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ToddG
01-23-2012, 02:47 AM
from Force Science News (http://www.forcescience.org/) #195


Should civilian shooters get the same treatment as OIS survivors?

Ray Meyer, a retired sergeant of the California Highway Patrol, emailed this note to Force Science News:

Don't jump to conclusions on what I believe, but here's a question. We always treat the officer involved in an OIS as if it's a good shooting. Assume a citizen involved in a shooting has a concealed firearms carry permit or was acting in self-defense on his own property and based on his initial statement and initial review of the evidence the shooting appears justified.

What would you do if the citizen says he'll give you his firearm when he gets another one on and he tells you he will provide a full statement after he gets 2 sleep cycles and has his attorney present?

Do you give him a ride home to change clothes before taking him to the station for questioning and/or letting the press see him? Whatever you do for an OIS, would you do the same for a legally armed citizen? Is a team like an OIS team assigned, or are the on-call homicide detective and the standard CSI crew used? Should we care when a citizen with a concealed firearm carry permit is involved in a self-defense or threat-to-life shooting?

Retired after 32 years in law enforcement, I am authorized to carry a concealed firearm and I have a non-resident permit from the state where my daughter's family lives. So I'm curious about how I will be treated.

Dr. Bill Lewinski, executive director of the Force Science Institute, offers this response:

A legally armed civilian and a sworn peace officer are not comparable in the context of a shooting situation.

An officer is acting under the color of law and is generally performing his assigned role as society's representative when a shooting occurs and will likely continue in that role in some format after the shooting - subsequently the replacement of a professional instrument that is a required tool of the job. Further, as part of his selection process, he has been assessed on the basis of background checks, mental health and fitness evaluations, and training. His job performance is supervised and evaluated. He has a track record that is known to his department. He operates under a special duty and special regulations.

A civilian or retired law enforcement officer, even if legally armed, is likely not acting under color of law and may be an unknown entity to the investigating agency. In both cases, the shooting must be thoroughly and fairly investigated. But where an on duty officer is involved, a more specialized investigation is likely to be appropriate.

Because of the probability that it will be involved in a civil lawsuit, the department has a particular interest in the nature of an OIS investigation, apart from concerns about criminal violations. There may be Garrity issues, union and policy matters, media and community perceptions, and training considerations that don't apply to civilian actors.

Are officers really treated with the special sensitivity that Sgt. Meyer suggests?

They should be, because of their special status. But unfortunately, they still are not in many jurisdictions, given the same level of consideration of a citizen. To get rest, shower, change clothing and legal consultation prior to giving a statement, for example, all a civilian needs to do is invoke his Miranda rights. The citizen, if they choose, could come back sometime later with their attorney and give a formal statement. For officers on many agencies who feel they are trapped in a pressurized and coercive environment after a shooting, that would be a procedural improvement!

preemptory warning: Do not turn this into an LE-bashing thread. Bill Lewinski does not speak for all LE and it was a retired cop who raised the concern in the first place.

Personally, I'm most troubled by the general tone from Lewinski. I read it as, "we should assume the officer did right until proven wrong, but the private citizen is an unknown and should be treated like a criminal suspect from the get go." I'm not sure of Mr. Lewinski's background, but it would appear it didn't include learning about the whole innocent until proven guilty thing.

There is a lot to learn from OIS procedures about how people react to stress and death, and that's relevant regardless of your occupation.

Lon
01-23-2012, 07:05 AM
They should absolutely be treated the same. When I teach CCW classes, I tell my students how and more importantly WHY OIS are handled the way they are. Lewinsky has done a lot of good things regarding the whole Force Science topic, but he's gone full retard with this.

rsa-otc
01-23-2012, 07:30 AM
Civilians should be treated basically the same. Lets face it things like, their not going to give me another gun when they take mine for forensic analysis and I'm not riding in the Front seat of the patrol car on the way home. But the basics of letting you sleep, and how they interview you will come about. It's just good investigative work to achieve a JUST end.

It's coming but it wil take time as the nation gets use to an armed citizenry. Let's face it, not all OISs are treated in the manner Force Science lays out yet. A lot of it depends on the political climate and the laws there in.

KeeFus
01-23-2012, 07:54 AM
To start with not all shootings by LEO are righteous...and LEO's are not given the benefit of the doubt...at least not where I'm from.

In my experience, which includes one shooting I was involved in & being on-scene after two other shootings. I was disarmed by the IA Captain before I ever left the scene and was not provided with another weapon...no worries I have others. The other shootings I was privy too the officers were also disarmed on-scene and not allowed to change clothes or go home. I'm quite sure they were advised of Garrity within hours of the shooting. I was escorted by a Detective and watched like a hawk until the State got there...so were they. I was not afforded an opportunity to go home to change clothes. I was read Garrity within two hours of the shoooting and asked to provide a statement. For those of you not familiar with Garrity (http://www.njlawman.com/garrity.htm) you should really read up on it.

I copied this one part of what TLG posted because it is applicable to me. "feel they are trapped in a pressurized and coercive environment after a shooting..."

I was told after my IA interview that the State wanted to interview me and I said no. I was then told "We don't need to burn bridges" so why don't you talk to them. Pfft! My initial interview went something like this: I walked in (in a uniform covered in glass and spotted with my blood) and he introduced himself. I told him I wasn't prepared to make a statement and asked if I could leave. He said I could so I did. He never took custody of the uniform (which I still have). Had he wanted it I would have stripped down to my underwear and given it to him. Miranda was never advised that night. Two or three days later with an attorney present I provided a statement...after Miranda. For the next 2 months I was literally treated like I had leprosy by the admin of that agency. ONLY when the DA issued the final findings did things return to normal for me. Would a citizen be provided the same in my jurisdiction? Yes. I've seen it play out just like that...minus the Garrity.

