If you refer to the chart in the Chicago PD model, you will see that a resistor who is evading rather than confronting falls into a different force category than an aggressor who is, well, aggressing and thus likely to cause harm. Control measures for the evading resister do NOT include firearms or impact munitions. It seems like common sense to me, but the chart actually spells this out, so the officer is bound to this as the policy under which he was obligated to act.
Now I agree the defense is going to try to put the subject into the aggressor category, and him having a knife certainly helps them do that. The problem is, at the time the first rounds were fired, he’s evading, not lunging at the officer. He looks like he’s literally just trying to casually walk past them. It’s probably the PCP.
So if I’m sitting on the jury, of course I’ll be told about the 21 foot rule, but I’m having a hard time looking at that video and buying that he was, at the moment of the first shot, aggressing. It just didn’t look like that to me. More like drug induced random cockiness combined with an overall pattern of avoidance. I’m just telling you how it looked to me. That’s a lot for the defense to overcome, because I’m sure I’m not alone in perceiving his movements that way. The jury’s perception matters.
Furthermore, let’s say the jury gives Van Dyke the benefit of the doubt on the first few shots. Once McDonald is on the ground, there’s much better argument for him being under control. I watched that segment of the video frame by frame. Once he collapses, there is a period of some head and hand movement, then that stops, and stays stopped for a while, and then there are some new shots bouncing off the pavement making little dust clouds. For all the world it looks like Van Dyke is shooting a man already dead, or at minimum totally passive. So I think the defense has a rough time getting past that.
Now here’s another way it can get really interesting. Let’s back up to the first shots. Once the officer has breached his duty of care and overstepped a lethal force boundary, the possibility exists that the subject is now *entitled* to defend his own life, and the right of persons being wrongfully attacked to defend their own lives against even the police has been established in a long line of case law. So the prosecution could argue that even if he was pulling a gun at that point, the officer had effectively waived his immunity through his initial use of excessive force under both the PD policy and the reasonable officer doctrine.
Bottom line, all of this could have been mitigated upstream. It really didn’t have to go this way. Obey or be killed is NOT the rule. There is no case law to support such barbarism. Human life matters too much. The thresholds for lethal force have been carefully marked out to protect people to the extent possible, without putting innocent others at risk. Even being on PCP is not an excuse to end the life of a vandal, except to prevent an even greater harm.
Peace,
SR
So if I’m sitting on the jury, of course I’ll be told about the 21 foot rule, but I’m having a hard time looking at that video and buying that he was, at the moment of the first shot, aggressing. It just didn’t look like that to me. More like drug induced random cockiness combined with an overall pattern of avoidance. I’m just telling you how it looked to me. That’s a lot for the defense to overcome, because I’m sure I’m not alone in perceiving his movements that way. The jury’s perception matters.
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It might be a judge rather than a jury. Some of these accused police are choosing a bench trial rather than a jury and being exonerated. Whoever it is, they’ll have to consider a lot more than what you are bringing up. I disagree about the subject evading, but that’s going to be decided at trial, not here on FR. One of the things the judge or jury will have to do is place themselves in the position of the officer at the time, considering the totality of circumstances.
Placing yourself in your safe desk chair, watching a video on Youtube isn’t the standard established by the Supreme court.