Use of Force 2010

Posted 9/19/10

SOMETIMES A DRUNK WITH A KNIFE IS JUST THAT

Feel-good rhetoric can’t substitute for deadly-force
alternatives and frequent training

     By Julius (Jay) Wachtel.  Only days after posting last week’s blog piece about LAPD’s shooting of a drunk with a knife we learned of a remarkably similar incident that had taken place a week earlier.  On August 30 John Williams, 50, an Indian craftsman, was walking the streets of downtown Seattle, carrying a 3-inch folding knife and whittling on a wooden board. His life was in shambles.  After a string of arrests for misdemeanor offenses, some serious, Williams had been convicted of felony indecent exposure.  In an interview with a reporter a staff member at the shelter where Williams lived painted a disturbing picture of a deeply troubled man who could be explosively aggressive when drunk:

    John’s life experiences were complicated. They cannot be simplified to say he was a harmless individual and therefore he should not have been shot by the police. Maybe he should not have been shot, but it’s not because he never hurt anyone in his life.

     A Seattle cop with two years on the job caught sight of Williams. What then transpired took less than a minute.  Exiting his vehicle (the patrol car camera came on with the roof lights) the officer approached Williams, whom he didn’t know. From about ten feet away he repeatedly ordered him to drop the knife.

     As it turns out Williams is hard of hearing.  He turned towards the officer but held on to the knife. Whether he then advanced on the cop, as the officer apparently claims, hasn’t been confirmed, but in any event Williams was soon lying dead with four bullet wounds to his chest.

     And no, the cop wasn’t carrying a Taser.

     One week later a like set of events played out in Los Angeles. This time the dead man was an illegal alien from Guatemala, his knife blade was twice as long, and there wasn’t one cop but three – again, none with a Taser.

     Both shootings led to angry demonstrations and, in Los Angeles, three evenings of disturbances and arrests. Politicians and police tried to calm things down by staging press conferences and community meetings.  As usual, most of the thrust was on building better relations.  Seattle Mayor Mike McGinn and Police Chief John Diaz vowed to change the department’s culture and bridge the gap with minority communities (they even created a deputy chief’s slot for that purpose.)  Tim Burgess, the councilman in charge of public safety, applauded the reorganization and its focus on “building effective relationships in every neighborhood.”

     Who can be against that?  Still, Williams and Jaminez didn’t die because of failed police-community relations. Their problems were well known to friends and relatives, but no one could get them to change their self-destructive ways. Tolerated when sober, they were left for someone else to deal with when not. And as so often happens, that “someone else” wound up being the police.

Click here for the complete collection of use of force essays

     Experienced officers know that when it comes to drunks and the mentally ill it’s sometimes best not to intercede, as gaining voluntary compliance may be impossible and things can quickly escalate. Clearly there was no choice as to Jaminez, whom passers-by said had threatened them with a knife.  As to Williams the need to step in isn’t as clear, but one would guess that most cops would want to talk to a large, tipsy man openly walking around with a  knife.

     If these situations had to be handled, and by all appearances they did, the only question was how.

     That’s where Seattle seems to be demonstrating a bit more sophistication. Los Angeles authorities tried to have it both ways, calling for better police-citizen relations while stridently defending the cops (Mayor Antonio Villaraigosa went so far as to call them “heroes,” thus essentially rendering the internal investigation moot.) Seattle police chief John Diaz seems headed in a more promising direction. Calling for a thorough outside review of practices and procedures, he vowed that his department would strive to “do it right 100 percent of the time.”   He’s already moved to revamp training, including crisis intervention.  He also promised to increase the deployment of Tasers, which are not presently carried by all patrol officers.

     So far so good. We’re for taking it a step further.

     Americans have always been armed; consequently, so have their police. Marksmanship consumes huge chunks of academy time. And while cops are far more likely to use lesser levels of force, such as hands, clubs and pepper spray, once they leave the academy they mostly practice with firearms.

     It’s no surprise that when officers face a threat they instinctively reach for their sidearm. Muscle memory gained though endless practice and repetition has even led some to accidentally deploy their handgun instead of a Taser, with tragic consequences.  The old police adage of “don’t draw a gun unless you intend to shoot” now seems almost quaint, with many cops pulling their weapons during a wide range of encounters.   Of course, once that happens the odds of a shooting increase exponentially.

     Being a practical sort, and recognizing that armed citizens do present a threat, we don’t suggest that cops train with firearms any less. But by all means give equal time to Tasers.  As we noted last week CED’s have been successfully used to neutralize knife-wielding suspects, avoiding the loss of life and sparing officers needless psychological trauma.

