Part II: Use of Deadly Force
Interview: Brian Davis
Use of deadly force to protect society is the dark side of maintaining law and order. There comes a point when the mere presence of a uniform or a badge is not enough to force a violent person to stand down. To back away and allow police to do their job.
Police officers are not mind readers. The person they meet on the street might be a law-abiding citizen or a law-breaking criminal. Those they meet might be blinded by drugs, harbor a deep fear of going back to prison, or might be a violence-prone patient just released from a state mental hospital.
And an officer might only have a second to decide between life and death.
It is this awesome choice—and responsibility—that we focus on during today’s interview. It is a subject upon which public attention quickly turns whenever bad things happen. This public scrutiny 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 situation many 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: Let’s talk about another
Hollywood misconception—the chasm between fiction and reality over forensic evidence. Here are a couple examples: DNA results before investigators even leave the crime scene; or blood samples typed and identified before the victim’s pool of blood gels. As an investigator, what do you know about the turnaround of these lab reports? What time frames are realistic as you work your way through the case?
BRIAN: It sure would be nice to have instant results and instant access to all sorts of data bases but as you point out, that is total fiction. DNA evidence is processed in controlled conditions in a crime lab that is usually associated with a government entity. Some counties in
have their own labs; where I live, we have to send DNA samples to a lab that is operated by the State Department of Justice. There are also federal labs run by the FBI, BATF, etc. California
DNA analysis is labor intensive and costs money. Police managers have to make decisions on how to spend taxpayer money. So, hard decisions have to be made during a criminal investigation about the relative worth of some crime scene processing. Usually, in a homicide or sexual assault, there is no question about funds being spent for such work. However, decisions are made has to how much and what type of evidence will ultimately be processed. On rare occasions, DNA evidence may be sent out to a private lab but there are additional costs associated with those decisions.
Here in Northern California, we are fortunate to get DNA results within 6 months of submitting samples to a lab. Crime labs serve potentially hundreds of law enforcement agencies and they can only do so much with the personnel they have. Even if DNA evidence seems to be available, you need to do everything else in the meantime to complete your investigation.
MARK: As part of the investigation, all witnesses must be interviewed either at the scene or back at the station. In our scenario, the wife is the only eye witness. Neighbors may have heard the couple yelling, see the officer arrive, and heard shots fired. But only the wife saw what happened inside the dwelling except for the officer. She claims hubby did not arm himself with the knife and charge the officer. She alledges the officer shot and killed her husband with no provocation. You must play Solomon and find out whether she is telling the truth, lying to you, or just misinterpreted what happened. How do you get to the truth?
BRIAN: Sometimes, you do not get the truth. However, experienced investigators often have to put themselves in the shoes of the person on the other side of the table. In this scenario, it is almost understandable that the wife would react in this way. Sometimes it is due to shock at the situation so an immediate interview may not be the best time to talk to this person. On the other hand, this is a great opportunity to build a rapport with the person by understanding that she is a victim. If medical attention is not necessary, this would be a good time to bring in a victim advocate. You don’t want to suck up to this person but you do need to understand what she is going through. If she isn’t pressured right away, and recognizes that someone from the Police Department actually tried to help, maybe she will calm down and give you the whole story later.
If not, any statement is better than no statement. Maybe there will be no way to reconcile her statement with that of the officer, but if she lies about one thing, she is likely to lie about others. If you can diminish her credibility through other statements, then her version will speak for itself. Of course, this is all assuming the officer’s version is completely true.
MARK: Now we arrive at the point where all the witnesses—except the officer—have been interviewed, all the evidence collected, and the scene processed. You want to interview the officer. Why is the officer the last one to be interviewed?
BRIAN: Part of it is a matter of control. You have the most control over the officer and know that he or she is waiting to be interviewed. If there are a lot of witnesses, the officer interview may not happen for 12 hours or more after the event. More importantly, the investigator wants to have has many facts as possible before going into an interview. The investigator will have some information to help understand how the events unfolded by interviewing as many other witnesses prior to interviewing the officer.
