In serious, complex cases—and officer involved shootings certainly qualify—the reports and recorded and transcribed interviews of the officers involved speak volumes.  But what speaks loudest is often not what officers say, but what they don’t write or say, and the methods used to conduct the investigation.  This update, and the two that follow it, deal with the only interviews made of the officers involved.  Despite there being more than 60 police personnel present at the Scott killing—more than the entire complement of many American law enforcement agencies, only a few officers were interviewed.  Their interviews were so short, so unprofessional–well, I’ll let the updates make the case. 

08-16-11: The Erik Scott Case: Update 14: The Officers Speak–Sort Of

Note To Readers: I’ve experienced a bit of difficulty posting this Update in its entirety, so I’ll be breaking it up into three separate posts, with 14.2 on 08-19 and 14.3 on 08-20. Sorry for the inconvenience, but on further reflection, this will probably make a long post more readable in the long run.

Every rational police officer lives in fear of being involved in a shooting. This is so for many reasons, but a few reasons haunt the nightmares of all competent, honest cops. No decent human being wants to take the life of another. Surely, police officers train to prevail in deadly force situations, perhaps even wonder how they would perform (do they have the right stuff?) but no sane person wants to kill others.

Beyond that primary reason, all police officers worry—with varying degrees of justification—that if they are involved in a shooting, no matter that it could be used in a police academy textbook as the epitome of a righteous shooting, their administrators might very well throw them to the wolves. They might do it simply because they don’t like them, or like Barack Obama, they never let a crisis go to waste. Police officers are strong-willed, assertive people, people used to being in control, people who don’t like to back down. They tend to make enemies, and none so vicious or lasting as fellow police officers, particularly higher-ranking officers.

Officers might also be thrown to the wolves due to incompetence. Not their incompetence, but the incompetence of higher ranking officers, people promoted not because of their demonstrated knowledge or excellence, but because they were too dangerous to leave on the street, or because they are political hacks willing to quietly, and without complaint, do administrative dirty work. Finally, they may be destroyed for political reasons that won’t manifest themselves until after the shooting. Perhaps the officer shot the wrong color person, or someone belonging to a minority or group currently enjoying some degree of influence and power. Perhaps the Chief or Sheriff will see political advantage in doing away with a “crooked cop,” whether that cop is crooked or not. For the rational, thinking cop, there’s just no way to know in advance with certainty that their agency will be competent and honest and will afford them the professionalism and protection they deserve.

Even in police agencies like Metro with powerful police unions and a long history of protecting officers involved in shootings regardless of the facts, no officer can be sure that they are safe. It is the very nature of a corrupt, highly politicized agency that introduces doubt. Being charged with a crime–particularly some form of homicide–is career ending for any police officer. If they are convicted and sent to jail, it’s likely life ending for nothing increases the status of any con more than killing a cop.

With this in mind, any detective investigating an officer-involved shooting (OIS) will take great care to nail down every possible detail. When they interview the officers involved, they will carefully and relentlessly question them about every possible issue and fact involved. They will leave no stone unturned, no question unasked. Because they will be making such interviews shortly after the shooting, they will have no idea whether the officers were completely justified or criminally liable, and they must approach the interviews with the primary goal of finding each and every fact, of revealing the truth, because they can have no idea what other evidence will eventually turn up and what it will mean. No investigator wants to go off half-cocked with an unsupportable theory of the case, a theory they’ll have to eat without ketchup later. They also know that any rational officer will eventually get smart—if they weren’t smart from the start—and lawyer up, so their first interview might well be their only interview. They’ll take the time—often hours—to go over every detail again and again, to make sure they get as much as they can and that the information they obtain is as accurate as possible. They have to keep open minds, but these things motivate them.

No final conclusions about exactly what happened will be made for weeks, sometimes months. It takes time to interview all of the witnesses. Interviewing witnesses invariably brings up information that makes essential re-interviewing some—or all—of the witnesses again. The greater the number of potential witnesses, the more time is involved. In many cases, merely finding all of the potential witnesses is a very time-consuming matter. It takes time for ballistics, DNA and other forensic tests to be done and the results compiled and interpreted in light of all of the other evidence. It takes time for the investigators involved to assemble and review all of the evidence and to come to conclusions supported by the evidence. It takes time for those conclusions to be reviewed by the upper levels of the agency, and time for them to come to a final decision.

It should also be noted that it is, in many states, a crime for anyone, including the original author/officer, to change a police report or document after it has been officially submitted. It is likewise a crime for any officer, higher-ranking or otherwise, to encourage anyone to change a report. Any additional information or corrections must be done by means of an addendum or attachment to the original report or document bearing the same unique identification number. Even where no law controls these matters, it is universal police practice. To do otherwise renders every police report or document suspect and liable to suppression in court.

