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Police Attorney’s 10 Commandments for Cops after Deadly Force

Your first priority in using deadly force is to survive the life-threatening circumstances that prompted you to pull the trigger. Then there’s surviving the aftermath….

Some officers claim that can be even more stressful, and certainly it’s a more extended test of survival skills of a different kind, considering that shooting cases can drag on for years before they’re finally resolved.

Police Atty. Scott Wood, a former officer, a certified Force Science Analyst, and a Force Science instructor has helped scores of officers navigate the perilous post-shooting passage, including some who’ve dominated national headlines.

Based on his experiences, he has compiled what he considers the 10 Commandments for surviving what lies in store after the smoke clears. Here’s what he urges you to remember:

1. REMEMBER YOUR OATH.

When you became an officer you swore to defend the Constitution with your life, if need be. You also agreed to know and uphold the law.

Now that you’ve used deadly force, can you fulfill your oath by justifying your legal presence at the time of the incident and explaining your legal foundation for using deadly force?

2. REMEMBER YOUR USE-OF-FORCE TRAINING.

Right after a shooting that probably was over in a matter of seconds, you may have little or no detailed recall of your thought process leading up to and during the event. It may seem like you acted on “auto pilot.” This can lead to immediate doubts about possible errors in your decision-making.

This is the time to recall your countless hours on the range and in use-of-force simulation training where an appropriate split-second response to a lethal threat was drilled into your mind.

After things have settled down and you have a period of sleep, you’ll be able to begin recalling and articulating many factors you were aware of that prompted your shooting decision. They may have flashed into your consciousness for mere milliseconds, but with time you will be able to discern what many of those were.

If you’ve had good training, trust your objective instinct and don’t let unfounded second-guessing or uncertainties undermine your confidence that you did the right thing. You’ll need faith in yourself to face what may be difficult days ahead.

3. REMEMBER THE LEGAL PROBABILITIES.

If you’re involved in a shooting or an arrest-related death, your use of force has a high probability of being litigated—regardless of the legal justification for your actions. Unfortunately, that’s the reality in today’s litigious culture.

Criminal prosecution of officers has been historically rare because the vast majority of OISs are justified under criminal statutes. Far more likely, you’ll be named in a civil lawsuit, probably a Section 1983 Civil Rights claim (42 U.S.C.A. 1983), alleging that you used excessive force.

As you work your way through the aftermath of a shooting, remain cognizant of the potential legal threat. Don’t fear it, but use the guidelines outlined here to best position yourself and your family for successfully weathering that storm. This will require effort on your part, during a time that will no doubt be psychologically and physically draining on you. But there’s much you can do to avoid self-sabotage.

Keep in mind, too, that you may have some legal options that could be pursued against the offender or his estate. Getting an attorney who is well-versed and experienced in police litigation is essential.

4. REMEMBER TO AVOID GIVING AN IMMEDIATE STATEMENT.  

If you’ve been in law enforcement for any length of time, you should already have read the book Deadly Force Encounters by Dr. Alexis Artwohl, a Force Science instructor and former police psychologist.

The information she conveys about the psychological impact of a critical incident and the potential for creating lingering perceptual distortions of what occurred make it clear that the best time to give an official statement about your shooting is not immediately afterward. You need time to emotionally decompress and for your memories of the event to consolidate, because this statement will likely be the most important you’ll make in your career. In any litigation, it will be key evidence, so you want it as complete and accurate as possible.

Even if you are allowed to supplement an immediate statement later, doing so could possibly create huge problems for you in civil litigation when the suggestion will be made that you “conveniently” remembered some important facts a few days after your shooting in order to bolster your position of legal justification.

Make sure you are refreshed, physically well, and psychologically ready before giving your account of what happened.

5. REMEMBER TO DISCIPLINE YOUR “UNOFFICIAL” COMMENTS.  

Discipline yourself against spontaneous outbursts or casual comments and conversations about your incident outside of “protected” settings.

