The Erik Scott Case: Update 5 (The Future)

Erik Scott would likely be alive today if only one officer had used his most effective, dangerous weapon: His brain, in concert with his mouth. If the police had used proper, smart tactics, a single officer should have approached Scott at the right time and place and asked: ‘Pardon me Sir; could I have a word with you please?”

And so we arrive at this, likely the final update of the Erik Scott shooting for the foreseeable future. For those who have read the previous four updates, including update 3.2, my thanks. For those who have not but would like to, those updates can be found here:

Update 1
Update 2
Update 3
Update 3.2
Update 4

For those who would prefer to believe that the Las Vegas Police murdered Erik Scott in cold blood on July 10, 2010, that they have engaged in a coverup, that the Las Vegas Prosecutors were a part of the coverup, that the Coroner’s Inquest jury wrongfully found the three officers involved justified in shooting Scott, and that all police officers are potentially out of control killers, this series has likely been something of a disappointment. For those who have been seeking to understand what happened and potentially, why it happened, I hope this series has been useful. But as you, gentle readers, will see in this final update, the police are hardly blameless, and there is much to be done, yet there is hope that it can and will be done.

It seems clear that no local criminal charges will be brought against the officers or anyone else involved in Las Vegas. The finding of the Inquest jury does not absolutely preclude this, but considering the evidence presented by the Prosecutor’s Office and its apparent harmony with the police version of events, it seems exceedingly unlikely. This is not, however, the end of legal proceedings. William Scott, Erik’s father, has announced plans for a civil suit against the officers, Costco, the Las Vegas Police and possibly others involved. This is essential in that the discovery process will potentially allow all of the facts to come to light. The degree to which the police or other related parties resist discovery will serve to more accurately indicate to which degree, if any, they have anything to hide. No amount of money can compensate those who loved Erik for his loss, but sufficient compensatory and punitive damages can compel otherwise resistant bureaucrats and politicians to make changes they would not otherwise make. For the foreseeable future, there will be substantial institutional resistance to any change or alteration of procedure within the Metro Police as they will fear that such changes will be seen as an admission of guilt and culpability. However, as this is being written, the Clark County Commissioners seem willing to consider changes in Coroner’s Inquest rules to ensure that the truth is more likely to be revealed. More far reaching changes are in the hands of the citizens of Las Vegas.

Another legal possibility is the filing of federal charges for the violation of Scott’s civil rights. While this is possible, and may be undertaken by United States Attorney Daniel G. Bodgen for the district in which Las Vegas is located, politics is frequently a concern in such decisions. While leftists, and those currently in charge of the DOJ certainly fit that description, absolutely mistrust and often despise the police, considering them to be stupid, racist brutalizers, another more powerful consideration may be at work. Recent testimony from former Department of Justice Attorney J. Christopher Adams and current Attorney Christopher Coates has established that the Obama-Holder DOJ has an aggressive institutional bias against enforcing the law where whites are the victims. While their testimony focused on the DOJ division responsible for the enforcement of voting rights, there is little reason to believe that the DOJ as a whole does not share this institutional bias. Since Scott was a red-haired white man shot by two officers who were also white (and one Hispanic), this may mitigate against any federal involvement for the foreseeable future. However, a federal suit may have the best chance at getting to the truth as federal law establishes mere lying to the FBI as a crime in and of itself. In any case, either of these processes will take years, and resulting appeals, additional years.

The citizens of Las Vegas had better hope that President Obama doesn’t make any further off-the-teleprompter attempts to drive away business. They’re going to need a substantial tax base to pay the damages in future legal actions. It’s easy to make things go your way in a one sided hearing where all the rules are in your favor. However, in a civil suit the standard of proof is the preponderance of the evidence, or simply stated, 51%. By that standard, Costco, the Officers and the City of Las Vegas are in real trouble.

