The Erik Scott Case, Update 11: Heroism and Loathing in Las Vegas

THE LOCAL MEDIA AWAKENS:

Since the posting of Update 10.3 on April 02 (scroll down for that update), Scott Wyland of the Las Vegas Review-Journal has filed an article (here) on April 12 reporting on the story I broke about AB320, the bill filed by Assemblyman John Hambrick (R-Las Vegas) that would allow Clark County District Attorney David Roger to declare that no coroner’s inquest was necessary in any--or every--future police-involved shooting. It’s good to see that the local Las Vegas media is dealing with the issues revolving around this situation, but a bit disquieting to realize that a members of the pajamas set, a blog, keeps beating them to the story.

Before continuing, here is source material to which you may wish to refer:

For the Las Vegas Review-Journal article on AB320, go here.

For the Las Vegas Review-Journal Article on the award given two of the officers who shot Erik Scott go here.

For an additional LVR-J article on the testimony at the Committee hearing, go here.

For the National Association of Police Organizations home page, go here.

For a listing of that organization’s officers and directors, go here.

For information on that organizations TOP COPS program, go here.

For officers receiving honorable mentions, go here.

That said, Wyland also added that DA Roger is, like the Police Protective Association (PPA), pushing for the enactment of the bill. Wyland notes:

“...the police union and district attorney are now fighting in Carson City to dissolve inquests before the first case is heard under the new rules.

If the bill passes, the district attorney would investigate the deadly incidents and determine whether to file criminal charges, which he has the power to do now. Information from the investigations would be made public.”

NOTE: This post was updated on 04-17-11.

Wyland added:

“...the bill is in an early stage, with an uncertain fate. The first hearing on the bill was held by the Assembly Government Affairs Committee on Monday. It will resume Thursday to gather more testimony. The bill must make it out of its first committee by Friday, or it will be declared dead for the session.”

PPA President Chris Collins remained true to form:

“The district attorney can look into a police killing and determine whether the officer did anything wrong, Collins said. If the family is dissatisfied with the outcome and wants to delve deeper, it can file a lawsuit, he said.

Collins said no other county in the state has inquests, and few places in the nation do. He argued that local police should not be treated differently here than anywhere else.”

Wyland quotes local NAACP VP Richard Boulware who refutes Collins’ assertions. Wyland also mentioned the Scott case as being a proximate cause of the revisions on inquest procedure, which of course, it was.

DA Roger is also quoted as supporting the bill because of the allegedly great cost of providing prosecutors for inquests.

As mentioned in Update 10.3, I did ask Assemblyman Hambrick to comment on his intentions for AB320, but he has not responded. I did not expect that he would, but wanted to give him more than sufficient time to respond, just in case.

THE FATE OF AB320:

Testimony on AB320 was taken by the Assembly Government Affairs Committee on Friday, April 15. Among those testifying were Clark County District Attorney David Roger, PPA President Collins, and representatives of the NAACP, the ACLU, the Latino community and a number of Clark County citizens. Two uniformed, armed officers stood in the hallway outside the chamber--there were no known security issues--and approximately 15 Metro officers were present in the chamber.

DA Roger’s testimony was predictable. He reiterated his belief that inquests were unnecessary and that his office should be the sole agency (apart from Metro)examining officer-involved shootings and making charging determinations. Roger also asserted that if officers refuse to cooperate and testify, it would be hard for his office to investigate officer involved-shootings, and that the new inquest procedures would therefore hinder him in his work.

Roger also brought up budget issues. He is in a fight with the Clark County Commission, which is demanding a cut of some 8% in his budget. Roger claimed, as he has in the local media, that the new inquest procedures would be too expensive.

The PPA flew in--at their expense--a spokesman involved with the independent body that investigates all officer-involved shootings in San Francisco. San Francisco did an analysis of five years of police shootings, and as a result, made fundamental changes in the way they are handled, including the independent body, which is charged only with investigating officer-involved shootings. In addition, San Francisco has a citizen’s review board which can also conduct independent investigations, including the examination of witnesses.

