imported post
Shotgun wrote:
Well we can imagine and speculate that there's more to the story if we want, but for the sake of argument let's say that there is no more to it. Some have stated that the cop was wrong based upon what's in the report, so, place yourself in the cop's shoes and tell us how YOU would have handled it. It's as simple as that.
I would thinkthat how
anybody would have handled it is an incorrect standard.
I would think the correct standard is what the law says.
But, lets look at it like an academic exercise since we know the story is likely leaving out important facts.
An LEO goes to talk to a man about reports from co-workers that he made threats. OK. We don't have a warrant from a magistrate here, so arrest is not legal, yet.All the officer can do is talk to him and see if he coughs up information that gives rise to probable cause for an arrest. Perhaps there is enough to make it a non-consensual encounter, perhaps not.I'm not familiar enough to say. But, since the man is inside his house, its going to take a warrant to pry him outof there for questioning, consensual or nonconsensual.
So, the officer sees him reach towards his back where the officer has already seen a gun. Move to cover, and draw gun. Fine. Makes great sense. However, we have no information that the man actually drew his gun, or put his hand on his gun. Just becauseit made sense for the cop to take fewer chances given the threat allegation does not mean the guy actually reached
for his gun. What does "towardshis lower back" mean? Was he scratching his side? His back? Higher than the gun? To the side of the gun? Was he reaching behind him for the doorknob as he turned?Its the absence of the guy actually presenting the gun, or even putting his hand where the gun was, that I consider most questionable. This report is well short of even brandishing.
Based on the story, the officerwent straight through to arrest. Based on the information, the arrest wasn't justified.
However, no matter whether the guy was doing something innocentthough not smart, the police now
have to say he was in fact reaching for his gun to justify the arrest.
I'm thinking that themost the officer could have done was draw, and move to cover. The officer didn't have a warrant to enter the house, so that cancels the Terry Stop RAS to question the man for the threat allegation. Since there could be no Terry Stop, there could be no Terry weapon removal. That means the arrest has to be based on aviolation in connection with the gun. But we have no information about a gun violation. Without brandishing or making a threat with the gun, there is no gun violation, thus again no PC for arrest.
I wonder if this one falls under the category of police creating their own exigent circumstances? That is to say, the police officer's presence made it likely that even an innocent motion in even the most generalized direction of a gun creates a police assumption that lethal force is intended. If his neighbor or a Jehovah Witness went to the door to talk to him and he reached in the same general direction as his gun, would the neighbor or Witness be able to file a brandishing charge? No, I don't think so, not an accurate charge anyway.
Edited to add: I am not a lawyer, so don't nobody take any of this as being legally accurate.