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When the smoke clears II: More legal tips for after your shooting
Part 2 of a 2-part series
In Part 1 of this series, we tapped the experience of John Hoag, a prominent law enforcement union attorney who has represented more than 40 officers in deadly force situations, for advice on legal “first aid” you should tend to after a shooting, to protect your best interests. Part 2 continues with his guidance:
6. Rest to improve your memory. The Psychological Services Section of the International Association of Chiefs of Police recommends that an officer who has survived a shooting be allowed at least one full sleep cycle before being required to give an official statement. Hoag argues that even more delay is desirable in many cases.
“The first sleep is likely to be fitful, at best,” he explains, “and when the adrenalin peak runs out you may be so tired that you won’t give the best statement, either. After 48 hours, you’re more likely to have gotten one decent night’s sleep.
“Sleep and rest help your body reestablish its equilibrium and tend also to improve your memory, which can make a significant difference in the coherence and accuracy of your statement. You have a chance to better sort out what actually happened, as opposed to what may be your mistaken impressions.
“Also by that time the investigative team should have interviewed most if not all of the witnesses and have been able to carefully examine the forensics, so your interviewers will know the relevant questions to ask.
“Of course, human psyches are not all the same. The ‘right’ timing may be influenced by your experience, age, training, previous critical incidents, what’s going on in your personal life and so on. Some officers may need longer than others. Ideally, you should be able to make the call as to when you feel ready to move forward.”
During your rest period, it’s best to avoid using alcohol and to not consume more caffeine than normal, so that your mind and emotions are as clear as possible as you process and come to terms with the event. Getting regular exercise and engaging in as much of your normal routine as you can will also help in calming your mind and body and restoring your memory.
7. Revisit the event. Before submitting to your official interview, Hoag strongly advocates that you walk through the scene of your shooting with your attorney. Watching any video that’s available and listening to audio tapes are also important.
“All this helps to fill in memory gaps and can be instrumental in separating in your mind a true picture of the event from perceptually distorted recollections,” Hoag says. Indeed, studies have shown that subjects who return to the environment where a given experience occurred can remember from 50 percent to 70 percent of the significant details of it, while those trying to recall things in a different place can recollect 30 percent to 50 percent of specifics.
“Your walk-through should not be recorded, nor should an investigator be present,” Hoag says. “Your reactions and your comments during the process need to be private matters. Also, the walk-through should occur under the same lighting conditions as the shooting, if possible.”
He cautions against participating in any video “re-enactment” of the confrontation, however. “This can inflict undue emotional stress on the involved officer,” he says. “But perhaps even more important, it is virtually impossible to do a re-enactment that identically matches all of the forensic evidence, such as bullet trajectories, time, distance, movement and so on. Most often, such a tape will just give an opposition attorney an unwarranted gift.”
8. Have your attorney help with your statement. “Whether your official account of the shooting is written or oral, your attorney should help you structure it to assure that it is as comprehensive and accurate as possible and that it does not contain misstatements or careless language that can come back to haunt you later,” Hoag says.
“Most departments will ask the involved officer to give a voluntary statement, and most officers want to do so, provided they’re not time-pressured. Voluntary cooperation can work to your advantage. It means that you control the interview, can take breaks as needed and consult with your attorney if necessary.
“It also means that your attorney can ensure that your statement is neither video- nor tape-recorded, but instead is handwritten by a properly trained investigator and later proofed by you and your attorney before it becomes final.
“I have insisted on this process for years, because in my experience neither the involved officer nor I can predict when the officer’s emotions will rise to the surface during an interview. No officer should have to later watch or listen to a tape where he or she breaks down and cries or otherwise chokes up.
“Some attorneys will insist upon Garrity warnings or an order to give a statement before letting the officer make one. Some agencies give such warnings or orders as a matter of course. But many agencies have learned not to do so, because they are subject to criticism from the district attorney for taking a statement that can’t be admitted as evidence, or from the public, which does not understand why an officer wouldn’t give a statement voluntarily. So unless I see anything wrong or questionable about the shooting, I let officers cooperate voluntarily rather than insist on their Garrity rights. That avoids unnecessary stress and simply looks better.
“Just one interview, though. Telling and retelling the story is not beneficial to the officer. If there’s an ongoing internal affairs investigation and also a civil liability one, those investigators can sit in on the criminal interview, and ask or compel their statement after the criminal investigator is finished and leaves.”
9. Don’t sweat lawsuit injustices. “You need to understand that even if you do everything right, at the time of the shooting and afterwards, there is still a high probability that there will be a lawsuit filed and possibly a settlement or a civil court verdict in favor of the suspect or his family,” Hoag says. “That certainly won’t seem right to you, but for your psychological well-being, you have to distance yourself from that outcome.
“It would only be fair to be vindicated, but in civil suits fairness does not always prevail. A settlement is generally a matter of economics, pure and simple, and your agency’s insurance company will likely call the shot. In a trial, who can predict what a jury will do? I gave up trying to read jury minds a long time ago.
“As disturbing to your sense of justice as an adverse civil decision may be, focus on the bright side of it for you. Virtually all states have legislation mandating an employer to ‘cover, defend and indemnify’ employees for actions taken in the course and scope of their employment. In practical terms, that means to pick up the tab for any civil litigation and to pay any adverse verdict. If your employer decides to settle or the case is lost at trial, remember it’s their money, not yours.”
10. Lobby and train now for “that day.” If your department’s policies and procedures do not contain provisions that serve your legal interests, now is the time to campaign to change them, not after you’ve had to defend your life and an investigation of your actions is under way.
“In areas where I represent officers, we’ve had almost universal success in getting departments to negotiate over shooting investigation practices,” Hoag says. “Why? Because with the right explanation, departments can be made to see that practices that protect the involved officer lead to the most thorough and competent investigations, which end up protecting the agency, as well.
“It’s also important for departments to remember that officers survive shootings by training, training and training. That training needs to include what occurs after the shooting. Unfortunately, it has been my experience that probably nine out of 10 agencies do not offer that type of training.
“That needs to change — fast. Until it does, you need to train for ‘that day,’ either on your own, through your labor organization, or with your fellow officers. When the day comes that you have to use deadly force to defend your life, you want to emerge a stronger, better officer, not an embittered one. How well you know and maneuver the legal ropes will be huge in the results you get.”
[John Hoag is a partner in the law firm of Snyder & Hoag LLC, in Portland, Ore., and is a member of the national advisory board for the Force Science Research Center at Minnesota State University-Mankato. He has specialized in public safety legal matters since 1988. He can be reached at firstname.lastname@example.org]