Situation:
Several police officers use necessary deadly force in the line of duty … and unwarranted legal actions are lodged against them.
Lesson:
Veteran street cop, SWAT Team member, police trainer and expert witness Kevin Davis offers life-saving and career-saving tips in a new book on how to investigate, analyze and most importantly, understand, such cases.
Police work has often been described as boiling down to “damned if you do, damned if you don’t.” In southern New England, a wife abuser stabs his spouse and when she falls, stomps on her head and neck in front of a police officer. The cop leaves his gun in his holster when he could have drawn, fired and stopped him. When the horribly crippled woman sues the police department, she wins a seven-figure judgment. Frankly, I have no problem with this.
Down the eastern seaboard, another man with a knife takes a woman hostage. The cop involved in this case takes a carefully aimed shot and drops him with a well-placed .45 slug from his HK service pistol, saving her life. She sues him and the police department for the trauma of it all. I have a problem with her.
And, please, don’t think if you’re not a cop, you can’t be put in the same position.
Less than a week before writing this, I spoke with a young man who was working in a high-risk retail establishment when an armed robber came in with a drawn gun. When it became apparent the gunman was endangering one of his female coworkers, the young man simultaneously pulled her down out of the line of fire with one hand and drew his own legal carry pistol with the other — and shot the armed criminal dead.
Yes, you guessed it: she filed a lawsuit against him for — in essence — saving her life in too much of a violent and scary fashion.
Cops have more experience dealing with this sort of aftermath than “civilians,” and therefore can offer some valuable lessons to armed private citizens. At the annual International Law Enforcement Educators and Trainers (ILEETA) conference, I have the privilege of running the panel discussion of experts on firearms and deadly force training. Of late, I’ve made sure one of the panelists is Kevin Davis.
Davis is a contributor to Law Officer, which describes him as a full-time officer with more than 25 years in law enforcement. His previous assignments include patrol, corrections and plainclothes narcotics investigations. He’s a former SWAT member, team leader and instructor — currently assigned to the training bureau where he specializes in use of force, suspect control and firearms training.
Kevin has a new book, Use Of Force Investigations: A Manual For Law Enforcement. It’s available in print or for download from Amazon. I recently finished reading it, and whether the reader is a law enforcement officer, a security professional or a law-abiding armed citizen, there is much we can learn from it.
Kevin goes to court, you see, as one of those police trainers serving as an expert witness for other cops who are falsely accused — whether criminally or civilly — of having wrongfully used force. He’s “been there, done that.” The lessons he’s learned are applicable to anyone who keeps or carries a defensive firearm.
Lessons Learned
“The worst report of investigation in a use of force case is — no report whatsoever,” writes Kevin Davis. “Quite honestly, if your people did the right thing, they, and you, need to properly document it.”
Lesson: There is an old axiom, which holds, “If it’s not written down, it didn’t happen.” He who waits until he’s in court to explain his use of force is open to the accusation he is making up late excuses, and if what he’s saying were true, he would have said it earlier. Kevin warns us this is particularly the case if we’ve been injured in the incident, and obviously can’t draft a report while receiving medical treatment.
He writes, “Officers who are unable to complete a report due to injury, for instance, should still be interviewed by a supervisor and make an official statement. On one case I worked, the officer’s statement was never taken in the months after the incident and he was subsequently charged with criminal offenses. If the investigating supervisor had interviewed the officer (who went to the hospital that night with his injuries) he would have found the officer had a perfectly sound explanation for his actions.”
Kevin writes about another case, in which he was hired by the Fraternal Order of Police as an expert witness on behalf of a cop who stood accused in criminal court of wrongfully shooting an “unarmed man.” The original report, poorly worded, simply described the officer struggling with a guy who had snatched some bills out of an open cash register. Does this sound like a situation to justify shooting someone? It apparently didn’t seem like it to the prosecutor’s office, either.
But, when Kevin dug into the facts, it turned out the incident went far beyond a simple description. The cash-snatcher turned out to be a crack monster stoked on rock cocaine, a substance known to infuse its users with what most of us would consider superhuman strength. The cop, a man of substantial size, later said the suspect threw him around like Hulk Hogan.
