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How Defense Lawyers Challenge Justified Police Shootings

Ambiguity in video captured by officer's lapel camera.

by
Jack Dunphy

Bio

March 14, 2014 - 4:44 pm
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But let’s say Morrisey is so devoted to her client’s cause that she does take the matter before a civil jury in the hope of making him the richest man in the New Mexico penitentiary.  Does she really expect twelve members of the Albuquerque community to agree that the shooting was unjustified?  Consider: Officer Pitzer monitors a broadcast of an armed robbery, then responds to the location to find Ortega, the described suspect, in the parking lot.  Pitzer orders him to show his hands, which Ortega refuses to do.  Ortega then runs, pulling a gun from his pocket or waistband as he does so.  Morrisey would argue, I presume, that Officer Pitzer should have been able to discern, as he chased Ortega through the parking lot, that her client merely intended to toss the gun away in the hope of escaping.

And this may well have been Ortega’s intent.  But would any rational person argue that a police officer in Pitzer’s position should be obliged to wait until a suspect actually points a weapon before firing in self-defense?  If I chase someone and he pulls out a gun, if I blithely assume that he is only attempting to abandon it and that I needn’t worry about being shot, the Divine Mrs. Dunphy will soon enough be breaking out the black dress.  No, if you pull a gun on Officer Dunphy, the only assumption I will make is that you intend to shoot me with it if I am so circumspect in my reaction as to allow it.  I will not be.

Now, as to the fact that, as the video shows, several of Pitzer’s rounds were fired after Ortega tossed the gun, this can be explained by what use-of-force experts call “lag time,” i.e., the lapse in time between the decision to shoot and the actual discharge of the weapon.  At the instant Pitzer perceived that Ortega had pulled a gun, he made the decision that he had to fire or risk being shot.  He fired two rounds, after which Ortega disappeared behind the parked car.  Pitzer held his fire until Ortega emerged from behind the car still holding the gun, then fired again at what he very reasonably still perceived as a deadly threat.  Yes, Ortega tossed the gun during the second volley of rounds, but even if Pitzer was able to see the gun fly through the air, it was too late for him to hold his fire.  If anything, Pitzer was commendable in his restraint if not in his accuracy – only one of his eight shots struck Ortega.

And no assumptions should be made regarding Officer Pitzer’s involvement in three shootings in less than seven years.  I know nothing of Pitzer or his previous shootings, and it may be borne out that, as attorney Morrisey insinuated, one of his previous shootings was unjustified.  But even if that turns out to be the case, the Ortega shooting was not.  A record of three shootings in a relatively short career might be an indication of a problem officer, but it is far more likely to be evidence that Officer Pitzer, unlike some officers, is willing to place himself in harm’s way for the benefit of the citizens he swore to protect.  People were being menaced by an armed man, and Pitzer went directly there to confront him.  And he did what any reasonable officer would do when the man chose to ignore his commands and draw a weapon.  Far from being a problem officer, my guess is that his superiors would wish for more like him.

However commendable his actions may have been, Officer Pitzer will nonetheless be dragged through a hellish ordeal in the legal system, during which he will be vilified by Ms. Morrisey and others like her, while the loathsome predator he shot is portrayed as an unfortunate victim.  In the end, Ortega will go to prison without the swag Morrisey envisions, and Officer Pitzer will be cleared of any wrongdoing.  It’s a shame that it will take a year or two before we see it happen.

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Jack Dunphy is the pseudonym of a police officer in Southern California.

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Top Rated Comments   
"The sound of the gun hitting the concrete was audible wasn't it?"

Paleo, you can't be serious.

Go the range, TAKE YOUR HEARING PROTECTION OFF. Fire your gun 4 or 5 rounds at a moving target, while running, and then tell me if you can hear anything during all that.

22 weeks ago
22 weeks ago Link To Comment
Well, that's nice.

It's also irrelevant.

Let's see him do that in an urban area.

22 weeks ago
22 weeks ago Link To Comment
Gamete? How about a zygote?
22 weeks ago
22 weeks ago Link To Comment
All Comments   (65)
All Comments   (65)
Sort: Newest Oldest Top Rated
Don't know about the other two shootings, but this one sure seems justifiable. The guy fit the description, ran when confronted, drew a firearm and threw it away when he started to lose. I don't know who could fault the cop for not seeing him throw the weapon away in the dark in the middle of the gunfight.

