Sunday, June 30, 2019

Don't Get Shot: Dealing With Police During a Traffic Stop

March 6, 2014, Opelika, Alabama: Air Force Airman 1st Class Michael Davidson was travelling on I-85 headed to his next duty assignment at Seymour Johnson Air Force Base in North Carolina. While driving through the Opelika, Davidson (who was driving an SUV) lightly sideswiped a tractor-trailer so both drivers pulled over to report the accident. Coincidently, just prior to this accident the Opelika Police Department had received a phone call about an SUV driving erratically along I-85 and Opelika Police Officer Phillip Hancock was in the area attempting to locate the erratic driver.

When the accident call came in Officer Hancock quickly arrived at the scene and pulled up behind the two vehicles just as they both exited the roadway. The police dashcam shows Airman Davidson attempting to get out of his vehicle; however, because he had pulled his SUV off the road shoulder, the vehicle was tilted slightly to the right. This caused to door to close as the Airman tried to exit.

As he struggled with the door, Airman Davidson made a movement with his right arm that is similar to someone drawing a weapon--and apparently similar to removing a wallet from your back pocket since that is what the Airman was actually doing (see picture #1 below). However, as Davidson exited the vehicle, he held the wallet in an unusual manner in both hands, pointing toward Officer Hancock (see picture number #2). In the video, Airman Davidson looks exactly like someone pointing a weapon as though he was preparing to shoot.

#1: Airman Davidson Exiting Vehicle
#2: Airman Davidson Holding Wallet

Officer Hancock yells at Davidson to “Let me see your hands” two times before firing almost immediately (0.25 seconds) after he yells the second command. Officer Hancock fired two rounds within approximately 0.25 seconds, one bullet struck Airman Davidson in the lower abdomen and the second bullet struck the road next to Davidson’s right foot.

A furtive movement is a suspicion provoking movement that (under the totality of circumstances) is consistent with accessing a weapon, but is not reasonably consistent with doing something else. The totality of the circumstances is the key element in this discussion since Davidson was drawing his wallet, not a pistol. It would be a gross overreaction on your part to draw a weapon while standing in a cash register line at a store when the person in front of you reached for their wallet. Their actions would be consistent with paying for merchandise given the totality of the circumstances.

When dealing with an uncertain situation, it is perfectly reasonable for an officer to be acutely aware of the ability, or inability, to see a person's hands to ensure he is not clutching or reaching for a weapon. However, yelling show me your hands and then shooting when the person does exactly that is obviously problematic as we see in this incident. Officer Hancock yelling “show me your hands” provided Davidson no effective warning that he was about to shoot him. Davidson later stated that he was in fact showing his hands just as the officer commanded.

In this incident, Davidson’s movement with his right hand and then extending his arms while clutching his black wallet with both hands clearly made Officer Hancock believe that Davidson was holding a firearm and advancing toward him. How quickly can someone exit a vehicle and start shooting?

We did an experiment to determine how fast someone could do this. I exited my vehicle while simultaneously drawing my pistol from a strong-side holster and firing three rounds while advancing. From the time someone could see that I had a pistol in my hand until I began firing was a 0.81 second average time for five runs. My fastest time to begin shooting was 0.47 seconds. My average split time between shots was 0.20 seconds as I advanced toward the remote camera. (see video here).

Many studies have shown that the average person’s reaction time to a stimulus is between 0.70 and 1.5 seconds or longer depending upon the circumstances. Added to the reaction time is the time necessary to complete the physical action the stimulus requires (e.g. pushing the brake on a car or drawing a pistol).* As we see in my experiment, the time between your ability to recognize that someone has a pistol until that person begins shooting can be as short as 0.47 seconds.

Were Officer Hancock’s actions reasonable given the totality of the circumstances? Look at picture #3 below. The left picture is of Airman Davidson drawing his wallet; the right picture is me drawing a pistol.  Do the actions look similar? 

Drawing Wallet                          Drawing Pistol

In January 2017, the United States Court of Appeals for the Eleventh Circuit upheld a lower court's ruling that Officer Hancock acted reasonably when he shot Davidson. "After careful consideration and review of a video recording of the shooting, viewing the evidence in the light most favorable to Davidson, we conclude that a reasonable officer in Hancock's position would have feared for his life," the three-judge panel wrote in the ruling.**

The court’s decision hinged on a single issue: “whether, given the circumstances, Davidson would have appeared to reasonable police officers to have been gravely dangerous.” The Eleventh Circuit justices clearly believed that was the case.

