Questions over assault weapon used by Mesa officer facing murder charge

[Sammy1]

What do you mean by "Settlement found against him"? I'm unfamiliar with that phrase. Was the case settled or was there a verdict?

He lost and the suspect was awarded a monetary settlement. Like the OJ case, he was found not guilty in criminal court but lost the civil case.

[Sammy1]

Yes I am full time LE and I work in one of the largest metropolitan areas in the United States.
The administration for the agency I am currently assigned to have some of the strictest policies in the nation regarding use of force.
I have testified in court and been involved in use-of-force investigations as both a subject and a witness.

So now that's out of the way, I don't see how someone can get jammed up in court over using a department approved firearm in a caliber that is probably the second most common used by LE all across the US. Any union rep or lawyer worth his salt could easily establish these facts and make it a moot point. Now like I said if we were talking about a oddball caliber, an oddball or modified gun, or possibly an incriminating statement by the Officer involved, then that's a different story. Being in LE, as I assume you are as well: you often hear wild BS stories like this from your co-workers about how so and so got hemmed up for XYZ, often once you discover the actual facts of the situation you also often discover additional fault at the hands of the Officer that was not initially disclosed or that the rumor mill was unaware of. I would hope this is not the sort of forum where people would spread obvious BS like "using a .45 can get you sued and fired". Give me a damn break.

Regardless of regional politics or viewpoints, a civil conviction based solely on the use of a commonly-used larger caliber than what was issued is extremely unlikely and if it did indeed occur would be a easy appeal to win.

The car was eventually stopped, and he ripped open the door, grabbing the suspect with his left arm while his right arm holding the 1911 unintentionally discharged into the suspect's mandible during the struggle. It wasn't an intentional act but he was eventually charged and made to look like an intentional act. There was a big deal made out of the sergeant not using his dept. issued revolver and using a 1911 in 45 acp. He was acquitted because the prosecutor over charged. Then he had to go through this all over again with the civil tort, which he lost. Morale of the story don't give the lawyers any extra ammunition to work with.

[Mas]

Sammy1 is telling you true. The case was in the late 1970s. The auto pistol on duty was largely an anomaly in that part of the country. The only state police in the nation issuing auto pistols for duty was Illinois (Model 39) and the .38 Special was the predominant duty sidearm caliber. (During that period, one NYPD guy who was hired as chief of a small department in NH discovered that officers there carried .357s and .45s and exclaimed "Whaddaya shoot up here, trees?") When I carried a Colt .45 auto on duty (privately owned/department approved) in the same state, there were those who muttered "radical" and "maverick."

Sgt. James Kennedy, the involved officer in the case Sammy1 cites, was a department firearms instructor, probably the best shot on the force, and a gun enthusiast who had recently shot in the IPSC Nationals. Among other things he had attended Smith & Wesson Academy, the SIG Academy of its time. I knew him as a good man and a good cop. The prosecution tried to paint him as a cowboy and overaggressive, and used the higher capacity/larger caliber/handloaded ammo as part of their strategy to establish that theme. Jim Cirillo came up from New York and did a splendid job for the defense as an expert witness, establishing that among other things Sgt. Kennedy's .45 ACP was less powerful than the .357 Magnums issued to the State Police detectives who investigated the case.

Do not underestimate the potential for opposing counsel to pull this sort of thing to paint the accused officer as someone obsessed with violence and prone to excessive force. Jim Kennedy was a good cop who risked his life to protect the public. What happened to him could happen to any of us.

[AMC]

Does it feel to anyone else like @Mas has been trying to warn us about this for a couple of decades, and some folks still aren't listening? The point isn't that making silly and immature decisions with firearms and equipment WILL get you jammed up...its that depending on circumstances it's a factor that can contribute to you getting jammed up, especially in civil court where the standard of proof is much lower and judgements are far more about how the jury 'feels' about the case because of that. And frankly, under current California law, you'd better make sure your equipment decisions are department approved and in compliance with your training.

Again this is not a question of "They're gonna hang ya Fer that!" Its just a matter of not giving the opposition any more handles to grab onto for leverage.

@sickeness, not sure how long you've been a cop, but have you ever been sued in state or federal court?

[HCM]

Yes I am full time LE and I work in one of the largest metropolitan areas in the United States.
The administration for the agency I am currently assigned to have some of the strictest policies in the nation regarding use of force.
I have testified in court and been involved in use-of-force investigations as both a subject and a witness.

So now that's out of the way, I don't see how someone can get jammed up in court over using a department approved firearm in a caliber that is probably the second most common used by LE all across the US. Any union rep or lawyer worth his salt could easily establish these facts and make it a moot point. Now like I said if we were talking about a oddball caliber, an oddball or modified gun, or possibly an incriminating statement by the Officer involved, then that's a different story. Being in LE, as I assume you are as well: you often hear wild BS stories like this from your co-workers about how so and so got hemmed up for XYZ, often once you discover the actual facts of the situation you also often discover additional fault at the hands of the Officer that was not initially disclosed or that the rumor mill was unaware of. I would hope this is not the sort of forum where people would spread obvious BS like "using a .45 can get you sued and fired". Give me a damn break.

