Has Metro started to publicly admit mistakes? Does Metro use some critical incidents to get good publicity? Does Metro recognize and reward some officers after they are involved in deadly force incidents (even if they violated policy or failed to use appropriate tactics)?
I’m concerned that this ‘jumble’ of activity may be sending a very confusing message to other members of the department – especially those who are young and inexperienced.
What level of courageous leadership will it take to clarify and correct and for Metro to try to further minimize the loss of lives (suspects and police officers) in the future? Doesn’t everyone agree that, although powerful, moving, (and well-deserved) we do NOT need to experience any more extravagant police funerals in Las Vegas?
Lots of questions to start off this week’s column, which is a follow-up to the concept of ‘mistake of fact’ shootings that Assistant Sheriff Lombardo referenced in a story on the failed [police] radio system a few weeks ago.
So what are mistake of fact shootings? In a simple sense they could be described as a ‘shoot’ when the decision should be ‘DON’T shoot.’
Citizen academies have been allowing non-police officers to experience a deadly force situation via simulation for many years. We have seen news reporters (i.e., Nina Radetich) participating in Shoot — Don’t Shoot scenarios or even academy training. The person playing the role of police officer is expected to react to the threat presented. A ‘bad
shoot’ is if the participant fires at a lady carrying a brown bag full of groceries — OOPS! If there was no lethal threat, do you just start over or identify and correct the problem? In real life, however, there is no re-set button.
When officers make correct (or incorrect decisions) this needs to be documented. When a decision is made to NOT shoot this should be as good (maybe better) than a SHOOT. One of the newer methods of training is RBT. Reality-based training is something that Metro has implemented but I have not experienced it so I’m not sure if it is just new label
or if the content is actually different. Simulators were designed to test an officer’s reaction to a threat, decision-making, and even knowledge of laws and policies on deadly force… but they were not dynamic. Reaction to artificial stress and bullet placement were evaluated as well. I always wondered why nobody seemed to be keeping track (or records) on how many times officers made the wrong decision.
They meticulously calculate points and scores during the academy so you would think that some individuals would get disqualified by making too many bad decisions. I never saw this happen — ever! I also never saw it happen during in-service training. I guess the PD’s want to avoid having records which could subject them to civil liability later on.
RBT is much more dynamic with real people moving around in real situations and in real structures and vehicles. Paintball-type weapons can be used to make things more realistic and to see what happens when suspects ‘shoot back.’ Yes — it is quite a different matter when you are splattered with air-soft chalk and you can see where you were ‘hit’ by the suspect (or even ‘friendly fire’). Sometimes it stings when you take rounds and there is certainly value to this type of
training. You also get to work with partners and small groups of officers to come closer and closer to reality. Police departments are trying to improve and that is because there is a clear need to do so.
Metro provides outstanding training in comparison to many other agencies but there is no time to rest on past laurels!
A legal dictionary describes a ‘mistake of fact’ as an error that is not caused by the neglect of a legal duty on the part of the person committing the error but rather consists of an unconscious ignorance of a past or present material event or circumstance or a belief in the present existence of a material event that does not exist or a belief in the past existence of a material event that did not exist. Mistake of fact can be a factor in reducing or eliminating civil or criminal culpability. A mistake of fact is of little consequence unless it is borne of unconscious ignorance or forgetfulness. A person cannot escape civil or criminal liability for intentional mistakes.
will the public think of this explanation for a death during the custody process?
A sudden death syndrome incident was in the news just last week when an overweight man in New York did not follow commands and was physically taken to the ground by multiple officers. It looked like one of them was choking the man. His crime? Selling loose packs of cigarettes. (http://www.nydailynews.com/
In retrospect, and in light of an avalanche of negative publicity due to the video of that incident, should police acknowledge that it is okay to ‘back off’ in some instances? If the suspect is not armed and is not involved in a violent incident and can be positively identified, can’t we do a little risk assessment or cost-benefit analysis and destroy the paradigm and consider alternatives? The answer should be YES… but NOT if you were trained by some police departments! The mentality that you never back down or even back off and regroup with a new plan is still far too prevalent in policing.
