Reporter Feeder 
Member since May 6, 2017


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Re: “Over a Barrel

Of course, you are making the same mistakes the trial court did in accepting the legally and factually flawed assertions made by plaintiff's counsel. Andy did not turn in response to the command given. He turned in spite of it. The command was to "drop the gun". As for the court's conclusion that the barrel was not high enough to have presented a threat, that would be wrong as both a matter of law and fact. The tiny fractions of a second from vertical to horizontal are not relevant - if it is moving, the decision time is already present and may have passed. Deadly force in self-defense is preemptive, and does not require waiting until the potentially lethal threat is present - it need only be imminent.

The trial court disregarded a long line of Constitutional case law on the 4th amendment and the use of force, especially deadly force, and also disregarded the professional knowledge on the assessment of threat, which is why the County appealed. (I saw you inquired in response to another article if this was the County's second trip to the 9th Circuit - no, it is not.) Part of the problem here is systemic - plaintiff's counsel in use of force cases (as a group) have for so long provided garbage analysis to courts, and defense counsel have done so badly at correcting these frivolous pleadings, that the federal bench (again, as a group) has been making decisions based on flawed/dishonest assertions for years. (An expert I know recently made a presentation to the Bench and Bar of another circuit, and was thanked by judges for telling them things of which they had never been informed. This gap of simple foundational knowledge is due to the lies of the plaintiff's Bar and the failures of defense counsel.) In this case, plaintiff's counsel knows that his purported "expert" does not even support the original position asserted in his disclosed analysis, and in spite of the mandate of the ethics rules, has never informed the Court of this information.

2 important admissions I will make. 1) FORCE IS UGLY. EFFECTIVE FORCE IS UGLIER. That does not make it wrong. It does ensure that the vast majority of decent people will have a visceral response that will at a minimum make it difficult to apply the objective analysis required by the law. 2) The shooting is unfortunate, even tragic. However, Andy created all of the facts and circumstances that made it appear that he was simply another violent or potentially violent criminal in a neighborhood heavily impacted by them. Cops can only react to what they perceive and what the reasonable analysis of those perceptions is.

I've dealt with kids and young adults whose conduct bordered on similarly stupid, but who at some critical point grasped the seriousness of the situation and did not take it enough farther to get themselves hurt or killed (by myself, another cop, or a private citizen). This is a kid who did not stop in time. There some number of similar events around the country every year in which someone uses a replica firearm in an honest to goodness crime and gets shot. That is never the fault of the person who reasonably believes that they are risk of death or great bodily harm, and thus uses deadly force.

0 likes, 5 dislikes
Posted by Reporter Feeder on 05/06/2017 at 11:57 AM

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