I started a new thread for this topic, not because the other discussion was bad... but because it began on page 28 of a general police thread. This discussion is likely to go on for a while so I would like to focus the discussion to this incident. Here's my two cents:
The facts of the case:
- The Deputy was on the force only after he donated large sums of money to the Sheriff's election campaign and to the department
- He was 70+ years old
- He was tapped to be part of the "capture" team on a felony gun bust
- The dead man appears to be guilty of illegally selling a firearm, which I believe is punishable by up to 10 years in jail (21 OS 1283) [not death]
- The bust was botched to start with. Preferably, the suspect is met with overwhelming force before he has an opportunity to run
- The capture was successful, the man was tackled and subdued quickly
- The man was on the ground with 4 or 5 deputies on top of him and one arm in a hold
- The Deputy tried to Taser the man, but shot him and quickly apologized
- Even after shooting him, the deputies persisted on their confrontation and apparently did not administer first aid until TFD arrived (the man was kneeling with an open wound when TFD arrived)
- The firearm that was being used has been reported as being a firearm that was not authorized (the Deputy did not qualify on that firearm)
- The man died
- The TCSO response has been poor
The utter BS:
- The Sheriff argued that the deputy(ies) thought he was going for a gun. They had 4-5 guys on top of him. No one ever mentioned movement towards a gun. He had no gun. And deputies do not yell "Taser Taser" if you go for a gun. A Deputy does not yell "I shot him, sorry" if he feels the shooting was justified by the suspect going for a gun. This is a post hoc fabrication
- The Sheriff claimed the man was on PCP. The man entered a truck, had a coherent conversation, and was subdued on the ground. That is not the behavior of someone on PCP.
- The Sheriff claims that the other deputies did not know the man was shot. That they were institutionally deaf or some such non-sense.
::BANG:: from 2 feet away from everything
D1: "Oh sh!t, I shot him. I'm sorry."
Man: "Damn, he shot me. He shot me! I can't breath!"
D2: "F*ck you're breathing" while kneeling on the back of the man that was shot from 2 feet away
I can't imagine telling a jury that D2 didn't hear the gunshot within a couple feet of his head, that he didn't hear the "I shot him, sorry" or the screams of "he shot me" which he was responding to. That is utter nonsense. If you can't not perceive a gun shot from a couple feet away or the conversation you are participating in, you have no business what-so-ever intervening on behalf of the public. If you can't perceive a gunshot, how can you perceive any other sort of threat?
- Calling the shooter the "victim." The Sheriff's office, before even conducting an investigation, was referring to the Deputy who accidentally shot a man to death as the "victim" in this situation. If nothing else, it is in poor taste and signals that your investigation is predetermined.
- A Taser and a firearm may feel a lot alike (this is a design flaw in many opinions), but the firearm is generally to be kept on the dominant hand side with the taser on the side of the off hand. They weigh significantly different. The sites are different. It is a monumental error to confuse the two. Not just a small mistake. It would be like "accidentally" hitting the gas instead of the brake, the pedals look a lot alike... but if you confuse the two you are still at fault.
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Taking the facts as presented, a charge of second degree manslaughter seems imminent.
THE LAW:
OUJI-CR 4-103
MANSLAUGHTER IN THE SECOND DEGREE - ELEMENTS
No person may be convicted of manslaughter in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, the death of a human;
Second, the death was unlawful;
Third, the death was caused by the culpable negligence of the defendant(s).http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=81158OUJI-CR 4-104
MANSLAUGHTER IN THE SECOND DEGREE -
CULPABLE NEGLIGENCE DEFINED
The term "culpable negligence" refers to the omission to do something which a reasonably careful person would do, or the lack of the usual ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions.http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=81159I'm not even sure what elements of the statute are in dispute:
1) a human died,
2) the Deputy had no right to execute the person who died and it was not done intentionally in defense of oneself or others, and
3) the Deputy admits that it was done by his own negligence.
The Deputy could argue that it was legal to execute a suspect in custody, but I'm not sure on what justification. He could argue that it wasn't negligent to "accidentally" shoot the man to death, but it seems obvious that when exercising ordinary care Sheriff Deputies do not ordinarily mistake their firearm for a taser (or we would see this relatively frequently). In fact, every law enforcement officer I've spoken with on this issue was flabbergast that such an error was made.
Second Degree Manslaughter is a felony punishable by
21 OS 722
Any person guilty of manslaughter in the second degree shall be guilty of a felony punishable by imprisonment in the State Penitentiary not more than four (4) years and not less than two (2) years, or by imprisonment in a county jail not exceeding one (1) year, or by a fine not exceeding One Thousand Dollars ($1,000.00), or both fine and imprisonment.
http://www.oscn.net/applications/OCISWeb/DeliverDocument.asp?CiteID=69321- - -
I don't think the deputy is a villain. I don't think he did it on purpose. But I think having men who appear to "pay to play" Sheriff participating in the most dangerous elements of law enforcement is ill advised. What's more, when it goes bad because such an actor "makes a mistake" it is the public that is punished. Yes, the guy he shot appears to be a low-life, but the rights of a low-life are just as important as your rights are. If we do not protect the rights of SOME people because we deem them unworthy, then we cease protecting all rights to some degree.
The man should be charged with second degree manslaughter. Offer him a generous plea that sees him a convicted felon, resign from the Sheriff's office, forfeit his weapons, pay the $1k fine and court costs, and then a deferred sentence of how ever many years. No point wasting more money than this is already going to cost us to lock someone up who is neither a threat nor guilty of anything worse than horrible judgment. Or, he can press his luck and go to trial...
But it is hard to see how this isn't against the law somehow. If you or I were in a lawful struggle with someone and "accidentally" shot them to death, we'd be charged. Law enforcement is not above the law.