Legal Update with Doug O’Connell Use of Force in State Active-Duty Situations If you’re required to use force on State Active Duty, you’ll be investigated by a civilian law enforcement agency not the military. More importantly, your actions will be evaluated for compliance with civilian criminal laws, specifically the Texas Penal Code. Any use of force, especially deadly force could subject you to criminal prosecution in state court. These tips are designed to provide some guidance for immediate actions after the use of force — to protect your rights.
Call for Assistance As soon as possible, call for assistance. Take a deep breath and try to report in clear manner. Provide your location as precisely as possible. Make your message clear, for example: “I’m located at checkpoint 7. I just shot 2 men who attacked me.” Once help is on the way, shift to first responder mode.
Render First Aid and Make the Scene Safe Remember in today’s world everyone has a cell phone with a camera. You should assume you are being photographed and videotaped. Ensure all your actions are professional. Once the scene is safe and help has been called, render first aid to anyone injured, including the person or persons on the receiving end of your use of force. The other personnel responding to assist you and or law enforcement officers will be arriving “amped up.” Make sure your weapons are secure or holstered and that you can easily be identified as the “good guy or gal.” Don’t move or touch any of the evidence at the scene, except for securing loose firearms.
I’d like to Speak to My Lawyer
Experienced law enforcement officers never talk about use of force incidents without talking to their lawyer first. Even if you don’t think you did anything wrong, you may fail to adequately articulate the threat you faced which could then risk criminal prosecution. Instead, provide a short, concise statement to the first supervisor arriving at the scene. For example: “My weapon is over there. I shot in self-defense because I feared for my life. I’ll cooperate completely with your investigation; I’d just like to speak with my attorney before answering other questions.” In shooting situations, don’t try to say how many rounds you fired — you’ll likely get it wrong due to the stress of the situation.
Am I being Ordered to Answer Your Questions? Military commanders and NCOs may not be aware that you have an absolute right to remain silent and not answer questions. They likely will be operating in military mode — attempting to rapidly gain situational awareness. If your leaders or supervisors insist that you answer questions, ask that they order you to comply. Under Supreme Court caselaw (Garrity vs. New Jersey) your statements after being compelled to talk cannot be used against you in any subsequent criminal law proceeding.
Afterward Have a buddy take photographs of you after the incident, with a special focus on images of your injuries. Save damaged uniforms and equipment. Provide all these items and your Rules for Use of Force (RUF) card to your attorney as soon as possible. Attorney Doug O’Connell is a NGAT Life Member and partner at O’Connell & West, PLLC. Doug can be reached at (512) 547-7265 or Doug@OConnellWest.com
You have the absolute right to speak with a lawyer before answering questions.
S p r i n g 2 0 2 2 H N a t i o n a l G u a r d A s s o c i a t i o n o f Te x a s
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