By George T. Williams
After a critical incident, an involved officer faces quite a bit of scrutiny. Unfortunately, much of this attention isn’t in the best interests of the officer. Because of this, the first statements an officer makes (if he speaks at all) after an officer-involved shooting are critical to that officer’s future. This article will delve into defending an officer’s actions in every venue where those actions will be questioned. Many union attorneys advise officers involved in a critical incident to “say nothing until you talk to me.” They advise against giving a public safety statement—a statement provided to initial supervisors about issues of public safety following a shooting. Even though this is pretty standard legal advise, is it the best counsel for everyone involved?
While the gun smoke is still in the air and the paramedics are moments away, it’s often only the involved officer who is able to relay vital information about the circumstances of the incident. Additionally, the post-shooting actions of that officer may determine the practical value of the evidence, and perhaps the viability of the followup investigation. All evaluations of that deadly force response are based upon the involved officer’s state of mind at the time of the shooting—what he knew or reasonably believed that led him to pull the trigger. The officer’s version of the events will be supported by crime scene evidence and witness statements. Without such evidence, officers may have a difficult time proving facts that almost always exonerate their actions. The loss of evidence backing up the officer’s version of the facts is a common theme I find as an expert witness in federal and state courts across the nation—and the key reason we sometimes lose what should have been defensible lawsuits.
Additionally, there are officer and public safety issues to address in the early minutes after a critical event. The identification of suspects and their direction of flight is vital for everyone’s safety. A vehicle stop half hour after an officer-involved-shooting may result in the murder of another unsuspecting officer by the undescribed, unknown suspect(s). There are real risks to law enforcement in waiting for an attorney’s response to the scene. Anytime shots are fired, the public’s safety must be ensured. If, on average, only three of ten police bullets hit the suspect (NYPD statistics), there is a high likelihood that some of the rounds were errant. Each bullet not only carries a lawyer, but, more importantly, it carries the possibility that it might have harmed an innocent. Any unintended injuries must be quickly determined and medical aid promptly sought.
Think of all of this from the responding officer’s point-of-view:
“Shots fired! Suspect down.” At Code 3, you arrive first at the scene to find one of your officers with his weapon still drawn, standing near a vehicle. Thirty feet away on the street, is a moaning suspect, a bloody knife close beside him. He is alternately rocking in pain and screaming at the officer—something about “Jimmy” catches your attention. You note the sounds of approaching police and ambulance sirens as you assist in safely handcuffing the subject. You put out a “Code-4” on the radio. The suspect’s condition turns—he is now panting with his eyes partially open and is turning gray. You note empty brass casings spread out along the street. After getting assurances from the involved officer that he’s okay, you ask, “What happened?”
He looks at you, and flatly states, “I’ve got nothing to say. I want my attorney.”
You recognize that this officer is simply responding to the advice of his union attorney—“Don’t make any statement whatsoever until I get there.”
However, you have your own competing needs:
- Is there an outstanding suspect? If so, where is he? Is he lying in ambush somewhere? What about this “Jimmy?” Was he stabbed by the suspect (and may now need assistance)?
- Where is my crime scene? The initial call was an address two apartment buildings away. Where was the initial contact? The location of the empty brass might mean that the officer was moving while shooting, so does that mean there are other shooting scenes? Or was the brass accidentally kicked? Did the suspect fall immediately upon being shot, or did he continue to charge, or did the officer follow him as he wandered around before going down?
- In what direction were the shots fired? You see two bullet holes in the suspect’s belly, leaving several bullets unaccounted for in this crowded residential area—and maybe more. Where do you begin to look?
- Who are my witnesses? Sure, a witness canvass may turn them up, but you want to know right now, who, in this growing crowd of people, the involved-officer can actually identify as having seen or participated in the incident.
At this point, labor attorneys would have the involved officer summon them to the scene. The problem is, valuable evidence is rapidly disappearing while the attorney is awakened, gets dressed, drives to the scene…and then consults with the officer. And what about the officer safety and public safety issues that a police shooting generates? Should they be put on the back burner while the attorney attempts to find directions to the scene? Being dedicated public servants and having sworn to protect the citizens they serve, officers almost universally want to do the right thing. At the same time, they rightly want to protect themselves in a process that, if not done correctly, can ruin their careers and lives.
Information - Too Much or Not Enough?
Most POA attorneys will probably agree with this statement made by a police labor attorney, “As a practical matter, officers give critical crime scene information, or public safety statements, 99% of the time. My biggest problem when representing officers is not encouraging them to talk, but encouraging them not to talk.” Another POA attorney made this statement about an involved-officer, “…you’re likely going to spontaneously blurt out a statement to the first supervisor who arrives on scene.”
