By Drew J. Tracy, Assistant Chief, Investigative Services Bureau, Montgomery County, Maryland, Police Department
The most critical investigation in any law enforcement agency is that of an officer-involved shooting. These shootings bring media attention; citizen inquiries; liability issues; and, if handled incorrectly, irreparable damage to the agency’s reputation. The key to being successful is a prompt, thorough investigation by knowledgeable, well-respected investigators backed by forensic evidence that ultimately provides full disclosure and citizen review. This article will outline the steps necessary and the people to involve in an officer-involved shooting investigation.
Officer-involved shootings require a thorough on-scene investigation by detectives who are experienced and knowledgeable about deadly force incidents. To maintain consistency and a high level of expertise, each agency should have an investigative team that handles all police shootings. This team should receive appropriate training pertaining to ballistics, weapons, human performance, tactics, deadly force issues, and department policy. Each member should have strong investigative skills and be respected by officers. The team should consist of a primary detective, two additional detectives, a state’s attorney or assistant U.S. attorney, forensic personnel, and subject matter experts. Subject matter experts should be available to answer questions regarding weapons, wound ballistics, in-custody death issues, and other specific criteria that will require professional guidance.
Smaller agencies in the same geographic area will benefit by the creation of a single shooting team with a trained investigator representing each agency on the team. This team comprising investigators from different agencies will reduce citizen allegations of favoritism and bias. Likewise, larger agencies that enter into a regional team will be able to provide an in-depth professional investigation, utilizing the best investigators, attorneys, and forensic personnel from participating agencies. With a shooting team approach consisting of several agencies, the lead investigator in an officer-involved shooting should not be from the involved agency.
The on-scene investigation of an officerinvolved shooting must include all aspects of a serious crime scene investigation, as well as additional videotaping the scene and the onlookers. Videotaping the scene will preserve its appearance and assist in showing the lighting, the weather conditions, and the integrity of the crime scene. Immediate videotaping of the onlookers will also provide a record that will assist with witness positioning and their viewing perspectives and will also provide proof if certain individuals come forward with statements that are not consistent with the evidence or other eyewitness testimony. Often, individuals say they were not at a scene when in fact they were. Videotapes or activated in-car video recordings may help to prove this.
After the scene is stabilized and medical attention is rendered to the injured, it is necessary to thoroughly investigate the facts to determine whether charges should be placed. Each potential witness, including each officer and civilian, must be separated from all others before questioning begins. It is important to explain to the officers that the reason they, too, must be separated during questioning is to avoid an attorney challenge on this issue in the criminal or civil case. Studies have shown that when several officer witnesses get together, their team recollection is better than individual recall, but this strategy also subjects their testimony to additional scrutiny and allegations of collusion.
If there are no witnesses aside from the involved officer, it is important that the officer describes in detail all facts leading up to the point that deadly force was used. A walk-through may need to be conducted for evidentiary purposes by the involved officer and should stop at the point where deadly force was used. Although the officer has a right to representation from a union representative or assigned attorney, it is important that the involved officer understand the significance of providing immediate information so that charges may be placed against the offender. Knowing the mind-set and the circumstances the officer faced leading up to the shooting will assist the investigative team in placing the incident in perspective. Coordinating with union representatives prior to these incidents can help to establish roles and expectations so that investigations and questioning are not hampered.
On the scene, a variety of items should be photographed and seized as evidence. The officer’s weapon and duty gear as well as photographs of the officer in the clothes worn at the time of the incident should be obtained. These clothes will benefit the investigator, especially if there was a struggle. When seizing the firearm and ammunition for evidentiary purposes, it is imperative that there are policies in place to issue a replacement handgun as soon as possible.
Maintenance of all evidence is imperative. For example, consider the following: During a deadly force incident, a man struggled with an officer in an effort to grab that officer’s handgun. A struggle ensued, in which the individual was shot by a backup officer while the individual was attempting to remove the gun from the original officer’s holster. A search of the floor where the shooting occurred revealed a button from the original officer’s shirt and the top of an ink pen. The pen was still in the officer’s shirt and the pen top had come off during the struggle. Photographs of the officer’s clothing and duty belt in the position they were found, as well as pictures depicting the top of the pen and the disarranged furniture, paint a vivid picture of a struggle. Maintaining the clothes as evidence may also supply DNA evidence transferred to the clothes during the course of the struggle.
