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.
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