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May 02

How we investigate Officer-Involved Shootings

Posted on May 2, 2017 at 4:11 PM by Jamie Bastas

Today’s blog posting will hopefully leverage timely information to provide insight and public education on issues that are complex and challenging within the career of policing. As many of you may know, we had an unusual event this past weekend in which an officer used lethal force, most commonly called an Officer-Involved Shooting (OIS). While Hollywood portrays the life of the average street cop or detective periodically being engaged in shoot-outs, the reality is that a very low percentage of police officers in the U.S. ever have to fire their weapons other than at the firing range. The incident this past weekend occurred following the deployment of our Tactical Team, who receives additional training and specialized weapons due to the nature of this assignment. While it is inappropriate to provide too many details about that specific incident, given that it is an active investigation, I would like to provide some context and a detailed description of everything that occurs behind the scenes whenever there is an OIS.

First and foremost, it is important to recognize that within the system of law that we operate under, it is the Commonwealth Attorney’s Office (the prosecutor) that makes the determination if the use of lethal force by a police officer is justified and lawful or not. Because this is a legal finding that is driven by the evidence and facts surrounding an incident, a complete “criminal” investigation is conducted. Any loss of life at the hands of another is a homicide, even if it is ultimately ruled a justifiable homicide. This is where a key difference lies: a murder is a crime, whereas homicide is the legal term for one human killing another. So, a homicide can be justifiable (self defense, lawful police use of force, etc.) or criminal (e.g. first degree homicide); however, a murder is a generic term for the crime of killing someone.

Concurrently, every police agency has to make a determination as to the actions of their employee in using lethal force within the context of their policies, rules and regulations, and the training provided to the officer. This, then, is an Internal Affairs investigation that is completely separate from the criminal investigation that gets presented to the Commonwealth Attorney. There could be a scenario wherein an officer may have violated agency policies and/or training and yet was within the law as to the use of lethal force. I have seen some police agencies fire a police officer for a blatant rules violation even though the prosecutor may rule the action lawful and justifiable from a legal perspective. This is why it is very important that the Internal Affairs investigation focus its attention to the policy, rules, and training implication and the Criminal Investigation focus on the legal elements of homicide and the elements therein.

In Newport News, we use our major crimes homicide detectives to conduct the criminal investigation of an OIS. They are the most accomplished and experienced at dealing with these types of incidents, they understand most what the Commonwealth Attorney’s Office will want and need, and they are highly focused on the elements of homicide, gathering physical evidence present in major crimes, and interviewing witnesses. We also have the option to call in an outside agency to conduct the Criminal Investigation if necessary and appropriate. Our Internal Affairs investigators coordinate the Internal Affairs piece, but we go one step further, by empaneling a Shoot Team to review every aspect of the incident from a policy, rules and training perspective. We draw Shoot Team members from various units within the agency but not directly related to the unit where the officer(s) who were involved in the use of lethal force are assigned.

In a landmark Supreme Court ruling many years ago referred to as Garrity, the rules make it clear on the need to keep these investigations isolated from each other. That is because any officer who was involved in the use of force in an OIS incident is entitled to the same 5th Amendment Rights against self-incrimination as any other citizen under our Constitution. However, under the Internal Affairs investigation, police departments can “order” their employees to make a statement or face discipline up to and including termination. Therefore, the Garrity case makes it clear that any information compiled in the Internal Affairs case cannot be used in the Criminal Investigation as a per se 5th Amendment violation. To put it in simpler terms….the Internal Affairs investigators are entitled to anything and everything out of the Criminal Investigation…but, that is strictly a one-way street; nothing can pass from the Internal Affairs investigation to the Criminal Investigation.

Fatal OIS incidents are very uncommon. Historically in Newport News, the Criminal Investigation component ends up filling multiple 3 or 4” binders, with hundreds of pages of meticulous investigative reports. The Shoot Team presentation to the Command Staff may take many months to prepare before it’s finally ready to go. As the Chief, I have the discretion during these processes to return the involved officer to either modified or full duty, depending on the circumstances. Any officer who is in an OIS is subjected to a period of Administrative Leave sometimes followed by modified duty until all indications are that it’s appropriate for them to return to work.

Naturally, one very important aspect in this process is attending to the emotional and psychological well being of any employees who may be affected by an OIS. Both sworn and non-sworn employees can be impacted whenever use of force is involved, and we offer a variety of services for employees to access if desired or needed. Over the past few years, the stress of policing has been climbing due to the national narrative driven by some highly publicized incidents, all of which has only made the mission of policing more challenging. One key finding of the President’s Task Force on 21st Century Policing published over a year ago was the need to take better care physically and emotionally of our police officers.

Because OIS events are uncommon, there is often public misunderstanding of why we do what we do. Even as we desire to be highly transparent in such matters, much of the evidence that could act to strengthen public trust is, in fact, the same evidence that the Commonwealth Attorney’s Office will rely on to make their legal determination, and therefore, we are urged to keep such matters confidential until the criminal case is closed. Sometimes, there is also pending civil litigation, and defense attorneys insist on keeping details non-public until the litigation is resolved. None of this serves to help build public trust or add to our transparency, and it contributes to police leadership feeling absolutely between “a rock and a hard place”.

Finally, there has been significant public and professional debate about the timing of releasing the names of the officer(s) involved in OIS incidents. On one hand, the media rightly insists that this falls within the “public’s right to know” and it is hard to disavow that this is of high public interest. On the other hand, one does not surrender their basic human rights such as privacy for their family when one takes the oath of office to serve as a police officer. We have an obligation to provide timely and appropriate public information when we can, and are as equally obligated to help preserve the privacy of our employee’s families who can and often are damaged by any ensuing risks that accompany disclosure. Our current position on this balancing act is that we will release the name of the officer(s) involved in OIS incidents when the Commonwealth Attorney completes their review of the Criminal Investigation.

In summary, an OIS is thankfully an uncommon event. However, we take such incidents very seriously and handle them with the utmost of care and concern, starting with the families of both the decedent and the officer(s) involved. We meticulously investigate both the criminal and the internal aspects of the incident, and forward the criminal investigation in its entirety to the Commonwealth’s Attorney for their prosecutorial review. It is not uncommon in today’s environment of addressing public trust in government that sometimes even the FBI reviews the case files to make a preliminary assessment. Ultimately, we study the entirety of every such case and apply “lessons learned” as we train our police to best serve our community. This is a serious business we’re in, and we hold human life up as the most precious thing we’re sworn to protect. Our community deserves nothing less.