Monday, April 5, 2010

Use of Deadly Force

Part I: Use of Deadly Force

Interview: Brian Davis
Senior DA Investigator
Sonoma County (CA) District Attorney’s Office

Every police officer plans for that moment of truth—shoot, don’t shoot. That point in time when they must decide in a split-second whether to take a life. 

Preparation for this agonizing decision begins in the academy for most officers. They learn how to use deadly weapons without hesitation while learning about legal and moral consequences when these weapons are used. Survival is hammered into them.

In that one fraction of a second their whole life may flash before their eyes. Officers may hesitate for a fatal second as everything they’ve been taught crashes down upon them. They know their world will go up in flames if they are wrong—loss of job, civil suits that may drag on for years, psychological damage that may tear apart their own family, and criminal charges. Many officers walk away from the job regardless of the outcome within five years.

And if they hesitate—death.

A use of deadly force investigation is one of the toughest cases for investigators to handle. The community expects justice, administrators expect the case to be expeditiously processed, and loved ones of the deceased often want their pound of flesh. The spotlight falls on both those who used deadly force and those charged with investigating the incident.

Today, we’ll learn from a man who has been caught in this unforgiving spotlight a number of times. Brian Davis is currently an investigator for the Sonoma County District Attorney’s Office in California, after nearly thirty years with the Santa Rosa  Police Department. Brian brings a wealth of experience and knowledge to this explosive issue.

MARK: Brian, tell us a little about your background, focusing on your investigative experience involving violence crimes and officer-involved incidences. What variety of situations have you been called to investigate or supervise?

BRIAN: I spent nearly 30 years with the Santa Rosa Police Department and retired four years ago at the rank of Lieutenant. I was fortunate to receive extensive training in homicide, sexual assault, child molestation and other violent crimes prior to the serious budget problems that now face California. After my first seven years as a patrol officer (including assignments in traffic and hostage negotiation) I became a detective handling all types of violent crimes. Not only was I fortunate to have great training opportunities, I had a very demanding supervisor who himself had been a very accomplished detective. I learned a great deal about being a good detective, and later modeled myself after him as a supervisor.

At the time I was a detective, our department handled officer-involved shootings in-house. In other words, we did not have another agency come in and do those investigations as is the case in many agencies today. I seemed to always be on-call when one of these things happened and I felt a deep sense of personal and professional responsibility to do the most thorough and objective job possible on those cases. 

After five years as a violent crimes detective, I promoted to Sergeant and became one of the Field Training supervisors as well as running a patrol team. After a quick three years, I was assigned to supervise the Violent Crimes Unit (VCU) becoming one of the youngest Sergeants to do so. I enjoyed taking on the role of the Sergeant I had so much admired when I was a detective by mentoring detectives and demanding more out of them than they thought was in them. By now, the officer-involved shooting policies in the county had changed so that an outside agency would be brought in to do the investigation.  

After six years as the VCU supervisor, it was time to rotate out to patrol. I felt like I was pretty much done with Violent Crimes investigations but the Deputy Chief reassigned me as VCU's supervisor for a second tour of duty. I’m glad I did because I got to work with yet another group of highly motivated people that impressed me, my bosses, and most of all, did a great job putting together cases on the worst violent offenders in the community.   

I promoted out of Violent Crimes to Lieutenant, which gave me some other interesting opportunities, like managing our canine program. But it was the end to being the hands on law enforcement officer that I had enjoyed so much.

When I retired from the Police Department, I came over to the District Attorney’s office and worked as a District Attorney Investigator. After about a year, I was promoted to Senior DA Investigator (sort of like a Sergeant) so I guess I am starting the cycle all over again. DA Investigators work with other law enforcement agencies on homicides, officer involved incidents, and other major investigations. We are full time peace officers with subpoena powers and have the ability to conduct independent investigations such as in matters of political corruption.  

MARK: Looking back over those years as a Violent Crime detective and supervisor, Brian, is there one particular case that still haunts you involving an officer?

BRIAN: On a March night fifteen years ago, I received a phone call that brought me into one of the most horrible crimes you could imagine:  the cold blooded murder of an on-duty officer, who happened to be a Deputy Sheriff.   Fortunately, I had developed a lot of credibility with the Sheriff’s Department over the years and they were thankful that our Department was brought into the case. The suspects were quickly apprehended but the investigation lasted a full three years, until the gunman was sentenced to death and his female accomplice received a substantial prison sentence.

