CCW Safe Podcast- Episode 69: Should You Talk To Police After A Critical Incident?

Video version of the podcast:

Transcript:

 

Rob High: Hi, welcome back to the CCW Safe Podcast. I’m Rob High, joined again by Phil Naman and we have a special guest, you guys have met him before, Gary Eastridge who’s our critical response coordinator for the department. Today we’re going to touch on some stuff. We’ve addressed this on multiple different times. We’ve had the very best in the industry answering questions and it still seems to leave some people a little short. It’s, basically, concerning if I’m involved in a critical incident do I talk to police? Do I have to give him any information? What would I say? What would you say?

Gary and I have both been in positions to be the responding investigators and things like this, and fully appreciate and respect anybody that steps forward and wants to wait until their attorney is present to answer questions. There are several things that are in that grey area that I can talk to those people. I can meet with a patrol man or investigator. There’s nothing wrong with me giving my personal information.

They need to know that biographical information. This is my name, this is my date of birth, this is where I live, my contact info, things like that. Gary is our coordinator for our critical response team, and in the event that you are involved in an incident where you had to defend yourself, your family, and there was great bodily injury or death involved, we are coming out to be with you. We’re going to help you through that process.

Phil Naman: Can I ask you a quick question here?

Rob: Certainly.

Phil: For those of us in the People’s Republic of Occupied California we don’t get everything all the time. We’re slow that’s why we still have that guy for governor. You said a critical incident and that involves bodily death. What is the actual definition of critical injury? Isn’t it anytime you’ve had to use some force or even a brandishing issue? Isn’t that when you guys want to be called almost immediately on several different levels of things, not just if the firearm’s gone off?

Gary Eastridge: Phil, when you talk about a critical incident, we view a critical incident as one where somebody either a member or member’s family or anybody in the incident has received a significant injury or death. That will prompt a in-person response from us. The more minor type incidents where you’ve brandished your firearm, or maybe you’ve even discharged your firearm but no one has been hit, that will not prompt an in-person response by our critical response team. Not to be confused with what the law recognizes as the things that are required before using lethal force, which is that threat of great bodily injury or death.

Phil: Thank you. Go ahead, Rob.

Rob: It’s just one of those deals that we always encourage our members as soon as something happens. For instance, I’m at home with my family, we have an intruder and I believe that that intent is to come in and injure somebody, to harm somebody. Depending on where you live the simple fact that they enter your home can be enough to mount a defense. The big deal there is as soon as something like that occurs, especially if I’ve discharged a firearm and shot somebody, if I don’t have an active threat ongoing, I immediately want to check on the rest of my family, make sure everybody’s safe, make sure that I’m safe. The biggest deal for me is I want to be the guy to call 911.

I don’t want somebody next door calling and saying, Hey, I heard shots fired at my neighbor’s house or something like that. I want to be the guy to report, but I also want to start emergency services and get first aid and things like that just in case. I may have somebody at the house hurt. I may be injured. It may be a non-lethal shot that I fired, but I want to get those medical services started as soon as I get the police on the way as well.

Gary: To follow up on that a little further afield, in our experience in law enforcement, the first person that calls 911 is viewed as the victim until the evidence shows otherwise. One of the issues we have had with members is they perceive a threat that warrants them to draw their firearm. That threat dissipates, but that person goes and calls 911, the member thinks, “Well, all is good,” so they don’t call 911. Now, the attacker could be viewed as the victim, since they’re calling 911 to report and our member is now viewed as a suspect until there is some evidence that would lead the investigators to believe otherwise. It’s important that you establish early on that you are a victim.

Rob: Well, I would also fill in there, Gary, that a 911 call is something that me as an investigator, that’s one of the first things I look at. I want to hear the tone of what’s going on. I want to hear what’s said because that story can change. That’s why I want to keep that information to an absolute minimum and that can be this happened in my home or whatever the incident is.

Phil: Rob, give us an example of a situation. Boom. This happens. You grab your phone. Go. 911, what’s your emergency?

Rob: Absolutely. My name’s Rob High. I live at this address. We had an intruder enter our home. I was fearing for my life. I utilized my gun. I defended my home. The guy’s shot. I need emergency medical services.

Phil: Is anyone hit?

Rob: Yes. I was a victim. I was only defending myself.

Phil: Have you been hit?

