Guidelines for Investigating Officer-Involved Shootings, Arrest-Related Deaths, and Deaths in Custody

Darrell L. Ross, Gary M. Vilke

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317199830
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

As unrest over officer-involved shootings and deaths in custody takes center stage in conversations about policing and the criminal justice system, Guidelines for Investigating Officer-Involved Shootings, Arrest-Related Deaths, and Deaths in Custody addresses critical investigation components from an expert witness perspective, providing the insights necessary to ensure a complete investigation. Investigating a custodial death or an officer involved in a shooting presents unique and complex issues: estate, community, judicial, agency, involved officer, and public policy interests are all at stake. These types of deaths present various emerging medical, psychological, legal and liability, technical, and investigatory issues that must be addressed through a comprehensive investigation. This book is ideal for students in criminal investigation, death investigation, crime scene investigation, and special topic courses in custodial deaths and officer-involved shootings, as well as for death investigators, law enforcement officers, police administrators, and attorneys.

1
ARREST-RELATED DEATHS, EMERGING QUESTIONS, AND COMPETING EXPECTATIONS IN INVESTIGATIONS

Darrell L. Ross, Michael Brave, and Mark Kroll

Introduction

Ask most any medicolegal investigator, investigating an arrest-related death, officer-involved shooting, or suicide death in custody, and he or she will comment that these classifications of deaths present some of the most complex and challenging death investigations they are required to perform. Prior researchers have reported that deaths classified into these categories are among the most highly charged and emotional cases investigated by coroners or medical examiners (Lifschultz & Donoghue, 1991). Luke and Reay (1992) noted that investigating deaths in police custody is considered a “perilous and a slippery slope, in the never-never land of death.” Reay (1998) further reported that a death in police custody, due to unsubstantiated facts and rumors surrounding the death, has the potential for controversy, and major disturbances have erupted because of alleged police misconduct. Moreover, Southall et al. (2008) reported that a death during arrest or while in police custody is one of the most contentious and controversial cases facing the medical examiner.

An arrest-related death is defined as a person who dies during the process of arrest, who may be under restraint and custody, and dies on scene, during transport, or at the hospital (Burch, 2011). The sudden death may also occur during arrest or confinement, which involved a violent and combative detainee who vigorously fought with the police during control and restraint, and was under the influence of a chemical substance and/or was experiencing symptomologies of a mental illness. A sudden custodial death may also occur in a mental health facility during the course of controlling and restraining a combative mental health patient. An officer-involved shooting most generally occurs during a police arrest/intervention of a person, or during the police investigation of a suspicious person or circumstance which poses an imminent threat to the officers or others, requiring the use of lethal force. Some officer-involved shootings may also involve, although rarely, a corrections officer or parole officer discharging his or her firearm while performing sworn duties. A custodial death by suicide generally occurs during the confinement of a detainee or prisoner in a jail or correctional facility. Detainees have also died in custody due to an excessive use/abuse of chemical substances. While any one of these death classifications is a statistically rare event, they can present significant problems for those tasked with conducting varying aspects of the investigation. Graham (2014) noted that the medicolegal investigator assigned to investigate and certify the custodial death bears a heavy responsibility to the decedent’s family, the public, law enforcement, and other institutions while performing the investigation.

Concerns about arrest-related custodial deaths and officer-involved shootings stem not only from their limited frequency of occurrence, but from the potential consequences and aftermath of the incident. In a police use of lethal force shooting incident, and in a custodial suicide death, the cause of death is generally clearly identifiable. In an arrest-related death, where the individual suddenly died after a violent restraint confrontation, the cause of death may not be so apparent. The responding and restraining officers may use the same control techniques and less-lethal force equipment they have used on previous occasions, without significant injury sustained by the arrestee, let alone a death. But in an arrest-related death, the person suddenly and unexpectedly dies within a short time after restraint on scene, during transport to the hospital, or at the hospital.

Compounding the incidence of many sudden death cases, a negative autopsy may result, indicating no definitive cause of death was determined. As a result, pathologists are left to theorize about the potential contributing factors or causes of death, including the person’s underlying medical (cardiac or pulmonary disease), the acute state of the person (drug-induced state or psychosis), and the use of force and restraint equipment and devices used by law enforcement officers (Chan, 2006).

