September 27, 2010

The Erik Scott Shooting: Update 3.2

The next installment of this series, Update 4, which will analyze the 9-11 transcript presented at the Coroner’s Inquest (a visit to regarding that inquest is worth your time) and a partial radio transcript will be posted later this week, but so many commenters have raised excellent questions, as they so often do, that answering those questions may serve to clarify portions of the earlier updates and to further enlighten future updates. Consider this post Update 3.2.

Please keep in mind, gentle readers, that all that we can do in this series, and all that we are trying to do, is to provide informed background and plausible analysis using the facts and testimony generally available to the public. We can, upon occasion, break new facts and details not generally available, and we can make reasonable inferences based on those facts and details, but what we will always do our best to avoid is unreasonable literary bomb throwing. If the facts, and the reasonable inferences drawn from them, indicate that the police (or any other party) are wrong, we’ll make that case and explain why we believe it’s so. But no one should expect blanket pronouncements of malign intent, murder and mayhem unsupported by fact or reason.

Several commenters have been concerned about the police and their tendency toward perjury. Incredibly obvious and predictable disclaimer: Because the police are severely handicapped in hiring by being restricted to the human race, it is always possible that some police officers will behave inappropriately. They should not, but they do. That said, consider that the majority of arrests made by any police officer (did you know that a traffic ticket is an arrest?) are misdemeanors, offenses routinely settled without jail time by small fines. Perjury, on the other hand, is commonly a felony virtually everywhere. My experience teaches me that few officers will risk not only their reputations but their careers and potentially, their freedom, when so little is at stake. The other side of the coin is that when a great deal is at stake, when their reputations, careers and freedom might hang in the balance, perjury might become more likely. Such is the reality of human nature. Police officers are routinely accused of perjury. Have you ever heard anyone say: “Yeah, I got a speeding ticket today and the officer was completely justified in giving it to me?” I thought not. Should perjury be discovered and punished? Of course, but that’s a matter for each law enforcement agency and each community. If a given agency is rotten, community elected officials have the power to clean it out. If the elected officials refuse, citizens have the power to periodically clean them out. If the citizens refuse, they’re making a choice by not making a choice.

Information from another commenter suggests that Erik Scott’s handgun was removed from his waistband holster by an EMT and placed on the ground. I’m unsure if that commenter meant to say that an EMT removed the handgun, still in its inside the waistband holster, and placed it on the ground. According to the commenter, this information comes from an EMT’s report of the incident, which apparently has not been made public, nor was it introduced during the Inquest. The photograph displayed during the Inquest depicts a 1911 type handgun in a holster which the police said belonged to Scott and was photographed in place. I’m unaware of specific testimony regarding how it came to rest there, but the implication in line with the Police/Prosecutor theory is that Scott himself removed the weapon from his waistband at his back, holster and all, pointed it at the officers and dropped it at some point during the shooting.

If this is true, another bizarre and inexplicable element has been added to this case, so bizarre and inexplicable that I tend to discount it. If true, this means that after shooting and handcuffing Scott, the officers failed to disarm him, failing to remove even the weapon known to them. In other words, having, seconds earlier, apparently survived a deadly force encounter, the officers, through negligence, did nothing to remove all possibility of deadly, continuing danger to themselves and others. All available facts suggest that any officer handcuffing Scott should not have failed to detect his handgun, imprinted under his shirt, or partially exposed. Failing to remove and secure it would indicate such gross incompetence on the part of the officers that it is hard to believe and would require substantial proof to sustain, proof such as an EMTs report made public accompanied by that EMTs testimony, hopefully supported by the testimony of other EMTs. On the other hand, if it is true, the Police/Prosecution theory falls entirely apart. If EMTs found Scott’s handgun, in its holster still in his waistband after he had been shot and handcuffed, the officer’s claim that Scott pointed that weapon at them is, to put it very, very kindly, mistaken.

Another interesting tidbit is that the police have said that Scott was carrying two weapons, and at least one media outlet has indicated that “a second gun was found on Scott” by EMTs at some point in their contact with him, but I’ve not been able to find any details about just what that second weapon was, its chain of evidence, or how, if at all, if might have figured in this case other than to reflect very poorly on the officers involved whose search of Scott, post shooting, was apparently less than thorough. If he was carrying a second weapon, it’s unusual that it was apparently not prominently mentioned at the Inquest as it could potentially be used to depict Scott even more unfavorably. On the other hand, if the police did miss it, and an EMT did find it, that would tend to make the police look less than competent.