Jack also demonstrates the right way to present this to anyone sitting in judgment. One needs to consider the circumstances, the visibility, the adrenalin, the mortal danger. In this case we clearly have a police officer responding to a violent crime. This is what we actually want them to do. This is their legitimate function.

We have an issue today in that the police are often seen as untrustworthy, however it is important not to lose sight of the fact that policing is necessary, and it is as important to support the police when they act correctly in the performance of their duties as it is to strenuously object when they blow away innocent teenagers for legally possessing toys or innocent homeowners on the word of some incarcerated felon looking for a deal.

Also, it's nice he actually seemed to know how to shoot.
22 weeks ago
22 weeks ago Link To Comment
Yes, Bill, but the cophaters feel compelled to find fault even where there is none. For them, all cops are bad, evil, hav done wrong and are justifiably libelled, slandered and deserve it when murdered. Typically cophaters have adolescent personalities and are focused on getting loaded and getting laid. They have not been disciplined by their parents and resent Authority in general.They are Adam Henrys.
22 weeks ago
22 weeks ago Link To Comment
Yep. They are just as wrong as the coplovers who think that anything a cop does to a criminal is just fine, and please do it again.

Truth is what matters.

The truth is, we have a growing problem with out-of-control cops who abuse their power and the citizenry, aided and abetted by BOTH the cophaters (who destroy their own credibility with their blind hate) AND the coplovers who defend even the most egregious assaults on our liberty, in the name of Law and Order.


22 weeks ago
22 weeks ago Link To Comment
Unfortunately, you are correct that the police have brought a great deal of opprobrium on themselves. As more and more of our local, state and federal agencies feel the need to arm themselves the pool of sober, discerning men with common sense without an axe to grind gets smaller and smaller. So what you're left with is a certain percentage of borderline sociopaths whose love for the job is not the protecting and serving part, it's the door smashing, obscenity screaming, flash bang throwing, dog (and owner) shooting sub-human morons who think they're living in a video game. Anyone who believes the police will not shoot you on orders from the government is living in a fantasy land. Sad to say, but the police are not your friend. Any interaction with them is to be avoided at all costs.
22 weeks ago
22 weeks ago Link To Comment
Well, considering he fired LESS THAN 30 rounds and actually HIT the guy, this Boy in Blue is definitely in the top 10% of Law Enforcement Officers in America…This is just another case of The State, as usual, getting it wrong…

Nothing wrong with this use of force…except Agents of The State smell easy money pursuing this without having to answer for embarrassing details like “75 shots fired” and “less than 10% hit ratio”.

The Defense, the Settlement, the Appeal Process…lots of make-work ticket-punching and billable hours here… all on the Taxpayers dime, all over nothing, all while pretending to be “good stewards” and “erring on the side of caution”…go figure.

While REAL instances of ill-discipline, inexcusable marksmanship and poor fire-control go under the rug every week …

The State never wants to examine THOSE…go figure
22 weeks ago
22 weeks ago Link To Comment
This perp was shot in the back. Even if he had retained his gun he'd have had a difficult time turning around to shoot the cop before the cop could react. The sound of the gun hitting the concrete was audible wasn't it?

I think this cop should learn some restraint. A K9 unit could have been more effective in getting this guy to the ground without benefit of a bullet hole. I think this kind of thing is happening all too often these days.

I had an uncle that was in the police force for 35 years and never had to shoot anyone. Times change but human nature hasn't. He had several harrowing calls where he would have been justified had he shot the person opposing him but didn't. Having his gun out at the ready was enough to convince the perp to stand down.

22 weeks ago
22 weeks ago Link To Comment
"The sound of the gun hitting the concrete was audible wasn't it?"

Paleo, you can't be serious.

Go the range, TAKE YOUR HEARING PROTECTION OFF. Fire your gun 4 or 5 rounds at a moving target, while running, and then tell me if you can hear anything during all that.

22 weeks ago
22 weeks ago Link To Comment
Well heck, never mind the gunshots, just try to hear a gun hit the concrete fifty feet away while you are running, and breathing hard, and probably have radio background noise near your ear, and are pumped on adrenaline.
22 weeks ago
22 weeks ago Link To Comment
Yes, and then there's this little thing known as "audio exclusion", which happens to some people under stress. Basically, your ears just shut off. It's not uncommon in gunfights.

