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305 - Deputy/Officer-Involved Shootings and Deaths

305.1 PURPOSE AND SCOPE

The purpose of this policy is to establish policy and procedures for the investigation of an incident in which a person is injured or dies as the result of an officer-involved shooting or dies as a result of other actions of a deputy. In other incidents not covered by this policy, the Sheriff may decide that the investigation will follow the process provided in this policy. Investigations of Officer Involved Critical Incidents are frequently more complex and demanding than routine law enforcement investigations. Applicable administrative, criminal statutory and case law is complex and often contradictory. Questions arise about the propriety of a law enforcement agency conducting an investigation wherein one of its own officers is involved. An Officer Involved Critical Incident intensifies media attention, public scrutiny, and civil liability concerns. If the critical incident isn't fully and properly investigated by respectable law enforcement officials, public trust can be eroded.

The potential social, civil, administrative and criminal consequences of Officer Involved Incidents are profound and affect many parties. If adequate safeguards are not delineated in advance, the public's "right to know" may conflict with the progress of the criminal investigation and an individual's constitutional rights to a fair trial. When multiple agencies are involved, differences in policy, procedure, personnel, resources and interests may conflict, hamper or delay the investigative process.

As a result of these factors, these protocols have been developed to guide participating Hartwell County Law Enforcement agencies in conducting a Multi-Agency Officer-Involved Critical Incident investigation. The goal of these Critical Incident Response Team (CIRT) guidelines is to help assure that such cases are fully and fairly investigated, and that proper dispositions of such cases are made based upon all the legally available, relevant evidence.

This document represents the consensus of CIRT member agencies as to how such cases are to be investigated. The guidelines permit individual agencies to make modifications in order to meet individual agency regulations. The guidelines are not intended to increase the civil or criminal liability of member agencies or their employees and shall not be construed to create any mandatory obligations to, or on behalf of, third parties. Agencies represented should review their related policies and make every effort to modify them to avoid conflict with these guidelines. Each agency's individual policy may be attached to these guidelines.

305.2 POLICY

The policy of the Hartwell County Sheriff’s Department is to ensure that officer-involved shootings and Critical Incidents are investigated in a thorough, fair and impartial manner. Critical Incident Response Team guidelines and policies shall be followed for each incident.

305.3 FORMATION OF A CRITICAL INCIDENT RESPONSE TEAM PROTOCOL

The formation of a Critical Incident Response Team (C.I.R.T.), comprised of designated representatives from various Hartwell County law enforcement agencies, is an integral part of this protocol. This team, available to assist any member agency when requested by the Sheriff, Chief or his designee, is expected to provide investigative assistance in the most thorough manner practical. It is expected that those agencies supplying officers for regular participation on this team, will afford appropriate, specialized training in designated areas and have those team members available for regularly scheduled team exercises. The minimum required training shall be the successful completion of a POST recognized homicide investigation course and/or a certified Officer Involved Shooting course.

Consistency and continuity of team members is critical if they are to work together in an efficient manner during crisis situations. This protocol also makes available to member agencies collective resources during the course of a Critical Incident Investigation.

The use of the Critical Incident Protocol is at the sole discretion of the Sheriff who has jurisdiction over the incident. It is also recognized that the Agency of Jurisdiction shall not control the extent and scope of the assistance provided by the CIRT. This team will not become involved in any related administrative investigation. It is also understood the criminal investigation has investigative priority over any administrative investigation.

DEFINITIONS CIRT Member Agency Hartwell County Sheriff’s Department District Attorney’s Office Cal Fire California Highway Patrol California State Parks State DOJ Crime Laboratory National Parks Service Critical Incident A Critical Incident is any incident involving law enforcement in which the agency of jurisdiction, “Primary Agency”, requests the assistance of the Critical Incident Response Team to aid in the investigation and documentation of that incident. A situation is determined to be a Critical Incident by the Agency of Jurisdiction’s Department Head or his Designee.

Critical Incident Response Team (CIRT) The CIRT team is assigned to assist member agencies during the investigation of the Critical Incidents. One or more representatives from the following agencies will be assigned as on-going, permanent members of the team. These officers will receive specialized training in the handling of Critical Incident Investigations, such as officer-involved shootings, and will be expected to regularly participate in training exercises.

