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by Peter Moskos

November 25, 2015

Chicago police shooting of Laquan McDonald

The video is out. Finally. After long attempts to sweep it under the rug failed.

This Sun-Times editorial provides good background.

It's a bad shooting. (Though honestly I was expecting even worse, like an unarmed rationally behaving victim.) The mayor (now, at least) and the police chief have said the officer is at fault.

The officer who killed McDonald fits the pattern of bad cops: high activity, drug work, too many complaints. Sure, all the complaints weren't justified, but some of them were. And undoubtedly he did a lot of bad shit that people didn't file formal complaints about.

From the Washington Post:
The allegations against Van Dyke include 10 complaints of excessive force, including two incidents where he allegedly used a firearm, causing injury. He was also accused of improper searches and making racially or ethnically biased remarks. Four of the allegations were proven factual, but Van Dyke’s actions were deemed lawful and appropriate. In most of the other cases, there was either not enough evidence to prove or disprove the complaint or the allegation was proven unfounded.
The data shows that it’s rare for any officers to be penalized, and white officers were half as likely as black ones to be disciplined for a complaint.
Apparent repeat offenders — officers with more than 10 complaints against them — represented 30 percent of all complaints, even though they made up only 10 percent of the police force.
That distinction [the most complained-about officer] goes to Jerome Finnigan, the subject of 68 citizen complaints in nearly two decades with the Chicago Police Department; none of the allegations resulted in disciplinary action.

In 2011, Finnigan was convicted of robbing criminal suspects while serving on an elite force and ordering a hit on a cop he thought might turn him in. At his sentencing, Finnigan admitted to having become “a corrupt police officer,” according to the Chicago Tribune. But he said the police department was aware, and for many years did nothing.

“My bosses knew what I was doing out there,” he said, “and it went on and on. And this wasn’t the exception to the rule. This was the rule.”
68 complaints and a criminal conviction and no disciplinary action?! That is rotten.

So this cop shows up on a scene and, rather than doing nothing, gets out of his car, puts himself almost in harm's way, and kills this guy. And then keeps firing. Fires 16 shots. No other cop saw a need to shoot. Because there was no need to shoot. You contain, retreat, or make do. Then you tase this guy. Or what about having shields and a straight baton?

Anyway, will Chicago riot like Baltimore? No. For two reasons. First of all there is now legal accountability. That's the way the system is supposed to work. You murder somebody? You face justice. Second, unlike Baltimore Mayor Rawlings-Blake and former Police Commissioner Batts, the political and police leadership in Chicago have a minimum level of basic competency.

Update: Here's the initial account (hat tip to Chris Hayes)


john mosby said...

Demographics are also a consideration in the decision to riot. Baltimore City is majority AA. No matter how bad things get, black leaders will keep getting elected - maybe not the current ones, but someone black nonetheless. Less to lose from the bad optics of a riot.

Chicago is only 1/3 black. Massive black misbehavior would erode the gains the AA community has made. You wouldn't get enough Hispanics and whites to vote for a black mayor in the next election. In the shorter term, Hispanic and white aldermen would have little inclination to loosen the purse strings to rebuild AA wards.

Not suggesting there's some secret AA strategy room where an up/down riot vote gets taken. But these things are in the backs of peoples' minds and may influence the mass psychology.


Adam said...

This strikes me as one of the few controversial police shootings that actually should be labeled a "murder." As I watched it, I wasn't so sure initially. The first part of the shooting doesn't look malicious; it just looks like horrendous police tactics, possibly warranting criminal homicide charges short of murder. But shooting the guy again while he lies motionless on the ground and in the fetal position? I can't think of any reason that would even qualify as imperfect self defense.

Michael said...

Professor Moskos: Do you have any thoughts about Officer Van Dyke’s colleagues possibly submitting inaccurate reports about Laquan McDonald’s murder?

aNanyMouse said...

If the prosecutor's bid for Murder I ends up with Van Dyke walking, you'll get your riots.
IL's standards for a Murder I conviction give her a helluva tough road. The text for Murder I requires that it "was committed in a cold, calculated and premeditated manner pursuant to a preconceived plan...."
Proving "preconceived" has to be really hard to pin on a cop responding to a fairly routine call (for that hood).

