Reprinted with Permission: Confederate Yankee Analysis

Starting with the post below, I have reprinted Mike McDaniel's expert analysis of the Erik Scott shooting, as originally posted at Confederate Yankee.  Every entry to date is posted in chronological order, starting with the first post last year and running through 19 posts to the present..

There is no better way to get up to speed on this case. Mike McDaniel is an English teacher, and his writing reflects that fact.  More significantly, he's an ex-cop of the conscientious and professional sort..  His integrity shows throughout his posts.  He was clearly the kind of cop any of us would have respected.  I'm particularly taken with Mike's knowledge of proper shooting doctrine.  Such ability is far less common than we might wish in police circles, and being qualified in an actual rather than a bureaucratic sense gives real weight to his writing.

Mike tells me he's quite relieved to be out of police work, and given the state of policing in America, I certainly understand.  (Policing's loss was teaching's gain!)  I thank him for the time and thought he's put into articles, and for his unhesitating, cheerful permission to reprint his work here.

Confederate Yankee: Gunned Down in Vegas: What Really Happened to Erik Scott?

I've written about war, rape, massacres, mass murders and terrorism, so I don't easily get disturbed by the content of the stories I cover.

Erik Scott's senseless death is different.

Confederate Yankee: Analysis of a Death: The Erik Scott Shooting

First, My thanks to Bob Owens, proprietor of Confederate Yankee for his invitation to guest blog on the site. I look forward to contributing essays in the future and I have often commented in the past. By way of introduction, I'm a USAF veteran, having served in SAC as a security police officer during the Cold War. I'm also a veteran of nearly two decades of civilian police service, including stints as a patrol officer, trainer of officers, firearms instructor, shift supervisor, division commander, juvenile officer, detective and SWAT operator. I'm an NRA certified instructor and am also certified by the American Small Arms Academy, Chuck Taylor's school. These days, I teach secondary English and am a professional singer, working with a well known symphony orchestra and a variety of other musical endeavors. I'm looking forward to having the kinds of informed exchanges I've often enjoyed on the site.  - -  Mike McDaniel

The death of West Point graduate Erik Scott outside a Las Vegas Costco at the hands of Las Vegas Police officers, is at best, a tragedy. At worst, manslaughter.

First and foremost, understand that I am writing in response to articles I have read about the incident. Anyone how has achieved professional status in the criminal justice system will attest that it’s very difficult to make conclusive, correct judgments regarding cases about which they have no direct knowledge, as I, and virtually everyone writing about this case, do not. However, professional knowledge of policy and procedure might help others to better understand the issues surrounding such cases.

Costco’s Role/Liability: While Nevada law does allow “public buildings” to prohibit lawful concealed carry by posting signs, no such signs were posted at Costco. Any business can ask any customer to leave, but again, apparently no such request was made of Scott. Costco also has a duty to train and properly supervise their security employees, but because the police are refusing to release the 9-11 call, we have no idea what their security employee told the dispatcher or their tone in the telling. A competent security force would surely keep a potentially dangerous customer under surveillance until the police arrived, particularly if they felt they were as deadly dangerous as the police response would tend to indicate, yet at this point, it’s not known whether they watched Scott by actually having security people keep him in sight, by means of internal security cameras, or both. And competent security people would await the police (if for no other reason than because the police should have told them to do just that) and immediately direct the first arriving officers to the potentially dangerous person, but that apparently did not happen. It seems Scott and his girlfriend continued to shop until the general PA system announcement to evacuate, and having no reason to believe it related to them, tried to leave with everyone else. What is known also indicates that Scott and his girlfriend actually walked past several police officers who were presumably already inside the store before store security pointed him out as he exited the front doors.

Unanswered Questions/Issues:
(1) Was Scott actually, clearly asked to leave, and if so, did he refuse?
(2) What, exactly, did the security employee say to the 9-11 dispatcher, and how did he say it? Did the police respond appropriately, given what they knew at the time, or did they overreact?
(3) Did Costco security keep an eye on Scott after the initial contact, and if so, by whom and how? If such video shows a man and woman calmly shopping, that will be, to put it mildly, damaging for Costco and the police. On the other hand, if the video shows an angry, erratic, hostile man, another interpretation may be in order.
(4) Is there internal videotape of Scott and his girlfriend before, during and after the initial encounter, and external video of the shooting? According to Scott’s father, the police have made statements indicating that they have seized internal and external video, but that it won’t be usable--not a good sign. If it supported the officer’s stories, they would surely be glad to use it.

Scott’s Culpability: What, if anything, did Scott do wrong? Let’s assume that he was not, as at least some suggest, irrational, hostile and threatening, but merely a man with his girlfriend on a shopping trip. There is apparently considerable evidence to suggest that this was the case, not the least of which is the apparent reluctance of the police to produce video. Scott was legally carrying his weapon and had no reason to believe he, and it, were not welcome at Costco. While it is unfortunate that he inadvertently exposed it, the mere sight of a holstered firearm should not be unduly alarming, particularly in a state widely known to have concealed carry. Scott, once approached by the store employee, apparently acknowledged his concealed carry status, and not being asked to leave, was within his rights to remain. The police deal with reports of this kind all the time, everywhere in the nation, and certainly do not respond with the kind of numbers and types of officers present in this case. Usually, one or two officers merely observe the person from concealment for a few minutes, approach, ensure that they have a concealed carry permit, and everyone goes on their way. While the police must treat every call where the potential threat of violence is present as unique, not routine, a quick, peaceful resolution to this common call occurs almost all of the time.

We can “what if” ourselves silly. If Scott immediately left, he might still be alive today, but there is no way to know with certainty, particularly since the content of the 9-11 call remains unknown. The police response also makes the outcome less rather than more likely. The available evidence indicates that Scott and his girlfriend continued to shop until the PA announcement of evacuation, and upon leaving the store, were confronted by the officers who found him empty handed. It’s hard to imagine what, absent immediately leaving the store after being confronted by the employee who apparently did not ask him to leave, he might have done differently, and it seems clear that he did nothing illegal, at minimum. Of course, if he was truly hostile, erratic and angry, that may change things, but even then much would depend on exactly how he was acting, when and where, and toward whom.

The Police Role: It’s important to immediately clear up common misconceptions about police procedure and the use of deadly force. Officers must act on the knowledge they have at the time they are dispatched to a call (the role of dispatchers will be examined shortly), and/or must follow the orders of their superiors. Officers acting in good faith, as any reasonable officer would act in the same set of circumstances, if they are acting in accordance with the law and commonly accepted standards of training and police procedure, will usually be accorded a substantial degree of deference by prosecutors and judges. Officers must sometimes make decisions in fractions of a second that may have deadly consequences, and those split second decisions will be analyzed after the fact by those under no imminent threat and with months of time to render a verdict on an officer’s actions. That said, everyone involved, particularly officers, understand that this is their reality. They live it daily, and are responsible for making the right decisions. No one is forced to become a police officer. In a very real sense, they’re used to it and we pay them to be used to it and to keep their heads when all those around them are losing theirs. Quite simply, they are supposed to be able to properly handle deadly force encounters.

The use of deadly force by the police is widely misunderstood. Generally, officers may use deadly force to protect themselves or others where there is an imminent threat of seriously bodily harm or death and the person against whom force is to be used is in a position to carry out that threat. One common way to understand it is to employ three terms: Means, opportunity and jeopardy. Does the suspect have the means necessary to cause serious bodily harm or death, such as a gun or knife? Does he have the opportunity? If armed with a handgun, is it holstered under clothing, or in his hand, quickly rising onto target? If armed with a knife, is he fifty feet away, or five? And finally, is he placing the officer or another in jeopardy? Is he actually taking actions that would convince a reasonable police officer that the threat of serious bodily injury or death is imminent--it’s going to happen and happen in seconds--rather than potentially at some future time. Notice that the standard for decision making is a “reasonable police officer,” not a “reasonable citizen.” The courts have taken notice of the specialized training and experience of police officers and understand that they are better suited than most citizens to make such determinations, which is reasonable.

If means, opportunity and jeopardy are present, an officer is not limited to firing one round from a tiny caliber weapon, nor does he have any obligation to fire a “warning” shot or shots, or to shoot the suspect in the leg or hand, or to employ any other movie action hero cliche. In fact, virtually all police agencies specifically prohibit warning shots or shots intended to wound. This is true for two primary reasons: Officers are responsible for every shot they fire and officers always, always shoot to stop, not to wound or kill. They shoot to stop the suspect from completing whatever action gave the officer the legal justification to shoot in the first place. A warning shot or a shot in the hand or leg will likely leave the suspect able to severely injure or kill others. In fact, a warning shot or wounding shot might be construed in court to indicate that the officer believed that he really did not have legal grounds to use deadly force. The likely best stopping shot is to the brain stem or failing that, the brain, but as those are very small, difficult targets, officers are trained to aim for center mass, the vital organs in the chest. If the suspect dies as a result of being stopped, that matters not at all, legally speaking. And if an officer has the legal justification to shoot, he has the authority, and the responsibility to shoot as much as required to cause the action that gave him justification to shoot to stop. If that takes one round of 9mm ammunition, that’s good. If it takes ten rounds of .44 magnum ammunition, that too is allowed, indeed, it’s required.

Another additional misconception: Hollow point ammunition. The police carry hollow point ammunition because it tends to expand and expend all of its energy in the body rather than over penetrating and ricocheting in unpredictable ways. The military, under international treaties, cannot use hollow point ammunition, but in the military context, it’s better to wound rather than kill soldiers. A dead soldier takes one man out of the fight. A wounded soldier, three, as two of his comrades are required to carry him. Over penetration and ricochet are serious concerns for police officers, particularly in urban areas. While hollow point ammunition may indeed be more deadly when used against the innocent, it is far safer for the police and the innocent when used against the guilty. Fortunately, police shootings of the innocent are uncommon.

The problem is that many police officers have, at best, occasional and incomplete firearm training. Many law enforcement agencies require only annual qualification with courses of fire that are less than demanding. I know of a police officer who was made a sniper on a SWAT team who had never owned a firearm prior to becoming a police officer, in fact owned no firearms as a police officer, having only his department issued weapons, did not carry a handgun off duty, did not fire any weapon unless required to do so for training or qualification and had no precision rifle training whatever. The rationale for his appointment as a sniper remains a mystery. Police officers are not uniformly noted for excellent marksmanship in fire fights. In fact, there are many incidents on record in which officers emptied their weapons at distances at which they could reach out and touch the suspect, yet missed with every shot--as did the bad guys. I don’t suggest that this is true of all police officers, merely that wearing the uniform does not automatically confer magical shooting powers beyond those of civilians. Sometimes, it’s rather the opposite. What is often forgotten is that knowing when to shoot is, in many ways, far more important than knowing how to shoot, and training in this vital skill is also an iffy matter for many police officers. But one additional fact remains: At the moment the suspect has stopped offensive action, shooting absolutely must stop. Shots fired beyond that point are no longer authorized by law and may very well be criminal. Remember, however, that multiple shots may be fired in a deadly force encounter in mere seconds. Yet understand that the police know that these problems exist, should properly train for and are expected to be able to deal with them.

There are, based on what we know about this incident, several other pertinent issues. In any confrontation with a potentially armed suspect (other than those I’ve already outlined involving obviously peaceful citizens carrying concealed weapons), Officers should have their weapons in their hands, but those weapons should be in “low ready”: Trigger finger in register (off the trigger and in contact with the weapon’s frame), muzzle pointed roughly at the level of the suspect’s hips/lower abdomen. This is essential to prevent accidental discharges if the officer is startled or experiences an involuntary muscle contraction, both common results of extreme stress. It is also essential so the officer doesn’t have his arms and weapon in front of his face blocking his view of the suspect and their actions. If shooting is necessary, from ready an officer is in a position to bring his weapon on target with sufficient speed to end the threat, and is in the best position to understand if shooting is actually required and lawful.

It’s also vital that one--and only one--officer assumes the role of the sole giver of commands while at least one additional officer assumes the role of taking physical control of and securing the suspect, which, at some point requires them to holster and secure their weapons as they will be in actual contact with the suspect who might take control of their weapon. If more than one officer is yelling commands, the possibility of fatal mistakes is greatly increased. In fact, these procedures are taught in any competent basic academy tactics class, and are included in the rules and procedures of any competent law enforcement agency. Done properly, the procedure works; it’s a thing of beauty. It offers the greatest protection for everyone present, and the greatest chance that no one will be harmed. Of course, if the suspect is determined to hurt others, refuses to obey orders, or is determined to commit suicide by cop, that’s a different matter and no matter what highly trained and competent officers do, deadly force may be necessary and justified.

Post shooting, it’s essential that the suspect be restrained--handcuffed-- and then immediately disarmed if still in possession of a weapon in any way. If the suspect has dropped a weapon, it should be left in place unless safety concerns make that impossible. There are many stories in police legend of officers who saved cases and ensured that criminals were convicted by upending a bucket or similar item over a crucial piece of evidence. sitting on it, and refusing even the incorrect, unthinking orders of their superiors in order to protect that evidence. It’s also essential that the suspect be given the most immediate medical help that safety will allow. This is essential to establish that the officers were not acting out of anger or malice, but merely doing their lawful duties.

