Responding To The “Good Shoot”: Do I really need a lawyer?

April 10, 2012

It happens more often than not. A LEO is forced to use deadly force and the facts of the events leading to the shooting and the shooting itself clearly support a lawful, appropriate application of force. The criminal investigators interview witnesses who support the use of deadly force and the administrative investigation reveals no violation of departmental policy or state or federal law. This should not surprise anyone as LEOs in the United States are exposed to a tremendous number of training opportunities after they complete training academies. Judgmental use of deadly force classes and simulators as well as role play training leads to this result.

When I speak with and train LEOs, especially about the use of deadly force, I often hear this question, “Why would I need a lawyer if the use of deadly force was clearly justified?” This question strikes at the heart of the use of deadly force in our society. A shooting is a seizure. Every use of force by a LEO is an application of government authority. Therefore, every use of force and every shooting raises issues of constitutional import and courts justifiably take the LEO’s actions seriously.

Let’s look at the United States Supreme Court’s (USSC) opinion in Graham v. Connor, 490 US 386 (1989). This case sets out the standards applied to the use of force to control, arrest, and seize a person. In short, the USSC stated that the use of force by a LEO will be evaluated objectively according to the reasonableness test of the Fourth Amendment to the United States Constitution. However, the USSC also discussed the perceptions of the LEO in a use of force case. This analysis is critical to this blog post.

“The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. []. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” 490 at 396-397. (emphasis added)

So, in this quote we see that courts will apply an objective test when evaluating the application of force. Courts are also instructed to take into account the “tense, uncertain and rapidly evolving” circumstances facing the LEO before, during and after the application of force. Finally, the USSC states clearly that the LEO’s intentions will not factor into the use of force analysis. In this quote we see, in my opinion, why it is critical for every LEO to consult an attorney after every OIS.

First, the facts that make up the analysis of “objective reasonableness” are gathered from many sources including the statements of the LEO who used deadly force. This means your statement to investigators is critical. You should have adequate time to rest, time to decompress and time to speak with an attorney to make certain that you can adequately relate the facts of the incident. Too often, LEOs I meet with after an OIS were ready to relate the “bare bones” facts just to get through the interview as quickly as possible if for no other reason, because they were nervous or had decided that the justification for the use of deadly force was obvious. It is critical that the LEO articulate exactly what happened before, during and after the use of deadly force. It is also critical for the LEO to relate any subjective perceptions that may not be available to the investigators. It is critical to interject into the investigation “the facts and circumstances confronting them” mentioned in Graham. The use of force is always a discretionary decision. You must make certain the investigators understand your perceptions as well as the facts.

Second, we have seen many times that the statements of the LEO are questioned and treated as suspect. In the case of Officer Rankin, he relayed the facts of what happened after a fatal OIS. Therefore, the only version of details available about the use of force were those provided by Officer Rankin. The problem in that case, as with so many others, is that the critics chose to disregard his statement as untrue. A grand jury, a civil trial and intense media scrutiny followed and he was cleared. However, there are those who will never believe his statements.

Third, the media, both formal and informal, will judge the use of force. Recently, for the second time in recent memory, a major news entity has admitted falsifying and altering the facts of an incident for the sake of manufacturing a better news story. There is no longer any comfort in believing that the work of reporters will eventually bring out the truth. While this was hopefully an isolated incident, LEOs are on their own to make certain that the investigations done by sworn investigators will gather and accurately document all facts after an OIS.

Put simply, it is important to protect yourself after an OIS. The opportunity to retain and involve counsel is often presented through a narrow window because the effectiveness of the attorney will be limited after some point. I have been involved in many situations representing LEOs where I was limited in the options available and some options were foreclosed completely due to the actions of the LEO before I was involved. In more than one situation, the LEO lost all rights to pursue justice and remedies in the courts. I discussed these situations in a previous post.

Finally, the attorney is able to objectively evaluate the facts of the incident and confirm the appropriateness of your actions. It seems obvious that you will likely believe that every use of deadly force was objectively reasonable because you made the decision. The role of the lawyer is to determine if facts outside your knowledge may create an alternative version of events. For instance, when you focused upon the suspect’s chest after looking at the gun in his hand, do you miss the fact that the suspect dropped the gun after the second of your five shots? Due to auditory exclusion, were you unable to hear the neighbors of a 15-year-old screaming that the gun in his hand was a toy? Due to low light conditions, were you unable to see that the object in the suspect’s hand was a cellphone and not a firearm? While these and other facts may not change the fact that the shooting was justified, an attorney is able to monitor these facts to ensure that your statement of your perceptions are accurate and support your decision to use deadly force.

The presence of an attorney at the scene of an OIS can benefit the LEO in many ways. While some LEOs are concerned about how this will appear to their chain of command, through proper education, this fear should be rendered moot. I know from experience. I have been with many agency heads who have told me I would be among the first people called to the scene if they were involved in an OIS. The lawful application of deadly force is never easy to watch on a video or listen to when the LEO relates what occurred. Remember that the use of deadly force is often subjected to scrutiny by individuals who are untrained and others who are suspicious of every OIS at the outset. An attorney is the only person on the scene of and during the investigation of an OIS who is focused solely on protecting the LEO. You are entitled to counsel. Protect yourself. Stay safe.

Responding To The “Good Shoot”: Do I really need a lawyer?

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