Force Science News #256:
More tips from the trenches on how to help your lawyer win for you
Locations, dates and curriculum information for upcoming Force Science Certification Courses can be found at www.forcescience.org or you can click here to download a printer-friendly version. You can also e-mail firstname.lastname@example.org for information.
More tips from the trenches on how to help your lawyer win for you
In Force Science News #252 (3/26/14) we offered six tips from police attorney and Force Science graduate Heather White on how officers can help the lawyers defending them win in court in use-of-force litigation.
We asked our readers for additional suggestions--and we got 'em.
Here's a representative sampling of the voices of experience we heard from. In some cases, their emails have been edited for brevity and clarity and to avoid duplication.
Beware sharing details with concerned inquirers
Heather White's suggestions were spot on, and as a former police officer whose law practice is 90% devoted to representing officers in OIS investigations and subsequent civil rights lawsuits, I have a few more:
1. When an attorney tells an officer immediately after a shooting not to discuss the details of it, don't do it. Your phone will be blown up by other officers calling to check on you and ask what happened, but you and you alone have to have the discipline to not discuss the details, thereby making yet another potential witness who may or may not recall what you said accurately a year later. As we all know, because of the perceptual distortions that can occur in a critical incident, immediately afterward is not a good time for an officer to be answering questions.
2. Even though I am representing the shooter, I don't need to discuss details of the shooting with the involved officer either. My response at the scene, ER, or PD is to make sure the officer is being treated as he should be and is not subjected to any questioning. I need to answer the officer's questions about the process he or she is about to go through, be sure the officer gets a replacement gun that works, and has his photo taken to ensure that any injuries, including any damage to uniform or equipment (no matter how minor), are documented. I do not discuss details of the shooting until the officer has at least two sleep cycles under his belt.
3. Do not post anything on social media that has anything to do with your job, and especially your shooting. Checking there is the first thing the media, the public, and plaintiff's lawyers do when your name is released to the press as the shooter. If you have posted any off-color humor, you will see a copy of it at your deposition in your civil rights lawsuit.
4. When you or investigators nail down a witness, visually record the interview. I recently had a case where family members of the deceased who witnessed the shooting filled out statements that closely reflected the officer's account. Later, after a civil rights lawsuit was filed, it became necessary for them to create a factual dispute to overcome summary judgment. They all testified under oath that they had simply written down in their witness statements what an officer had instructed to write. This prevented the officer from winning summary judgment.
Atty. Scott Wood
Certified Force Science Analyst
Wood, Puhl & Wood, PLLC.
Time is of the essence
It's extremely valuable to go over with your attorney the actual time frame an event or shooting decision occurred in. When reading a lengthy report or hearing lengthy testimony, an event can seem like it took minutes or an eternity, when in fact it took just seconds or split seconds.
You need to put time in perspective for the jury. If there is no video or audio to do this, a copy of the radio traffic will often give valuable time references. The plaintiff's attorney will often try to convince the jury of an officer's premeditation or 'evil' intent, which requires time and forethought. But pointing out to the jury that the entire UOF took place in seconds and that there was only enough time for the officer to react to the suspect's actions can paint an entirely different picture.
Capt. John Miller
Ventura County (CA) SO
Reports, records, and reviews
Some additional thoughts from 20 years' experience:
1. Report writing is not the most glamorous part of the job but it's the most important when you're looking at litigation three to five years after the incident occurred. Specific details of the suspect's demeanor, language, behavior, and assaultive conduct should be spelled out in as much detail as possible. Document names, addresses, and cell phone numbers of witnesses. Witnesses may move but rarely do people change their cell phone numbers.
2. Get copies of medical records from the hospital ER. I can't tell you how many times I have read hospital ER reports where the health care staff documented exact statements from the suspect or better yet, combative behavior of the suspect in the ER. This should include copies of any security reports made by security officers who were required to respond to the ER.
3. It's helpful to have your DT instructors review all use-of-force reports. They are in the best position to support the officer's actions since they most likely taught the officer, and if there's a problem with the officer's UOF, they can incorporate needed changes to their lesson plans and in-service programs to prevent "unofficial customs" from becoming department practices.
Chief Michael Whalen
South Dennis, MA
Take personal control of your training records
Officers need to take personal charge of documenting their training and instruction and maintain copies of those records apart from their department or state POST. By maintaining your own records, you'll have as complete a training history as possible, and it's easier to review those records when you need to make copies, apply for promotions and advanced certifications, or apply for positions at other agencies. In a use of force case, those records may be more complete than what comes from POST or your own agency.
Also keep copies of all training requests. If you know you need training in a specific area and you cannot get it through your agency, then consider taking leave and paying for the training out of pocket. It's a pain, but your life and your long term financial wellbeing may depend on it.
Matt Bloodgood, Training Coordinator
Certified Force Science Analyst
Idaho POST Region IV
"Amazing how a walk-through will jog your memory"
I've been involved in four on-duty OIS incidents as the primary shooter and seven as a non-shooter in my 31 years.
I highly recommend doing a walk-through at the scene with your attorney(s) and with someone to video it. It is amazing how much it will jog your memory. Often something that was missed by the OIS investigation team will pop up. Taping helps document sudden memory flashes.
Also re-canvass the scene for witnesses who might have been missed, as well as those who were there at the time. Those watching the walk through may recall something vital that helps.
