction. Periodically, a journal may have a regular feature section dealing with case studies. Most of the discussions concerning past hostage and barricade situations may be contained in a case study format. In every case, a manuscript submission and release form is usually signed and submitted by each and every author or submitter. This allows for the necessary copyright transfers, if to be published, and also the retention of rights to use of the material by the authors. In unusual cases when private individuals, victims, etc., are mentioned in the article or case study, additional releases may be obtained. The below Flow Chart may be consulted in determining how the issues discussed herein might be handled. (See Figure 1)
Specific Points of Concern and Conclusions
- A hostage or barricade situations is a police operation and as such is generally a matter of public record.
- Usually, depending on jurisdiction, much of the incident report generated from such situations is available for public perusal. Some parts of the incident report generated by involved officers can be obtained easily by citizens. Some cannot. Those reproducing case material for publication or training are urged to check with their police department attorney to learn if any information gathered should be avoided in the final manuscript.
- To the knowledge of this author, there exists no "negotiator - bad guy" confidentiality law that covers these incidents. What is said during these times is not privileged speech. No duty of maintaining confidentiality is imposed by law on the negotiator or on the negotiating team. Such an imposition may occur due to policy, however. Additionally, the reasonable expectations of privacy on the part of the subject may contribute to this conundrum.
- Although protecting the identity of an actor in these situations may not be mandated, such information is not usually relevant to the goals of a Journal or of training. If such information is needed, specific releases may be sought and required by the Editor. Because the usable substance of actual reviewed situations does not need the identity of the civilian participants, these are usually omitted or changed, and no releases are necessary.
- Some of the laws of the United States relevant to hostage and crisis negotiations are available to the reader below. Also, they can be found in The Elements of Police Hostage and Crisis Negotiations(2008), the reference for which is listed below.
- Several case studies are available below and on request to demonstrate the use of relevant and instructive information that is considered beneficial for negotiators to know and from which to learn. Generally, the focus is on strategies used, and what worked and what did not.
- An actor who reveals information during law enforcement negotiations may have no expectation of privacy due to the emergency circumstances presenting.
- Also, non-consensual monitoring of telephonic conversations under emergency situations does not receive the benefits of privacy laws. Check your jurisdiction for guidance.
- Identified vs. Identifiable. For the purposes of publication and training, as well as for dissemination of immediately usable information, identities of the involved parties are usually not necessary to gain the benefit of the material. While individual identification can usually be eliminated, other identifiers must be assessed also. Even if the names are changed for purposes of publication or training, and to protect the innocent, facts utilized in the manuscript may render those involved in, or affected by, the incident readily identifiable. Every attempt must be made to avoid publishing such material and those submitting such manuscripts are advised to take this into account to the degree possible. If the Editor or trainer discovers a possible breach in this area, authors are advised to revise or to obtain written releases from those affected.
- Privacy laws vary from State to State in the United States and probably from country to country internationally. Therefore the hurdles to overcome regarding privacy issues may vary widely. Federal privacy laws only provide the beginning to this more specific inquiry.
- The concept of "expectation of privacy" is similarly interpreted differently depending on jurisdiction, case law, etc. If the subject has reasonable expectations of privacy regarding what is said or if case law decides what can be considered a reasonable expectation of such privacy, this will determine, in part, what might be utilized without permission to do so. On the other hand, the facts of a situation utilized in an instructive piece such as a case study in a related professional journal or for training may not be considered private. This may be so if only the facts are utilized without the parties being identified, and if they are not identifiable by the material presented. The simplest model would be to obtain releases from all involved including, but not limited to, subject, victims, relatives, etc.
- If information is revealed publicly, the expectation that such information would remain confidential is probably less than if it were revealed in a more private venue. Regardless, the information is probably not privileged and could be revealed in court if required.
- The intended use of the information may factor in also. Greater leeway might be expected if the material used was for educational or instructive purposes. This may be especially so for instruction to those who may have to deal with similar situations in the future as the one presented.
Ann L. Diamond, J.D. (personal communication, August 14, 2009)
Negotiators Gaining from Training: Publishing Hostage and Barricade Situations, and the Ethical Concerns, By James L. Greenstone
Copyright © 2011 James L. Greenstone
Copyright © 2011 The Negotiator Magazine
The Negotiator Magazine (September, 2011)