Anyone you talk to about the shooting who does not enjoy a recognized legal privilege of confidentiality with you can be called as a potential witness in civil litigation. At that later time, they may remember all of what you said, some of what you said, or think they remember all or some of what you said.

Before you speak, ask yourself: Is this the kind of evidence I want a jury to hear and use to determine the propriety of my shooting decision?

6. REMEMBER TO KNOW YOUR DEPT.’S INVESTIGATIVE POLICY.

Be familiar with your department’s policy on deadly force investigations before you become involved in one.

Do you know if policy allows you to review video and audio recordings before you make your statement? Are you required to submit anything in writing before you go off shift or go home on administrative leave? If you have body-cam evidence, do you know how that is to be handled?

Anxiety over the unknown is common in everyone, so knowing the drill ahead of time will alleviate some extra stress. If you haven’t prepared ahead of time for a critical incident and are suffering from added anxiety, don’t be bashful about asking your union rep or your attorney what is going to happen in the course of the investigation.

7. REMEMBER TO MAKE YOUR CIVIL RIGHTS WORK FOR YOU.

After you use deadly force you will be a suspect in a homicide. But remember that by becoming a law enforcement officer you did not give up any of your constitutional rights.

Under the Fifth Amendment you have the right to an attorney and you have the right to remain silent until you are ready to give your detailed account of how your shooting occurred. Remember, though, that you must affirmatively invoke this right by telling the investigator(s) that you want to exercise your right to remain silent based on the Fifth Amendment and the U.S. Supreme Court case of Salinas v. Texas. [For more details on invoking this right, see Force Science News #360 (3/22/18).]

Knowing the percentage of shootings that result in litigation and the fact that your statement will be a key exhibit in any type of case, the statement you give should be as complete and as accurate as possible. This will require effort on your part, during a period that will no doubt be psychologically draining on you.

8. REMEMBER TO DRAW ON RESOURCES YOU HAVE AVAILABLE.

After the incident, take advantage of peer support, union representation, legal representation, and psychological counseling. The latter two have a recognized legal privilege attached to them, which frees you to talk about the event to those individuals with assurance of confidentiality.

Taking the life of another is commonly and understandably a life-changing event. The aftermath, with major administrative, legal, physical, and psychological ramifications, is undeniably stressful. Help yourself by using available resources of support.

9. REMEMBER TO MAKE SURE YOU CAN FULLY ARTICULATE.  

Before giving your official statement, be certain you can fully articulate—honestly and to the best of your ability—the totality of circumstances that led to your decision to use deadly force.

You and you alone must be able to explain the appropriate legal standards regarding reasonable suspicion or probable cause to justify your contact with the suspect. You must also be able to articulate the appropriate legal standards on the use of deadly force set forth in the U.S. Supreme Court cases of Tennessee v. Garner and Graham v. Connor.

That means you must be able to recount the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight. You must describe why you were in fear of your life, and/or for the lives of others, or why you believed the suspect was a continuing and immediate threat to the public if not apprehended.

You must be able to recreate what happened from your perspective to educate those who will judge your actions but were not there to face the challenges you faced first hand. This requires serious thought and thorough preparation. It’s not something to try to wing in the moment, however confident you may be of the “righteousness” of your position.

10. REMEMBER TO ALWAYS BE TRUTHFUL.

When you do give your statement, the worst mistakes you can make are to shade details in your favor, fill gaps in your memory with what you believe “must” have happened rather than admit you don’t know, or to outright lie.

Forensic evidence and today’s omnipresent camera coverage will eventually give investigators much detail about what happened, and concocted stories will not survive scrutiny.

Even in our currently contentious atmosphere, most juries and judges most of the time are willing to believe an officer’s version of events. But it doesn’t take much to weaken that faith. Don’t help those who want to discredit you by shooting yourself in the foot. That’s a shooting that can be tough to survive.

For more information, you can contact Atty. Scott Wood