Also consider another incident in a grand jury proceeding in Maryland in which the jury returned a justified shooting response. The officer then faced federal charges. The chain of custody of the handgun was maintained by the officer’s agency and with further review, DNA from the suspect was removed from the front sight, which was consistent with the officer’s testimony that a struggle ensued and the suspect grabbed the gun. This underscores the importance of keeping an involved officer’s handgun in evidence and not reissuing it.
The officer involved in the shooting should be assigned a companion officer for assistance and support. This individual should be an officer assigned to the agency’s Peer Support Team and should have undergone appropriate training. When selecting peer officers, utilize senior officers who themselves have been involved in similar incidents during their careers. They should respond immediately to the scene and provide emotional and factual support to the officer without discussing the details of the incident.
Consider the real possibility that even after an officer’s shooting had been determined to be justified, the officer may still be scared and uncertain about what will happen next. Studies show certain officers choose to leave police work after a critical incident. It is law enforcement’s responsibility to prepare officers to return to work after such incidents.
Besides professional counseling, each department should train a Peer Support Team that includes advocates who have been personally involved in a previous shooting. These fellow officers can help guide involved officers through what will happen, as well as the types of feelings they may be experiencing. The next step is to assign involved officers to the training section for weapon requalification. Officers should also be evaluated in “shoot” and “no-shoot” scenarios to assess their readiness to return to their positions. After being cleared, some officers will want to immediately return to full-duty status; others may need additional time, while others may want a transfer to different positions, and still others will leave police work altogether.
Law enforcement executives have a responsibility to provide continuous support and monitoring of involved officers because civil proceedings, as well as physical and psychological stress, may last for years. All involved officers will remember their critical incidents, and agency leadership must be available if they need assistance.
48-Hour Release Policy
With any law enforcement shooting comes intense media scrutiny. The best policy for all parties involved in a shooting is a 48-hour release policy. Neither the officer’s name nor the name of the individual shot should be released for 48 hours. This gives involved officers time to notify their families and arrange for temporary, secure accommodations if they fear threats or retaliation may follow. The 48-hour release policy also provides the department sufficient time to properly notify the family of the individual who was shot. A professional, timely media release issued by the head of the agency sends the message that this is a serious incident that will be handled with expertise and professionalism.
It will further benefit the law enforcement agency to send personalized copies of this release to stakeholders in the community to avoid dissemination of misinformation and to provide the community the names and phone numbers of contact persons for questions or concerns.
Statements may be voluntarily given by the involved officer shortly after the incident or may be delayed on the advice of counsel. In those incidents in which officers do not voluntarily offer statements, they may be ordered by the department to give a statement. A compelled statement cannot be used in criminal proceedings, but may be used for internal review. It is important that the agency have ban agreed-upon policy with the union pertaining to the release of statements to avoid media and citizen scrutiny. This policy should require that the officer be subject to an interview within 72 hours of the shooting. This provides ample time for securing representation, sleep, rest, and reflection by the officer. The officer still retains the right to not provide a statement if the investigation focuses on potential criminal conduct.
Every effort should be made to conduct only one interview of the officer. It is important for the investigators to be fully prepared prior to conducting the interview. Providing one detailed statement to the agency’s shooting investigative team and the agency’s internal affairs division will avoid putting the officer through two questioning sessions. This will also eliminate the opportunity for a defense attorney to try to discredit the officer by finding slightly different answers to the same question asked in two different interviews.
Remember that under stress, officers may remember certain aspects of the incident and may not remember others. In general, the officers who returned to the environment can remember from about 50 percent to 70 percent of the significant details of the experience, while those trying to remember in a different place can recall only about 30 percent to 50 percent of the specifics.1 As a result, a physical walk-through at the incident scene might assist officers in their recollections prior to or during the interview.
How can agency leadership expect law enforcement personnel involved in one of the most critical incidents in their lives, who are operating under stress and fear, to remember what just happened in a rapidly evolving event? This is not a realistic expectation. What also must be realized is that civilian eyewitness testimony may be based on beliefs and values and may not be a fair replication of the actual facts. It is imperative to combine forensics with acquired recollections of involved and noninvolved individuals who are present at a critical incident.
The author once testified as an expert witness in a SWAT shooting by the point officer. Carrying a ballistic shield, the point officer and other team members dynamically entered the residence. The officer covered a small bedroom during this no-knock narcotics raid with weapons reported to be inside the residence. During testimony, the points that are always required were present: proper wear of visual identification by the entry team, use of verbal identification, and verbal warnings.
A thorough drive by of the location prior to the search warrant execution, a detailed intelligence briefing, and active preraid surveillance will show any grand jury that a professional approach before execution of the raid was followed. In testimony for this shooting, tactical officers and nonpolice witnesses both said that the officer yelled “Let me see your hands” at least three times before shooting. The shooting was deemed justified because the individual did not show his hands after verbal commands, and intelligence provided that weapons were available at the target location.
