When the smoke clears: Your legal first aid after a shooting
Part 1 of a 2-part series
By Chuck Remsberg
The shooting’s over. You’ve survived. The suspect is likely dead or wounded. And now your priorities change.
Moments before, your sole focus was on protecting your life, your partner’s life or the life of some civilian. Now you need to protect yourself from a different threat: any potential legal actions that may be headed your way.
In more than 20 years as a police attorney, John Hoag has represented more than 40 officers who’ve been involved in shootings. As a lawyer for law enforcement unions throughout the Northwest, he has protected LEOs through departmental investigations, grand jury probes, review board hearings, and state and federal lawsuits. He knows firsthand how treacherous missteps can occur even in shootings that are slam-dunk justified.
Drawing from his experience, Hoag recently shared with PoliceOne 10 critical elements of legal “first aid” he believes are essential for you to tend to once the smoke has cleared from your armed encounter.
If you belong to a strong bargaining unit or patrol where an Officers’ Bill of Rights is in force, some of these considerations are supposed to kick in on your behalf automatically. Otherwise, they’re issues to lobby for now with your department and to remember on your own after a lethal confrontation.
Keeping a checklist in your pocket may prove to be a godsend when you’re under stress and groping for guidance after a fight of — and for — your life.
1. Very briefly debrief your supervisor. “Even though you’re confident you’ve done nothing wrong, it’s important that your after-action behavior not compromise your personal legal protection,” Hoag cautions. “In the immediate wake of a shooting, it’s best for you to say as little as possible and get off scene as quickly as possible.
“Under stress, if you try to reconstruct details, what you say may have to be corrected later, after you’ve sorted out what really happened. Inconsistencies will not help you or your department but could end up helping some opposing attorney.”
In private, convey to your supervisor only the information that’s necessary for the forensic and investigative teams to get started. Specifically, Hoag recommends:
• Give the status and location of the offender(s), if known.
• Advise of any injuries to any party, including yourself, that require immediate medical attention.
• Delineate the scene (if a chase has been involved, the scene might extend over a considerable distance).
• Identify any evidence that needs protecting.
• Identify any witnesses who need to be isolated and questioned.
• Offer a strictly bare-bones account of what happened. “This can be as simple as, ‘He pulled a gun while I was patting him down. I thought he was going to kill me, so I shot him to defend myself,’” Hoag says. “Or even: ‘The incident started here, we ended up here and the shooting took place here.’”
Beyond that, be very cautious about what you say at the scene. “Psychologically, you’re likely to be in a period of second-guessing, wondering if there wasn’t something different you could have done,” Hoag explains.
“A common mistake is to ask your buddies or your supervisor if you did the right thing. Almost always the answer is yes and you could have done it even sooner, but you hesitated because you were hoping that you wouldn’t have to shoot. But just think what a suspect’s criminal attorney or a plaintiff’s civil rights attorney could do with those expressions of doubt.
“Don’t look for peer approval for what happened. This can come back to haunt you later.”
2. Call your lawyer as soon as possible. “It’s critical that you meet with an attorney as soon as possible after the shooting,” Hoag stresses. “If one is not provided by your bargaining unit, arrange in advance either on your own or with other officers for one who’ll be willing to respond promptly 24/7.
“You need someone who understands police work and the post-shooting process. Usually a competent former assistant district attorney who now practices criminal law will fit the bill.
“Why an attorney and not a union rep or a fellow officer who’s been in a shooting and seems to know the ropes? Because the first detailed things you say after a shooting should be confidential, and what you tell your attorney will be privileged and protected from outside scrutiny. Even if your state law should allow a conversation with a union representative to be confidential, that’s not going to help you in front of a federal grand jury or at a wrongful death trial in federal court.
“Officers sometimes ask: ‘Why should I need an attorney? I’ve done nothing wrong and have nothing to hide.’
“Even if that is clearly so, shootings commonly generate a community response that is not going to wait for all of the facts. In one controversial shooting I’m familiar with, the mayor was quoted as stating that she wanted an officer fired without even waiting to be briefed by the department on what happened. Some agencies are not prepared for a shooting and, unless everything looks perfect, will see fault where none exists. Some prosecutors may be woefully undertrained in forensics or be politically ambitious and jump to a conclusion that you made a mistake.
