Officer cleared by Phoenix police board in homeowner shooting

[Kleanbore]

the part where he was cleared for shooting a fella in the back also makes it very hard to stomach the fact the city cleared him.

In real life, though perhaps not in the movies, if a person is pointing a gun at someone else, I seriously doubt whether policy would distinguish among shooting him in the front, side, back, or top of the head.

The object is to neutralize the threat immediately.

I would imagine that in most shoot/don't shoot training, if the pop-up shows a person not in uniform aiming a gun at someone else, the correct answer could be "shoot."

The incident occurred year ago. Ample time for investigation. But let's play it at fast forward.

You admit a wounded man into your house, pull a gun on him, call the police and ask for immediate help, and tell them that there is a criminal in your house with a gun.

And then you stand in your house pointing a gun at someone who has already sustained gunshot wounds when the police arrive.

Brilliant. Positively brilliant.

What the heck would a reasonable person expect might happen?

And a year after it happened, some people seem to want to blame the responding officer for wrong-doing when something that was highly likely to happen did happen.

Whatever happened to common sense?

 

[lobo9er]

I have one last post on this thread with a few points

The ability of an individual to protect his family and property leagally gets less and less. society wants us to depend on "LE" and when they do wrong their department seem to do the "cover for their own thing". instead of letting the individual take the heat. Not everytime and not every department. The departments that cover for their own in situations where clearly an individual needs to learn a lesson only hurts police reputation over all.

Average citizen/civilian, police and military are equals. Justice is suppose to be blind

The home owner used his head, contained the situation and wasn't being a john wayne type, shooting up the bad guy. the officer in this situation admitted he "!@#@ up" and i believe told 911 or some one on the radio that he wasn't even sure he saw a gun. regardless he didn't identify himeself or give warning he was about to shoot, then preceeded to shoot a home owner defending his family in the back. If the home owner had shot the intruder in the back, and not killed him, the home owner could have been facing serious legal problems. defending the officers actions in this situation is not my stance. he was wrong.

a side note to this is that supreme court twice came to the conclusion police have no obligation to protect any individual. And mainstream society in my opinion would like us all to really on police as our self defense.

We all have our opinions and views. without this site I wouldn't hear alot of these stories. And agree or not its good to hear others perspectives.

 

[Kleanbore]

The ability of an individual to protect his family and property leagally gets less and less.

I don't see it that way. We now have concealed carry in many states, new castle laws in quite a few, and "stand your ground" laws in several.

The home owner used his head,

I don't know about that. Some of us may have learned from his experience that he could have done things a bit differently and avoided all of this.

the officer in this situation admitted he "!@#@ up"

True fact. Shot the wrong guy. Criminal negligence? I see no basis for that, but I don't have the facts.

...then preceeded to shoot a home owner defending his family in the back

He shot a homeowner who was pointing a gun at a wounded man, not knowing it was the homeowner. In the back? Does that matter at all, except in the movies?

If the home owner had shot the intruder in the back, and not killed him, the home owner could have been facing serious legal problems.

Again, not sure what the back has to do with it, except that it may or may not indicate what was occurring at the time. Certainly the homeowner could not shoot simply because the intruder might refuse to be detained. Arizona law does permit the use of deadly force against someone who has entered the home unlawfully, but it would be useless to speculate about justification here.

What does that have to do with the incident, anyway?

defending the officers actions in this situation is not my stance. he was wrong.

Yes, he did turn out to be wrong. But were his actions incorrect based on what he knew at the time?. Patients do die under the knife. But was there criminal negligence? I respectfully suggest that none of us can judge that, and unless there was, and as long as he followed the established procedure that has been subject to legal review, there is no ground for any action against him.

Now, the victim has filed a civil suit against the city. He may or may not win. The evidentiary burden is lower in that proceeding. Also, out of court settlements are common in such cases.

In my opinion, the only thing that anyone can reasonably conclude from this incident is that anyone who has a gun in his hand, and a particular, anyone who happens to be pointing a gun at anyone else, is at some risk of being shot when the police arrive.

