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Reporting the High-Stress Incident: Damage Control

We all know that "officer survival" means surviving an incident. However, the term "officer survival" also means surviving the AFTERMATH of the incident.  While an incident's aftermath has many facets, probably the single aspect that will most affect the officer's future is the report that is ultimately generated.  A poorly prepared report can result in criminal prosecution (both Federal and state), civil litigation (both Federal and state), negative administrative action by the officer's employer, community outrage, unwarranted media scrutiny and chastisement, and possibly a destructive riot.  On the other hand, a well‑prepared report can significantly aid in shielding the officer and the department from many of these negative outcomes.

We now know, and have known for some time, that an officer's perceptions during a high-stress incident may not be totally accurate, particularly regarding real time chronology of events and distances.  During a high-stress incident the officer may suffer from diminished cognitive processing skills: hyper vigilance, irrational behavior, perceptual narrowing, etc.  Put another way, the officer may experience: indecisiveness, an inability to keep mental track, tunnel vision, auditory exclusion, time distortion, space distortion, importance discrepancy, denial response, temporary blindness, bias enhancement, temporary (or even permanent) memory suppression or loss, and others.  We also know that all of the above is a PERFECTLY NORMAL response to a potentially lethal threat and that every officer will experience most of the above symptoms to one degree or another.

If we know that an officer who is involved in a high-stress incident (e.g., deadly force incident, dangerous pursuit) will likely be influenced by one or more of these effects then we need to train the officer, and the supervisor, to deal with them.  Although the effects often cannot be eradicated through training, the negative consequences of the effects can be minimized.  One area where reduction of the effects is critical is in HOW we require, and/or facilitate, an officer's reporting of the incident.

Are we going to rush to the scene of an officer-involved shooting and demand that the officer immediately provide us with a statement?  Probably not.  If we require the officer to provide a statement without suitable time and assistance, we could very well be setting the stage for disaster.  Therefore, we offer the following thoughts.  It must be noted that these ideas will be subject to any applicable state law, departmental policy, collective bargaining agreement, etc.

You are a supervisor reporting to the scene of an officer shooting.  Upon your arrival you see the officer standing in what appears to be a trance with his/her gun dangling at his/her side.  You WANT to know everything that happened.  However, is it NECESSARY in the near term for you to know every single detail?  You think to yourself that the chief is going to be demanding facts; the media will be climbing down your back; and the community action groups may soon be in a rage.  YOU NEED to know something!  But, how much do you need to know and at what cost?

All you, as the supervisor, really need to know (from the involved officer) is:

1.         Are there any other casualties, other than what are apparent?

2.         Are there any other suspects in need of apprehension?

3.         Is there any evidence that is likely to be lost or compromised by delay?

4.         Are there any witnesses that we need to nail down right away?

You desperately WANT to interrogate the officer and get all of the details.  But, YOU must control your thoughts, as well as the scene, and remember that too many questions at this time could cost your officer, the department, and the city.  You need to give the officer the opportunity to collect him/herself and to solidify (not create) what happened in his/her own mind.  Some suggestions for equitably balancing both the department's and the officer's interests include:

1.                  Besides the incident itself, and those people injured/killed during the incident, understand the concerns that may be running rampant through the officer's mind.  The officer may be thinking about his/her future!  Am I going to be criminal charged?  Am I going to be sued - and lose my house?  Is the department going to stand behind me on this or are they going to feed me to the wolves (media, special interest groups, etc.)?  What is the media going to do to me?

2.                  From the officer, insist upon only that information that is actually needed right away.  Then, advise the officer that (s)he has the right to remain silent and the right to an attorney, and that (s)he is well advised to exercise his/her rights.  This line should not come as a surprise to your officer, if you have trained your officer on what to do, and what you will do, and WHY you will be doing it.

Why should the supervisor take this approach?  After an incident, an officer has a strong urge to blurt out what happened, to begin rambling justifications for the his/her actions.  The officer is (generally) in no mental state to start giving definitive statements that WILL come back to haunt him/her.  Also, the officer's statements may be easily misconstrued.  That which the listener hears may not be what the officer intended.

3.                  Get the officer away from the scene as quickly as possible, but do not let the officer stay by him/herself.  Put someone with the officer who understands what the officer is going through, someone who is not going to be taking notes, is not going to be asking questions, who is just there to be a friend.

4.                  Get the officer in contact with HIS/HER attorney as soon as possible. ^[1]   Here we could have problems with the department administration.  Some departments will not allow an officer to talk with his/her attorney until AFTER (s)he provides a full statement and answers all questions. We believe this policy is incorrect.  Does your department have faith in its officers, or does it refuse access to counsel because it (the department) believes that the officer will lie?  We believe in the personal integrity of our officers and we are going to do our best to protect them within the bounds of the law, and with due regard for the interests of the department.  Remember the officer DOES have legal rights and those rights should be invoked.

