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by Peter Moskos

July 17, 2015

Bad shooting in Gardena, California

Usually when I get called from the media about a police-involved shooting I expect I'm going to have to explain how a reasonable police officer might perceive a potentially lethal threat.

Not here.

This is a bad shooting:


The killing happened two years ago. The video was just released. The officers faced no legal consequences. The city paid $4.7 million. The victim, Diaz Zeferino? Never heard of him before yesterday:
Three media outlets pushed for its release.... A judge granted their request, saying it was in the public's interest to know why that city money was being spent.
Why are these cops so afraid? Why it is so obvious to me, formerly a reasonable police officer, that the guy is holding a hat and thus isn't holding a gun?

Might this help demonstrate why citizens of California are 50 percent more likely than the national average and almost 4 times more likely than New Yorkers to be killed by police.

30 comments:

Adam said...

Obviously this is a terrible shooting, but after watching it ten times, I think I can guess what was in the officers' heads. As you say, it seems like they shot out of fear. This wasn't a case of blind rage, a la Walter Scott. But, you ask, what were they so afraid of?

First, for reasons I'll explain, I think it's important to see which officer shot first. Watching it frame by frame, it's clearly the second officer--on the right side of the screen, closest to the sidewalk. So watch the video frame-by-frame starting around 0:23, and try to imagine what Officer #2 can and cannot see, given that he's standing slightly behind Zeferino. When Zeferino's hands come down (0:24), his right hand disappears along the right side of his body (0:25), and then his hand quickly comes back up making an open-hand gesture (0:26). But from Officer #2's vantage point during that 24 to 26-second sequence, it looks like Zeferino reaches down toward his right hip and then raises his hand back up, possibly with something in it. Try to freeze the video when the timer in the upper right hand corner is at 00:25:08, and I think you'll see the image that prompted Officer #2 to shoot.

When you watch the same events from the other angle, starting around 0:42, it's obvious that Zeferino wasn't reaching for anything and didn't raise anything except an open hand. That's Officer #1's vantage point. So why the hell did he shoot? All I can say is what every cop knows--that sympathetic gunfire is a real thing, and it's a strange phenomenon. The most charitable reading of the situation is that Officer #1 took his partner's gunshots as a signal to him that Zeferino posed a deadly threat, akin to Officer #2 saying "shoot him!" Whether Officer #1 could see what the threat was, he acted on the cue from his partner. More likely, Officer #1 was on edge in a tense situation, and as soon as he heard his partner's gun go off, he started shooting instinctively, without having the chance for much of any mental processing.

Again, terrible shooting. I'm just trying to answer the "why did this happen?" question.

Peter Moskos said...

That's a very good analysis, from a technical standpoint. I very much appreciate it.

You can clearly officer 2's (on the right) casing eject at 0:25:31 (using screen timer in the first video). Smoke visible at 25:28.

This does indeed indicate the (incorrectly) perceived danger would have been around 25:08, given a 0.2-second response time.

You can also see smoke from the left gun (officer #1) at 0:25:37 (perhaps including a casing, similar to the casing from officer 2 seen at 25:31), so we're talking a near-simultaneous trigger pull separated by 0.06-0.1 seconds. Is that in line with research on "sympathetic shooting" incident? As a reflex more than a choice? My guess would be yes, but I don't know. It seems awfully fast for the body to react and pull a trigger. And three more shots?

Both cops seem to have fired four times in about 1.1 seconds. Did the guy also get Tased?

I'm going to see how many people have killed by police in Gardena. I bet it's far more than the national average.

Peter Moskos said...

According the DA's report, "the respective decisions of [three officers] to use deadly force were independent of each other (no contagious fire)."

Now since this is the same report that fond the shooting "objectively reasonable," I'm skeptical. But that's the report.

http://documents.latimes.com/da-memo-gardena-police-shooting-unarmed-men-captured-video/

Four people killed in past 5 years in Gardena, CA, population 58,000. (But the data is dodgy going back in time.) Of the last 9 recording police-involved killings in Gardena: 1 hispanic, 4 whites, 4 blacks. 59,000 population.

N is *very* small here, so take this with a large grain of salt, but over the past fives years the rate of police-involved killing in Gardena is 1.36 per 100,000 annually. That would be four times the national average and ten times as often, per capita, as New York City.

