June 11, 2011
The Erik Scott Case, Update 12: Slow Discipline and Progress
Since the last update, substantial and important developments have come to light. However, before exploring that information...
Links relevant to this update:
(1) Go here for the Las Vegas Review/Journal story about the discipline handed down to two Metro officers who took a road trip to Arizona in their police vehicle.
(2) Go here for the PDF version of the Judge’s decision in the June 1 motion hearing.
(3) Go here for the Las Vegas Sun’s post-hearing article (06-02-11).
(4) Go here for the Las Vegas Review/Journal’s post-hearing article (06-02-11).
(5) Go here for the Las Vegas Sun’s article on Judge Reed’s decision (06-08-11).
BRAD AND JAKES’S EXCELLENT ROAD TRIP, THE SEQUEL:
In Update 10, posted on February 6, 2011, I wrote a short section titled “Brad and Jake’s Excellent Road Trip.” On January 19, Metro patrolmen Brad Gallup and Jake Grunwald signed out as busy in court but instead drove into Arizona, in their marked Metro patrol car, into Mohave County where a sheriff’s deputy, fearing the car might be stolen, stopped them for speeding 20 MPH over the speed limit. Gallup and Grunwald claimed that they were scouting locations for a K-9 photo shoot and the deputy let them go without a ticket, but called Metro to be sure that the car wasn’t stolen. Gallup and Grunwald were suspended with pay shortly thereafter.
During the week of June 5th, Metro Assistant Sheriff Ray Flynn announced that the two officers were apparently planning to take a photograph of themselves and their police vehicle with the Grand Canyon as a backdrop. Flynn said that the officers would receive a week off without pay, which he characterized as the second most severe form of discipline an officer can receive, termination being the most severe. Flynn said that the entire division in which they worked was investigated to determine if similar things were happening. According to Flynn, they were not. Regarding Gallup and Grunwald, Flynn said:
“They’ve never been in trouble before, and they owned up to their responsibilities.”
Apparently, Gallup and Grunwald have been on paid leave since their initial suspension.
ANALYSIS:
What is immediately striking is the fact that it took nearly five months for this case to be resolved. In every law enforcement agency where I worked and in every agency with which I am familiar, this sort of thing would have been handled within a week at the most. The normal procedure would go something like this:
(1) The officer’s shift supervisor (usually a Sgt.) would speak with the officers and find out what happened. This would normally occur within a day or two of the incident coming to his attention.
(2) The Sgt. would write a report and discuss it with his immediate supervisor, usually a Lieutenant. They would discuss such matters as the severity of the offense, the records of the officers involved, their apparent remorse or lack thereof, and any other related factors. The Lieutenant would write a report, attaching the Sergeant’s report. His report would contain all that had been learned to that point, and would include a listing of the specific rules of the organization that had been violated, and would recommend a punishment.
In deciding on an appropriate punishment, the Lieutenant and Sgt. would consider the punishments administered for the same or similar violations in the past. This is important in that substantially different punishments for the same or similar offenses are far more likely to be overturned in the grievance process, particularly in unionized police forces like Metro. Basic fairness also plays a part. And of course, the officer’s internal disciplinary records and their behavior since the incident would be taken into account. This would normally take no more than a day or two.
(3) The Lieutenant would forward his recommendation to the division commander, usually a Captain, who would, in most cases, simply approve the recommendation and return the signed paperwork to the Lt. and Sgt. so that they could implement the discipline. This too would take no more than a day or two.
It is very important that such things be handled promptly. Left hanging for months, as in this case, the patrol force is missing two able-bodied officers. Morale suffers, not only for the officers directly involved, but for every other officer who understands that they too could be hanging in limbo for months on end for no apparent reason. Allowing disciplinary matters to be unresolved for so long also violates the principles of swift and predictable discipline for chargeable errors and makes supervisors and administrators appear to be indecisive and incompetent.
Assistant Sheriff Flynn said that the entire division was investigated to determine if this sort of thing was regularly occurring. This is yet another indication of the utterly dysfunctional nature of Metro. If supervisors have no idea that their officers are routinely taking road trips out of state, or otherwise abandoning their posts, Metro is in even worse shape than I imagined. In my years as a supervisor, officers occasionally screwed up, but I cannot imagine anyone getting away with actually leaving the state for hours on end without my knowing about it.
Even if an investigation was, in fact done, it should have had no effect on the case of Gallup and Grunwald. Their case could and should have been quickly handled, and any other investigation could proceed independently.
