November 20, 2017

Justine Damond: Panic

Justine Damond

As expected, additional information in the Justine Damond case is rapidly coming to light. Let me, however, caution you yet again, gentle readers. We are still far from certainty about much of what happened in Minneapolis on July 15. When a definitive version of the incident is released by the police, and I suspect that won’t take long, I’ll surely have to revise some early details and assumptions. Let us begin, courtesy of The Daily Mail, with the 911 call that began the chain of events ending in Damond’s death:

“Incident Number: 17-265936 July 15, 2017; 23.27:02

Time: 23:27:02

Operator: 911, what’s the address of the emergency?

Caller: Hi, I’m, I can hear someone out the back and I, I’m not sure if she’s having sex or being raped.

Operator: Give me the address.

Caller: XXXX Washburn Avenue South.

Operator: Washburn Avenue South. You said it’s behind (inaudible)?

Caller: And there’s a (inaudible) out the back, yup, yup. And I think she just yelled out ‘help,’ but it’s difficult the sound has been going on for a while, but I think, I don’t think she’s enjoying it. I think it’s, I don’t know.

Operator: Okay, already got a call started and help on the way. Uh, you can’t see anything, you’re just hearing a female screaming then, is that what you’re saying?

Caller: Yeah. It sounds like sex noises, but it’s been going on for a while and I think she tried to say help and it sounds distressed.

Operator: Okay, I’ve already got an officer on the way. What is your name?

Caller: JUSTINE.

Operator: JUSTINE, what’s your last name?

Caller: JUSTINE.

Operator: JUSTINE.

Caller: Yeah.

Operator: And a phone number?

Caller: REDACTED

Operator: Okay, we’ve already got help on the way. If anything changes before we get there just give us a call right back, but officers should be there soon.

Caller: Thanks.

Operator: Okay, not a problem.

[DAMOND CALLS BACK AT 23.35:23]

Operator: 911, what is the address of the emergency?

Caller: Hi, I just reported one, but no one’s here and was wondering if they gotthe address wrong.

Operator: What’s the address?

Caller: XXXX Washburn Avenue South. It supposed to be Washburn Avenue South.

Operator: Are you JUSTINE?

Caller: Yeah, (inaudible).

Operator: You’re hearing a female screaming?

Caller: Yes, along behind the house.

Operator: Yup, officers are on the way there.

Caller: Thank you.

Operator: You’re welcome, bye.”

This transcript fills in a bit more of the time frame. Damond’s first 911 call was received at 2327 (1127 PM), but she called back at 2335, some eight minutes later. According to the only available transcript of the radio call to the officers, they received only two terse sentences containing little information: Squad 530 to 5024 Washburn Avenue South. Female screaming behind the building.” Also disturbing is they apparently asked no questions of the dispatcher. Any competent officer would want as much information as possible, but they may have already been present, and if so, were watching the alley, so felt no need for additional information. It remains possible they received more information, which could be a significant factor in this case, but we just don’t know at the moment.

What remains missing, and has yet to be explained by any media account I’ve seen, is precisely when the officers arrived. As I noted in the first article of this series, The Justine Damond Case, #1: Tribal Politics, the radio dispatch transcript suggests that only three seconds elapsed from the end of the dispatcher’s transmission sending the officers to the alley behind Damond’s home, and Officer Harrity calling “shots fired.” This suggests the officers were already present for some period of time before Noor shot Damond. If this is so, the amount of time they were present in that alley, and precisely what they were doing during that time, are vital factors. The radio traffic between the officers and dispatcher indicates the officers called for an ambulance at 2345, which means Damond was probably shot sometime between 2337 and 2342, a five minute time frame, giving her enough time to go outside to meet the officers, and perhaps a minute or two to speak with them before being shot. The other possibility–which seems strong at the moment, is she was shot immediately as she approached their car.

Currently available information provides some information about what the officers did, but not the time frame. The Guardian explains:

The attorney for a Minneapolis police officer whose partner fatally shot an Australian woman has said it was reasonable for the officers to have believed that they might be targets of an ambush.