The duty of every officer to tell the truth and to maintain an unbreakable chain of all relevant evidence should go without saying. In this case, surely all witnesses should have been quickly identified and complete statements taken--there were certainly sufficient officers present for that task. All possible video records should have been taken and scrupulously protected. And of course, an attempt to discover if any civilian video was shot should have been made, and if so, the devices should have been taken into evidence with appropriate receipts given to the owners. The officers involved in the shooting should have been immediately relieved of the weapons used in the shooting and other duty weapons issued to them. They should have been immediately separated and individually interviewed, on videotape. If they did not obtain an attorney before speaking with their own investigators, even if they were absolutely blameless, they are fools. In professional, honest law enforcement agencies, officers involved in shootings are criminal suspects unless the facts prove otherwise, and they must expect to be treated that way.

Unanswered Questions/Issues:
(1) Do the Las Vegas police have written policies/procedures pertaining to this and follow those procedures?
(2) Did the police direct the Costco Security employee to wait for the first responding officers so that Scott could be immediately located and identified? This would be absolutely vital for a potentially armed, dangerous suspect and should be revealed by phone or radio recordings.
(3) Did the police actually have legal cause to shoot or did they shoot without sufficient cause? Did they shoot accidently due to poor tactics or training? If there were at least three officers screaming conflicting commands at Scott, that may well be the case. Or was the shooting a tragic accident, the result of inadequate training, or at worst, negligent retention (keeping a potentially dangerous officer on the street)?
(4) After the first officer fired, who fired next and why? He must be able to articulate clear and convincing reasons for firing each and every round. Can he do this, or was he merely panic firing in response to an unexpected gunshot from whom, he knew not?
(5) At what point had the danger passed? As Scott fell, presumably face down to the ground, what clear, obvious and convincing acts on the part of Scott motivated multiple officers to keep firing into his back?
(6) Where was Scott’s weapon--and its holster--at each second of the encounter and its aftermath? Each millisecond must be convincingly accounted for.
(7) What do the videotapes, inside the store and out, show? Is Scott, at any point, out of control, hostile, raging, erratic? If so, to what degree, when and where? Or is Scott a man calmly shopping with his girlfriend? If he was out of control, the police would be expected to want to release the video.
(8) Was Scott screened for drugs? If there were drugs in his system, it would seem likely that the police would be making that information public.
(9) Were the officers immediately separated and kept separate before questioning? What do their statements say?
(10) Which officers fired which shots, when, why, and where did each round go? Perhaps not all of the rounds fired hit Scott. If not, what did they hit? These questions must be answered conclusively in any competent investigation.
(11) At least one ambulance had apparently been called at the same time as the police. How quickly was Scott afforded medical help?
(12) How was Scott’s girlfriend handled by the police? This might provide clues to their mindset.

Preliminary Observations: Again, remembering that those commenting on this case do not have all of the facts, some preliminary observations are not unreasonable. First and foremost, it’s vital to know exactly what was on the 9-11 tape, and the radio transmissions of the dispatcher(s) to all responding officers. Good dispatchers can save lives; bad dispatchers can cause them to be lost. Did the dispatchers involved accurately gather, process and relay the information they received? If not, they might be the first link in the police chain that led to Scott’s death.

It seems clear that the Costco security employee calling 9-11 did so with, at best, second or third hand information. Whether Costco security kept Scott under personal or video surveillance is unknown, but what is known may suggest that they did not, or did so only incompletely, and that they were not waiting for responding officers (the police should have directed the security employee to do this, which is again, something all officer should learn in their basic academy classes), identifying Scott only on the spur of the moment after he had already passed other officers, to whom he apparently posed no threat and to whom he apparently seemed unremarkable. Scott’s sudden appearance and identification appear to have surprised the officers involved in the shooting, putting them at a tactical disadvantage, a situation no officer relishes. They apparently found themselves in the open, with no cover, no direct control over the situation, civilians in the background (the potential line of police fire) and potentially in the way--very bad tactics that competent officers always try to avoid unless they are overtaken by circumstances. It also seems clear that the officers immediately drew their weapons and at least three began shouting conflicting commands, including “drop it,” when all available evidence indicates that Scott’s handgun was never in either of his hands. It would also seem that the officer’s demeanor greatly alarmed Scott’s girlfriend--with good cause--and she did all that she could to fend off what she feared would inevitably happen.

Once the first shot was fired, the other officers may have opened fire sympathetically rather than because of any observable reason for shooting, and may not, in fact, have known, at the time they began pulling the trigger, who fired the first round. Even if they were entirely justified in every shot fired, the four or more shots into the back of a man already dead or dying and face down on the ground, particularly if he had no weapon in his hands or within easy reach does not--at best--speak well of the officers, their training, or their agency, and it is surely a public relations disaster. In fact, in competent firearm training and tactics instruction, officers are taught to fire one or two rounds immediately, then to lower their weapon to ready and assess the necessity of firing again, a process that can be properly done in a second or less. In fact, they should also immediately glance to the right and left to eliminate tunnel vision, an unthinking focus on a tightly restricted field of vision that makes it impossible to see, hear or react to anything else, a common and dangerous human reaction to these situations (two of the officers who fired may have had only a year or less on the job), and what may have happened to each of the officers involved as it usually does in similar situations.

It is not unusual for the police to keep information out of the public eye for a variety of good and lawful reasons, at least until after the initial inquest or preliminary hearing. However, eventually, all of the evidence should be produced, and surely must be produced for the attorneys of the Scott family. If the police are blameless, they should be anxious to release the 9-11 call, the radio transmissions, and most importantly, all video evidence. When the time comes, if they are reluctant to make the evidence public, if evidence has been in any way mishandled, or worse, altered or destroyed, the public would be justified in drawing the most negative and damaging conclusions. After all, if the actions of the police were indeed justified and lawful, the video and audio evidence should exonerate them.
It is standard practice in many professional law enforcement agencies that another, independent agency, such as the state police, investigate officer shootings to remove any suggestion of corruption. Apparently this is not to be the case in Las Vegas. In fact, police procedure for any unattended death, and particularly those involving officer shootings, commonly require that the incident be handled as a homicide until it can be positively ruled out so as to properly deal with evidence and cover all bases. At this point, with admittedly limited information, any competent internal investigator should have serious concerns about the actions of the officers involved. Those concerns might well be eventually alleviated by the evidence, but absent convincing evidence that contradicts initial impressions, it would be hard to imagine how the police were justified in their actions in this case.

Confederate Yankee: The Erik Scott Shooting: Update 2

Comments on the initial article have raised a number of questions that deserve clarification. Perhaps additional clarification of what I learned in my years as a police officer about the police and the world in which they live and work will be useful.

I am no more reflexively pro-police than I am anti-police. I am certainly, as a citizen, against official corruption of any kind. As a former police officer, I am more aware than most of the factors that might tend to corrupt individual officers and police organizations. The police are handicapped in that they are restricted to recruiting solely from the human race. As in all human endeavors, most cops are average, some are below average and some few are excellent. Most officers and agencies are honest and dedicated, taking seriously their oaths to defend and uphold the Constitution. Some, unfortunately, are not and do not. I have no first hand knowledge of the police of Las Vegas or their agency and its leadership. I just don’t know whether it’s an honest or corrupt organization or some mixture of the two. However, I, and others can draw reasonable inferences and conclusions about it from its observed behavior and actions while being always willing to be persuaded by additional facts.

It’s important to understand that line officers and administrative officers are often from two different planets. For working cops, most of the stress of the job doesn’t come from working with the public, but from working with other cops, particularly administrators. In competent, professional agencies, everyone works together as a team. In dysfunctional, corrupt agencies, paranoia and anger reign as everyone is locked in a constant struggle for favor, power and dominance. In such agencies, particularly in large cities, administrators tend to be hired for their political views and loyalties to elected officials rather than for their competence and loyalty to the Constitution and equal enforcement of the law.

It’s also important to keep in mind that in dysfunctional agencies, the worst traits of human nature, those formally and informally suppressed in competent agencies, tend to be manifested at every level. Among these are the tendencies to see life through an “us against them” lens, and to abuse power. The reality is that unless one is a police officer, it’s almost impossible to understand the pressures, professional and social, of the job. It’s not the kind of job that can be left at the office, ever. These pressures do tend to isolate cops from the general public. Good cops handle this rationally and calmly and don’t tend to view the public as the enemy while simultaneously understanding that there are inherent social issues. They also wield their authority, which is considerable, with restraint and humility. It may surprise many to learn that one of the hardest things for many new officers to learn is how to accept and properly use the inherent authority of their position. Most are not power hungry monsters dying to abuse the public and don’t yearn to misuse their authority.

No officer in a competent police agency wants to be involved in a shooting. Yes, it’s human nature to seek excitement, and many cops will admit to being adrenaline junkies, but they understand that the consequences of a shooting, no matter how legitimate, are severe and last a lifetime. They expect that they will be treated as criminal suspects—they do not for a moment expect that anyone will cover for their mistakes--and that even if a shooting is completely justified and no criminal charges result, they will almost certainly be sued by survivors of the victim who will be portrayed as a saint regardless of their actual background. Any officer who indicates a desire to get into shooting situations is a real concern for and danger toward honest, professional cops.

In dysfunctional agencies, it’s quite the opposite situation. Petty local politics can have an enormous effect on law enforcement. There are classes of local citizens who are essentially immune to arrest. Administrators tend to see officers as barely sentient troublemakers who must be tightly controlled to avoid mistakes. Officers resent the lack of trust and respect and are constantly, and wisely, looking over their shoulders. Weak people with few or no leadership skills and faulty knowledge and experience are appointed as supervisors because they are easy to control. Officers know that when someone complains about them—common no matter how good an officer is—they cannot know in advance if they’ll be fairly and professionally treated or thrown under the public relations bus. Does this sound like many dysfunctional workplaces? It should, but when you’re in a business that actually deals in life and death decisions on a daily basis, it’s rather more serious. Even in dysfunctional agencies, corrupt cops can never be entirely sure that their superiors won’t turn on them any second.
Regarding firearms, most working officers fully support the Second Amendment and have no difficulty with citizens carrying concealed weapons. Every competent officer understands that anyone they meet could be carrying a concealed firearm and acts accordingly, with reasonable caution appropriate to each situation. Police administrators, particularly those of large, urban agencies, tend to have exactly the opposite viewpoint. Some would be very happy to disarm the entire population if they could get away with it.

The fact that working police officers almost uniformly support civilian concealed carry, and deal with that issue—without violence--every day, makes the behavior of the Las Vegas Police even more puzzling. We still have no idea of the content of the 9-11 call that forged the first link of the chain that led to Erik Scott’s death, but for officers to act as they did, there are two primary possibilities: (1) They were acting under the impression that Scott was ready to start shooting any and everyone at any second, or (2) They were not in control of themselves and their weapons due to poor training, panic, malice, inexperience, or any combination of these and other factors. The possibility that Scott was a hair-trigger, raging bad guy who not only drew his weapon but pointed it at the police as police spokesmen have claimed cannot be absolutely discounted, but considering what is known at the moment, seems unlikely.

A number of those making comments have expressed concern about the taking of video resources from Costco. Implicit in some of their concerns is the idea that Costco should have adopted an adversarial stance with the police and required them to obtain a warrant. All issues relating to search and seizure of private property are governed by the 4th Amendment, which is explicit in the requirements for warrants, but which does not require a warrant for every search and seizure. This follows from the idea that individuals are protected from “unreasonable” searches and seizures and that there is, therefore, a class of searches which are inherently reasonable and do not require a warrant.

It should be kept in mind that Costco could have, if it wished, refused to turn over any recordings or devices. At that point, the police would have had two options: (1) Seize the recordings and devices anyway under an exigent circumstances exception to the warrant requirement, or (2) Obtain a warrant. In order to pursue option one, the police would have to be able to show that unless they seized the materials immediately, there was a substantial risk that the evidence would be altered or destroyed. If one assumes that the officers in this case are acting to cover up criminal negligence, they would surely seize first and apologize later. A warrant in this case would surely have been issued by any judge and if the police had a legitimate fear of tampering while the warrant was being obtained, could have posted officers (a common practice)—it appears that there were more than enough present—to prevent such tampering until the warrant arrived, a process that would be expected to take an hour or less. However, most businesses want a good relationship with the police whether they consider the police to be corrupt or not as the police provide several valuable services for them. Costco likely did not think of objecting to the taking of the materials. If the police ask (I’m assuming they did) and the citizen agrees, no warrant is required. One can legitimately argue that Costco was acting against its own interests in willingly surrendering the materials, but in this case, the end result was a foregone conclusion and resisting would have only slightly delayed the seizure.

The issue is slightly more interesting in the case of a citizen who might have recorded events on a cell phone or video camera. The police would be able to argue with somewhat more plausibility that a citizen unknown to them, as opposed to long established business, would be more likely to damage or destroy evidence, and the same processes of seizing the materials would apply. Might a citizen make copies, post them on the Internet, even send them to their lawyers for safekeeping before turning video over to the police? Certainly, unless there is some specific statute that would address the issue, but that’s quite uncommon.

