Police Investigations of the Use of Deadly Force
Police Investigations of the Use of Deadly Force Can Influence Perceptions and Outcomes
By Shannon Bohrer, M.B.A., and Robert Chaney
Basic law enforcement training covers using force, including deadly force, and investigating crimes, even those involving assaults and shootings by police. The relationship between these two events—the use of force and the police investigation of this use of force—can have far-reaching consequences, both good and bad, for the public, the department, and the officers involved.2
The law enforcement profession spends considerable time and resources training officers to use firearms and other weapons and to understand the constitutional standards and agency policies concerning when they can employ such force. Society expects this effort because of the possible consequences of officers not having the skills they need if and when they become involved in a critical incident.
In addition to receiving instruction about the use of force, officers are taught investigative techniques. They must reconstruct the incident, find the facts, and gather evidence to prosecute the offenders. And, historically, they have done this extremely well. But, is the same amount of attention paid to examining the investigative process of the use of deadly force and how this can affect what occurs after such an event? Are there any reasons why the police should approach the investigation of an officer-involved shooting differently? To help answer these questions, the authors present an overview of perceptions about these events and some elements that law enforcement agencies can incorporate into investigations of officer-involved shootings that can help ensure fair and judicious outcomes.
PERCEPTIONS OF DEADLY FORCE
All law enforcement training is based on the two elements of criticality and frequency. Skills that officers need and are required to have to perform their duties fall into both:
1) how often they use them and 2) how crucial it is to have them. Training officers to handle potentially lethal incidents, by nature, is vitally important. Investigating officer-involved shootings constitutes a critical function, but, for most departments, it does not occur that frequently. Only examining training needs from the perspective of preparation for the event does not necessarily take into account what can occur afterward. Just because the officer had the right to shoot and the evidence supports the officer’s actions may not guarantee a positive, or even a neutral, reception from the public.
In addition, who the police shoot seems to mold some perceptions. For example, a bank robber armed with a shotgun presents a different connotation than a 14-year-old thief wielding a knife.3 Sometimes, it is who the police shoot that also can set the tone for the direction of the investigation surrounding the incident.
The Officer’s Perception
|Mr. Bohrer, a retired Maryland State Police sergeant, is the range master for the Maryland Police and Correctional Training Commissions in Sykesville.||Mr. Chaney, a retired homicide detective, currently serves as the deputy director of the Office of Intergovernmental and Public Liaison, U.S. Department of Justice.|
Interviews conducted with officers who have been involved in shootings have revealed that while many were well trained for the event, they often were not prepared for the investigation afterward.4 Some believed that these investigations centered on finding something that officers did wrong so they could be charged with a crime or a violation of departmental policy.5 Others felt that the investigations were for the protection of the agency and not necessarily the officers involved.6
Officers can have broad perceptions that often depend upon their experiences of being involved in a critical incident or knowledge of what has happened to other officers.
A trooper with the Arizona Department of Public Safety commented, “I did not choose to take that man’s life.... He chose to die when he drew a gun on an officer. It was not
my choice; it was his.”7
The Public’s Perception
Perceptions by the public of officer-involved shootings usually are as wide and diverse as the population, often driven by media coverage, and sometimes influenced by a long-standing bias and mistrust of government.8 Documented cases of riots, property damage, and loss of life have occurred in communities where residents have perceived a police shooting as unjustified. Some members of the public seem to automatically assume that the officer did something wrong before any investigation into the incident begins. Conversely, others believe that if the police shot somebody, the individual must not have given the officer any choice.
The Department’s Perception
Departmental perceptions can prove diverse and difficult to express. For example, when interviewed, one chief of police advised that “it is sometimes easier to go through an officer being killed in the line of duty than a questionable police shooting.”9 The chief was referring to the public’s response, including civil unrest, to what was perceived as an unjustified police shooting. At various levels, however, administrators may feel that a full and fair investigation will clear up any negative perceptions by the public. While not all-inclusive, departmental perceptions include many instances when an officer-involved shooting was viewed with clear and objective clarity before, during, and after the investigation.10
ELEMENTS OF THE INVESTIGATION
Few events in law enforcement attract the attention of the media, the political establishment, and the police administration more than an officer-involved shooting. In some instances, such intense interest can affect the investigation. Is this scrutiny related to the incident, the investigation, or both? Does it affect the focus and outcome of the investigation? And, conversely, can the investigative process influence this close observation of the incident?11
With these issues in mind, the authors offer six elements for investigating officer-involved shootings. While they are not meant to be all-inclusive or broad enough to cover every conceivable situation, they can be useful as a guide.
The first element involves investigators who have correct and neutral attitudes. Not all officers are suited to conducting police-shooting investigations. Examining such incidents requires open-minded, experienced investigators who have empathy toward the involved officers and members of the general public. Starting with the right investigators will ensure that the process has a solid foundation.