MARK:  Is there a Use of Deadly Force case that you remember as bizarre? Strange?

BRIAN:  One officer involved shooting case involved, believe it or not, an on-duty Sheriff’s deputy who did a drive by shooting into the home of a Santa Rosa PD Lieutenant. The shotgun blasts came through a bedroom where his two young children were sleeping. Thankfully, no one was hurt. And, it was pretty easy to tell who did it since one of the Deputy’s working had previously worked for Santa Rosa PD but had a lot of disciplinary problems (including excessive force issues) that led to him leaving the PD for the Sheriff’s Department. However, it was another matter of proving who did it until another deputy informed me he saw the suspect deputy change shotgun barrels with the other deputy’s weapon. Within hours, I made my first arrest of an on-duty officer. There were no reverberations however. The Sheriff’s employees were just as disgusted by this rogue cop’s behavior as everyone else.  

MARK: Use of deadly force heightens tension in movies, novels and television. Everyone moves forward in their seat or grips their novel when fictional officers are faced with a life-threatening situation. Bullets fly, people fall, and the officer is sitting on the tailgate of an ambulance when his supervisor pulls up to the scene. Word are exchanged, scenes change, and the officer is back on the job. Often, there is not even a hint of a shooting investigation.

In real life an Officer-Involved (OI) incident is one of the most critical and stressful investigations facing an investigator. As for the officer under scrutiny, more than his job and career is on the line—his very liberty might be at stake. Understandably, these investigations are critical for many reasons. Brian, can you start by clarifying the term “use of deadly force.” What acts fall within this category?

BRIAN: Any time an officer uses a firearm or has a firearm used on him or her, is the most common type of officer-involved incident.   Larger agencies narrow their protocols to those areas in which a fatality or near fatality results. It is still important to do a thorough investigation, but that investigation will be much more detailed if someone is killed by gunfire.

Another type of incident that has been in the news are deaths the news media has attributed to use of the TASER. The TASER is a wonderful tool, especially because it usually works on people under the influence of powerful stimulants that increase their body temperature, heart rate, and dull their sensitivity to pain. Sometimes when a TASER is used on a person under the influence of drugs, the person dies. The death is not due to use of the TASER; those people usually die as a result of a severe medical condition brought on by their drug abuse.  

Any “custodial death” is an officer involved incident. A person may die while in a jail setting, in the back of a patrol car, or in the field perhaps after a struggle to bring that person into custody. Law enforcement officers work with people that are at high risk due to their lifestyles. But if someone dies while in your custody, an investigation is conducted to ensure there was no abuse or oversight on the part of the officer or the officer’s agency.

A police chase involving a fatal traffic crash to an involved, or uninvolved party is considered an officer-involved incident.

A troubling new phenomenon, police officer suicides, are usually considered officer involved events.  

MARK: No matter where an agency is located in the nation, these OI investigations are very similar although each jurisdiction might have varying protocols. Brian, your experience has been in California, particularly with the Santa Rosa Police Department and the Sonoma County District Attorney’s Office. How are OI investigations pursued by local law enforcement there?

BRIAN: Fortunately, through previous mistakes and thoughtful consideration by some key policy makers, Sonoma County’s protocols have evolved to what I think are among the best models I have seen. Officer Involved investigations are strictly divided between the criminal and the administrative investigations. The criminal investigation doesn’t mean the officer is suspected of wrongdoing. Usually, the officer is a victim or was forced into a situation in which deadly force was necessary. The criminal investigation documents what crimes were committed (usually upon the officer or some other victim) so that the responsible people can be prosecuted. Of course, if the investigation shows there was criminal liability on the part of the officer, the investigation should bring those facts out into the open. Even if there is no criminal prosecution of the offender (he/she has been killed), there may be other suspects or crimes to pursue. And if that is not the case, the investigation should bring out all the facts for the officer’s agency and community to understand. The criminal investigation is ultimately reviewed by the District Attorney’s office to determine if there was any criminal responsibility by anyone involved. If so, the DA’s office is responsible for prosecution of any crimes. 

The administrative investigation (most commonly referred to as an internal affairs investigation) can take place at the same time or subsequent to the criminal investigation. This investigation should be done by entirely different officers from the criminal investigation. The administrative investigation is to ensure policies and procedures of the police departments were followed. Sometimes, the officer may be justified using deadly force in the criminal arena.  However, the administrative investigation may reveal other policies were not followed or training deficiencies. If disciplinary action is warranted, the agency administers that punishment in the form of a written reprimand, suspension, demotion and/or termination. The review process occurs internally with an ultimate decision made by the Chief or Sheriff.  

