Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, Officer-Involved Shootings Part 1. Here are just a few of his responses.
Audience Question: Should officers involved in the OIS be advised of their Miranda Rights prior to an interview or statement being conducted?
Rick Hodsdon: Miranda requires for Miranda to be relevant taking into account each state may have its own set of rules on it so everything I talk to you about has to be on a broad level. Miranda as defined under federal law typically applies only if there’s going to be a custodial interrogation. I think it will be a pretty rare incident in which an officer is in custody in these circumstances. Now you may have a peace officer discipline procedures act law, you may have local requirements, state-imposed requirements that are different, but as a matter of federal constitutional law, it’s going to be a fairly rare incident that we would have a Miranda issue.
Audience Question: When you’re talking about shootings, are you also including other instances like pepper spray, or taser events?
Rick Hodsdon: Certainly if it results in death or great bodily harm the same set of principles apply. Somebody getting pepper-sprayed unless they have some kind of severe allergic reaction, somebody getting tasered unless they happen to be like on a bicycle or a high wall and fall down and get severely injured. It is the high profile about the officer-involved shootings and the effect of a bullet on a body. A lot of the same principles apply and we use certainly see use of force cases. If there is a serious harm or injury, many of the discussions we have been having about officer-involved shootings will be equally applicable.
Audience Question: Are suicide by cop incidents handled differently from your perspective, based on what we’ve so far discussed today?
Rick Hodsdon: I see the suicide by cop, typically as a diagnosis is an after the fact diagnosis. I don’t think most agencies are handling them differently in terms of the investigation and the review and analysis. What I do see happening, in fact a friend of mine actually teaches a class on this, is something you may want to be starting to think about again as a national trend. The reduction of suicide by cop is, what’s happening is, you have a barricaded suspect all by himself in his house and I use “he” on purpose because it’s almost always a male. He’s all by himself in the house. Often we had a suicide by cop situation because the officers felt the need to do something. What we see now with agencies across the country reducing suicide by cops by putting up perimeter, pay people overtime and wait him out. And he’ll get drunk, fall asleep, whatever comes out. We’ve seen a number of agencies now that are simply saying, we’re not going to engage, we will keep the community safe. We’re going to reduce our liability; we’ll reduce the trauma to the officer who has to pull the trigger by simply essentially doing nothing. So I think if they do something and we have what ultimately is suicide by cop. My experience is it’s still going to be investigated the same way, but I feel agencies trying to stop that from happening in the first place.
Audience Question: What do you do if the officer-involved shooting is actually involving the chief of police? Does any of the processes or protocols that you’ve described does it really change if it’s the chief who’s the one who’s has fired the gun?
Rick Hodsdon: I think, at least in the case, I haven’t had experience with a chief but especially all the work I do to the National Sheriffs Association, we certainly have lots of officer-involved shooting in which the elected Sheriff is involved in the shooting incident. I’ve had a couple of those even in my state. I think, my experience is, that’s even a stronger case to ship that incident to an outside agency. In Minnesota, we have an incident in which the sheriff shot and killed a person who was holding the county board hostage. In a couple of other states, the Sherriff is doing roadwork on patrol and small agencies are involved. In each of those cases, it was an easy decision for that agency to make to ship that case to an outside agency usually the state police or state, DCI or BCA.
Audience Question: So piggybacking on that question that we just had, where can the instances when an agency does need to outsource the investigation of the officer-involved shooting, how do you recommend this happens? Should there be a cooperative agreement between a couple of agencies in advance, should there be a lottery system among a whole pool of agencies? Or is there a kind of a wait and see if this will actually really ever apply to us approach?
Rick Hodsdon: I don’t like to wait and see. Because planning is everything. Gordon Graham, whom I suspect many listeners are familiar with, said: “Predictable is preventable”. Predictable is also something you can plan for and so planning in advance to decide how you’re going to handle this at the agency. If your agency said if we have one of these incidents happened, like 66% of agencies here did, then we’re going to call the state, we’re going to call the state police and then make arrangements with the state police. If this ever happens, we’re going to call on you. Don’t just assume that somebody’s going to take it for you. If the plan is to use other local agencies there like the Michigan model they actually plan in advance. They have a hotline. You call the Executive Director of the Michigan Sheriffs Association and someone was going to be in an hour or two away and they would be en route. If you’re going to be smaller and more regional, again, have that discussion in advance. One of the potential problems of keeping it too close to home, especially in metro areas, suburban areas, you have to be really careful about being too close to home because many times those officers are going to work with the neighboring jurisdiction as much as they work with one of their own colleagues. And if the idea is to try and create some objectivity, if half the time a staff involving City A, the backup is an officer from City B and having that City B officer, then that City B agency should be your investigator probably isn’t going to accomplish that objectivity, or more likely the appearance of an objectivity that you’re probably trying to find.
