An armed suspect has chosen to participate in the Offender Resettlement Program by attacking you. You have resettled him to the next world. Now, with the shooting over, what steps should your attorney take to help you maneuver the unfamiliar minefield you’re suddenly in so the investigation advances to a swift and positive conclusion?
With nearly four decades as a police attorney behind him, Robert Wennerholm offered some fresh insights on that question recently at the ILEETA annual training conference, including suggestions that may change your expectations of how a savvy lawyer can best advocate for you in what will probably be the most critical period of your career.
Wennerholm, whose resume includes stints as legal advisor for Miami-Dade and Ft. Lauderdale police departments, has first-hand experience with more than 40 OISs. He framed his advice at the conference and in an exclusive PoliceOne interview later, in light of harsh realities.
In recent years, he says, “There has been a dramatic acceleration from presuming that an officer has done the right thing when he shot someone to the exact opposite.” Where a “friendly inquest” would have put matters readily to rest in pre-Rodney King days, now with skeptical media and doctrinaire activists ever watchful, “the presumption is of wrong-doing and cover-up.”
Police administrators and prosecutors often drag out shooting investigations “while they wait to see how the political and social winds are blowing,” Wennerholm alleges. “Months may go by without a final finding and this does not work to the emotional or legal benefit of the officer involved. Each day until a final resolution, there is an increasing emotional burden on the involved officer and on all the other officers in the agency.
“In the overwhelming majority of cases, the officer has protected himself and society appropriately by using deadly force, and he deserves to be quickly exonerated.”
To achieve that goal, Wennerholm recommends that after your shooting you confer immediately with the right kind of attorney (more on finding such a professional in a moment). Here are six ways he or she then can help you through the next critical two days to two weeks:
1. Resist pressure. “Your attorney should stand as a barrier between you and anyone who pushes you to immediately give a detailed statement about what happened,” Wennerholm says. “A large body of research — reported by Dr. Alexis Artwohl, Lt. Col. Dave Grossman, and others — has shown that memory of a life-threatening event is generally more accurate and comprehensive after one or more sleep cycles, so you’ll likely be able to give the clearest account of what happened only when you’re rested, re-energized, and emotionally settled.
“You do have a duty to promptly report all facts concerning any ongoing danger — descriptions of any criminals who have escaped, dangerous weapons that may be at the scene, and so on. But generally there is no legal duty to immediately make a verbal or written report regarding non-emergency aspects of a violent encounter. The length of your delay can’t be unreasonable, but it can extend to the degree that your responses will convey the greatest accuracy.”
In support of this position, Wennerholm says your attorney can cite the 1968 Supreme Court case Gardner v. Broderick, 392 U.S. 273. “He or she should make clear that you are not refusing to cooperate and be able to explain to supervisors, administrators, and investigators the legal and scientific justification for waiting for your statement.
“A spokesman for your department should in turn be able to explain this to the press so the department doesn’t appear to be stonewalling. The investigation, of course, can proceed on other avenues pending your availability.”
2. Clarify the official record. Your attorney should review any report you eventually write and be present during any interviews to make certain that your statements clearly communicate what happened.
“A good attorney is a communications expert,” Wennerholm says. “He or she can bring a dispassionate eye to your statements to be certain they accurately convey what you intend them to and make certain that you have articulated sufficient detail to tactically and legally justify your actions.”
Before you write a report or give an interview, your attorney should accompany you on a private visit to the scene, as a further means of stimulating your detailed memory of what occurred.
“For you to give the best possible account is in your department’s interest as well as your own,” Wennerholm says, “and your attorney should be able to argue this point effectively if necessary.”
3. Get your story out. As part of the effort to promote “a speedy decision that your actions were correct and legal,” Wennerholm proposes that your attorney prepare an “advocacy paper” on the incident; that is, a factual written statement that can be distributed to “all potential decision-makers,” not only for their own information but also for “dissemination to news media personnel.”