Officer Matthew Harrity told investigators he heard a loud sound before officer Mohamed Noor shot 40-year-old Justine Damond.

According to the Minnesota bureau of criminal apprehension (BCA), Harrity told investigators he and Noor were in a squad car on Saturday when the sound startled Harrity. Damond appeared at the driver’s side door and Noor shot her from the passenger seat.

Harrity’s attorney, Fred Bruno, told the Star Tribune ‘it’s certainly reasonable’ to assume any officer would be concerned about an ambush. He referenced the recent death of a New York City officer killed in her squad car.

Perhaps, but what Bruno is implying may not be reasonable. It’s interesting he is bringing this up on behalf of Harrity, who to this point did not seem to be in legal jeopardy. Perhaps Bruno is just being overly careful, or perhaps Harrity may have more legal liability than what is currently known might indicate.

Officer Noor has so far declined to be interviewed. Investigators say they cannot compel officer Noor to give an interview. [skip]

In a news conference Tuesday after the BCA’s update, Mayor Betsy Hodges said she wished Noor would speak to investigators. ‘It’s frustrating to have some of the picture but not all of it,’ she said. ‘We cannot compel officer Noor to make a statement. I wish we could. I wish that he would make a statement.

In the current political climate throughout America, any officer facing legal jeopardy would be a fool to submit to an interview without taking the time to consult with an attorney. All citizens, including police officers, may exercise their right against self-incrimination (5th Amendment). However, police agencies may discipline, including termination, any officer that refuses to write a report and/or submit to interviews about their official actions. However, in this case, Harrity’s testimony may force Noor to give an interview. I still cannot imagine any mitigating factors that could possibly excuse Noor’s shooting of Damond. The primary issue his attorney is surely wrestling with is what will be most damaging to Noor: telling his story, or remaining silent?

“Harrity said that he and Noor saw a man, estimated to be between 18-25 years old, bicycling in the area before the shooting. That man stopped and watched as officers attended to Damond. BCA agents are asking that man, and any other potential witnesses, to come forward.

The BCA said that unless more people come forward, there are no additional interviews scheduled.”

This may not accurately reflect what Harrity said to the BCA, and may merely be the Guardian’s formulation, but “…stopped and watched as the officers attended to Damond,” if an accurate reflection of Harrity’s statement and intent, may be very damaging to Noor. It suggests they actually acknowledged and spoke with Damond for some time prior to Noor shooting her. If so, they had time to assess her and learn she was the caller, something any competent officer would try to immediately establish. This would seem to eliminate at least one potential claim I’ve seen in the media: that Damond struck the roof of the police vehicle with her hand, startling the officers and causing Noor to immediately shoot her, as The Daily Mail reports:

“The cop [Noor] has told friends about why he gunned down the bride-to-be, 40, in his first account of what happened Saturday night.

DailyMail.com has spoken to those friends to reveal for the first time his account of what happened that night.

The fact Noor has disclosed the events of the evening to friends will raise questions over his conduct.”

They do indeed:

“Speaking on the condition of anonymity, a friend of Noor told DailyMail.com that the officer had opened fire when an unidentified figure emerged from the dark and ran towards the vehicle.

The officer said he was not sure what the person was carrying and momentarily opened fire through his driver-partner’s open window.

It was confirmed that Justine’s cell phone was found alongside her during the tragedy.

Noor told associates it was dark and the situation was already tense as the caller had been ‘panicking’ when making the 911 call reporting an assault in the alley beyond where Justine lived with her fiancé and his son.”

If this is accurate, Noor is in trouble. Granted, I’ve not heard Damond’s two calls, but the transcript does not in any way suggest panic, and the available radio transcript does not contain any mention of panic or a tense situation. The dispatcher is calm and the call, utterly routine. Of course, this is second hand, but Noor may have been describing his own emotions and reactions and projecting them on events, which is not uncommon for inexperienced officers.

