Joe Friday’s iconic statement, “just the facts ma’am” has become the mantra all too often of Public Information Officers (PIO) and law enforcement administrators as well as the attorneys who defend law enforcement agencies.  Many Law Enforcement Officers (LEOs) have finally come to grips with the fact that the media is everywhere.  Twenty-five years ago, the “media” consisted of a mainstream media dominated by print, radio, and television.  Today, with the advent of social media, cell phone cameras, and the near complete proliferation of surveillance, traffic and dash cams in law enforcement vehicles in the United States, there is no shortage of “media” available following a critical incident.  The Federal Freedom of Information Act (FOIA) and similar state statutes, provide professional journalists, amateur journalists, and the average citizen with an endless supply of video, audio, and written documentation of the actions of LEOs all around the United States and the world.

I am a staunch defender of the First Amendment to the Constitution of the United States.  In fact, you will find that I am a staunch defender of the entire Constitution including the Second Amendment, the Sixth Amendment and everything that provides due process to LEOs.  So, you will not hear me rail about the evils of access to law enforcement files, videos, audiotaped interviews of suspects and the like.  Instead, my perspective is a bit different.  Due to the ease of access to this once sensitive law enforcement information, a PIO, law enforcement administrator, or LEO who steps into the arena of the media frenzy following a critical incident is in a coliseum with very different rules.  Compared to 25 years ago, the number of spectators has increased and so has the number of lions.  Just like any other game, when the rules change, you have to change the playbook.  Hopefully, at the end of the post, you will consider these options as a groundwork for the future defense of a civil suit, criminal action, or just a publicity inquiry concerning the actions of your agency.

Use the Facts, the Facts Will Set You Free

Faced with a high publicity use of force incident, most departments put out a press release advising that the LEOs were forced to use a TASER® and start immediately defending the LEOs’ actions from the perspective of the media and lay people who know absolutely nothing about the laws surrounding the use of force.  Phrases like, “the officers had no choice”, or “the matter is under investigation” just fuel the fire that the LEOs’ actions are subject to review and the department is concerned.  Although some who teach public information classes agree that you should release very little information and state that an investigation is ongoing, I could not disagree more.

In the weeks following a critical incident, the LEOs’ actions will be questioned in the media as to why they did not have any video of the deployment of the TASER® or of their approach to the suspect.  They will now be in a position of defending their actions because the agency did not proactively explain why the LEOs made sound tactical decisions.  A video of a violent encounter with a LEO that is not put in context usually will be misinterpreted.  So, I suggest this press release instead.

“This afternoon, two of our officers responded to a trouble unknown call at the Gas-mart on Elm Street.  Due to the nature of the call, the officers were unable to park in front of the business and had to approach the call as a possible armed robbery in progress.  As the officers got closer to the business, they were unable to see into the business due to signs and posters that were placed over the windows by the store owner.  When the officers were able to make contact with one of the patrons, they learned that an individual was becoming violent inside the store.  As they entered the store, they could tell that the employees were scared as were the two patrons inside the business. 

When the officers first saw the subject, he was standing at a cooler of drinks with a quart-size glass bottle in each hand and was staring and mumbling. It was apparent that he had been consuming alcoholic beverages.  The officers separated to minimize the impact of their presence on the subject and one of our most senior officers approached the subject.  The officer, a 15-year veteran of the force with 10 years of experience training other officers, approached the subject in a calm voice attempting to calm him down and determine a way to defuse the situation. Unfortunately, the subject immediately attacked the officer striking him with his elbow. The suspect then began a violent effort to disarm the officer by trying to remove his firearm from the holster.  The subject, who was over 6 feet 5 inches, and weighed over 300 pounds, was laying on top of the officer trying to jerk his weapon out of his holster.  At times, he was picking the officer up off of the floor by his holster as the officer desperately tried to hold onto his firearm.  Fortunately, the backup officer was able to deploy a TASER® and avoid the use of deadly force against the subject.  Due to the subject’s continued struggling, and the fact that the subject was still laying on top of the first officer, the backup officer was required to deploy his TASER® more than once, in fact a total of four times, and the subject was placed into custody without any further injury.  While this was a sad situation that a person with mental difficulties had a violent encounter with the police, fortunately higher levels of force were averted through the use of proper tactics, training, and the deployment of a less lethal device known as a Taser®.”

Aside from the obvious advantage for the publicity, this statement will be used and will assist you when someone is considering whether or not to sue your department.  A department that proactively puts out the facts and states in plain terms what happened along with stating unapologetically exactly what level of force was used, why, and the injuries suffered by the suspect and the LEOs, I believe is less likely to face a suit and more able to defend a suit should one occur.

Other Rules Have Changed As Well

In 2011 and in the last five years, we saw multiple violent attacks on LEOs.  LEOs can now see videos on the internet of other LEOs being attacked.  Attacks against LEOs are becoming more prevalent and more violent.  Although we can debate the reasons, I personally believe it is because we are letting more and more violent people out of prison and avoiding jail sentences in order to save money.  Serial felony offenders are being let out of prison.  In addition, LEOs are able to see the dash cameras from LEOs who were injured or lost their lives on You Tube and other multi-media websites.  It is no wonder they are reacting more quickly.  However, we can use these videos to our advantage.  We use them in training, why not train the public?  When the public understands just how quickly a situation on a traffic stop can become deadly, they will, in my experience, understand why the LEO used the level of force he chose.  When they understand the level of force used and what the LEO perceived, the public overwhelmingly supports the use of force by LEOs.  While there are some who will never support any use of force under any circumstances by LEOs, they are not your audience.  You will never change their minds, and they will never understand.

So, here is the takeaway.  When you have a critical incident, or any incident in which you know media attention will follow, put the information out there first.  Use only the facts that you can back up, verify, and defend in court.  Utilize websites such as Facebook, Twitter, and others to let the public know that you are acting in an open and honest manner.  When you have a situation where a LEO is assaulted, say it.  When you have a situation during which your LEOs were forced to use force, state the level of force used, the reason and the injury to the suspect, as well as the injury to the LEO.  Do not apologize for less than lethal force.  This is especially true when you have a department filled with highly trained, highly experienced, and professional LEOs.  I do not apologize for any efforts that my clients have taken to protect themselves or the lives of another, and neither should you.

By changing the tide of negative publicity, negative inferences, and a general suspicion of the use of force, we educate the public and turn the conversations from what the LEOs did wrong to, “Why did the suspect take the actions he took” and “Fortunately, the LEO was able to avoid taking a life.”  We all know that every physical confrontation with a LEO has the potential to turn deadly.  When they do not turn deadly, we should take pride in that fact and let the public know.  Further, consider every confrontation faced by a LEO, including every citizen contact, and the fact that the average LEO is involved in only one or two serious use of force or use of deadly force incidents in a 20-year career. Those statistics speak for themselves and help you defend the LEO as a person who judiciously uses force in a reasonable manner and not someone who uses excessive force.

Stay safe.

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