Peter Moskos said...

I'd sure like to know.

Also, is he only being charged with Murder I? I assume there are lessor charges, no? I don't think he's going to walk free.

aNanyMouse said...

So far, he's only being charged with Murder I.

However, I erred in my interpretation of the quote about "preconceived". The page I read it on is hard to follow.
I should have written that "The text for the death penalty for Murder I requires that...."

David Woycechowsky said...

Do you think the police erased the Burger King video in this case?

That Fuzzy Bastard said...

I too was surprised this wasn't a worse shooting, but it's a dramatic demonstration of how you can shoot a perp who's armed and erratic, and still have it be a very bad shooting.

But Michael and David's questions strike me as the biggies. All the officers there saw a very bad shooting happen, and all the officers had to be aware that the official account was a cover up. Did any of them go to internal affairs, or object in any way? Or did they just go along, and maybe worse? And if the latter (which seems to be the case), then what systems need to be implemented to prevent future misconduct from being covered up?

john mosby said...

Fuzzy, I think you inadvertently hit the nail on the head: How ***can*** you shoot a perp who's armed and erratic, and still have it be a bad shooting?

If this were a citizen taking the shot, no way would there be criminal charges, even in anti-gun Cook County. No jury would ever convict. There's a crazy drugged-up guy with a knife, within rushing distance. Self-defense/defense of others. The NRA would be financing a civil-rights lawsuit on behalf of the shooter if he was even cuffed on the sidewalk for 5 minutes, let alone arrested/prosecuted.

But because it's a cop taking the shot, it's murder in Cook County. Even though cops are generally required to seek out and deal with crazy knife-waving dudes, and this particular cop was asked/directed by a citizen's 911 call to deal with this particular crazy knife-wielding dude.

I'm not sure what the venue rules are in IL - hopefully the copper can get this thing moved to another county where a bunch of farmers look at the tape and say "Yup, that's what I'd do - what about you, Earl?"

And none of the critics have offered an alternative for dealing with this offender that wouldn't continue exposing the public to risk, or expose the offender to other types of risk to his own life.

Car-Fu to trap him between RMPs? Risk that he slips between/under/over the cars and runs off to an area with innocents. Plus risk that you run him over, pin him, or otherwise inflict death/SBH on him with your 10,000 lb deadly weapon. Plus risk that your rolling blockade encounters innocent motorists, who may freak and cause accidents. Even if you do trap him between cars, then what? You still have the problem of putting hands on a dude with a knife.

Taser? Tasers sometimes kill people. What are the effects of the taser on a guy under the influence of PCP? Could very well give the dude a heart attack and wind up in Anita's dock anyway. Also, how long are the taser wires? 30 ft? That's pretty close to rushing distance. If you're close enough to get a Taser shot on him, he's close enough to cut you. Do you really want to be depending on the Taser at that point?

Shield/long baton? Even if CPD routinely carried these, there are many questions. Do you really think you, even with 1 or 2 other officers, can pin this PCP-fuelled guy with shields before he can reach the knife around/between the shields and cut you? Will your long baton accomplish pain compliance/temporary loss of use of limb on someone who's dusting? Or will you need to inflict GBH/death by going for the head? Plus, will this whole process of multiple peckerwoods with shields and sticks striking a young prone African-American gentleman look like Rodney King meets Spartacus when the tape is played over and over and over again?

Beanbag round? This is a less-lethal, not non-lethal, option. People get killed by these every so often (one recently in IL!). Even if it works as advertised and knocks the offender down, you now have a ground fight with a knife-wielding, PCP-infused offender.

Fire hose and assault ladder? Prof, you've probably seen the video of how these were used to apprehend a dude in Seattle or Portland who was waving a samurai sword. Nice technique, and pretty close to nonlethal for all concerned, but again it depends on the bad guy staying relatively still and away from innocents. Plus, Bull Connor.