This document should explain:
• the circumstantial and legal justification for your action
• how you were protecting yourself and society by reacting to the threat in a tactically sound manner
• how the offender you shot made the decision to commit a life-threatening antisocial act and thereby forced you to act
4. Pro-actively advocate for you in person. Wennerholm also recommends that your attorney take the initiative in visiting key decision-makers in your case and advocating for you to them in person. At that time, the attorney can “make a sound case and deliver the written tactical/legal justification to them.”
Those visited should include: your agency’s administrators, the defense attorney for your agency’s insurer, state and federal prosecutors, and the lawyer for the suspect’s survivors.
With appropriate information from your attorney, “these persons will be more likely to initially come to the correct legal conclusion in your behalf and also be prepared to respond positively to news media requests for information about the incident.”
5. Help your agency. “Smaller agencies particularly are likely to welcome the assistance of a good attorney,” Wennerholm believes. “So your advocate should express the attitude, ‘I’m here to protect the officer but I’m also willing to help the agency get to a positive outcome.’ The right approach can help motivate cooperation.
“After all, as the involved officer you should not be treated like a criminal suspect” — interrogated instead of interviewed, isolated from information about the investigation, distanced like a plague germ from administrators and fellow officers.
“You deserve different treatment because you start out as a different entity in this situation,” Wennerholm explains. “The department knows you, knows your history, knows your training, knows that you were drawn to the scene because it was your job to be there. You should be assumed to be an honorable person until evidence suggests otherwise, not someone who had wrongful intent. Your advocate needs to reinforce this position at every opportunity.
“Remember, it is in your agency’s interest to get the matter resolved with a minimum of conflict and without undue delay.”
6. Urge expert review. In shootings where the dynamics are unclear or controversial — the suspect is shot in the back, for example — your attorney should urge your agency to seek the help of an expert to analyze the situation, Wennerholm says. He mentioned the Force Science Institute as one possible source of such expertise.
If the agency is unwilling, your attorney should consider making the contact himself — well before a civil suit or criminal charges are filed necessitating such a move. “Such a pre-emptive review may very well discourage matters from moving to that point.”
The expert should:
• evaluate the event and make a determination of the tactical correctness and legality of your actions
• prepare a written report that can be taken to the prosecutor’s office to help the staff there “understand the dynamics” of the encounter, reach a “speedy decision,” and prepare a written statement “for the press and other politicians, that explains the factual, tactical, and legal basis” for concluding (hopefully) that no criminal action against you is called for
Submitting a computer file of the document along with the printed text will allow the staff to “copy and paste text in preparing their statement, in the same manner that judges use the legal memos of attorneys to write their decisions,” Wennerholm says. This is also true of other support documents the attorney prepares, such as the advocacy paper.
“Of course they’ll want to check things out on their own, look at other evidence,” Wennerholm says. “But this gives them a basis for coming to the right conclusion. They’ll be intellectually prepared for the facts they discover to match up.”
So how do you find a lawyer who’s willing to do all this?
Wennerholm argues that that’s primarily a police union responsibility. “The bargaining agent usually has a labor attorney on retainer. They should also engage a special attorney to be on call for officers involved in major use-of-force situations.
“This should be someone with a working knowledge of the street and of the investigative process — perhaps someone with experience as a prosecutor or as an in-house legal advisor—who’s willing to be rousted out immediately to a shooting scene at 0300.”
In the absence of union initiative, Wennerholm suggests that officers get together as an “informal association” to search out and interview prospective advocates.
There may be a temptation to retain a criminal defense attorney, but if that’s done be certain to educate him on exactly what you expect his advocacy to encompass. Wennerholm explains:
“Typically, criminal defense lawyers become active only after someone is charged with a crime. In their world, delay is desirable because it increases the odds of acquittal. They may not be familiar with how to best help an officer who is not arrested and who wants and needs a speedy resolution.
“If they take the position, ‘Wait for the prosecutor to file, then I’ll get you off,’ that would be a disaster. After an officer-involved shooting, the clock of potential consequences is running the minute you start shooting. You don’t want to even get close to being charged.”
Robert Wennerholm provides legal consultation for law enforcement through the Police Law Research Center in Iowa City, Iowa. He can be reached at (319) 331-7763 or via email at: firstname.lastname@example.org.