Something people often misunderstand is that the law does not require us to make perfect decisions in a self-defense incident nor does it demand that the threat against which we defend ourselves be an actual threat. The law demands that you must have a reasonably objective belief that you are responding to an imminent deadly threat. Many states have an apparent danger clause which aligns with the concept that in a given set of circumstances, an antagonist’s furtive movement could cross the threshold of apparent danger in the mind of a reasonable and prudent person. If you wait to see the gun, you may well see what comes out of it as we demonstrated in our experiment.

If it later turns out that perception was mistaken, that’s legally acceptable so long as the perception was reasonable and therefore the mistake, a reasonable mistake. All of this is true even if it turns out that the perceived attacker never actually possessed a weapon as in this instance.

In a separate case with similar circumstances the Fifth Circuit held in Young v. City of Killeen, Tex.: "If Young's movements gave (Police Officer) Olson cause to believe that there was a threat of serious physical harm, Olson's use of deadly force was not a constitutional violation.... We hold that no right is guaranteed by federal law that one will be free from circumstances where he will be endangered by the misinterpretation of his acts." ***

So how should you conduct yourself during a traffic stop to lessen chances that your actions will be perceived as a potentially deadly threat?

 -- Stay in your vehicle. A well-known tactic of police killers at traffic stops is to quickly exit the vehicle and advance on the officer while shooting. Bank robbers, terrorists, and other felons have been doing this since at least the late 1970’s and probably much earlier. Although Airman Davidson probably did not know this, his actions mimicked this tactic.

 -- Roll down the driver’s window and place your hands on the steering wheel. Don’t worry about turning on an interior light—at night the officer will light up your vehicle with their spotlight anyway so this is unnecessary. However, your movement can increase the officer’s suspicion that you are doing something nefarious.  

-- Wait for the officer’ further instructions.

This was truly a tragic and very unfortunate event--nothing in this article should be see as placing blame on either Airman Davidson or Officer Hancock. Police officers don’t want to get shot nor do they want to shoot innocent citizens. In reality, both parties want the same outcome. Ensure that your actions cannot be mistaken for threatening behavior when you interact with the police during a traffic stop.

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** United States Court of Appeals, Eleventh Circuit. Michael Davidson, Plaintiff - Appellant, V. City Of Opelika, Alabama, Phillip Hancock, John Mceachern, Defendants - Appellees. No. 16-10857, Decided: January 17, 2017

Before Wilson, Rosenbaum and Jill Pryor, Circuit Judges. Michael Davidson was shot by Opelika, Alabama police officer Phillip Hancock just after exiting his vehicle alongside the highway. Davidson was unarmed. He survived the incident but was grievously injured. Davidson subsequently sued Hancock, Opelika Chief of Police John McEachern, and the City of Opelika for claims arising from the shooting. The shooting was undeniably a tragedy, but it resulted from the unique and lamentable position of Davidson's hands holding his wallet the moment before the shooting. After careful consideration and review of a video recording of the shooting, viewing the evidence in the light most favorable to Davidson, we conclude that a reasonable officer in Hancock's position would have feared for his life. Accordingly, we affirm the district court's grant of summary judgment based on qualified immunity in favor of Hancock on all claims. 

*** In Young v. City of Killeen, Tex., 775 F.2d 1349 (5th Cir. 1985), Carolyn Young brought a 42 U.S.C. § 1983 and wrongful death action against police officers and the City of Killeen for the shooting and killing of her husband David Young. The Fifth Circuit stated the material facts:

"David Young, with a friend, drove to a parking lot in an area of Killeen where they could buy marijuana. Officer Olson observed the apparent drug transaction between the two men in Young's car and a pedestrian. Olson directed his patrol car, with lights flashing, at the participants in the attempt to apprehend them. Olson successfully blocked Young by pulling his patrol car in front of Young's car. Olson left his car and ordered Young and his passenger to exit theirs. Young apparently reached down to the seat or floorboard of his car and Olson, believing that Young had a gun, fired his own weapon. The shot was fatal." 