K9? Again, pretty close to nonlethal for everyone but the dog. Depends on availability/time-distance for the K9 versus how close the offender is to innocents. And, like with the fire hose, see Bull Connor.

Most people instinctively understand that the only way to stop a threat of death/GBH is with something that also involves a threat of death/GBH. This common sense gets worn away by too many years spent in the law library.

I would really like to see someone describe the school solution. None of the talking heads has done so. Prof, maybe you and Chris Hayes can chalk-talk it on his next show. Or you can be an expert witness for Anita.


campbell said...

Mosby, you're very, very wrong on the legalities here. This call came in as McDonald breaking into cars. It's a non violent property crime. Yes, he's armed with a knife and noncompliant. But in every account I've seen there's no mention of him threatening any citizens with the knife and the only thing he uses the knife on is a police vehicle, stabbing the tire. In my jurisdiction, he's not even a felon yet. The vehicle burg, the running from the police, the refusal to follow commands, all are misdemeanors, and non violent ones.

With regards to the shooting scene, he's on an open highway and I can't see any citizens in the camera shot. McDonald is also pretty clearly trying to get away from the police, not attack them. The fact is that under these circumstances you have to attempt less than lethal force. Ideal would be multiple officers with a stand off tool, someone on less lethal, and someone on gun in case of failure. In this case the standoff tool probably isn't going to happen because the situation is mobile and that's not the kind of thing typically found in a patrol vehicle's trunk. Here hopefully one of the sgt's nearby could arrive and get out a 40mm. If there's not time for that then several of us would approach with one or two tasers out, guys designated as the hands on team, and at least one tasked with lethal cover.

Yes, sometimes less than lethal means go sideways and someone dies. But that is absolutely not a legal reason to go lethal. From what I've seen of this scene, they had a legal requirement to attempt something other than a firearm.

Peter Moskos said...

I'm with Cambell here. You *can* do nothing (ie: tactical retreat) to buy time. Yes, you can shoot if the guy is an imminent lethal threat, but you can't (or at least shouldn't) put yourself into a situation where he is a lethal threat. And that leaves aside the fact that at the moment of shooting, he wasn't a lethal threat to the cop at all, who had no go reason to approach him.

Yeah, sometimes people get shot cause things didn't go they way they would in an ideal world. But police had so much on their side here, mostly a big open yet contained road with perhaps no bystanders.

I don't think this was at all legally justified. But on top of that it was tactically and morally wrong.

john mosby said...

Prof and Campbell: Good points - here are my rebuttals:

Big open highway: Not exactly. The 4100 S block of Pulaski is a major commercial thoroughfare that goes through a working-class neighborhood of single-family bungalows. I have been up and down it many times. Even at 10 PM, the time of the shooting, it is busy: young people cruising, people going to/from the afternoon and night shifts (there are a few factories left in the immediate area), patrons of the stores and restaurants. There was at least one citizen motorist close to the incident, because he is a prosecution witness quoted in the press.

Offender moving away from police? So what? Police aren't there to protect the police; they are there to protect the public. And the offender was moving toward the public. Offender had just run thru the Burger King parking lot (open till midnite); about 200 feet in his direction of travel was the Dunkin (open 24 hrs). Both those locations put innocents in the backstop of a possible shot, give the offender carjacking opportunities at the drive-thru, etc. Less than a quarter mile in his direction of travel are a health club, restaurants, and a supermarket, all open late or 24/7. And the side streets are full of bungalows. Suppose this guy runs down one of those streets and crashes into somebody's picture window. Now you have at best a running gun/knife fight in an innocent's house, and at worst a barricade situation in a family residence.

Offender was erratic; no telling how he would react to any of these situations. This was the last safe chance to stop him. Hence, imminent threat of death/GBH to others - not to mention he's in rushing distance of the dismounted cops, and who knows what molecules are flowing in his brain to make him change his direction at any moment.

Jeez, we just watched football yesterday - surely you know how quickly someone can pivot, jink, cut, and otherwise move in a different direction very quickly. The PO and the offender were one lane-width apart; it doesn't matter at that point if the offender was standing on his head. He was holding a knife within rushing distance and not obeying commands.