Regardless of the cause of death, the involved officers, their supervisors, the agency administrator, and ultimately the city and/or county of the involved officers, will be blamed. Veteran officers, administrators, investigators, and medical examiners know too well of the potentially devastating aftermath of these death incidents, as they involve: loss of life; bereavement of the affected family; emerging questions regarding the involved officers’ actions and involvement in the incident; strained police and community relations and trust; protests and rioting, which result in social and economic crises in the affected cities; riots and disturbances in confinement facilities; internal affairs investigations; prosecutorial investigations and potential criminal charges filed against the officers, which could result in a criminal trial; initiation of civil litigation filed against the officers and the agency; possible termination of the involved officers; and possible civil rights investigations by the Department of Justice (DOJ).

Frequently, following an arrest-related death, death in custody, or officer-involved shooting, protests and riots have erupted, causing destruction to property and businesses, for example: the police shooting in Ferguson, MO in 2014 of Michael Brown; the custodial restraint death of Eric Garner in 2014 in New York City, NY; the custodial death of Freddie Gray in 2015 in Baltimore, MD; the shooting of two motorists in Cleveland, OH in 2012, followed by the acquittal of the officer criminally charged in the shooting; a shooting in Cleveland, OH of a youth with a starter pistol, where the involved officer was acquitted; and the prosecution of an officer who shot a youth with a knife in Chicago, IL in 2015, which was captured on video. All of these incidents represent examples of community members protesting and rioting. In the Freddie Gray custodial death incident, six Baltimore police officers were prosecuted, which resulted in three officers being acquitted, one trial resulted in a mistrial, and the charges were dropped against the other two officers (Stolberg & Bidgood, 2016). In addition to community unrest, criminal prosecution of the involved officers and filing of §1983 civil federal lawsuits against the involved officers and the law enforcement or correctional agency also occur.

Since the passage of the Violent Crime Control and Law Enforcement Act of 1994 by Congress, the common trend following an arrest-related death is for the Department of Justice to conduct a civil rights investigation into the incident, in accordance with Title 42 U.S. Code §14141. The past trend had been for the DOJ to conduct a civil rights investigation after the grand jury convened or after the conclusion of a criminal trial. However, the DOJ commenced its investigation into the Baltimore, MD police department prior to the criminal trial of the six accused involved officers. To date, the DOJ has conducted investigations into each of the aforementioned departments, except in the incidents in New York, and found a systematic pattern and practice of violating the constitutional rights of citizens, resulting in the departments entering into legal agreements to remedy those identified practices. As of 2016, there are 39 law enforcement agencies under some level of federal oversight in accordance with §14141 since 2009 (Department of Justice, 2016). Even though the officers’ conduct was exonerated in Ferguson, Baltimore, and Cleveland, the DOJ conducted investigations into the police departments and all resulted in consent decrees (Department of Justice, 2016).

Prior to 1998, little research had been conducted on the nature of arrest-related deaths, officer-involved shootings, and custodial suicide deaths. Since 1998, a plethora of research has been performed on varying components of arrest-related deaths, enhancing not only our understanding regarding the nature of these deaths, but also enhancing the investigatory protocols for those who perform these investigations. For example, Laub (2011a), based on the collective research of medical and police experts, provided recommended and applicable protocols appropriate for conducting an investigation of a death after the use of the TASER. The Psychological Services Section of the International Association Chiefs of Police (2013) has published its recommended protocols for investigation of officer-involved shootings. Moreover, Hall et al. (2012; 2015) and Ross and Hazlett (2016) reported similar but independent findings of prospective analysis of the outcomes of violent prone restraint incidents in policing and detention centers. The field research findings confirmed what past reputable laboratory experiments have found since 1998, that controlling and restraining a combative person in the prone position is not associated with positional asphyxia, causing the death of the person. Neither study reported a death from placing the person in the prone position, even when a significant number of the individuals were under the influence of a chemical substance or exhibited symptomologies of a mental illness, and various force measures were used like the TASER, aerosols, empty-hand control techniques, and various restraint equipment.

Conducting an investigation into any of these death categories can pose problems and significant challenges for the investigator (Ross, 2015). The National Academy of Sciences (2009) recommended that efforts be targeted toward improving medicolegal death investigations. While efforts have been instituted to improve the skills of death investigators since this recommendation, no text has been published since the NAS recommendation, which specifically addresses the investigation issues surrounding arrest-related deaths, officer-involved shootings, and custodial suicide deaths in confinement. This book is specifically designed to address the many associated issues involved in performing an investigation on these topic areas. In this chapter the questions which emerge from these investigations are addressed and the expectations of those involved or impacted by the investigation are presented.