Metro has an “Excessive Force” board. but its manual and rules are written entirely by Metro, and it hears only what the DA and Metro want it to hear. After hearing entirely one-sided testimony--it has no power to subpoena or examine witnesses--it is required to vote. It is little surprise that officers are rarely, if ever, found to have been using excessive force.

Collins’ testimony was likewise predictable, but added one interesting element. Collins claimed that 99% of America’s police agencies have no coroner’s inquests and that it was somehow unfair for Metro officers to be subject to scrutiny. Prior to this hearing, Collins had asserted that officers would refuse to cooperate with investigations and would refuse to testify in inquests, but had only implied that they would invoke their right not to speak under the Fifth Amendment. In the hearing, Collins removed all doubt, telling the Committee that officers would take the 5th.

A citizen had been earlier chastened by the Committee for discussing personal issues rather than the substance of the law, but Collins told the Committee he would ignore their wishes and delve into personal issues. He asserted that Trevon Cole was not on his knees when killed by a Metro officer (this was directly contradicted by the coroner in that case). He brought up the Scott case, saying that citizens were upset because the PPA was trying to muddy the waters by digging up Scott’s past. During his testimony, Collins made an announcement that caused some present to recoil in shock and horror. He announced that William Mosher and Joshua Stark has been given awards for heroism by the National Association of Police Organizations. Collins, a member of the leadership of that organization, nominated them for that “honor.”

Testifying was Las Vegas resident Heather Spaniol, who said: "I am shocked that we are here today. If this is passed, it is a license to kill again as they have done before."

Las Vegas NAACP President Frank Hawkins testified that people who support AB320 do so "out of fear," and urged the legislator to avoid what he characterized as a Clark County issue.

ACLU lobbyist Rebecca Gasca said: ""If you change it (the inquest process), the Legislature would be undermining the will of the people of Clark County. The public has a right to know what happened when an officer takes a life."

The fate of the bill may have been sealed, however, by the testimony of Metro’s lobbyist, Chuck Callaway, who, surprisingly, testified against the bill. It was Metro’s position that the new inquest procedure should be given a chance to work, however, the thrust of Metro’s argument seemed to be the primacy of local, rather than state, control. AB320 would, in practice, affect only Clark County, and it was clearly written for that purpose.

In the end, the bill was not passed out of committee and is dead for the time being. Assemblyman Hambrick, who is a powerful member of the Assembly, has reportedly said that he may bring it up again in 2013, however there is reason to believe that it may find an even less friendly reception in the future.

THE LOCAL MEDIA REMAINS AWAKE:

Mike Blasky and Lawrence Mower of the Review-Journal reported on the award given Mosher and Stark on April 15. They noted that Thomas Mendiola was not honored, having been suspended and arrested for giving a convicted felon a firearm, as I reported in previous updates. A sampling of statements from the article:

“Collins called the two incidents the ‘top two heroic events our officers participated in last year.” [Note: The other was an officer wounded in the line of duty. He was not honored with an award.]

“ At the inquest, medical examiners showed that Scott, who suffered from severe back pain, was taking a potentially lethal amount of prescription painkillers. Costco employees had called police after observing Scott acting oddly and seeing that he was armed.

Witnesses to the shooting said the officers approached Scott as he was leaving the store and that he reached for one of his pistols, prompting them to fire.”

“‘I don’t see it as a controversial shooting,’ he [Collins] said about the Costco shooting. What potentially could have been a bad situation they brought to an end with no citizens being hurt. It was a heroic deed and enough of a heroic deed for the judges to give them an honorable mention.’”

“Scott’s father, Bill Scott, called the honor ‘incredible.’ The arrogance of Chris Collins and the PPA in even nominating these two staggers the imagination. He called the officers’ actions a ‘mistake’ and added, ‘Now they’re being honored for their mistakes?’”

The article noted that a Metro spokesman said that Sheriff Gillespie was out of town, so there was no Metro reaction to the awards.

