Advice following an Officer Involved Shooting.
An Officer involved in the shooting of any other person, whether the person was struck or not, has become a suspect in a criminal investigation. In NC, there is statutory authority that allows an officer to use force, including deadly force, but it must be reasonable and it must not be excessive.
DON’T TAKE LIGHTLY THE SERIOUSNESS OF THIS INVESTIGATION.
DO NOT talk to ANYONE unless you are releasing information to dispatchers and/or other officers responding about:
o Location(s) of un-detained suspects,
o Any other threats to safety,
o Location(s) of unsecured weapons or evidence, and/or
o Injuries to yourself or others
Do not conduct any actions that are investigatory in nature.
Do not handle any evidence unless you need to secure a weapon or a threat.
Asked to be relieved from the scene as soon as possible and to be allowed to travel to some other location (hospital or law enforcement office) where you can await further instruction. Try not to be on the scene when the media arrives. Be careful that the media doesn’t video/photograph you near the deceased or doing anything that might be misconstrued as unprofessional or unsympathetic to the person force was used against.
Your actions from this point forward will greatly assist your attorney in providing the
information necessary for the District Attorney to declare your use of force justifiable. Also, your actions can make a potential civil case much more difficult to pursue against you and your agency.
Your actions will be judged from an objective reasonableness standard. Graham v. Connor, 490 U.S. 386, (1989). You will be judged in light of the circumstances confronting you, as an officer, based upon what you knew at the time.
Make careful notes (do not share them with anyone other than your attorney) of what you knew at the time. There may be additional information developed later that contradicts and may change what you would have done given that knowledge. You will be judged based upon what you knew and not what actually transpired – this will be important information to convey to the District Attorney via the SBI’s shoot team criminal interview later.
Record anything that you feel was important that led you to encounter the person, that led you to engage in any type of force against this person, and anything that led you to decide that lethal force was the best option rather than some lesser use of force.
If compelled by your agency to give a written statement prior to being interviewed criminally include this statement at the beginning of your statement:
This statement is being provided to comply with the administrative policies of my employer and, as such, I invoke the rights provided to me under Garrity v. New Jersey, Gardner v. Broderick, and its progeny. This statement does not constitute a waiver of my 5th Amendment rights prohibiting self-incrimination or any protections I have against self-incrimination.
Do not answer any questions that began with “Who, what, where, when or why if they sound like something you would ask a suspect. If anyone reads you Miranda rights do not answer their questions prior to speaking to your attorney. Officers involved in the shooting should not make any statements to anyone.
Do not discuss specifics with other officers on the scene and especially with anyone who was not on the scene at the time of the shooting.
There will likely be a great desire for confirmation that your actions were justified and a tendency to discuss the events with others to get that confirmation. Your statements made at the scene to other officers, first responders, or bystanders can be used against you.
Do not feel obligated or allow yourself to be pressured into giving a statement. You have just been through the most stressful incident of your career and you may have been seriously injured prior to defending yourself. Your memory and your emotional state will be in a much better place given time to allow your adrenaline to return to normal levels and for rest and reflection.
If anyone is asking you administrative questions in the presence of officers who are not part of the administrative process, especially anyone involved in the criminal investigation, request to move the interview away from those persons. Statements made during an administrative interview should be private. However, you have no right to privacy in a crime scene and statements made by you, in the presence of criminal investigators, could be later used against you.
If a supervisor arrives on scene and makes requests that require you to answer questions that could be investigatory in nature (who, what, where, when, why questions), request your supervisor to read your Garrity rights and ask if their request is criminal or administrative in nature. If they are asking criminal investigatory questions advise your supervisor that you wish to exercise your right to counsel and refuse to answer any other questions until you’ve contacted your attorney. If you are directed to answer questions or face disciplinary action by your employer you are protected by Garrity. These statements cannot be used against you in a criminal proceeding.
Always request your attorney to be present if at all possible.
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