There is, given the information available, another (but not the only) plausible possibility. Confused by rapidly shouted, conflicting commands, Scott tried to disarm himself, reaching behind his back and removing his handgun, still in its holster. Evidence suggests that he may have done this, even telling the officers that he was disarming. Considering this scenario, what remains unknown is when the police began to fire. Did the mere downward movement of his raised hand trigger their fire? Did they wait until his hand disappeared behind his back? Did they, seeing something that might have resembled a gun (in this case, in its holster), appearing from behind Scott’s back even though it was not pointed in their direction, open fire? The Police/Prosecution theory requires that Scott remove the weapon from his waistband and, at some point, drop it. Unfortunately, that weapon was clearly still in its holster.

Several commenters have suggested that it did not matter, in making a deadly force decision, whether the weapon was or was not in its holster. If it was pointed at the officers, they had lawful justification to fire. This is a common scenario in shoot/don’t shoot training videos which one can reasonably expect that officers of a major metropolitan agency have experienced. Officers are expected to deal with exactly this kind of situation and train for it. Competent officers live in horror of shooting someone, even if completely justified, who turns out to have had in their hand a billfold or other item rather than the handgun the officer thought was there. Officers are expected to accurately make these distinctions before firing. Because they practice these scenarios, officers should be able to tell the difference, by observing a variety of factors, between someone trying to disarm or show them something, or someone in the drawing sequence of bringing a handgun on target from a holster. Officers do this successfully every day and untold thousands of citizens are alive because of their training and their ability to make these distinctions. To suggest that officers have no such duty would have disastrous consequences for us all, freeing officers to shoot at the merest hint of, rather than at reasonably convincing evidence, of danger.

Another commenter observed that officers were trained to shoot until they have stopped the actions that gave them justification to shoot and that initial action--a suspect preparing to shoot--is always faster than reaction--an officer’s response. Both are true, but with qualifications. Not only are officers trained to shoot to stop, but may legally use any number of rounds reasonably required, so long as they were initially justified in shooting. However, they are also responsible for each and every round fired and the safety of innocents. How then does one determine when the suspect has ceased hostilities and that shooting should stop? By observation. Officers must indeed be sufficiently aware of any situation so as to briefly pause after firing several rounds to determine if more are required. That this might take a second or less is not the issue. The only reasonable alternative is that once an officer fires a single round, they must empty their magazine until they are forced, by lack of ammunition, to finally assess the situation as they reload. This is obviously lunacy, but what other practical possibility exists? Action is indeed almost always faster than reaction, but officers understand this, and accepting it, train to overcome, to the greatest possible degree, this inherent disadvantage. This is absolutely necessary to prevent officers from firing too quickly with insufficient justification. No, they don’t have to absorb a suspect’s first round before returning fire, but there is a substantial range of action/response between firing too quickly and not responding properly. An officer’s actions in that gray area will be judged later by those who are not under fire and have months to review decisions officers had to make in seconds. This too, police officers understand and grudgingly accept.

Another commenter wondered about how the officers involved might have handled the approach to the situation differently. Officers train for situations of this kind, and again, to be kind, the approach in this shooting (based on what is currently known) does not appear to be what one would find in a “how to” textbook. In potential shooting situations, the police are trained to do whatever is necessary to control and contain the situation, and to the greatest degree possible, to protect the public. In other words, they should not do anything to provoke a fire fight in the middle of a crowd. Of course, bad guys don’t always give the police that option.

In this case, there is evidence to suggest that the police knew or should have known that they had the element of surprise. Apparently one or more officers were near the Costco entrance, perhaps even inside, and Scott and his girlfriend Samantha Sterner, walked past them. At that point, the police apparently did not know that Scott was the suspect they sought, and his behavior was obviously unremarkable to those officers. Update 4 will provide additional details about this, including the fact that Shai Lierley, the Costco security employee was apparently following Scott in the store, keeping him in sight while relaying Scott’s actions in real time to a dispatcher by cell phone. The police did know, for one of the first officers on the scene had ordered the evacuation, that all of the Costco customers were trying, simultaneously, yet in an apparently orderly manner, to leave the main doors of the store. At some point, a store employee pointed to Scott, essentially yelling “there he is!” This was apparently the first moment that the responding officers knew that Scott was their suspect, and the officers, exposed and caught by surprise in the open, with many innocent citizens in the line of fire, drew their weapons and the deadly confrontation began.