Having been treated like a 'suspect' in my situation I can fully understand the need of a citizen to want to share their side of the story. I would caution them to say only enough to establish that the guy they shot was the suspect (read:aggressor) and STFU! If you hand over your gun at the scene then so be it. If they want something they perceive as evidence then let them have it.

While situations may exist in jurisdictions where a LEO is given that benefit it is not my experience. For him (Lewinski) to suggest that is a bit outside the box for me...and where I'm from.

TCinVA
01-23-2012, 08:20 AM
Whether it's proper or not, the fact that most law enforcement officers will receive the benefit of the doubt (even if only in the mind of responding officers or the public) and other "special" treatment as negotiated by union contract or to settle lawsuits isn't likely to be extended to the "average" citizen.

Thankfully for the "average" citizen, I think research would prove that most of the shootings where an "average" citizen is involved tend to be fairly clear cut. Not far from me recently an individual with an airsoft gun was running around threatening people with it. The first group of people he threatened called 911. While the police were en route looking for him, he picked out another victim...only this one had a real gun and shot him. Legal repercussions? Nothing much.

Police do face a bit more ambiguity in the use of force because of the nature of their jobs. Acting under the color of law with a duty to arrest does change the picture somewhat...but the notion that it's utterly incomparable to what the average citizen faces is the statement of somebody who looks at the world through blue lenses...as is evidenced by the question being brought up by the former police officer. His tour of duty may be over, but the possibility that he may have to use a firearm to defend himself from a random punk or from one he put away at some point is still there. Only now he's realizing he doesn't necessarily get the benefit of the doubt anymore. Certainly not every officer benefits from such progressive policies as immediately issuing the officer another weapon or being allowed to sleep/eat/rehydrate before investigators are all over him/her for a statement. But we all know that police unions frequently push for those measures because of the stress that a life or death situation places on officers. If someone was used to that as a part of their job and it goes away when they hand their badge in for the last time, it can certainly cause concern.

Put me down as "The Force Science Institute is **CENSORED** myopic about this one."

Being involved in a shooting is a stressful event, period. It's no less stressful for an average joe than it is for a police officer. FSI has gone to great lengths to talk about the stress that a shooting places on a police officer, especially the aftermath and has mentioned how it's important that they be treated properly to avoid problems down the road. Well, the same should apply to the average joe who was minding his own business when set upon by some third striker. Yes, the police need to investigate thoroughly...just as they need to investigate an OIS thoroughly. No, it's probably not practical for them to hand the average joe another gun on scene.

Thankfully I believe most police officers are inclined to be quite sympathetic to an average joe who defended themselves against a criminal aggressor. I've been in contact with a number of folks who have been forced to defend themselves and generally they report that the responding officers and investigators treated them like the "good guy" in the situation. I also know police officers who have been treated like the bad guy in the aftermath of a shooting. It all really boils down to the circumstances, including the personalities involved in the investigation.

JDM
01-23-2012, 08:30 AM
I'm of the opinion that all self defense shooters should be handled the same way. If Officer BOM shoots someone, he should be treated the same ways as Deputy BOM and citizen BOM. As KeeFus mentioned, not all cops are good, and not all police shoots are good-likewise private citizens. However, an individual with a valid CCW, involved in a clearly SD case should be given every courtesy that a police officer would be given in the same situation.

Police officers have very different jobs than regular people, but when it comes down to trigger pulling, the reasons, at least as far as I can tell, are nearly always the same. The citizen/officer felt their life or someone else's was in immediate peril, and no other recourse was available, so shots were fired.

SLG
01-23-2012, 09:13 AM
The only difference I see between a civi and a cop is that the cop is voluntarily putting his life at risk to benefit the community. He should be treated accordingly. That does not mean a night and day difference in treatment, but you would expect a professional to be treated differently than an amateur in every other field, why not this one?

KeeFus
01-23-2012, 09:21 AM
The only difference I see between a civi and a cop is that the cop is voluntarily putting his life at risk to benefit the community. He should be treated accordingly. That does not mean a night and day difference in treatment, but you would expect a professional to be treated differently than an amateur in every other field, why not this one?

Perceptions & politics...

VolGrad
01-23-2012, 09:34 AM
I am guessing how a civi is treated vs a LEO is way dependent on the local jurisdiction in which an event occurs. In the town where I live I have read of several civi involved shootings where there wasn't much question about the shoot being good or not. It seemed pretty clear and I don't think the civi shooter went through much inconvenience as a result of the investigation that followed. In the juristdiction where the Chief works I suspect they would hand the civi shooter their own back-up weapon (IF they confiscated the shooter's weapon at all) and a box of ammo. I know of one instance for sure where a citizen had to retreive a weapon after seeing a fugitive in her yard and the Sheriff retrieved a box of ammo from his vehicle for the citizen because she was low/out.

In neighboring ATL I suspect a civi shooter would be looked at really closely and treated more like a suspect.

Now, what I have most issue with is the following comment ....


To get rest, shower, change clothing and legal consultation prior to giving a statement, for example, all a civilian needs to do is invoke his Miranda rights. The citizen, if they choose, could come back sometime later with their attorney and give a formal statement.

