You have been on the job for some time but have never had to use deadly force. Then, in a split second, you just shot someone; what happens next?
While many officers work on maintaining their proficiency and marksmanship skills with their weapons, many do not place the same emphasis on knowing their legal rights or learning what follows an officer-involved shooting. This article will try to do just that. It will walk the reader through the process from the perspective of the involved officer(s). It will review what happens in the hours, days, and months following the shooting as the investigation moves forward.
So, let’s say you just fired your weapon in the line of duty, and the suspect(s) is down and now in custody; you broadcast over the police radio of shots fired and requested rescue personnel for a male with gunshot wounds. You also request additional units and a supervisor to respond to your location. You hear the sirens off in the distance that appear to get louder as they get closer; now, the investigation starts. The fire department’s rescue personnel arrived and treated the injured suspect, who ultimately succumbed to his injuries while being treated at a local hospital.
You assist responding (uninvolved) units in setting up a crime scene perimeter, pointing out the evidence, and ensuring everything is contained and secured within the perimeter. The first uninvolved supervisor arrives and starts asking for those involved in the shooting incident to identify themselves. You identify yourself as being involved with your partner, who did not shoot. The sergeant acknowledges and asks you and your partner to separate and not discuss the incident.
Generally accepted practices following an officer-involved shooting call for the separation of the involved officer(s) until they provide a public safety statement and are officially interviewed by investigators. This is designed to maintain integrity in your statements and avoid any possibility of compromising your recollection or statement.
The supervisor verified you were involved and asked some precise questions.
There are usually two types of interviews that can be conducted with a sworn officer following an officer-involved shooting: a voluntary or compelled statement (we will discuss compelled statements in greater detail further along in this paper).
However, this (the sergeant’s questioning of the involved officers) is referred to as a public safety statement and is neither compelled nor voluntary—the public safety statement derives from the US Supreme Court decision of New York v. Quarles in 1984. The Quarles decision established an exception to the Miranda rule, allowing law enforcement to prioritize public safety in certain situations (New York v. Quarles, 467 U.S. 649 (1984). In short, the Quarles decision enables a supervisor to ask specific questions of the involved officers following an incident, like an officer-involved shooting. The questions must be designed to ensure the public’s safety if there is a possible immediate threat to the public.
The generally accepted practices call for the following public safety questions:
- Did you use force, and what type of force?
- What direction did you fire?
- How many rounds did you fire?
- Outstanding suspects, last known location of travel?
- Evidence location and location of the injured person/suspect(s)?
It is important to remember that the public safety questions are outside of the Miranda warning and are meant for the public’s safety. You cannot refuse to provide the answers to these specific questions, and you will not be compelled to answer them. During the public safety statement questions, you will not have a representative/ or attorney to guide you. The public safety statement requirement does not allow the sergeant to ask questions regarding the shooting, such as why you shot, whether you were in fear for your life, etc. Additionally, the public safety questions must be contemporaneous with the shooting incident. Departments cannot use the public safety statement to obtain shooting information outside Miranda or the Garrity warning (voluntary or compelled).
After answering the public safety questions, the sergeant will direct/order you to go with an uninvolved officer (sometimes referred to as a buddy officer) to a nearby police vehicle outside the perimeter to sit inside and stand by for additional requests by responding investigative personnel (it would also not be unusual to be sent back to the police department to wait for investigators). Before having you sit in the police vehicle (or being driven back to the station), the sergeant will give you an order “not to discuss the incident with anyone other than your commanding officer, the investigators, or the representative (lodge/bargaining unit/FOP representative or attorney.” The sergeant will further order you not to touch or handle your weapon and to leave it in its holstered position until instructed to do otherwise by an assigned investigator. Following your public safety statement and after ensuring it was no longer actively recording; the sergeant may take your body-worn camera and provide it to the investigators as evidence (this may also vary based on your department policy).
During the officer-involved shooting investigation, you can expect that your weapon will be inspected and photographed at the scene or back at the station to determine how many rounds remain in the gun (chamber and magazine). This is to determine the number of rounds missing from the gun. Assuming the weapon was loaded to capacity, the missing rounds should be the number of rounds fired during the incident (you should know the policy on loading your gun and how many rounds you had in your weapon). While seated in the police vehicle with the buddy officer or back at the police station, you can call your significant other(s) to let them know you are ok. Be careful about how much information you provide, and ensure that these calls are made outside of body-worn video recordings. This is a personal conversation and not part of the investigation. Aside from advising the family member(s) that you are ok, do not provide details of the shooting incident for which you have been ordered not to discuss.
While waiting in the vehicle with the buddy officer, your representative and/or legal counsel may arrive and ask to speak with you. The buddy officer will release you to the attorney, who will take responsibility for you (the buddy officer is not privy to this conversation). This is your time to ask questions about the incident or the process. This representative/counsel will be with you throughout the process and is there to represent you and ensure you are provided with your due process rights. Your representative will want to hear from you about what happened, your actions, and the reasons for such actions during the shooting.
