December 16, 2017

Justine Damond: Rights And Responsibilities

By: Mike McDaniel    It is easy, when one has extensive experience in a given profession, to take some things for granted. Particularly in police work, it’s easy to forget that virtually anyone without extensive police experience has little idea of the attitudes, expectations, policies, procedures, and of course, the laws that come more or less naturally to police officers. So it is, apparently, in my discussion of the shooting of Justine Damond by Minneapolis police officer Mohamed Noor.

It’s rather like education. Virtually everyone has had 12 years of public education, so all have opinions on teaching and education in general. They don’t realize that as with all professions, absent actual experience, one’s opinions tend to be uninformed, and sometimes embarrassingly so. So it is with police work. We’ve all seen many cop TV shows and movies. We’ve heard about “taking the fifth,” and perhaps even the 4th Amendment. We’ve heard the term “probable cause,” but none of that is illuminating. None of that tells us what we need to know. Most of what we’ve seen on TV and in the movies is wrong.

I know most of these articles are longer than the 1500 word or less Internet standard, but because we’re dealing with significant issues that require explanation and analysis, that’s necessary. Those seeking superficial headlines and reiteration of facts and assertions from other sources need only search elsewhere. Actual police work is all about details, and so is writing about it.

I’m taking a little break from the substance–more or less–of the Damond case to address two lengthy comments by two readers of Update 7.2, 

which analyzed the two search warrants used in this case. I’ll get to them shortly, but first we must revisit two MPD transcripts. The first from The Justine Damond Case, Update 2: Police Panic,

the transcript of Damond’s two 911 calls:

“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. [skip]

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 got the 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.

Justine Damond

I left out a short portion of the transcript for brevity’s sake. You should, gentle readers, take away these salient points:

*Damond did not report a rape. She reported someone out the back who might be engaged in sex, or possibly being raped. She said “it sounds like sex noises,” “it sounds distressed,” and it had been going on for some time. In essence, the police classified it as a noise complaint, not a felony crime in progress.

*Damond’s second call was in response to the operator specifically asking her to call back “if anything changes.” That, and because seven minutes elapsed and no officers arrived, she wanted to be certain she gave the right address.

Now, the second transcript, the dispatch call to Officers Noor and Harrity, from the first article in this series, The Justine Damond Case, #1, Tribal Politics. 

“Dispatch: ‘Squad 530 to 5024 Washburn Avenue South. Female screaming behind the building.’

Officer on scene: ‘530, uh, shots fired. Can we get EMS Code 3 Washburn and 51st Street? We got one down.’

Dispatch: ‘Copy. Shots fired at Washburn and 53rd Street. Correction 51st. Sergeant to acknowledge shots fired and one down at Washburn.’ [skip]

Dispatch: ‘530 Code 4 for medical at 23:45.’

Officer: ‘530, there are no suspects at large.’

Dispatch: ‘Copy 530, no suspects at large.’

Officer: ‘520, where is EMS on this?’

Dispatch: ‘EMS is coming. Rescue is coming.’

Officer: ‘502 they’re behind me at 53rd and Oliver.’

Unknown: ‘Rescue’s arrived….”

Again I omitted a short section of radio traffic for brevity’s sake. This transcript is not time coded, so it’s difficult to know when things happened, with one exception: the dispatcher acknowledged the officer’s transmission about medical help at 23:45, some ten minutes after Damond’s second 911 call to the operator. As I noted in the first article, one strange aspect of this case is the officers seem to have reported they shot someone as soon as they received the call. Whether this indicates they were already in the area somehow, shot Damond before getting the call, the transcript has been edited, or some other anomaly is involved is unknowable for the moment. Here’s what’s significant:

*All the officers knew was a “female was screaming behind the building.” They were not sent to a rape in progress or any other specific classification of call. They would have viewed it as a noise compliant, certainly not a rape in progress.

*Within minutes, perhaps seconds, the officers report there are “no suspects at large.” How they knew this or why they reported it remains unknown, but this would be what every officer involved knew from that point forward.

With this background, we’ll address reader Sailorcurt. I’ll be omitting some of his commentary for brevity. Readers can take the links to find any omitted materials.

