What to do after a shooting part 2

[internet troll]

I’ve brought up the topic before with another case of the police shooting a good guy here. One of the things you need to have a plan for is what to do after a shooting when the police arrive. You might know you are the good guy..... but the police don’t and that can have bad consequences. The following is an example.

https://legalinsurrection.com/2019/0...ul-but-lawful/

Law of Self Defense: EJ Bradford Shooting “Awful but Lawful”
Posted by Andrew Branca Saturday, February 9, 2019 at 6:00pm

In this Case of the Week (COTW) we take a look at the “awful but lawful” shooting death by police of EJ Bradford in Alabama.

On November 22, 2018, an Alabama police officer shot and killed EJ Bradford Jr., a black male, while responding to a shooting in a shopping mall. It would ultimately turn out that Bradford was himself a good guy seeking to intervene against the person who was the unlawful shooter.

Given that Bradford was not a violent bad actor who needed to be shot, it is reasonable to ask whether the officer’s conduct was lawfully justified.

Yesterday, the Alabama Attorney General issued a report of their investigation and conclusions (report embedded at the bottom of this post). For purposes of this COTW, I’ll provide an outline of the relevant legal analysis framework and a summary of how the AG report determined the facts and how those facts aligned with the law to arrive at their conclusion.



Law Requires Reasonable, not Perfect, Use-of-Force Decisions

First, it’s key to remember that the law does not require us to make perfect use-of-force decisions, although that would, of course, be ideal. Rather the law requires us to make reasonable use-of-force decisions. It is permissible to make mistakes in your use-of-force decision-making, so long as those mistakes are reasonable mistakes.

This is true for both law enforcement and non-law enforcement use-of-force decisions.

This condition of reasonableness is one that matters because an unreasonable mistake that results in a death is pretty much the definition of manslaughter.

Reasonableness Assessed Subjective and Objectively

Further, reasonableness must be determined from both a subjective and an objective perspective. First, what matters is not what the facts actually were, but how those facts appeared subjectively to the person who used force. Second, we must consider whether an objectively reasonable and prudent person, possessing similar skills, training, and knowledge, and in the same or similar circumstances, would have shared that subjective perception.

With that framework in mind, let’s consider the facts as determined by AG’s investigation and described in the AG’s report.

Deadly “Black Friday” Sale

The police officer in question was on duty in the crowded “Black Friday Sale” shopping mall when he heard shots fired nearby. Unknown to the officer at the time, these shots were the result of one Erron Brown shooting a Brian Wilson, actions that took place outside of the officer’s sight. In response to the fired shots, the crowd of bystanders immediately began rapidly fleeing the scene.

Upon hearing the shots fired, the officer drew his service pistol. He almost immediately observed a male, later identified as Bradford, gun in hand in a firing position, moving away from the officer and closing on the apparent gunshot victim who was leaning on a railing and being assisted by a friend.

Everyone except Bradford (including the actual shooter) was moving rapidly away from the location of the gunshot victim. The officer perceived that Bradford, gun in hand, was an apparently continuing imminent deadly force threat to the gunshot victim whom he was nearing, as well as an imminent deadly force threat to other nearby bystanders in the mall, to to the officer himself, and to his nearby police colleagues.

The officer fired his service weapon at Bradford to neutralize this apparent imminent deadly force threat. Bradford was hit three times, with one round striking him in the back of the head and stopping him immediately.

Cop: No time for warning. Witnesses: Cop warned him three times!

Interestingly, when questioned the officer would report that he did not give Bradford any verbal commands before engaging him with fire due to the lack of time to do so. Conflicting with this was testimony from two separate witnesses, both of whom would tell investigators that they distinctly heard the officer order Bradford at least three times to disarm before the officer began shooting. This kind of inconsistency of evidence is not uncommon in high-stress use-of-force events.

Investigators from the Attorney General’s office would interview three additional officers and 47 other witnesses and would find no evidence substantively inconsistent with that already described.

AG: Shooting Was Awful, But Lawful

Given the uncontested evidence available to the officer at the time, and the officer’s need to respond to the apparent deadly force threat presented by Bradford in an extremely compressed timeframe, the AG concluded that the officer’s decision to use deadly force against Bradford under these circumstances was legally reasonable, both subjectively and objectively, even though that decision was literally mistaken. In other words, the shooting was awful, but lawful.

Again, we’re not required to make perfect use-of-force decisions, we’re required to make reasonable use-of-force decisions.

The report quotes from the 1989 U.S. Supreme Court police use-of-force case Graham v. Connor (a civil case, but that’s a subject for another day):

“[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

This is also often true, of course, for non-LEO use-of-force situations.

The AG’s report notes:

“Officer 1 was faced with such a ‘tense, uncertain, and rapidly evolving’ situation when he saw E.J. Bradford running with a gun towards unarmed persons, and his response to that split-second situation was reasonable and based on an appropriate level of care for innocent lives.”

Again, the same circumstances would be relevant in a non-LEO use-of-force analysis.

The AG’s report concludes by stating that because the officer’s use-of-force was reasonable under the circumstances it was therefore justified and not criminal, and thus, the AG was barred from seeking criminal charges against the officer.

Caution! Awful But Lawful Is Not Uncommon

A closing observation: This kind of “lawful but awful” shooting happens with some regularity, folks, especially in chaotic defense-of-others scenarios. This time it was an officer reasonably if mistakenly shooting a civilian good guy. I’ve seen plenty of cases involving one officer reasonably if mistakenly shooting another officer. Sometimes it’s one civilian reasonably if mistakenly shooting another civilian.

