Force Science #252
I. 6 ways cops can aid their lawyers to win use-of-force
litigation.
Are you an officer who has been involved in use-of-force
hearings or litigation, or are you an attorney who represents LEOs when their
force decisions are reviewed or challenged?
If so, we'd like to hear your views on how an officer can
best help a lawyer in preparing the strongest defense possible after an OIS or
other major force confrontation. What, in your experience, are key do's and
don'ts of working with an attorney to get a justified, favorable resolution?
To stimulate responses, Force Science News put that issue
recently to Heather White, a Salt Lake City police liability attorney. White is
a graduate of the Force Science certification course, and a past president of
the Utah chapter of the Federal Bar Assn.
Here are six tips she offers after nearly 20 years of
defending officers in federal civil rights/excessive force lawsuits. Note that
some suggestions have to do with your actions before a lawyer is even involved.
AGREE? DISAGREE? Have OTHER LESSONS you've learned the
hard way?
S
end your
comments to: training@forcescience.org.
1. DETAIL YOUR TRAINING. "It's important to educate
your lawyer, in detail, about what you were trained to do, how you were trained
to do it, and why you did it in the circumstances you faced," White says.
"This helps the attorney talk about the 'objective standard' behind your
actions in a way that judges and jurors can understand."
Example: An officer standing with a DUI suspect outside a
pickup truck suddenly performed a foot sweep that tumbled the driver to the
ground. "On the dash-cam video, it looked like the officer just walked up
and dumped the guy," White says.
What the camera didn't show was the offender tensing up
when the officer touched his shoulder, then starting to lurch back toward the
cab. The officer explained, from his training and experience, about the danger
cues of certain body language and the potential risk of the suspect reaching a
weapon inside the truck--concepts the average naive juror wouldn't think of.
"Being able to show that officers are trained to see
and react to things differently from civilians helps jurors accept that in that
situation, they would have done the same thing," White says.
2. DROP YOUR FACADE. "It's very important for judges
and juries to see an officer who has been in a shooting as a human being and
not just a robotic force," White says.
She urges clients to "take off the emotionless
professional facade" and express their feelings to her honestly. "I
want to know how they feel after the act and what emotion went through their
mind just before they shot, when they thought they were about to be separated
from their family forever or realized they were about to take a human
life."
Some are "sad, even weepy," others angry about
having been forced into a him-or-me choice. "Whatever their genuine
emotions, a good attorney can work with it in court to humanize the officer and
counter the media image of cops as people who like guns and like being
aggressive. Digging through the tough mental armor can help build the picture
of an officer who didn't take a necessary decision to shoot lightly."
3. LEAVE WIGGLE ROOM. "When describing your shooting,
in your statement or in testimony, leave a little bit of room for error. This
is critical," White says.
"Rather than being too specific about times,
distances, and other factors that can be measured independently and also
compared to the testimony of other witnesses, its usually best to avoid
absolutes. Forensics may prove you and your certainties wrong.
"When life-threatening events happen as fast and
under as much stress as most shootings, it's usually impossible to register all
details with precision. So it's really more accurate to describe what you
thought you saw or experienced--how things seemed to be from your unique
perspective.
"When you don't lock your attorney into rigid
specifics, you make it easier to introduce human limitations of perception and
memory and to address or avoid potential inconsistencies."
4. THINK AHEAD. Evaluate what you say and do at the scene of
a confrontation in terms of "whether you'd like to see it replayed on a
big screen in a federal court house," White advises.
Example: A woman who had tried to help her husband escape
from police was handcuffed in the back of a patrol car. In conversation with an
officer, she became highly agitated and belligerent, baiting him at one point
by asking: "What are you gonna do, stomp on me?" "No," the officer replied, "I'm gonna
smash you in the face!"
"He was being sarcastic," White explains,
"but what he said was captured on the audio of a back-facing camera."
In court, "this didn't play well to the jury," and gave White as the
officer's attorney a problem of "unprofessional conduct" to deal with
that distracted from the core of the case. "The officer could have prevented that by simply
ignoring her," White says.
5. PROVIDE REAL-TIME COMMENTARY. "If you're not
recording your encounters these days, chances are that someone else is,"
White says. Thus, your communication style becomes indelible and not easily
backpeddled in court.
When circumstances permit, White strongly favors
explaining to subjects why you are instructing or asking them to do things
rather than simply ordering them to comply. "In litigation, this can be
helpful to have recorded," she says. "If you're able to explain as
you go along why you're asking or doing something, it helps the jury understand
your thinking and your actions.
"Of course, don't compromise your safety by talking
when you should be acting immediately. Officer safety is paramount. But when
possible, explaining creates better rapport and tends to give you more
credibility with a jury."
6. NAIL WITNESSES ASAP. "Never underestimate the value
of getting statements from witnesses right away, before they have a chance to
fabricate things to suit their biases," White says. "The sooner you
get even an informal preliminary statement, the less tainted it's likely to
be."
Example: When a long pursuit of a stolen truck through
multiple jurisdictions finally ended in the barnyard of the suspect's own rural
residence, the driver hopped from the cab and started walking toward an open
field. "As officers came after him, he suddenly whirled around in a
shooting stance, with an object in his hand," White recalls. Without
hesitation, two officers fired at the subject and killed him.
"Turned out he was not holding a gun," White
says. "He was pressing a knife against his wrist."
As the smoke cleared, a county officer immediately
approached a man who'd been working on a truck in the yard and asked him what
he'd seen. He wrote down the man's exact words: "I even thought he had a
gun."
The witness was the suspect's brother-in-law. Later when
the family filed a suit claiming that the shooters should have known the
suspect was not brandishing a gun and posed no urgent threat, "the
statement was critical to the jury's determination that the officers were
justified in shooting," White says.
If you're a shooting officer at a scene, your involvement
with witnesses will likely not be practical or desirable. "But
often," she says, "there are other officers present who can readily
take up this important task."
These brief tips are a just few of many that could be
offered. Let us know what you'd like to share about working successfully with
attorneys at: training@forcescience.org