Rob: Certainly. That’s that’s always going to be something that I want to make sure that everybody has done is if there is any possibility of injury, and you have to understand what an amazing machine our bodies are, the things that we can withstand and don’t even realize it with this huge surge of adrenaline and all that stuff going on. If there’s any possibility that you have any injury or anything like that, we want to get you to a hospital and get you checked out. If there’s injuries and things, we want those properly documented.

Phil: I was trying to say if I was the 911 operator, these are the questions I would be asking you. Have you been hit? Is the other person hit? How many people? What are they wearing? One of the things that a 911 operator wants to do is to keep you talking.

Rob: Absolutely. They want to keep you on the line, but you need to understand that is part of that case file as soon as it starts. Once that goes to an investigator, that becomes part of my evidence. If I’m the one that’s involved in that incident I’m going to keep it brief. I’m going to check on my family and say we’ll be standing by for the officers as they get here, the front door’s unlocked or whatever.

Phil: You’re not going to be running down the street with your pistol in your hand saying, “Hey, over here. Hey, over here.”

Rob: No, not at all. I worked a case where the gentleman was defending himself. It was in a driveway. I thought he handled it as well as he possibly could. He fired one round, dropped a suspect. He secured his firearm in his vehicle, locked it, had his daughter call 911. She gave the information, said, “We need police and an ambulance here,” and by the time the officer showed up, the man who was involved is a physician, and he was already rendering aid to the suspect.

That’s what the officers saw when they arrived. You know what, it’s a case-by-case thing. Do I have the ability to safely do that kind of thing? He did in this case. As soon as the officers got there, he let them know, “I was attacked. I had to defend myself. I’ve secured my firearm in my vehicle. Can you tell me if that ambulance is on the way?” Because he is providing medical attention. It was a really well-done case by this guy.

Gary: Conversely, we just had that recent case within the last few weeks where a young man defended a police officer who was being attacked. The police officer ended up dying. When other responding officers showed up, the Good Samaritan still had the suspect’s long gun in his hand and responding officers perceived a lethal threat, and, unfortunately, the young man lost his life. It’s just the worst-case scenario for me personally to be viewed. Like Phil was talking about, you don’t want to be running down the street with a gun in your hand. You don’t want to have a gun in your hand.

Phil: Sometimes you don’t even realize it.

Gary: Yes, exactly [crosstalk]

Phil: You’ve get that adrenaline dump. You guys have seen in all these cases when you’re fighting for your life. When I was younger those things happened, and you got such a dump of adrenaline, number one, you got blabbermouth disease, and, number two, your fine-tune motor skills are gone. If you had a pistol, you don’t even realize it’s still in your hand, right?

Gary: Yes.

Rob: Correct.

Phil: Can be.

Gary: If you’re going to make the decision to carry a firearm to protect yourself, this is one of the reasons it’s important to seek out training to do a little bit of stress inoculation to where you’re used to stressful situations because the aftermath can be very tragic as we saw on that case. Rob and I have responded to a lot of hot calls. I spent 11 years in the patrol division before I went into investigations. When you’re rolling up on that call, you don’t know who is good guys, you don’t know who is bad guys. When somebody is running around with a gun in their hand, they’re perceived as a threat.

Phil: Go ahead.

Gary: I was just going to say, generally, the dispatchers will give them a warning, “Hey, make sure you’ve put up your gun.” But there’s no guarantee that that will happen.

Phil: We all saw a case last year in Wisconsin, I believe it was, where a young man was involved in an incident. He actually approached the police officers with a carbine slung around his neck, hands up, walked to them, and they just drove by him. [laughs] How crazy is that night when it’s like, “Hey, you with the AR-15 who’s trying to surrender, we don’t have time for that. We got other stuff to do.” [chuckles]

Gary: We’ve all seen unique situations. Rob and I can tell you about when we responded to the bombing site here in Oklahoma City. It was utter chaos. We didn’t know if we had a natural disaster, or maybe some kind of accident with a gas pipeline, or if we had a terrorist attack. Is this an ongoing attack? The situation, the environment is going to dictate, a lot of times, your response.

Rob: Some of the other stuff as far as preparing for the officers’ arrival, we have made the phone call, we’ve requested medical, we’ve touched on that fact that let’s not have a gun in our hands if we don’t have to when law enforcement rolls up. Now, if there’s multiple violators, multiple suspects, and I have to maintain a position of cover or taken a hard corner at my house or anything like that, it’s something I’m going to let 911 know, “I think there’s somebody else there. I haven’t seen them. This is what we’ve got.”