For the purpose of these guidelines the following definitions are offered: "Officer-Involved Incident" An “Officer-Involved Incident” is any incident in which a peace officer or custodial officer (both herein referred to as “Officer”), acting under color of authority, is directly involved in the following:

  • Any intentional discharge of a firearm by an Officer.
  • Unintentional discharge of a firearm which proximately causes death or injury to another.
  • An intentional use of any other deadly or dangerous weapon by an Officer, which proximately causes the death of, or injury likely to produce death to another.
  • An intentional act on the part of an Officer, which proximately causes the death of, or injury likely to produce death to another.
  • Any enforcement action taken by an Officer, which proximately causes the death of another.
  • Any death of person while in custody or under Officer Control.
  • Excluded from mandatory protocol investigations are post-booking deaths of prisoners, which occur in jails, hospitals or other facilities, while the prisoner is under the custody and care of a Law Enforcement Agency’s (LEA) medical care provider for diagnosed diseases or conditions which have been known and monitored and/or treated by the LEA's medical care provider prior to death, but only when the deaths were medically expected and when custodial suicide, trauma, accident, or use of intoxicants was not involved.

"Peace Officer" and “Correctional Deputy”

  • Law enforcement officers defined by Penal Code, § 830.1 et seq. (e.g., Municipal Police, Sheriff, and D.A. Investigators) and Reserve Officers and Reserve Deputies defined by Penal Code.
  • Deputy Coroner and Welfare Fraud Investigators defined by Penal Code,§ 830.35.
  • Correctional Deputies defined by Penal Code, § 830.1 (c)
  • Parole and Probation Officers defined by Penal Code, § 830.5
  • State Officers defined by Penal Code, § 830.2 (e.g., CHP, DOJ, University Police, CAL Fire, CA Dept. Fish & Wildlife).
  • Federal Agents, (e.g., USFS, NPS, BLM, FBI, BATFE, U.S. Marshall, I.C.E., DEA). “ Department of Justice (DOJ)” California Department of Justice Investigator assigned to the investigation based upon availability.

"Primary Agency" The Government agency that has the jurisdiction to enforce and investigate violations of state criminal law of that geographic area in Hartwell County.

"Employing Agency" The agency which employs the Involved Officer.

"Proximate Cause" A cause which, in a natural and continuous sequence, produces the injury and/or death, without which the injury and/or death would not have occurred.

"Incident Investigators" The Chief Executive of the Primary Agency or his designee may meet with the Chief District Attorney Investigator or his designee to identify one investigator from their respective agencies who will serve as co-lead investigators for the CIRT investigation. This protocol does not take the authority away from the Chief Executive of the primary agency to deviate from the co-lead concept, as outlined. The Chief Executive may use his/her discretion and opt to include or replace one of the identified co-lead agencies with an investigator from another agency or agencies, including the Department of Justice Investigative Bureau. In any case at least one (1) District Attorney Investigator shall be included in the team to insure representation of the District Attorney, who is responsible for conducting an independent analysis of the investigation to determine if criminal conduct exists.

A. GENERAL POLICY STATEMENT Investigations of Officer Involved Incidents will be conducted to develop all available relevant information about the incident. The investigations will be conducted in a manner that provides for a thorough and credible investigation that is free from conflicts of interest. Such investigations are designated "Incident Investigations", the goals of which are to determine:

  • The identity of the person(s) responsible; and
  • The existence or non-existence of evidence constituting a criminal act.

The investigation shall be conducted utilizing the best evidence-based practices available and the investigation will be forwarded to the District Attorney for independent review.

The investigations shall be performed in a manner consistent with the rules of evidence in a criminal proceeding. Any administrative investigation shall be separate and distinctly different from the Incident Investigation.

The investigation of each Incident will commence as promptly as practical after the occurrence.

305.4 INVESTIGATIVE RESPONSIBILITY

The responsibility for conducting the Incident Investigation rests with the Lead Incident Investigators, which have the ultimate responsibility for the preservation and security of the scene(s), collection of evidence at the scene(s) and from the involved officer(s), including their equipment and/or vehicles, w-hen appropriate.

  • Initial officers at the scene will make all reasonable efforts to preserve and secure the scene, pending the arrival of the Incident Investigators. This includes barrier tape and restricting access to the scene until investigators arrive.
  • The Lead Incident Investigators will conduct the investigation. However, they may seek investigative assistance from the other agencies.
  • The Primary Agency or the crime scene unit of another jurisdiction may be called upon for assistance at the discretion of the Lead Incident Investigators.
  • In Incidents where a vehicular collision or other vehicular movement is involved, or it is determined that the California Highway Patrol’s participation would be beneficial to the investigation (ie: scene diagrams), CHP may be called upon for investigatory assistance in those phases of the Incident Investigation.