In professional, competent police agencies, complex, politically-charged investigations take a great deal of time. There is no investigation as potentially complex or as potentially politically charged as an officer involved shooting that results in the death of a citizen. Commonly, only the most experienced, most capable investigators are assigned to such cases. Apparently not so with the Las Vegas Metropolitan Police. There is substantial evidence to indicate that their narrative, their official version of the case, was etched in stone within a few hours of the death of Erik Scott, and that the goal of Metro in the post-shooting phase of evidence gathering and analysis was not discovering the indisputable truth, but in supporting the narrative concocted shortly after Erik Scott died.

This update will examine the official Metro interviews of the officers involved. I will first summarize the very brief and incomplete interview transcripts, and then explain what is present, what has been omitted, and what all of that might mean.

OFFICER STATEMENTS:

(1) Date/Time: 07-10-10, 1640-1655 
Duration of Interview: 15 minutes
Officer WILLIAM MOSHER
. Interviewed By: Detective B. Jensen, Det. M. Wildemann. 
Also Present: Sgt. Chris Halbert and Police Protective Association General Counsel Kathy Werner-Collins (wife of PPA President Chris Collins—interesting coincidence)

SUMMARY:

Off. Mosher said that Scott—he didn’t use his name—was reported to have been under the influence of drugs, perhaps experiencing “excited delerium,” and could be “irrational and extremely dangerous.” He also said that store employees asked Scott to leave several times but he refused. He said after arriving, he went to the south exit of the Costco.

Mosher’s statement about how the evacuation came about is very confused. He speaks of talking with people about evacuating– suggesting that he ordered the evacuation–yet speaks of another unnamed officer doing it:

“”Um, that time, uh, based on the details of the call, and based on the situation with an individual with a handgun inside the business, and the threat to public safety that he posed, uh, officer began evacuating, ah, quietly evacuating citizens…”

Mosher said that Off. Mendiola arrived before he did and also positioned himself at the exit.

Mosher said: “Ah, myself and Officer Mendiola will be the only officers on scene at that particular time, ah, made the determination not to go in and engage the suspect, due to the fact that with his mental state, and then the handgun that he might cause a shooting inside the business…Uh, the business, or the security, security officers were communication with Officer Mendiola, stated the subject was still inside the business and still acting erratic and being uncooperative, and refusing to leave, and that he was in the center of the business.”

Mosher does not say whether he and Mediola had any idea where Scott was at any given moment, and the Detectives, amazingly, don’t ask. The telephone transcript of the 911 call indicates that the dispatcher was not giving the officers regular or accurate position updates. In short, the officers had no real idea where Scott was or what he was doing at any time and the detectives don’t bother to ask questions that might have clarified this important tactical factor.

Mosher said that a store employee (he apparently didn’t know Costco Security employee Shai Lierley’s name) pointed out Erik Scott to him, obviously after Scott walked right past him while leaving the Costco, though Mosher did not say this. Mosher did say that Lierley pointed Scott out quietly. Scott was unaware of it; Mosher did not have to confront him in the middle of a very large surrounding crowd.

In response to a question, Mosher said that Scott was in “…a very large crowd…” so he couldn’t tell if anyone was with him.

Mosher said: “At that time, ah, due to the crowded situation, I—the suspect with his back turned to me, I attempt to make contact. Ah, I don’t know if, I might of, I may have patted him on the back to try to get his attention and have him turn around, or I yelled at him. I’m not sure which I did ’cause it happened very quickly.”

The crowded situation made it essential that Mosher contact Scott at that moment?!  For any competent officer, the exact opposite would be true. When surrounded by a crowd of innocents, the absolute priority would be to do nothing at all to escalate the situation and to separate the potentially dangerous person—who in this case was showing no sign of danger at all—from that crowd.

In response to questions, Mosher said that he was at arm’s length from Scott and that Scott appeared “…somewhat startled.” I’ve no doubt Scott appeared startled. Who would not be in that situation? Mosher also said that Scott turned to face him and he saw “…a, uh, black semi-automatic handgun in his waistband.” Scott’s weapon was dull silver in color and was under his shirt. Mosher could only have seen an outline—if he saw anything at all—which suggested a handgun. He could not have identified anything about the handgun at that point.

Mosher said he had already drawn his handgun, and backed away from Scott to a distance of about six feet and told Scott to get on the ground. He said: “…but almost as soon as I gave the verbal command, he said ‘I have a gun,’ and reached into his waistband, making a furtive movement. And, ah, at that time he removed the, what, what appeared to be a black semi-automatic handgun from his waistband and pointed it in my direction.”