If police video cameras recorded the events, things become really interesting. If such video exists it has certainly been examined by the police in minute detail. However, absent specific court orders to produce such video, whether its existence is ever acknowledged is an open question. If one assumes that the police in this instance are carrying out a cover up, such video would only be acknowledged and made available if it unambiguously supported the police version of events. Suppressing even the knowledge of such video would in the very least constitute contempt of court, and probably, a crime in most states.

Another concern related to the officers shouting commands at Scott, and suggested that their commands were not intended to resolve the situation peacefully, but to confuse witnesses into supporting the police version of events.

There is a shred of truth in this idea, but not in the manner implied. Competent training in this facet of police work requires that one officer, and one alone, issue commands, and that the most effective command when the suspect is initially confronted is “don’t move.” Officers are told to do this loudly, clearly, and slowly giving the suspect sufficient time (which can be seconds) to process the command, if safety allows. This is done to control the situation and to minimize mistakes. Every officer understands that the clearer and more simple their commands and actions, the more likely witnesses are to correctly remember, and if the officers act professionally, this will benefit everyone. I need not mention that some officers are not professional and that some act in bad faith, cynically playing for onlookers the better to cover their malfeasance. I have to believe that readers can understand that the potential for bad, malicious behavior is present in any human endeavor, so I need not repeatedly offer it as a disclaimer. Based on many years of experience in similar situations, my best take on what actually happened is that three or more officers were likely so adrenaline fueled that they began yelling whatever came to mind and likely weren’t aware of what their fellow officers were yelling, if they heard anything other than their own voices at all. In these circumstances, I’ve seen officer’s voices raise an octave or two as they screamed mindless obscenities rather than rational commands at a suspect.

Yet another concern revolved around the police practice of handcuffing suspects they’ve just shot as soon as possible and leaving them restrained until, and possibly even after, it’s safe for medical care. Some were also concerned that the police apparently did not themselves try to treat Scott. Unless an officer is a certified EMT or paramedic, few if any police agencies will allow them to engage in medical treatment, particularly if other medical professionals are on the scene. This doesn’t mean that an officer would be required to withhold direct pressure to a badly bleeding wound or refuse to provide CPR, for example, but if an officer is providing medical treatment, he is not fulfilling his primary duties. It is also essential that suspects be restrained, even if they are not an immediately apparent threat. Human beings are amazingly resilient, and someone who appears unconscious one moment, may suddenly leap to their feet and inflict great harm on officers or medical personnel, even when mortally wounded. This does seem cold hearted, but to those who, like the Shadow, know what evil lurks in the hearts of men, and who have learned that lesson the hard way, it’s rational and necessary. If the police abuse this procedure, if they inflict unnecessary pain or unnecessarily delay medical treatment, they are reprehensible and criminally liable, but that does not invalidate the necessity or wisdom of this policy.

On the new development front, Scott’s father has posted extensively (http://erikbscottmemorialblog.blogspot.com/) on the drugs that would likely be found in Erik’s system. That any drugs at all were present will tend to be supportive of the police version of events, and will certainly be played that way by the police, and possibly some elements of the Las Vegas press. William B. Scott’s account indicates that Erik Scott suffered from spinal damage likely incurred during airborne training, which is certainly plausible, and that he was under treatment for intractable pain. As a younger man, I sometimes scoffed at those who suffered from debilitating neck and back injuries until, that is, I suffered a neck injury on the job. I scoff no longer as each turn of my head feel and sounds like a bag full of gravel. William Scott also suggests that the medications Erik was taking were all obtained by legitimate prescriptions. These assertions are easily proved or disproved through the testimony of his attending physicians. Whether the police rely on such direct, legitimate testimony or produce spin doctors, so to speak, to paint a differing picture may also help to clarify police intentions. The Coroner’s inquest is scheduled for this week in Las Vegas, and I’ll update what I can after that event, if it occurs.

Some have suggested that the police acted with malice aforethought, in other words, planned Scott’s killing before it occurred. I’ve suggested that the most serious charge might be manslaughter, which does not require such a demanding standard of proof. While it’s true that premeditation may be formulated in seconds before a criminal act, with what is known at the moment, it seems that the police may have acted negligently, but not with premeditated malice as specified in the language of most statutes, which would be necessary for a murder conviction in most jurisdictions. As the information available in this case currently stands, it remains most likely that this is a classic case of one error or misunderstanding after another building inexorably to an avoidable death.

Confederate Yankee: The Erik Scott Shooting: Update 3

Since the second update, many interesting developments have come to light and many questions have been answered, or at least, more informed suppositions can reasonably be made. However, complete and accurate original source videos and audio and transcripts are still not available, making accurate analysis difficult. Sadly, far too many of the details remain unknown, and perhaps, purposely or even criminally so. In update four of this series, I’ll get into more specific analysis of an audio/transcript of the initial 9-11 call from Costco security employee Shai (pronounced “Shay”) Lierley to a metro dispatcher, and will try to synchronize a partial transcript of police radio traffic to that 9-11 call to produce a more complete picture of events. This update, the third, will deal primarily with analysis of Inquest testimony and related issues.

Readers commenting on the first two installments have raised concerns about the relative veracity of police officers and lawyers in interpretation of the issues relating to this case. Each has an important role to play in the criminal justice system, and sometimes, those roles overlap, to the discomfort of all involved. Perhaps it would be useful to address an issue that will become more important as the case goes on: The relationships of lawyers--defense and prosecutorial--with the police.

Police attorney relationships are far more complex than one might imagine, and seldom anything like those depicted on TV police dramas. Describing them as love/hate relationships might be a good baseline for further consideration. Attorneys generally consider themselves to be more educated and thus, more intelligent than police officers who by comparison often have no higher education. While more and more police agencies are requiring at least an associate’s degree (two years of college), a substantial portion of American police officers have only a high school education.

This is not, in and of itself, a bar to excellence in law enforcement. In many ways, excellent officers are born with a particular set of genetic endowments that give them distinct and obvious advantages over others regardless of their respective amounts of higher education. Simply put, some people are just born better capable of excelling in some jobs than others. While a reasonable argument can be made that an undergraduate degree has the potential to produce a well rounded individual with a broad base of potentially useful knowledge, common sense and street smarts tend to trump a bachelor’s any day in police work. At the same way, law schools produce graduates with a very wide range of practical abilities. Abraham Lincoln, for example, was known as an outstanding lawyer, but spent not a day in law school.

Some attorneys find it difficult to see police officers as professionals, looking down on them in very real ways. Police officers tend not to respond well to condescension, and this can lead to real tension in the relationships between officers and prosecutors in particular. It should not be assumed that prosecutors are automatically friends and colleagues of the police, and it should surely not be assumed that they will, always and in every case, support or cover for the police. This makes perfect sense if a given prosecutor believes officers to be lower than him or herself on the evolutionary ladder.
However, it can almost always be expected that defense attorneys will have an adversarial relationship with the police. The old maxim stands true: If the law and the facts are on your side, argue the law and the facts. If not, attack the police. Lawyers on all sides are supposed to seek justice above all, but some defense attorneys are predisposed to believe that the police are dim witted perjurers and brutalizing racists, and feeling the system thereby stacked against themselves and their clients, sometimes cut corners to try to even the playing field that they perceive is tilted in the prosecution’s favor. Such male lawyers often wear ponytails. Go figure.

It may also be useful to consider that most attorneys are not, in fact, expert in the Constitution and the law as it applies to the criminal justice system (as in medicine, lawyers generalize or specialize), and that many police officers may often have more practical knowledge of specific statutes, procedures and methods than many attorneys. In my final police assignment, I was a detective specializing in stalking and the burglary of vehicles. In that role, I of necessity learned a great deal about the related statutes, court precedent relating to search and seizure, psychology, the applicable insurance statutes and many other esoteric bits of knowledge. Knowing this, prosecutors--and sometimes defense attorneys--often asked questions about where to find specific statutes, their interpretation and application and related issues. I doubt that any of them considered me a law enforcement Einstein (nor did I), but they were practical enough to consult a useful, available source. Wise men know and accept, above all, what they don’t know.

With this in mind, can any meaningful conclusions be drawn from the apparent relationship of the Las Vegas prosecutors and the Metro Police? Can reasonable inferences be made based on the performance of the police and prosecutors in the Coroner’s Inquest and the eventual verdict? Indeed they can.

GENERAL IMPRESSIONS OF THE INQUEST TO DATE (09-24-10):

Scott has been overwhelmingly portrayed by prosecutors as a drug addict so badly and visibly impaired by drugs that he was prostrating himself on check out conveyors, throwing merchandise about the store, threatening and alarming staff and customers, and who, when confronted by police, drew and pointed a weapon at them, causing them to immediately shoot him seven times, according to Dr. Alane Olson a medical examiner with the Las Vegas Coroner’s Office. Two rounds initially fired by Officer William Mosher struck Scott in the chest, and five fired by Officers Joshua Start and Thomas Mendiola, struck him from the rear, including one that entered Scott’s buttocks, traversed his bowels and lodged in his chest. These five bullets, but particularly the bullet that entered Scott’s buttocks, will figure prominently in the future. Olson also testified that Scott had “lethal levels” of Morphine and Xanax in his blood.” However, several witnesses contradicted the prosecution’s tone and theory. Because no cross examination of witnesses was allowed, it’s difficult to tell with certainty if these statements were an unexpected and unwelcome surprise to the prosecutors or were included in an attempt to provide the appearance of balance to the televised proceedings.

SOME EXAMPLES OF TESTIMONY SUPPORTING THE PROSECUTION THEORY:

Arlene Houghton, a cashier, said Scott lost his balance and “tumbled onto a checkout conveyor belt, ” and that Samantha Sterner, Scott’s girlfriend, propped him up on a shopping cart. Houghton said Scott’s face was flushed, his eyes unfocused and glassy. “He turned around and looked at me and said, ‘I guess I really am (expletive)-up,’ and they walked away.”

Cashier John Nikitas said Scott knocked over a sign. “He told the lady with him, ‘I told you I should not be in this effing place when I’m this drunk.’”

Coleen Kullberg, a part time Costco employee was leaving the store and saw Scott staring at an officer who told him to get on the ground “at least five times.” She said “he reached behind him and pulled out his gun and aimed it at the officer...at that time the officer shot him.” Kullberg described Scott, just prior to being shot: “He was like dazed. He was just looking at him. He wasn’t obeying any of his commands.”

Security Officer Shai Lierley and Assistant Manager Vince Lopez spoke with Scott separately and told him that his gun wasn’t allowed. According to Lopez, Scott became “extremely agitated,” and told Lopez “...it’s a (expletive)-up policy and he continued to say he was a Green Beret, he could carry a gun wherever he went, and he wasn’t going to put up with that.” Lopez also testified that Scott imitated a gun with his hand, put it to Lopez’s head and said that if someone really did that, he would take care of the situation.

Customer Annette Eatherton saw Scott, being confronted by the officers, reach for his waist, and heard an officer say, “‘don’t do that, don’t do that,’ and he did it and they shot him.” After the first shot, Eatherton saw a gun in a “gun rug” fall to the ground in front of Scott. Annette’s husband Wentworth gave similar testimony but thought that Scott was trying to disarm, not shoot.

SOME EXAMPLES OF TESTIMONY CONTRADICTING THE PROSECUTION THEORY:

Edward Fishman heard an officer order Scott to “drop it,” and heard no other commands. He could not see anything in Scott’s hands and saw Scott reach toward his side, his shirt came up, and he was shot. Fishman did not see or hear Scott take an aggressive stance, point anything at the officer, or say anything. Fishman, a physician, said that after being shot, Scott’s hands were above his head before he fell to his knees and then face down on the ground. Fishman did not see anything drop from Scott’s hands or anything on the ground near him.

Fishman watched an officer handcuff Scott, but no one checked his pulse. Fishman testified that he was so shocked and surprised that none of the officers did anything to help Scott that he was to afraid to approach and ask to assist.

Customer Wendy Wolkenstein saw an officer with his gun drawn confront Scott outside the store. The officer was yelling at Scott to get down on the ground. Herding her children behind cover, she saw Scott’s elbow move back toward his waist or pocket and the officers fired. Looking back at Scott, she saw his hands in the air. She did not hear Scott say anything to the officers, but his back was to her.

Scott’s girlfriend, Samantha Sterner, did not testify, possibly on the advice of her attorney, who told the media that she was anxious to testify, but not in a one-sided forum. Prosecutors instead played a recording of her statement to police made after the shooting.

