The Erik Scott Case, 14.3: The Officers Speak--Sort Of (Concluded)

Date/Time: 07-10-10, 1835-1845
Duration of Interview: 10 minutes
Officer THOMAS MENDIOLA
Interviewed By: Det. Jensen and Det. Wildemann
Also Present: Sgt. Chris Halbert and Police Protective Association General Counsel Kathy Werner-Collins
Date/Time: 07-10-10, 1835-1845
Duration of Interview: 10 minutes

SUMMARY:

The detectives begin by establishing that Mendiola carries a Glock 17C in 9mm with 17 rounds in the magazine and one in the chamber. The "C" designation for Glocks indicates an integral compensator (slots in the top of the barrel and slide that direct gasses upward, helping to attenuate recoil). They said that Mendiola only carried 15 rounds on that particular day, but do not address that strange and highly relevant anomaly again.

Mendiola said that Scott was "brandishing" his handgun in the Costco, that he was "being loud," and "knocking things off the shelf." He also said that Scott was "ED," an that he told people "…he was Green Beret…"

Mendiola said that he told Costco employees—he could not identify who he was speaking with—to evacuate the store and spoke to Costco employees with radios to try to find out where Scott was and asked them to look on cameras and eventually was told that Scott was in the center of the store.

Mendiola said that he was the first to arrive and that a Sgt. was telling him where to park and what to do, but he doesn't explain further (who was that Sgt.? What role did he play? What did he see or hear?) and the detectives don't ask. In response to questions, he can only say that he heard that Scott was a white male, mid 30s with a black handgun in his waistband. Seconds later the detectives asked him where Scott was carrying his gun and Mendiola had no idea, yet the Detectives do not clarify this.

Mendiola said that he was at the entrance doors and Mosher was at the exit doors and people were leaving. He described them as "masses of people." Mendiola said that he heard Mosher "…yell out, 'Show me your hands.'" He said that he then realized that Mosher was talking to someone who resembled the description of the suspect and "Uh, at that time I also observed him pull a gun out." Mendiola said that when he noticed Scott, he was already facing Mosher. His description of what happened is confused (the detectives do no better):

Mendiola: "He had, ah, turned at his hips, by—at his hips, ah, reached over, like underneath his shirt, he had a baggy shirt on, and, ah, that's when the gun came out."

Q: "Did he reach over with his right or left hand?"

Mendiola: "Uh, it was both hands. He was playing with his shirt."

Q: "Okay. And, and how does the gun come out?"

Mendiola: "The gun comes out at a, a low ready, ah, at waist level."

The Detectives prompt Mendiola to say that the gun was in Scott's right hand and ask: "Okay. And does, does he, does the suspect point his gun at Bill Mosher?"

Mendiola: "Yes, it was pointed soon as I seen it."

Q: "Okay. From the time you turned around, um how long had Officer Mosher and the suspect been—how long were they, ah, having words, so to speak, or how long had Mosher been giving him commands?"

Mendiola: "At least a couple seconds. He got a lot of commands out, the only commands—"cause I heard him yelling, I just didn't hear the exact words."

The Detectives prompt Mendiola about his shooting backdrop and he describes one of the pillar/ricochet generators and said that there was no one in his backdrop. He continued: "At that time, uh, I heard Officer Mosher's gun discharge (how did he know it was Mosher's? The detectives don't ask). He fired a round. I only heard one. Ah, then I fired when the suspect didn't, he didn't move, he didn't, he didn't stop, and I was worried about the other people around, "cause there were more people."

Mendiola believed he fired three rounds, but Scott didn't immediately fall. The Detectives prompted: "If—as he was still standing, did you consider him a threat?"

Mendiola: "Yes sir, I did."

Mendiola had no idea whether anyone else fired, but agreed that Scott eventually fell down and that Mosher handcuffed him.

The Detectives prompted Mendiola to describe Sterner (he apparently did not know her name). He said: "Ah, she was telling us that he was Army, Green Beret. He has a CCW. We don't have the right to be shooting him. She was screaming those things over and over again." Mendiola said that another officer eventually took her away.

According to Mendiola, he, Mosher and a Sgt. (who?) called for paramedics who arrived quickly, but again, the Detectives did not press for any details. They did ask Mendiola to speculate what would have happened if Scott "…would of obeyed Off. Mosher's commands?"

Mendiola replied: "He would have been taken into custody and questioned."

The Detective questioned Mendiola about whether Scott said anything and Mendiola said that he was in a position to hear and that Scott did not, yet also said that he never saw Scott's face because he was "…turning at the time."

