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When's the best time to interview an officer after a force incident?

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The Debate Over Memory

When's the best time to interview an officer after a force incident?

By Jim Glennon  |   Aug 6, 2018

 

Radley Balko of the Washington Post writes often about the police. Never, as far as I’ve seen, favorably.

In his July 31 column, Study: ‘Cooling-off periods’ don’t help cops remember officer-involved shootings,” he writes about the practice by some agencies of letting officers calm themselves, sometimes for days, before giving a formal statement. To Balko, this is an outrageous abuse of power.

He cites some research that involved police officers who were put through deadly force “simulation” scenarios. The study concluded that, after these roleplaying (not at all deadly) experiences, the participant’s memories were basically best—or no better—immediately after the incident rather than after a few day’s rest.

He goes on to document other opinions and studies that, he contends, further support the theory that officers should not get rest after being involved in deadly force events. He believes officers should be forced to give a statement immediately, just as, he maintains, citizens must.

Balko specifically cites Stanford professor Elizabeth Loftus who he describes as a “renowned expert on human memory.” The professor believes that memory “fades over time.” She contends that time makes memory “vulnerable to post-event contamination, or eroding.” As for officers waiting to calm down and rest, she concludes, “we couldn’t see any good reason for this kind of long delay.”

Speak, Memory

I admit, I’m not a professor who specializes in memory. But I do read and think. I’ve talked to professors, kept up on the news, and read books on the subject (my favorite being The Invisible Gorilla).

In addition, I was involved in a close-quarters gunfight that involved a very unexpected and spontaneous attack by an intoxicated man in a hallway. One of my officers, standing next to me, was shot.

I have interviewed, quite literally, hundreds of officers who have been involved in gunfights.

As a boss, I was basically in charge of our use-of-force program for the better part of 18 years. I read virtually every use-of-force report during that time and spoke with officers involved in force events. As the investigations commander of our county task force, I interviewed officers involved in several force events, including the use of deadly force.

Finally, I have some common sense, 38 years of experience in law enforcement, and more than 60 as a human being.

Here are my conclusions about event recall:

1. No one has memory figured out. Not really. I don’t care how many Rhesus monkeys have been observed or how many simulation exercises have been conducted with human subjects. I don’t care how many PhDs you have and from what institutions. No one person has all the answers.

2. Everyone’s memory sucks. Your everyday life should prove this easily. You good with names, under zero stress? Have you ever forget one seconds after meeting the person?

Still don’t agree with me? OK, ever had this conversation?

My wife: “You just said you wanted pizza!”

Me: “No I didn’t! I just said pizza is OK with me.”

Wife: “No Jim you specifically said that you wanted pizza not 20 seconds ago!”

Me: “No my dear, love of my life, I literally said, I’d be OK with pizza.”

Wife: “See you can’t even remember what you just said just now! You just said to me these words; ‘It’s OK if we have pizza, Lisa.’”

Me: “I said absolutely no such thing. I just said that I was fine if that’s what you wanted.”

Wife: “Are you out of your mind? You’re putting this on me? I never said I wanted pizza, you did. You specifically said you were in the mood.”

Me: “What?? I said no such thing!”

Wife: “You seriously have the worst memory of anyone I know. From now on I’m going to record every one of our conversations to prove to you that you don’t listen and have a terrible memory.”

We wound up having Chinese … in separate rooms.

3. Everyone is different. Some days your memory is sharp. Others, no so much. Some events you can recall in detail. Some you can’t. Personally, I have never, ever seen any evidence that your memory is better the more dynamic and stressful the situation. In fact, I’ve seen evidence to the contrary.

I did some training in this area for a group of attorneys a couple of years ago. I showed them a 30 second clip of an officer exiting a car, approaching a domestic violence subject that involved a very short burst of orders from the cop. The subject by his car armed with a knife failed to obey and the officer shot him multiple times, killing him. I asked the approximately 30 attorneys to recount the 30 seconds out loud. How many different versions of what just happed did I get?

Basically, 30.

They even argued with each other about whether the officer said, “Drop the knife” or “Drop the gun.” At least one said that he never mentioned any type of weapon.

And these guys were under ZERO stress.

4. Variables matter. The variables, the stimuli, the data, the speed, your emotions, the threat, the amount of sleep, where you were looking, when you were looking, and so on—all affect memory.

