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Putting 2018 in the rearview mirror

Posted by Daniel Herbert Civil Rights Defense/Police Misconduct

Law enforcement officers involved in a deadly force situation cannot afford to presume that their department supervisors will protect their interests in the aftermath of a shooting. Those days are gone. I was involved in a shooting in 1996. After the shooting, our tact lieutenant and district commander were called at home and immediately responded to the scene. A pair of dicks who primarily focused on police shooting cases arrived within minutes. The street deputy was a former homicide detective and extremely knowledgeable about the law governing use of deadly force. Even though my partner and I both came from police families, we were surprised at the level of support provided to us. It was a good shooting and justification was crystal clear; however, the process was made very smooth as a result of the experience and skill of the various supervisors.

Today there are still many excellent supervisors; however, the shooting officer must do everything within his or her abilities to protect themselves. Attorney Scott Wood who represents law enforcement in Ohio recently provided some advice for officers who use deadly force. To begin, all officers must have a good understanding of state and federal law concerning deadly force. Moreover, officers should remember their use of force training and be able to justify their legal presence at the time of the incident and explain your legal foundation for using deadly force. Officers should avoid giving an immediate statement and must discipline themselves from giving “unofficial” comments. Anyone you talk with about a shooting that does not have a legal privilege of confidentiality can be subpoenaed to testify at a subsequent legal proceeding. In the current setting, each and every deadly force encounter will be reviewed for possible criminal charges against the shooting officer. Being subject to your department’s rules and regulations does not deprive you of your constitutional rights.

Prior to giving a formal statement, make sure that you have noted and can articulate the totality of circumstances that led to the decision to use deadly force. This is made difficult due to the physiological changes to your body resulting from the traumatic experience; however, it is important to list everything from memory even if additional circumstances are recalled at a later time. Finally, always be truthful and try not to fill in memory gaps with what you believe “must have happened.” Even being discredited on a minor point may be enough for a trier of fact to conclude that you lack credibility.

We can’t control what other people think about our split second decision but nobody can prevent you from taking all steps necessary to prepare and protect yourself in the aftermath of the use of deadly force.

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