Det. Wildemann tried to clarify that Scott was in low ready, but eventually pointed the gun at Mosher and Mendiola went along. The interview was ended with Mendiola saying that there were a great many people "surrounding that area," including "It was kids and elderly people, and a lot of people."

The Detectives added: "So that you're thinking that they were all at risk, ah, if this guy pulled his gun?"

Mendiola: " I believe absolutely they're at one hundred percent risk."

Q: "Okay."

Mendiola: "Including my fellow officers."

ANALYSIS:

Again, the Detectives have a remarkable lack of curiosity about details, other than those what would allow them to check off the primary narrative points:

(1) Dispatch said Scott dangerous/drugged, possibly involved in crimes? Mostly check; drugged/dangerous.

(1) Scott drugged? Check.

(2) Officers forced to act in middle of huge crowd because Scott so dangerous (by walking normally toward the parking lot)? Check.

(3) Scott ignored officer's clear commands? Check.

(4) Scott pulled, pointed gun at officers? Check.

(5) Officers heroically shot to protect themselves, public? Check.

(6) Gun on pavement by Scott's body? Check.

(7) Handcuffed Scott? Check: Mosher did it.

(8) Searched Scott (sort of and didn't find anything, especially not a gun which we can't mention right now anyway)? Never volunteered or asked.

(9) Didn't see Sterner (who was feet away, screaming at you not to kill Scott) until after you killed Scott? No real idea; saw someone screaming.

Mendiola fired more rounds than any other officer, yet his interview is only ten minutes long and does not in any way account for those rounds.

Officers are required to carry Department approved and issued ammunition. They are given only enough rounds to fill their magazines, plus one round for the chamber. When an officer fires a round—even to dispatch an injured animal--or loses a round, it must be strictly accounted for in writing, usually by means of an official, uniquely numbered police report. When an officer is involved in a shooting, his weapon and all magazines must be taken into evidence as soon as possible, and all rounds and empty (fired) brass accounted for. This is particularly true when multiple officers have fired and their brass is intermingled on the ground. Any discrepancies are matters of enormous importance and must be completely and convincingly documented and explained.

The Detectives begin Mendiola's interview with the announcement that Mendiola was carrying two fewer rounds in his handgun than its capacity. This alone should require a precise and exhaustive explanation, yet the Detectives don't touch the topic. What happened to those two rounds? Did he just forget? Did they fall out of his gun when he wasn't watching? Did the Bullet Fairy take them? Or did those two rounds end up somewhere the police would rather not account for? Did now ex-officer Mendiola actually fire six rather than four rounds? Leaving these essential questions unasked leads to all manner of mischief.

Mendiola apparently did not see Scott until Mosher challenged him, and saw Scott turning, but the Detectives asked no questions about relative positions and movements, and Mendiola's account was confusing at best. Mendiola says that Scott pointed a gun at Mosher, but there is no description at all, and the gun is at "low ready," which is not a threatening posture, yet he is also pointing it directly at Mosher simultaneously, which is no doubt why the Detectives put words into Mendiola's mouth at the end of the interview on this point.

The time frame of the confrontation is essentially the same as that provided by the other officers. Mendiola can't hear what Mosher is saying, though he's sure Mosher is giving commands, and he's sure Scott didn't say anything, but he never sees Scott's face. Again, if he couldn't hear Mosher, why does he assume that Scott could? The detectives don't pursue this because it would not be helpful to the narrative. He heard a gun discharge, and knew it was Mosher's, but he did not see the discharge, or if he did, said nothing about it, and of course, the Detective's don't ask. Like Stark, we have no idea how Mendiola could have seen all of this despite hundreds of people moving all around them, and likely between Mendiola and Scott, at all times.

With this information, Mendiola, who within a few seconds sees all of this, like his fellow officers meticulously checks his backdrop, and fires at Scott because he didn't move, or he didn't stop, or because he was still standing, and he didn't stop shooting until Scott fell.

The Detectives did not ask if Mendiola saw a gun on the ground, they did not ask him to describe the gun he saw Scott point at Mosher, they did not ask him about a search of Scott, or about the Ruger, or almost any other necessary, basic, competent question, however Mendiola felt it important to add that after the shooting, suddenly there were many people "surrounding the area." No kidding.

What is also amazing is the mystery Sergeant. Who was he? What did he see? What did he hear? What did he do? Mendiola mentions him twice. He was obviously present, yet the Detectives ask no questions about him or his orders to Mendiola or the other officers, nor does Mendiola volunteer that information.