Demographically Gardena (east/southeast of LAX) is a pretty even mix of white, black, and asian. 1/3 Hispanic. The city is not particularly poor. My guess is mostly working class. The homicide rate is roughly the national average. Lower in more recent years.

If we want to reduce bad shootings, and we do, looking at places like Gardena is probably a very good place to start. What are they doing wrong?

Anonymous said...

It's a culture of a lack of accountability. This is what happens when the police are given the benefit of the doubt always (like you do). This is what happens when the people who want to hold police accountable are attacked as opportunists (like you do). This is what happens when the likes of the FOP or Vanguard get to dictate whether they will even do their job unless they are offered complete immunity from porosecution.

Look who was in charge in Gardenia and there is no mystery. http://www.latimes.com/local/lanow/la-me-ln-tanaka-leave-of-absence-20150514-story.html

David Woycechowsky said...

California Law Fun Fact: California has no statute of limitations on the crime of murder. I am generally against the death penalty because of concerns about innocent people being put to death, but I could get behind it here X3. Think it would do a lot to discourage this sort of crime in the future -- much more than the average imposition of the death penalty does.

Peter Moskos said...

I love holding police accountable. It's what I do. It's what I would do more of it weren't for misguided and counterproductive attacks on police that not only do not help, but actually make the problems worse.

It's the distraction of people, mostly from the Left who debate semantics more than issues. I was reproached yesterday for using the word "criminals" to describe people who, well, commit crimes. Similarly some people won't talk about Baltimore's problems if you dare describing the mass burning and looting of stores as a "riot." It's some of the propaganda I receive, causes I would like to support -- I *am* against mass incarceration; I am against police murders -- but can't because ideology is idiotic:

"The powers-that-be have continued to unleash their cops to kill and brutalize people.... These killings are the spearpoint of an overall program of suppression that includes mass incarceration and all its consequences. This program of suppression especially targets Black and Latino people and has genocidal implications.... Which Side Are You On?"

Well if you put it that way, I guess the side of police. So no, I won't come to your march.

Yesterday (this was a WNYC "twitter roundtable" #RadioTalksRace) somebody else said we can't always have perfect victims when it comes to the movement to end police violence. Actually, yes we can (unfortunately). And if you pick fake victims or make things up, then you're going to lose people who have half a brain.

There are enough cops who do bad that we don't need to prosecute those who are well intentioned. The mayor of Gardena, a cop politician, is charged with obstruction of justice and then, well, obstructs justice? Yeah, that's a problem (and thanks for the link). The cop who had a clear view of Zeferino (Cop #1, as we refer to him above) and according to the DA's report *chose* to shoot (ie: not contagion shooting) because of perceived threat that no reasonable cop should see? Yeah, go after him, too.

David Woycechowsky said...

Charge them all murder one (one actual count and two attempted each) and see what they plead down to in order stay out of California's electric chair. If these were regular citizens they would all be charged and there is no rule that police get to be any more scared than regular citizens do. There was no reason for any policeman to fear for his life in that video regardless of visual perspective.

campbell said...

But from Officer #2's vantage point during that 24 to 26-second sequence, it looks like Zeferino reaches down toward his right hip and then raises his hand back up, possibly with something in it.

I think you're right. Unfortunately, other officers had a much better vantage point and he should have trusted that if his partners with an unobstructed view see a threat they'll respond appropriately.

Charge them all murder one

So that an acquittal will be guaranteed? Never in a million years will you get past reasonable doubt on a murder one charge when it's the police confronting a non compliant robbery suspect.

Adam said...

Peter,
I do think contagious shooting can be akin to an instant reflex. There are tons of articles on the subject (just do a Google search for the term), but I haven't had a chance to peruse them. Re: Gardena's high rate of police homicides, the first thing I'd look to is how their officers are trained. Nationwide, I think there's a problem with cops being trained to be hyper-vigilant about their own safety--to shoot before lethal threats fully materialize. Many cops are taught that if they wait to shoot until the suspect's gun is clearly visible, then they'll end up like Deputy Kyle Dinkheller.