That happened in a recent case involving the shooting of an off-duty officer in NYC. It almost happened when a man with a gun confronted with a gun another man who was stupidly pointing a weapon at someone who had stolen a duffellbag in Boise. We are warned of the possibility in instruction about investigating prowlers. That risk was demonstrated in a recent episode of The Best Defense. And that's what happened here.

When that happens, it doesn't really matter to the victim what the after-action review shows. The shots have been fired. The important thing is to learn from this and eliminate the risk in advance.

Personally, if I have to call the police, I'll make darn sure I'm not holding a gun in my hand when they arrive.

Want to do it differently? Well, at least make sure they know what you look like, what you are wearing, where you are standing, and that you are holding a gun. And if the dispatcher or officer tells you to drop it, do so without any delay at all.

No, I can't really agree that the homeowner used his head in this case. Bet he doesn't really think so either.

For some reason, some people seem to think that they are at the center of their universe, and that they are automatically identified to all as "the good guy" at the outset whenever any kind of incident occurs. That's very unfortunate. To witnesses and to the police, no one is "the good guy." Everyone is a potential threat and everyone is a potential suspect until things indicate otherwise.

 

[Gato Montés]

If men believe something to be true, it's true in its consequences.

Any segmentation or elitism seen in police departments today are a natural response to the social segregation caused by the public's attitude toward the police. They certainly don't get a good rep in the public's eye, with songs, movies and the like detailing the queer nature of these "pigs", these subhuman individuals whose only reason for taking the job was for the extra benefit of power.

Many LEOs I've had contact with feel a sense of repulsion felt against them for whatever reason, which in turn leads to a kind of siege mentality where they keep to themselves and damn the rest.

I'm NOT a huge fan of the police, but I think it's important to realize that our own behavior has a huge impact on the behavior of others. I find the term "civilian" when used by the police to be somewhat demeaning, as if to say that they are on a higher place in the social hierarchy. So in turn, I think we should realize the fact that regardless if they signed up for it or not, it's a hard job, it's a stressful job, and it's a necessary job. Now I'm not saying that we should bow down to the all holy police, but a smile or a wave might make all the difference in breaking the feeling of alienation felt by so many officers across the nation.

Ahem, well, I'm done. Back to the topic!

 

[akodo]

"If Brian would have known there was a homeowner in there, he probably would have hesitated," Gannon said, "but if he had hesitated, and it was the (suspect), the outcome could have been tragic."

right, because you'd be more dead if shot by a perp? Boggle!

No yelling 'put the gun down put the gun down!'? after all, it wasn't pointed at the officers.

 

[MarineOne]

This is a serious training/communication issue.

- 911 was told by home owner that "home owner is detaining perp with firearm".

- Responding officers were told by home owner's wife that "home owner is detaining perp with firearm" as they entered the home.

- Police entered house without announcing themselves to home owner, and ends up shooting home owner in the back.

- Police are recorded on 911 recording device saying that "we f**ked up" and that "I got your back" which have all the indicators that leaders/watch commanders/senior responding officers knew this went bad from the start.



If all of these hold true, the officer really screwed up and shouldn't have been reinstated. He needs remedial training, as do the 911 operators and the rest of the officers involved. This home owner and his wife did the right thing by communicating that the home owner is armed AND is detaining the perp. Clearly there were some serious breaches of standard operating procedure, training, and communication .... and they need to be addressed.



Kris

 

[coloradokevin]

have one last post on this thread with a few points

The ability of an individual to protect his family and property leagally gets less and less. society wants us to depend on "LE" and when they do wrong their department seem to do the "cover for their own thing".

How so? In what way does this situation show that a person does not have the right to defend themselves or their property? That is not in question here... Rather, a tragic case of mistaken identity ended with one good guy being shot by another good guy.

The home owner used his head, contained the situation and wasn't being a john wayne type, shooting up the bad guy. the officer in this situation admitted he "!@#@ up" and i believe told 911 or some one on the radio that he wasn't even sure he saw a gun.

That's quite an assumption on your part. None of us know how the homeowner behaved as the officer approached, and I still don't think we have an entirely clear picture of what information the homeowner relayed to the police department prior to this shooting.