In a separate case, a man was holding hostage at gunpoint his ex-girlfriend—the lieutenant governor’s cousin—in a car in a garage. There was an officer on each side of the vehicle to the rear. Shots were fired. The suspect fired a fatal round striking his hostage in the head. The suspect was hit with three rounds, and one—a fatal round—struck the temple region. The suspect’s shell casing did not eject and was still in his handgun. Consider this: does your agency’s investigative team have the expertise to determine who fired first? The officers were cleared because it was evident, after an indepth investigation piecing motive with onscene evidence, that the suspect intended to kill his hostage.
Fatal Shot in the Back
During an undercover drug buy, a narcotics officer was shot in the bicep and behind the ear. The backup team included a decentralized SWAT officer who engaged and killed the shooter during a foot pursuit. The emergency room trauma surgeon at the hospital put the entry wound, fired by the SWAT officer, in the frontal area of the suspect’s stomach. At the grand jury proceeding, the medical examiner testified that the entry wound and fatal shot to the suspect came from the rear. At the grand jury, the author testified that he agreed with the medical examiner and that the fatal shot fired from the .45-caliber Glock was from the rear. After the author re-created the movements and presented studies showing the time that it takes to pull a trigger versus times it takes a suspect to turn during a flight, the jury cleared the involved officer.
Reaction Time/Reality Time Studies
Reaction time is the time taken to transmit a signal to the brain and for the brain to respond with a command for a response action from a sense (for example, sight, sound, or touch).
This is also called the cognitive process: the thinking time taken for a signal to be communicated between the mind and the body. This momentary process time is recorded at between 0.3 second to 0.4 second, depending on the individual.2 There are many negative factors that cause this reaction to become slower, such as pain, tension, fighting stance, and outside influences like noise and distractions. Fear slows reaction time.
The physical movement highlighted in the previously described grand jury testimony is the 180-degree turn, which reflects a street encounter in which the suspect engaged in a dynamic turn and discharged a weapon at the officer while turning. In this study, the subject was instructed to start by facing the officer with the weapon in a concealed position beside and behind the strong-side thigh, point the weapon at the officer, pull the trigger, and then turn and run away. The motion was dynamic, varied among subjects and sometimes covered quite a distance before the subject achieved a full, square-back position. The average time to fully turn with the back toward the officer was 0.58 second, with a fastest time of 0.33 second. Therefore, a 90-degree turn can be executed in less than 0.33 second.
Now consider two other studies. In one study, trained officers fired from a low ready, two-handed position at a target 15-feet away when they heard a buzzer. The average time to fire with a sight picture was .83 second, and the average time to fire an unsighted shot was .64 second. From a level I holster, the time needed to fire on target was 1.71 seconds; with a level II holster, the average time was 1.92 seconds; and with a level III holster, the average time was 2 seconds.3
In sum, these studies show that the officer reacted to an immediate threat and subsequently fired the weapon. However, because of the difference between the officer’s reaction time versus the movement action time of the suspect, the officer’s round struck the suspect in the back. The projectile that was fired to strike the center mass of the suspect made entry to the back. What caused this was the sudden movement of the suspect. The officer participants in the above study knew they would be firing after an audible signal and were prepared to fire. Add the impact of stress during the use of deadly force in real life, as well as probable movement, and it becomes reasonable to assume that both accuracy and response times would be compromised.
The most controversial shootings by officers often involve vehicles. Both internal and external review of a shooting in which an officer fires rounds at a moving vehicle is often questioned. Shots taken at the drivers of vehicles often are not accurate and require the bullet to breach either a metal or a glass barrier. Furthermore, if a vehicle is speeding toward an officer, who has no protective cover to move to, that officer is left with limited defensive choices. After the fact, questions arise as to why the officer fired at the vehicle when there were passengers in that vehicle. This should not be a consideration unless the officer knew for a fact there were others present. Instead, the investigation should focus on the crime involved and other facts about the incident. A 3,000-pound vehicle is more lethal than a 165-grain projectile when it hits center mass.The accepted rule of thumb is that a vehicle travels 15 feet per second for every 10 mph. An accelerating vehicle that is traveling approximately 30 mph is covering approximately 45 feet in one second. An officer takes .3 second to .4 second to process information and react to the threat, and another .6 second to .8 second to travel two quick steps, according to an internal study by the Montgomery County, Maryland, Police Department. If the officer is within 45 feet of the vehicle, and the driver of the vehicle accelerates toward the officer, it is highly likely the officer will be struck.