In response to questions, Mosher continued: “At that time, uh, fearing from my safety, the safety of other officers, as well as the safety of hundreds of citizens in the immediate vicinity, and being concerned there’d be an active shooter situation, uh, I engaged the suspect, uh, firing my weapon approximately two to three times to incapacitate the suspect. The detectives don’t bother to try to clarify how many rounds Mosher fired. This is a matter of some importance.

Mosher said that he handcuffed Scott, who was on the ground, saying that he was concerned that he might be wearing body armor or have “additional weapons on him,” but Mosher does not say that he actually searched Scott for weapons or body armor, or that he found either, only that he handcuffed him.

The following exchange took place:

Q: “In, ah, just prior to your shooting, were you, were you aware of what your background was, if there was people nearby, or anything that you could of injured by firing your gun?”

Mosher: “Uh, I didn’t observe any people behind him, just a, ah, open parking lot Ah, prior to the, ah, shooting there were a lot of people but they, ah, immediately began moving out of the way, as the situation unfolded.”

Q: “So you had a pretty, you had a pretty clear backdrop behind you.”

Mosher: Yes.”

Q: “At 12:47 in the afternoon. A lot of people around?”

Mosher: “Yes.”

Q: “Okay. What happened to his handgun, ah, after the shooting?”

Mosher: “Ah, his handgun, uh, it fell out of his hand, and landed on the ground in front of him.”

Q: “Okay. Was it in a holster or anything?”

Mosher: “It appeared to be a, ah, appeared to be a black semi-automatic handgun, possibly a .45, and it was in some type of a pancake holster. The type of holster that, ah, that you can take on and off your belt, ah, very easily.”

Q: “Okay. Did you move that gun at the scene?”

Mosher: “No.”

Q: “Do you know of anybody else that moved the gun?”

Mosher: “Not to my knowledge.”

The detectives try to prompt Mosher to recall Samantha Sterner’s behavior and statements, but he is quite vague and they drop that line of questioning. They also try to prompt him to say that radio traffic specifically said where Scott was carrying his handgun, but again, he’s vague and they drop that too.

The detectives try to prompt Mosher to paint Scott as obviously impaired, and this exchange takes place:

Mosher: “I felt that he was under the influence of some type of, ah, narcotics, and he seemed very excited and very agitated, uh, upon making contact with him.”

MW: “So the way he said it was not like, uh, and I’m just throwing this out here, he didn’t say, ‘Hey I have a gun.’ It’s more of an excited…”

Mosher: “Excited more. It was excited.”

MW: “…almost, is it almost a scream?”

Mosher: “It wasn’t a scream, but he seemed very excited, and very agitated about something at the time.”

MW: “Okay. All right.”

Mosher: “It made me, in my training and experience, to believe something wasn’t right.”

At this point in the brief interview, the detectives try to clean up things Mosher left out:

MW: “Okay. Uh, did you happen to pat him down after you cuffed him?”

Mosher: “I made a quick pat down of his, ah, lower immediate access, and then I made a determination, ah, not to, to further contaminate the crime scene after he was cuffed and, and after being cuffed, I didn’t see any movement, so I decided not to go further with the search at that time, a complete, ah, pat down.”

At this point the detectives prompt Mosher to imply that if Scott would have obeyed his commands, he would have been peacefully taken into custody. And again, the detectives try to prompt Mosher to clarify that Scott pulled and pointed a gun at Mosher rather than attempted to merely show him that he was carrying one. They ask where Scott’s hands were:

Mosher: “I don’t remember where his hands were exactly. I just remember it happened very quickly. I just remember him reaching for the gun.”

At this point, the detectives turn the questioning over to PPA attorney Kathy Werner-Collins. She tried to prompt Mosher to say that as an officer trained in crisis intervention that he was actually dispatched to the Costco in that capacity:

Mosher: “Ah, I would of tried to make it safe first, and establish some type, try to establish some type of dialog, in order to, ah, effect, ah, a safe, make the situation safe, and take him into custody safely.”

KWC:Um why did it not unfold in that manner?”

Mosher: “Uh, there was simply no time.”

KWC: “When you say no time, um, your, your initial commands to him were to get down on the ground, correct?”

Mosher: “Yes.”

KWC: “And at that point you would of tried to communicate with him verbally?”

Mosher: “Yes.”

Werner-Collins then prompts Mosher to say that he carries a Glock 21 .45 ACP handgun with a 13 round magazine and one round in the chamber. However, there is no further mention of exactly how many rounds remained in Mosher’s handgun after the shooting, or any additional details.

At the end of the interview Sgt. Halbert says: “I have something, if, if and when.”

One of the detectives—the transcript does not identify him—says: “It can wait.” Halbert replies “Okay,” and the interview ends.

