Posted 10/8/18

IS IT EVER O.K. TO SHOOT SOMEONE IN THE BACK?

Laws, policies and politics clash with the messiness of policing

Hambrick pursuit2

Click to play video of Officer Andrew Delke chasing Daniel Hambrick

     For Police Issues by Julius (Jay) Wachtel. Let’s begin by summarizing two episodes in Nashville:

  • On February 10, 2017 Nashville police officer Josh Lippert was driving an unmarked cruiser when he observed an SUV run a stop sign and pull into a parking lot. Officer Lippert, who is white, parked behind the vehicle. He was immediately approached by its driver and sole occupant, Jocques Clemmons, a 31-year old black man. Officer Lippert said he told Clemmons, who appeared to be fumbling with something on his person, to return to his car. Instead, the man took off running (see surveillance video, beginning on the extreme upper left). Officer Lippert chased him on foot. As they made their way around parked cars a revolver reportedly fell from Clemmon’s waistband. According to Officer Lippert, Clemons snatched it up and turned towards him. That, Officer Lipper told investigators, is why he opened fire. “He was fixing to kill me. I truly believe he was fixing to kill me.”
     
  • One and one-half years later, during the evening hours of July 26, 2018 Nashville officer Andrew Delke, who was also operating an unmarked cruiser, tried to pull over a car that was supposedly “travelling in an erratic pattern.” But the vehicle purposefully eluded him. Officer Delke, who is white, soon happened on a parked car. Several black men stood nearby. Officer Delke later said that they resembled the occupants of his vehicle of interest. One, Daniel Hambrick, 25, promptly ran off, and Officer Delke chased him on foot. Officer Delke said that Hambrick had a handgun in one hand, and that he repeatedly yelled warnings to drop the weapon or be shot. His commands had no apparent effect, and shortly after the pair rounded a corner Officer Delke fired four times: three rounds struck Hambrick in the back, with fatal results (for the graphic video click above image or here).

     We’ll come back to these incidents in a moment. First, let’s examine how police use of force law developed. That takes us back to October 3, 1974, when Memphis officers shot and killed a fleeing burglar who ignored their orders to stop. Their reason for shooting – that the suspect would have otherwise gotten away – complied with Tennessee law that allowed “all the necessary means” to arrest a fleeing suspect, and with agency rules that allowed using deadly force to arrest burglary suspects. In time this incident led the Supreme Court to rule that officers may not use deadly force to prevent “an apparently unarmed, nondangerous fleeing suspect” from escaping unless there is “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” (Tennessee v. Garner, No. 83-1035a, 1985)

     Garner caused major changes in use-of-force laws and regulations. Here is an extract from Tennessee’s most recent (2010) version:

    …the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer's identity as an officer and given a warning that deadly force may be used unless resistance or flight ceases, and [the officer] has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury [or] that the individual to be arrested poses a threat of serious bodily injury, either to the officer or to others unless immediately apprehended.

And here, using their punctuation, are Nashville P.D.’s current rules:

    11.10.120 Use of Deadly Force in Self Defense
    Authorized employees may use deadly force when they have a reasonable belief that the action is immediately necessary to prevent imminent death or serious bodily injury of a human being, including the employee.

    11.10.130 Use of Deadly Force to Effect an Arrest
    Authorized employees may use deadly force to effect the arrest of a fleeing felon only when:
    A. The employee has probable cause to believe the individual to be arrested has committed a felony involving the infliction or threatened infliction of serious bodily injury; AND
    B. The employee has probable cause to believe that the individual to be arrested poses a threat of death or serious bodily injury, either to the employee or to others unless immediately apprehended; AND
    C. Where feasible, the employee has identified himself/herself as a police
    employee and given warning such as, “STOP--POLICE--I'LL SHOOT,” that deadly force is about to be used unless flight ceases; AND
    D. If all other means of apprehension available to the employee under the attendant circumstances have been exhausted.

Similar policies are in effect at departments across the U.S. (For use of force rules in the 100 largest police departments see the “Police Use of Force Policy Database.”)

