The following article is lengthy. It profiles an actual police shooting event that occurred December of 2015. What happens when those tasked with reviewing police use of force get it wrong?
Most officers will go an entire career without having to resort to the use of deadly force. Others might have one such incident in their career. Having to make life and death decisions isn’t something cops long for, but certainly we must prepare and train for them. On any given day, at any given call, a situation can go from 0-100 mph in a split second.
When the unthinkable happens and an officer must use deadly force, a whirlwind of events will unfold to include concurrent criminal and internal investigations. Conversations will be had at the scene with attorneys and association representatives as well as criminal and administrative investigators, and the County Attorney’s office will send a representative to the scene to do an initial onsite review to determine whether your application of force comported with state law.
In the months to follow you will probably find yourself sorting through what happened and relive the event dozens of times, and possibly questioning whether you did the right thing or could have done something different. After the mandatory time off and a couple of mandated meetings with a psychologist, you do your best to put things behind you, get back to work and re-establish a normal routine.
It can take six to eight months for the County Attorney’s office to issue a formal letter officially clearing you. Finally, you get a notice summoning you to a Departmental Use of Force Board. No sweat, right? After all, the County Attorney cleared you of any criminal wrongdoing. The PSB interview went well and the investigators seemed to understand and be sympathetic when you recounted the events leading up to the shooting. They seemed satisfied with your rationale that ultimately led to your decision. Not only that, your PLEA rep told you there’s nothing to worry about because it’s a clean shoot.
You attend the Use of Force Board. PSB gives a presentation on the shooting. You recount your story yet again for the assembled panel. When all questions of the panel have been asked and answered, everyone is excused by the panel. After deliberations, everyone is summoned back in and the verdict is announced. The presiding police manager chairing the board tells you and your rep the board is going to forward a recommendation to Chief Williams that your use of force be found OUT OF POLICY. You experience a sinking feeling in your gut as if the wind has been knocked out of you. You question whether you heard correctly. The board adjourns with no further explanation given. You and your rep are left speechless as you both try to make sense of what just happened. Your head spins as you try to wrap it around whatever convoluted and warped logic the board might have used to come to their decision. You question yourself. Did I really do something wrong? The answer is, NO YOU DIDN’T. You just became the victim of a very flawed UFB decision driven either by ignorance, politics, or both.
If you think this doesn’t or can’t happen, think again. Over the years PLEA has seen this happen on more than a few occasions. Allow me to share a true story that could have been any one of us.
The date was December 26, 2015. The time was 11:43 am. The location was the intersection of Cactus Rd. and 39th Avenue right out in front of Cactus Park Precinct.
A patrol supervisor in a marked Tahoe was in the left turn lane facing southbound at the intersection. A pedestrian walking westbound on Cactus Rd. towards 39th Avenue threw an unknown object (probably a rock) striking the Tahoe. The unknown subject continued walking towards the Tahoe in a clearly agitated state. What the sergeant didn’t know was that in less than three minutes the subject would be critically injured and later die as a result of a police inflicted gunshot wound. This illustrates the quick and unpredictable nature of our job.
The suspect got to the intersection and turned north, and the sergeant made a U-turn and followed. The suspect stripped some cinder block off the pony wall of a nearby residence, meanwhile the supervisor radioed for backup while keeping an eye on the suspect. The suspect walked northbound toward the precinct employee parking lot entrance and then south toward the front door of the precinct where he walked into the alcove and threw block at the front door of the precinct smashing the glass in the public entrance door. An officer, responding from inside the station, held position until the suspect left the alcove and then exited to back up the sergeant. Both followed the suspect who continued walking south along the front of the precinct towards Cactus Rd. The sergeant feared the suspect would either run out into the roadway or begin throwing rocks at passing cars. As they trailed the suspect towards Cactus Rd., the officer initially had his Taser deployed.