ANALYSIS:

This interview is one of the most bizarre and jaw-dropping I’ve ever seen. First, consider that it lasts only 15 minutes. This is the interview of a police officer primarily responsible for killing a citizen only about three hours earlier, and it lasts only 15 minutes? During my police career, I routinely conducted interviews many times longer for far less serious crimes; every investigator I ever knew did. The lack of detail in this interview is simply amazing. Any of my past supervisors reading this interview would have been chewing enormous holes in my posterior for that failing alone (“This interview took you only 15 minutes?!”), and it would have been very unlikely that I would have ever been allowed to handle any important case again.

Every competent investigator understands that it is imperative that officers and other witnesses be interviewed, at great length and absolutely completely, as soon after the incident as possible. With time, memories fade or begin to change their shapes. People convince themselves that they saw things that did not happen or didn’t really see things that did. Conversations with others subtly change their memories. Before doing an interview, detectives must be as well prepared as possible, and must take copious notes, notes that will be essential in preparing for the interviews that follow.

Off. Mosher does not supply the kinds of simple details any competent police officer would routinely supply, and the detectives do not ask for them. They simply fail to ask the kinds and amounts of clarifying questions one would expect of any competent investigator, and I’m not talking about Sherlock Holmes kinds of deductions and inferences, but the kind of logical follow up questions Mosher’s lack of detail should provoke, particularly considering the nature of the case and the person being interviewed: Mosher is the one person most responsible for everything that happened. He is most responsible for Erik Scott’s death.

Mosher’s account is full of omissions, misstatements and contradictions, yet the detectives do nothing to clarify those problems. Mosher said that the dispatcher told him that Scott might be under the influence of narcotics and that employees told him to leave several times and he refused. The police telephone transcript and dispatch records indicate that the dispatcher did suggest there might be drug involvement and said that Scott was asked to leave only once, yet Lierley, the only person speaking with the dispatcher, did not tell her that. She apparently assumed it, and the drug involvement. Lierley told her only that Scott was acting “a little erratic,” “dodgity,” “fidgety,” and was “kinda talking loud to his girlfriend.” Despite remembering this with clarity, later in the interview, Mosher could not recall if the Dispatcher told him particularly where and how Scott was carrying his gun, allegedly because he was so busy paying attention to his driving.

Mosher adds, apparently remembering it at the last minute, that Scott was possibly exhibiting signs of excited delirium. The dispatcher asked Lierely about this, but Lierley did not confirm it, quite the opposite, and the dispatcher is not known to have transmitted that specific information to officers.

Mosher confirms that he and Mendiola were self-posted at the exit doors of the Costco and apparently that the evacuation was already underway when he arrived. He also confirms that there were, in his own words, “hundreds” of citizens leaving the Costco.

Mosher says that Mendiola was in contact with store security officers—the only possible person could have been Lierley—who told him that Scott was still inside the business, was still erratic and uncooperative and refusing to leave. Neither Lierley nor the telephone transcript confirm this account. In fact, when Mosher arrived at the door, Erik Scott and Samantha Sterner had not had any contact with store employees for some time, and were simply walking out of the store with all of the other customers who had been told to leave. Lierley was on the phone with the dispatcher and was clearly telling her that Scott was not behaving strangely and was simply walking out of the store with Sterner. There is no evidence at all that any store employee ever directly asked Scott to leave the store, or that being asked, he refused. In fact, when asked by Costco employees to leave, he did, just as every other customer in the store that day.

Mosher describes Scott, but confirms—by failing to say it—that Scott was so unremarkable that he walked right past him and Mendiola despite matching the description Mosher provided, and Mosher was not aware of him at all until Scott was already past him and heading for the parking lot at a normal walking pace when Lierley—whose name he did not know—pointed Scott out to him. Again, bizarrely, the detectives do not clarify any of this.

Mosher again confirms that Scott was among “a very large crowd,” and here Mosher suffers a remarkable lapse in memory. Mosher cannot recall if Scott is with anyone, which is significant in that Sterner repeatedly screamed at Mosher that Scott was no threat and begged him not to shoot, and she was standing within mere feet of Mosher. Sterner’s testimony is confirmed by multiple witnesses.

Clearly, Mosher is behind Scott, and both he and Scott are facing toward the Costco parking lot. Scott is walking away from him, walking toward the parking lot. Despite the crowd surrounding them, rather than allowing Scott to walk out of the crowd, into the parking lot where he could be safely approached and the risk to bystanders lessened or eliminated, Mosher acted impulsively and without regard for the tactical situation or the safety of the public.

