Badges - FW: FORCE SCIENCE NEWS: Transmission #185
- From: Charles Rahn <c.t.rahn@xxxxxxxx>
- To: Badges 1Badge <badges@xxxxxxxxxxxxx>
- Date: Sat, 27 Aug 2011 22:33:12 -0400
August 26, 2011
Force Science® News
Chuck Remsberg
Editor-in-Chief
www.forcescience.org
Interested in earning Force Science Certification? Additional seating is
available in the Force Science Certification Course scheduled for OCT. 17-21,
2011 in the greater Toronto area. To register now, send us an e-mail at:
training@xxxxxxxxxxxxxxxx expressing your interest in the course and someone
from our staff will get back to you promptly to complete your registration and
get you information on the training site and a recommended hotel.
In this edition:
I. Cops not guilty of unreasonable force in mistaken killing of child hostage:
Appeals Court
II. Scan patterns, OIS investigations & the Lizard Brain...
I. Cops not guilty of unreasonable force in mistaken killing of child hostage:
Appeals Court
An internationally publicized case of a tragic shooting in which Force Science
testimony was given has been decided by a California appellate court in favor
of the involved officers.
Controversial from the beginning, the headline-grabbing case concerned a tense
standoff between LAPD SWAT and a drug-deranged father who was holding his
19-month-old daughter in his arm as a hostage and human shield. In a desperate
showdown, officers killed the offender in a fusillade of bullets--but also,
inadvertently, killed the child.
The girl's mother filed suit, claiming the operators' reckless and unreasonable
use of force and negligent disregard of proper police tactics caused her
daughter's wrongful death. At trial, Dr. Bill Lewinski, executive director of
the Force Science Institute, testified on the officers' behalf, describing in
realistic terms the death scene's chaotic climax.
A Superior Court judge ruled that the plaintiff's arguments had no documented
merit and tossed the case. Now the California Court of Appeal has upheld that
decision, in an opinion written by Justice Madeleine Flier. Click here to read
it in full.
THE THREAT. On a balmy Sunday in July, 2005, 34-year-old Jose Raul Pena, drunk,
coked up and meth-addled, depressed over financial problems, and "emotionally
unstable," turned deadly. After threatening to kill himself and members of his
family, he grabbed his baby daughter Suzie and stormed off to the garage/shop
of a small used car lot he owned around the corner from his home in Watts,
where a standoff with responding police officers shortly ensued. Pena claimed
to have access to 2 handguns, a 12 ga. shotgun, and extra ammunition.
"Four times, Pena stood outside the auto shop and shot at officers [with a 9mm
Beretta] as he held Suzie in his right arm as a shield," the appellate decision
recounted. Raving that he was Tony Montana from the movie Scarface, he yelled
"over 10 times" that he was going to "kill Suzie" and take her "to hell with
me," a phrase from the film. According to an investigative report later, he
"told the officers to go ahead and shoot him."
"I'm going to kill my baby before I leave my baby to my wife, that whore," the
appellate decision quoted him as threatening. He said he'd been in the
"Salvadoran military" and knew "how to kill." He also said he'd been in jail
and "wasn't going back." Extensive attempts across nearly 3 hours that late
afternoon to negotiate a surrender of the child, of Pena or of his weapons were
unsuccessful because the hostage-taker "was not being rational and was making
constant threats."
SHOTS FIRED. Five minutes after breaking off communication by disconnecting his
phone, Pena again "exited the auto shop, holding Suzie in his right arm." A
SWAT sniper tracked him via rifle scope from inside a Bear Cat parked outside.
"[H]e saw Pena move his hand as if he were about to remove his gun from his
waistband," the appellate decision stated. "[H]e believed Pena was going to
shoot Suzie." The sniper fired; Pena flinched "as if struck" and stumbled back
inside.
Immediately, the SWAT team leader ordered 4 operators, specially trained in
hostage rescue, to enter the building as a rapid-deployment Emergency Assault
Element under his direction and bring the baby to safety.
"When they entered the auto shop, the officers expected Pena to be on the floor
as a result of [the sniper's] shot," Justice Flier wrote. "[I]nstead he was
positioned in an interior office," still alarmingly alive and alarmingly
deadly. Quickly he fired "at least six shots through the drywall" in the
officers' direction. One round hit one of the rescue team in the shoulder.
The operators said later they did not retreat because their "mission was to
separate Suzie from Pena" and they considered her to be in "imminent peril."
Retreating, their commander said, "would have been a dereliction" of their
duty. Instead, the wounded oprator tossed in a flashbang and the stack surged
in.