Phil: Like the scenario I was thinking about, the doctor, now, obviously, I’m sure he made sure there wasn’t anybody else before he locks his firearm in his car, and turns his back to take aid.

Rob: He knew the people involved and he knew that’s all that was there. He had that knowledge. It was a known person, a domestic related incident. Once law enforcement is there I want to make absolutely certain because like Gary’s talking, you’re rolling in on a call like that, that’s a hot call. That’s something that you’ve got your radar up on your arrival. You’re talking about the case in Wisconsin and they drive right by a kid with a slung rifle. I’ve seen things, Gary’s seen things where guys were just oblivious and didn’t even see it. That may be the case in that case. They may have just drove by and not even realized what he had.

It’s a really big deal to me that if I’m the guy there and I’m waiting for the responding officers, as soon as they’re present, my hands come up. I want them to see my palms. I want them to know that I’m not holding anything because they know they’re coming into a situation involving a firearm. Their antennae are up and they’re looking all over the place, looking for a possible threat because they don’t know for a fact that it’s done until they’ve arrived and been able to assess that for themselves.

Gary: Let me touch on something real quick just kind of off topic. Rob mentioned hard corner. We’ve used that in several in several articles that we’ve shared. All a hard corner is is a position of tactical superiority where you can be out of sight from any intruder. It can be a corner of a room where you can’t be seen from a window, from a hallway, from a doorway, that gives you some cover and or concealment. I just I’d throw that in there in advance of all the emails I’m sure we’ll get wanting an explanation of hard corner. When I first heard it I had to google search it and figure out what it was that they were referring to.

Rob: Another piece of that is once those officers have arrived, don’t be surprised if you get put in handcuffs. Don’t be surprised if they tell you lay down on your face, spread your arms, spread your arms, spread your feet, do this do that. Just comply. Follow their directions. I want to put them at ease as soon as I possibly can because, I promise, they are arriving a little amped up too. Once those things are going on, there’s nothing wrong with saying, “Listen, I’m a victim. I’ve already contacted my attorney. He’s on the way but he’s advised me not to make a statement until he’s here. Exercise that right. There’s nothing wrong with doing that.

Phil: When we come back from the break I think it’s important that just like where we’re doing a little bit of a mock 911 call, “Hey, here’s the situation.” Maybe, Gary, you can be the bad guy or not a bad guy. You be the police officer. Th detective taking evidence that you feel like you may or may not have used against you. Rob, you’re the victim in this case. We’ll cut to a break on this and when we come back we’ll do some play acting. You guys have your roles, you’ve got your hats on, we’ll good with that. All right, folks, ccwsafe.com, we’ll be right back after this.

And go. [chuckles] You want to bring it in or you’re good?

Rob: I’m good. Welcome back. We’re still here with the CCW Safe Podcast. It’s Rob High, Phil Naman, and Gary Eastridge. We’ve been discussing today whether you should or should not speak with law enforcement if you’re involved in a shooting incident or a critical incident that’s resulted in a significant injury or death. We, obviously, have the experience to look at this from all sides having been investigators on these cases as well.

We just finished with talking about I’d let a responding officer know that want to cooperate fully, that I’ve contacted my attorney and he’s advised me not to speak and I’m going to heed that advice until he’s present. Not to worry about making an investigator angry or a patrolman angry, or something like that. It’s not a personal thing. It’s my rights as a citizen. I have to understand that it could result in my being handcuffed or put in the backseat of a patrol car, but that’s not a punitive thing. If an officer is involved–

Phil: Look, that is a punitive thing. Those of us who are CCW carriers, you look at the charts of how many crimes do CCW carriers commit versus even police officers, and they’re even lower than that. These are not people who are used to riding in the backseat of a police car. They may have been on ride-alongs in the front seat, but they’ve certainly never seen the backseat of a police car. That is a traumatic effect. Just a personal feeling of, “I didn’t do anything wrong,” or betrayal, or something like that.

It could be a traumatic effect for somebody who has always been on the right side of the law, and in this situation responded correctly, defended their life. They’ve got an adrenaline dump and now they’re seeing the police officers crushing them as a criminal, something they despise, and putting them in the backseat of the car. I think that is a real mental doggie downer, if you will, on that, and that could just crush somebody emotionally as they’re getting in there.