     Yet merely putting more Tasers in the field, as Seattle apparently intends, isn’t enough. To keep cops from automatically reverting to their handguns, Tasers must be issued from the very start, meaning at the academy, and fully integrated into pre-service and in-service training. Beyond simple paper targets, use mannequins that can take darts, and instead of simply lining up trainees at simulators and projecting “shoot-don’t shoot” scenarios, give them handguns and Tasers and let them figure out which weapon is more appropriate, and when.

     There’s one more thing. If we’re serious about reducing civilian deaths cops must be able to work together.  Patrol shifts across the U.S. have been trained in active-shooter scenarios.  If they would also practice responding to the far more frequent episodes that involve drunk and disturbed persons the use of lethal force might well become a rarity.

     It may seem impolitic to say, but it’s not always about ethnicity, community relations or the cycle of the moon.  Sometimes it’s just about a drunk with a knife. So let’s dig deep into the craft of policing and come up with an appropriate, professional response.  As we wait for the big group hug that will settle all differences between society and the police let’s see if we can save some lives along the way.

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Posted 9/12/10

EVERY COP NEEDS A TASER

There must be a way for three officers to handle a drunk with a knife
short of killing him

    “Let’s be clear, and I will be, about what happened in the Westlake area.  There was a man with a knife. That man with a knife was threatening individuals, innocent people who were on the street there. That man was in close proximity – in fact, the facts will show that actually he had his hand on at least one person at some point in that altercation.  We’ve got to go through an investigation. But when it’s all said and done, I’ll guarantee you what’s going to come out is that these guys are heroes, and I stand by them.”

     By Julius (Jay) Wachtel.  Coming on the heels of three days of disturbances in the Westlake district, an impoverished, densely-populated area of central Los Angeles that’s home to tens of thousands of Central American immigrants, many without papers, Mayor Antonio Villaragoisa’s comments conveyed a tinge of desperation.  Cops did their jobs.  Why would anyone criticize them?

     Hizzoner’s frustration was understandable.  Although what happened later isn’t as clear-cut, it’s beyond dispute that the incident began when a pedestrian alerted three bicycle officers about a man threatening passers-by with a knife. Officers quickly found the suspect, Manuel Jamines, 37, a Guatemalan national, and approached him on foot. According to police, Jamines was waving a knife. In an episode that LAPD Chief Charlie Beck said lasted less than a minute, officers ordered Jamines in both English and Spanish to drop the weapon.  Instead of complying Jamines held the knife high and advanced on officer Frank Hernandez, a 13-year veteran.  Hernandez fired twice, striking Jamines in the head and killing him.

     It turned out that Jamines, a day laborer, was drunk. A large folding knife with a six-inch blade was recovered. It was speckled with blood.

     Relatives said that Jamines had an alcohol problem and had been drinking since that morning.  A cousin told Jamines to go home but the man apparently didn’t listen. His body will be reportedly returned to the Guatemalan village where his wife and three children reside.

     Residents erected a makeshift memorial. Then the marches and protests began. Participants, including a handful of very white-looking members of the “Revolutionary Communist Party” flooded the Pico-Union district. There were three nights of disturbances, a handful of injuries and several dozen arrests. Trash was strewn about and a few dumpsters were set on fire but damage was slight. LAPD rules that forbid officers from routinely inquiring into immigration status don’t apply to those arrested, and it may be that fear of being deported helped keep things from escalating.

     A couple of witnesses have since come forward to report that Jamines had nothing in his hands when he was shot. Frankly, their accounts are less than credible (one, who hid her face from cameras, criticized officers for moving on unlicensed sidewalk vendors, an issue of continuing controversy.)  Your blogger wasn’t there, and until there’s an authoritative account to the contrary we accept that officer Hernandez sincerely believed there was no option but to shoot. [For the police report on the shooting see the 3/17/11 update, below.]

     Yet we remain troubled.

     According to the FBI, law enforcement officers justifiably shot and killed 368 persons in 2008, the last year for which complete data is available.  During the same period 58,792 officers were assaulted and 15,366 were injured, with 188 hurt by gunfire and 125 with cutting instruments.  From this perspective the number of citizens slain by police seems, for lack of a more delicate term, relatively modest.  That officers generally exercise restraint is borne out by a BJS special report, which estimated that only 1.6 percent of police-citizen contacts in 2005 involved the use of force.

     While police must be able to protect themselves and others, they are expected to accept some risk.  Considering the many instances in which citizens have been shot because they were mistakenly thought to present a threat there are probably more than a few cops who wish they had not been as quick to pull the trigger.

Click here for the complete collection of use of force essays

     And that brings us to this incident and this particular officer.  According to the Los Angeles Times officer Hernandez has previously shot two persons. Both shootings were reportedly ruled “in policy,” meaning that they were deemed justified. In the first episode, which occurred in 1999 when Hernandez had three years on the job, he shot a female armed robbery suspect after an exchange of gunfire. In the second, which occurred in 2008,  Hernandez shot an alleged assault suspect whom he said pointed a gun while trying to flee. A follow-up story in the Times reports that Hernandez was admonished for using improper tactics in the latter incident. A lawsuit has also been filed. It now seems that the man Hernandez wounded was unarmed and apparently unconnected with the assault.

