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Justine Damond

For the time being, the initial deluge of new information in this case seems to have slowed, which is generally the way of such things. In this article, I’ll take advantage of that relative lull to explain an issue that will largely determine whether any charges are filed–or should be filed–and the outcomes of any criminal or civil trial: the law of deadly force.

In article 2 of this case, Police Panic, I wrote of Officer Matthew Harrity’s attorney’s assertion of officer reasonableness:

Harrity’s attorney, Fred Bruno, told the Star Tribune ‘it’s certainly reasonable’ to assume any officer would be concerned about an ambush. He referenced the recent death of a New York City officer killed in her squad car.

Bruno is suggesting, given the nature of the call, it was reasonable for Noor and Harrity to suspect an imminent ambush, therefore, Noor’s response to those fears was equally reasonable. Attorney Robert Bennett, who is representing Damond’s family–Don Damond in America–has another opinion, as presented by The Guardian:

A US lawyer representing the family of Justine Damond, the Australian who was shot dead by police in Minneapolis, has hit back at claims the officer who fired the shots may have thought he was being ambushed. [skip]

‘She obviously wasn’t armed, was not a threat to anyone, and nor could she have reasonably perceived to be,’ he said.

He criticised the comment – made by the attorney for the police officer Matthew Harrity whose partner, Mohamed Noor, shot Damond – that it was reasonable for the officers to have believed that they might be targets of an ambush.

‘I think that’s ludicrous,’ Bennett said. ‘It’s disinformation … it doesn’t have any basis in fact.

As regular readers know, being unarmed is not always a significant factor, though it surely will be in this case. Bennett is correct in that the assertion has no basis in fact, given the facts we currently know, but was that a reasonable perception? Would any other competent police officer, given the same circumstances and knowledge, have done what Noor did? Read on, gentle readers, and see.

Knowledge: What did Harrity and Noor know? According to the only available transcript of radio traffic between them and the dispatcher, only this:

Squad 530 to 5024 Washburn Avenue South. Female screaming behind the building.

Police officers routinely receive calls like this. Such a call, particularly one unaccompanied by more complete information, would certainly cause an officer to be routinely cautious, but to think an ambush was imminent? Any officer thinking such a thing would be thought by competent officers to be irrationally paranoid and potentially dangerous. Remember that Noor and Harrity apparently did not ask the dispatcher for additional information. This may be because they were already present in the alley and could find no screaming woman, but according to present information, all they knew was given them by those two brief sentences.

The smart thing to do would be to approach the area with lights off, park some distance from the alley, and approach on foot, stopping frequently to take advantage of cover and concealment, and to look and listen, to orient oneself to the normal sounds and sights of the area. Rather than doing this, they elected to remain in their car, and according to Harrity, Noor drew his handgun and was holding it on his lap.

One other interesting factor is Harrity is apparently a “community service officer,” or was at some point in his one-year employment. Community service officers are normally not certified police officers. They are not armed, and normally work business hours, handling minor ordinance violations and public relations duties. It’s hard to imagine, if this were the case, why Harrity was in a police car with Noor, and why he was driving. Keep in mind I’m not certain of Harrity’s status, nor do I know MPD policy relating to community service officers, or whatever they may or may not call them. This too needs to be clarified.

Deadly Force: When is the use of deadly force justified? When necessary to immediately halt the imminent threat of serious bodily harm or death to self or another. The same principles apply to police officers and non-police citizens.

Andrew Branca, whose definitive book The Law of Self Defense, is must reading for anyone concerned about these issues, adds related criteria/concerns:

Innocence: the defender must not be the initial or unlawful aggressor. People engaging in mutual combat can’t claim innocence. Because they’re actively trying to harm each other with no way to tell how far the conflict will go, they’re not engaging in self-defense.

Police officers generally have the presumption of innocence. It’s their job to go into harm’s way, and they act under “color of law.” They can’t avoid conflict like most citizens can.

Imminence: This is another way of expressing the concept of jeopardy. One can’t use deadly force again a possible attack, or against an attack that might happen at some time in the future. The danger must be real, clearly about to occur–within mere seconds of occurring–or already occurring.

Proportionality: the threat can’t be of humiliation or minor injury. If the only thing in jeopardy is hurt feelings, even a slap to the face might not be proportional. A reasonable person–in this case, a reasonable police officer–must believe they’re facing a threat of serious–Branca uses the word “grave”–bodily harm. This is the primary factor where Noor is in real trouble.

Reasonableness: A reasonable person–again, in this case, a reasonable police officer–of the same knowledge, abilities and in the same circumstances would be compelled to use deadly force.

This is why attorneys are talking about what is “reasonable.” That will be the deciding factor in this case. Would a reasonable police officer do what Noor did? Consider too these factors, which can be applied in seconds, on the spot, to determine if deadly force is justified:

Means: Does an attacker have the means necessary to cause serious bodily injury or death?  This obviously requires any officer to clearly observe that attacker to determine precisely what sort of threat they represent.

Opportunity: Does an attacker have the opportunity to cause serious bodily injury or death?  Observation establishing means is a first step; this is the second. Are they close enough, or will they be close enough, within seconds, to cause serious bodily injury or death with the means at hand?

Jeopardy: Is an attacker acting in such a way, here and now, as to indicate to a reasonable police officer they, or another, are in imminent danger of serious bodily injury or death?

