You’ve been in an officer-involved shooting...
...as the impartial investigator, here’s what I’m not going to tell you
By Rick Decker
Perhaps now more than ever, the investigation of an officer-involved shooting (OIS) demands an unbiased, impartial investigation. Gone are the days when agencies investigated themselves while offering “no comment” to the public and the media. Our communities demand and deserve better, and transparency is key to building and maintaining public trust.
Law enforcement will always have its naysayers despite what people see on bodycam footage or in publicly available investigative reports. Because I am a peace officer myself, there are those in the public who will assume I am biased in favor of the involved officer(s), regardless of what they see or read of my investigation, while the media gladly feeds into that because controversy generates revenue. Because of this context, it is imperative I maintain and demonstrate the impartiality of an OIS investigation, as well as in its final determination.
If you’re involved in an OIS, know that my job is to gather the facts and conduct an unbiased criminal investigation, the outcome of which will determine whether or not you keep your badge, and in some cases, your freedom.
It’s not my job to coach you, counsel you, prepare you for the interview, or even reassure you that everything will be OK. I’m not “on your side.” I can’t be, even if I want to be or you think I am because we both wear a badge. But I am still a police officer and I have been for 24 years. I’ve been involved in an OIS, witnessed another, been the union president and the peer counselor for involved officers, the press information officer for still others, and I have been the lead or an assisting investigator for more than a dozen.
While I’ve worn many different hats during and after an OIS, my current hat means I don’t get to choose sides. I’m an impartial finder of fact and those facts speak for themselves. To that end, my investigation serves to assist the elected district attorney in making their decision as to whether your actions were lawful, criminal, or somewhere in between.
But if I were on your side, even just for a moment, this is what I would tell you if you were involved in an OIS:
It’s not a booking photo
We’re going to take your photograph from the front, back and sides. Maybe you’re a private person, you steer clear of all social media, and everyone knows full well you hate having your photo taken. I don’t care. I have to demonstrate you were clearly recognizable as a police officer, bravely preserving your oath to protect the public and found yourself under attack for that reason. I can’t do that without evidence of your appearance. Please don’t presume those photos are for any other reason. I only promise I won’t ask you to smile.
Time to gear down
With rare exceptions, what just happened to you may have been the most terrifying moment of your life. Understandably your emotions are in overdrive so when I order some, if not all, of your gear to be taken as evidence, it’s going to get very real if it hasn’t already.
This moment is never easy for an involved officer as your “tools of the trade” are stripped away from you and dropped into evidence bags. But I have to do it.
Trace evidence anywhere on your belt may validate the statement you give later, be it blood, DNA, or fingerprints and I don't know what is evidence until I interview everyone involved.
When you tell me the subject tried to take your gun, imagine the value of finding his or her DNA on your holster. Or when the bystander “witness” later tells me you overreacted and “must have fired 10 times,” I can expose their own bias when the three rounds missing from your magazine match the three casings on the ground.
I know it won’t be easy, but I’m taking your gear because I have to.
Subject not suspect
Remember, I am the impartial finder of fact. I don’t take sides or make assumptions. You are the “involved officer.” You are neither the victim nor the suspect. And the “involved subject” is just that, or maybe even the “decedent.” But he or she is never the suspect or the victim. Those terms imply bias, so don’t take offense when you don’t see them in my reports or hear them during your interview. It doesn’t mean you’re not the victim of a violent crime who was fighting for your life and forced to use deadly force so you could still go home to your family. The facts of my investigation may prove you worthy of that title, but an impartial investigation demands unbiased and fair language.
Bodycam footage: To view or not to view and when?
This is such a polarizing topic, I almost chose to skip it. But here goes.
When you’re involved in an OIS, you have chosen to use deadly force based on a totality of the circumstances that led you to believe you or someone else was is in imminent threat of death or serious bodily injury and that belief will be judged through the eyes of a reasonable officer, without the benefit of hindsight.
When I interview you, I want to hear your mind’s eye account of what you remember WITHOUT the benefit of hindsight. I want to see and hear the emotions of you reliving the event, not because I want to see you suffer but because I want anyone who questions your actions or my investigation later to see and hear for themselves what you went through because it’s those raw emotions at the moment you feared for your life that may lawfully justify your actions. I also don’t want your statement clouded by what you’ve seen on the video versus what you remember, or me having to clarify what you truly remember versus what you saw on the video that you didn’t notice at the moment you thought you were going to die.