David,
Do you really think this was a malicious killing? And not only malicious, but so malicious as to warrant the most severe punishment our justice system can administer? Or are you just saying prosecutors should deliberately overcharge the cops (which would be blatantly unethical? I'm kinda having a hard time taking you seriously right now.

David Woycechowsky said...

I don't think malice is required for a murder conviction under California law.

Adam said...

Malice is required.

Peter Moskos said...

Thank you. And that's enough.

Once again an interesting comment thread get taken off track. Let's see if I can figure out a common theme...

If I'm not mistaken, everybody here agrees this is a bad shooting.

I'm more than welcome to comments as to how this could be prevented in the future. I'm still open to pretty much anything *except* what should and won't happen to the individuals officers who killed this guy.

Adam said...

Agreed. I think Campbell's take on this is right. Each of the officers screwed up in a different way. Officer #2 by not keeping his cool and relying on the other cops who had better vantage points, and the other cops by falling victim to the "contagious shooting" phenomenon. I don't think any of them deserve murder charges. So how do we prevent this?
As I suggested above, I think training needs to change. But is that enough of a deterrent? Should some or all of these cops be criminally charged with some low-level form of criminal homicide, such as involuntary manslaughter?

That's possible, but I'm more drawn to the idea that more cops should be fired when they make bad tactical blunders. Usually, when people's bad actions don't merit criminal sanctions, we rely on civil liability to deter future similar conduct. But that doesn't work in the case of police officers, who are almost always indemnified by the agencies/municipalities for which they work. So maybe firing more cops is the best we can do. An alternative might be to pass laws that prevent indemnification, but that seems far fetched to me. I'm eager to hear other people's ideas.

campbell said...

This is very much a situation that can be helped with regular scenario based training.

So, how could it have been done better? The big and obvious failure is the first shooter pulling the trigger on a threat he has the worst vantage point on. He needs to focus on the suspects left hand and trust that his partners with good eyes on the suspect's right hand will take care of business if that hand goes for or comes up with a weapon.

The other thing lacking here that comes up again and again with scenario based training is verbalization between officers. Everyone is tunnel visioned in on the suspect. Once he's disregarding verbals an officer with a good vantage point needs to stay on lethal cover and start directing the other officers. What would have been invaluable here is such an officer communicating that the suspect's right hand was still empty. Everyone knows to yell "gun", but often someone knowing to tell you there's no gun is just as important.

Anonymous said...

1. Training. 2. Firing cops more often 3. Eliminating indemnification and requiring malpractice (possibly underwritten by states) 4. Having cop disciplinary transparency just like they do for the Board of Nursing or Physicians 5. Taking guns away from cops in some fashion so that they have to actually register that they are taking their gun with them (a gun safe in the car with a timestamp registration lock) (it might mean more cops get shot, but I don't think so.) 6. Standardized commands, across the nation, that both provide a potential defense for cops and warning to potential targets of how an encounter that ends in gunfire would go. This might be blame the victim or warn the criminal, but I would like to know 100% what a cop is going to do before he shoots me. 7. Anonymous complaint reporting at the state DA level.

David Woycechowsky said...

This can be prevented in the future by appropriately punishing the officers involved in this shooting. It is a principle called "deterrence."

Hotrod said...

Re David's deterrence comment - no. Just - No.

Even in the worst agencies with the sorriest cops and lousy training and leadership, the truly catastrophic high profile disasters remain, in absolute terms, very low probability events. Yeah, those communities are probably receiving rotten policing, but thats not what deterrence applies to. Low frequency, high impact disasters are just different, very different, in terms of planning prevention and mitigation. It's too easy for the aforementioned agencies stocked with poorly trained type A personalities to mentally discard a deterrence effort as some combination of cop hating and "never happen here". Keep in mind that poorly trained people (in many fields) frequently don't know that they're poorly trained.

There are stories (possibly apocryphal, dunno) in the Army of aviation units getting safety awards for long periods without a type A accident (a catastrophe). Shortly after the award is ipresented, said unit has a catastrophe and the subsequent investigation shows that the unit was a disaster waiting to happen. Again, low probability events are different, from a management standpoint.

