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The potential for gunfire and the reality of the dangers cops meet head-on everyday are inseparable. It will always be that way.
Since the days that Billy the Kid reigned fear upon the frontier, the potential for men with guns to decide between law and order and social chaos, between–not good and bad–but right and wrong, is still an everyday, any moment reality. That part of the American experience has not changed in which gunfire proves to be the final determiner between cop and the confronted, of who lives and who dies. It will always be that way.
What has changed is that we have taken the wild west out of polite society and police work that deadly force by police gunfire is sometimes just the price of doing business. Don’t misunderstand: our citizens accept that the police must be armed and they have empowered law enforcement to use that
armed force to protect and retain social order. There can be no debate that uniformed police are the most visible part of what the U.S. Constitution and the Oregon Constitution cite as one of the primary purposes of a government: the protection of its citizens. The police still enjoy the support of our citizenry when, in that moment, the least desirable option becomes the only option.
What citizens expected and accepted as justification for a shoot out between the US Marshall or the Texas Rangers and Billy the Kid on the plains of the old west or for that matter defining the use of deadly physical force as the “price of doing business” is light years away from what citizens demand and should demand from their police before, during and after a fatal use of gunfire. It not that the cops don’t strap on the weapons or better the tools of their trade in 2012 just like they did in 1850. They do. But how they prepare themselves through training, execute their training through use of deadly force policy and how they must, without debate, scrutinize incidence of police gunfire through follow up investigation and science is as clear as the difference between a wagon train and Star Wars. The difference is as clear as the days of the wild west and random acts of deadly force and the professional restraint of professionals who are not afraid to act swiftly and certainly and who are just plain not afraid.
When citizens call for help they are really calling for the protections of professionals. They intend that the call for help will be answered swiftly by the cops who by definition are about to encounter the unknown. What will follow will depend on many factors and fear will be one of those factors. But fear must be a controlled emotion if you are the one with the gun and right on your side. If fear becomes the over riding emotion then the correct response is unlikely to happen–no matter whether it is to shoot or not to shoot.
So when Fairview Police Officers Joe Kaiser and Mike Morton arrived at the call for help of Sandra Kelley, only they can gauge how fear played into would what unfolded in the next three minutes.
What we should be able to rely on is that based on their training and their department policy they were prepared to make a decision that would stand the test of independent scrutiny and most importantly the closer scrutiny of forensics science. So when these officers use gunfire to take the life of Larry McKinney, the rest of the protections for our form of government and our citizens must take center stage. The police administration and political leadership of the agency involved must demand that the resulting investigation be as thorough as would one involving non police deadly force.
Make no mistake: the use of deadly force by police officers is a homicide. The only question is whether the police shooting is justifiable. So the question in the case of the death of Larry McKinney is: was the use of gunfire by the police justifiable?
What are the facts to substantiate this shooting? There are typically three sources from which the death investigation should draw the facts. It begins and ends with best evidence available and obtained and on which the Grand Jury must rely. That best evidence is drawn from what officers report occurred, what eyewitnesses report and what forensic science can tells us when the two disagree or even when they agree. In order to have faith in the investigation, citizens must have faith in our police and in our police administrations and in “..independent objective scrutiny……. best evidence available and obtained” in the follow up investigation.
In this police shooting there are very clear disputes in very crucial points of the events lead to the death of Larry McKinney. Officers Kaiser and Morton report that they arrived, unholstered their weapons as they exited and then re holstered them as they approached the apartment complex stairs. Sandra Kelley disagrees. Sandra Kelley says the Officers asked McKinney to drop his knife twice and then fired at a fairly steep upward angle from the bottom of a relatively narrow but steep enclosed staircase. The officers disagree and say they hand climbed to the top or nearly to the top. Officer Kaiser claims he went nearly face to face with McKinney and Officer Morton was three to four steps behind him. Their claiim is that Officer Morton was forced to fire his duty weapon because McKinney was threatening by gesture and word to kill his partner. If that’s so the fired rounds would eject the spent casings within contained area. Sandra Kelley disagrees saying she has a property receipt from the Fairview Police Department showing that the ejected casings were retrieved near the bottom of the stairs in or near some bushes. A witness tells the Grand Jury she saw no one else on the stairs but McKinney when the shooting occurred. She allows that her view was partially blocked by some shrubbery. She could see the top three or four stairs.
Enter the Forensic Science of the Oregon State Police and the Medical Examiner and the chance to resolve these questions. Right?
Where is the forensic science from the science from the scene and which should be the basis of settling the facts in this investigation? If the officers were where the say they were when Officer Morton’s weapon was fired, then the angle of entry into McKinney’s body chest and abdomen will be entirely different than if the shots were fired from the bottom of an 16,17,or 18 stairs and 45 degree stair case.
If the officers were in that close proximity to McKinney when the weapon was discharged and, given the probable arm extension of Officer Morton as he discharged, either the Uniform of Officer Kaiser or the clothing of McKinney could or should have latent gun powder residue in the fibers. It is less likely that McKinney’s shirt/jacket had flash burns from muscle fire of the weapon but that is certainly possible given the stated proximity.
There should have been an examination for gun powder residue in the enclosed stairwell on the walls nearest the gun hand of Officer Morton or just in general. Were McKinney’s hands bagged to determine if there were any traces of gunpowder residue if he happened to raise his hands in defense after the before, during or after the first of the three rounds were fired? Was there blood spatter evidence which would that have helped establish the proximity and angle of fire?
Was the scene frozen by a supervisor before the investigation began? Was the State Police Portland Crime Lab called immediately to the scene? Were they officers weapons taken and then fired and unfired rounds accounted for clearly in evidence? Was “Total Station” a laser measuring device used to establish angle of impact and direction of travel used to establish angle of fire? Which agency or which major crime team actually began and the lead the investigation not later got involved after the scene had been compromised?
Most importantly where is the Forensic Report presented to the Grand Jury not just showing the cause of death as determined by the Medical Examiner but presenting the best evidence possible from very real and available science because without it they were just guessing who was right and who was wrong. Let’s believe that all the questions posed above were considered. Even if none of that evidence was available from a scientific examination (highly unlikely) citizens could have every confidence that all those questions were asked and answered.
Beyond the shooting and the tragedy of officers involved in the death of another human being, the police and political leadership of the agency or agencies responsible are the guardians of the public trust in officer involved shootings. Citizens generally want to give police every benefit of the doubt that when it comes to using deadly force that it was not an option but the only option. Grand Jurors citizens do the best they can to find fact from evidence they just need all the evidence. They will do the right thing if given the facts and will find police acted within the law if at all possible. Because they all need to believe not that the police are l always one hundred percent correct, or that police and political administrations always cover all the bases, but that if the facts find police are wrong that the matter is resolved, the corrections are made and their trust is retained. And if we need a do over in a situation that is OK and someone who needs to lead should just say so.
Because in matters of life and death they need to believe that if they call for help that the cops arrived prepared to act, trained to execute and can be counted on to manage their fears.
They will forgive mistakes but will never forget the lie.
It will always be that way.
Bernie Giusto is the former Multnomah County Sheriff, former Gresham Police Chief and former OSP Trooper. He blogs for VictoriaTaft.com and is heard weekly on Fridays at 11am on the Victoria Taft Show on his segment “Week’s End With Bernie.” Follow him on twitter @BernieGiusto
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