Gunfights are dangerous, folks. When you get into a gunfight, there’s a meaningful probability that you will die. You might die because you’re hit by a bad guy’s rounds, by a responding officer’s rounds, or by the rounds of another law-abiding gun owner who is trying to do the right thing just like you. Alternatively, it might be you who reasonably but mistakenly takes the life of another innocent party, thinking all the while that you’re targeting the bad guy.

I’m not telling you not to intervene to protect others. That’s a call only you can make under the circumstances as you believe them to be. I’m only urging you to know the law, to understand how that law is applied to these kinds of scenarios, to make that decision whether to intervene in an informed manner, to think about these decisions today, and ultimately, to be sure the stakes are worth the risks.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

[Just1more]

I have Andrews book and planned on starting to read it this weekend. I found a YouTube of him discussing firearm insurances and it was very enlightening and disturbing to realize what we would be dealing with - even if a completely legal act of self defense.

[JenniferG]

I tend to think if you have to discharge a firearm to protect yourself or others in a public venue such as a mall or store it is best to do it from cover and if that's not possible then take cover as soon as it is possible to avoid being mistaken as the perpetrator. Let the police know that you will disarm and come out from cover once they arrive and engage the situation. Take your time, everyone's nerves are on edge assume you are being targeted by an incompetent or overzealous police officer and give yourself a way out if fired upon. Don't take or acknowledge conflicting orders from the police. Make them understand you'll only take orders from one competent officer and only take orders from that one officer. This is my take and your mileage may vary.

[PAcarrier]

I tend to think if you have to discharge a firearm to protect yourself or others in a public venue such as a mall or store it is best to do it from cover and if that's not possible then take cover as soon as it is possible to avoid being mistaken as the perpetrator. Let the police know that you will disarm and come out from cover once they arrive and engage the situation. Take your time, everyone's nerves are on edge assume you are being targeted by an incompetent or overzealous police officer and give yourself a way out if fired upon. Don't take or acknowledge conflicting orders from the police. Make them understand you'll only take orders from one competent officer and only take orders from that one officer. This is my take and your mileage may vary.

@JenniferG, I think your suggestion is brilliant. Looking back at the hallway kid/guy who was given numerous conflicting orders from the same cop and subsequently shot dead because he was so nervous as a result, I guess I wonder the best way to make your suggestion a successful reality.

Ever since I saw that video footage, I've been concerned about if I (or Mrs PAcarrier) was in a similar situation. The only police encounters I've ever had were either completely friendly and casual or based on speeding. None of those were negative or had me proned out. I've always been respectful of the badge, even if the guy behind it was a jerk.

Stress, adrenaline, personality types and extreme tunnel vision for everyone involved could make this a time-sensitive threading the needle exercise, at least for the person with all guns trained on them. Do you have any practical thoughts for implementation/practice, or is there somebody who trains to this? Again, I think it ought to be the right way of doing things, just concerned that the other guys with guns may not have received the memo.

Welcome your further thoughts on this...

Thanks in advance.

P.S. Sorry I can't offer rep. Apparently, yours was one of the last ones. If I could, "Brilliant suggestion!"

[lts1ow]

IMO, this is why it is never ever wise to inject oneself into a fluid situation like this.

Primary mission is always to get home to family, anything that puts that at risk would need some serious evaluating.

[JenniferG]

@JenniferG, I think your suggestion is brilliant. Looking back at the hallway kid/guy who was given numerous conflicting orders from the same cop and subsequently shot dead because he was so nervous as a result, I guess I wonder the best way to make your suggestion a successful reality.

Ever since I saw that video footage, I've been concerned about if I (or Mrs PAcarrier) was in a similar situation. The only police encounters I've ever had were either completely friendly and casual or based on speeding. None of those were negative or had me proned out. I've always been respectful of the badge, even if the guy behind it was a jerk.

Stress, adrenaline, personality types and extreme tunnel vision for everyone involved could make this a time-sensitive threading the needle exercise, at least for the person with all guns trained on them. Do you have any practical thoughts for implementation/practice, or is there somebody who trains to this? Again, I think it ought to be the right way of doing things, just concerned that the other guys with guns may not have received the memo.

Welcome your further thoughts on this...

Thanks in advance.

P.S. Sorry I can't offer rep. Apparently, yours was one of the last ones. If I could, "Brilliant suggestion!"

If it were me in that position and I didn't understand the conflicting orders I wouldn't have moved an inch until that obvious dimwit calmed down giving the orders. He would have had to shoot me where I was laying because I wouldn't have budged until proper communication was established and let everyone take a breath. Those cops should be serving time behind bars for shooting that kid.

[Walleye Hunter]

I'd love to see seminars and instruction on such events. As much as I might like to stop a bad guy out in public if I encountered one, that old rule, "no good deed shall go unpunished", will most likely apply.

[internet troll]

I'd love to see seminars and instruction on such events. As much as I might like to stop a bad guy out in public if I encountered one, that old rule, "no good deed shall go unpunished", will most likely apply.

I did attend a seminar by Gunlawyer a couple of years ago. He did address the topic to get you thinking about the ramifications of getting involved in a situation.

[PAcarrier]

If it were me in that position and I didn't understand the conflicting orders I wouldn't have moved an inch until that obvious dimwit calmed down giving the orders. He would have had to shoot me where I was laying because I wouldn't have budged until proper communication was established and let everyone take a breath. Those cops should be serving time behind bars for shooting that kid.

Thanks. That makes a lot of sense. And I agree about the cop.