Editor’s Note: While this was written for the members of the
Greensboro Police Officers Association, I felt like enough of the
information contained herein was of such importance and generic enough
to apply to any police officer anywhere.I. Introduction
You have been involved in a
shooting or other action in which a suspect dies or suffer serious
physical injury. You will be the subject of intense investigation and
media scrutiny. Even if you acted with complete legal justification, you
may be subject to criticism in the press and from outside observers. You
must steps to protect yourself, your family and your career.
This will be the first article on
the investigative process surrounding an officer involved shooting.
Although the comments herein may also apply to excessive force
investigations, chases or in-custody deaths, for convenience I will just
use the term, officer involved shootings. In this article, I will
discuss my thoughts on the process. I relate my opinions based upon my
experience in law enforcement and representation of law enforcement
officers in dozens of these situations in the last seven years. In this
first article, I will provide an overview of the critical initial steps
that you should take from common questions I hear and mistakes I see in
every case. I will also briefly discuss the types of investigation that
will be conducted as well as your rights and obligations in each.
II. I just did my job! What do
I have to worry about?
You will be the subject of a
criminal investigation as well as an internal one. You will be a suspect
in a crime and may be charged with a criminal offense like anyone else.
You also have the same rights in the criminal investigation as anyone
else, including the right to counsel, if you desire. I personally know
of two cases in which a North Carolina law enforcement officer was
charged criminally following an officer involved shooting. Both resulted
in jury trials in which the officer was ultimately acquitted but both
had to stand trial. One case was a close call, but in the other,
statements made the night of the shooting by the officer had much to do
with his prosecution.
III. I just have to talk!
You are trained to justify your
actions and articulate the basis for your conduct. You will WANT TO TALK
TO EVERYBODY after the incident. You will be scared, and loaded with
adrenaline. Please fight the urge to babble. Many officers experience
tunnel vision following the incident and your memory may not be clear.
Also you may not have all the facts. You think that you know what you
did and why but could have a vague recall of all the events leading up
to the incident. You may very well be in shock and have difficulty
explaining anything. Remember that statements get distorted over time.
If you decide to give a statement, make it formal and do it once.
IV. Don’t I have to tell my
supervisor?
Your supervisor will want to know
what happened. For the purposes of a criminal investigation, you do not
have to tell your supervisor anything. The same principles apply here as
discussed below relating to statements made to investigators, but you
are probably not going to be able to think fast enough to inquire
whether he or she is asking for the purposes of a criminal or
administrative investigation. If your supervisor orders you to respond,
then it is administrative. If he or she just asks without ordering you
to answer, it gets a little less clear, particularly at the scene.
Arguably, because it is your supervisor, you are compelled to answer so
the statement could not be used against you in a criminal investigation.
However, unless you initially refuse to answer and are subsequently
ordered to answer, the statement may be considered voluntary.
All of this will be difficult to
remember at the scene of an officer involved shooting, so keep it
simple. If asked what happened, make it short and directly to the point,
i.e. “he drew a weapon, I told him to drop it and when he did not, I
feared for my life and shot at him to stop the threat.”
Once you leave the scene you may
be asked what happened by other supervisors. Most supervisors will know
enough to leave you alone and, in fact, will want you kept apart from
everyone. However, for some reason, a lot of supervisors seem compelled
to rush to the department after an officer involved shooting, even
though they are not involved, and you may be asked about the situation
by supervisors who are just curious. Remember, if you volunteer
statements in a criminal investigation, they will be used against you.
You may politely say that you would like to consult with an attorney or
otherwise politely decline to answer. If you are ordered to answer,
request your Garrity warnings. If push comes to shove, answer the
inquiry, but make some note of the date and time you were ordered to
respond.
V. I have to write my report.
I take the position that these
could not be used in the criminal investigation against you absent your
consent, because you are compelled to complete them as a part of your
job function. Most SBI agents and DA’s I have dealt with seem to
agree, but I have not had occasion to test this position in court and
hope to avoid the challenge. The best way to obtain that objective is to
do as follows. Do not rush to do the report. If at all possible wait
until the next day.
If you are ordered to do the
report before you leave that day, make a note of it. This report should
not now be admissible in a criminal proceeding because you were ordered
to do it. If you are having some difficulty recalling things because of
what you have been through, make a note of it. Do the best that you can
to digest what happened and get your thoughts together. You want it to
be accurate precise and truthful, not rushed, inaccurate and harmful to
yourself.
VI. The initial criminal
investigation...
You will be taken from the scene
to the station where you should be able to collect your thoughts. The
criminal investigation will begin virtually immediately. This bears
repetition: You are the target of a criminal investigation. The
investigation has one purpose – to determine whether you will be
charged with a crime. You have absolutely no obligation to cooperate
with the criminal investigation or provide a statement. You have a Fifth
Amendment right to remain silent. Because it is a criminal
investigation, your silence cannot be used against you in any subsequent
criminal proceeding. Moreover, you cannot be disciplined, or demoted for
failure to cooperate.
VII. I don’t mind talking now
because I didn’t do anything wrong.