Is it really that easy? Again, dependent on locale but I suspect in most places you would likely not get to released on the spot with an invitation to come back and talk at a later date. I suspect you'd be put in an interview room with a cup of bad coffee while you waited for your attorney.

ford.304
01-23-2012, 10:25 AM
I think that the only benefit of the doubt that an officer should receive is that, if another officer comes on them immediately following the act of shooting someone, with no context, they should assume that he isn't going to turn and shoot them, too. If a cop car pulls up right after I shoot a guy for trying to rob me, with no context, I will in no way blame them for keeping me covered or telling me to drop the gun.

Once basic context has been established - ie, that I am submitting myself willingly and making a claim of lawful self defense - the treatment should be exactly the same for citizens and officers. And I do believe that the work done by the FSI shows how officers *should* be treated -- how everyone should be treated. I have always appreciated their research on what is reasonable to expect from lawful shootings - they've smashed many of the myths about justifiable shootings. It boggles my mind that they appear to have meant those findings to only apply to cops.

jlw
01-23-2012, 10:36 AM
Please Note: There are 17,000+ law enforcement agencies in the U.S. There are 50 states each with their own laws. There are federal guidelines involving the use of deadly force that govern all LEOs, but there are differences in state law, and we don't all follow the same procedures.

Two sleep cycles? That may be a written procedure wherever the author was a cop, but is certainly isn't universal.

Also, not all agencies are governed by union contract.

ford.304
01-23-2012, 10:52 AM
Please Note: There are 17,000+ law enforcement agencies in the U.S. There are 50 states each with their own laws. There are federal guidelines involving the use of deadly force that govern all LEOs, but there are differences in state law, and we don't all follow the same procedures.

Two sleep cycles? That may be a written procedure wherever the author was a cop, but is certainly isn't universal.

Also, not all agencies are governed by union contract.

I do think that the article was largely talking about the specific recommendations made by the Force Science Institute on how law enforcement agencies *should* handle officer involved shootings.

JodyH
01-23-2012, 11:00 AM
I'd be interested to hear FSI's (Lewinski in particular) take on off-duty LEO self defense shooting procedures.
Especially those where the officer is outside his jurisdiction and acting wholly as a civilian.

Sent from my MB860 using Tapatalk

jlw
01-23-2012, 11:28 AM
I do think that the article was largely talking about the specific recommendations made by the Force Science Institute on how law enforcement agencies *should* handle officer involved shootings.

I understand that, but it makes some presumptions about the way agencies handle OIS that are not universal. Keefus related his account that disputes the presumption put forth by the author. VolGrad related incidents of which he has knowledge that refute these presumptions, and I know that is account is accurate because I saw it happen with my own eyes.

My own personal experience in OIS incidents runs and my own personal experience in investigating shootings by citizens do not fall in line with what the author is presenting.

It just ain't so; at least not universally.

Bob Hostetter
01-23-2012, 02:22 PM
"after he gets another firearm and after he get 2 sleep cycles and has his attorney present"

The civilian shooter should have to turn over the firearm used in the shooting for evidence and CSI type testing. For any one of several different reasons (including officer safety) allowing the civilian to rearm him/herself at the crime scene would probably be prevented.

Unlike the officer the civilian certainly has the right to refuse to offer a statement, with or without an explaination as to why. Regardless of the explaination, the dept will probably have specific procedures as to the decision to place the individual involved into custody. If not the Detectives would probably be looked to to provide a recommendation and the lack of willingness to make a statement would probably not enhance your chances of going home that night but it shouldn't be the sole factor used in making that decision

VolGrad
01-23-2012, 02:26 PM
My own personal experience in OIS incidents runs and my own personal experience in investigating shootings by citizens do not fall in line with what the author is presenting.
I hope to never EVER have to pull the trigger on someone. However, if I do I sure hope it's in the OC. ;)

I honestly believe citizens get the fairest shake possible by your agency. Even if I didn't count you and the Sheriff as personal friends I believe this to be true based on what I read in the local newsrag. More people should be so lucky.

jetfire
01-23-2012, 02:30 PM
In a previous jurisdiction in which I lived, civilians that drilled someone in self-defense were actually generally afforded more of the benefit of the doubt than LEOs that shot someone in the line of duty. I can recall through the haze of memory more than a few home defense shootings where the general PD reaction was "SOB had it coming, have a good night citizen".

ToddG
01-23-2012, 04:05 PM
I guess my take on all this is a bit different:

Force Science is creating a laundry list of policies and procedures that should be followed after an LEO is involved in a shooting. The policies and procedures are set up to give the officer the greatest possible chance of relaying proper detailed information (rather than splotchy stress-confounded memories) as well as giving the officer the greatest chance of surviving the aftermath emotionally and psychologically. Their whole point is that they claim to have proof that failing to follow these procedures is both bad for the fact-finder and bad for the officer who just survived an OIS.

As such, it is safe to say that failing to utilize those procedures -- regardless of whether you're a LEO -- after surviving a gunfight places both the judicial outcome and the individual's personal health at greater risk.

VolGrad
01-23-2012, 04:28 PM
I don't think you are too far off Todd. I don't have an issue with a LEO getting to cool his jets before a de-brief, etc. I do think though some info is prob best collected while it is still super fresh in his mind. Specifically, what was he thinking right then .... right as he decided to pull the trigger. I'm not talking about a 4 hr interview .... just a quick statement.

