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."

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