     Considering that most cops complete their careers without shooting anyone, Hernandez is somewhat of a rarity. Yet each situation must be judged on its own.  Assuming that the mayor is correct and that the present shooting will also be ruled “in policy,” the question will nonetheless linger as to whether a father’s life might have somehow been spared.

     That brings us to the observation that inspired this post.  LAPD patrol units carry Tasers and beanbag shotguns.  Bicycle officers, as Chief Beck acknowledged, typically don’t.  (They do carry OC spray. Its limited reach and delayed effect, though, can make it chancy to use should suspects have weapons.)

     Police around the U.S. regularly deploy Tasers against knife-wielding suspects with good effect.  In July a Salt Lake City bicycle cop Tased a man who approached him and his partner while wielding a knife (for other recent examples Google “taser knife.”)  A recent Federally-funded study identified 500 episodes in central Florida, including 185 involving edged weapons, where officers could have justifiably used deadly force but successfully opted for an alternative, most often the Taser (pp. 86-88).   Lives were saved, expensive litigation was avoided and cops didn’t have to second-guess themselves for the rest of their careers.

     Earlier this year ex-LAPD Assistant Chief George Gascon, now police chief in San Francisco, asked for permission to issue Tasers to the SFPD.  Reviewing fifteen justifiable shootings between 2005-2009, he concluded that five, which involved suspects who had knives or “charged” at police, could have been averted had a less-than-lethal alternative been available: “One of the things we are saying in this analysis is that if we had another tool in the tool bag, i.e., a Taser, some of these shootings could have been avoided.”

     Alas, the fear that cops might go hog-wild with CED’s carried the day and Chief Gascon didn’t get his wish.  But one hopes that he’ll try again.

     Back to L.A.  In a recent interview Chief Beck expressed concern that an incident he considers “pretty straightforward” has touched off so much resentment. He seems committed to regaining the community’s trust and we wish him well.  Of course, not being privy to all the gory details we can’t be positive that a Taser would have peacefully resolved this incident, thus making real heroes of the police and avoiding the recriminations that followed.   Even so, there’s little question but that Tasers should be carried by all patrol officers, including bicycle cops.  There really must be a way to handle a drunk with a knife without having to call in the coroner.

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Is it Always About Race?     More Rules, Less Force?     Lessons of Ferguson

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Tasering a Youngster is Wrong, Except When it’s not

RELATED ARTICLES AND REPORTS

Police Executive Research Forum guidelines     NIJ reports:  2010   2011     60 Minutes report

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Posted 8/1/10

DANCING WITH HOOLIGANS

For street cops every day’s a reality show.  And that reality is often unpleasant.

     By Julius (Jay) Wachtel.  Last month a Seattle cop decided that jaywalking on his beat was getting out of hand. No more breaks!  Spotting a flock of young evildoers dashing across a busy highway (they ignored a pedestrian overpass fifteen feet away ) he corralled the group.  They were mouthy and uncooperative. One, a 19-year old girl, walked off, and when he tried to stop her she pulled away.

     Not a good move.  You see, Seattle police take jaywalking seriously.  So seriously, in fact, that last year they mounted an anti-jaywalking campaign. That led to a number of nasty physical confrontations, spurring an auditor to recommend that the department reconsider the whole business (pp. 8-9).

     In most cities, including Seattle, cops are deployed singly.  Since they’re usually outnumbered gaining voluntary compliance is crucial. Without a partner to help discourage or overcome resistance officers working alone must rely on their wits, a good dose of command presence and, most of all, public cooperation. Fortunately, most citizens who are treated respectfully will peaceably submit to authority.  Unfortunately, correctly identifying those that won’t isn’t always easy.

     The video begins as the cop struggles to handcuff a good-sized teen.  While they dance a jig a burly 17-year old girl breaks from a male youth’s grasp and jumps in to rescue her friend. The officer responds by punching her in the face.

     The fight is on.

     Use of force continuums were developed to remind officers of their legal obligations and help them choose an appropriate technique should they need to apply force. It all begins with verbal commands.  Next in line are use of hands, fists and chemical agents such as pepper spray. If these fail to do the job, and keeping in mind that circumstances can change instantly, officers may deploy batons, the Taser, less-than-lethal projectiles such as bean-bag rounds and, when available, canines. At the top of the pyramid is lethal force, including firearms and other means likely to kill.  It’s reserved for situations where officers or innocent persons face an imminent risk of great bodily injury or death and less forceful measures are ineffective.

