Mimesis Law
24 August 2017

In Police Shootings, Perception Matters As Much As Justification

December 6, 2016 (Fault Lines) – On August 19, 2015, in the Chattanooga suburb of East Ridge, Police Lieutenant Daniel Stephenson, using a patrol rifle, shot and killed Todd Browning, 54, in front of Browning’s home. Stephenson’s dash cam video was recently released when the Hamilton County District Attorney’s Office ruled that the shooting was justified under Tennessee law, and announced that they had cleared Stephenson. That’s not doing anything to change the perception of many that Stephenson executed Browning.

Chattanooga is dominated by two terrain features that Civil War[1] historians will easily recognize. To the south of the city is Lookout Mountain, and to the east of the city is Missionary Ridge. East Ridge, unsurprisingly, is east of Missionary Ridge, on the opposite side of the ridge from the city of Chattanooga. Confederate General Braxton Bragg felt that his positions on those two ridges was unassailable, and Union General Ulysses S. Grant agreed. Bragg was wrong, as Union soldiers took both terrain features in bitter fighting, and routed the Confederate Army.

In my mind, that’s similar to what’s happening in regard to police shootings. Like Bragg, police officers perceive themselves to be in unassailable positions. They become attached to the idea that they are in the right, that they cannot be dislodged from their position. But facts and perception don’t always agree.

Browning first drew police attention at the Auto Zone, a couple of blocks away from his home, where witnesses said that he was waiving a knife around. Stephenson was the first on the scene and did not engage Browning at that time. According to Stephenson’s attorney, Brian Hoss, Browning yelled at the officer to shoot him,[2] and charged at the officer. Stephenson showed considerable restraint, holstering his pistol and pushing Browning away.

key

Browning then fled to his home, and Stephenson followed, arming himself with a patrol rifle. The attorney said that Stephenson, who had SWAT experience, intended to set up a perimeter and wait Browning out, but Browning approached Stephenson with a water meter key (pictured).

Getting hit with a water meter key is about like being beaten with a piece of steel rebar. It can easily kill you, and if someone is bent on making you shoot them, it would do the trick. If someone was coming at me with one and I believed that they intended to hit me with it, I would be justified in shooting the person.

The problem here is the way that it is presented. It’s clear from the witnesses that Stephenson was justified in shooting. Browning kept advancing, striking at the ground with the key, two said that Browning lunged, and one said that Browning had closed to about 20 feet when Stephenson shot him. The problem is that the narrative doesn’t exactly match the video.

First, while you can hear Stephenson repeatedly telling Browning to stop, you can’t see Browning until just before the shots are fired. Hoss said:

When the suspect reached the point at which he could hit Lt. Stephenson with his metal weapon, Lt. Stephenson believed that his life was in jeopardy and had no other choice but to fire.

The problem is that Browning never reached the point at which he could strike Stephenson. He had reached the 21-foot reactionary gap where if he charged, Stephenson would not be able to stop him before he reached striking range. But he was not in striking range.

Hoss also said:

After hitting the suspect, other officers arrived.  EMS was called immediately and the officers attempted what medical treatment they could on the suspect.

Again, the problem is that the tape doesn’t show this. Instead, it shows Stephenson calling in the “shots fired” and holding his position. Indeed, it shows him backing up somewhat. It does not show him immediately attempting medical treatment.

I don’t want to give the wrong impression here either: Nothing that Stephenson did was wrong. This was a clearly justifiable shooting, regardless of how it may look to the layperson. Here, the Hamilton County DA, Neal Pinkston said that:

Lt. Stephenson acted well within the law and, as a result, should not face any charges.

Pinkston’s right. But he’s not real transparent, either. You are expected to take his word for it. Pinkston’s spokesman, Melydia Clewell, when questioned about Auto Zone security camera footage, replied that the Tennessee Open Records Act “does not require” that it be produced, and that even if the DA was willing to produce it, the DA could require the requestor produce a Tennessee Driver’s License to receive the information. Legally, Pinkston is in an unassailable position.

But in today’s world, with video and the internet, you cannot depend on being in an unassailable position. If, like General Bragg, you depend on your positions on Missionary Ridge being so dominant that they can’t be taken, you run the same risk that he did. Because when General Grant sent General George H. Thomas against Rebel rifle pits at the base of the ridge. Thomas’s men were successful, but immediately came under deadly fire from Confederate positions on the top of the hill.

The only way that the men could have a chance to survive was to attack, which they did, and they took the ridge. Had the Confederates eased up, not put such deadly fire on the positions at the base, the Yankees would not have attacked the ridgeline.

You see, Thomas had orders to take the base and go no further, and he complied with those orders. His men, however were being slaughtered by the fire from the ridge, and decided that they had to press forward. So they did.

The various movements about police involved shootings are in the same position. They are at the base of the ridge, after having won the initial skirmishes. They should not be able to take the ridge, especially with some of the mistakes made by their members. But if the people at the top of the ridge had eased up, had not caused such a situation where those at the bottom had to attack, Bragg would not have been routed.

