The Erik Scott Case, Update 15: Metro Pats Itself On The Back

The local Las Vegas media have, upon occasion, reported on the Scott case, but have done relatively little in-depth reporting on the anomalies reported here, and have generally been very respectful of Metro. However, the Las Vegas Tribune has not been reluctant to take Metro on, regarding the Scott case or any other case, and there are many.
Following are links to the articles referenced in this update:

(1) For the LV Tribune story titled "Metro's Top Brass Running For Cover," go here.

(2) For the LV Tribune story titled "Retirees Expose Metro's Dirty Underwear," go here.

(3) For the August 15 Las Vegas Review-Journal story on Metro's accreditation honors, go here.

(4) For the Commission on Accreditation for Law Enforcement's website, go here.

LV TRIBUNE NEWS:

According to the LVT, all of the assistant Sheriffs on the force will soon be retiring and will not be replaced. Apparently Metro is not denying this report, nor is it supplying any reason why this is occurring at this particular point in time. Suffice it to say that it is highly unusual for any police force to lose any group of its highest-ranking officers at the same time for any reason. For none of them to be replaced is equally unusual. The LVT speculates that the assistant Sheriffs may, seeing the handwriting on the wall, be deserting what they see as a sinking ship, and lists a wide variety of scandals and cover ups—the Scott case being one—as potential reasons. If this report turns out to be accurate, it would be worthwhile for Las Vegas citizens to ask what such highly-paid officers did for so many years, and why their duties were apparently so ephemeral that no replacements were required.

Also according to the LVT, " Retirees and soon-to-be retirees have contacted the Tribune to reveal and expose some of the 'dirty secrets' that have plagued Metro Police Administration for years." While the article does not go into specifics of individual cases, it provides an extensive list of the kinds of corruption that these retirees and soon-to-be retirees have apparently revealed. Suffice it to say that the list suggests not only corruption, but serial felony crimes potentially sufficient to devastate the ranks of Metro and bankrupt Las Vegas (in the lawsuits that would surely result) should they be investigated and prosecuted by outside agencies.

I cannot vouch for the accuracy of these reports, and certainly don't know the specifics of what the LVT has, but their articles make for interesting reading and certainly support at least some of the information I've been collecting in investigating the Scott case. Take the links and see for yourself.

FEDERAL INVOLVEMENT:

Readers and others have speculated on the involvement, or non-involvement of federal law enforcement agencies in the Scott case and other potential cases of Metro corruption. It should be remembered that an apparent lack of federal involvement does not mean that agencies such as the FBI are not involved. The FBI and most other federal agencies, by policy, do not reveal ongoing investigations unless they are ready to make arrests and begin prosecution. In the investigation process, they often prefer to be very much under the radar. In the case of Metro, such investigation—if it has begun—will almost certainly take months, perhaps years, and involve a great many potential targets.

It is possible that no federal agencies are involved. I've noted before that Mr. Obama would be unlikely to want to embarrass Senator Harry Reid. However, I would not be in the least surprised to learn that they are, and have been watching the Scott—and other cases—for some time.

ACCREDITATION: WHAT DOES IT MEAN?
According to the Review-Journal, on August 12, Metro announced that it had been awarded "Accreditation with Excellence" honors by the Commission on Accreditation for Law Enforcement. "A department press release said the organization looks at several categories, including whether an agency is forward-thinking, addresses crime problems before they occur, uses the best hiring practices and police tactics, and routinely does self-assessments," noted the RJ.
It is unsurprising that Sheriff Gillespie would use this ploy, which is superficially impressive to those unaware of the reality of law enforcement accreditation. No doubt, Sheriff Gillespie's self assessments of Sheriff Gillespie reveal that Sheriff Gillespie is excellent. I worked in an accredited LEA for many years, and apart from the dubious benefit of a CALEA emblem on our nametags and patrol vehicles, saw no benefit whatsoever for working cops.

The CALEA website markets their services under the heading "Accreditation Works," as follows:

"* Agencies can realize the following rewards of CALEA Accreditation:

* Comprehensive, well thought-out written directives,

* Reports and analyses to make informed management decisions,

* Preparedness Program in place,

* Improved relationship with the community,

* Strengthen agency’s accountability,

* Limit liability and risk exposure, and

* Assists in agency’s pursuit of excellence.

AccreditationWorks! is a compilation of articles that appear regularly in the CALEA® Update magazine, which is published three times a year. These accounts are first-hand testimonies of how CALEA Accreditation has benefited these agencies and their communities. The articles provide insight into the impact of accreditation and offer examples that may be useful to anyone interested in the accreditation process or wants to know, 'What will Accreditation do for me?'”

The CALEA is a private, for profit organization accountable only to itself, and its services are not cheap. On the surface, any law enforcement agency wishing to become accredited must participate in a rigorous, five step review process, which includes:

"* Enrollment

* Self-Assessment

* On-Site Assessment

* Commission Review and Decision

* Maintaining Compliance and Reaccreditation"

Ostensibly, agencies, once accredited, have attained highly professional status, status that will not only make lawsuits unlikely, but will make it much easier for an agency to defend such suits. These supposed benefits do not come cheaply, nor do the payments ever end.

In essence, Accreditation is a paperwork review process. Accredited agencies must have certain minimum written procedures and policies in place. During the self-assessment phase, an applying agency receives the specifics of what is necessary and works to alter—or in some cases adopt for the first time—the policies and rules CALEA mandates. These range from rules for the maintenance of records, the use of force, diversity standards, hiring practices, and everything else relating to running a law enforcement agency.

When the agency believes it is ready, a team of CALEA officials, usually police executives and academics from around the nation, comes to their community for an on-site review. Among the things these teams do is to interview officers and hold community meetings to hear complaints and congratulations. In the accredited agency where I worked, only hand-picked officers were interviewed, and everyone knew that the slightest negative comment would result in consequences. The police administration went to great lengths to pack public hearings with favorable tales from grateful citizens.

The report of the on-site team is considered by the Commission, and if accreditation is granted, it is granted for three years, during which the update and reaccreditation process—accompanied by significant fees to the CALEA—continues for another three year accreditation cycle. Regarding this cycle, the CALEA website notes:

"Maintaining Compliance and Reaccreditation:

During its three-year accreditation award cycle, the agency must maintain compliance with applicable standards, keep its proofs of compliance up-to-date, and live by the letter and spirit of those standards. To retain its accredited status, the agency is required to submit to CALEA their appropriate accreditation continuation fees, as well as an annual report. Reaccreditation occurs at the end of the three years, following another successful on-site assessment and hearing before the Commission."

On one hand, if an agency is already professional and honest, and determined to live by those values, Accreditation might be considered to be a feather in its cap, an expensive feather, but a feather nonetheless. Theoretically, the process might improve, in at least some subtle ways, the agency's policies and procedures, and it is at least possible that a side benefit of this might be making it easier to defend against lawsuits. However, if the agency is professional and honest, such effect, to whatever degree it might exist, will likely exist whether the agency is accredited or not, and at much less cost in cash and the man hours necessary to comply with all of the paperwork required by the CALEA.

The problem with accreditation is that it is primarily a paperwork certification, and while the CALEA says that agencies must live by the "letter and spirit" of its standards, it is not difficult for a corrupt agency to keep evidence of failing to meet such standards in practice—rather than on paper—from the CALEA. There is, in addition, a very real financial incentive for the CALEA not to be, should we say, excessively aggressive in their investigations, to whatever degree they are done.

Am I saying that the CALEA would knowingly certify agencies they know are ineligible under their standards? I have no such knowledge and make no such specific assertion. I suggest only that because the CALEA is a private, for profit organization, that it is in its best interests to keep long time clients on the accreditation list, for their fees pay the salaries of all involved and allow various law enforcement administrators and others to travel at CALEA's expense as "experts."

From what is commonly known about Metro and its operations, it would seem that it is easy indeed for a corrupt agency to comply with the CALEA, indeed, even to achieve, according to Metro, its highest honors. So while Metro might appear to be hell on wheels on paper, the incompetence, abuse and lack of professionalism so apparent in the Scott case is day to day reality, and this reality apparently means little to the CALEA. The alternative is that the CALEA is simply not set up to discover and investigate such things, which is likely the case.

FINAL THOUGHTS:

While accreditation might be a worthwhile option for an agency flush with cash seeking help in updating its policies and procedures, it is not by itself an absolute indicator of honor, honesty and professionalism in practice. The day-to-day reality of Metro would seem a convincing proof of that assertion. In the matter of police tactics and hiring practices alone, I suspect relatively few knowledgeable citizens of Las Vegas would consider Metro to be a model of professionalism. The CALEA provides, as noted earlier, a periodical designed to prove the value of accreditation to those already accredited, essentially preaching to the choir.

Once a police executive has convinced his city council or county commissioners to fork over the substantial, continuing sums of money necessary for accreditation, it is unlikely that he will be anxious to simply say "oops! I guess I was wrong about the whole thing. Sorry about wasting all that time and money!" I'm not suggesting evil intent on anyone's part, merely making pertinent notes about human nature and its workings in law enforcement agencies.

It is also quite possible for non-accredited agencies to be entirely professional and to never experience the kinds of abuses that seem to be the rule rather than the exception at Metro. I know many such agencies. As I mentioned in the beginning of this section, my experience with accreditation revealed no obvious benefit whatever for working cops or for the community. My chief labored mightily to convince officers and the public of the wonders and never-ending benefits of accreditation. To this day, having seen no tangible benefits, I remain unconvinced and I suspect the community I served does as well.

IN COMING UPDATES:

The next update--perhaps series of updates—will focus on the statements, written and recorded, of citizen witnesses to the Scott shooting. I hope to have it completed in the near future; there are a great many documents and much to analyze.

As always, I very much appreciate our readers and their comments relating to this ongoing case.

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.

The Erik Scott Case, Update 14.2: The Officers Speak--Sort Of (Continued)

(2) Date/Time: 07-10-10, (app.) 1724-1728
Duration of Interview: App. 4 minutes
Officer DUSTIN BUNDY
Interviewed By: Det. Jensen and Det. Wildemann
Also Present: Sgt. Stephen Lehtinen and PPA Rep. Tom Reid
General Counsel Kathy Werner-Collins

SUMMARY:

Bundy says that on the way to the Costco, he remembers Dispatch telling him that Scott had a gun in his "back waist," and that he was being "really belligerent" with the manager, was ripping things off the wall, said he was a Green Beret, and could do whatever he wanted. Bundy said that as he got closer, radio traffic told him that Scott was getting "a little more irate with everybody."

Bundy said that when he arrived, he took his car's shotgun and noticed people already leaving, saying "there's just a sea of people in the, in the entrance of the, of the place." Bundy said that he was pushed by the crowd (?!) behind one of the large rock-faced pillars at the front of the building and could not see what was happening in front of the store.

Bundy said: "Um, all of a sudden I hear the word gun, kind a perks my ears up." He said he looked in "that direction" and heard gunfire. He said people were "falling toward me, and rushing toward me," and he tried to maneuver around the pillar and ran into a line of shopping carts, and he had no idea who was shooting or why.

Eventually, Bundy was able to get close enough to see Scott (he could not name him) on the ground and several officers "standing there." It was then that he said: "…and, ah, I seen the, ah, there was a gun a few feet away from him laying on the ground." In response to a question, Bundy describes the gun as: "…a black semi-automatic gun. Ah, it looked like it was still in the holster."

The detectives prompt Bundy who remembers Sterner (he didn't know her name) yelling at the officers. The detectives confirmed that Bundy didn't fire his weapons and didn't actually see the shooting, and that he didn't actually hear any commands given to Scott.

ANALYSIS:

Officer Bundy didn't see anything and didn't hear anything. The detectives did not try to clarify or obtain greater detail from him. Why was he interviewed? Let's examine the checklist:

(1) Dispatch said Scott dangerous/drugged, possibly involved in crimes? Sort of check: dangerous maybe, no drugs.

(1) Scott drugged? No idea.

(2) Officers forced to act in middle of huge crowd because Scott so dangerous (by walking normally toward the parking lot)? No idea.

(3) Scott ignored officer's clear commands? No idea.

(4) Scott pulled, pointed gun at officers? No idea.

(5) Officers heroically shot to protect themselves, public? No idea.

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

(7) Handcuffed Scott? No idea.

(8) Searched Scott (sort of and didn't find anything, especially not a gun which we can't mention right now anyway)? No idea.

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

So why was Bundy interviewed? Because he could add one more vital check: he saw a gun, the same black semi-automatic pistol that wasn't actually black at all, but was in a black holster that Mosher said he saw. Even for a four minute interview, the detectives were remarkably incurious, but they got what they wanted, the most important check, one of the checks absolutely vital to the Metro narrative.

NOTE: Keep in mind Bundy's description of the sheer number of people and the atmosphere of panic, such that not only could he not see what what happening, he, a uniformed officer brandishing a shotgun, was actually pushed and jostled and could not move where he wished.

(3) Date/Time: 07-10-10, 1738-1740
Duration of Interview: 2 minutes
Officer DEAN VIETMEIER
Interviewed By: Det. Jensen and Det. Wildemann
Also Present: PPA Rep. Tom Reid

SUMMARY:

The detectives actually remembered to mention the kind of gun Vietmeier carried on duty at the beginning of this interview despite the fact that it had no part in the case.

Vietmeier was on a traffic stop when he overheard the Costco call of a person with a gun. The detectives, prompting furiously, get Vietmeier to say that Scott (Vietmeier did not know his name) was "acting erratic," and was "tearing packages apart, throwing packages." Vietmeier said that he thought that Costco management "tried to confront the guy to get him to leave 'cause I guess they don't allow people with firearms in the business. So." They also prompted Vietmeier to say that he heard via radio that Scott had a handgun in his "back waistband," though Vietmeier could not say if Scott had a holster.

When Vietmeier arrived: "that's when all the people came running out, and then the shots were fired." Vietmeier said that he only heard about the shots on the radio—another officer announced it--and saw nothing. Vietmeier said that he drove to the front entrance where he saw Scott on the ground, "So I drew down on him, and, ah, I had him there. Vietmeier said that Mosher immediately handcuffed him.

Vietmeier said that he saw Scott's gun on the ground by his left foot, and after being prompted, said that it was in a black holster, but that he knew nothing else about it because "I just saw it real quick."

Vietmeier said that he heard no officer commands, and saw people running out even before the shots were fired. He thought Sterner (he didn't know her name) was screaming at the officers, and that there was another woman—name unknown—"screaming hysterically behind me."

ANALYSIS:

Officer Vietmeier, like Officer Bundy, did not see or hear the actual shooting, so why was he interviewed. Let's return to the checklist:

(1) Dispatch said Scott dangerous/drugged, possibly involved in crimes? Sort of check: dangerous maybe, criminal maybe, no drugs.

(1) Scott drugged? No idea.

(2) Officers forced to act in middle of huge crowd because Scott so dangerous (by walking normally toward the parking lot)? No idea.

(3) Scott ignored officer's clear commands? No idea.

(4) Scott pulled, pointed gun at officers? No idea.

(5) Officers heroically shot to protect themselves, public? No idea.

(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)? No idea.

(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 he thought was his girlfriend screaming, but that's about it.

Like Bundy, Vietmeier can provide one useful check: he saw a gun—no idea of anything beyond that—in a black holster on the ground near Scott's body. But the detectives made a significant mistake: Mosher claimed that the gun fell forward to the pavement as Scott fell, several feet in front of him, toward Mosher, yet Vietmeier saw a gun on the ground near Scott's left foot, some 8-10 feet away from where Mosher placed it. This is a significant and dangerous contradiction. Whether incompetence or part of the narrative, this is very, very clumsy, focusing attention on something they obviously would rather gloss over, and this, despite having interviewed Mosher only an hour earlier. Oops. Apparently Officer Mosher isn't the only Metro officer with memory problems.

NOTE: Again, when reading Officer Stark's account, keep in mind the accounts of Officers Bundy and Vietmeier as they describe the pandemonium present as the crowd did whatever they could to avoid being shot, including obstructing a clear view of what was happening.

Date/Time: 07-10-10, 1805-1815
Duration of Interview: 10 minutes
Officer JOSHUA STARK
Interviewed By: Det. Jensen and Det. Wildemann
Also Present: Sgt. Chris Halbert and Police Protective Association General Counsel Kathy Werner-Collins

The detectives begin by noting that Stark carries a Glock 17 (9mm) with 17 rounds in the magazine and one in the chamber, but make no mention of how many rounds were fired or how many were found in the magazine after the shooting, but Off. Stark tells them that he fired one round.

Starks's description of the information he received from the Dispatcher via radio focused on describing Scott as "acting more erratically" and "possibly ED." He also said that he was "reasonably certain that he had a gun in his possession," and that Scott "disobeyed the Costco employee's orders to leave the store, and he was, um, rampaging in the store by taking things off shelves."

Stark said that he arrived third, after Mosher and Mendiola and that when he arrived, a "large crowd" of people were already leaving. Seeing Mendiola near the entrance speaking to someone he assumed was a Costco employee, he went to Mendiola. He said that Mendiola was relaying information from the employee to the Dispatcher about Scott's location in the store and repeated that Scott was "…the subject with the gun, um, acting irrationally." He placed Off. Mosher to the East, by the exit door.

The detectives prompt Stark to tell them that he is a CIT officer and that Mosher was originally assigned as the primary CIT officer. Stark said that he was self-assigned to the call.

Stark said that he heard Mosher "issuing loud verbal commands," but could only make out the word "ground" because of all the people and the noise they were making. Stark said that he was to the left of Scott, and that Scott wasn't obeying Mosher's commands. He said that Scott "…was reaching back behind him with his right arm, right arm, um, trying to get something from what appeared to be the rear of his waistband." Stark said that Mosher moved away from Scott and "…that's when the suspect's right arm came forward with a black gun, ah, what appeared to me to be a, a gun. Um, he pointed it straight forward at Officer Mosher, and that’s when the shots were fired."

The detectives prompted Stark, asking: "Now when he made that, when he made that motion forward with the gun, was that a, a, a motion where he would have been surrendering the gun, or was it, did you consider it an aggressive motion?"

Stark replied: "No. Everything about the suspect's movement were, was an un-compliance with, ah, Officer Mosher's verbal commands that he was telling him. He wasn't listening to anything Officer Mosher was saying. Un, and the, he was making this it was a, a, ah, a very aggravated movement trying to pull out, um, the gun from his waistband, and he shot that thing straight forward. He just threw his arm straight forward pointing it at Officer Mosher."

Stark described the shooting: "Um, Offic-shots were fired. I wasn't sure whether Officer Mosher had been shot, or the suspect as well. Um, I made movement, and gained line of sight to where there was no, um, civilians around, ah, in the backdrop of when I fired so I was sure of my shot. And ah, the suspect was moving backwards when I fired my shot."

The detectives prompt Stark to better describe his backdrop, and he described one of the large, rock-faced pillars at the front of the Costco. The detectives tried to place Stark and the others involved, but don't go into any real detail, leaving their positions and movement vague. In response to questions, Stark says that he did not know who fired at the time of the shooting. This exchange took place:

Q: "Okay. But why did you fire?"

Stark: I fired because, um, Officer Mosher was in imminent threat of death from the suspect's gun, as well as everybody else around him, behind him, we were completely surrounded by other people."

The Detectives ask Stark about Sterner, but he said that he didn't see anyone with Scott, and that he could not hear Scott say anything. He said that Scott fell backwards and his gun was five or six feet from him, toward the Costco. Stark said that Mosher handcuffed Scott and that no one moved Scott's gun.

They again prompted Stark regarding Sterner and he replied: "There was a female, a Hispanic female with long black hair that I saw that was yelling. Um, that said that I can't recall exactly what she said, but something about him coming back from the military, and you killed him."

The Detectives prompt Stark about the time frame of the confrontation and Stark said that from the time Mosher began giving commands until Scott pulled a weapon took only a few seconds, but said that "…it took him several seconds to actually get it out."

ANALYSIS:

Checklist:

(1) Dispatch said Scott dangerous/drugged, possibly involved in crimes? Mostly check: drugs and 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)? No idea/no mention at all.

(9) Didn't see Sterner (who was feet away, screaming at you not to kill Scott) until after you killed Scott? Not a good check; saw someone screaming.

Stark's interview ran only 10 minutes, and like that of Mosher, was amazingly devoid of the kind of detail that is absolutely essential in such cases. The Detectives again made sure to cover all of the primary narrative/checklist points. And Stark, like the other officers, makes clear they were surrounded by a great many people leaving the Costco.

Stark was standing some distance from Mosher and Scott and could only hear the word "ground," yet somehow knew that Scott was not complying with Mosher's commands, the commands he could not hear. Remember that in the middle of that crowd, it would have been highly unlikely that Erik Scott could hear the commands, particularly after being startled by the unexpected sight of Mosher pointing his handgun at him. Stark also confirmed that from the moment Mosher began giving commands until the first shot was only seconds, yet he apparently felt that a few seconds—we know that it was only about two seconds—was sufficient time for Scott to do what Mosher was ordering him to do, despite the fact that he admitted that he had no idea what Mosher was ordering Scott to do.

Stark also makes it clear that he saw something black, something that appeared to be a gun, and with prompting, what appeared to be a gun was being drawn with "a very aggravated movement," yet the movement took "…several seconds to actually get it out." A reasonably rapid draw can be accomplished in ¾ of a second, and substantially less time for well-trained shooters, yet Scott's motion was "very aggravated." Pantomime a draw taking from 2-3 seconds until the weapon is pointed at your imaginary target. Two to three seconds might sound fast, but it's actually amazingly slow, particularly in this context. No rational person could characterize the almost comically slow speed of such a motion as "very aggravated."

It should also be noted that the detectives did not establish how, in a crowd of hundreds of people who were constantly in motion, he could have a clear, consistently unobstructed view of everything that was happening, including Scott's alleged drawing of a specific handgun, nor does Stark offer such information.

Despite having no idea who actually fired or why, Stark rushed closer and apparently while running and drawing, he took the time to be absolutely sure of his backdrop before firing. His "safe" backdrop was one of the huge pillars, a pillar made of concrete and steel and faced with embedded rocks, making a perfect random ricochet generator.

Having heard only the word "ground," having seen what had to be a comically slow, yet very aggravated drawing of something black that he thought was a gun, having heard an unspecified number of shots, and being completely surrounded by people, Off. Stark felt that he had to shoot because Mosher was in imminent danger, as were all the people surrounding them, and he shot at Scott as he was falling backwards, a moving target surrounded by innocent citizens.

Stark was right. There was imminent danger, but not from Scott, only from the officer's abysmal tactics and their panicky shooting.

The detectives do not inquire at all about any search of Scott or any of the hundreds of details that they should have nailed down, including what happened to Scott's or Stark's handguns. Again, amazingly, they asked the union lawyer to participate in the questioning, but she had no questions.

NOTE: The final officer interview of ex-Metro Officer Thomas Mendiola, which is followed by summary analysis of the entire 14-series Updates, will appear on Saturday, August 20.

The Erik Scott Case: Update 14: The Officers Speak--Sort Of

Note To Readers: I've experienced a bit of difficulty posting this Update in its entirety, so I'll be breaking it up into three separate posts, with 14.2 on 08-19 and 14.3 on 08-20. Sorry for the inconvenience, but on further reflection, this will probably make a long post more readable in the long run.

Every rational police officer lives in fear of being involved in a shooting. This is so for many reasons, but a few reasons haunt the nightmares of all competent, honest cops. No decent human being wants to take the life of another. Surely, police officers train to prevail in deadly force situations, perhaps even wonder how they would perform (do they have the right stuff?) but no sane person wants to kill others.

Beyond that primary reason, all police officers worry—with varying degrees of justification—that if they are involved in a shooting, no matter that it could be used in a police academy textbook as an example of a righteous shooting, their administrators might very well throw them to the wolves. They might do it simply because they don't like them, or like Barack Obama, they never let a crisis go to waste. Police officers are strong-willed, assertive people, people used to being in control, people who don't like to back down. They tend to make enemies, and none so vicious or lasting as fellow police officers, particularly higher-ranking officers.

Officers might also be thrown to the wolves due to incompetence. Not their incompetence, but the incompetence of higher ranking officers, people promoted not because of their demonstrated knowledge or excellence, but because they were too dangerous to leave on the street, or because they are political hacks willing to quietly, and without complaint, do administrative dirty work. Finally, they may be destroyed for political reasons that won't manifest themselves until after the shooting. Perhaps the officer shot the wrong color person, or someone belonging to a minority or group currently enjoying some degree of influence and power. Perhaps the Chief or Sheriff will see political advantage in doing away with a "crooked cop," whether that cop is crooked or not. For the rational, thinking cop, there's just no way to know in advance that their agency will be competent and honest and will afford them the professionalism and protection they deserve.

Even in police agencies like Metro with powerful police unions and a long history of protecting officers involved in shootings regardless of the facts, no officer can be sure that they are safe. It is the very nature of a corrupt, highly politicized agency that introduces doubt. Being charged with a crime, particularly some form of homicide is career ending for any police officer. If they are convicted and sent to jail, it's likely life ending for nothing increases the status of any con more than killing a cop.

With this in mind, any detective investigating an officer-involved shooting (OIS) will take great care to nail down every possible detail. When they interview the officers involved, they will carefully and relentlessly question them about every possible issue and fact involved. They will leave no stone unturned, no question unasked. Because they will be making such interviews shortly after the shooting, they will have no idea whether the officers were completely justified or criminally liable, and they must approach the interviews with the primary goal of finding each and every fact, of revealing the truth, because they can have no idea what other evidence will eventually turn up and what it will mean. No investigator wants to go off half-cocked with an unsupportable theory of the case, a theory they'll have to eat without ketchup later. They also know that any rational officer will eventually get smart—if they weren't smart from the start—and lawyer up, so their first interview might well be their only interview. They'll take the time—often hours—to go over every detail again and again, to make sure they get as much as they can and that the information they obtain is as accurate as possible. They have to keep open minds, but these things motivate them.

No final conclusions about exactly what happened will be made for weeks, sometimes months. It takes time to interview all of the witnesses. Interviewing witnesses invariably brings up information that makes essential re-interviewing some—or all—of the witnesses again. The greater the number of potential witnesses, the more time is involved. In many cases, merely finding all of the potential witnesses is a very time-consuming matter. It takes time for ballistics, DNA and other forensic tests to be done and the results compiled. It takes time for the investigators involved to assemble and review all of the evidence and to come to conclusions supported by the evidence. It takes time for those conclusions to be reviewed by the upper levels of the agency, and time for them to come to a final decision.

It should also be noted that it is, in many states, a crime for anyone, including the original author/officer, to change a police report or document after it has been officially submitted. It is likewise a crime for any officer, higher-ranking or otherwise, to encourage anyone to change a report. Any additional information or corrections must be done by means of an addendum or attachment to the original report or document bearing the same unique identification number. Even where no law controls these matters, it is universal police practice. To do otherwise renders every police report or document suspect and liable to suppression in court.

In professional, competent police agencies, complex, politically-charged investigations take a great deal of time. There is no investigation as potentially complex or as potentially politically charged as an officer involved shooting that results in the death of a citizen. Commonly, only the most experienced, most capable investigators are assigned to such cases. Apparently not so with the Las Vegas Metropolitan Police. There is substantial evidence to indicate that their narrative, their official version of the case, was etched in stone within a few hours of the death of Erik Scott, and that the goal of Metro in the post-shooting phase of evidence gathering and analysis was not discovering the indisputable truth, but in supporting the narrative concocted shortly after Erik Scott died.

This update will examine the official Metro interviews of the officers involved. I will first summarize the very brief and incomplete interview transcripts, and then explain what is present, what has been omitted, and what all of that might mean.

OFFICER STATEMENTS:

(1) Date/Time: 07-10-10, 1640-1655
Duration of Interview: 15 minutes
Officer WILLIAM MOSHER
Interviewed By: Detective B. Jensen, Det. M. Wildemann
Also Present: Sgt. Chris Halbert and Police Protective Association General Counsel Kathy Werner-Collins (wife of PPA President Chris Collins—interesting coincidence)

SUMMARY:

Off. Mosher said that Scott—he didn't use his name—was reported to have been under the influence of drugs, perhaps experiencing "excited delerium," and could be "irrational and extremely dangerous." He also said that store employees asked Scott to leave several times but he refused. He said after arriving, he went to the south exit of the Costco.

Mosher's statement about how the evacuation came about is very confused. He speaks of talking with people about evacuating-- suggesting that he ordered the evacuation--yet speaks of another unnamed officer doing it:

""Um, that time, uh, based on the details of the call, and based on the situation with an individual with a handgun inside the business, and the threat to public safety that he posed, uh, officer began evacuating, ah, quietly evacuating citizens…"

Mosher said that Off. Mendiola arrived before he did and also positioned himself at the exit.

Mosher said: "Ah, myself and Officer Mendiola will be the only officers on scene at that particular time, ah, made the determination not to go in and engage the suspect, due to the fact that with his mental state, and then the handgun that he might cause a shooting inside the business…Uh, the business, or the security, security officers were communication with Officer Mendiola, stated the subject was still inside the business and still acting erratic and being uncooperative, and refusing to leave, and that he was in the center of the business."

Mosher does not say whether he and Mediola had any idea where Scott was at any given moment, and the Detectives, amazingly, don't ask. The telephone transcript of the 911 call indicates that the dispatcher was not giving the officers regular or accurate position updates. In short, the officers had no real idea where Scott was or what he was doing at any time and the detectives don't bother to ask questions that might have clarified this important tactical factor.

Mosher said that a store employee (he apparently didn't know Costco Security employee Shai Lierley's name) pointed out Erik Scott to him, obviously after Scott walked right past him while leaving the Costco, though Mosher did not say this. Mosher did say that Lierley pointed Scott out quietly. Scott was unaware of it; Mosher did not have to confront him in the middle of a very large surrounding crowd.

In response to a question, Mosher said that Scott was in "…a very large crowd…" so he couldn't tell if anyone was with him.

Mosher said: "At that time, ah, due to the crowded situation, I—the suspect with his back turned to me, I attempt to make contact. Ah, I don't know if, I might of, I may have patted him on the back to try to get his attention and have him turn around, or I yelled at him. I'm not sure which I did 'cause it happened very quickly."

The crowded situation made it essential that Mosher contact Scott at that moment?! For any competent officer, the exact opposite would be true. When surrounded by a crowd of innocents, the absolute priority would be to do nothing at all to escalate the situation and to separate the potentially dangerous person—who in this case was showing no sign of danger at all—from that crowd.

In response to questions, Mosher said that he was at arm's length from Scott and that Scott appeared "…somewhat startled." I've no doubt Scott appeared startled. Who would not be in that situation? Mosher also said that Scott turned to face him and he saw "…a, uh, black semi-automatic handgun in his waistband." Scott's weapon was dull silver in color and was under his shirt. Mosher could only have seen an outline—if he saw anything at all—which suggested a handgun. He could not have identified anything about the handgun at that point.

Mosher said he had already drawn his handgun, and backed away from Scott to a distance of about six feet and told Scott to get on the ground. He said: "…but almost as soon as I gave the verbal command, he said 'I have a gun,' and reached into his waistband, making a furtive movement. And, ah, at that time he removed the, what, what appeared to be a black semi-automatic handgun from his waistband and pointed it in my direction."

In response to questions, Mosher continued: "At that time, uh, fearing from my safety, the safety of other officers, as well as the safety of hundreds of citizens in the immediate vicinity, and being concerned there'd be an active shooter situation, uh, I engaged the suspect, uh, firing my weapon approximately two to three times to incapacitate the suspect." The detectives don't bother to try to clarify how many rounds Mosher fired. This is a matter of some importance.

Mosher said that he handcuffed Scott, who was on the ground, saying that he was concerned that he might be wearing body armor or have "additional weapons on him," but Mosher does not say that he actually searched Scott for weapons or body armor, or that he found either, only that he handcuffed him.

The following exchange took place:

Q: "In, ah, just prior to your shooting, were you, were you aware of what your background was, if there was people nearby, or anything that you could of injured by firing your gun?"

Mosher: "Uh, I didn't observe any people behind him, just a, ah, open parking lot Ah, prior to the, ah, shooting there were a lot of people but they, ah, immediately began moving out of the way, as the situation unfolded."

Q: "So you had a pretty, you had a pretty clear backdrop behind you."

Mosher: "Yes."

Q: "At 12:47 in the afternoon. A lot of people around?"

Mosher: "Yes."

Q: "Okay. What happened to his handgun, ah, after the shooting?"

Mosher: "Ah, his handgun, uh, it fell out of his hand, and landed on the ground in front of him."

Q: "Okay. Was it in a holster or anything?"

Mosher: "It appeared to be a, ah, appeared to be a black semi-automatic handgun, possibly a .45, and it was in some type of a pancake holster. The type of holster that, ah, that you can take on and off your belt, ah, very easily."

Q: "Okay. Did you move that gun at the scene?"

Mosher: "No."

Q: "Do you know of anybody else that moved the gun?"

Mosher: "Not to my knowledge."

The detectives try to prompt Mosher to recall Samantha Sterner's behavior and statements, but he is quite vague and they drop that line of questioning. They also try to prompt him to say that radio traffic specifically said where Scott was carrying his handgun, but again, he's vague and they drop that too.

The detectives try to prompt Mosher to paint Scott as obviously impaired, and this exchange takes place:

Mosher: "I felt that he was under the influence of some type of, ah, narcotics, and he seemed very excited and very agitated, uh, upon making contact with him."

MW: "So the way he said it was not like, uh, and I'm just throwing this out here, he didn't say, 'Hey I have a gun.' It's more of an excited…"

Mosher: "Excited more. It was excited."

MW: "…almost, is it almost a scream?"

Mosher: "It wasn't a scream, but he seemed very excited, and very agitated about something at the time."

MW: "Okay. All right."

Mosher: "It made me, in my training and experience, to believe something wasn't right."

At this point in the brief interview, the detectives try to clean up things Mosher left out:

MW: "Okay. Uh, did you happen to pat him down after you cuffed him?"

Mosher: "I made a quick pat down of his, ah, lower immediate access, and then I made a determination, ah, not to, to further contaminate the crime scene after he was cuffed and, and after being cuffed, I didn't see any movement, so I decided not to go further with the search at that time, a complete, ah, pat down."

At this point the detectives prompt Mosher to imply that if Scott would have obeyed his commands, he would have been peacefully taken into custody. And again, the detectives try to prompt Mosher to clarify that Scott pulled and pointed a gun at Mosher rather than attempted to merely show him that he was carrying one. They ask where Scott's hands were:

Mosher: "I don't remember where his hands were exactly. I just remember it happened very quickly. I just remember him reaching for the gun.

At this point, the detectives turn the questioning over to PPA attorney Kathy Werner-Collins. She tried to prompt Mosher to say that as an officer trained in crisis intervention that he was actually dispatched to the Costco in that capacity:

Mosher: "Ah, I would of tried to make it safe first, and establish some type, try to establish some type of dialog, in order to, ah, effect, ah, a safe, make the situation safe, and take him into custody safely."

KWC: Um why did it not unfold in that manner?"

Mosher: "Uh, there was simply no time."

KWC: When you say no time, um, your, your initial commands to him were to get down on the ground, correct?"

Mosher: "Yes."

KWC: "And at that point you would of tried to communicate with him verbally?"

Mosher: "Yes."

Werner-Collins then prompts Mosher to say that he carries a Glock 21 .45 ACP handgun with a 13 round magazine and one round in the chamber. However, there is no further mention of exactly how many rounds remained in Mosher's handgun after the shooting, or any additional details.

At the end of the interview Sgt. Halbert says: "I have something, if, if and when."

One of the detectives—the transcript does not identify him—says: "It can wait," to which Halbert replies "Okay," and the interview ends.

ANALYSIS:

This interview is one of the most bizarre and jaw-dropping I've ever seen. First, consider that it lasts only 15 minutes. This is the interview of a police officer primarily responsible for killing a citizen only about three hours earlier, and it lasts only 15 minutes? During my police career, I routinely conducted interviews many times longer for far less serious crimes; every investigator I ever knew did. The lack of detail in this interview is simply amazing. Any of my past supervisors reading this interview would have been chewing enormous holes in my posterior for that failing alone ("This interview took you only 15 minutes?!"), and it would have been very unlikely that I was ever allowed to handle any important case again.

Every competent investigator understands that it is imperative that officers and other witnesses be interviewed, at great length and absolutely completely, as soon after the incident as possible. With time, memories fade or begin to change their shapes. People convince themselves that they saw things that did not happen or didn't really see things that did. Conversations with others subtly change their memories. Before doing an interview, detectives must be as well prepared as possible, and must take copious notes, notes that will be essential in preparing for the interviews that follow.

Off. Mosher does not supply the kinds of simple details any competent police officer would routinely supply, and the detectives do not ask for them. They simply fail to ask the kinds and amounts of clarifying questions one would expect of any competent investigator, and I'm not talking about Sherlock Holmes kinds of deductions and inferences, but the kind of logical follow up questions Mosher's lack of detail should provoke, particularly considering the nature of the case and the person being interviewed: Mosher is the one person most responsible for everything that happened. He is most responsible for Erik Scott's death.

Mosher's account is full of omissions, misstatements and contradictions, yet the detectives do nothing to clarify those problems. Mosher said that the dispatcher told him that Scott might be under the influence of narcotics and that employees told him to leave several times and he refused. The police telephone transcript and dispatch records indicate that the dispatcher did suggest there might be drug involvement and said that Scott was asked to leave only once, yet Lierley, the only person speaking with the dispatcher, did not tell her that. She apparently assumed it, and the drug involvement. Lierley told her only that Scott was acting "a little erratic," "dodgity," "fidgety," and was "kinda talking loud to his girlfriend." Despite remembering this with clarity, later in the interview, Mosher could not recall if the Dispatcher told him particularly where and how Scott was carrying his gun, allegedly because he was so busy paying attention to his driving.

Mosher adds, apparently remembering it at the last minute, that Scott was possibly exhibiting signs of excited delirium. The dispatcher asked Lierely about this, but Lierley did not confirm it, quite the opposite, and the dispatcher is not known to have transmitted that specific information to officers.

Mosher confirms that he and Mendiola were self-posted at the exit doors of the Costco and apparently that the evacuation was already underway when he arrived. He also confirms that there were, in his own words, "hundreds" of citizens leaving the Costco.

Mosher says that Mendiola was in contact with store security officers—the only possible person could have been Lierley—who told him that Scott was still inside the business, was still erratic and uncooperative and refusing to leave. Neither Lierley nor the telephone transcript confirm this account. In fact, when Mosher arrived at the door, Erik Scott and Samantha Sterner had not had any contact with store employees for some time, and were simply walking out of the store with all of the other customers who had been told to leave. Lierley was on the phone with the dispatcher and was clearly telling her that Scott was not behaving strangely and was simply walking out of the store with Sterner. There is no evidence at all that any store employee ever directly asked Scott to leave the store, or that being asked, he refused. In fact, when asked by Costco employees to leave, he did, just as every other customer in the store that day.