Det. I Wayne Caffey
6 more considerations in building your defense
As a former police officer and a lawyer who has defended multitudes of officers over the past 14 years, I would add these tips:
1. Humanizing yourself to the jury extends beyond showing emotion. Too often I see officers who communicate in the staccato style that they use in writing reports; i.e., "Suspect 1 approached officer 2, verbalizing a threat...." Real people do not talk like that and do not understand that jargon. Losing the Dragnet-speak goes a long way toward making your testimony believable and relatable. You need to describe the incident like you would if you were talking to your grandmother.
2. Accurate reporting and documenting is critical to the defense of a case. I defended officers in a high-profile incident that, unbeknown to the officers, was recorded on at least two video cameras. Their report was written some time after the incident and, while truthful, was grammatically and chronologically deficient. This created a maelstrom in the media when the video was compared to the report; the sequencing was off and it gave the impression of fabrication. Write your reports from good notes taken contemporaneously to the event. Be descriptive and put in details that are specific and unique to the incident.
If you have time, look around and see if there are video cameras that may have captured the incident. Try to get a copy of all of the cameras in that area for all of the time that you possibly can. Pre-incident recordings can help corroborate your testimony and make it more believable to a judge and jury.
3. Any time an LEO is doing anything, the general public is hoping they are going to have the next YouTube sensation and whip out their cell phones to record your actions. Making sarcastic or flippant remarks will cause problems in the future for your defense team. Always confine your comments to professional and necessary ones. Do not get baited into a verbal interaction that will make you look like a bully or worse.
4. This issue does not end with the actual incident either. Remember that your actions, demeanor, and behavior are being scrutinized by everyone involved in the case. Do you look sloppy or disheveled at motions hearings or the trial? Are you joking and telling war stories during breaks in the trial or at lunch where you might be overheard? If so, you're probably going to give a negative impression.
5. Be up front with your defense counsel about what happened, what you saw, what you thought, how you felt, and what you did in response to the situation presented to you. Law enforcement is not a cookie-cutter, one-size-fits-all career. There are millions of variables that you as an LEO perceive, evaluate, and react to in any given situation. Your defense lawyer likely does not understand that to the degree that you do.
You need to put thought into what all of the minute details were that you observed and reacted to. You need to explain this to the lawyer representing you since he or she most likely does not have a clear grasp on the mercurial nature of law enforcement decisions, especially in use-of-force situations. Explain how your experience and training helped you to evaluate and react to the situation you were placed in.
6. Documenting witnesses is absolutely critical. I defended a shooting case where the suspect sustained a gunshot to his back. There supposedly were no witnesses at the scene to corroborate or refute the description of the incident by the officer, but when a suit was filed, the suspect had found a number of witnesses to say the officer shot the suspect from a distance as he was fleeing. Get a list of the people who were around the area so that "new" witnesses who appear later can be cross-checked against the list.
Atty. Matthew Rosbrugh
MBR Law, LLC
Be ready to teach some law to lawyers
Most officers believe attorneys and judges are well educated on use-of-force law and concepts. However, in a case I testified in, neither the DA nor the judge were familiar with Graham v. Conner.
Don't assume that lawyers and judges have more knowledge about use of force than you do. Be prepared to educate your attorney on what you have learned during training on use-of-force law and how that knowledge applies in your circumstance.
Cmdr. Steve Hansen
Kern County (CA) SO
Nail witnesses who "didn't see anything"
Even if a witness says, "I didn't see or hear anything," get it over their signature or on tape. If they later change their story due to pressure from the suspect's attorney, personal prejudice against law enforcement, or hope of a big settlement, you can shoot down their story with their own words.
Sgt. Loren Corner, (Ret.)
Lane County (OR) SO
"Get another attorney"
Before becoming involved in an OIS, ask what qualifications your attorney has for dealing with OIS cases. If he got the job because he is someone's brother-in-law (or similar reason) get another attorney.
If you're involved in an OIS, call your attorney ASAP. If he/she will not come to the scene, get another attorney.
If he/she thinks a walk-through at the scene, preferably under similar lighting conditions, is not important, get another attorney.
Simply put, make sure the attorney you are betting your life on is really good.
Jerry Staton, Training Dir.
Certified Litigation Specialist
Affordable Realistic Tactical Training
Del Valle, TX
Get prepared, not hammered
As a semi-retired 52-year veteran of law enforcement with 26 years as a chief, I have functioned for many years as a police practices expert. It has become crystal clear to me that police officers and their departments very often do a terrible job making sure their officers receive adequate training, and do a terrible job tracking the training they do receive so information concerning dates, types of training, the number of hours spent in each training endeavor, and a summary of each training scenario is readily available.
Why is it that officers are not getting annual refresher training in the areas of arrest control tactics, officer survival/stress inoculation, emergency driving, laws of arrest, search and seizure, criminal and civil law updates, dealing with mentally ill and physically challenged citizens, agitated chaotic events and in-custody deaths, and other areas where we constantly encounter the problem of perishable skills?
These are the areas where police chiefs, sheriffs, and our officers are getting hammered civilly, and while some departments do a good job in providing training that is adequate, and chronicle those training sessions, many do not.
Quit whining about not having sufficient resources to train. Whining won't cut it when you end up in court on an excessive force, false arrest, or other beef. Don't get hammered. Get prepared!
Chief Dan Montgomery, (Ret.)
Certified Force Science Analyst
Professional Police & Public Safety Consulting, LLC
© 2017 Force Science Institute Ltd.