Should civilian shooters get the same treatment as OIS survivors?

[ToddG]

from Force Science News #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]

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]

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]

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 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]

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]

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]

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]

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]

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]

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.