10 Tips in Case You Are Involved in an Officer-Involved Shooting

BRANDI L. HARPER
Managing Partner
Castillo Harper, APC

In the case of an officer-involved shooting (OIS), it is better to be prepared and to know what to expect. Read these 10 tips so you are ready for the worst-case scenario.

1. Know What Your Department OIS Policy Is

Are you allowed to watch your body cam footage? Does your department conduct its own investigation? Is there a set amount of time prior to you giving a statement? Thoroughly read through your department’s policy, so you have all of the answers before you need them.

2. Be Familiar With Public Safety Statements

Have an understanding of what is required for you to provide as part of a public safety statement after a shooting. A public safety statement is a statement an officer is required to give immediately after being involved in an OIS or other critical incident.

Public safety statements are given to ensure the safety of the public after a critical incident by understanding the direction of fire, and whether or not there are outstanding suspects. Officers should be asked to answer very specific questions. A voluntary statement as to what happened, a rundown of what occurred or the officer’s current state of mind is not to be given at this time.

In Ward v. City of Portland, the court explained, “Public safety information may be immediately coerced without an attorney present if needs are compelling.” An officer does not have the right to remain silent about public safety issues. Due to the immediate need to take action, an officer does not have the right to wait for representation before answering questions limited to public safety issues.

It is very important to remember that an OIS is in fact a criminal investigation. Unlike an administrative matter where a non-lawyer union representative has privileges, an officer involved in a shooting or other critical incident has no privilege of confidentiality with a non-lawyer. Therefore, it is important that all statements made related to the incident, outside of the “public safety statement,” should only be made to a legal representative.

Public safety questions may include the following:

• If you know of anyone who is injured, where are they?
• If there are any outstanding suspects:
  • What is their description?
  • Do you have a suspect vehicle description?
  • What is their direction of travel?
  •  How long have they been gone?
  • For what crime(s) are they wanted?
  • Are they still armed? If so, with what weapon(s)?
• If there is any evidence that needs to be protected, where is it?

3. Immediately Contact Your Attorney

Know what the process is for contacting your attorney if you are involved in an OIS. Some POAs contact legal representation on your behalf; other times, the officer is expected to call LDF directly. If you know this process ahead of time, it will save you time.

4. Only Talk to Your Attorney About the OIS

The only statement that should be given to anyone other than your attorney after an OIS or critical incident is your public safety statement. The public safety statement is given to a supervisor on scene.

5. Conversations With Union Representatives Are Not Privileged

An OIS is considered a criminal investigation. Therefore, any conversations you have with individuals who are not your attorney are not privileged. The only conversations you should be having with your union representative are regarding calling your attorney or about the process, not the facts.

6. Do Not Talk to Anyone Other Than Your Attorney Regarding the Facts Related to the Shooting

This includes information related to the initial call for service or actions taken after the shooting.

7. If You Provide a Statement After Being Involved in an OIS, It Will Be a Voluntary Statement

You will not be read your Miranda rights, nor will you be given a Lybarger admonishment and/or order to talk. Because such a statement is not compelled, it is not required and can also be terminated.

8. Other Agencies May Conduct the Investigation

Most agencies have another agency investigate their OISs. These other agencies are usually the local sheriff’s department or the district attorney’s office.

9. The Initial OIS Investigation Is a Criminal Investigation

There can be an internal affairs investigation related to the OIS after your initial voluntary statement. Therefore, during your voluntary statement, you should not be asked policy questions.

10. If the Suspect Is Unarmed at the Time of the Shooting, the Department of Justice Will Investigate the Shooting Pursuant to SB 1506

Be aware that in a situation in which the DOJ investigates, the investigation may be different than how typical OIS investigations are handled by your department, as the DOJ has different guidelines.

Castillo Harper, APC, is a full-service law firm focusing on the representation of first responders. Our areas of practice include administrative and criminal defense, civil litigation, general counsel, negotiations and family law.