It is also surprising that AS Flynn called a week’s suspension without pay the second most serious discipline available in Metro. In criminal justice system terms, this would be analogous to having only two punishments for crime: five years in prison or death. I’ve never heard of or experienced a police agency with this kind of system. Most have clear and specific levels of discipline written into their policies and procedures, and those levels of discipline are carefully graduated to allow managers the maximum discretion to tailor discipline to fit each individual and each offense.
The punishment announced by AS Flynn is reasonable. Abandoning one’s post is a serious offense in the military and in any paramilitary organization (all police organizations are paramilitary—organized in much the same way as the military). Apparently no serious harm occurred as a result of their unauthorized absence, but that does not lessen the seriousness of the offense and the potential for great harm whenever a post is abandoned.
It’s likely that this matter, a relatively low-level affair that should have been handled within the patrol division--which would have been handled within the shift by many agencies--went all the way to the top of Metro and was the subject of months of political dithering by high-ranking officers who apparently don’t have nearly enough actual work to do. Given what is currently known, there is no other likely explanation. Given what is known, this does not reflect well on the management of Metro and provides additional insight into the culture of incompetence that may have made Erik Scott’s death—and the deaths of others--inevitable.
JUNE 1, 2011: THE MOTION HEARING IN FEDERAL COURT
Also in Update 10, I noted that Ross Goodman, the Scott family attorney, announced on January 10, 2011 that he was dropping Costco and Summerlin Costco Security employee Shai Lierley from the Federal lawsuit. Several commentators and others pointed to this as damning evidence that the Scott case was falling apart and predicted that everyone involved would be granted immunity and that no trial would occur. In Update 10, I noted that this was almost certainly a tactical matter relating to the differences in law and procedure between the Federal and State courts, and that the case against Costco and Lierley could be re-filed within the two year statute of limitations under Nevada law.
On May 31, the day before the motion hearing, Lisa Mayo-DeRiso of Mayo and Associates, a Las Vegas PR firm handling publicity for the Scott family, issued a press release. I reprint it, in its entirety, here with several of my comments added in brackets:
Three months after Erik was gunned down, a Clark County District Attorney-controlled Coroner's Inquest Hearing exonerated all three Las Vegas Metropolitan Police Department (Metro) officers. Over 34 years and 194 inquest hearings, only one Las Vegas police officer has ever been found at fault, and the DA chose to not prosecute him.
After the Coroner’s Inquest, the Metro Police Investigation files and the Coroner’s Inquest transcripts were made available to the Scott family and attorney Ross Goodman. Numerous questions about glaring irregularities attributed to the District Attorney, Metro police and investigation documents remain unanswered. Further, the behavior of one officer involved in the shooting raises serious issues concerning Metro officers who responded that tragic day, and the investigation that followed:
* Since the incident, the officer who shot Erik four-times in the back, Officer Thomas Mendiola, has been charged with unlawfully giving a handgun to a two-time felon and terminated by Metro.
* Testimony given by Officer William Mosher in his Voluntary Statement on July 10, 2010, conflicts with his testimony at the Coroner’s Inquest on September 23 and 24, 2010. How he confronted Erik, the nature of his commands, and the response by Erik, which resulted in his death, are not only in conflict, but the DA knew the testimony was not consistent, yet never revealed those inconsistencies to the jury.
* Mosher testified in his Voluntary Statement that he was “approximately, uh, an arm’s, arm’s length, about three—about two and a half feet” from Erik, when the victim walked past the officer, outside Costco.
* But on the witness stand, Mosher testified he was “Uh, approximately, probably about six feet” from Erik.
* Mosher's Voluntary Statement says, “I may have patted him on the back to try and get his attention and have him turn around.”
* On the witness stand, when asked by DA Laurent, “Do you recall if you placed your hand on him?” Mosher answered, “No; never.” The DA should have clarified that discrepancy; he had access to the Voluntary Statement.
* Witnesses testified that Officer Mosher did touch Erik.
[This is significant in that it would tend to indicate that Mosher did not consider Scott to be an imminent threat. As I’ve often stated in earlier updates, Scott must have appeared to be entirely unremarkable to Mosher and the other officers as we walked within feet of them as he and Samantha Sterner left the Costco Store. Clearly, he did not appear to be the drug-crazed, frenetic, dangerous, gun-carrying madman that Metro and others have tried to portray after his death. No officer who considers someone an imminent threat requiring the immediate use of deadly force would stand at arm’s length and touch them on the shoulder to get their attention, which action would also tend to indicate that the person was not a threat. After all, if you need to get them to turn around to notice you, how threatening can they be? Could Off. Mosher have later come to realize that it would be wise to never have touched Scott? Stranger things have happened in Metro and certainly in this case.]