That isn't to say that there isn't value in making examples of people in some situations. There very clearly is. But very serious criminal charges that aren't justified ultimately aren't sustainable, never mind just. Off hand, I can't think of a single OIS where murder charges were, IMO, justified that the cop wasn't in fact hammered, and I say that as someone who can reel off sorry ass, miserable, rotten shootings off the top of my head all day long, Various flavors of manslaughter might be a different story, but I stand by my overall point.

Hotrod said...

As for what to do - suggestions follow. Keep in mind that good agencies and leaders frequently already do some of this. If you want to make it systemic - that's a combination of politics and institution building, which is a lot easier said than done,

- scenarios based training or it's close relative outcome based training, A million x yes to this one. Anything that gets you out of the transactional training culture is a good thing, I.e. I've got my hours and the training officer has the records so I'm good to go, even if the hours were taught by an incompetent buffoon droning through PowerPoint slides isn't as good as complex scenarios with changing variables and detailed feedback until a good OUTCOME is reached. Heads up, though, good training is often more expensive than crappy check the box stuff. Both in direct costs and indirect, e.g. X number of guys are off the road for Y days so the tiny agency can't afford to do it. Btw, one more reason to be skeptical of tiny agencies.

-train to the culture. It's hard to change cultures under any circumstance, particularly ones stuffed with aggressive personalities. Not just policing though. There's a company called Check Six that is making a good business using former fighter pilots to teach safety to businesses with lots of "difficult" personalities, e.g. Oil drilling platform personnel. It works because fighter pilots were the only type of personality that could get through to them. figure out what the policing equivalent of this is and execute.

-rework the civil litigation system - if the civil litigation system is our best approximation of "justice" Ilo throwing cops in jail for stupidity and incompetence falling short of criminal sanction, I'm sort of ok with that. I'm not ok with it subsequenltly becoming a battleground for aggressive business decisions. Both the Ayers and Phonesavanh families in north Georgia got hosed (in different ways) through the liability cap of 1 million that those agencies had. Some sort of state level underwriting (not just insurer of last resort) and management may be in order. Would need to be supported by more institutions and processes at the state level. Which leads to...

-rework of shooting and use of force investigation protocols. Beat the criminal investigation, that's fine, then go to an inquiry focused on tactics and outcomes. To be fair. Lots of agencies bifurcate it this way. Here's the thing - it needs to taken out of the agencies. Go to a state level body with no criminal mandate ( see below). Look at it holistically and ignore the standard cop public affairs drill of taking a television anchor to the simulator and running them through shoot/no shoot sims and getting a breathless report at 11.

-cops gripe that there jobs are complicated and multifactored. Fair enough. So is commercial aviation. Develop (cause I don't think there is one) and use the policing equivalent to aviation's Human Factors Classification System. Hold all investigations relating to the above to that standard. If you do that, everyone will recognize a steaming pile of crap like the Ayers investigation for what it is.

- do the above with a state level ombudsman focused on tactics bd best practices. It's good to use former cops and trained investigators, and absolutely should not become a forum for communist organizers and so forth. Don't even think about using current cops. Figure out if the cops that participated in the event were guilty of normative error, less serious errors in judgment, or weren't guilty of anything at all.

Hotrod said...

Heh - community, not communist - a possible Freudian slip re my politics

David Woycechowsky said...

Hotrod, seems like your ideas dovetail quite nicely with mine.

In reality, my guess is that the only reform that occurred is that the GPD has probably removed the dashcams.

Hotrod said...

Should have been - Human Factors Analysis and Classification System - and there are some issues with applying it to open ended systems with potentially ambiguous outcomes like policing. Still, the basis is there, IMO.

Hotrod said...

A few more thoughts -

Police employment rules need to become more military like. This will probably lead to more firings and less job security, and there are issues with that, including likely unjust outcomes in some situation. Still, on net, less job security after serious events needs to happen. In the Army, if you kill someone with a negligent discharge, you go to jail, at least for a bit. Although I wouldn't go so far as to say police are "ok" with NDs, there are examples (Sal Culosi) of cops with fatal NDs keeping their freedom, their jobs and the vocal support of their unions. Europe stamps too, although I'm less sure of the officer outcome in that case. Note - if you reduce employment security, you should and will eventually have to make it up with other economic factors.