Now, as a civilian/citizen I feel we should also be afforded that same opportunity without being immediately treated as a suspect/perp. This is of course dependent on the initial evidence showing nothing that appears fishy right off the bat.

I have a bit of an issue with this statement ..


An officer is acting under the color of law and is generally performing his assigned role as society's representative when a shooting occurs and will likely continue in that role in some format after the shooting - subsequently the replacement of a professional instrument that is a required tool of the job. Further, as part of his selection process, he has been assessed on the basis of background checks, mental health and fitness evaluations, and training. His job performance is supervised and evaluated. He has a track record that is known to his department. He operates under a special duty and special regulations.

A civilian or retired law enforcement officer, even if legally armed, is likely not acting under color of law and may be an unknown entity to the investigating agency.

I get the comparison he is trying to make. I do. However, just because a civilian/citizen isn't on the payroll it doesn't automatically mean we are assumed to not be operating under the color of the law .... whatever that means. My ignorant reading inpterprets that as we are likely acting outside the limits of the law. That in itself inplies we are guilty until proven innocent. Besides, many states do require training as part of their carry license and I assume ALL require a background check, right? It's not apples to apples comparison between civilian/citizen but it's also not apples to telephones.

SLG
01-23-2012, 06:04 PM
I don't think you are too far off Todd. I don't have an issue with a LEO getting to cool his jets before a de-brief, etc. I do think though some info is prob best collected while it is still super fresh in his mind. Specifically, what was he thinking right then .... right as he decided to pull the trigger. I'm not talking about a 4 hr interview .... just a quick statement.

Now, as a civilian/citizen I feel we should also be afforded that same opportunity without being immediately treated as a suspect/perp. This is of course dependent on the initial evidence showing nothing that appears fishy right off the bat.

I have a bit of an issue with this statement ..



I get the comparison he is trying to make. I do. However, just because a civilian/citizen isn't on the payroll it doesn't automatically mean we are assumed to not be operating under the color of the law .... whatever that means. My ignorant reading inpterprets that as we are likely acting outside the limits of the law. That in itself inplies we are guilty until proven innocent. Besides, many states do require training as part of their carry license and I assume ALL require a background check, right? It's not apples to apples comparison between civilian/citizen but it's also not apples to telephones.

My law may be a bit rusty, but the way it was explained to me many years ago was that a cop is acting under color of law, and is therefore given the benefit of the doubt. A civilian who shoots someone has broken the law, absolutely. An affirmative defense may make that legal violation acceptable, but the act itself is still illegal at face value. Maybe a lawyer with experience in this area can clear that up, but that's what I remember from my academy legal training.

Bob Hostetter
01-23-2012, 07:15 PM
Actually anyone who willfully takes the life of another has committed a homicide, regardless if they are a LEO or civilian. The determination that needs to be made is if it was justified or if there is criminal liability.

WDW
01-23-2012, 07:45 PM
With an OIS, since they have been taught EOF and are acting as an agent of the government, it should be preliminarily assumed that they followed all proper protocol and a thorough investigation should confirm or contradict this.

With a civilian, since they were not necessarily trained in EOF or acting as an agent of the gov't, they should be investigated unbiasedly but the initial assumption of acting correctly should not be present.

In the end, both actions will be judged based on the findings on the investigation and if you follow the self defense laws of your state, answer no questions without credible counsel present, and fully cooperate with LE, you should have no problem.

jlw
01-23-2012, 07:58 PM
My law may be a bit rusty, but the way it was explained to me many years ago was that a cop is acting under color of law, and is therefore given the benefit of the doubt. A civilian who shoots someone has broken the law, absolutely. An affirmative defense may make that legal violation acceptable, but the act itself is still illegal at face value. Maybe a lawyer with experience in this area can clear that up, but that's what I remember from my academy legal training.

No, not at all, at least not in GA. Our state law on use of deadly force is the same for citizens and peace officers. Furthermore, the "color of law" brings the federal civil rights issues into play. They would only come into play for a non-color of law shooting if it was part of a conspiracy to deprive a person of their civil rights.

In the uses of force that I have investigated, the central question has always been whether or not the force was justified and not whether or not the person has a badge.

Noleshooter
01-23-2012, 11:39 PM
The only difference I see between a civi and a cop is that the cop is voluntarily putting his life at risk to benefit the community. He should be treated accordingly. That does not mean a night and day difference in treatment, but you would expect a professional to be treated differently than an amateur in every other field, why not this one?

One significant difference is that a LEO is required to use force as part of his/her job. If a some guy is acting crazy on a street corner the officer is obligated to go out of his way to act. A non-LEo is not required and has the luxury of making a choice.

In that context, I can understand having a somewhat more lenient process for LEO.

Surf
01-24-2012, 01:05 AM
I wish it was at least the same standard here. Of course I have seen numerous civilian based investigations and been on the receiving end of things from this side. I will say that in a large major metro city, the Officers around here are scrutinized much more in an investigation and more resources are put into an LEO investigation than a civilian one. Talk about being made to feel like a criminal, not to mention it is almost a given that you will be wrapped up in a lengthy suit to follow. Gotta love those little chats with the shrink. Funny because my last involvement despite being a shrink he was the most rational person of the bunch and he is a civilian. Go figure.

TCinVA
01-24-2012, 08:06 AM
I wish it was at least the same standard here. Of course I have seen numerous civilian based investigations and been on the receiving end of things from this side. I will say that in a large major metro city, the Officers around here are scrutinized much more in an investigation and more resources are put into an LEO investigation than a civilian one.


