111Recently, there have been several incidents involving police shootings of civilians. Shortly before the writing of this article, members of the New York Police Department opened fire on a gunman in the Empire State Building. Reports vary as to whether bystanders were shot by police or simply wounded by ricochets or fragments from damaged property.

These incidents are devastating to family members and to the officers themselves. The question of negligence by the officer can only be determined by an independent review of the facts. This is problematic, however, since the circumstances of police shootings are cloaked in a variety of internal reports and documentation that are not quickly available via public records requests by non-law enforcement personnel.

For the plaintiff attorney, an independent investigation should merit the skills of an experienced legal investigator to assist in gathering whatever documentation may be available. Here are some of the challenges and suggested steps to take to accomplish the objective of determining what happened.

First, recognize that the shooting is an “open investigation.”  Therefore, reports from the officer and the agency will usually be shielded from disclosure via a public records request as long as the investigation by the agency is “open.” This limits a significant part of the discovery until such time as the investigation is closed, usually as the result of a grand jury proceeding. The local state attorney or prosecutor’s office will present evidence gathered by the investigating agency to the grand jury.  The jury will make a determination of probable cause and determine whether or not the shooting was “justified.”

This process can take weeks, months, or even years. Here in South Florida, a police shooting in Palm Beach County was determined to be justified two months after the incident. In Broward County, the process may take up to two years. However, significant information can be developed in that time. An experienced investigator can tap multiple sources to gather and review information that will assist the attorney in making a preliminary determination of liability.

News articles and video from telecasts should be collected and reviewed. This will usually provide the officer’s name, the location of the shooting, and may disclose names or unit numbers of other agencies or officers present at the scene.

911 and CAD reports can be requested from the involved agency or from neighboring agencies. For instance, in the instance of a municipal officer case, the local sheriff’s office may be providing dispatch services. Submit requests to both the municipal agency and the sheriff’s office for CAD reports and 911 call logs from civilians to the agencies. The CAD reports will document the internal communications from responding officers, as well as identify all the officers present at the scene before, during and after the shooting. Exact times and sequence of events will be noted in the CAD report. 911 logs will document the details of civilian reports to the police. These callers will not be identified in the 911 log (emergency caller information is not subject to disclosure per state statute), but often they can be identified through a neighborhood canvass. Sometimes the 911 calls will reveal statements that conflict with what an officer may claim in his report.

Fire rescue reports filed by responding EMTs may be available with a release by the decedent’s personal representative. These reports contain medical information that will be critical to determining the circumstances of death. Since the fire rescue agency is usually independent of the law enforcement agency involved, they will typically respond to a proper release without claiming the “open investigation” exception.

Reports from neighboring agencies may be available. For instance, if an incident in another municipality triggered the event that resulted in the shooting (car chase, theft, assault/battery), that agency will have a report filed documenting the circumstances of the earlier event. If the officer involved in that incident responds to the scene of the shooting, his or her version of events will be documented in that agency’s report.  Also, “assisting other agency” (AOA) is a common circumstance in local jurisdictions. Submit requests to neighboring agencies to cover this possibility.

Crime scene reports should be requested.  If the officer is with a smaller agency, an outside agency will likely be called in to conduct the crime scene investigation. That agency’s crime scene report will be a tremendous help in determining the circumstances of the shooting. This report may be available through a public records request. The report will include details unavailable elsewhere, such as information about the scene, comments by the involved officers, location of shell casings, vehicles, and other items recovered at the scene. Most importantly, it should reveal whether the decedent was armed, or believed to be armed, at the time of the shooting and what items were present with or nearby the decedent at the time of the shooting. This is critical information to the plaintiff attorney, as the presence of a weapon dramatically impacts a potential negligence case.

Aviation unit reports should be requested. If the agency calls for an aviation unit from the local sheriff’s office or large municipality, those records should be requested. The reports will include names of the pilot and co-pilot, and will establish whether the unit was on site and using a floodlight to illuminate the scene at the time. If the decedent was flown from the scene for emergency medical treatment, those records should be requested, as well.

The medical examiner’s report should obviously be requested, but will likely not be made available until after the investigation is completed. However, we have obtained a copy of the medical examiner’s report by requesting records from the hospital where the decedent was taken after the shooting. It seems that the medical record was not considered complete without the ME’s report. This is critical information to the plaintiff attorney, as it specifies the details of the shooting and its impact on the decedent. It describes the trajectory of the wounds and the exact cause of death. It may provide information about whether the decedent was under the influence of narcotics or other substances at the time, though the toxicology report itself may take weeks or months to be completed.

“Use of Force” standards of procedure should be requested.  Request a copy of the department’s “use of force” procedures or general orders. These procedures provide detailed information about the criteria established by the agency as to the permitted use of increasing levels of force by their officers.

Neighborhood canvasses should be done as soon as possible. These interviews will help to identify 911 callers and eyewitnesses to the shooting or the circumstances before or after. Often we will discover “ear-witnesses” who hear shouting or commands, or even the decedent pleading for his life. On many occasions, our investigators have located witnesses who had relevant information, but were never interviewed by law enforcement agents or internal affairs investigators. This is extremely valuable, since it brings into question the objectivity of the internal investigation conducted by the law enforcement agency. This may take significant time and energy, since people in different economic conditions can be highly transient. Contact neighbors, landlords, and motor vehicle and utility records to identify and locate potential witnesses.

Internal Affairs and personnel files should be requested.  No preliminary investigation is complete without an examination of the officer’s personnel and internal affairs file. For a negligent hiring/retention case, it will be vital to understand who the officer is, what his background training and employment consists of, and the circumstances of other incidents of “use of force.”

Finally, don’t forget to include a background investigation on the officer himself. Has he gone through a difficult divorce or custody battle recently? Does he or she have a history of substance abuse? Are there complaints of domestic violence filed at the local courthouse? All of these personal issues factor into an officer’s mindset at the time of the shooting. Whether these are relevant to the question of liability cannot be determined until all the facts are known, but it is better to have the information than not have it at all.

For a thorough investigation into the circumstances of a police shooting, call the experienced legal investigators at Complete Legal Investigations, Inc. at 561-687-8381. We can help you determine if liability exists, and bring closure to your client’s family about what happened on that fateful day.