Until an agreement regarding investigative responsibility is reached among the various Involved Agencies in a specific case, immediate investigative responsibility is determined in this order:

  • The Primary Agency.
  • The Employing Agency of the officer involved.
  • The agency within whose jurisdiction the victim's body was first discovered after infliction of the injury.

If an on-duty peace officer is involved in an Incident within the geographical jurisdiction of another agency, but was acting in the performance of his/her duties in connection with a criminal matter originating in his/her own jurisdiction, the Primary Agency may defer its investigative authority to the officer's own agency, which will then investigate the Incident as if it were the Primary Agency.

305.4.1 ROLE OF THE DISTRICT ATTORNEY

During an Incident Investigation the District Attorney should:

  1. Participate as a co-lead investigating agency in the CIRT investigation with the Primary and Employer Agencies and with assisting LEA(s), unless an agreement has been reached otherwise.
  2. The District Attorney may assign a Deputy District Attorney to the CIRT team to assist and advise the Incident Investigators on the various complex legal issues, rules of evidence, and search warrant review.
  3. When deemed necessary, perform an independent investigation, separate from that of the CIRT Investigation. The District Attorney will notify the Primary Agency if an independent investigation is being conducted, unless such notification would compromise the integrity of the independent investigation.

a. A District Attorney Investigator assigned to participate as an Incident Investigator, assisting or teamed with a Primary Agency Incident Investigator, will not be a member or participant of an independent District Attorney investigation unless there is no conflict between the two roles and Primary Agency is notified of such a dual role.

  1. Ultimately determine if criminal liability exists.

5.Upon completion of the CIRT Investigation, analyze the facts of the incident and apply the relevant law to determine whether or not criminal laws were violated. The District Attorney will decide to prosecute or decline to prosecute as appropriate. ALL CIRT INVESTIGATIONS SHALL BE SUBMITTED TO THE DISTRICT ATTORNEY FOR REVIEW.

6.The District Attorney’s Office has its own separate investigative authority and may perform independent investigations of incidents, separate from CIRT or any other investigations, when deemed appropriate by the District Attorney or his/her designee.

  1. The District Attorney shall prepare a written summary, within sixty (60) days of receiving the completed investigation, which states whether or not any violations of the criminal law occurred in the incident and whether or not any criminal charges will be filed.

305.4.2 CRIMINAL INVESTIGATION OF OFFICER ACTIONS

The control of the criminal investigation into the involved deputy’s conduct during the incident will be determined by the employing agency’s protocol. When a deputy from this office is involved, the criminal investigation will be handled according to the Criminal Investigation section of this policy.

Requests made of this office to investigate a shooting or death involving an outside agency’s officer shall be referred to the Sheriff or the authorized designee for approval.

305.4.3 ADMINISTRATIVE AND CIVIL INVESTIGATION

This protocol is intended as an interagency guideline for Incident Investigations (as defined on page 1) of Officer Involved Incidents. This protocol is not intended to address issues concerning the administrative investigation of the incident.

  • The administrative investigation is the function of the agency employing the involved officer and will include administrative and non-criminal matters that are not within the scope of the Incident Investigation.
  • At the onset of the investigation of an incident, there must be an immediate and clearly defined distinction between the Incident Investigation and the Administrative Investigation.
  • The agency employing the involved officer, whether it is the Primary Agency or not, has an interest in the outcome of the Incident Investigation and may utilize the results of that investigation for its own non-criminal purposes (e.g., determination of possible violations of departmental regulations, establishing suitability for duty, training for use in civil suits or administrative claims brought by or against the agency).

In addition to all other investigations associated with an officer involved shooting or death, this department will conduct an internal administrative investigation of HCSD deputies to determine conformance with department policy. The investigation will be conducted under the supervision of the Internal Affairs Administrative Lieutenant and will be considered a confidential deputy file. Interviews of members shall be subject to department policies and applicable laws (see the Personnel Complaints Policy).