Moreoever, as someone who has been to more than a few officer involved shootings in my career, I can tell you that a lot of officers feel a huge surge of fear, guilt, and remorse following a shooting... A number of officers I've known who were involved in VERY clear-cut clean shoots felt that they might have "(screwed) up" when the incident happened. After a critical incident it is also fairly common for a person to begin to second guess themselves, and question whether they actually saw what they believed they saw at the time of the incident.

regardless he didn't identify himeself or give warning he was about to shoot, then preceeded to shoot a home owner defending his family in the back.

Do you know this? I may have missed that part, but do we actually know that the LEO didn't provide a warning or identify himself? Even if that was the case, it doesn't automatically make the shoot a bad shoot. If the LEO believed that the person on the ground was about to be executed by the person with the gun, or that the person with the gun was about to shoot at him, then the legal requirements have pretty much been met for the officer to use deadly force.

If the home owner had shot the intruder in the back, and not killed him, the home owner could have been facing serious legal problems. defending the officers actions in this situation is not my stance. he was wrong.

The homeowner wouldn't have necessarily been judged in a different manner than the officer. Again, where the shots landed on the "shootee" is not nearly as important as why the shots were fired in the first place.

From a legal perspective, at least in my state, a LEO has to meet the same requirements as a civilian when utilizing deadly physical force. To take this one step further, the citizens in this state are also protected by a so-called "Castle Doctrine", which allows them to use deadly physical force against an intruder who they reasonably believe is going to use force against them... That gives the citizen much more leeway with the use of deadly physical force than the officer would have in that situation!

 

[woad_yurt]

For some reason, some people seem to think that they are at the center of their universe, and that they are automatically identified to all as "the good guy" at the outset whenever any kind of incident occurs. That's very unfortunate. To witnesses and to the police, no one is "the good guy." Everyone is a potential threat and everyone is a potential suspect until things indicate otherwise.

I thought that the wife had told them that her husband was holding an intruder at bay with a gun. That certainly qualifies as something that would "indicate otherwise."

That center of the universe line was a little cold. Would you stand up and say that to the guy or his family? And yes, by the way, the homeowner was identified as the good guy from the outset. The wife did that when she called 911 ("the outset") and said that her husband had the gun.

 

[chuckusaret]

This is typical, lack of experience, poor training, poor communications and poor leadership of the police officials and the cities elected officials. I'd bet and dollar to a donut this is the norm for this department, one screw up after another.

 

[Kleanbore]

I thought that the wife had told them that her husband was holding an intruder at bay with a gun.

What I read was that the wife said "he's in there with a gun."

This is obviously an emotional discussion for many, in addition to being about a most unfortunate incident from which everyone can learn.

Some people seem to think that, because the officer shot the wrong person, he should be punished.

Others seem to think a warning was in order--whether or not it was given is not clear.

Others make a great deal about the fact that the homeowner was shot in the back.

To discuss these more objectively, let's try discussing a hypothetical situation:

You are the homewoner. You are sitting at your computer or in your reading chair when you hear the terrifying sound of glass breaking in an adjoining room.

You arm yourself with your legally owned gun immediately, to find an intruder armed with a handgun walking in front of you toward a room in which some of your loved ones are.

Let's take it one step at a time:

• Is it lawful for you to shoot? (Yes, in every state, unless you somehow think it would be possible to retreat safely, which might be required in some states. I don't think you can safely retreat from a man with a gun, and I think common sense will support that assumption if case law in your jurisdiction does not.)
• Are you obligated to warn him--to tell him to drop the gun? (No.)
• You really, really don't want to kill anyone. Should you warn him? (No, that would probably be very unwise indeed, unless you want to greatly increase your risk of getting shot and leaving your family at the mercy of an armed man.)
• Can you lawfully shoot him in the back? (Yes, and in the front and side--doesn't matter. You may have no choice at all. John Wayne never shot anyone in the back, nor did Shane, but the fictional rules of conduct in Hollywood westerns do not apply in the real world. We are assuming in this scenario that he is not running for the exit.)
• Should you shoot him? (Well, yeah, unless you value non-violence and sacrifice over the lives and safety of yourself and your loved ones.)
• So, you shoot. Having shot him, have you committed a crime? (Not in this hypothetical scenario, but there will certainly be an investigation, and maybe charges and possibly an indictment, and maybe a trial. You have used deadly force when it was immedately necessary to defend yourself and your family from imminent death or serious injury.)
• Will you have second thoughts afterward? (Most likely, and for a very long time.)