If possible, at least two primary investigators should oversee the case from the beginning until the end. They should be responsible for such activities as supervising the crime scene investigation, reviewing witness statements and evidence and laboratory reports, and coordinating with the criminal justice system. They should not be heavily involved in the initial routine investigation except for handling the interaction with the involved officers, including taking statements.
The Crime Scene
The second element entails the appropriate response to and protection of the crime scene. Homicide or criminal investigators should protect the site. They need to take their time and broaden the protected area, possibly adding a safety zone beyond the immediate vicinity. They should establish a press area with a public information officer available to respond to media inquiries.
Before inspecting the crime scene, the investigators should videotape it and the surroundings and then periodically videotape the area, along with any crowds and parked vehicles, during the course of the examination. Such information may prove valuable later in locating additional witnesses. They should use up-to-date technology and evidence-gathering methods, calling on experts as needed.
Before releasing the crime scene, the investigators should consult with the criminal justice officials who will be responsible for the case. It can be easier to explain the circumstances of the incident while still in control of the location where it occurred.12
The Involved Officers
Removing the involved officers from the scene as soon as possible and taking them to a secure location away from other witnesses and media personnel constitute the third element. The investigators need to explain to the officers that these actions will help maintain the integrity of the case. They also should invite the officers to stay within a protected area to participate in the follow-up investigation. When possible, they should only take statements from the involved officers once they clearly understand all of the facts and crime scene information. Moreover, in the initial and early stages of the investigation, authorities never should release the names or any personal information of the involved officers.13
Sometimes, it is beneficial for involved officers to revisit the crime scene later to help them recall events. If at all possible, the investigators should accompany them.
It is important to keep the involved officers informed. Someone should contact them on a regular basis. In many agencies, the officers have advocates, including peer support, union representation, and legal aid. Keeping the officers advised may require the investigators to go through the advocate.14
The Civilian Witnesses
The fourth element highlights the importance of investigators gaining the confidence and respect of civilian witnesses. After all, they need their assistance. In most cases, investigators should handle them the same way as involved officers.
Before interviewing the witnesses, investigators should have a full understanding of the crime scene and the facts of the shooting. If any statements conflict with the crime scene examination or information from other people who observed the incident, investigators should have the witnesses view a crime scene videotape or take them back to the site to help them recall events. They may wish to consult with the criminal justice investigating authority beforehand to ensure that the revisit does not invade the privacy or cause harm to the witnesses. And, of course, investigating authorities never should release any information concerning the witnesses.
The Criminal Justice Authorities
The fifth element, the need to have these cases vetted through the criminal justice process as soon as possible, proves critical to the involved officers, their families, and their employing agencies. Sometimes, backlogs may delay report completion but should not hinder clearance procedures.15 Close consultation with the appropriate criminal justice authority may alleviate the need for a completed formal report if a written statement for the proper authority confirms the facts. For example, medical examiners and ballistic experts can provide their findings to investigators with formal reports to follow.
Presentations of the investigation should include all videotapes, photographs, and copies of all statements, investigative reports, and other necessary documents. Throughout the criminal justice proceedings, investigators should update the involved officers and their departments about the progress of the case.
As the final element, the department’s public information officer should contact the media before their representatives approach the agency.16 In the early stages of the investigation, the department should demonstrate that it wants to cooperate with the media. By informing the public through press releases and interviews, the agency shows that it is investigating the incident and that as information can be released, it will be. Departments should remember that the proverbial “no comment” often gives the impression that the police are hiding something.
Without a positive relationship with the media, poor communication between the public and the police can develop, creating a lack of faith in the management and operations of the department and mistrust from all parties. The time to prepare press releases for officer-involved shootings is before one occurs.
In addition, agencies should encourage the media to print and air stories on the responsibilities of officers and the training conducted to enhance their abilities. General information on past shootings, simulator experiences, and the perspective of the reasonable objective officer can help develop a cooperative association.17 Such a collaborative effort between the police and the media is not a magic pill and will not alleviate all of the public misperceptions and problems. However, it may reduce or prevent false perceptions, especially with officer-involved shootings.18
Finally, investigators should review all of the related printed materials and media interviews to identify further witnesses and, if needed, interview them as soon as possible. Sometimes, these individuals may not understand why the police would want to interview them after they have talked to the media, so a diplomatic approach can prove helpful. This highlights the importance of a positive working relationship that often can result in shared information between the media and the police.
Often, it is not a law enforcement shooting that generates negative consequences, but, rather, it is how the involved agency handles the incident that can foster and feed misperceptions. As a Santa Monica, California, police officer pointed out, “No one knows about the hundreds of instances when a police officer decides not to shoot. Perhaps, no one cares. After all, people say we’re trained to handle such things, as if training somehow removes or dilutes our humanity.”19
While the six elements presented in this article may not be all-inclusive, they offer an outline that may reduce the negative events that sometimes occur in these situations. Having the appropriate investigators and a positive working relationship with the media constitute the bookends of an effective process. After all, the right investigators are the foundation for a thorough investigation, and a cooperative connection with the media forms the basis of public understanding. Joining together and sharing information can help both the police and the media deal with officer-involved shootings in a fair and judicious manner.
