I have a client, “Joe,” who got shot three times by a DEA agent. DEA agents were following my client because they believed he had been involved in a drug transaction; he swapped paint with one of the agents, who shot him after the collision. Getting shot after a tussle with a DEA agent shouldn’t be much of a surprise to anyone; that’s not what’s notable about this case. What’s notable about this case is what the DEA and local law enforcement, but especially the agent who shot Joe, did after the shooting.
The shooting was investigated by deputies from the local sheriff’s department. In his report the lead investigator noted that, in addition to the shooter (I’ll call him “Derrick”) and the shootee, there were eight witnesses to the crash and the shooting — three DEA agents and five officers from local small-town police departments.
So: the investigator turns up at the scene of the shooting, and he starts interviewing the (police) witnesses. He talks to “Will” first; Will tells him that he saw Joe strike driver’s side of Agent Derrick’s vehicle with the truck, causing the truck to spin out, saw Joe accelerate his truck forward and strike Derrick’s vehicle in the front end, and stopped his Expedition behind the truck so that Joe could not reverse backwards and either escape or try to injure Agent Derrick with the GMC truck. As Will got out and approached the truck from the rear, he heard three gunshots. He did notice while getting out of his Expedition that Joe was continually moving in the cab of his truck and verbal orders was being given to Joe but he was not complying. Will said Derrick was wearing ballistic vest saying “police” and DEA.
Okay, so Joe got shot, not in retaliation for hitting Derrick’s vehicle, but because he was “continually moving in the cab of his truck” and not complying with “verbal orders.” Great, so we’ll get that down in writing, right? Will agrees. Then Will changes his mind, and decides to invoke his right to counsel.
Fair enough. That’s his right, even though it doesn’t appear that he did anything even remotely wrong, and it doesn’t appear that he needs to do anything to protect himself. But the Fifth Amendment is the Fifth Amendment, and if a police officer gets a wild hair and wants to plead it, he’s as entitled to as anyone. There are eight other cops (including Derrick, who has gone to the ER for nonexistent injuries) for the investigator to interview. So what do you say, guys, want to give a statement? Um, well, no.
Out of nine cops present at the scene of the shooting, nine invoke their right to counsel. (Did you get that, folks? The police know not to talk to the police without counsel!)
An accident reconstructionist from the sheriff’s office investigates the scene and finds that Joe’s car had, after colliding with Derrick’s car and coming to a stop facing it, moved back. In fact, there is a skid mark with the “appearance of an acceleration in reverse by Joe’s truck which was stopped by making contact with Will’s Expedition.”
Now the investigator goes to the hospital and interviews Joe. Joe, who isn’t a highly-trained police officer, doesn’t know to take the Fifth. He says he thought he was being carjacked; a gold or tan colored car came out of a convenience store and caused him to wreck his truck. The next thing he knew, he was shot and the police were there. No lights were on. “When making left turn a brown Buick pulled out in front of me a the store I swerved to the right. He hit me from behind I spin around no lights was on to let me know that was a police. I was shot maybe 1 to 3 shot in arm, grazed on chest and neck.”
Two days later DEA Special Agent “Noel” calls the investigator. Noel says that Derrick had retained counsel (“Larry,” whose job is representing federal agents who are involved in shootings). (From the fact that it was a DEA agent who calls with this message, rather than Larry or his assistant, we can draw the logical conclusion that taking the Fifth when questioned about a shooting is not simply the agents’ bright idea, but in fact DEA policy.)
The next day two things happen in the investigation. First, a lawyer, “Geoff,” calls, telling the investigator that he represents Derrick on behalf of Larry. Second, the investigator receives supplemental reports from the small-town narcotics cops who had invoked their right to remain silent at the scene.
According to Officer Alfonso, Derrick exited his vehicle after Joe accelerated toward the front of his vehicle, striking it head-on. Derrick then gave “verbal commands” to stop and show his hands, Joe refused to comply, and Derrick fired his weapon three times. Alfonso didn’t do anything, though. (The police know to take the Fifth even when they didn’t do anything!)
