Minnesota-prosecutors-Castile-case, have come back with an indictment against Officer Jeronimo Yanez for second-degree manslaughter, or involuntary manslaughter. The charge carries a maximum prison sentence of 10 years. I think that the charge is appropriate, based on the facts presented so far. Will the prosecutor get a conviction? The jury will likely be sympathetic towards the officer and that is a high hurdle to overcome.
There has been very little in the press about the Falcon Heights Shooting leading to the death of Mr. Philando Castile. What little has been published have been trial balloons floated by the officer’s defense attorney. I stated that I was going to withhold judgment until further facts came to light. I wish I had more but with the information available I am comfortable calling this a piss poor shooting. Even so, it does not rise to the level of murder and may just limp over the line of criminal negligent homicide. (I am using Texas criteria, because that is what I know, there is likely a comparable Minnesota charge.)
There are nuances that come into play with an officer involved shooting that are not generally present in a civilian shooting of a similar nature.
Trial balloon #1 Mr. Castile was stopped not for the tail light violation, but because he resembled the photograph of an armed robber operating in the area. If the officer was really firm in that belief, that Castile was an armed felon, then he should have instituted a felony stop.
A felony stop involves an entirely different set of tactics and would have eliminated the confrontation at the window. The officer didn’t do that. I can live with the officer choosing to approach, providing that he and his partner had a coordinated plan for handling the stop. The first step would be to freeze the situation, “Everybody, hands on the dashboard don’t move.” When I taught “Officer Survival” one the co-instructors was Heart Attack Hallmark. His invariable response when told to “freeze” was to comply and then break into a taunting dance shouting na-nan-nanna. He never got shot. He made the point, that even when police say “freeze” it’s a command to limit movement rather than a total prohibition. A good tactical position gives the officer time to assess and then respond.
The second would involve a sound tactical position. I don’t know where the officer was standing when he fired. If he was standing in the position as portrayed in the video, then he gave up a sound tactical position. By doing that he virtually guaranteed that deadly force would be his only option to regain control. In the video he is standing framed in the front window of the car. A person with a gun in their lap, under their thigh or on their waist merely has to lift the gun up and it is an eighteen inch to two foot shot to the chest of the officer. With practice, it can be done in less than a second, from the holster.
Had the officer been standing two feet towards the rear of the car, the shooter would have to raise the gun, turn his body and possibly extend the gun outside of the car. In all likelihood any shooting would be with out sights, proper grip and stance. All of these things could contribute to a miss.
Part of the plan is to give clear concise directions and repeat as necessary, and repeat and repeat. According to the girlfriend the officer asked Mr. Castile for his driver’s license. As Castile moved to comply, he informed the officer that he had a CCL and was armed. The officer claims that he ordered Mr. Castile not to move.
It is not unusual for a suspect to be unresponsive to commands. He may be seeking an advantage. He may be so focused on carrying out the first request, that the second is lost or he may be confused. We stopped a burglary suspect one night, the first officer yelled “don’t move”, the second one yelled, “get out of the car,” and the third officer yelled, “Put your hands up.” As the burglar put it later, “I knew right then and there I was gonna piss two of you assholes off.” We earned that. Repeated commands and a rapid retreat to the rear quarter (there’s that planning again) may have bought the officers time to evaluate.
Trial balloon #2 the presence of Mr. Castile’s firearm made this a deadly force situation. It is unknown whether Castile’s weapon was holstered or not. His announcement that he was armed may be an indicator that he had the ability to deploy deadly force, but it is a leap too far to say that it was a statement of intent and therefore a threat. While executing narcotics search warrants, on two different occasions, I’ve had suspects pull handguns and wheel on me. In each instance a second look, on the part of the suspect, confirmed my identity as a police officer. This led to profuse apologies and comical attempts to drop the gun as quickly as possible. They did not get shot and did not escape unscathed.
So where does this put the officer. The dispatch record, prior to the shooting, will be critical in determining his belief that he was confronting a felony suspect. The key will be was this a reasonable belief based on description of the suspects and the car. Second will be was he justifiably in fear for his safety and that of his partner. Any negligence in the handling of the stop can undermine the justification. I have no doubt the officer was scared but that was due to his own negligence.
I think that this officer will be indicted on manslaughter or negligent homicide charge and then the jury can go either way.
Another black man was shot by police. This took place in a suburb of Minneapolis, the Falcon Heights Shooting is an entirely different animal that the one in Baton Rouge. You wouldn’t know that from the press coverage.
There is no indication that the victim in the Falcon Heights incident did anything wrong. He had a tail light out. He got stopped. He started to produce his driver’s license, as requested. The he added one tidbit of information that he felt the officer ought to know. He has a Concealed Carry License (CCL) and he is armed. Should this change the dynamics of the stop? No. Did it? Yes, with fatal results for a guy who was trying to do the right thing.
Details are still sketchy, but apparently at this point the officer attempted to freeze the situation and ordered the victim not to move. The problem is that suspects and victims don’t always do as they were told and it is up to the officer to control the situation. Sometimes a command, forcibly stated is all that stands between success and disaster.
In the 70’s and 80’s I interviewed dozens of officers who had used deadly force. The question I put to them was: “Don’t tell me about your shooting, tell me about the times you could have shot and didn’t. What was different? Most officers could come up with five or six instances, for me a dozen, where we would have been justified in using deadly force, but didn’t. While the individual fact situations were all over the place the reply was almost always the same. “I didn’t have any choice.” “There wasn’t anything else I could do.” “I ran out of options.”