1 Darrel W. Stephens, foreword to Deadly Force: What We Know, by William A. Geller and Michael S. Scott (Washington, DC: Police Executive Research Forum, 1992).
2 For an overview of legal concerns, see Thomas D. Petrowski, “Use-of-Force Policies and Training: A Reasoned Approach,” FBI Law Enforcement Bulletin, October 2002, 25-32 and Part Two, November 2002, 24-32.
3 Shannon Bohrer, Harry Kern, and Edward Davis, “The Deadly Dilemma: Shoot or Don’t Shoot,” FBI Law Enforcement Bulletin, March 2008, 7-12; Larry
C. Brubaker, “Deadly Force: A 20-Year Study of Fatal Encounters,” FBI Law Enforcement Bulletin, April 2002, 6-13; and George T. Williams, “Reluctance to Use Deadly Force: Causes, Consequences, and Cures,” FBI Law Enforcement Bulletin, October 1999, 1-5.
4 Anthony J. Pinizzotto, Edward F. Davis, and Charles E. Miller III, U.S. Department of Justice, Federal Bureau of Investigation, In the Line of Fire: Violence Against Law Enforcement (Washington, DC, 1997); and Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers (Washington, DC, 2006).
5 Interviews with students attending the Management Issues: Law Enforcement’s Use of Deadly Force course taught at the FBI’s National Academy from 1995 through 1999. The FBI hosts four 10-week National Academy sessions each year during which law enforcement executives from around the world come together to attend classes in various criminal justice subjects.
6 Feedback from students attending the Instructor Training Liability Issues course taught at the Firearms Instructor Schools, Sykesville, Maryland, from 2001 through 2009.
7 American Association of State Troopers, AAST Trooper Connection, September 2008.
8 U.S. Department of Justice, Community Relations Service, Police Use of Excessive Force: A Conciliation Handbook for the Police and the Community (Washington, DC, June 1999). This publication provides options for addressing controversy surrounding the use of excessive or deadly force and offers guidelines for resolving community disputes. Readers can access http://www.justice.gov/archive/crs/pubs/pdexcess.pdf for the June 2002 updated version.
9 In 1993, Edward F. Davis was an instructor in the FBI Academy’s Behavioral Science Unit when he interviewed the chief about police and the use of force. The chief’s comment could be misconstrued because it was part of a larger dialogue about police use of force and community relations, although it demonstrates perceived and sometimes real concerns. Specifically, the chief was referring to the fact that the department seemed to pull together when an officer is killed and the opposite often occurs when the shooting is questioned in the media.
10 Because of Robert Chaney’s (one of this article’s authors) extensive experience in investigating police shootings while serving with the Washington, D.C., Metropolitan Police Department and then reviewing such incidents for final disposition when later employed by the U.S. Attorney’s Office for the District of Columbia, he understands the value of the process and how this can affect public perceptions and investigative outcomes.
11 William A. Geller and Michael S. Scott, Deadly Force: What We Know (Washington, DC: Police Executive Research Forum, 1992).
12 Robert Chaney’s (one of this article’s authors) experience includes a close working relationship with the criminal justice authority (in his case, the criminal justice authority was the U.S. Attorney’s Office). The close working relationship can be critical with shootings that have the potential for negative publicity.
13 U.S. Department of Justice, Community Relations Service, Police Use of Excessive Force: A Conciliation Handbook for the Police and the Community.
14 Laurence Miller, “Officer-Involved Shooting: Reaction Patterns, Response Protocols, and Psychological Intervention Strategies,” International Journal of Emergency Mental Health 8, no. 4 (2006): 239-254.
15 Henry Pierson Curtis, “Deadly Force Investigations Can Take Years in Some Florida Counties,” Orlando Sentinel, November 11, 2007; Todd Coleman, “Documenting the Use of Force,” FBI Law Enforcement Bulletin, November 2007, 18-23; and Geller and Scott.
16 For additional information, see Brian Parsi Boetig and Penny A. Parrish, “Proactive Media Relations: The Visual Library Initiative,” FBI Law Enforcement Bulletin, November 2008, 7-9; James D. Sewell, “Working with the Media in Times of Crisis: Key Principles for Law Enforcement,” FBI Law Enforcement Bulletin, March 2007, 1-6; and Dennis Staszak, “Media Trends and the Public Information Officer,” FBI Law Enforcement Bulletin, March 2001, 10-13.
17 Brook A. Masters, “Under the Gun: I Died, I Killed, and I Saw the Nature of Deadly Force,” Washington Post, February 13, 2000.
18 Anthony J. Pinizzotto, Edward Davis, Shannon Bohrer, and Robert Chaney, “Law Enforcement Perspective on the Use of Force: Hands-On, Experiential Training for Prosecuting Attorneys,” FBI Law Enforcement Bulletin, April 2009, 16-21.
19 Geller and Scott, 1.