Paul Duncan (courtesy framingham-police.org)

Republished with permission from Force Science Institute:

The risk of keeping a finger on the trigger when not intending to shoot has long been emphasized in Force Science research reports. The potential human toll–and the liability burden–are vividly illustrated in a recent Appellate Court decision in which justices ruled that officers are not guaranteed qualified immunity from legal action when a shooting is purely unintentional and accidental . . .

The case arose from a midnight raid by a municipal SWAT team on an apartment in [Framingham] Massachusetts suspected of harboring several youthful crack dealers with records of violent offenses and ties to street gangs.

Eurie Stamps (courtesy huffingtonpost.com)

In a pre-action briefing, the operators were told that when they crashed into the place they would likely encounter the lessee, a 68-year-old step-father of one of the raid targets [Eurie Stamps, above], who was “not suspected of any involvement in the illegal activity underlying” the search warrant. They were advised that the elderly man had “no history of violent crime or of owning or possessing a weapon and…posed no known threat to the officers.”

Indeed, the team confronted him in a hallway, roused from bed and startled at what was happening. He immediately complied with orders to lie face down on the floor, hands above his head. An operator was told to watch him while others canvassed the premises.

The officer [Paul Duncan] did so by pointing a loaded M-4 carbine, “with the safety off and his finger on the trigger,” at the old man’s head, according to the court’s recap of the incident.

“At some point,” the court recounted, the operator “pulled the trigger of his rifle and shot” the detainee. The single round fatally pierced the man’s head, neck, and chest.

The officer claimed the rifle unintentionally discharged when he lost his balance and fell back while trying to handcuff the victim. Everyone acknowledged that he had “no intention of shooting”; the shot “was an accident.”

When the dead man’s estate brought a 1983 civil rights suit against the operator and his department, the defense argued in federal district court that the nature of the shooting should be a pivotal consideration.

Because it was an accident and not a deliberate act, defense attorneys reasoned, the officer was entitled to the protection of qualified immunity. They moved for summary judgment to dismiss the case.

The district judge denied the motion, holding that a reasonable jury could find that the officer had violated the victim’s 4th Amendment rights. The law was “clearly established,” the judge ruled, “that pointing a loaded firearm at the head of an innocent and compliant person, with the safety off and a finger on the trigger, is not constitutionally permissible.”

Even the “accidental use of deadly force in the course of an intentional seizure may violate the Fourth Amendment if the officer’s actions…were objectively unreasonable,” the court explained. And in this case, there were grounds to conclude that “the officer’s actions leading up to the shooting” were unreasonable and constituted the use of excessive force.

Last month, a three-judge panel of 1st Circuit US Court of Appeals sustained the District Court’s decision, agreeing that the case must go to trial.

“Where an officer creates conditions that are highly likely to cause harm and unnecessarily so, and the risk so created actually, but accidentally, causes harm, the case is not removed [by qualified immunity] from Fourth Amendment scrutiny,” the justices declared. “It is close to self-evident that a jury could find as a matter of fact that [the operator’s] actions were not reasonable….

“[T]his is especially true where, as here, a jury could find that the officer is not forced to act based on a split-second judgment about the appropriate level of force to employ….[This officer] had adequate time to determine that there was no reasonable threat…and to calibrate his use of force accordingly.”

The appellate decision puts “police officers on notice that a warrant to conduct a SWAT raid does not grant them license to aim their weapons at the heads of submissive and nonthreatening bystanders,” the justices wrote.

Case law indicates that there is “widespread agreement” with this position among the nation’s other circuits, the panel said.

Appropriately, the Court noted, the operator should have kept his finger outside the trigger guard, the safety engaged unless the detainee was perceived as a threat, and the muzzle pointed in a safe direction, employing the contact/cover tactic in cooperation with another officer for the cuffing procedure.

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81 COMMENTS

  1. LOL. Can’t help laughing out loud at the last paragraph. The rules of gun safety have been confirmed by an appellate court! That makes them law, right? At least case law. Damn but I’m still laughing and not sure why. Someone help me out here as I think I’m loosing my mind.

  2. Good. Book em Dano.

    Tired of cops running into the action guns drawn only to put themselves above all else by shooting someone often on a whim or by accident.

    There, I said it. Glad TTAG has a no flaming policy.

  3. Yeah… Fun fact, this scumbag will not spend a day in jail. Which is too bad, because what he should be is stood up against a wall and shot.