When police and the DA take the positions that they have taken here, they are doing so with the knowledge that, like Bragg, they are unassailable. But like Bragg, they have a choice. They can continue to do things the old way, raining deadly fire on those at the base of the ridge, or they can ease up. They can release information that is consistent with what the video shows, not from the cop perspective, but from the perspective of the public. You take the time to explain why it is justifiable, why it was required. Or you can believe that you’re in an unassailable position.

Except you’re not.

[1] Or, as it is known in the South, the War of Northern Aggression.

[2] Common in cases of suicide by cop.

9 Comments on this post.

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  • Glenn
    6 December 2016 at 12:38 pm - Reply

    However, the 21 foot “reactionary gap” is not really a scientifically proven concept [see http://www.policemag.com/channel/weapons/articles/2014/09/revisiting-the-21-foot-rule.aspx ] and, as it does exist, posits that a person with a knife can advance upon and stab an officer once he gets within 21 feet, BEFORE THE OFFICER CAN UNHOLSTER A HOLSTERED PISTOL AIM AND FIRE. If you already have your rifle up, aimed at the target and your finger ready to squeeze the trigger (even if not on it) the “reactionary gap” should be quite a bit less than 21 feet.

    This is NOT to say that the officer was necessarily wrong, but it is idiotic to suggest as some police officers do (not necessarily this author) that any time a person encroaches within the 21 foot perimeter with hostile or unclear intentions the officer is justified in shooting him/her.

    • Greg Prickett
      6 December 2016 at 3:41 pm - Reply

      I’ll defer to you on the scientific validity of the Tueller drill and the 21-feet.

      I’ll note that when I was still a cop and a firearm instructor, we ran the Tueller drill at the range, with an officer at the 3-yard line in front of a target, an officer to the side at 21 feet away, and a whistle. Not a single officer was able to get rounds off before the officer reached him and tapped him on the shoulder.

      In this case, Stephenson had his weapon at the ready, and the Tueller drill is not applicable, but the idea of a 21 foot reactionary gap is still valid. Each case must be evaluated with the facts at hand, and there should be no automatic rule for 21 feet.

  • Richard Kopf
    6 December 2016 at 6:11 pm - Reply

    Greg,

    Thanks so much for this. First, the writing and the historical connections are wonderful. Second, you provide me with information that I would never derive from the application of “common sense.” Third, your emphasis on utter transparency in order to provide context for the lay person’s perspective is of singular importance–uninformed perception due to a lack of transparency becomes reality all too often. (E.g., the federal judiciary.) All the best.

    RGK

  • Brad
    6 December 2016 at 9:02 pm - Reply

    I am not trying to say that the policeman did anything wrong, but . . . question:

    Mr. Prickett should the policeman have given medical aid sooner? Why or why not? And, if not, why not?

    • Anon
      6 December 2016 at 11:40 pm - Reply

      Aid policies vary by department; some are clear, others are non-existent.
      But here, the suspect took 4 high-velocity rounds to the torso. He’s bleeding to death. There isn’t anything to do except to wait for paramedics to come. Maybe the officer could apply occlusive dressings. But, unless he were well-trained in prehospital trauma care, the odds are he’d make it worse.
      There’s also the problem of having the officer responsible for the shooting now fiddling with victim and scene. Which seems reasonable here, but gets problematic in other scenarios.

      • brad
        7 December 2016 at 6:25 pm - Reply

        Anon, do you think the policeman would have (and/or should have) just waited for the paramedics if it was a fellow popo that took those rounds?

        • Anon
          9 December 2016 at 6:06 pm - Reply

          That’s a problematic comparison, as the circumstances invariably would be different. The closet parallel would be if cop A intentionally, but mistakenly, shoots UC cop B. Are you likely to *show* more concern when it’s a brother (or a civilian) on the ground? Probably. Are you gonna put him in your car and drive him to the hospital? Not likely. The reality is very many of the LEOs who’ve died on duty did so waiting for EMS and suffered the same absence of potentially life saving TCCC.

          When the suspect isn’t in custody for DeShaney purposes, there generally isn’t a duty to treat (not that police always don’t provide care — some let a suspect apply pressure to a GSW, or do it themselves if he’s in handcuffs). Making it a policy is tricky, since you’re increasing potential liability, exposing officers to potential pathogens, adding complexity to, and otherwise changing, policy, etc. The scenario in the video is one of hundreds of possible variations and you need something in place that cogently and simply addresses them. And, again, the cop in the video is unlikely to have had TCCC training. I doubt he’d even have the foggiest idea of the TTP re securing his long gun while rendering aid.

          • Brad
            9 December 2016 at 8:23 pm -

            If the reason that the police shouldn’t provide treatment is that they are likely to make things worse, then the things you say in your post aren’t really relevant.

            btw, when I was young, my next door neighbor died of gunshot wounds inflicted by her adult son probably (although I don’t think this was investigated, much less proven) as a but-for result of the way the policemen got her out of our house and to the hospital. So, I definitely get what you are saying about untrained emergency medical care hurting more than helping.

  • The Unassailable Position Of The Police, Or We Think You Can’t Touch This
    9 December 2016 at 9:00 am - Reply

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