Now lets add a twist and some real tragedy: You find that the man whom you have shot is not what you thought, but an off-duty policeman who saw an armed intruder thought to be very dangerous indeed invade an occupied residence and went in after him to protect the occupants. The intruder is still in the house. You have shot the wrong man!

• Have you made a mistake? (Yes, by definition.)
• Did you do anything wrong, based on what you knew at the time? (No.)
• Are you culpable for your mistake, from a criminal standpoint? (No.)
• Should you have done anything differently? (No, you acted properly based on what you knew at the time.)

Did the off-duty policeman do anything wrong? No. But he sure might rethink his actions afterwards.

Possible civil liability will vary a great deal from state to state.

Does this help? You unknowingly shot the wrong man, without warning, in the back, under circumstances that required immediate action, you are most unlikely to be punished, and if you are you will consider it wrong.

Same thing in Phoenix? We do not know the facts.

I hope this helps to lower the level of rhetoric and focus on the relevant issues.

 

[Deanimator]

Are you obligated to warn him--to tell him to drop the gun? (No.)

I have a legal duty to properly identify my target.

The difference between the cop and me is that I am FAR more likely to be held to that standard.

Of course the example and the extant case have one RADICALLY different element: The home owner in the example was already at home and knows nobody else should be in his home, much less breaking in. The cop entered a home in which he'd never been, and shot someone without properly identifying them.

Sounds like criminally negligent homicide or manslaughter to me.

 

[Bula]

Hey Kleanbore, who ever said that officer Lilly saw homeowner holding a gun to anyone? Matter of fact, after home owner was shot, he had to tell them where the bad guy was. They never saw 2 people together with one of them holding a gun to another. Now what? does your mind change?

 

[rbernie]

You guys are arguing over the morality and appropriateness of the shoot, when you have inadequate information to make that determination. The actual thread was started with:

The ruling by the Phoenix Use of Force Board determined Officer Brian Lilly acted within police policy in the incident

That's it. It wasn't a question of whether this was a good shoot - only that the shoot was ruled to have been conducted within the policies of the PD. Determining if the shoot was legally and/or morally appropriate, or if the PD policy is appropriate or not, is not something that you'll solve in this thread.

Back in post #49, hso tried to give you a way in which to have a on-topic dialog about this incident. Sadly, we've largely diverged from that and I'm not seeing any likelihood that we'll get back on track.

Prove me wrong.

 

[DAVIDSDIVAD]

I agree; kleanbore's post is nice, but it's a lot of pie in the sky thinking.

 

[Flyboy]

Stand around with a gun in your hand when the police have been summoned to a scene involving an armed assailant and you stand a very, very good chance of getting shot.

So: you have an intruder in your home, presumed to be dangerous. You've subdued him at gunpoint (he surrendered before you had to pull the trigger). Are you now advocating putting your own gun down and hoping he doesn't press a new line of attack?

Not in this lifetime, bubba. The cops are just going to have to learn to be responsible with their firearms, same as I did.

 

[Flyboy]

This makes me think of the suit in Ohio from the guy who got told he was too smart to go the police academy. /mild_sarcasm_off.

It wasn't Ohio, it was New London, CT.

 

[Kleanbore]

So: you have an intruder in your home, presumed to be dangerous. You've subdued him at gunpoint (he surrendered before you had to pull the trigger). Are you now advocating putting your own gun down and hoping he doesn't press a new line of attack?

Excellent question.

Coloradokevin described what he would do as an off duty policeman in Post 17:

1) Call 911 as soon as practical
2) Identify myself as an officer
3) Describe my clothing, and that I am armed
4) Describe the suspect
5) Explain the situation (robbery suspect at gun-point, etc)
5) Demand that dispatch relays this information to the officers that will be responding, and again describe my clothing!
6) Be very very aware of my movements and actions when the uniformed officers show-up, and be ready to comply with their requests.