What should the officers have done? Remember, please, that I do not have a diagram of the Costco store and parking lot and that many of the details that I, or any competent tactician would need to render a truly informed opinion are, at this point, unavailable. However, common police training and experience do suggest a better (though not the only possible) approach.

Without being able to recognize the suspect on sight, and knowing only that he was still inside the store and was not actively, continuously violent, maintaining the element of surprise by silently approaching the store (which may have been done), parking police vehicles out of sight of the front doors, and keeping uniformed officers out of sight would have been wise. In a parking lot full of cars, this would not have been difficult. Calling in plainclothes personnel such as detectives or administrators would have also been wise if time permitted.

The next (in fact, a continuing) concern should have been knowing where Scott was and exactly what he was doing. As a field training officer, I always taught my trainees to, whenever possible, observe an animal in its natural habitat for a time before interacting with it. The officers should have identified Scott, kept their presence concealed and watched him for as long as possible. Absent an active shooter situation, which this clearly was not, this is almost always the smart thing to do. If, as this situation clearly indicated, Scott was unaware of the police and was showing every intention of simply walking to his vehicle, they should, while keeping him in sight, have allowed him to do just that. Why? To learn as much as possible about his state of mind and intentions through direct observation, to possibly locate his handgun, to minimize the possibility of a potential hostage situation and to separate Scott from the hundreds of customers streaming out of the store with him. Once Scott was in the parking lot, perhaps with many empty cars as a safer shooting backstop for errant rounds, only then should he have been confronted. Following this procedure would not only have been safer for the public, but would have allowed officers to maintain control of the situation, and to direct additional officers to keep citizens out of the line of fire as Scott was confronted.

A commenter suggested that Scott might have been brought under physical control by officers, and this is a possibility, but in order to work, the take down must have been a total surprise allowing Scott no time to react--as anyone might react to being rushed or grabbed by several people by surprise--before the officers could take physical control of him, identify themselves, and with luck, allow him to relax and be disarmed. This could have been a viable option, but again, allowing Scott to separate himself from the rest of the crowd before taking any action should have been high on the officer’s priority list. Unfortunately, what is known suggests strongly that the officers were completely surprised by Scott’s appearance at the door, and caught in the open, immediately drew down on Scott and began to yell conflicting orders.

Interestingly, Metro Capt. Patrick Neville has said that none of the customers were ever in danger from police fire as the three officers ensured that a pillar that supported a canopy was the backdrop for their fire. To observe that this is, again to be kind, fanciful, is an understatement. Such a pillar could have scarcely been much wider than, if as wide as, a human torso, and would likely have been made of concrete, structural steel, or some combination of the two. Rounds striking it would not have been absorbed, but deflected at unpredictable angles. The only possible way that such a construct could have served as even a dangerous backstop is if it was directly behind Scott in a straight line with the officer’s fire, which would have to place them actually closer than shoulder to shoulder as they fired in order to ensure that each missed round fired struck the pillar dead center at an exact right angle to minimize the risk of ricochet. This is, of course, practically impossible. God forbid that any of them were behind the others as they fired (the potential consequences of that should be obvious).

One of the larger problems for the police will be exactly how many rounds were fired, by whom, and where did each round come to rest? The police have acknowledged only seven rounds thus far and all were reportedly hits on Scott, none of which exited his body to strike anything else. At least one round, however, seems to have been a rather miraculous shot. As Update 3 pointed out, this kind of accuracy, while possible, is against the laws of probability. The idea that three officers, caught by surprise and engaging seconds later in a firefight would have the presence of mind to simultaneously pick out a pillar in the background, realize that it would serve as an appropriate bullet stop, and/or maneuver so as to place it at the termination of their line of fire, is utter, after the fact, dissembling nonsense. These issues should be pursued by the local media until they are convincingly and honestly answered or refuted.