When challenged by the officers, the suspect turned and began walking toward them. A sizeable rock was noticed in the suspect’s hand, both officers, aware of the threat level had their firearms drawn. We are not describing a small rock, but one that was listed in the report as river rock measuring 3.5” by 5” by 1.5” weighing 1.4 lbs. Both officers attempted to take cover by what was described as a medium sized olive tree which provided minimal cover and concealment and still left them exposed. The suspect refused commands to drop the rock. The suspect stated, “I’m not fucking dropping anything.” “Fuck you.” He then aggressively threw the rock at the sergeant and the officer using a baseball throwing motion as he continued advancing. Before the suspect threw the rock, the officer had taken a kneeling position. This lowered his profile and gave him increased stability. However, in doing so he sacrificed mobility. This is neither good nor bad, it was just a tactical decision made by the officer in the rapidly paced moment. The officer fired one shot which hit the suspect and critically injured him. The shot fired by the officer and the rock thrown by the suspect crossed mid-air. The rock struck the officer’s left hand causing what was described in the report as two acute lacerations on his knuckles. Keep in mind, the left hand was helping form the two-handed grip on the firearm which was raised to eye level. Just a little higher and that rock would have gone over the top of the gun and hit the officer in the head with enough force to take out an eye or potentially crush a skull. The sergeant had his gun out and when interviewed indicated he was also preparing to fire, which clearly indicates he was perceiving the same level of threat. This speaks clearly to the reasonable officer standard.
The suspect was struck at a distance of 38.5 feet with one .40 caliber round. He was far enough away that Tasers and OC spray were not options. The situation unfolded so rapidly there was not sufficient time to get a stunbag shotgun or bunker shield or formulate detailed tactical plans. Nearby traffic was also placed in danger by the suspects actions. Total elapsed time from when the car was first struck to the shot being fired was approximately three minutes. Situations that spring up suddenly in open areas are very fluid and evolve rapidly. Unbeknownst to the officers at the time, was the fact the suspect had meth on board and had told a relative earlier in the day that he “wanted to die” and was going to “try to get killed.” He also had a prior criminal record and was on supervised probation.
Seems open and shut, right? Wrong! The Use of Force Board convened to review this incident on March 29, 2017 (15 months later) and recommended that the force be designated “out of policy.” Needless to say, the involved officer and PLEA, as well as many other officers and supervisors who heard about this decision were shocked and dumbfounded. The first question raised after a flawed decision of this nature is, “WHAT POLICY WAS VIOLATED?” The memo sent from the UFB to Chief Williams enumerated the following policies the board believed were violated:
Ops 1.5.3.B. “The response option employed will be reasonable and based on the totality of circumstances.”
This raises the question: What was unreasonable about the response option based on the totality of circumstances? The subject had the ability to cause serious injury or death to the officer. The subject had the opportunity to cause serious injury or death to the officer and the officer struck by the rock was placed in jeopardy. The Board refused to state what they believed would have been reasonable.
Ops 1.5.3.B. (2). Circumstances that may govern the reasonableness of using a particular force option include, but are not limited to:
- The severity of the crime
• Whether the subject poses an immediate threat to the safety of officers or others
As to severity: We have a suspect that had already committed criminal damage on an occupied fully marked police vehicle, committed criminal damage by smashing the glass out of the front door of the precinct and was in the process of committing an aggravated assault against two fully uniformed and armed police officers. The assault was committed with the use of a dangerous instrument/deadly weapon.
As to immediacy of threat: We have an impaired, unstable, aggressive, un-contained, non-compliant suspect armed with a dangerous instrument (1.4 lb. river rock). He has already thrown objects at a fully marked police vehicle, has done his best to smash out the glass in the front door of the precinct and was heading towards a busy six lane roadway. When challenged by two armed police officers in full uniform, the suspect emphatically stated he wouldn’t drop the rock, advanced on them, wound up, and threw the rock. Any reasonable officer will perceive this as threatening action that could cause serious physical injury or death and therefore a lethal force response would be appropriate. In fact, state law backs this up. Perhaps this is why the County Attorney cleared the officer.
Ops 1.5.H.(1). “Guidelines – Employees may use deadly force under the following circumstances:
- When such force is reasonable to protect themselves or a third person from another’s use, or threatened use, of deadly force.
- In situations where the employee must overcome an attack the employee reasonably believes would produce serious physical injury or death to the employee or another person.
- Deadly force is utilized as a last resort when other measures are not practical under the existing circumstances.
As to point one: Given the circumstances, what was unreasonable about the force? The fact is, the force used was reasonable. However, again the Board fails to elaborate on what they think would be appropriate. It’s because there is no valid answer.
As to point two: Lethal force was needed to overcome an attack a reasonable officer would believe would produce serious physical injury or death to themselves or another. This employee did believe it and it was reasonable to do so.