MARK:  There is terminology unique to these investigations. Why were these terms created?

BRIAN: In order to make responsibilities clear and uniform among agencies that may be asked to do an officer-involved investigation for another agency, some terms have been developed by policy makers.   “Actor” could be the officer who was involved in the fatal incident. When you are dealing with different agencies, it can get confusing as to different roles. “Venue agency” is the jurisdiction in which the incident occurred. The Investigating Agency may be another police department, Sheriff’s Department, and/or the District Attorney’s office. These terms were developed primarily for administrative purposes. For the criminal investigative team, you would still do your job just as you would with other major cases. These administrative terms rarely are used in the criminal investigation.

The officers doing the administrative investigation would be more concerned with defining the roles of these terms. 

MARK: You and I are aware of real life use-of-force investigations during our tour of duty, friends and acquaintances who’ve been put through these investigative gauntlets. These cases should not be re-opened and examined here. Instead, let’s use this hypothetical case:

As an investigator for one of the participating agencies, you received a call in the middle of the night about an OI shooting. You have been tasked with leading this investigation. You learn an officer in the Santa Rosa Police Department responded to a domestic disturbance call. The officer heard a woman screaming for help, advised dispatch, and rushed inside before backup arrived, apparently believing the woman’s life was in imminent danger. The husband turns, wielding a knife, and charges the officer. The officer shoots and kills the suspect. The only witness is the spouse, and she’s alleging the officer wrongfully shot her husband.  How do you start this investigation?

BRIAN: I would get to the scene as quickly as possible and get a briefing from the on-scene supervisor.  I would call in other detectives to help, including my own boss. Hopefully, the patrol supervisor has done a good job of locking the scene down.  By that, I mean take measures to preserve the crime scene so that evidence is not destroyed, and take measures to deal with the involved people. The surviving spouse needs to be taken away from the scene by responsible officers or detectives. She may need medical attention so officers or detectives should accompany her to a hospital to be evaluated. Plus, there may be physical evidence on her clothes or body (perhaps prior injuries by her husband) that will need to be documented.

Likewise, the involved officer needs to be taken to a secure location, usually the police agency where he or she works. The officer should have someone assigned to monitor him to ensure that evidence is not destroyed. Once at a secure location, the officer’s uniform will need to be collected for examination of trace evidence. Of course, his gun and entire gun belt will need to be collected for evidence examination. A chain of custody needs to be established to show that the officer did nothing to change the condition of his gun after the shooting. If the officer carries more than one gun, all of them need to be collected for examination. 

MARK:  What would be the next step?

BRIAN:  Once the involved people have been removed from the scene, I would wonder if there really were no other witnesses. I would start a canvass of the neighborhood to see if anyone heard the commotion or prior domestic disputes. Perhaps the phone was off the hook and one or more dispatchers heard the situation occur. They would be potential witnesses.

Then I would consult with the District Attorney representative who should have been called to the scene by now. Even though the first officer’s entry was due to an exigency (domestic violence), we will now have to stop and get a search warrant for the interior of the residence in order to collect the knife and any other evidence that may be involved in the immediate investigation or prior domestic violence acts.  

At some point, the spouse will need to be interviewed. She is not in custody, so if she refuses to say anything, you cannot arrest a witness so you have to let her go. Hopefully, someone has done a good job of just listening to her and recording her spontaneous statements while at the hospital. Being a good listener is the first step to being a good interviewer. Perhaps, she will consent to giving a statement after all.  

Last of all, the involved officer will be interviewed.  

MARK:  In this scenario, an officer faces a life-and-death situation and uses deadly force. How is the officer handled by first responders and investigators at the scene and by others back at the station? Why are these measures taken?

The officer should be treated with professionalism and concern, but should not be treated as a hero or be given slaps on the back. This is the beginning of a very long process and needs to be done by the book. So, someone is assigned to be with the officer from the time he leaves the scene of the shooting until he gives his statement to the investigators. This is done to protect the integrity of the investigation foremost. I mentioned the evidence collection earlier; sometimes taking an officer’s firearm is equated with being accused of a crime.   That is not the case. The officer is still an officer. However, the evidence must be collected without any tampering or unintended change. After the necessary evidence is collected, the assigned officer is usually replaced by another police officer who is a representative of the employee union. The union representative discusses options with the officer, including having an attorney present when the officer is interviewed.  