Moreover, the suspect had been trying to snatch the officer’s service pistol from its duty holster. Physically overpowered by the suspect, the cop was certain he was about to be disarmed and shot by a man he could not control — who then might use his service pistol to murder citizens. The trained policeman came to the logical conclusion the only way to end the deadly danger this man posed to him and the public was to shoot him. (Lesson: a man going for your gun is … a man going for a gun!)
It made all the difference, and the case against the officer went away — but not without another teachable moment. Kevin Davis relates: “I’ll cut to the chase and tell you we were, after interviewing the officer and examining the video evidence used to indict him, able to have the case successfully dismissed. Sadly, his elderly father had passed away prior to the dismissal and went to his grave without seeing his son vindicated.
“This type of result can occur when an ill-informed agency either: develops and maintains a poor policy; fails to train its supervisors in use of force investigations; fails to train its officers in use of force and proper reporting or fails to implement all of these things in an actual incident.”
And therein lies another lesson: we can pull the knife out of the back of someone who was stabbed, but the wound still remains. It’s true in the physical sense, and in the greater macrocosm of Life.
Supreme Court Decisions
Speaking of lessons: Know the rules. Davis reminds us we need to know the laws encompassing what we do, and we need to understand them as well as or better than those who judge us.
Davis relates, “I once testified as an expert in defense of a police sergeant who was charged with Felonious Assault in a use of force incident … The prosecutor, on cross-examination, handed me the Graham v. Connor decision and asked something like, ‘Well Mr. Expert Witness, here’s the Supreme Court decision in Graham v. Connor. Can you show me where it says (what you just testified)?’
“Reviewing the Graham paperwork he handed me, I found this section and quoted it to the jury. The prosecutor quickly grabbed the case paperwork away from me and said, ‘This isn’t what it means …’ I looked at the jury and asked, ‘Do you want me to read it again?’ The officer was acquitted. In the Graham decision, the court stated the test of reasonableness is, ‘not capable of precise definition or mechanical application.’ This means there is no single answer to a use of force examination.”
The bottom line was, Davis understood the SCOTUS decision better than the lawyer. This well served both Davis and the officer who benefited from his testimony.
Graham v. Connor is a guidepost in law enforcement. Among other things, this landmark decision held “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
In addition, “The calculus of reasonableness must embody allowance for the fact police officers are often forced to make split-second judgments — in tense, uncertain and rapidly-evolving circumstances — about the amount of force necessary in a particular situation.”
Garrity Issues
Most people are familiar with the Miranda rule, the warning that anything said to the interviewer can be used against the speaker in court, and the speaker has the right to remain silent. Police, unlike armed citizens, do not get this right. They get different warnings, which, like Miranda, come from decisions made by the Supreme Court. These come from Garrity v. New Jersey and Kalkines v. United States and are known generically as “Garrity Warnings.”
Such a warning sounds like, “You are being questioned as part of an internal and/or administrative investigation. You will be asked a number of specific questions concerning your official duties, and you must answer these questions to the best of your ability. Failure to answer completely and truthfully may result in disciplinary action, including dismissal. Your answers and any information derived from them may be used against you in administrative proceedings. However, neither your answers nor any information derived from them may be used against you in criminal proceedings, except if you knowingly and willfully make false statements.”
Kevin Davis writes, “Want to see a perfect example of this? Read 13 Minutes by R. Blaine Jorg. An officer was abandoned by his agency, charged and tried for involuntary manslaughter in the in-custody death of a suspect. He was subsequently acquitted in a jury trial.
“I strongly recommend the book for a realistic look at the politics of force at its worst. I have worked on numerous cases where officers did the right thing, operated within agency policy and used an objective, reasonable amount of force, only to be charged with crimes by their own agency. This is most often the result of inept investigators and flawed or political investigations.”
The book discusses the subtleties of Garrity issues, with lots of valuable insight. For example, Kevin points out an investigator from an outside agency cannot compel a statement from an involved officer via Garrity. Instead, it would take a supervisor from within the officer’s agency to make it happen.
Investigation Scars
The real-life OIS (officer-involved shooting) is far removed from what the entertainment industry has conditioned the public to believe. TV and movie cops seem to shoot people as a routine part of their workday, never so much as write a report and at the end, ride off into the sunset like a cowboy in a Western movie. When police shootings happen in reality, however, the sunset for the officer is far, far away.