* Mosher next claims, in his Voluntary Statement: “But almost as soon as I gave him the verbal command, he (Erik) said, “I HAVE A GUN.” This material omission puts into context other witnesses’ testimony that Erik was complying with the officer’s command by handing over the gun, which was later photographed, in the holster, on the ground.
[If we assume that Scott did, in fact, tell Mosher that he was armed, this would be unsurprising. Concealed Carry classes and materials across the nation suggest that when confronted by police officers, those carrying legally concealed weapons should immediately identify themselves as concealed carry licensees and tell the officers that they are carrying a concealed weapon. The possibility remains that Scott simply did not have time to do this before being shot.]
* From the 911 Call recording, verbal commands were given in this order:
1. “Let me see your hands” or “Put your hands where I can see them”
2. “Drop It”
3. “Get down on the ground”
* Erik turned to find Metro Officer William Mosher brandishing a .45-caliber weapon. Mosher shouted three conflicting commands, and then fired twice—all within two seconds, based on a Metro detective’s testimony, backed by the 911 recording. The first round struck Erik in the heart, killing him instantly. A second slug hit him in the right thigh. Erik dropped to his knees, twisted to his right, and fell to the pavement. Two other Metro officers, Thomas Mendiola and Joshua Stark, subsequently fired five additional rounds, all into Erik's back.
[There seems to be little or no evidence contradicting the proposition that Mosher yelled conflicting, confusing commands within two seconds. However, there is evidence to suggest that Stark, Mendiola or both were also yelling conflicting commands. Remember that the non-adversarial nature of the Inquest, the only evidentiary hearing held in this case to date, ensured that such matters would not be examined and determined to be true or false.]
* Why did Metro leave critical evidence—a surveillance/security video recorder and hard disk—in Costco's possession for approximately five days? Why were critical video data of the shooting "missing" and the digital video recorder's hard disk irreparably damaged, when the unit finally was seized and impounded by Metro detectives?
* The potential destruction of video evidence is further exacerbated by the fact that Costco security video shows Metro’s black-and-whites pulling up in front of Costco, followed by people running from the scene, after hearing gunshots. Apparently, none of these "parking lot" cameras captured the actual shooting, though.
* Metro and the Costco Loss Prevention Officer claimed the "missing video" was attributable to a DVR that had failed two days earlier (on July 8th). However, a Metro information technology specialist testified that, roughly four hours after Erik was killed, he simply "rebooted" the "failed" Costco DVR and it started operating normally.
[The bizarre, entirely incompetent, manner in which video evidence was handled (covered in Update 8), and eventually shipped out of state, and the facts about the large amount of data apparently recovered and what that data reveals remains unknown. There are a great many acts and omissions in this case, which would appear to make the police and other involved agencies appear to be completely, even dangerously, incompetent. As I’ve suggested in past updates, normally, the only reason such agencies would voluntarily prefer to appear to be incompetent is because the truth, if known, would be much, much worse.]
The high-profile case is considered a potential tipping point for not only Las Vegas, which experienced a staggering 26 law enforcement officer-involved shootings in 2010, but also a nation alarmed by a sharp increase in the number of killings by police officers.
Further, Erik Scott’s case has several unique elements: Erik was a decorated former U.S. Army officer, a 1994 graduate of the U.S. Military Academy at West Point, who also held an MBA degree from Duke University. A successful cardiac-equipment sales representative for Boston Scientific and a commercial real estate sales professional, Erik had been a highly respected citizen of the Las Vegas community for about 10 years. A physician later testified that, a few days before Erik’s killing, he had worked side-by-side with Erik in surgery, and Erik performed his job perfectly. He was not a criminal and, based on more than two-dozen eyewitnesses, did nothing to warrant being brutally gunned down in a crowd of approximately 70 Costco customers.
[What is known about this incident is that innumerable witnesses were simply told to go home and were not interviewed by Metro. These were witnesses who saw what happened and wanted to give the police their statements, but they were dismissed out of hand. Is this incompetence, or an attempt to ensure that witnesses whose observations did not match the official police account were never heard? The fact is that at least one witness testifying in the Inquest gave an account completely at odds with the official version, causing the prosecutors to try to discredit him on the stand. The prosecutor, in a hearing he controlled, a hearing with no adversary, no adversarial questioning, with witness he handpicked, chose to try to savage one of his handpicked witnesses. To say that this is unusual, even bizarre, is an understatement of epic proportions.]