    • Nope Shootin to good for that cop kola. I’m thinking load’em in a trebuchet, soak in fuel and launch through a ring of fire, and landing in a tar pit. Accidentally on purpose

  4. And Gabe Suarez promotes purposely putting your finger on the trigger when holding someone at gunpoint…hmmm

    • Well, held at gunpoint can mean a lot of things. If you are holding a potential (or actual) threat at gun point then you SHOULD be on trigger, particularly if they are close. If, on the other hand, they are face down on the floor then no, come off trigger.
      In this case I would venture a guess and say that this “operator” had very poor trigger finger protocol which is common for for the boys in blue.

        • I know that you “need” to be right Rabbi and with all due respect, you are just plain wrong here. If I’m pointing my gun at you I’ve made the decision to shoot you; if I have to.
          Saying “never”, in this context, is absurd.

        • The Rabbi does not “need” to be right, he IS right.

          You said it yourself: “if I need to.” Your finger should not be on the trigger UNLESS YOU NEED TO SHOOT

          Every negligent discharge happened because the finger was on the trigger when it didn’t need to be. Having your finger on the trigger when not shooting is what is absurd. The subject of the original post proves it.

        • I am confused, are you agreeing with “finger off the trigger until you have made the decision to shoot” or do you think that concept is a fail?

    • Sorry Sammy et al. On trigger, particularly if the threat is close. Say what you want, but you are flat out wrong. And don’t give me the “fail” crap, I know how to control my trigger.

      • I am sure you do know how to control your tigger, just like the cop in the article.

        “The risk of keeping a finger on the trigger when not intending to shoot has long been emphasized in Force Science research” I am also sure you know better than the conclusions of Force Science.

        • @Paul
          If somebody needs to be shot, you may muzzle them.

          You do not necessarily have to fire, but in this situation they can be shot justifiably already.

          Whether your finger is on the trigger or not, is LEGALLY irrelevant since this guy may be killed right now anyway. It’s just that you, for some reason (dont want blacklivesmattar at your door), do not want to fire.

          However, since you do not wish to shoot the guy for whatever reason, why finger on the trigger, which takes only a jolt from a teammate to fire when you do not intend to?

          Practically, i’d say it’s a good thing to tell cops to not put the finger on the trigger, because they do not give a goddamn care whether the guy they are muzzling may or may not be killed. They point their guns WAY more than they need to, and until this is resolved, finger off the trigger when covering a handcuffed submissive on-the-ground suspect is a good idea.

          But, were all cops capable of weeding out the lethal perps as the only ones they POINT guns at, finger on trigger or not would be a non-issue.

      • Just because you don’t believe it does not make it false. Lol

        Just because you are incapable of learning from the mistakes is others does not make the lesson meaningless

    • Gabe Suarez is a criminal and admitted schizophrenic. No sane person would follow his “advice”.

    • Gabe Suarez is an embezzler and admitted schizophrenic. No sane person listens to him.

  5. “The appellate decision puts “police officers on notice that a warrant to conduct a SWAT raid does not grant them license to aim their weapons at the heads of submissive and nonthreatening bystanders,” the justices wrote.”

    You would think this would go without saying, but I’m glad it was said.

    This is an important case.

    By the way, where is all the MSM outrage over an “unarmed man” being shot and killed by police? THIS is the kind of case they should be drawing attention to.

    Nice to see for now “Qualified Immunity” is not an automatic defense against what can be called nothing short of negligent homicide. Maybe that should be a MSM story, too…that the cop is NOT ‘getting away with it’ … at least completely.

    • …where is all the MSM outrage over an “unarmed man” being shot and killed by police?

      He’s too old to be Obama’s son.

    • There’s no time for for this!

      The MSM needs to cover Trumps hair and d*ck comments. Right after they help correct the injustice of book publishing and the Oscars being #SoWhite.

      Priorities, JR.

    • No ambiguity, no controversy. MSM needs cases that are not clear cut, since the goal is identity politics, and not justice.

    • From articles about various SWAT raids I’ve read, it seems to be common if not standard procedure for the police to hold EVERYONE at gun point until their raid is complete, including old people and small children.

      • Which is relevant how? When it comes down to it, holding someone at “gunpoint” is a pretty long way from finger on trigger and muzzle pointed at head.

        He was in “Hollywood” mode, it seems.

        I’ve been on warrant service, and I understand how things are done. Somehow, with a bit of common sense exercised at that time, and a bit of this old-fashioned thing called “discipline,” we managed to not shoot a bystander in the head.

        Geez what a fuster cluck. This story is a tragedy and there is NO justification for what happened if the facts are as described in this article. Shoot; the team was even briefed beforehand that this guy was not a threat for crying out loud.