Consider the pandemonium. The office was a tight 8 X 12 feet, filled with smoke
and the echoing boom of the grenade. Pena, moving rapidly, continued shooting
at officers while still holding his infant daughter as a shield. All 4 officers
simultaneously fired back, defending their own lives and, they thought, saving
Suzie.
At least 1 of the officers said he was "blinded by muzzle flashes from Pena's
weapon" a few feet from his face, so he could not actually see the child. All
concentrated their fire on their assailant's left side, aware he had
consistently held the baby on his right throughout the standoff. "Together the
officers fired 50-55 shots inside the office within 3.5 to 6 seconds," the
appellate decision said. In all that fateful Sunday, Pena had himself fired at
least 39 rounds before his fatal takedown.
When the smoke cleared, the officers discovered that the baby had been killed,
along with her father. Just who fired the fatal round to her head was never
determined, although the court said the shooter was 1 of 3 members of the entry
team. All carried Colt M4 carbines, according to an investigative report.
"NONSUIT." The sole basis for the mother's inevitable lawsuit claiming
"negligence and wrongful death" was her allegation that "the officers used
unreasonable force" in confronting Pena's deadly threats, the appellate
decision noted. Her only expert witness--a retired LAPD commander who admitted
to having no experience, training, or familiarity in SWAT tactics and
protocol--opined that retreat and more negotiation would have been preferable
to lethal assault.
During the initial 2-week trial in the Superior Court of Judge Rolf Treu in
2009, Bill Lewinski was asked to explain, among other things, how multiple
rounds could have missed the suspect in such tight quarters, including the one
that struck and killed the child. (An autopsy revealed that Pena had been hit
just 6 times.)
That was not a matter of recklessness, Lewinski told the jury, but instead a
common dynamic of sudden, life-threatening confrontations of high stress, rapid
dynamic movement, and short duration.
Drawing on studies by the Force Science Institute and other research groups,
for instance, he documented the typical time required for officers in a
shooting to perceive a given threat, interpret its meaning, decide on a
response, and perform a reaction. That all can occur within mere micro-seconds,
he explained. Yet within that brief timeframe, the scenario they're confronting
can change radically because of split-second movements by the targeted suspect.
Officers might not be able to detect the change in enough time to alter the
rapid-fire action they've initiated.
Unexpected movement by Pena, who was highly agitated and animated, would
account for the failure of the highly trained sniper to deliver an effective
head shot outside the shop and of the operators who stormed the inner office to
put all rounds on their target, despite the close distances. Pena shifting the
little girl from one arm to the other could have brought her into the line of
fire unexpectedly and unavoidably.
"These were elite officers," Lewinski told Force Science News. "If LAPD had a
Delta team, it would be these guys. Yet they still couldn't shoot with total
accuracy in that difficult situation, not because they were recklessly out of
control but because of immutable human limitations.
"Force Science has measured what an 'instant' is in a high-stress encounter and
what people can and can't do in that time. My job was to help clarify for the
jury how our research on human behavior related to what happened in the
confrontations with Pena."
After attorneys for both sides had rested their case and minutes before closing
arguments were to start, Judge Treu abruptly called a halt to the trial. In
response to a defense motion, he found that "reasonable jurors here could only
draw one conclusion from the evidence presented, and that was that the
officers' use of force was reasonable." In short, the matter was a "nonsuit,"
and he issued a directed verdict aborting the case.
It was this ruling, challenged by the plaintiff, that the appellate court
upheld.
APPELLATE REASONING. In the appeal, the plaintiff's attorneys argued that
Treu's nonsuit ruling was improper because no probable cause had existed either
for the sniper's initial use of deadly force against Pena or for the rescue
team's use of lethal force during its final assault.
The appellate decision characterized this claim as a "nonsensical
interpretation of the evidence."
The evidence was "overwhelming," Justice Flier wrote, "that Pena posed a danger
to Suzie," even though he did not point his gun directly at her. He had made
numerous verbal threats to kill her, and the sniper was "not required to wait"
until Pena pointed his gun at her and actually "pulled the trigger to conclude
that [the] threats were real and exposed Suzie to great risk."
As for the final shootout, the appellate panel agreed with the trial court that
the operators "had probable cause and rights within their discretion to go in
after Pena, particularly since there were shots fired from inside the room out
and the officers could reasonably have believed [these] may involve Suzie."