5.                  The officer's attorney arrives and literally takes custody of the officer.  Here we suggest the following:

a.                  When possible, the attorney takes the officer to the incident scene.  The attorney, where possible, walks the officer through the scene while the officer tells the attorney - under attorney/client privilege - what happened.  This is NOT for the purpose of fabricating a story.  There are many ways to report an incident, and the better the report the less the risks of negative consequences.

b.                  The attorney is asking questions to:

1)                 draw out as many details from the officer as possible

2)                 draw out all of the details of the suspect's behavior

3)                 solidify the legal basis for the officer's actions

4)                 solidify the chronological sequence of events

5)                 remove the potential inaccurate responses caused by stress-induced misperceptions

6)                 explain to the officer the legal standards upon which his/her actions will be judged

The attorney is asking questions to correct the officer's METHOD of reporting the incident.  E.g., the officer says the man who was shot was standing about eight (8) feet away.  The attorney corrects the officer and advises him/her that (s)he cannot accurately measure distance and that particular detail needs to be left to forensics.  The attorney advises the officer to use terms that will fully describe the level of threat because of the suspect's proximity without getting into specific distances.  The attorney also advises the officer about the effects of time-space distortion.  So, the attorney will advise the officer to avoid statements regarding exact distances, times, number of rounds fired, etc.  Those details will all come out in forensics.  Those details can make the officer appear to be a liar if his/her inaccurate perceptions do not match the surgical reality of the forensics investigation.

c.                  Once the officer and the attorney conclude the incident review, the attorney starts it AGAIN.  The officer and the attorney may thus go through the incident fifteen (15) to twenty (20) times.  Each time refining, adding remembered details, solidifying the officer's understanding of the legal justification and standards for his/her actions.

The idea here is not to fabricate or bend the facts.  The idea is to SOLIDIFY - in the officer's mind - what happened.

At this point if the officer is ordered to give a report, the officer, with the assistance of the attorney, will write a detailed incident report for the department.  Why is the attorney assisting?  The attorney is assisting to avoid ambiguities, to limit potentially over broad statements, and to ensure that all the legal standards by which the officer will be judged are included.  The report should begin with the Garrity warning.

The attorney will assist the officer in WRITING the report.  Words have power, and this power can often be destructive power.  Many law enforcement agencies insist that officers give sworn oral statements.  We disagree with this.  The reason for disagreement is quite simple, a written statement can have multiple drafts, can be edited, can be thought about, can be expounded upon, etc.  In other words the written report will be more accurate, complete, and less ambiguous than an oral statement.

A brief example:

Incident:  Officer Smith sees a suspicious man standing in front of a liquor store.  The man fits the description of a man who had robbed a woman at knife point a short time ago.  The officer stops to investigate.  During the stop, the man pulls a knife and threatens the officer.  The officer draws his gun and shoots seven times.

In addition to all of the details of the man's behavior, the officer's fears and anxieties, and all of the environmental factors, etc., the attorney also needs to be sure the report contains:

1.                  The officer's "reasonable articulable suspicion" for the Terry detention.

2.                  The officer's "reasonable articulable suspicion" to justify the officer's Terry frisk of the subject?

3.                  The officer intentionally shot a "free person," therefore we are under the Graham v. Conner ^[2] and the Tennessee v. Garner ^[3] standard, so the report MUST include the Graham factors:

a.                  Was the person an imminent threat to the officer and/or others?  And, since deadly force was used the officer must be able to articulate that the person who was shot was an imminent threat of deadly force upon the officer or others.

b.                  Was the person actively resisting arrest/seizure?

c.                  Were the circumstances tense, uncertain, and/or rapidly evolving?

d.                  What was the severity of the crime the man allegedly committed?

e.                  Was the person attempting to evade arrest/seizure by flight?

These points are stressed because we cannot begin to tell you how many reports, depositions, and trial testimony we have read where it is painfully obvious an officer does not even know the legal standard by which his/her actions are going to be eventually judged.  And, since the officer does not know the legal standard, (s)he fails to fully amplify and clarify his/her behavior.

A "well crafted" report that clearly, fully, unambiguously, explains and describes an incident, while carefully minimizing any potential effects of stress-induced mispercep­tions can dramatically reduce the negative consequences of the incident.  To fail to heed these warnings can result in tremendous losses (personal as well as financial) to the officer, as well as the supervisor, the trainer, the chief/­sheriff, and the officer's employer.

To minimize the potential problems, the officer, and the department, must UNDERSTAND what they must do to fairly and justly protect their interests.  This is proactive DAMAGE CONTROL!  As trainers, this is one of our many responsibilities.