Cops & Criminal Charges: Tips from an Attorney

December 16, 2019

By Attorney Dan Herbert

[Editor’s note: Attorney Dan Herbert is a former Chicago police officer, Cook County (IL) prosecutor and in-house counsel for the Fraternal Order of Police. He now heads a team of law enforcement defense attorneys at the Herbert Law Firm in Chicago. Over his career, Dan has defended scores of officers in both criminal and civil cases involving use of force. He reached out to Calibre Press to share some tips he felt officers nationwide should be aware of.]

A police officer’s biggest fear is that they will be killed or seriously injured during a tour of duty. A close second is the fear of being charged criminally for using deadly force. In the past, it was extremely rare that a police officer would be charged with a crime. However, in today’s climate, the concern is genuine.

There have been recent examples of irresponsible prosecutors charging police officers with first-degree murder for on-duty shootings even though neither motive nor malice existed when the officer made the split-second decision to shoot a perceived assailant. We can’t assume that a prosecutor will have the fortitude to ignore public pressure and base a charging decision on the evidence alone.

Law enforcement officers must anticipate and prepare for intense scrutiny surrounding the shooting. If the shooting is that of a white officer shooting a minority offender, odds are high the narrative will be spun and activists will likely unleash accusations of racism. The reaction of the public is out of our control.

However, there are ways to control some of the damage. The goal is to have the shooting assessed simply on the evidence, not on ancillary and inflammatory issues that play right into rampant false narratives.

Here are some tips that can help:

Tips related to officer-involved shootings:

1. Make it a priority to always stay current with the law and department policy concerning use of force.

2. Know your rights as granted in statutes, collective bargaining agreements, and policies.

3. As soon as possible after a shooting, consult with an attorney knowledgeable in police use of force.

4. NEVER give a voluntary statement to an investigator in a case where there is any chance of criminal charges being brought. The only statement an involved officer is required to make at the scene of a shooting is a Public Safety Statement to a supervisor. Think of every shooting as having the potential to become criminal.

5. Insist that it be made clear that the officer is being given an “order” to provide a Public Safety Statement and that he/she will be fired if they refuse.

6. Make sure that any statement attributed to you is accurate.

7. Depending on your department’s policy regarding body cameras, do not turn off your camera immediately after the shooting. Of course, you must be careful what you say with it on but allowing it to run will protect against false accusations of “getting stories lined up” while the camera was off.

8. Review any video evidence available, including body camera and dashcam video. If you’re aware that video exists and you have not been allowed to review it, make that clear during any compelled statements.

9. Do not conform your statement to the video. The footage will likely differ from your memory of the incident in one way or another. A considerable amount of study has gone into this phenomenon and can be explained at a later date.

10. If your decision to shoot was based on the protection of life, thoroughly explain that–in detail–and make clear the reasons you felt that someone’s life was at risk and deadly force was necessary to protect it. Avoid using overly technical “police-speak.” Instead, humanize your comments (“I thought he was going to kill me or my partners.”)

11. Be aware that any public discussion about the incident, including comments on social media or to fellow officers or civilian friends in private conversations, is subject to legal discovery and those who heard it may be called to testify.

12. Expect cell phone and email records to be subpoenaed.

13. Review all of your social media postings and make sure that nothing exists that could be used to suggest any racist beliefs. A better idea would be to deactivate any social media accounts as soon as possible after the shooting, if not as a practical matter. The media is good at getting information quickly, such as the name of the shooter. The first thing they will do is research any and all social media accounts.

14. Consider advising family members to deactivate their social media or to switch from a public profile to a private profile. The media will search for family and friends’ accounts.

15. Be prepared for the media to come to your house and try and get a comment from you or members of your family. Most lawyers will instruct you not to speak with them and instead politely refuse to make comments based upon advice from your lawyer.

16. Take care of yourself. If you are allowed time before giving a compelled statement, take advantage of that time and try and get as many cycles of sleep possible.

If you are being criminally investigated:

1. Criminal charges will rarely be immediately imposed in an on-duty shooting. The process usually involves a thorough review of evidence and sometimes a grand jury investigation. If prosecutors become exposed to any of the shooting officer’s Garrity-protected statements, it could taint the investigation and result in a decision to forgo charges or dismiss charges already brought.

2. Use this time to secure legal counsel if you have not done so already. Consult with them about the process.

3. If charges seem likely, take steps to secure bond. Your lawyer should be able to provide a proper estimate of the bond.

4. Consider moving your family to a different location, such as a friend or family member’s home.

5. Do not discuss the shooting with anyone unless the conversations are privileged, such as those with your lawyer or spouse.

6. Consider securing outside employment in the event that you are put in a “no-pay” status pending the outcome of criminal proceedings.

If you are criminally charged:

1. Prepare your family for the announcement of charges.

2. Have your lawyer negotiate with prosecutors about the procedures for arrest and processing. In most cases, your lawyer should be able to arrange a streamlined process wherein the client will spend as little time in custody as possible before a bond hearing.

3. Be a professional. Do not question your decision to use deadly force. Resist any negative thoughts that may attempt to enter your mind.

4. Respect the process. You probably never thought you would ever be a criminal defendant for doing what you were trained to do, but you are a pro and you understand your situation for what it is.

5. Look presentable for each and every court appearance. Be respectful of the court staff, the prosecutors and the press. This will not be easy. However, allow your lawyer to bring the fight. Do not allow yourself to be provoked.

6. Take care of yourself physically. Try and get proper rest, nutrition and exercise if possible.

7. Your attorney may advise you to testify, given the nature of the charges and the likely defense that deadly force was required to protect your own life or another’s. The trier of fact will want to hear the reasons you believed deadly force was necessary. Criminal defendants are supposed to be innocent until and only if proven guilty. However, the reality is that in many cases involving police use of deadly force, the officer must convince the judge or jury that their fear was reasonable.

8. Be cognizant of your body language at all times. All eyes will be on you, even when you are not on the witness stand. Do not be afraid to show your human side. Laughing, smiling, even crying at appropriate times can be very effective if it is genuine. This is not something that can be faked.

9. Finally, maintain a positive outlook. The system does not always work, but we must expect and presume that it will.

For additional advice or insights, please feel free to contact Dan and his team at the Herbert Law Firm.

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