Police Shootings: A Primer for the Lead Detective (Part 1)

by Sgt. Tony Monheim, Miami-Dade Police Department (Ret.)

 

 

Recent police-related deaths have placed unprecedented negative attention on law enforcement agencies throughout the United States. Enormous (and mostly unwarranted) criticism has been leveled at the police by traditional news media, while vile, anti-police rhetoric floods social media.  It is therefore imperative that detectives assigned to probe any incident where a death has resulted from police actions be aware of the basic investigative tenets associated with these types of cases.

 

There is arguably no single event that can traumatize a police agency more than a police officer-involved shooting (OIS) incident or in-custody death. The criticism and scrutiny generated by the media can be intense.  Reputations can be sullied and tarnished. Enormous amounts of public pressure can be exerted by community activists and agitators.  Civil judgments resulting from such cases can debilitate a police organization for years.  The monies expended to settle litigation can have an adverse effect on employee morale and hamper the agency’s effectiveness through the erosion of public support.  Funds that had been previously earmarked for employee salary increases or the purchase of much needed equipment are now no longer available, which understandably causes grumbling within the ranks.  The fact that many of these lawsuits are frivolous, unwarranted, and motivated solely by money is also exasperating. 

 

 

The Unavoidable

 

Police agencies may be divided into two broad categories: those that have had an officer-involved shooting and those that are going to have an officer-involved shooting.  Like death and taxes, such an eventuality is inevitable.   Sadly, there is no accurate indicator to help predict who will be stricken next.  Large and small departments are equally vulnerable.  Geographic location does not insure protection, nor does a rural or suburban environment.  Officers assigned to high crime areas are statistically more likely to participate in a shooting incident; however, this is not a steadfast predictor either.  The somber truth is that any police officer, agent, trooper, or deputy in any department is vulnerable.  A rural sheriff’s office, a large metropolitan police department, a state highway patrol, a Federal enforcement agency, or a small village with a single constable--- should all prepare in earnest for this inexorable contingency.

 

Police officer-involved shootings are vastly different from any other type of case. The stakes for the shooting officer and the department are so high that it is crucial that the investigation be conducted in a well-prescribed, professional manner. 

 

Whenever a law enforcement officer critically injures or takes the life of a citizen, during the performance of his/her duties, the public is entitled to a fair and impartial inquiry. The results of that inquiry must be presented to a legally-established body (i.e., a grand jury, prosecutor, judge, or inquest panel), which will ultimately determine if the deadly force used was, in fact, justified.  All of this places an enormous burden on the shoulders of the lead investigator.

 

The lead investigator becomes the unbiased collector of the facts. It is his or her duty to uncover the absolute truth no matter where it leads or how disturbing the revelations may be. As John Adams so famously pointed out, “Facts are stubborn things…and whatever our wishes, our inclinations, or the dictums of our passions, they cannot alter the state of the facts and the evidence.”

 

Each of the courtrooms in the Miami-Dade County courthouse are adorned with the message, “We Who Labor Here Seek Only Truth.”  This is the crux of what all officer-involved shooting investigations should strive to achieve---unconditional, unmitigated accuracy.

 

 

Statistics in Context

 

According to the Department of Justice, somewhere around 450 to 500 persons are shot and killed consistently each year by law enforcement officers.  At first blush, these figures may seem high, but when one considers that approximately 14 million arrests are made throughout the country annually, these deaths represent an exceedingly small portion of criminal contacts.  When all other citizen contacts, that do not result in arrest, are also factored in (nearly 30 million), the final death count seems downright miniscule in proportion to overall activity.

 

Less than 1/10 of one per-cent of all citizen contacts with a law enforcement officer results in shots being fatally fired. The probabilities are so low in fact that the average cop in this country would statistically have to be on the job over 450 years before being embroiled in a fatal shooting.   Why then do these actions invoke such rabid interest by both the public and the media? 

 

The answer (though complex) may be rooted in fear. Society intrinsically realizes that an attack upon a law enforcement officer that requires the use of lethal force is the ultimate breakdown of social order.  Their “head in the sand” existence has been threatened, and it frightens them.  They want to know the details.  How could this happen? Was it really necessary for the officer to kill this person?  Why didn’t the officer just run away?