You may choose to grant an
interview to the criminal investigators. However, it is against my
advice to provide a statement on the date of the incident. Because of
the traumatic nature of the event, it is unwise to speak with
investigators so soon. They will want to talk to you. I have some
concerns about the way this has been handled by law enforcement
agencies, including the GPD. The agency will require the officer to stay
until the investigators arrive, because “they want to talk to you.”
That makes the officer, whose future is at stake, feel like they have to
speak to the criminal investigators that night. This is made all the
more difficult because of the situation, particularly if the criminal
investigators are from your department. You want to tell your story. You
want to prove you were justified to your peers. After all, these
investigators are on your side, they have the same badge. They are not
on your side in this investigation. They have a job to do which is to
fully investigate the incident to decide if you should be criminally
charged. When you start the interview, they will tell you that
themselves. You do not have to prove anything in the criminal
investigation. You never have to speak with the criminal investigators
and if you decide not to, nothing bad will happen to you. Law
enforcement officers are not relegated to a “watered down version of
constitutional rights.” Garrity v. New Jersey, 385 U.S. 493, 500
(1967).
Think about the nature of the
investigation and the consequences you could face. Then think of a good
reason not to take some time to think things over, collect your thoughts
and obtain the benefit of counsel. Anyone who can think of a valid
reason to rush into such a critical interview can feel free to call and
fill me in because I cannot come up with one. The only reason to provide
a statement on the date of the incident is a compulsion based upon a
misguided perception that to do otherwise would make you look “guilty.”
If that is your only reason for speaking to investigators that evening,
then you are a fool. If the investigator takes offense by your decision
not to speak with them that evening, tough. Tell them to walk a mile in
your shoes before they even have the right to feel that way.
Please allow some personal
observations on this section. It is only fair for the department, when
requiring an officer to wait for the criminal investigator who “wants
to talk” to tell the officer he or she does not have to talk to the
investigator, and could go home should they desire. They are not in
custody, so why make them feel as though they are? Also, what exactly is
the big rush to interview the officer? They are generally not a flight
risk and usually show up for court. Finally, although GPD had nothing to
do with “file gate”, recent events should underscore the difficulty
in the agency itself investigating these incidents as opposed to the SBI.
VIII. I have to cooperate or I
could get fired.
You do have do cooperate with
INTERNAL investigations because they cannot themselves result in
criminal charges. You do not have to cooperate with a criminal
investigation of your actions. You should all be familiar with the rule
of law enumerated in Garrity and subsequent cases. By virtue of your
public employment, you can be compelled (you do not have a right to
remain silent upon threat of termination) to answer questions
specifically and narrowly tailored to your job duties. However, those
statements, because they are compelled, cannot be used for purposes of a
criminal investigation.
You may think of it as two
hallways. The hallway on the right is the internal affairs hallway.
Although it may be foul smelling and distasteful, you must take the
pleasant walk down it or you could be fired. (Incidentally it may be
advisable to refuse to answer questions in an internal investigation and
simply resign but that is another article.) The hallway on the left is
the criminal hallway that you walk down only if you choose to do so. For
your information, although internal statements cannot be used in a
criminal investigation, statements made in the criminal investigation
can be used in an internal investigation.
IX. How do I know whether the
investigation is internal or criminal?
It can be confusing, particularly
because Greensboro currently performs its’ own criminal investigations
following an officer involved shooting. It is much easier to determine
for you when an SBI or FBI agent is standing there. However, you should
be familiar with the internal affairs investigators as opposed to CID
people. Also, the investigator should tell you. GPD utilizes an
administrative rights form for an internal investigation that should
make it abundantly clear. If you are not sure, ask. The internal
investigation should only be conducted after your criminal interview,
should you choose to provide one.
X. My buddy got in a shooting.
What should I do to help?
Let me start here by telling you
what not to do. DO NOT ASK WHAT HAPPENED. DO NOT ASK WHAT HAPPENED. DO
NOT ASK WHAT HAPPENED. Ask if he or she is okay, and if you can contact
anyone for them. Try as best you can to keep others from pestering them
about what happened. It is natural to be curious, but do not make
yourself a witness for the prosecution in the case of State of North
Carolina vs. Your Buddy.
XI. What about Peer Counselors?
The department has a team of peer
counselors who will be available to help you if you want. These people
are volunteers and I know of some fine officers on the team. They can
help you understand your feelings. However, it is my advice not to
discuss the facts of the incident with them because your discussion with
them is not legally protected. If you limit your discussion to you
feelings, then by all means take advantage of their help, but understand
their role and do not unload all the details on them. If you would
rather talk with someone away from the department, remember that your
association has a counselor that you can consult.
XII. The internal
investigation.
You have to cooperate with this
investigation unless you choose to leave the department. They need to
investigate to determine if you have complied with departmental policy,
not to determine if you should be criminally charged. They will provide
you with an administrative rights form explaining the type of
investigation. They can review and utilize your criminal statement if
you gave one. Your department will not allow you to have a
representative if this interview. Obviously, it’s no fun being the
secret police if everyone is invited. However, you should be able to
consult with counsel before the interview. Take time to review the
pertinent departmental directives, listen to the questions and try your
best to provide truthful answers.
XIII. Conclusion.
This article is a general guide
based upon my experience in these investigations. In the next article, I
will discuss the interview. Should you do it and it you do, how to
prepare/ what to expect.
William Hill
General Counsel - Greensboro Police Officers Association