FINAL UPDATE 14 THOUGHTS:

Detectives investigating a homicide—and all police shootings are investigated as homicides until all of the evidence is in and a final, unassailable conclusion can be reached—must be absolutely meticulous. They must be certain to discover and reveal every detail, every fact, every potential piece of evidence whether it is physical or testimonial. When doing interviews, they never know what they'll learn or need to know, so they are as complete, as detailed as possible. Perhaps this will be their only chance to interview a given suspect or witness. Perhaps the suspect or witness will be run over by a bus or struck by a meteorite tomorrow. They have no way of knowing, so they take full advantage of their opportunities. Competent investigators know that they will inevitably discover things during the interview process that will require them to again speak with people they have already interviewed. The fact that the interviews of the three officers known to have shot Erik Scott took only 10-15 minutes each is, to put it kindly, absolutely inexplicable and grossly unprofessional.

This fact alone indicates that these Detectives—apparently Detectives assigned to Homicide—are alarmingly incompetent. The only alternative is that they are not asking the absolutely necessary and vital questions that any competent detective should ask because they have already decided what happened. They already know the narrative, they know the outcome of the investigation long before all of the facts are in, and they are asking only sufficient questions to be sure that the narrative is established and that the police have some wiggle room in the future. Why would experienced detectives be willing to appear to be rank neophytes? Only because they are acting under orders, or because to do their jobs properly would produce embarrassing, damaging results that would be much, much worse than appearing to be incompetent.

No doubt, they are comfortable in this because in the past, they have never been seriously challenged. They have never had to face the reality of consequences. Whatever Metro said was grumbled about, but generally accepted and eventually went down the memory hole and was forgotten as Metro moved on to the next police shooting and repeated the narrative, altering some facets here and there as each situation dictated. There is evidence to believe that the response to the Scott case, and the certainty that it will not go down the memory hole, has Metro very surprised and worried indeed.

Consider too that of the huge numbers of officers present at the Costco at various times (at least 65), only five were interviewed. Apparently only five had any relevant knowledge of what happened there, and two of them, Officers Bundy and Vietmeier, can only say that they saw what looked like a black gun on the ground near Scott after the shooting. Surprisingly, Officer Mendiola apparently can't say that much and the detectives certainly did not ask him about it.

The fact that so few officers had anything to say about this case should raise real suspicions. Were they that unobservant? Did no one else—such as the mystery Sergeant--do anything of any consequence in dealing with this case? Where is the statement of the officer (officers?) who was given Scott's handgun in the ambulance? Isn't that an important part of the case? Where are the statements of the officers who entered and searched Scott's home with the help of the Public Administrator's office? Isn't that important? Where are the statements of the officer or officers who handled the Costco video equipment? Surely this is worth recording?

The Detective's almost complete lack of curiosity about the actual shooting is inexplicable. Professional investigators would nail down every action, every facial expression, every word, every single factor from second to second in as much detail as possible, yet these Detectives seem only to be checking boxes for their preferred narrative. Everything rests on the idea that Scott pointed something black which could have been a gun at the officers so they immediately had to start shooting him in the middle of an enormous crowd.

Everything about the Officer's statements, as incomplete as they are, stretches reality and possibility to the breaking point. Stark and Mendiola heard shooting, perhaps thought they saw something black in Scott's hand, something they now say they thought was a gun—Stark wasn't solid on that—so they had to immediately shoot Scott too, despite they fact that they didn't know with any degree of certainty that Scott fired? They heard nothing or almost nothing of what Mosher said, and nothing of what Scott might have said, yet assumed that Scott must have not only heard Mosher, yet refused to obey the commands that they could not hear. And despite the fact that Mendiola and Stark didn't see the beginning of the confrontation, and that it lasted only about two seconds, they were focused on establishing a clear backdrop for shooting, and could describe their actions in seeking that clear backdrop in detail, even while moving and simultaneously shooting a moving target, all of this despite the fact that their grasp of detail about virtually everything else was shaky at best only a few hours after the shooting. Any competent investigator would know that such statements were—to put it kindly—troubling, yet these detectives not only accept them at face value, they prompt them and drop any lines of questioning that might not yield the answers they obviously want.