Gary: I think what Rob’s referring to is what the officer is doing is not being done with the intent to penalize or criminalize your behavior. It’s a procedure of gaining control until you can get the information. You mentioned concealed carriers. What if both are concealed carriers? One may be a good guy just because he’s a concealed carrier, and one may be a bad guy and still be a concealed carrier. Those responding officers are responding–

Phil: I’m only on the good guy side, not on the bad guy side. [laughs]

Gary: Everybody generally feels that they are in the right. What Rob is saying is, this is being done-

Phil: A procedure.

Gary: -in an effort to gain control of a very active and possibly threatening situation, not as a determination. You may well feel like, “They’re treating me like a criminal,” but you have to be patient enough to understand that once there’s some semblance of order established, things will change. Also, it’s just like Rob was mentioning what to say, I’ve heard some instructors tell their students, “You tell the cops, ‘I’m not saying anything until my attorney’s here.'”

Phil: That’s going to get you in the backseat of a car with malice.

Gary: I’m a retired homicide investigator. I’m sorry, I talked over you.

Phil: No, I talked over you first. I said that’s going to get you in the backseat of the car with malice.

Gary: Exactly. You want to set the stage that I am a law abiding citizen and I was put into this position. The way Rob couched that is either I’ve already called my attorney, or–

Phil: Let’s do that right now. Gary, you’re the police officer. You just rolled up on the scene. I’ll set the stage here. There’s been a firearm discharge. There’s a bad guy who is T-U-B-B in the front yard of a home. There’s broken glass on the side of the house. Rob High is at the doorstep with his pistol in his hand and wearing his pair of boxers and his t-shirt, because it’s two o’clock in the morning. You’re the police officer rolling up on this case. Let’s go.

Gary: As a first-responder, the way I’m going to probably approach it is I don’t know who’s good who’s bad. I’m going to say, “Tell me what happened. What happened here tonight?”

Rob: Simple enough, I was a victim. I had to defend myself. I was in fear for my life. I was in fear for my family’s life. I used my firearm and I didn’t have any other choice. Now I have already contacted my attorney. I’m really, really shaken up right now. I’ve been involved in a very traumatic event. I want to cooperate with you fully, but I want to make certain that I’m saying the things I need to say without getting myself in trouble. My attorney has already been contacted. He’s advised me not to make a statement until he’s present, and I choose to do that. I’m going to wait until my attorney is here but I want to fully cooperate when I can.

Gary: At that point, me as a first responder, and when I say first responder I’m differentiating between the first responder in an investigative team that may respond in 20, 30 minutes maybe an hour later, I’m probably going to tell Rob, “Okay, have a seat in the back of my patrol car. The detectives will be here in a minute. I’ll let them know what you’ve told me.” From there, it’s probably going to determine whether what the evidence says. If I verify that’s Rob’s address and he’s sitting there in boxer shorts and there’s a guy with a mask and rubber gloves on, I’m probably not going to arrest Rob.

As an investigator, I’m going to say, “Have your attorney call me. We need to set down. The sooner the better. Here’s my card, have him call me.” If the evidence is not quite that compelling, I may say, “Well, Rob, I’m going to have to take you to jail until we can get this situation sorted out.” If there’s probable cause for me to believe that Rob has committed a crime, which just means a little bit more probable than not, I may take Rob into custody.

Phil: Now, Rob, you’re sitting in the back of this police car, your neighbors are out. First you were just sitting in there but then Gary comes back and says, “I really need to take you into the station and let these guys settle this out because I’m not sure what’s going on here.” He’s probably going to handcuff you at that point, right, as you’re riding into the station in the back seat of this car.

Now you’ve told him that you want to wait for your attorney but now all of a sudden, you’re handcuffed in the back of this car. How many times in your professional police thing, once somebody had handcuffs on, even though they said they wanted an attorney did they just start talking anyway? If you’re not asking them questions and they just start volunteering stuff, they can’t go back and say, “Oh, but I said I didn’t want to talk to my attorney.” Explain that if you would.

Rob: Absolutely.

Gary: You consider it a voluntary statement at that point.

Rob: It is voluntary. You haven’t asked the leading questions. You’ve not tried to develop that information yourself. I always refer to it in a report as an excited utterance. The suspect sitting in the back seat, he’s already advised me that he wants to have his attorney present before he answers questions and then he began making an excited utterance and these were the things I heard. Those are 100% admissible in court.