Mohamed Noor

This is where Officer Noor is in serious trouble. The courts, even the Supreme Court, understands that the reasonable citizen cannot be expected to be absolutely cool and calm and able to engage in extended intellectual reflection and debate when faced with imminent deadly danger. That necessary understanding does not, however, relieve anyone of the necessity of acting reasonably and properly in deadly force situations. This is particularly true of police officers.

The courts, indeed, all of us, expect police officers, by virtue of their training, their dispositions, and their experience, to be capable of making such decisions, on the spot, quickly and correctly. Were that not so, what would be the point of the expensive years of training and close supervision they are given? Why do police officers receive regularly updated training? Why do police agencies spend time and money carefully screening their officers to ensure they are psychologically fit for the unique stresses of the job?

In this case, the officers had absolutely minimal information, and were responding to a routine call, the kind of call that does not normally result in any threat to officers. Instead of approaching in an intelligent and tactically thoughtful manner, they chose to remain in their rolling steel cop container, limiting their vision, hearing, and ability to maneuver, and announcing their presence to potential attackers. Not a smart move if one is anticipating an imminent ambush.

Noor apparently drew his handgun and was holding it on his lap. It is difficult to second-guess this, however, drawing a handgun in a police vehicle is normally not done for obvious safety reasons. If an officer is reduced to drawing and trying to fire while seated in a patrol car, their tactics are sub standard, their options severely limited, and they’re in real trouble.

What happened next is still open to interpretation. Possibility 1: Damond approached and spoke to the officers, and for some unfathomable reason, Noor shot her through the open driver’s window. Possibility 2: the officers heard a loud noise of some kind, and startled, seeing Damond–some figure–approaching the driver’s door, Noor immediately shot her. Possibility 3: Driving down the ally, lights out, in nearly absolute darkness, Noor saw Damond “rushing” toward the police vehicle, could not so much as identify her gender–though he somehow determined she was “panicking”– but waited until she reached the open driver’s window to shoot her, firing in the face of Harrity, who was very surprised.

Let’s apply the four and three part tests to these circumstances.

Innocence: the officers were obviously acting, appropriately under color of law. They were doing their jobs in responding to a call for help. They were legitimately there.

Imminence: Under any of these possibilities, there is no indication of an imminent threat. Damond was armed only with a cell phone, and in one of these three possibilities, Noor could not see her clearly enough to determine gender, let alone a deadly threat. In the loud noise scenario, he shot the first person, or movement, he saw.

Proportionality: Obviously, a woman in her pajamas carrying only a cell phone does not justify deadly force, or any force, for that matter.

Reasonableness: Would a reasonable police officer, given the same knowledge and circumstances, have shot Damond? We had better pray not, for all our sakes.

Means: in any of these scenarios, Noor had no idea whether Damond had the means necessary to cause serious bodily injury or death.

Opportunity: while Damond was close enough to cause injury, without clearly identifying the means, this means nothing. A person standing at normal distance, conversing with a police officer, has opportunity, but nothing else.

Jeopardy: Damond was speaking with the officers, standing at the open window, or merely walking toward them. Under any of these scenarios, no reasonable officer would see jeopardy.

Mayor Betsy Hodges, who is not a Muslim (R)

Some have suggested Noor may have shot Damond because she was a woman wearing pajamas, and as a Muslim man, he was outraged. There is, for the moment, no evidence to support this contention, and one would think such attitudes would have been more than evident much earlier in Noor’s police career. Perhaps they were–there are three outstanding complaints about which we know little–but while political correctness is the rule in Minneapolis, there is no current, clear evidence of this kind of prejudice in this case.

What is certain, given the information currently available, is Noor, probably in blind panic, shot Damond without justification. No reasonable police officer would have done as he did. He cannot be excused by race, religion, victimhood, diversity, or good intentions, or police officers may shoot citizens whenever they feel threatened, regardless of the reality of the situation.

As expected, gun control advocates are seizing on this situation, as Powerline reports:

And newspapers are forgoing any race angle. In fact, the Washington Post published a long article on the shooting that doesn’t identify the police officer or mention the fact that he is a Somali. Instead, the Post focuses on the fact that a gun was involved, headlining: “‘AMERICAN NIGHTMARE’: Australians react to fatal police shooting in ‘very risky’ United States.” With race out of the picture, it’s all about gun control:

Nearly 9,000 miles away, in Australia — where lawmakers have passed some of the world’s most restrictive gun-control laws — people were struggling to make sense of Damond’s death.

‘Why on Earth did U.S. cops kill Aussie who called for help,’ the Courier-Mail, an Australian tabloid, asked on its cover.

‘AMERICAN NIGHTMARE,’ blared a headline on the front page of the Daily Telegraph, a Sydney newspaper.
The Australian government passed strict gun control legislation in 1996, after a gunman opened fire in a Tasmania cafe, then hunted down more people in his car, killing a total of 35 and wounding 19 others. The National Firearms Agreement banned the possession, manufacture and sale of all semiautomatic firearms and pump-action shotguns other than in ‘exceptional circumstances,’ notably military and police use.

The article goes on and on about Australia’s gun control laws.

Gun controllers always want to disarm the law-abiding, but allow the government (police, various other agents, etc.) to be armed. Their ultimate goal, of course, is to enable tyranny by preventing the people from resisting it. The irony is now that to scream gun control, they must argue for the disarming of the police. The smarter among them won’t do that, mostly, but will argue that the proliferation of guns in America somehow caused Damond’s death because guns. Logic is always a secondary, at best, consideration for such fascists.

A significant issue in this case will almost surely and ultimately be why Minneapolis has decided to hire police based on diversity, race, national origin and religion, rather than appropriate disposition, intelligence, and qualifications.