ANALYSIS:

“Information from the investigations would be made public.” Amazing and despicable. It is precisely the public’s lack of faith in the ability and willingness of Metro, the DA’s office and other elements of the Las Vegas justice system to be honest and transparent that is the motivation for the revised inquest procedures. One might be forgiven for believing, based on past experience, that the only “information” released would be a truncated and sanitized version of the “facts” that would lead to one and only one conclusion: the police will always be justified whenever they kill anyone.

Rogers and the PPA likely wanted AB320 to become law not to save public funds, not so emotionally fragile police officers might be spared the anguish of having their feelings hurt by adversarial questioning, not so they might be more transparent and responsive to the public, but so they can provide even less information than even the old inquest procedures provided. They want to keep the deck absolutely stacked in Metro’s favor and the public in the dark.

But families can file lawsuits, according to Mr. Collins, who surely knows full well that the overwhelming majority of surviving family members are not justice-system savvy, nor do they have sufficient funds to hire attorneys. In addition, many who must continue to live in Las Vegas reasonably fear a police force with a reputation for retaliation against those it perceives as enemies, and a prosecutor’s office that seems to many to be in league with Metro. I’ve catalogued incidents of outrageously thuggish police harassment of citizens for the crime of displaying Erik Scott memorial ribbons on their vehicles in previous updates. Most importantly, Collins reveals his contempt for the public by suggesting that in order to gain access to public documents--police investigative reports--relatives of citizens killed by the police must file lawsuits. Reasonable people might tend to wonder if Collins is serious about asserting that there has been sufficient transparency and disclosure in the past. Such comments surely suggest that his concern is not for sufficient transparency and disclosure in the future.

DA Rogers inadvertently removed all doubt about his collusion with the PPA in his testimony before the committee. I’ve noted in past updates that police and prosecutors virtually always have a love/hate relationship. They must work together, but prosecutors are always aware that if officers screw up badly enough, they will have to prosecute them. This single realization tends to put some professional distance between prosecutors and the police and mitigates against any quid pro quo relationship. More on this later.

Keep in mind that when Collins asserted that 99% of police agencies have no inquests, he was surely, at the least, misleading the Committee. Many states and counties have coroner’s inquests--I’ve testifying in several and attended others. However, what is misleading is that most professional law enforcement agencies do not investigate officer-involved shootings themselves. They have, like San Francisco, independent boards, or agreements with other agencies. Many refer all officer-involved shootings to grand juries. To do as Metro does, to investigate such shootings in-house, is unusual. While it certainly produces results favorable to Metro, it is certain to cause the kinds of public relations problems that bedevil Metro.

THE NAPO: The National Association of Police Organizations bills itself thus:

“The National Association of Police Organizations (NAPO) is a coalition of police unions and associations from across the United States that serves to advance the interests of America's law enforcement officers through legislative and legal advocacy, political action and education.

Founded in 1978, NAPO is now the strongest unified voice supporting law enforcement officers in the United States. NAPO represents more than 2,000 police units and associations, 241,000 sworn law enforcement officers, 11,000 retired officers and more than 100,000 citizens who share a common dedication to fair and effective crime control and law enforcement.”

The NAPO’s Officers and Directors page lists Collins as the Sergeant-At-Arms. The NAPO’s website has this to say about its Top Cops Program:

“Since NAPO launched the awards program in 1994, the TOP COPS Awards® have paid tribute to outstanding law enforcement officers across the country for actions above and beyond the call of duty. TOP COPS® awardees are nominated by their fellow officers for outstanding service during the preceding calendar year.

The TOP COPS® are selected by an Awards Selection Committee comprised of national law enforcement representatives who choose one TOP COPS® case from each state and U.S. territory. The cases are then ranked and the top ten case winners are flown to Washington, DC for the awards ceremony. The awards show features a three-minute videotape of each TOP COP® and his or her story.”

NAPO provides a list of dignitaries who have attended past ceremonies, including the President and Vice President. The upcoming ceremony will be held in Washington DC on May 12. As Stark and Mosher were given only honorable mentions, they will apparently not be feted at the ceremony.

