Maricopa County Attorney Officer Involved Shooting Response Protocol January, 2016
MARICOPA COUNTY ATTORNEY OFFICER INVOLVED SHOOTING RESPONSE PROTOCOL PREAMBLE Law enforcement officers perform the vital job of enforcing state, county, municipal and federal laws. The enforcement of these laws can and does bring peace officers into direct conflict with subjects who may be armed and dangerous. When consistent with Arizona Law, peace officers are permitted to use deadly force. When law enforcement officers, deputies and/or federal agents use deadly force, the public has a right to expect that a complete, thorough and transparent investigation will be conducted in a timely manner and that all parties shall be held legally accountable for their actions under applicable State and federal law. The Maricopa County Attorney s Office (MCAO) and participating local law enforcement agencies have had in place a long standing practice of naming on-call personnel who will respond as soon as possible to the scene of officer-involved shootings and/or in-custody deaths to assist in a complete and thorough investigation SEPARATION OF CRIMINAL AND ADMINISTRATIVE INVESTIGATIONS Law enforcement agencies investigating an officer involved shooting/in-custody death have the responsibility to address several important issues following the use of deadly force. These important issues include: (1) whether any criminal laws have been violated; (2) whether any participant has incurred or is at risk of incurring civil liability; (3) whether departmental policies have been followed; (4) whether appropriate law enforcement tactics were utilized under the circumstances; and (5) revise training as appropriate. To address these issues the investigating law enforcement agency(s) may simultaneously choose to conduct a criminal as well as an administrative investigation. Because state and federal laws can and do impact the admissibility of evidence collected during these investigations, it is critically important that the two different inquiries be properly conducted. The primary duty of the elected Maricopa County Attorney is to investigate, review and determine whether any violation of criminal law occurred during the peace officer s use of force. Evidence discovered during the criminal investigation must be collected in an independent manner, separate from the administrative inquiry. Because law enforcement agencies are authorized by law to compel their officers to give statements regarding matters that are the subjects of administrative investigations, these statements are not considered voluntary for purposes of a criminal investigation. Involuntary statements are not admissible in any future criminal prosecution. Therefore, it is very important from the outset of an investigation to clearly distinguish the processes of a criminal investigation from any administrative inquiry.
The primary MCAO employee charged with responding to all Officer Involved Shootings and/or In-Custody Deaths is the MCAO Law Enforcement Liaison (LEL). The MCAO LEL, or another designated qualified Deputy County Attorney, is on call 24 hours a day, 7 days per week. The LEL is equipped to respond anywhere in Maricopa County to assist State, County, Municipal and/or Federal Law Enforcement investigators with the complete and thorough implementation of this protocol. MCAO will work with the investigating agency to ensure that the inquiry is conducted in a transparently professional manner that will serve the best interests of the involved officers who engage in lawful conduct, their departments, the community and any victims so affected by the conduct arising from law enforcement s use of deadly force. The objectives of this protocol are to accurately, thoroughly, and objectively investigate in a timely manner all relevant evidence and to assess criminal liability, or lack thereof, of any involved officer or deputy. INCIDENTS TO BE INVESTIGATED This protocol shall be followed for all officer involved shootings and in-custody deaths. The protocol is applicable in the following circumstances: 1.) A State, County, Municipal and/or Federal Law Enforcement Officer discharges his/her weapon while interacting with another person. 2.) An individual dies or sustains serious physical injury during contact with law enforcement, during arrest, or while in the custody or control of a law enforcement officer or agency. This protocol will apply to all incidents within Maricopa County. This protocol will also be implemented whenever MCAO is asked to respond to an incident to assist another jurisdiction. The agency may choose to implement additional protocols or policies for other use of force incidents. NOTIFICATION OF LAW ENFORCEMENT LIAISON It is the responsibility of the law enforcement agency investigating an incident to notify the on-call LEL or his designee. Notification should be made as soon as possible. Each agency will notify the LEL immediately after notification is made to its own investigators. The LEL On-Call Schedule is published weekly. The schedule is available from the Maricopa County Sheriff s Office Dispatch Desk. Upon contact, the MCAO LEL will be given a brief summary of all the facts known at the time, including: location of the incident, command post location, suggested access routes and any safety concerns. An early response to the scene of an incident is critical to protecting the integrity of the investigation and maintaining public confidence in any conclusion regarding the conduct of the parties involved. 2
If the suspect(s) who sustain injury have survived, the MCAO LEL will notify MCAO Investigations and/or MCAO Homicide On-Call Deputy County Attorneys to respond to the scene. They will focus on whether the suspect(s) engaged in any criminal conduct and whether criminal charges may be forth coming. THE SCENE The investigating law enforcement agency shall have primary responsibility to conduct a thorough, objective, timely, and professional investigation of the incident. They shall be responsible for securing the incident location(s), collecting all physical evidence, photographing and/or diagramming the scene, and interviewing witnesses. The MCAO LEL will work in a collaborative manner to assist the investigating agency in the identification and preservation of all relevant evidence. The LEL is present to observe the on scene investigation and provide technical assistance to the investigating agency in preparation for the pending review of the incident by the MCAO Officer Involved Shooting Committee. If the LEL determines that additional investigative resources are necessary for a thorough investigation, the LEL will coordinate with the investigating agency. BRIEFING As soon as possible, the agency in charge of the criminal investigation will provide the LEL with an initial briefing of the incident. The briefing will consist of all relevant information known at that stage of the investigation, including but not limited to: 1.) The names and present whereabouts of the officers involved in the incident; 2.) The names, addresses and present whereabouts of all civilian witnesses to the incident; 3.) The statements of the officers provided to first responders; 4.) The physical evidence discovered; 5.) A summary of witness statements and the status of the investigation; 6.) Introduction to the case agent; 7.) The medical condition of all injured parties. 8.) Any video and/or audio recording of the incident. The agency in charge of the criminal investigation should ensure that only necessary personnel are present at the briefing. 3