     Officers know that even the most “ordinary” encounters can quickly escalate.  They also know that trying to overcome resistance while working alone is very dangerous. Every year several cops are shot with their own guns. Four were killed this way in 2008.  Yet if anything the Seattle officer limited his use of force to hands (and, at a singular moment, a fist) and kept trying to talk the 19-year old into submitting.  Don Van Balicom, a use of force expert and former police chief suggested that the intrusion by the second woman might have justified a more aggressive approach. “He has two people he’s engaged with.  They are both good sized people. He has a hostile crowd around him.   He’s by himself....He’s not using as much force, quite honestly, as he could have.”  In retrospect it seems fortunate that the 17-year old’s male companion pulled her away, as the cop was running out of options.

     Why wasn’t the officer more physically assertive? Maybe he didn’t want to seriously injure a young woman, as might have happened had he placed more pressure on her arms or taken her to the ground.  Maybe he didn’t want to inflame bystanders or appear brutal on camera. Maybe it was a combination of things.

     He might have felt differently had he known a bit more about these “ladies.”  The one he punched in the face was arrested last November for doing exactly that to a 15-year old boy whom she and her friends allegedly robbed of cash and a cell phone (charges were dropped because the boy and his 14-year old companion refused to testify.) She had been previously arrested for stealing a minivan, an offense that earned her a deferred disposition.  Her 19-year old friend was arrested in 2009 for assaulting a sheriff’s deputy. She had reportedly been abusing staff members at a home for troubled girls and pushed the cop to the ground.  That too ended with a deferred disposition.

     Well, that’s par for patrol work, where officers must often act on incomplete information.  Occasionally they behave rashly and use excessive force, sometimes with tragic consequences (for a more complete discussion see “Making Time”.)  Yet here we have a cop who perhaps used too little force and wound up locked in a dangerous dance with a pair of hooligans.

Click here for the complete collection of use of force essays

     Still, no use of force is pretty to watch, and that’s particularly so when the precipitating incident is as minor as jaywalking. It would be interesting to know more about the initial interaction between the officer and the jaywalkers, before the video.  Perhaps the Seattle PD training unit, where the cop has been temporarily reassigned, can help cops learn to defuse things before they turn ugly. Maybe they can reinforce the need to alert dispatch when making an enforcement contact with multiple individuals. What they can’t do, of course, is change the hearts and minds of hooligans, so unless police decide to forego certain encounters altogether the underlying dilemma will persist long after this writer and his readers have turned to dust.

     In any event, this time things ended well – for the hooligans.  At last report they’ve apologized to the officer and are probably well on their way to earning yet another deferred disposition.

     Alas, things turned out less favorably for everyone else. Since the officer is white and his antagonists are black divisions quickly formed across racial lines.  Coming less than two months after the videotaped stomping of a Hispanic man by a Seattle cop, the incident is being touted as another reason why the acting chief shouldn’t get the top job.

     And as for the officer, well, with the video enshrined on You Tube his two-step will be a topic of discussion at police academies and roll-call training for years to come. What he might think of his new-found fame one can only imagine.

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Posted 6/27/10

IS IT WHEN TO CHASE? OR IF?

Ten days and twenty-five hundred miles apart, two pursuits end in tragedy

     By Julius (Jay) Wachtel. Kayla Woods won’t be enjoying a seventh birthday party.  She’ll no longer be there to watch over her younger brother and comfort him when he’s sad.  And she’ll never again play with her friends, like she was doing on June 10, when a vehicle fleeing from police sped through the Lake View Terrace neighborhood where she and her family lived.  According to her grieving father Kayla was all of six years and ten days old when the speeding car crushed her tiny body, pinning her against a wall.

     Moments earlier LAPD officers responded to reports of a drug transaction involving armed men. When cops arrived a vehicle containing three suspects took off.  Police gave chase.  As the pursuit entered a residential area the car’s occupants tossed two handguns.  Seconds later, while negotiating a sharp turn, the vehicle went out of control and plowed into a sidewalk, striking the victim. Two passengers, Juanquin Hiriarte, 34 and Manuel Ydiarte, 49 were immediately arrested.  The driver, Aaron Rojas, 32, was taken into custody two hours later when a police dog found him hiding in the trash. All were charged with murder, felony evading and being ex-cons with guns.  Ydiarte was also charged with possessing heroin for sale.

     Local residents wondered why police would chase in a residential area.  In an interview LAPD Chief Charlie Beck emphasized that officers were dealing with armed criminals and that the pursuit was “very brief.”  He also said that deciding whether to chase was a “tough call” and had he known the outcome in advance he would have told officers not to come to work.


