Robin Sage Trial to Start - Page 3

**The Reaper** · 10-19-2009, 09:49

Phelps told me that during the incident, Tomeny was wearing an OD t-shirt with "1LT Tomeny" stenciled on it.

Military haircuts, Pineland currency, uniform items and rank, an M-4, in the RS AOR with a local asset, how far does this have to go for Butler to put two and two together?

TR

JAGO · 10-19-2009, 10:40

Quote:

Originally Posted by Team Sergeant

Those darn dash-cams just seem to stop working at the most "critical" moments. Funny how I see a whole lot of dash-cam footage of "bad" guys bullets ripping through police car windshields and those dash-cams continue to work great!

TS,
I'm not privy to any of the actions here w/ the sad shooting, other than "what I heard', but With regards to dash cams:

1) Just like any critical piece of equipment, they DO have a tendency to fail at the worst possible times. I've had that exp first hand; and,
2) I spent a couple of years as an instructor at FLETC where a HUGE number of tapes flow thru. One incident in particular made an impression on me, involving a police shooting and cam coverage. Officers responded to an indent and on one camera you would swear the officer simply gunned down an innocent man. Change angles, from a second car and you see the weapon the perp was carrying low when the officer engaged and the shooting was clearly justified.

As with any "silent witness" people place a lot of faith in them and they can (and do) mislead. In the Rodney King tape (not a dash cam) the media played edited versions which in part, led to riots - there may be something up w/ this Deputy's camera, but if they destroyed the tape, I suspect the Bureau would already be involved. Just my 2 cents.

v/r
phil

SF_BHT · 10-19-2009, 10:47

Piece of dental floss looped around the dash cam fuse does wonders to make sure it stops when the driver wants it to. Not saying it was done in this case but there are some LEO's that have done it in the past. Taught by the best......
Another example is audio/video on a hotel room..... When the entry team goes in someone kicks the power cord as they run out...... Accidents happen..

AngelsSix · 10-19-2009, 18:47

I DO NOT believe that there was a reasonable level of force used in this case, is what it all boils down to me here.
As an LEO, after you spray someone in the face with OC, they typically back away and stop fighting. OC is no joke, I can personally attest to that. From witness statements, the gentleman was running away from the area, NOT a reason to use deadly force. The only time deadly force is authorized against an "escapee" is when they are a prisoner and are using a deadly weapon as a means of escape. Last time I checked, you don't shoot anyone in the back, period.

It's a good thing that I am not on the jury.

**Pete** · 10-20-2009, 05:22

"Volunteer's testimony backs soldier in ....."

From The Fayetteville Observer

http://www.fayobserver.com/Articles/2009/10/20/944650

".....Then, Leiber said, Butler dropped the can, backed off from Tomeny, drew his gun and fired.

"Pow! Pow! Just like that. Right there," Leiber said, standing and raising his arm like he was firing a gun, then turning and firing again. His voice boomed through the courtroom......."

Richard · 10-20-2009, 05:54

Quote:

Phelps, meanwhile, had jumped from the truck and started to run away, Leiber said. Butler turned and shot him, he said.

Richard

JAGO · 10-20-2009, 07:38

Quote:

Originally Posted by AngelsSix

..... The only time deadly force is authorized against an "escapee" is when they are a prisoner and are using a deadly weapon as a means of escape. Last time I checked, you don't shoot anyone in the back, period.

It's a good thing that I am not on the jury.

There is no "perfect answer" in UoF scenarios and I am not taking sides. My understanding is that state law is often more restrictive than the federal standard (on the converse side, state law can never fall below federal 4th Amend protections). I do not pretend to know the N.C. UofF statute.

Tenn v. Garner (federal standard) held that where an officer has p/c to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not unreasonable to prevent escape by use of deadly force. The rules (under federal law are clear)
The offier is not required to be in fear for his life
The crime is not required to be a felony (but must be serious - a crime of violence)
A warning prior to using deadly force is not required, but is encouraged.
The officer need not exhaust lesser forms of force before reverting to deadly force.
There is no duty on the officer to retreat.

Generally you can't shoot to stop someone from fleeing simply because the crime is a felony. We don't shoot drug dealers (another time for that!).

If the officer can articulate p/c to believe that if allowed to escape, the escapee poses a threat of death or seroius physical harm to citizens or officers, then under the federal standard the officer can use deadly force.

So for instance, you are investigating a Ted Bundy sort of person, you have his description, and respond to a call of unk disturb. As you enter the residence you observe a female victim, unclothed and screaming 'help me' and witness a naked Ted dive out the window. In my opinion and I think the federal law is on your side: you can articulate sufficient p/c that if Ted is allowed to escape, he will rape/kill again. Under these facts the officer can shoot a naked Ted Bundy in the back in order to stop his fleeing.