Here’s the reality from Kevin Davis: “An officer is locked in a suspect holding room (cell without bars) at the station waiting for investigators to interview him after he was forced to shoot an armed robber. He then is forced to sit in the same room as the Chief of Police and Union President stand toe-to-toe and yell at each other about procedure and protocol.
“After a shooting on the nightshift, the involved officers are forced to stay at the station for hours until they are finally interviewed by detectives. When they are finally allowed to leave, they’ve been up for over 24 hours without sleep. Officers who’ve just fought and won a fight for their very lives have to endure these circumstances, conditions and treatment by their own agencies.”
Kevin points out, in the US, police officers kill less than 500 people a year — and in most years, it’s fewer than 400.
He writes, “For most agencies, serious uses of force as well as shootings are infrequent. Some agencies never experience an officer-involved shooting. It’s a bad thing as well — agencies do not have a ‘system,’ protocol or fluid policy and are forced to ‘wing it’ which can damage the process and the officers involved.”
Finding A Balance
The rights of the officer who fired must be balanced against the safety of the public. Kevin presents an example of a supervisor’s warning attributed to the LAPD.
It reads as follows: “Officer, I am ordering you to give me a public safety statement. Due to the immediate need to take action, you do not have the right to wait for representation before answering these limited questions.
1) In what direction did you fire pistol rounds? 2) If you know of anyone who was injured, what is his or her location? 3) If any suspects are outstanding, what are their descriptions? 4) What was their direction of travel? 5) How long have they been gone? 6) What are they wanted for? 7) What weapons do they have? 8) Does any evidence need protection? 9) Where is it located?
“Officer, in order to prevent the contamination of your statement, I order you not to discuss this incident with anyone, including other supervisors or staff officers, prior to the arrival of the assigned investigators, with the exception of your legal representatives.”
Understand Kevin Davis is not an apologist taking the position police can do no wrong. He writes, “I have been consulted or given testimony in a number of misdemeanor and felony cases involving police use of force or criminal trials of suspects involving force or firearms. I have testified both for and against officers.
“As a proud member of the profession, it saddens me to testify against a brother in blue, but if they are guilty of violations of policy or law, then it’s my responsibility to be honest and protect my profession along with my brothers and sisters in uniform.”
The several cases plucked from Use Of Force Investigations and discussed above represent just the tip of the iceberg of the many actual incidents and the extensive collective experience Kevin Davis put into his book. I would call it nothing less than required reading for police supervisors and detectives who have the responsibility for investigating shootings and other use of force instances. It is likewise a “must read” for those in the legal profession who try this type of case.
It is every bit as important to anyone working today with a badge and a gun. I agree with Kevin: a lot of cops don’t understand their rights, and people who are bosses but not leaders throw some to the wolves.
I would strongly recommend this book for any private citizen who keeps or carries a firearm for personal-defense. At the deadly force level, use of force guidelines is very similar — whether the gun is carried on the authority of a badge or permit. It’s also of great value beforehand to anyone who might find themselves on the jury of such a case.
Use Of Force Investigations goes through the entire spectrum of physical force, from non-lethal through intermediate force and of course, lethal force. While it is of great value to everyone I just mentioned, Kevin is a cop and wrote it for cops, so I’ll leave you with this final quote from his excellent book:
“Society expects officers to be ‘faster than a speeding bullet, more powerful than a locomotive and able to leap tall buildings with a single bound,’ to defy the law of physics à la The Matrix and to read a person’s mind ascertaining their intent.
“An officer must respond with the reflexes of an Olympian, shoot like Annie Oakley and have the endurance of an Ironman competitor. They are expected to reason with the unreasonable and talk to the manic, depressed, mentally ill, emotionally disturbed and hyper-violent with equal aplomb. When assaulted with verbal insults, spit, punches or targeted with human urine or feces, they must wipe it off with a smile and a deep understanding it was the uniform which was targeted and not them personally.
“They cannot feel fear or anger and must wait for a suspect to fire first. When they fire back, they should shoot the gun out of the suspect’s hand with one round. Their memories must be photographic and their written reports pieces of literature. When confronted with violence they must apply minimal levels of masterful non-injurious control like a Jedi Master.”
Kevin Davis is a realist. He knows his topic deeply and … he gets it.
By Massad Ayoob
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