04/07/2014

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6 ways cops can aid their lawyers to win use-of-force litigation

How can an officer can best help a lawyer in preparing the strongest defense possible after an OIS or other major force confrontation? Here are six ideas to get the discussion going.

Are you an officer who has been involved in use-of-force hearings or litigation, or are you an attorney who represents LEOs when their force decisions are reviewed or challenged? 

If so, we’d like to hear your views on how an officer can best help a lawyer in preparing the strongest defense possible after an OIS or other major force confrontation. What, in your experience, are key do’s and don’ts of working with an attorney to get a justified, favorable resolution? 

To stimulate responses, Force Science News put that issue recently to Heather White, a Salt Lake City police liability attorney. White is a graduate of the Force Science certification course, and a past president of the Utah chapter of the Federal Bar Assn. 

Here are six tips she offers after nearly 20 years of defending officers in federal civil rights/excessive force lawsuits. Note that some suggestions have to do with your actions before a lawyer is even involved. 

Agree? Disagree? Have other lessons you’ve learned the hard way? Send your comments to training@forcescience.org. We’ll post reactions in a future transmission. 

Meanwhile, remember: Your insider perspective shared now may help a brother or sister officer who survives a street threat--and then is thrown into the unfamiliar shark tank of legal judgment. 

Here’s Attorney White’s advice, with relevant examples from her case files: 

1.) Detail Your Training 
“It’s important to educate your lawyer, in detail, about what you were trained to do, how you were trained to do it, and why you did it in the circumstances you faced,” White says. “This helps the attorney talk about the ‘objective standard’ behind your actions in a way that judges and jurors can understand.” 
Example: An officer standing with a DUI suspect outside a pickup truck suddenly performed a foot sweep that tumbled the driver to the ground. “On the dash-cam video, it looked like the officer just walked up and dumped the guy,” White says. 

What the camera didn’t show was the offender tensing up when the officer touched his shoulder, then starting to lurch back toward the cab. The officer explained, from his training and experience, about the danger cues of certain body language and the potential risk of the suspect reaching a weapon inside the truck--concepts the average naive juror wouldn’t think of. 

“Being able to show that officers are trained to see and react to things differently from civilians helps jurors accept that in that situation, they would have done the same thing,” White says. 

2.) Drop Your Façade
“It’s very important for judges and juries to see an officer who has been in a shooting as a human being and not just a robotic force,” White says. 

She urges clients to “take off the emotionless professional facade” and express their feelings to her honestly. “I want to know how they feel after the act and what emotion went through their mind just before they shot, when they thought they were about to be separated from their family forever or realized they were about to take a human life.” 

Some are “sad, even weepy,” others angry about having been forced into a him-or-me choice. “Whatever their genuine emotions, a good attorney can work with it in court to humanize the officer and counter the media image of cops as people who like guns and like being aggressive. Digging through the tough mental armor can help build the picture of an officer who didn’t take a necessary decision to shoot lightly.” 

3.) Leave Wiggle Room
“When describing your shooting, in your statement or in testimony, leave a little bit of room for error. This is critical,” White says. “Rather than being too specific about times, distances, and other factors that can be measured independently and also compared to the testimony of other witnesses, its usually best to avoid absolutes. Forensics may prove you and your certainties wrong. 

“When life-threatening events happen as fast and under as much stress as most shootings, it’s usually impossible to register all details with precision. So it’s really more accurate to describe what you thought you saw or experienced--how things seemed to be from your unique perspective. 

“When you don’t lock your attorney into rigid specifics, you make it easier to introduce human limitations of perception and memory and to address or avoid potential inconsistencies.” 

4.) Think Ahead
Evaluate what you say and do at the scene of a confrontation in terms of “whether you’d like to see it replayed on a big screen in a federal court house,” White advises. 

Example: A woman who had tried to help her husband escape from police was handcuffed in the back of a patrol car. In conversation with an officer, she became highly agitated and belligerent, baiting him at one point by asking: “What are you gonna do, stomp on me?” 

“No,” the officer replied, “I’m gonna smash you in the face!” 

“He was being sarcastic,” White explains, “but what he said was captured on the audio of a back-facing camera.” In court, “this didn’t play well to the jury,” and gave White as the officer’s attorney a problem of “unprofessional conduct” to deal with that distracted from the core of the case. 

“The officer could have prevented that by simply ignoring her,” White says. 

5.) Provide Real-Time Commentary
“If you’re not recording your encounters these days, chances are that someone else is,” White says. Thus, your communication style becomes indelible and not easily backpeddled in court. 

When circumstances permit, White strongly favors explaining to subjects why you are instructing or asking them to do things rather than simply ordering them to comply. “In litigation, this can be helpful to have recorded,” she says. “If you’re able to explain as you go along why you’re asking or doing something, it helps the jury understand your thinking and your actions. 

“Of course, don’t compromise your safety by talking when you should be acting immediately. Officer safety is paramount. But when possible, explaining creates better rapport and tends to give you more credibility with a jury.” 

6.) Identify Witnesses ASAP
“Never underestimate the value of getting statements from witnesses right away, before they have a chance to fabricate things to suit their biases,” White says. “The sooner you get even an informal preliminary statement, the less tainted it’s likely to be.” 

Example: When a long pursuit of a stolen truck through multiple jurisdictions finally ended in the barnyard of the suspect’s own rural residence, the driver hopped from the cab and started walking toward an open field. “As officers came after him, he suddenly whirled around in a shooting stance, with an object in his hand,” White recalls. Without hesitation, two officers fired at the subject and killed him. 

“Turned out he was not holding a gun,” White says. “He was pressing a knife against his wrist.” 

As the smoke cleared, a county officer immediately approached a man who’d been working on a truck in the yard and asked him what he’d seen. He wrote down the man’s exact words: “I even thought he had a gun.” 

The witness was the suspect’s brother-in-law. Later when the family filed a suit claiming that the shooters should have known the suspect was not brandishing a gun and posed no urgent threat, “the statement was critical to the jury’s determination that the officers were justified in shooting,” White says. 

If you’re a shooting officer at a scene, your involvement with witnesses will likely not be practical or desirable. “But often,” she says, “there are other officers present who can readily take up this important task.” 

These brief tips are a just few of many that could be offered. Let us know what you’d like to share about working successfully with attorneys at training@forcescience.org

About the author

The Force Science Institute was launched in 2004 by Executive Director Bill Lewinski, PhD. - a specialist in police psychology -- to conduct unique lethal-force experiments. The non-profit Force Science Institute, based at Minnesota State University-Mankato, uses sophisticated time-and-motion measurements to document-for the first time-critical hidden truths about the physical and mental dynamics of life-threatening events, particularly officer-involved shootings. Its startling findings profoundly impact on officer training and safety and on the public's naive perceptions.

For more information, visit www.forcescience.org or e-mail info@forcescience.org. If you would benefit from receiving updates on the FSRC's findings as well as a variety of other use-of-force related articles, please visit www.forcesciencenews.com and click on the "Please sign up for our newsletter" link at the front of the site. Subscriptions are free.
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