Mosher said that due to the “crowded situation (?!)” he “attempted to make contact.” Mosher said that he either patted Scott on the back to get his attention or yelled at him. He couldn’t remember which because “it happened very quickly.” Mosher would have us believe that Scott posed a deadly risk to him, to the other officers and to the hundreds surrounding them, a threat so dangerous, so imminent that he had no choice but to immediately confront Scott. Mosher had to approach him then and there, yet all Scott was doing–by Mosher’s own account–was simply walking in a completely normal, unremarkable fashion to the parking lot. Scott clearly had no idea that the police were interested in him or considered him a threat. Mosher paid no attention to Scott as he passed him while leaving the store, and Scott paid no attention to him. So Mosher either patted him on the back or yelled at him–opposite ends of the “could I speak with you please, Sir?”—spectrum. And despite fearing for his life and the lives of everyone around, he positioned himself within arm’s reach of a man he felt represented an imminent threat of death to himself and the hundreds around him.

This alone is such a fundamental departure from police training and competence as to be stupefying. Officers are taught, over and over, that distance is life. Only putting distance, and when possible cover—materials capable of stopping bullets—between yourself and a deadly threat, can ensure your survival. No competent, rational police officer knowingly puts himself so close—within touching distance!–to a potentially deadly threat that he cannot clearly perceive a threatening movement or react in time to avoid or stop it.

Remember too that Mosher told the detectives only minutes earlier that he and Mendiola did not enter the store to confront Scott out of their concern for getting into a gunfight inside the store. However, Mosher apparently lost his concern for the public when they were outside the store and surrounding him and Scott was simply walking away from him, unaware of his presence or intentions.

Mosher said that he already had his gun drawn when Scott turned, and noticing Mosher—obviously pointing a gun at him—was “somewhat startled.” Imagine that. This is significant, as I’ll reveal in the next update which sums up the statements of civilian witnesses, that several noticed that the officers—certainly Mosher and Mendiola—had their weapons drawn long before they ever laid eyes on Scott.

Despite having no idea how he actually got Scott’s attention, Mosher says that he saw Scott’s handgun “in his waistband,” a handgun covered by Scott’s shirt. Mosher does not clarify this, nor do the detectives. This is an example of the remarkable lack of curiosity displayed by the detectives. What competent investigator would not clarify how it was possible for Mosher to have seen the handgun—and to be able to partially describe it—while it was under Scott’s shirt, and while he was quickly turning in response to whatever Mosher did to get his attention? Even if it was clearly exposed—and all evidence suggests just the opposite–Mosher could have had only a fleeting glimpse of it, yet this seems an unimportant detail to the detectives.

Mosher’s memory is equally vague regarding what he said to Scott, and the detective’s lack of curiosity continues in this. Mosher claims only to have told Scott to get on the ground, but the telephone transcript, including the audio version about which I wrote in Update 4, reveals Mosher—and possibly other officers–yelling only, and in this order: “Put your hands where I can see them now; drop it; get on the ground; get on the ground,” and all in one constant stream of screamed commands, obviously not in response to separate actions by Scott, as from the moment of the first word the officers say until the first round is fired, only about two seconds—give or take a few fractions of a second–elapse.

Consider what we know was said, what is clearly audible on the official record: There is no evidence to suggest that Scott’s hands were not visible—Mosher certainly can’t remember anything about their position—so why would it make sense to tell him to show his hands? And if his hands were not visible—instead of holding his Blackberry, which was found on the ground near his body—wouldn’t Mosher have been able to remember that? If Scott had not drawn his handgun until a fraction of a second before Mosher shot him, what would compel anyone to tell him to “drop it” earlier? And what sense does telling him to get on the ground, particularly considering the first two commands, make? Considering that all of these commands took place within less than two seconds, who would know what to do and when? Even if it was possible to process each individual command and begin to comply (the fastest humans can do this within about a quarter second—for most, it’s much longer), each command was interrupted by another command that contradicted the command preceding it, making response impossible.

(NOTE: Consider also that Erik Scott suffered from “Tanker’s Ears.” In other words, like many people who are subjected to loud and continual noises as a result of their occupation, Scott had difficulty distinguishing anything that was said in crowds. Due to all of my years involved in shooting, even with consistent ear protection, I too have this difficulty. When many people are talking simultaneously, even in restaurants, I have difficulty hearing what people at my table are saying. This will become even more important shortly.)

Yet Mosher says that in response to his command to get on the ground—which was actually said to Scott only fractions of a second before he was shot, Scott reached “into” his waistband, “making a furtive movement.” Mosher said that Scott pointed a “black semi-automatic handgun” in his direction.