As to point three: In this scenario, what other measures would have been practical? Again, the Board fails to elaborate on why deadly force should not have been used or suggest alternate methods they believe should have been employed. Taser and OC spray were not options and there was no stunbag to deploy.
The points outlined above read more like a blue print outlining why the officer was in policy rather than reasons why he wasn’t.
As devastating as this decision was, all was not lost. Use of Force Board recommendations go to Chief Williams for final approval. Recommendations can be upheld or reversed by her. In this case, Chief Williams went with the recommendation of the board. PLEA intervened and asked for a meeting and she agreed. Chief Williams came to the PLEA office and we thoroughly briefed her on all aspects of the case. She agreed to give it a re-look and get back with us. PLEA received an E-mail from her on July 28, 2017. Chief Williams indicated she would not reverse the Use of Force Board recommendation. By our count we brought the subject up for discussion on three occasions over a time period of several months.
In her e-mail to PLEA the Chief stated:
“While your discussion was compelling, I do believe the officer could have chosen to move out of the path of the river rocks and cinder blocks thrown by the suspect.”
There is only one word to describe a statement like this: Unbelievable! Chief Williams’ own words are problematic. If the officer chose to move out of the way he could have actually moved into the trajectory of the rock. It is impossible to know ahead of time which way would have been correct until after it was thrown. Before your brain can effectively process the information on speed, trajectory, and decide which way to dodge, the rock is impacting. What’s next, a requirement that officers obtain supervisory permission prior to drawing and firing their pistol? In a final meeting we had to discuss issues, I asked her to reconsider one more time. Our plea for her to reverse the findings fell on deaf ears. Her mind was made up.
Think long and hard about what this means. Apparently, there is now an official expectation by our Department Head that if faced with a similar situation you are expected to unnecessarily risk your life by playing dodgeball with river rocks. Chief Williams’ mindset raises a whole host of issues and questions. Consider the following points.
- According to Chief Williams’ explanation, anyone who has played dodgeball should never get hit by one of those big red rubber balls because, well, you can see them coming and you can just get out of the way. No one ever leaves the game with a red welt or a blue bruise.
- Major league baseball players are elite athletes. Their bodies are like finely tuned sports cars and their strength, reflexes and agility will far exceed those of most street cops. Based on Chief Williams’ belief, no pro-ball player should ever be hit by a pitch because, well, they can simply move out of the path of the baseball. There should also be no need for batting helmets.
- A major league pitcher throws from 60.5 feet. Our meth fueled suspect threw from much closer, 38.5 feet. Basic tactics tell us that closer distance equals less reaction time.
- A major league baseball weighs just over 5 ounces. The rock launched by the suspect was five times this weight. 1.4 pounds.
- Major league pitchers can throw 95 mph fastballs which equate to a velocity of 139 feet per second. Since the rock was significantly heavier, a throw at a greatly reduced speed of say 30-50 mph would be possible and would equate to a velocity of 44 feet per second on the low end. Again, distance from suspect to officer was 38.5 feet, just over 12 yards. If 30 mph is a reasonable estimate, the rock would cover the distance in .87 seconds. At 50 mph that reaction time drops to .52 seconds. Now, remember your recent indoor range drills where you were put on the timer and asked to draw from the holster and fire in 1.5 seconds. Many of you struggled. You saw just how fast 1.5 seconds was and how hard it was to get out of the holster and get a shot off in the required time even though you have drawn from the holster hundreds of times during your career. However, according to the Chief, the officer, who was kneeling, with less than a second to react, could have chosen to move out of the way of the rock.
- Even though Chief Williams knows the officer’s mobility was neutralized by taking a kneeling position to shoot, she still thinks he should have moved out of the way. Which way?
- After her decision, Chief Williams apparently didn’t think it was important to issue an ENS informing the Department of her new expectation on use of force. Specifically, when confronted by a rock wielding subject, officers will be expected to play river rock dodge ball.
- There are currently no AZPOST lesson plans that teach officers how to dodge bricks and rocks.
- I asked Chief Williams what remedial training had been given to the officer. I already knew the answer. No remedial training was given because 1. there is no training on how to dodge bricks or river rocks and 2. He didn’t do anything wrong. Despite this, the officer has been working successfully out on the street for over two years, since the incident.