Click here for the complete collection of use of force essays

     Back to the foot chases in Nashville. Since there was no reason to believe that either suspect committed a breach beyond a minor traffic violation, neither officer was shielded by the city’s “to effect an arrest” rule (11.10.130, above). Both cops, though, claimed that they acted within the purview of 11.10.120; that is, in self-defense:

  • Officer Lippert insisted that his quarry dropped his gun, picked it up and turned towards him. Although that event wasn’t captured on video, a witness confirmed that Clemmons picked up a dropped gun. A stolen .357 revolver was recovered at the scene. Autopsy results proved somewhat mixed. While two bullets penetrated from the back (not good!), Clemmons also suffered a bullet wound on the left side and a grazing wound on the left abdomen. He also had a substantial criminal record, including an eight-year prison term for a cocaine conviction which, as a felony, prohibited him from possessing a firearm. Despite protests by local activists, Officer Lippert was fully exonerated and no lawsuit was ever filed.
     
  • Daniel Hambrick, the man Officer Delke chased, had an extensive criminal record, including convictions for aggravated robbery and, repeatedly, for felon in possession of a weapon, once quite recently. Officer Delke’s radio calls during the chase mentioned that the suspect had a gun. But as the surveillance video shows, Hambrick didn’t turn around, and there was no evidence that he directly threatened anyone with the weapon. (Nashville PD later posted a picture of the firearm, a 9mm. pistol, on Twitter.)

     Finding Officer Delke’s justification for going after Hambrick vague and disjointed, and lacking compelling evidence that his life was at risk, the D.A. charged Officer Delke with homicide, which under State law runs the gamut from culpable negligence to murder. Bottom line: unlike the episode involving Officer Lippert, no one turned on Officer Delke with a gun. So there was no self-defense.

     Maybe not. Yet distinguishing between the threats posed by Clemmons and Hambrick is fundamentally unsatisfying. Both were armed felons. They ostensibly fled for the same reason: to avoid being caught with a gun, an offense that could easily land them in prison. As Officer Delke’s lawyer pointed out, an armed felon could certainly be considered a threat to his pursuer, to any citizens they might encounter, and to other officers coming in to help. What if there had been no chase? On the one hand, maybe nothing bad would have happened. On the other, Hambrick might have capitalized on his liberty to, say, shoot an innocent someone the following day. How would the community feel then?

       “Routinely Chaotic” describes how the disorderliness of the police workplace affects officer decision-making. Bottom line: given the unpredictability of street encounters, even the best officers may not be able to tailor their responses to the intricacies of laws and regulations, let alone politics. That may be why only four years after Garner the Supreme Court offered a key concession, ruling that the appropriateness of the use of force, including deadly force, must be assessed “in light of the facts and circumstances judged from the perspective of a reasonable officer on the scene,” giving allowances “for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” (Graham v. Connor, No. 87-6571, 1989)

     Cops are supposed to protect everyone – not just themselves. That, indeed, is the reason for their being. Still, whatever its justification, shooting someone in the back is and will forever remain a loathsome practice. To many observers, perhaps most, Hambrick’s killing seems nothing less than an execution, and this won’t change no matter how carefully we deconstruct the circumstances that led to his demise. Still, in light of Graham, we anticipate that while Officer Delke may have erred in tactics and judgment, he will be eventually absolved of criminal liability. Should that happen, explaining why to communities that are already angry about the killing of black men by white cops promises to be a very tough slog.

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There’s No Pretending a Gun     A Reason? Or Just an Excuse?     Routinely Chaotic

Are Civilians Too Easy on the Police?     More Rules, Less Force?



Posted 4/23/18

THERE’S NO “PRETENDING” A GUN

Sometimes split-second decisions are right, even when they’re wrong

Vassell

     For Police Issues by Julius (Jay) Wachtel. During the past decade this blog has commented on more than a few episodes of subpar policing that led to the loss of life. While some might argue that citizens often contribute to their own demise – see, for example, the post immediately below – in this imperfect world people frequently do crazy stuff. To avoid needlessly using force, and particularly lethal force, officers must regularly accept considerable risk, and fortunately most do. When in our opinion they should have but didn’t, we’ve said so. When cops don’t feel they can wait to collect more information, a tragic ending may be unavoidable. To be sure, “split-second” decisions are sometimes inevitable, but it’s not Monday-morning quarterbacking to suggest that lives can be saved when officers pause for facts to surface, backup to arrive and hot heads (on all sides) to cool.