The Scott case will likely be studied and analyzed by police tacticians and will be used to train officers across the country for years to come. In many ways, it is a classic case of small errors compounding, one on the other, leading to a tragedy that would have been averted if just one link in the chain had been broken, if just one Officer had questioned the status quo or employed common sense. Yet the case is noteworthy because of its many unusual factors. Some examples are:

Officers across the country involved in shootings have an average hit rate of only about 25% of rounds fired, which means that some 75% of the officer’s rounds flew off in directions other than those intended by the officers. Consider that most officer involved shootings take place at shockingly short ranges. The Scott shooting also took place at close range, but the hit rate was 100% and every bullet remained in Scott’s body. There were no misses or complete penetrations acknowledged by the Police or Medical Examiner. This is not impossible, but is certainly unusual, so unusual that the police cooked up an outlandish tale to try to explain that the public was never in danger. Were more than seven rounds fired, and if so, where did they end up? There is no way to know at the moment.

Particularly bizarre is the Police and Costco story that the store’s sole means of recording video was broken for three days before, and the day that, Scott was shot. While such a coincidence is possible, it seems unlikely that a major chain retail store would allow its best defense against theft, robbery, fraud and meritless lawsuits to be broken for a day, let alone four. One wonders what the owner of the store would have said if this state of affairs was true and made known to him at the time. It will be interesting indeed to hear from Costco personnel why such an obviously incompetent state of affairs was allowed to occur, if indeed it did.

Here is a sampling of what a civil jury will likely hear from the Scott’s attorneys at the civil trial:

(1) Erik Scott did not have to die. He should have survived July 10, 2010. He should be alive today.

(2) Costco gave Scott, and every other customer, no notice that lawfully carried concealed weapons were not allowed. Anyone so armed entering any Costco store would have no reason to believe they were not welcome. Scott served his country, was willing to risk his life for it, and had every reason to believe that he was justified in exercising and defending a fundamental American right that day.

(3) Costco Security employee Shai Lierley was doing his best, but he was inexperienced, undertrained--perhaps even untrained--and overreacted. During his contact with the Dispatcher, his descriptions of Scott changed in a span of minutes from a man who was under the influence of drugs and wildly throwing merchandise about the store, to a man who might have been merely “hyperactive,” “dodgity,” “fidgity,” and finally, to a man who was merely walking normally in the store with his girlfriend calmly leaving with every other shopper when the order to evacuate was given. Lierley may have wanted to back down, to correct his early excitement and overreaction, but he didn’t know how, and the Dispatcher and police did not provide that option. Not only that, their subsequent actions have locked Lierley into a story he was clearly trying to disown. We will see that he has that opportunity.

(4) Other store employees, including the manager, also overreacted, yet, they had so little fear of Scott that they repeatedly approached and hectored him about his legally carried handgun. Despite all of this, they never actually asked him to leave the store, nor did anyone tell the Dispatcher or the Police that he had been asked to leave the store.

(5) The Dispatcher did her best, but asked strange, irrelevant questions, did not continually update Scott’s location with precise, understandable location information, and did not continually update Scott’s behavior. In fact, the Dispatcher only repeated old information and made transmissions to officers based not on what she was told by Lierley, but based on her own assumptions. These transmissions greatly increased the danger to Scott and the public by misinforming the responding officers and maintaining, even increasing, their belief in a high level of danger. As Lierley consistently ratcheted down Scott’s behavior, and therefore, the potential threat he represented to the public and the officers, the Dispatcher did not question Lierley and clarify the situation, but engaged in gossip with him.

(6) The responding officers merely took what was said by the Dispatcher at face value despite the sparse information she was providing. They did not ask basic, absolutely necessary questions about Scott, how he was behaving, where he was, whether he was threatening customers or Costco employees, his state of mind or any other basic, minimal information necessary to properly evaluate and handle the call. They were never, not for a minute, in control of events; events controlled them.

(7) An officer was given permission by the watch commander to carefully evacuate the store, yet a Costco employee made a general evacuation announcement, causing everyone, including Scott and his girlfriend Samantha Sterner, to leave the store at once. The Police failed in their duty to protect the public by separating and isolating Scott from the other customers, and when Scott himself was leaving the store, clearly intending to separate himself from the rest of the crowd, rather than allowing him to do just that and approaching him in a calm, non-threatening manner when it was safe, three Officers surrounded him, shouted confusing, contradictory commands, drew their guns, and within scarce seconds, began to shoot him seven times with themselves and the public as bullet stops.

(8) Two of the officers that shot Scott were posted at the front door of the Costco and watched Scott walk past them as he left. Despite the fact that he was probably the only customer in the store that day that matched the description they had been given, that of a red headed male, he appeared absolutely unremarkable to them, a far cry from the drug crazed maniac that was, only minutes earlier, laying waste to the store.

