Who Shot First and Who Shot Last: Which one needs a lawyer?

Despite the typical scenario and what we see in the movies, many times the use of deadly force involves more than one LEO. I’ve responded to more than one Officer Involved Shooting (OIS) when several LEOs were in a position to use deadly force. More often than not, LEOs perceive deadly threats the same way and make the decision to use deadly force at the same time. However, that is not always the case.

I represented a LEO several years ago who was one of several LEOs facing a deadly threat. The LEOs, who never trained together and represented several jurisdictions, fired nearly simultaneously. Of course I represented the LEO who demonstrated the best marksmanship-he was the only one who hit the suspect. During the investigation, the question arose as to who shot first, who shot last and why? As is typical, there were LEOs who did not shoot. The criminal investigation necessarily focused on why those LEOs did not fire. This is not uncommon when more than one LEO is on the scene.

First, we must recognize why LEOs on the scene facing a deadly threat would perceive that threat differently. The answer is quite simple. As the United States Supreme Court stated in Graham v. Connor, LEOs must make decisions about the use of force “in circumstances that are tense, uncertain, and rapidly evolving[1].” The perspectives and views of each LEO will logically vary depending upon the distance to the threat, the angle of their view, their position of cover, the lighting, and many other factors. While this is normally not an issue such as with two LEOs observing a traffic violation, the facts surrounding an OIS and the decision to use deadly force are extremely fact specific. A suspect with a weapon in his right hand may represent an immediate perceived deadly threat to a LEO to the right of the suspect and no perceived threat to a LEO to his left who cannot see the weapon. So, it is more likely the norm that LEOs will perceive the threat, and the justification for the use of deadly force, at different times.

Second, even if LEOs see a threat at the same time and simultaneously recognize it as an immediate deadly threat, their reactions will necessarily vary. Reaction to any stimulus varies by many factors including, but not limited to, age, prior experience, training and physical ability. So, it is conceivable that multiple LEOs facing the same threat may fire at different times and some may not fire at all.

Finally, unlike the bad guys in the movies and nearly western, suspects rarely fall over and die after one shot. Many times, the suspect will move toward the LEOs, turn to run, attempt to obtain cover or simply move while still in possession of a weapon. Perpetrators have also been known to continue shooting or attempting to deploy a weapon after being shot. In these instances, LEOs who did not initially perceive a threat may do so after the first shot is fired. This also explains why several LEOs may shoot at different times even though every shot may be a justified use of deadly force.

The important thing to remember after an OIS, especially one involving more than one LEO, is that every shot fired is a use of deadly force. Therefore, the LEOs must be able to articulate why they fired, why they continued firing, and why they stopped shooting. Even though the LEOs may not know which shots hit the suspect, they may be called upon to provide statements during criminal and administrative investigations. Consider that you may not know which LEOs actually shot the suspect for weeks after the incident. I do not recommend that any LEO speak with ANY investigators until they know if the suspect survived the encounter. There is too much emotion involved and as an attorney, there is a difference between an OIS investigation and a homicide investigation.

So, whether you fire the first shot or the last, you must be prepared to articulate your justification. Are convinced yet that you should have a lawyer respond to the scene any time you use deadly force? Stay safe.

[1] Graham v. Connor – 490 U.S. 386, 397 (1989).

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