Gary: Whether Miranda rights have been read or not because you’re volunteering that not as a result of an investigator’s questioning.

Phil: Exactly. I want people to understand that just because you said you want your attorney, you can still shoot yourself in the foot because you’re trying to explain your way out of a night in jail. If a police officer is involved in a use of deadly force, my understanding, at least in some departments, maybe it’s nationally, that there’s a 48-hour window before internal affairs or whoever’s going to do the investigation can go in and ask them these questions. Now, me as Joe citizen, you can ask me immediately. I remember being involved in situations before, you got so much adrenaline coming out your body literally starts shaking.

All kinds of emotions happen and this is not the time to be thinking about what exactly happened. You say the guy in a blue shirt ends up being a red shirt. Who knows? It’s just things that you say because you’re at a physical and emotional disadvantage can come back and be used in a case against you. That’s why what Rob and Gary are saying here, folks, is less is more. The least amount you say, you identify yourself, give them your ID and just say, “Look, I’m a mess. I want to cooperate but I physically can’t right now. Look, I just wet myself.” That’s a good dramatic flair. They won’t put you in the back of their police car after that. [chuckles]

Rob: You say that. There are so many different reactions that we’ve seen even with officer-involved shootings.

Gary: Absolutely.

Rob: You come up and emotionally it just runs the entire gambit. You can come up and a guy is just broke down sobbing, never really dreamed he would be in that position. You could have a guy over in a corner throwing up. That’s a natural response. Taking a person’s life is not a normal thing and you have no earthly idea how you’re going to respond to it. All the way on the other extreme is I could be involved in a shooting and all of a sudden my district partner is Gary and he rolls up and he asked me, “Are you okay?” and I’m celebrating because I just survived a lethal event. I just survived and I am excited and happy. Every one of those emotions just runs from one extreme to the other and they’re all proper. I have to understand how to manage that and how to maintain that.

Phil: As an investigator.

Rob: Yes, as an officer involved in that shooting I had to learn how to manage that.

Phil: We are talking about the show coming up here. You said that there’s one reaction that always put you on your heels [inaudible 00:31:17]

Rob: You give me some robotic rehearsed, scripted, I’m telling you automatically right now my radar is going off and I’m starting to dig. I want to know what the relationship was between you and this person and that kind of thing. We’d talked about other things that you can say that might be important. Gary can tell you once I lose a scene, once the scene is broken down and gone, I can’t go back and fix it. I can’t go back and recreate it.

It’s the same way with evidence, it’s the same way with witnesses. If Gary and I are involved in a shooting and something happens and the responding officers come over and I know that you were over across the street and you watched the whole thing, I’m pointing you out, “Hey, that guy over there he was here the whole time. He saw what happened. You need to talk to him. You need to find out who he is.”

Gary: In law enforcement we refer to that as a public safety statement. Even though I’m not going to go into details I’m going to point out potential evidence that shows what I’m telling the officer is truthful. He threw the gun that way. He threw the knife, I saw it. I saw shell casings go over here. There was two or three people standing on that corner. One of them was a female wearing whatever. You give things that the officers can then use to verify your story.

Phil: One of the things I did some ride alongs in the wonderful city of San Bernardino and my biggest takeaway is that all night long officers are lied to to their face up and down. Everybody talking to them is lying. You guys’ heads are shaking. That was a shocker to me because I don’t deal in the world of liars but, well, we all do but every single day it just blew me away. You could be telling the officer, “Look, I’m telling you the truth,” and he’s heard that 67 times that night and 66 of them were lies. It’s important that you do point out the facts. This happened here, this happened there. We got a little over a minute left, Rob or Gary. You, guys, want to wrap this up for us?

Rob: I’d like to point out one thing really quick. If you are involved in something like this, shut down your social media stuff. Lock that stuff down. Don’t make stupid posts about it. Don’t try to be John Wayne about it. Just stay away from that crap. Shut it off, shut it down, don’t discuss details with anybody. Get with your attorney and ask him if I need to talk to somebody who should I talk to? It may just be your attorney. You have that privileged communication with your attorney.

Phil: For $500 an hour. Gary, how about you?

Gary: Well, I would just follow up on that. I want to come across to that officer that I am the victim, I fully intend to cooperate. I just want to protect my own rights by having an attorney there.