Sterner told the police that Scott was acting normally and his interaction with Costco employees was “amicable,” though she said she wasn’t present for all of those interactions. She did tell Scott, as they walked toward the exit that he was probably the reason for the evacuation, and he seemed “surprised.” Sterner saw an employee point out Scott to a uniformed officer as they stepped outdoors.
“He (Officer William Mosher) immediately draws his weapon and tells him to get on the ground,” Sterner said, adding that Scott put his hands up, intending to disarm. Sterner screamed at the officers that Scott was in the military and had a concealed weapons permit. She told them not to shoot, but when Scott raised his shirt to reveal the gun and “...grabbed it to put it on the ground...”Mosher fired. Sterner believes that Mosher “...was too aggressive...” and believes he would have fired no matter what Scott did. "I just think that this officer was out of line,” she said.

TESTIMONY OF SCOTT'S PERSONAL PHYSICIANS:

Dr. Joseph Gnoyski did not believe that Scott was a drug seeker and took drugs to deal with pain, the treatment of which is Gnoyski’s speciality. He testified that Scott had a physiological dependency, and that over time, he was getting better. Of the three testifying physicians, only Gnoyski testified to ordering an MRI or similar diagnostic test for Scott. The MRI indicated that he did have back damage, which Gnoyski attributed to a “paratrooping accident,” “a football accident,” and “a more recent automobile accident.”

Gnoyski said “This guy [Scott] works out every day. It’s not like he is seeking a buzz just to lie around...I don’t believe this man was trying to get a buzz...It just doesn’t mesh with his character.” Gnoyski described Scott as an "elite athlete."

During a casual visit to his office, Gnoyski felt that Scott appeared groggy. “It wasn’t like he was out of control, that he was going crazy.” Gnoyski drafted a letter to terminate their relationship, but changed his mind. Gnoyski said “I have a lot of respect for him.”

Dr. Shari Klein treated Scott for about two years, until about ten months prior to the shooting. Klein testified that Scott, at some point, suggested that she prescribe Hydrocordone, but she did not prescribe that particular medication. She said that Scott stopped seeing her when she began a concierge practice (where a physician sees a limited number of patients, charging substantially more for the individual treatment) and he could no longer afford her.

Dr. Daniel Kim testified that he began treating Scott on 02-02-10 for chronic pain. Kim prescribed medication but felt that Scott was taking too much: “He doubled up everything that I gave to him.” Kim, who felt that Scott had an addiction to Hydrocordone, terminated Scott and gave him a list of detoxification centers. Kim would not agree that interactions with Scott led to Scott’s being shot but thought that he might have more forcefully suggested detoxification.

TESTIMONY ANALYSIS: This testimony attempts to portray Scott as a man so under the influence of drugs that he could barely stand, yet he also reportedly said that he was drunk, though the sources consulted for this article did not mention the presence of alcohol in Scott’s blood. Significant in the testimony of the doctors is the absence of the common behavior of drug addicts who try to trick multiple doctors to simultaneously prescribe large amounts of narcotic medications. Scott apparently sought out medical treatment for intractable pain, which was actually physiologically based, and worked with single physicians in turn.

Most witnesses testified that Scott not only did not respond to officers, but drew his weapon and pointed it at the officers, though one saw only an elbow moving toward Scott’s back and saw Scott’s hands “in the air” moments after being shot. Officer commands heard by witnesses range from “don’t do that; don’t do that,” to “get on the ground,” and “drop it,” but no clear picture was drawn of the time frame or circumstances, including which of the three officers made these statements or why.
Only one of the witnesses saw a gun “in a gun rug” fall to the ground. The others did not see a gun or see Scott point a gun at the officers. According to police testimony and a photograph produced at the Inquest, Scott’s .45 ACP 1911 type handgun at some point and in some way, made it to the ground somewhere near him and was photographed by police, reportedly where it was found. The weapon displayed in the photograph was still fully in its inside the waistband holster, cocked and locked (the most common method for carrying this type of handgun, with the safety apparently still on. What is most interesting is that the holster completely enclosed the trigger guard and trigger of the weapon on both sides of the frame. In order for Scott to have fired the weapon, he would have had to push his trigger finger between the leather, which was still likely tightly molded to the frame of the weapon, and the frame, snap off the safety--which was also at least partially, possibly fully, covered by the holster--with his thumb, or more likely, would have had to remove the holster, which would have taken a very emphatic and forceful downward flinging motion if made one handed, or most likely, would have required that Scott grasp the holster with his left hand to pull it from the handgun. Either option would have taken very obvious movements and time, time which Scott was not afforded. None of the witnesses testified to this. The testimony to date seems to support Sterner’s contention that Scott, surprised and trying to respond to conflicting commands delivered simultaneously and in a matter of seconds, was trying to disarm.

 What is also missing from the media accounts is any time frame. A man removing a weapon to disarm himself does not move with the speed and obvious intent of a man trying to bring a muzzle on target to fire, yet there has been apparently no attempt by the prosecution to clarify this point. One might argue that an officer cannot be expected to tell the difference between a holstered, safed handgun being voluntarily surrendered and an unholstered handgun being brought rapidly, aggressively onto target, but this kind of situation is common in shoot/don’t shoot training and officers are expected to be well trained and calm enough to take the few fractions of a second necessary to be sure before firing. It is not easy, but no one is forced to become a police officer.

What is also remarkable is that while the prosecution and police have acknowledged the firing of seven rounds and at least generally accounted for the final resting places of those rounds, there has been no statement about the possible firing of additional rounds and where they came to rest. This is significant in that studies have uniformly found that in officer shootings, commonly less than 30% of rounds fired by officers strike their intended targets. Are we to understand that these three officers fired only seven rounds, and that all seven were hits? This would be particularly amazing if any of the rounds were fired after Off. Mosher’s original two rounds struck Scott in the chest. At that point, Scott fell to his knees and then onto his face, which presents another significant problem for the police and prosecution.

At the time of the shooting, Off. Moser, 38, had been working for LV Metro for approximately five years and one month. Media accounts have not indicated if he had prior law enforcement experience, but do speak of his involvement in one prior police shooting. This is also significant, but more on this shortly. Off. Joshua Stuart, 28, had been with Metro approximately one year and 11 months. Again, I’m unaware of any prior police experience. Off. Thomas Mendiola, 23, had been with Metro approximately one year and four months. Considering his age, it would have been unlikely that he had any prior police experience as 21 is the minimum age for police service virtually everywhere.

We do not, as yet, know exactly where the officers stood relative to Scott, or their distances from him at the time each shot was fired. Did they remain stationary until shooting ceased, or were they moving as they fired? We still do not know why they fired after Mosher’s initial two shots. Most disturbing, however is the improbability of Scott taking five rounds in the back under the currently known circumstances. The only reasonable scenario presented by the evidence known to the public is that Scott was facing all three officers who were also facing him. We can assume that the officers, two of whom had little apparent time on the job (this is a significant issue--ask any experienced cop), may have tried to move to one side or the other, remembering basic tactics, but all were likely oriented facing Scott, with one or two perhaps at a slight angle to his sides. All the testimony indicates that after the initial two shots, Scott dropped to his knees and then, fell forward, toward the officers, onto his face. Struck twice in the heart, he was likely rapidly bleeding out internally, and rapidly dropping blood pressure may have rendered him more or less immediately unconscious.

How then is it possible that he took five additional rounds in the back, and who fired them? Did any of the officers very quickly move around Scott, placing Scott between himself and his fellow officers? Did they fire while he was falling, or more likely, only after he was already face down? The Medical Examiner testified that she could not tell the distances from the muzzles of any of the shots, nor do media accounts reveal the tracks of any of the rounds, with one exception.

It is reasonable to believe, particularly with the unusual, one might say, phenomenal quality of the marksmanship displayed by the officers that they were quite close to Scott, which is, in and of itself, very significant. Let’s assume for the sake of an experiment that Scott is face down, his head toward the officers. Pace off ten or twelve feet--the width of many rooms in many homes--and, placing a friend, or if you’re a bit squeamish, a pillow, on the floor in Scott’s position relative to the officers, and point your imaginary handgun at the target. At even that distance, the human back is a small, hard to hit target and any rounds fired would travel downward, likely lodging in the pelvis, buttocks, or even the thighs. In any case, the bullet tracks would be at a steep angle and would traverse a great deal of the body unless they struck large bones. Moving closer to the target, notice how the angle changes, until, standing over the body, the target becomes much, much easier to hit--the distance from muzzle to body being two feet or less--and the bullets would traverse the body at an approximate right angle.

For the prosecution’s theory, however, the most vexing problem is the bullet that entered Scott’s buttocks, traversed his pelvis and lodged in his chest. Unless the muzzle of the handgun that fired the round was near the ground when the round was fired, it’s hard to imagine how this could have occurred unless the officer was not only behind Scott when the round was fired, and thus had placed Scott between himself and the other officers--a virtual circular firing squad all officers are taught to avoid at all costs--but was also diving to the ground or on the ground at the time. One other possibility is that the round was fired by a standing officer, and the bullet, striking the pelvis or spine, was deflected on an internal path parallel with Scott’s prone body, but the ME did not so testify, and the problem of how an officer, in what was a mere handful of seconds, was able to maneuver into a position that would make any of this possible still exists.

Off. Mosher’s reported prior shooting, which was apparently found to be justified, is of interest because the overwhelming majority of police officers complete their careers without having fired their weapons at anyone. Thus, the officer who has had to shoot a suspect on even one occasion is, in most police agencies, unusual. An officer who has shot two or more, in a short span of years, is even more unusual. This does not in and of itself prove wrong doing on the part of such an officer. Perhaps he was merely unlucky. Perhaps he worked in high risk areas, or in an assignment that made violent confrontations more likely. But the fact that this was Off. Mosher’s second shooting should cause anyone investigating this case to be extra careful to pay attention to detail, as should any prosecutor charged with reviewing the case in making a charging decision because thankfully, Off. Mosher is in an exclusive class among American police.

Some commenters have suggested that police officers look for opportunities to shoot citizens in a soft of bizarre initiation rite. Thankfully, the statistics, and experience, do not bear this out. Indeed, officers wonder how they will perform in a deadly force encounter, perhaps even hope that they might have the chance, but there is nothing sinister in this. In fact, they are repeatedly confronted with this issue in employment interviews and training. They have to consider such issues and be willing to run to, rather than away from, the sound of gunfire. Any officer who has asked him or herself whether they can and will fire at another human being, possibly taking their life, if necessary, and who has not answered firmly and affirmatively, is a danger to them self and the public. Officers are comforted by the knowledge that the odds are on their side; it is unlikely that they will ever find themselves in that situation. Still, type A, adrenaline fueled personalities--and in many respects, that’s who we want for police officers when maniacs intent or rape or worse are breaking into our homes--will wonder, and anticipate and train hard to be prepared if the worst ever comes to pass. That is what we pay them to do. And they will pray that they do the right thing and go home that night when their shift is done.
One of the fundamental questions in this case is whether any Costco employee actually asked Scott to leave the store and if so, his response to that request. It is reasonable to believe that if anyone representing Costco had asked Scott to leave at any time, the police would have noted it and the prosecutor would have been sure to secure such testimony, but thus far, this does not seem to be the case. Considering the very negative thrust of the other evidence presented to Scott’s detriment, if such evidence, of an angry, armed man refusing a lawful order to leave the premises existed, surely it would have been made public at the inquest, but it has not.

Also interesting is the exclusive testimony secured by Confederate Yankee regarding Scott’s character by a competitor of Scott’s. This testimony, which was not produced during the Inquest as the witness fears Metro and prosecutorial reprisal, does not support the negative character sketch drawn by the prosecution.

As expected, no Costco or other video was presented at the Inquest. Recent information indicates that the police will claim that all of the Costco video from every camera that might have captured an image simply does not exist due to an technical malfunction known to Costco before the event which was not corrected until after the event. While this is possible, one would surely be forgiven for questioning the convenience--for the police--of this kind of coincidence, particularly when such video has the potential to unambiguously resolve the central issues in the case. Whether any police recordings exist may never be known. At the very least, media outlets may be able to provide footage which indicates whether any police vehicles potentially equipped with video were pointing toward the area of the shooting. Most police video cameras are focused through the windshields of patrol cars. If it can be established that any police vehicles were pointed in that direction, the possibility of police video exists.
A quick side note in response to several posters: The criminal justice system is often behind times in adopting standards of evidence that reflect the latest, greatest technology. In all matters of evidence, original sources and items are virtually the universally required standard, though judges do usually have some flexibility in interpreting the related statutes. However, that interpretation will almost always take place long after evidence is gathered. The police will reasonably believe that they are required to gather original materials and sources unless they are absolutely certain that copies will suffice.
The potentially missing video remains, at the very least, a public relations disaster for the police, and one which may not go unnoticed by local political leaders. The Law Vegas Review-Journal reported on 09-25-10 that Clark County Commissioners were concerned by the “skewed” proceedings and would form a committee to review potential changes in the Inquest system to allow a more adversarial approach more likely to expose all of the relevant facts necessary to produce a fair result. In response, prosecutors said that in a more adversarial hearing, “police officers might not testify.” This should be cause for real public concern in that any prosecutor knows that officers have no choice about such matters and are required by law to testify. Officers know this too. In fact, prosecutors routinely issue subpoenas mandating the appearance of officers at even routine hearings. This should be a matter of concern for Las Vegas residents as it may indicate that the prosecutors involved hold a low opinion of the intelligence of the public or may care little for what the public thinks. Yet at the moment, at least the potential for limited reform may exist.

