Editor’s Note: In PoliceOne “First Person” essays, our Members and Columnists candidly share their own unique view of the world. This is a platform from which individual officers can share their own personal insights on issues confronting cops today, as well as opinions, observations, and advice on living life behind the thin blue line. This week’s essay comes from PoliceOne Member Mike Nevin, a Sergeant with the San Francisco Police Department who was deeply involved in the creation of the OIS five-year study completed by the SFPD in January 2010. This essay will appear in the May edition of the San Francisco POA Journal, and we would like to thank Journal editor Ray Shine for giving PoliceOne permission to run it here also. Longtime readers of this space will recall that I first reported on the report to which Sgt. Nevin refers back in July of 2010. Do you want to share your own perspective with other P1 Members? Send us an e-mail with your story.
By Sgt. Mike Nevin
San Francisco Police Department
“I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, then questions the manner in which I provide it.” — Col. Nathan Jessep (A Few Good Men). While this line makes for one of the best movie moments of all time, the fact remains that for men and women in uniform, questions regarding use of force are quite common.
The public entrusts police officers to maintain a civil society, and there is universal understanding that use of force is part of the job. Statute explicitly permits officers to use reasonable force to effect arrest, overcome resistance, or prevent escape. It is incumbent upon law enforcement to ensure that the reporting and review of force is both professional and transparent.
Clearly, it is essential for police officers to be competent in employing force, but understanding the investigative and review process that will follow the incident is critical. A thorough explanation of this process can be found in the OIS five-year study completed by the SFPD in January 2010. It can be downloaded online.
This article will examine a few key points related to officer-involved shooting (OIS) and in-custody death (ICD) investigations.
Immediate Aftermath: Public Safety Statements
It’s a common misconception that officers involved in a deadly force incident should never be asked any questions until they have legal representation. An initial responding supervisor arriving at the scene should be asking certain questions. However, these initial questions can only be related to “public safety.” These questions may include:
• Are you injured? Is anyone else injured?
• In what direction did you shoot? With which firearm?
• Approximately how many shots did you fire and in what direction did you fire them?
• Are there any outstanding subjects? If so, what is their description, direction, and mode of travel? How long have they been gone? What crime(s) are they wanted for? What weapons are they armed with?
• Are you aware of any witnesses? What is their location?
• Can you identify the crime scene?
Supervisors should not ask why or how the involved officer(s) reacted to the incident. “Public safety” statements include information that can’t wait, but once this information is obtained, involved officers should be removed from the scene. A supervisor should ensure that the Critical Incident Response Team is notified.
If more than one officer is involved, they should be kept separate. This will go a long way to deflect allegations that everyone “got their stories straight.” The fact is that I’ve never interviewed two people who were involved in a high-stress, deadly-force incident relay identical information. No one can tell you what really happened; they can only tell you what they perceived to have happened.
Criminal and Administrative Investigations
The incident will be divided into two separate and parallel investigations, criminal and administrative. The criminal investigation will be conducted by the Homicide Detail and the Office of the District Attorney. The criminal investigation may not be limited to the local domain as state or federal authorities may intervene. The administrative investigation will be conducted by the Internal Affairs Division and the Office of Citizen Complaints, if a citizen’s complaint has been generated.
An officer who chooses to give a voluntary statement to criminal investigators will usually do so several hours following the incident. A compelled statement to administrative investigators will vary in time frame but normally occur a few days later. All involved officers will attend a debriefing held by the Behavioral Science Unit.
Involved officers are reassigned to administrative duties and they attend training. This is not considered punitive. Based on recommendations made by a Return to Duty panel (within five business days of the incident), the Chief will determine if an officer may return to their regular duty assignment.
Completed criminal and administrative investigations are forwarded to the Firearm Discharge Review Board, in the case of an officer-involved shooting, and to the In-Custody Death Review Board, in the case of an in-custody death. The purpose of the review board is to determine if the officer(s) acted within policy. The review of tactics and supervisor actions may also be considered in the incident evaluation. The board will review Department policies and procedures as they pertain to the incident. These recommendations are forwarded to the Chief of Police for a finding. The Chief will then notify the Police Commission of his/her decision.
Was it Reasonable Force?
The legal standard used to analyze police use of force is the Fourth Amendment’s “objective reasonableness” standard. The Supreme Court set guidelines for this review in the landmark Graham decision.
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene at the time of the incident “rather than with the 20/20 vision of hindsight.” Any interpretation of reasonableness must allow for the fact that police officers are often forced to make split-second decisions — in circumstances that are tense, uncertain, and rapidly-evolving — about the amount of force to use in a particular situation.
Factors that are considered when evaluating the use of force include, but are not limited to, the severity of the crime at issue, whether or not the suspect poses an immediate threat to the safety of the officers or others, and whether or not the suspect is actively resisting arrest or attempting to evade arrest by flight.
Officers are permitted to use deadly force to defend themselves, to defend others, or to capture a violent fleeing felon where a substantial risk exists that the person to be arrested will cause death or serious bodily injury if apprehension is delayed.
The United States Court of Appeals for the Ninth Circuit has ruled that officers need not exhaust every alternative before using justifiable deadly force. However, officers must consider less intrusive methods of effecting the arrest if the presence of feasible alternatives exists.
Because a use of force policy can never possibly cover every threat or circumstance facing an officer, Department General Order 5.01 contains this very important section: “If exceptional circumstances occur which are not contemplated by this order, officers should use any force reasonably necessary to protect themselves or others; however, they must be able to articulate the reasons for employing such force.”
An officer preparing to give a statement to investigators following a deadly force encounter should be prepared to answer the following questions: What did you see and hear, what did you do and say (were commands or warnings given?), and most importantly — why?
Bottom line: Officers are entrusted with the authority to use force in certain situations — however, any use of force must be reasonable and based upon the totality of facts and circumstances confronting them.
Conclusion
The OIS five-year study succinctly summed it up: “There is no greater responsibility placed on law enforcement than the authority to use lethal force in the line of duty.” This responsibility requires a thorough, timely, and fair investigation. The public demands it, and our profession deserves it.