“The first thing that strikes me is your presumption that the police should arbitrarily rule out other possibilities simply because of the information they have at this point and assumptions associated with that information:

To wit: The 911 caller reported screaming outside her home, the affidavit stated ‘at the residence’ it didn’t say inside or outside, just ‘at’. Should the police assume that the information about the screams coming from outside were accurate? Or should they check to see if anything happened inside the home? I’d say it’s perfectly legitimate for them to check to see if anything went on in there.”

In analyzing any police officer’s actions after the fact, the standard is not what should have happened in a perfect world, but what the officer knew, or what any reasonable officer in the same situation should have known or done at the time. One must, of necessity and law, rule out what an officer did not know, or reasonably could not have known. In this case, the BCA had no reason to think any crime took place in Damond’s home. All the information anyone associated with the police had was a woman was making sex sounds, perhaps screaming, somewhere behind Damond’s address, and the officers were told less than that.

This type of call is common. People do odd things, and officers often find themselves confronting people having sex in unusual places, or in their own backyards. Some just get carried away, some like to do it in public–more or less. Any professional officer getting this call would not immediately suspect danger. They’d be cautious, approach wisely, be tactically smart–and these officers were not–but this call would be pretty routine, and experienced officers would expect to find a couple showing off or forgetting where they were in the throes of passion, perhaps a couple having a noisy argument, but no more.

“You seem to think that because they acknowledge an ‘officer involved shooting’ they should have just assumed that the victim was shot by the cop and not injured in some other way. Yes, they knew that the officer had fired his gun, but should they just automatically assume that his aim was true and that he actually hit the victim, or would it be legitimate for them to with-hold judgement on that point and investigate all possibilities…i.e. that the victim had been injured before approaching the car and the shot(s) missed? I’d say that scenario is very unlikely…but impossible? No. Worth checking out? Yes.”

When a cop uses the term “officer involved shooting,” that means only one thing: a police officer shot a citizen. There is every reason to believe Harrity, while at the scene, told his superiors, and the BCA, what happened. Noor may have made an incriminating utterance or two, and his supervisors should surely have taken his gun and magazines into evidence on the spot. This, as well as the easily observable evidence, would preclude any other possibility.

“If they don’t make any assumptions about whether the victim was injured by gunshot and entertain the possibility, however unlikely, that the victim was injured elsewhere and/or by other means and just died at the scene (provided that the officer’s shots missed), wouldn’t it be a legitimate line of inquiry to check the house to see if there’s any evidence there that the victim was injured inside the house before coming out?”

All investigators have to make assumptions, or they have no idea how to proceed. Again, this was is not a complex case. Even if they thought Damond was shot before she came to the police car–and they did not–that doesn’t automatically lead to a search of her home, and the generic nature of the affidavit indicates clearly they had no such theory.

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This is important: Under the 4th Amendment, no place has greater protection from unreasonable searches and seizures than one’s home. That’s why the Founders specified the police must be able to particularly describe what they’re looking for and produce probable cause to justify the search. A general list from a criminology 101 text is woefully insufficient. If the officers believed Damond had been shot in her home, and therefore needed to search it for evidence or suspects, they were absolutely required–no generic shortcuts–to say why they believed that to be true, and precisely what they were looking for. They didn’t; their claims of what they sought were weak and pathetic. In fact, minutes after shooting Damond, the officers radioed there were “no suspects at large.” Why? Because there were none. There was nobody but the two of them and a dying Damond in that lonely alley.

But shouldn’t they have found someone yelling or having sex? No. Many such calls are resolved when the officers arrive, hear and see nothing–whatever was happening was already over–and because of the 4th Amendment, don’t trespass just to be certain no one is doing anything illegal anywhere.

“In this case, the probable cause to believe a crime had been committed was laying on the ground in the alley. It was pretty clear-cut. At that point, the investigator’s job is to look into all possibilities to determine what actually happened and rule out any other possibilities, however unlikely.”

Yes, and they knew who committed it, where and when. There was no evidence that would lead them to search anywhere else. Remember: BCA investigators had hours to sort out a very simple crime scene where the victim, suspect, weapon, witness and all related evidence were immediately at hand. They had no reason to think any evidence would be found in Damond’s home, a point I repeatedly made in Update 7.2 (Sailorcurt admitted he didn’t read the entire article before commenting). Their affidavit did not, in any way, suggest Damond had been shot or otherwise harmed in her home, nor did it ask to search on that basis.

