What to do when YOU are the suspect!
by William Hill, Attorney at Law, Greensboro Police Association

I. Introduction

You have been involved in a shooting or other action in which a suspect dies or suffer serious physical injury. You will be the subject of intense investigation and media scrutiny. Even if you acted with complete legal justification, you may be subject to criticism in the press and from outside observers. You must steps to protect yourself, your family and your career.

This will be the first article on the investigative process surrounding an officer involved shooting. Although the comments herein may also apply to excessive force investigations, chases or in-custody deaths, for convenience I will just use the term, officer involved shootings. In this article, I will discuss my thoughts on the process. I relate my opinions based upon my experience in law enforcement and representation of law enforcement officers in dozens of these situations in the last seven years. In this first article, I will provide an overview of the critical initial steps that you should take from common questions I hear and mistakes I see in every case. I will also briefly discuss the types of investigation that will be conducted as well as your rights and obligations in each.

II. I just did my job! What do I have to worry about?

You will be the subject of a criminal investigation as well as an internal one. You will be a suspect in a crime and may be charged with a criminal offense like anyone else. You also have the same rights in the criminal investigation as anyone else, including the right to counsel, if you desire. I personally know of two cases in which a North Carolina law enforcement officer was charged criminally following an officer involved shooting. Both resulted in jury trials in which the officer was ultimately acquitted but both had to stand trial. One case was a close call, but in the other, statements made the night of the shooting by the officer had much to do with his prosecution.

III. I just have to talk!

You are trained to justify your actions and articulate the basis for your conduct. You will WANT TO TALK TO EVERYBODY after the incident. You will be scared, and loaded with adrenaline. Please fight the urge to babble. Many officers experience tunnel vision following the incident and your memory may not be clear. Also you may not have all the facts. You think that you know what you did and why but could have a vague recall of all the events leading up to the incident. You may very well be in shock and have difficulty explaining anything. Remember that statements get distorted over time. If you decide to give a statement, make it formal and do it once.

IV. Don’t I have to tell my supervisor?

Your supervisor will want to know what happened. For the purposes of a criminal investigation, you do not have to tell your supervisor anything. The same principles apply here as discussed below relating to statements made to investigators, but you are probably not going to be able to think fast enough to inquire whether he or she is asking for the purposes of a criminal or administrative investigation. If your supervisor orders you to respond, then it is administrative. If he or she just asks without ordering you to answer, it gets a little less clear, particularly at the scene. Arguably, because it is your supervisor, you are compelled to answer so the statement could not be used against you in a criminal investigation. However, unless you initially refuse to answer and are subsequently ordered to answer, the statement may be considered voluntary.

All of this will be difficult to remember at the scene of an officer involved shooting, so keep it simple. If asked what happened, make it short and directly to the point, i.e. “he drew a weapon, I told him to drop it and when he did not, I feared for my life and shot at him to stop the threat.”

Once you leave the scene you may be asked what happened by other supervisors. Most supervisors will know enough to leave you alone and, in fact, will want you kept apart from everyone. However, for some reason, a lot of supervisors seem compelled to rush to the department after an officer involved shooting, even though they are not involved, and you may be asked about the situation by supervisors who are just curious. Remember, if you volunteer statements in a criminal investigation, they will be used against you. You may politely say that you would like to consult with an attorney or otherwise politely decline to answer. If you are ordered to answer, request your Garrity warnings. If push comes to shove, answer the inquiry, but make some note of the date and time you were ordered to respond.

V. I have to write my report.

I take the position that these could not be used in the criminal investigation against you absent your consent, because you are compelled to complete them as a part of your job function. Most SBI agents and DA’s I have dealt with seem to agree, but I have not had occasion to test this position in court and hope to avoid the challenge. The best way to obtain that objective is to do as follows. Do not rush to do the report. If at all possible wait until the next day.

If you are ordered to do the report before you leave that day, make a note of it. This report should not now be admissible in a criminal proceeding because you were ordered to do it. If you are having some difficulty recalling things because of what you have been through, make a note of it. Do the best that you can to digest what happened and get your thoughts together. You want it to be accurate precise and truthful, not rushed, inaccurate and harmful to yourself.

VI. The initial criminal investigation...

You will be taken from the scene to the station where you should be able to collect your thoughts. The criminal investigation will begin virtually immediately. This bears repetition: You are the target of a criminal investigation. The investigation has one purpose – to determine whether you will be charged with a crime. You have absolutely no obligation to cooperate with the criminal investigation or provide a statement. You have a Fifth Amendment right to remain silent. Because it is a criminal investigation, your silence cannot be used against you in any subsequent criminal proceeding. Moreover, you cannot be disciplined, or demoted for failure to cooperate.