Nominations for the award require a supporting essay. It would be interesting indeed to know what Collins wrote in support of Mosher and Stark. One wonders if the other directors of the NAPO actually know that the Scott case is still being litigated and that there are considerable, compelling reasons for believing that Mosher and Stark’s actions are anything but laudable.

Collins’ statement that the officer’s shooting of Scott was not controversial and that “What potentially could have been a bad situation they brought to an end with no citizens being hurt,” is simply stunning. The facts could hardly be clearer, or more disquieting.

Three officers, essentially comprising a circular firing squad, were caught totally by surprise when Costco security guard Shai Lierley pointed out Scott to them after he and Samantha Sterner walked right past them with the rest of the crowd leaving the Costco at the order of the Police. Despite looking for a man of Scott’s description, he was obviously unremarkable to them, and certainly did not appear a drug-crazed madman. When they were made aware of him, they drew their weapons, shouted hasty, confused and contradictory commands, and within just a few seconds, began to fire seven rounds. They showed no concern for or awareness of the many citizens surrounding them, or of the huge structural pillars faced with rock--perfect random ricochet generators--also around them. That no one else was hurt is miraculous, not heroic police work. Stark and Mendiola testified that when Mosher shot Scott twice, they had no idea who had fired, so Mendiola fired four rounds into Scott’s back and Stark fired once.

There is very good reason to believe that the only thing in Scott’s hand was his Blackberry. It was found on the ground near his body, and there are witnesses to that fact and who also saw no weapons at all in Scott’s hands or at the scene after he was shot and killed. Most of these witnesses were excluded from the inquest, but one such witness actually testified, to the apparent surprise of the prosecutor, who engaged in the bizarre act of savaging his own witness on the stand in a hearing in which he had no adversary.

Were they aware that Mosher had two prior Metro shootings, one resulting in a death and other in the wounding of a citizen? As I’ve mentioned before, the mere fact that an officer has been involved in a shooting is not evidence of anything other than that he has been involved in a shooting. But officers who have been involved in a shooting are rare in any police force. Two shootings? Highly unusual, and certainly something that should give any police administrator pause and encourage them to be very careful in their investigation of additional shootings by that officer.

One wonders too if the NAPO is aware of Thomas Mendiola and his fate? Despite being later arrested on a felony, he contributed four of the seven heroic bullets to the non-controversial shooting. Should not he share in the “heroism,” heroism which took place before he allegedly committed a felony? After all, heroes are only human; they make mistakes. Surely mistakes after the fact should not stain earlier acts of valor?

One would hope that the officers of the NAPO, if they were actually aware of these indisputable facts, would not have awarded even an honorable mention to Mosher or Stark, and that they might wish to reconsider the integrity of a member of their governing board who would presumably fail to mention such facts. Surely they did not have full disclosure about the shooting and hand out honorable mentions anyway? It would obviously be prudent for such an organization to at least wait until all litigation had been resolved before making a decision. Heroism never grows stale; it has no expiration date. If it’s truly heroic, it can wait.

As I noted earlier, DA Roger made plain the collusion of his office with the PPA. He testified that if officers refuse to cooperate, it would be difficult for his office to examine officer-involved shootings. That single statement, to professional, competent prosecutors and police officers, is revealing and almost unbelievable. when I first began looking into this case, as those who have read the earlier updates know, I found many of the reported actions of the police to be so unusual, so out of the ordinary that I doubted that they actually occurred as reported. No longer.

In the real criminal justice world, police officers testify about their official actions, as often as necessary. It is not disputed, and no one gives it a thought. It’s simply as much a part of every officer’s duty as wearing the uniform and carrying a badge or handgun. Professionals would not even think about refusing to testify, let alone threatening not to do it. Not only is it grossly unprofessional and a public relations nightmare, but their direct supervisors would take large chunks out of their hindquarters for such idiocy, for such a betrayal of their oaths of office and of the public trust, and if they wouldn’t, higher ranking officers would be taking larger and more lasting chunks out of theirs.

