It happened. The day you hoped would never come has come with a vengeance, you were just involved in an officer-involved shooting. While you and your fellow officers are fine, within the hours of the event media is swirling around the incident and social media is abuzz with rumors and anti-law enforcement rhetoric.
In the days and weeks following this event, you are interviewed and maybe do a walk-through of the scene with an outside agency. You anxiously await the local DA to say you did nothing wrong as you struggle in mandatory silence amidst speculations of those who weren’t there. Meanwhile a slew of people, many you have never met before, decide your fate.
While most deadly force incidents will not lead to prosecution, they will almost certainly lead to civil litigation and oftentimes at the federal level. The burden of proof for civil violations, combined with the wide variety of angles some attorneys use to speculate wrong-doing, means that officers must hope that their reputation, employment, and livelihood will be saved by a good criminal investigation and a good defense team.
I have seen my share of poor investigations after an officer-involved-incident. From rushed interviews of involved officers or a lack of following-up on witnesses, to the outright failure to do such simple things as taking measurements or photographs of the scene. Outside agency investigators approach these incidents through a crime scene lens and not that of a civil investigation. What may seem like an “open and shut” incident to them will surely lead to omissions and mistakes in the investigation that skilled attorneys and experts will capitalize on later in a civil trial.
Worse yet are the municipal and county employers who don’t know who to turn to when they and their officers are sued after a subject dies at the hands of law enforcement. They may end up contacting their general counsel who may be a whiz at zoning regulations, but has never handled a federal civil rights violation before. Errors made from the beginning will be insurmountable in providing the officer with a fair civil trial.
As an officer, you may spend hours training for the worst. You may be in the top physical condition, a master with your firearm, and highly skilled in defensive tactics, but are you just as prepared for the post-incident knowledge needed to survive a deadly force encounter? Officers today must be proactive in making sure they will legally survive the incident just as must as they will physically survive one.
This all starts by asking questions and doing your homework. Who is the legal counsel for your city, town, or county should you be sued? What are their qualifications and experience in handling these incidents? Your agency will obviously request an outside agency to perform the “criminal” investigation, but who will perform the “civil” one that should be launched concurrently? Each agency should be prepared to use subject-matter experts to assist them in performing the equally important investigation relative to the officer’s compliance to policy, training, and professional standards. Those are the avenues used to sue officers in federal court. If your agency is unwilling to provide a civil defense investigation, you should be contacting your labor representative to advocate for one.
Subject matter experts are the people who make sure the officer’s version of events, tactics, and decision-making are factually articulated in a manner that will make a successful suit incredibly difficult. They are experts in tactics, policy, and training so they can provide justifications for the need and type of force used that typical officer-involved criminal shooting investigations do not even explore. They are also skilled in testifying to juries, should the matter come to trial and their opinion is counted on to demonstrate the officer’s force was objectively reasonable.
Remember, it’s not the role of the criminal investigation team to defend your actions after a shooting or critical incident. Thus, the use of expert consultants should be relied upon to fill this void and provide the proper defense from the beginning. The time and money spent in using expert consultants after a critical incident could save a municipality hundreds of thousands of dollars in legal defense fees as well as potential millions in settlements or jury awards. They can also save an officer’s reputation, career, and health by making sure the officer’s actions are properly justified.
About the Author
Brian Landers is a former law enforcement officer and current professor of criminal justice. He also serves as an expert consultant and witness for police use of force incidents throughout the United States. He can be reached at [email protected]