     Ten days later in Harlem a speeding minivan approached a red light. It didn’t bother to slow down. In what a witness described as an “explosion” an oncoming vehicle smashed into the van, catapulting it into a group of pedestrians waiting to cross the street. Sister Mary Celine Graham, 83, was killed. Several others were injured, including Sister Mary Celine’s fifty-eight year old health aide, Patricia Cruz, a mother of six. Ms. Cruz was hospitalized in critical condition but is expected to recover.

     A member of the Franciscan Handmaids of the Most Pure Heart of Mary, Sister Mary Celine retired in 1999 after spending fifty-one years as a teacher and director at Harlem’s St. Benedict’s Day Nursery. Described as “a wonderful lady...a holy woman, bright, vibrant,” Sister Mary Celine suffered from Parkison’s disease but was determined to “continue her work through prayer.”

     Sister Mary Celine’s mission wasn’t interrupted by an ordinary accident.  The van that brought her life to its sudden, violent end was being chased by police.  Only moments earlier officers had pulled it over in connection with an armed robbery.  As its 18-year old driver was arrested his 20-year old companion took the wheel and drove off.  He fled after the accident but was caught the next day.

     Police strongly defended their actions. Police Commissioner Raymond Kelly described the brief pursuit by an unmarked sedan – it ran with red lights and siren and kept a block away – as within guidelines and tactically sound. “It was an unfortunate series of events that caused a nun to lose her life,” he said.  Dr. Geoffrey Alpert, an expert in such matters, remarked that “chases often end badly” so the trend has been to restrict them. Yet he went on to say that in this particular case what the police did seemed appropriate.


     What’s known about police pursuits? Querying the FARS database for pursuit-related vehicular fatalities in 2008, the most recent year with complete data, yielded 279 crashes and 320 deaths. Victims included 301 vehicle occupants, twelve pedestrians, three bicyclists and four others.  Although the toll has remained stable for a decade (275 crashes and 321 fatalities in 1998) reporting isn’t mandatory, so the figure is presumably an undercount.  Applying simple corrections, the author of a 2002 article in the FBI Law Enforcement Bulletin estimated yearly pursuit-related deaths at 375 to 500.

Click here for the complete collection of use of force essays

     Yet even that figure may be too low.  A comprehensive 1992 study sponsored by the AAA Foundation for Highway Safety reported there were about 50,000 pursuits each year, with 18 to 44 percent leading to accidents, five to 24 percent causing injuries, and one to three percent – 500 to 1,500 – resulting in deaths.

     It’s currently accepted that about forty percent of chases end in a collision.  A 1997 NIJ study reported that 40 percent of Omaha pursuits caused property damage and that 41 percent of Miami chases caused injuries.  More recently, two-thousand in-service Minnesota police officers reported that 41 percent of the chases in which they had participated ended with someone (usually the person being pursued) crashing.

     There’s no denying that chases are inherently dangerous.  It’s also well known that cops are reluctant to back off. Officers in the Minnesota study, for example, said they voluntarily discontinued pursuits less than five percent of the time.

     But should cops chase in the first place? In a 2008 report for the Police Foundation, Alpert and Smith concluded that pursuits are difficult to justify:

    The empirical research debunked two common myths: most fleeing suspects are dangerous violent felons; and if the police don’t chase suspects, all suspects will continue to flee, thereby greatly endangering public safety. What emerged...was the fact that most suspects who flee the police were young males who had committed minor offenses and who had made very bad decisions to flee.  Additionally, the research supported the finding that if the police were to restrict their pursuit policies and not chase all offenders, no wholesale fleeing was likely to occur....

     Fleeing suspects may not be as benign as the authors suggest. Kayla Woods and Sister Mary Celine were killed in chases involving armed offenders. And while a slim majority (fifty-one percent) of Omaha pursuits were for traffic violations, a not inconsiderable forty percent of those chased had committed serious crimes.  In Miami the proportion of such chases was 35 percent; over four years that amounted to 117 armed robberies, 67 vehicular assaults, 37 aggravated assaults, 37 stolen vehicles, 24 burglaries and 62 other felonies.

     With evidence accumulating about the tragic consequences of pursuits the tendency has been to restrict the practice. Perhaps the most extreme example is Baltimore, where General Order 11-90 (in full, here; summarized, here) prohibits high speed pursuit driving except when “failure to pursue may result in grave injury or death.”  Pursuing officers must use lights and siren and come to a full stop at controlled intersections.  In addition, the Maryland Court of Appeals has ruled that 11-90 is admissible in civil actions against the city. So the bottom line is clear: if you’re a Baltimore cop, don’t even think about chasing.

     Pursuit policies in Los Angeles and New York (PG 212-39, not online) are far more permissive. Excepting infractions and misdemeanor evading or reckless driving, LAPD officers may pursue anyone who tries to flee. Cops must take into account factors including the severity of the offense, community safety, risk to the public by pursuing, traffic and weather conditions, and whether a violator can be apprehended later.

