Law Officer Volume 4 Issue 7 Last month I focused on preparing officers and agencies to deal with the immediacies of the officer-involved shooting (OIS). This month, I ll expand a bit further on the initial response, and then look at the aftermath.
Initial Response
Initial-response matters are time-critical and action-intensive, so you must prepare your first responders for them. There s no fixed script, so we must work off of response concepts. Simply put, we must establish priority communications, identify the danger area, identify the danger source, eliminate remaining dangers, stop the criminals involved and render assistance to officers and citizens. When that s accomplished, the follow-on response becomes less time-critical and the action phase more measured.
What takes place as officers respond to an OIS and the subsequent investigative process? Initial responding units must see to life-safety issues immediately and determine the scope of the crime scene. The scene perimeter must be identified and taped/blocked off, but only after securing the scene. The violence may erupt again, caused by distraught family, friends of the offender or criminals seeking to exploit the situation. During an OIS investigation in Los Angeles, scene containment and perimeter officers were forced to fire on a gunman who attacked them during investigation of the first OIS. As a matter of officer safety, particularly for the investigators, perimeter officers must stand vigilant and rotate periodically.
Do you have a plan for add-on manpower? Are mutual-aid agreements in place for smaller agencies? When officers arrive, who will supervise their intake and assignment? This requires a division of labor, and a single supervisor often can t handle all the needs.
Are you training your officers to step up to the responsibility if there is no supervisor or the supervisor is the officer involved? An involved officer should not be part of the response once the scene is controlled. Recently I was told of an OIS in which one of the involved officers was put on perimeter security at the scene. Aside from threat-to-life issues that require all officers to stand to, move the officer-involved out of the line of action, regardless of rank. And when ranking officers are involved, obtain outside assistance. Subordinates should not be assigned to investigate their superiors.
A trained supervisor or officer in charge must ask the involved officer the public safety questions as soon as possible. Vital information includes location and identity of offenders and vehicles, weapon location(s), proceeds and related evidence.
The physical condition of officers and offenders must be assessed, and sometimes the police officers must do it because EMS protocols won t allow medics to enter an unsecured scene. Do you have a load-and-go procedure if you must make a life-saving run to the hospital? Have your officers trained to stop life-threatening blood loss with a pressure bandage such as the Israeli Battle Dressing, and are these with them on the street?
Scene response can overload responders with information and priorities if not trained for. A friend in a large city department wrote to say that its street supervisors carry a card that lists the public safety questions and procedures at the scene of an OIS. A smart requirement, because working from memory under extreme stress may cause irreversible failures, such as evidence lost and witnesses gone.
Regarding witnesses, a detective friend from NYPD offered this advice: Officers/detectives speaking to potential witnesses must have a way for bystanders who claim not to be witnesses to contact the officer/detective after they leave the scene. A business card passed unseen to them will work. Some won t want to be seen helping the police, but will speak away from the crowd. People on scene or who show up immediately after claiming not to be witnesses should be treated as witnesses anyway. Get their ID and information.
The Investigation
After the scene and vital evidence are secured and witnesses located and identified, the detailed criminal investigation takes place. Note the word criminal, not civil. OIS investigators focus on justifiable use of force by the officer. As a prosecutor, I saw this first hand. We worked with the police investigators to get a full picture of the events in order to determine whether an officer s actions were justifiable and reasonable under criminal law.
In my experience, police investigators don t focus on potential civil litigation issues. Most say that s another matter that stands apart from criminal issues. Procedurally, that may be the case, but I strongly believe the two are inseparable and that the quality of the criminal investigation will have very significant impact on a civil cause of action. When both venues are addressed or at least kept in mind, the avenues of baseless and specious attack are limited or extinguished.
The most basic fault I ve seen concerns involved-officer reports. In one SWAT OIS I assisted with many years ago, the prosecutor s office insisted that officers who had had no sleep for an extended time write individual statements. Then teams of investigators interviewed the officers. It was clear inconsistencies would occur because multiple sources of reporting won t be identical. This raises the issues of fact in later proceedings. I strongly advised they should choose one method of reporting for accuracy and consistency.
Further, I later learned the teams of investigators didn t have a systematic set of questions, so one officer was asked one set of questions, and the other a different set. It was a learning experience for all, and guidelines were established for future needs. Again, preplanning and preparation prior to an OIS will avoid much confusion.
Comprehensive reporting by investigators minimizes or removes factual disputes that may benefit a plaintiff when deciding a motion for summary judgment. At the earliest stage to seek dismissal for the officer, the motion for summary judgment must be viewed in the light most favorable to the plaintiff. By ensuring a defined interview and statement process is followed and quality control applied, multiple statements and reports won t lead to conflicting reported facts.