     That, in essence, was our conclusion in “A Reason.” Sometimes, though, the decision-making calculus is so unforgiving that deferring action – what we call “making time” – is out of the question. Consider what NYPD officers faced on April 4 when three separate 9-1-1 callers reported that a man was running around Brooklyn streets accosting passers-by with a gun, or at least with something that looked like a gun. Horrifying video surveillance footage assembled by NYPD confirms that these accounts were spot-on correct. As the episode ends the suspect suddenly pauses, takes up a shooting stance and aims his object at an undepicted target in the distance. That’s where the video abruptly concludes, but one can well imagine what happened next.

     According to police, Saheed Vassell, a 35-year old bipolar man was taking aim at responding officers with a short length of metal pipe that had a knob on one end. They instantly opened fire with real guns, killing him. Area residents who knew Saheed considered him harmless; they guessed his pretend gun was something he picked up while walking around. His father, with whom he lived, said that Saheed was normally friendly and helpful but had been repeatedly hospitalized for mental problems, occasionally after run-ins with police. Saheed was not known to have a real gun, and beat cops reportedly did not consider him dangerous. Investigation of the shooting was turned over to the New York Attorney General.


     On June 6, 2017 a 9-1-1 caller alerted Los Angeles police about a man who was walking around with a gun and otherwise behaving oddly. Patrol officers soon spotted a pedestrian who matched the odd-duck’s description. He held what to them looked like a pistol in his hands. According to the officers, Eric Rivera, 20, ignored their commands to drop the gun; instead, he walked towards them and raised the object as though aiming it. They leaped out of their patrol car and fired, killing him. In his hurry to exit the driver failed to apply the parking brake, and the police vehicle wound up running over the man.

     No firearm was found. However, officers recovered a “green and black colored plastic toy water gun.” After a protracted investigation police chief Charlie Beck determined that the shooting had been prompted by “an imminent threat of serious bodily injury or death” that made it impossible for officers to take the time to de-escalate. It was thus “in policy.” His decision was seconded by the Los Angeles Police Commission, which ruled the shooting justifiable. (Although the board has often been at odds with the chief over his agency’s use of force, in this instance its five members acted unanimously.)


     As might be expected, both killings sparked vociferous calls for change. One day after Vassell’s shooting, hundreds of demonstrators took to New York streets, calling for police reform and the officers’ prosecution. Rivera’s family picketed the D.A.’s office for twenty-six weeks, demanding that the LAPD officers (like Rivera, both are Hispanic) be prosecuted. A Federal lawsuit alleging that police used excessive force is pending.

Click here for the complete collection of use of force essays

     Toy and other pretend guns have figured in many tragic police-citizen encounters. Perhaps the most widely publicized such incident took place four years ago when a Cleveland officer shot and killed Tamir Rice, a 12-year old boy who was pointing a pellet gun at visitors to a recreation center. NYPD’s shooting of Vassell is also not the first time that police have mistaken a non-gun object for a gun. “First, Do No Harm” recounts the December, 2010 incident involving Douglas Zerby, a drunk, unarmed 35-year old man who for reasons he would take to his grave pointed a pistol-grip water nozzle at cops responding to a man-with-a-gun call.

      Prior posts (see “Related Posts,” below) have suggested various measures that can help minimize or avoid the use of force. Alas, the shootings of Vassell and Rivera present a special difficulty, as the apparent threat they posed to officers and citizens was so immediate and extreme that stepping back and trying to “de-escalate” seems clearly inappropriate.

     So what was the right thing to do? “A Very Hot Summer,” which looked into a variety of fraught police-citizen encounters, suggested it may be best “to integrate patrol into all enforcement activities, to assure that someone familiar with the territory and its inhabitants is always present.” None of the officers who shot at Vassell was a beat cop: three were part of a plainclothes anti-crime unit and the fourth, a uniformed officer, was with a crime hot-spots team. Shocked residents suggested that officers who knew Vassell might have handled things differently. They may be right. Problem is, while Vassell was running around unmolested, pointing a pretend gun at innocent persons, cops who might have made a difference were elsewhere. Really, beat officers are often busy on calls, so one can never count on their presence. And when the cops did show up, the situation they encountered was so urgent that it ruled out calling, say, a mental health crisis intervention team, as it would have required officers to wait and not intervene until specialists arrived.