Any competent detective who was trying to get all the facts, who was trying to discover the truth, would have had, at the very least, these questions for Mosher at this point:

Which hand reached? How did he reach? What do you mean by “into his waistband? In the front? The side? The back? What do you mean by “furtive?” (“Furtive,” in cop-speak, normally means stealthy or secretive, as in someone furtively trying to hide or dispose of drugs—it’s not a bold, alarming movement) Was his hand moving slowly? Quickly? When you say he pointed the gun in your direction, what, exactly did he do? Which hand was holding the gun? How was he holding the gun? Where, exactly was it pointing and when? What did he say? Did he utter a threat? Did he make eye contact? What was his facial expression? How did you know he presented a clear and imminent danger? Yet the detectives asked none of these basic, absolutely logical, simple yet vital questions.

The rest of the transcript relating to the actual shooting is formulaic, almost as if read, clumsily, from a stilted Hollywood B-movie script. Despite the fact that Mosher says he was worried that Scott might have another weapon or might be wearing body armor (under a t-shirt in Las Vegas summer weather?), he says nothing at all about actually searching Scott, merely handcuffing him.

Mosher is not sufficiently competent to speak to his backdrop when firing; he has to be prompted by the detectives, who, for a change, are relatively detailed in asking about it. Even so, Mosher blows it saying vaguely: “Uh, I didn’t observe any people behind him, just a, ah, open parking lot. Ah, prior to the, ah, shooting there were a lot of people but they, ah, immediately began moving out of the way, as the situation unfolded.”

The detective added: “So you had a pretty, you had a pretty clear backdrop behind you.”

Mosher replied: “Yes.”

We are asked to believe that Officer Mosher, who could not remember what the dispatcher told him about the location or details of Scott’s handgun because he was concentrating on his driving, who could not recall whether he patted Scott on the back or yelled at him because everything happened so quickly, who could not recall where Scott’s hands were, or what he said to Scott, yet who could see and identify a handgun through opaque clothing, took the time to ensure where the hundreds of citizens surrounding him were before he opened fire? He is correct about one thing: As soon as the officers opened fire in the middle of the crowd, people were indeed “moving out of the way,” as in ducking, running for their lives, throwing their loved ones to the ground and putting their bodies between them and the officers. I’ll address this in the analysis of civilian witness statements in future updates

And just what is a “pretty clear backdrop?” Does that mean that 25% of the crowd was in the line of fire? Only 15%? In police work officers either have a completely clear, safe backdrop or, absent having no choice at all, in a situation so dire that possibly hitting an innocent would be the clearly justifiable lesser of two evils, they do not shoot. There are no quibbles; they do not shoot. It is the detectives who prompt Mosher into this fuzzy standard of safety and they do not clarify beyond it.

And again, the detectives have to prompt Mosher, step by step, into telling what happened to Scott’s gun. Mosher just says it fell to the ground and the detectives have to prompt him into stating that it was in a holster by asking him specifically: “Okay. Was it in a holster or anything?” Mosher again gives a vague and factually incorrect answer, not even particularly describing the holster or its color, and again, the detectives are satisfied. Remember too that until the Detectives prompted him, he said nothing at all about the gun being in a holster. This too is a matter of some importance.

This is a real problem in this case in that Scott’s holster was an inside-the-waistband holster—not a pancake holster as Mosher said, which is a completely different type–with the rough side of the black-dyed leather visible. With this type of holster, all that is visible of the weapon is a tiny portion of the back of the slide including part of the rear sight—that only from a certain angle–and the grip of the weapon. Scott’s .45 ACP Kimber was dull silver in color with black grip panels. If Scott was holding it by the grip, as though to shoot Mosher, as he implies, particularly with everything happening so fast, the only thing Mosher could have possibly seen was the indistinct shape of the black holster. He could have seen nothing of the handgun, particularly if things happened as quickly as he claimed, and because of his unnecessary and reckless provocation and escalation of the incident in the middle of a large crowd of innocents, it did happen just that quickly. Mosher correctly identified the color of the holster, not the gun. He got the caliber wrong as well, and this only after he supposedly saw it after the shooting.

The detectives, while ignoring virtually every other detail, are keen to prompt Mosher to say that he was totally unaware of Samantha Sterner, who was standing right next to him begging him not to shoot Scott, until after Scott was down and dying or dead. Only then, according to Mosher, was he aware of her and what she was saying. While this is possible due to the “tunneling” effect officers often experience when under great stress (their field of vision actually narrows; they see and hear only what is directly if front of them), it again flies in the face of his purported ability to remember things obviously impossible for him to have seen and the many things he should have seen and remembered but did not.