But the most telling indicator is Roger pretending that he is helpless to do his job if officers refuse to testify. As the prosecutor, he should be speaking with Sheriff Gillespie and demanding that he do his job and compel his officers to do theirs. Failing that, he has one very simple and effective means of dealing with the situation: when an officer fails to honor a subpoena and show up for an inquest or any hearing, the prosecutor simply asks the judge to have the officer arrested and brought before the judge to show cause why he should not beheld in contempt of court. There is nothing at all unusual in this. All competent prosecutors are aware of this basic exercise of judicial power.

But what if an officer shows up but refuses to testify? Again, the prosecutor simply asks the judge to direct the officer to take the stand and answer questions. Likely, the judge will do it for him. If the officer then refuses, he can obviously be held in contempt and jailed and/or fined.

But what if an officer takes the fifth on the stand? Obviously, no one, not even a police officer, may be compelled to be a witness against them self. However, an officer who takes the fifth is saying that he believes that if he testifies, he could be criminally liable for his official actions. This should be a concern to every citizen--to say nothing of the police--and should cause that officer to be suspended until an investigation can determine if he is, in fact, criminally culpable. In this, police officers are no different than citizens, except that they may suffer adverse employment actions as a result of their invocation of the Fifth Amendment. In fact, in Nevada, as I’ve noted in past updates, refusing to cooperate in investigations is insubordination, a firing offense.

Readers should keep in mind that Collins is saying that every officer will refuse to cooperate or testify and will take the fifth. He is actually claiming that even officers who have no direct role in an officer-involved shooting, who are merely witnesses before, during or after the fact, will not cooperate. Claiming the protections of the Fifth Amendment when one has no criminal culpability is akin to perjury, and is almost certainly willful obstruction of justice. It can have only one purpose: To protect the guilty and to see that justice is thwarted. One can only hope that individual officers are not foolish enough to take Collin’s advice, for the choice to be professionals and to honor their oath to uphold the Constitution and the law, rather than spit on them, is ultimately theirs.

Perhaps Mr. Rogers is merely using his feigned helplessness as a political ploy to obtain the legal power to end inquests, but it that less execrable than knowingly deceiving the public? What citizen of Las Vegas can now have any faith in the DA’s office where officer-involved shootings are concerned? Mr. Rogers has made plain his complete lack of enthusiasm for the inquest process, and his obvious allegiance to the goals of the PPA, which are clearly to ensure that the public gets only that information the PPA and the DA condescend to give them, and to ensure that the DA, and the DA alone, determines officer culpability. Judging by past performance--which is a reasonable way to predict future performance--it seems likely that the police would virtually always be found to be not only blameless, but actually heroic if Roger has his way.

Whether such a man can effectively serve as prosecutor is a question for future Las Vegas voters, but they should be aware of how bizarre and out of the mainstream of professional criminal justice practice such behavior is.

FINAL THOUGHTS:

Throughout the process of dealing with this case, I find myself continually amazed by the behavior of virtually everyone involved with the Las Vegas criminal Justice system. In my police career, the kinds of mistakes, acts, omissions and statements that are legion in the Scott case would have caused immediate discipline and likely, dismissal and prosecution. All of the officers with whom I worked would have expected it. My first words upon hearing about development upon development have been “they did/said what?!” These are not words welcome to professionals, professionals in any field.

Throughout the process, I have been disappointed in the Las Vegas media who seem unable or unwilling to ask logical followup questions, to find and interview the many witnesses to the Scott shooting who were simply told by Metro to go home. Are their stories not compelling? Do they not tend to impeach the Metro version of events? I was pleased that the media finally reported on the involvement of the Public Administrator’s office, but amazed that they did not interview the deputy who lead the arguably illegal search and seizure at Scott’s home only hours after his death, nor did they ask a great many pertinent questions about that bizarre police/PA excursion such as who were the officers who accompanied Steve Grodin and what did they do and take at Scott’s home? Reporters, like all people, have bosses, but their behavior, particularly an apparent lack of curiosity, remains puzzling.