     What about prevention? Little is known about Rivera’s state of mind. Police had categorized Vassell as “emotionally disturbed,” and over time he did receive some mental health treatment. Considering his persistently odd behavior, though, the mental health follow-through seemed clearly lacking. As we noted in “Homeless, Mentally Ill, Dead,” the much-ballyhooed transition from state mental hospitals to community treatment was never adequately funded, leaving legions of mentally ill – such as Vassell – on the streets, with at best sketchy treatment and oversight.

     Perhaps there’s an intermediate step. “A Stitch in Time” suggested that dedicated police/mental health teams could proactively monitor and assist individuals whose behavior, like Vassell’s, has led to multiple contacts with the authorities. Those who merit it could be flagged for treatment and, if necessary, commitment. In fact, such services do exist. Unfortunately, resources are limited and intervention takes time to arrange. They’re not the answer for sudden, serious meltdowns such as Vassell (and, probably, Rivera) experienced. In such cases, it’s always up to the cops.

     What else can be done? What’s often missing from these discussions is the role of the community. The block. The next-door neighbor. Here’s what a local resident had to say at Vassell’s funeral:

    I truly think it’s a community problem. That’s the reason why he’s this way, because nobody came and pulled him to the side and say “Yo what are you doing, that’s wrong. Yo what’s going on? Stop that.” No one.

     “Making time” and “de-escalating” are useful concepts. While perhaps articulated in other ways, they’ve been around since the birth of policing. Sometimes, though, they’re besides the point. Would it have been O.K. for cops to hang back and mull things over had Vassell and Rivera really been armed? In our oftentimes violent environment, officers sometimes must act. And when it comes to guns, there really is no pretending.

UPDATE (9/1/18): For the second time in two years South Pasadena (CA) officers shot and killed a disturbed person who pointed a pretend gun at police. In the new episode a middle-aged woman was being attended by a mental health worker and firefighters when she pointed a BB gun at officers.

UPDATE (5/14/18): According to the L.A. Times nine states now have “red flag” laws that authorize courts to order the seizure of guns from persons who are at risk of hurting themselves or others. Five of these laws were passed since the Florida school shooting.

UPDATE (5/10/18): When confronted by deputies, a pedestrian “acting suspiciously” pulled what looked like a handgun from his pants. Officers opened fire, wounding the man. His gun turned to be a “realistic-looking large pellet gun pistol.”

UPDATE (4/25/18): A Toronto police officer is credited with de-escalating the arrest of a deranged man who had just run over and killed ten pedestrians and injured many others with a van. A video shows him ignoring an object the man pointed pretending it was a gun. It turned out to be a wallet.

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Is it Ever OK?     A Reason? Or Just an Excuse?    Three (In?)explicable Shootings

Is it Always About Race?     De-escalation     A Stitch in Time     A Very Hot Summer

First, Do No Harm     Homeless, Mentally Ill, Dead     Making Time



Posted 4/5/18

A REASON? OR JUST AN EXCUSE?

Figuring out why officers kill persons “armed” with a cell phone

 

     For Police Issues by Julius (Jay) Wachtel. “As soon as they did the command, they started shooting. They said ‘put your hands up, gun’ and then they just let loose on my nephew.” That’s how Stephon Clark’s aunt  reacted to body-cam footage depicting two Sacramento officers – one white, the other black – as they unleash a barrage of twenty rounds at a 22-year old black man whom they encountered at the rear porch of what turned out to be his grandmother’s house, where he was staying.

     Why did the officers fire? According to an official news release, they thought Clark was threatening them with a gun:

    Officers pursued the suspect and located him in the backyard of the residence. The suspect turned and advanced towards the officers while holding an object which was extended in front of him. The officers believed the suspect was pointing a firearm at them. Fearing for their safety, the officers fired their duty weapons striking the suspect multiple times.