Mosher describes Scott, but confirms—by failing to say it—that Scott was so unremarkable that he walked right past him and Mendiola despite matching the description Mosher provided, and Mosher was not aware of him at all until Scott was already past him and heading for the parking lot at a normal walking pace when Lierley—whose name he did not know—pointed Scott out to him. Again, bizarrely, the detectives do not clarify any of this.

Mosher again confirms that Scott was among "a very large crowd," and here Mosher suffers a remarkable lapse in memory. Mosher cannot recall if Scott is with anyone, which is significant in that Sterner repeatedly screamed at Mosher that Scott was no threat and begged him not to shoot, and she was standing within mere feet of Mosher. Sterner's testimony is confirmed by multiple witnesses.

Clearly, Mosher is behind Scott, and both he and Scott are facing toward the Costco parking lot. Scott is walking away from him, walking toward the parking lot. Despite the crowd surrounding them, rather than allowing Scott to walk out of the crowd, into the parking lot where he could be safely approached and the risk to bystanders lessened or eliminated, Mosher acted impulsively and without regard for the tactical situation or the safety of the public.

Mosher said that due to the "crowded situation (?!)" he "attempted to make contact." Mosher said that he either patted Scott on the back to get his attention or yelled at him. He couldn't remember which because "it happened very quickly." Mosher would have us believe that Scott posed a deadly risk to him, to the other officers and to the hundreds surrounding them, a threat so dangerous, so imminent that he had no choice but to immediately confront Scott. Mosher had to approach him then and there, yet all Scott was doing, by Mosher's own account, was simply walking, in a completely normal, unremarkable fashion, to the parking lot. Scott clearly had no idea that the police were interested in him or considered him a threat. Mosher paid no attention to Scott as he passed him while leaving the store, and Scott paid no attention to him. So Mosher either patted him on the back or yelled at him--opposite ends of the "could I speak with you please, Sir?—spectrum. And despite fearing for his life and the lives of everyone around, he positioned himself within arm's reach of a man he feared represented an imminent threat of death to himself and the hundreds around him.

This alone is such a fundamental departure from police training and competence as to be stupefying. Officers are taught, over and over, that distance is life. Only putting distance, and when possible cover—materials capable of stopping bullets—between yourself and a deadly threat, can ensure your survival. No competent, rational police officer knowingly puts himself so close—within touching distance!--to a potentially deadly threat that he cannot clearly perceive a threatening movement or react in time to avoid or stop it.

Remember too that Mosher told the detectives only minutes earlier that he and Mendiola did not enter the store to confront Scott out of their concern for getting into a gunfight inside the store. However, Mosher apparently lost his concern for the public when they were outside the store and surrounding him and Scott was simply walking away from him, unaware of his presence or intentions.

Mosher said that he already had his gun drawn when Scott turned, and noticing Mosher—obviously pointing a gun at him—was "somewhat startled." Imagine that. This is significant as I'll reveal in the next update which sums up the statements of civilian witnesses, that several noticed that the officers—certainly Mosher and Mendiola—had their weapons drawn long before they ever laid eyes on Scott.

Despite having no idea how he actually got Scott's attention, Mosher says that he saw Scott's handgun "in his waistband," a handgun covered by Scott's shirt. Mosher does not clarify this, nor do the detectives. This is an example of the remarkable lack of curiosity displayed by the detectives. What competent investigator would not clarify how it was possible for Mosher to have seen the handgun—and to be able to partially describe it—while it was under Scott's shirt, and while he was quickly turning in response to whatever Mosher did to get his attention? Even if it was clearly exposed—and all evidence suggests just the opposite--Mosher could have had only a fleeting glimpse of it, yet this seems an unimportant detail to the detectives.

Mosher's memory is equally vague regarding what he said to Scott, and the detective's lack of curiosity continues in this. Mosher claims only to have told Scott to get on the ground, but the telephone transcript, including the audio version about which I wrote in Update 4 (available in the Erik Scott Archive in the right hand side of the CY home page), reveals Mosher—and possibly other officers--yelling only, and in this order: "Put your hands where I can see them now; drop it; get on the ground; get on the ground," and all in one constant stream of screamed commands, obviously not in response to separate actions by Scott, as from the moment of the first word the officers say until the first round is fired, only about two seconds—give or take a few fractions of a second--elapse.

Consider what we know was said, what is clearly audible on the official record: There is no evidence to suggest that Scott's hands were not visible—Mosher certainly can't remember anything about their position—so why would it make sense to tell him to show his hands? And if his hands were not visible—instead of holding his Blackberry, which was found on the ground near his body—wouldn't Mosher have been able to remember that? If Scott had not drawn his handgun until a fraction of a second before Mosher shot him, what would compel anyone to tell him to "drop it" earlier? And what sense does telling him to get on the ground, particularly considering the first two commands, make? Considering that all of these commands took place within less than two seconds, who would know what to do and when? Even if it was possible to process each individual command and begin to comply (the fastest humans can do this within about a quarter second—for most, it's much longer), each command was interrupted by another command that contradicted the command preceding it, making response impossible.

(NOTE: Consider also that Erik Scott suffered from "Tanker's Ears." In other words, like many people who are subjected to loud and continual noises as a result of their occupation, Scott had difficulty distinguishing anything that was said in crowds. Due to all of my years involved in shooting, even with consistent ear protection, I too have this difficulty. When many people are talking simultaneously, even in restaurants, I have difficulty hearing what people at my table are saying. This will become even more important shortly.)

Yet Mosher says that in response to his command to get on the ground—which was actually said to Scott only fractions of a second before he was shot, Scott reached "into" his waistband, "making a furtive movement." Mosher said that Scott pointed a "black semi-automatic handgun" in his direction.

Any competent detective who was trying to get all the facts, who was trying to discover the truth, would have had, at the very least, these questions for Mosher at this point:

Which hand reached? How did he reach? What do you mean by "into his waistband? In the front? The side? The back? What do you mean by "furtive?" ("Furtive," in cop-speak, normally means stealthy or secretive, as in someone furtively trying to hide or dispose of drugs—it's not a bold, alarming movement) Was his hand moving slowly? Quickly? When you say he pointed the gun in your direction, what, exactly did he do? Which hand was holding the gun? How was he holding the gun? Where, exactly was it pointing and when? What did he say? Did he utter a threat? Did he make eye contact? What was his facial expression? How did you know he presented a clear and imminent danger? Yet the detectives asked none of these basic, absolutely logical, simple yet vital questions.

The rest of the transcript relating to the actual shooting is formulaic, almost as if read, clumsily, from a stilted Hollywood B-movie script. Despite the fact that Mosher says he was worried that Scott might have another weapon or might be wearing body armor (under a t-shirt in Las Vegas summer weather?), he says nothing at all about actually searching Scott, merely handcuffing him.

Mosher is not sufficiently competent to speak to his backdrop when firing; he has to be prompted by the detectives, who, for a change, are relatively detailed in asking about it. Even so, Mosher blows it saying vaguely: "Uh, I didn't observe any people behind him, just a, ah, open parking lot. Ah, prior to the, ah, shooting there were a lot of people but they, ah, immediately began moving out of the way, as the situation unfolded."

The detective added: "So you had a pretty, you had a pretty clear backdrop behind you."

Mosher replied: "Yes."

We are asked to believe that Officer Mosher, who could not remember what the dispatcher told him about the location or details of Scott's handgun because he was concentrating on his driving, who could not recall whether he patted Scott on the back or yelled at him because everything happened so quickly, who could not recall where his hands were, or what he said to Scott, yet who could see and identify a handgun through opaque clothing, took the time to ensure where the hundreds of citizens surrounding him were before he opened fire? He is correct about one thing: As soon as the officers opened fire in the middle of the crowd, people were indeed "moving out of the way," as in ducking, running for their lives, throwing their loved ones to the ground and putting their bodies between them and the officers. I'll address this in the analysis of civilian witness statements in the next update.

And just what is a "pretty clear backdrop?" Does that mean that 25% of the crowd was in the line of fire? Only 15%? In police work officers either have a completely clear, safe backdrop or, absent having no choice at all, in a situation so dire that possibly hitting an innocent would be the clearly justifiable lesser of two evils, they do not shoot. There are no quibbles; they do not shoot. It is the detectives who prompt Mosher into this fuzzy standard of safety and they do not clarify beyond it.

And again, the detectives have to prompt Mosher, step by step, into telling what happened to Scott's gun. Mosher just says it fell to the ground and the detectives have to prompt him into stating that it was in a holster by asking him specifically: "Okay. Was it in a holster or anything?" Mosher again gives a vague and factually incorrect answer, not even particularly describing the holster or its color, and again, the detectives are satisfied. Remember too that until the Detectives prompted him, he said nothing at all about the gun being in a holster. This too is a matter of some importance.

This is a real problem in this case in that Scott's holster was an inside-the-waistband holster—not a pancake holster as Mosher said, which is a completely different type--with the rough side of the black-dyed leather visible. With this type of holster, all that is visible of the weapon is a tiny portion of the back of the slide including part of the rear sight—that only from a certain angle--and the grip of the weapon. Scott's .45 ACP Kimber was dull silver in color with black grip panels. If Scott was holding it by the grip, as though to shoot Mosher, as he implies, particularly with everything happening so fast, the only thing Mosher could have possibly seen was the indistinct shape of the black holster. He could have seen nothing of the handgun, particularly if things happened as quickly as he claimed, and because of his unnecessary and reckless provocation and escalation of the incident in the middle of a large crowd of innocents, it did happen just that quickly. Mosher correctly identified the color of the holster, not the gun. He got the caliber wrong as well, and this only after he supposedly saw it after the shooting.

The detectives while ignoring virtually every other detail, are keen to prompt Mosher to say that he was totally unaware of Samantha Sterner, who was standing right next to him begging him not to shoot Scott, until after Scott was down and dying or dead. Only then, according to Mosher, was he aware of her and what she was saying. While this is possible due the "tunneling" effect officers often experience when under great stress (their field of vision actually narrows; they see and hear only what is directly if front of them), it again flies in the face of his purported ability to remember things obviously impossible for him to have seen and the many things he should have seen and remembered but did not.

The detectives are also motivated to prompt Mosher to portray Scott as under the influence of drugs. Remember that Mosher had only approximately two seconds to observe Scott face to face before he shot and killed him. Yet in those scant seconds, Mosher felt that Scott was under the influence of narcotics, was very excited and agitated, and in his "training and experience," he believed that "something wasn't right." Remember that this is the man who couldn't recall whether he patted Scott on the back or yelled at him, couldn't accurately recall which commands he gave Scott—or how many--yet he, in two seconds, accurately diagnosed Scott's level of drug impairment while simultaneously shouting commands he couldn't recall, scanning the parking lot and hundreds of people to determine that it was a "pretty clear backdrop," observed Scott well enough to determine that he was trying to shoot him (while incorrectly identifying the color and caliber of the weapon—a weapon he could not see because it was completely encased in a holster), and delivered two shots into Scott's body--all of this within two seconds.

They next prompt Mosher to remember that he patted Scott down after handcuffing him, but again, Mosher is vague and unsure, saying that he made "a quick pat down of his, ah, lower immediate access," stopping then so as to preserve the crime scene. This is, to put it kindly, idiocy. Remember that Mosher said that he was worried about a second weapon or body armor, yet he only does a quick pat down of Scott's "lower immediate access?" Just what is his "lower immediate access?" The detective's utter lack of curiosity keeps them from asking. Normally such an odd, confused answer would automatically prompt any competent investigator to ask clarifying questions.

In all police training, safety comes first. This is drummed into officers from their basic academy onward. In such situations, officers ensure, first and foremost, that the suspect is no longer a threat, which means a complete and competent search, and if this in any way makes the work of crime scene technicians a bit difficult, too bad. Lives trump all else. For Mosher to suggest that with the smell of burnt gunpowder in his nostrils, looking at the bleeding Erik Scott on the ground before him, he had the presence of mind to think that he had better not search Scott, despite roughly handcuffing him, so as not to muss the crime scene, is absolutely ludicrous.

What is also very interesting is that the detectives don't ask about Scott's Ruger .380 LCP pistol which was supposedly found in his pocket, his second gun which was supposedly found in the ambulance on the way to the hospital, the gun which Mosher must have missed while searching Scott's "lower immediate access." It would be essential to have asked Mosher why he did not find this gun during his "search," particularly since it was supposed to be in a pants pocket and would have been easily visible through the material, to say nothing of being easily recognizable as a handgun if Mosher had actually touched it. Metro's narrative would have required that the officers—and certainly the detectives—were aware of that gun, which was supposedly found in one of Scott's pockets at around 1315 in an ambulance, only a few minutes after the ambulance left the scene of the shooting enroute to the hospital.

An essential part of selling that part of the story is that Mosher missed it, making it possible for it to be found by a medic in the ambulance. Unless these detectives were just the sort of really sensitive, new-age kind of police who would never embarrass a fellow officer, there is only one explanation: They didn't bring it up because when they were conducting the interview of Mosher, they had no idea if they could find it and use it as they intended. Remember that they were aware of the existence of the gun. Scott's blood stained blue card (local handgun registration) was found in his billfold, which was given to them by a medic before they took Scott to the hospital. Scott always kept it in his right front pants pocket, which would have meant that he could only have carried the Ruger—and the spare magazine the police "found"--in his right rear pocket. In that pocket, no competent officer could have missed seeing it imprinting through Scott's clothing.

The detectives did know that Sterner's car had been searched in the Costco parking lot, despite the fact that it had no relationship to the events at the Costco. It was just one of hundreds of cars parked in the Costco lot. They had no reason to search it, but obtained Sterner's permission while she was still in shock, and did not find the Ruger, which is the only logical reason they could have had for searching the car. They could not have found the Ruger in her car, but didn't know that at the time.

The problem was that the police weren't able to get into Scott's home until about 1900 using the cover of the Public Administrator's office to enter and to seize that gun and other items. Scott's home had nothing whatever to do with the events at the Costco. There was no legal justification, no need to search it. So why were the police so desperate to do so? Why did they persist in trying to gain permission from Kevin Scott who had no legal standing to consent, from shortly after Erik Scott's death until they finally entered the home?

Scott never carried the Ruger; he did not carry a backup gun. On the day he died, it was left, as it always was, in his home. The detectives did not ask Mosher about the gun because they did not have it when they interviewed him, and because they could not be sure they would find it to use as a part of the narrative. Mosher was completely unaware of the gun because he failed to search Scott, not out of fear of mussing the crime scene but out of dumfounded incompetence. The detectives, having no idea if they could find and use the gun, would have been very unlikely to have mentioned it to Mosher or anyone else unless and until they knew it could be found and fit into the narrative.

For those have not been following the case, the evidence suggests that Scott never drew his gun—even if he understood Mosher, he simply did not have the time—and that it was this weapon, his .45 ACP Kimber in its black inside-the-waistband holster that the medic found inside Scott's waistband in the ambulance. Scott was taken to the hospital almost immediately after being shot. It was only then that the officers realized, to their horror, that there was no gun at the scene, only Scott's Blackberry. The Kimber was hastily returned and placed at the scene, but there had to be a gun that the medic "found" in the ambulance. The medic knew it, the ambulance driver likely knew it, who could tell how many others they would tell? The police could not be sure that they would play ball. The police had Scott's blue cards, they knew about the Ruger, which was perfect. It was small enough to be concealed in a jean pocket, and failing to find it would be stupid and dangerous, but much easier to explain than failing to find a full-sized 1911 pattern pistol. Better to appear to be incompetent than the alternative in this case. Recall, please, Mosher's pitifully vague memory of any kind of a search of Scott after he was shot, handcuffed, unmoving and bleeding out.

Then they prompt Mosher into saying, again quite clumsily, that if Scott had only obeyed his confusing, contradictory, shouted commands within the second and a half available at the fastest possible human recognition and reaction speed, Mosher would simply have worked out the whole situation peacefully.

One detective makes a final stab at details, but only to try to solidify Mosher's claim that Scott tried to shoot him, not to gather every possible detail. The best Mosher can do is say: "He goes in his waistband and comes out with a gun." This despite the fact that all Mosher could possibly have seen—if he saw anything at all—was a black holster that completely covered Scott's handgun. They keep trying, but Mosher can't remember where Scott's hands were, all he can remember is Scott reaching for something black (Scott's Blackberry was black and ended up on the ground near his body) he thought was a gun but was actually a holster that would have prevented Scott from firing the gun (it completely covered the safety and trigger guard—Scott could not take the weapon off safe or reach the trigger) even if he wanted to.

At this point in the transcript, something very unusual happens. Kathy Werner-Collins, PPA attorney and wife of PPA President Chris Collins, is actually invited—by the detectives--to take over the questioning! I have never heard of such a thing. While it is not uncommon for police agencies to allow union representatives or attorneys to be present in interviews of officers, to allow them to participate in the investigation by questioning the officer is simply bizarre. No rational attorney should have any part of such a thing as it removes them from their role as attorney, breaches attorney-client privilege, and makes them a witness, a witness who may be called to the stand to testify about the questions they asked and answers they received as well as their motives in asking them.

That said, Werner-Collins tries to rehabilitate Mosher to portray him as a sensitive, caring kind of guy who was only trying to establish a meaningful dialogue with Scott, but again, things just happened too darned fast for Mosher to non-violently save the day.

Things get really strange when Werner-Collins does the detective's job for them and gets the only vague details about the gun Mosher used to kill Scott on the record. The detectives, displaying their usual competence, do not question him about it at all. They don't ask what he did with it after the shooting, who took the gun and spare magazines from him (as far as we know from this interview Mosher still has them; they were never entered into evidence) when that happened, or any of the absolutely essential details necessary to establish that Mosher did not in any way tamper with that vital evidence after he shot Scott. This is Basic Investigation 101, yet they totally ignore it.

It would be interesting indeed to know what Sgt. Halbert wanted to ask Mosher, because the detectives cut him off the record. I suppose that's understandable, as Officer Mosher had already been subjected to 15 whole minutes of grueling interrogation and may have been on the verge of exhaustion.

This entire interview makes little sense. It makes the detectives look like rank incompetents. It makes Mosher look barely sentient. It does not provide real, indisputable—even plausible--grounds for shooting Erik Scott. Mosher does not clearly explain why he had to provoke a deadly force encounter in the middle of a crowd of hundreds (by his own estimation), nor do the detectives ask him to explain it. It ignores an incredible number of important, indispensable details. Considering the gravity of the situation, it simply isn't even remotely long enough to be a competent interview.

Unless, that is, it was designed not to be a competent interview, but to solidify and fulfill a narrative that was already mostly completed. For that narrative, this checklist would be sufficient:

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

(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.

(8) Searched Scott (sort of and didn't find anything, especially not a gun which we can't mention right now anyway)? Check.

(9) Didn't see Sterner (who was feet away, screaming at you not to kill Scott) until after you killed Scott? Check.

As you continue to read this update (14.2 & 14.3), remember this checklist and the narrative it fulfills.

The Eric Scott Case: The Permit

Bill Scott, Erik Scott's father, is an accomplished man. A former test pilot, Scott is an accomplished writer with well-respected books to his credit, primarily in the aerospace field, and a sought-after consultant. He has appeared on a number of History Channel specials.

In response to Eriks' death, Mr. Scott has been writing a serialized web novel called The Permit. While clearly fiction, those with knowledge of the Scott case will detect fascinating similarities to reality and perhaps even clues to reality not fully in the public domain.

The Permit can be accessed here. It's well done, interesting reading and would surely be of interest to those who have been following the Scott case. However, the book stands on its own for those who have not.

Mr. Scott's website is here, and the website he has established as a memorial to Erik Scott is here.

The Erik Scott Case, Update 13.2 Stalling and Consequences

For some time, the updates in the Scott case have dealt with issues not consistently directly related to the outcome of that case. I've focused on issues such as attempts by the Metro Police Protective Association (union) to do away with the newly minted inquest rules, and bizarre cases of Metro officer misbehavior and brutality that tend to illustrate the incompetent and corrupt culture of Metro from the lowest officer on the street to the Sheriff, Doug Gillespie.

This update will deal with two primary issues: The continuing case of Officer Derek Colling who beat and falsely arrested Mitchell Crooks for filming what was apparently completely proper police behavior, and the continuing efforts of the PPA to shelter Metro officers from having to fully account for their actions when they kill citizens.

However, on Wednesday, August 17,2011 I will publish Update 14, which is quite a lengthy analysis of Metro's actual interviews of the officers that shot Erik Scott. While long, it is very much worth your time. Until I was able to obtain copies of Metro's official reports and related documents in the Scott case, my only sources of information were the testimony of officers at the inquest, media accounts, and information gathered from willing sources in informed positions. What the metro reports reveal is very much in line with my earlier analysis, but is even more disturbing. Metro's culture and behavior is bizarre and unprofessional beyond anything I had previously imagined. Don't miss Update 14.

Before I begin, here are the links to previous updates and other sources quoted in this update:

(1) Go here for a Las Vegas Review-Journal story about a sort of half-disposition in the Colling case.

(2) Go here for a Review-Journal story on the continuing obstruction of the new inquest process by the PPA.

(3) Go here for a Las Vegas Sun article on the battle over the inquest process.

(4) Go here to Update 10.2 where I first addressed the issue of Off. Colling.

(5) Go here to Update 11.2 for a follow up on that case.

(6) Go here to Update 10.3 where I began addressing the attempts by the PPA or interfere with the inquest process.

(7) Go here to Update 12.2 for continuing information on that issue.

(8) Go here to Pajamas Media where I published an article on the law relating to citizens photographing police officers. The Colling case is mentioned in that article.

(9) Go here for a Review-Journal article on the potential resumption of inquests.

NOTE: Every article relating to the Scott case is available in our dedicated archive. Go to the right hand side of the CY home page. It's under "Archives by Category": "Erik Scott Case".

THE MITCHELL CROOKS CASE:

On July 29, the Review-Journal reported that Mitchell Crooks, the victim of a beating and false arrest by Metro Officer Derek Colling, received notice from the Metro Internal Affairs Bureau that Colling violated Metro policies. It was also reported that Colling has been on paid suspension since April 1, which was apparently not previously made public. However, the internal investigation is still ongoing, and Metro is not releasing the specific policies Colling may have violated, nor has any punishment—if any—apparently been decided.

Crooks is suing Colling and Metro, as are the parents of a 15 year old man Colling shot and killed. In 5 and ½ years working for Metro, Colling has shot and killed two citizens, much like William Mosher who in about the same time frame, shot three, killing two. Crooks reported that in June he was stopped and cited for no insurance by an officer who apparently recognized him. According to Crooks, that ticket was dismissed, which would tend indicate that Crooks did have insurance or the judge involved was otherwise convinced the charge had no merit.

Several lower-ranking Metro officers were not on Colling's side. One said: "The majority of us think Colling made a mistake. All the officers I talked to understand that citizens will see this video, and yeah, we know it looks bad."
ANALYSIS:

The beating and false arrest of Mitchell Crooks took place on March 20, 2011. As I mentioned in earlier updates, Metro seems to take an unbelievably long time to deal with disciplinary issues. It is nearly five months after the incident and the matter is not resolved? In professional Law Enforcement Agencies (LEAs), such things are commonly handled in days or weeks at most.

The process would normally work like this: When reading reports at the end of a shift, a supervisor (usually a Sgt.) would recognize a problem and begin an informal investigation. If warranted, he would begin a formal investigation, and this would normally be started within a day or two. In smaller agencies without an internal affairs unit, the shift supervisors (Sgt/Lt.) would normally complete the investigation, identify which specific policies/rules had been violated, and recommend appropriate punishment. Their report on the incident and recommendations would normally be forwarded to their division commander (usually a Capt. or higher) and then to the Chief who would review and alter, or sign off on, the recommendations of the shift supervisors and division commander. For smaller, more routine violations of policy, this could be completed within just a few days. For more serious incidents which could result in an officer's firing, a few weeks might be required, or a month at the outside.

It's important to keep this in mind for several reasons. Professional agencies can't afford to keep officers in limbo for any length of time. They don't have the resources and it's terribly damaging to morale, not only for the officer(s) involved, but for every officer to realize that they might be hanging over the precipice for months, perhaps years, because higher ranking officers can't make decisions or are testing the political winds. It's also terrible public relations. The public has to wonder why things are taking so long. In the real world of work, it doesn't take months, even years, to figure out if someone has done something wrong, or realizing that they have, to assign appropriate and rational discipline. Even if the public doesn't understand the workings of police agencies, they know that when things take so long, something is fishy. This is a state of affairs that no professional LEA welcomes for any reason.

Why has this matter taken so long? It would not be unreasonable to believe that Metro is so unprofessional, so corrupt that they are simply unable to do in months what other LEAs routinely accomplish in days or weeks. One might also be tempted to believe that something underhanded is afoot, or that Metro is trying to run out the clock and allow this case to go down the Vegas/Metro memory hole like so many others.

As with the Erik Scott case, we also see what is apparently thuggish harassment of Mitchell Crooks by other officers. As regular readers will recall, in the aftermath of the Scott killing, many Las Vegas Residents put magnetic remembrance ribbons on the rear of their vehicles, and many were repeatedly followed, stopped and cruelly taunted and made to fear for their lives by Las Vegas and Henderson officers, including Erik Scott's girlfriend, Samantha Sterner, who was standing mere feet away when Scott was gunned down.

As I noted in past updates, professional officers do their best to avoid people who are involved in ongoing litigation. If they have no choice but to act, they do so professionally, briefly and with witnesses, but smart officers know that even the appearance of harassment or retaliation is terribly damaging, not only the ongoing cases, but to the reputations of police officers everywhere. In addition, officers understand that they might be criminally liable for tampering with witnesses. Apparently Metro has no such professional worries or fears.

Note that one unidentified officer said that Off. Colling "made a mistake," and that they realize the video "looks bad." That officer is reported to be speaking for the majority of Metro officers. There is indeed a code within law enforcement whereby officers tend not to speak ill of other officers, particularly to the public and press. This is both good and bad. On one hand, the public and particularly the press, don't understand the stresses and demands of the job and are often quick to misunderstand or take innocent comments in the worst possible light. Being circumspect about such things is a necessary and rational bit of protection for all officers against people willing to blow minor mistakes out of proportion and false, malicious charges. On the other hand, officers deserving of discipline might be given unwarranted cover.

Consider that this unnamed officer was willing to say—for public consumption--that Colling made a mistake. This likely means that among themselves, officers are saying the Colling really screwed up. Likewise, saying that the video looks bad is very much an understatement. Professional officers know that the video looks absolutely horrible, because any citizen might see them selves in Crooks' position. They have to wonder: If this guy is out there attacking citizens for no reason, how many more are doing the same? What happens to me if I run into one of them?

Speaking from an officer's perspective, when I saw the video, the first thought that came to mind was "this guy's screwed," meaning he was obviously and unmistakably deserving of being fired and sued. Speaking from a supervisor's perspective, there was no doubt in my mind—having no idea of Off. Colling's past—that Colling should be fired, not only because he was obviously unfit to be a police officer, but because to keep him on the job would subject his supervisors and Metro to unnecessary liability for negligent retention. Obviously, Metro doesn't think this way.

It might also be worthwhile to wonder about the minority of Metro officers who apparently don't think that Colling made a mistake. How large, exactly, is that minority? Five percent? Twenty-five? Do they believe that Off. Colling's behavior represents the reasonable exercise of professional police behavior? That Metro—or any LEA—might employ people who think that Off. Colling is blameless is very, very disturbing.

THE OBSTRUCTION OF INQUESTS:

By the end of July, nine months had passed since the last coroner's inquest, conducted under the old, rubber stamp rules. Since the implementation of rules giving the survivors of Metro killings substantial rights and the ability to ask questions of officers, not a single inquest has taken place.

Initially, the PPA swore that officers would not cooperate, in essence that they would ignore subpoenas, and tried to trick the legislature into passing a law that would have allowed the DA or Coroner to simply decide not to have inquests. That law was written in such a way that it would have applied only to Clark County. When that failed, the PPA made its threats of officers refusing to testify or otherwise do their duty more clear and strident and filed a lawsuit to block implementation of the new rules.

At first, the Clark County Commission canceled all scheduled inquests and planned to wait out the legal process. However, on July 25, 2011 the Review-Journal reported that 14 inquests were on hold (two more officer-involved shootings have since occurred) and speculated that the legal battle wouldn't be resolved until at least 2013, by which time the number of inquests would have more than doubled.

County Commissioners have expressed frustration on behalf of the survivors of victims of police shootings. Commissioner Steve Sisolak has even suggested that officer shootings be adjudicated by a grand jury. Sheriff Gillespie has suggested that he might allow his internal use of force board to clear officers and return them to duty regardless of whether an inquest is ever held.

The usual suspects maintained their usual thinking. PPA head Chris Collins said: "We're saying this process is not fair to ... anybody carrying a gun and a badge in this town." Collins continues to suggest that inquests be abandoned and that the DA be the sole official deciding on criminal charges. Collins then went even further than previously. According to the R-J story: "Even if the coroner's inquest returned to its previous form without an ombudsman, Collins said he doubts officers would ever participate, especially since they face no repercussions if they don't. 'I think the damage has been done,' Collins said."

DA Rogers, whose office has never criminally charged a Metro officer in the death of a citizen, also wants to do away with inquests in favor of making the decision alone. The R-J said that Rogers would "post every report and piece of evidence on a website for public review." Rogers made his familiar complaints about the work necessary to conduct inquests, and suggested that because of the backlog, it would be impossible to do future inquests, to say nothing of those already awaiting hearing: "I doubt we'll ever catch up" he said.

Former District Judge David Wall was to have been the ombudsman capable of questioning officers in the first inquest scheduled under the new rules. He noted that police resistance to the new inquests is based on the fact that officers will be, for the first time, subjected to potentially adversarial questioning. Wall observed: "To me that just perpetuates the notion that the tough questions weren't being asked."

Commissioner Chris Giunchigliani is also concerned. She said: "It's extremely frustrating. I'm especially worried about the families being caught up in this legal gamesmanship."
Giunchigliani suggested that the inquests could have proceeded even if the officers took the Fifth on the stand, believing that this would allow the process to proceed and would have, according to the R-J: "allowed closure for families and officers while helping police and government officials identify training and policy shortcomings that could be addressed to prevent future shootings." Giunchigliani said: "If people want to sue, fine, but it shouldn't stop our process."

On July 31, 2011, the Las Vegas Sun reported that Commissioner Sisolak—who opposed the creation of an Ombudsman—was suggesting that inquests be handled entirely by the DA or a grand jury, a potential change very much favored by PPA head Collins who said: “if they make that change, I’d be in favor of it becoming permanent.”

However, on August 3, the County Commission ordered that the next inquest in line (not the inquest currently being litigated) be scheduled and held, while noting that if the PPA filed a lawsuit to stop that inquest, the Commission—and the public—would be right back where they started.

ANALYSIS:

Inquests are mandated by Nevada state law, and considering that the performance of Collins before a committee of the legislature not only thwarted the PPA's efforts to legislatively overturn inquests, but convinced many legislators not to touch the matter with a ten foot pole in the future, suggestions that Clark County can simply abandon inquests may be wishful thinking. In order for a judge to grant the PPA's attempt to obstruct inquests, he would have to essentially declare the relevant state law unconstitutional, which seems unlikely at best, making this little more than a harassing and delaying action on the part of the PPA and its member officers.

Putting inquests in the hands of DA Rogers would be no different than the old inquest process, even if Rogers kept his promise to post all evidence on line. In either case, Rogers decides exactly how much—or how little—evidence is involved. The same is true of taking cases before a grand jury. In each case, the public would know only what Rogers (and Metro) wanted them to know. It is often said that a DA can get a grand jury to indict a ham sandwich because a DA alone decides what evidence they hear. In addition, grand jury proceedings are secret, defense attorneys are not allowed, and no transcript is made public. A grand jury would be even less transparent than the all but opaque old inquests, the inquests, which with the Erik Scott case caused such public outrage that the Commission had no choice but to at least give the appearance of making inquests more transparent.

No wonder Collins would be in favor of such an arrangement. Not only would things return to the bad old days when officers could be assured that they would always be vindicated, the public would know even less than ever. Ms. Giunchigliani is apparently well meaning, but the point isn't about a process that changes none of the problems of the past. Nor would such a process allow Metro to make changes for the better; they've had decades to do just that and have apparently seen no need. Having officers refuse to testify would hardly bring "closure" to anyone except corrupt officers and officials who would never face justice.

Restarting the inquest process is nothing more than a political ploy. The commissioners surely know that the PPA will simply file another lawsuit for each and every inquest the Commission tries to hold.

The primary issue was clearly identified by Judge Wall: Metro fears anyone asking officers questions, particularly while under oath, about their official actions in the killing of citizens. In the past, Metro officers could be certain that the DA would rubber stamp whatever they did. In 34 years, and some 200 inquests, a Metro officer was found criminally liable in only a single case, and the prosecutor declined to prosecute in even that case.

As I've mentioned in past updates, any Nevada police officer who refuses to cooperate with his own agency in such matters may be punished for insubordination; this is state law. The larger issue is that of taking the Fifth Amendment on the witness stand. Any officer who does this had better be able to conclusively prove that they are taking the Fifth because they are being unfairly, even criminally framed or made the scapegoat. Otherwise, what is the public to think? Isn't a police officer taking the Fifth in regard to their official, public duties, particularly when the death of a citizen is involved, saying that if they told the truth about what they did, they would be criminally liable? Of course they are, and the public can come to no other reasonable conclusion.

An officer who takes the Fifth under such circumstances has opened a very ugly can of worms. How can any honest, honorable police officer trust him in the future? How can the public trust him? True, he cannot be held liable by the justice system for taking the Fifth, but the court of public and officer opinion has no such stricture. They can and will try, judge and find him wanting. And in finding that officer untrustworthy, many citizens will make no distinction between him and every other police officer. Judges and attorneys--prosecution and defense-- will have no confidence in his reports and testimony. Officers will have no idea whether he will truthfully support them. Citizens will fear for their safety, even their very lives whenever an officer approaches.

Such an officer will be an albatross, yet the Metro PPA is intent on putting officers—and Metro—in just this insane position. They have even said that officers who merely witnessed the actions of officers taking the lives of citizens will take the Fifth! There is, of course, no possible justification for this as it might arguably amount to witness tampering, obstructing justice, or even the subordination of perjury should an officer feel compelled to testify by modifying the truth rather than taking the Fifth.

And then we have DA Rogers, the chief prosecutor of Clark County, pledged to faithfully and impartially uphold the law. Rogers is essentially adhering to the PPA line. Instead of demanding full accountability and transparency, he would be happy to do away with inquests entirely, releasing only that evidence he deems appropriate. Based on his past actions and statements, one might be forgiven for believing that such evidence would be very sparse indeed and that 34 years hence, another 200 or more killers of citizens will have been found to be blameless. Surely even 1% of such killings might be criminal?

FINAL THOUGHTS:

The Erik Scott civil trial is going to occur and is now in the discovery phase. In recent weeks Metro has reached several multi million dollar settlements with innocents harmed by Metro's unprofessional, corrupt actions. Even in a town with as much money floating about as Las Vegas, the eventual judgment—a settlement is highly unlikely--rendered in the Scott case will likely be sufficient to give even a casino owner pause. It will surely be much more than any Las Vegas taxpayer wants to pay in higher taxes.

The inquests will one day continue under the new rules. The PPA's lawsuit---almost certainly their lawsuits—will be combined and heard as one (unless, of course, the Commissioners simply give up and let the PPA run Clark County) and will be dismissed as the frivolous and cynical attempt to protect the guilty and deceive the public that they are. Then the next chapter in the battle will be played out.

Officers will likely fail to honor subpoenas to appear in court. If judges do not hold them in contempt of court and hand out substantial punishment, the matter will end there and the PPA will win. If judges do their jobs and protect the public, officers will be forced to make the choice between perjury and taking the Fifth. In either case, there will be hell to pay.

PPA head Collins is betting that there will be no consequences for behavior that would cause officers to be fired and/or imprisoned virtually anywhere else in America. Remember that even if the inquests returned to their old form where officers endured only the most friendly possible questioning by the DA, Metro officers would no longer participate, as he put it: "especially since they face no repercussions if they don't." Collins is betting that Las Vegas judges—and Metro police supervisors and administrators—will not impose consequences. Las Vegas history would suggest that he could be right.

I can assure readers that professional officers—the majority in America—look at the kind of bizarre behaviors taking place in Las Vegas in absolute wonder. They can't imagine how any police officer could possibly get away with even a portion of what goes on in Las Vegas every day. They know that in their communities, they'd be fired in a moment, and every rational officer would expect the same.

I can also assure readers that professional police supervisors are wondering what is wrong in Las Vegas. In police work, Sergeants are much feared and respected. Their word is law. Officers expect their Sergeants to discover and swiftly and effectively deal with wrongdoing. In order for the kinds of behaviors that are obviously happening daily in Metro, a substantial number of Sergeants and higher ranking officers are either incompetent, corrupt, or both.

Some might think that corrupt officers around the nation might be tempted to go to Las Vegas where they would find fertile hunting grounds. Perhaps they already have.

ADDENDA: What follows is a copy of the August 2, 2011 letter Bill Scott, Erik Scott's father, sent to the Clark County Commissioners.

Dear Commissioner,

As the parent of a Las Vegas Metropolitan Police Department shooting victim, Erik Scott, I'm asking that you take immediate action to reinstate coroner's inquest hearings under the new process. The latest Metro killing, that of Rafael Olivas, marks yet another senseless death-by-cop, the ninth this year. This one touched you and your fellow Clark County public servants. Will the next Metro shooting strike even closer? Will the victim be YOUR son, daughter, husband, wife, brother, sister, father, mother or other loved one?

A few months ago, you, as a body, courageously ruled to change an extremely flawed, unjust coroner's inquest process to one more fair to all parties involved. Since then, the local police union has tried repeatedly to undermine and negate the will demonstrated by you and your constituents, Clark County citizens. The PPA's recent frivolous lawsuit filing is nothing more than another desperate tactic to end-run a lawful, more-just process that finally gives victims' families a voice.

The PPA has made its position ultra-clear: Chris Collins and his ilk do NOT want police officers held accountable for shooting and killing citizens. The PPA's arrogant, above-the-law attitude and actions are self-serving and repugnant. Since Sheriff Doug Gillespie is either unwilling or incapable of exercising proper leadership by ordering his officers to cooperate with investigators and testify at inquest hearings, that task falls to you, the Clark County commissioners. Otherwise, you fuel a rapidly growing perception that Metro cops are out of control, the PPA is running Metro, and that you, taxpayers' elected officials, are powerless or unwilling to exercise oversight responsibilities.

In American communities that adhere to the rule of law and civilian control of police forces, the following is the norm:

* Any police officer involved in an officer-involved shooting, who refuses to cooperate with the investigation of that shooting, is immediately charged with insubordination under state statutes. That officer automatically is placed on unpaid administrative leave.

* Any officer refusing to appear and testify at a coroner's inquest hearing or before a grand jury is subject to the same action: Charged with insubordination and placed on unpaid administrative leave.