In reality, the larger problem is in keeping the officer’s statement down to just the public safety information. I encourage officers not to talk about the shooting to anyone except the first arriving supervisor and then only give that very limited information—which almost always supports their defense (limited crime scene/evidence statements), as well as their mission as peace officers (officer safety and public safety information). My emphatic message to officers and supervisors is that we don’t want a lengthy explanation of the events to first arriving units and supervisors. Supervisors often become a plaintiff’s best witness against the officer.
Why? Because the supervisor will be asked (under oath) to recount the officer’s statement. The problem: normally, a supervisor’s attention was divided between the account the officer was providing and all of the duties and thoughts at the scene this type of incident demands. The supervisor will later be interviewed, deposed and will give testimony in civil court. Typically, the supervisor’s account of an officer’s long, involved and spontaneous statement will conflict (sometimes widely) from the officer’s formal interview. The plaintiffs, attempting to exploit the supervisor’s recall during a hectic, pressure-filled situation, will always point out that “the first statement contained the real facts of the case, while the officer’s second statement, after having had time to realize how much trouble he was in, was falsified.” When faced with two differing stories, jurors tend to believe the person to be intentionally less than truthful. Supervisors have enough to do on the scene of an officer-involved shooting, without having to try and remember the officer’s full story and handle their other responsibilities.
Reality-Based Advice
Statements to your initial supervisor should be extremely brief and limited to the following:
- The crime scene(s) to be protected and any pertinent evidence to be recovered.
- Identification of any involved persons, as well as witnesses who need to be located and interviewed.
Officer safety and public safety information are handled in the same way, with descriptions of outstanding suspects and direction of flight, as well as the direction of shots fired by all of the participants. Once the basic public safety, officer safety and crime scene information are provided, the involved officer(s) should not make any formal (or even casual) statements until counsel is consulted. It is always advisable that officers speak to a union attorney before giving even a voluntary formal statement—oral or written.
Coercing a Limited On-Scene Statement
A police supervisor may order an officer to provide information regarding the public and officer safety. This will be considered a coerced statement and will not be available to the District Attorney. It will, however, be available to the administrative investigation as well as to the inevitable civil case. A POA attorney made this statement, “My point’s a pretty basic one. An employer needs to understand that if an officer does not voluntarily provide crime scene information, there’s a reasonable possibility (I think a huge probability), that by ordering the officer to give the statement, the employer grants some measure of immunity to the officer. That doesn’t mean you don’t give the order. It just means that you understand the consequences of the order before you give it.”
This is absolutely true. This is why in all of our supervisor training courses, we advocate that the supervisor not be tempted to go beyond the public safety/officer safety/crime scene information needed to begin the investigation. Simply get the information needed from a limited statement and stop. If needed, order the officer to answer the questions as a coerced statement. Once the statement is given, order the officer not to discuss the case with anyone except his attorney, spouse, clergy or a licensed psychotherapist until he is contacted by his agency.
Conclusion
Many labor attorneys go to great lengths to explain why officers should never give a voluntary statement. As police-defense attorney Bruce D. Praet (Santa Ana, California) commented, the reality is that while a labor attorney may be involved in the case for a few months during the D.A.’s review and the administrative investigation, the involved civil attorney is going to live with the officer’s actions post-event for years. So will the officer.
We explain to civil juries about Garrity and the Fifth Amendment, as well as how an officer has an absolute right to refuse to provide a voluntary statement. However, what civil juries often cannot understand is, “If the officer did nothing wrong, why would he take the Fifth?” Like most people, they don’t understand the inherent protections of not giving a statement, and think it is a sign of having something to hide. This generally hurts the officer in the civil defense of their case—not always fatally, but it still hurts in a situation where the officer has a better than 99% likelihood of having achieved proper conduct.
Let’s look at reality. What do you give up by providing limited public safety information? The crime scene(s) you need protected to assist in absolving you of the inevitable accusations of wrongdoing; pointing out the involved-parties and witnesses; describing outstanding suspects and their direction and mode of flight; and the direction of shots fired. How is this going to harm you in criminal prosecution? You risk almost nothing criminally because you are not talking about the substance of the incident. How is this information, that you will give anyway during any coerced administrative investigation, going to harm you administratively?
I believe that the officer, the agency, other officers and the public deserve protection from those who would potentially cause harm in the aftermath of an officer involved shooting or critical incident. Yours is a noble profession not simply because of what you do, but how you do it—with honor, integrity, and courage—you do what is right for the right reasons. An extremely limited public safety statement provides enough information to protect you, as well as other officers and the public.
About the Author
George Williams is the director of training of Cutting Edge Training, LLC. He may be reached at
www.cuttingedgetraining.org