- I asked one of our department firearms experts what Firearms Training Simulator (F.A.T.S.) scenarios we have on suspects throwing rocks he chuckled and said, “We don’t do scenarios involving bad guys throwing bricks and rocks.” I asked why and was told: the scenario is simply too gray and subjective. In other words, one officer could run the scenario, duck to simulate dodging the rock and not fail. The next officer could give warnings, followed by shooting the suspect when the rock is thrown, and pass due to being placed in imminent danger of serious physical injury or death which is also covered under state law and departmental policy. In other words, both would be viewed as acceptable solutions. Therefore, one of our own experts is stating our officer employed an acceptable solution when he responded with lethal force.
- Since this incident and the Use of Force Board decision, no training modules have been ramped up at the academy to train officers on how to dodge rocks.
- In fact, in the police department’s 2017 annual training module, officers were run through a variety of tactical training scenarios. One involved having four officers divided into two, two-man teams that approach a subject pitching rocks down onto a freeway. The approved solution was for both teams to approach with tasers and handguns deployed. Why? If the suspect had spun on advancing officers and thrown a large rock with the potential to cause serious physical injury or death, lethal force would be warranted. If this were not the case, the instructors would have made sure that everyone had holstered their firearms and deployed with Tasers only. Scenarios such as this are illustrative of the potential lethality of large rocks and why we prepare and train for the possibility of having to use lethal force.
- Those who sat on this particular Use of Force Board clearly didn’t understand or chose to disregard police training and policy. The decision runs completely contrary to how officers are trained.
At a recent meeting with Chief Williams, she mentioned the Trump rally after action review and made the comment “You can’t throw stuff at the police.” PLEA agrees completely. If you throw harmful and dangerous objects at officers, there’s going to be a police response followed by consequences. In fact, if you throw a large rock at the head of a cop that could injure or kill them, there’s a high likelihood you’re going to get shot.
A pound and a half river rock thrown at high velocity at the head of an officer with no protective gear is a lot more hazardous than gas canisters, water bottles and other objects thrown at cops that have the added advantage of wearing helmets, face-shields, riot shields, and knee and shin guards during a political rally. The difference between being outfitted in protective gear or not makes a huge difference in the response option an officer will use.
When it comes to Department Heads, there are leaders and there are managers. Leaders do what is right. Managers do what is expedient. We are finding Chief Williams is exchanging the opportunity of being a servant leader in exchange for embracing political expediency. Leaders are committed to the success of others and don’t bow to political pressure when controversies arise – certainly when they know their troops are in the right. Managers, on the other hand, run for cover and sacrifice those who do the work on the altar of self-preservation, convenience, and political correctness. This certainly does not instill confidence, boost morale, or encourage officers to go the extra mile.
In a final effort to get resolution, I along with PLEA board members Britt London and Toby Sexton met with City Manager Ed Zuercher on February 8, 2018 to present the issue and express our concerns. The response came from the Chief on Tuesday February 13, 2018 in an e-mail communication stating she was going to send the investigation to an outside agency (Tucson) for an independent review. The City Manager told us he was not going to second guess his Chief. That is certainly his prerogative. Sadly, we are now sinking to the level of engaging in political eyewash. The chief has been adamant with us on three occasions that she will not reverse the board findings. Are we now expected to believe an opinion rendered by an outside police chief will cause her to “see the light” and reverse the findings? First, this isn’t going to happen. What outside chief is going to side with a labor organization against another chief who is one of their peers?
Street cops face guns, knives, and rocks. Out on the street, threats can rear their ugly heads in an instant leaving only split seconds to make a life and death decision. Seeing Chief Williams dodge sound policy is disappointing. This is a watershed moment. Officers perform difficult tasks under conditions of extreme stress and are forced to make life and death split second decisions while operating under a complex set of rules. Where is the support?
Most officers faced with the same circumstances would have reacted the same way to protect themselves against a very real, imminent and extremely dangerous threat. DO NOT let bad management decisions prevent you from following your training, state law, and doing what is necessary to preserve your safety and the safety of fellow officers and citizens. The job is hazardous enough as it is without feeling like you are now expected to take additional unnecessary risks. Review boards will take a situation that developed in seconds and then analyze in detail why things went “wrong”. As former U.S. Supreme Court Justice Oliver Wendell Holmes stated many years ago: “Detached reflection cannot be demanded in the presence of an uplifted knife” (or, in this case, maybe a thrown river rock where the intended recipient had less than one second to react).
PLEA will always be there for you to provide the best possible representation and legal protection.