How to avoid criminal charges by planning ahead
Part 2: It’s not enough anymore that you be right in your force applications — you also have to be able to explain why you were right
Last time out — in part one of this two-part series — I discussed what I see as this new emerging trend of filing criminal charges or actively seeking indictments against officers for what most trainers see as a righteous use of force. I presented four case studies, three which resulted in acquittals, the fourth which did not. That fourth officer, now a convicted felon, is still awaiting sentencing. Here, we’ll talk about what you, as a professional law enforcement officer, can do to thwart this new onset of legal threats.
It would take volumes trying to explain why these legal twists and turns are occurring and there’s probably many reasons, some philosophical, others political. I’ll let those scholars with advanced degrees in Sociology ponder that issue. I’ve got my own thoughts on the matter, but time and space doesn’t permit me to wax philosophical on my personal theories about the root causes, so let’s focus on solutions instead.
First, train to the point of mastery with all your force tools and learn the art of “force articulation.” It’s not enough anymore that you be right in your force applications — you also have to be able to explain why you were right.
Second, learn how the legal game is played. Today, criminals are arming themselves with much more than high-powered weapons and hi-capacity magazines. They also have on their side thousands of recent law school graduates and a few less-than-ethical attorneys who are willing — even eager — to press elected prosecutors to file a frivolous criminal charge to accompany their civil suit in the hopes of getting a “quick fix” (plus their 40 percent) from some bean-counter under orders to avoid lawsuits at all costs.
Prepare Today for Trouble Tomorrow
Part of your preparation for hitting the street — besides getting the best training available — includes getting the best police defense attorney you can afford on board in the event you get wrapped up in a use-of-force beef. If you don’t already belong to a police legal defense fund, you might want to look at retaining an attorney who works for a firm that specializes in both criminal and civil defense work. I‘ve worked for more than a few law firms that do just that; their sole practice is devoted to police defense, criminal and civil. They’re out there — you just have to look for them.
Once you’ve identified and selected them, get know that lawyer on a personal basis. Do it NOW, before you need them to know who you are as a person and as a professional. Make it someone who knows that you may be calling him or her anytime, day or night, 24/7/356. This is not the time to call the attorney who handled your last divorce or who did your recent house closing, and it’s certainly not the time your cousin Vinnie gets assigned to the job. You should have — at the ready — every single contact number for that attorney, as well as numbers for the people who can put you in touch with him or her on little or no notice. In fact, use this article as a guide. Print this up, fill out the below table, cut that section out, and tape it inside your time book, onto your clipboard, or on your locker door.
You get the idea...
Listen, when you’ve just wrapped up a long investigation and made a nice bust, it may be fine to joke and have a beer with the local ADA who assisted you in preparing your search warrants or wire tap affidavits. But, if you’ve just busted a cap or two — or three or four — into some mope who was trying to rip your head off, that same ADA might not be on your side. His job might be to investigate your conduct and actions. If you work in a small jurisdiction, he may even be part of the DA’s team that presents your use-of-force case to the Grand Jury.
The recently-convicted cop I testified for was an eight-year veteran and had put a ton of dope smugglers away. But the AUSA who prosecuted him didn’t care a whit about the officer’s arrest record. In fact, his first attempt to put this officer away six months earlier ended in a mistrial. And in his (or his boss’s) zeal to prosecute a cop, he located his star witness again, did a little better job of prepping him for what was a vigorous cross examination by the cop’s defense attorney, and retried the case. And why not? He had a willing drug mule as his star witness and used the punk to his advantage. Should the smuggler ever grow tired of backpacking kilos of pot, he might find a new career in film or television.
Take advantage of every legal-issues course or seminar you can find and familiarize yourself with the latest use of force court decisions that come down the pike. If you see that your local academy is presenting a 24-hour course on the Legal Issues of Deadly Force on the same dates your favorite baseball team has a three-day home stand, take the course. The legal threats you face today are no longer secondary to the street threats you’re going to run into every now and then.
I’m just one trainer out there who is sometimes called upon to provide expert testimony in civil and criminal matters involving police use of force. There are about a dozen other excellent police trainers — some probably right in your own area — who are also willing to consult with your legal team in the event you get caught up in a legal bind.
I don’t believe this trend of filing state or federal criminal charges is an anomaly or just a fluke that I’ve stumbled upon. I believe this concept of taking police use of force matters to criminal courts, in addition to civil courts, is going to continue.
Plan for it now.
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