Be Proactive: Preparing for Arrest-Related Death Investigations

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Arrest-related deaths are fraught with liability for agencies and officers. Such incidents most times end in a lawsuit, in part as a result of misconceptions held by the medical examiner and pressures on them to make a manner-of-death ruling. Fortunately, by taking a proactive approach, agencies can join best practice and the latest science in arrest-related death investigations, working directly with the medical examiner to achieve more accurate manner-of-death rulings.

First, get to know your medical examiner before an arrest-related death occurs. By forming a relationship, you will understand your respective roles and help each other produce the best work. Medical examiners and emergency room doctors often learn about ballistics only in the context of terminal (wound) ballistics. Invite them to your agency’s next use of force training session to expand their knowledge of use of force incidents and other types of ballistics. This exposure will allow them to see use of force training through a different lens. Additionally, allow them to be part of your agency’s TASER device training. By tying together experience with textbook knowledge, they will become more able and comfortable in discussing electronic control device use.

Extend this same approach to the death investigator and a contingent forensic pathologist. Although the death investigator may not be qualified to make medical findings, they are able to investigate the circumstances surrounding a death. They often act as the point of contact between your agency and the medical examiner’s office, so consider reaching out to better understand how you can work together. Next, find a forensic pathologist who is able to step in when necessary. Many times a medical examiner may not have the experience and expertise needed for an arrest-related death; a forensic pathologist will be able to assist.

Beyond those directly involved with the manner of death, request involvement from your risk manager. By including them in the process, you will gain their support for the necessity of additional forensic and toxicology testing. Make sure investigators can contact risk managers to access these funds.

You can work directly with your medical examiner to achieve more accurate manner-of-death rulings.

My colleague Mark Kroll notes that a typical settlement for an arrest-related death easily reaches $1 million. Therefore, it makes sense for agencies to budget smaller funds up front to avoid large payouts later. And yes, the money probably needs to come from your agency. Dr. Kroll notes that the typical medical examiner’s officer has a budget of $600 per case, although it can vary. If they use those allotted funds for a cardiac pathology expert, there isn’t additional money for outside drug testing—but you’ll want both. Traditional tests used at the lab or nearby hospital are often inclusive or not updated to include drugs such as fentanyl.

Dr. Kroll suggests budgeting $1,000 for comprehensive drug testing – both NMS Labs and Quest Diagnostics offer testing, which includes drugs with no medical utility (often at play in arrest-related deaths), prescription drugs and over-the-counter medications. Although expensive, an additional test to consider including in your budget is a molecular autopsy (genetic cardiac testing) as nearly one-third of cardiac deaths in ARD cases are caused by diseases that won’t show in blood tests.

When an arrest-related death occurs, be proactively involved with the investigation. Work in conjunction with the medical examiner to ensure appropriate samples are taken and testing is completed. Develop a critical incident timeline that doubles as a checklist for post-incident requirements. When developing the timeline, first, add objective, known facts. Next, annotate with evidence such as trigger pulls, body worn camera footage and defibrillator downloads. Lastly, fill in details with officer and witness interviews and add additional information about the subject’s behaviors and criminal and medical history. Provide a copy of the final timeline to your medical examiner and discuss with them to determine how they’re interpreting the data.

To learn more about working alongside your medical examiner, watch our on-demand webinar: Arrest-Related Deaths: Managing Your Medical Examiner.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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Arrest-Related Deaths: Managing Your Medical Examiner
[ON-DEMAND WEBINAR]

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