And a good chunk of that explanation is simply money and politics. When the police shoot somebody (or use any other type of force) it's the action of a government agent and that instantly brings up the question of whether or not the shootee's constitutional rights were violated by the officer's use of force. On top of that, there's the money issue. An OIS has a fairly high chance of ending up in some sort of civil litigation if for no other reason than the fact that government agencies have money. It wouldn't surprise me in the least to find out that there are many officers who have gone through a soul-crushing post-shooting investigation while having observed ordinary citizens do little more than make a brief statement to some detectives and then be sent on their way no worse for the wear. In many areas an OIS has to go in front of a grand jury as a matter of policy while an ordinary citizen may never have to darken the door of a courtroom.

There's a lot of incentive to make sure that all the i's are dotted and the t's crossed in the investigation of an OIS because of the higher level of scrutiny that the police officer is likely to face. When an officer pulls the trigger, the department has to play COA (cover our a$$) even if the guy who got shot happened to be trying to eat a baby in the seconds before the bullets struck him. When a police officer uses force the department's entire UOF continuum, ongoing training curriculum, qualification standards, are now potential points of litigation...as is the officer's history and any supplemental training. Just as an example of how silly it can get, I know of SWAT teams that actually maintain a library of targets used for qualification and to confirm zero on the optics of their weapons because that's been raised as an issue in a shooting in the past. Somewhere a department had to go through the expense of building a room and filling it with filing cabinets so they could keep zero targets for a fairly large SWAT team on hand for when they get sued for shooting a crackhead that was shooting at them with an SKS.

With all of that on the line it's little wonder that advocates for the police officer (like the Force Science Institute) push for some guidelines to try and make sure the officer gets a fair shake. Especially since good officers who did their job as best they could ended up being thrown under the bus by their department when the result turned out to be politically inconvenient. There's nothing wrong with FSI's positions on how an officer should be treated in the aftermath of a shooting, IMO.

Where they miss the mark is by adopting the rather absurd argument that all the stuff they've done researching stress and the impact of the investigation on a police officer is not applicable to a shooting by an average guy on the street. It's perilously close to that "only cops should have guns" nonsense. As Todd said, if they're making the argument that this list of procedures and practices produces the best outcome in terms of determining the truth of what happened and ensuring that the innocent aren't unduly punished, it's ridiculous to argue that it should only be applied to police use of force.

Mitchell, Esq.
01-24-2012, 08:11 AM
Actually anyone who willfully takes the life of another has committed a homicide, regardless if they are a LEO or civilian. The determination that needs to be made is if it was justified or if there is criminal liability.

Nicely stated.

jthhapkido
01-24-2012, 11:17 AM
[snip]
With all of that on the line it's little wonder that advocates for the police officer (like the Force Science Institute) push for some guidelines to try and make sure the officer gets a fair shake. Especially since good officers who did their job as best they could ended up being thrown under the bus by their department when the result turned out to be politically inconvenient. There's nothing wrong with FSI's positions on how an officer should be treated in the aftermath of a shooting, IMO.

Where they miss the mark is by adopting the rather absurd argument that all the stuff they've done researching stress and the impact of the investigation on a police officer is not applicable to a shooting by an average guy on the street. It's perilously close to that "only cops should have guns" nonsense. As Todd said, if they're making the argument that this list of procedures and practices produces the best outcome in terms of determining the truth of what happened and ensuring that the innocent aren't unduly punished, it's ridiculous to argue that it should only be applied to police use of force.

Exactly.

Reading through this thread, there seems to often be a "them or us" mentality, or "they have it easier" or "we have it hard" set of comments. (Read back---dropping each post down to basics, almost all of them sum up to one of the choices in the previous sentence.) Should they all instead ask "why aren't these equal?"

What TC said is solid---our legal system is based on the "innocent until proven guilty" concept (whether or not it works that way in actuality, that is the concept at least). As such, any person involved in a shooting should be treated in such a way that there is a maximum possibility that the truth will actually come out.

If that means time to breathe, let the adrenaline go down, regain some composure, etc---then that should be true for everyone. (Hey, let's tie this into the "after a shooting, SHUT UP" thread.)

Studies have shown directly that stress affects what you say and do (duh!) such that what you babble to the police after a shooting (whether YOU are a cop or not) may actually bear no resemblance to reality. (Which is why various versions of "SHUT UP!" keep getting told to CCW folks.)

Given that (plus all the other things we know about stress situation aftermath) it makes sense that indeed, people should be given the maximum ability to tell the truth correctly. The idea that there is any particular subset of people who should be treated differently is not only illogical (based on our justice system) but just plain stupid.

I am fully aware that reality, in all its myriad aspects, makes this not only unlikely but extremely improbable. LEOs (and their departments) under scrutiny _will_ be sued by the families of scumbags (and by the rare-but-occasional family of innocents) and so departments have to protect themselves. Non-LEO scumbags will use any time/space they are given to attempt to cover themselves. (Hm. True for the rare-but-occasional LEO scumbag, though those occur _much_ less often.)

Because of all that, plus aspects of "well, LEOs put their lives on the line so we should treat them differently" or "LEOs have already passed numerous Good People tests, so they should be treated differently"---having everyone be treated equally is highly unlikely. (If not impossible.) That doesn't change the fact that if the point is reaching the truth, then it should all be done the same.

[sigh] I am aware that "the truth" is not the point of most justice systems.