The incident began when Erik and his girlfriend were shopping at the Costco-Summerlin store on July 10th. When Erik knelt to verify metal water bottles would fit in a soft-sided, zip-type cooler, a Costco employee spotted Erik’s concealed firearm in an inside-the-belt holster. The employee informed Erik that Costco had a no-firearms policy—even though no signs were posted to alert customers. Erik replied that his pistol was legally registered, that he held a valid concealed weapons permit issued by the Las Vegas Metropolitan Police Department, and that he and his girlfriend would be leaving soon.
Another Costco employee, an undercover Loss Prevention Officer (LPO), decided to call the police, claiming that Erik was carrying a weapon and “acting erratically.” Metro officers responded in force, dispatching about 15 cruisers, orbiting a helicopter over the Costco store, and suggesting Costco employees begin an orderly evacuation. Erik and his girlfriend calmly departed with other customers, having no idea they were the reason for the evacuation. Because the two were walking calmly, like other customers, the Costco undercover guard had to point Erik out to a waiting Metro officer, who immediately panicked and starting shouting orders, then shot Erik twice—all within two seconds.
Presentation of Erik's and his family's side of this tragic tale, backed by numerous witness testimonies, were not permitted, during the coroner's inquest hearing. Aside from several billboards (see attached), news media interviews, a memorial website (www.erikbscott.com) and blog entries penned by family and friends, Erik's side of this nightmare effectively has been silenced. Only Metro's and the DA's versions have been aired—until now.
The Erik Scott killing may be one of the more-egregious examples of recent police abuse, but it's definitely not alone. Indeed, the marked increase in police-abuse cases, including a shocking number of civilian deaths, is a national issue of great concern. But because Erik Scott's case features unique elements—dozens of eyewitnesses, conflicting testimony, missing evidence, violation of Metro’s policy and procedures—it may be the turning point that ultimately triggers reforms of out-of-control police departments throughout America.
THE HEARING, JUNE O1, 2011, SENIOR US DISTRICT JUDGE EDWARD REED:
The case was argued by Ross Goodman for the Scott family and by Clark County Deputy District DA Stephanie Barker who represented Clark County. Metro was represented by Las Vegas attorney Joshua Benson. Barker sought to have Clark County and Sheriff Doug Gillespie removed from the suit, essentially claiming that Goodman’s allegations were not plausible. Judge Reed observed several times “that sounds plausible to me,” in regard to Goodman’s allegations during the hearing.
Benson conceded during the hearing, and in a November motion, that the Scott family does have standing to sue with claims of wrongful death under state law and excessive force under federal law. The Goodman suit alleges that Metro and Sheriff Gillespie have been negligent in training and supervision of its officers, and have inflicted assault, battery and emotional distress on Scott.
During the hearing, Goodman agreed to remove Kevin Scott—Erik Scott’s younger brother--as a plaintiff in the case.
After the hearing, Goodman made clear that Costco and Shai Lierley would be named in a state suit in the future, within the statute of limitations (two years).
JUDGE REED’S DECISION:
On June 8, Judge Reed issued his decision. He removed Clark County from the suit and also dropped Sheriff Gillespie in his “official capacity,” because under the law, as the man in charge of Metro, he is already liable under the claim being made against Metro. Judge Reed also affirmed the Scott family’s right to sue for negligent hiring, training and supervision of Metro officers.
Responding to the decision, Ross Goodman said Reed’s decision “basically left the entire complaint intact against Metro, Sheriff Gillespie individually and the officers.” Goodman also said: "We wanted to focus on those claims in a federal court first and then, based on the investigation during discovery, will lead us to the appropriate time to refile a case involving state claims against Costco," Goodman said. "Costco is jointly to blame and will be held accountable at the right time. In state court, we will sue Costco and Shai Lierly and whoever else we deem to be responsible in the discovery."
In his decision, Judge Reed cited precedent indicating clearly that Clark County “is not a proper party to a wrongful death action…” He also observed that Goodman had, on January 6, 2011, filed a voluntary motion to dismiss claims against Costco and Lierley without prejudice and that the motion to dismiss Costco and Lierley currently before him was therefore moot.
ANALYSIS:
Judge Reed’s decision is a well-written and concise document that relies entirely on applicable state and federal law and on well-established precedence in reaching its conclusions. It is sober and shows no hint of political influence. The claims dismissed do not, in any material way, hinder the Scott family in its case against Metro and dealt with issues that were primarily procedural and legally technical. What matters, and what has been affirmed, is the Scott family’s right to pursue the case against Metro and the officers who shot and killed Erik Scott.