Audience Question: So Rick, and not to belabor the point, but it sounds like you’re saying that just like we have disaster plans for mass casualty events or we have emergency response plans for natural disasters, we really should be looking at having at least a standardized standard operating procedure or a plan in place for officer-involved shootings. Are we hearing that correctly?
Rick Hodsdon: Absolutely. Most officers go through their entire career without ever discharging a firearm other than maybe at the range to qualify and maybe there’s a wounded deer out of the ditch somewhere and dispatching a suffering animal. But nonetheless, we train like crazy. Quarterly qualifier or semi-annually. We anticipate that this is a rare event because it is so huge. It’s such a big deal. We’re going to train like crazy for it, then why aren’t we doing the same thing and planning for when it does happen? Put something in place. And as I said earlier in my discussion that’s we used to talk a long time ago, we’d say well light a cigarette to get them to serve the food at the restaurant, right? Nobody says that anymore but I still think wash your car to make it rain is a good analogy.
Audience Question: How practical is it to provide family members of the deceased with incremental updates on the investigative process when you’re in the middle of that officer-involved shooting?
Rick Hodsdon: The practicality of it may depend on a lot of variety of factors. Obviously, it’s going to involve can we find family members, Do we even know who they are? What is the relationship between family members and the person that was injured or killed? I think the modern tendency certainly is to try and find a resource to periodically update and advise family members. Even if the person who has been injured or killed is -probably politically incorrect to say this is a righteous bad guy, somebody who actually was trying to kill or shoot or do bad things. That’s them, but their family members still love them. If we think about the family members in these cases as a victim as much as the officer, I actually think the officer who pulled the trigger in these cases in which you’re supposed to justify, I think that officer is victim but I also think of the family members as a victim. So if we’re going to advance victim rights, we should be thinking about our laws. When it comes to keeping people informed in an objective and non-defensive way. Most people don’t realize how long these things take either. And that’s another part of the problem because, you know, the entire CSI case, including DNA analysis, is done in 48 minutes if you take out the commercials. They don’t realize that the DNA analysis may take literally a couple of months. If we’re trying to process a crime scene as we’ll talk next time about the evidence. If we’re going to process them, you know, knife or firearms contact DNA. We may not have resolved for a couple of months, simply because of the nature of what forensics does. Keeping the family and the officer updated in that regard I think it’s a good idea.
Audience Question: We had a couple of webinars recently on the inclusion of civilians and citizens in a variety of positions in our review boards and disciplinary boards, etc. So what is your take on including civilians and citizens on these types of boards that have that are overseeing an officer-involved shooting?
Rick Hodsdon: I’m jaded because it’s like I spent this morning as a citizen member as chair of my state agency board on private detectives and protective security agents, technically, I’m a citizen member, but I’m probably one of the most informed citizen members in that industry you’re ever going to run into. Whereas if we had a person who really doesn’t understand law enforcement and criminal justice, in my experience, I have to tell you, I don’t know that they bring a lot to the table. Because what is their reference point? Who are they? Again, I’m worried that their reference point is television. I’ve dealt with citizens and I do a lot of public presentations on a variety of issues and I still get questions like, “Well, why couldn’t the officer just shoot the gun out of the bad guy’s hand?”. This isn’t Hopalong Cassidy. What’s your reference point? So that’s, I mean, an informed citizen, somebody who actually has a knowledge base could be helpful, but if the idea is we’re going to bring somebody in who doesn’t know anything about criminal justice and law enforcement to give us a fresh perspective, I’m just not impressed.
Audience Question: What does that multi-party discussion look like? What does it specifically entail? And so could you kind of talk through some more of those details?
Rick Hodsdon: It’s like getting together with the chief, sheriffs, prosecutors and a lot of local law enforcement organizations. Certainly, I know this is true -especially in the upper Midwest. They may be for example, a county Chiefs Association. So I’ll just use Washington County Minnesota as an example. We have about 10 or 11 police departments and the sheriff’s office. They meet on a practically monthly basis. Prosecuting attorney sits in, if somebody wants to bring civil lawyers as well. And so the Chiefs Association meeting, that’s when these kinds of issues are hammered out. It’s worth talking about joint powers agreement say when we talk about a SWAT team, and one of the topics to be put out there is, what are we going to do if we’re when we have a high profile incident, an officer-involved shooting, a use of force incident, dog bite case that caused significant bodily harm, great bodily harm, how we going to help each other out on that? And just kind of hammer that out and have a discussion and then, you know, turn your eyes to the prosecutor and say, “What would be your preference? What do you think would help give you an objective set of facts”? Turn to the civil lawyer and say, “What’s going to help us do justice, but without exposing ourselves to unnecessary civil liability?”, Just have that as a starting point for discussion. Look around, there’s probably some agencies within your jurisdiction or a couple counties over that have already done that and have some ideas and protocols and a memorandum of understanding in place.
Click Here to Watch a Recording of Officer-Involved Shootings Part 1.