 

 

The Truth

 

As an investigator assigned to a police shooting, it can indeed be disturbing and disheartening that in some cases there will be improper or even illegal actions taken by shooting and witness officers.  Regrettably, the detective chosen as the lead in an OIS must be wary of any type of cover-up initiated by the participants.  This may be as innocuous as hedging the facts slightly or as deliberate as planting a throw-down weapon at the crime scene.  Make no mistake about it, these unpleasant scenarios do, in fact, exist. But they are extremely rare.

 

The reality is that in an overwhelming number of police shootings, the shooting officer has acted heroically, courageously and correctly, amid incredibly stressful conditions.  Don’t confuse an officer-involved shooting with a routine criminal investigation.  It is not.  Shooting officers have not committed a crime. They have done exactly what society and their departments have asked them to do and have trained them to do. The investigation should never berate or embitter the officer but instead help him/her become a stronger person and a better cop. At the end of the process, they must not feel betrayed or have the perception that they have been “thrown under the bus” by their agency.

 

The shooting officers have become reluctant protagonists in a drama of which they want no part. They did their duty bravely and effectively.  They should be treated by you with great admiration and respect. They are the quiet heroes among us who do exactly what is expected of them amid exceedingly trying circumstances.  We as OIS investigators, above all others, should recognize and appreciate the complexities of modern day police work.

 

 

The Lead Investigator

 

Who should conduct the investigation?  This is a fundamental question that must be answered conclusively and well in advance of any shots being fired. Several factors could affect this decision.

 

First and foremost, it must be understood that there are two divergent and distinct investigations that will be separately undertaken:  (1) the criminal and (2) the internal, sometimes referred to as the “administrative.”

 

Make no mistake about it.  Both of these investigations are defensive in nature. That is, both are conducted with the best interest of the police department (and the shooting officer) in mind.  The truth of what occurred is of paramount importance, of course; however, the lead investigator must act as a devil’s advocate, so to speak, and insure that his/her agency is not caught in a compromising or embarrassing situation. 

 

This is not to imply that the lead investigator (or any investigator) should enter into any form of cover-up in order to protect the officer or the department ---far from it.  It is the lead investigators duty to disclose everything, to answer all of the pertinent questions, even the ugly, embarrassing, or detrimental ones.  The lead detective must be willing to be a messenger of both good and bad news.  Nothing should be sugar-coated.  The bosses need to be told all the facts of the case, “warts and all.”  If the shooting officer acted inappropriately, or worse, illegally, your command staff needs to be informed immediately, so they can prepare for the inevitable onslaught of criticism.

 

The investigation of an officer-involved shooting is anything but ordinary.  They are, in all probability, the most challenging and difficult types of cases any investigator will ever encounter.  For this reason, only seasoned, experienced, highly-qualified individuals should be considered for the position of lead investigator.  Many agencies make the mistake of treating an OIS incident “just like any other case.”  They decidedly are not. 

 

For many large agencies, the decision regarding who will be assigned the OIS criminal investigation is quite simple.  The experienced homicide detective who is adept at handling intricate and highly controversial death cases is the logical choice.  Also, because death is very often the unavoidable outcome of a police shooting, the homicide detective already possesses the requisite skills and knowledge necessary to confront such a demanding inquiry. 

 

 

Departmental Size

 

Some smaller departments, however, may be forced to allow an outside agency to assume the task. While it is true that this will mean less autonomy and a lack of control over the investigation, it will also guarantee impartiality. It becomes a double-edged sword.  The public and the media will welcome this independent approach, but the affected department tends to abdicate its authority and influence over the eventual outcome of the case. 

 

It is not only smaller departments that view this as a favorable option.  The Orlando and Miami, Florida, Police Departments, for example, have chosen to grant the Florida Department of Law Enforcement (FDLE) dominion over their police shooting and in-custody death cases. The Texas Rangers perform this function for many relatively large police departments in the state of Texas. This is a nationwide trend that is spreading to both large and small agencies. Public scrutiny of these investigations has become so intense that many administrators have opted for transparency by relinquishing control.  In some jurisdictions, investigators from the prosecutor’s office (States Attorney, District Attorney, and Attorney General) provide the service.  In others, the county Sheriff’s Office is authorized to conduct the probe.