Finally, investigators should interview the involved officer last. Like a spiral that gets closer to the center point, question all witnesses before the review with the officer. This gives investigators the clearest picture of events.
Interviewing the Officer Involved
One of the greatest faults of police firearms and use-of-force training is that we solely focus training time on the elements of the incident and neglect what happens afterwards. So, officers under extraordinary stress have nothing to relate to.
The interview should take place when the officer involved has overcome the stress reaction, the lack of sleep and is physically and mentally prepared and alert. To do so before places the officer at risk of being unable to give a complete response that s vital to the investigative process and the officer and agency s welfare.
Officers reputations, careers and freedom rest on their description of the event. An officer gets only one chance to make a statement. Any follow-on thoughts or facts, especially those favorable to the officer, will look self-serving and contrived.
Every officer must have legal counsel, and the attorney must be fully trained in the aspects of criminal law and understand the dynamics of an OIS. The pool of such lawyers is small, but by pre-locating and speaking with union counsel or former prosecutors, you can compile standby names and 24-hour cell numbers.
I ve always treated an OIS interview as I would a direct examination during trial: Every question is mapped out, and every answer known. I don t tell the officer what happened only they know. I help them establish clear and concise answers that speak to the issues of law and policy.
During the interview, I monitor the questioning to ensure everything s covered. In one interview of a sergeant who shot a knife attacker, the issue of lighting conditions was not raised, and it was important. I stopped the process and made sure the question was made part of the record.
If you re the officer involved, have the answers read back by the investigator to ensure you communicated correctly. In another case, an officer shot an armed offender running toward a hospital. In the interview, the investigators took the officer s description of the initial Terry stop to mean he d searched the offender and found nothing, and then searched again and discovered the revolver. The offender pulled away, drew the gun and ran, causing the threat and shooting.
What really happened was the officer conducted a search of the offender s front and then moved to his back. There was only one search of his person. But prior to trial, the judge heard a motion to suppress the arrest based on an illegal search. (Terry allows only one search of the suspect, not two as described by the investigator s report.) The judge agreed, and the case was dismissed. The officer was then sued in federal court and went through four years of turmoil he was found not guilty.
Bottom line: Know what s attributed to you in your statements, and make any correction(s) then and there. Sign nothing until you re certain it s correct.
Finally, note that I ve repeatedly used the term interview. I do not say interrogate. Some agencies and administrators continue to treat their officers as criminal suspects, advising them of Miranda and putting the officer in conflict with their own agency. This occurs even when there s no indication of any wrongdoing.
Who do we Mirandize as part of our daily work? Criminals. My good friend Attorney Laura Scarry speaks to the legal issues of Miranda and Garrity, so I will leave these points to her expert thoughts. But I feel it s grossly wrong to treat our officers in this fashion.
I often wonder where this started and am certain it falls on those who have a total lack of understanding or empathy. We hire, train and retrain our officers to protect themselves and the public. When they act within the law at great need, why do some administrators suddenly consider them suspect? They did exactly as trained.
The Press
Working with sheriffs and chiefs, I learned early on that the worst response to the media is none at all, or The matter is under investigation, no further comment. Such a response is suspect on its face, and it gives no information or confidence to the public. And once the damage is done to public confidence and to the officer s reputation, it can t be undone.
Every administrator should have public information officers who are versed in the needs and methods of the media. Many television and print reporters have short deadlines and want something they can report. If we don t give them the basic outline of events, they will seek out people who know nothing in fact but have much to say. Rest assured, it will be negative.
By informing the media and working with them to the level you can, much bad press will never take place. There will always be journalists who are against the police no matter what, but we can t waste our time trying to convert them.
The greatest defense and offense in all matters is the truth. Speak it as soon as feasible. Tell the media a violent armed criminal offender tried to murder your police officers and the officers acted to defend themselves and the citizens around them. The public understands this language. They know officers shouldn t take reckless risks with their lives or those of the citizens they re sworn to protect.
The world is a dangerous place, and we exist to make it less so. We simply must remind the community that when violence breaks out, they expect and demand we stop it. Combat is brutal. Life and death decisions are made in fractions of a second, with little or no warning. Put a human face on this every incident is a story of courage and fortitude.
Conclusion
It s time to correct many of the faults of the current system. It can only be accomplished by those willing to invest the time and energy to do so, but we owe it to our officers, and our communities.