ON POLICE SHOOTINGS

Nov 26, 2014 by Wayne Zurl

On Police Shootings

Over the last several weeks, two people, one on Facebook and one on Twitter, questioned me about the recent shootings by police officers, of unarmed civilians. Both of these individuals were white males.

I wrote off the guy on Facebook as a crank, wanting nothing more than to vent his self-perceived anger and put someone from the police community in the hot seat. Unfortunately, he made a fool of himself by quoting many one-sided, unsubstantiated, and out-of-proportion statistics made by people with nothing more on their agendas than to foster unrest and anti-police sentiments within the communities surrounding the shootings and elsewhere. He was nothing more than an angry youth with no legitimate purpose other than to create hard feelings between white and black people.

The second person was a little older, but less willing to listen to any answers to his questions. He began by “following” me on Twitter. When I thanked him for the “follow,” a few minutes later, he wrote, “Hi @waynezurl. As a retired NYPD officer, (I never worked for the police department of the City of New York, nor have I ever represented myself as a former employee of NYPD. Refer to my biography at http://waynezurlbooks.net/abouttheauthor/. I’m retired from the police department of Suffolk County, NY.) can you help me understand why police are breaking the law so often these days? What can we do?”

To which I wondered, ‘How often is so often?’ Perhaps this guy has an agenda? To which I said several things. 1, “This needs much more than 140 characters (the Twitter limit per message) to discuss.” 2, “Don’t confuse guilty cops with cops who have been accused of something. Wait for a conviction.” 3, “For better cops you need the BEST of training. To recruit the best cops you need good salaries and benefits.”

Then he said, “Please don’t pander about me being “confused” @waynezurl. I asked you an honest question.”
My responses in 140 characters or less:
“No pandering. Cops are tried in the media when a shooting occurs. They are entitled to the same rights as any person.”
“IAB [Internal Affairs Bureau] investigators and the FBI are the checks & balances in these incidents. Wait for the results of an investigation.”
“Remember how Al Sharpton fabricated the Tawana Brawley fiasco?” [And made rape accusations against two police officers, an assistant district attorney, and three others who were totally innocent of any wrongdoing. This was substantiated when Ms. Brawley admitted she lied and perpetuated her lie at the suggestion of the Reverend Sharpton and her legal advisors.]
Then Mr. Twitter’s use of English slips to sub-standard.
“You won’t answer questions about the KNOWN police about that we are seeing daily @waynezurl. Are throwing other issues out to distract us?”

And:
Citizens are terrified of abuse and #StreetExecutions like #EricGarner

“Where are the “good cops” when the BAD COPS commit crime after crime, yet go unreported and/or unpunished.”

“What about after we catch the bad ones. Where are the good ones that speaks against the evil?”

“Our Cops [are] r filled w/ [with] Psychopaths. Their GUNS [are] r used 4 CRIME[.]”

I chose not to grace those rantings with an answer. Instead, I remembered a quote from Edward Gibbon. “I never make the mistake of arguing with people for whose opinions I have no respect.”

These are my thoughts on police shootings and other alleged police wrong doing:

This second person posted a two part photo on Twitter. One half showed a facsimile of a police shield spattered in blood. Instead of the usual lettering shown on police badges this one said: ‘Officer Darren Wilson belongs in prison.’ The other side of the composite showed what I have heard is a photo of Michael Brown, the black man shot to death by Officer Wilson, at age 12. (Brown was 18 when he died.) Draw your own conclusion if Mr. Twitter intended this to be inflammatory.

Apparently there are two parallel investigations being conducted to learn what actually happened to precipitate this shooting in Ferguson, Missouri, one by local internal affairs investigators and the other by the FBI.

To assume Officer Wilson is guilty prior to the results of these investigations and any formal charges or lack of charges would be premature and unintelligent. The opposite would not be tolerated if a civilian shot and killed a police officer.

Some conjecture on my part:

I have no doubt that regardless of what happens in the coming days, Darren Wilson’s life has been immeasurably changed by killing Michael Brown.

If the IAB investigators determine that he was justified in using deadly force, he will not be charged criminally in a Missouri court. If the investigators have reasonable cause to believe Wilson was not justified, he can be charged criminally—anywhere from a homicide stemming from criminal negligence to intentional murder.