In baseball, a 90-mph pitch crosses the plate in .46 second. If the pitch is thrown directly at the batter at this speed, it will usually hit the batter because the signal sent to the batter’s brain to move and the batter’s movement are usually too slow to avoid the pitch. The point is that even with a good sixth sense and a strong reaction time, even a well-trained officer will often lose to an approaching vehicle because the strong rule of science is action beats reaction.
The FBI study In the Line of Fire: Violence against Law Enforcement—A Study of Felonious Assaults on Law Enforcement Officers shows that 41 percent of officers who fired in the study hit their intended targets, and the average distance to the target was 21 feet.4 Although this is a limited study, these averages are fairly consistent with the multiple shooting data available.During court proceedings concerning an officer-involved shooting, the number of rounds fired by the officer or officers involved will be released to provide full disclosure. Grand juries often question why numerous rounds were fired. It is important, especially in handgun shootings, to show that (1) immediate incapacitation of the target with handgun rounds is not a reliable factor, even if there is a direct central nervous system shot; and (2) direct shots that cause lethal blood loss are also not immediate. There is sufficient oxygen within the brain to support full, voluntary action for 10 seconds to 15 seconds after the heart has been destroyed.5 A determined individual who has received a fatal shot may continue to function because of adrenalin, sheer emotion, or stimulants in their system. Law enforcement personnel are taught to shoot at center mass and to continue until the threat is removed. Under stress, it is difficult to fire accurate shots that strike vital organs, and, in the average shooting, less than half of the shots fired hit the intended target. As the distance increases, more shots may be fired by officers to compensate for decreased accuracy.
Bullets do not physically knock people to the ground. Jury participants often have limited weapons knowledge or experience and base their perceptions on novels, TV shows, or movies in which the hit ratio is high and bodies fall violently after being shot. It is important to explain that a fired round’s impact on the body is no more than recoil from the weapon. Sir Isaac Newton proved this in the seventeenth century with his hypothesis: for every action, there is an equal and opposite reaction. To stop a determined threat, multiple rounds are often needed. To stop shooting also causes a delay because the officer’s senses must send a message to their brains to stop the physical movement of trigger pulls.
Shooting an Unarmed Individual
The author has testified or reviewed several officer-involved shootings in which the subject of the shooting did not have a weapon. What usually precipated the shooting was the nature of the call—a crime of violence—and a sudden movement by the suspect, usually with an object in hand. These shootings often occur early during the on-scene response, when the scene is still chaotic and limited information is available. In low-light situations, officers sometimes do not have a clear view of the possible suspects or if there are weapons involved.
This type of rapid, cognitive processing is frequently required of law enforcement officers under conditions of darkness or semidarkness. As a result, errors in perception or cognitive processing are likely to be relatively frequent. In situations involving deadly force, such errors may result in tragedy. In an in-depth study to see how untrained individuals would react to certain shoot and don’t shoot situations, a group of participants was recruited from California State University. Eighty-seven women and thirty-eight men participated. Four incidents were tested. In one scenario, the perpetrator held a nonlethal instrument in adequate lighting; 84.8 percent of the participants made the decision to shoot when a power screwdriver was deployed rather than a gun.6 This showed that the participants were just as likely to shoot a gun-armed individual as an individual who brandished a power screwdriver as long as a there was a potential victim involved in the incident and a perception of a possible violent felony. The studies by Mathew Sharps and Adam Hess show that average individuals exhibited extreme difficulty in distinguishing a handgun from no handgun, which in this case was a power tool. Another important point is that the majority of participants in this study indicated a readiness to shoot the perpetrator, but only one in ten felt it would be appropriate for the police to do so under the same conditions.
Criminal and Administrative Investigations
Each officer-involved shooting requires two separate investigations: one criminal and the other administrative to determine if departmental policies and procedures were correctly followed. The internal investigation of all police shootings should be completed within 60 to 90 days. The shooting investigative team will also address training and equipment issues, if appropriate.
Any number of local, state, or federal agencies may also review the incident, so it is important that an agency’s best and most well-trained investigators handle such incidents under a detailed and thorough investigative policy plan.A re-creation of the shooting will also be invaluable to gain a perspective on how much time lapsed during the shooting, where the casings landed after ejection, and the established bullet path. The bullet path may be determined by the wound inflicted or if it passed through an intermediary object, by utilizing rods or a laser. Knowing the mechanics behind an ejected round, combined with the bullet path, will provide guidance as to the positioning of the shooter.