22 weeks ago
22 weeks ago Link To Comment
You could hear the gun hitting the ground? Seriously? In the video, I see what look like the gun fly out of his hand during the second volley of shots from the officer (after the second shot in that volley). I couldn't hear anything other than gunshots, really. You expect him to hear the gun hitting the ground and know that it's a gun (and not just something else falling nearby) and that it's the perp's gun. Even if he stopped at that point, he's already used what you consider excessive force, so not firing the last couple of shots wouldn't really help his case if you were on the jury.

This officer had his gun not just "at the ready", but pointed directly at him and he not only ran away, but pulled his own gun. This perp had no interest in standing down until he was on the ground.
22 weeks ago
22 weeks ago Link To Comment
As usual, people pick and choose which parts of the criminal code and deadly force statutes they like to focus on, without reading the whole thing...

I dont know the particulars of that state, but I'll bet there is language that covers exigent circumstances, immediate threats to others, etc etc etc.

You CAN shoot someone in the back under some circumstances, and most statutes address that issue....

but everyone stops when hearing the phrase "no longer presenting a threat" and ASSUME that means any guy running away from YOU with a gun means he is "is no longer a threat", and thats simply not the case.

Also in "civilian" self defense situations, most deadly force statutes use language like "as would a law enforcement officer, under the same circumstances" or "as would a peace officer, in the lawful performance of his duties" as the threshold for deadly force...

Which means guys like Zimmerman would never get charged (how many cops are expected to take a physical beating without shooting?)

It also means WE should be allowed to shoot dogs on site, and empty magazines at shadows, but The State doesnt like to play "fair"...

We are held to a MUCH higher standard of proficiency and conduct when it comes to Firearms
22 weeks ago
22 weeks ago Link To Comment
"Running away" and "running for better cover to shoot at you from" are often the same thing. So what is the officer to do? Chase an armed man into the darkness and be ambushed. Sit and wait for backup as the man gets away and goes and does a worse crime? Police do have to consider these possibilities and just because the suspect is running away doesn't mean, as The Root 83 said, that the threat he poses is over.
22 weeks ago
22 weeks ago Link To Comment
Thanks for the "I thinks" and 2nd hand story. Real credible argument.

And oh ya...too bad a K9 unit did not magically appear.
22 weeks ago
22 weeks ago Link To Comment
Ranch -- Ole Paleo could be correct.

Instead of drawing his pistol, the officer should have gone to his other holster and drawn out his German Shepherd. But, to be Gender neutral, he'd offer the perp a choice: Male or Female German Shepherd.
22 weeks ago
22 weeks ago Link To Comment
My father-in-law worked for the Calcasieu parish sheriff's department for more than 40 years. For 30 of those years he did not carry a firearm on his person. He kept a marlin '94 in his vehicle. He only ever fired one shot in his entire career.

The problem we are having with police is a result of the ballooning and militarizing of police forces nationwide. It takes a rare and special personality type to be a good LEO. When police forces are expanded we run out of those people fairly quickly.
22 weeks ago
22 weeks ago Link To Comment
I highly recommend The Rise of the Warrior Cop by Radley Balko. He lays it out in harrowing detail how the police brass in collusion with the legislatures and the courts successfully trashed the Fourth Amendment. Funny how much Constitution shredding goes on no matter who is in power.
22 weeks ago
22 weeks ago Link To Comment
Where I grew up, we didn't even have police officers—none were ever needed. Every few years a Game Warden or Sheriff might drive by, but that was it. Where I live now, the police are as likely to be doing volunteer charity work as catching speeders. There isn't much else for them to do. But 20 miles away from here there is a neighborhood that has violence all the time. Lately I heard that some of the robbers have been kicking their victims to death there. People like me avoid the place. Police have to go there. They know they are going into a place where they are likely to be shot at. Their badge just makes them targets. So, how should they act there?
I could explain more about the difference between the neighborhoods but someone would say I'm being racist.
22 weeks ago
22 weeks ago Link To Comment
And how many times would Ortega have shot your father-in-law while he was trying to fish his trusty Marlin 94 out of his back seat?
22 weeks ago
22 weeks ago Link To Comment
And if Carthage had beaten Rome we would have world peace now. So the facts on the ground is that Ortega didn't fire a shot while the officer fired 7 shots. That doesn't match your speculation.
22 weeks ago
22 weeks ago Link To Comment
"Ortega didn't fire a shot"

But he had already used his gun to commit a carjacking, so the cop had good reason to fear he would shoot. And look: A report of an armed carjacking, and here is the suspect...with a gun.
22 weeks ago
22 weeks ago Link To Comment
Well, jack, maybe that lever-action was in the FRONT seat.... maybe he would have had it leveled at the perp instantly as he exited...

and maybe, just maybe, thats why:

"He only ever fired one shot in his entire career"

Because ONE high-capacity "brain-housing group" beats TWO high capacity magazines, every time
22 weeks ago
22 weeks ago Link To Comment
Also, you did not address my point.
22 weeks ago
22 weeks ago Link To Comment
None.
22 weeks ago
22 weeks ago Link To Comment
What does your father-in-law's practice of not carrying a pistol while on duty have to do with this situation? Further, your comments imply that you believe the officer isn't a good police officer, which cannot be determined from what I read.