(9) Caught totally by surprise when a store employee pointed Scott out to them, the officers panicked, grossly overreacted to a non-existent threat, and within mere seconds of the start of their excited, confusing, contradictory commands coming from before and behind him, shot him, once in the chest, once in the thigh, once under the arm and four times in the back as he was falling, dead or dying, face down to the pavement. They paid no attention to the safety of the public that was all around them. They paid no attention to their own safety. They gave Erik Scott no time to respond to their confusing, contradictory commands and shot him without justification.

(10) Trying to cover their mistake, the Police have made the preposterous statement that the public were never in danger because the officers simultaneously choose a single pillar as a bullet backstop. It is not reasonable to believe this.

(11) After shooting Scott, the Officers were so in shock, so out of control, that they handcuffed him, yet did not check his medical condition and did not properly search him. It took a firefighter/medic to find his additional handgun and spare magazines in his pants pockets.

(11) The Police and Costco would have us believe that their means of video recording for their entire store had been broken since Wednesday, July 7th, their only means of protecting themselves from false charges, lawsuits, thefts and robbery, yet they did nothing about it for four days. It is not reasonable to believe this.

(12) Erik Scott did have drugs in his system, but drugs prescribed by physicians treating him for intractable pain caused by spinal damage incurred as a result not only of his distinguished military service, but of civilian accidents. Despite this debilitating pain, Erik Scott was a productive, upstanding member of society who worked at a demanding job more than 40 hours each week, and an athlete who strove to deal with the pain that was always with him. And do not forget that he was fully vetted by the State of Nevada which granted him a concealed carry license.

(13) Above all, the Officers and those involved in Scott’s death must be judged on what they knew at the time, not on vague supposition and attacks on the character and life of a dead man after the fact.

All of this, and more, the attorneys for Scott’s family will say, and knowing what I now know, and what I can reasonably infer from experience, I can only say that I would have to agree with them, and that a jury will agree with them too.

Did Officer Mosher and the other Officers lie? For the time being, there is insufficient information to make such a claim. They may well have testified to what they believed to be true, but that does not absolve them. The time frame of two seconds from the first shouted command to the firing of the first bullet was obtained without sophisticated equipment that will surely greatly refine all related time sequences, but let’s assume, for the sake of this scenario, that two seconds is correct. From the first shout of the officer directly in front of him, Scott would have been shocked--witnesses testified to this--by the sight of an officer, pointing his handgun at him at close range. He would also have been aware of two officers behind him shouting conflicting commands from short range. If Scott was a man possessed of average reflexes, it’s reasonable to assume that it would have taken him a minimum of half a second to actually be able to respond and to start to speak or move his arm, and easily as long as 8/10 of a second. With 1.2 to 1.5 seconds remaining before the first round was fired into his chest, Scott may not have had sufficient time to draw his weapon and point it at Officer Mosher as he testified.

This is so because inside the waistband holsters like that worn by Scott have the rough side of the leather outward to help the weapon stay in place, and to provide friction that tends to prevent the holster from being pulled up and out with the handgun when the weapon is drawn. In other words, it takes far more time to remove the weapon and the holster than only the weapon, and the Police have locked themselves into the story that this is what happened. In addition, in order to draw the weapon and holster, Scott had to first lift his shirt and hold it out of the way while drawing. This adds additional time. Even with a two second time frame, it may not have been physically possible for Scott to react to the confrontation, lift his shirt, remove the handgun and holster, swing it around to the front of his body, and point the handgun, still in the holster, directly at Officer Mosher before Mosher fired. If the actual time frame is less than 2 full seconds, it becomes even more unlikely that the Police scenario is possible. This is, of course, an interesting matter that will require proper analysis and experimentation.

Another issue is that of the perception of imminent danger by the Officers. Some would suggest that in this situation, any officer--if the Officer’s accounting of events is accurate--would have been justified in shooting Scott. However, thousands of citizens are alive today because officers across the nation took the extra fractions of a second necessary to be certain that the object in the hands of a suspect was actually a real gun rather than a billfold or some other object.