Michael Brown did not need to be armed for Officer Wilson to use deadly force to prevent or terminate the imminent use of force against him (Wilson) if Wilson reasonably believed that Brown intended to and was capable of causing him (Wilson) serious physical injury. If we can believe the press, Michael Brown was six-foot-four inches tall and weighed three-hundred pounds. Wilson was not close to Brown’s size. There was a press statement that Wilson claimed Brown had attempted to forcibly take his service weapon from him. Forensic evidence seems to corroborate that a serious struggle took place in Wilson’s patrol car. Only Wilson can comment on his state of mind while he and Michael Brown were struggling. Perhaps Wilson feared for his life and reasonably believed that if Michael Brown took his pistol, he (Wilson) would be in danger of being killed or seriously injured.

The FBI investigation is being conducted to determine of Wilson is guilty of a violation of Brown’s civil rights, specifically, to life, liberty and the pursuit of happiness. If charges are brought against Wilson for this violation of federal law, he would be tried in federal court.

Regardless of what happens as a result of the state and federal investigations, Wilson may be sued in civil court by the Brown family for wrongfully causing the death of Michael Brown. Whether that death was wrongful would be determined by a different burden of proof than that used in criminal court. To be convicted of a crime, the prosecution must prove their case beyond a reasonable doubt. In civil court, the plaintiff needs only to prove “wrongful” by a fair preponderance (51%) of the evidence.

To use the term execution (the word of Mr. Twitter) in this case or in most, if not all, cases of police shootings is absurd and meant to do nothing more than inflame the emotions of a target audience. How many people (civilians) will admit they truly believe that when the average police officer “turns out” after roll call or leaves his/her relief point to begin a tour of duty, they do so with the intent to execute or assassinate an unarmed civilian? That thought is also patently absurd.

The laws governing the justified use of physical force or deadly physical force are quite specific and taught to every certified police officer in the United States. These laws are complicated. First, you must identify who is justified in using the force, a civilian or a police officer. Then you must determine when, during the course of certain observed illegal activity, the force which might be used to prevent or terminate unlawful aggressive force is against the person potentially using the lawful force or against a third person, or to effect an arrest for specific violent crimes, and the force is necessary.

I used to teach the defense of justification for basic police recruit classes, in-service training, and for supervision schools and allowed three hours to adequately cover the subject. The above paragraph doesn’t quite break the surface. I completed that block of instruction with an additional three hours devoted to the remaining defenses and affirmative defensives: Renunciation, entrapment, duress, infancy, and mental disease or defect. Three hours to cover one, three hours to cover five. Understanding justification is complicated and important.

An understanding of the key words is essential. Necessary and reasonable. Would a reasonable person believe it was necessary to use deadly force? A police officer is not enjoined to retreat, but in most states (not all) a civilian must retreat if he/she can do so safely before using deadly force. At no time may deadly force be used to prevent or terminate a crime against property. No matter how angry you get, you can’t snuff a teenager for stealing your hub caps. Many gun owners are totally ignorant of the laws governing the defense of justification in the use of deadly force.

Might Darren Wilson have reasonably believed that three-hundred pound Michael Brown (who may have been struggling to get Officer Wilson’s pistol) could have caused him serious physical injury? I might, but I don’t yet have enough substantiated information to draw an educated conclusion.

Moving elsewhere, was the highway patrol officer who beat a fifty-five year old woman as he held her on the ground justified in his use of physical force? He may have been initially justified, if he reasonably believed that she might injure him or she was resisting arrest, but once she lay on the ground covering her head, offering no resistance, he should not have continued to punch her. It would have been appropriate to handcuff her, but the law of justification does not extend to use physical force as a punishment for resisting arrest. These actions were filmed by his dashboard camera. Under those circumstances, this officer was no longer justified and was remiss. Unfortunately, the media did not, in this case, nor do they routinely follow up on reporting the disposition of administrative or criminal charges levied on a police officer who violated the law and educate the sometimes outraged public to show that the system works. I submit that this is because the sensationalism has passed and ratings are more important than truth to the media.

Mr. Twitter pooh-poohed my suggestion of high quality training as a method of bolstering the discipline of all police officers. His understanding of discipline seems sadly lacking. Training is the cornerstone of any and all discipline. Those lacking proper training can’t be expected to perform properly. Ignorance of good procedure can lead to tragedy. Does the cop who finds him/herself in a serious physical confrontation know under which circumstances he/she is justified to use deadly force? They should. If we don’t train them adequately those officers are not the only ones responsible for inappropriate reactions.