The Fifth Circuit held that Mrs. Young could not recover under Sec. 1983, stating: "If Young's movements gave Olson cause to believe that there was a threat of serious physical harm, Olson's use of deadly force was not a constitutional violation.... The only fault found against Olson was his negligence in creating a situation where the danger of such a mistake would exist. We hold that no right is guaranteed by federal law that one will be free from circumstances where he will be endangered by the misinterpretation of his acts."

Sunday, June 23, 2019

Trespassers Will be Shot! Survivors Will be Shot Again!

19 April 2019. St. Paul, MN police were chasing a car thief when he crashed the car and took off running. Moments later, police heard gunfire and found Jalik Combs lying wounded in Vincent Trotter’s yard. Police identified Combs as the driver of the stolen car.

Combs apparently was not armed and allegedly said that Trotter told him to leave his property. Combs said he told Trotter he was leaving and started to depart when Trotter shot him. Combs was shot in the buttocks, forearm, and legs and received medical treatment for non-life-threatening injuries at a local hospital before police booked him into the Ramsey County jail.

Trotter had a sign in his home’s front window that said, “Warning” “No Trespassing, Violators will be shot. Survivors will be shot again!” Police questioned Trotter and eventually charged him with second degree assault with a deadly weapon.

Police likely charged Trotter because Combs was unarmed and the apparent locations of his wounds may indicate that he was leaving Trotter’s property. Although the sign in Trotter’s window probably didn’t affect the police decision to charge him, prosecutors will no doubt use it against him if he eventually faces trial.

Although Minnesota law does accept the use of force (not deadly force however) when the person using the force reasonably believes it is necessary in resisting a trespass, clearly Trotter’s use of deadly force is excessive absent other potentially mitigating factors that may exist and have not yet come to light.*

Minnesota Statute 609.065 outlines the use of deadly force as follows: “The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.” Place of abode refers to the actual dwelling and does not include land, detached garage, storage shed, etc.

Minnesota law, like that of most states requires that a person using deadly force must have done so in the belief that it was necessary to avert death or great bodily harm. That the person’s judgment concerning the severity of the danger must have been reasonable under the totality of the circumstances. And that the person’s decision must have been such as a reasonable person would have made in light of the danger perceived and the existence of any alternative way to avoid and (in Minnesota’s case) retreat from the danger.

Were Trotter’s actions in using deadly force reasonable? Probably not. There is no information indicating that Combs was presenting a deadly threat to Trotter nor that Combs was inside or attempting to enter Trotter’s home.

The law typically applies three criteria in determining whether an act is or is not reasonable:

    1. What would a reasonable and prudent person have done?

    2. In the exact same situation?

    3. Knowing what the actor knew at that time within the mainstream of convention and best practice?

Or phrased another way: Knowing what the actor knew within the standard of care that an ordinary person would exercise under the totality of the circumstances as viewed from the actor's standpoint.

It will be interesting to see if Trotter claims self-defense. Remember, self-defense is an affirmative defense and can be a 2-edged sword. To present an affirmative defense, you must admit that you did the act; however, you affirm that your actions were reasonable and that you were legally justified in taking such actions. The prosecution obviously disagrees and will be attempting to demonstrate that your actions were not reasonable nor legally justifiable and that you in fact committed a crime. If the prosecution is successful, your life has just dramatically changed.

As I have written in other articles, anything you post on social media, signs, or other communications can be detrimental to a claim of self-defense and have implications you would rather not have your defense lawyer try to defend at your trial. It is not hard to imagine Trotter's lawyer trying to defend against the following scenario:

    “Ladies and gentlemen of the jury, I present "exhibit A," a sign the defendant placed in the window of his home. According to the defendant, he shoots trespassers just like he shot his victim Jalik Combs. Since Mr Combs survived, did the defendant shoot him again? The defendant who, by his own warning sign planned to shoot trespassers used DEADLY HOLLOW POINT KILLER BULLETS from his AUTOMATIC ASSAULT PISTOL to shoot Jalik Combs innocently on Mr Trotter’s lawn. Was Jalik Combs trespasser that should have been shot? Killed?

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* 2018 Minnesota Statutes, 609.06 Authorized Use of Force, Subdivision 1.

Friday, June 7, 2019

Maintaining the Edge—How Much Practice is Enough?

A good friend and I recently explored the topic of how much practice—dry practice and range time—is enough to maintain acceptable levels of defensive shooting skill. I define acceptable skill level from a self-defense perspective as the ability to fire Sharp Shooter on an IDPA classifier, pass the FBI qualification, or achieve similar performance on a state or nationally-recognized course of fire (Massad Ayoob Group’s MAG 20 live fire qualifier for example).