Do you think the officer should have done as Ortega's lawyer suggests and assumed he would not turn and fire his weapon that the officer clearly saw him pull out of his waistband? Most cops would have started shooting under the circumstances.

Ortega's death will not be lamented by many in Albuquerque.
22 weeks ago
22 weeks ago Link To Comment
Well, that's nice.

It's also irrelevant.

Let's see him do that in an urban area.

22 weeks ago
22 weeks ago Link To Comment
Sulfur, Louisiana is not an urban area?
22 weeks ago
22 weeks ago Link To Comment
You aren't serious, are you?

:D

Uh, no, it's not. A population of 20,000 does not an urban area make. Not even being 9 miles from the sprawling metropolis of Lake Charles (population 73,000) gets you into that league.

I guess that helps to explain your confusion.


/walks away chuckling.... He thinks 20,000 is an urban area! Wow!/


22 weeks ago
22 weeks ago Link To Comment
Drawing and firing a weapon takes fractions of a second-- police officer's are behind in the OODA loop- action beats reaction. A great website which provides the times for those interactions is The Force Science Institute:

http://www.forcescience.org/demos.html

The times show that even under the most favorable conditions, the police are at a disadvantage-- the website times are based on students who were unfamiliar with firearms, the LEO times were based on trained LEOs reacting to a simple shoot/don't shoot/stop shooting signal of a buzzer or a light, not a complex scenario where Orienting/Deciding in reaction to Observing a subjects actions would take longer.
22 weeks ago
22 weeks ago Link To Comment
Till a person is involved in a potential actual life or death situation they will never truly understand what goes through a persons mind and how fast things seem to go and also how slow things go. I was a police office and I was dispatched to a domestic call. A domestic can be the worst call for a cop to go on because you don't really know what had transpired prior to you arriving at the location. At any rate I arrived at the home and began talking to both people who demanded action. As I was explaining everything to them the husband had become enraged and attacked me from behind. I was trying to defend myself but he had gotten the better of me. The husband was choking me and also trying to take out my sidearm to shoot me. I never liked to pull the sidearm and it was a last resort. I felt myself getting ready to pass out so I pulled out my sidearm and fired a shot, the shot was an attempt to get him to back off me. Well it didn't work and I shot him in the abdomen. I was able to get out of the house and had collapsed in the gutter. The suspect was eventually arrested. We went to court he was found guilty and the lawyer appealed the conviction. The judge overturned the conviction because the DA didn't hand over medical records on me for treatment I received as a result of assault. The guy and his lawyer sued and they got $500,000.00. He tried to kill me and got paid for it.
22 weeks ago
22 weeks ago Link To Comment
*THIS* one may be your heroic example of a justifiable shooting, but in the face of all of the other shootings and other incidents where the police abuse, intimidate and maliciously prosecute witnesses, seize cameras, destroy evidence and openly lie in court to protect themselves, when law enforcement is seen as a cynical revenue stream even by those of us who have, and would *like* to give the police the benefit of the doubt, it doesn't change the most important issue with law enforcement:

I'm a veteran, and a law abiding citizen, and I'm afraid of the police and judicial system. I work as a contractor, and I'm walking around all areas within a large city police department on a regular basis, and I'm telling you, the open, sneering contempt the police have for the people they've sworn an oath to protect is appalling.

The police have become a menace. A state sanctioned bunch of petty, vindictive thieves, who joke about people they've "jacked up" for daring to stand up for their rights, and to protest abusive, domineering policing.