MARK: Let’s take a walk in the shoes of those officers facing the brunt of these investigations. What are some of the things going through officers’ minds? What are the steps they may need to take to protect their rights even though they acted appropriately?

BRIAN: In the vast majority of these cases, the officers acted within the scope of the law and acted entirely appropriately. However, due to misplaced focus by the news media and so-called watch-dog groups, the officer is often made out to be a villain especially if race, gender, socio-economic class, or any other issue comes into play.  

Initially, the officer is shocked that he has been through such a scenario and often doesn’t take time to realize that he is safe and alive.  Instead, the officer begins to worry about possibly being indicted, fired, sued and otherwise having his name and reputation dragged through the mud. And it doesn’t end there. The officer’s spouse and his children suddenly become a focal point in their own worlds because of the intense scrutiny given to these cases. 

So, the officer needs to reach out to his employee union and an attorney (usually paid for with union dues), to help him navigate the difficult path ahead. This sounds easy, but it is often difficult to ask for guidance, especially when you did everything right.  

MARK: Often the officer is isolated from others during this time, including friends and family. How are the families notified and what contacts are allowed between the officers and their loved ones?

Now that everyone has a cell phone and instant communication is the norm, the officer may contact his or her spouse or other person important in their own life before they are even taken away from the scene. If not, officers should be allowed and encouraged to make those calls as soon as possible so that their family members do not find out about it from other means. Even though the officer is an important part of the investigative process, they should not be treated as a suspect unless there is a good deal of evidence to support that. If an officer’s actions did appear to be criminal in nature, it is still important to treat the officer fairly and objectively. 

MARK: As the lead investigator or supervisor, how does one organize and coordinate these types of investigation? Who does what and when?

BRIAN: Wow, that is a can of worms! No two investigations are the same; each one kind of takes on its own personality and special set of problems.  But there are some basics that I kind of touched on earlier.  When a lead investigator or supervisor assumes control of an investigation, that person should not try to do it all. For example, it is important to maintain the integrity of the crime scene while evidence is being collected.   So, you want to keep uniformed personnel at the crime scene to maintain the outer perimeter.You want to keep people out of the crime scene until you are finished with your investigation.

You will need to assign someone or a group of people to the actual evidence process. That process could take hours, days, and sometimes weeks. So someone needs to be in charge of that process and coordinate that with the lead detective or supervisor.

You need to find witnesses. Most people will not volunteer that they saw something so you have to go find them. That means having officers and detectives knocking on doors, checking the origins of 9-1-1 calls and trying to find all the anonymous people that may have called in. There may be some witnesses at the scene who need to be interviewed in detail so you need to assign people to do that. 

Eventually, the officer needs to be interviewed. The supervisor should carefully evaluate the strengths and weaknesses of his detectives and their experience. This is not a job for a brand new detective, although a newer investigator could be paired with a more experienced investigator for the interview.

As the investigation progresses, the supervisor should bring his detectives together periodically to assess what has been done and what still needs to be done. Assess and reassess, just like on a SWAT mission.  

The supervisor must then coordinate all of the work so that it can be assimilated into a logical, cohesive, easy to read investigation. This is a lot harder than it sounds. There needs to be a beginning, middle, and end just like most documents and there should be no unanswered questions once a person has finished reading the entire package.  

MARK:  What are some of the things you’re looking for as the investigation progresses?

BRIAN: In addition to the things I have mentioned, I would look for consistency in the evidence and with the statements. Everyone sees an event from a different perspective, but if there are glaring inconsistencies, they need to be addressed. Perhaps a witness is withholding information, or the information given is inconsistent with the physical evidence.  

I also want to make sure I get as much information as possible. Again, a canvass of the area to find witnesses is a must.  

I want to make sure all the elements for any criminal activity have been addressed and I want to make sure that all of the information available to the officer at the time of the event has been explored and brought to light.  

MARK: In the movies, we see the men in black suits from Internal Affairs browbeat the sweating officer into a confession. Tell us what happens in real life. What is the role between the investigators investing the role of the officer for matters that will be considered by the District Attorney, and those who are conducting an administrative investigation pertaining to the officer’s conduct as an employee of a law enforcement agency?