The detectives are also motivated to prompt Mosher to portray Scott as under the influence of drugs. Remember that Mosher had only approximately two seconds to observe Scott face to face before he shot and killed him. Yet in those scant seconds, Mosher felt that Scott was under the influence of narcotics, was very excited and agitated, and in his “training and experience,” he believed that “something wasn’t right.” Remember that this is the man who couldn’t recall whether he patted Scott on the back or yelled at him, couldn’t accurately recall which commands he gave Scott—or how many–yet he, in two seconds, accurately diagnosed Scott’s level of drug impairment while simultaneously shouting commands he couldn’t recall, scanning the parking lot and hundreds of people to determine that it was a “pretty clear backdrop,” observed Scott well enough to determine that he was trying to shoot him (while incorrectly identifying the color and caliber of the weapon—a weapon he could not see because it was completely encased in a holster), and delivered two shots into Scott’s body–all of this within slightly more than two seconds.

They next prompt Mosher to remember that he patted Scott down after handcuffing him, but again, Mosher is vague and unsure, saying that he made “a quick pat down of his, ah, lower immediate access,” stopping then so as to preserve the crime scene. This is, to put it kindly, idiocy. Remember that Mosher said that he was worried about a second weapon or body armor, yet he only does a quick pat down of Scott’s “lower immediate access?” Just what is his “lower immediate access?” The detective’s utter lack of curiosity keeps them from asking. Normally such an odd, confused answer would automatically prompt any competent investigator to ask clarifying questions.

In all police training, safety comes first. This is drummed into officers from their basic academy onward. In such situations, officers ensure, first and foremost, that the suspect is no longer a threat, which means a complete and competent search, and if this in any way makes the work of crime scene technicians a bit difficult, too bad. Lives trump all else. For Mosher to suggest that with the smell of burnt gunpowder in his nostrils, looking at the bleeding Erik Scott on the ground before him, he had the presence of mind to think that he had better not search Scott, despite roughly handcuffing him, so as not to muss the crime scene, is absolutely ludicrous.

What is also very interesting is that the detectives don’t ask about Scott’s Ruger .380 LCP pistol which was supposedly found in his pocket, his second gun which was supposedly found in the ambulance on the way to the hospital, the gun which Mosher must have missed while searching Scott’s “lower immediate access.” It would be essential to have asked Mosher why he did not find this gun during his “search,” particularly since it was supposed to be in a pants pocket and would have been easily visible through the material, to say nothing of being easily recognizable as a handgun if Mosher had actually touched it. Metro’s narrative would have required that the officers—and certainly the detectives—were aware of that gun, which was supposedly found in one of Scott’s pockets at around 1315 in an ambulance, only a few minutes after the ambulance left the scene of the shooting enroute to the hospital.

An essential part of selling that part of the story is that Mosher missed it, making it possible for it to be found by a medic in the ambulance. Unless these detectives were just the sort of really sensitive, new-age kind of police who would never embarrass a fellow officer, there is only one explanation: They didn’t bring it up because when they were conducting the interview of Mosher, they had no idea if they could find it and use it as they intended. Remember that they were aware of the existence of the gun. Scott’s blood stained blue card (local handgun registration) was found in his billfold, which was given to them by a medic before they took Scott to the hospital. Scott always kept it in his right front pants pocket, which would have meant that he could only have carried the Ruger—and the spare magazine the police “found”–in his right rear pocket. In that pocket, no competent officer could have missed seeing it imprinting through Scott’s clothing.

The detectives did know that Sterner’s car had been searched in the Costco parking lot, despite the fact that it had no relationship to the events at the Costco. It was just one of hundreds of cars parked in the Costco lot. They had no reason to search it, but obtained Sterner’s permission while she was still in shock, and did not find the Ruger, which is the only logical reason they could have had for searching the car. They could not have found the Ruger in her car, but didn’t know that at the time.

The problem was that the police weren’t able to get into Scott’s home until about 1900 using the cover of the Public Administrator’s office to enter and to seize that gun and other items. Scott’s home had nothing whatever to do with the events at the Costco. There was no legal justification, no need to search it. So why were the police so desperate to do so? Why did they persist in trying to gain permission from Kevin Scott who had no legal standing to consent, from shortly after Erik Scott’s death until they finally entered the home?

Scott never carried the Ruger; he did not carry a backup gun. On the day he died, it was left, as it always was, in his home. The detectives did not ask Mosher about the gun because they did not have it when they interviewed him, and because they could not be sure they would find it to use as a part of the narrative. Mosher was completely unaware of the gun because he failed to search Scott, not out of fear of mussing the crime scene but out of dumfounded incompetence. The detectives, having no idea if they could find and use the gun, would have been very unlikely to have mentioned it to Mosher or anyone else unless and until they knew it could be found and fit into the narrative.