  6. Um, amateur hour. I had been a USAF SP in the 80’s. Once we subdued a suspect and we were in over-watch position over the suspect, unless at war, the muzzle was up and safety on. Heck, I bet if he were an USAF SP (SF), he probably would have faced a court martial and subsequently imprisoned for murder.

  7. Something about calling SWAT officers “operators” makes me feel a bit uneasy. Whatever happened to Protect and Serve? This (Detroit, Chiraq, etc. excepted) ain’t Afghanistan. The mentality just feels wrong.

    • Detroit and Chicago are still American cities, inhabited by American citizens. NO exceptions, no matter how much the CPD wants it’s own Gitmo.

    • “Operator” implies Special Ops/Special Forces. To call “Police Officers” Operators is another militarization of civilian community police departments; along with the gear, the weapons, the training like they are in Iraq. And don’t think that trend is accidental.

      Ridge

  8. Since when did police officers become “operators”? If police are starting to call themselves operators, then I think the police need to reassess what their job actually is.

  9. “…police officers on notice that a warrant to conduct a SWAT raid does not grant them license to aim their weapons at the heads of submissive and nonthreatening bystanders.”

    It’s pretty pathetic that a court has to tell them that.

    Yet another case where a SWAT raid seems unnecessary. What, exactly, was the imminent danger from these “youthful crack dealers”? Why couldn’t they just stake out the place and pick them up when they left the house? If you know there are uninvolved innocents in the house, and it’s not a hostage situation, what’s the justification for this kind of raid?

    • “If you know there are uninvolved innocents in the house, and it’s not a hostage situation, what’s the justification for this kind of raid?”

      To intimidate the populous, plain and simple. Bad things happen (to the State) when the populous is not afraid of the State.

      SWAT raids like this illustrate the State’s primary goal: providing “incentive” for We the People to serve the interests of the State.

  10. Good call by the court. I predict that this will have unintended consequences though. Police won’t use “accidental discharge” as an excuse, and instead will claim that “while being handcuffed, the man struggled, got a hand free, and appeared to be reaching for something” instead.

      • IFRC, police footage is only used by the police when they prove them selves innocent. If they screw up, I do not believe they are required to hand it over, cause it is their footage, no yours. why in the hell would they give you something to damage their defense?

        • See discovery rules as they apply to exculpatory evidence. Holding back such evidence is a BIG no-no.

        • sagebrusher,

          A police officer’s body camera video records are evidence. If police fail to provide the body camera evidence, they are guilty of removing evidence from the scene of a potential crime. They are also potentially guilty of evidence tampering. Our courts (in theory) will not let police simply refuse to hand over body camera video records.

    • A fair concern.

      It is perhaps at least partially alleviated by a broader and more consistent use of body cams.

    • Agreed. Body cams are a must.

      Like all the Statist say, “shouldn’t be an issue if you aren’t doing anything wrong… ”

      Now, if you’ll excuse me, I have to go shower after that comment.

    • “…and instead will claim that “while being handcuffed, the man struggled, got a hand free, and appeared to be reaching for something”

      And what good would that do? Even when such a thing clearly happens, and is caught on tape from multiple angles, the public will be easily suckered into believing the worst of good officers, and work tirelessly to ruin their lives.

      https://youtu.be/KRS6v5B_JpI

      • >easily suckered

        Says the guy re-posting the same chopped up videos with mangled soundtracks trying to defend murderous cops.

    • So you’re admitting in the future the cop will lie and all the other cops will lie, too. Sounds about right.

  14. “The appellate decision puts “police officers on notice that a warrant to conduct a SWAT raid does not grant them license to aim their weapons at the heads of submissive and nonthreatening bystanders,” the justices wrote.”

    What does performing a SWAT raid have to do with pointing weapons at submissive and nonthreatening bystanders? This “rule” should apply to all police encounters. Seems like this could be applied only to SWAT raids in the future. Or, at least argued by some lawyer that it only applies to SWAT activity because it specifies SWAT raid.

  15. This sounds like a training problem a SWAT officer shouldn’t have. An M-4 is one of the most ergonomically designed weapons to take on and off safe. And I assume as a SWAT officer he had numerous reps manipulating his M-4 making taking his weapon on and off safe automatic reaction. So either his training failed or the deparment has a stupid policy of weapons off safe during a raid. Both need to be addressed.

  16. Charge him with murder, lock his ass up & let him be a lesson to every other cop out there… You’re tin badge doesn’t mean you get away with shit scot free.