Finally, for this update to an update, a commenter took exception to my assertion that we want police officers to be type A, adrenaline fueled personalities. Please allow me to elaborate. Police work has been said to be, quite accurately, 99% boredom and 1% sheer terror. Any police officer who will not admit to having been scared should be immediately suspect. All sane officers are, from time to time, scared. However, they are scared so often that they learn how to effectively control and channel that fear, that adrenaline that all humans experience as the fight or flight response to danger, or they leave police work. We do indeed want our police to be aggressive, apparently fearless, brave and assertive, but we expect them to be calm, rational, humane, analytical and right 100% of the time. Special forces soldiers must possess essentially the same personalities. They are commonly known as the quiet professionals. So it is with the police. They have an extraordinarily difficult job that makes extraordinary demands on them, demands that few human beings would want to experience or could handle. Yet, they know all of this and accept it. We honor them by demanding that they adhere to the highest standards of their profession and when we do not, we dishonor those who do.

Confederate Yankee will post Update 4 later in the week.

Posted by MikeM at September 27, 2010 06:36 PM

From this:

It says:

"Late Monday, Metro homicide detective Peter Calos took the stand to talk about the firearms Scott was carrying the day of the shooting. Det. Calos showed the jury Scott's Kimber .45 that was found at the scene of the shooting. Calos also showed the Ruger .380 handgun found in Scott's pocket as he was being transported to the hospital."

Posted by: Skip at September 27, 2010 09:12 PM

In the ambulance, he found a small handgun in Scott’s right pocket and some ammunition clips in his left pocket, Thorpe said. Those items were immediately given to the police officer who accompanied them in the ambulance.

Posted by: Kevin at September 27, 2010 11:20 PM

Regarding the high hit rate - You also notice the delay in the shots on the tape. It's not usually difficult to shoot a person laying prone and immobile several feet in front of you when you take an extra second to aim. It's kind of difficult to see how else he could have been shot unless he was prone.
12:25 p.m.
Dr. Alane Olson, a medical examiner at the Clark County Coroner's office...

She said five of the shots entered his back and two entered the front of his body. One of the bullets entered his buttocks area, traveled up through his bowels and lodged in his chest.

Posted by: Kevin at September 27, 2010 11:34 PM

"She said five of the shots entered his back and two entered the front of his body."

Sounds like he was shot from the front twice, went down, and was shot 5 times more in the back while on the ground and likely incapacitated.

Posted by: JTW at September 28, 2010 03:37 AM

I'm a former LEO and feel some qualification to speak to the issue.

I believe Costco is at fault for enforcing an unpublished policy. The Costco caller failed to mention this to the dispatcher nor did the dispatcher ask. Costco employees even designated Mr. Scott for the police.

The dispatcher is at fault for failing to ask if caller has a published concealed weapons sign and if the subject claimed to have a CCW.

The performance of the three officers would be comedic were it not for the consequences. In the initial moments of the encounter, the conflicting commands indicates a profound lack of appropriate training and policy. In other words, when they encountered Mr. Scott, no one was in control giving orders nor did they have a standardized response for such orders. It would also appear the officers were lacking in knowledge of the laws they were sworn to uphold.

I'm sorry but Mr. Scott contributed to this. The proper response in the face of conflicting commands would be to stand still until the hysteria dies down then ask whom is in charge and suggest one officer take charge of his weapons from behind. The point is to de-escalate the situation to point where people are talking rather than shouting.

Posted by: Jerry in Detroit at September 28, 2010 08:54 AM

Jerry -
Based on the information so far, Scott was dead no matter what he did. Stand still; drop the gun; get on the ground. No matter which of these three conflicting commands he tried to obey, he was up for grabs by the other two.

LV police have a rich history of shooting people who weren't threats and then getting off.
And the fact that ALL of the available video from this latest episode has disappeared proves the premise.
Moral to this story? As obumble said, "Stay out of Las Vagas".

Posted by: emdfl at September 28, 2010 09:18 AM

I am a 20 year Las Vegas resident.I do not want an officer on my police force that cannot identify a holstered weapon from a drawn firearm. Officer Mosher also lied on the stand about how the gun in this holster is capable of being fired.There are no trigger holes on this holster,as he stated,"I own the same holster.For a revolver.It can be fired in the holster." These officers created a situation that threatened everyone in that foyers life.There were no reports of shots fired, branishing, or threatening with that weapon.God forbid that my teenage children answer a cell phone while recieveing a ticket or speaking with an Officer like this one.I do not believe all Metro Officers are this incompitent.There is no excuse for the way in which this was handled.

