Defeating the tactical error defence
Taken from Police One
Article by Sgt Steve 'Pappy' Papenfuhs Police One contributer
I recently had an opportunity to observe part of a criminal trial in which a husband and wife were co-defendants in an assault-on-an-officer case. The wife had been charged with resisting arrest, and the husband had been charged both with assault on the officer, and resisting arrest. The defense strategy in the case consisted of attacking the officer’s tactics, and making the case that, but for the poor tactics he employed, the actions on the part of the husband and wife would never have occurred and thus no criminal case could be made.
Details of the Event The event occurred at approximately 0100 hours in a busy downtown area populated with nightclubs. As the officer drove down the street, he was flagged down by an employee of one of the clubs. The employee pointed to a group of individuals with whom he had an altercation only moments before the officer’s arrival. The group consisted of the husband, the wife, and a handful of others. The individuals were walking away from the club employee and the officer. The employee informed the officer that one of the males threatened him. While the exact dialogue between the reporting party and the officer is unclear, the officer understood that the male made a death threat towards the employee (it is uncertain whether or not the male threatened to shoot or to stab the employee).
The officer walked in the direction of the subjects and called to them to stop. The group did not stop initially, and it was only after he called to them again that one member of the group looked in his direction and stopped. The officer closed the distance and called out again for them to stop. At this point, the group halted and they all turned towards the officer. The officer began to give directions to individual members of the group including the identified male, who is the husband/defendant in this case. The officer told the husband to turn and face a wall. At this point, the sister of the husband/defendant grabbed the officer’s arm from behind. At trial, she clarified that she was trying to get the officer’s attention in order to explain that her brother did nothing wrong.
In response to being grabbed, the officer turned and pushed the sister away. As he did so, he felt what he believed to be water or some other liquid thrown on him. It was his perception that the wife/defendant was the individual who assaulted him with the liquid. The officer drew his TASER and stunned the wife. The wife fell to the ground, and upon seeing this, the husband attacked the officer. The officer attempted to defend himself with a drive-stun to the husband, but this proved ineffective. The husband continued to aggress the officer, so the officer punched him one time. The punch failed to deter the husband, and as the husband was significantly larger than the officer, the officer pulled his firearm to defend himself all the while giving commands for him to back up. The officer perceived that the husband was attempting to grab his pistol, so in fear of his life he shot the husband one time.
The 'Tactical Error Defense' Defense council attempted to convince the jury that a series of escalating tactical errors on the part of the officer led to an excessive use of force against the wife which the husband lawfully could resist. Since the officer was unreasonable in his use of force, and the husband was within his right to defend his wife, then according to the defense attorney any force applied to the husband was also excessive; and the charges of resisting arrest and assault on the officer are without merit. In order to support his argument, the defense retained an expert witness — a retired commander from a very large Southern California sheriff’s department.
Through this witness, the defense asserted the officer made the following tactical errors:
• The officer should have called for backup before attempting to detain the suspects
• The officer should have waited for that backup to arrive before engaging the group
• The officer should have set up a perimeter and cordoned off the area
• The officer succumbed to the “fatal error” of “Tombstone Courage” as cautioned against in the California POST Learning Domain 21 workbook
• The officer succumbed to the “fatal error” of “Poor or no Planning” as cautioned against in the California POST Learning Domain 21 workbook
• The officer succumbed to the “fatal error” of “Inadequate Communication” as cautioned against in the California POST Learning Domain 21 workbook
• The officer should have controlled the subjects verbally and should have “decompressed” the situation • The officer was not reasonable in introducing his firearm into the situation as the only time an officer can draw his pistol from his holster is when he is in “immediate defense of life”
This expert claimed to have instructed at his agency’s training academy, and stated that if a cadet had performed in scenario-training as this officer did in a real-life event, that cadet would have failed the exercise and would not have graduated the academy.
In this particular trial, the jury did not buy the defense. Although they acquitted the wife of the resisting arrest charge, they found the husband guilty on both counts.
The San Jose Mercury-News said of this result: “The split result baffled the Zunigas' lawyer, who argued that if the jury acquitted Cindy, they also had to exonerate her husband because Marcos was lawfully resisting the use of ‘unreasonable force’ against his wife.”
While it can be argued that the defense expert is out of touch with the realities of police work, he makes some points that can be genuinely debated and critically reviewed. However, there is a bigger story here. That story is the direction that some fear the courts may take in the future.