The other part is the desire to only have to interview the officer one time. You do not want to have to go back and do multiple interviews when you didn’t have as much information as possible to start. If you information from all the other witnesses and the information that you can obtain from the evidence at the scene (at least some), you can do a thorough interview and address any inconsistent statements for either the other witnesses, or from the officer.
MARK: As you prepare to interview the officer, who do you take into the room and who is allowed to sit in with the officer?
BRIAN: The protocol in our county is that the officer may be accompanied by a union representative OR an attorney, but not both. The only other people in the interview room are a maximum of two investigators who conduct the questioning. Most of the time, the lead detective will interview the officer and have a good idea of the questions to ask based on the preliminary information obtained so far.
MARK: Where are these interviews conducted?
BRIAN: Usually, the interviews are conducted and recorded in an interview room at the officer’s home agency. It is a private, secure location and usually the interview can be monitored by other investigators and DA personnel (video and/or audio) so if there are any questions or issues that are not addressed by the interviewers, they can take a break and double check that all areas of concern have been covered.
MARK: Where are IA investigators during this time?
BRIAN: Sometimes an IA is not started until sometime after the criminal investigation gets started. If an administrative investigation was under way, the IA investigators can monitor (watch and/or listen) the interview but they may not ask any questions or in any way become involved in the criminal investigation.
MARK: Do you advise the officer of his rights? Why?
BRIAN: No. The officer is usually considered a victim or witness and as such has all of the rights afforded by our Constitution. As such, the officer is asked to give a voluntary statement about what occurred. The only exception would be if there was so much other evidence that implicated the officer in a criminal act, that he would be arrested, then he would be advised of his rights.
Some people get confused over this point with the administrative investigation. In those cases, investigators order the officer to provide a statement under threat of disciplinary action up to and including termination. This admonishment is administrative only and is separate from the criminal investigation.
MARK: How is this interview recorded?
BRIAN: The interview is tape recorded by the investigators. The officer has a right to record the interview as well. So far, we have not video taped these interviews, but with greater expectations by the courts who ultimately may rule on the outcomes of these investigations, I don’t think it will be too long before we are directed to do so.
MARK: How long are these interviews? Is the officer allowed to take a break?
BRIAN: Basically, the interview is as long as it takes for the officer to relate what happened. Typically, the officer will give an uninterrupted narrative of the sequence of events, and then go back and address specific details when asked by the investigators. The interviews I have been involved in usually are in the neighborhood of two, two and a half hours.
The officer is certainly allowed to take a break to attend to any physical needs or to consult with his attorney. The investigators will usually take at least one break to confer with their supervisors and other investigators to make sure they have covered everything.
At the end of the interview, it is usually well past the officer’s end of watch time and he or she goes home. The officer is placed on paid administrative leave for a period of time determined by his or her employing agency.
MARK: The investigation in the case has been concluded. All the reports are gathered and taken to the District Attorney for review. Who makes the final decision regarding the criminal case? The civil case? The IA case?
BRIAN: The criminal case is ultimately reviewed by a senior prosecutor who is assigned by the District Attorney to analyze the case, determine the need for further investigation, and ultimately make a recommendation to the District Attorney as to the disposition. The District Attorney makes the ultimate decision but that is usually based on an analysis of the facts submitted by the senior prosecutor.
The Internal Affairs case is ultimately decided by the Chief of Police or the Sheriff, again based on an analysis submitted by a senior manager who has reviewed the investigation.
The civil case is by far the longest and most complicated. The civil case could be resolved prior to a civil trial. If not, it could be thrown out of court for procedural reasons. Or, there could be a lengthy civil trial ultimately decided by a majority of jurors, not a unanimous verdict. Regardless of any other decisions, there is always the question of a potential civil rights violation in which case the
attorney could prosecute the officer for federal violations. U.S.
MARK: As the lead investigator or supervisor, there are a number of findings you might reach in this case. Let’s first take the easy one—DA rules the officer is exonerated of wrong doing. What happens to the officer?
BRIAN: Usually, by the time a finding has been made, the officer has already been returned to duty by his agency. However, this finding is completely independent of any administrative investigation, civil inquiry, or civil rights investigation.
MARK: Next scenario—DA determines the officer is criminally responsible for his actions. What happens?