* Any police union advocating that its members defy the orders of a police chief, sheriff, other department leader or an oversight entity (eg., county commission) to testify at a coroner's inquest hearing or grand jury is declared an illegitimate representative of those public employees. For example, you, the Clark County Commission, can declare that it no longer recognizes the Las Vegas PPA as a legal representative of police officers, and refuses to negotiate contracts or other matters with that union. Ronald Reagan did exactly that in the 1980s and fired thousands of air traffic controllers. You have the authority to do the same with uncooperative Metro police officers and the local PPA.

Citizens are infuriated that their elected representatives are bending to the screeches of in-your-face union thugs, instead of carrying out taxpayers' will. For the safety of both your fellow citizens and the remaining professional, good officers on the force, it is absolutely imperative that you take action to reestablish civilian control over the Las Vegas Metropolitan Police Department.

The first step in that direction is to immediately reinstate coroner inquest hearings under the new process and procedures. There's absolutely no justifiable reason to delay these hearings any longer. It is time to allow victims' families to be heard, and for Metro officers to be held accountable for their deadly decisions and actions.

I respectfully implore you to reject the PPA's weak, pathetic arguments and desperate legal maneuvers. Please allow ALL pending coroner inquest hearings to proceed without delay.

Regards,
William B. Scott
Father of Erik B. Scott

The Erik Scott Case, Update 13: A Sad Anniversary

On the morning of July 10, 2010, Erik Scott was shot seven times and killed by three Las Vegas Metro police officers while leaving a Las Vegas Costco store surrounded by other shoppers. Standing at his side as he was shot was his girlfriend, Samantha Sterner. The first officer to shoot Scott, only two seconds after drawing his gun and yelling contradictory commands, William Mosher, had shot two other citizens in the few years he had worked at Metro before killing Scott (one survived). The other two officers, Joshua Stark and Thomas Mendiola, had scant police experience.

This post, Update 13 in our series on the continuing Scott case, is not only a memoriam, but a summary, not only of our coverage to date of the case, but of the public scrutiny focused on Metro since they shot the wrong man, scrutiny that they, to this day, despise. Today is the first anniversary of the shooting of Erik Scott, an anniversary that, unlike most others, is not a cause for celebration and will never be a cause for celebration for the Scott family and for those who knew and loved Erik Scott. But it is our hope that the continuing outrage over Scott’s death and the many beatings, harassments, and deaths of Las Vegas citizens since will be the catalyst for changes that only the most corrupt or uninformed can belittle or ignore.

THE SUMMARY:

September 16, 2010: CY founder Bob Owens publishes our first article on the case at Pajamas Media (NOTE: All of our articles relating to the case, including links to PJM articles, may be found in our Erik Scott Case archive on the right hand side of our website). It was this article that inspired me to begin to research the case. Something just didn’t smell right.

September 21, 2010: My first post on the CY site and my debut in the blogosphere was the first Erik Scott Update and initial analysis of what was known about the case at the time. My police background made me cautious about jumping to conclusions based on fragmentary information, and I was more than willing to give Metro, a Law Enforcement Agency—LEO—with which I was not at all familiar, the benefit of the doubt. On the strength of this article and the public’s response to it, Bob invited me to be his co-blogger, an offer I gratefully accepted.

September 22, 2010: The inquest begins in Las Vegas. Throughout the inquest, no adversarial questioning was allowed. The Scott family was allowed to submit questions in writing to the judge, but few were asked and fewer were meaningfully, completely answered. There were, of course, no follow-up questions.

September 23, 2010: Update 2. Still very much giving the police the benefit of the doubt, I clarified several issues raised by those commenting in response to the first article, and answered many of their questions.

September 26, 2010: Update 3: I reported on the inquest to that point, including the public outrage at the one-sided, obviously unfair testimony attempting to portray Erik Scott as a crazed drug fiend whose drug addled actions caused his death. As I noted at the time, the only standard upon which the actions of the involved officers could legitimately be judged was what they knew or reasonably could have known in the very few minutes as they responded to the Costco, and what they could have observed in the two seconds after Scott was pointed out to them and they began to shoot him. Anything else amounts to post-mortem character assassination, which has yet to cease.

September 27, 1010: Bob noted that one of the witnesses to the shooting supporting the Police/DA theory of the case appeared to have been a donor to the DA’s reelection campaign. And:

Update 3.2: I answered additional commenter questions and suggested proper police procedure, which if followed, would almost certainly have resulted in no injuries to anyone at the Costco that day.

September 28, 2010: The coroner’s inquest exonerates the officers; Bob reports on Sept. 29.

October 02, 2010, Update 4: In this update I tried to mesh the 911 phone call about Erik Scott to Metro police with the available police radio traffic transcript. The result indicated an ever-escalating series of errors, unwarranted assumptions and misconceptions that eventually sent an incredibly large number of police officers to the Costco expecting a shootout with an armed and dangerous man. I also began to formulate a theory of the shooting that would explain how a man who never carried more than one concealed weapon—and had no place to carry a second--could have been carrying two when he was shot.

October 5, 2010: Bob published a story at PJM about the reaction of West Point Alumni and classmates of Erik Scott to his shooting.

Update 5: I intended to essentially put the story to bed with this post, but added to a developing theory and explained in detail that the police had more than sufficient time to resolve the situation non violently, but did not, instead, panicking and behaving unprofessionally, causing Scott’s Death.

October 14, 2010, Update 6: This update reactivated the series and focused on the illegal search and seizure of Scott’s home the evening he was killed under the pseudo-cover of the Public Administrator’s Office. Not only was there no legal or practical reason to search Scott’s home, the Public Administrator’s Office was specifically prevented by state law from searching that home, but did so anyway. Obviously, the police were desperate to find something in that home, and did.

October 23, 2010, Update 7: The theory of the case, which stands to this day, was fully developed and outlined here. It basically proposes that in the seconds after shooting Erik Scott, the officers realized that he had no gun in his hand when he was shot, but only his Blackberry. Despite handcuffing Scott, who was unresponsive and dying or dead, the officers did not search him or secure his handgun—a Kimber .45 in an inside the waistband holster at his back—and it was found by a medic in the ambulance on the way to the hospital. The weapon was hastily retrieved and returned to the scene.

The problem was the medic and the ambulance driver. They knew about the weapon and the medic testified to finding it in his report and wrote about it—in very odd and obscure language—in that report. How could Scott have pulled and pointed a gun at the officers, a gun that was later found still holstered under his shirt in the ambulance? The medics did remove Scott’s billfold from his right front pant pocket and gave it to the police before they transported Scott to the hospital.

They found his blue card for a .380 Ruger LCP, a pocket-sized pistol, in his billfold, stained with his blood. They had to find the Ruger, for that would become the pistol the medic found and make it possible for Scott to have pulled and pointed the .45 at the police at the Costco, but where was the Ruger? The police searched Samantha Sterner’s car at the Costco, despite the fact that it had nothing at all to do with the shooting and found nothing. Where was the Ruger?

This pressing need provided the motivation for the search of Scott’s home, completely removed in time and distance from the Costco and having nothing to do with the case. Using the Public Administrator’s office for cover, the police entered the home and seized the Ruger, as well as a number of other random items for additional cover, including a ceremonial West Point saber mounted in a shadow box. Now the police story of Erik Scott carrying two handguns could work. He could still have pointed the .45 at the officers, dropping it, still in its holster to the pavement when he was shot, yet they would look somewhat less incompetent for failing to find a second, much smaller handgun, which was “found” by the medic on the way to the hospital. A medic who would not be asked to identify at the inquest the weapon he found and described in such general terms in his report and testimony that it could have been any kind of handgun.

If this theory is correct—and I have found nothing to render it nonviable to date—the Metro police not only killed Erik Scott without justification, they have engaged in a continuing cover-up.

October 27, 1010, Update 7.2: I reported on the continuing harassment by Metro and Henderson officers of Samantha Sterner and others who were displaying magnetic Erik Scott memorial ribbons on the rear of their vehicles. Sterner was given what were almost certainly multiple “chickenshit” tickets in the span of a few days as a means of intimidating and harassing her. Other citizens experienced similarly abusive treatment at the hands of the police. This was odd behavior indeed for a police force that was portraying itself as professional, above-board, and completely justified in the shooting of Erik Scott.

If I had any slight, lingering reason to give Metro the benefit of the doubt, it was gone by this point.

November 10, 2011: Update 8: This update explained the realities of eyewitness accounts and followed the bizarre travels of the Costco security video hard drive across the United States. One of the most inexplicable facets of the Scott case is that there is apparently no video at all. According to Metro, the Costco video was malfunctioning, there is no patrol car video, no police helicopter video, no media video, and no video, not even of the aftermath, shot by the media or citizens. Despite these claims, a substantial amount of data—type unknown to this day—was recovered from a Costco security camera hard drive. I also wrote about the continuing thuggish harassment of local police of people displaying Erik Scott memorial ribbons on their vehicles.

November 24, 1010: Update 8.2. This update explored the nature of police training and how officers—and entire LEO’s—become corrupt. It also brought up an interesting coincidence: Las Vegas Locking Systems, the company providing video services for Costco and having a substantial role in the bizarre handling of the Costco video, also has a contract to provide video services for the Metro Police. It is also possible that they provided the locksmith that broke into Scott’s home after his death and made possible the probably illegal search and seizure.

January 03, 2011, Update 9: This update reported on the continuing deliberations of the Clark County Commission in trying to fix the problems of the coroner’s inquest process. So bombarded by citizen outrage were the Commissioners, they had no choice but to make changes that would make the process more adversarial and fair and would no longer stack the deck entirely in the favor of Metro. I noted that since 1976, 200 inquests into police killings have resulted in only one non-justified finding and the DA declined to prosecute in even that case.

I also reported on the bizarre behavior of the Police Protective Association, the Metro Police Union, which was threatening, if the process was changed at all, not to cooperate with Metro or the courts in any way, a threat that is being carried out to this day.

I also reported on recent Las Vegas media reports of police training and the fact that Thomas Mendiola, the officer who shot Scott four times in the back, had washed out of his police basic training but was allowed to try again. I also observed that the media reports indicated a police culture that was turning out aggressive and paranoid officers, officers who saw the world as very much us against them.

January 05, 2011, Update 9.2: The Clark County Commission finalized their changes. This update explained why they were likely little more than window dressing, yet the Metro police were still refusing to cooperate.

January 10, 2011: Local Las Vegas Media report that the Scott Family attorney, Ross Goodman of Las Vegas has dropped Costco and store security office Shai Lierley from the lawsuit, however, the suit may be reinstituted any time within the two year statue of limitations under Nevada Law. The primary suit is proceeding in federal court.

February 02, 2011: Bob reports that Thomas Mendiola has been suspended (on January 31) for giving a firearm to a convicted felon.

February 06, 2011, Update 10: In this update I explored the possible reasons for Metro’s treatment of Mendiola. I also reported on two bizarre incidents involving Metro officers, incidents which tend to reflect on the dysfunctional culture of Metro.

In the first incident, a Sgt. fired his handgun, either accidentally or on purpose, at a young man whose only offense was trying to leave an apartment complex where some sort of incident had earlier occurred. The officer’s bullet hit the car door behind which the young man was sitting and he was, miraculously, not hurt. The officer issued a summons for obstructing a police officer to the young man he came within inches of killing for no reason, and the young man reportedly intended to sue.

I also reported about a bizarre road trip taken by two Metro officers who were stopped for speeding by an officer in Arizona—an adjoining state. They were on duty and driving their marked Metro police car at the time.

February 26, 2011: I reported on a local media report which told Las Vegas citizens about the Public Administrator’s Office and their bizarre search and seizure of Erik Scott’s home—four months after I reported it. The report did not actually interview Steve Grodin, the Deputy PA involved, and did not deal with any of the real questions in the involvement of the PAO.

March 27, 2011, Update 10.2: This update spoke about the beating and false arrest of a citizen by Metro officer Derek Colling and the taser death of a citizen by Metro police, a case that is still awaiting an inquest. Both cases are very much indicative of the dangerous culture of the Metro police.

I also wrote about Metro recruitment and training policies and about the fact that Metro officers were still refusing to cooperate with any inquest not stacked in their favor and that Sheriff Gillespie was apparently doing nothing to require them to do their duties.

March 28, 2011: PJM published an Erik Scott update article I wrote, bringing those who had not been closely following the case at CY up to date.

April 02, 2011, Update 10.3: I reported on the attempt by Chris Collins, head of the PPA, with the collusion of the District Attorney’s Office, to pass a law in the legislature that would have given the DA or coroner the power to simply refuse to do an inquest in any police-involved death case. The bill was written in such arcane language that it would have applied only to Metro. Once again I explained why Metro’s refusal to do the common, daily duties expected of any competent officer was outrageous and deceptive. I sent an e-mail to Assemblyman John Hambrick (R-Las Vegas) who was sponsoring the bill, asking for comment.

April 17, 2011, Update 11: To no one’s surprise, Assemblyman Hambrick did not respond to my request for comment. On April 15th, testimony in support of and in opposition to the bill was taken in the Government Affairs Committee. During that testimony PPA head Chris Collins announced that he had nominated William Mosher and Josha Stark for honors as the “Top Cops” of the National Association of Police Organizations, which appears to be essentially a union organization. Collins is the Sgt. At Arms of that organization which did not give Mosher and Stark its highest honors, but did give them “honorable mention” awards. Collins announced that Mosher and Stark were, in essence, heroes for killing Erik Scott. So disgusted by Collins and his arguments were the members of the committee that the bill was killed and at least some legislators expressed their determination to kill it when and if it was refilled in the future as Hambrick suggested it might.

I sent a link to the update to the NAPO, suggesting that they reconsider their decision if for no other reason than that the case is far from over, casting some doubt on the “heroism” of the officers involved, and asking for comment. It will surprise no one to learn that they have not responded.

May 14, 2011: Bob reported the indictment of Thomas Mendiola for knowingly giving a handgun to a convicted felon.

May 15, 2011, Update 11.2: I reported on the disposition of the case of the officer—Derek Colling—who attacked, beat and arrested a man for the crime of videotaping him while standing in his own driveway. The DA dropped all charges and the victim plans to sue, however, to date, Metro appears not to have taken any action against Officer Colling who continues to work as a Metro officer. Like William Mosher, Officer Colling had also shot two Las Vegas citizens in a short span of years before his attack on the man videotaping him. Unlike Mosher, Colling killed both of the people he shot.

In this case, as in the Scott case, there was substantial opportunity for supervisors to identify officer mistakes and to correct them on the spot. In both cases, and a great many other Metro cases, supervisors seem to be interested in doing no such thing.

May 17, 2011, Update 11.3: This post dealt with one very interesting fact: Steve Grodin, Deputy Public Administrator of Clark County, the man who, on behalf of the PA’s Office led the arguably illegal search and seizure of Erik Scott’s home, apparently has substantial police experience. In my initial update about this topic, I assumed that Grodin did not have such experience and therefore would not be likely to have understood the law regarding search and seizure. I even entertained the possibility that Metro used him. That does not appear to be the case. Grodin would certainly have known he was assisting in an illegal search and seizure.

I also sent the link of this Update to Las Vegas media outlets, suggesting that they follow up. None acknowledged receipt of the information, and to my knowledge, none followed up.

May 22, 2011, Update 11.4: In this update, I reported that Thomas Mendiola had actually been fired from Metro in February and that he faced ten years in jail and a $10,000 fine if convicted. I also discussed the concept of negligent retention and how it might affect the Scott civil case.

June 11, 2011, Update 12: The week of June 5, Metro finally announced that the officers who drove a marked Metro patrol car while on duty into Arizona would be punished with a weeks suspension without pay. I commented on the extraordinarily long period of time required to handle this simple case of misbehavior and how that reflects on the chaos that is apparently the status quo at Metro.

On June 1, a motion hearing was held before Judge Edward Reed in US District court. The Judge’s ruling was handed down June 8. It essentially left the entire Scott case against Metro and others intact and particularly affirmed the Scott’s right to sue for negligent retention, among other torts.

The civil case is now on track to trial with the all-important discovery process next on the horizon.

June 23, 2011, Update 12.2: I reported that at the moment, 18 Metro officers are in limbo, unable to return to their usual duties until they have inquest hearings. The Metro PPA has filed suit to overturn the new inquest proceedings that allow for adversarial questioning during inquests and a greater role for families before and during the process, which includes the opportunity for greater discovery. Whether Metro, which has a well-deserved reputation for stonewalling discovery requests, will cooperate is another matter. There is also no doubt about the intentions of Metro officers: They have, through their spokesman, made absolutely clear that they will refuse to cooperate in internal investigations, and will refuse to cooperate with the criminal justice system in inquests and possibly other hearings.

July 8, 2011: 8 News Now in Las Vegas reported that the first inquest hearing under the new rules, which was scheduled for July 12, has been postponed. According to the story, the PPA and the DA have agreed to postpone that inquest, and presumable all others, until the court case filed by the PPA is settled.

This is an obvious case where both sides are getting what they want: avoiding any inquests under rules where it is possible Metro could lose and force the DA into a decision about prosecution. It remains to be seen how long they’ll be able to get away with it.

THE CASE AS IT NOW STANDS:

The civil case is going to happen. Those who hoped to delay or derail it through legal maneuvering have been thwarted. Ross Goodman has also made clear that he plans to reinstate the case against Costco, Shai Lierley, and potentially others in the Nevada court system prior to the expiration of the statute of limitations. The case is now in the discovery phase where a great deal of information potentially damaging to Metro is likely to be revealed.

It seems certain that the Scott family will not be interested in a settlement. Everything they have said and done to date suggests that their goal is nothing less than the exposure of any and everything Metro did wrong in this case to the greatest possible extent. And surely they realize that substantial change is unlikely in a city, county and police agency like that in Las Vegas unless those in positions of power are made to feel great political pain, such as the pain that accompanies huge damage awards in civil suits, damages of the potential this case may provide.

ERIK SCOTT:

Those who have not been closely following this case may know little of Erik Scott. Many might assume that anyone killed by the police would be likely to be, at the very least, a shady character. Usually, that wouldn’t be an unreasonable assumption. However, in the Scott case, the opposite is true.

Erik Scott was a West Point graduate, respected by his classmates. He was an officer of Armor, a M1 tank platoon leader. His final fitness report by his commanding officer read, in part:

“Lieutenant Scott is one of the best lieutenants in this battalion. As the Battalion’s Personnel Office he has done a tremendous job. He quickly oriented himself with his new duties and worked hard during a period of increased workload due to Army down-sizing. He took personal pride in doing whatever the mission was correctly the first time. He is intelligent, organized and a self-starter that required little if any supervision. Most notable was his decision to accompany the battalion to the National Training Center rather than have the battalion deploy without an Adjutant. This clearly demonstrated Erik’s willingness to care for soldiers and sacrifice his personal time for the betterment of the organization. Although Erik has decided to enter the civilian sector, there is no question he could have a successful Army career. I am sure he will be successful in whatever he does.”

And Erik Scott was indeed successful as a civilian. He earned a MBA from Duke, and lived in Las Vegas for nearly a decade working as a successful real estate agent and a sales representative for advanced cardiac devices. In both fields, he was well respected, even by his competitors.

Highly self-motivated in everything he did, Scott maintained a very high level of physical fitness despite suffering constant and debilitating pain from back injuries incurred in the military and in the civilian world. He had no criminal record, and no known contacts with the Metro police prior to the two-second meeting before they shot him to death.

FINAL THOUGHTS:

I have recently been able to acquire more than a thousand pages of Metro documents relating to the Erik Scott case (it’s good to have friends in low places). While I have not had sufficient time to do more than glance at them, nothing I have seen has in any way changed my opinion of Metro or my theory of the case. In fact, I have noticed many acts and omissions that reflect even more poorly on Metro and must surely be making the Goodman Law Firm very much look forward to having Metro witnesses on the stand. I will, in the near future, spend more time with those documents and others and provide information and analysis.

What kind of information and analysis? The Metro report on the Scott case lists, in part, the following personnel involved, apparently in the response and its immediate aftermath:

2 Commanders
1 Captain
2 Lieutenants
5 Sergeants
43 Patrol Officers
4 Cadets (?!)
One Helicopter with two pilots
2 Traffic Personnel
2 K-9 personnel (presumably with two dogs)

That’s more personnel for this single incident (63) than the entire complement of many American police and sheriff’s agencies, and even more were involved in the resulting crime scene investigation and follow-up investigation.

As we contemplate this, the one-year anniversary of Erik Scott’s death, let us offer prayers for him, for his family, and those officers of Metro who are honest and honorable in the hope that they will find the will to speak the truth when it matters. Let us also pray that those who are less than honest will have a change of heart, and if that is not possible, they and the politicians of Las Vegas, Clark County and Nevada will have no choice but to make changes such that innocent citizens need no longer fear their police force.

Above all, let us reflect on the fact that men like Erik Scott are among our best. When he enrolled in West Point, he knew that he could be required to give his life for all that we hold dear, and he ultimately did. It is up to all of us to see that his sacrifice was not in vain and that justice is, finally, done.

The Erik Scott Case, Update 12.2: Litigation and Mutiny

It was in Update 9 “Mindset and Mutiny” on January 3, 2011 (available here) that I first addressed the issue of Las Vegas Metro police officers, led by the head of the Police Protective Association (PPA) Chris Collins, threatening to withhold cooperation, not only with Metro, but with the Las Vegas criminal justice system, if they were asked to submit to adversarial questioning in newly revamped Coroner’s Inquests. Since that post, much has occurred. Speaking for the PPA, Collins has removed all doubt that Metro officers intend to refuse to cooperate with Metro investigations into their official actions and that they also intend to refuse to cooperate with Coroner’s inquests under the newly written rules adopted by the Clark County Commission.

In Update 11, “Heroism and Loathing In Las Vegas” on April 17 (access the Erik Scott Archive in the right hand section of the home page for all Scott articles), I reported on the attempt by the PPA to change Nevada state law in such a way that the Clark County DA’s office—or the Coroner—would have absolute authority to simply dispense with a Coroner’s Inquest in any police shooting. Testifying before the Assembly Governmental Affairs Committee on April 15, Collins shocked those present by announcing that William Mosher and Joshua Stark had been given awards for heroism by the National Association of Police Organizations. Collins, a member of the board of directors of that organization, nominated them for the “honor.” Conspicuously absent was former Metro Officer Thomas Mendiola, who with Stark and Mosher, shot and killed Erik Scott. Mendiola had been arrested for knowingly giving a firearm to a convicted felon and has since been dismissed from Metro. Reportedly due, at least in part, to Collins’ arrogance, the Committee killed the bill and several legislators were reported to have commented that it would be dead at any time in the future as well.

This seemed, at the time, to be the end of this part of the Erik Scott story, but as this update will reveal, it was not. The PPA is now trying to get a local judge to halt Coroner’s Inquests under the new procedures (here). The first such inquest is scheduled for July 12. Sheriff Gillespie has commented (here) that he has 18 officers who cannot return to their regular duties until the inquests scheduled due to their actions have been held. He has had no further comment on the matter.

As usual, Collins has not been silent on the matter. Collins’ comments:

"Our officers' rights are being violated. Their constitutional protections are being stepped on."

"Now that they've changed the rules, it's no longer fair."

Maggie McLetchie of the American Civil Liberties Union of Nevada has a differing view:

“The PPA has consistently throughout the process taken a position that they are above the law.”

The most fundamental change in the inquest process is the appointment of an “ombudsman” whose role will be to represent the families of the victims of police shootings and the interests of the public. As I’ve pointed out in past updates, this is an inherent conflict of interest. However, the ombudsman does have the power to ask questions of police officer witnesses in inquests. It is this simple fact that has the PPA worried. There are a variety of other changes that are certainly displeasing to Metro and the PPA, but this is the largest sticking point, hence the PPA legal action to halt inquests in their tracks.

RATIONALE AND REALITY:

As citizens, police officers retain all of their Constitutional rights. They may, if they choose, invoke their Fifth Amendment right against self-incrimination (commonly known as “taking the 5th”). The new inquest procedures do not--cannot—in any way infringe on this right. In cases where they are involved in shootings, Metro officers are expected to do several things:

(1) Write complete and honest reports about their actions.

(2) Speak with Metro detectives and/or superior officers, as often as required, about their reports and their role in the events being investigated, being honest and complete in their statements.

(3) Speak with any other properly constituted authority having a role in the process, as often as necessary, also being completely honest and forthcoming in their statements.

(4) Testify, under oath, in a Coroners Inquest, which is required by law in Nevada.

(5) Testify, under oath, in any other kind of properly constituted hearing, including criminal and civil hearings, as often as necessary.

Officers are, in fact, expected to do all of this as necessary regarding any of their official actions. None of this is unique to Metro, Las Vegas, or Nevada. While Coroner’s inquests are not universal, they are held in a great many jurisdictions across the nation. This is the minimum expected of any police officer and rightly so.

We pay police officers to enforce the law. Writing honest and complete reports and honestly and completely testifying about their official actions is an integral part of being a police officer. Every officer understands this and accepts it. These obligations are taught from the earliest days of their basic police academies and constantly reinforced throughout their careers.

All of this makes perfect sense. Should we not expect police officers to write complete and honest reports about their official actions? Should we not expect them to fully cooperate with their employer and other agencies in recounting their official actions? Should we not expect them to testify honestly and completely, as often as necessary, about their official actions? Of course we should, and any suggestion to the contrary is patent nonsense.

So what’s the problem? Why is the PPA so upset? Two words: adversarial questioning. For the past 30 years in Las Vegas Coroner’s Inquests have been mere formalities. Questioning was entirely done by the District Attorney, and while relatives of shooting victims have been able to submit questions—in writing--it has been solely up to the judge if any have been asked. For some 200 inquests, the results were virtually uniform: no culpability for the police, and in the single exception, the DA did not prosecute. The locally televised inquest in the Erik Scott shooting exposed the one-sided, cozy relationship between the DA and Metro to a public that was finally paying attention. Almost universal outrage, and the revised inquest procedures were the result.

The fears of the PPA are clearly expressed by Collins who asserts that the officer’s constitutional rights are being violated and that the process is no longer fair. Ridiculous. For the first time in decades, officers will be required to fully do their duties, just as innumerable police officers around the nation do every day. Their constitutional rights are not in the least infringed by asking them to do their duties, the duties they voluntarily sought and sacrificed to do. What Collins and the officers he represents fear is taking the 5th on the witness stand.

Regardless of their motives, no one, officer or civilian alike, may ignore a subpoena to appear in court, whether a criminal or civil trial or an inquest. Anyone failing to honor a subpoena may be arrested and brought before the judge who will demand that they explain why they should not be held in contempt of court. It their reasons are not convincing, the judge may jail and fine them at his discretion. Unless Las Vegas judges are willing to abandon their duty in this regard, PPA threats to refuse to show up are hollow indeed, though it’s possible that they might be foolish enough to try, at least as a publicity stunt. I suspect that if they do, they’ll quickly discover that public sentiment is not on their side.

Once sworn to tell the truth, an officer has a choice: he can testify truthfully, commit perjury, or take the 5th. If he has done his duty properly, he can testify truthfully and answer any question, adversarial or otherwise, without fear. If he has not done his duty properly, his choices are somewhat more restricted. If we assume that he does not want to testify truthfully—and it is certainly possible that the PPA is making this assumption—he can either commit perjury or take the 5th. The consequences for committing perjury include losing one’s career and one’s liberty. And while there is no question that some officers have lied, and that some will lie in the future, it’s reasonable to believe that most police officers would avoid this option. However, taking the 5th is also problematic.

What must any citizen think about a police officer who, in explaining his official actions, the actions he is paid to do--his duty--takes the 5th? Wouldn’t it be reasonable to assume that he believes that if he testifies truthfully and completely, he may be criminally prosecuted? If he believes it, why shouldn’t the public believe it? Why shouldn’t the public be asking Sheriff Gillespie why he is hiring and retaining officers who take the 5th when asked about their official actions while under oath?

It is true that when a citizen takes the 5th Amendment, judges will instruct a jury not to consider that fact in their deliberations. Human nature being what it is, they will anyway, one way or another. There is no such prohibition for the public when a police officer takes the 5th and refuses to testify about what he has done on their behalf. The public is free to draw any conclusion they choose, and the most likely conclusion is that the officer has something to hide, something that would get him in serious trouble if it was known. When these officers have shot and killed a citizen, the logical conclusion is that they do not believe they were justified, which might mean charges of manslaughter, negligent homicide or worse. One officer taking the 5th would be bad. Several officers doing it—particularly in any single case or related group of cases--would be potentially deadly to the careers and lives of officers from the newest patrolman to the Sheriff of Metro. This is what the PPA and the officers it represents fear. This is why they want to stop the inquest process at any cost.

The process is no longer fair to police officers? To use a metaphor with which citizens of Las Vegas will be intimately familiar, until now, the deck has always been stacked in favor of the house. With the new inquest procedures, the marks aren’t in control, not by a long shot, but they at least have a statistically significant chance of beating the house. That’s what the PPA, and almost certainly the leadership of Metro, fears.

We will, of course, continue to report on the process of the PPA’s legal action and its effect on the inquest process.

ADDITIONAL INFORMATION:

Among the comments accompanying the June 20 Las Vegas Review/Journal story was this comment by “Plastron”:

“Plastron wrote on June 20, 2011 08:45 PM:
You have to remember, The word "Protective" in their title, "Las Vegas Police Protective Association," means to PROTECT the "POLICE" (especially at inquests). Apparently if they want to cook something up for an inquest they feel it's something like their constitutional right to arrange/rearrange the facts as they see fit. And they are SO GREAT (at least in their own minds) that nobody "NOBODY" should be asking them questions they don't want to hear.

On the "Ziggy62" post about cell phone cameras. Interesting to note, about three months ago I ran into a former law enforcement person I know, we talked about the COSTCO shooting. He said Metro did confiscate some cell phones at the COSTCO shooing. "I'm" not saying it's true, he did, he's connected.

At any rate, PPA, keep it up . . . you are digging your own grave. I did a 25-year career in law enforcement (not out here) and I NEVER saw the crap pulled in that 25 years that I've read about out here (and, by the way, experienced).”

Of greatest interest is his comment that “a former law enforcement person” told him that Metro did confiscate an unknown number of cell phones at the scene of Erik Scott’s shooting. I do not know “Plastron,” nor can I vouch for the accuracy of this assertion. It has always been a source of some concern that in our digital age, no citizen videos of at least the aftermath of the shooting have surfaced. Part of this is no doubt due to the fact that only a handful of seconds elapsed from the moment the officers first laid eyes on Erik Scott until he was face down on the pavement, dying or dead from the seven rounds they fired in the middle of the crowd of people leaving the Costco store at their order. However, the absence of any citizen video—to say nothing of video from the many police cars, present, the police helicopter, and from Costco sources—is disturbing. If the assertion of “Plastron” is true, we may know the reason, at least as far as citizen video is concerned.

I would encourage “Plastron” or anyone who knows him to get in touch with me. I’d be very interested in verifying this account, if possible. My contact information is available in the “Contact/About” section at the top right of the home page.

FINAL THOUGHTS:

As I noted in Update 12, the Erik Scott civil case proceeds, despite the predictions of some that it would summarily dismissed. The outcome of the battle over inquest procedure will not have a direct effect on that case, but it will determine whether Las Vegas police officers will be held to account, just as officers are every day around the nation, for their official actions. For thirty years, this has not been the case. In a very real way, the outcome will determine whether Metro officers truly are above the law.

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:

LAS VEGAS, (May 31, 2011) – On June 1, at 1:00 PM, a federal judge will hear oral arguments regarding the killing of Erik B. Scott, who was shot to death by three Las Vegas, NV, police officers in front of a Costco warehouse store on July 10, 2010. This will be the first hearing in a wrongful-death, civil-rights-violation lawsuit filed last fall. Attorney Ross Goodman will be representing the Scott family.

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.

The Erik Scott Case, Update 11.4: Negligent Retention?

Readers of Update 11.3 posted May 17 (here) will recall that I sent the link to that article to the primary local Las Vegas media outlets, encouraging them to follow up on the fact that Deputy Public Administrator Steve Grodin is a retired police investigator and would therefore have likely been aware that the search of Erik Scott’s home after his death was unlawful. It is, I suspect, surprising to no one that the media has yet to contact me or acknowledge receipt of my message. We shall see if they follow up.

Since that post, additional interesting facts have come to light regarding former officer Thomas Mendiola, the Metro officer who contributed four of the seven shots fired into Erik Scott. Mendiola, as those who have followed this series will recall, fired those shots at close range into Scott’s back as he was falling, face first to the pavement. Mendiola also testified that he did not actually know if Officer William Mosher—who fired the two shots that began the barrage of fire in the midst of a crowd of shoppers that Metro caused to simultaneously leave the Costco—fired the shots he heard or if Erik Scott fired, but this did not prevent his firing into the back of a man who he could not positively say actually presented a danger to himself or others, though he certainly came to appreciate the necessity of saying that at the Inquest.

The facts were presented in a brief May 19th article in the Las Vegas Review/Journal (here): Thomas Mendiola was not only suspended in January when it was revealed that he gave a firearm to a felon, he was still on probation and was fired by Metro in February. Mendiola faces from one to ten years in prison and up to a $10,000 fine if convicted. These developments are significant.

MENDIOLA’S METRO BACKGROUND:

While details are not available from Metro, it is known that Mendiola failed his first attempt at Metro’s police academy, which is 24 weeks long. It is not known why he failed or why he was given a second chance. In professional agencies, recruits who fail are generally not given a second chance unless that failure is due to something outside their control, something like an injury or family emergency, and even then unless the recruit shows obvious promise, a second chance is generally not granted.

In professional agencies, completing a basic academy is merely the first step for new officers, officers who are commonly on probation for at least the first year of their employment. During that probationary period, they may be dismissed at any time without cause or recourse. Police agencies generally do not abuse this power because it is expensive and manpower intensive to recruit and train new officers. They generally do their best to identify and dismiss those who are unfit to be police officers as early in the process as possible. It’s much less expensive.

In many professional agencies, after completing a basic academy, officers enter a field training program where they ride with experienced officers who have been trained to teach and evaluate new recruits. Eventually, over several months, recruits work their way through at least three separate trainers, taking on more and more responsibility as the trainers move more and more into the background, involving themselves only as absolutely necessary. Recruits who have difficulties in the program may be recycled, held back several weeks, or dismissed. It is likely that Mendiola participated in such a field training program as Metro does operate one, however, there is evidence to indicate that many of the officers in that program doing the training have relatively little experience. If this is accurate, it would go a long way toward explaining the behavior of Mendiola and many other Metro officers.

THE SHOOTING AND BEYOND:

At the time that Erik Scott was shot and killed, it now seems clear that Thomas Mendiola was a probationary officer, an inexperienced, untested officer, an officer who, faced with a situation in which he wasn’t sure who was shooting, at whom or why, fired four rounds into the back of Erik Scott. Considering his difficulties in the Academy, this may or may not have been an inevitable consequence of negligent retention.

I first began examining Mendiola’s problems in Update 10. Go to the Scott case archive and scroll down to reach that, and every other, update.

Negligent retention is a legal term referring to the duty of law enforcement agencies to fire officers who they know, or should have known, are unfit to serve as police officers. Failing to establish procedures to identify such officers, failing to follow those procedures, or simply failing to act when reasonable police officials in the same circumstances would have acted, subjects an agency to real civil liability. To that end, anyone suing such an agency will have great interest in all training and personnel records relating to an officer such as Mendiola.

Even if one believes that Thomas Mendiola (and Joshua Stark and William Mosher) were completely justified in shooting Scott, Mendiola’s difficulties did not start, or end, there. According to the affidavit supporting Mendiola’s arrest for giving a firearm to a felon, Mendiola engaged that felon—knowing him to be a felon—in working on his car. This is the first problem in this particular situation. No rational police officer will have anything to do with criminals, particularly convicted felons, off duty. Any rational officer knows that this is trouble of the first order, an extraordinarily stupid thing to do, and likely to get them suspended or fired. When a supervisor asks, “What the hell are you doing hanging around with a felon?” there is no convincing, reasonable reply. Competent officers know this and simply never put themselves, or allow themselves to be put, in such situations.

The second problem arises when Mendiola, over time, continues not only to maintain a relationship with the felon, but actually gives him a handgun as payment for services rendered. Again, the affidavit indicates that Mendiola admitted giving the gun to the felon knowing him to be a felon, and actually discussed with the felon the fact that he shouldn’t be giving him a gun! Such behavior does not inspire great confidence in Mr. Mendiola’s intellect or integrity as a person or police officer, nor does it inspire faith in Metro’s ability to hire and retain competent, rational police officers.

In questioning the actions of Metro in the past, I’ve wondered why Metro arrested Mendiola in the first place. The alleged crime only came to light during an apparently unrelated undercover operation. It need not ever have resulted in arrest. The public need never have known. Metro presumably wanted to keep Mendiola on the team, speaking the official line in the upcoming federal trial. So why did they arrest him?

A primary possibility is that Mendiola was developing a conscience and that possibility became known to Metro. A felony charge hanging over his head could be a powerful incentive to stick to the official story. But why did they fire him? Being arrested for a felony is more than sufficient grounds to fire a probationary officer, in fact, it would probably look very odd indeed if he was not fired. But how to keep him on the reservation when he is no longer a Metro officer? Simple. The threat of ten years in prison can be a powerful incentive. It’s true that a former police officer would likely not get jail time on his first, non-violent felony conviction under normal circumstances and in a normal jurisdiction, but Las Vegas is anything but normal, and a threat of prison, express or implied, would certainly be plausible.

The danger—for Metro--is that now Mendiola is likely feeling very much betrayed and is probably not feeling kindly toward Metro. Considering that he remains one of the principal targets of the pending lawsuit and that a judgment against him in that suit could easily bankrupt him for life, he is in a very bad position with only bad—for him—choices and worse outcomes. Of course, the ultimate threat is always hovering in the background. There is a great deal of desert surrounding Las Vegas and a great many bodies are buried there. Some turn up, from time to time. Thomas Mendiola would certainly know about such possibilities. I’d be surprised if he had not, in fact, been reminded of them in one way or another.

However, even if Mendiola is relatively fearless and willing to honestly depart from the official Metro story, if, for example federal agencies are quietly involved and offering him certain guarantees in return for such testimony, Metro will certainly portray Mendiola as an out-of-control cop they fired as soon as his lack of fitness for the job became obvious. Not only that, Mendiola will be portrayed as a convicted felon, and as such, completely unreliable. He’ll be painted as a disgraced former cop, a convicted felon with an ax to grind. Mosher and Stark, on the other hand, will be painted as heroes, valiant cops recognized by a national pseudo-police organization for their shooting of Erik Scott, a crazed druggie who endangered the public.

Who knows? If Mendiola performs appropriately, the felony might be plea- bargained down to a misdemeanor. The entire matter—like so much before it--might even fall down the Las Vegas memory hole. It’s not outside the realm of possibility that Mendiola might one day find himself wearing a Metro badge again.