Oh----since, in general, the propensity of CCW-permit carrying individuals is to commit less crime than LEOs*, doesn't that mean that they should receive the benefit of the doubt much more often? If not (and I don't think they should either) doesn't that actually mean that LEOs shouldn't get the benefit of the doubt more often than non-LEOs either? :)

Should everyone be given the same chance to correctly tell the truth, and be covered by the law?


------------
*Stats comparing felonies of CCW-permit folks to LEO folks show that CCW-permit folks commit less crime. In both cases, though, the number of people who commit crime are tiny but non-zero.

Ray Keith
01-24-2012, 04:38 PM
Should everyone be given the same chance to correctly tell the truth, and be covered by the law?


I don't disagree but shouldn't this apply beyond the world of shootings?

Surf
01-25-2012, 02:58 AM
Just to clarify, at least for my area / experiences, I don't agree that perhaps LEO's have it better in such an incident. I am not really bothered by this thread, so anyone reading please don't take it that way, but I would like to offer only my opinion on what I have viewed.

I will note that I am "that guy" you described above (or one of those guys) that collects and keeps training records etc, and is called on occasion to give opinion / testimony during investigation, deposition and in court in relation to use of force, policy / procedure, training, quals etc, especially in regards to when someone in my unit is involved as my hand tends to have a big part in writing much these things. But I have also been on the receiving end of that process on more than one occasion, so I understand the various angles and "why's" of it from an agency / City standpoint. Having said that, I will say that for my area, I would almost rather be a civilian going through the process, so I generally disagree about the disparity in treatment from LEO to civilian. I know that most are going after the "deep pocket" so to speak and "indemnified" is a big player in the game, but in general I think that LEO's around here are not given as good of treatment as a civilian, all the way from the agency, to the prosecutors office, to the City corporation counsel, to the courts. We know that even if we shoot someone eating a baby alive, we are going to go through the wringer and the even in this instance perhaps clear cut scenario the words "justified" and "indemnified" might feel hollow to that lone LEO purely based on the past history of the agency, City, prosecutor and courts. The agency is often more concerned about crossing the "T's" and dotting the "i's" when it is in relation to the agencies duties / obligations / liabilities as opposed the the individual Officer's actions in falling in line.

Sucks having your life put on hold for several years at a time no matter how right you are. I have had litigation go for as long as 7 years. Filed just before the 2 year cut off and the rest lasted 5 additional years. Indemnified means something but stress, financial uncertainty, hiring your own attorney to assist because the City attorneys are not really the guys you want sitting first chair, time for hearings, depositions etc, etc, taking away from your quality of life at home is grueling. Even being found 100% correct, you can't get all that stress back. Myself and most other LEO's are not asking for anything special and signed up for the job. I still continue to do what is correct in my job and will not hesitate to perform in what I feel is the correct manner. Many going through similar experiences however might second guess themselves in the future, not out of being correct, but because they do not want to go through the BS again. This can lead to tragedy. But perhaps this is another issue. Again I signed up for it and don't want to do anything else and don't ask for anything special in treatment. I live my life in and perform my job in a manner that myself and family will always take pride in without shame, regret or remorse. All the suits be damned. I do however get a bit put off when some people think LEO's get special treatment. They may in some places, but that is nothing along the lines of what I have personally seen / experienced over the last 23 years and just from my perspective / experience the treatment is more harsh for the LEO's. Nothing sucks more than a team mate saying (after your ears stop ringing) here we go again.....Funny, how that becomes the first thing you think about, right after checking yourself for holes.

KeeFus
01-25-2012, 07:56 AM
Well stated Surf! I'd echo everything you said, especially the law suits! That's the first thing I thought of after I checked myself...and honestly, that's the saddest part.

Mitchell, Esq.
01-25-2012, 08:57 AM
This entire issue seems to be a case of "The grass is greener on the others side!" but it is, in reality, only so because the septic tank broke on that side of the fence...and you don't get to see it till you are sitting in it.

Officers see the citizen who pulled the trigger go through what they view as a brief but fair investigation, having the right to remain silent and have an attorney at their will, having the detectives tell them they did fine and that yeah, the DA will review it, but since the DA hated that guy he just shot, he should hear within a week or so that it's kosher, and he can pick up his weapon at that time...in the meantime, he should get a new one.

They don't see from the citizen's point of view that he just survived a fight to the death, and is now caught in a system he doesn't really understand all that well, and is forced to hire a mercenary to protect him from the colossal government who says he'll be fine...but who knows what that means...and is forced to shell out a fuck-ton of cash for doing exactly the right thing, and may have an uncertain future because he knows the "liberal DA who wants to get reelected" is gonna fry him.

On the flip side...

Citizen's see a OIS aftermath as the cops covering their brother, no matter what he did. The cop gets a new gun right at the scene or shortly afterwards. He gets a union rep and a lawyer. The people investigating the shooting know him, and will say "OK, what happened...and how are we gonna write this..." to make sure he's covered. He gets time off from work, he get's to decompress before telling his side of the story...and he also knows exactly what to say, and probably knows the guy he's saying it too. Seriously, it's a lock for him to come out golden.

What a citizen doesn't see is the officer being told he has to make a statement or loose his job, comply with the OIS investigation, has a lawyer who has "Other Interests" to consider which may not be the cop's interests...and he has to hire an attorney (which he loathes...) to protect himself from other lawyers...and knows he's going to be thrown to the wolves because the OIS team reports to the Justice Department and Holder has been looking for something to chew on, and he looks tasty.