     Clark was struck eight times. According to the medical examiner hired by his family, he was probably first hit on the side. That impact likely spun him around, explaining why he wound up with six entrance wounds in the back and (as he fell) one on the leg. (See 5/2/18 update, below.)

     Problem is, Clark wasn’t armed. Once officers approached his body and rolled him over they found a cell phone on the ground.

     Police became involved when a resident called 911 to complain that someone was going into back yards and breaking the windows of parked cars. (A series of broken car windows were later found in the area.) Deputies in a helicopter reportedly observed Clark break the rear glass door of a residence. Their video depicts Clark peering into the back of a car parked in a driveway. He then jumped a fence and entered the yard of the home where he was cornered.

     As often happens, officers didn’t know whom they were chasing. Had they been informed, their concerns would have likely been elevated. In 2014, one year after graduating from high school, Clark was convicted of robbery and received five years probation. An estranged father of two, he had also collected convictions for a misdemeanor prostitution-related offense and “battery of a cohabitant.”

     California penal law (click here and here) lets peace officers use “reasonable force,” including lethal force, to arrest persons whom they have “reasonable cause to believe” committed a crime, or when necessary to discharge “any other legal duty.” Because of its centrality to the Fourth Amendment, the parameters of “reasonable” police conduct have been left for the Federal courts to define. In Graham v. Connor the Supreme Court held that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a “reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” What’s more, “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” (For a recent decision that emphasizes the slack cops might need see Kisela v. Hughes,  summarized here.)

     Considering the complexities of what the officers faced – which, not incidentally, were greatly exacerbated by Clark’s conduct and flight – it seems highly unlikely they will be held legally accountable. But concerns that a life might have been spared had they exercised better judgment or deployed better tactics are not easily dismissed.

     Use of force experts have offered a variety of opinions, mostly in support. In interviews with the Sacramento Bee and the Los Angeles Times a current cop and legal advisor found the shooting reasonable, as both officers made contemporaneous, recorded comments reflecting their belief that Clark was armed. Emphasizing the split-second nature of what took place, he favored giving the cops a complete pass: “If you don’t give officers that benefit of the doubt, if you don’t give them that shield, you’re not going to have any officers out there.” Another expert who viewed the video agreed that the officers “appear to legitimately believe they were in danger.”

     At the same time, precisely why they thought so troubled Geoffrey Alpert, a well-known academic. In one interview he pointed out that the helicopter crew mentioned that Clark only had a toolbar. In another he suggested that the officers brought on the shooting by “the yelling of the word ‘gun’.”

     Officer tactics drew less comment. A law professor and former cop said he was troubled by the final moments of the encounter, when the officers darted to and from positions of cover while yelling to each other and at Clark. “The question is how well did officers see Mr. Clark? Another question is whether officers who had some cover could have maintained their position of relative safety until they could assess the situation.”

     Your blogger thinks that’s a valid point. Had the officers paused to gather information (say, by getting back-up units to surround the house while the helicopter brightly illuminates the patio) they might have discovered that Clark was only “packing” an I-Phone. Of course, one could speculate endlessly. A key decision-maker, Sacramento’s mayor, hedged his bets. “Based on the videos alone, I cannot second guess the split-second decisions of our officers and I’m not going to do that.” He said he’s waiting for more information, and one can’t really blame him. After all, anyone who busts windows and prowls backyards poses an obvious risk, and the officers didn’t know that the occupants of the residence where they cornered Clark were his relatives.

Click here for the complete collection of use of force essays

     Not weighing in may be prudent, but it doesn’t make the perplexing issues that beset everyday policing go away. As cops well know, ill-informed “split-second” decisions are the bane of patrol work. Here are a few cell-phone related examples from prior posts:

  • Two patrol officers heard a loud noise and spotted a 27-year old pedestrian. He seemed to be fiddling with something. The cops pulled up and ordered him to halt. He instead approached them, reached into his waistband and brought something out. An officer shot him dead. All that he had was a cell phone. He was also learning disabled.
     
  • At the end of a wild freeway chase a youthful driver (he had dialed 911 and warned that he was armed) pointed at officers as though he had a gun. Their gunfire killed him. It turned out that all the troubled nineteen-year old had was a cell phone.
     