FINAL THOUGHTS:

The attorneys for the Scott family will almost certainly want all of Metro’s personnel and training information on Mendiola and the other officers involved. Under the law, they are entitled to it. Whether Metro will provide it, or what will or will not be present in such files, is another matter. However, it now seems quite clear that Metro erred in hiring Thomas Mendiola in the first place, and certainly erred in retaining him. To what degree—if any--these oversights contributed to the death of Erik Scott will be a matter for a jury to decide.

The Erik Scott Case, Update 11.3: The Post-Mortem Search of Scott’s Home Revisited

NOTE: THIS POST WAS UPDATED 05-22-11. SEE THE END OF THE ORIGINAL POST FOR THE UPDATE.

Whenever I begin to think that the Scott case could not become more convoluted or bizarre, something new turns up. In recent updates, I’ve focused on issues that are not absolutely central to the Scott case, but that are closely related, and that tend to shed additional light on the culture and procedures of Metro and Las Vegas. It is that culture and those procedures that almost certainly made Erik Scott’s death likely, and that continue to result in beatings and worse for citizens of Las Vegas. This update, however, returns to one of the central issues of the aftermath of the shooting of Scott.

Update 6, October 14, 2010 was dedicated to the extra-legal activities of one Steve Grodin, Deputy Public Administrator of Clark County. After the shooting of Erik Scott at approximately 1300 on July 10, 2010, Grodin almost immediately began to call Erik’s brother, Kevin Scott, demanding permission to enter Erik’s home, ostensibly to protect it and the firearms and valuables within. Kevin Scott was then traveling across the nation by air, and Grodin made a number of additional calls, actually claiming that he had absolute authority to enter Scott’s home and seize property within, but still trying to get Kevin’s permission, permission that Kevin unfailingly refused to give. Eventually, sometime after 1900, against Kevin’s clearly expressed wishes and against the orders of the only person who had legal control of the property under Nevada law--Erik’s girlfriend and co-resident Samantha Sterner--Grodin, accompanied by at least one Metro officer, used a locksmith to enter the home and to seize property.

Before we continue, here are links to related information:

For Update 6, 10-14-10, go here.
For Update 7, 10-23-10, go here.
For “Vegas Media Wakes Up,” 02-26-11, go here.
For “Linkedin” information on Steve Grodin, go here.
NOTE: The audio recording of Grodin’s call to Kevin Scott is no longer posted on YouTube.

As Update 6 explains in detail, the police had no cause to enter Scott’s home or to seize anything within. His home and its contents were completely removed in time and space from his death at the hands of the police at the Summerlin Costco; they had no relation whatever to the shooting and thus had no value as evidence--one doesn’t prosecute dead men--and could not be the proceeds of a crime as Scott committed no crimes prior to his death. No rational judge would authorize a search warrant absent a falsified affidavit, and the police surely could not afford something like that to be found. Having no warrant, and an absolute, one might be tempted to say panicky, need to get into the home, the police used Grodin, acting in his role as Deputy Public Administrator, to bring their plan to fruition.

Putting aside the fact that the police had no warrant and therefore no lawful authority to enter Scott’s home, there was another major problem. Nevada law expressly prohibits the Public Administrator’s office from being involved with any estate “held in joint tenancy unless all joint tenants are deceased.” This entirely rational prohibition keeps the PA’s office from, for instance, seizing the home and property of a man who has died while his widow is still alive and in control of the property. In the Scott case, Sterner was clearly a joint tenant. She actually lived there with Scott, had the requisite keys, her clothing and other property was there, and she told the police--and Grodin--repeatedly, that she lived there and consistently refused them entry. Scott’s property--their joint property--was in no danger; Sterner was in control of it. Yet the police and Grodin not only entered and selectively seized property, they installed a new lock and refused to give her the keys, locking her out of her own home on the day that the police killed the man she lived with and loved within inches of her. She was not able to reenter her home until Kevin Scott could fly in from out of state a day later to obtain and give the new keys to her.

If the police and Grodin knew they had no authority to enter the home, if the only lawful joint tenant, Samantha Sterner, refused them entry, why did they keep calling Kevin Scott to ask his permission, why did they ultimately enter the home and what did they take?

Obviously, the police and Grodin weren’t thinking clearly--if obeying the law was their goal. Yet, to them it was crystal clear that they could not acknowledge Sterner as the joint tenant of the residence. She could not be allowed to take them to the residence and let them in, because no one could be allowed to see what they hoped to find and take. After all, if she, using her key, let them in her home, how could they possibly say that there was no one to safeguard it? Therefore, they had to maintain the fiction that they were honestly trying to safeguard the property, a property that needed no safeguarding. So they repeatedly called Kevin Scott and made a great show of asking his permission, this despite the fact that under Nevada law Kevin had no more authority to give such permission than a random passerby.

Why were they so desperate to enter the home? In Update 7 I outlined a theory of the case that well fits the known facts. It was necessary to the Metro story of the event that Scott be carrying his Ruger .380 pistol at the time he was shot, that he be carrying a backup handgun that those who knew, loved and lived with him maintain he never carried but kept in his home as a home defense weapon. Metro knew of this pistol because his locally required “blue card” for that handgun was in his wallet, a wallet freshly stained with his blood and recovered from his body at the scene. Scott was not, of course, actually carrying the gun at the Costco, only his Kimber .45ACP pistol, so it had to be found and seized.

The police searched Sterner’s car which was in the Costco lot. This is significant in that it, like Scott’s home, had no relation at all to the shooting. There was no legitimate legal reason to search it, but obviously, the police hoped to find the Ruger--Sterner, not knowing what they wanted at the time and in shock, gave them permission--and were disappointed, making the search of Scott’s home mandatory. It was only there that the Ruger could be found. Read Update 7 to discover the very logical reason why this small, black handgun figures so prominently in the Scott case and why it explains Metro and Grodin’s panicky desperation to get into Scott’s home.

The police and Grodin took a variety of items including a watch, several firearms, a ceremonial saber mounted in a shadow box given to Scott by his parents upon his graduation from West Point, a paintball gun and several other items, but the Ruger--which was displayed by the Police at the Inquest--never appeared on police evidence forms as having been collected at Scott’s home, and the items cataloged by Grodin were returned to the Scotts--at considerable expense--within a few weeks, an unusually rapid procedure, according to those who have dealt with the PA’s Office. The Ruger did not appear on police documents because it had to be “discovered” on Scott. It was taken in an almost certainly illegal search and Metro’s fingerprints, literally and figuratively, could not appear on it.

On February 26, 2011 I posted a short article noting that the local Las Vegas media had finally gotten around (more than five months after I wrote about it) to mentioning the involvement of the Public Administrator’s Office in the Scott case, but they did not mention or interview Grodin or deal with any of the real issues in a meaningful way, merely accepting platitudes from John Cahill, the elected Public Administrator.

I revisit the issue in this update because I’ve discovered something about which I was not aware at the time, something that removes any benefit of the doubt I accorded Grodin in Update 6: Steve Grodin is a retired police officer. On the Linkedin site, he is listed thus:

Steven Grodin
Investigator at Public Administrator’s Office
Las Vegas, Nevada Area / Government Administration
Current:
Investigator at Public Administrator’s Office
Past:
Investigator at Cook County Sheriff’s Department, Retired Officer / Investigator at COOK COUNTY SHERIFF’S POLICE
Education:
SIU

Linkedin bills itself as the “World’s Largest Professional Network.” It is essentially a social networking site, and those who choose to participate do so voluntarily and enter their own information on the site, as Grodin no doubt did. For example, the word “administrator” is consistently misspelled on the entry, unlikely on a professionally posted and entered site. Unless this entry on the site is in some way falsified--and there is no known evidence of that--or unless there are two Steven Grodins working for the Clark County Public Administrator’s Office, it is reasonable to conclude that Steve Grodin, Deputy Clark County PA, does have a significant police background with all of the experience and knowledge that implies.

Why is this significant? Because in Update 6, I assumed that Grodin had no law enforcement background, and as such, had no real idea of the warrant requirements of the Fourth Amendment, the part of the Bill of Rights from which case law regarding search and seizure comes. I essentially assumed that Mr. Grodin might have been misled by the Police who told him only enough to enlist his aid without telling him anything about their real intentions. I wrote that update making clear that even if Grodin knew nothing of the law regarding searches, the police surely did. I also made a distinction between the legal liability of the police and Mr. Grodin, observing that he would, as a civilian with presumably no law enforcement experience or knowledge, likely have no such liability, particularly if he was being used by the police and had no idea what they intended. It now seems certain that this was not then, and certainly is not now, the case.

The term “investigator” is essentially interchangeable with “detective,” and is common in American law enforcement. Such officers are higher ranking than patrol officers, and enjoy status as specialized criminal investigators who routinely deal with search and seizure issues. They would know how to make search warrant applications, how to make affidavits and returns, and would well know all of the law, policies and issues relating to searches. For Detectives, this is simply part of their daily work. Such knowledge is expected of them.

Consider too that the fact that the police did not seek a search warrant is particularly revealing. Searches incident to police shootings are always done with warrants for many compelling reasons. That there was apparently not even an attempt to obtain a warrant in this case unquestionably indicates that the police knew that they had no grounds for obtaining a warrant and that no competent, honest judge would issue one.

As a former detective/investigator, Steve Grodin would certainly understand the issues relating to searching Scott’s home over and beyond the small body of Nevada law relating to Public Administrators, a body of law he also ignored (the relevant statutes are posted in Update 6). Steve Grodin cannot credibly claim to be an uninformed public servant doing the bidding of the police in good faith; he knows better. If the police have in fact broken the law as seems likely, he may be, at the least, an accessory after the fact. This is a possibility that Mr. Grodin would be wise to consider with care as the Scott case, unlike virtually every police shooting before it, is not going away.

In Update 6, I asked several questions about the search and seizure of Scott’s home. Some remain, and others have been raised by the knowledge that Grodin must have known that the search and seizure were illegal.

(1) How exactly was Grodin involved? We know that he began calling Kevin Scott shortly after Erik Scott was killed. The Police at the scene, shortly after the shooting, found Erik’s blue card for the Ruger, and searched for it in Sterner’s car at the Costco. The only logical explanation is that the police called Grodin, and likely, specifically Grodin.

(2) Is Steve Grodin Metro’s “go-to guy” at the Public Administrator’s office? How often have they used him in the past? How often has he accompanied the police on cases, and which cases? How many of those cases involved the deaths of citizens at the hands of the police? PA Cahill asserted that his office often accompanies the police. Do the police know that because of Grodin’s background, he is willing to “help” them with unusual “problems?” Or did the officers who contacted Grodin lie to him, tricking him into arguably violating the law?

This is unlikely for several obvious reasons. Grodin, by means of his background, must have known that the police were enlisting his aid because they could not obtain a warrant, or because they did not want to leave a paper trail, in essence because they wanted to operate outside the law and wanted his agency to provide cover. Perhaps, particularly if Grodin has had a long-standing relationship with Metro, he simply knew what to do when he got the call. Ask no questions, do what he was asked to do, avoid knowing anything he wasn’t supposed to know. Grodin had to know that he was being used to conduct unusual, improper, probably illegal business on behalf of the police. Did he ask why they needed his help? Did he ask if they had a warrant, and if not, why not? What was he told? In any case, Grodin had to know that what he was doing was wrong and that it likely violated the law.

(3) Who contacted Steve Grodin and what did they tell him? How many officers accompanied him to Scott’s home and what were their names? What did he and the officers discuss, exactly?

(4) How did Grodin know, as he told Kevin Scott, that he was looking for “firearms?” Did the police tell Grodin about the Ruger? Who found it in Scott’s home and what did they do with it?

(5) Why was Grodin, with his background and knowledge, willing to assist the police in arguably breaking the law?

FINAL THOUGHTS:

As always, it is possible that I am making errors small or large because I simply don’t have all the facts, no one does. Metro is not releasing that information, so I must rely on experience. But in the matter of the search of Scott’s home and the seizure of property within, there is little chance of error. The Fourth Amendment establishes clear criteria for search and seizure and the fact remains that the police had no grounds to enter Scott’s home or to take anything from it. The fact remains that the Public Administrator’s office likewise had no grounds under the PA statutes to enter Scott’s home or to take anything from it.
Now that it’s clear that Steve Grodin had to have known better, there can be no doubt about what happened. That said, as always, I will be pleased to promptly make any necessary corrections if the necessity of making them is brought to my attention.

I will be sending the Las Vegas media this update and encouraging them to follow up. No doubt, the Scott family attorneys will also be asking these questions, and more. I will, of course, continue to report developments as they arise.

UPDATE ADDED 05-22-11:

Concerning the relationship of Erik Scott and Samantha Sterner, frequent commenter “Federale” writes:

“Since they were room-mates, or more accurately, living as man and wife, but in sin, there is no legal relationship between the two. Therefore she had no authority to either approve or deny access. Some people are under the impression that sleeping together gives one legal rights and privileges. It does not. If Scott had made her an honest woman by marrying her, then the story would have been different. But under Nevada law neither sibling nor the person he was having sex with had any authority over Scott's estate.

Fornication outside marriage may be fun, but does not confer any legal status.”

Only Nevada Revised Statute 253.0415 2(a) addresses joint tenancy in the context of the duties of the Public Administrator (Section 253 is the section of the statutes dealing with Public Administrators). This section specifically prohibits a Public Administrator’s involvement where a “joint tenant” exists. Only if all joint tenants are deceased may a Public Administrator be involved. Section 111 of the NRS deals with joint tenancy, but in the specific context of wills and similar agreements, and the disposition (sale and acquisition) of real property—real estate such as homes and land—and makes clear that joint tenancy may be between man and wife, and/or “others.” This is entirely rational and necessary statutory language, but it does not specifically, in express or implied language, apply to section 253.

Police officers deal with securing cars, apartments and homes on a daily basis, usually when they arrest their owners. Officers do not, in such circumstances, demand to review marriage licenses, deeds, court rulings, or other paperwork. If they reasonably believe that another responsible adult can safely take possession of a car, apartment or home, they allow them to do so. Roommates frequently take over for those arrested or otherwise indisposed, as do friends, neighbors, or other responsible adults willing to assume the responsibility. All of this is within a police officer’s discretion.

What might give them a reasonable belief? That fact that the person involved has the keys to the residence, or lives with the person arrested, that all of their clothing and possessions are present in the residence as opposed to contained in a few boxes in a corner of a living room, that the person is an obviously sober, responsible adult. Such was the case with Samantha Sterner. All of these factors are more are commonly taken into consideration. In all of my years of police work, I, and every officer I have ever known, would not have hesitated to recognize Sterner as the legitimate joint tenant/resident of the home she shared with Erik Scott.

Officers often deal with unmarried couples in search and seizure situations. Generally speaking the law is quite clear, as is common, professional police procedure. Unmarried people living together may consent or withhold consent to search any areas they use in common. If two roommates, for example, do not grant the other unrestricted access to their bedrooms, then only they may consent to a search of their bedroom, but both may consent for common areas. In the case of an unmarried couple who have no such restricted access, either is fully responsible for the entire dwelling and may indeed deny or grant the authorities access.

As I noted in past updates, in any case where access is denied, the police have one option: obtain a search warrant. That they did not do so in the Scott case speaks volumes. Any competent investigator working a police shooting case would absolutely demand that any related search be done with a warrant if for no other reason than to ensure that no inadvertent mistakes are made which might later harm the case, or simply, which might make them look incompetent. That they did not obtain a warrant directly suggests that the officers knew that they did not have lawful grounds to obtain one. Using Deputy Public Administrator Steve Grodin suggests that they were desperate to enter that home with or without lawful authority and needed Grodin to provide cover. Update 7 (scroll down in the Erik Scott Case archive) contains a theory of why the police considered that search mandatory.

Indeed, Kevin Scott did not have authority to consent to a search. He didn’t live there, not even in the same state, and was not a joint tenant. Samantha Sterner was, but she was ignored to provide cover for the search. After all, who took custody of the residence after they were able to get the new keys from Kevin Scott? Samantha Sterner, the woman who actually lived there and had unrestricted access to and control of the home. In any normal circumstance, the police would surely have recognized that and listened to Sterner. In this case, they had compelling, likely illegal, reasons to do otherwise.

The law recognizes and the police understand that unmarried people live together for a wide variety of reasons and under a wide variety of circumstances. That two people are not married matters no more in the circumstances under discussion here than their respective race or gender. Being unmarried does not exclude one from control of or responsibility for a home, a car or other property. If I loan a friend my car for a month, I have granted them complete control over that vehicle for that time, and no written, legal document is required. If I fall in love with a woman and we decide to live together, there is no question that we share joint custody and control of our dwelling, absent any specific limiting agreement, which again, need not be in writing. If I have a female roommate, the same applies. If my sister moves into my home, absent agreed restrictions, she too is my joint tenant under the law—to say nothing of common sense—and has all the rights and responsibilities that my wife would enjoy, even if my wife is also living there.

None of this is unusual. There is a substantial, clear body of Fourth Amendment law, including many cases decided by the US Supreme Court, which defines and confirms exactly what I outline here.

Whatever intimate relationship a couple might enjoy—and in this case, “Federale” is making assumptions and allusions not supported by any known or knowable evidence--is also immaterial. In short, no one is in any position to label Erik Scott or Samantha Sterner fornicators, nor would any possible intimate relationship, or lack thereof, have any bearing whatever on this case.

In fact, police officers are almost universally prohibited from imposing their moral beliefs on others. Police officers may think whatever they like, but they must treat everyone with dignity and respect while on the job. Allowing their religious or moral strictures to interfere with their work, or to color the manner in which they deal with the public is grossly unprofessional and keeps them from serving the public and doing their jobs. Any rational person considering this can surely see the wisdom and necessity involved.

I’ll leave it to the good sense and good manners of our readers to consider the motivations and character of any who would speak of the dead and of an innocent woman, a woman brutalized and harassed by the very police that shot and killed the man she loved, in this manner.

The Erik Scott Case, Update 11.2: Patterns and Process

Since Update 11 on April 17, there have been a number of interesting developments. This update will deal primarily with the continuing saga of Officer Thomas Mendiola, the case of Officer Derek Colling, issues relating to the new inquest procedure and additional information on the National Association of Police Organizations--NAPO-- and its bestowing of undeserved hero status on two of the officers who shot Erik Scott. First, links relating to the matters discussed in this update:

For Update 10 (02-06-11), relating to the arrest and suspension of Officer Mendiola for giving a firearm to a felon, go here.

For Update 10.2 (03-27-11) relating to the unprovoked assault and brutal beating of a citizen by Metro officer Derek Colling, go here.

For Update 10.3 (04-02-11) relating to the latest developments in the Clark County inquest procedures, go here.

For Update 11 (04-17-11) relating to the awarding of “Honorable Mention TOP COP” status to Officers Mosher and Stark by the NAPO, go here.

For an April 26 Las Vegas Review-Journal update on the Colling/Crooks beating story, go here.

For the YouTube video--shot by Crooks’ videocamera-- of the beating, go here.

For a May 13 Las Vegas Sun update on Mendiola’s arrest, go here.

For a PDF of the criminal complaint in the Mendiola case, go here.

For a May 13 Lav Vegas Review-Journal update on the Mendiola case, go here.

For a My News 3 Update on the Inquest procedures, go here.

For a brief story relating to officer shootings in Milwaukee, WI, go here.

For a Las Vegas Tribune editorial on Metro corruption, go here.

THE COLLING BEATING:

In Update 10.2 (03-27-11), I detailed the case of Officer Derek Colling who was charged by Las Vegas resident and videographer Mitchell Crooks of beating him in an unprovoked attack on March 20. In that update, I concluded that Colling, who initially claimed that he was arresting Crooks for trespassing, but eventually charged him only with battery on a police officer, made a false arrest, an arrest attended by a brutal beating of Crooks who was standing on his own property while videotaping what to this day appears to be an unremarkable and apparently legitimate police action in his neighborhood. While it was not possible then to know exactly what happened, it appeared that Crooks’ version of events had the ring of truth and Colling’s did not. What did happen was an egregious case of “contempt of cop.”

“Contempt of cop” is a play on words of the common legal term “contempt of court.” The latter refers to a judge holding someone responsible for conduct--usually in the courtroom--that is disrespectful or disruptive, that reflects blatant contempt for the law, the judge and his lawful authority. The former is similar. It refers to a cop’s reaction to the same kind of behavior by a citizen in their presence. In the best sense of the term, an officer’s attention will be attracted by someone who goes out of their way to irrationally and unnecessarily antagonize a police officer in a public setting. In such circumstances, it would be foolish for a police officer to allow that person to go unpunished lest their behavior encourage others to insult, even attack other officers.

For professionals, it’s not a matter of personal feelings. Professional officers don’t take things personally, they know that they act on authority granted them by the people and that when someone foolishly shows contempt for them, they are actually showing contempt for the law, for those who made the law and those who give them the authority to make and enforce it, the people. Indeed, people have a right to behave stupidly, and to express foolish opinions, but those rights are not unlimited. In most legitimate cases of contempt of cop, people are legitimately arrested for disturbing the peace, and usually only after the officer involved has given them more than sufficient chances to avoid being arrested. The officer’s peers may joke about contempt of cop thereafter, but professionals all know that what they’re actually saying is that the person who was arrested more than deserved it and that the arrest was completely legitimate. In my police career, I found myself in that situation on several occasions.

Contempt of cop also applies to the worst instincts some police officers develop. In those cases, officers become “badge-heavy,” they begin to take matters personally. They become hypersensitive to any insult, real or imagined. They don’t consider the elements of the law, they take offense, act first and make up the rest later. Such officers are unpredictable and dangerous, not only to the public, but to their fellow officers who know that the bad will of the public is cumulative. Abuse the citizenry enough, and the officers who suffer for it--and some will suffer--will often be professionals, men and women of good will undeserving of their fates.

The case of Metro Officer Derek Colling appears to be such a case. The video shows a police officer who approached Mitchell Crooks, demanding that he stop videotaping him. Crooks, politely, calling Colling “Sir,” declined. Without provocation and cause, Colling attacked Crooks, knocking him and his expensive camera to the ground and repeatedly hitting and kicking him. One kick, likely the kick that broke Crook’s nose, is at least partially visible in the video, a video made from the viewpoint of the camera, on its side on the ground, not framing the beating but clearly recording the audio of all that occurred.

Crook’s screams of surprise and pain, his calls for help, are clear and disturbing. More disturbing are the calculated, crude and ugly comments of Colling who repeatedly threatens Crooks, threatening to beat him again even though Crooks is handcuffed, making fun of his pain and repeatedly calling out “quit resisting,” as he pummels a prostrate, injured and unresisting Crooks.

The tape reveals an officer who is cynically calling “quit resisting” because he knows there are witnesses, including two suspects in the back of his car (though they have not been identified and reports are that they were not actually arrested or booked). Honest officers might do this in an earnest attempt to encourage someone who is actually resisting to stop so that they can use only the minimum force necessary to arrest them. Officers like Colling do it to try to cover themselves as they, without cause and justification, brutalize an innocent citizen.

The District Attorney’s office has dropped all charges against Crooks, who has filed a lawsuit. Sheriff Doug Gillespie has declined to comment, and amazingly, Officer Collling remains on duty. David Otto, Crooks’ attorney said:

"Officer Colling was aggravated that a citizen should have the audacity to video tape, him -- a Las Vegas Metropolitan Patrol Officer,'' Otto wrote. "Officer Colling decided to use the fear and terror of his physical ability to beat Mr. Crooks into submission -- to teach Mr. Crooks and, by example, all citizens and residents of the Las Vegas Valley."

Quite so. Colling’s version of the incident appears to be, to put it kindly, fanciful.

As I noted in Update 10.2, this case and the Scott case are related in many ways. Any competent investigator looks for similarities, patterns that help them find the truth. When I began investigating and writing about the Scott case, I knew nothing at all about Metro or its reputation. I briefly visited Las Vegas nearly three decades ago, but had no real connection to it or anyone involved in the case. I was, in short, more than willing to give the officers involved and Metro the benefit of the doubt. I have learned that they don’t deserve it. The similarities in both cases illustrate why:

(1) In both cases, officers acted without justification and were not in control of themselves or of the situation.

(2) In both cases, an officer involved had previously shot two citizens. As I’ve noted in prior updates, it is rare for any officer to have killed anyone an an entire career, let alone two people. In the cases of Officers Colling and Mosher, they killed three between them (one shot by Mosher lived) within a span of only about five years. With the Scott case, Mosher had shot three and killed two. In normal, professional law enforcement agencies, this would be unheard of and a cause for real alarm and concern.

An illustrative example may be found in the link to a Milwaukee police shooting. In that case, a man with a knife charged two officers. One of the officers fired, striking him several times, yet he still held the knife, dropping it only after the officer’s continuing commands to disarm. The man was treated and released from the hospital the following day. The article explains a state of police affairs that would appear to be utterly foreign to Metro:

“The use of force is "a rare event" for Milwaukee police officers, according to a newly released 2010 report of the Fire and Police Commission.
The report states there were 511 cases of use of force against people last year out of 38,641 arrests [1.3%].”

I’ve no idea of Metro’s statistics in this regard, but I suspect they’d be larger. I’ve little doubt that the number of Metro officers who have shot and/or killed citizens, even multiple citizens, would be far out of proportion to virtually any other police department of similar size. I know that in some ways, Las Vegas is unique, but it would certainly be interesting to see reliable figures.

(3) In each case, supervisors were involved and had the opportunity, then and there, to hold officers who made serious mistakes accountable, to stop a chain of events that would only make matters worse, but not only did nothing to prevent things from getting further out of hand, but may have engaged in a continuing coverup of police wrongdoing.

In the Colling case, for example, it must have been clear to any rational supervisor that Colling had no probable cause for arrest, and certainly no justification for his brutal beating of Crooks. The trumped up trespassing charge was dropped at the scene and Crooks was charged with assaulting Colling in perhaps one of the worst and most ironic cases of projection extant. In this case and the Scott case, the first line supervisor had the opportunity to stop improper and illegal actions then and there and did not take it. This seems all too common with Metro.

(4) In each case, common professional procedures and practices were abandoned or ignored, and dangerous and glaring mistakes that would cause officers in professional agencies to be immediately investigated, disciplined and potentially fired were overlooked, if they were recognized at all.

(5) In both cases, the officers involved were apparently either incredibly incompetent, incredibly corrupt or both and enjoyed what appears to be, at the very least, the support of their superiors. Consider that all of the officers involved (with the exception of Mendiola) are still on duty, and two have been cited as national examples of police excellence (more on this shortly).

If these were the only two cases in recent memory of similarly unprofessional behavior, they could easily be explained away as aberrations. I do not for a moment suggest that every Metro officer is corrupt or incompetent or that they engage in incompetence and corruption in all, or in even most, of their official actions. But as I’ve noted in past updates, that is not necessary for a police agency to gain a reputation for corruption and incompetence, a reputation that existed long before the Erik Scott shooting on July 10, 2010, long before I posted my first article on the case on September 21, 2010, and a reputation that continues and has arguably worsened since.

What this case demonstrates above all is a pattern of institutional neglect and corruption. Metro appears to be an organization that not only hires questionable officers, but supports and protects them in actions that would at the very least result in severe discipline in professional agencies, and most likely would result in firing. Officers like Colling do not just suddenly explode one day after years of highly professional conduct. Surely his peers and supervisors knew--and know--his potential for irrational violence so amply demonstrated in the Crooks case? It would be instructive indeed to know Officer Colling’s entire history with Metro. Unfortunately, violent incidents, incidents of unprofessional, abusive behavior, would be unlikely to be included in official records. Colling’s criminal attack on Crooks is merely one of far too many examples of abusive, unprofessional, dangerous and even deadly behavior by Metro officers.

We will continue to follow this case and report on its eventual disposition. It may be instructive to take the link to the Las Vegas Tribune editorial relating to Metro’s management and reputation. Metro’s reputation is well known and is becoming more so.

THE NAPO AND QUESTIONABLE HEROISM:

As I noted in Update 11, Officers Mosher and Stark were awarded honorable mentions in the annual NAPO TOP COP program. This occurred because the head of the Metro police union, Chris Collins, is the Sgt. At Arms of that organization, and recommended them for that honor, obviously taking care to see that it was accomplished. And for what were they awarded this distinction? The shooting of Erik Scott.

Collins arrogantly announced the award at a legislative hearing on a bill that would have allowed the Clark County DA or Coroner, and exclusively the Clark County DA or Coroner (in the entire state), to decide whether to hold an inquest in any police shooting. Collins miscalculated. There is substantial evidence to suggest that his ill-conceived action doomed the bill then and there, and has ensured that it has no hope in the future. I’ve come to understand that this kind of arrogant disdain for the public is common with the PPA and with Mr. Collins, and I’ve documented it in past updates.

I sent the following e-mail to the NAPO on April 17:

“Sirs:

Good day.  I recently learned that your organization awarded an honorable mention to two Las Vegas Metro officers, Joshua Stark and William Mosher, for their part in the shooting death of Erik Scott in July of 2010.  It appears that your Sergeant-at-Arms, Chris Collins, made the nomination that resulted in that award.  

I'd like to bring to your attention information that might cause you to reconsider that choice, and hope that you might consider it seriously.  There is very good reason to believe that their part in the incident for which they are being honored is not worthy of that honor, not the least of which is that it is currently under litigation.  

May I suggest that you visit this article:  http://confederateyankee.mu.nu/#314865

It is part of an archive of my writings on this case, which should raise reasonable suspicion about what actually happened.  Did you know, for example, that one of the three officers who shot and killed Erik Scott was, only months later, arrested for giving a firearm to a felon?  Did you know that Off. Mosher, prior to the Scott shooting, had been involved, in a short time, in two shootings, one resulting in the death of a citizen and one a wounding?

As a veteran of nearly two decades of police service, I urge you to carefully consider this situation.  I suspect that you'll find, as have I, that at the very least, it would be unwise to pronounce these officers heroic, unwise and damaging to the reputation of your organization.  There are more than enough examples of undisputed, unblemished police heroism out there.”

I suspect that it will not be a surprise to readers to learn that the NAPO has not responded and that as of the posting of this article, Officers Mosher and Stark are yet listed as honorees on the NAPO website. As I mentioned in my e-mail, this “honor” would seem to be, at the very least, premature. That the NAPO would issue such an honor under these conditions does not speak well of its integrity and dedication to recognizing and rewarding actual heroism and excellence.

THE CONTINUING TROUBLES OF THOMAS MENDIOLA:

Having been suspended from duty for some time, Officer Mendiola was formally indicted on May 13. The affidavit supporting the indictment indicates that Mendiola admitted knowingly giving a firearm to a man he knew to be a felon--prohibited from gun ownership--and that he actually discussed his felon status with the man who acknowledged that he was a felon. Mendiola will likely be arraigned May 26.

As I noted in Update 10, this situation presents many interesting issues. Normally, it would be expected that any officer in Mendiola’s situation--facing a civil action that has the potential to shake Metro to its core--would enjoy a significant degree of protection, protection that is routinely afforded Metro officers--some 200 in the last decade alone--who kill citizens. That the offense with which he has been charged came to light during an undercover investigation is likewise interesting and unusual.

If it was Metro’s intention to protect Mendiola, there would have been no reason that his actions had to be made public. Metro is well practiced at keeping such things under wraps, after all. That they were made public would seem to indicate that Metro made a conscious decision to abandon Mendiola. The question is why?

Did Metro come to believe that Mendiola might be willing to stray from the official version of events in the Scott case? Did more subtle means of getting him back on the reservation fail? Was his arrest a more obvious attempt to force him back into the fold, and if we take for granted that it did not have the desired effect, was his actual indictment yet another, more forceful attempt to obtain the desired result, the desired testimony? Or does Metro intend to cut him loose entirely?

This would seem an unwise thing to do as Mendiola might cause Metro considerable damage. On the other hand, it is known that he was washed out of the Metro Police Academy on his first try and allowed a second chance. The circumstances of this remain unknown, but Metro might well use this--as well as any number of other negative allegations--to discredit any testimony Mendiola might potentially give. They would have to admit some degree of error in hiring and retaining Mendiola, but to some, that might seem to be an honest admission and an attempt to clean up Metro, starting with one of its least experienced and lowest ranking members. But its best weapon would be the ability to paint Mendiola as a disgruntled, disgraced cop, a cop who is actually a convicted felon. After all, who is a jury going to believe, two cops awarded national honors for their “heroism” or a convicted felon, screw-up ex-cop with an ax to grind? Of course, when it’s time for depositions or testimony, Thomas Mendiola might just become, should we say, hard to find. Mr. Mendiola might wish to consider his options with some care and with some rapidity.

It is, of course, always possible that in this case, Metro is behaving properly and enforcing the law by the book. As I earlier mentioned, every Metro officer is certainly not corrupt and everything Metro does is likewise not corrupt. However, there is more than enough precedence for corrupt practice in Metro history, and certainly in its present operations.

To the degree that one might have pity in their heart for the Metro officers involved in the Scott case, Thomas Mendiola might end up to be deserving of some small portion. Still, his troubles seem to be largely of his own making.

THE CONTINUING INQUEST SAGA:

Update 10.3 outlines the latest on the inquest saga. However, it has been reported that on May 9, a pre-inquest meeting was held with the representatives of the family of Benjamin Bowman, killed by Metro officers in November, 2010. This is apparently one of two scheduled meetings (under the new inquest rules adopted in January) during which families are afforded some degree of discovery of the evidence. The Bowman case is the first to be initiated under the new rules.

Regular readers will recall that Metro officers, through Chris Collins, their PPA chief, have explicitly stated that they will not cooperate with inquests, will not testify, and/or will take the 5th. The inquest process in the Bowman case has not yet reached that point, but should the involved officers refuse to testify or properly cooperate, it will indicate clearly that Metro is at war with the public, and that Las Vegas police officers will accept no accountability to the public for their actions, particularly when those actions result in the deaths of citizens.

At the moment, Sheriff Gillespie and DA Roger seem to have no intention of demanding that Metro officers do their jobs and testify about their official actions as officers do routinely every day across the nation. Update 10.3 explains in substantial detail why this is a very serious matter indeed.

FINAL THOUGHTS:

As I mentioned earlier, the Colling case is just one of a great many similar cases in Las Vegas. If I wished, I could write about such cases, easily, on a weekly--indeed, a more frequent--basis. The police deserve the support and appreciation of the public, but only if they take daily pains to make it clear that they serve the public. Metro apparently does quite the opposite. If, following the Erik Scott shooting, no similar cases occurred, if the kinds of bizarre, unprofessional incidents that have become routine in Las Vegas had not come to light, I would likely still have considered the Scott case to be outrageous, a bad shoot, but would have thought it to be the exception rather than the rule, and my coverage of the case would surely have taken a very different, and far less voluminous, turn. As one who knows how a police organization should--must--work and relate to the citizenry, I can say without equivocation, I would never live in or visit Las Vegas. It would be impossible for me to trust its police.

Even those who believe the Scott case to be justified--and some, with good will and without, certainly do--must surely be concerned by the patterns I’ve outlined in these many pages. If not, it would seem that they share the mindset of that minority of Metro cops who are apparently not professional, who are seemingly corrupt, and who have painted the entire organization in very unflattering colors indeed. For it is not, you see, the big offenses that begin and ensure continuing, growing corruption, but the small things, the hundreds of cut corners, minor thefts, usurpations of legal authority, petty abuses, that have a cumulative effect, a deadening, numbing effect, and that not only allow, but ensure greater and greater corruption, corruption that, in a life-and-death business, inevitably leads to the deaths of innocents.

Lord Action was right: Absolute power corrupts absolutely. Corruption, however, is not omnipotent. It can be defeated, and corrupt organizations can be remade. The Erik Scott case might serve as a turning point, an opportunity for individual and organizational redemption. But that will ultimately be up to the citizens of Las Vegas, the citizens who recently re-elected Doug Gillespie to run Metro.

Officer in Erik Scott Shooting Indicted for Arming a Felon

But hey, there's nothing wrong with the Las Vegas PD:

A Las Vegas police officer involved in a fatal shooting outside the Summerlin Costco last year has been indicted on a felony weapons charge in a separate incident.

The indictment returned Friday charges officer Thomas Mendiola with disposal of a firearm to a prohibited person. He is accused of giving a handgun to a two-time felon.

Mendiola, 23, an employee of the Metropolitan Police Department since March 2009, has been relieved of his patrol duties at the Convention Center Area Command .

If convicted, Mendiola faces 10 years in prison and a $10,000 fine. I'll be interested to see what kind of deal Vegas authorities reach with him so that he stays quiet about what he knows about the police cover-up of the Scott killing.

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.

The Erik Scott Case, Update 10.3, Stealth Legislation and Misdirection

Since the posting of Update 10.2, additional information relating to the issues it raised has come to light in the local Las Vegas media (here). Officers Mark Hatten and Timothy English, who were placed on administrative suspension following the taser death of Anthony Jones have been put back to work in unspecified jobs that allow no public contact. In addition, most of the approximately one dozen officers similarly suspended over the last five months after fatal shootings or in-custody deaths have also been placed in similar, unspecified duties.

Kathy O’Connor, Sheriff Doug Gillespie’s Chief of Staff said:

“There’s really no reason we need to leave these officers sitting at home. We’re just looking to be as efficient as we possibly can.”

O’Connor also observed that the practice of keeping officers off duty until after a coroner’s inquest was of long standing and common in law enforcement. She characterized the practice as giving the officers time for counseling and emotional recovery.

According to Clark County Assistant Coroner John Fundenberg, inquests will take place from four to six months after an incident. Two decades ago, they often began in as little as two weeks, and in recent years, within six weeks. Commenting on the changes in the process wrought by the Clark County Commission, Fundenberg, who has apparently had his sense of irony surgically removed as a condition of employment, said:

“People didn’t believe the district attorney acted as an impartial party in the past. I disagreed with that, but they were accused of being partial.”

Multiple cases awaiting a coroner’s inquest will have to wait until late May, at the earliest, though Fundenberg hopes they will be caught up by the end of the year.

Chris Collins, President of the Las Vegas Police Protective Association--the police union--did not depart from the union line. He said that participation in inquests would open officers to civil liability. Collins claimed that four unnamed attorneys came to that conclusion.

“We warned them, if you will, that if they made this process so adversarial we would not participate.” Collins added “It’s a shame. The process before worked. It was open to the public. And now, in my opinion, the tail wagged the dog and the small vocal minority has taken away what was once an open process.”

ANALYSIS:

DOES THE PPA REPRESENT THE BEST INTERESTS OF THE CITIZENS OF LAS VEGAS? One expects a union boss to do and say whatever is necessary to advance union interests above all else, however, Mr. Collins not only engages in substantial misrepresentation, he departs from the truth in this pursuit. Police officers are always at risk of civil liability for their official acts, and the criminal justice system of which they are a part is, by design, adversarial. Anyone suggesting that police officers are somehow being unfairly treated by being expected to play their societal and statutory role in the very system they labor to serve and uphold is either badly misinformed, or is purposely misleading the public. Any officer unable to stand up to adversarial questioning is simply unfit for duty.