Another bit of missing video, or potentially photography, is images of the merchandise allegedly strewn all over Costco by Scott. Several store employees have testified that Scott was so deranged that he was, in a virtual frenzy, ripping open merchandise and actually throwing it in all directions. If this was so, and to the degree suggested by Costco employee testimony, surely the police photographed it? Yet no media account of which I am aware mentions such evidence. It is another interesting coincidence that if the police did not record such potentially meaningful evidence, all internal and external Costco store video for that time is also apparently lost.

So it would appear that the prosecutors and the police are indeed on the same page in this case. Whatever animosity they might bear toward each other is being put aside and a common front presented. What is the significance of the apparent approach of the police and prosecutors to date? Even if one accepts their theory that Scott was a drug addict and an aggressive gun nut intent on carrying a gun wherever he wanted, who, through gross drug-induced impairment, brought about his own death, all of this should rightfully be nothing more than mitigating evidence that might have some bearing on the severity of a charge to be brought against the officers, or to be considered only after a potential future conviction as mitigating factors relating to sentencing.

What still remains is what the officers knew or reasonably could have known or inferred at the time they confronted Scott at the main entrance of Costco and made the decision to pull the trigger. It is this event, compressed in time, that should be the prosecutor’s foremost concern. Scott’s life history and his physical and mental health status could have, in at least some way, put him on a collision course with the police that day. But the ultimate question is whether they, knowing nothing about Scott but what they heard on the radio on the way to Costco, and apparently finding themselves surprised when a Costco employee suddenly pointed out a man they had never before seen, were justified under the law by his actions in the handful of seconds before they fired at least seven rounds into him. Under this, the only standard that truly matters, the evidence presented at the Inquest does not yet tend to favor or conclusively exonerate the police.

IN THE NEXT UPDATE, NUMBER 4: The 9-11 call and a partial radio transcript are meshed and analyzed.

Note: The primary sources for this article were the Las Vegas Sun and the Las Vegas Review-Journal.

Confederate Yankee: Witness in Scott Case May be Donor to D.A.

It is quite possible that the man in question is another Christopher Villareale entirely, or that the man who donated $500 to the District Attorney's re-election warchest just happened to be an eyewitness to Erik Scott's shooting at the hands of Las Vegas police.

If the latter, disclosure seems to be the order of the day, considering the high-profile and controversial nature of the coroner's inquest.

Confederate Yankee: The Erik Scott Shooting: Update 3.2

The next installment of this series, Update 4, which will analyze the 9-11 transcript presented at the Coroner’s Inquest (a visit to regarding that inquest is worth your time) and a partial radio transcript will be posted later this week, but so many commenters have raised excellent questions, as they so often do, that answering those questions may serve to clarify portions of the earlier updates and to further enlighten future updates. Consider this post Update 3.2.

Please keep in mind, gentle readers, that all that we can do in this series, and all that we are trying to do, is to provide informed background and plausible analysis using the facts and testimony generally available to the public. We can, upon occasion, break new facts and details not generally available, and we can make reasonable inferences based on those facts and details, but what we will always do our best to avoid is unreasonable literary bomb throwing. If the facts, and the reasonable inferences drawn from them, indicate that the police (or any other party) are wrong, we’ll make that case and explain why we believe it’s so. But no one should expect blanket pronouncements of malign intent, murder and mayhem unsupported by fact or reason.

Several commenters have been concerned about the police and their tendency toward perjury. Incredibly obvious and predictable disclaimer: Because the police are severely handicapped in hiring by being restricted to the human race, it is always possible that some police officers will behave inappropriately. They should not, but they do. That said, consider that the majority of arrests made by any police officer (did you know that a traffic ticket is an arrest?) are misdemeanors, offenses routinely settled without jail time by small fines. Perjury, on the other hand, is commonly a felony virtually everywhere. My experience teaches me that few officers will risk not only their reputations but their careers and potentially, their freedom, when so little is at stake. The other side of the coin is that when a great deal is at stake, when their reputations, careers and freedom might hang in the balance, perjury might become more likely. Such is the reality of human nature. Police officers are routinely accused of perjury. Have you ever heard anyone say: “Yeah, I got a speeding ticket today and the officer was completely justified in giving it to me?” I thought not. Should perjury be discovered and punished? Of course, but that’s a matter for each law enforcement agency and each community. If a given agency is rotten, community elected officials have the power to clean it out. If the elected officials refuse, citizens have the power to periodically clean them out. If the citizens refuse, they’re making a choice by not making a choice.

Information from another commenter suggests that Erik Scott’s handgun was removed from his waistband holster by an EMT and placed on the ground. I’m unsure if that commenter meant to say that an EMT removed the handgun, still in its inside the waistband holster, and placed it on the ground. According to the commenter, this information comes from an EMT’s report of the incident, which apparently has not been made public, nor was it introduced during the Inquest. The photograph displayed during the Inquest depicts a 1911 type handgun in a holster which the police said belonged to Scott and was photographed in place. I’m unaware of specific testimony regarding how it came to rest there, but the implication in line with the Police/Prosecutor theory is that Scott himself removed the weapon from his waistband at his back, holster and all, pointed it at the officers and dropped it at some point during the shooting.

If this is true, another bizarre and inexplicable element has been added to this case, so bizarre and inexplicable that I tend to discount it. If true, this means that after shooting and handcuffing Scott, the officers failed to disarm him, failing to remove even the weapon known to them. In other words, having, seconds earlier, apparently survived a deadly force encounter, the officers, through negligence, did nothing to remove all possibility of deadly, continuing danger to themselves and others. All available facts suggest that any officer handcuffing Scott should not have failed to detect his handgun, imprinted under his shirt, or partially exposed. Failing to remove and secure it would indicate such gross incompetence on the part of the officers that it is hard to believe and would require substantial proof to sustain, proof such as an EMTs report made public accompanied by that EMTs testimony, hopefully supported by the testimony of other EMTs. On the other hand, if it is true, the Police/Prosecution theory falls entirely apart. If EMTs found Scott’s handgun, in its holster still in his waistband after he had been shot and handcuffed, the officer’s claim that Scott pointed that weapon at them is, to put it very, very kindly, mistaken.

Another interesting tidbit is that the police have said that Scott was carrying two weapons, and at least one media outlet has indicated that “a second gun was found on Scott” by EMTs at some point in their contact with him, but I’ve not been able to find any details about just what that second weapon was, its chain of evidence, or how, if at all, if might have figured in this case other than to reflect very poorly on the officers involved whose search of Scott, post shooting, was apparently less than thorough. If he was carrying a second weapon, it’s unusual that it was apparently not prominently mentioned at the Inquest as it could potentially be used to depict Scott even more unfavorably. On the other hand, if the police did miss it, and an EMT did find it, that would tend to make the police look less than competent.

There is, given the information available, another (but not the only) plausible possibility. Confused by rapidly shouted, conflicting commands, Scott tried to disarm himself, reaching behind his back and removing his handgun, still in its holster. Evidence suggests that he may have done this, even telling the officers that he was disarming. Considering this scenario, what remains unknown is when the police began to fire. Did the mere downward movement of his raised hand trigger their fire? Did they wait until his hand disappeared behind his back? Did they, seeing something that might have resembled a gun (in this case, in its holster), appearing from behind Scott’s back even though it was not pointed in their direction, open fire? The Police/Prosecution theory requires that Scott remove the weapon from his waistband and, at some point, drop it. Unfortunately, that weapon was clearly still in its holster.
Several commenters have suggested that it did not matter, in making a deadly force decision, whether the weapon was or was not in its holster. If it was pointed at the officers, they had lawful justification to fire. This is a common scenario in shoot/don’t shoot training videos which one can reasonably expect that officers of a major metropolitan agency have experienced. Officers are expected to deal with exactly this kind of situation and train for it. Competent officers live in horror of shooting someone, even if completely justified, who turns out to have had in their hand a billfold or other item rather than the handgun the officer thought was there. Officers are expected to accurately make these distinctions before firing. Because they practice these scenarios, officers should be able to tell the difference, by observing a variety of factors, between someone trying to disarm or show them something, or someone in the drawing sequence of bringing a handgun on target from a holster. Officers do this successfully every day and untold thousands of citizens are alive because of their training and their ability to make these distinctions. To suggest that officers have no such duty would have disastrous consequences for us all, freeing officers to shoot at the merest hint of, rather than at reasonably convincing evidence, of danger.

Another commenter observed that officers were trained to shoot until they have stopped the actions that gave them justification to shoot and that initial action--a suspect preparing to shoot--is always faster than reaction--an officer’s response. Both are true, but with qualifications. Not only are officers trained to shoot to stop, but may legally use any number of rounds reasonably required, so long as they were initially justified in shooting. However, they are also responsible for each and every round fired and the safety of innocents. How then does one determine when the suspect has ceased hostilities and that shooting should stop? By observation. Officers must indeed be sufficiently aware of any situation so as to briefly pause after firing several rounds to determine if more are required. That this might take a second or less is not the issue. The only reasonable alternative is that once an officer fires a single round, they must empty their magazine until they are forced, by lack of ammunition, to finally assess the situation as they reload. This is obviously lunacy, but what other practical possibility exists? Action is indeed almost always faster than reaction, but officers understand this, and accepting it, train to overcome, to the greatest possible degree, this inherent disadvantage. This is absolutely necessary to prevent officers from firing too quickly with insufficient justification. No, they don’t have to absorb a suspect’s first round before returning fire, but there is a substantial range of action/response between firing too quickly and not responding properly. An officer’s actions in that gray area will be judged later by those who are not under fire and have months to review decisions officers had to make in seconds. This too, police officers understand and grudgingly accept.

Another commenter wondered about how the officers involved might have handled the approach to the situation differently. Officers train for situations of this kind, and again, to be kind, the approach in this shooting (based on what is currently known) does not appear to be what one would find in a “how to” textbook. In potential shooting situations, the police are trained to do whatever is necessary to control and contain the situation, and to the greatest degree possible, to protect the public. In other words, they should not do anything to provoke a fire fight in the middle of a crowd. Of course, bad guys don’t always give the police that option.

In this case, there is evidence to suggest that the police knew or should have known that they had the element of surprise. Apparently one or more officers were near the Costco entrance, perhaps even inside, and Scott and his girlfriend Samantha Sterner, walked past them. At that point, the police apparently did not know that Scott was the suspect they sought, and his behavior was obviously unremarkable to those officers. Update 4 will provide additional details about this, including the fact that Shai Lierley, the Costco security employee was apparently following Scott in the store, keeping him in sight while relaying Scott’s actions in real time to a dispatcher by cell phone. The police did know, for one of the first officers on the scene had ordered the evacuation, that all of the Costco customers were trying, simultaneously, yet in an apparently orderly manner, to leave the main doors of the store. At some point, a store employee pointed to Scott, essentially yelling “there he is!” This was apparently the first moment that the responding officers knew that Scott was their suspect, and the officers, exposed and caught by surprise in the open, with many innocent citizens in the line of fire, drew their weapons and the deadly confrontation began.

What should the officers have done? Remember, please, that I do not have a diagram of the Costco store and parking lot and that many of the details that I, or any competent tactician would need to render a truly informed opinion are, at this point, unavailable. However, common police training and experience do suggest a better (though not the only possible) approach.

Without being able to recognize the suspect on sight, and knowing only that he was still inside the store and was not actively, continuously violent, maintaining the element of surprise by silently approaching the store (which may have been done), parking police vehicles out of sight of the front doors, and keeping uniformed officers out of sight would have been wise. In a parking lot full of cars, this would not have been difficult. Calling in plainclothes personnel such as detectives or administrators would have also been wise if time permitted.

The next (in fact, a continuing) concern should have been knowing where Scott was and exactly what he was doing. As a field training officer, I always taught my trainees to, whenever possible, observe an animal in its natural habitat for a time before interacting with it. The officers should have identified Scott, kept their presence concealed and watched him for as long as possible. Absent an active shooter situation, which this clearly was not, this is almost always the smart thing to do. If, as this situation clearly indicated, Scott was unaware of the police and was showing every intention of simply walking to his vehicle, they should, while keeping him in sight, have allowed him to do just that. Why? To learn as much as possible about his state of mind and intentions through direct observation, to possibly locate his handgun, to minimize the possibility of a potential hostage situation and to separate Scott from the hundreds of customers streaming out of the store with him. Once Scott was in the parking lot, perhaps with many empty cars as a safer shooting backstop for errant rounds, only then should he have been confronted. Following this procedure would not only have been safer for the public, but would have allowed officers to maintain control of the situation, and to direct additional officers to keep citizens out of the line of fire as Scott was confronted.

A commenter suggested that Scott might have been brought under physical control by officers, and this is a possibility, but in order to work, the take down must have been a total surprise allowing Scott no time to react--as anyone might react to being rushed or grabbed by several people by surprise--before the officers could take physical control of him, identify themselves, and with luck, allow him to relax and be disarmed. This could have been a viable option, but again, allowing Scott to separate himself from the rest of the crowd before taking any action should have been high on the officer’s priority list. Unfortunately, what is known suggests strongly that the officers were completely surprised by Scott’s appearance at the door, and caught in the open, immediately drew down on Scott and began to yell conflicting orders.