The second item wouldn't apply, of course. I might suggest making sure that the officers know where you are in the house.

Personally, I'd rather not be in a situation of holding anyone--there are other serious risks, including that of ambush by an accomplice while your attention is diverted--but you have described a situation that just might have been thrust upon you.

The cops are just going to have to learn to be responsible with their firearms, same as I did.

Sorry to have to take issue, but I think that's wishful thinking. The risk at the point of encounter is real.

And one more time, it has been responsibly determined that the officer acted in compliance with police policy. That's not a trivial finding. No policy is perfect, but you can be assured that that policy was devised to maximize safety and effectiveness and to minimize city liability, and that it has been subject to extensive legal and other expert review. It was probably modeled after the policies of other forces.

These policies are not just the product of bureaucracy, as some might think. Their very existence helps to protect the municipality against civil suits; the cost of insuring against these in our litigious society, whether via self-insurance or through purchased policies, would shock any taxpayer these days. Compliance with the policy by the officers helps significantly in that regard and will also go a long way toward a defense against any suggestion of criminal negligence.

I may have come off in earlier posts as a little harsh in my comments about the homeowner. To be fair, while common sense and 20-20 hindsight may highlight his tactical errors harshly, it may just may have been the news reports of what happened to him more than a year ago that first educated me about the risks and how not to exacerbate them.

Of course, many instructional books and courses do warn against getting into the situation that occurred here.

If I were to find myself in the position of holding a man at gunpoint I would follow Kevin's advice, but personally, I don't want to ever find myself detaining anyone if I can avoid it. All downside, no upside.

 

[Deanimator]

If I were to find myself in the position of holding a man at gunpoint I would follow Kevin's advice, but personally, I don't want to ever find myself detaining anyone if I can avoid it. All downside, no upside.

What are you going to do if he puts you in reasonable fear of life and limb and you shoot him? Are you going to just walk away with a live and possibly still dangerous individual in your home? What will you do if he neither flees nor attacks? Turn your back on him and walk away?

 

[Kleanbore]

What are you going to do if he puts you in reasonable fear of life and limb and you shoot him? Are you going to just walk away with a live and possibly still dangerous individual in your home? What will you do if he neither flees nor attacks? Turn your back on him and walk away?

Reasonable question. Actually, a good one we all ought to think about before we are faced with that situation.

In the TV series put on by the various instructors, when the incident occurs outside, they tell you (as I recall) to check for other threats, holster your gun, be the first to call 911, describe yourself, stay on the line, and comply with instructions from the 911 operator and arriving police. This one was from The Best Defense, I think.

There's an NRA course called Personal Defense Inside the Home. Its orbit and mine have not intersected timely, but I'm told it's good. Perhaps someone who has taken it can relate something.

To give you my best answer now, I don't think i'll walk away or turn my back on him, but I'll do my darnedest to not be holding a gun when the police arrive.

Maybe throwing it down at the last minute, before visual contact...

Any comments from LEOs, qualified instructors, or people who have taken advanced training?

 

[Deanimator]

holster your gun

With an active threat in the house? Seems like an exceptionally bad idea.

 

[flying_gage]

Damn, I am not a civilian anymore? Huh...

(I am a firefighter)

 

[PT1911]

alright... damn bad situation with a horrid outcome....


I dont mean to make light of the situation, but the cop shot 6 times to what he thought was a threat and the guy LIVED... not only is this cop trigger happy and careless, he is also apparently a bad shot.

once again, I am not attempting to make light of the situation but I dont see anything this guy( the cop) did right in the situation whether he felt threatened or not.

On another note? what on earth did the 911 operator say? They didnt even know there were home owners there? Who called 911? There is no excuse for his judgement or his actions. He heard the word gun and started shooting... He should never be allowed to carry a gun on duty again.

 

[ozarkhillbilly]

Just a few quick questions.

