Reserving the Right to Remain Silent


If you were a peace officer, would you provide a voluntary statement if involved in a deadly encounter, or would you reserve the right to remain silent?

Ask this question in roll call, and it will surely generate interesting debate.

When a person dies at the hands of another, no matter how justified, it is classified a homicide. This does not equate to murder, but it needs to be investigated like one.

That makes a very uncomfortable proposition for the officer involved in a deadly encounter. As if the incident were not stressful enough, the aftermath can be even more agonizing.

Cops are taught to detect and investigate crime. We take statements, collect evidence, and isolate suspects to avoid conspiratorial collusion. That’s what we do. We ARE the authority.

But it’s a sobering turn of events when the shoe is on the other foot. When we have to take the life of another, we are no longer in charge while being investigated for simply doing our job during extraordinary circumstances.

Now the officer feels like he or she is doing the “perp walk” when surrendering his or her uniform and handgun during the investigative process. Some jurisdictions require blood to be drawn and a gun shot residue test. That makes you feel like a million bucks!

Along with those events comes isolation from other officers involved in the same traumatic event. Compiled together brings a sense of uneasiness never experienced before.

Then comes the chilling admonishment from the independent investigator, “You have the right to remain silent. …”

Huh? Wait a second, you think privately. I’m the good guy.

For those who’ve faced this scenario, you already know what you’d do, since you’ve done it. But those who haven’t should give it some thought.

There are some very important considerations when you’re involved in a deadly encounter, particularly in our current political climate:

  • Peace officers are required by law (Ward v. Portland) to provide a public safety statement. Beyond that, it is always in your best interest to seek legal counsel before volunteering anything else, no matter how justified your actions are.
  • If feasible and within your control, wait until the adrenaline rush has subsided before providing a voluntary OR compelled statement.
  • Avoid caffeine after the event.
  • Request the investigative authorities take photo’s and collect evidence from your person as soon as practical so you can clean up and change into comfortable clothing.
  • Know what to expect physiologically and biologically during such an encounter. Read here for details.
  • Know and understand you are the focus of potential criminal culpability.
  • Find out what the accepted or unaccepted protocols are for officers involved in a shooting in your jurisdiction.

How these steps are processed are of prime importance toward returning employees to duty. Positive or negative actions during the investigation will have lingering effects.

Deciding to provide a voluntary statement is vitally important to the successful prosecution IF the bad guy lives. The prosecutor loses a star witness if your statement is compelled. On the other hand, if the circumstances are less than stellar, you could lose your freedom if you’re prosecuted, regardless of your best intentions.

It can be an easy decision in certain conditions, yet an agonizing one in the perfect storm. The best way to handle the tempest is to prepare for it before it arrives.


– Jim McNeff, editor-in-chief, Law Enforcement Today

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