Regardless of regional politics or viewpoints, a civil conviction based solely on the use of a commonly-used larger caliber than what was issued is extremely unlikely and if it did indeed occur would be a easy appeal to win.

You seem fixated on the .45 ACP thing. It’s not about a .45 ACP or any other specific choice. It’s about an unscrupulous prosecutor or attorney spinning details for perceived political or financial gain. If the facts are not on their side they appeal to emotion.

Attorneys can (and do) make ridiculous emotional arguments to juries all the time. They even hire psychologists as jury consultants to figure out what will and will not emotionally impact juries. You can counter those arguments but do you want to increase your burden if you don’t have to ? It’s unlikely to be the sole factor but why give the other side a freebie ?

PS. As noted above the incident in question occurred in the 1970s when 38/357 revolvers were THE dominant LE guns. While it has pockets of regional popularity, .45 ACP is a distant 3rd behind 9mm and .40 in LE use today.

[vcdgrips]

Slight thread drift

1. Life can be hard, decline the opportunity to invite life to kick you in the junk unnecessarily.

2. If I was issued/mandated a gun i.e. Glock 17, my off duty gun would be a version of the same loaded with my issue round. PERIOD. It is simply not that hard to dress around a full size gun when you are already presumably a professional LEO. Perhaps, a G19 or 26 if that was the "plainclothes" issue.

3. LEOS today have to run at least five gauntlets simultaneously in real time re uses of force

a. civil liability
b. criminal liability
c. dept policy
d. getting home safe or not
e. living with what they did despite "passing" a-d

4. Ergo see #1

Blessings to you all in this time.

[CWM11B]

The original post re the .45 reads as if the caliber choice resulted in the charges/lawsuit. I'd call BS too. @Mas jumped in with the rest of the story, which shed a lot of light. ND. THATS what led to the charges and lawsuit. The adversarial attorneys used the .45 thing as an aggravating/enhancement factor to paint their case in the most favorable light for them. That there was more to the story is the point. No argument that lawyers will try and do most anything to win. I can think of a lot of things to bring up about any weapon or ammunition combo that could play to the emotions of a jury if it was allowed into the record. I am frequently asked in some of the programs I present in questions about such choices. Without being flippant or sarcastic I simply reply : if it comes to an adversarial trial situation, anything you say or do can and will be used againt you in court.

[Glenn E. Meyer]

HCM said:

They even hire psychologists as jury consultants to figure out what will and will not emotionally impact juries. You can counter those arguments but do you want to increase your burden if you don’t have to ? It’s unlikely to be the sole factor but why give the other side a freebie ?

Wise words. The usual statement is show me case where someone was convicted because of equipment variable X. But that's not what the decision research says. The jury decision is probably the sum of the presentations, so the appearance issue is part of the sum. Next, opinions are based on the coherent story that grabs the jury from the beginning and they interpret facts selectively to confirm their internal narrative. That's hard to break at time. It takes very savvy jurors. You can counter some arguments but in some jurors' minds the counter is interpreted as: Why are you making a fuss about this? The other side must have a point. It takes a bright juror to logically parse as compared to emotionally processing.

The standard model of the mind is two fold: Quick emotions usually dominant slower rational cognitions. An initial presentation of some blood lusted BS is nasty.

Look at the Bernhard Goetz case, way back when. There was strong evidence that he might have been a touch extreme in his actions, esp. his utterances. However, the defense was pretty brilliant in making the self-defense case. However, they had to overcome the negative impact of his using hollow points and a 'tactical' holster. Jurors later said they were predisposed to conviction because of them. But they thought through it. However, he was convicted on the weapons charges and the jurors said these equipment issues influenced that decision and the judge said they influenced his sentencing.

[Erick Gelhaus]

Because we're past page 5 ...

I'd be leery of carving decisions in stone based on a single case. While I will do an occasional meme-like post on case law decisions, one really needs to read the complete ruling to understand & opine on it;

Settlements are agreements between involved parties before trial or (possibly) during the post-trial appeal process. Verdicts are decisions from the trier of fact - either jury or judge. Words do have meaning;

I'll add another problem to @vcdgrips list ... the court of public opinion. It can lead quickly to organizational and community betrayal;

Reference the original post - I've already commented on the ejection port cover. I place a tremendous amount of blame on the supervisor in the hallway that night. He doesn't get to be called a sergeant. While the officer pressed the trigger, the supervisor drove that whole mess and caused the tragic outcome. "We" need to be spending a lot more time addressing that.

[Coyotesfan97]

Reference the original post - I've already commented on the ejection port cover. I place a tremendous amount of blame on the supervisor in the hallway that night. He doesn't get to be called a sergeant. While the officer pressed the trigger, the supervisor drove that whole mess and caused the tragic outcome. "We" need to be spending a lot more time addressing that.

Erick speaks the truth. The Officer made the decision to shoot. My belief is he was heavily influenced by the Sergeant’s commands and his inability to deal with a highly intoxicated suspect.