II. Cop's estimates become sticking point in bizarre shooting
An officer who shot a suspect who had him trapped inside a car that was gathering speed discovered that his inability to accurately estimate measurements afterward became an issue when the case got to an appellate court.
The bizarre situation began about 0200 one Friday when two Anaheim (CA) PD officers narrowly missed colliding with the driver of an old Mazda van who made a sudden, illegal left turn in front of them.
Pulled over, the violator belligerently refused to turn off the ignition, to stop reaching toward areas where a weapon could be concealed, and to reveal what the officers suspected was a plastic baggy of drugs clutched in his hand. As the situation escalated, the officers delivered repeated flashlight and fist blows, and a carotid restraint was attempted through the driver's window--all to no avail.
In desperation, one of the officers, Danon Wyatt, scrambled into the van through the front passenger door. Kneeling on the seat, he punched the suspect in the head and face while his partner hammered the driver with a flashlight, trying to bring him under control.
During the struggle, the driver slapped the gearshift with his right hand and knocked it into drive. According to the officers' statements later, the suspect then "stomped down" on the gas pedal; the van bolted forward with a squeal of tires--and the passenger door slammed shut, trapping Wyatt inside.
Wyatt yelled at the driver to stop and tried to hit the shifter out of gear, but the suspect fought his hand away. Then with the van accelerating forward and without further warning, Wyatt drew his sidearm and shot the suspect in the head. The van smashed into a parked vehicle and stopped. The driver died soon after.
Predictably, relatives filed federal lawsuits against the officers and the city, alleging excessive force. The district court granted summary judgment in favor of the defendants. In appealing to the 9th Circuit Court of Appeals, the plaintiffs' lawyer challenged certain time and distance estimates Wyatt had made after the shooting, in an effort to discredit the officers' version of what had happened and get the case before a jury.
Wyatt had stated that the van had traveled "approximately fifty feet" in "less than ten" and possibly "less than five" seconds and was going about "50 miles per hour" when he shot the driver. As an "unbuckled passenger in a fast-moving vehicle driven by an escaping suspect," he felt he was in immediate and significant threat of death or serious injury.
However, the plaintiff's lawyer argued that "Wyatt's story fails to hold together." By Wyatt's own estimates, the attorney calculated, the van actually had to have been traveling so slowly that he could not have been in jeopardy. In her brief, the lawyer pointed out that a vehicle that travels 50 ft. in 10 seconds would have an average speed of only 3.4 mph.
One judge in the appellate panel seized on this "glaring inconsistency" to conclude that Wyatt's "self-serving account" was "physically impossible." He wrote: "Nobody should mistake 3.4 miles per hour for 50. If the time period is cut to five seconds, the average speed only increases to 6.8 miles per hour. That is hard to mistake for 50 miles per hour, as well."
If Wyatt was inside a vehicle that, in reality, "might have been slowly rolling forward," the judge wrote, "a reasonable jury might conclude" that his shooting the driver dead was "unreasonable." He voted in favor of kicking the case back to the district level for trial.
The majority of the panel, however, upheld the summary judgment. Given the circumstances, the majority ruled, the use of force by Wyatt and his partner was "not excessive or disproportionate to the quickly escalating situation." As a captive inside an accelerating car with a resistant subject at the wheel, the officer was clearly in jeopardy, and the "absolute certainty of harm need not precede an act of self-protection."
As to the "inconsistency" of Wyatt's recollections of time and distance, these should be regarded merely as "rough estimates," the prevailing justices said. Revealing a fundamental understanding of the effect of extreme stress on memory, the court noted: "It would be surprising if an officer could recount precise quantitative details about an incident which took mere seconds" to occur. "A minor inconsistency in officer testimony does not alone create a dispute of material fact....
"The most that a rational trier of fact could conclude...is that Wyatt is bad at estimating--hardly a reason to send this case to trial."
The court's decision, issued in 2013, can be accessed in full without charge by clicking here.
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