Officer Ivan’s account matches Alfonso’s (it’s funny how witnesses’ stories match when they have had three days to discuss them): Derrick exited his vehicle after Joe rammed him twice from in front. Then “the suspect disregarded all instructions to stop and quit moving, he continued to make furtive movements inside the cab of the vehicle which could not be seen. Agent Conn then fired his weapon three times and struck the suspect several times.” Pretty clear, right — disregarded instructions plus furtive movements.
Officer Michael didn’t see much: “The suspect’s vehicle started skidding and spun around. I then pulled up and stopped at the back passenger’s side of Agent Derrick’s vehicle. I then reached for my gun and as I was opening my driver’s door to exit I heard three gunshots.”
Now Will gives a written statement: “Immediately after striking Derrick’s vehicle the second time, reverse lights came on as I closed distance to the rear of the vehicle. I heard three gunshots as I stopped at the rear of the suspect’s vehicle. When exiting my vehicle I noticed the suspect continually moving in the cab of the truck and he was not fully complying with the verbal instructions he was receiving.”
The last small-town narcotics cop who took the Fifth, “Greg,” didn’t (as it turns out) witness any part of the incident as it was occurring, “but did arrive on the scene shortly after the fact.” (The police know to take the Fifth even when they didn’t see anything!)
Get the picture? Joe Collided with Derrick, spun, they were facing each other. They collided head-on and stopped. Derrick got out of his vehicle, ordered Joe to show his hands; instead Joe tried to accelerate backwards but was stopped by Will’s vehicle, Derrick shot Joe.
Six days later — nine days after the incident — the DEA’s ASAC, “Al,” brings the four DEA agents’ statements to the sheriff’s investigator. According to the statements, three of the agents arrived at the scene after the shooting. (The police know to take the Fifth even when they don’t know anything!) The fourth was Derrick; that’s where the story gets interesting. Derrick claims that, after the collision, when the two vehicles were facing each other in the road,
I immediately put my vehicle in park and opened my driver’s side door,
pulled my weapon, and pointed my weapon at the driver of the beige pickup truck, who remained inside the vehicle behind the steering wheel. I stood in the space that formed a “V” between my door and the vehicle and uttered a number of loud verbal commands to the driver of the beige pickup. The driver did not respond. I heard the engine revving and the vehicle immediately and quickly drove straight towards my vehicle and hitting the front left center of my vehicle with considerable force. As a result, my vehicle was pushed back and to the left. Door frame hit my right forearm. I took a step back, still in the V between the door and the car. Truck continued to push my vehicle backwards. I feared for my life and believed I was in imminent danger . . . I moved backwards and continued to fear for my life. I perceived no safe retreat. At this time, I fired my weapon at the driver of the beige pickup truck through the windshield in order to stop the threat to me. Driver moved slightly back and stopped revving the engine. Surveillance team arrived on scene and took driver into custody.
Derrick’s statement has all the right language to justify the shooting, but I would bet that it is a fabrication. Why? First, because the statement doesn’t match the physical evidence. Second, because none of the three other officers who admitted being present when the shooting took place saw or heard anything even remotely like Derrick described.
We could debate whether Derrick’s shooting of Joe was legally justified. I think it’s probably a close call. Based on his lie, he was cleared by the DEA’s Office of Professional Responsibility (“OPR”). After all, none of the other DEA agents saw anything, and the OPR didn’t have enough interest in the truth to talk to the local cops on the task force.
This episode carries three lessons:
- DEA agents lie to cover their asses.
- DEA agents aren’t policed very carefully by their Office of Professional Responsibility. Quis custodiet custodes ipsos?
- Most importantly, don’t talk to the cops.
Knowing that the police lawyer up when they’re questioned about their actions, inaction, knowledge or lack thereof, why on Earth would anyone ever answer police questions?
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