5. Forced recollection causes confabulation. Under high-stress, being forced to recount everything that just happened, in chronological order, documenting everything everyone said, in full quotes, is absolutely impossible. Under stress, if you’re absolutely forced—under threat of job-loss or imprisonment—to remember something, you will unintentionally begin to make stuff up. You will confabulate, as we say in our classes, to fill in the gaps.

And what if you do start remembering details days later? Now what? What do you do with this new information? Write a supplement. Which will be portrayed by the other side as? Lies. An attempt to justify or cover up mistakes.

6.  Time is no guarantee. Your memory will never be perfect whether the interview is immediate or three days later. That said, virtually every single police officer I’ve ever met who had been involved in a deadly force event, remembered things days, weeks, even years later. Balko goes along with the belief that that is due to contamination and muddled recall. Perhaps. But, I guarantee, most of what is recalled is real and, more importantly, from the unique perspective of that officer.

Special Treatment?

Let’s address this nonsense about cops getting special treatment, being able to wait before giving a complete statement concerning his/her recounting of not just events, but their feelings and intent.

Balko, as do many others, argue that citizens don’t get the same consideration. Even lawyers and Judge Andrew Napalitano—who I respect—have said as much.

There’s one problem: It’s nonsense.

Here’s why. Citizens never have to give a statement. They don’t have to talk at all. Not witnesses, not victims, and certainly not suspects. They can remain silent forever, and there’s virtually nothing police investigators can do about it.

But cops? They are compelled under threat of termination to give a statement.

Bias & Expertise

Finally, I want to address Balko’s constant demonization of my profession and those who work with us. Specifically, he targets Prof. Bill Lewinsky of the Force Science Institute as biased and not suitable as an expert.

What’s so ironic, and obviously hypocritical, is that every column Balko writes about the police is dripping with his own bias. He seeks out information that supports his prejudiced beliefs.

I’ve done expert witness work, as has the Force Science Institute. To insinuate that anyone who supports law enforcement based on facts and experience is too biased to be allowed in court is ludicrous. Implying that the science of human performance and stress are nothing more than slights of hand to explain away police misconduct is pathetic.

Deadly force is incredibly serious to those in law enforcement. I’ve never met an officer who looked forward to using it. Each event is different, as are the perceptions, perspectives, and memories of those involved.

Conclusion

There’s no simple answer to any of this, no study that is completely definitive. The incredible complexity of most use-of-force cases are unknown to those who don’t live it and study it.

I do know this. After such an event, what goes through your mind and what happens to your body is something that’s almost impossible to describe to someone who hasn’t experienced it. What you see on TV and in the movies is fantasy. You don’t knock people out with one punch, you can’t employ the Vulcan nerve-pinch on a combative subject, you can’t read people’s minds, and no magic phrases exist to calm all of those who are disturbed and irrational.

The truth is, no one has perfect memories after a gunfight. The stress causes chronological confusion, time distortion, guilt, survival elation, and even doubt. Asking for, and expecting, clear, chronological, measured, unbiased, non-emotional professional statements from officers immediately after they fired their weapon in a life-or-death situation, is irrational no matter what the well-intentioned scholars say.

My suggestion to the academics: Do what Force Science, and others, have done. Talk to the cops who have been involved in such events. Understand the complexity and appreciate the gravity as they do. Then write your articles and express your opinions.

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According to my department you take their gun away the moment the supervisor arrives. Then you stash them IN THE BACK OF A SQUAD CAR with the transport camera pointed at them. Then you drive them to the detectives division and lock them in an interview room for the next six hours. Then when you ask for your PBA rep the Chief comes in and bitches you out and threatens you and leaves you in there for a few more hours. 

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The last class I went through before I retired, the instructor said that investigators should wait a minimum of 48 hours before asking the officer any questions. 

I was involved in an OIS shooting in 1994. My pistol was taken away at the scene. I was required to write a report before I went home. I was sent home with an empty holster. I got it back the next day after the techs got through with it. I was required to write another report immediately before the review board. (They were compared during the review). I was cleared to return to work a month later. 

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I got sent home (they didn't take my gun since I used my hands) on a Thursday and returned to work on Monday.  I didn't make an official statement till six days later to an outside agency and they made sure I had my union rep and lawyer with me.  SO, three days off which happen to fall on my three day weekend (we were on 12s), no support, no calls, nothing, just come back to work on Monday since we can't pay OT.

I rewrote part of our policy after that for OIS incidents.  The officer's gun will be taken away for evidence, but I will issue them another one on the spot or give them mine until I can go get another one.

 

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