Everyone gets the shit end of the stick.

It's just that each side gets different shit.

mpd046
01-25-2012, 09:05 AM
I don't think the two can be treated the same. The two groups fall under different rules.

Citizens fall under the 5th and 6th amendments. They can invoke those rights at anytime. This mean they can get as many sleeps cycles and talk to as many lawyers as they want before talking to police. Nobody can force a citizen to talk, and the citizen can initiate talking to authorities when they choose to.

Police officers acting as government agents fall under the Garrity warning. They can be compelled to talk as a condition of their employment. Basically they have to talk or they lose their jobs.



Matt

jthhapkido
01-25-2012, 10:05 AM
I don't think the two can be treated the same. The two groups fall under different rules.


The point goes back to: Since we have empirical research showing directly that various things (such as the stress of having to shoot someone who was trying to kill you) affect you in adverse ways, shouldn't they both indeed be treated the same to enable both the best chance to tell the truth?

Mitchell had it spot-on, I think---in that both sides generally see (and remember) how the "other side had it easy" even though NEITHER side had it easy.

I just find it interesting that really, neither side gets treated in a way that (according to research) will most likely result in the best outcome to innocent people.

(On a side note: what are the chances that a citizen invoking their 5th amendment rights will spend the night in the holding cell with all the other fun occupants, as has been said by LEOs in the "shut up!" thread? This isn't that big of a deal by itself, really, except it rather adds to the trauma that most people experience in the aftermath of a shooting. Oddly enough, most people really _don't_ have much experience with that sort of thing.)

JodyH
01-25-2012, 10:24 AM
I don't think the two can be treated the same. The two groups fall under different rules.

Citizens fall under the 5th and 6th amendments. They can invoke those rights at anytime. This mean they can get as many sleeps cycles and talk to as many lawyers as they want before talking to police. Nobody can force a citizen to talk, and the citizen can initiate talking to authorities when they choose to.

Police officers acting as government agents fall under the Garrity warning. They can be compelled to talk as a condition of their employment. Basically they have to talk or they lose their jobs.



Matt

And a citizen who invokes his right to remain silent will feel compelled to talk or else possibly sit in jail for who knows how long, and more than likely lose his job.
The detective or DA saying "let's run down to the station and we can get this all cleared up tonight, or you can talk to a lawyer first but we're going to have to keep you in jail until we can schedule an interview." That can be a persuasive argument to a guy with a family to feed and a job to lose.


Sent from my MB860 using Tapatalk

Mitchell, Esq.
01-25-2012, 10:54 AM
And a citizen who invokes his right to remain silent will feel compelled to talk or else possibly sit in jail for who knows how long, and more than likely lose his job.
The detective or DA saying "let's run down to the station and we can get this all cleared up tonight, or you can talk to a lawyer first but we're going to have to keep you in jail until we can schedule an interview." That can be a persuasive argument to a guy with a family to feed and a job to lose.

Sent from my MB860 using Tapatalk

Too many instructors have been teaching "Their is problem #1 THE FIGHT and #2 EVERYTHING ELSE!"

Just because nobody is actively shooting at you, doesn't meant the fight is over...but you can't sell that to a class as well as the fun stuff.

Too many people treat shooting and self defense like its a game or mastubatory experience. No committment to understanding what is going on in the entire situation or seeing it through in training to the end.

The mentality reminds me of people I see in Child Support hearings. They were ready to screw, but not ready to make sure they didn't have a child, and now they have one, someone doesn't want to have the responsibility for the kid.

When the shooting stops, the tac-load is complete and someone's called 911 and done the "Ayoob Statement" that they learned from you-tube (No, I don't want to get into it here...but their is a lot of difference between someone saying it who's sat through the class and someone who watched it on you-tube...) they need to understand it's just the begining.

Cops do have it easier in at least one way that is very important - They know what is coming.

The shooting stops, procedures are followed and they may be humiliating, intimidating and demeaning as all hell...
But the cop knows what is happening and why it is happening.

In my SD & The Law material I went into post shooting stuff like being held, bail, conditions of release and the court process because if you don't have a clue what is coming it's like getting hit by a freight train.

jlw
01-25-2012, 12:19 PM
I don't think the two can be treated the same. The two groups fall under different rules.

Citizens fall under the 5th and 6th amendments. They can invoke those rights at anytime. This mean they can get as many sleeps cycles and talk to as many lawyers as they want before talking to police. Nobody can force a citizen to talk, and the citizen can initiate talking to authorities when they choose to.

Police officers acting as government agents fall under the Garrity warning. They can be compelled to talk as a condition of their employment. Basically they have to talk or they lose their jobs.



Matt

Theoretically, anything said under Garritty can't be used against you criminally.

LtDave
01-25-2012, 09:58 PM
Theoretically.
The DA in my jurisdiction always requested a copy of the officer's compelled statement.

jlw
01-25-2012, 10:16 PM
Theoretically.
The DA in my jurisdiction always requested a copy of the officer's compelled statement.


The reason that I termed it as "theoretically" in that I recognized the possibility that there would be unethical behavior from time to time. I hope the brass in your agency told him to pound sand. If the defense could show that the prosecution was using info obtained under Garrity all of that evidence should be suppressed.

ToddG
01-25-2012, 10:26 PM
The DA in my jurisdiction always requested a copy of the officer's compelled statement.