Interestingly, Metro Capt. Patrick Neville has said that none of the customers were ever in danger from police fire as the three officers ensured that a pillar that supported a canopy was the backdrop for their fire. To observe that this is, again to be kind, fanciful, is an understatement. Such a pillar could have scarcely been much wider than, if as wide as, a human torso, and would likely have been made of concrete, structural steel, or some combination of the two. Rounds striking it would not have been absorbed, but deflected at unpredictable angles. The only possible way that such a construct could have served as even a dangerous backstop is if it was directly behind Scott in a straight line with the officer’s fire, which would have to place them actually closer than shoulder to shoulder as they fired in order to ensure that each missed round fired struck the pillar dead center at an exact right angle to minimize the risk of ricochet. This is, of course, practically impossible. God forbid that any of them were behind the others as they fired (the potential consequences of that should be obvious).
One of the larger problems for the police will be exactly how many rounds were fired, by whom, and where did each round come to rest? The police have acknowledged only seven rounds thus far and all were reportedly hits on Scott, none of which exited his body to strike anything else. At least one round, however, seems to have been a rather miraculous shot. As Update 3 pointed out, this kind of accuracy, while possible, is against the laws of probability. The idea that three officers, caught by surprise and engaging seconds later in a firefight would have the presence of mind to simultaneously pick out a pillar in the background, realize that it would serve as an appropriate bullet stop, and/or maneuver so as to place it at the termination of their line of fire, is utter, after the fact, dissembling nonsense. These issues should be pursued by the local media until they are convincingly and honestly answered or refuted.

Finally, for this update to an update, a commenter took exception to my assertion that we want police officers to be type A, adrenaline fueled personalities. Please allow me to elaborate. Police work has been said to be, quite accurately, 99% boredom and 1% sheer terror. Any police officer who will not admit to having been scared should be immediately suspect. All sane officers are, from time to time, scared. However, they are scared so often that they learn how to effectively control and channel that fear, that adrenaline that all humans experience as the fight or flight response to danger, or they leave police work. We do indeed want our police to be aggressive, apparently fearless, brave and assertive, but we expect them to be calm, rational, humane, analytical and right 100% of the time. Special forces soldiers must possess essentially the same personalities. They are commonly known as the quiet professionals. So it is with the police. They have an extraordinarily difficult job that makes extraordinary demands on them, demands that few human beings would want to experience or could handle. Yet, they know all of this and accept it. We honor them by demanding that they adhere to the highest standards of their profession and when we do not, we dishonor those who do.

Confederate Yankee will post Update 4 later in the week.

Confederate Yankee: As Expected, Kangaroo Inquest Clears Metro Cops That Killed Erik Scott

It was always a foregone conclusion that the coroner's inquest would exonerate the three Las Vegas Metropolitan Police Department officers that fired seven bullets into Erik Scott just outside the crowded doorway of an area Costco. The inquest process has cleared officers involved in a shooting since the days of disco, in more than 200 total incidents. In a process that allows law enforcement officials and the prosecution to shape the testimony and witness list without possibility of cross-examination, it is quite possible for Metro officers to literally get away with murder... or at least manslaughter.

And so last nights verdict came as no surprise: the officers were found justified.
Of course, we're still left with more questions unanswered than answered by the broken system championed by Clark County Sheriff Doug Gillespie, who is up for reelection this year.

The Scott family says they plan to file a Civil case against Costco and the Metro Police over Erik Scott's death. Under cross-examination we may finally get some of the many missing answers in this disturbing case.

My co-blogger Mike McDaniel, who has written a brilliant series of posts analyzing the case thus far, is meticulously researching the timing of the 911 tape, and will be posting another review of the evidence in this case soon that I promise you won't want to miss.

The coroner's inquest is over. Now the investigation into the death of Erik Scott can really begin.

Confederate Yankee: The Erik Scott Case: Update 4

Since Update 3.2, much has changed. The seven person Coroner’s Inquest jury deliberated only 90 minutes before unanimously finding the officers justified in shooting Erik Scott. Considering the unchallenged evidence presented by the prosecutors, there was no other reasonable verdict. Yet, in at least one instance, the public was treated to the bizarre spectacle of prosecutors trying to discredit one of their own witnesses whose testimony--perhaps coming as a surprise to prosecutors--did not adhere to prosecution theory.

We know more of the facts to at least some degree of certainty, but most of the evidence, and the most potentially accurate and telling evidence, has not yet been produced. It will doubtless take the discovery process of the civil trial Erik’s father, William Scott, has announced for a reasonable semblance of the complete story to unfold. It seems clear that the authorities are not going to provide more than has been made public unless they have no choice, and in the case of any potential videotape, perhaps not even then. More on this shortly.

Before we get into analysis of the 9-11 transcript (available here) and a partial transcript of police radio traffic (available here), we’ll address the concerns of Confederate Yankee commenters on Update 3.2 and add additional information.

A commenter asked why officers are allowed to keep their weapons when under suspicion in a shooting. Officers are citizens and are entitled to the presumption of innocence until they are proven guilty. In addition, in the daily pursuit of their duties, even the most competent, scrupulously honest officers make enemies, many of whom are not known to them, enemies who might be tempted to take revenge if they suspected an officer did not have the means to protect himself or his family. If a case is so clearly egregious that an officer is under arrest or likely to be arrested, their superiors may take possession of their weapon(s). This option is always open, but generally not used in any but the most obvious cases. Every police agency has its own internal policies and procedures, but the rationale I’ve outlined is quite common.

UPDATED TESTIMONY/EVIDENCE:

(1) Officer William Mosher fired first and believed he shot Scott twice in the chest, but Medical Examiner testimony placed one of his shots in Scott’s chest and another in Scott’s thigh, though which thigh is, at the moment, unclear. This pattern of shooting would be consistent with high stress shootings where the first shot is more or less on target and the second or subsequent shots are substantially lower as the officer “jerks” the trigger, thrusting the muzzle downward.

(2) Officer Thomas Mendiola fired four shots, reportedly all striking Scott in the back. Mediola testified that he believed that each shot was made necessary by the continuing danger posed by Scott. As analysis will establish, such “danger” was surpisingly brief. However, it has also been established, as mentioned in Update 3.2, that one of these rounds struck Scott in the buttocks and traveled upward through his torso coming to rest in his chest. With this updated information, a scenario that may be more accurate than any we’ve been able to propose before is now possible.

(3) Officer Joshua Start fired one shot, but where it struck is unclear. The ME testified that one round hit Scott in an armpit, apparently under an upraised arm, but it’s not clear whether Mendiola or Start fired that shot. It is unlikely that Mosher fired that particular shot for reasons that will be addressed shortly.

(4) Las Vegas Firefighter/EMT Chris Thorpe was among the first medical personnel to treat Scott. He found Scott facedown and handcuffed with no heartbeat and no breathing and asked the police to remove the cuffs. The officers complied and Scott was placed on a backboard and into an ambulance. While enroute to the hospital, Thorpe found a .380 Ruger semiautomatic handgun (which appeared to be an LCP model in a photograph of a Metro detective displaying it during the Inquest) in one of Scott’s pockets--presumably his pants pocket, and magazines in the other. He gave them to an officer who was accompanying them. While the LCP is a small handgun, missing the weapon and several magazines in Scott’s pants pocket does not speak well of the officers and may offer some insight into their post shooting states of mind.

(5) Officer Mosher testified that Scott was asked to leave by Costco employees and refused. In the transcript, Costco Security Employee Shai (pronounced “Shay”) Lierley told the dispatcher several times that Scott was told that weapons weren’t allowed, but did not tell the dispatcher that Scott was asked to leave, nor did the dispatcher ask that particular question. However, in the partial radio transcript, a dispatcher does tell responding officers that Scott was asked to leave, despite not being specifically told this by Lierley. Mosher also said that Costco told the police that Scott was showing signs of “ED” or “excited delerium.” The 9-11 transcript does not support this contention. Lierley was, as far as is currently known, the sole Costco employee providing information via cell phone to the police dispatcher as he followed Scott throughout the store. While Lierley did say that Scott was possibly under the influence of drugs, he also said that Scott “...may just be really hyperactive...” However, a dispatcher did tell responding officers “Male is possibly ED.” Apparently, the dispatcher made an assumption about this and used common police jargon, but in so doing, may, combined with telling the officers that Scott refused to leave, have unintentionally ratcheted up the degree of danger Scott represented in the minds of the responding officers. In this, Mosher testified truthfully about what he knew, but what he knew was likely false or at best, an unintentional misrepresentation.

(6) There is continuing confusion regarding the commands given by the officers prior to shooting Scott. A transcript of the 9-11 call introduced at trial indicates the following commands, all delivered in the space of a few seconds: “Put your hands up where I can see them, drop it, get on the ground, get on the ground.” Witnesses have testified to these commands (and more): “Don’t do that, don’t do that, get on the ground, drop it, get down, drop your weapon.” Listening to the 9-11 transcript, I could clearly hear “Get your hands where I can see them,” immediately followed by gunshots. I am unaware of any clear accounting of which officers spoke which of these commands, to say nothing of any others, in which order and in response to which actions by Scott--if any. However, the 9-11 transcript, difficult as it can be to understand (more on this in the analysis section), suggests that there were a number of conflicting commands delivered by more than one officer within the span of a few seconds, giving Scott little or no time to understand or respond.

(7) The police testified that the Costco video recording device was broken prior to the shooting and not repaired until thereafter, thus, absolutely no video of Scott’s actions inside the Costco store or of the shooting itself is available. Shai Lierley’s testimony supported the police account, stating that on July 7th, the Wednesday before Scott’s shooting on Saturday, July 10th, all store video was broken and was not repaired until after the shooting. That a major chain retail store in a major city would allow all of its security video to be out of service for even a day, let alone most of a week, beggars belief. Allowing their best source of defense against false claims and frivolous lawsuits to be out of order for one second longer than necessary suggests gross negligence on the part of Costco management. This is particularly true in Las Vegas, which has no shortage of state of the art video equipment and equipment suppliers, and even if this was not so, Los Angeles, where virtually any kind of related equipment can be had, is only a day trip (4 hours, 20 minutes according to Google Maps) away. Even if parts or equipment had to come from across the nation, virtually anything can be delivered overnight. The alternative explanation is substantially less innocent.

(8) Lierley also added interesting testimony that was apparently not echoed by any other witness. Remember that Lierley was following Scott while speaking to a dispatcher by cell phone. He was obviously close enough to the entrance to see the shooting (he told the dispatcher he was about ten feet away from Scott), but was just as obviously behind Scott. Lierley testified that an officer--presumably Mosher--touched Scott, who pushed his arm away. Lierley testified that Scott immediately raised his left hand above his shoulder while simultaneously going for his gun on his right side with his right hand. Lierley demonstrated these motions while testifying and his right hand went to his hip as if Scott’s holster was on his right hip. However, it is clear that Scott’s weapon was holstered at the small of his back under his shirt. The motion Lierley demonstrated could not have allowed Scott to reach that handgun. Nothing supporting this account is audible on the transcript.

(9) Howard Brooks, a public defender, testified that he saw Scott “walking normally” with all of the other customers leaving the store. Brooks said that Mosher yelled “drop it,” and fired instantly. Brooks testified that Scott began falling forward when two other officers (Mendiola and Start) approached and fired into Scott’s back. Brooks testified that he made a point of looking for a gun, but did not see one. Brooks is the witness that the prosecutors took pains to discredit, and considering his testimony, that’s understandable.

(10) Clayton Phillips, a Costco employee, testified that officers yelled “get down, drop your weapon” and that Scott reached for his gun, causing the officers to fire. His recollection of the commands issued differs significantly from the many differing versions in the recollections of others.

SHOOTING ANALYSIS:

I’ve suggested a possible shooting scenario in past updates. Then and now I am hampered by a lack of a complete Inquest transcript which may or may not answer all of the questions necessary to know with certainty what happened, particularly since no cross examination, which would have allowed much greater detail to emerge, was allowed. If no video of the shooting is ever produced, the task is not impossible, but much more difficult. What remains unknown (and please, gentle readers, if you know where to find this information, let me know) is the exact location of each officer throughout the encounter, the muzzle to impact distance of each round fired, the exact sequence of firing and location of impact of each round, their tracks through Scott’s body to their eventual resting places as well as many other pertinent factors. Accordingly, any analysis at this point may be incorrect in few or many ways, but there is value in trying to understand and reconcile conflicting testimonies. And there would be value for Scott’s parents in seeing that a competent, independent autopsy is conducted as soon as possible to conclusively gather this information. Hopefully, it has not deteriorated or been altered or destroyed. Known testimony does suggest a more narrow range of possibilities than those of a week ago.