Coroner’s inquests are not a whim of unnamed forces out to harm innocent Las Vegas police officers, they are mandated by Nevada law and in large part regulated by local county commissions. In other words, they exist as an extension of the will of the people of Nevada. Despite the suggestions of some, coroners, and coroner’s inquests, exist throughout the nation and all unattended deaths, whether they have police involvement or not, are examined. Police testimony at inquests is common.

The “small, vocal minority” Collins decries was sufficiently large to motivate an unprecedented change by a county commission previously characterized by doing little or nothing to change the status quo, and to at least some degree, flies in the face of powerful, entrenched local interests, including Metro and the police union.
Collins’ suggestion that a previously “open process” has been “taken away” is simply false. The new inquest rules require that each inquest be broadcast live on the Clark County public access TV channel. Collins surely knows this, and more.

BEHIND THE SCENES:

Mr. Collins’ misleading of the people of Las Vegas is yet more egregious and cynical. The PPA is energetically lobbying for a bill sponsored by Assemblyman John Hambrick (R, Clark County, District 2). Assemblyman Hambrick should know better. His background information on the Legislature site indicates that he is a “retired investigator,” who apparently worked in federal law enforcement investigating fraud. The bill had its first reading on March 18, 2011 and has been referred to the Committee on Government Affairs. It reportedly has not yet been considered by that committee, but it is likely that it will be. Here is the bill, from the Legislature’s pending bill site, in it’s entirety.

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. NRS 259.010 is hereby amended to read as follows: 259.010 1. Every county in this State constitutes a coroner’s district, except a county where a coroner is appointed pursuant to the provisions of NRS 244.163.

2. The provisions of this chapter, except NRS 259.025 , 259.050 and 259.150 to 259.180, inclusive, do not apply to any county where a coroner is appointed pursuant to the provisions of NRS 244.163.

Sec. 2. NRS 259.050 is hereby amended to read as follows: 259.050

1. When a coroner or the coroner’s deputy is informed that a person has been killed, has committed suicide or has suddenly died under such circumstances as to afford reasonable ground to suspect that the death has been occasioned by unnatural means, the coroner shall make an appropriate investigation.

2. In all cases where it is apparent or can be reasonably inferred that the death may have been caused by a criminal act, the coroner or the coroner’s deputy shall notify the district attorney of the county where the inquiry is made, and the district attorney shall make an investigation with the assistance of the coroner. If the sheriff is not ex officio the coroner, the coroner shall also notify the sheriff, and the district attorney and sheriff shall make the investigation with the assistance of the coroner.

3. In all cases where it is apparent or can be reasonably inferred that the death may have been caused by a peace officer while acting in his or her official capacity:

(a) Through the use of force, including, without limitation, physical force, the use of chemical agents, electric force or the use of a firearm; or

(b) As a result of a motor vehicle accident caused, in whole or in part, by an action of the peace officer, ␣ the coroner or the coroner’s deputy shall notify the district attorney in the county where the inquiry is made and the district attorney shall investigate the death as a homicide.

4. The holding of a coroner’s inquest pursuant to subsection 1 or 2 is within the sound discretion of the district attorney or district judge of the county. An inquest need not be conducted in any case of death manifestly occasioned by natural cause, suicide, accident or when it is publicly known that the death was caused by a person already in custody, but an inquest must be held unless the district attorney or a district judge certifies that no inquest is required.

[4.] 5. If an inquest is to be held, the district attorney shall call upon a justice of the peace of the county to preside over it. The justice of the peace shall summon three persons qualified by law to serve as jurors, to appear before the justice of the peace forthwith at the place where the body is or such other place within the county as may be designated by him or her to inquire into the cause of death.

[5.] 6. A single inquest may be held with respect to more than one death, where all the deaths were occasioned by a common cause.

7. As used in this section, “peace officer” means any person upon whom some or all the powers of a peace officer are conferred pursuant to NRS 289.150 to 289.360, inclusive, when carrying out those powers.

Sec. 3. Sec. 4. 259.200

NRS 259.200 is hereby repealed. This act becomes effective on July 1, 2011.

What does it mean? It’s quite simple. Inquests involving police officers are required unless “the district attorney or a district judge certifies that no inquest is required.” In other words, it’s up to the DA, not and, but OR, a district judge to decide whether a given police-involved inquest--or any police-involved inquests at all--take place.

Considering the history of the DA’s office in Las Vegas, it may not be unreasonable to believe that any police-involved death that was not obviously absolutely and conclusively fully justified would not be held. In fact, it would not be stretching the bounds of credulity to think that there would never again be a police-involved inquest in Las Vegas. If this is not the motivation behind the law, what could the motivation be? To save money? I’m sure that those pushing the law would cite that reason, but there are certainly areas of government that are far more expensive and wasteful and the timing of this particular bill is, should we say, interesting.

I have contacted Assemblyman Hambrick to ask him to clarify his intentions regarding this bill, but have yet to hear from him. If he does respond, I’ll relay his comments in their entirety.

If the DA’s office and the Corner’s office are aware of this bill and the push to pass it, and it may not be unreasonable to believe that they are not only aware of it, but may also be pushing it, Mr. Fundenberg’s comments take on less an air of opinion and more an air of misdirection.

If this bill passes, there are several harmful effects, all no doubt intended:

(1) The PPA and Metro officers will have established that they are in charge of Clark County, Nevada, and not its citizens or Sheriff. They will have demonstrated the power, through threat, intimidation and the exercise of deceptive political power to bend the law to their whims, not to honor their oaths to uphold and enforce it. They will be encouraged to be even more lawless.

(2) Where law enforcement is concerned, the minimal transparency that now barely exists will be extinguished. In Clark County, it is only coroner’s inquests that have provided the scant factual information available to the public when police officers kill citizens, something that occurs with alarming frequency. Absent inquests, the public will know nothing other than what Metro is willing to release. In essence, Metro will investigate Metro--or pretend to--and will inevitably conclude that Metro is blameless in every instance, just as it has for more than a decade, with a single, small exception.

(3) Knowing, finally and beyond doubt that they are the masters of the public rather than the servants of the public, Metro officers will hardly behave in a more restrained, professional manner. The public may come to universally fear and despise their police force ( there are credible indications that much of the public already does). No sane police administrator or police officer could possibly welcome this state of affairs which is incredibly dangerous for the police and the public.

(4) Knowing that they will not be held accountable for the deaths of citizens, Metro officers may be involved in an ever-increasing number of them.

SUSPENSIONS:

Regarding returning officers to limited duty, Ms. O’Connor is partially correct. Officers relieved after a shooting or other death are on paid leave, and are removed from duty, in part, to allow for recovery and counseling. In fact, many agencies require psychological counseling and the written authorization of a psychologist before officers are allowed to return to duty. However, equally important is the protection of the public and its interests. Officers must remain out of contact with the public until a police agency can be certain that they have not committed a crime. In these cases, such crimes would virtually always be felonies. Officers under suspicion of criminal wrong doing, or who are convicted felons may not serve as law enforcement officers. Only until an inquest has been completed and the involved prosecutor has clearly ruled on whether an officer will be charged can this be known with certainty. In addition, police agencies must be reasonably certain that an officer is physically and psychologically fit to return to duty. Any competent police executive must see that all of this is done to avoid potentially ruinous civil liability for his officers, his city or county, and himself.

In Las Vegas, however, it would appear that policies and procedures considered to be current best professional practice elsewhere have little or no application. The new inquest procedures have been established since the beginning of the year. Why is it taking so long to hold inquests? Ombudsmen have been chosen (for discussion of the lack of wisdom of and likely motivation for that policy, scroll down for Updates 9 and 9.2), and there is apparently nothing else to be done in preparation, so what’s the impediment?

WHAT’S TAKING SO LONG?

One possibility is that Metro is waiting until Assemblyman Hamrick’s bill is passed and takes effect on July 1. At that point, one can argue all they like that pending cases are not included in the law because they took place prior to July 1. In that the US Constitution forbids ex post facto laws, this may indeed be the case, but in Las Vegas, when the DA and Metro speak, who can stand against them? Even if a citizen or the ACLU filed a civil suit, it would likely take years to adjudicate and by then, witnesses will have moved away, even died, memories will have dimmed, and pending cases, like so many other cases in Las Vegas history, will have gone down the Clark County memory hole.

Absent that, the primary impediment would appear to be the Metro officer’s union and the lack of an effective, professional response by Sheriff Gillespie, the Clark County Commission and the courts. To what should they respond? I’ve gone into this in significant detail in Updates 9 and 9.2, but to recap:

An integral part of every police officer’s duty is to write complete, factual and honest reports about their official actions and to testify, as often as necessary and in as many different venues as necessary, about those actions. Officers are also expected to cooperate fully in all investigations conducted by their agencies. There is nothing unusual in any of this, any more than expecting fire fighters to participate in all aspects of fighting fires and cleaning and maintaining their equipment afterward would be considered unusual. Suggesting, as Collins has repeatedly done, that police officers are being somehow abused by being required to do this basic, fundamental aspect of their duties is simply wrong, and if Collins, knowing it is wrong persists, deceptive and outrageous.

As I’ve previously noted, police officers retain their full constitutional rights, and may, if they consider it necessary, retain an attorney and even invoke their Fifth Amendment right against self-incrimination if they wish, but none of this absolves them of their duty or protects them from punishment for failing to do it.

Nevada law assumes that officers will cooperate in internal investigations and allows their agencies to charge them with insubordination if they refuse. Insubordination is most commonly defined as refusal to obey lawful orders, and officers may be disciplined for insubordination relating to any aspect of their duties. Sheriff Gillespie certainly understands this, yet appears to be abiding insubordination.

What’s at stake is who--if anyone--is in charge of the Metro Police, and whether the Las Vegas Criminal Justice system can function as designed or whether it will be controlled by special interests, in this case, the Metro Police and their union.

WHAT SHOULD HAVE ALREADY HAPPENED:

The day after the Union announced its mutiny against the lawful authority granted the Sheriff by the public, Sheriff Gillespie should have announced, to the public and in writing to every officer, to be read by every shift and division commander to their officers, the following:

(1) That every employee of Metro is expected to fully cooperate with official investigations, and is ordered to do so.

(2) That every employee of Metro is expected to write full, complete, and accurate reports of their official actions, and is ordered to do so.

(3) That every employee of Metro is expected to fully honor each and every notice or subpoena to appear in any judicial hearing relating to their official acts, to include, but not limited to: Coroner’s Inquests, preliminary hearings and trials. Every employee of Metro is ordered to do so.

(4) That every employee of Metro is expected to honestly and completely testify when directed at such hearings, and is ordered to do so, but retains all of their rights under the Nevada and US Constitutions.

(5) Any officer may invoke their right against self-incrimination, but those who do will be subject to immediate suspension and internal investigation.

Any officer refusing to obey these lawful orders should be immediately charged with insubordination, relieved of duty without pay, relieved of their gun, badge and credentials, and subjected to termination proceedings. If this seems harsh, consider that these orders are merely confirmations and reflections of what honest, professional officers are expected and required to do, and on a daily basis do everywhere else in the nation.

And it is entirely reasonable to immediately suspend and investigate any officer who “takes the 5th.” This is not a violation of their rights or in any way underhanded. In criminal cases, taking the 5th may not be held against a criminal suspect at trial, but this protection does not apply to administrative matters where all that is at stake is a job. Insubordination and willful neglect of duty are not protected by the Bill of Rights, nor is concealing knowledge of a crime, particularly where an officer is not directly involved, but is merely a witness before, during or after the fact.

And consider carefully what is happening when an officer takes the fifth: A police officer is saying that if he tells those who hire and entrust great power to him--the public--how he is using that power, he could be convicted of crimes! If a police officer who is paid to be knowledgable about the law believes that, should we not take him at his word and ask what crimes he believes he has committed? Wouldn’t any police officer ask such questions of anyone he suspected of committing crimes? Is that not what he is paid and expected to do?

Further, the Sheriff should have conferred with the chief judge of the Las Vegas courts and reached an agreement that any officer refusing to honor a subpoena to appear at an inquest or any other judicial proceeding will be immediately arrested and brought before the appropriate judge to show cause why he or she should not be held in contempt of court. If their explanation is union boilerplate, or otherwise without merit, they must be put on the witness stand and afforded the opportunity to do their duty. If they refuse to take the stand or refuse to answer questions, they should be immediately jailed and fined. This too should have been disseminated to the public and to every officer.

WHAT SHOULD HAPPEN:

(1) Any effort to subvert Nevada law to allow corrupt officials to avoid their duties, obstruct public transparency, and to allow potentially guilty parties to escape detection and prosecution must be defeated. Police reports are public documents.

(2) It must be made, once and for all and unmistakably, clear to the union and its officers who is in control of law enforcement in Las Vegas and Nevada.

(3) The public must take back control of their politicians and of law enforcement.

(4) A complete and professional outside review of Metro should be done and every unprofessional, corrupt influence removed and prosecuted as appropriate.

If transparency is eliminated, if corruption and criminal wrong-doing by the police and others is not exposed and prosecuted, it can only be because the Sheriff, the police and local and state politicians want it to be that way. Absent removing the offending elements via the ballot box, moving to a state or city where the rule of law holds sway may be the only rational option.

As always, any misrepresentation or misstatement of fact in these pages is unintentional and may result from a lack of complete, factual information in the hands of Metro and related agencies. I continue to invite contact from representatives of Metro or any other involved agency or individual. I will keep their confidence and promptly and prominently correct any inadvertent error, and will continue to report on and analyze new developments.

Erik Scott Case at Pajamas Media

The good folks at Pajamas Media have been kind enough to post my recent article on the Scott case, available here. Regular readers who have been following the case on Confederate Yankee will find it to be a summary of recent developments for those who have not been regular readers. Even so, the comments are entertaining, and PJM is a fine site that is worth your while.

I'll be posting another update--10.3--on the case at CY within a day or two as some additional information has been made available on some of the newer developments.

The Erik Scott Case, Update 10.2: Similarities and Continuing Mutiny

This update will deal with four issues: (1) An alleged beating of a citizen by a Metro officer. This incident is not directly related to the Scott case, but has a great many disturbingly similar, familiar elements. (2) The realities of police recruitment and training. (3) An update on the taser death of Anthony Jones. (4) The continuing mutiny against the public and justice system by Metro police.

The civil case filed by the Scott family proceeds at the usual glacial pace of such things. There is, at the moment, no known news as the usual motions, counter motions, and courtroom and paper jousting take place. That there is nothing new to report at this point is neither significant or insignificant. It is simply the way things are done and is to be expected.

As has been my practice in analyzing the Scott--and related--cases, I offer a disclaimer: Most of what appears in these pages is the product of my research--using sources available to the public--and my analysis which is the product of my many years of experience. Therefore, I may be incorrect in ways small and large, and may be unaware of errors for some time. I fully expect that a great deal more will be known when the Scott civil trial begins, and I will, of course, report on that information. But for the time being, I rely on my background and knowledge, and the assistance of readers--including residents of Las Vegas--who might have information that could be helpful. Any factual errors appearing here are inadvertent and will be immediately corrected when better information becomes available. Any opinions expressed, if found to be in error, will likewise be corrected when better information becomes available.

Here are pertinent sources for those who wish to read them:

For the complete Nevada Revised Statutes relating to trespassing, go here.
For the Las Vegas Review Journal story about an alleged police beating, go here.
For my Pajamas Media article on police hiring practices and the Obama Department of Justice, go here.
For the Las Vegas Metro Hiring Process, go here.
For the Las Vegas Review Journal update of the Jones taser death, go here.

THE CURIOUS CASE OF THE BEATEN CAMERAMAN:

On Sunday, March 20, 2011 at about 2030, Mitchell Crooks heard police helicopters above his Las Vegas home. Police were answering a nearby burglary call, and noticing several handcuffed suspects on the curb across the street, he walked into his driveway with his new $3500 digital video camera and shot some footage. Not much was happening:

"It seemed totally routine," Crooks said. "I mean, I didn't even care. I wasn't there to record the police."
About an hour later, Crooks noticed Metro officer Derek Collings with several handcuffed suspects in his car, driving in a circle in Crooks’ cul-de-sac. Crooks thought the officer was leaving the area, but he spotlighted Crooks, stopped his car and approached Crooks. At this point, two distinct stories emerge.

CROOKS’ VERSION: Crooks said that Colling “charged” him, shouting "Turn the camera off, turn the camera off! Do you live here?"

Crooks replied: "No. No, I'm just observing." Crooks said that when he said “no,” he was replying to Colling’s command to turn off his camera. "I was never trying to say, 'No, I don't live here,' " Crooks said later. "That's ridiculous. My license with my address on it was in my pocket. I wasn't just going to put my camera down because I know my rights."

Crooks said that within seconds of leaving his patrol car, Colling knocked the camera from his hands and kicked it into the brush. Crooks tried to get his camera, but Colling punched and kicked him at least 50. After being handcuffed, Crooks screamed for help. "He hit me at least a dozen more times in the face to get me to stop screaming," he said. At least one neighbor did hear someone shouting “Somebody help me,” but did not see the incident.

A police sergeant arrived sometime later and crime scene investigators photographed Crooks’ injuries, however apparently none of the police reports mentioned any injuries, despite the fact that paramedics did respond. "They wiped the blood off my face, but that's about it," he said.

The police apparently seized Crook’s camera. Crooks watched Colling try to remove the tape. "I have no idea if it's working, or what it recorded, or where the tape is," Crooks said. "It may have recorded the beating."

Crooks was charged with obstructing a public officer and battery on a protected person, for allegedly placing his hands on Colling’s shoulders.

COLLING’S VERSION: Colling’s report, described as “brief,” asked Crooks, in a "very conversational tone, 'Hey man, what are you doing?'”

Crooks is alleged to have responded that he was filming the officers.

Colling asked Crooks if he lived there and Crooks answered “no.”

From Colling’s report: "Due to the fact that he was standing on private property and stated that he did not live there, I had a reasonable belief that he was trespassing." Collings wrote that he asked Crooks “numerous” times to turn off the camera, but Crooks would not.

The LVRJ account continues: “Colling wrote that Crooks started to back away, and that he grabbed Crooks by the shoulders to prevent him from fleeing. A struggle ensued, during which Colling said Crooks grabbed him by the shoulders ‘and attempted to take me to the ground. I in turn took him to the ground.’"

PERTINENT INFORMATION: Crooks has been involved in a previous incident of filming police officers of some note. In 2002 he filmed a police beating of a 16-year old boy in Inglewood, CA. When he refused to turn his tape over to prosecutors, he was arrested a week later on “old warrants” for drunk driving and petty theft unrelated to the filming. Authorities obtained his tape and Crooks was jailed in 2002 and released in 2003 and “has not been in trouble since.”

Officer Colling, who has been working at Metro for about 5.5 years, has shot and killed two citizens during that time. One incident was a 2006 shooting, with four other officers, of a man who pulled a gun at a gas station. The second, in 2009 occurred when Colling shot an upset, 15-year-old mentally ill boy in the head as he was holding a knife in front of his mother and was “waving it in the direction of other officers.”

ANALYSIS: There are initially two things to keep in mind: Absent a specific statute, it is perfectly legal to video and audiotape the police as they go about their public, taxpayer paid business. As long as the person filming is not obstructing the officers, or endangering them or others, officers may not prevent such filming, nor may they seize cameras, film, tape or similar items. Case law is quite clear on this matter across the nation. Officers working in their official capacity in view of the public have no reasonable expectation of privacy. Indeed, professional, honest officers have absolutely nothing to fear and much to gain from such videotaping which should reveal reasonable, professional officers doing exactly what they are hired to do.

In Nevada, there is no statute preventing citizen filming of police. Allen Lichtenstein, general counsel for the ACLU of Nevada said:

"The police should know, and my assumption is most of them do, is that there's nothing illegal about filming their activities in public. Just as people who are on the street can be filmed by police -- and often are -- the reverse is also true."

Statutes regarding trespassing are remarkably similar across the nation, balancing property rights with freedom of movement. Nevada’s statute follows:

“NRS 207.200: Unlawful trespass upon land; warning against trespassing.

1.  Unless a greater penalty is provided pursuant to NRS 200.603, any person who, under circumstances not amounting to a burglary:

(a) Goes upon the land or into any building of another with intent to vex or annoy the owner or occupant thereof, or to commit any unlawful act; or

(b) Willfully goes or remains upon any land or in any building after having been warned by the owner or occupant thereof not to trespass...”

Those wishing to review the entire section should take the link at the beginning of this update, but will find that what I’ve omitted is primarily legal definitions of the statutory language.

What is important in this case is to understand that the police may not arrest anyone for trespassing unless they have probable cause to believe that the person to be arrested was present where they had no right to be present, and had the intent to “vex or annoy the owner or occupant thereof, or to commit any unlawful act, or after being notified they weren’t welcome, knowingly trespassed anyway. Being notified can be done through signs, or simply by the owner telling someone they aren’t welcome.

There are compelling reasons to believe Crooks’ rather than Colling’s version of the incident:

(1) Transportation of Prisoners: Officers transporting prisoners are universally required to attend only to that immediate duty and all it involves, and must ignore all else except the most dire emergencies. All of their attention must be focused on their prisoners. This is so due to safety issues and to protect the police from false claims of sexual assault or other abuse. Handcuffs are considered only temporary restraining devices, and police lore is full of true stories of officers and others severely injured, even killed, by “handcuffed” suspects. Hardened criminals practice escaping from handcuffs and often carry keys, picks and similar devices. Cases of handcuffed suspects escaping from police vehicles are likewise legion. When officers are transporting more than one suspect, the danger is significantly greater.

To avoid these problems, and false charges, officers are required to call in the exact time and mileage (from their vehicle odometer) when they begin a transport, and the exact time and mileage when the transport ends at the jail or other facility. An officer accused of rape thereby has a defense in his recorded five minute, two mile drive to the jail. Smart officers include such information in their reports.

The point is it is virtually unheard of--in professional, non-corrupt agencies--for an officer to stop, mid-transport, for any reason. To confront someone with a videocamera--and all parties agree that is what occurred in this case--would cause any competent police supervisor to inquire of the officer whether he had lost his mind, and would result in a significant attitude readjustment session.

(2) Trespass: Colling said that when Crooks said “no,” he had a “...reasonable belief that he was trespassing.” Such a report should have resulted, at the very least in a supervisor questioning Crooks, and likely, taking large chunks out of his posterior. There is, under the law, no such thing as a “reasonable belief.” There is “reasonable suspicion,” which allows an officer to briefly detain and question someone to determine if they are involved in criminal activity, and there is “probable cause,” which allows an officer to make an arrest because he is aware of facts and circumstances which would cause any reasonable police officer to believe that a specific crime had been committed and that a specific person committed it, but there is no such thing as “reasonable belief.”

This is not a matter of overly picky semantics. Precision in legal language is vital in law enforcement, and every competent officer knows and understands the difference between “reasonable suspicion” and “probable cause” and always uses the terms correctly. That Collings did not might serve to indicate that he knew that he did not have sufficient reasonable suspicion to approach Crooks, and surely did not have probable cause to arrest him.

Even if Crooks did not live on the property where Collings thought him guilty of trespass, absent clearly posted signs or evidence of verbal warnings, merely being there is not trespassing. Most citizens have no difficulty with friends, relatives, or even strangers who walk onto their property for any one of a hundred legitimate purposes, and would think nothing of someone standing on their driveway to watch an interesting or unusual neighborhood occurrence. For Crooks to be arrested, he must have violated the specific language of the trespass statute, and Colling’s report reveals that he did not ask the minimum questions necessary to determine if Crooks had violated those elements of the offense.

In short, when Colling grabbed Crooks to arrest him for trespass, he was making a false arrest, an arrest without lawful authority. It is a well-established fact of the law that any citizen may lawfully resist a false arrest. I would not, however, recommend that in general, and certainly not in Las Vegas. There is some question about whether Crooks actually assaulted Colling, whose report suggested only that Crooks put his hands on Colling’s shoulders. There is no question, from Crook’s account, and from Colling’s report, that Crooks was not in any way obstructing Colling, who actually spotlighted Crooks, stopped and exited his vehicle, ignoring several handcuffed suspects in his vehicle, to approach Crooks who was standing in his own driveway, operating a videocamera.

(3) Injuries: Despite crime scene investigators being called--apparently at the direction of the on-site supervisor--there was no mention in police reports of Crook’s injuries, but there is reason to believe, including his visible injuries a week after the incident, and what was apparently his blood on his driveway, that Crooks was injured.

In most agencies, crime scene investigators may be called out only by a supervisor of Sgt. rank or higher. This is so to prevent unnecessary, costly call-outs of specialists who might be more desperately and legitimately needed elsewhere. That they were called out indicates clearly that the on-scene supervisor believed that there was evidence to be gathered and recorded. This too comports with Crooks’ account, but not with Colling’s.

In any police report, absolute accuracy is essential, particularly where a suspect was accused of attacking an officer or resisting arrest. Officers are, in competent, professional agencies, required to document, in minute detail, any and all force used against a citizen to protect against false accusations and to provide necessary evidence. In an incident like this where force was clearly used to make an arrest, the lack of any detailed mention of that force, particularly where crime scene investigators were involved, reveals an incredible lack of competence and adherence to proper procedure that should have been dealt with by the officer’s supervisor and higher ranking officers as required. Omitting specific documentation of the use of force and any mention of Crooks’ injuries seems to indicate that Colling knew he was wrong and was trying to cover his actions. The alternative is that he is, and his supervisors are, so incompetent as to ignore one of the most basic procedures and responsibilities of all competent officers.

It will be interesting to see whether any of the photos of Crooks’ injuries survive and what, if anything the reports of the crime scene investigators say. It will be likewise interesting to see what, if any, mention of Crooks’ injuries is contained in the run report of the paramedics that treated Crooks on the scene. They too are required to fully document injuries. It will also be interesting to read the supervisor’s report as he too is required to document precisely why he called out crime scene investigators and exactly what he did and observed.

(4) Seizure of Property: As there was no trespass, any action flowing from that initial action by Colling in the furtherance of his false arrest is likewise illegitimate and illegal. Colling had no grounds to seize Crooks camera, in any way, ever. In this case it seems clear that Colling took Crooks’ tape, but not whether he took Crooks’ camera. Regardless, the legal and procedural principles are the same.

Colling certainly discovered that Crooks was standing in his own driveway, thus did the trespassing charge that was the cause of Colling’s attack on Crooks (an unlawful arrest is an assault and battery) go away to be replaced by equally laughable and unlawful obstruction and battery charges. Rational police officers do not want to be responsible for any property of anyone they arrest unless there is no choice or unless that property is evidence of a crime. In this case, Crooks’ camera was certainly not evidence of a crime, and as it was clearly a very expensive item, any rational officer would simply allow Crooks to leave it at his home or turn it over to a friend or relative designated by Crooks.

In addition, there is no indication that Crooks filmed anything improper or incriminating. Crooks certainly did not think so, indicating that what he was filming appeared to be entirely routine. The camera played no more role in the false trespass charge than a hat would, and by Colling’s own report, could not have played any role in any charge. Colling was justified only in taking it--or the tape--to protect it because Crooks had it when he was arrested, but in that case, it should never have entered the police evidence system--which is where it (or the tape) presumably remains--but only the jail property system where it would have been released to Crooks when he bonded out of jail.

CONCLUSION: It appears that Off. Colling became enraged at Crooks’ perfectly legal filming of what appears to be an unremarkable, apparently legitimate police action. It is possible that Colling feared that Crooks filmed something he did not want to become public, but if so, Crooks was apparently unaware of this. Ignoring his duty to safely and expeditiously transport his prisoners, Colling approached Crooks, and failing to ask even the most minimal questions necessary to establish the element of the offense, falsely arrested Crooks for trespassing.

Colling no doubt quickly discovered that he had violently arrested a man for trespassing on his own property. It’s unknown whether he called the supervisor or exactly how he came to the scene, but he certainly consulted with Colling, called crime scene investigators and probably paramedics, would have seen everything that happened, and approved--at least by doing nothing and raising no objection--Colling’s lodging of false charges against Crooks when it was obvious that the trespassing charge which was the basis for everything that followed was fatally flawed.

Colling, possibly afraid of what was on the video shot by Crooks, even after he knocked the camera from Crooks’ hands and kicked it into bushes, illegally seized it--or at least the tape--apparently as evidence rather than safeguarding it as Crook’s property.

Whether Metro continues to protect Colling from the consequences of what appears to be the false arrest and beating of an innocent citizen, remains to be seen, but it does appear that officers of greater rank than Colling have already taken significant steps in that direction.

Any responsible supervisor should be very suspicious of Colling’s behavior in this case. An officer who, in 5.5 years has killed two citizens apparently loses his cool and attacks a citizen for doing nothing more than using a videocamera? As I’ve written in past updates, an officer who has killed a citizen is rare in most police departments. Most officers complete a career without ever having fired their weapons, let alone killing anyone. An officer who has killed two in only five years on the job is very unusual. By itself, this fact does not necessarily indicate wrongdoing on the part of the officer, but combined with Colling’s apparently paranoid behavior in this incident, any competent supervisor should have more than sufficient cause to take a very careful look at the case, and at Colling.

WHAT DOES THIS CASE HAVE TO DO WITH THE SCOTT CASE?

The outcome of the Crooks case will likely have no bearing on the Scott case, but the similarities, similarities which may indicate ingrained corruption in all manner of cases, are striking:

(1) In each both cases, officers acted without justification and were not in control of themselves or of the scene.

(2) In each case, citizens were harmed.

(3) In each case, the involved officers had each previously shot and killed two citizens.

(4) In each case, common professional procedures and practices were abandoned or ignored and mistakes that would cause non-corrupt officers to be fired were apparently overlooked, if they were recognized at all.

(5) In each case, supervisors were involved and had the opportunity, then and there, to hold officers who made serious mistakes accountable, to stop a chain of events that would only make matters worse, but apparently not only did nothing to prevent things from getting further out of hand, but may have engaged instead in a continuing coverup of police wrongdoing.

(6) In each case, evidence was apparently mishandled, perhaps even destroyed. It would appear that whenever there is potential video evidence of possible Metro misdeeds, that evidence somehow ceases to exist. It is likewise remarkable that in this age of ubiquitous video of just about any and everything, so little video of Metro wrongdoing ever surfaces, particularly considering that police cars and helicopters are commonly video equipped.

(7) In both cases, the officers involved were apparently either incredibly incompetent, incredibly corrupt or both and enjoyed what appears to be the support of their superiors, other involved agencies, and the prosecutor’s office.

Keep in mind that similar irregularities did not begin with the Scott case, and it would seem that they have not ended with that case.

THE REALITIES OF POLICE RECRUITMENT:

After posting Update 10 I realized that many readers may be unfamiliar with the realities of police recruitment and training. As this series is fundamentally about proper, professional police training, procedures and practice, and to what degree the Metro Police apparently fail to act professionally, it’s worthwhile to have a working understanding of these issues. In Update 10 I reported that Officer Thomas Mendiola had failed to pass his first basic academy class but was apparently allowed to retake the class, and apparently passed on his second attempt. I also noted that many law enforcement agencies do not allow second chances at basic academies. Apparently Metro does, at least in the case of Officer Mendiola.

Police recruitment and training are difficult, expensive and time-consuming matters for any police agency. Most people do not realize that a new recruit is essentially useless as a police officer for, commonly, at least a year from their date of hire. For additional information on this topic, you might want to read an article I recently wrote for Pajama Media. Take the link at the beginning of this update.
To read Metro’s account of its hiring process, take the link at the beginning of this update.

Metro’s hiring process is similar to that of many large police agencies. To be eligible for hiring with Metro, a candidate must have a high school diploma or GED, must be at least 21 and have a valid Nevada driver’s license, and must be an American citizen. Convictions for certain crimes and certain classes of crimes are disqualifying. No prior police experience is required. The formal process consists of:

(1) A personal history questionnaire. Such questionnaire’s are commonly used to screen out people who are very obviously, frighteningly unsuited to the job at an early stage before additional money is spent on them.

(2) A written examination. Such tests are commonly used to identify those lacking the basic level of potential competence and human skill necessary in a police officer. Even so, the passing score is a generous 70%.

(3) A physical fitness test.

(4) An oral interview by several police officers. Those who pass are ranked on an eligibility list and the most promising candidates are given a conditional offer of employment while comprehensive background checks are done. Background checks consist of a background interview, written and oral psychological tests, a polygraph and a medical examination.

(5) Those passing all tests are offered employment but have to pass another physical fitness exam prior to beginning the basic academy. Passing the basic academy and field training courses are requirements for continued employment.

All of these steps are common to police agencies across the nation. It is this hiring process, local and perhaps state academies, and a field training officer program where a recruit rides with officers trained to prepare them to be on their own that takes as much as a year before a recruit is capable of functioning independently as a police officer. In most agencies, officers in their first year are more or less immune to the political realities of the real world of policing. They are simply too busy learning everything they need to know to be involved in internal politics or, in corrupt agencies, to be involved in systemic corruption.

Even so, it is entirely possible for people who are not truly fit to be police officers to pass through all of these steps and to find themselves in contact with the public. In competent police organizations, there is enormous pressure to quickly identify such people and to remove them from the ranks. In these organizations, good public relations is paramount, and there is a keen awareness of the potential for lawsuits and the bad publicity that accompanies such things, warranted or unwarranted. Professional organizations and officers strive to be professional in all things, and do not for a moment expect other agencies of the criminal justice system to cover for them or to bail them out of trouble.

On the other hand, incompetent, overbearing, badge-heavy, violence-prone officers flourish in corrupt agencies. They find many people just like themselves, and they tend to feed off each other and to protect each other. Such people, like experienced criminals, tend to be manipulative, and by pulling as many others into their web as possible, make themselves virtually immune from discipline and firing.

It’s important to emphasize again that the mere fact that an officer has shot and killed people is not, in and of itself, an indicator of anything other than that fact. He may have been working in an area where shootings were more likely, or in an assignment where shooting was more likely. He may have simply been unlucky. But when an officer with a background like Colling’s is involved in a violent incident where the real possibility exists that he was violently, criminally culpable, any rational police agency would be very concerned and very careful to investigate fully, dispassionately and with the highest professional standards. There is reason to believe that such care is simply not taken in Metro.

TASER/CORONER’S INQUEST UPDATE:

Updates 9 and 9.2 and 10 covered the taser death of Anthony Jones and the revision of the coroner’s inquest process by the Clark County Commission. This revision was a direct result of pubic outcries over the Scott inquest. Since those posts, the involved officers, Mark Hatten and Timothy English, who were administratively suspended after Jones’ death, have been returned to duty in unspecified positions that don’t require contact with citizens. Those wishing to read the entire updated article on the incident should take the link at the beginning of this update. Simply scroll down or select “Erik Scott Case” in the right margin of the blog home page for access to earlier updates.

According to Clark County Coroner’s office, Jone’s death was a homicide, which means only that he died “as a result of the actions of others.” The Coroner’s office also indicated that Jones had cocaine and alcohol in his system in unspecified quantities, an enlarged heart from obesity, and mild hypertension. Also contributing to his death was “police restraining procedures.” Assistant Coroner John Fudenberg allowed that being tasered may have contributed to Jones’ death: “It’s safe to say that it could have possibly contributed to his death.”

Very disturbing is this news:

“A 2008 study by Amnesty International concluded that Las Vegas led U.S. cities in deaths involving law enforcement use of Tasers. The study found that between June 2001 and August 2008, seven people died after Tasers were used on them. Six of the deaths involved Las Vegas officers, who began using Tasers in 2004.

Update 9 (Jan. 03, 2011) indicated that Jones’ death might be the first test case of new coroner’s inquest procedures, but that has not come to pass. In fact, there is currently a backlog of some six cases awaiting an inquest.

Why is there a backlog of cases involving Metro officers? Because Metro officers, through their union, are still refusing to cooperate with investigators and to testify at inquests. Hatten and English did not cooperate with Metro in the initial investigation of Jones’ death, and it’s not know whether they have rendered any meaningful cooperation since.

What does seem clear is that Metro officers, through their union spokesmen and potentially otherwise, are dictating to the public and to their superior officers what they will and will not do. They are refusing to be held accountable for their official actions when those actions involve the deaths of citizens. They are refusing to submit to the authority of those from whom every iota of their power comes: The public.

It is not surprising, but it is certainly disgusting, that Metro management and the Las Vegas criminal justice system seem to be be paralyzed by this undisguised mutiny. There are several obvious possibilities for this apparent paralysis:

(1) Management is incompetent, as is the entire Las Vegas criminal justice system, including the prosecutors and the courts.

(2) Management is corrupt and involved in the alleged crimes, and benefits from keeping such matters under wraps.

(3) Management simply doesn’t care for whatever reasons.

Regardless of the cause, this apparent state of affairs is highly unusual and actually shocking. Virtually anywhere else in the nation, officers would not think of such a blatant refusal to do their duties, to say nothing of actually making the threat or refusing. It is all the more shocking because Metro management and the criminal justice system do not, for a moment, have to abide such mutiny.

As I noted in the aforementioned updates, under Nevada law officers who elect to refuse to cooperate in investigations may be charged with insubordination which is a firing offense. Officers subpoenaed to appear at an inquest or any other hearing have no choice, just like any citizen, but to appear. Any officer refusing may be arrested and taken before a judge who will demand that they show cause why they should not be held in contempt of court. Any officer found in contempt may be jailed and fined, commonly thousands of dollars and up to a year in jail. This is certainly as true in Las Vegas as it is anywhere else in America. Under such circumstances, state licensing authorities may also revoke an officer’s certification, without which he or she may not work as a public police officer.

The fact that this mutiny is apparently being allowed to paralyze the Las Vegas criminal justice system may reasonably be interpreted to mean that Metro management, the prosecutor’s office and the courts do not want the process to go forward. They do not want officers to testify. They do not want to truth to be revealed. One may speculate on the reasons therefore, but the mere fact that officers are being allowed to refuse to do their duty is potentially damning and should not give Las Vegans confidence in the professional management abilities of the Sheriff or anyone involved.

Remember that even officers who are not directly involved in the death of a citizen, but who may be witnesses before, during, or after such incidents are apparently also refusing to testify. Refusal to testify or cooperate under such circumstances may be done out of a misplaced sense of loyalty or may be due to peer pressure, but the effect is always the same: The potentially improper or criminal actions of others remain unexposed and unpunished. The truth is withheld. The public’s trust is betrayed.

Sheriff Gillespie, DA Rogers and the courts can end this mutiny at will. They can see that officers to their duty and that justice occurs. To date, it appears that they are content with the status quo.

The final resolution of the Scott case will likely take a year or more, but much sooner than that, Las Vegans will likely be able to reasonably determine whether their police force serves them, or whether they are little more than a uniformed gang, accountable only to themselves.

The Las Vegas Media Wakes Up?

Since I began following the Erik Scott case, I've been surprised at how little the local Las Vegas media covered the shooting of Erik Scott, and on those few occasions when they did cover it, how shallow that coverage was.