From my own experiences as an officer, I can recount many such situations. Some caused me to grasp, but not draw, my handgun. Some caused me to draw and go to ready. In a few, my finger was moving toward the trigger and my handgun rising on target. In a few, my finger was on the trigger and ready to fire, but in none of those encounters was it necessary to fire. My experience is not at all unusual.

On one occasion, I approached a drunk, a man I knew from previous encounters. As I greeted him and he noticed me, without a word, he reached into a back pocket, pulled out a large folding knife and thrust it toward me. I didn’t move or move my hand toward my handgun because I approached him properly, observing him for a few minutes before I did. I stood out of grabbing range, and knew that I could easily evade him. I also watched his body closely. His stance was not aggressive or practical for a knife attack. The speed and attitude of his hand and arm motions did not indicate an attack. That and the fact that the knife remained closed and he presented it palm up, with an open hand, convinced me that he was not a threat. I did berate him, told him never to do that to a police officer again lest he get himself shot, and asked why he did it. He replied that he was afraid I’d find it myself and get him in trouble. Could a less experienced officer have perceived deadly danger, seen a man pulling a knife from behind his back, shot him at the first moment he recognized, or thought he recognized, a knife and been justified? Perhaps. The point is that these situations are all different and must be judged by reasonable people upon careful consideration of all of the evidence. That full judgement has yet to be rendered in this case.

What was Scott’s culpability in this case? This too, is for a jury to judge and that judgement has yet to be rendered. The evidence presented in the Inquest was almost entirely one sided and focused on damaging Scott’s character and providing justification for the actions of the Officers. However, this ignores a significant reality: All that really matters is what the Officers could have known and reasonably inferred at the moment they met Scott and in the tiny span of seconds before they opened fire. They could not have known whether Scott was a devil or a saint. Their actions had to be based on what they had been told, which was almost certainly faulty, and on their observations which their own tactics limited to a few seconds. That said, all the available evidence indicates that when Scott walked out the front doors of Costco with Sterner, he was completely unremarkable, indistinguishable from the hundreds of others leaving at the same time. Some have suggested that if Scott did this, or didn’t do that, everything would have been different, but that’s beside the point and can never be determined or supported by evidence. The facts and circumstances surrounding the shooting can.

So what could have been done differently? I’ve gone into this in some detail in updates one through four, so I’ll not go over old ground, but merely add a few refinements, understanding clearly that hindsight is always 20-20.

All too often, Police officers have mere seconds to make decisions and act. This is not one of those cases. The Police had plentiful manpower and many minutes to watch, think and act, a truly luxurious spread of time in Police work, yet they did not use it effectively. They were never in control. They did not accomplish even the basics, let alone employ sophisticated tactics.

How could they have handled it? Obviously, they needed to identify and locate Scott as soon as possible while keeping uniformed officers out of his sight. Lierley was following Scott about the store with a cellphone, yet the Dispatcher not only apparently did not specifically tell this to the responding Officers, she didn’t provide timely, accurate updates regarding his location, direction of motion and state of mind/behavior, nor did the only radio transcript currently available indicate that the Officers asked for such updates. Had they done this, they would have quickly discovered that Scott was not a drug-crazed, raging madman ready to begin shooting at any second, but a man calmly shopping, a man who was so indistinguishable in appearance and behavior from the other shoppers that he walked within feet of two officers intently looking for someone matching his description without their notice.

Had the Police done this, they could have been reasonably sure that Scott posed no immediate danger and done what common sense dictated: Separate Scott from as many of the other shoppers as possible. They could have taken notice that he was calmly walking out of the store with the rest of the shoppers and allowed him to walk toward his car, in effect, separating himself from the other shoppers, while stealthily positioning Officers to keep Scott covered, just in case. And when Scott was in a position favorable to the Police, when back up officers had a clear field of fire, not a circular firing squad, and good backstops because they took the time to be sure of them, when other officers cleared away bystanders, because many other Officers were available at the scene, a single officer could have approached Scott with a smile on his face, and asked: “Pardon me Sir; could I have a word with you please?” And Erik Scott would probably be alive today.

I’ll watch the case as it unfolds and report new developments when warranted. Thanks to Confederate Yankee readers, Glenn Reynolds at Instapundit, and many other fine blogs for their links and interest in CY and this story.