BRIAN: I would hope that the officer’s agency would have been made aware that this finding is forthcoming so that they could take steps to have the officer on continued administrative leave or other non-public contact assignment pending this finding. In this case, the DA would file a formal charging document, a complaint, and bring charges against the officer. The officer would then be arrested and ultimately arraigned on those charges pending a preliminary hearing. If the officer cannot post the requisite bail, he would remain in custody pending the outcome of the criminal proceedings.
MARK: Last scenario—officer acted within the scope of the law but might have violated agency policies. At this point, does IA take over?
BRIAN: Yes, if not sometime prior to the DA’s finding. As I mentioned, the administrative investigation is separate from the criminal investigation. If there is some obvious, significant policy violation, the police agency will probably want to move forward with their internal investigation without waiting for the formal DA finding.
MARK: There are many approaches to handling citizen complaints against police officers. In our scenario, the wife may see the possibility of the police agency as a source of money for the death of her husband. She files a complaint against the officer and the department? What happens to her complaint against the officer and the department?
BRIAN: If she files a claim against the agency seeking monetary damages, this would be handled in the civil courts. The city attorney, county counsel, or their hired legal representatives would defend the agency’s interests (which sometimes is contrary to the officer’s interests).
If an internal complaint is filed with the police agency, the police agency would be required by law to conduct an administrative investigation. In this case, if the agency already had begun an internal review, the surviving spouse’s complaint would become part of the review. If no internal investigation has started when the complaint was filed, the agency would be obligated to move forward with the administrative investigation.
Even if the woman refused to make a statement during the criminal investigation, administrative investigators would try very hard to obtain a detailed statement from her. If the officer had already given a statement in the criminal investigation, he could possibly be required to give another statement to the administrative investigators. The administrative investigators could rely on the criminal investigation for other portions of the evidence. Ultimately, a finding is made about any violation of policy and is sent to the agency head for a final decision. Even if an officer is cleared in a criminal investigation that requires probable cause to believe a crime has been committed, the officer could be found in violation of numerous policy violations. A determination of a policy violation only requires a preponderance (51%) of evidence to show as true.
MARK: Government agencies struggle with supporting their officers against unwarranted complaints while also trying to make sure the public is confident these matters are handled appropriately. Public confidence can be quickly shaken by news events which suggest law acted unlawfully, such as the Rodney King fiasco in
years ago. Can you give us some of the organizational structures these public agencies have established to meet this challenge.” Los Angeles
BRIAN: One of the perceived problems with administrative or internal affairs investigations is the lack of information available to the public regarding the scope of the investigation, the findings, and the disciplinary action, if any, given to the officer. These investigations deal with internal police policies and procedures, some of which could present serious safety issues to officers on a daily basis if made public. The investigations may call into question other issues that are considered personnel matters and not matters of public record. In my opinion, if a police agency does a good job investigating personnel complaints and rendering appropriate discipline, it is a very good way of dealing with personnel problems.
However, the mystique of these investigations leads to some members of the public calling for greater accountability. Many cities have established so called citizen review boards or offices of citizen’s complaints. While some of these structures may be well intentioned, they are almost always flawed for a number of reasons. First, it is like have a panel of lay people evaluate the performance of a surgeon in a hospital. The people doing the evaluation do not have any level of experience or training about the job, profession, and specific situation they are evaluating. So, they are more likely to inject their personal biases into the evaluation or rely on what they have seen on TV.
Most of all, none of these boards or commissions can force a police officer to make a statement. Only the employer agency can do that under threat of disciplinary action. So these boards and commissions have no real teeth to examine all the facts of the case. Too often, they are influenced by public outcry and misplaced perceptions.
Some jurisdictions have turned to a Grand Jury review of the officer involved investigation. The Grand Jury can then make recommendations to the DA’s office and/or police agencies about procedural issues and they do have subpoena power. However, unless a criminal Grand Jury is impaneled and brings criminal charges, the civil Grand Jury’s role is limited making recommendations.
MARK: Back to our scenario. Our officer has been criminally and civilly investigated, and cleared of all charges and complaints. Can the officer simply returned to duty?
BRIAN: An agency head may decide to return an officer to full duty or perhaps limited duty prior to these decisions being made. In the case of civil liability, it could be years before all the claims are dealt with through the courts. So, it is not a very cost effective decision to keep an officer off the street for a long period of time.