  • Officers chased a drive-by shooting suspect on foot, then shot him multiple times when he suddenly turned towards them. All he had was a cell phone. Left a near-paraplegic, he was eventually convicted of the drive-by. After being paroled he sued and was awarded $5.7 million.
     
  • Two deputies looking for robbery suspects approached a pair of candidates. One ran off and a deputy gave chase. At some point the suspect made a motion that the deputy considered threatening. The officer fired three times, fatally wounding the man. All the suspect had was a cell phone and street drugs. No, he wasn’t the robber.
     
  • Deputies responded to a 911 call from a woman who said she jad been threatened with a gun. They pulled over a parolee leaving the area. He ran off and was chased on foot. At some point the man allegedly pointed an object at deputies and was shot and killed. That object turned out to be a cell phone. A loaded gun was found in the suspect’s car, some distance away.

     Back to the shooting of Mr. Clark. We’d like to offer an observation about the tactical approach. Officers patrolling lower-income, higher-crime areas such as where Clark lived often have good reason to be wary. (For the Sacramento Bee’s list of fatal officer-involved incidents since 2016, click here.) As the videos show, officers pursued Clark using pistol-mounted flashlights. When a chase is on and the adrenaline is flowing these combination “tools”, which essentially transform suspects into targets, might lead officers to fire impulsively or with insufficient provocation.

     Prior posts emphasize that risk-tolerance is intrinsic to policing:

    Cops take chances every hour of every day, from walking up to cars during a traffic stop, to wrestling with drunks and the mentally ill, to tracking a citizen’s hands to make sure that they’re pulling out a wallet instead of a gun. If cops insisted on absolute safety they’d be leaving behind a trail of dead civilians at the end of every watch.

To prevent tragic misconceptions tacticians suggest that officers strive to slow things down and make time for supervisors and backup to arrive. The cops who killed Clark are reportedly young, with only a couple of years on the job. Examples in “Working Scared” illustrate the drawbacks of youth and inexperience. How one wishes that a plodding, experienced old-timer with lots of mistakes under his or her belt (yes, mistakes) had been present during the encounter!

     Cops know that the decision-making calculus can be very complex. So complex, in fact, that Sacramento’s new police chief said he was now considering policies that limit when officers can give chase. Yet he worried that such rules would be unavoidably saddled with perplexing implications:

    I’m perfectly willing to have that conversation, but we also need to have (discussions about) what are the consequences of not pursuing people, because that is what we have always done. When an officer sees a suspect that runs from them, we chase them. That is what we do.

After all, if the home where Clark wound up was yours or mine we’d feel pretty miffed had police decided to back off. And if he broke in... Still, Clark was unarmed. However one might parse the officers’ response, that reality is a burden that they as well as their department, community and nation will bear for a very long time.

     Finally, we should point out that the issue goes well beyond mistaking cell phones for guns. While phones are the only object of size that one typically carries around, sometimes folks have other things in hand that aren’t a gun. Like the silver smoking pipe that Saheed Vassell, a mentally disturbed 35-year old New York City resident was pointing at passers-by on the street. Officers shot and killed him yesterday.

UPDATE (5/2/18): Contradicting findings of the physician hired by Stephon Clark’s family, the county medical examiner reported that Clark was struck by seven bullets, not eight, that three (instead of six) entered his back, and that the first shot “was most likely” to the left thigh, as Clark faced officers.

UPDATE (4/25/18): A Toronto police officer is credited with de-escalating the arrest of a deranged man who had just run over and killed ten pedestrians and injured many others with a van. A video shows him ignoring an object the man pointed pretending it was a gun. It turned out to be a wallet.

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RELATED POSTS

Is it Ever OK?     There’s No “Pretending” a Gun     An Illusory Consensus (I) (II)

Three (In?)explicable Shootings     More Rules, Less Force?     De-escalation     Working Scared

Does Race Matter? (I) (II)     Lessons of Ferguson     Who Wants to be a Millionaire?

Three Perfect Storms     A Dead Marine     Making Time     The Chase is On     When Cops Kill (II)

When Cops Kill

 


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