 

 

The Homicide Connection

 

No matter which entity is eventually chosen to complete the review, every effort should be made to insure that the lead investigator assigned to the case has adequate experience in the investigation of death, homicide and suicide.  The reasons for this are many and palpable.  The esoteric terminology associated with death cases, from both a legal and forensic perspective, can be perplexing.  In addition, a prior harmonious association with the medical examiner’s office (coroner’s office) and the prosecutor’s office is essential. These relationships normally take years to cultivate and are vital to an OIS investigation if a death has occurred.

 

The most compelling reason, though, for the infusion of this homicide expertise is that many other types of deaths tend to accompany a police shooting incident.  Very often, a subject who shoots a police officer will take his own life.  Any allegations that the subject did not commit suicide, but was killed by fellow officers angry over the death or injury of their comrade, must be evaluated quickly and expertly; then (if the accusations are untrue), they must be soundly refuted. Only an investigator who is well versed in the analysis and reconstruction of suicides, should make any attempt to interpret the crime scene or render an opinion. Novice mistakes made in this area can be devastating for everyone.

 

 

Caveats

 

The assignment as a police shooting investigator carries with it a duty to remain vigilant. Police shootings can be sporadic and infrequent.  As the lead, you must not become complacent or indifferent. The lives, livelihoods, careers, reputations, and continued freedoms of your fellow officers depend upon your commitment to justice and the truth.  Their families are counting on you. Society is counting on you to be fair and objective. The law enforcement community relies upon your good judgment and diligence.  If you, as the lead investigator, are lackadaisical in your work, brother and sister officers can be unjustly sent to prison. Likewise, a scandal that disgraces your agency may erupt due to your ineptitude or lack of foresight. It is vitally important that you stay current on the laws and any new research that will impact your approach to each new case. 

 

Never take it for granted that justice will always prevail.  It is naïve to assume that political influence will not be exerted upon the investigation or that the desires of powerful special interest groups will not supplant the truth.  As the lead investigator, reticence on your part can aid and abet these abuses.  Take a vocal stand.  Do not allow fellow officers to be thrown under the bus in the name of expediency or be made sacrificial lambs “for the good of the community.”  Always do what you know to be right, not what you think will ingratiate yourself to the political power structure. 

 

 

Being a Devil’s Advocate

 

Anticipation of what pitfalls may lay ahead is the key to the successful conclusion of any police shooting investigation.  The term “Monday morning quarterback” is admittedly overused, but it does perfectly describe the second guessing that invariably follows an officer-involved shooting (or in-custody death) incident. Knowologists (those who claim to be authorities on everything) and self-described experts, in the media and in the community at large, will attack the actions of the shooting officer from every angle. They will question whether the shooting was justified, whether it was necessary, whether the officer had other options, or whether the officer acted reasonably. All of this analysis and criticism will be leveled by those who have never heard shots fired in anger, nor have ever been confronted with a true life and death situation. 

 

The naïveté of the public (and politicians) is constantly on display. The lead investigator must acknowledge this ignorance by the general public and prepare for it.  He must anticipate all the ridiculous, inane questions that will undoubtedly be asked by the media, a grand jury panel, an inquest judge, a prosecutor, or even his own command staff.

 

Even though some of these questions and remarks may seem patently absurd to an experienced law enforcement officer, they should not be cavalierly dismissed.  Granted, a suitable response may be, “That’s a stupid question.” But the urge to reject such comments as ludicrous must be avoided.  It cannot be overstated that the investigation is just far too important to alienate anyone, especially a grand juror or reporter, by responding with any type of flippant reply. 

 

Know too, that the media, community activists, and community agitators will relentlessly demonize your investigation and even personally attack you.  They will accuse you of being complicit with the shooting officers in forging a cover-up.  They will allege incompetence.  They will criticize the investigation from every angle and claim that crucial evidence has been hidden. They will say that the crime scene has been altered; that witnesses have been coached or manipulated.

 

It is also axiomatic that the investigation will eventually result in some form of criminal or civil litigation.  Unctuous attorneys will then pompously call the investigation shoddy and deficient. They will endlessly impugn the truthfulness of all concerned.

 

This can all be very disheartening.  But you must persevere.  You should never be affected by these negatives but instead remain comforted by the knowledge that your investigation will be guided by honesty, integrity and principle.  Admittedly, an officer-involved shooting case can be a difficult and demanding undertaking. If conducted ethically and passionately, though, it can be both personally and professionally rewarding.