Most agencies have an internal evaluation process to decide when to bring an officer back to full duty. It could begin with an initial assessment of the case by police managers, before the criminal or administrative investigations are completed. If the initial assessment is that it would not be detrimental to the officer or public, then the officer is usually evaluated by a psychologist who ultimately provides a professional opinion as to whether the officer is mentally healthy enough to return to work.
MARK: The general public only sees the new coverage of the incident—officer responds, someone dies, investigations completed, officer exonerated. What the public never witnesses is the aftermath of these incidents—the physical and psychological effect upon officers. Officers are faced with a life-and-death situation, they act appropriately by using deadly force, and then they’re removed from their assignment for weeks or months at a time. After everyone has taken a shot at these officers—criminal investigations, civil investigations, IA investigations, citizen review boards—they’re cleared for duty. Put us in the mind of these officers the next time they face a similar situation. What might they be thinking? [Do you know of statistical info on this issue—officers leaving the job after these incidents?]
BRIAN: I don’t know of statistical information about this issue but I do know that how these officers cope when they return to duty depends enormously on how they are treated by their supervisors and managers when they return to work. Returning to work with your peer officers is often the best medicine for getting back into the proper mind set of professional policing. However, I personally know of several individuals from a number of different agencies who were shunned by supervisors who perhaps did not agree with the officer’s decision to use deadly force, or are afraid to be that officer’s supervisor in case he has to use deadly force again.
These supervisors may begin a pattern of rating such an officer’s performance as low because of a perception that he may be too slow to engage in the day to day duties required. Eventually, the officer may be denied special assignment positions or even promotions because of these misguided perceptions that may carry all the way up through the Command Staff. Supervisors need to understand their role in empowering officers who have been involved in life and death situations to feel confident about their decision, support the officer, and help him succeed.
As to what the officer is thinking when confronted with using deadly force again, I can only go on my limited personal experience. I know of many very good officers who, with the help of good peer support and supervisory support, have quickly regained the confidence needed to stay alive and to protect the public. I do know of a couple of cases in which people have doubted their decision to use deadly force and have struggled professionally and personally. In the cases I have knowledge of, those officers have left their agencies and have stepped away from police work altogether.
MARK: Brian, you have been in law enforcement for more than three decades—patrol officer, homicide detective, sergeant, investigative supervisor, SWAT supervisor, police lieutenant and now a DA investigator. Regarding use of force, what has changed the most for you over the years?
BRIAN: In terms of the use of force, I think the greatest change has been the increased use of what are referred to as “less lethal” weaponry. When you and I started, our issued firearm was a revolver, and we were issued wooden batons and chemical mace. That was about it and a lot of guys I knew never carried the mace and forgot their batons when they got out of the car on a call.
Now, there are all types of batons, OC spray, and the TASER. Those are supplemented with bean bag guns, projectile launchers and other long weapons. I am a big TASER fan but when a situation calls for deadly force, an officer must rely on sound tactics, good training, and firearms proficiency to survive. No matter how many weapons are developed in the hopes of reducing the amount of times officers must use deadly force, nothing will change the criminal element and, unfortunately the deadly encounters law enforcement must continue to deal with on a daily basis.
MARK: What are the challenges facing officers today as they serve and protect our communities?
BRIAN: There are many, but I will focus on two things. Law enforcement department heads need to keep their agencies proactive to protect their communities. That means proactively enforcing the law on all fronts, from issuing traffic citations to enforcing narcotics laws, to investigating crimes of violence, to maintaining intelligence on gang crimes, law enforcement must continue to be allowed to do its job in a proportionate manner. Agency heads who back down to community pressure about certain crimes or situations have no business leading officers into limited focus on huge problems that face our communities.
The second challenge officers today face like never before is the ever increasing likelihood of a terrorist act occurring in their jurisdiction. While our country seems to have learned little or nothing from the 9/11 attacks, Fort Hood massacre and other incidents inside our borders, it will be up to local law enforcement to deal with the school takeover, shopping center suicide bombing, and other incidents that we have been warned about.
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— worked 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.