It now seems virtually certain that Scott was directly facing Officer Mosher throughout the confrontation and that the range from his muzzle to Scott’s body was quite short which would have greatly aided his marksmanship if the police account of only seven rounds fired, all of which hit Scott, is accurate. Mosher’s first shot likely struck Scott in the chest, and his hurried second shot was “jerked,” by a heavy, reflexive pull of the trigger and squeezing of the grip of his handgun rather than a consistent, progressive squeeze of the trigger in insolation, downward, striking Scott in the thigh.
To this point, it has been unclear exactly how Scott came to be shot in the back, but all testimony to date seems to indicate that after being shot by Mosher, Scott fell immediately to his knees and from there, in one continuous motion, to his face on the ground. In other words, immediately after Mosher’s rounds hit Scott, he began falling forward, toward Mosher, ending up prostrate, face down on the ground, closer to Mosher than he was when Mosher opened fire.

Within a second, likely less, Officers Start and Mendiola opened fire, again probably from close range, and at least Officer Mendiola must have been firing from behind Scott as he fell to his knees and then forward onto his face. This would explain the round that struck Scott in the buttocks and tracked through his torso into his chest. This round was likely fired last, hitting Scott as his upper torso pitched forward while his knees remained in contact with the ground, leaving Scott’s torso momentarily a bit less than parallel with the ground, his head slightly below the level of his buttocks. Unless the officer who fired this shot was on or near the ground when he fired--and there appears to be no such testimony--this is the only rational explanation currently available to explain this shot. At this point, Scott’s back would have been extremely difficult to hit unless an officer was standing almost directly over Scott, pointing his weapon almost straight downward. This scenario also accounts for the tendency of repeated rounds often to track downward due to trigger jerking. Paradoxically, this would have prevented the Officers from shooting each other. Officer Mendiola, rather than calmly and with deliberate, expert trigger control, lowering his muzzle with each shot to track Scott's falling back, jerked shots two through four, driving the muzzle consistently downward and by chance (to say nothing of dumb luck), ensuring that those rounds would strike Scott rather than Mosher or bystanders. The rounds may have even assisted gravity in driving Scott’s upper body forward. If this scenario is correct, the bullet tracks for at least some of these rounds should have been angled upward, back to front, as Scott’s body pitched forward.

Still unexplained is the round that struck Scott in the armpit. This would have essentially required that Scott’s arm be raised, which would be particularly problematic for the police if the round struck Scott’s right armpit as it would indicate that his arm remained raised and was not, therefore, reaching for his handgun. This would also practically require that the officer, possibly Officer Start, was on Scott’s flank, perhaps toward his back, as he fired and not standing near Officers Mosher or Mendiola. It is also possible that Scott may have momentarily turned his side toward the officers behind him, but this too is currently not clear. The timing of this round, which was likely one of the two rounds that the ME testified struck Scott’s heart, is important in helping to determine Scott’s physical and mental capacities throughout the encounter, but is, as far as I can determine, still unknown, or at least has not been made public.

If the scenario took place as I have suggested, there are a number of additional problems for the police. The locations of bystanders and their exposure to police fire remains unknown. Were citizens standing between Officers Start and Mendiola and Scott? Could the Officers clearly see Scott and his every motion as he was confronted by Officer Mosher? From the beginning of the encounter until they ceased fired? Each of them? If Scott was in fact between Mendiola and Start and Mosher as would be required by the scenario I’ve suggested, the officers were essentially a circular firing squad, and Mosher was in the most immediate danger of being hit by friendly fire, particularly as Scott’s body dropped to the ground as his fellow officers poured fired into the rapidly diminishing target of his back. If this is indeed the case, and with what is known, it seems the most likely scenario, the three officers are fortunate indeed that they did not shoot themselves or innocent bystanders.

In Update 3.2, I noted Metro Captain Patrick Neville who assured the public that they were never in danger as the officers were careful to choose a pillar (as in one, single pillar) that supported a canopy as a bullet backstop. As I noted, for this to be even remotely plausible, all three officers must have been facing Scott and must have been closer than shoulder to shoulder so as to align their weapons in a direct line with the pillar as the termination point for any errant rounds, and with Scott’s body directly intersecting that straight line of fire. In addition, they would have had to have been capable of, within mere seconds of simultaneously realizing that they needed a backstop, seeing the pillar, recognizing its size and composition as appropriate to the task, and moving into position relative to Scott and the pillar to use it as a backstop. Absent this simultaneous thought process, we are apparently expected to believe that it was merely dumb luck that all of the stars, so to speak, aligned in a once-in-a-million-year happenstance. If the officers were not all facing Scott, Captain Neville’s assurance is rendered even more dubious as the officers were essentially using each other (and everything and everyone around them) as a backstop. A final major problem with the police version of supernatural attention to public safety is that unless the pillar was substantially wider than a human body and was made of materials that would absorb and hold, rather than deflect, incoming rounds, it would have served not as a backstop, but as a random ricochet generator. Most support pillars are made of concrete, structural steel, or some combination of these. Even rounds striking at a direct right angle in every plane would experience some degree of spatter (fragmentation of the lead core and copper jacketing of the bullets), potentially injuring those close by. At virtually any other angle, ricochets are a virtual certainty.

There remains one additional interesting item. The ME testified that she could not determine the distances of the Officer’s muzzles from the impact points on Scott’s body. Forensic scientists hired by Scott’s family should conduct gunpowder patterning and residue tests at varying distances using, if possible, the officer’s weapons and the same ammunition used during the shooting. If not, identical weapons and ammunition should be used. I do not suggest that the ME testified falsely, but at the ranges at which these rounds may have been fired, it seems unlikely that gunpowder tattooing was either not present or was so indistinct as to render any meaningful analysis impossible.

THE 9-11 AND PARTIAL DISPATCH TRANSCRIPTS:

In analyzing the 9-11 call, certain difficulties were apparent. The recording was taken from a recording of the original call, which was played on 09-23-10 in the Inquest and recorded on the spot by an unknown brand and model of video recorder in less than ideal acoustic conditions. While the voices of the dispatcher and Shai Lierley are consistently intelligible, there is substantial background noise of various kinds. While Lierley does not specify that he is speaking on a cell phone while following Scott throughout the store, the transcript strongly suggests that this is what he was doing. It is interesting that when the Dispatcher asked if and how Lierley was keeping Scott in sight (particularly asking if he was tracking Scott via camera), he said nothing at all about having no video capability, but only ”I’m full observation.” If no video was available, wouldn’t Lierley have told the Dispatcher? The sounds of people talking and of the kinds of hubbub one commonly hears in busy, warehouse sized retail stores like Costco on a Saturday are also continuously audible in the background.

What is odd is that what appears to be police and dispatcher radio traffic can also be, more or less continuously, heard in the background. Please keep in mind that I do not have sophisticated audio filtering equipment and am relying on the Mark I Human Ear, two each, listening to a recording of a recording. That said, this is particularly odd as dispatchers are commonly supplied with individual headsets which incorporate sensitive microphones that virtually eliminate any background noise, even when they have opened their microphones to speak. This is a necessity in a busy dispatch center where multiple dispatchers are answering phones, talking with each other, clacking computer keyboards and speaking with multiple officers by radio. There is no question about the background noise coming from Lierley’s side of the conversation as cell phones generally have continuously open microphones, but it is quite unusual to hear the amount of apparent background noise coming from the police side of the conversation. In fact, there are several points in the recording, which lasts approximately 14:40, when background noise becomes overwhelming and eliminates coherent speech for lengthy periods. I am unable to determine the cause of this with the methods available to me.
The time stamp that accompanies the transcript begins with “Las Vegas Police,” at approximately 1:08. While intelligible, portions of the tape are difficult to understand, and it is impossible to be accurate to the tenth of a second, so all time frames should be considered to be approximate rather than absolutely definitive. My best guess is that they’re accurate to +-1 second. The entire transcript is not reproduced here. Much of the transcript is the kind of routine information gathering common to such calls and has no particular bearing on our analysis. One of the most significant problems that certainly will have some effect on this analysis is that the 9-11 transcript lasts approximately 14:40 while the radio transcript, which is billed as a partial transcript, runs for more than 17 minutes. Radio transmissions and my comments will be enclosed in brackets and indented.

1:11 (Shai Lierley tells the Dispatcher): “Ah, we just approached him because he had firearms on himself, and we’re telling him he can’t have a firearm inside our store...”

1:22 (SL): NO, we’re--we approached him right now telling him he can’t have a firearm, and he’s just acting a little erratic about it, telling me he’s a Green Beret, and he has a right to carry.

2:09 (Dispatch): “Where does he actually have it that you see it? SL responds: “Ah, it’s on the back end of him...” The dispatcher inquires further and SL says the weapon is “...tucked in the back of his pants...”

[By this point, it is likely that another dispatcher has made the initial radio call to officers. The partial radio time stamp shows this as 6:53. “Units in V3, a 413--man with a gun--at Costco...The male is inside the business to the rear of, has a 413--gun--that’s tucked into the back of his pants. We’re still landline.” Multiple officers and a police helicopter immediately acknowledge and head for the Costco. The 9-11 and radio transcripts time stamps are not synchronized, however, police records should be synchronized, or can be synchronized with proper equipment.]

2:20 (D): “Right. And he didn’t threaten anybody with it or anything like that?”

2:22 (SL): “No. It’s just that he’s acting real erratic, and then, uh, just like ripping open our products...”

[By this point, Lierley is speaking very rapidly and his voice is in a higher register. He is obviously excited. He does become calmer late in the recording.]

3:09 (SL): “He, he he may be high. I mean he’s just real fast real dodgity so...” (interrupted by the dispatcher).

3:17 (D): “Um, he-s--he’s not removing clothing or anything?”

[This is an odd question. Absent a specific reason to believe that Scott was taking off his clothing, such as the crime being reported was indecent exposure or something similar, it’s difficult to imagine why the Dispatcher asks it.]

3:19 (SL): “No."

3:20 (D): “So would you say he’s being violent to merchandise?”

[This too is an odd question. Few people who think that someone in a store is throwing merchandise about would infer that they were being violent toward merchandise, toward inanimate objects. Because it is the only question of this type, and because it is so brief, perhaps the Dispatcher is hunting for reasons to continue her belief that Scott is a dangerous, continuing threat, perhaps it's a sort of unusually lengthy verbalized pause, or she may just be thinking out loud before fully forming those thoughts.]

3:22 (SL): “Ah, yes, just--just throwing it around, and then trying to put all these canteens into one small bag. And when a couple managers have approached him and asked him if they could help, he starts saying no, he wants a certain type.”

[Approximately 1:10 later, at 8:03 on the radio timestamp, the Dispatcher tells the responding officers: “The male inside the business is acting erratic, throwing merchandise around, possibly high on unknown type of 446-- narcotics or drugs.” Remember that the radio transcript is not continuous. It’s not possible to tell exactly when these radio calls went out, but it may be reasonable to assume that this particular call would not have been made until the Dispatcher received the information from Lierley.]

[Approximately 13 seconds later, at timestamp 8:16, Dispatch transmits: “...they are requesting CIT--Critical Incident Team--Male is possibly ED--experiencing “excited delerium.” Lierley did not say this, so it’s apparent that this is an assumption made by the Dispatcher using common police jargon/verbal shorthand. However, this would have immediately ratcheted up the internal danger level indicator, as would calling for the CIT, in every responding officer’s brain.]

4:15 (D): “Do you have somebody in the front that can direct us to this guy?

4:16 (SL): “Ah, yeah. I mean (unintelligible).”

[At 5:12 Lierley is telling someone, repeatedly, to meet the responding officers “up front.”]

5:19 (D): “Is it still tucked into his belt?”

5:20 (SL): “Yeah, it’s tucked into the back end and with--with a concealed holster.”

6:20 (SL): “But he may just be really hyperactive or what not.”

7:18 (D): “Okay. Just let me know when you see them. Are you watching him on a camera?”

7:20 (SL): “No, ah, I’m full observation.”

7:21 (D): Okay. How is he behaving right now?”

7:22 (SL): “Ah, the same. He’s just like fidgety. Now he’s kinda like, ah, talking loud to his girlfriend right now, saying he has the right to carry his firearm.”

[Notice that Lierley has moderated his initial characterization of Scott, who is now, perhaps merely “hyperactive, “dodgity,” or “fidgety.” Note too that Scott was not “talking loud” to Sterner, but was “kinda talking loud.” The Dispatcher does not inform the responding officers of what seems a significant change in Scott’s behavior, deescalating rather than escalating, as reported by Lierley.]
[Approximately 1:02 later, after the 8:16 transmission at 9:18, the Watch Commander transmits: “Have those units shut down code when they get close. Let’s not get this guy more excited than he already is.” This is obviously a wise decision. At 9:53, the Dispatcher transmits a description of Scott, which includes the location of his handgun.]

10:02 (D): “Right. Like if you would just let me know when where he goes until we get there.”

10:04 (SL): “Yeah. Yeah, yeah, no problem.”

10:16 (D): “...We have a unit that’s actually arriving, so let me know when you see them. And you have somebody waiting in front, right?”