     New York City’s policy is similar.  Officers must consider the nature of the offense, time of day, weather, location and population density, the capability of their vehicle and their familiarity with the area.  Pursuits must be terminated “whenever the risks to uniformed members of the service and the public outweigh the danger to the community if [the] suspect is not immediately apprehended.”  Unmarked vehicles and motorcycles must “limit” pursuits and yield to regular patrol cars as soon as practical.

     In trying to strike the proper balance some jurisdictions restrict pursuits to specified crimes.  New Jersey limits chases to offenses punishable by at least five years in prison, or to persons who pose an immediate threat to the safety of police or the public.  Orlando’s policy is narrower, allowing pursuits only when officers “have a reasonable suspicion that a fleeing suspect has committed or has attempted to commit a violent forcible felony...”  (Dodging fleeing cars doesn’t count.) Then there’s Milwaukee, where a recent spate of pursuit-related deaths led the city to institute a policy requiring that officers have probable cause to believe that a violent felony occurred before starting a chase.

     Kayla Woods and Sister Mary Celine were struck down by felons fleeing from gun-related incidents. From what’s known the New York City episode, at least, should satisfy virtually all rules short of Baltimore’s. Yet even if shaped by the most stringent cost-benefit analyses, pursuit policies seem awfully hollow when, as so often happens, an innocent life is lost.  It may be that as extreme examples of the application of force (think about your Saturday morning drive, then consider 3,000 pounds of steel coming your way) chases should be subject to public scrutiny and their conditions enshrined in law so that everyone who may be affected is onboard.

     Or we could just say “no.”

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Posted 4/11/10

MAKING TIME

Split-second decisions can end in tragedy

     By Julius (Jay) Wachtel. Early on a Saturday morning three weeks ago two uniformed LAPD gang enforcement officers, one with eight years of experience, the other with seven, were patrolling in South Los Angeles when they heard a “loud noise.”  Wheeling their car around they spotted Steven Eugene Washington, 27, walking down the sidewalk. He seemed to be fiddling with something on his person. Although a detailed official account is lacking, it seems that the officers exited their vehicle, called out to Washington and ordered him to stop.  Instead he walked towards them and removed an object from his waistband.

     Or seemed to. Fearing that their lives were in danger, the officers fired. Struck once in the head Washington fell, mortally wounded.

     No gun was found. What the object was – if anything – hasn’t been disclosed.

     According to Washington’s mother, and to the attorney representing her in a claim against LAPD, her son, who suffered from autism, was on his way home after seeing a friend. Fearful of strangers and respectful of police, he had never been in trouble with the law. “We want to know why,” his outraged aunt demanded.  “You're dealing with a 27-year old man who is autistic – 27, but with the mind-frame of a 12-year old. He never carried a gun, he was never around guns, he wasn't violent. He was a kid.”

     At a press conference soon after the incident LAPD Assistant Chief Earl Paysinger emphasized that officers believed Washington was reaching for a gun and had only an instant to decide. “The officers made decisions in a fraction of a second and teams of investigators now have to examine it from every possible angle...It is important to note that what happened was tragic to Mr. Washington, his family, to whom we offer our condolences, but also for the officers, who have our strong support during this incredibly difficult period for all of us.”

     Earlier postings (see “related posts,” below) document a recent string of questionable shootings by Southland law enforcement agencies.  Perhaps the most similar took place in May 2008 when two Inglewood cops shot at a car they mistakenly thought was the source of gunfire.  One occupant was killed and two others were wounded.  Expressing deep regret, the city’s police chief suggested that it wasn’t the police but circumstances – shots had been fired and the vehicle seemed to be headed straight at the officers – that were really to blame. “I won't go so far as to call it a mistake.  The process that the officers went through had a very tragic outcome.”

     Mentally unstable persons do present a special challenge. One week after the Inglewood incident Long Beach officers were called to deal with a middle-aged man who was behaving erratically.  During a struggle he grabbed an officer’s baton and was shot five times.  Surviving relatives described him as a loving person who was distraught about a failed relationship.  (They sued, but a jury found in the department’s favor.)

     Considering the innumerable police-citizen encounters that take place each day in this gun-obsessed and violence-prone land, it seems a miracle that so few shootings actually occur.  Knowing that appearances can deceive, most officers take care not to act hastily, thus accepting at least some risk.  If they didn’t, dead civilians would be lining the streets at the end of every shift.

Click here for the complete collection of use of force essays

     Still, one needless death is one too many.  What can prevent mistaken shootings?  Shortly after Washington’s death LAPD reassured the public that its officers are trained to deal with the autistic.  A project by the Autism Society of Los Angeles has reached thousands of officers, including many with family members afflicted by the disorder.  Autism training is now commonplace for cops around the U.S. (Awareness of the problem has even seeped into popular entertainment, with a theatrical play, “The Rant,” portraying the police killing of an autistic teen.)