Addressing the multitude of rounds fired, the officers' "concurrent shooting
multiple times at Pena cannot constitute excessive force under an objective
standard," the appellate decision stated. Case law has established that the
"number of shots by itself cannot be determinative as to whether the force used
was reasonable. That multiple shots were fired does not suggest the officers
shot mindlessly as much as it indicates that they sought to ensure the
elimination of a deadly threat."
Any belief by the plaintiff "that the officers should have stopped after each
shot and assessed its effect" when Pena was shooting directly at them was
unrealistic from "the perspective of [a] reasonable officer at the scene," the
court declared.
Tragic as the unintended death of the child was, the decision concluded,
"retreating when Suzie remained in danger would have been a dereliction of
duty.... [C]onsidering the exigency of the circumstances," the officers acted
properly in pursuing the father who threatened her life and "used reasonable
care in employing deadly force."
II. Scan patterns, OIS investigations & the Lizard Brain...
Two new publications and a creative YouTube video of interest to law
enforcement trainers and other Force Science aficionados:
• First, a full report on the groundbreaking Force Science study of scan
patterns in potential threat situations is now in print in the professional
journal Human Movement Science.
This study, conducted by Dr. Joan Vickers of the University of Calgary and Dr.
Bill Lewinski of the Force Science Institute, used sophisticated technology to
track the respective gazes of elite SWAT team members and rookie officers as
they watched a role-playing scenario gradually evolve into a deadly force
encounter. Because of their distinctive scanning patterns, the highly
experienced subjects proved much faster and more accurate in anticipating and
responding to threats than those new to the street.
Ultimately, this information is expected to prove valuable in recruit and
in-service firearms training, hopefully hastening the speed with which officers
can develop optimum scanning habits.
Force Science News reported on these findings in Transmission #104, sent
8/22/08. For complete details, the Human Movement report is available at: by
clicking here. The journal requires a fee for access beyond the article's brief
abstract.
Vickers also presents findings from this study and her other eye-movement
research during a presentation at the certification course for Force Science
Analysis.
• Certified Force Science analyst Kris Pitcher writes in Law and Order magazine
on "Maintaining Investigative Credibility" in critical use-of-force cases.
Pitcher draws on his first-hand experience as commanding officer of the LAPD's
Force Investigation Division to offer practical tips to agencies on assuring
public confidence as they search for the truth in controversial force events.
You can access the article free of charge by clicking here
Pitcher, incidentally, was involved in the investigation of the Pena shooting
described above. He is also scheduled as a faculty member for the Lethal and
Less-lethal Force seminar, presented Oct. 10-12 in Las Vegas by Americans for
Effective Law Enforcement, along with other certified Force Science Analysts
Dr. Alexis Artwohl and Greg Meyer. More details on that seminar are at
www.aele.org/menu-lethal.html.
• Finally, check out this clever video on YouTube at:
www.youtube.com/watch?v=ImMBiqM62jk
Using a cartoon format, it's an easy-to-follow description of the human
amygdala (the so-called "Lizard Brain"), which "regulates emotions and
activates the body's earliest warning system for danger so survival actions can
follow."
In particular, the narration explains how hypervigilance fostered by the impact
of police training and working conditions on the amygdala can affect officer
interactions on the street both positively and negatively.
"Our hope is that this video will help the public and officers alike better
understand some of the police behavior they may see on TV or encounter
first-hand," says Jack Colwell who, with his long-time training partner Charles
"Chip" Huth, was the creative force behind the production. Huth is a certified
Force Science Analyst and together they've also written the book Unleashing the
Power of Unconditional Respect: Transforming Law Enforcement and Police
Training.
At the moment, the video is available only on YouTube but can be downloaded for
roll call training, Colwell says. Eventually he and Huth hope to have a system
in place that will allow them to search Twitter and other social media for
people who are expressing concerns about law enforcement experiences.
"About every 30 seconds somewhere in the U.S. someone is Tweeting about
frustrations or criticism involving the police," Colwell says. "Our goal is to
be able to 'capture' these individuals online and refer them to the video as a
means of broadening their understanding and hopefully easing or eliminating
anti-cop sentiments."
Force Science board member Dr. Alexis Artwohl, internationally recognized for
her research into the psychological effects of police shootings, was a key
consultant on the video project. Dr. Kevin Gilmartin, also an FSI board member,
is quoted in the narration. More productions in a similar format are planned,
Colwell says.
For more information on the Lizard Brain production and Colwell's and Huth's
other projects, contact them at: unleashingrespect@xxxxxxxxx
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(c) 2011: Force Science Institute, www.forcescience.org.
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