To competent investigators, the total lack of interest in the officer's handguns and their expended ammunition is surreal. In reality, each officer's handgun and magazines would be almost immediately taken into evidence and a complete accounting of each round fired, each round remaining in the guns and magazines, and each expended cartridge casing would be carefully and completely documented. Even the backup guns these officers were carrying would be treated in exactly the same way. A substantial portion of any competent interview would revolve around this issue. The fact, so casually mentioned by these Detectives, that Mendiola's weapon had a magazine capacity of 17 rounds but he was carrying only 15, would require conclusive and exhausting documentation. Why was he carrying only 15 rounds? Did he do that only that day? Where—or in what--were his other two issued rounds? No competent police officer would start a shift without being certain that his handgun was loaded to capacity. No competent officer would fail to report his missing rounds as soon as he knew they were missing if for no other reason than the trouble he would be in should their absence somehow be discovered before he could report them missing. No competent detective would be so incurious about such a glaring potential problem and obvious violation of policy and procedure.

There are other bizarre, contradictory matters that are not addressed. For example, Mosher says that he feared that Scott was wearing body armor or carrying additional weapons, yet didn't search him or confirm that he was wearing body armor. Perhaps the blood gushing from the bullet wound in Scott's chest might have enlightened Mosher to the fact that Scott was not wearing body armor, and perhaps even the Detectives interviewing Mosher might have realized this. In any case, their apparent refusal to ask such an elementary question, to clarify such an obvious contradiction clearly suggests gross incompetence or cover-up.

Another incredibly obvious anomaly that the detectives did not touch is why it was necessary to confront Scott in the middle of crowd of hundreds. If Scott were raving, waving a gun around, there would be no question of justification. The officers would have been negligent if they did not confront him then and there, yet Mosher's statement indicates that Scott presented no threat, none at all. He was not aware of the officers or that they were seeking him. He was calmly walking into the parking lot with the other customers. He was not raving, threatening, behaving unusually, he was simply walking away at a normal pace in a completely unremarkable manner. The officers had no indication that Scott actually injured or even threatened anyone in the Costco. Yet as soon as Scott was pointed out to him, Mosher, rather than simply watching Scott for even five seconds to see if he actually presented a threat, rather than carefully considering the presence of hundreds of citizens all around him, rather than coordinating with the other officers who were mere feet away and the plethora of additional officers arriving every second, his handgun drawn long before, provoked a deadly force encounter, all within a handful of seconds. He did not exercise due diligence. He did not stop to think. He did not behave with professional restraint and tactical sense. And the detectives asked nothing.

Once this line was crossed, Erik Scott was dead. Nothing he could have said or done, even standing stock still—and many witnesses saw him do exactly that--could have prevented Mosher from shooting him and Stark and Mendiola from adding their "me too" shots, for they didn't know who fired or why, but it looked like Mosher fired, so using the same kind of tactical deliberation Mosher used, they fired too.

It should go without saying that any competent prosecutor reading such reports should have the same concerns and questions I've raised here. That they obviously did not is, to say the least, troubling. The same would be true of any competent police supervisors or administrators. That they too apparently did not is, to say the least, absolutely horrifying, for this case is not by any means a close call based on the incredibly lame and confusing statements of the officers alone.

Ultimately, as I mentioned in past updates, Erik Scott is dead largely because everyone involved did everything wrong from the start. The officers involved used horrible tactics. They were never in control of events, and their incompetence resulted in the death of an innocent man, a man who posed no threat to anyone, a man who was doing nothing more threatening than walking to his car when he was stopped, challenged, and killed, all within two seconds.

If Off. Mosher, instead of immediately confronting Erik Scott in the middle of—by his own description—hundreds of people, simply did nothing for just a few seconds, if he allowed Scott to continue walking into the parking lot, away from the crowd, if he communicated with the other officers and they approached Scott intelligently, calmly with their guns holstered, there is little doubt that Erik Scott would be alive today. Instead Off. Mosher, having Scott pointed out to him, could think only of immediately and aggressively confronting him, his gun already drawn as he did, while surrounded by innocents, despite the fact that even Mosher cannot say that Erik Scott posed the slightest threat to him or anyone else at the time. Mendiola and Stark certainly can't identify Scott as a threat; they reacted primarily to Mosher's shots. Even though they had no idea who actually fired Mendiola said he heard Mosher's gun, but how could he possibly tell? Does he know the report of Mosher's Glock so well?

There is now no doubt in my mind that it is indeed a miracle that Erik Scott was the only person killed at Costco that day (we know that at least one elderly woman was injured, probably from falling in the panic of the shooting). There is also no doubt in my mind that there is no possible justification for the actions of Metro officers and those supporting them, before, during and after the shooting of Erik Scott.