He must have been absent the day they taught the phrase fruit of the poisoned tree in law school.

eta: jlw beat me to it!

Mitchell, Esq.
01-26-2012, 11:54 AM
He must have been absent the day they taught the phrase fruit of the poisoned tree in law school.

eta: jlw beat me to it!

Stop with the 5th amendment stuff, will you?

We are trying to run a court here!

bcauz3y
01-26-2012, 12:09 PM
I would expect this decision should be made based on the circumstances at hand, but that doesn't scale well.

One of the challenges with treating a defensive shoot the same as an OIS is that there are (for the most part) clear cut lines already drawn. We know who the officer is, and we know who the purported bad guy is.

While I would prefer to treat civilian defence shoots as 'good by default', that would leave some avenues open to criminals because whatever system of determination used to identify the 'good guy' in a shooting could be abused.

Hope that makes sense.

HCM
01-26-2012, 01:40 PM
I would expect this decision should be made based on the circumstances at hand, but that doesn't scale well.

One of the challenges with treating a defensive shoot the same as an OIS is that there are (for the most part) clear cut lines already drawn. We know who the officer is, and we know who the purported bad guy is.

While I would prefer to treat civilian defence shoots as 'good by default', that would leave some avenues open to criminals because whatever system of determination used to identify the 'good guy' in a shooting could be abused.

Hope that makes sense.

Well said. I support 2nd Amendment, CCW, self-defense rights 100 % and I disagree with the Force Science Research Center on this issue, However, as bcauz3y states so well, there can be more grey areas requiring clarification in civilian shootings.

Does having a CCW/CHL/ FOID card etc. support the assumption that the civilian shooter is "good by default"? I think so, but that also reflects my personal biases as a lifelong shooter. I am aware of two documented instances of criminals possessing counterfeit CCW/CHL documents. Conversely I have also seen what might be termed "good shoots by bad people" e.g. legitimate self-defense shootings by convicted felons (not while engaging in criminal activity).

Marty Hayes
01-26-2012, 03:35 PM
LEO's should know, that while Garrity statements cannot be used in a criminal prosecution, they can be used in a civil action. So, when making that Garrity statement, keep that in mind.

Also, about a year ago, I attempted to attend a Force Science Certification course. I was denied because I was not currently a sworn officer, despite the public statement that attorneys, experts, investigators etc. were welcome.

Interestingly, in a court case I was actively involved in at the time, the prosecutor and police were using force science material against the civilian shooter. It was an ugly bastardization of the purpose of the force science research.

Force Science and Lewinski are not high on my "like" list.

Bob Hostetter
01-26-2012, 04:33 PM
They can also be used to determine the likelyhood of continued employment.

Mitchell, Esq.
01-26-2012, 04:56 PM
Conversely I have also seen what might be termed "good shoots by bad people" e.g. legitimate self-defense shootings by convicted felons (not while engaging in criminal activity).

Those cases get interesting, don't they...

Mitchell, Esq.
01-26-2012, 04:58 PM
LEO's should know, that while Garrity statements cannot be used in a criminal prosecution, they can be used in a civil action. So, when making that Garrity statement, keep that in mind.

Also, about a year ago, I attempted to attend a Force Science Certification course. I was denied because I was not currently a sworn officer, despite the public statement that attorneys, experts, investigators etc. were welcome.

Interestingly, in a court case I was actively involved in at the time, the prosecutor and police were using force science material against the civilian shooter. It was an ugly bastardization of the purpose of the force science research.

Force Science and Lewinski are not high on my "like" list.

They found out you went to law school, didn't they...:p

It's ok...I still like you.

Mr_White
01-26-2012, 05:42 PM
LEO's should know, that while Garrity statements cannot be used in a criminal prosecution, they can be used in a civil action. So, when making that Garrity statement, keep that in mind.

Also, about a year ago, I attempted to attend a Force Science Certification course. I was denied because I was not currently a sworn officer, despite the public statement that attorneys, experts, investigators etc. were welcome.

Interestingly, in a court case I was actively involved in at the time, the prosecutor and police were using force science material against the civilian shooter. It was an ugly bastardization of the purpose of the force science research.

Force Science and Lewinski are not high on my "like" list.

Marty,

After attending the LFI-JUDF-I class at your facility in 2007, I considered adding to that by going to a Force Science Certification course, but ultimately decided against it based on time and cost issues.

I am shocked at your report. It's unbelievable that they wouldn't let you in. Based on that, I bet they'd have denied me too.

I'm also shocked at the (it sounds like misapplication?) of the Force Science material in court. Can you expand on what they tried to do? Did it work?

Gabe from Portland

Marty Hayes
01-26-2012, 10:40 PM
Marty,

After attending the LFI-JUDF-I class at your facility in 2007, I considered adding to that by going to a Force Science Certification course, but ultimately decided against it based on time and cost issues.

I am shocked at your report. It's unbelievable that they wouldn't let you in. Based on that, I bet they'd have denied me too.

I'm also shocked at the (it sounds like misapplication?) of the Force Science material in court. Can you expand on what they tried to do? Did it work?

Gabe from Portland

They were attempting to the the force science speedgrid to equate to the possible speed of a person whom was shot in the back who was running at the armed citizen. Short version, defense said that deceased charged defendant, defendant jumped back and fired within a short moment of being attacked, hitting deceased fatally in back. Lewinski trained homicide detective said that because of Lewinski's work, the deceased could have been 20+ feet beyond defendant, and defendant then shot him in back. It partially worked, a hung jury.