It's low light and you're in an intense fight for your life. Surviving the moment is vital and you will revert to your training.
Photo credit: All photos by Kevin Davis
The suspect is down and the threat neutralized, but you must not relax! Follow through by protecting your legal rights and your emotional and psychological well being.
You were in "fight or flight" when the shooting happened. Can you accurately state what happened right after? Science says no. Better to wait until you've had one or two sleep cycles to remember.
Most officers go their whole career without being involved in a shooting, but when it happens few officers and agencies are prepared to deal with the aftermath. Don't let this happen to you...prepare now!
In the movies and on TV, the hero doesn't even stop to clean his pistol after a shooting. Leaving the scene, he continues to rack up the body count, leaving lowly patrol officers and investigators to pick up after him. This is about as far from the truth as possible, but is part and parcel of darn near every cop action movie or TV show.
Reality...now that's a horse of a different color that can offer a far bumpier ride, unless you and your agency become informed as to what your rights are as well as prepare for what may come, and plan as to how you will handle the process. Most cops go their whole career without being involved in a shooting. The fact that this occurrence is rare in law enforcement is a good thing, but lack of familiarity with the process (or lack of any process at all) can create massive amounts of stress for involved officers, as we will see.
Does your agency have a procedure as to what will happen in a shooting or officer-involved death incident? If not, the following could occur to you or an officer on your agency:
- An officer is locked into a suspect holding room after the shooting.
- An officer sits in the room after killing a suspect as the chief and union president stand toe-to-toe, yelling at each other, over what rights the officer has.
- The local county prosecutor tells detectives that the only time she gives officers a Miranda warning is when she thinks there's a problem with the shooting. She then reads you your Miranda rights.
- The chief makes it widely known that he thinks your shooting was wrong, despite the Grand Jury finding that deadly force was justified.
- A police agency allows an untrained prosecutor that has not even been to the scene of the shooting to conduct the officer's interview.
All of these scenarios have happened. And they have happened to officers throughout this country. Policy and procedure must be developed to ensure that the officer's rights, as well as the agency's interests, are protected and don't conflict. Ad hoc procedures developed on the scene without forethought oftentimes lead to chaos and only increase the stress on involved personnel. Union and administration officials must sit down and come up with a procedure that clearly maps out a protocol. More stress to officers occurs when they face the unknown than the known. Procedure in this regard is vital.
Effects of Stress
Many agencies still require that an officer submit to an oral interview or submit a written report right after the incident or before they go off duty, post-incident. The effects of a sympathetic nervous system reaction ("fight or flight," in layman's terms) are many and varied. In addition to the many perceptual distortions that can take place and may affect memory, a phenomenon known as Critical Incident Amnesia (CIA), has been studied by Bruce Siddle, Dave Grossman, Dr. Alexis Artwohl, and many more. Memory of actual events has been shown to improve after one to two sleep cycles. Clearly, waiting a day or two before requiring an officer to make a statement, whether oral or written, is only good investigative practice.
Many agencies still treat officers who are forced to use deadly force as the suspect, instead of as the victim. This is a flaw, in my opinion, that results in officers being treated as criminal suspects throughout the investigation and oftentimes leaves them feeling alienated and angry. Officers certainly have rights, and they, as well as their union officials and attorneys, should protect those rights. In order to protect your rights, you must first understand them. You do not have the right to refuse to make a statement post-shooting. Your agency can compel you to make what is known as a "public safety statement." A public safety statement and other excellent material is referred to in David E. Hatch's excellent book, Officer-Involved Shootings and Use of Force (CRC Press; 2003). In short, the public safety statement is the short version of what happened, i.e. "I was standing over here and fired in this direction. The suspect was standing there firing in this direction, the suspect's pistol is over there," etc. The public safety statement is a brief overview of what happened, not a full-blown walk through or statement. This statement will aid detectives in their investigation by allowing them to know where the crime scene and evidence reside and a brief overview of what transpired.
Whether an agency reads you your Miranda rights or not is up to them. Miranda rights are for custodial interrogations, and if an officer is free to go and not compelled to stay, then Miranda is not required. Some agencies even have officers sign waivers, stating that they are making the statements of their own volition. Many officers do not understand the Garrity rule and how it works, and make statements such as, "I invoked my Garrity rights." What they are referring to is actually "use immunity." In order for an officer to obtain use immunity from any statements they make, they must first be given their Miranda rights and invoke their right to remain silent. The officer only receives Garrity use immunity protection if they are then compelled to make a statement under threat of discipline, up to and including termination. This two-pronged process is the way officers receive protection from their statements being used against them in a criminal case. Note: Statements can still be used against officers internally and in subsequent civil suits. This is not legal advice; please check with an attorney that is well versed in Garrity. It has been my experience that many police union officials, prosecutors, investigators and attorneys do not have an understanding of Garrity.
The best plan of action is to never submit to an interview without your attorney present to safeguard your rights and interests. Many officers have hurt themselves by trusting that their rights were being protected, only to be caught up in a subsequent political whirlwind that turned against them. Have a knowledgeable attorney in your corner to be your advocate in the process. To proceed without one is to act foolishly. As someone who has experienced this firsthand, let me relate how stressful it is going from the "investigator" to the "investigated."
Many sound pieces of advice exist as to your post-incident actions, from not drinking alcohol or caffeine after an incident to engaging in exercise to help burn off the stress chemicals. How will you react to a shooting? Well, it depends on the support structures you already have in place and how you work through the process. Having healthy mechanisms in place for dealing and overcoming stress is an important part of a positive law enforcement lifestyle. If you tend toward withdrawal from family and friends, or use alcohol to deal with life's problems, your stress may be magnified. It certainly will not be dealt with effectively. Dr. Alexis Artwohl has, based on research, dispelled the myth that most officers that have been involved in a shooting leave law enforcement. It is quite the contrary, but there have been some incidents where our brothers and sisters have had to go through a post event living hell. Acknowledging that you are not the man (or woman) of steel, and that if the need arises, you will seek out professional help is the smart way to play. Part of that smart play is attending a critical incident stress debriefing. Although CISD has gotten some undeserved bad press, I have attended numerous debriefs as well as CISD peer training. To a man and woman, I have never heard any complaints, but rather high praise for the debriefs. In one debrief after an incident in which two officers had been shot and a suspect killed, officers never had the full picture of what happened until they heard their brothers talk for the first time. A word of caution here: get a professional debrief. Do not attend a "choir practice session" to debrief the incident. No positive results can come from such activities.
Do expect some mental replay of the event for a few days. I've told numerous officers that this is normal. When I told one officer of the VCR stuck on replay, he said, "KD, it was just like you said. I had a good night's sleep, but the minute I awoke the mental VCR started again."
Back to Work?
When will you be ready? Unfortunately, some administrators think there's a set timetable. Once again, how you will react is based, in my experience, on what other stressors you are living through at the time, your coping skills and the work that you do based on professional assistance. I will defer to Dr. Artwohl on this one when she says that, "You should go back to work when you're ready for the exact same thing to happen to you inside the first five minutes of your first shift."
I pray that you never need to implement the foregoing advice, but if you are faced with a deadly threat or perceive that your life or that of another is in danger, you act decisively and stop the aggressor. I hope that if you do, you are blessed with a sure hand and accurate fire based on your training. But understand that after the gunshot echoes have died and the suspects stopped and secured, there is additional survival work that requires your diligence and attention. You've survived physically; now survive legally, emotionally, psychologically at work and at home. You can do it and you must do it. You are a member of the thin blue line; now make the line stronger by preparing even more!