Commenters on this site and others, have continually latched on to the fact that Scott had prescription drugs in his system when he was killed, using that fact to suggest that he was therefore responsible for his death. I have covered that issue, including inquest testimony on both sides of the issue, in detail in earlier updates. What remains the central question of this case is what the officers reasonably could have known when they came into contact with Scott, and whether their actions from that point forward, based on what they could have known, were reasonable.

It is clear to me, from the available facts--many remain hidden by Metro--that the officers had severely limited information, information that might have indicated that Scott might have been acting oddly, and that he may have been carrying a concealed weapon, but that he likely had a license for it. All competent officers know that dispatchers do not always have accurate information, and that anyone acting only on what they’ve been told by a dispatcher is likely to stumble into a world of hurt. They must, always, act based on their own observations. No competent police officer relies solely on what they’ve been told, particularly in cases like this.

I’ve outlined in earlier outdates exactly what the officers could and should have done, not based on armchair quarterbacking, but on real world experience. I, and untold other officers have done exactly what I recommended--and continue to do it--every day. They should have simply watched and waited. They had no information that Scott was endangering others. In fact, Lierley was following him about the store reporting on his actions, but it’s not clear that the dispatcher was making all of this information available in a timely manner. When Lierley pointed Scott out, they could and should have realized that he was, like everyone else leaving the Costco at their order, calmly walking to his car. They should have allowed him to do that, kept him covered, controlled events and turned the tactical situation to their advantage. And when it was safe, when they knew where the rest of the public was, when it was advantageous for them, a single officer with a smile on his face could have approached Erik Scott and said “Pardon me Sir; could I have a word with you?” Had the officers done that, Erik Scott would almost certainly still be alive.

But instead, officers knowing only the tiny amount of information given them by a dispatcher, had a man hastily pointed out to them, a man in the midst of a crowd. A man who was completely unremarkable to them when he walked within mere feet of them only seconds earlier. A man who showed no sign of being under the influence of drugs or of posing a threat to anyone. What could they have observed in the few seconds before they started a gunfight in the middle of a crowd, a gunfight in which Scott fired not a single shot? They could have observed virtually nothing, because they did not take the necessary time to make a reasonable observation and were too busy shouting conflicting, incomprehensible commands at Scott from several directions. They simply did not have time to see anything before Mosher fired two shots, and Mendiola and Stark, having no idea who fired, added their contribution. They were never in control of events; events controlled them.

We still know relatively little about the officers involved, though rather more about Mendiola than he or Metro would likely want the public to know. We do know that Mendiola apparently failed the basic academy and was allowed a second chance, but nothing of the reasons for that situation is known. Had any of the officers been reprimanded for excessive use of force? Did any of them have psych exams that indicated warning signs? All of these are factors that will certainly come out when the discovery phase of the Scott civil case begins, but that is in the future.

Collin’s behavior is almost unfathomable. He appears to be daring the justice system to function properly, apparently believing that it will not, that he has the power to cow it as he chooses. There is reason to believe that his surreal announcement of hero status at the Committee hearing may have played a significant role in killing the bill and in ensuring that it remains dead. In any rational legislative body, that would surely be the case. What is unmistakeable is the utter contempt in which Collins, and apparently the membership of the PPA, holds the citizens of Las Vegas. As I've previously observed, when the spokesman for an entire police force apparently cares nothing at all for public relations, it is a glaring warning.

All of this, and more, is why the Scott case matters. As I’ve often said, in killing Erik Scott, Metro made a serious mistake. The Scott family is obviously system-savvy, and while I have no reason to think them wealthy, they seem to be the kind of people who will do whatever is necessary that the case be not flushed down the Las Vegas memory hole. God bless them and those like them. Metro obviously shares my opinion (though almost certainly not my wish for God’s blessing) and just as obviously is worried. They should be, and their worry should be encouraging to the Las Vegas public, for it is, at the moment, the public's best chance for necessary change. That many people have had to die to make even the possibility of change a reality is one of the most tragic, continuing aspects of this case.

As always, I welcome contact from any member of Metro or the public who can add factual information or correct any inadvertent mistakes I may have made. I will keep their confidence and will, of course, make any necessary corrections promptly and prominently.