“The squad car, driven by his partner Matthew Harrity traveled hastily down the unlit alley between Washburn and Xerxes avenues south from West 50th Street toward West 51st Street.

‘Crucially, the vehicle did not have its lights on and this may have been so as not to give any suspect notice that police had arrived and buy precious time to apprehend the target. That the car was unlit was disclosed by Harrity to the BCA.

Both Noor and the BCA’s version of events agree on the car’s lights being off.”

Turning off lights is a common, and an appropriate police tactic. The interior lights of most police vehicles are deactivated, and they have switches to turn off their tail/brake lights. The smart thing to do, however, would have been to park away from the alley and proceed on foot. Being caught in a police vehicle, if they were really afraid of an imminent ambush, is plainly stupid. The interiors of contemporary police vehicles are full of equipment and tight. One can’t dive under a dashboard to avoid incoming fire, and it’s difficult to draw a handgun. Better to be outside where one can see and hear much better, where bad guys can’t see and hear a car coming, and where one can take advantage of cover and concealment, of which there was a very great deal present. Here’s where things become bad for the officers, particularly Noor:

“According to Noor’s version when they reached the end of the alley, they came across a waiting, panicking figure.

It was dark, and the figure was moving around and approached their vehicle.

Noor said he did not know whether the figure who rushed towards their vehicle was the 911 caller or even if it was a man or woman.

He fired his weapon through Harrity’s open driver’s window hitting his victim once in the abdomen.”

“Panicking”? How so? If it was so dark they could not so much as  this figure as male or female, how did they know they were panicking? Several media accounts suggest there were no fewer than three streetlights in the area, and multiple security lights on garages. The biggest problem for Noor with this account is he apparently had time to see and identify Damond, yet apparently did not use the vehicle’s headlight, it’s spotlight, or his personal flashlight, nor did Harrity, but we don’t know everything Harrity said.

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This account suggests Noor had time to observe the person coming toward them, yet sat, doing nothing, in the police vehicle. Any competent officer, being rushed by a mysterious figure out of the dark, would, at the least, throw the vehicle into reverse and get out of there, of get out of the police vehicle behind cover, ready to maneuver, to say nothing of trying to illuminate them as soon and completely as possible. If they were so incompetent as to be utterly surprised by Damond, allowing no time to react, that’s also an enormous legal problem. Any competent officer would also, while doing what I’ve described, be ordering that mysterious person, loudly and repeatedly, not to move.

“The friend said: ‘Mohamed believes he acted to protect himself and his colleague, but accepts since that she was not armed.

‘It was over in seconds and it was a very tense moment. He is sorry for the woman and her family.

‘But he would never have opened fire without genuinely feeling in danger.”

The ultimate question is: would a reasonable police officer in the same situation have felt he was in deadly danger? Would he have done as Noor did? It is never enough to “feel” in danger, unless there is actual danger any reasonable officer would perceive. That’s a question I’ll address tomorrow, as I address the requirements for the use of deadly force, requirements that apply to the police as well as everyone else.

Also as expected, here comes the racism, tribalism, diversity and social justice:

“The officer, who is now suspended from the Minneapolis P.D., feels he has been ‘thrown under the bus’ by his Minneapolis police colleagues, the friend said.

‘He is aware that they normally come together at times like this and support each other with slogans like “Blue Lives Matter”.

‘But in this situation he has realized he is probably alone with his legal team and Somali police colleagues.

‘He feels like he is being thrown under the bus and his colleagues are accusing him of not showing proper police conduct on Saturday night.

‘His feeling is ‘I am an immigrant, a Muslim and not white… but that is OK as I know the Somalian community and friends will support me.’

Friends say they would soon be starting fund raising to help meet his legal bills among the Somali community.”

 Will the race and Islam cards work in Minneapolis? The Daily Mail’s account differs from The Guardian’s:

“Police said Harrity had indicated he heard a loud sound near his car, in the seconds before his partner Noor opened fire.