Alternatives? How about considering the possibility that the police request a video camera (if they don’t already have lapel cameras or car cameras capturing the incident) if they do not obtain compliance during the initial attempt? If the suspect does not attack officers or attempt to flee how about stating, “You are under arrest and you are not submitting to arrest and you will now be charged with additional crimes.” How about then submitting the video and the reports to a
prosecuting attorney and at some other time making the suspect accountable for his actions? If he acts ‘like a fool’ in front of a judge and has to be restrained, at least that judge can watch the struggle and realize that the police tried to gain compliance! No harm — no foul — no DEAD 400-pound man for selling loose cigarettes and no damage to the officer’s careers and the police department’s reputation.
So now that the terminology has been discussed, what does a ‘mistake of fact’ shooting mean in real life? One example of a mistake of fact shooting is when an officer shoots because he thought he saw the suspect with a gun but there was no gun.
SO… could the shooting of Eric Scott be considered a mistake of fact? He was doing something with his gun that police perceived to be ‘drawing’ in their direction and a threat to lives. Three officers fired. Scott was killed. None of the officers were terminated (or faced charges) for this shooting. The Coroner’s Inquest addressed the commands that were given to Scott. Were they clear or were they conflicting?
I experienced the concept of ‘conflicting commands’ just yesterday at a grocery store. The clerk had a pack of gum and asked, “Do you want this in a bag?” I waved my hand toward me for her to hand it to me and started to say, “I’ll take it…” She was looking directly at me and started ‘toward’ me with the GUM. My wife was simultaneously reaching out toward the clerk with a partially full bag and requested that the gum be placed in a bag. There was a confused look on the clerk’s face and she hesitated. It was a perfect example of how things can get miscommunicated even when they don’t involve the police or guns! I’m a strong believer that the obligation is on the police to hesitate and reevaluate and not act/shoot just because they CAN justify it, but rather, they should only act/shoot when they MUST.
SO, could the shooting of Trevon Cole be considered a mistake of fact?
Officer Yant felt in fear for his life because when he kicked in the bathroom door while holding a rifle and thought Cole was pointing a gun at him. Cole was killed. Yant didn’t get fired or face charges. SO, could the shooting of Stanley Gibson be considered a mistake of fact? Officer Arevalo thought gunfire was originating from the car and was directed at the police. Gibson got killed. Arevalo got fired—but not charged.
It is obvious that mistakes can be made and lives can be lost, but this does not mean that a crime has occurred or that the legal system has enough evidence to act against our police officers. This, however, does not preclude the police department from taking corrective action and trying to avert tragedies. It certainly should not create an environment in which the department is striving so hard for good publicity that questionable (or even routine) incidents are used to
praise officers. There has been a steady stream of YouTube videos in recent months and we don’t expect the Public Information Office to announce mistakes — but glorifying some of these incidents is bound to cause problems.
I was writing memos at Metro to express my concerns about the use of the term ‘active shooter’ because I saw the confusion of new officers who thought that they were expected to make entry on a ‘barricade’ or if shots had been fired. They had received MACTAC training (clearly based in the military model) and thought that they were supposed to
rush in — which has always been one of the last things that a police officer should do in most situations! Times were changing. Terminology was changing. I didn’t think that there was enough instruction or clarification to blend the traditional role of the police (contain the situation and request tactical units) with the ‘new’ role of the police IF THERE ACTUALLY WAS AN ACTIVE SHOOTER!
By definition, Jered and Amanda Miller’s entry at Walmart after executing Officer Soldo and Office Beck was NOT an ‘active shooter’ incident but it has been reported as one… adding further confusion (and justification in the minds of some officers) that they are supposed to rush in — and maybe die! This must be stopped. There are legal issues regarding entry into private premises and there are tactical and safety issues. Couldn’t we let the SWAT Robot take a few
rounds instead of another one of our officers? I tried bringing concerns to the attention of the LVMPD high command in 2008 — and we know what happened to me.
(NEXT WEEK: The Wyatt Street Incident, The YouTube Video, and Conflicting Messages)
Norm Jahn is a former LVMPD lieutenant, who has also served as a police chief in Shawano, Wisconsin, and has nearly 25 years of police experience. Jahn now contributes his opinions and ideas to help improve policing in general, and in Las Vegas in particular, through his weekly column in the Las Vegas Tribune.