The decisions makes clear that the City of Las Vegas is the proper entity to sue in matters of this kind. As I’ve stated before, I have no pipeline into the decision-making process of the Goodman law firm. I do not know why Ross Goodman has not named Las Vegas to date. Some, including DA Barker, have asserted that this is because Goodman’s father is the current mayor of Las Vegas and his mother is running for that position. While this is possible, there is no known evidence to suggest that this is so, and Goodman’s ability to name Las Vegas as a defendant in the suit is unimpaired. There are certainly sound legal reasons for Goodman’s actions thus far, and should he eventually name Las Vegas, the law, as well as Judge Reed’s decision, will support his action. As with much else in this case, time will tell.
What is most important at the moment is that all issues that had to be resolved prior to discovery have been resolved. The case will proceed, and the phase that Metro must surely dread—discovery--is about to begin.
Metro is infamous in the Las Vegas legal community for “slow-walking” discovery. Discovery is the process whereby the plaintiff’s in a suit of this kind are entitled to all of the documents, computer records, videotapes, DVDs, CDs, and any other kind of information relevant to the case. In a very real sense, the plaintiffs are entitled to “discover” what the defendant (Metro, in this case) has done and what it knows. This process is enforceable by court order.
By “slow-walking,” I mean that Metro has a reputation, apparently well deserved, for complying with discovery orders as slowly as possible. It tends to provide incorrect or incomplete information, or does not provide information at all. It tends to do this as slowly as possible so as to run up costs for the plaintiffs and to make it as difficult as possible for them to proceed. Within the Las Vegas system, where the District Attorney’s Office is essentially Metro’s representative in the Inquest—and some would argue, otherwise—Metro has long been able to get away with this. However, since this case will be heard in Federal Court, it is much more likely that Metro will not be able to get away with slow-walking discovery so easily, if at all.
It is during the discovery phase that many of the questions in this case that remain unanswered may be answered. In addition, additional instances of incompetence or cover-up, instances previously unsuspected or unknown, may be revealed. It is also possible that enormous holes will be discovered in the materials provided. Important documents may be missing or incomplete. Metro may indeed choose to appear to be stunningly incompetent rather than completely forthcoming. Such information as complete hiring, training and disciplinary records for the officers involved will also be fair game.
FINAL THOUGHTS:
The Erik Scott case is now firmly on track to an eventual trial. Those who hoped that the case would be summarily dismissed have had their hopes dashed. Not only will there be a trial in Federal Court, a related trial under Nevada law seems a foregone conclusion. No doubt, Mr. Goodman would prefer to begin the process for a trial in state court having already won in Federal court.
The discovery process will be very interesting indeed. Panic within Metro should be expected during this phase of the process. As Ross Goodman observed, he is expecting to find a great deal of information that will greatly enhance his case and may open other avenues to proceed against Metro. It is likely that Metro will do everything possible to obstruct the discovery process. If this turns out to be the case, that fact alone will say a very great deal about Metro’s culture, professionalism, and culpability. If, as I suspect, much is being hidden and withheld, as the case comes closer to trial, the possibility of revelations that may shake Metro to the core becomes ever greater.
In the trial, expect to see a long line of Metro witnesses in great duress. They will be uncomfortable because they will be unable to produce any reasonable explanation for their many unprofessional acts and omissions. It will also be very interesting to hear the testimony of such people as Assistant Public Administrator Steve Grodin, and the paramedics who took Erik Scott to the hospital and reportedly found Scott's handgun.
What should not also be forgotten is that federal law enforcement agencies may also be working on this case, perhaps contemplating a case against Metro. Should the Scott family win, the possibility of that kind of involvement may well be greater. Agencies such as the FBI have a policy that prohibits discussing such cases, but it is at least possible that they are involved or may become involved. Any charges they might eventually bring would be separate and apart from the Scott family’s case(s).
As I have often observed in writing about this case, in killing Erik Scott, Metro killed the wrong man. They killed a man from a family for whom honor and duty are not simply little used words in a dictionary. They killed a man from the Long, Gray Line, a tradition centuries old of men and women for whom duty, honor, country and honesty are a part of their DNA. They killed a man whose family and friends cannot be intimidated by thuggish, unprofessional behavior and who will not stop until justice is done. Judge Reed, in professionally doing his duty under the law, in acting with integrity, has ensured that they will have that opportunity.
As Lisa Mayo-DeRiso wrote, the Erik Scott case does have the potential to be a pivotal case in turning the tide against unprofessional police conduct, not only in Las Vegas, but elsewhere.
Slow is right... I'm wondering if they are hoping this will just fall off everyone's radar.
Posted by: Old NFO at June 12, 2011 01:35 PM
