Critical Incidents 101

 By CLEAT Staff Attorney Jim K. Jopling

One of the most important benefits of your CLEAT membership is the assurance that you will have a lawyer if you are involved in a critical incident.  But did you know that your Association’s Board of Directors is just as important as your lawyer?

In this article, I will cover all of the basics you need in order to get the most benefit of your Association and CLEAT membership during a critical incident.

Critical Incident Toolkit

The first thing you need is the CLEAT emergency hotline.  That number is (800) 752-5328.  The second thing you need is a list of your Board members and their cell numbers.  Program them into your cell phone right now.  This article will still be here when you are done.

If you work somewhere where you cannot carry a cell phone, keep that list somewhere close, like in your CLEAT calendar.

What is a Critical Incident?

A critical incident can be several things.  A duty-related incident involving the application of lethal force is a critical incident, whether it results in a fatality or not.  In-custody deaths are critical incidents.  If you are not sure if you have been involved in a critical incident or not, call the hotline.

Step 1: Secure the Scene

After a critical incident, the first thing you should do is follow your department’s rules and regs, as well as your training.  This usually means securing the scene, calling for backup if needed, rendering medical aid if you can and calling for EMS, if needed.  I’m just a lawyer, so I can’t really instruct you on your Department’s procedures.

Take care of the scene, and get to Step Two as fast as you can.

Step 2: Call CLEAT and ask for your lawyer.

Step 3: Call your Board members.

The reason for calling your Board members is this:  Your fellow officers and Association members can probably get to the scene faster than your CLEAT lawyer.  There are simply more of them so one of them is more likely to be close by.  Also, they can contact the CLEAT lawyer directly to make sure that he is on the way.  Once you call a Board member, you set into motion a “daisy chain” of communication on your behalf.

Step 4:  Stay Quiet and Isolate

Once a critical incident happens, you have to change your mindset.  As soon as it occurs, you are a murder suspect (or attempted murder suspect). 

That’s right, you are a murder suspect.  You now have the right to remain silent.  That right is guaranteed to you by the Fifth Amendment to the U.S. Constitution.  Do not waive that right.

 “But only criminals assert their right to remain silent,” you say.  Even though you were just doing your job, your case is going to the grand jury.  You are not the exception.  That’s why you need your lawyer there.  That’s why you need your Association directors there.  That’s why you need to stay quiet.

Let the lawyer assess the scene and do not talk to anybody about what happened.

 Do NOT:

• write an incident report
• tell your chain of command what happened
• talk to your fellow officers – even the Board members – about what happened
• do a “walk through”

 DO:

• get away from the immediate scene
• talk to your lawyer about what happened
• check your microphone to make sure it is turned off

 But what if they threaten to fire me?

An employer cannot fire you for asserting your constitutional rights.  Let them fire you for asserting your Fifth Amendment right to remain silent.  It’s better than getting convicted of murder for doing your job!  Besides, I might know a lawyer who could probably get you your job back.

Exception: The Safety Questions

The Supreme Court of the United States has ruled that your Fifth Amendment right to remain silent does not apply to questions about information needed to assure public safety.  So for example, the crime scene detectives may ask you:

• How many shots were fired?
• What general direction were they fired in?
• Are there any other suspects at or near the scene?
• What is the location of any injured persons?

While you do not have to answer these questions, the Fifth Amendment won’t help you if you don’t.  So it’s probably a good idea to answer them.

You may find yourself being asked these questions before any Board member or CLEAT attorney is on the scene to help you.  So, don’t let them go too far.  Here are some examples of improper “public safety” questions that you should not answer:

• Why did you fire your weapon?
• What was the subject doing before you fired?
• What did you know about the subject before you fired?
• What tactics did you use?
• What happened here?

The Aftermath:  What to Expect

The aftermath of a critical incident is no fun at all.  The Board members and your CLEAT attorney will help you through the process.  Your Board members are usually very good at helping you get your personal belongings, such as car keys, out of the scene.  They can also get you in touch with your family so you can let them know that you are okay.

Here’s a list of what to expect:

• You will be photographed to document any signs of injury or struggle.
• Your hands will be swabbed for gunpowder residue (GSA)
• You may be asked to do a “round count”
• You will surrender your weapon and perhaps parts of your duty belt and uniform.  The Department should provide you with a replacement.
• You will be placed on administrative duty.
• Crimes Against Persons or other criminal investigations division will hound your for a “victim statement.”  They will say that you are the victim and that they need your statement to prosecute the criminal who made you use deadly force.  Do not provide such a statement.  Talk to your lawyer about it.  Even better – tell them to talk to your lawyer.
• Your name may be in the media.
• You will get a lot of phone calls and texts from friends, asking how you are doing.
• You will be ordered to go to the Employee Assistance Program (EAP).
• You may experience sleeplessness, anxiety, paranoia, anger, and strained relationships with your family, friends and coworkers
• You may eventually have to provide a statement to Internal Affairs (IA)
• You will be spending time with your CLEAT lawyer and perhaps other lawyers

I hope this article helps to prepare you for any critical incidents that you may become involved in.  If you have any questions, contact the El Paso CLEAT office at (915) 533-4924 or toll free at (800) 328-9940 (do not confuse this number with the CLEAT emergency line).

Thank you for your service to our community and for your membership in CLEAT.