As a veteran, I'm disgusted.
22 weeks ago
22 weeks ago Link To Comment
Your libel is generic. Evidence? Or did you just get busted for dope, DUI; or maybe a citation for a boombox blast? Or was it about that arrogant cop who cited you for parking illegally? Poor baby!
22 weeks ago
22 weeks ago Link To Comment
And your libel would be specific. You have no knowledge of his interactions with the police. Therefore it is speculation that you know you are presenting as fact.
22 weeks ago
22 weeks ago Link To Comment
Holy, Tennessee V Garner, Batman. Officer Pitzer's duty (moral if not legal duty) is to protect his community by enforcing laws like- thou shalt not point guns at people and take their shhh, I mean property; and this sometimes means using deadly force to seize dangerous people to prevent them from committing dangerous acts of violence on other people. Officer Pitzer was the opposite of coward October 29. He knew Ortega's lawyer, whichever brand of Ortega's community race baiters, Ortega's Sunday School teacher, and you expert commentators would find fault with Officer Pitzer decision to seize this fleeing dangerous felon thus protect the community he served from a violent felon preying on it. Officer Pitzer stopped Ortega from escaping and continuing his violent streak (you really think this was Ortega's first armed robbery, or would have been his last? After all Ortega was going to turn his life around on the 30th, wasn't he?) Officer Pitzer understood that his right of self-defense but he sacrificed that right to protect others to pursue an armed dangerous felon. Officer Pitzer stopped this imminent threat to his community and saved lives. THANK YOU OFFICER PITZER for protecting Albuquerque, thank you for having the mental forethought and preparation to stop Ortega, thank you for saving lives Ortega would have surley taken had he not been stopped, thank you for sacrificing your self to protect others. I hope Albuquerque promotes you although you do the scary and distasteful things that is the basis of your community's need for law enforcement and you probably don't have any experience in real police work (the real important stuff like talking to the press, city council presentation, networking, making split second budgetary decisions, liability mitigation; important skills needed to be an effective police administrator skills you don't pick-up being a simple beat cop responding to calls for service.)
22 weeks ago
22 weeks ago Link To Comment
"...Pitzer was commendable in his restraint if not in his accuracy – only one of his eight shots struck Ortega."

Let me set the table for you, I am a former resident of Albuquerque of 35 years and can tell you the good , bad and ugly of that city.

The local motorcycle officers used to set up under the tree in my front yard during the summer and run radar enforcement on a busy non-major city street near a high school. I used to give them cold water 'cuz it was hot but the tree was large and shady. They regularly saw me and my carry piece (NM is Constitutional carry state) get in my car. We even traded tales and they admired my Sig. I became familiar with one long time officer, MM, and we talked a lot. He did say he liked people like me as he would not have to fill out death reports and that we kept the neighborhood safer.

Mostly APD is good but there are some bad apples. I knew some of them. One domestic abuser I used to work with before he joined the force.

Way back about 10 or more years ago, Albuquerque was really dangerous and the police made it so. San Diego was rated as the city most likely to kill a citizen via police action in the US. They had shot and killed some 40+. I was curious because ABQ had killed more, then I saw the stat was for cities of greater than 1 million. ABQ was 500k at that time. That meant that you were twice as likely to be killed by police in ABQ than anywhere in the US!

Most of the APD is good but there is an element of outlaw there and the local powers will not do anything to right it. This comes from the officers themselves.

Now to this shooting, that officer was NOT aware of what was behind his target (see the people later in the video). And he was a lousy shot unsure of his target (1 out of 8?).

ABQ is the Wild, Wild West but deserves better. So sorry Jack, you are mostly likely wrong on this one.
22 weeks ago
22 weeks ago Link To Comment
"So sorry Jack, you are mostly likely wrong on this one."

So, you are saying that ABQ PD has a problem, and because ABQ PD has a problem, this officer was not justified in shooting in this particular situation?


22 weeks ago
22 weeks ago Link To Comment
Yes, view the video. The perp was hauling the mail out of there and dumped his gun.

ANY citizen can only respond to an active threat. Shooting someone in the back does not measure up.
22 weeks ago
22 weeks ago Link To Comment
The gun was only dumped after he'd been fired on. The office had no way of knowing that the perp intended to dump the gun (it looks like it flew out of his hand after the second shot in the second volley, which may or may not have been intentional and was a little too late anyway) instead of emerging from behind the car shooting back at the officer.
22 weeks ago
22 weeks ago Link To Comment
No. For a robot, you aren't very good at logic.


Whatever problems the ABQ had have no bearing on THIS incident. Each situation has to be evaluated on its own merits.

As to this situation, back or front isn't relevant. A shot fired backwards while running is just as potentially lethal as a shot fired while standing still and facing the target. The only difference is accuracy.

The officer is not under any obligation to wait until a gun is pointed at him before firing.

22 weeks ago
22 weeks ago Link To Comment
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