     Yet is training enough? Last October an autistic 16-year old North Carolina high school student asked to speak with a resource officer.  When the cop arrived the youth suddenly drew a knife and lunged.  By the time it was over the officer had several knife wounds and the boy was shot dead. “It's very upsetting, and I just hope everybody realizes that this was an isolated case, and he was a good kid,” said the boy’s mother.

   When officers have the luxury of time skills learned during classroom instruction and practical exercises can be useful. But self-initiated contacts, such as the observation that led to the encounter between the LAPD cops and Washington are far more difficult to manage. Officers who know nothing beyond what they observe might perceive a threat where none exists.  And if they’re in a high-crime area, fear, anxiety and past experiences can predispose them to respond reflexively.

     Sometimes cops must make decisions in Chief Paysinger’s “fraction of a second.” But it may also be possible to “make” enough time to give oneself some breathing room.  Officers know not to place themselves in positions where they lack cover or are inherently at risk, such as in front of a suspect’s car.  On the other hand, choreographing unplanned street encounters isn’t easy. Merely closing in can place an officer in a dangerously exposed position.  Should a suspect make a move, the cop may instinctively react by deploying their only ready defense – a gun.

     That’s what supposedly led to a widely-criticized episode last September, when a man running from an L.A. County deputy was fatally shot when he reached for what turned out to be a cell phone. He turned out not to be the robber that officers were seeking.  The upshot was a new policy that urges officers to contain suspects rather than charge in.  “You don’t have to go barreling in on every case and then find yourself in a position where you have no choice but to use your gun,” said Sheriff Lee Baca.

     When cops go through simulation exercises they learn the importance of taking cover and seeing a gun before firing. Unfortunately, the lessons don’t always transfer to the rough-and-tumble of the streets. How long did the officers who shot Washington observe him before moving in?  Once they did, did they take any precautions to increase the time they had to react?  And most importantly, what was in the youth’s hands?

     Hastily entering an uncertain environment with little information is a recipe for tragedy.  Alas, it’s a practice that officers seem doomed to repeat.

Update (04/17/12): Although the Police Commission ruled that shooting Steven Washington was unreasonable, LAPD Chief Charlie Beck gave the officers who killed the autistic youth “conditional reprimands.” Beck has cleared nearly every officer in 90 deadly force cases examined by Commissioners since 2009.  This is one of four in which they disagreed.

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Posted 1/10/10

IT’S NOW L.A.’S PROBLEM

A cop’s tragic fumble turns into a cause célèbre.
What will happen if he’s acquitted?

     By Julius (Jay) Wachtel. In a few weeks the murder trial of former Bay Area Rapid Transit police officer Johannes Mehserle will get underway. As we reported earlier, Mehserle, who shot passenger Oscar Grant to death at an Oakland subway platform one year ago, argues that he meant to use a Taser but in the confusion pulled his pistol instead.  Although we found his claim credible, it didn’t sit well with Alameda County Judge C. Don Clay, whose hostile remarks at the preliminary hearing (“there is no doubt in my mind that Mr. Mehserle intended to shoot Oscar Grant with a gun and not a Taser”) made it perfectly clear to the ex-cop’s lawyers that he desperately needed a change of venue.

     And he got one. But the raucous protests greeting Mehserle’s recent appearance at Los Angeles Superior Court show that the heat’s still on.  In effect, Oakland’s problems have become L.A.’s. No matter: we’re confident that once the evidence in this grossly overcharged case is in jurors will conclude that the shooting was unintended.  Indeed, that’s what has us worried.

     Let’s recap.  About 2:00 am on New Year’s day 2009 Mehserle and other BART officers detained four riders who had allegedly created a disturbance on a subway train. For reasons that aren’t perfectly clear they wrestled Oscar Grant to the ground then struggled to handcuff him.  A bystander’s cell phone video shows Mehserle fumbling for his gunbelt.  As he stands Mehserle draws his pistol and fires once into Grant’s back, instantly killing him.

     Witnessed by scores of bystanders, accounts of Mehserle’s inexplicable deed spread like wildfire. It would take a month, when defense lawyers filed a motion to set bail, for their client’s version of what happened to come out.  Too late! Within hours of the incident gangs of toughs rampaged through downtown Oakland.  Disturbances continued for days.  Meanwhile media outlets busily pumped out an avalanche of inflammatory coverage, with one television station promptly broadcasting both the cell phone video and an interview with the Grant family attorney that essentially portrayed the officer as a cold-blooded killer. With dispassionate, even-handed analysis going out the window it seemed as though the officer was already tried and convicted.