Centralize, probably at the state level, lots of the enablers. Dispatch and most of the specialty units in particular. Let agencies focus on patrol and investigations. If you want to kick in doors on high risk warrants, that's cool - apply to the state police. Set up HR policies to let people move back and forth relatively easily, Local agencies and their training officers need to focus on being great at the basics - not figuring out how to piece together a marginally trained Swat/srt because Johnny mcmouthbreather is bored with patrol and wants to do Falujah.

While I'm at it - minimum sizes for agencies. If you can't put at least x sworn on the road, you do a contract with the state police. I envision x as a pretty high number. New York or another state with robust state police capabilities would be a place to start.

Hotrod said...

Eurie Stamps...

That Fuzzy Bastard said...

" The officers faced no legal consequences. The city paid $4.7 million. "

And that's the whole problem in a nutshell. If you are a cop, and you pull the trigger, then either you're right, and everything's great, or your wrong, and you will face no penalty. So there is always an incentive to pull the trigger, and never an incentive not to. Until that changes, the bad shootings, and worse, will continue.
It amazes me how people whose whole job is to arrest criminals suddenly don't want to talk about punishing criminals when the criminals wear blue.

Anonymous said...

And it's not just murder. The same double standard applies to assault, perjury, drugs, domestic abuse, etc. If you are a cop, you will be given the benefit of the doubt in a series of accommodations that protect you. 1. People will hesitate to report your crimes because they are scared or lack the facility too sustain the charges (due to poverty, mental illness, or their own criminal background). 2. The investigators (fellow LEO's) will look to exonerate you rather than build a case. Their thumb will be placed heavily on one side of the scale. 3. Prosecutors will be quick to exercise prosecutorial discretion either in declining to bring charges or in undercharging (in contrast to the standard case of overcharging and offering a plea - someone upthread made me laugh by calling this unethical ignoring that this is exactly how it works). 4. Unless it gets to step 3 (and even then the case might be sealed), records will be hidden so that future employment will not be endangered (contrast to how arrest records live on forever). All of this makes people like PCM vastly underestimate the amount of crime perpetrated by LEO.

Hotrod said...

David, respectfully, to the contrary. I seriously question the value of the deterrence concept in reducing the worst events. Screwed up organizational cultures, poor training, poor leadership, lousy incentives,- those are all things to fix before you spend too much time worrying about deterrence.

"Deterrence" might help with a semi-sociopath. For the most part though, even crappy cops just don't get out of bed looking to seriously hurt people. Deterrence is of little value with an immature, impatient, scared, not particularly smart, bottom 20th percentile cop in a small agency with a training officer who is mailing it in and a shift supervisor who is an incompetent loudmouth because he probably thinks he's doing a good job. It mostly isn't needed with a well trained, mature top 30th percentile guy with a creative training officer and a strong chain of command making good decisions.

Put another way - Ask yourself - would deterrence have done much for jonathan ayers in north Georgia or Chris Torres in albuquerque? Awful, awful shoots involving staggering incompetence or flat out stupidity by the cops. But even in those cases I don't think the cops went to work planning to see what they could get away with that day.

Anonymous said...

Crappy cops do get out of bed looking to hurt people. The contrary view that you and PCM hold is simply not borne out by experience. Crappy cops are authoritarians and part of what they get from being a cop is deference. They expect and demand it even when not entitled to it and when they do not get it, they will hurt people until they are satisfied that "justice" has been served.

Anonymous said...

You cite Ayers, but the fatal shot was fired when he was driving away. That fatal shot was fired with the purpose of hurting/killing because there was defiance. The guy was going to not only get away, but "get away" with something. Deterrence would have made a difference.

Anonymous said...

Are you kidding me? I just read the details of the Chris Torres shooting. Of course deterrence would have helped there. Brown would have never been a cop if he had been charged with crimes he committed in the past. And it is clear he was looking to hurt people in exactly the way I described above.

Anonymous said...

My statistics are rusty, but there has been only one Albuquerque PD involved police death in 2015. Definitely a trend, but might even be statistically significant. 28 deaths over 60 months (average of a little under 0.5/month) vs 1 death over 6.5 months (average of a little over 0.15/month). Even with small sample size, that might have a p value under 0.05. What changed? First indictment for a police death ever happened (not Torres, but James Boyd). Possibly a powerful case for deterrence.