For those have not been following the case, the evidence suggests that Scott never drew his gun—even if he understood Mosher, he simply did not have the time—and that it was this weapon, his .45 ACP Kimber in its black inside-the-waistband holster that the medic found inside Scott’s waistband in the ambulance. Scott was taken to the hospital almost immediately after being shot. It was only then that the officers realized, to their horror, that there was no gun at the scene, only Scott’s Blackberry. The Kimber was hastily returned and placed at the scene, but there had to be a gun that the medic “found” in the ambulance. The medic knew it, the ambulance driver likely knew it, who could tell how many others they would tell? The police could not be sure that they would play ball. The police had Scott’s blue cards, they knew about the Ruger, which was perfect. It was small enough to be concealed in a jean pocket, and failing to find it would be stupid and dangerous, but much easier to explain than failing to find a full-sized 1911 pattern pistol. Better to appear to be incompetent than the alternative in this case. Recall, please, Mosher’s pitifully vague memory of any kind of a search of Scott after he was shot, handcuffed, unmoving and bleeding out.

Then they prompt Mosher into saying, again quite clumsily, that if Scott had only obeyed his confusing, contradictory, shouted commands within the second and a half available at the fastest possible human recognition and reaction speed, Mosher would simply have worked out the whole situation peacefully.

One detective makes a final stab at details, but only to try to solidify Mosher’s claim that Scott tried to shoot him, not to gather every possible detail. The best Mosher can do is say: “He goes in his waistband and comes out with a gun.” This despite the fact that all Mosher could possibly have seen—if he saw anything at all—was a black holster that completely covered Scott’s handgun. They keep trying, but Mosher can’t remember where Scott’s hands were, all he can remember is Scott reaching for something black (Scott’s Blackberry was black and ended up on the ground near his body) he thought was a gun but was actually a holster that would have prevented Scott from firing the gun (it completely covered the safety and trigger guard—Scott could not take the weapon off safe or reach the trigger) even if he wanted to.

At this point in the transcript, something very unusual happens. Kathy Werner-Collins, PPA attorney and wife of PPA President Chris Collins, is actually invited—by the detectives–to take over the questioning! I have never heard of such a thing. While it is not uncommon for police agencies to allow union representatives or attorneys to be present in interviews of officers, to allow them to participate in the investigation by questioning the officer is simply bizarre. No rational attorney should have any part of such a thing as it removes them from their role as attorney, breaches attorney-client privilege, and makes them a witness, a witness who may be called to the stand to testify about the questions they asked and answers they received as well as their motives in asking them.

That said, Werner-Collins tries to rehabilitate Mosher to portray him as a sensitive, caring kind of guy who was only trying to establish a meaningful dialogue with Scott, but again, things just happened too darned fast for Mosher to non-violently save the day.

Things get really strange when Werner-Collins does the detective’s job for them and gets the only vague details about the gun Mosher used to kill Scott on the record. The detectives, displaying their usual competence, do not question him about it at all. They don’t ask what he did with it after the shooting, who took the gun and spare magazines from him (as far as we know from this interview Mosher still has them; they were never entered into evidence) when that happened, or any of the absolutely essential details necessary to establish that Mosher did not in any way tamper with that vital evidence after he shot Scott. This is Basic Investigation 101, yet they totally ignore it.

It would be interesting indeed to know what Sgt. Halbert wanted to ask Mosher, because the detectives cut him off the record. I suppose that’s understandable, as Officer Mosher had already been subjected to 15 whole minutes of grueling interrogation and may have been on the verge of exhaustion.

This entire interview makes little sense. It makes the detectives look like rank incompetents. It makes Mosher look barely sentient. It does not provide real, indisputable—even plausible–grounds for shooting Erik Scott. Mosher does not clearly explain why he had to provoke a deadly force encounter in the middle of a crowd of hundreds (by his own estimation), nor do the detectives ask him to explain it. It ignores an incredible number of important, indispensable details. Considering the gravity of the situation, it simply isn’t even remotely long enough to be a competent interview.

Unless, that is, it was designed not to be a competent interview, but to solidify and fulfill a narrative that was already mostly completed. For that narrative, this checklist would be sufficient:

(1) Dispatch said Scott dangerous/drugged, possibly involved in crimes? Check.

(1) Scott drugged? Check.

(2) Officers forced to act in middle of huge crowd because Scott so dangerous (by walking normally toward the parking lot)? Check.

(3) Scott ignored officer’s clear commands? Check.

(4) Scott pulled, pointed gun at officers? Check.

(5) Officers heroically shot to protect themselves, public? Check.

(6) Gun on pavement by Scott’s body? Check.

(7) Handcuffed Scott? Check.

(8) Searched Scott (sort of and didn’t find anything, especially not a gun which we can’t mention right now anyway)? Check.

(9) Didn’t see Sterner (who was feet away, screaming at you not to kill Scott) until after you killed Scott? Check.

As you continue to read this update (14.2 & 14.3), remember this checklist and the narrative it supports.

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