My friend Steve is an IDPA six-gun Master (achieved with the original IDPA 90 round classifier) and his shooting skill level is well documented; however, as a result of medical challenges, Steve was effectively unable to practice his pistol skills for six months. In April 2019 he had recovered enough to begin practicing once again and we documented his progress over five practice sessions.

When he is at his peak, Steve can shoot master on demand on the IDPA 5x5. In the first practice session he wanted to assess his skill level. With no warm up, he fired high Sharp Shooter on the IDPA 5x5 classifier. Clearly his skills had deteriorated; however, he maintained an acceptable level of shooting ability despite no practice.

We then fired the old IDPA 90 round classifier and noted some deterioration in group size and resulting dropped points at the 15 and 20 yard strings. So while his self-defense performance at 10 yards or closer had not appreciably suffered due to no practice, his skills at longer distances clearly had. He also noticed that his ability to correctly draw was not as certain and he fumbled the draw more often that he would have under normal circumstances. Additionally, he was having some difficulty with his sight alignment and noticed a tendency to peek at the front sight and therefore shoot high on the target.

In the first practice session, we identified issues that Steve needed to address or improve. You improve your shooting skills with deliberate practice and the first step in deliberate practice is have a practice plan. Steve used this assessment to develop his deliberate practice plan.

Through documenting these practice sessions, Steve discovered that some skills deteriorated more than others. We recorded several of his shooting strings and identified specific issues that he is focusing on correcting. He identified his goals for improvement, broke down each specific movement or task necessary to accomplish the goal, and planned the next practice sessions.

In subsequent practice, we updated his deliberate practice plan based upon the progress he was making and adjusting for new issues that we discovered. We also shot drills specifically designed to address issues that Steve had identified in the initial skill assessment such as two shot draws, transition drills, 5x5s at varying distances, and others.

Steve’s skills began to improve (as you would expect) to the point where he now shoots high Expert on the 5x5 classifier and occasionally shoots Master. He still has not recovered to his pre-hiatus accuracy levels at greater than 10 yards; however, his abilities at 10 yards or closer are getting back to normal. Steve’s normal time splits between shots averages between .15 and .17 seconds with many splits much faster. By practice session three his average splits between shots was .16 seconds and he was able to keep the group in the IDPA zero down ring at 7 yards.

Steve is well on the road to re-sharpening his shooting edge. Steve has regained his trigger speed and overcome the fumbling issues associated with the draw. The arc of motion (and resulting group size) is a bit more challenging; however, as he continues to recover his strength and stamina and focuses on grip and stance this will improve.

Deliberate practice builds confidence. Real confidence comes from being able to consistently nail a qualification course, stage, or a drill and knowing that this isn't a coincidence but that you can do it correctly on demand. Real confidence is knowing precisely how to correct a problem or misstep because you have identified the key movement or physical factors that are necessary to correctly perform the action every time.

We can improve our shooting through specific exercises, standard tests (qualifier or classifier courses of fire), and drills using deliberate practice methods.

I still admire the IDPA classifiers--both the 90-round original and the current 72-round classifier. The team that put the current IDPA classifier courses of fire together captured the 10 major skills you must perform to shoot a match successfully. Conveniently, these are the same skills you should master to improve your defensive shooting skills.

They are:

-- Safely draw the pistol

-- Extend to fire

-- Execute precise shots

-- Transition between targets

-- Reload the pistol

-- Shoot the pistol unsupported with either hand

-- Turning then drawing the pistol

-- Moving while shooting

-- Shooting from cover

-- Moving from one shooting position to another

We can break each major task down into subtasks (that also must be performed correctly), then apply the deliberate practice methodology to hone our skills. We can improve many of these tasks through dry practice as well and thereby save our range time for tasks that can only be performed on the range.

Time is our most valuable commodity, and we will never have enough. If you're going to practice, you might as well do it right. How much practice is necessary to maintain your self-defense shooting skills? Perhaps not as much as we might imagine. If your goal is an acceptable level of self-defense shooting skills then modest dry practice with a periodic focused range session is probably enough. If you wish to improve beyond modest skills, then a planned practice regimen with specific goals and milestones is very helpful.

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