You will be photographed during the investigation and before you are allowed to change clothes to illustrate how you appeared during the incident (in uniform or plain clothes). Usually, the photographs are taken in such a manner as to show your 360 appearances from top to bottom. Be aware that if you have evidence, such as cuts, bruising, or damage to your uniform or your person from a struggle related to the shooting, that will also be photographed as evidence.
During your weapon’s magazine count, the process will also be photographed to document the actions and findings from the count. Following the magazine count, your gun and ammunition will be displayed and photographed as evidence. The ammunition and gun will be submitted for testing per your department’s policy. You will be given a loaner weapon of a similar caliber and additional ammo while your gun is being held as evidence. The criminal investigators are usually the ones tasked with conducting the magazine count. You cannot refuse the magazine count or weapon testing. No Garrity warning is given as this is under the course and scope of your duties. The general practice is that the department can inspect and test your weapon.
While the scene is still being maintained and investigated, you may be asked to respond to the shooting location (the scene) to participate in a walk-through to obtain your position relative to the suspect(s). As previously mentioned, officer-involved shootings have multiple components: one is the criminal investigation into your legal justification for using deadly force, the other is the crime committed by the civilian suspect that precipitated the shooting, and the last one is the administrative component of the shooting investigation.
The criminal portions of the investigation always take the lead. In this case, if the criminal investigators ask you for a walk-through, you must decide if you will give them a voluntary walk-through; they cannot compel you (the involved officer) to do the walk-through under Garity. If you provide them with a voluntary walk-through, any information gathered during it can be used against you in a trial (this assumes that you would be charged with a crime by the prosecutors). The criminal investigators will not get a walk-through from you (the involved officer) if you do not give them a voluntary walkthrough. However, they can and often do get a walk-through from the other sworn witnesses who may have seen your shooting (the distinction is they are not involved because they did not shoot). It is your right to refuse to provide a voluntary walkthrough or statement. However, you should be guided by your legal representative. The department cannot discipline you for electing to exercise your rights.
Under the administrative portion of the shooting investigation, the administrative investigators can and, more likely than not, will compel you to provide them with a walk-through. Remember, a walk-through is not an interview and is only designed to obtain your position(s) during the shooting in relation to the suspect. Any information received from you from such a compulsion under Garity cannot be used against you in any criminal proceedings.
Regarding the interview, the general practice is to allow the involved officer two sleep cycles before obtaining an official statement of the shooting. The initial investigators wanting to get a statement from you will be the criminal investigators, who cannot compel you and only get a statement if you volunteer one. Lastly, the administrative investigators will want to interview you once the criminal case is completed. Once completed, the criminal investigation will be provided to the prosecutors’ office for review and criminal considerations surrounding your use of lethal force. For this reason, you cannot be compelled, as the Garity warning assures that any statement obtained under Garrity cannot be used against you criminally. Therefore, the criminal investigators must get a voluntary statement from you or no statement at all. Your counsel will guide you on whether you should provide a voluntary statement. Attorneys who practice this area of law are very experienced in these matters and will be able to advise you properly.
Whether you can review your body-worn video footage before being interviewed will depend on your department’s policy. Some agencies will allow officers to review the body-worn video before providing a statement, while others may not. You are encouraged to learn your department’s specific policies.
Following the conclusion of every officer-involved shooting, the completed criminal portion of the case is reviewed by county prosecutors, who decide where the officer’s use of lethal force was legally justified. It is common for assistant district attorneys (prosecutor’s office) and their investigators to respond to the shooting scene the night of the incident. They usually obtain preliminary information about the incident from the criminal investigators (all non-compelled information). In some investigations, the prosecutors may sit in on (usually civilian) interviews as they are being conducted. Ultimately, the prosecutor’s office will release their decision (to prosecute or not) by making public a filing consideration letter listing their findings. Once the criminal case has concluded, it is the time when many administrative cases are cleared to proceed.
Remember that for the administrative portion of the shooting investigation, you will be given a Garrity warning compelling you to provide a statement unless you give a voluntary statement. Unlike the criminal portion, the administrative investigation will look at everything leading up to, during, and immediately after the shooting from an administrative viewpoint. Things like tactics, equipment used, policy, procedures, radio communications, planning, lack of planning, and use of force, to name a few. It is important to note that on rare occasions, your actions in the shooting may result in a personnel complaint (administrative complaint) if your actions were outside of policy or procedures. While the Garrity warning is the generally accepted practice for most, if not all, law enforcement departments when compelling a statement, it is essential to know where it derives from.
The Garrity warning comes from the case Garity v. New Jersey, 385 U.S. 493 (1967)
The Rights under Garrity:
They are designed to protect public employees from being compelled to incriminate themselves during internal investigations where there is a risk of possible criminal prosecution.
If a public employee is compelled to provide a statement or face possible termination, that statement cannot be used against them in criminal court. In short, you cannot be compelled to waive your right against self-incrimination.
The purpose, in part, of the administrative investigation and review is intended to compare your actions or inactions with the policies and procedures of your department. The goal is to provide a finding on your tactics and use of lethal force based on adherence to departmental policy, procedures, and training.
Your department’s administrative review process may differ, and you need to become familiar with your department’s administrative review process along with related policies and procedures.
This is a generally accepted practice; you are encouraged to review your department’s specific policies, procedures, and any state law that may also apply.