Returning to the scene during the same time of day and re-creating the incident will provide an additional perspective for the investigation team. It is imperative that all rounds fired are accounted for, labeled, and entered into evidence. This may be difficult due to bullet fragmentation or rounds fired above the intended target, but this extra effort must be made to solidify the investigation. All bullets and casings must be analyzed to determine which weapon they are associated with, even if it seems obvious. Each involved weapon must also be analyzed for trigger pull weight and to ensure that it functions properly. Test shooting the weapon will also provide accuracy and the pattern of ejected casings. With ejected casings, it is also important to remember that if the officer or suspect cants, their weapon casings may not accurately show their true positions, so it is important to test with the shooting hand wrist in different positions. All evidence must be retained until the investigation is concluded, and all civil and criminal proceedings have been resolved.
A report published by the National Institute of Justice and Bureau of Justice Statistics states “only on infrequent occasions do police use their firearms against the public.”7 The majority of these incidents take place within a three-second time frame, often preceded by fractions of a second in which the officer has to decide whether or not to use deadly force. This is the most critical decision law enforcement officers will make in their careers, and this is the most critical investigation a law enforcement agency will be required to undertake.
Issues of importance to investigate and prepare for grand jury and internal review will include the steps leading up to the drawing of the weapon; the tactics utilized prior to, during, and after the encounter; and the reasonable perception of the officer leading to the use of deadly force. Use-offorce policies must be updated and easily understood, and officers must be proficient in applying these policies under stressful situations. Training is the key to developing the proper mind-set should officers be required to use deadly force.
All police shootings should be sent to the local district or state’s attorney office to be presented to the grand jury for independent, external review. This practice will allow citizens to review the incident and determine whether further investigation should be conducted, or whether the shooting was justified. Sending every law enforcement shooting to the grand jury provides citizen scrutiny and reminds citizens that law enforcement does not believe its incidents are above citizen review. Statements should be read to grand jury participants that all intentional shootings will proceed in this manner.
It is important that an agency’s shooting investigative team is well versed regarding weapons, wound ballistics, tactics, and law enforcement operations; is credible within the agency; and is credible to the citizens and attorneys involved.
Assemble a team by recruiting the best investigators, forensic experts, and subject matter experts available. Provide continual training, respond to incidents, gather the facts, report the truths, and present findings for citizen review. ■
1“More About How to Assure ‘Fair, Neutral & Fact-Finding’ OIS Investigations: Suggestions for Successfully Mining Memory, Part II,” Force Science News, no. 42 (April 14, 2006), http://www.forcescience.org/fsinews/2006/04/more-about-how-to-assure-fair-neutral-fact-finding-ois-investigations-suggestions-for-successfully-mining-memory-part-2-of-a-2-part-series (accessed August 26, 2010).
2Robert J. Kosinski, A Literature Review on Reaction Time (Clemson, S.C.: Clemson University, September 2009), http://biology.clemson.edu/bpc/bp/Lab/110/reaction.htm (accessed September 10, 2010).
3Bill Lewinski and Dave Grossi, “The Suspect Is Shot in the Back: Is Your Shooting Clean? Understanding the Limits of Survival Psychology” The Police Marksman 24, no. 5 (September/October 1999): 22–24, http://www.forcescience.org/articles/isyourshootingclean.pdf (accessed August 26, 2010).
4Anthony J. Pinizzotto et al., In the Line of Fire: Violence against Law Enforcement (Washington, D.C.: U.S. Department of Justice, 1997).
5Urey W. Patrick, Handgun Wounding Factors and Effectiveness, Firearms Training Unit, FBI Academy, Quantico, Va. (July 16, 1989), 8, http://www.firearmstactical.com/pdf/fbi-hwfe.pdf (accessed August 26, 2010).
6Matthew J. Sharps and Adam B. Hess, “To Shoot or Not to Shoot: Response and Interpretation of Response to Armed Assailants,” The Forensic Examiner (December 2008), http://www.theforensicexaminer.com/archive (accessed August 30, 2010).
7Kenneth Adams et al., Use of Force By Police: Overview of National and Local Data, NCJ 176330, National Institute of Justice and Bureau of Justice Statistics (October 1999), http://www.ncjrs.gov/pdffiles1/nij/176330-1.pdf (accessed August 30, 2010).
Please cite as:
Drew J. Tracy, "Handling Officer-Involved Shootings," The Police Chief 77 (October 2010): 38–48, http://www.nxtbook.com/nxtbooks/naylor/CPIM1010/#/38 (insert access date).