BRIAN: The administrative (Internal Affairs) and criminal investigations should be entirely separate from each other and conducted by completely different personnel. The preferred practice is to wait for the criminal investigation to be completed before starting an administrative investigation because a lot of the basic issues in an administrative investigation are often already addressed in the criminal investigation. And, the information in the criminal investigation is available to the administrative investigators.

There could be a time when the administrative investigation happens at the same time as the criminal investigation. For example, an officer is asked to give a voluntary statement in the criminal investigation.   For a variety of reasons, the officer may choose not to give a voluntary statement. In the agency’s interest to determine what occurred and address civil liability, they may choose to initiate an administrative investigation.  In those cases, an officer can be compelled to make a statement, but that statement cannot be used in the criminal investigation because it was forced. Hopefully, the administrative investigators would have the professionalism to respect the officer’s rights while being questioned. If not, any resulting disciplinary action could be overturned on due process grounds.  

MARK: In one scene, print and film entertainment might depict an officer rushing into a situation, drawing his weapon, and killing every bad guy in sight. Next scene—officer is shown rushing to yet another crisis, gun in hand, sweat still wet on our hero’s brow from his last shooting spree. Realistically, what time frame are we looking at after an officer uses deadly force? How long a period from the moment the officer pulls the trigger to the time he is released back to duty?

BRIAN: It would be completely irresponsible for an agency to allow an officer to go immediately back into the field without conducting a thorough investigation as to the circumstances of the first shooting. Allowing an officer to go right back into the field puts the agency at substantial risk of civil liability until most of the issues in the first shooting are addressed. Secondly, it would be unfair to the officer to place him back in the field right after such a traumatic event. The officer needs some time to recover from the shock of such an event.

Ultimately, it is up to the Department head (Chief or Sheriff) to decide when to allow an officer to go back to full duty. I have seen as short a time as three days, or as long as two years. This is an area in which agencies need to have strong support services for their officers in terms of peer counseling, psychological counseling, and other avenues for officers to feel supported. In my personal opinion, if the initial investigation shows the officer acted completely reasonably and within policy, if the officer has received an all clear from a Department designated psychologist, and the officer is ready, a two week period is a very reasonable time for an officer to take some time off, but then get back to work without having to be overly concerned about the on-going investigation. 

Of course, you and I both know of situations in which administrators will not have the courage to make a decision to get an officer back to work. One can only wonder about the motivations of those lack of decisions and the ultimate harm caused to an officer who has been placed on desk duty pending the outcome of an investigation. 


APRIL 12:  New York Times bestselling author Tess Gerritsen joins us to discuss her next novel, Ice Cold (UK title: The Killing Place), to be released in July and a new TNT television show Rizzoli & Isles debuting this summer based upon this author’s novels about two  Boston crime fighters--Jane Rizzoli, a homicide detective, and Maura Isles, a medical examiner. Tess’s novels have continually topped the bestseller charts in the U.S. and abroad, with her books translated into thirty-seven languages and more than twenty million copies sold around the world.

APRIL 19: Brian Davis will return in two weeks to continue this two-part interview on Use of Deadly Force Investigations.  This second interview will narrow in on the actual  interview with the officer under investigation and the decision process of whether to exonerate or prosecute.  You will be able to take a look at some of the behind-the-scenes rarely picture in the movies or mentioned in fiction.

APRIL 26: Author Camy Tang will join us to talk about her latest novel, Deadly Intent, a romantic suspense set in Northern California’s wine country. This novel—about a murder in an exclusive Sonoma spa-- is a major change in genre for Camy, whose previous works included the chick lit Sushi Series novels Sushi For One?, Only Uni,  and Single Sashimi. Camy, who work as a biologist for nine years before becoming a full time writer, will share with us her writing journey and her move to this new genre.


  1. Great interview! Extremely informative and on point. For me personally.. quite interesting to see you two reunited on this particular topic ;-) Cant wait till the next installment.

  2. Thanks, Ed. This means a lot. And thanks for visiting.

  3. Another great, informative interview, Mark. Thanks!

  4. Mike, great to see you're keeping tabs on us. Looking forward to your South American thriller. Law enforcement somewhere in that novel?

  5. Really intresting interview. As the saying goes "You don't know what you don't know." Hook'em and Book'em can change that. Look forward to part 2.

  6. Thanks for joining us, Steven. Hope you find this this information helpful.