But on 02-24, the local media, My News 3 (NBC Affiliate), "broke" a "new" story about the involvement of the Clark County Public Administrator's Office. Regular readers may recall that I first covered that story, and in much greater detail, on October 14, 2010 in Update 6 (available here--scroll down to reach it). While the local reporters did actually ask several questions of the right people, they failed to research the applicable Nevada statutes to discover that the PA's office has no authority to enter or secure a property where a "joint tenant" still exists. That tenant was, of course, Samantha Sterner who lived at Scott's condo with Scott, whose property was there, who had a key, and who refused the police and PA's office entry. With the help of a locksmith, they entered anyway.

At least one portion of the local media appears to have a small amount of interest. One step at a time...

The Erik Scott Case: Update 10: The First Cracks Appear?

You don’t want to commit a crime in Las Vegas--at least not on TV. On the tube, you’ll be relentlessly pursued by a group of young, beautiful, highly educated and competent crime scene investigators who work in gleaming glass and steel labs surrounded by state of the art equipment that would make MIT green with envy. So ethical and competent are they--and the police force they serve--that if a molecule of evidence exists in the known universe, they’ll find it and brilliantly use it against a suspect to talk them into a tearful confession. Readers who have been following the Scott case updates (this update is linked to all of our other posts relating to the case), know that the reality of Las Vegas is very different, even greater than the usual disparity between TV and reality.

Before we get into the most recent developments in the case, here are links to articles that readers will find interesting:
(1) An article on Metro Police Training, available here.
(2) An article on the arrest of Officer Thomas Mendiola, available here.
(3) An article on the arrest of Mendiola with a PDF link to the criminal complaint, available here.
(4) An article on another Metro shooting, available here.
(5) An article on Metro officers stopped for speeding while on duty--in Arizona--is available here.

DISCLAIMER: As with all of the updates in this series, I am hampered by a substantial lack of confirmed information. I base my analysis and theories on my police experience, knowledge of human nature--particularly of the psychology of police officers, and professional police procedure--and on logic and common sense. In so doing, I may be wrong in ways small and large, and as faithful readers have discovered, am more than willing to prominently correct any inadvertent errors of fact. I continue to invite contact and comment from members of Metro or others who might have information bearing on this case that the public may be informed as accurately and fairly as possible. I’ll keep your confidence. Over many months, I have become more and more convinced that Metro is indeed engaging in a cover-up and is, in many ways, acting contrary to law, common sense, professional police practice and morality. I remain open to being persuaded, by valid evidence, otherwise.

WHAT’S NEW:

(1) On December 23, 2010, local Las Vegas media, in an article about police basic training, noted in passing that Officer Mendiola had washed out of his first basic training academy, but apparently passed on the second attempt.

(2) On January 10, 2011, Scott family attorney Ross Goodman of Las Vegas announced that Costco and its employees, most notably security officer Shai Lierley, were being dropped from the federal lawsuit filed by the family. Goodman noted that the suit against Costco could be reinstated at any time within the two year statute of limitations.

(3) On January 31, 2011, local media reported that Mendiola had been suspended without pay after being arrested and charged with a felony for allegedly giving a firearm to a convicted felon.

ANALYSIS OF LEGAL TACTICS: One might be initially alarmed by the fact that Goodman dropped Costco from the case, but this is only mildly remarkable. While I have no direct pipeline into the decision making processes of the Goodman Law Firm, there are a variety of rational tactical reasons for this. Goodman may have concluded, considering the federal venue, that it would streamline the overall case, making it easier to deal with discovery issues and reducing side issues that might only serve to confuse a jury. The case is apparently still in the early motions phase, so depositions of witnesses have yet to be done.

There are a variety of other potential reasons, but it will serve no useful purpose to speculate further. Keep in mind that this does not prevent Goodman from refiling the case against Costco and its employees so long as it is done within the two year statute of limitations. It also does not prevent Goodman from compelling Lierley or any other Costco witness to testify, at a deposition or at trial. Therefore, while Goodman obviously believes that there are advantages in what he has done, there are no immediately obvious downsides.

For those not familiar with the civil process, depositions can be very important. In essence, a deposition is an opportunity for attorneys representing both sides in a civil suit to question witnesses, under oath and with a transcript, prior to putting them on the witness stand. This provides the opportunity to ask the kind of questions and to obtain the kind of in-depth information that Metro and those testifying on its behalf so carefully avoided at the Inquest. It also provides the opportunity to question witnesses such as Steve Grodin of the Public Administrator’s Office who assisted Metro in an illegal search of Scott’s condominium after his death. It also gives attorneys the opportunity to assess the believability and attractiveness of witnesses and to plan effectively. There is little doubt that Metro would prefer to avoid having any of its officers provide depositions in this case.

ANALYSIS OF MENDIOLA TRAINING REVELATION: The revelation that Officer Mendiola failed to pass his first basic academy class is interesting for that fact alone. What would be more potentially interesting is knowing why. It would also be interesting to know how long Mendiola was out of the academy after his second try and how long he was out of field training prior to July 10 2010. It’s possible that he had been on his own on the street only a short time before shooting Scott.

If Mendiola failed due to a lack of judgement in shoot/don’t shoot training, it is a far more serious matter than if he could not keep straight specific elements of statutes. Officers can always look up statutes as necessary, but they cannot look up common sense or tactical awareness. As regards the Scott case, it would be far more telling if Mendiola is on record as lacking essential judgement in tactics, situational awareness, or the use of force than for any lack of scholastic aptitude. Generally speaking, recruits who fail a basic academy are fired and not given a second chance, though some agencies do offer a second chance. As the facts are eventually known, the wisdom--or lack thereof--of Metro’s decision to allow Mendiola a second chance will be easier to evaluate. Negligent hiring and/or retention is always a factor in civil cases.

ANALYSIS OF THE MENDIOLA ARREST: However, Mendiola’s arrest certainly tips the scales against the wisdom of a second chance in his case. The facts are relatively simple. Mendiola apparently had a relationship with one Robert Justice (there’s irony), 45, a convicted felon. Mendiola apparently knew that Justice was a convicted felon, yet engaged him to work on his car. Mendiola allegedly gave Justice a .22 caliber Ruger handgun for his work on the vehicle and admitted that he knew that Justice shouldn’t have firearms, even apparently admitting having had a conversation with Justice about it.

Interestingly, Justice is also involved in a case involving an alleged attempt by his co-defendant Ronald Webb to kill Webb’s live-in girlfriend, Las Vegas attorney Nancy Quon. Quon is also reportedly the target of an FBI investigation into allegations of massive fraud involving Las Vegas Valley homeowner’s associations.

Mendiola’s association with Justice is troubling on many levels. It is one thing if Justice was merely an employee of a car dealership where Mendiola had his vehicle repaired, but it seem that Mendiola’s relationship, and his intimate knowledge of Justice’s background, went beyond that. While any officer has professional relationships with criminals, professionals know that they must absolutely keep criminals out of their personal lives. The idea of owing money or favors to criminals is something every officer should, from mere common sense, avoid like the plague. Criminals are often adept at manipulating others. They drag everyone with whom they are involved into their chaotic lives and crimes and disappoint and betray those who are close to them. Police officers should understand this and act accordingly. Mendiola’s mere association with Justice may be indicative of a significant and dangerous lack of judgement, which, considering what is know of his involvement in the Scott case and his failure in his first academy class, may be something of an understatement. His allegedly knowingly giving a convicted felon a firearm might be reasonably thought to remove all doubt.

The mere fact that Mendiola has been charged with a crime--any crime--is surprising. If, as all the known evidence suggests, the Scott shooting was unjustifiable and was followed by a massive and remarkably clumsy cover-up, it would certainly be in the best interests of Metro to immunize Mendiola from wrongdoing, to ensure that he maintains a low profile, keep him within the fold, particularly as the Scott family’s civil suit proceeds. As long as Mendiola keeps his mouth shut, doesn’t do anything stupid, and is willing to hold to the party line on the Scott case, he should be absolutely protected. If he is not, others with potentially damaging knowledge have to wonder if they’ll be abandoned too. This starts a desperate chain of doubt and suspicion that corrupt organizations, organizations with many secrets to hide, fear and usually avoid.

If the theory of the case I’ve developed is correct, the civil suit poses great danger to Metro, not only to the three officers involved, but to other agencies complicit in the cover-up, and to high ranking metro officers, up to and possibly including Sheriff Doug Gillespie. As I’ve suggested, all it will take is one crack in the wall, one person to experience a crisis of conscience, to tell the truth, and the Tower may come crashing down. Metro is, of course, more than aware of this.

Did Metro come to believe that Mendiola was having such a crisis of conscience? Did they think he might crack, and if so, was his arrest a way of gaining absolute control over Mendiola? Mendiola’s alleged crime came to Metro’s attention during an unrelated undercover operation. If Metro chose, it need never have come to light. There is credible evidence to indicate that this kind of wrongdoing by officers and friends of Metro, and worse, is routinely ignored. Why charge this particular officer at this particularly sensitive time unless the gains outweigh the potential risks, unless it furthers Metro’s greater interests?

Thomas Mendiola, at only 24 years of age, is in a very bad place of his own making. If Metro proceeds with the charge, he would--in any professional agency--certainly be dismissed from law enforcement, be unemployable in his chosen career, and would likely end up with a felony record. One might be tempted to believe that since Metro has charged and suspended Mendiola and gone public, it could not possibly fail to press the charge through a trial, but Metro seems to care nothing for public opinion or relations, and the entire Law Vegas area seems to be an enormous memory hole. What’s one more memory?

Another possibility that Officer Mendiola may wish to carefully consider is the time honored and often practiced matter of people simply disappearing, never to be seen again. There is a great deal of desert around Las Vegas and periodically, human bones turn up here and there. Considering the stakes, this is a possibility that Mendiola would be most unwise to discount. This is particularly true if any federal agencies are actively investigating the Scott case--not because Mendiola need fear them, but because Metro may. Following their usual policy, the Feds do not comment on whether they are or are not investigating any criminal matter and the public is notified only when arrests have been made. That said, police officers often have sources of information about such things denied the general public. If Metro does not have such sources, it would be foolish for them to assume that the Feds were not, at least, looking into the case and that their interests would coincide with those of Metro. Mendiola’s best option might well be immediately developing close and personal relationships with various federal agencies that have the power to offer him certain guarantees and protections. Failing that, he could become difficult to locate when the time comes for depositions in the Scott case--and thereafter.

RELATED CASES: Since the Scott shooting eight months ago, there have been a variety of cases of Metro misbehavior known to the public, and doubtless, more that remain unknown. All reflect poorly on the quality of training, supervision and leadership of Metro. All reflect a culture of corruption and absolute disdain for the public and the law so evident in the Scott case. Two of the most recent, and disturbing, cases follow.

THE COP WHO DIDN’T (THANK GOD) SHOOT STRAIGHT: On January 12, 2011, Metro Sgt. Darrin Densley, a 22-year veteran of the force, fired a single shot at 22 year old Leonard Greer. Fortunately, he missed Greer--by no more than two inches--and his bullet struck and penetrated the car door behind which Greer sat, coming to rest in the lower portion of the door.

According to Greer, he was walking from his apartment to his car with his girlfriend and her two cousins. On the way, he passed four uniformed officers standing in a nearby courtyard. Greer was talking on his cellphone and did not hear one of the officers yell “hey” at him as he was entering his car, though his girlfriend did.

Before he could insert his key in the ignition, Sgt. Densley--there is no indication that Greer and Densley had ever met--appeared near his windshield and pointed his handgun at Greer. This is where the story becomes very interesting. Densley ordered Greer and the others out of the car, but Greer--in a remarkable display or either courage or stupidity--refused, telling Densley that he had done nothing wrong and that he lived there.

Densley demanded proof. Greer told Densely that he had a rent receipt in his pocket and would produce it. He kept his left hand on the steering wheel, and retrieving the receipt with his right, replaced his right hand, holding the receipt, on the steering wheel. That was when Densley fired.

Witnesses saw Greer and his girlfriend not only making no threatening moves, but holding their hands up in plain sight. The officers searched Greer’s car and apartment, apparently finding nothing. Greer believes that officers thought that his girlfriend or he had a gun, though they never told him why they believed that. They issued him a misdemeanor summons for obstructing a police officer. Metro later took the door apart and removed the expended bullet and has offered to pay for repairs. Greer plans to hire a lawyer. Good idea.

ANALYSIS: There are many parallels between this case and the Scott case. It’s not known why the officers were there. The sheer number present, and their apparent determination to find a gun would suggest that it was either a bad neighborhood, they were given some reason to believe that something involving a gun happened, or both. But standing around in a group in the open courtyard of an apartment complex where a gun that might present a clear and present danger might be nearby is not exactly a brilliant tactic.

That Densley approached Greer with his gun drawn would seem to indicate, if Densely was a competent, rational officer, that he had good reason to believe that Greer represented an imminent danger to him or others such that it would have been foolish to approach him in any other way. Yet everything that Densley reportedly did from that moment on would seem to indicate exactly the opposite.

There is nothing in the known facts to indicate that Greer or those with him were doing anything other than walking, in an unremarkable fashion, from Greer’s apartment to his parked car. If Greer’s account is accurate, Densely did not follow the kind of procedure any competent officer would follow if they truly believed the occupants of the vehicle were a deadly threat. In such cases, officers would take covered positions that would allow a clear view of all occupants and would, slowly and clearly, step by step, order the occupants to put their hands where they could be seen at all times. To avoid potentially deadly confusion, a single officer would do all the talking. They would order the driver to throw the keys from the vehicle, and would then order, step by step and very specifically, each occupant in turn to get out of vehicle and to walk, backwards, into the arms of waiting officers--and there were sufficient officers present to do this properly--who would handcuff, search and secure them until everyone had been removed from the vehicle. Only then would officers approach with the greatest care in case anyone was hiding in the vehicle ready to ambush them, and only then would they search the vehicle--if a search was justifiable.

Instead of following proper, safe procedure, when Densely was told that Greer lived there, he asked for proof, which Greer, before being met with gunfire, tried to provide. This alone suggests that Densley did not think himself in imminent danger. The sole photo available indicates that Densely fired from close range, to the side and slightly forward of the center of the driver’s door behind which Greer was sitting. The round struck only two inches below the top sill of the door where the glass begins. Greer is a very fortunate man.

The available information does not indicate whether the officers asked for or received permission to search Greer’s car and apartment, but it seems certain that they did search and that they found no contraband. It should always be kept in mind that citizens do not have the information officers have. There could have been good reasons for Densley to be suspicious of Greer, perhaps even reasons sufficient to allow a search of his vehicle, but I can think of no reason suggested by the known facts that would render reasonable a search of his apartment, an apartment which had no apparent relationship in space or time to the incident.

However, I can certainly think of a reason why the officers would want to conduct both searches: As with the Scott case, the officers knew they screwed up in a big way and were desperate to conduct a fishing expedition in the desperate hope of finding something that they could pin on Greer to lessen the impact of their error. Charging him with obstructing a police officer, but letting him go with only a paper summons likewise indicates the chaotic nature of their thoughts. How could Greer have been obstructing an officer who approached him at gunpoint as he was taking a seat in his parked vehicle in anticipation of immediately leaving? They simply weren’t thinking straight. The fact that the shooter was a supervisor, a 22 year veteran of the force, suggests that the supposedly coolest and most experienced police mind present was incapacitated. Because he was involved in a shooting, Densley should have immediately called a superior officer and had no further involvement in the incident. This fundamental mistake was also made at the scene of the Scott shooting.

There are two kinds of shooters: Those who have had an accidental discharge and those who will admit to having had an accidental discharge. It’s an interesting experience. One second, you’re standing there, happy as a clam with a nice gun in your hand, and the next, your ears are ringing, there seems to be a lot of smoke about, and the only thing going through your mind is “wha? wha? wha?”

There are, however, simple safety steps one can take to minimize the risk of an AD, and to mitigate its effects if one does occur. One should never point a weapon at something they are not willing to shoot. However, even police officers can hold their weapons at ready, pointing downward, which will tend to lessen the damage in case of an AD. Even better, they can keep their trigger fingers “in register,” pointed straight and in contact with the frame of their handgun, absolutely off the trigger until a millisecond before it becomes necessary to fire.

There are two primary possibilities: Densley actually intended to shoot Greer. He believed--apparently without the slightest justification--that he had sufficient cause to fire and did, but either jerked the trigger causing the round to strike low, or was at a sort of ready position when he hastily fired, just missing Greer. The second alternative is that he had his finger actually on the trigger when he didn’t intend to fire, and for some reason--muscle spasm, he tripped, he was nervous, or a variety of other causes--he fired. In either case, it was Greer’s, and Densley’s, lucky day. In either case, in a professional police agency, a fork would be immediately stuck in Densley because he would be done. In professional agencies, officers who make that kind of mistake, who come within two inches of killing an innocent, don't get a second chance to repeat the mistake.

Imagine Densley’s frame of mind. Rather than doing the right thing, the officers may have tried to frame Greer, or at least, tried to muddy the water as much as possible. That they settled for a misdemeanor citation on a charge that the known facts clearly indicate they could not possibly sustain, indicates that everything they did had no foundation and they were desperate to charge Greer with something, anything, foolishly hoping that it would somehow diminish their culpability. In effect, they came within two inches of killing a citizen for no reason and made amends by searching his car and apartment and charging him with a crime he didn't commit. That's not exactly serving or protecting.

What could they have done differently? Simply approached Greer’s car safely, and explaining why they were there, asked enough questions to satisfy their curiosity. But they might have thought Greer had a gun! So what? Any police officer who doesn’t think that anyone with whom they come into contact might be armed should not be on the street. Officers deal with people everyday who are, in fact, armed, and no one is in the least harmed because professional officers approach people politely--when possible--and intelligently, always. In other words, the officers here, and in the Scott case, did not deal with the situation intelligently, screwed up, and then sought to cover their mistakes. That seems to be SOP (Standard Operating Procedure) in Metro. Oh yes, and Metro did not publicly identify Densley until January 28, sixteen days after the shooting. An “oversight,” according to Metro.

BRAD AND JAKE'S EXCELLENT ROAD TRIP: In early January, 2011, two metro officers, Brad Gallup (on the force since 2005) and Jake Grunwald (on the force since 2006), were stopped in Mojave County, Arizona for speeding approximately 20 miles over the posted speed limit. This might be unremarkable except for several interesting factors: They were driving a marked Metro patrol car, were in uniform and were supposed to be on duty in Las Vegas, approximately 80 miles away, at the time. Odd? Apparently where Metro is concerned, not all that much, though they have been suspended with pay pending the outcome of an investigation.

The Mojave County Deputy who stopped them without incident was not only concerned with speeding, but with the possibility that the car might have been stolen. It seems that marked Metro cars are relatively rare in those parts. Gallup and Grunwald apparently told the deputy that they were scouting locations for a K-9 photo shoot. The deputy had his dispatcher check with Metro, and learning the officers actually worked there, let them go without a citation. Metro has said only that the officers checked out for court prior to leaving the state.

Here’s how it works in non-corrupt, professional police agencies: Because police agencies are always, always understaffed, officers are assigned to specific patrol districts within their communities. All agencies have maps of these districts, drawn based on geographic size and anticipated call volume. Districts smaller in area tend to have higher call volume than larger districts. Officers are expected to remain within the boundaries of those districts so that they can respond promptly to calls. They are normally allowed to travel into adjoining districts for good, duty related reasons such as backing other officers on potentially dangerous calls, or taking calls when other officers are too busy, but are generally expected to keep to their own districts and direct their attention there. This is one of the fundamental facts and understandings of patrol officers everywhere.

No rational officer would even think of leaving their district without a good reason, and then, only for as long as reasonably necessary. To do otherwise is to abandon their post, to neglect their duty, a matter taken very seriously in the military and in police work. Professional officers don’t relish the idea of explaining why they couldn’t promptly answer a call for help where a citizen was harmed because they wanted to drop in on their girlfriend across town. The idea of leaving their actual city, their jurisdiction, wouldn’t occur to most officers and would be done only with the prior knowledge and permission of their supervisor. To leave the state?! Again, only with the prior knowledge and permission of their supervisor, who would give such permission to patrol officers only for such things as traveling to another jurisdiction to participate in training or something similar. Generally speaking, patrol officers patrol their districts and little else. There are good reasons for this.

There are three primary possibilities: The officers were doing this entirely on their own. They simply decided to call out for court and take a joy ride of some three or more hours into Arizona. With this possibility, there are two primary related possibilities: These officers were either so incredibly dumb that no one should allow them to handle sharp objects, let alone firearms, or they had reason to believe that their road trip would be acceptable. Perhaps they knew of others who had done the same thing, and perhaps such excursions were so common as to be essentially unremarkable, or to draw no more than a mild rebuke in Metro. Perhaps they had personal business in Arizona, business that could not wait until they were off duty, business worth the risk to their careers. But there is yet another possibility, the third of the primary possibilities with which I began this paragraph.

The officers may have been on a mission authorized by either their superiors, or by someone with sufficient influence or power to ensure that they’d take no heat if caught. Perhaps their immediate superiors knew nothing about it. Perhaps they were acting with the authorization of a higher ranking officer, doing someone a “favor” of some kind, a favor unexpectedly exposed by a competent, alert Arizona deputy. Maggie McLetchie of the Nevada ACLU opined that Metro patrol officers might need tighter supervision. No kidding.

It is, of course, impossible to know with certainly which of the primary possibilities is in play in this situation. As with the Scott case, it suggests a lack of discipline and supervision and invokes an appearance of corruption that should horrify the civilian overseers of Metro, but which apparently, to any meaningful degree, does not. Those citizens of Las Vegas who fear for their lives at the hands of their own police force would appear to have good and sufficient cause.

We’ll continue to update the case as more information becomes available.

Cop in Scott Case Gave Felon a Gun

Thomas Mendiola was one of the cops that gunned down Erik Scott and avoided jail time thanks to what appears to be a cover-up by Las Vegas Police.

It doesn't look like he's getting out of this one.

The Erik Scott Case: Update 9.2: Intent

Since I posted Update 9 only a few days ago, the Clark County Commission has finalized the changes suggested by a commission established for that purpose. Local news articles (available here and here), have brought to light several significant details that were heretofore unclear, and the comments following those articles, suggest that much of the public may not fully understand the fundamental issues relating to the criminal justice system in general and inquests in particular. For those interested in the Nevada Revised Statutes relating to these matters, continue to scroll past this Update to Update 9 where I’ve included that information.

In this update, I hope to clarify some issues, and the involvement of some people, that I was not able to address in Update 9. I also hope to make the essential issues as understandable as possible.

WHAT’S NEW: Ombudsmen must be licensed to practice law in Nevada and will be randomly selected from a pool for each inquest. Before being admitted to the pool, they will undergo screening, including “oral interviews.” At the insistence of Clark County Sheriff Doug Gillespie, ombudsmen must have at least 10 years experience as attorneys and cannot have sued Metro for two years prior to their service, nor for three years after. A “law enforcement official” will sit on the board that screens potential ombudsmen. Ombudsmen will be paid up to $1000 per day during the actual inquest, and up to $300 per day for preparation. Ombudsmen will be required to “seek facts” for the families of those killed, and for the public as well.

The measure passed on a 5-2 vote with Commissioners Tom Collins and Steve Sisolak voting against it primarily because they apparently oppose the idea of an ombudsman. Sisolak expressed concern that the CCC had insufficient input from the legal community. Collins, who favors the status quo, said “I think we give the public a very fair opportunity to attend and see what the outcome would be.” Commissioner Chris Giunchigliani was concerned that the new procedures be established before “we nickel and dime it to death.” However, new Commission Chairwoman Susan Brager made clear that she, and the majority, see this as a work in progress and that they intend to make changes as they see fit.

Also revealed was that the very idea of ombudsmen came from Sheriff Gillespie, who also proposed the idea that representatives of the family and the system meet in two pre-inquest conferences where police files will be “disclosed” to them and they will “determine the scope of questioning at hearing with the aim of digging into what happened during a fatal incident.” It was also Gillespie who asked that ombudsmen have at least 10 years of experience and that a “law enforcement official” sit on any ombudsman screening board.

CONFLICTS OF INTEREST: The justice system, and particularly the criminal justice system, is set up to avoid conflicts of interest. A number of such potential and obvious conflicts are now apparent, and others may eventually become obvious. They are:

(1) An ombudsman cannot “represent” more than one client. An ombudsman is traditionally a disinterested third party that mediates disputes between two or more parties with their consent and agreement to abide by his decision. As the CCC expects their ombudsman to “seek facts”--to represent the families of those killed by the Police and the public--there are many inherent conflicts of interest. It is possible that the CCC knows this; Sheriff Gillespie almost certainly does, as I’ll explain shortly. While such families are members of the public, their interests will of necessity be very different than those of the public at large. The public, for example, has an interest in expecting police officers to be competent and truthful. They have an interest in seeing that their tax dollars aren’t squandered defending officers who break the law. Families of victims, in general, share these interests , but fundamentally, they wish to expose potential wrongdoing and punish, through punitive financial damages, governmental wrongdoing in the hope of preventing it in the future. The public, on the other hand, does not wish to see its taxes rise to pay for such punitive damages, and because they are not personally involved, will usually have little interest in pursuing such matters to their conclusion.

(2) The roles of the District Attorney as prosecutor and the Ombudsman are also in conflict. Both supposedly represent the people, yet in our system, only one legitimately can. One might argue that the DA’s office has, over the years, become essentially defense attorneys for Metro and Metro officers, but that does not relieve them of their ethical and statutory duty to represent the people’s best interests in the pursuit of justice. And if the DA’s office is in fact nothing more than a representative of Metro against the interests of the people, an “ombudsman” with ill defined powers, rather than a fully and clearly empowered private attorney, will not competently represent either families or the people.

(3) The Police have a significant conflict of interest in any involvement in the process of choosing ombudsmen. Sheriff Gillespie has powerful interests in seeing that his officers are always exonerated so that he, and Metro, are not sued and publicly embarrassed. Indeed, he also has an interest in hiring only competent, honest officers and in firing those who are not, but Metro seems not terribly concerned about that in general, and such concerns will inevitably become secondary after a citizen has been killed and the wagons are circled.

(4) The Metro Police Union has a conflict in any involvement in these matters. The loyalty of the Union is to its continuing existence and enrichment, and to the officers it represents. Because the officers are the primary involved party in inquests, and potentially may be criminally charged and may be sued in civil court, any involvement by them or their representatives in establishing or running such a system is an inherent conflict of interest. Officers may be reasonably represented by an attorney, hired by themselves or by the union, but the union should not be involved, indirectly or directly, in any part of the process. And while telling officers not to cooperate with the criminal justice system or the police agencies that employ them may not be a specific violation of the law, it is, at best, ethically troubling.

FACTS:

(1) Inquests in most states serve to answer two questions: What was the cause of the victim’s death, and was that cause non-criminal or criminal?” In many states, inquests are not charged to name those involved if the death is criminal. In Nevada, that is required, but regardless of the findings of any inquest, prosecutors are not required to prosecute.

(2) The criminal justice system is inherently adversarial. It was designed that way so that the truth would out. Anyone suggesting that any part of that system should not be adversarial or that the police are somehow being mistreated by an adversarial system are either woefully misinformed, lying to the public, or both.

(3) Any officer who cannot professionally deal with adversarial questioning is a weakling and should not be a police officer. In a professional agency, their days would be numbered and that number would be small indeed.

(4) Law Enforcement Officers are citizens, and as citizens, they retain all of their rights under the Constitution. They, like any citizen, may invoke their right against self-incrimination; they may, in common terms, “take the Fifth.” However, there is no such thing as an unrestricted right, and the exercise of some rights in some ways may legitimately result in consequences.

(5) When a citizen “takes the Fifth,” in a criminal case, judges are obliged to instruct a jury that they may not draw any conclusion about their innocence or guilt. Human nature being what it is, jurors might drawn the logical, adverse conclusion anyway. In any case, apart from putting themselves in potential jeopardy at the hands of a jury, the average citizen will not normally be otherwise inconvenienced or punished for exercising a fundamental right.

(6) No one, civilian or police officer, may ignore a subpoena. It is not a matter of choice. For both, the consequence is contempt of court, punishable by up to a year in jail (in most jurisdictions) and/or fines. However, police officers may also suffer administrative penalties up to and including firing, and in some states, revocation of professional credentials, without which one may not work as a police officer. Some states also make willful dereliction of duty a criminal offense.

(7) No one, civilian or police officer, may choose not to testify if subpoenaed. One may not tell the judge that they will not testify, nor may they merely sit and remain mute. In such cases, a judge will order the witness to answer questions. If they refuse, unless they take the Fifth to every question, they can, and usually will, be found in contempt of court.

(8) Police officers may choose to cooperate with official investigations or they may not, but if they refuse, they are not protected from consequences. There is no right to refuse to cooperate. In fact, participating fully and freely in all investigations is expected of all police officers. It is just a part of the job for all officers who are expected by the public to always behave honestly and faithfully. Doing otherwise is like a firefighter suddenly refusing to handle hoses or to cooperate in arson investigations. Such refusal may invoke penalties up to and including firing, and again, possible revocation of professional credentials. In Nevada, state law specifics that officers refusing to cooperate with investigations may be charged with insubordination, which can lead to firing.

(9) If an officer refuses to participate in an investigation and/or takes the Fifth, there is no requirement that their employer, their peers, and the public ignore what they’ve done. In fact, an officer who will not participate in an investigation of their own actions or who takes the Fifth must be prepared to be fired, for they have placed themselves outside the boundaries of trust absolutely necessary for every police officer. An officer who will not cooperate in police investigations--this sounds like a bad parody--or whose integrity is called into question is essentially useless. They can no longer do the job for which they have been hired.

(10) Taking the Fifth does not apply in civil proceedings in the same way that it does in criminal proceedings. Since one’s life and liberty are not in jeopardy in a civil proceeding, a jury may generally consider taking the Fifth to be an admission of involvement or guilt and act accordingly.

INTENT: It is now apparent that substantial portions of the changes in inquest procedure were the brain children of Sheriff Gillespie. This is significant in that one may gain a potentially clear picture of his intent from his actions and statements.

Gillespie opposes families being represented by private attorneys. Of course he does. They would be focused, competent advocates for those families not subject to interference with or control by Gillespie.

Gillespie can’t, politically speaking, appear to ignore those calling for fundamental change, so he demanded ombudsmen. Not only that, he will have a role--likely akin to veto power--in choosing them. They must, again at his “suggestion,” have at least ten years of experience in the law. Finally, they cannot have sued Metro for two years prior to their ombudsman duties and may not sue Metro for three years thereafter. And the best, and most stealthy, part is the two pre-inquest conferences where supposedly all information will be shared and the scope of the questioning at the inquest will be determined.

Sheriff Gillespie was undoubtably reelected because he is a capable politician, arguably supported by the kind of corrupt political establishment for which Las Vegas has become justly infamous. All of these provisions appear, on their face, reasonable and defensible, but just under the surface their real reason for being awaits public discovery.

Since 1976, Coroner’s Inquests have been used to avoid discovery and limit liability. Inquests not only provide apparent exoneration for Metro, but provide political cover for a DA’s decision not to charge officers. If all potential legal action can be stopped at an inquest, if no officer is charged with a crime and is therefore, afforded a preliminary hearing and a trial, Metro is in control. Metro has developed a long-standing reputation for stonewalling, for refusing to hand over, reports and other related documents to defense attorneys and attorneys pursuing civil suits. By avoiding preliminary hearings, Metro can avoid court orders to produce such information and the publicity the information would produce.

The last thing Gillespie wants is to have an effective advocate for an aggrieved family at an Inquest. Their demands for information could not easily be ignored or put off. Their questioning of officers and other governmental employees could easily produce damaging information. By establishing ombudsmen who serve multiple masters, Gillespie can limit potential damage. The rest of his rules are the means by which he limits damage and exerts control.

Requiring ombudsmen to have ten years of experience seems reasonable, but it is a control mechanism. This would allow Gillespie to know those attorneys better and to judge how they might act. It would also eliminate younger attorneys who might be prone to aggressively pursue the truth if that truth would tend to indict Metro. Some of the Clark County Commissioners were worried that this rule would limit the number of attorneys available for ombudsman duty. They are right to worry about this, but should be worried about much more.

Allowing a law enforcement representative to directly have a hand in choosing ombudsmen, again, appears reasonable, but it is a conflict of interest, and in practice could be essentially a Metro veto. Would anyone care to bet that such representative would be Sheriff Gillespie, or at the very least, one of his most trusted fixers? If the ombudsmen are to be truly independent, competent professionals chosen under established rules, why does Metro need a direct hand in the process? Shouldn’t they have full confidence in the process the Sheriff himself has set into motion and claims to support?

Requiring ombudsmen not to have sued metro for two years prior to service might seem facially fair and reasonable, but again, there is an ulterior motive. Metro certainly does not want lawyers who have actually done battle with them involved in an inquest. Such attorneys will almost certainly not have a positive view of Metro, but worse, will have intimate and damaging knowledge of Metro’s structure and methods, knowledge that could prove very harmful and embarrassing if put to use in an Inquest. In essence, Metro is arguing for experience in their 10 year rule, but arguing against it in this rule.

Requiring that ombudsmen not sue Metro for three years after serving as an ombudsman might also seem reasonable. However, this is yet another attempt to keep lawyers who know too much about Metro and its methods from being in a position to cause damage. There is a pressing statutory reason, a reason with which Sheriff Gillespie must surely be familiar:

NRS 41.036  Filing tort claim against State with Attorney General; filing tort claim against political subdivision with governing body; review and investigation by Attorney General of tort claim against State; regulations by State Board of Examiners.

1.  Each person who has a claim against the State or any of its agencies arising out of a tort must file the claim within 2 years after the time the cause of action accrues with the Attorney General.

2.  Each person who has a claim against any political subdivision of the State arising out of a tort must file the claim within 2 years after the time the cause of action accrues with the governing body of that political subdivision.

In plain language, in Nevada, attorneys have two years after the wrongful death of a citizen to file a lawsuit. Gillespie knows that inquests commonly take place within a few months of such deaths, and certainly within a year. The three year rule is simply a means of preventing lawyers experienced in dealing with Metro and knowledgable in their ways--particularly dangerous to Metro--of suing them. The statute of limitations will have run out.

The idea of conferences before an inquest where everyone will share and share alike and agree on the scope of questioning is a political master stroke. One can’t help but admire Gillespie’s political savvy as much as they suspect his self-serving cynicism. Sheriff Gillespie can stand before he public and say that he is so concerned for the families of victims that they have not one, but two opportunities to get information and determine the scope of questioning. What could be more fair?

But why should there be any necessity to agree on the scope of questioning? State law establishes essentially three questions to be answered by inquests: Who was killed? What caused their death? If a potentially criminal matter, who was responsible? Therefore the scope of questioning should include any and all lines of questioning into any matter that might fully answer those questions. This should simply be included in Clark County inquest rules.

This provision is yet another cynical attempt to control the process. Remember that families are not allowed their own attorneys, so the only entity present that truly knows the ins and outs of the system will be Metro, and knowledge is power. As I mentioned in Update 9, Metro has a long-standing reputation for refusing to cooperate in the exchange of information. There is no reason to believe that this practice will change, yet the process will give Metro at least two advance opportunities to discover what the families know and to prepare to counter them at the inquest. And of course, Metro will do everything possible to limit the scope of questioning. They might simply outmaneuver a family still in shock with grief. They might simply refuse to cooperate and allow things to become a stalemate, secure in the knowledge that a Justice of the Peace who will presumably be in charge of resolving such stalemates, will likely give a family less than they might otherwise get.

SUMMARY: While some of the Clark County Commissioners are doubtless doing their best to improve the inquest system, any man-made construct has unintended consequences. It is also possible that Sheriff Gillespie’s motives are likewise laudable and the truth of the changes I’ve outlined here are merely unintended consequences. However, that would be yet another amazing coincidence in a case full of amazing--and troubling--coincidences. Surely a man of Sheriff Gillespie’s experience is fully aware of what I’ve explained. It is reasonable to expect that any Sheriff would do his best to benefit his organization. However, such benefit can never come at the expense of the public and of the law and that is what appears to be happening here.

There is, however, something that Sheriff Gillespie can do at any time to begin to rebuild, little by little, public confidence. In the death by taser case of Anthony Jones currently awaiting an inquest, Metro officers Mark Hatten and Timothy English have been suspended (with pay), and reportedly have refused to cooperate with investigators. There is some indication that they have cooperated in a limited fashion, perhaps by making some brief initial statement to first line supervisors or perhaps by writing some sort or report, but news accounts have not been sufficiently specific on those issues to know with certainty. If these officers are refusing to cooperate, as their union is currently demanding, and as has been reported, Sheriff Gillespie can and should charge them with insubordination--as state law specifically authorizes--and begin proceedings to fire them. If the Sheriff is truly concerned with public welfare and upholding the law, he can and should do no less.

The most simple and effective way of dealing with all of these issues, a way that would immediately begin to restore public confidence in the Las Vegas criminal justice system is to allow private attorneys to represent--without restraint or limitation before or after the inquest--families of victims in inquests. For indigent families, public defenders or other attorneys should be appointed. However, as I’ve pointed out in this update, this appears to be the last thing Sheriff Gillespie, and his supporters, want.

Ultimately, each reader will have to decide whether the likely outcomes of the inquest changes are merely the unintended consequences of good intentions, or whether they reveal, on the part of Sheriff Gillespie and others, a very different kind of intent.

SCOTT FAMILY STATEMENT: The family of Erik Scott has issued a press release to the Las Vegas media. The media has reproduced only a portion of the release in the stories linked at the beginning of this update, so as a public service, I reproduce the press release, in its entirety, here:

“The stated PPA [Las Vegas Metro Police Protective Association] policy of having law enforcement union members refuse to cooperate with investigations of officer-involved shootings and other potential abuses of police power invokes the image of a grade-school playground bully demanding that only his version of the fight be related to the principal, or the bully and his gang will refuse to cooperate at all. If that’s the way Southern Nevada police officers choose to behave, so be it. That’s perfectly fine with us and other victims’ families.

Such petulant, childish refusals to cooperate with already-questionable internal investigations may finally stimulate two backlash responses from incensed citizens and lawmakers:

• Institute a system whereby ALL officer-involved shootings that result in death must be investigated by an outside agency, ideally a U.S. Justice Department version of the National Transportation Safety Board. This federal body will have the authority to solicit testimony from any person involved in the shooting, including all officers involved.

• Pass a Nevada law similar to California Government Code 3300-3311, the “California Peace Officers Bill of Rights.” Under this statute, California police officers can elect to not cooperate with an investigation of potential police misdeeds, but, in making that choice, risk being charged with insubordination and subsequent dismissal. Officers have the right to invoke their Fifth Amendment right to remain silent, but may lose their job, if warranted.

Las Vegas-area police unions are accustomed to having complete control of homicide investigations involving officers for so long that they cannot conceive of being held accountable for their actions, under the new coroner’s inquest ordinance. But in refusing to cooperate, those unions are prompting even more outrage and wrath from their employers, the citizens who pay police salaries. When will the unions realize that those halcyon days of Southern Nevada cops doing whatever they please—and getting away with it—are over?”