     Why wait? String him up now!

     Mehserle was soon arrested for murder.  Ironically, his bail application was based mostly on what prosecutors dug up.  Witnesses confirmed that Grant, who had not yet been searched, resisted attempts to get his hands out from under his stomach. Mehserle was overheard warning other cops that Grant might be hiding a gun and that he intended to deploy the Taser, and no less than seven citizens reported that Mehserle went into shock right after firing the fatal shot. Here is an extract from the interview with citizen witness Alika Rogers:

    Officer Mehserle put his hands up to his forehead and he appeared to be in shock.  Rogers did not see Mehserle put his gun away. Rogers read Officer Mehserle’s lips, which appeared to say “Oh my god, Oh my god.” The shooting really looked like a total accident. The expression on Officer Mehserle’s face was as if, “Oh my god, I can’t believe that just happened.”

     Here is another, with civilian witness Karina Vargas:

    Vargas said the Officer who shot Grant had a surprised, dumbfounded look, like he was in shock. “After the shot, he stood there a few seconds trying to take in what had just happened.  He had placed his hands to his head.”

     In June 2005 airman Elio Carrion was riding in a car that crashed while fleeing police. The first officer on the scene, San Bernardino County sheriff’s deputy Ivory Webb, ordered Carrion onto the ground.  Carrion complied, but soon asked for permission to get up.  Alone and frightened, Deputy Webb tried to tell Carrion “don’t get up,” but in his excitement apparently left out “don’t” twice. A sequence captured by an amateur videographer shows Carrion getting up, prompting Webb to shoot him three times.

Click here for the complete collection of use of force essays

     Carrion miraculously survived his wounds. At his trial for attempted voluntary manslaughter, Webb testified that if he said “get up” it was only because he had been too scared to articulate clearly. His account was supported by defense psychologist William Lewinski, who said that when officers are under great stress their analytical processes can shut down. Lewinski described other situations in which officers feared for their lives. “Their analytical process began to collapse,” he testified. “They had so much to do that, literally, they were overloaded.”

     Is that what happened to Mehserle?  Another officer said that he had never seen him so scared.  Our earlier post mentioned past instances when stressed-out officers mistakenly drew and fired their duty weapons when they actually meant to use a Taser. That’s not as far-fetched as it seems. Tasers commonly used by police feel and operate much like a pistol. For convenience and to keep from confusing them with real guns they’re usually worn, as Mehserle did, on one’s weak side. But while officers frequently drill with their issue handguns, which they take home, care for and not infrequently draw while on duty, they get far less practice with Tasers.  That was especially true for the BART police, where the weapons were a recent innovation and, with few on hand, had to be passed from shift to shift.

     According to his bail pleading Mehserle had been certified to use Tasers for only a month and carried the weapon no more than a dozen times. Given his agitated state it’s not difficult to see how he might have become confused.  It’s an instance where the muscle memory that enables officers to swiftly draw their issue handguns can have an unintended consequence. Reacting in the way that he was conditioned, Mehserle robotically reached for the far more familiar holster.  In his rattled state of mind he failed to detect, in the instant before squeezing the trigger, that the weapon at hand was not the one he had meant to deploy.

     It’s happened before, and thanks to an inherent design flaw that makes Tasers so gun-like will likely happen again.  There’s really no technical reason why Tasers can’t be shaped differently and activated, say, by pressing a button. But that would be a different blog post.

     None of what we’ve said is new to the Alameda D.A.  So why do they persist in charging Mehserle with murder? (Mehserle’s lawyer asked Judge Clay to reduce the charge to involuntary manslaughter.  He refused.) Considering the public outcry, the charges of police racism, the marches and demonstrations, prosecutors probably figured that jumping on the choo-choo train was probably the safest choice, politically and otherwise.  Still, there must be something to justify a charge of murder.  While we’re not privy to the evidence in the case, the bail filing did mention that after the shooting Mehserle told another officer, “Tony, I thought he was going for a gun.”

     According to Judge Clay, that statement and the video were enough to convince him that Mehserle purposely shot Grant.  But to believe that requires one dismiss compelling evidence that points in a far more innocent direction. Regrettably, the reasoned voices have been strangely silent, leaving the public unprepared for what we’re convinced will be a big (and to many, unwelcome) surprise. Knowing of the shooting’s near-explosive aftermath, and with demonstrations already occurring in L.A., what will happen when, as we fully expect, prosecutors are unable to meet their burden?

Update (07/08/10): In what seems a compromise verdict, jurors convicted Mehserle of involuntary manslaughter.  Punishment is imprisonment for two to four years, plus three to ten for using a gun.

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Working Scared     Oakland BART Shooting: A Tragedy, Yes, But is it Murder?

To Err is Human, To Prevent is Divine

 


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