  • Any deputy involved in a shooting or death may be requested to administratively compelled to provide a blood sample for alcohol/drug screening. Absent consent from the deputy, such compelled samples and the results of any such testing shall not be disclosed to any criminal investigative agency.
  • If any deputy has voluntarily elected to provide a statement to criminal investigators, the assigned administrative investigator should review that statement before proceeding with any further interview of that involved deputy.
  1. If a further interview of the deputy is deemed necessary to determine police compliance, care should be taken to limit the inquiry to new areas with minimal, if any, duplication of questions addressed in the voluntary statement. The involved deputy shall be provided with a copy of his/her prior statement before proceeding with any subsequent interviews.
  • In the event that an involved deputy has elected to not provide criminal investigators with a voluntary statement, the assigned administrative investigator shall conduct an administrative interview to determine all relevant information.
  1. Although this interview should not be unreasonable delayed, care should be taken to ensure that the deputy's physical and psychological needs have been addressed before commencing the interview.
  2. if requested, the deputy shall have the opportunity to select an uninvolved representative to be present during the interview. However, in order to maintain the integrity of each individual deputy's statement, involved deputies shall not consult or meet with a representative or attorney collectively or in groups prior to being interviewed (Government Code 3303(g)).
  3. Administrative interviews should be recorded by the investigator. The deputy may also record the interview (Government Code 3303(g)).
  4. The deputy shall be informed of the nature of the investigation. If a deputy refuses to answer questions, he/she should be given his/her Lybarger or Garity rights and ordered to provide full truthful answers to all questions. They deputy shall be informed that the interview will be for administrative purposes only and the statement cannot be used criminally.
  5. The internal Affairs shall compile all relevant information and reports necessary for the Department to determine compliance with applicable policies.
  6. Regardless of whether the use of force is an issue in the case, the completed administrative investigation shall be submitted to the Use of Force Review Board, which will restrict its findings as to whether there was compliance with the Use of Force Policy.
  7. Any other indications of potential policy violations shall be determined in accordance with standard disciplinary procedures.

305.5 INTERVIEWS WITH PEACE OFFICER AND CUSTODIAL OFFICER EMPLOYEES

Interview times will be addressed by the Lead Incident Investigators and the involved officers and/ or their legal representatives. In an effort to get the most accurate statement from the involved officer, the officer can be provided with some recovery time prior to a detailed interview.

The Lead Incident Investigators will determine who will participate in the interview of any involved officer(s) or witnesses and where the interview(s) will take place. The maximum amount of investigators conducting the interviews will be two.

  • Before being interviewed an officer should be given the opportunity to walk-through and revisit the scene after the evidence has been removed.
  • Interviews of the officer(s) involved or witnesses to an Incident should be video and audio recorded.
  • The assigned Lead Incident Investigators and Employing Agency representative, if not physically present during the interview, will be permitted to monitor the interview or have immediate access to any recording made of the interview.
  • The Employing Agency will determine if the involved officers can review any video or audio of the incident prior to or during the interview.

If, prior to or during the interview, it is deemed that the involved Officer may be charged with a criminal offense, and the interview becomes custodial, the officer shall be immediately informed of his/her constitutional rights pursuant to the Miranda Decision. To ensure the voluntariness of an interview with an involved officer, that has not reached the level of a custodial interrogation, the Incident Investigator may wish to advise him/her as follows:

  1. The Involved Officer is not in custody and is free to leave the interview.
  2. The Involved Officer is not obligated to answer incriminating questions, and answers that are given may be used against him/her in court.

The Involved Officer may consult with a representative prior to being questioned by the Incident Investigators. Some or all of these considerations may be applicable:

  • The consultation should not be allowed to materially impede the investigation.
  • The representative should be permitted to consult with only one involved officer at a time.
  • To ensure the integrity of each interview, it is important that statements about the incident not be relayed through such representatives; rather, the Involved Officer and other Officer witnesses should answer the questions directly even if they need to consult with their representative prior to answering.

305.5.1 UNINVOLVED DEPUTY RESPONSIBILITIES

Upon arrival at the scene of an officer-involved shooting, the first uninvolved HCSD deputy will be the deputy-in-charge and will assume the responsibilities of a supervisor until properly relieved.

This deputy should, as appropriate:

  • Secure the scene and identify and eliminate hazards for all those involved.
  • Take reasonable steps to obtain emergency medical attention for injured individuals.
  • Request additional resources from the Office or other agencies.
  • Coordinate a perimeter or pursuit of suspects.
  • Check for injured persons and evacuate as needed.
  • Brief the supervisor upon arrival.

305.5.2 AUTOPSY

The lead investigator will assign a CIRT investigator to the body to ensure chain of evidence. That CIRT investigator will be assigned to the Deputy Coroner for transport of the body to the Coroner’s office. At least one of the Lead Incident Investigators shall attend the autopsy with the assigned CIRT Investigator. A member of the District Attorney's staff may also be present.

  1. The Incident Investigators (evidence collection team) have the responsibility for the collection and documentation of physical evidence at the autopsy.

The Forensic Pathologist should receive a full and complete briefing prior to the post mortem examination. The briefing should include all relevant information available at that time which may tend to aid in determining cause, manner and means of the decedent's death. The Incident Investigator(s) and a member of the evidence collection team should be present at the briefing.