The Erik Scott Case, Update 9: Mindset and Mutiny

Webster-Merriam defines “Mutiny” as “forcible or passive resistance to lawful authority.” The threatened mutiny of Las Vegas Police against lawful authority is the primary subject of this update. But first, a list of sources:

(1) Nevada Revised Statutes (NRS) dealing with Coroners may be accessed here.
(2) NRS dealing with Peace Officers may be accessed here.
(3) Kevin Scott’s (brother of Erik Scott) letter to the Clark County Commission (CCC) may be accessed here.
(4) Bill Scott’s (Erik’s father) letter to the CCC may be accessed here.
(5) A LV Review-Journal Story on Metro recruit training may be accessed here.
(6) A LV Sun story on threatened Police mutiny may be accessed here.
(7) A LV R-J story on threatened Police mutiny may be accessed here.
(8) A LV R-J story on a citizen killed by police tasers may be accessed here.

“Someone’s gonna have to get killed before they do anything.” So goes the common citizen’s refrain about intransigent, uncaring government, and like most such aphorisms, it is often true because it reflects a significant, unpleasant truth about human nature: We tend to ignore injustice and danger until the threat of personal consequences becomes too great to ignore.

And so it has been in Las Vegas for decades, but it didn’t take someone getting killed. It took a great many someones getting killed by the police--some 200 since 1976--and finally, one particular someone: Erik Scott, killed by three Metro officers on July 10, 2010. Although his death was the starting point for the process of change, even that wasn’t enough to force glacially slow local politicians to take the smallest steps toward correcting decades of injustice.

As I’ve noted in previous updates, when the Metro police shot Scott, they shot the wrong man. Scott was not someone with a shady past, engaged in criminal wrongdoing. He was a West Point graduate who served honorably as an officer of armor. He was a hard working, upstanding citizen licensed by the state to carry concealed weapons. He was, arguably, doing nothing more dangerous than shopping. In shooting Scott, Metro enraged the wrong family, a military family, a proud, just family. Admiral Isoroku Yamamoto, responding to Japanese elation after the attack on Pearl harbor, said: “I fear that all we have done is to awaken a sleeping giant and fill him with a terrible resolve.” So has Metro done, for all indications are that Scott’s family will not rest until those responsible for Erik’s death are exposed. For the Scott family, this does not appear to be about money. There will almost certainly be no token, low ranking fall guys, no settlement, no sealed record. This shooting will not go down the memory hole, as have all the others, with the conclusion of the Coroner’s inquest.

The process of change began with a tool unavailable to many previous Metro victims: The internet. Through that medium, a few billboards, and the simple yet apparently threatening symbolism of Erik Scott remembrance ribbons displayed on citizen’s vehicles (which continue to provoke thuggish police harassment), unprecedented pressure was brought to bear on the Clark County Commission (CCC), particularly after the Coroner’s Inquest which showed a newly awakened Las Vegas citizenry and many around the nation how little regard Metro, and Las Vegas politicians, had for truth and the lives of citizens. The public learned that since 1976, only one of 200 inquests has found a police officer culpable in a shooting. So obvious was the bias, so clumsy the official cover up, so craven and unconvincing the police and prosecutors, even the CCC could no longer ignore the status quo and quickly established a commission to consider and recommend changes to Inquest rules and procedures.

THE LAW: Before continuing, let’s examine the law relating to Coroner’s Inquests. The applicable state statutes are Nevada Revised Statute (NRS) 259.050, 259.090, 259.100, and 259.110:

NRS 259.050: Investigation into cause of death; inquest.
1. When a coroner or the coroner’s deputy is informed that a person has been killed, has committed suicide or has suddenly died under such circumstances as to afford reasonable ground to suspect that the death has been occasioned by unnatural means, the coroner shall make an appropriate investigation.

2. In all cases where it is apparent or can be reasonably inferred that the death may have been caused by a criminal act, the coroner or the coroner’s deputy shall notify the district attorney of the county where the inquiry is made, and the district attorney shall make an investigation with the assistance of the coroner. If the sheriff is not ex officio the coroner, the coroner shall also notify the sheriff, and the district attorney and sheriff shall make the investigation with the assistance of the coroner.

3. The holding of a coroner’s inquest is within the sound discretion of the district attorney or district judge of the county. An inquest need not be conducted in any case of death manifestly occasioned by natural cause, suicide, accident or when it is publicly known that the death was caused by a person already in custody, but an inquest must be held unless the district attorney or a district judge certifies that no inquest is required.

NRS 259.090:Inquest: Summoning and examination of witnesses; examination of decedent; adjournment.
1. The justice of the peace may issue subpoenas for witnesses, returnable as the justice of the peace may direct, and served by such person as he or she may direct.

2.  He or she must summon and examine as witnesses every person who, in his or her opinion or that of any of the jurors, has any knowledge of the facts, and he or she may summon a qualified surgeon or physician to inspect the body, or hold a postmortem examination thereon, or a chemist to make an analysis of the stomach or the tissues of the deceased and give a professional opinion as to the cause of the death.

NRS 259.100  Witness failing to attend punishable for contempt.  Any witness failing to obey the subpoena of the justice of the peace may be attached and fined for contempt in like manner as in a justice court.

NRS 259.110  Rendition of verdict: Certification; contents.  After inspecting the body and hearing the testimony, the jury shall render their verdict and certify the same by an inquisition in writing, signed by them, and setting forth the name of the deceased, when, where and by what means the deceased came to his or her death; if by criminal means, the name of the person causing the death.

ANALYSIS: Nevada law basically requires each county coroner to investigate unattended deaths. An attended death would be an expected death, such as the death of one suffering a terminal illness in the hospital, or the obvious death by natural causes of an elderly person. If a death seems criminal, the district attorney (DA) and sheriff are involved. However, a DA or a district judge may, apparently at their discretion, certify that no inquest is necessary. A justice of the peace is appointed to conduct the inquest and is empowered to subpoena witnesses of various kinds, who may be imprisoned and/or fined for contempt of court should they fail or refuse to appear. Finally, the inquest jury is responsible for a verdict, in criminal cases, that establishes how the person was killed and who was responsible. Those interested in the more procedural portions of the statute I’ve omitted here may access the link at the beginning of the update.

Let us also take a moment to familiarize ourselves with the obligations of Nevada Peace Officers (the statutory term for all Nevada law enforcement officers), particularly NRS 289.120 and 289.027:

NRS 289.020  Punitive action: Prohibited for exercise of rights under internal procedure; opportunity for hearing; refusal to cooperate in criminal investigation punishable as insubordination.

3. If a peace officer refuses to comply with a request by a superior officer to cooperate with the peace officer’s own or any other law enforcement agency in a criminal investigation, the agency may charge the peace officer with insubordination.

I’ve left out the first two sections of this statute which refer to peace officer’s rights in administrative processes. Those interested may access that information at the link provided in the beginning of the update.

NRS 289.027  Law enforcement agency required to adopt policies and procedures concerning service of certain subpoenas on peace officers.

1. Each law enforcement agency shall adopt policies and procedures that provide for the orderly and safe acceptance of service of certain subpoenas served on a peace officer employed by the law enforcement agency.

2.  A subpoena to be served upon a peace officer that is authorized to be served upon a law enforcement agency in accordance with the policies and procedures adopted pursuant to subsection 1 may be served in the manner provided by those policies and procedures.

ANALYSIS: Nevada officers are required by law to participate in criminal investigations and if they refuse, may be charged with insubordination. Such a charge may result in dismissal or lesser punishments at the discretion of the officer’s employer.

There are two primary types of subpoenas with which the police regularly deal: The subpoena ad testificandum and the subpoena duces tecum (legal terminology is in Latin). A subpoena ad testificandum is an order to present oneself at a particular place and time to give testimony. A subpoena duces tecum is an order to bring documentary or other physical evidence. Police officers know that if they are subpoenaed, they will be testifying and they automatically bring any and all physical or documentary evidence with which they have any relation. Such evidence is usually spelled out on the subpoena and/or they speak with the prosecutor beforehand to determine exactly what they want the officer to bring. In any case, in the criminal justice system, “subpoena” encompasses both types of testimony.

NRS 289.027 simply allows an agency to accept subpoenas on behalf of individual officers rather than requiring that an officer be individually served--the actual subpoena placed in that officer’s actual hand--by one empowered to serve subpoenas. Considering the sheer number of subpoenas issued, this is a necessary time and labor saving device and is common throughout the nation. The process normally works like this: The prosecutor’s office sends the day’s subpoenas, which are usually little more than documents listing the defendant’s name, the officer’s name, the case number, the prosecutor’s name and the date and time of the hearing, to the secretary designated to handle them. That secretary places them in the officer’s mailboxes. This may also be accomplished by e-mail. They also commonly review them to determine when an officer will need to appear, and if an officer won’t be back on duty to find the subpoena before that date and time, will give them a call to let them know about the subpoena. Even so, sometimes officers don’t get subpoenas until after a hearing. In such cases, hearings are usually simply rescheduled because everyone involved understands that such things happen due to the very nature of the system.

THE COMMISSION: The overwhelming majority of those watching the televised Erik Scott Coroner’s Inquest came away with a very bad taste in their collective mouths and deluged the Clark County Commissioners with expressions of their displeasure and outrage. The primary emerging issue was the obvious lack of complete, competent questioning, leading to a pre-determined result that has, with only a single exception since 1976, favored the police. As a result, the CCC established a commission, seating (in alphabetical order):

Christopher Blakesley, Professor at UNLV Boyd School of Law (Commission Chairman)
Richard Boulware, NAACP
Chris Collins, Police Protective Association (Metro Police Union)
John Fudenberg, Clark County Coroner's Office
Doug Gillespie, Metro Sheriff
Phil Kohn, Clark County Public Defender
Bill Maupin, retired Nevada Supreme Court justice
Margaret McLetchie, ACLU
David Roger, Clark County District Attorney
Jose Solario, a former school board member (1993-1994), was added to the Commission at a November 3rd meeting of the CCC, apparently in response to demands for a hispanic member.

THE FRUITS OF THE COMMISSION: The Commission was given 45 days to make recommendations. Among the most contentious issues was that of if, and how, the families of police shooting victims should be represented. Under current inquest rules, families are allowed to submit questions to the presiding justice, but the justice may decide to ask some, all or none. According to the Scott family, only a fraction of their submitted questions were asked, and not always in the format submitted. Other than that, they had no role whatever. From the beginning of the process, Chris Collins, the police union representative, threatened that officers would refuse to participate in any inquest should the process become at all adversarial.

The CCC tentatively approved the recommendations of the Commission on December 7th with the final vote, after some tinkering, to be held on January 4, 2011. Some essential features of the new rules are:

(1) Juries will be replaced with “inquest panels” which will make “findings of fact,” rather than finding fault.

(2) Two pre-inquest meetings will be held with all parties involved.

(3) Investigative files are to be shared with officers and the families of those killed by officers.

(4) Both sides would determine the “scope” of questioning which will be focused on what happened.

(5) Officers may have a union attorney present during the inquest.

(6) An “ombudsman,” who would be a local attorney, will be appointed to represent families.

While a potential improvement on the current system, each of these proposed improvements has its own problems. As state law makes clear, at the end of any inquest, the jury, “inquest panel,” or whatever the CCC eventually calls it will still be required to issue, in writing, a signed statement “...setting forth the name of the deceased, when, where and by what means the deceased came to his or her death; if by criminal means, the name of the person causing the death.” The potential change seems to suggest the Clark County is attempting to get away from assigning any sort of blame by becoming a fact finding panel, but if the case is potentially criminal, that’s not an option Clark County can legislate away with semantic sleight of hand.

While two pre-inquest meetings are mentioned, it’s difficult to believe that the police will, in any way, participate in good faith. It is unlikely that the Prosecutor will be amenable to cooperating with victim’s families even though the Prosecutor’s job is to represent the public. Even should Clark County establish criminal sanctions for failing to appear, the police can show up and simply fail to meaningfully cooperate. Metro has a long established reputation for refusing to fully cooperate with requests for files, evidence, documents, etc. As previous updates have suggested, if the police are mishandling evidence, failing to properly document evidence and their actions, or simply lying, one might as well request old candy wrappers which would have the same reliability and value as evidence. And with the newly added wrinkle of officers refusing to participate in police investigations, there will likely be little of value to share, which is, of course, the point. The process, as proposed, does nothing to address these issues.

Regarding both sides determining the “scope” of questioning, this is apparently a sop to the police which will invalidate the entire process. The police have made plain that they intend not to cooperate in any way and consider anyone asking them questions that might reveal them to be less than knights in shining armor to be completely out of bounds. It takes little imagination to understand that the scope of questioning agreed to by the police will be very narrow indeed and will not be conducive to revealing the facts or the truth, or at the least, any version of the facts or truth contradictory to the official Police version of events.

Why, by the way, would officers who may refuse even to show up, and who will certainly refuse to cooperate or testify, need a union attorney at an inquest they will not attend?

A significant issue is that of the ombudsman. The mere fact of establishing such a position makes it clear that he--or she--will not be directly representing the victim or their family. By definition and common practice, an ombudsman is a neutral professional adjudicating matters between opposed parties while directly representing none of those involved. In the criminal justice system, there are two parties: The State, represented by the District Attorney and the accused, represented by their attorney. At inquests, the state--and in Las Vegas, the Police--is represented by the District Attorney. At present, the families of victims have no voice, no representation at all. Therefore, whom will the ombudsman represent? The people? The DA is supposed to do that. The Victim and their family? If that was the intention of the CCC, no ombudsman would be necessary and private attorneys would simply be authorized, with the option of public defenders appointed for indigent families. Why would the family of a victim, or the public for that matter, have faith in an ombudsman who doesn’t really represent them and their interests at all? Is this actually progress or merely the appearance of progress?

As this update is being written, these and other contentious issues revolving around these potential changes are still being considered. At the moment, Sheriff Doug Gillespie apparently supports the changes, including the ombudsman, but is demanding substantial police input in choosing ombudsman. This would, of course, raise reasonable questions as to the independence and effectiveness of any ombudsman. As a party with a direct and compelling personal and institutional interest in an outcome favorable to him and to Metro, the Sheriff should have no direct hand in such appointments, such involvement being the virtual definition of conflict of interest.

MINDSET: Most interesting--and disturbing--is the response of the Metro police, as communicated by their Union President Chris Collins, who represents approximately 2,800 officers. According to Collins, not only will officers--even those who merely witnessed the actions of fellow officers--fail to testify at inquests, they will refuse to make statements to investigators--usually Metro homicide detectives--after a shooting or death caused by other means. Apparently Collins has gone so far as to suggest that officers will refuse to honor subpoenas.

Collins objected to the idea that officers might have to repeatedly testify about their actions. Remember that in the past, officers have typically had to testify only at an inquest, and even so, their testimony, as in the Erik Scott case, has been less than complete. “now we’re saying ‘screw it’--you only have to answer twice instead of four times: Answer in the deposition and the federal case and skip the homicide investigation and skip the inquest,” Collins said.

Collins apparently believes that all officers will have to do is to simply inform the judge and prosecutor before the inquest that they won’t answer questions--in essence telling them that they intend to take the Fifth--and they’ll be able to ignore subpoenas. Collins said that skipping inquests will be good for officers because it will allow them to avoid the embarrassment and discomfort of pleading the Fifth Amendment to every question from the witness stand.

Reaction to Collins and his threats, express and implied, has been equally interesting.

CCC Steve Sisolak (he voted against the proposed changes): “They said this was what they were going to do. I don’t know if everyone thought they were bluffing.”

CCC Chairman Rory Reid: “Just to say ‘we’re going to take all our marbles and go home.’ doesn’t seem like a reasonable response.”

ACLU Attorney Allen Lichtenstein: “What they’re really saying (is) they’re happy enough to show up when they’ll only be asked questions by friendly DAs, but when they’re asked tough questions by people no in their corner, they don’t want to participate.”

CC DA David Roger (he was against the proposed changes) doesn’t think not having officer’s statements will affect his decision making process. “We talk to homicide detectives all the time where they don’t have statements from suspects.” Indeed DA Rogers, but such suspects aren’t usually police officers and the victims aren’t usually killed by the police. There may be some small difference there that DA Rogers appears to be missing.

The mindset of the police, represented by Collins and Sheriff Gillespie, is at least consistent: Abject and utter contempt for the public and the law. Collins and Gillespie express their contempt somewhat differently, but neither apparently believe themselves to be public servants (a representative of public servants in Collins’ case), but rather, masters of the public.

Part of the problem is undoubtably the fact that Metro officers are unionized. This is far from universal throughout the nation. Unionized officers are often able to get away with things that would be unthinkable to non-unionized cops elsewhere. I do have some sympathy for police unions. I have known law enforcement agencies where officers were mistreated, denied their rights to safe--under the circumstances--working conditions, due process and equal protection under the law, and if that was all that unions worked to protect, I’d have no difficulty with them. However, when unions began to see themselves as more important than the public officers serve, bad things inevitably happen as they have in Las Vegas for many years. Then Governor of Massachusetts Calvin Coolidge, in a Sept 14, 1919 telegram to AFL President Samuel Gompers wrote: “There is no right to strike against the public safety by anybody, anywhere, any time.” I couldn’t agree more, yet some states and municipalities essentially surrender to unions this kind of tyrannical power.

MINDSET OUTSIDE OF LAS VEGAS: In the world of law enforcement and the criminal justice system outside of Las Vegas, in competent, non-corrupt law enforcement agencies, such talk on the part of police officers is confined to under-your-breath locker room or coffee shop bull sessions, quickly done to let off steam, and as quickly abandoned. Few would think of saying such things in public, to say nothing of actually saying them. This is so not only because it would be politically foolish and dangerous, but because most would consider it to be dishonorable.

The job of a police officer is in many ways hopelessly complex, but it can be boiled down to its essentials. Police officers deter crime, investigate crime, write complete, factual and honest reports about everything they do, and testify--as often as necessary--about what they do. Particularly for more serious and convoluted crimes, it is not uncommon for an officer to testify many times in many kinds of hearings such as inquests, preliminary hearings, motion hearings, actual trials where an officer may initially testify once but be called back once or more, and even potentially, motion hearings post trial. And while most officers will testify only once or twice in a given case. it is entirely possible that they could testify five or more times in a given case. Every honest officer knows, understands and accepts this. It’s as much of an essential part of the job as a doctor’s frequent hand washing. An officer whining about being abused because he had to testify multiple times regarding any case would be laughed out of the room in most agencies. If he didn’t learn his lesson, his supervisors would surely conduct an attitude adjustment/reality infusion session.

This is where the importance of complete, factual and truthful reports comes into play. A Sgt. might tell a given officer “be sure you cover your ass on this one,” yet he is not telling an officer to lie. He is telling the officer to be sure that his report is complete, detailed, factual and that he leaves nothing out. People arrested by the police will often lie to avoid punishment and to make themselves look as good as possible to their friends and family. An officer’s best defense is a well written and complete report accompanied by the same from other officer/witnesses.

Most neophyte officers learn embarrassing lessons on the witness stand when defense attorneys force them to explain why they failed to document details in their reports. Most of the time, it’s nothing but an honest oversight by tired, overworked officers writing one too many reports hours after a busy shift, but after one exposure to that kind of heat, competent officers don’t make the same mistake again. Before signing an officer’s report, it is a Sergeant’s duty to be sure to direct an officer to clarify unclear writing and to include any details he may have inadvertently left out. After an officer completes a report, after a supervisor reviews and signs it, that report is never again altered and necessary corrections or additional details that come up are documented on supplementary reports with the same identifying case number as the original. This is done to avoid even the hint that an officer might have, for any reason, changed a report after the fact.

Many additional reasons for such attention to detail should be obvious to readers, but the most compelling reason is that no officer can know which report he’ll need to remember and when. In a given year, any officer will write hundreds of reports and deal with hundreds, even thousands of people. No one can remember with perfect clarity every report they’ve written and every detail therein. I’ve had to testify, for example, at a civil trial held many years after an unremarkable traffic accident and was thankful indeed that I always wrote highly detailed reports, reports that went far beyond minimum requirements. In fact, really good reports can often ensure that an officer won’t have to testify. Defense attorneys reading such reports know that they don’t want to take on that officer on the witness stand and work the best plea bargain they can get. No competent officer likes to say “I can’t remember because I didn’t bother to write it down” on the witness stand, yet all competent officers expect to testify--as often as necessary--and take pride in their preparation and skill in giving credible, convincing testimony.

In the world outside Las Vegas, officers who find a subpoena in their mailbox or in their e-mail in-box immediately obtain a copy of the related reports and get in touch with the assistant prosecutor who will be handling the case to see if there is anything they need. It would not occur to them to fail to appear in court. If anything, that would be worse than failing to show up for duty as not only would they face certain sanction from their agency, they might also be held in contempt of court. There would simply be no excuse, no sympathy from fellow officers or from supervisors whether an officer accidentally overslept or merely decided not to show up. Police work is an adult endeavor, an endeavor where reliability and honor matter. Honest, professional officers simply would not think of failing to show up when subpoenaed, ready to competently testify.

Refusing to cooperate in an investigation, refusing to write reports, to do one’s duty, can, will and should cause an officer to be fired. In such cases an officer who reasonably suspects that their legitimate, lawful conduct might be twisted against them for political reasons might say, “I’ll cooperate fully and hand in a complete report as soon as I’ve had the opportunity to speak with my attorney.” While such an officer might be disciplined, such discipline has a reasonably good chance of being overturned later, and if the officer has a good relationship with his superiors, no discipline may result. All officers know that the best interests of their agency aren’t always necessarily theirs. But in such a case, unless an officer has committed a crime and will invoke the Fifth Amendment, the worst offense of which they’ll be guilty is not completing reports and speaking with their superiors as soon as they desired. Such an offense will generally be survivable, even reversible.

The idea of taking the Fifth Amendment is also highly problematic for competent officers. Every officer involved in a citizen death should, by all means, fully cooperate with the resulting investigation, just as soon as he has the advice of his attorney. Even in good agencies, politics can always potentially play a role and a respected, competent officer might unexpectedly find himself a political scapegoat. Only in such a circumstance, where what’s really happening is clear not only to the officer involved but to his or her fellow officers, can an officer ever get away with taking the Fifth. Even so, some people will always believe the worst regardless of the eventual outcome. Taking the Fifth where it is not clearly and unmistakably justified is tantamount to throwing away every scrap of credibility an officer has worked years to build. It is a betrayal of public confidence, and fellow officers--to say nothing of the criminal justice system--can never again trust that officer. Even threatening to take the Fifth would, at minimum, cause alarm among an officer’s peers and supervisors. At minimum, if such an officer was retained, they would likely find themselves relegated to important filing duties and never allowed to work the street again.

MUTINY: Implied in the threats of Metro Police as expressed by Collins is also refusal of officers involved in a citizen death to complete reports relating to the incident. After all, if you wrote a complete report about the incident, what would be the point of refusing to testify about what you wrote, which, if complete and truthful, would be as potentially incriminating as verbal testimony? On the other hand, if one’s reports were deceptive, refusing to testify or taking the Fifth would become an unlawful better choice. From the apparent standpoint of the Metro officers Collins represents, the best of all possible worlds would simply be not to write reports, not to cooperate with investigations and not to testify, or if forced, to take the Fifth.

By their own admission, the Metro Police now intend to refuse to cooperate in any way in the lawful investigation of any death in which they have a role. Why? Because the house no longer has the advantage. The stacked deck, the wired roulette wheel, the loaded dice have been discovered and the Police might, for the first time in more than 30 years, have to play by the rules, the same rules observed by police officers around the nation.

If an officer’s actions are reasonable and lawful, if their reports are professional, complete and truthful, if the investigation of their actions is professional and not as shot through with anomalies as a Swiss cheese, an officer should have no fear of testifying to their actions as often as required because the facts, the truth, will not change. The very fact that their testimony does not change, that the facts are unassailable will only lend credibility to them and to their actions. However Mr. Collins has made clear that they don’t see things that way. They aren’t used to such rough treatment--actually having to testify in an adversarial hearing--and they’re not going to take such abuse! That the American criminal justice system is by design and nature adversarial seems to somehow have escaped them. Apparently irony is not a part of the curriculum at the Metro Police Academy, but more on that shortly.

The law on such matters is quite clear. Any citizen, police officer or civilian, may invoke their Fifth Amendment right against self-incrimination at any time, and in police work as in the civilian context, they generally may not be punished for so doing. However, in Nevada, any officer who fails to cooperate in an investigation or who fails to honor a subpoena may be charged with insubordination (for the latter, not specifically by state law, but because insubordination is generally considered to be refusal to obey orders and/or follow established procedures), which could conceivably, in some circumstances, be a firing offense. In addition, an officer ignoring a subpoena, as opposed to having a reasonable explanation, can expect to be cited for contempt of court, which can lead to imprisonment and/or fines, particularly if they have advertised their intention to break the law beforehand, as every Metro officer, through their union representative Chris Collins, has now done.

Keep in mind, however, that the right against self incrimination applies only to the individuals directly involved. Officers who are witnesses, before, during or after the fact of a police shooting, have no such right. And it seems obvious that in Las Vegas, no officer may reasonably portray themselves as a political scapegoat. The entire system, at least up to the office of the Prosecutor, seems to be set up to ensure that no officer will ever be prosecuted for the unjustified killing of a citizen, the Erik Scott case being the most egregious, recent known example of this potentially criminal status quo.

Indeed, no officer who has witnessed, in any way, other officers involved in the death of a citizen may legitimately refuse to write a report, refuse to participate in an investigation, ignore a subpoena or refuse to testify, and to testify as many times as necessary. The only possible reason for such refusal could be to protect other officers from the consequences of criminal wrongdoing. This seems to concern Collins and those he represents not at all. That Collins seems completely secure in asserting that such criminal dereliction of duty is not only appropriate but necessary is a telling indicator of the level of corruption in Metro and potentially, in the entire Las Vegas criminal justice system. Should officers blatantly break the law and local judges exact no immediate and meaningful penalty, there can be no further doubt that the rule of law does not exist in Las Vegas.

Astute readers will notice that I haven’t yet addressed an important issue: What about police supervisors and administrators? What about the Sheriff? Don’t they have any duty to deal with this? Absolutely. Officers willfully refusing to participate in investigations or refusing to honor subpoenas should be immediately relieved of duty and suspended, their issued badges and weapons confiscated. The Sheriff should immediately announce that this will be the policy of Metro with no exceptions. Further, he should confer with the chief administrative judge of the Las Vegas system and negotiate a policy, in writing so that it can be widely disseminated, that any officer failing to honor a subpoena in such matters will be immediately arrested and brought before the involved judge to show cause why they should not be held in contempt of court. Should his excuse lack integrity, he will be found in contempt and immediately jailed and fined. In most states, such an offense provides sufficient justification for firing of a law enforcement officer and revocation of their certification and justifiably so.

I’ve observed in previous updates that honest, professional agencies care a very great deal for their public image. The slightest hint of impropriety is promptly attended. Having officers publicly promising to break the law and refusing to participate in investigations relating to the police killing of citizens would be unimaginable virtually anywhere else in America. Any competent, non-corrupt police executive would be handling the matter as I have suggested and doing so publicly to try to minimize public relations damage and to restore public confidence. Otherwise, what citizens have long suspected--officers can and will kill citizens with impunity--can only be considered by the public to be confirmed by the Police themselves.

Does this sound harsh, paranoid even? What the Metro Police are doing is nothing less than declaring mutiny. Mutiny against lawful authority. Mutiny against those from whom every iota of their power comes: The People. They are putting themselves outside the law, above it. They are declaring that when they kill a citizen, none shall have the power to review their actions, not their employer, not the courts because they are accountable only to the highest power: Themselves. How can any citizen possibly be criticized for thinking the absolute worst of every officer employed by Metro, up to and including the Sheriff? How can any citizen fail to fear for their life when they have contact with Metro Police?

TEST CASE: There is a case in the pipeline that will likely be the first test case in the new inquest system. On December 11, 2010, Anthony Jones, 44 was shot with a Taser “several times,” according to Police spokesman Sgt. Jon Sheahan. As is usual Metro practice, only the sketchiest of details have been released. According to the Police, Jones was pulled over by police about a mile from his home. The Police claim that Jones ran and violently resisted the officers, Mark Hatten (35, employed by Metro since 2007) and Timothy English (24, employed by Metro since 2008). Jones died at Valley Hospital Medical Center shortly after the incident.

As with the Scott case, even after the inquest, it is difficult to make definitive judgements. Jones was shot “several times.” By one Taser? Multiple Tasers? Was he shocked simultaneously by multiple Tasers? This seems likely, otherwise, why would two officers be suspended? If only one officer used his Taser on Jones, the other officers would be mere witnesses, unless they in some other way potentially contributed to his death. It should go without saying that those who manufacture Tasers do not recommend shocking people with multiple weapons simultaneously. Such practices allow electricity to transit the body between the barbs of the two (or more), weapons and has, for example, the very real potential to stop the heart or disable the nervous system in fundamental, deadly ways.

It is certainly true that some people die after being subjected to a single Taser shock. But once again, based on the information currently available, Metro is involved in a suspicious citizen death. If long standing trends hold true, we’ll know little more after the Inquest and all officers involved will be absolved regardless of the new changes, that is, if the officers involved elect to participate.

TRAINING: In one of a recent week-long series of reports on Metro basic police training, the Las Vegas Review-Journal had this interesting passage: “Not so for Thomas Mendiola. A recycled recruit who graduated with Class 6-09, he was one of three officers who shot and killed a man with a gun outside the Summerlin Costco store last summer. The officers’ actions were deemed justified by a coroner’s inquest jury, but the controversial shooting helped lead to changes to the inquest.”

Officer Mendiola, readers of this series will recall, was one of the two officers who repeatedly shot Erik Scott in the back after Officer William Mosher had already shot Scott in the chest and thigh. The article did not explain why Mendiola washed out of an earlier basic training academy or how he redeemed himself sufficiently to be on the street in uniform on July 10, 2010, the day he shot and killed Scott. However, this will surely become an item of some interest at the upcoming civil trial.

What is also interesting is the tone of the articles. The Metro Academy is apparently a six month long affair obviously styled as a pseudo Marine boot camp, complete with screaming, abusive drill instructors, endless pushups and similar exercises, and what appears to be an intensive emphasis on the probability of an officer facing violent death at any moment.

Ultimately, the series focuses on former real estate agent Nathan Herlean, a recent academy graduate out of field training and patrolling on his own. Herlean is one of eight officers on his graveyard shift. Of that number, the most experienced officer has only 2.5 years on the job. Recall too that the three officers who shot Scott had scant police experience. Herlean is perhaps just a bit wired.

“On duty or off, he's always on alert, like someone flipped a switch that never turns off.”

“He took a vacation to San Diego and couldn't relax. He catches himself at stoplights staring down people in the next car.”

"’You're always on guard, but I don't want it to be that way,’ he says. ‘But I'm not going to win that battle.’"

“There's also the threat of getting killed on the job.”

“Herlean says he's scared of dying, and he figures he'll be shot at sooner or later.”

One cannot, with any knowable degree of accuracy, diagnose the nature of an entire police agency and its officers from press reports of basic training. That said, considering what is known about the behavior of Metro officers and of their superiors, a few general observations can be reasonably made. Their accuracy and applicability to the Scott case--and others--is up to readers, and the Las Vegas public, to judge.

While police agencies are para-military organizations, most have abandoned the boot camp model, understanding that intelligent, capable officers respond best to more adult forms of motivation and that limited training time is best utilized when officers aren’t in pain and sweating profusely. There is no doubt that physical training and ability are important, but more important is instilling in a police recruit and understanding of the necessity of maintaining a high level of fitness and the desire to continue that practice. From the appearance of some officers, including Off. Mosher, physical fitness standards at the Academy and post academy are not identical.

The series focused relatively little on the curriculum, but in more advanced police training, substantial time is spent in the classroom as more and more, police officers must be expert in not only local and state law, but in constitutional law and its interpretation and application. Most citizens don’t realize that the Constitution, and all of the related court decisions relating to law enforcement, have a very direct daily effect on police officers and the ways in which they carry out their duties.

Substantial time is also devoted to firearm training, but more is devoted to proper tactics and to knowing when and when not to shoot, as I’ve outlined in previous updates. Officer Herlean is no doubt like many new officers, but considering what I’ve read in the series, I am concerned that he, and other Metro officers, have been conditioned to see every citizen as a potentially deadly threat.

Every police officer must be alert; they are different than the rest of the public, with necessarily different responsibilities and perspectives. But apparently Herlean was never taught that he doesn’t always have to be on guard, at least not to the degree that he apparently is, and unless he is an aberration--different from most academy graduates--that should be of concern to all Las Vegas citizens.

Firearm guru Col. Jeff Cooper developed a color code system to illustrate relative awareness. Code white is the state of most people. They’re unaware of the world around them, oblivious to potential danger, hence unable to effectively and promptly respond if placed in imminent danger. Code yellow is the next step, and this is where every police officer should be. This state may be maintained indefinitely with no physical or psychological harm. It is a relaxed state of awareness that requires being aware of one’s surroundings and the potential for danger. No paranoia is involved. It allows one to quickly and properly react to potential danger because they can anticipate it, see it coming. Police officers and anyone who carries a concealed weapon should live in this state. A police officer who “...catches himself at stoplights staring down people in the next car,” is past code yellow and is inevitably going to do harm to himself and others.

I wonder if the Metro academy staff taught their recruits that it might be a good idea to smile at people upon occasion, and that not every citizen has murderous intent, or were they too busy screaming at them while forcing them to do push-ups?

No doubt, the attorneys for the Scott family will have found the LV R-J series interesting and will have a number of equally interesting questions for Metro witnesses.

FINAL THOUGHTS: Previous readers of this series will notice that I have been substantially less reluctant to criticize Metro than in past updates. Perhaps the threatened Metro mutiny--they don’t appear to be kidding, nor do they appear to have any sense of humor of which they are aware--has finally convinced me that Metro no longer deserves any benefit of the doubt.

That said, I still understand that I could be wrong about matters great and small. We still know relatively little about the Scott case and every partial revelation of information has raised far more questions and concerns than have been answered. As always, if I am wrong, I welcome contact from Metro officials or individual officers to set the record straight and I will be glad to make any necessary corrections, promptly and prominently. I know that most Metro officers are likely dedicated and honest men and women, but as far as I know, I’ve yet to hear from any. Their insights will be appreciated and their confidence kept.

My thanks to our faithful readers for their comments, support and insight. I hope this series continues to inform and perhaps, to spur the Las Vegas public and their elected officials to action that will correct what appear to be serious problems with their police force. I’ll continue to follow and report on this case, and I look forward to your comments and suggestions.

The Erik Scott Case: Update 8.2: Training, Corruption, Confusion and (More) Coincidence

A press release on the business relationship between the Metro Police and Las Vegas Valley Locking Systems (LVVLS) can be found here.

On Thursday, November 13, Phillip Ransom of Kansas City ran out of luck. His old van, the van he drove every day in his janitorial business, broke down with a series of backfires, just before 6 PM, about a block from his home. But his luck quickly became worse. Someone called the Kansas City Police and reported hearing shots. Worried about his old van catching on fire, Ransom stepped out at about the time two officers arrived and immediately opened fire, shooting repeatedly at Ransom and the van. Ransom stood by the van, his empty hands up, shouting that he wasn’t shooting. “I guess they couldn’t hear me,” he said. Ransom didn’t know how many rounds were fired: “I wasn’t counting, but it sounded like a lot.” When the smoke finally cleared, Ransom and the officers were unharmed, but Ransom’s van was hit at least three times, and the officers also shot out several windows of their patrol car. The local media story of this incident can be found here.

This incident is not directly related to the Erik Scott shooting. It occurred in Kansas City, MO. The Las Vegas Metro Police were not involved. However, it is mentioned here because there are a number of similarities with the Scott shooting (and many other police shootings). Among them:

(1) The police acted on inadequate information and without necessary tactical awareness.

(2) The police fired without concern for the safety of the public.

(3) The police endangered not only the public, but themselves.

(4) The shooting was unjustified.

(5) The officers panicked in response to a situation that should never have caused panic in a competent, well trained police officer.

(6) The officer’s marksmanship was, thankfully, terrible, as is commonly the case in police shootings. This was not the case in the Scott shooting, or was it?

(7) The officers were never in control of events; events controlled them.

The underlying issue is that of proper training for police officers. I’ll return to that issue shortly. But let’s take a moment to explain something that is hard for many people to understand: How police agencies become corrupt, little by little, over time.

THE HOPES AND CHOICES OF JOHN SMITH:

Officer John Smith has completed his basic academy at the top of his class. He has completed his field training course, riding for months with seasoned officers who showed him the ropes. He has earned his state certification and is a bona fide law enforcement officer. He is about to begin his first shift on his own in a genuine, dirty, poorly maintained, raggedy patrol car, with no one looking over his shoulder. Until this day, he has been, to various degrees, sheltered from many realities of the job, sheltered so that he could focus only on what he needed to learn in the short time he had to learn it. For the first time, he will be alone in his police car. It will, for a few days, seem very large.

The public doesn’t realize that most police officers ride alone, one officer per police car. Officers “partner” only in some cities, and even then, only in some neighborhoods or “beats.” This is done primarily to save money and maximize coverage. This doesn’t offer many opportunities for hip, dysfunctional partner relationships and snappy dialogue as in TV cop shows, but it is much more efficient in a police world of tight budgets, eternally lacking manpower and often, too few fully functional police vehicles.

Officer Smith--he’s suddenly no longer recruit Smith--is on the bottom rung of the law enforcement ladder. He’s a rookie. He, and all new officers, hate that term. Smith suspects he’s smarter than many of the cops he has already met, smarter and more dedicated, and he’s right, but none of that matters. He’s a rookie, and he’ll be expected to shut up, look and listen and try to fit in. His opinion, like the Vice Presidency, isn’t worth a bucket of warm spit. His rookie phase will end only when a new group of cops is dumped on the street and are, by comparison, even greener and more spit and polished than he is. Smith has observed that the way things are done by experienced officers is different than what he has been taught. He knows he has to learn those ways, some more subtle than others, and soon. He wants to be a good officer, even a great officer. He takes a deep breath, urges the loose and floppy shift lever into drive, and begins his first solo shift.

Weeks pass, and little by little, Officer Smith learns the ways of seasoned officers. It seems that just about everyone takes free coffee and donuts, and often many times each day. Shopkeepers seem, if not happy about it, not upset either, and the officers expect it, making no attempt to pay for their snacks. Some officers even expect free meals. Some shopkeepers obviously don’t like that, but they do it and shut up. This bothers Smith, but when he tries to pay for his food, his fellow officers give him a hard time, joking but with an edge, and when he persists, they make it clear--they never directly say it--that this is the way of things and anyone who doesn’t accept it is setting himself apart from his fellow officers. Smith puts his money away. He considers never taking coffee with his fellow officers, but there is no easy way to avoid it entirely without raising eyebrows. He does his best to keep it to a minimum, but over time, this minor worry is displaced by bigger concerns.