[For approximately a minute at this point, there is loud static/background noise that makes understanding the 9-11 transcript virtually impossible.]

[Approximately 3:45 later, at 13:18, the Dispatcher radios: “It looks like the subject is still inside the business, argumentative with the manager who asked him to leave, telling him there’s no 413’s allowed inside the business, break (used on the radio when the person transmitting needs to stop for a second but intends to continue a longer transmission without interruption). The manager is a Green Beret and is allowed to carry a 413. He’s throwing merchandise around; he’s still in aisle 126 in the camping area, break. He appears to be fidgety. A female joined the male. She’s described as Hispanic, 30’s, black long hair, wearing black tank and blue jeans. Security’s going to be standing outside the business in front of, to wait for officers to direct, brea. He’s walking through the camping area towards the front of the business on the main aisle.”]

[Notice that the dispatcher has confused the manager with Scott, unless the manager was a Green Beret who was allowed to carry in the store. If this is the case, it’s possible that Scott was not calling himself a Green Beret, and Lierley and the Dispatcher were confused about that, but there appears to be no information clarifying this point. The Dispatcher also tells the officers that Scott has been asked to leave, but has refused. She did not get this information from Lierley, but apparently assumed it. “Throwing merchandise around,” was never clarified, but it’s reasonable to believe that the officers took it in its most threatening sense. And again, Scott was described as “fidgety.”]

10:21 (SL): “Yes.”

11:01 (D): “Do you see him yet, Shai?”

[By this point, an officer at the store has asked the Watch Commender for permission to “...start slowly evacuating people out of the business without alerting anybody...” and has received it. However, it appears that Costco simply made a PA announcement, without explanation, telling everyone to evacuate at once. The police interview of Samantha Sterner, made after the incident, revealed that when this announcement was made, she told Scott she thought he might be the cause, which surprised him. Nevertheless, they began calmly walking out of the store with all of the rest of the shoppers.]

11:02 (SL): “Ah, no ma’am.”

11:03 (D): “Yeah, they might be waiting for somebody else to get there. There’s actually quite a few units that are coming, Okay?”

11:13 (SL): “It was all like they had six big boys come in. And he ended up having a big old knife on him. We had one where another guy got stabbed.

11:17 (D): “Oh no.”

[This story, told by Lierley, may indicate a predispostion to overreact by local Costco security personnel based on recent incidents. The dispatcher’s “Oh no,” said with a tone of apparently genuine shock and surprise, is itself surprising as most Dispatchers in similar situations have no time for stories, embellishments, or ramblings by those to whom they are speaking, and rather than listen, tactfully redirect them.]

[At 14:06 on the radio time stamp, an officer, apparently at the store, transmits: “...manager says it’s escalating inside and he’s still talking loudly and destroying merchandise.” It is difficult to reconcile the 9-11 transcript with the radio transcript, so it is hard to determine where this information is coming from, possibly from a store manager who approached an officer with information that was, by then, outdated. It is apparently not from Lierley, but it would certainly have the effect of increasing the Officer’s sense of danger and urgency.]

11:18 (SL): “Henderson. Yeah, we were saying that we are playing it real safe on some of our shops now.”

11:21 (D): “Oh, heck yeah. You have to.

11:25 (D): “Which way is he walking?

12:01 (SL): “Um, up towards the front.”

12:02 (D): “And he’s walking fast?”

12:04 (SL): “Yeah, he’s...so...he, he’s lifting up his fire...well...he’s keeping it up but he’s keeping his hand on the firearm. Pulling up his pants.

12:07 (D): “He’s putting his hand on it?”

12:08 (SL): “Yeah, but he just took it back off. He was putting his hand on it. Pulling it up, but then...walking towards the front now...”

[What Lierley is observing is not at all threatening, and should be obvious to anyone who carries a concealed weapon, which will tend to pull one’s belt and pants continuously downward. Scott was merely readjusting his holstered handgun to ride more comfortably. In other words, he's trying to keep it concealed. Fortunately, it does not appear that this information was transmitted to the Officers, who, had they heard it, might have been even more nervous about the confrontation with Scott. At 15:45, an officer transmits “...we need units to clear these people out of here. We’re attempting to evacuate right now; get as many people out as possible.” At this point, none of the officers know who Scott is or where he is, yet they’re trying to evacuate the entire store. This is not good tactics.]

13:22 (D): “Is he walking out?”

13:23 (SL): “Yeah, are we are we...evacuating the building.”

14:03 (D): “Now are they, uh, is he walking outside now?”

[An Officer radios at 17:36: “We’ve got two officers here at the front doors watching everybody come out.” Seconds later, the Dispatcher transmits that she is still speaking with Lierley by phone and employees are still watching Scott “...due to him ripping open packages. They’re concerned of a 414A.” It appears that the Dispatcher is reiterating prior information as the 9-11 transcript indicates that Scott was opening packages some time earlier, but not at the time of this transmission. Adding that Scott is committing a “414A,” a petty thief, is strange at this point in the incident, considering the seriousness of the potential threat posed by Scott. Perhaps the Dispatcher realized she had not yet mentioned that possibility and decided to add it to be sure she covered all bases.]

14:05 (SL): “Yes, he’s about ten feet away. I see the officer standing at the door right now.”

14:07 (D): “Who is?”

14:08 (SL): “I see the officers right now.”

14:09 (D): “You see them?”

14:10 (SL): “Yes.”

14:11 (D): “And do they see him?”

14:12 (SL): “Ah, negative.”

14:13 (D): “Have they walked out the door right now? What is that guy doing right this...”

14:16 (Unidentified Officer’s Voice(s) in Background): “Put your hands where I see them now, drop it, get on the ground, get on the ground...”

[At 14:18, multiple, rapidly fired gunshots can be clearly heard in the background.]

[Officer call sign 2V16, probably Mosher, at 19:11, radios, and the transcript indicates he’s yelling: “2V16, we got shots fired, shots fired!” The Dispatcher asks if anyone is down and 2V16 does not directly reply, saying only “Roll medical.” Approximately 27 seconds later, 2V16 is asked if it is safe for others to enter the building. He does not respond to this question but blurts out: “He pulled a 413 and pointed it in my direction.” Is this an officer who is still unsettled by the shock of a shooting, or an officer trying to get information on the record that he knows will help him later? This was apparently not pursued at the Inquest.]

14:19 (D): “Shay. Hello. Shay.”

14:20 (SL): “He pulled a firearm. Yeah, I’m here, I’m here.”

14:22 (D): “Where is he?”

14:23 (SL): ...shots have been fired, shots have been fired.”

14:25 (D): “I just heard? You hear shots fired Shai?”

15:02 (SL): “Yes I did, shots have been fired.”

15:03 (D): “Who, who fired them?”

15:04 (SL): “The Officers...firearm. You have a man down.”

15:08 (D): “Shai, I’m gonna disconnect. Okay?”

[After about a minute of the loudest static and background noise in the entire transcript, the call abruptly stops, but at 15:15 another caller from Costco calls dispatch to report shots fired. The call lasts until 16:13 when the dispatcher disconnects and says “Oh my God.” The significance of this exclamation, and who made it, are unknown.]

[At 1957, AIR5, apparently transmitting from a police helicopter, radios: “They’ve got him out front, they’re taking him into custody. Hold the traffic.” Scott is apparently being handcuffed. The Dispatcher acknowledges and repeats this information. Other officers radio instructions to prevent anyone from leaving Costco so that they can find witnesses. The transcripts ends approximately 15 seconds later.]

ANALYSIS:

Because of the difficulty reconciling the transcripts, it’s difficult to be precise, however, a number of important issues have been, if not absolutely established as fact, at least, clarified.
(1) The frequent bursts of obscuring background noise, particularly at the end of the 9-11 tape, may be nothing more than technical glitches, but considering the real possibility of the Police mishandling other evidence, may be more sinister. It is, at this point, not possible to tell which.
(2) The Dispatcher’s comments about Scott’s actions and his physical state are only partially accurate. That, and their timing, almost certainly contributed to the continuing escalation of potential danger in the minds of the Officers.
(3) Lierley, is clearly following Scott and keeping him in sight while talking to the Dispatcher by cell phone. Having initially described Scott as being dangerously under the influence of drugs, his later observations sound like a man who is trying to “walk back” his initial observation without making himself seem like an inexperienced alarmist (police officers commonly look down on security guards, and all are aware of this). There is, after all, a substantial difference between someone who is out of control due to drugs, and someone who is only “hyperactive,” or then “dodgity” (whatever that means) and finally, “fidgety” (whatever that means). It seem likely that Lierley observed a man who was, after their initial contact, acting, if not absolutely normally at all times, perhaps a little unusually, but Lierley apparently did not know how to back down. Some of the dispatcher’s odd questions and comments remain inexplicable and did not help to deescalate the situation.
(4) The directions given by Lierley of Scott’s movements and locations are, at best, confusing and are never properly clarified by the Dispatcher. No responding officer would have a clue where “aisle 126” was, but if told that Scott was in the NW section of the building, or was 20 yards from the entrance doors, walking toward them, would have the information they needed. Dispatchers are trained to gather this kind of information, but apparently failed completely in this portion of her task. The result was that the officers were completely surprised by Scott’s abrupt appearance--and his identification--among them.
(5) The Radio transcript establishes that Officer call sign 2V16 said that two officers were at the Costco door. If 2V16 is Officer Mosher (and this is likely), it is probable that the two officers at the door were Start and Mendiola, which fits the shooting scenario I have suggested in this update. The transcript also indicates that what one officer hoped would be a controlled, low key evacuation, inadvertently turned into a simultaneous mass exodus with Scott, unaware of exactly what was happening, just another face in the crowd. The officers had no idea who Scott was, where he was, or what he was doing from minute to minute, and had no control of the situation. However, virtually every Dispatch update on Scott would have elevated the danger level on Officer’s internal threat displays.
(6) Neither transcript reveals which Costco employee identified Scott to the officers, but it is likely Lierley who, only seconds before the officers fired, told the Dispatcher that he could see Scott at the door and was only ten feet away.
(7) From the moment the Officer, probably Mosher, yelled “Get your hands where I can see them” until he fired two shots in rapid succession, only approximately two seconds elapse. The additional five shots are fired with a lapse between Mosher’s shots and theirs of only a fraction of a second, and the entire sequence of events, from Mosher’s yelled command and the final shot is only three to four seconds (from the first command until Lierley told the Dispatcher that shots had been fired, only seven seconds elapsed). It is also clear that a variety of confusing, contradictory commands were coming at Scott, from the Officer in front of him, and likely from two Officers behind him who he could not see, only adding to his shock and confusion.

The Officers were clearly caught by surprise to find Scott, a man who moments earlier walked past them and was obviously unremarkable, suddenly identified as the suspect, in their midst. Drawing down on him, their commands and responses were hasty, uncoordinated, and everyone in the immediate area including themselves was in danger, but not from Scott, from the Officers, who were likely pointing their weapons at each other with Scott between them (due to "tunnel vision" they would almost certainly have been unaware of the danger). Scott had, from the sound of the first command, only about two seconds to save his life. Witnesses testified that he was clearly “surprised”-- anyone would be--but given the time frame, he did not have sufficient time to respond to any command before being shot in the heart, and if he did, in fact, reach toward his right side, it may have been nothing more than a last ditch reaction to the surprise and stress, an attempt to disarm himself and defuse the situation. It was almost certainly not an attempt to shoot the Officers.

Officers did try to employ good tactics in evacuating the store, but did not pay attention to the details necessary to correctly implement those tactics, such as first establishing who Scott was and where he was so that the evacuation could isolate him, rather then compel him and every other shopper to leave en masse. In police work, Officers dealing with dangerous situations often have only seconds to think, decide and act. In this case, they had many minutes, by their usual standards a luxurious span of time. Yet the Officers did not use that time to observe Scott to form their own judgements of his behavior and intent. They did not use the time to positively locate his firearm. They made no affirmative attempt to separate him from the other shoppers. They did not have time for any concern for the positions of innocents before firing, or to consider safe backstops for their fire.

The Officers were never in control of the events; events controlled them, something that all Officers are taught is a worst possible outcome of any situation. Nor was Scott, who surely had no criminal intent, who almost certainly had no intention of harming anyone, in control of events. The sheer size and nature of the police response also contributed to the almost certain outcome.

(8) Officers overlook potential weapons on suspects every day of the week, however, all officers are taught to assume that if a suspect has one weapon, they have more. In this case, the officers had more than enough time and more than enough cause to search Scott thoroughly for an additional weapon. Their negligence in failing to find the .380 ACP Ruger pistol and its magazines, which any competent pat-down should have easily discovered, is disturbing and may speak to a variety of causes other than mere negligence, but insufficient evidence currently exists to venture a reasonable opinion. As the weapon was not a factor in this shooting, the police should be credited with bringing up an embarrassing detail in the Inquest, however, they may have done this primarily to more completely discredit Scott.

The analysis of this shooting is nearing an end. In the next, and likely final, update for the foreseeable future, we’ll explore where the case is, and what will likely happen in the next year or so. We will, of course, continue to provide updated information as it becomes available.