305.5.3 MEDIA RELATIONS

A representative of the Primary Agency is in the best position to comment about the facts of the case and the progress of the investigation. When multiple agencies are involved or have knowledge of an Incident, the following information release guidelines should be followed:

  • The Primary Agency will assign a particular individual to be the sole contact with the news media to manage the release of information and to minimize interruptions to incident investigators. If this is not feasible, a particular job assignment (e.g., Watch Commander) should be designated. This contact will keep the Employing Agencies informed of all information that will be distributed prior to a release to the media.
  • If Lead Incident Investigators determine that the release of a specific piece of information would materially jeopardize the investigation, they shall notify those agencies possessing that knowledge of the hazards of releasing it.
  • Agencies and individuals that are not well informed and intimately involved with the investigation's results and progress should not make statements to the press. As in all other instances, care must be taken to insure that intentionally misleading, erroneous or false statements are not made.
  • The interest of the public's right to know what occurred must be balanced with the requirements of the investigation and with the right of the accused to receive a fair trial. Other agencies may also be contacted by the news media for information about the Incident, including:

The Employing Agency

  1. If the Employing Agency is not also the Primary Agency, it should coordinate any information release with the Primary Agency and limit its comments to the following areas: a. The employer employee relationship, however, the names of the involved officer(s) will not be released until 48 hours after the incident to allow time for appropriate notifications to be made.

b. Information which has been cleared for release by the Primary Agency.

The Sheriff – Coroner’s Office Information obtained from the Incident Investigators or from the Involved Agencies will not be released by the Sheriff Coroner's Office without prior clearance from those agencies. Release of information will generally be limited to the following:

  1. Name of the decedent, autopsy findings, including the condition of the deceased, the cause of death, and toxicology test results, after the involved agencies have received this information. The Sheriff Coroner’s Office will not release any further information to the media where there is a pending criminal prosecution.
  2. The general role of the Sheriff Coroner's Office in the investigation of any death.

305.5.4 ACCESS TO REPORTS AND EVIDENCE

Material created or collected by the Primary Agency's Incident Investigators, as well as by any other assisting agencies, will be made available in a timely manner to those agencies which have a "need to know" and which are legally authorized to receive the information. The material may include:

  1. Reports written and collected.
  • Physical evidence obtained.
  • Photographs and diagrams.
  • Recordings.

The agencies with an interest in the Incident Investigation may include:

  • The District Attorney
  • Investigating agencies.
  • The employer of any Involved Officer.
  • The Crime Laboratory.
  • The Coroner's Office The District Attorney shall receive a summary (written or verbal) every 30 days regarding all CIRT investigation and findings. As a guideline, the District Attorney should receive the CIRT investigation and findings 90 days after the critical incident.

305.5.5 NOTIFICATION

Any member agency that is the Agency of Jurisdiction, may invoke this protocol. In doing so, that agency is responsible for contacting the dispatch centers for the appropriate CIRT members. The responding CIRT team should consist of an investigator from the District Attorney’s office, (for the purpose of those duties as outlined in section D) and at least one other agency who has a member on the regular CIRT team list. The Agency of Jurisdiction should provide the following information to the appropriate dispatch centers that will be contacting the CIRT team:

  • The agency making the request for assistance.
  • The location of the staging area for the CIRT team.
  • The general nature of the incident.
  • Any specialized equipment or resources that the CIRT team may need to bring with them.
  • Any officer safety information that the CIRT team members should have while responding to the staging area.

CIRT Response When notified, the CIRT team members will respond to the designated staging area and contact the Incident Commander or Officer in Charge. The scope and level of involvement of the CIRT team will be determined by the Agency of Jurisdiction.

Departmental Internal or Administrative Investigations Each agency that has an officer involved in the Critical Incident will be individually responsible for conducting its own Administrative Investigation if they deem appropriate. Those agencies whose officers were directly involved in the Critical Incident will be provided copies of the CIRT team reports upon request to the Agency of Jurisdiction.

305.5.6 NOTIFICATION TO DEPARTMENT OF JUSTICE

The California Department of Justice (DOJ) is required to investigate an officer-involved shooting resulting in the death of an unarmed civilian. The Department Administration should promptly notify the DOJ in all incidents involving an officer-involved shooting resulting in the death of an unarmed civilian, including where it is undetermined if the civilian was unarmed.

For purposes of notification, “unarmed civilian” means anyone who is not in possession of a deadly weapon (Government Code § 12525.3).

Firearms/Sidearms

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