Take an extreme case such as a BB gun you reasonably believed was a handgun that now looks less authentic in HD video than it did when you pulled the trigger. Imagine the irreversible impact that could have on your statement as you now question your memory of every detail far more than you did before you viewed the video.
For our office, we conduct the initial interview and then take a break to allow the involved officer and their attorney to view the bodycam footage in private. Once that is done, we resume the interview and allow for clarifying questions. It doesn’t matter that the subject was farther away than you remember, or the knife was smaller than you thought. It’s about what you reasonably believed AT THAT MOMENT.
Ultimately, when you view your bodycam footage is not up to me. It may be determined by you, your department policy, or your attorney, and I can’t stop you. But at least you know where I stand.
Not one step
Prior to the interview, you will meet with your attorney to go over your statement. Never mind the association holiday parties, this is what your union dues pay for so make the most of it. Don’t take one step into that interview room until you’re ready, both mentally and physically. “I just want to get it over with,” is no reason to provide a statement when you’re tired, hungry, over-caffeinated, or unprepared. Your psyche may already be shaken by being the interviewee instead of the interviewer as I question you from the chair and side of the table where you normally sit. You won’t get a second chance to tell me your side of the story, and this may be one of the most crucial moments of your career.
Remember, this is a criminal investigation where your statement is admissible. This is not the internal investigation your department will conduct and essentially order you to provide a statement under threat of insubordination via the Lybarger admonishment.  Do yourself a favor and don’t walk in my interview room door until you’re ready.
It feels like an interrogation because it is
I understand I may be asking you to talk about the most terrifying thing that has ever happened to you, and you’re entitled to the whirlwind of emotions that go with that. But I have to question you and sometimes I might even have to push you to get the answers and details my investigation demands.
Some of the questions might be hard to answer or sound unreasonable, or maybe even make you think I don’t believe you. Remember, my job is to be the impartial finder of fact, so give me the facts as you know them without reading into my questions. I want to believe you, I really do. But I can’t hold your hand through this or leave any impression I went easy on you because we’re both cops. I have to ask the tough questions, the same questions others may ask later when the investigation is public and I want that investigation to be bulletproof.
I’m not trying to make you feel like a criminal, but the reality is you may have just killed someone and “innocent until proven guilty” doesn’t apply to police officers nowadays. You’re a murderer unless I can prove otherwise, so stay calm, answer truthfully and let me do my job.
Check your ego at the door
I get it. Maybe you brought with you more “life” experience or training to this job than others. Perhaps you were in the military and served in combat, or you lift weights four times a week. Maybe you’ve done martial arts for years or simply bring 20 years of hard-charging patrol experience to the table with the scuffs on your baton and boots to prove it.
While some of that may give context to your actions, nothing justifies your decision to pull the trigger the way genuine fear for your life does. Just say it. Don’t make me drag it out of you because you don’t want to appear weak to your colleagues, your family, or your command staff. I need to see and hear it to determine the justification for your actions, and the public needs to see and hear it when the investigation is complete. Otherwise, they will never grasp the real danger in our job and the nature of these rapidly evolving situations.
If you can’t find the words, don’t expect me to lob you the softball of, “Did you shoot because you feared for your life?” That’s a leading question that doesn’t do you or my investigation any favors. Only you can recall your state of mind at that moment, and the description of that has to come from you.
I don’t want you to be the villain
Admittedly, we’re both cops who took the oath to protect and serve for likely the same reasons and the cop in me wants you to be right. I want you to be the hero in the story and not the villain. I want the people who’ll never dare walk a day in our boots to see and feel what this job is really like and what it demands of us mentally, emotionally and physically. I want them to see it’s nothing like what they see in the movies or hear on CNN.
Our chosen profession has taken too many blows these last few years, and I don’t want your OIS to be another one. I want what happened to you to demonstrate the courage it takes to protect the public and put our life on the line every day, every shift. But I have little control over whether or not any of that actually happens. I am an unrelenting, unbiased finder of fact and what’s done is done once my job starts. The public demands and deserves a transparent investigation that is completed without prejudice. As a cop, I truly hope you come out of this OK and keep that badge on your chest. But remember…I’m not on your side.
1. Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822, 710 P.2d 329, 221 Cal.Rptr. 529.
About the author
Rick Decker has been a sworn peace officer in California for 24 years, with more than half of that time spent as an investigator and he is currently a supervising inspector in the San Francisco Bay Area for the District Attorney’s Office’s OIS Investigation Team. He is a proud husband, father and brother, and he is the author of three published children’s books who prefers being armed with a fishing rod rather than a firearm as much as possible.