“You need a person properly trained in the law to look out for your interests. That person should also be able to calm some of your fears. Officers often have an unfounded fear that they are going to lose their house and all their other worldly goods in the legal process that follows a shooting. A knowledgeable lawyer can tell you realistically what to expect.
“If, in a worst-case scenario, your department informs you that since you are not a criminal suspect, you can’t consult with an attorney (yes, this has occurred), then ask for a police psychologist or a minister in order to buy time while you get things straightened out.”
3. Get checked out medically. Ask to be taken directly from the scene to a medical facility, Hoag suggests. A blood or urine sample can be taken there, as soon as possible after the shooting, to verify that you were not under the influence of drugs or alcohol when you pulled the trigger.
Also, medical technicians can photograph any injuries you’ve suffered for evidence later on. And you can be checked over for injuries that you may not be aware of in your heightened state of arousal. “This is also a good idea for other officers who were involved in the incident but were not the shooter,” Hoag notes.
Get your vitals checked, especially your blood pressure. Even if you’re in fit condition, BP can remain highly elevated for some time. Even 90 minutes after the shooting, it may still be up 60 points or more above normal.
4. Avoid voluntarily giving a detailed statement immediately. Your medical condition alone — elevated blood pressure, raging adrenalin, extreme fatigue, physical injuries — may be a strong argument against giving a prompt formal statement, given that this will probably be the most important interview of your career and you need a clear, calm mind to approach it properly. Yet agencies have been known to press officers for details of a shooting even while they’re in the ER, being treated for a suspected heart attack.
Hoag says: “I’ve heard the argument that an officer should be treated like any other shooting suspect. That is a crock. The shooting of a threatening suspect by an officer is not just another homicide where a guilty person needs to be arrested.
“Society asks you to go into danger and use deadly force to protect the rest of us. You’re trained to do so appropriately and legally; it’s an essential job component. When you fulfill that requirement, you should not be treated the same as a criminal.
“If you are pressured to give an immediate statement and must comply because it’s your department’s policy, start with a disclaimer that you are making this statement under duress and against your will and haven’t yet had a chance to consult with counsel.
“Most police psychologists say that about 48 hours after a shooting is the ideal time for most officers to give a formal statement. By then your mind and body will have settled down considerably, and what you report will be much more comprehensive and reliable.
“An agency that insists on a formal statement before you go home ‘so the public will see that we have nothing to hide’ is, in reality, all but guaranteeing that a corrective or supplemental report will have to be prepared eventually. Opposition attorneys will be able to exploit it to their advantage.”
5. Watch who you talk to. “Obviously, don’t talk to the news media, much as you may want your version of events to be heard, and warn your family not to either,” Hoag says. “We all know the distortions and misrepresentations news reporters and editors are capable of.”
To avoid looking guilty of some wrongdoing, don’t give a stiff “no comment” or ignore reporters’ questions entirely. Tell them that you’d like to explain what happened but that department policy requires that all information on official matters must come through agency channels. “Your department should handle any statements from the media,” Hoag says. “In a high-profile case with intense coverage, a spokesperson should try to give neutral statements and emphasize that until all of the facts are known and verified, it is unwise to jump to conclusions.”
You also need to be cautious around even some of the people you may feel comfortable with and trust. On some departments, a fellow officer may be assigned to stay with you initially as a peer support person. “Don’t discuss the shooting,” Hoag says. “Conversations with this person are not legally privileged.”
The same advice applies to friends, relatives and some immediate family members. “Legally protected confidentiality may vary somewhat from place to place,” he explains, “but typically it applies primarily to what you tell your spouse, your domestic partner in states that formally recognize them, your attorney, a licensed mental health professional or an ordained member of the clergy.
“Psychologists agree that it can be beneficial for you to talk about your feelings, not to bottle things up. Just be sure you’re talking to the right people.”
Read Part 2
[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 email@example.com]
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