Mr. Twitter also expressed outrage that all the “good cops” out there are not being proactive to weed out the “bad apples.” How does he know this? He is privy to nothing more than what he reads in the news—which may or may not be accurate or complete.

Unfortunately, his suggestion requires a perfect world. Individual doctors do not crusade to weed out bad doctors. The American Medical Association is supposed to act as a regulatory body to “police” its own. Individual lawyers do not crusade to weed our bad lawyers. The American Bar Association is supposed to act as a regulatory body to “police” its own. I would suggest that anyone interested check statistics and find the ratio of cops to doctors to lawyers and which profession feels the more severe punishment for transgressions of their relative laws or regulations.

Police officers have enough legitimate police business crowded into their day. To proactively seek out other officers violating the law is not logistically feasible. And it is unfair to assume that officers witnessing violations of law by co-workers will fail to report those crimes to their supervisors or will intentionally cover up the incident.

Internal affairs investigators aren’t hated by the rank and file police officers for nothing. They are effective within their system. “Bad cops” (or more probably cops who have made mistakes in judgment) do not go unpunished. But the average citizen is not privy to all the internal, administrative disciplinary hearings and findings.

Is Mr. Twitter and every other person of the male gender expected to actively go out and seek those males who rape and commit domestic assaults against women? This is only one reason why we have professional police departments. Each person can only answer for themselves. If I police myself, I exhibit the discipline considered socially acceptable. If everyone did that, there would be fewer crimes against whomever.

It only took me ten minutes to learn that the outraged Mr. Twitter worked in the elderly care industry…in the administration of an assisted living facility. I wonder how proactive he is in weeding out the “bad” employees who neglect or abuse the elderly put into their care or his care. This is acknowledged as an extremely serious problem in the country today. Is Mr. Twitter leading an elite group of administrators tirelessly seeking out wrong-doers within their industry? Has Mr. Twitter and his colleagues formed their own “rat squad?” Or as in many establishments, does he sweep these incidents of abuse under his carpet so his facility does not gain a reputation for resident abuse? Bad reputations lead to fewer customers and less profit.

It’s easy to “Monday-morning-quarterback” PO Darren Wilson or any cop who shoots an armed or unarmed civilian. I have more than twenty years of police experience and wouldn’t dare to suggest that I know exactly what Darren Wilson felt during his confrontation with Michael Brown. If he is judged to be unjustified, was his action a mistake of the head or the heart? What was his culpability? You’ve got four to pick from: Intentionally, knowingly, reckless, or with criminal negligence.

But maybe he was justified and guilty of nothing. I doubt that many people in Ferguson, Missouri will settle for anything less than severe charges and maximum punishment—whether Darren Wilson is guilty or not. If the internal investigation and/or the FBI investigation vindicate Darren Wilson, agitators like Al Sharpton will scream, “cover-up” and never allow the chips to honestly fall where they may. Unfortunately, there will never be a simple or adequate solution because of guys like Mr. Twitter and the boy on Facebook who are too impatient to wait for the official ruling and who will never settle for less than blood. Truth is meaningless, their anger must be satisfied.

If a black civilian using a handgun, legally owned or not, shot and killed Michael Brown, there would be no question but that person should get their due process. Initial “eyewitness” or media quotes would not be taken as gospel and everyone would wait until a jury convicted or acquitted the subject before condemning the system, if that condemnation happened at all. But when a police officer, black or white, male or female, is responsible for shooting an unarmed youth, they are assumed to be guilty BEFORE even an indictment, much less a trial verdict. If the grand jury fails to indict, many community leaders condemn the grand jury system or claim a cover-up. No one ever assumes that the officer may have been justified in using deadly physical force because these vocal individuals understand NOTHING of the laws that govern its use.

Eyewitnesses often provide immediate testimony which the media and anti-police critics sensationalize and spread as being the absolute truth. In fact, eyewitness statements are notoriously inaccurate. Later, when subjected to serious and pointed questioning, these eyewitnesses admit that “they heard the shot, but didn’t actually see the shot fired and assumed…” “Other people said the victim raised his hands. I didn’t actually see that, but I assumed…” Or they have trouble agreeing on whether the shooter was five-foot-six or six-foot-five. Eyewitness statements are NOTHING more than one piece to a complicated puzzle handed to investigators. Those statements must be corroborated by physical evidence and plausibility.