Posted by: JohnH at September 28, 2010 02:12 PM

To the author. Why, if these officers are suspect until the completion of this inquest,are they allowed to still carry their firearms?

Posted by: JohnH at September 28, 2010 02:28 PM

"Scott's postmortem blood test showed high levels of the painkiller morphine and the anti-anxiety drug Xanax. Calos testified that though Scott had a concealed-weapons permit, carrying a firearm while under the influence of drugs is a felony."

"Scott's wallet contained registration cards for seven guns, including the two he carried, and his concealed-weapon permit listing four guns, including the Kimber, he said.

The permit did not list a Ruger, but it did include a similar Keltec .380-caliber."

It should also be pointed out that one of pro-Scott witnesses was also a professional liar, a public defender, a welfare lawyer who steals money from taxpayers.

"Shopper Bettie Lou Travis, a senior citizen with a shock of white hair, said she saw Scott pull something from his side.

'Oh my gosh, he's going to pull a gun,' she recalled thinking after seeing him raise the weapon toward an officer."

So, did Bettie Travis contribute to someone that causes you to discount her statement? Is Bettie Travis a liar?

It appears that you and Erik Scott are setting the basis for the end of CCW in this country. Gun advocates used to brag that CCW holders were the most law abiding people, but now you are defending a drug using felon.

You will rue this day when real gun rights advocates and the public start to lose their rights due to the crazed actions of Erik Scott and his defenders.

She ducked after hearing gunfire.

Posted by: Federale at September 28, 2010 04:32 PM

I have not heard any testimony of a crazed Mr. Scott in the store. I have watched every minute of this inquest. All information was from a third party. Officers never had eyes on knowledge of what he was doing. Mosher is the one who initiated the code red.He was in fact so crazed that he walked right by Mosher.There was no serial numbers on the CCW permit.It was originally miss identified by the detective displaying the weapon.His levels of drugs are after the fact,it was ALLEGED at the time of the shooting.I also happen to own many registered firearms and support 2nd amendment rights and believe in firearms ownership.

Posted by: JohnH at September 28, 2010 05:40 PM

I'm the poster referencing subject/officer interaction times. My point was that it is unreasonable to assume an officer can observe a subject drawing an object from their waistband, orient themselves as to what exactly it is, make a decision as to whether they should fire or not, and actually fire in the time it takes a subject- if they actually are drawing a weapon- to fire.
From the referenced website, untrained students unfamiliar with firearms were able to draw and fire from a waistband at an average of .23 seconds and as fast as .09 seconds(admittedly this is with their hand already at waist level) with an officer reaction time to take an unsighted shot at 15 feet at .64 seconds. For all those who wonder how an officer could possibly shoot someone drawing a holstered weapon, or a wallet- that's why. It happens that fast- if the subject is actually pulling a weapon with the intention to fire, it is almost impossible for an officer to delay to confirm exactly what is being drawn in time to stop it. Police are not perfect.
I am not trying to justify what the police did- but I am trying to point out the fractions of a second in which these things occur.
Similarly, the website has articles showing how long it takes to stop shooting. Officers directed to start firing when a light comes on and cease when it goes off (simulating shooting until a threat stops) were shown to take ~.5 second. From the study, " ...if the officer were reacting as quickly as he could to pull that trigger, there is not a human being on the face of the earth that could react quickly enough to interrupt the trigger pull motion."
Now, this is an officer simply reacting to a light turning off, not trying to protect their own or others lives. Given the adrenaline and difficulty in discerning a subjects actions- turning to run or turning to engage others? Falling from being hit or diving to avoid cover?

Most of this may be irrelevant to this particular incident but I feel it's worth mentioning due to the many generalizations being made which don't acount for the speed involved in many shootings. Additionally, this seemed to be a very static event vice a dynamic event where subject and officer are both moving.

Posted by: styrgwillidar at September 28, 2010 06:37 PM
My experience teaches me that few officers will risk not only their reputations but their careers and potentially, their freedom, when so little is at stake.

The fatal flaw in this reasoning is that the testiliars do not believe that there is any actual risk of prosecution. They expect the thin blue line to protect them.

Posted by: Phelps at September 28, 2010 07:04 PM

Another great article! Thank you for taking the time to analyze and comment on this case. May God bless you for your efforts to educate the public and hopefully save lives in the future without compromising our Constitutional rights.

Posted by: DisabledVeteran at September 28, 2010 07:37 PM