INVESTIGATION The responsibilities of the on-scene MCAO LEL shall include the following: 1.) Observe and monitor the investigative agency s criminal investigation; 2.) Assist the assigned case agent on legal issues as they relate to the investigation; 3.) Assist case agent with the identification of relevant evidence and the interview of witnesses; 4.) Assist case agent in addressing legal issues relevant to the investigation and any subsequent MCAO review; 5.) Report back to the County Attorney in a timely manner concerning the initial findings of the criminal investigation. The case agent will ensure that the LEL has access to the scene of the investigation. The case agent and LEL will conduct a walk-through of the scene after the briefing and before any interviews are conducted. All evidence shall be preserved and shall remain in the custody of the police agency conducting the investigation. If the LEL determines that additional personnel are needed to assist with the investigation, the LEL may summon on-call deputy county attorneys or detectives to the scene. INTERVIEWS OF WITNESSES The investigating agency will make every attempt to locate, identify and interview all potential witnesses to an incident. The MCAO LEL may be present and participate with the investigating agency in interviews of any witness. During the pendency of the investigation and prior to the interview, all witnesses or potential witnesses will be kept separated to maintain the integrity of their individual statements. All witnesses shall be interviewed separately to maintain the integrity of their statements. All interviews will be electronically recorded. Any circumstances preventing recording will be fully documented. The interviews should take place as soon as is practical. When appropriate, the interviews may take place at the scene to aid a witness in recalling and explaining the exact location of the parties and the events that took place. 4
INTERVIEWS OF INVOLVED OFFICERS The MCAO LEL will participate in interviews and the scene walk-through with the involved law enforcement personnel. For peace officers acting under the color of lawful authority, the interview must be voluntary. The case agent will electronically record the voluntariness waiver as well as the interview. The interview is non-custodial in nature; therefore, Miranda Rights are not required to be read to an involved officer. The involved officer may have their defense attorney present. However, no other personnel will participate in the walk-through without the permission or direction of the case agent. Under no circumstances should members of the involved employee s chain of command and/or administrative investigation be present during an involved employee s interview and/or walk through. All decisions to grant a voluntary interview will be made face to face between the case agent, an involved officer and when applicable, their legal counsel. If an involved officer chooses not to make a statement, the MCAO LEL and a representative of the investigating agency will meet and immediately review the available investigative options. MEDICAL EVIDENCE When an individual has been wounded by the police, the investigative law enforcement agency shall contact treating medical personnel and make efforts to preserve physcial evidence such as the angle of bullet entry, lacerations, contusions, clothing and/or the presence and effect of any drugs or alcohol. EVIDENCE COLLECTION AND WEAPON EXCHANGE All relevant physical evidence will be documented, photographed, and impounded. Relevant evidence may include firearms, magazines, duty belts, tasers, handcuffs, batons, knives and other police gear including uniforms and other clothing. Body Worn Camera; Dash Camera; Taser Camera; Aircraft Camera and/or Cell Phone Camera recording(s) related to the incident shall be impounded as evidence. Departments should be prepared to replace any seized items immediately. No police officer acting in good faith under the color of law should be disarmed while on scene. Other items should be replaced as soon as possible. As required by Ethical Rule 3.8, evidence shall not be commented on and/or released to the media until MCAO has had a reasonable opportunity to review the completed case file and has made a formal charging decision. 5
INVESTIGATIVE REPORTS It is the intent of MCAO and participating law enforcement agencies to complete their review of these matters as quickly as possible, consistent with the primary goal of conducting a thorough and objective review of the evidence. The investigating agency will submit all relevant reports regarding the incident to the MCAO LEL as soon as possible. Not later than 30 days after the incident, if the investigation has not been completed, a summary of the status of the investigation and estimated date of completion shall be provided to MCAO s LEL. Supplemental reports should be forwarded to the MCAO LEL as they are completed regardless of whether all reports are completed. This procedure will permit the MCAO review to proceed simultaneously with the investigation. It will also permit timely requests and completion of any additional investigation and clarification of completed reports, if required. FINAL ACTION At the conclusion of the investigation, the Maricopa County Attorney s Office Officer Involved Shooting Committee will review and analyze all the evidence to determine whether an officer acted consistent with applicable State and/or federal law. If the determination is that an officer s use of force is not authorized by applicable State and /or federal law, the committee will determine whether a reasonable likelihood of conviction exists to permit filing criminal charges. A recommendation will be made to the County Attorney for a final decision. Once a final decision is made, the LEL will provide written notice to the Chief, the case agent and the involved employee. 6