One night he answers a call to back up another officer who has stopped a possible drunk driver. The shift supervisor, a Sgt., arrives a short time later and they both stand by, watching and listening as Officer Jones, a long time officer who seems to be well respected, makes the arrest. The man tells the officer he had “three beers” before starting for home. Watching the field sobriety tests administered by Officer Jones, Officer Smith is troubled. He isn’t seeing any signs of intoxication, and he is surprised when Officer Jones arrests the man. Smith makes a point of sticking around after the shift and stealthily taking Jones’ report on the arrest from the in basket before the Sgt. can read it. Smith is confused and upset when he reads the report, a report of terrible performance on the field sobriety test by the man Jones arrested, bad performance that Smith did not see. Smith considers talking to the Sgt., but replaces the report. He’s confident that the Sgt., who also saw what happened, will deal with it. The next day, Jones is back as always, joking with the Sgt. The driver is convicted on the strength of Jones’ report. Smith has no idea what’s going on, but he doesn’t dare speak up. After all, the Sgt. did nothing even though he had to know--didn’t he?--what happened. Smith is determined to watch more carefully and to keep his mouth shut.

Officer Smith continues to watch and learn. One day he helps other officers make an arrest after a short high speed pursuit. After helping take down and handcuff the car thief after a short foot chase, he is holding the man on the ground when two officers rush up and deliver several kicks and baton blows to the thief who is not resisting. Smith is shocked, but does nothing as the officers withdraw. He notices a Sgt. watching the entire matter. Later, he meets privately with Officer Hanson, an experienced officer he thinks he can trust. He tells him what happened. He tells Hanson that the officers, at the least, committed an assault, maybe even a felony aggravated assault since they hit the man with batons. He tells him a Sgt. was present. Hanson is sympathetic. He asks for the names of the officers and the Sgt. When Smith tells him, he quietly nods and tells Smith to forget it and not to mention it in his report. Smith is amazed. He’s almost speechless. He begins to protest, but Hanson cuts him off and tells him to drop it for his own good, to forget all about it. He saw nothing; he knows nothing. Hanson is friendly, concerned, but firm. He makes it clear that pursuing the matter will only harm Smith and no one else. Smith takes his advice, but worries about it and doesn’t like it.

A year has passed. No one calls Officer Smith “rookie” anymore. He likes that. He has seen many instances of questionable, even illegal behavior on the part of fellow officers, and he doesn’t like any of it, but he knows better than to speak up. So far, no one has ever asked him about anything he’s seen, no prosecutors, no defense lawyers, no supervisors or higher ranking officers, so he has not had to make a decision; he has not had to testify against a fellow officer. He has become used to leaving some things out of his reports and “forgetting” some details, but he does his best to be honest. Still, he worries about the day he might be asked directly, under oath, and he has to decide about committing perjury or telling the truth. Even if a higher ranking officer asks about something, he has to worry. Is it a trick? Does he really want to know the truth and will he do what’s right, or is he just trying to find out if Smith can be trusted to be “one of the guys?” He’s pretty sure he’d tell the truth--he’d like to think so anyway--but he’s also certain that would be the end of his police career. He doesn’t think anyone would try to harm him or his young, pretty wife--she’s so proud of him; he hasn’t told her of his worries--but he has lingering doubts. Those doubts will soon be entirely dispelled.

It happens one night when he responds to a domestic violence call with two other officers. The two more experienced officers have arrived just before Smith and tell him to cover the back door of the house. Moments after taking a good position in the backyard, Smith hears three gunshots in rapid succession coming from the front of the house. Grabbing his radio, he calls in shots fired, and drawing his handgun, rushes around the front of the house to find a middle aged man on the ground, blood gushing from multiple chest wounds. A woman, his wife, is on the steps of the house, screaming and trying to get to the man. One officer who has a sick look on his face is restraining her and the other officer is covering the man with his handgun. The officer yells at Smith to cuff the man, who is not moving. Smith holsters, rolls the man over, and handcuffs him, then rolls him back over and tries to find a pulse. There is none. His eyes are open, staring blindly, his expression one of great surprise. Stunned, Smith asks what happened. The officer tells Smith that the man charged him with a knife. Smith looks around, but can’t see a knife anywhere. The other officer tells Smith to call an ambulance and wait at the end of the long driveway to direct them in when they arrive. Smith nods and does as he’s told.

When the ambulance arrives, Smith escorts the paramedics with their gurney directly to the man and sees, to his horror, a large generic folding knife, its blade locked open, on the ground near the man. He is certain it wasn’t there before. “Where did that come from?” Smith blurts out. The other officer says “that’s the knife the guy had when he attacked me.” Smith opens his mouth to speak, but catches himself. He cannot, however, keep his face blank. He helps keep people away, and watches what is happening. The other two officers step aside and talk in private, shooting occasional looks at him. A Sgt. arrives and confers with the two officers. He turns to glance at Smith, who is now actively worried. In the background, he sees one of the paramedics gesturing to his partner; the man is DRT: Dead Right There.

The Sgt. approaches Smith and asks for his report. He tells it. All of it. The Sgt. is not happy and tells Smith to stay where he is. A Lieutenant arrives and confers with the Sgt. The Sgt. gestures for Smith to approach and speak with them. The Lt. asks Smith to tell him what happened. When Smith is done, the Lt. does not ask Smith anything. He tells Smith that the knife was there all along and Smith must have missed seeing it initially in all the excitement. Smith is smart. He knows what’s happening. He’s smart enough to do what he has to do and he agrees that he probably did see the knife at first; he must have been mistaken. The Sgt. and Lt. do not smile, do not pat him on the back. They tell him to make sure his report reflects the version of events he has just “told” them, the “right” version. Smith gets the message. He’s sure his “mistake” will be passed on to the division Captain, probably higher.

Officer Smith has a lot of thinking to do, and for the first time, he tells his wife of his worries, all of them. She is horrified and terrified. She is proud of her young husband and had no idea. His choice is simple: Continue as a police officer on this police force and play along. If he does, he’ll be accepted and probably covered if he ever makes a serious mistake. That seems to be the unspoken deal. He can tell the truth, but he now knows without any doubt that the upper echelons of the Department are corrupt and he has no idea who, if anyone, he can trust. Since he has already been complicit in covering up a wide range of misdemeanors and even a few felonies, they could turn on him, frame him. He’s concerned that his life, even his wife’s could be in danger. He could simply wait a decent interval, try to get a police job elsewhere, and resign for “personal reasons,” but he has no idea if things are better anywhere else. He’s heard stories about other agencies, and they’re not encouraging. What does Officer Smith do?

THE NATURE OF POLICE CORRUPTION:

“Power corrupts; absolute power corrupts absolutely.” Lord Acton. This famous aphorism was part of the dialogue of the original episode of Star Trek. It reflects a simple, yet powerful truth of human nature.

We give police officers a great deal of power, pay them relatively little, often train them poorly, equip them poorly, and expect them to perform superbly with accuracy, superhuman insight, and utter flawlessness. We expect them to do exactly what is right in every situation, to be error free 100% of the time. When they make a mistake, we call, all too often, for their heads. Yet, no one is forced to become or remain a police officer.

Officers know the rules. They know the law. They have to believe that their superiors will protect them against unjust accusations. Unless they believe that they will have reasonable latitude to make honest mistakes, mistakes that will not cause them to be unreasonably and excessively punished, fired and/or prosecuted, it is impossible for them to do their jobs, jobs we rely on them to do well. They have to know that as long as they act within the boundaries of the reasonable exercise of professional discretion, they will be supported. They have to know that their superiors understand those concepts and that they are honorable men and women, just as they expect each officer to be an honorable man or woman.

To that end, agency heads--police chiefs and sheriffs--must establish professional standards of behavior and see that their subordinates--captains, lieutenants, etc.--rigorously and fairly enforce those standards. They in turn must ensure that first line supervisors--sergeants--also enforce those standards. They all must constantly reinforce a number of vital understandings. Among them are:

(1) The police are a part of the community; life is not us against them.

(2) Police officers are public servants and must wield their power fairly and honorably.

(3) Police officers must always treat citizens with kindness and respect, while understanding that some citizens won’t allow officers to do that.

(4) Police officers must never use excessive force.

(5) As much as the public needs the police, the police need the support and good will of the public even more.

(6) Wearing the badge and blue suit is never license to break the law--mostly.

By this I mean that if the police are going to do their jobs and catch bad guys and save lives, they have to break some laws every day. In many states, state law is written such that the police are allowed to break traffic laws only if they are operating with full lights and continuously operating siren on their way to a call. As a statement of noble intent, that’s great. In the real world, it’s ridiculous and dangerous.

Often, officers have a feeling, a feeling based on intuition and experience, that they need to get to a call quickly, even a call that hasn’t been broadcast as a lights and siren emergency. Do you really want to force them to rigorously obey every traffic law in these circumstances, when you’ve heard and reported loud, strange scratching noises at your back door at 3 AM? Do you want to force them to run, lights and siren, to your door, chasing away the burglar long before the officers are close, leaving him free to return another night? Do you want an officer looking for burglars, peeping toms and stalkers in your quiet suburban neighborhood to have to rigorously observe minimum speed limits and keep his lights on, or would you prefer that he be able to be sneaky enough to catch sneaky people?

To the reasonable man or woman, the answer is obvious: The police have to be able to break the law, at least in small ways, as long as they’re doing it in the direct pursuit of their duties and as long as they achieve results. But lying about what they’ve done or seen, committing thefts, assaults, engaging in conspiracies? Certainly not, and in honest, professional agencies, these lines are clearly drawn and uniformly monitored and enforced. Every officer in such agencies knows that if he runs into a parked car while operating with his lights off, there is no excuse. He knows that if he hits another car, even driving with lights and siren, he’s in trouble. This is as it should be.

Let’s examine the troubles of Officer Smith to determine how and when things went wrong. Professional departments don’t allow officers to accept gifts, gifts of any kind and any price. This policy, if enforced, minimizes the possibility of the lowest level of corruption, Officer Smith’s entry level introduction. When an officer starts accepting small snacks--coffee and donuts--it’s a small thing to begin expecting free meals. Small business owners who depend on the police for a great many services want to keep them happy, so they shut up and fork over, but they don’t like it. Everyone they tell about it doesn’t like it, and the police look like petty thieves to the public. Officers begin to think they’re entitled, not only to snacks and meals, but things of equal, and eventually greater, value. Even officers like Officer Smith who have every intention of being honest are co-opted. Police peer pressure is extraordinarily powerful. Officers must trust each other implicitly for they hold the lives of their fellows in their hands. Anything that interferes with that trust is not tolerated. Established norms must be observed. And an officer who knows of continuing illegal behavior on the part of fellow officers and chooses not to participate is not trustworthy--to those committing the crimes. Power corrupts.

Not every officer in the most corrupt agency is corrupt. Most are not. But every experienced officer knows who is and to what degree. Honest officers do their best to avoid any real contact with corrupt officers and vice versa, and while it is not possible for honest officers to know absolutely nothing of the illegal doings of the corrupt, they know that they have to be careful about what they see and even more careful about what they talk about. They don’t have much choice; they have to work with those guys every day.

Over time, some officers become lazy. Some are lazy on their first day of work. Police work requires great attention to detail and skill in writing. Many officers are not inherently detail oriented or skillful writers. Many police agencies have bizarre rules that virtually require bad writing, such as forcing officers to refer to themselves in third person and to use jargon: “This officer egressed to the scene of the alleged crime...” Some officers began to see the world as us against them. They believe that every criminal gets away with most crimes they commit (they’re right about that), and they begin to believe that it’s therefore acceptable to exaggerate a bit here and there to ensure convictions. Some officers begin to believe that the deck is stacked against them in every way (they’re sometimes right about that too) and the way to catch up is to make sure that those who deserve punishment get it.

So the officer made up a few “facts” about a field sobriety test. The driver admitted he had three beers, and all officers apply the rule of three, so what’s the problem? The rule of three? Officers take whatever number of drinks a citizen tells them and multiply by three or four to get into the true alcohol consumption ballpark. Blood alcohol results usually bear out the relative accuracy of the rule.

Officer Smith confirmed his suspicions. The officer exaggerated; he lied on an official document. That’s a crime. Smith wisely waited to see what the Sgt. would do. The Sgt. saw what Smith saw. He had to approve the same report Smith read, but he did nothing. The officer got away with it, and a man who was at least somewhat innocent was convicted of a crime he might not have actually committed. Either the Sgt. covered for the officer--he was complicit in a crime--or, or what? Officer Smith doesn’t know, but it doesn’t look or feel good. What Officer Smith doesn’t know--yet--is that the Sgt. may have only skimmed the report, or perhaps he just signed it without reading it. In either case, the officer got away with a crime and Officer Smith learned that crimes are not only committed, but accepted and covered by first line supervisors, very powerful figures to new officers.

Let’s assume that the Sgt. wasn’t covering a crime, but just didn’t do his job and completely read the report. That’s easily fixed. And if he did read the report, he could have easily dealt with the problem by telling the officer that he may have been confusing some observations in his report with another incident. This would give the officer the opportunity to realize that this Sgt. wouldn’t accept exaggerations and to adjust accordingly. If every Sgt. did this, the problem would quickly extinguish itself. If they don’t it grows, and if first line supervisors know officers are violating the law and allow them to get away with it, they are complicit in each and every crime. They become, in effect, blackmail victims, for they know that if and when they try to return to the law, those they accuse will certainly accuse them in return, and all of those reports with their signatures approving them will come back to haunt them. Besides, it’s small potatoes, right? Just misdemeanor crimes, drunk drivers and the like, people who deserve it, right? Who is going to throw away their career, a pension they’ll have earned in a few short years, maybe even go to jail, over that? Power corrupts.

Officer Smith does his best when he witnesses, close enough to be spattered with blood, officers assaulting a criminal who is not resisting arrest. He witnesses what is arguably a felony. Seeing a supervisor nearby, and knowing enough, he confides in an experienced officer, a man he thinks he can trust. In a sense, he’s right, and the officer looks out for Smith, saving his job, and perhaps even saving his life. Smith is beginning to understand that corruption reaches everywhere and that there is nothing he can do about it except do his best not to be corrupt. He knows that until he gets a great deal more experience, he will have no idea exactly who to trust, and he is beginning to worry that even the highest ranking officers are corrupt, and he’s right. Power corrupts.

What he doesn’t know is that in order for this level of corruption to exist, it must be allowed, even abetted, from the top. Line officers don’t know about many of the complaints against them that are received and handled by their superiors. In corrupt agencies, they rarely know about such complaints because they are never investigated, therefore there is no need for them to be questioned about their actions or reports in a given case. In fact, in corrupt agencies, high ranking officers often actively hate working cops. They think they’re stupid and they don’t trust them. They’ve allowed, though their inattention, incompetence, acceptance or all three, themselves to become implicitly blackmailed. Turning on officers, even incompetent, dangerous officers, is directly dangerous to them, not only politically--always a huge concern for higher ranking cops--but criminally. Even if they have provided competent, professional training, they must ignore violations of that training. They must keep up appearances, but nothing more. Anything more is dangerous, dangerous to them, and they do what they do not to protect their officers, but to protect themselves, first, last and always.

Finally, Officer Smith stumbles into a botched shooting. An officer has, without justification, in a panic, shot and killed an unarmed man and has tampered with evidence to try to justify his mistake. Smith doesn’t know how fortunate he is, fortunate only in that this incident has occurred very early in his career and he has the chance to make the right choice. Smith now knows, without a doubt that the highest ranking officers with whom he regularly has contact are corrupt. He suspects it goes all the way to the top and he is right. Officer shootings, particularly those in which people die, cannot be easily swept under the rug. They bring headlines and unwanted political and public attention. In order to tamp down that kind of attention, to successfully stonewall that kind of public interest and outrage, the entire resources of the agency must become involved. Strategies must be discussed and implemented over time. Unwritten, unspoken procedures must be formulated, understood and automatic. Political chips are distributed and cashed in. Favors are begged and granted. Witnesses are intimidated, evidence is mishandled, lost or destroyed, and business goes on as usual. It has to. If it does not, if the first substantial crack appears in the wall, the entire structure can collapse, crushing everyone within. Absolute power corrupts absolutely.

Imagine, gentle reader, imagine that you are Officer Smith. You’re young, dedicated, hard working, idealistic. You believe that the police should be, must be, honorable, that little children should look up to them and that they should be worthy of their awe. You believe that it’s your job to protect women, to comfort those who need it and to catch the bad guys, to make them pay for the harm they do, for the misery they cause. And imagine that you have just learned, in a way that cannot be ignored, that you’ve fallen into a police agency that dashes your hopes and turns your dreams to dust. You can no longer ignore it. You must make a decision.

The easiest decision, in a way, is to simply go on for a short time, find a new job, and resign. Because they think you’ve played by the rules, they’ll give you a good recommendation. That’s part of the deal too. Thank your lucky stars you weren’t completely corrupted and you can step back from staring into the abyss before the abyss stares too deeply into you. You’re young. You can remake yourself into what you want to be, and if you find that no police agency is free of corruption, you can always give up and do something else. You’re young and you have not fully come to the dark side.

You can tell the truth. But who can you trust? They probably won’t try to kill you or harm your wife--maybe--but it doesn’t take much to achieve the same result. Maybe the next time you’re in a jam, your back up will be delayed, the dispatcher will misplace your call for backup or help. Things get lost, mislaid. You’ve seen it happen and wondered. It’s no one’s fault really, particularly in your agency. You can go to the feds, but what if the fed you contact is a pal of the Sheriff? What if he just doesn’t care? What if your problem isn’t on the currently politically correct action list, a list you’ll never see? If the feds get involved, it could blow wide open, everything could come tumbling down, you could be a hero...no. Never a hero. No matter what happened, you’d always be an outcast to some. At best you’d be a curiosity, even a fool. Most people don’t care to know the whole truth about anything that doesn’t directly involved them. Takes too much time and energy. No. It’s not going to end well for anyone no matter what happens.

TRAIN AS YOU’LL FIGHT BECAUSE YOU’LL FIGHT AS YOU’VE TRAINED:

This is one of the best known police aphorisms. Often ridiculed, it is, nonetheless, true. When everything falls apart in the worst possible circumstances, will an officer panic, lose control of his thought processes and fine muscles, wildly spraying ammunition in the general direction of a target, or will the skills and reasoning so carefully imprinted in his neurons and muscles take over and ensure an appropriate outcome? All of the skills relating to shooting and decisions to shoot require muscle memory and information processing, and these must be learned and regularly practiced. They are perishable skills.

Training is a difficult issue for the police, particularly regarding firearms. Putting an entire agency through a given training course, even yearly qualification, is a time consuming, frustrating and expensive enterprise. Taking people off the street costs time and money, particularly in unionized agencies. Officers will have to be compensated, and there is rarely sufficient money for regular time, let alone overtime, so compensation time is granted, time that can’t be afforded because agencies are always understaffed, so when an officer takes comp. time, their shift is short, often dangerously so.

The depth and quality of firearm training varies widely from state to state and agency to agency. I knew a state agency in the late 70’s that required all of its officers to wear their revolvers in flap-covered cross draw holsters on their left hips. Why? So everyone would look spiffy during inspections. It was, of course, a terrible way to carry a duty weapon because it was brutally slow, particularly for left handed officers who had to go through impossible contortions to draw their weapons. I knew another state agency in the 80’s whose chief firearm instructor demanded that they carried only four rounds in their five round S&W Chief revolvers with the hammer down on the empty chamber. This would have been a reasonable safety precaution in 1880 with single action Colt revolvers, but by the 1980’s all revolvers were safe to carry fully loaded. Even the FBI, at one time believed to be the cutting edge of tactical and firearm instruction, taught what I called the “squat and cover” method of shooting. One would thrust their handgun out in front of them at full arm extension, squat deeply while leaning forward and forming the off hand into a fist, clutching it to the chest roughly over the heart. The idea was that if a round was headed for the heart, it might be deflected or slowed by destroying the off hand. Of course, you would hope that you wouldn’t have to reload thereafter...

Significant improvements have been made in the intervening years, including an understanding that knowing when to shoot is, in many ways, as vital as knowing how to shoot. What has not been universally accepted are effective methods of teaching and testing these skills. As a result, the average American police officer may be, at best, an average shooter with average knowledge of his issued weapon. He may shoot it no more often than the required yearly qualification, and may be allowed to shoot that course of fire as often as necessary to reach the minimum required score, which is commonly quite generous. Weapon cleaning? You’re kidding, right? Not only do many cops not have the necessary tools and oils and solvents, they’d have no real idea how to use them. Because of the expense of the equipment and facilities necessary to use moving, or more complex targets and scenarios, most police qualification takes place in broad daylight on outdoor ranges with paper human silhouette targets posted at known, marked ranges. Courses of fire commonly change little over time. And because of the ridiculously high cost of full power, duty ammunition, many agencies use only lower power practice ammunition which commonly uses lead bullets of lighter weight which change the recoil, report and muzzle flash characteristics of the weapon. As a result some officers rarely if ever fire the ammunition they’ll carry on duty, and if they do have to shoot for real, find their accuracy degraded by the report, muzzle flash and recoil of unfamiliar ammunition. As a result, mediocre shots often stay mediocre for their entire career. Many officers never become completely competent with, and confident in, their weapons and their ability to deliver accurate fire under stress.

Another important problem is weapon presentation, what some might call drawing the weapon from its holster. Many professional departments employ anti-snatch holsters that do not allow the weapon to be pulled straight out of the holster, but require the officer to release a catch or thrust the weapon forward before being able to pull it up and out of the holster. This does slow the draw somewhat, but with practice this negative drawing, but positive safety, factor can be overcome.

And that’s the problem: Not only practice, but proper and constantly repeated practice. Many officers, unsure of themselves, will not only release the safety catches of their holsters, but push their handguns forward in the holster so they can merely grab them and lift them up when the whistle blows for a round of fire (whistles or similar devices are necessary so officers can hear them through hearing protectors). This may help their times and scores on the range, but is deadly dangerous practice that no competent instructor should allow. All draws should always be done, each and every time, from a snapped and secured holster, exactly as the officer carries it. This is vital so that each officer knows exactly how long it will take him to present his handgun from a snapped holster. And this is only the beginning. Each officer must regularly practice. When I was on the street, I came in 15 minutes early every day and stepped into the small indoor range we maintained to practice weapon presentation drills, including turning to the left and right, and 180° to the back. I did not engage in quick draw silliness, but always worked to be completely relaxed, sure and smooth because smooth is fast. I also practiced holstering and securing my handgun without looking. I always finished with a pinch check to ensure that a round was chambered in my duty Glock and checked to ensure that my magazine was fully loaded and undamaged.

The point is that I was fully confident in my abilities and therefore intuitively knew exactly how much time I needed and had in any situation. I often did not need to draw my weapon when other officers had to draw theirs. I had the time to observe and they didn’t. I also often witnessed the pathetic spectacle of officers engaging in energetic, panicky wrestling matches with their own holsters while I smoothly drew and dissuaded some real bad guys from doing more than laughing.

But more potentially problematic is shoot/don’t shoot training, if a given agency employs it at all. Some of the more professional agencies own and regularly employ sophisticated laser systems that show scenarios on a screen with sound, and record and play back hits and misses. If used properly, such systems can teach officers that they have more time than they imagine before pointing in at a target and pulling the trigger. They can convince officers that they can afford those extra few tenths of a second before shooting. But even with these systems, additional videos with new and different scenarios can be expensive and as always, training time is difficult to arrange. Few officers will, if encouraged to do such training on their free time, actually do it.

Most agencies rely on federal agencies or commercial companies to, from time to time, bring portable versions of these systems around. Of course this means that such training might be available only every few years for a day or two, and many officers won’t be available on those few days. Many agencies never have such systems and either do their best with what they have, or don’t bother, relying only on classroom lectures and demonstrations. Some officers never receive such training except in one brief session at a basic state academy. Some don’t receive even that.

It is here that we return to the officers of the Metro police and the Kansas City Police, officers in two different situations on two different days, but with many facts in common. One of the primary goals of complete, competent and ongoing tactical and firearm training programs is not only to impart valuable knowledge and skills, but to periodically reinforce and update it when better and more effective techniques--as opposed to mere fads--are discovered. Also imperative is record keeping so that an agency has a record, over time, not only of an officer’s periodic final qualification score, but the details of that course of fire, of their performance under pressure, their ability and willingness to learn and adapt. Ultimately such programs must be diagnostic. They must reveal which officers are potentially dangerous, which officers cannot adapt, who panics, whose lack of knowledge and skill is an accident waiting to happen. Ideally, these officers will be weeded out in basic training, long before they ever hit the street, but such diagnostic functions should never cease. Lazy, undertrained, panicky officers are dangerous in the academy or after ten years on the street.

In both cases, it is reasonable to ask whether these officers were ever effectively, properly trained in the use of force and in handgun employment and marksmanship. In terms of the common results of police shootings, the Kansas City officers, as comical as they may be (in the sense of black comedy), employed their weapons as one would expect in most police shootings, where most bullets fired do not strike their intended targets, even at very close range. These officers barely managed to hit the side of full sized panel van and thankfully, completely missed the poor man whose only crime was driving an old, backfiring van. Fortunately too, they did not shoot each other, but only their own patrol car, likely pulling their weapons and opening fire through the windows before they were out of their vehicle (the available stories are a bit short on such details). We do not know the exact number of rounds fired by each officer or their eventual destinations, but it is almost certain to be more than the three that struck the van.

This is only one of a great many reasons why the Erik Scott shooting is so unusual. Apparently three officers fired at Scott from very close range from at least two sides, more or less simultaneously, while actually surrounded by innocent citizens, citizens close enough to have been hit by ejected brass. These officers were almost certainly facing each other and were said to have fired only seven rounds, yet every round stuck their intended target--if they are to be believed, a moving target--and there were no misses despite the fact that they all fired--by their own testimony--in what amounts to a panic. We are expected to believe, among all of the amazing coincidences in this case, that the three random officers at Costco that day were world class tactical shooters who fired only a limited number of rounds and that no rounds missed. Miraculously, apparently none of the rounds fired struck anyone or anything else. This is, to put it mildly, highly unusual.

It will be interesting indeed to learn what kind of training records are maintained by the Metro Police, records that should include all manner of training relevant to this shooting, which should include the frequency of firearm training, courses of fire, dates of training and qualifications, kinds of ammunition employed, completion scores, number of attempts required to meet minimum standards, and much more. Considering the performance of the Metro Police to this point, it would not be surprising to discover that such records don’t exist or are, at best, unreliable. If this is the case, it would help to explain much, particularly whether Officers Mosher, Mendiola and Stark should have been on the street at all on July 10, 2010 and whether they should continue to wear a badge.

COINCIDENCE AND CONNECTIONS:

It has been discovered that Las Vegas Valley Locking Systems, the local Las Vegas security company that has figured so prominently in this case, has a contract to provide video security services to Metro’s two police substations. The press release by the manufacturer of the systems dated 10-02-10, goes into more detail about the high tech nature of the system and of Metro’s requirements for such systems, including immediate video retrieval. This is yet another interesting coincidence in a case overflowing with them.

While this business relationship does not, in and of itself, prove collusion or wrongdoing on the part of the Metro Police or of LVVLS, certain reasonable inferences might be drawn from it. LVVLS would certainly understand, at the very least, that it would be wise to remain on Metro’s good side. They have, no doubt, a considerable economic interest in doing just that. And while such a relationship does not unquestionably mean that LVVLS and its employees would knowingly participate in a conspiracy, they would likely be careful, as everyone involved in the Metro side thus far has been careful, to say only the minimum necessary to achieve immediate goals (a successful Inquest finding) and to offer nothing further, as they apparently did not.

Another interesting but as yet unanswered question is whether LVVLS also provided the locksmith that Clark County Deputy Public Administrator Steve Grodin, accompanied by an as yet unknown Metro officer (or officers), used to arguably illegally enter Erik Scott’s home and change the locks to keep Samantha Sterner out of her own home after the shooting. Remember that the PA’s office charged the Smith family hundreds of dollars for the services of a locksmith and for their own “services” in carrying out an apparently unlawful search and seizure of Erik Scott’s home and property, but reportedly did not specify the name of the locksmith or his company on the bill. This may be nothing more than an oversight, or perhaps an attempt at concealment. In this case, at this point, it’s hard to know whether it’s either or both. But one thing is likely: The locksmith will have information about the words, motivations and actions of Grodin and the police before, during and after the entering of Scott’s home. The locksmith, providing he was acting in good faith, will likely have no legal liability for the probable illegal entry, but he will almost certainly know some interesting information. No doubt this is information that the Police do not wish the Scott family and their attorneys to have.

THE IMMEDIATE FUTURE:

Because a suit has now been filed, pre-trial motions and proceedings will begin. Among the most important will be discovery, which will include Metro, the PA’s office, the Coroner’s Office, the Secret Service, Seagate and a variety of other entities, making available to The Goodman Law Firm--the Scott family attorneys-- all related reports and other documents. Expect this to be a difficult, lengthy and contentious process.

If Metro and the others involved have nothing to hide, if the shooting of Erik Scott was, as they claim, a completely justified police action, there is no reason whatever for any evidence to have been mishandled, lost or otherwise tampered with. There is no reason whatever for the Police to delay a single second in producing every scrap of evidence collected in the investigation. There is no reason whatever for every single witness to fail to testify willingly, honestly, fully and completely and with absolute clarity. According to the Police--to say nothing of several who have graced our comments section--this is manifestly a simple, open and shut case. If so, all the records and evidence should clearly reveal this and Metro should be only too delighted to produce each and every scrap of paper and bit of evidence in pristine, unaltered condition. This would be the routine, daily norm for any competent, honest agency.

Another interesting part of the pre-trial process is depositions, when witnesses, under oath and with a transcript taken, give testimony. It is during this process that a great deal that was not exposed at the Inquest will be likely to be learned, and potentially, substantial panic will set in at Metro. Again, if this is indeed a simple, open and shut case of a legitimate officer shooting, professionally done, all witness statements should be brief, neat and clean and contain few if any contradictions. However, everything that is now known indicates that this will not be the case, in fact, the opposite is likely to be true. This process has the potential to break the case wide open as witnesses will, for the first time, be testifying under oath in a genuinely adversarial proceeding with the very real understanding that lying can and will put them in prison and can lead to far more damaging charges. All it will take is one substantial witness to tell the truth, assuming that the truth is different from the Metro version of events. Metro knows, and fears, this.

Should the case actually go to trial, it will become more and more interesting. Again, if the shooting was as cut and dried as Metro and its supporters would have us believe, its officers and leaders will have a very, very hard time explaining every mistake, omission, crime and bizarre coincidence they’ve perpetrated since the echo of the final gunshot died away, actions that would not have been in the least necessary if the shooting was, in fact, a legitimate exercise of professional police discretion. In fact, they will likely have to repeatedly describe and portray themselves as amazingly incompetent as a means of attempting to explain the unexplainable.

It will be very interesting to learn what the Goodman Law Firm knows about this case and what they will present at trial. I can make some educated guesses, but even if I am correct in the theory of the case I’ve presented here, I will take no pleasure in it, for Erik Scott will still be dead, many lives will be forever irretrievably damaged, and some officers who might have been worthy public servants will be destroyed. It will then be up to the citizens of Las Vegas to determine if they wish to be the employers of their police force or their continuing victims. Sheriff Gillespie may not wish to become too comfortable with his new term in office just yet.

We at Confederate Yankee will continue to follow the case as new developments become known. As always, we encourage our readers to help with their valuable ideas, questions and insights, and we encourage the citizens and officers of Las Vegas to contact us with their insights and information that might help to ensure that justice is, finally, done. If we’re getting it right, we’d like to know. If we’re getting it wrong, we’d like to know that as well and will make all necessary corrections.

The Erik Scott Case: Update 8--Eyewitnesses, Video and Coincidence

Information relating to the reward offered by the Scott family for video evidence can be found here. Information relating to the lawsuit filed by the Scott family may be found here.

THE SCENE: A classroom much like any classroom supported by public dollars. The occasional fading poster breaks up the routine of bland, institutional paint. The ubiquitous round clock hangs on the wall above the lectern, making odd and disjointed ticking and whirring noises, its hands occasionally speeding up or slowing down. It’s either too hot or too cold and there is an odd smell that no one can quite identify. But this classroom is different. In the chairs with the worn, torn covers, their arms resting on the chipped particle board tabletops covered in cheap, peeling wood grained vinyl, sit 25 police recruits, young men and women eager to learn all that they can about their jobs before being allowed on the streets.

It’s 1030 in the morning. The topic is the finer points of diagramming traffic accidents, and attention, and wakefulness, are beginning to lag. The instructor drones on, when suddenly, without warning, the door at the back of the room flies open and slams into the wall with a resounding bang. Someone sprints into the room, assaults the instructor who ends up flat on his back, and sprints from the room through the wide open door. The entire incident has taken mere seconds. The recruits are now wide awake, but are frozen and have no idea what to do. The instructor rises, calmly brushes off and straightens his uniform, and directs the class to write a report about the crime they just witnessed.

All too soon, each recruit has the dubious pleasure of reading their report for the entire class. At the end of the reading, it is clear that the assailant was a tall/short, slender/fat, man/woman who was balding/had long hair and who said a variety of things/was silent, as he assaulted the instructor/or didn’t, with his fists/a baseball bat/something big and dark/a rubber chicken. Most recruits did not mention the location, the date, and left out most pertinent facts. Only a few thought to write down the time of the incident despite the large clock hanging a few feet over the action. Only one noticed that the weapon used was in fact a yellow rubber chicken, and only one--not the same one--noticed that the assailant was a man with a beard wearing a long, curly blonde woman’s wig. None recognized him as one of their instructors. Only one correctly put the duration of the incident at ten seconds while the others ranged from half a minute to a minute.

Variations on this scenario are played out across the nation for new police officers because it teaches very important lessons about the nature and reliability of eyewitness testimony. If the instructor in this scenario was particularly capable, he would have pointed out all of the factors that can color eyewitness testimony and would have taught his recruits how to question witnesses to properly evaluate and to clarify, not color or coerce, their testimony.

While investigating any crime, the police must, at the scene, identify any and all potential witnesses and take complete statements from them, carefully comparing them to see which, if any, common elements appear. Even the differences are important because no investigator can know, particularly early in an investigation, which of these differences might be important. Really smart officers will immediately, upon walking into a group of people who might be potential witnesses, say “show of hands: How many of you saw what happened?” while simultaneously raising his own hand. He would do this because he knows that Americans are conditioned by their experiences in the public schools to raise their hands in response to questions, and if caught off guard, will tend to respond honestly without thinking too hard. Those who raise their hands--or partially do before thinking better of it--will be quickly and politely segregated and questioned.

Initial statements are often taken informally, by means of handwritten notes taken by officers, or are written by each eyewitness. Later, depending on the seriousness of the crime, detectives commonly conduct taped or videotaped statements, carefully asking questions designed to bring out details and insights that might have been missed in the initial statements while being careful not to contaminate statements by the power of suggestion. These more complete interviews are commonly done after detectives have had the chance to review the physical evidence which can often clarify events and also bring up questions that need more in depth answers. During this process, detectives also determine--if they have the luxury to choose--which witnesses will be most effective in court.

Done correctly, this process works very well and leads to correct conclusions. Done incompetently or with a pre-determined result in mind, it leads to miscarriages of justice such as allowing the guilty to go free or convicting the innocent.

Some few readers have suggested that because eyewitness “A” testified that Scott pointed a gun at the Officers, the case is, from that point, closed. If only these matters were so easily decided. From what is currently known, the witnesses in the Erik Scott shooting--and there were many more than presented by the Prosecution at the Inquest--are no different than in most cases. They fall into two general groups: Those who believe that Scott, at some point or in some way, touched, reached for, grasped, drew, or pointed a gun at the police who immediately shot him, and those who saw no gun, before, during or after the shots were fired. Even so, there appear to be widely accepted common observations. Virtually all witnesses agree that:

(1) The Police began shooting almost immediately after identifying Scott.

(2) The Police fired multiple shots, including multiple shots into Scott’s back as he was falling face down to the ground or was face down on the ground.

(3) Something was on the ground near Scott’s body, something variously identified as a gun, a cell phone, a zippered gun rug, or a black or otherwise colored object of some kind. Some witnesses saw nothing at all.

(4) The shooting took place in the midst of a large crowd of people leaving the Costco at the request of the Police, a crowd who unknowingly walked into the middle of a circular firing squad.

(5) The Police were yelling a variety of conflicting commands at Scott in the few seconds before they opened fire.

(6) Scott’s hands were more or less continuously in the air in response to the commands from the Police. Some witnesses felt he never lowered them.

(7) Scott appeared very surprised when confronted by the police and particularly when the first shots hit him.

(8) The Police rendered no medical assistance to Scott and handled him roughly when assisting medical personnel.

Let’s return to the classroom where the instructor points out some of the factors that can have a substantial influence on the accuracy of eyewitness testimony. His careful questioning reveals that none of the recruits in the back row had a clear (some had no) view of what happened. Even the recruit sitting closest to the door couldn’t write a clear description of the “suspect” who was at two instants, within two feet of him, because “it all happened too fast.” None of the recruits saw the entire incident from the moment the suspect entered the room until he left. Several were only fully aware of the suspect as he turned his back to his “victim” and sprinted from the room. The most alert recruit, the one who correctly identified the “weapon,” just happened to be in the front row, closest to the assault, and seated to one side of the podium, giving him a clear view of the action. The rubber chicken stuck in his memory because he had always enjoyed slapstick comedy and the sight of it was funny to him. Even so, his account was only about 60% accurate. All other accounts were worse.

As with everything about the Erik Scott case, little is known of the facts and of what the Police actually did at every step of the investigation. Exactly how they interviewed the eyewitnesses, when and where, and how they chose those who would testify at the Inquest remains unclear or unknown. It’s obvious that they chose only those witnesses they believed would support their version of the story, but even so, ran into several witnesses who did not hold to the party line. The Prosecutors found themselves in the bizarre and embarrassing situation of savaging their own friendly, supportive witnesses in a hearing without an adversary.

It’s an old legal truism that no attorney should ever ask a question of a witness without knowing the answer they’ll provide. Many unwise attorneys who have done this have found themselves badly embarrassed and have even lost cases. That the Prosecution found itself surprised in a hearing without an adversary, a hearing it totally controlled, a hearing with a predetermined outcome, does not speak of competence, attention to detail, adherence to procedure and careful preparation.

There are questions that any competent officer should ask in evaluating eyewitness testimony. Among them are: Did the Police determine exactly where each witness was standing? Did they have a clear and unobstructed view of the confrontation? Through the entire confrontation, or only portions? Which portions? How much of the shooting did they see? What first called their attention to the shooting? How far away were they standing? Did they stand there watching or dive for cover? Did they see it all, or is their account a mixture of what they heard, saw an