Ok so someone breaks into my house I am not supposed to hold them at gun point, just run them off and call the police sometime later? Do I want to make sure the perp has left before I call to make sure he is gone before the police arrive?

If I must call the police make sure I give them all sorts of info. Where I am at what I look like what my clothes look like what part of the house I am in and repeat myself a lot, then question the 911 operator to make sure they are doing their jobs and relaying all proper info to the police and especially the ones that might come into your house. I am suppose to be calm and remember all of this in a stressful situation because if I do not the police might shoot come in and shoot anybody they see with a gun? Is this because it might stress the officer out if he had to find any of this out himself before he shoots?

So it is entirely appropriate for an officer to shoot a civilian in their own home if they have a gun? Ok what if the gun is in easy reach is it ok to shoot them then?

 

[Kleanbore]

Ok so someone breaks into my house I am not supposed to hold them at gun point, just run them off and call the police sometime later?

If you have reasonable belief that presents an imminent threat of death or imminent bodily harm to you or your family and if it is necessary to do so, you are permitted to employ deadly force to stop the assailant.

In many states, the fact of a forceful and unlawful entry into your occupied home will establish a basis for that reasonable belief. You can shoot to stop and reasonably, you are not obligated to warn, because doing so could result in your being shot first.

Want to "hold him at gun point" ?

Sniper5, who has reason to know what he's talking about, addressed that idea in Post #70. Here's part of it:

Holding someone at gunpoint is the second riskiest thing you can do as a homeowner, off duty cop, or plainclothes officer, the first being walking over to him to handcuff him by yourself. He is an immediate threat to me, either by attacking directly, taking your concentration off of the scene and potential partners, or making you a target for potential first responders.

I think that's good advice indeed. In my CCW class, we were advised to never detain anyone.

Actually, I've never seen the point in "holding someone at gunpoint", since if the perp chooses to leave you cannot use the gun to stop him! Yeah, they do it on TV, but TV ain't real life.

By the way, Sniper5 also addressed a question posed by Deanimator:

Post firing, my first thought is to find somewhere else to be. I want to be in another place/room/house/city/world when someone just attacked me. Listen to that little voice in your head that says "RUN, GET OUT!!!" If that makes me a gutless chicken, then I am.

http://www.thehighroad.org/showpost.php?p=5938294&postcount=70

Is this because it might stress the officer out if he had to find any of this out himself before he shoots?

I cannot tell whether you intended that to be snide, but I'm sure you realize that it is completely unrealistic. Ever see any shoot/no-shoot training that calls for an interview?

A lot of people seem to want to judge without facts. There are three known facts: (1) police were summoned to a break in after a "shots fired" call; (2) an officer encountered a man with a gun and shot him, and it turned out that he had shot the homeowner; (3) a year later, a review indicates that the officer had complied with police policy.

We do not know whether the policeman told the person to drop his gun, which means we do not know if he was expected to do so; and we do not know the actions of the homeowner at the time of the shooting.

In the episode of The Best Defense that I described earlier, several police officers told the man with the gun who had just lawfully defended himself to drop his gun, but he hesitated for just a moment and was properly but tragically gunned down. The advice was to holster the gun before the police arrive.

 

[Deanimator]

By the way, Sniper5 also addressed a question posed by Deanimator:

Post firing, my first thought is to find somewhere else to be. I want to be in another place/room/house/city/world when someone just attacked me. Listen to that little voice in your head that says "RUN, GET OUT!!!" If that makes me a gutless chicken, then I am.

That seems like a REALLY bad idea.

1. I wouldn't have shot the guy if I didn't think he was an immediate and credible threat to my life and limb. Unless I KNOW he's dead, why would I leave him unwatched?

2. Why would I flee a relatively secure and controlled area (my home) for a TOTALLY UNcontrolled area? It sounds like a great way to encounter any accomplices of my assailant, and in an area in which they have TOTAL freedom of movement. In my home, I'm on familiar ground, and in an environment which limits and canalizes the freedom of movement of my opponent(s) It also sounds like a great way to forfeit any and all cover and concealment.

3. If relevant information isn't being forwarded to the cops, or they're ignoring it, how will my encountering them OUTSIDE of my home make things better?