“Government is not reason; it is not eloquent; it is force.”  George Washington.

Violence is an inherent part of your job.  When you step in front of any person on the street, you carry the full authority of the government behind you.  When you lawfully tell someone to do or not do something against their will, it is a command in the name of the People who employ you.  That person is required to reasonably comply.  If you respond with objectively reasonable force based on everything you know at that moment about the suspect, the circumstances, and the suspect’s threatening behavior or attempt to flee, statistically, it is overwhelmingly likely that your quantum of force (the type, duration, and the likelihood of the injury of that force), will be reasonable and ultimately justified under the law.  This includes shooting an imminent threat who dies or is injured as a result, even when it is later discovered that he was actually unarmed and you were mistaken about his actual threat.  Absent intentional misconduct, the shooting of a suspect is almost always ruled to be criminally justified.

Although rarely it is not justified.  And therein, as the Bard says, lies the rub.

A justifiable shooting…and then the problems begin…

When can this go awry?  Police labor attorneys often advise officers, especially those involved in shootings, to refuse to give statements to criminal investigators.  Unfortunately more officers are beginning to abide by this counsel.  We’re seeing cases where an officer’s administratively coerced statement (per Garrity) is also being withheld from prosecutors rather than reviewed and later turned over to the DA.  In fact, based on their labor attorneys’ direction, some officers are now refusing to provide public safety information to the first arriving supervisor without demanding they be compelled under Garrity to provide the statement or that they wait until legal representation is present on-scene.

When asked why they are counseling their police clients not to speak to first arriving supervisor or later to investigators, their attorneys often state something to the effect of, “Nothing bad can come from not talking to the police (or D.A.).”  This is good advice if you were acting criminally.  But you weren’t.  You’re a cop.  It is vital to examine the wisdom of this logic coming from a criminal defense attorney who normally represents people who are criminals and have been arrested for their criminal acts, but is now advising a police officer.

Cop or a Crook? Different Strategies

If you protected yourself (or another person) by reasonably responding to your reasonable perception of imminent deadly threat, you are the victim of an attempted murder.  The law provides for the justifiable homicide or the justified shooting to defend against an imminent threat to safety by a suspect.  The law permits you to make a reasonable mistake of fact, and it permits you to reasonably fire more rounds than were actually needed based on your perception of need and human factors limitations.

Immediately following a shooting, it would be legal suicide for a murder suspect to speak freely to the police.  However, you are a cop, and you have vital public safety information regarding the crime scene(s), outstanding suspects, direction of shots, and the identification of evidence and witnesses.  This time-sensitive critical albeit limited information not only serves the public, but it serves you as well.  The crime scene will be protected, evidence preserved and collected, and witness statements recorded.  Additionally, other officers and the public will be protected by providing outstanding suspect descriptions and direction and mode of travel.  All of this will help to prove your version of this shooting, and direct the investigation toward the truth of the facts (which is good for you).

What possible good can come from a good guy not providing public safety information and some type of statement to investigators, either an interview, or, minimally, their coerced administrative statement, later to the prosecutor?  In some cases, not providing it leads directly to the officer being prosecuted for what was an ultimately justifiable shooting but is now left to a criminal jury.

Put yourself into the District Attorney’s shoes:

• There’s a police bullet(s) inside a dead guy and no explanation from the involved-officer about how it got there—and more importantly, why the officer put the bullet(s) into the dead guy.
• There is a witness, often a friend or family member of the deceased, who claims the officer brutalized the decedent in some manner before callously and intentionally shooting him to death.

Since the evaluation of force is always from the officer’s perspective, absent that officer’s reasonable perception of the situation and the facts known to him at the time, as the District Attorney, you would have no choice other than to criminally file on the involved-officer.  At the very least, the shooting may not be determined criminally justified, and may remain open indefinitely, hanging over the officer’s head for years.

What benefit comes from explaining your understanding of the events, whether through submitting to a criminal interview or, at least, providing your administratively coerced interview to the D.A.?  Thoroughly articulating your perceptions and state of mind helps the D.A. arrive at the legal conclusion that your perception of imminent threat was reasonable and that any reasonable officer would have responded in the same manner.  While it is always a good rule-of-thumb to invoke whenever Mirandized, there is generally no good reason not to comply with a Garrity compelled order to provide a statement that will be eventually provided to investigators.

Bottom Line

Most union attorneys are expert with labor contracts and employment law.  Depend upon their advice in these matters is what you pay them for.  They may also have some criminal defense experience or, at least, were taught about criminal defense in law school.  But most are not well-versed in police post-force event needs.  And criminal attorneys?  Applying criminal defense logic to a reasonable police force response is improper and fundamentally inappropriate.  The involved-officer is the victim of a violent crime who responded with lawful and objectively reasonable force.  The officer is not the perpetrator and a crook’s defense strategy is incongruous with the officer’s role in the event.

The reasonableness of a police force response is judged from the perspective of the involved officer(s).  Following a criminal attorney’s advice to “take the Fifth” doesn’t serve your needs as an officer who was a victim of a violent crime.  Giving a limited public safety statement protects not only other officers and the public, it also begins the process of protecting yourself by pointing the investigation to the facts and evidence of the case.  If Mirandized in any situation, the smart money says to invoke your right to remain silent.  That said, there is absolutely no reason not to comply and to later provide a Garrity-compelled administrative statement.  When interviewed, provide your own audio-recorder to have a record of your testimony.  You and your attorney can review it and then formally release it to the D.A., allowing the criminal investigation to resolve.

You’re a cop, not a crook.  You acted reasonably, and, even if it is later determined that you made an honest mistake, the outcome is almost universally positive.  It’s probably a good idea not to follow the lawyer’s advice meant for the guilty.  Tell your story when the timing is appropriate, explain fully why you believed your or someone’s safety was in jeopardy by the guy you shot, tell the truth as you remember it, and the let DA will do his or her job.