VII. I don’t mind talking now because I didn’t do anything wrong.

You may choose to grant an interview to the criminal investigators. However, it is against my advice to provide a statement on the date of the incident. Because of the traumatic nature of the event, it is unwise to speak with investigators so soon. They will want to talk to you. I have some concerns about the way this has been handled by law enforcement agencies, including the GPD. The agency will require the officer to stay until the investigators arrive, because “they want to talk to you.” That makes the officer, whose future is at stake, feel like they have to speak to the criminal investigators that night. This is made all the more difficult because of the situation, particularly if the criminal investigators are from your department. You want to tell your story. You want to prove you were justified to your peers. After all, these investigators are on your side, they have the same badge. They are not on your side in this investigation. They have a job to do which is to fully investigate the incident to decide if you should be criminally charged. When you start the interview, they will tell you that themselves. You do not have to prove anything in the criminal investigation. You never have to speak with the criminal investigators and if you decide not to, nothing bad will happen to you. Law enforcement officers are not relegated to a “watered down version of constitutional rights.” Garrity v. New Jersey, 385 U.S. 493, 500 (1967).

Think about the nature of the investigation and the consequences you could face. Then think of a good reason not to take some time to think things over, collect your thoughts and obtain the benefit of counsel. Anyone who can think of a valid reason to rush into such a critical interview can feel free to call and fill me in because I cannot come up with one. The only reason to provide a statement on the date of the incident is a compulsion based upon a misguided perception that to do otherwise would make you look “guilty.” If that is your only reason for speaking to investigators that evening, then you are a fool. If the investigator takes offense by your decision not to speak with them that evening, tough. Tell them to walk a mile in your shoes before they even have the right to feel that way.

Please allow some personal observations on this section. It is only fair for the department, when requiring an officer to wait for the criminal investigator who “wants to talk” to tell the officer he or she does not have to talk to the investigator, and could go home should they desire. They are not in custody, so why make them feel as though they are? Also, what exactly is the big rush to interview the officer? They are generally not a flight risk and usually show up for court. Finally, although GPD had nothing to do with “file gate”, recent events should underscore the difficulty in the agency itself investigating these incidents as opposed to the SBI.

VIII. I have to cooperate or I could get fired.

You do have do cooperate with INTERNAL investigations because they cannot themselves result in criminal charges. You do not have to cooperate with a criminal investigation of your actions. You should all be familiar with the rule of law enumerated in Garrity and subsequent cases. By virtue of your public employment, you can be compelled (you do not have a right to remain silent upon threat of termination) to answer questions specifically and narrowly tailored to your job duties. However, those statements, because they are compelled, cannot be used for purposes of a criminal investigation.

You may think of it as two hallways. The hallway on the right is the internal affairs hallway. Although it may be foul smelling and distasteful, you must take the pleasant walk down it or you could be fired. (Incidentally it may be advisable to refuse to answer questions in an internal investigation and simply resign but that is another article.) The hallway on the left is the criminal hallway that you walk down only if you choose to do so. For your information, although internal statements cannot be used in a criminal investigation, statements made in the criminal investigation can be used in an internal investigation.

IX. How do I know whether the investigation is internal or criminal?

It can be confusing, particularly because Greensboro currently performs its’ own criminal investigations following an officer involved shooting. It is much easier to determine for you when an SBI or FBI agent is standing there. However, you should be familiar with the internal affairs investigators as opposed to CID people. Also, the investigator should tell you. GPD utilizes an administrative rights form for an internal investigation that should make it abundantly clear. If you are not sure, ask. The internal investigation should only be conducted after your criminal interview, should you choose to provide one.

X. My buddy got in a shooting. What should I do to help?

Let me start here by telling you what not to do. DO NOT ASK WHAT HAPPENED. DO NOT ASK WHAT HAPPENED. DO NOT ASK WHAT HAPPENED. Ask if he or she is okay, and if you can contact anyone for them. Try as best you can to keep others from pestering them about what happened. It is natural to be curious, but do not make yourself a witness for the prosecution in the case of State of North Carolina vs. Your Buddy.

XI. What about Peer Counselors?

The department has a team of peer counselors who will be available to help you if you want. These people are volunteers and I know of some fine officers on the team. They can help you understand your feelings. However, it is my advice not to discuss the facts of the incident with them because your discussion with them is not legally protected. If you limit your discussion to you feelings, then by all means take advantage of their help, but understand their role and do not unload all the details on them. If you would rather talk with someone away from the department, remember that your association has a counselor that you can consult.

XII. The internal investigation.

You have to cooperate with this investigation unless you choose to leave the department. They need to investigate to determine if you have complied with departmental policy, not to determine if you should be criminally charged. They will provide you with an administrative rights form explaining the type of investigation. They can review and utilize your criminal statement if you gave one. Your department will not allow you to have a representative if this interview. Obviously, it’s no fun being the secret police if everyone is invited. However, you should be able to consult with counsel before the interview. Take time to review the pertinent departmental directives, listen to the questions and try your best to provide truthful answers.

XIII. Conclusion.

This article is a general guide based upon my experience in these investigations.