Medicolegal Death Investigations

The tasks of collecting and analyzing information about the circumstances and causes of death have been referred to as medicolegal death investigation. This term combines the dual relationship which exists between medical science and the law (Hanzlick, 2007). The primary purpose of the medicolegal investigation is to establish the cause and the manner of death (Wagner, 2008). The medicolegal investigation of death in custody requires precise and detailed examination (Hiss & Kahana, 1996). Because the death occurred during a police contact, arrest, or during custodial confinement, questions of whether the police abused their authority will also be examined.

All states, by law, require a medicolegal investigation of deaths which involve injury or that are sudden and unexplained (Hanzlick, 2007). Deaths due to homicide, suicide, and accidents, and unexplained causes are common examples. For example, the Georgia Death Investigation Act, §45-16-20 (Official Code of Georgia Annotated, 2010) requires that a medical examiner’s inquiry be made into deaths that meet the following criteria: death as a result of violence; a suicide; sudden death of a person in apparent good health; when a prisoner dies in a state hospital, or a state, county, or city penal facility; death by any suspicious or unusual manner, with particular attention to those persons 16 years of age and under; and a death of a patient under hospice care, and after having been admitted to a hospital in an unconscious state and without regaining consciousness within 24 hours of admission. Arrest-related deaths, officer-involved shootings, and custodial suicide deaths in confinement facilities fall within the purview of a medicolegal death investigation. The protocols for performing the medicolegal death investigations in these death classifications are addressed in this book.

A system for investigating these classifications of death is in place in all states, and comprises many individuals representing local, county, and state agencies. The medicolegal death investigation process includes numerous activities, which start at the crime scene and follow through to the court process. The process generally comprises the following components: securing the scene; collecting and analyzing scene evidence; taking measurements at the scene; estimating times associated with the incident; examining the body; performing numerous laboratory tests and diagnosis; interviewing witnesses; examining the history of the decedent; and court testimony (Di Maio, 2006).

In most states, the medical examiner/coroner possesses the statutory responsibility to determine the cause and manner of death. In death incidents involving the activity of law enforcement officers, the involved agency will generally investigate the scene and collect the associated evidence, but the medical examiner will maintain control of the body. Individuals responsible for investigating the arrest-related death from the involved agency may include the following: internal affair investigators, homicide investigators, crime scene technicians, and various command personnel. Individuals representing the prosecutor’s office will generally be involved and may be on scene, as well as the agency’s legal counsel and risk manager. It is important that all responding agencies represented and tasked with conducting the investigation recognize the varying jurisdictional and statutory responsibilities which apply to individual agency representatives, and that these individuals work together toward accomplishing the common goal, which is to discover the facts of the death (Laub, 2011b; Wagner, 2008). Once the investigation is finalized, the medical examiner may select among the following manners of death, including: natural causes, homicide, suicide, accident, and undetermined. This can only be accomplished by conducting a competent and thorough death-scene investigation that provides the basis for a comprehensive medicolegal autopsy, and together, the scene investigation and autopsy provide the basis for an accurate determination of cause and manner of death (Laub, 2011b).

Emergent Questions Involving Arrest-Related Death Investigations

An arrest-related death, officer-involved shooting, or custodial suicide death are considered high-profile cases requiring a detailed and complete investigation to be completed. Because the incident involved law enforcement and/or correctional officers, and since they ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Preface
• 1 Arrest-Related Deaths, Emerging Questions, and Competing Expectations in Investigations
• 2 Vital Statistics and Arrest-Related Deaths
• 3 Legal and Liability Issues Surrounding the Use of Force
• 4 Stress, Perceptional Distortions, and Human Performance
• 5 Memory and Decision Making Under Stress
• 6 Officer-Involved Incident Investigation Guidelines
• 7 Positional and Restraint Asphyxia
• 8 Neck Holds
• 9 Excited Delirium Syndrome (ExDS)
• 10 Amphetamines, Cathinones (Bath Salts), and Cocaine
• 11 Central Nervous System Depressants
• 12 Less Lethal Weapons, Not Including TASER
• 13 TASER—Conducted Electrical Weapons
• 14 Custodial Deaths in Detention
• 15 Conducting the Investigative Interview
• 16 Effective Agency Response to the Media in Use of Force Incidents
• Index