Also, it looks like the PO was not the driver. So we can't hold him fully responsible for the bad positioning. He finds himself driven to this offender's doorstep and has to react to the situation created by his partner's driving.

I'm not necessarily seeing great policing here, but I am not seeing a crime.

And buried in this rant is a legitimate argument about what 'imminent' means in use-of-force law - it can mean the last chance to stop something, even if that something isn't necessarily imminent.

A (hopefully) non-controversial example would be shooting a child molester as he's about to drive away with a child. Obviously the kid is not going to get raped 'imminently' (unless the molester is really really coordinated); it's going to happen hours or even days from now. But this is your last chance to stop it. So you're defending the kid from imminent GBH.

In the same way, the PO was defending the citizens up the road, as well as himself and his fellow officers, from imminent GBH.


campbell said...

If erratic and armed the criteria for a shoot then I should be able to shoot a lot of open carry nuts on sight.

Everyone who runs has the potential to hurt a citizen, attempt a carjacking, etc. What are the specifics here that get me to the shoot on a fleeing suspect? The initial crime is a car prowl. I've not seen any reports of him threatening a citizen with the knife or attempting a robbery. The potential isn't enough. You have to have specific facts that establish imminent threat of death/GBH. Armed and running away after a car prowl doesn't get you there. McDonald could do any number of things. But, as far as I can tell, he hasn't done any of the ones that allow the police to shoot him.

David Woycechowsky said...


aNanyMouse said...

Gripping stuff, guys!

John’s point about what 'imminent' means is crucial. Have courts defined it for situations like child kidnappers?
How about if you’re chasing a guy wanted for aggravated battery? I should think that such a guy could be fairly construed to be quite more likely to commit GBH than McDonald was.

Adam said...

As a cop-turned lawyer, the question I find most interesting is: what level of criminal homicide did Van Dyke commit? Even assuming mosby is wrong and campbell is right (with regard to whether this was a crime), are mosby's arguments enough to move this down the ladder from Murder One to some form of reckless or negligent homicide?

For me, the decision to shoot McDonald when he was on the ground and clearly immobilized is what makes this malicious and therefore murder. But assume Van Dyke didn't do that. Still first degree murder? I'd be inclined to say it's something much less...

campbell said...

Have courts defined it for situations like child kidnappers?

That's the easy one. Kidnapping is on every list of "violent felonies" I've ever seen and you'll always be on solid ground shooting a non compliant suspect who is in the act of committing a violent felony.

"Wanted for aggravated battery" will, out here, at least get you a policy approved vehicle pursuit. Shooting for non compliance could be trickier. Say it's a warrant for an aggravated battery the guy has been dodging for six months and the battery was on, say, his uncle who was accused of molesting this guy's daughter, and the suspect in the battery doesn't have other criminal history. And what if the uncle has since been arrested and is in jail. He's technically a fleeing violent felon, but can I honestly say I think he's an imminent threat to society if he escapes and needs to be shot in the back?

john mosby said...

Part of my point is that we as a society generally don't prosecute people for technical violations in otherwise solid uses of force. There is the occasional charging of a homeowner for chasing a home invader out onto the sidewalk and then shooting him; but those seem to be going out of style, and they were only brought in towns with a heavy anti-gun, anti-self defense agenda.

Once you accept that the PO on Pulaski didn't commit a murder, then you have the combined legal/policy question of whether he committed a crime at all, and if so, whether that crime should be prosecuted against the background of trying to protect the public, or if it should be considered de-minimis and declined.

Are you shocked by the use of de-minimis to describe a human death? Good - it shows you're human - but really, the offender was wandering the streets with a knife. Something was going to kill him, very likely that night, and certainly before his 30th birthday. The fact that a slightly not-by-the-book police shooting killed him at that particular moment is de-minimis.