“During a trial, what competent defense attorney wouldn’t raise the possibility that the victim had been shot before ever approaching the Police vehicle? How could the investigators deny this possibility if they never investigated it?

I’d say searching the house was just covering their bases and being thorough. I see nothing nefarious in this.”

Defense attorneys will raise any possibility, including alien abduction. That’s their job. The investigators would present the testimony of Officer Harrity, and the physical evidence, which necessarily excludes other possibilities. The police may not be thorough if doing so violates the law. None of us want the police to have this power.

Reader PuttingOnItsShoes also raises some interesting issues about what we expect of our police officers, and what they expect of themselves:

“It appears you want to avoid the obvious truths in this situation, namely, that Justine precipitated out of thin air, a crisis of her own making that resulted in a chaotic and tragic ending for her.

She imagined an ‘assault’ that didn’t exist. There were many houses on the street, and no one else heard anything or called 911.

Subsequently, all evidence indicates that there was no distress or assault that warranted a 911 call to begin with.”

There is no evidence to suggest Damond imagined an assault, and that was not what she reported. We don’t know that others didn’t call about that noise, but even if they did not, that would not be in the least unusual. Many people don’t report things to the police, and in the summer, with air conditioning on and windows closed, many people hear little or nothing going on outside their homes. Many, at that time, would have been sound asleep. The transcript indicates a concerned citizen, calm and collected, and worried about the welfare of others, nothing else.

“She went outside when, by her own statements, a woman was being assaulted. My wife and daughters are trained not to do something so stupid.”

We do not know precisely why or when Damond went outside, but doing so is neither illegal, wrong, or inherently dangerous. We don’t know what was happening.

“She banged on then rushed up on the police with no announcement, while they were responding to an (alleged) dangerous assault, in the dark, with no warning.

The police weren’t ‘unreasonably’ startled, they were just ‘reasonably’ startled because of her really stupid actions.”

We do not know Damond banged on the police vehicle, nor do we know when or in what manner she approached it. The police have reportedly not said Damond banged on the vehicle, only that a “woman” may have “slapped” the car. The officers knew only they were responding to a noise complaint, possibly with a “female screaming.” Police officers work 50% of the time in the dark. We expect them to deal with it effectively. They have flashlights, but these officers, by virtue of a bad tactical choice, not in a position to use them.

It was Officer Harrity that reportedly said Officer Noor was “startled.” Being startled is not the problem; what Officer Noor allegedly did in response is.

We must be very careful in hiring, training and retaining police officers. If they are no more capable of dealing with potentially startling and dangerous situations than Joe Average, why do we need police? The fact is, most people are not qualified to be police officers. Among the most important factors to be found in police recruits is the ability to multitask, to consider multiple inputs simultaneously, and when situations are ambiguous, stressful, dangerous, to react properly, each and every time. No police officer can say: “I reacted properly 99 out of 100 times, so the one time I killed somebody because I freaked out should be excused.” Every cop is 100% responsible for their actions 100% of the time, and they know and accept that, or they find another job. We are willing to loan the police our collective powers because we expect nothing less.

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If we assume Justine Damond did, in fact, slap the vehicle and then approached the driver’s door, is Officer Noor’s shooting of her thereby excused? Absolutely not. At the moment, that’s all we know she may have done. No threatening motions, no verbal threats, nothing a reasonable police officer could have interpreted as a deadly threat. It doesn’t matter that wasn’t the smartest thing Damond–or anyone–could have done. It doesn’t matter that it was dark. What matters is if every citizen cannot believe that innocently approaching a police officer will not result in their death, we’re in real trouble. Even if that is what Damond did, and we don’t know that, there is no correct, lawful protocol for approaching a police car. Even if it was unwise, it was not cause for shooting.

When a police officer shoots a citizen, particularly a person who is trying to report a crime and is not in any way a criminal engaged in criminal activity, it is the responsibility of the officer–no one else–to prove beyond any doubt he was absolutely justified in shooting that person at that specific time and place. This is the law. Every police officer knows and accepts it.