Investigators are searching for a cyclist who may have important information about the shooting.

He was white, male and aged between 18-25 and may have stopped and seen the aftermath as medical assistance was applied.”

Now we have a version where Harrity, and presumably Noor, heard a ”loud sound” only seconds before Noor shot Damond. And rather than the mystery cyclist seeing the officers “attending to” Damond, and presumably shooting her, the Daily Mail’s cyclist “may” only have seen what happened after Damond was shot, which if true, would make their statement of minor interest at best.

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FINAL THOUGHTS:

The establishment of a complete, accurate time frame is of utmost importance in any case, but particularly in police involved shootings. It tells investigators what is not only possible, but impossible, what could have happened, and what could not. If the BCA does not establish a complete time frame, that’s a flashing, red light of a cover up.

We apparently know from the end of Damond’s second call, until she was shot, only about five minutes elapsed, which strongly suggests the officers were already present in the alley. This is likely not sinister, but absolutely vital to know to determine what actually happened.

I’ve also seen a media account that suggests Harrity told the BCA Noor had his handgun in his lap because he was spooked by the situation. Everything we currently know suggests Noor was not in control of himself, and either hearing a loud noise, or seeing a dark figure approaching the police vehicle, immediately shot them. Which is worse? A police officer on a call hears a nearby noise and immediately shoots the first shadowy figure he sees, or sees a dark figure coming toward his police vehicle, but waits until they are at the open driver’s window to shoot them without identifying them or their intent?

Are those the sort of people the elected officials of Minneapolis want in uniform? When startled, they shoot the first person they see?

Police officers are trained to keep their heads when all about them are losing theirs. They are trained to exercise sound judgment under stress. They are trained to shoot only when they can clearly identify their targets and their backstops. They are trained never to shoot until they know, beyond any doubt, they are in imminent danger. I cannot imagine any way to justify either of these unprofessional, panicky possibilities, unless of course, the Minneapolis Police Department and Government hold two standards for police officers: one for white officers, and one for black officers, Somali officers, Muslim officers…

The Minneapolis PD is apparently reviewing its body camera policy. No one should read too much into this issue. I’ve seen some accounts suggesting the brand of cameras PD officers wear continuously record 30 second loops before activation. If so, much, if not all, of the encounter with Damond should be on audio at least. However, even that may not be usable. Body cameras are nice to have, but do not always tell the story, or even a significant part of it.

I won’t pursue the racial angle further for the moment, other than to note that civilization is possible only when humanity moves away from tribalism and builds a Republic, like ours, with equality for all under the rule of law. When that Republic backslides into tribalism based on gender, race, nationalism, faith, etc., civilization cannot endure. Minneapolis has been a tribal-favoring government for many years. This case may dramatically expose the dangers of that approach.

Don Damond would be wise to hire an attorney, who must immediately move to preserve all field training documents, evaluations, internal investigations, and any and every other document or bit of MPD testimony relating to Noor. Depositions of all of his trainers and supervisors will also be essential. I suspect there will be much there for a civil suit. I also suspect the City will do its best to trick Damond into a settlement that will keep a lid on this situation.

One final issue: in death, people are often enlarged beyond what they were in life. As I recently noted, Trayvon Martin, a drug-using thug wanna-be, has suddenly become an aspiring pilot.  There were no real attempts to lionize Freddie Gray, and few with Michael Brown, however, Justine Damond was no criminal, and was by all accounts, a good woman and honorable citizen, as this Daily Mail account of her rescue of eight ducklings, reveals:

“Ms. Damond, whose maiden name was Justine Ruszczyk, but used the surname of her American businessman fiance Don Damond, can first be seen climbing down a drain.

With her Australian accent easily distinguishable she can be heard explaining to her neighbour Angela Jimenez, who is holding the video camera, what she plans to do.

‘I’ve got them in my skirt, I’m just going to go with the mum either up here or straight to the lake,’ Ms Damond said.

More tomorrow.