Been there done that got the tee shirt. My operating premise when conducting traffic stops was everybody in the car six to sixty, blind, cripple or crazy was armed to the teeth. With that mindset, when I made an approach I tried for maximum advantage, good angles for me, bad for the occupants. If need be my gun was already out and shielded by my leg. I already knew who was going to get the flashlight or clipboard in the face. I knew the range to my targets from six inches to four feet. This mental exercise was to avoid what I called the “Aw shits”. The hesitation between identification of a threat and reaction to it.
With prior preparation, as much as I might like to call King’s X, I could afford to wait. Do I get a driver’s license or a gun? Suspects don’t usually volunteer that they have a gun, good citizens do. Wanna jack with a good citizen reply back when they tell you about their gun, “Do you intend to use it in the next five minutes?”
Things changed for law enforcement, after Janet Reno burned the Branch Davidian compound down. Law Enforcement became risk adverse. I have heard anecdotes that indicate that municipal risk managers are now writing police operational policies. The nature of the beast is that risk in police work cannot be avoided. The best one can hope for is to mitigate the risk.
I have a sneaking suspicion that there is a cause and effect between risk avoidance and a cultural shift beginning in the 90’s that have led to an increase in officer involved shootings. I see a break down in training beginning with TASER training. I think there is a disconnect in the use of force continuum. Wait a minute, this is about police use of deadly force, there’s no TASER anywhere near this story, bear with me, I’m getting there.
The use of force continuum basically charts the actions of suspects and matches an appropriate range of law enforcement responses. When I taught the topic I would begin with presence. Just the sight of a patrol car effects what is happening in the immediate vicinity. There is a steady escalation, verbal communication, persuasion, command, physical, hand gestures, pats, turning, technical holds, technical means (TASER, MACE, Nightstick) on up to deadly force.
Here is a link to a suggested model policy for law enforcement agencies wanting to adopt and deploy the TASER. Model Policy Taser. What follows is an excerpt from the model policy regarding the use of the TASER or Electronic Control Devices (ECD).
ECDs may be used: a. ECDs should only be used against persons who are actively resisting or exhibiting active aggression, or to prevent individuals from harming themselves or others:
1) ECDs may be used when force is legally justified to prevent the reasonably foreseeable threat or actual attempted assault, battery, and/or injury to officers, other person, and/or the subject; or
2) In cases where officer / subject factors reasonably indicate that the officers, offender, and/or other person(s) likely be endangered by the use of passive and/or active force by the subject; and
3) It is understood that deployments against humans may be very dynamic in nature and the probes may impact unintended areas. b. to display the ECD’s “test arc” or “painting the subject with the ECD’s laser” in attempting to gain compliance of the subject where resistance, assault, and/or violence is reasonably anticipated. c. during Department authorized training programs and/or demonstrations.
At one point in time there was an school of thought that a TASER came in at a lower level of force than verbal commands, since the argument went TASER caused no injury. Most departments now put the deployment of the TASER at the same level of laying hands on a suspect. Departments typically make a distinction between grabbing a suspect and applying a pain compliance hold as two different types of the applications of force.
First the cultural shift, Political Correctness. I’m from a generation that if I was to elbow the person next to me at the lunch counter and say, “Pass the fucking ketchup.” A person of my vintage would do just that. But if the person was a new model, minted in the mid 90’s I would likely be accused of all sorts of hurtful thoughts, micro-aggression, racism, sexism and a couple of isms to be named later. Language is suddenly a blunt instrument that can require a response all out of proportion for what was intended. “I have a CCL and I am armed.” Information or threat? Read the model policy above, again.
Now the TASER comes into play. Again go back to the instances when a TASER may be deployed: ECDs may be used when force is legally justified to prevent the reasonably foreseeable threat or actual attempted assault, battery, and/or injury to officer and factors reasonably indicate that the officers, offender, and/or other person(s) likely be endangered by the use of passive and/or active force by the subject; . “I have a CCL and I am armed, reaches for a previously requested license. Is this the compliance of a good citizen or a “factors that reasonably indicate that the officer is likely to be endangered by active force by the suspect.” In this case deadly force, “I have a gun,” reaches.
I don’t know how the department’s policy on the use of deadly force tracks the TASER policy. But I’m willing to bet $100 that the TASER policy sees a whole lot more use than the deadly force policy. This means the officer likely has a better understanding of policy governing TASER than Deadly Force. Does the department’s training regimen include the whole range of the use of force in a single training session? Once the officer starts down the path of the faulty premise, everybody’s fate is sealed.
I don’t believe that Mr. Castile was going for his gun, that he intended any harm towards the officer. Mr. Castile was one of the good guys. There is one more element that straddles the cultural/technical divide that is faced by modern officers. That is cameras in patrol cars and body cameras, coupled with political correctness. Officers are sometimes faced with a dilemma, which is worse, to give offense or inflict a sucking chest wound?
What Mr. Castile needed was a prick like me to shout,”TOUCH THAT FUCKIN GUN AND I’LL BLOW YOUR FUCKIN HEAD OFF! Cameras be damned. But that would have been abusive and against policy. A little less PR and a little more passion and Mr. Castile might be a live today.
I’m a dinosaur. Used to run with big dogs, now I stay up on the porch.