“She was a ‘faith-healer’ which mean she believes in superstitious non-scientific things, and doesn’t fully operate in the ‘real world.’

She had a complex of seeing herself as a savior, and this caused her to be overzealous in
~first reporting something that didn’t happen (twice),
~second going outside in a dangerous situation,
~third, running down the street after a police car and banging on it,
~fourth running up to the window in the dark with a cellphone in hand.”

There is no known evidence that Damond was a “faith-healer,” in the commonly understood meaning of that term, and even if she were, it would have no bearing whatever on this shooting. There is no evidence she saw herself as a “savior,” or that she was an overzealous personality. Don’t we want citizens to report when someone might be in trouble? I’ve already addressed the first three points. As to the fourth, we have no evidence Damond was running, or that if she were, it had any bearing on this case. The known evidence suggests when Damond appeared at the open window, Noor immediately shot her, of necessity firing his handgun in the face of Officer Harrity. He apparently knew none of the actions PuttingOnItsShoes suggests preceded the shooting.

“I can’t expect the police to be able to sort all that out in split second. Civilians need to exercise some common sense around armed emergency responders, who are in the middle of an adrenaline release and believe something dangerous was going on.

I am not worried about a ‘regime’ where such a sequence is problematic. People can’t be dumbshits.”

We can indeed expect the police to sort all that, and more, out in a split second. That’s exactly what we vet, hire, train and expect them to do. We hire them to handle the difficult, split-second decisions, not the easy things anyone could do. We expect them to be able to deal with adrenalin. Cops get scared just like anybody else, but we expect them, through training and experience, to be able to deal with it in ways others can’t. Police officers evaluate each other and themselves every day. They’re only as good as their last arrest, as their last citizen contact. The police know that officers that can’t make those split second decisions are not only dangerous to the public, but to other officers, and they do all they can to get rid of them, or failing that, they avoid them like the plague.

People are, occasionally, “dumbshits.” It would be nice if they weren’t, but they do foolish, panicky, dangerous, ridiculous, jaw-droppingly amazing things. Absent doing something a reasonable police officer would believe presented an imminent threat of serious bodily injury or death to themselves or another, people are allowed to do all those things without fearing being killed by the police.

FINAL THOUGHTS:

I can’t emphasize strongly enough two points to keep in mind in this case:

1) The 4th Amendment is of supreme importance. It is one of the foundations of our liberty, written because of a long history of governmental abuses. Violations of the 4th Amendment must always be treated with the utmost seriousness, for every violation harms us all; it harms liberty.

2) If we cannot expect police officers to be able to properly handle split-second, stressful decision-making, we are doomed. All of our lives hang in the balance.

Consider, please, that whenever a dictator seizes power, among the first rights destroyed are the right to bear arms, and the right against unreasonable search and seizure. The dictator’s agents must disarm the law-abiding and they do that by breaking down their doors and seizing their guns. If a citizens get killed in the process, their property destroyed or burned down, hey, you have to break a few eggs to fundamentally transform a nation. Just as no 2nd Amendment violation may be taken lightly, the same is true for the 4th Amendment. The same is true for all our rights. The home of an unusual personality deserves no less protection than that of someone loved and respected by all.

As I’ve repeatedly written, it is possible information will be revealed that makes Officer Noor’s actions reasonable. Considering he apparently fired without warning in the face of his partner, and in so doing, killed an innocent who was apparently doing nothing threatening, it’s hard to imagine what such information could be. I would certainly not want to be in his position.

Among the most important parts of an officer’s job is the proper and proportional use of force. We give the police an awesome and dangerous power: the power to use force on our behalf. We expect them to use it wisely and appropriately, to be able to appropriately make those split-second decisions under great stress, not 50% of the time, not 82% of the time, but 100% of the time. Because most police agencies choose officers carefully, because they train them appropriately, and because they supervise them closely, most officers meet that standard.

I can only hope I’ve been able to clarify several of the most important issues in this case. Please, gentle readers, let me know what you think.

Are we really willing to suggest officers need only use force, even deadly force, appropriately 93% of the time? And if so, what do we say to the survivors of the 7%? Where do they go to get their loved ones back?

Mike’s Home blog is Stately McDaniel Manor.

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