  17. “Appropriately, the Court noted, the operator should have kept his finger outside the trigger guard, the safety engaged unless the detainee was perceived as a threat,”

    Check out the bullshit language. Operator? Using Delta Force lingo makes cops with G.E.D.s feel equal to soldiers. Detainee? Glad to see that terminology from the undeclared and unconstitutional World Wide War on Terror Which Never Ends being used by the “Force Science Institute.” Sounds like a cop front org. Who funds the Force Science Institute?

    The real scam the police unions have going is getting the municipalities and units of government that pay them to cover all legal bills. Sue a cop and the sponsoring government entity or an insurance company cuts the check if the cop is found guilty. Make cops pay their own legal bills and police shootings will drop by 90% overnight.

    That’s why police unions worked hand in hand with NRA state lobbyist Todd Vandermyde to put Duty to Inform with criminal penalties in Illinois 2013 carry bill. Make DTI criminal and cops can kill ANYONE, ANYTIME, but do it legally. Go team NRA!

  19. The principles of firearms handling are simple. There are 4 rules designed to be redundant to one another that have to fail for something like this to happen, not just one. The officer’s blatant disrespect of his weapon and the person he was holding ultimately lead to the death of this man. BLATANTLY NEGLIGENT given the circumstances, which I don’t believe qualified immunity protects against anyways.

  20. “When the dead man’s estate brought a 1983 civil rights suit against the operator and his department, …..”

    Am I missing something here, did this happen in 1983 – 33 years ago?

    • If the question is serious, the answer is 42 U.S.C. Sec. 1983, not 1983 AD. If the question was not serious, then it was amusing. You get credit for it either way.

  21. “Where an officer creates conditions that are highly likely to cause harm and unnecessarily so, and the risk so created actually, but accidentally, causes harm, the case is not removed [by qualified immunity] from Fourth Amendment scrutiny,” the justices declared. “It is close to self-evident that a jury could find as a matter of fact that [the operator’s] actions were not reasonable….”

    That’s the money shot IMO. It speaks to all the artificially created police situations that increase the level of danger for innocent bystanders. An example that immediately comes to mind is a DUI check point, it forces a confrontation with innocent people otherwise not known to be a threat and creates a road hazard.

  22. If this “operator” was following department policy, the whole department should be relieved of all their weapons and issued revolvers as a replacement. At least that way they are a bit less likely to have another oops!

  23. And — if this goes to trial — the jury will find that the cop did nothing wrong and is above the law.

  24. I think the case is illustrative of the attitude of many cops toward NON-criminals. They view us as nothing more than expendable reactive targets.

    Look at how virtually EVERY victim of a “mistaken address” SWAT raid has been treated. It’s apparently SOP to treat INNOCENT victims like garbage. Take for example the Hmong family whose home was rendered uninhabitable with CS gas by police who raided the wrong house. They were left a bucket of cleaning supplies on their front step. Not only were their 4th Amendment rights violated, they were given CHORES to do by police, when what was actually necessary was a Chemical Corps decon team. And that was one of the BETTER outcomes. Needless to say, nothing was done to help them until they sued.

    War on cops? I’d ask the guy in this case… if I knew how to hold a seance…

  25. I’m not defending the LEO’s, they fu way too much. But they get the benefit of the doubt because they spend most of their day having tea and crumpets with the upper crust. . . . NOT.

    They deal with the lower echelon of life everyday and usually every hour, especially today with so many people claiming police brutality.

    This LEO does not deserve the benefit of the doubt but treat them individually and their individual circumstances.

    Management will throw them under the bus in a heartbeat.

    I’m no LEO. Just sayin”

    • “They deal with the lower echelon of life everyday and usually every hour, especially today with so many people claiming police brutality.”

      Good one with the assumption that the law is written to deal with the “lower echelon of life”, as opposed to a structure of government power as well as enforcement of what the ruling class perceive to be acceptable social norms.

      Needless to say the police is the mailed fist that dispenses violence to enforce those two things.

    • And ten times out of ten, the “good cops” will throw YOU under the bus rather than stop a bad cop from harming you. You’re more likely to see bigfoot than you are to see a cop stop another cop from harming a completely innocent citizen.

    • “They deal with the lower echelon of life everyday and usually every hour”

      Hahaha no, they enforce the will of the political/ruling class with violence, and they have worked tirelessly for decades to attack and erode civil liberties to increase their power over the people.

      They give civilians absolutely no benefit of the doubt, therefore they deserve none in return.

    • For what it’s worth, that pig got indicted for involuntary manslaughter. He’ll probably walk, but it’s something. A very little something.

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