Here's an example of citizen use of force where prosecution was declined: During the weds night demonstrations, a youth punched a CPD PO on video (proudly posted online by the youth's mates), hard enough to leave a black eye. Youth was locked up for agg batt po. A cook county judge even found probable cause and continued the case. Anita dropped the charge.

So even in anita's world, technically criminal use of force can be forgiven. If we do it so as not to create a chilling effect against youths' free speech, why not do it so as not to chill effective policing?


bacchys said...

Let's see. The CPD lied about the incident and tried to cover it up for 444 days, and we're supposed to believe any claims they made about what happened?

Yeah. I don't think so.

john mosby said...

Bacchys, what lies were told? What was covered up?

That Fuzzy Bastard said...

the offender was wandering the streets with a knife. Something was going to kill him, very likely that night, and certainly before his 30th birthday. The fact that a slightly not-by-the-book police shooting killed him at that particular moment is de-minimis.

Lots of people are wandering the streets with a knife– I spent no small amount of adolescence wandering around with a butterfly knife in my pocket– or even a gun, and don't hurt anyone. So that's irrelevant, unless you want to lock up everyone who's open-carrying.

The assertion that "something was going to kill him" is even more irrelevant; if you shoot someone with a terminal illness, you've nonetheless committed murder, even if they were going to die that very night.

In this case, the officer killed someone who was not attacking, was not committing a violent felony, and presented no immediate threat to civilians (the fact that someone could present a threat does not mean they do). So no de minimis, no "slightly not by-the-book", and no effective policing, just the kind of violence that police are supposed to protect citizens from.

John Mosby: Police stated the the boy was "walking toward the officers" and "lunged". As is visible on the tape, not only did he not do that, he was literally lying on the ground when most of the shots were fired. That's the lie.
A number of other dashcam videos, including the video that would make clear whether the officers' statement that he damaged a police car, have mysteriously disappeared, and the video we do have was hidden until a FOI request and a judge's order forced the police to reveal it. That's the cover up.

bacchys said...

What lies were told?

That he lunged at the officers.

What was covered up?

There's credible evidence surveillance video from a Burger King was deleted by officers.

The CPD continued the lie about the "lunge" until they were forced to release the video. This wasn't just some mistake based on heat-of-the-moment statements by officers at the scene. It was continued even after they had the video.

The spirit of Jon Burge is alive and well in Chicago.

aNanyMouse said...

Anita’s dropping charges against the kid who punched the P.O. on Wed., to which John refers above, is more important than meets the eye. Her decision has moved Second City Cop to urge his colleagues to “stop policing” in any proactive way that puts them at any risk. My guess is that those POs who take him up on this will mostly be those working in gang-infested hoods. In which case, the gangbangers will be able to pop each others’ siblings, nephews, and nieces with impunity; I won’t be crying a river. But if this work slowdown spreads to more peaceful hoods, you’ll have a real crisis. It breaks my heart to see relations between cops and (so much of) the civilian community break down to such a degree.

Andrew Laurence said...

Before I saw the video, I heard someone say that the officer stood over McDonald's corpse and fired repeatedly into it. The video doesn't show that. In fact, without sound, it's pretty difficult to determine exactly how many shots were fired, when, and at what distance.

Concerned citizen said...

Professor Moskos,
Forgive me if this has already been addressed: How was the PO able to fire 16 shots without reloading another clip?

Peter Moskos said...

Cops have larger magazines than allowed in civilian use.
The 9mm Glock 17 I used could fit 17 in a clip. Before reloading, we would have 16 in the clip plus 1 on the gun. Plus two back-up magazines for 50 rounds total. I don't know what gun and ammo CPD uses, but I assume larger than 9mm (prob 45 caliber, which is pretty much standard these days). So he could have 15 in the magazine and 1 more in the gun.

campbell said...

(prob 45 caliber, which is pretty much standard these days)

.40 and 9mm are much more common as a standard issue. Probably was using a .40. 15+1 is a common capacity on that round. Many agencies, mine included, stuck with 9mm because it's cheaper, easier for most people to shoot, and the modern ammunition, Speer in particular, has so closed the gap with regard to performance that we're not seeing any advantage to the bigger rounds.