We've got many documented situations where the bad guys have used force until they tire or they are out of bullets. If they don't raise their hands to surrender and instead turn to run, they can (in fact, probably should) be stopped with deadly force.

I'm very sad for what happened and I always gave the benefit of the doubt to the soldier - and to the cop. This case bothers me a lot and hopefully the truth will become clear as the case progresses in the Court.

Sorry for the hijack

v/r
phil

7624U · 10-20-2009, 17:51

Quote:

Originally Posted by JAGO

We've got many documented situations where the bad guys have used force until they tire or they are out of bullets. If they don't raise their hands to surrender and instead turn to run, they can (in fact, probably should) be stopped with deadly force.

I see in the above case, But butler never even interacted with phelps, no crime was commited by phelps. The Lt. Started to struggle for control of the bag. Phelps see's him get shot while unarmed. Jumps from the truck tries to run away slips on the pavement and then gets shot threw the arm and in the back.

Mitch · 10-21-2009, 02:24

Quote:

Originally Posted by JAGO

There is no "perfect answer"
The rules (under federal law are clear)
The offier is not required to be in fear for his life
The crime is not required to be a felony (but must be serious - a crime of violence)
A warning prior to using deadly force is not required, but is encouraged.
The officer need not exhaust lesser forms of force before reverting to deadly force.
There is no duty on the officer to retreat.

Sorry for the hijack

v/r
phil

But within any group of 25 or more professionals, one of them probably should not be there, regardless of the profession, Doctors, lawyers, School Teachers, Soldiers, Police Officers...

These so called "bad apples" however tend to move on and find work elswhere - it is amazing.

This guy Butler had many chances to have a better outcome - but above all, he couild have called somebody...

I mention all this because this hit very close to home for me 3 years ago -

(See below)

Quote:

Dallas Officer Fired for Using Deadly Force permalink

--------------------------------------------------------------------------------

Story by nbc5i.com

Police said on Thursday they have fired a fellow officer for using deadly force.
The officer, Michael Tayem, was fired for using deadly force on 31-year-old Jason Pabis, who died after being shot during a scuffle outside an East Dallas apartment over the Memorial Day weekend.
Chief David Kunkle said he decided the officer, who was off-duty and working security at the time of the shooting, did not follow basic procedure. The officer said Pabis was drunk and disorderly and charged at him.
"Our deadly force policy is very strict," said Dallas Police Department spokesman Rick Watson. "It lays out that officers should take reasonable alternatives before they use deadly force."
The attorney for Pabis' family said Pabis was indeed drunk, but noted Pabis was unarmed and said the autopsy showed he was shot four times, including twice in the back.
"It could be he was running away and got shot some more," the attorney said. "We don't know. We need to investigate further."
Kunkle also on Thursday fired a 24-year veteran, Sgt. John McCaghren, alleging he failed to obey his supervisor and didn't show up to work.
Both officers have the right to appeal.
"The chief has made it no secret, from the day he came on, he said accountability was at the top of his list," Watson said. "He expects officers, including himself, from the rookiest rookie to himself, to be accountable for their actions."

Copyright 2006 by nbc5i.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Just to continue with the Hijack

Jason worked with me at Nokia in Fort Worth - we were on a quality team, had the same boss and shared the same office area. - his desk was 10 feet from mine. He was a free living, young guy, who drove a Jeep with a cavis top and without doors, all year round. We never knew he was such a drinker though.

He died about 9:30 on a Saturday morning all he was wearing when he was shot and killed was a pair of red baithing truncks, no shoes or shirt, noothing. But he was drunk - been partying all night and was not going to stop just because the sun came up.

The officer was about 5' 4" - Jason was just shorter than me and I'm 5' 10".

I know that our department was so stunned by this that little or no work was done that week following. There is so much more to this - on the back side, but I won't go into it - it is not relevent. But again - it did not have to happen. the officer should have been better trained - drunk people deserve to get locked up - not shot and killed.

Sorry for the continued Hijack.

JAGO · 10-21-2009, 05:12

Quote:

Originally Posted by 7624U

I see in the above case, But butler never even interacted with phelps, no crime was commited by phelps. The Lt. Started to struggle for control of the bag. Phelps see's him get shot while unarmed. Jumps from the truck tries to run away slips on the pavement and then gets shot threw the arm and in the back.

7624U,

That may be one of the reasons that the Court refused to grant qualified immunity to the officer? I don't know, I wasn't there.
From a strictly legal standpoint, all use of force is analyzed from the perspective of a 4th Amendment Seizure. The use of force must be "objectively reasonable" based upon the 'totality of the circumstances" (Graham v. Connor) - deadly force has some futher considerations as outlined above in Tenn v Garner.
The courts have taken the approach that an officer should not have to wait until he is shot/hit/cut before he/she can use force.
The courts have held that the officer doesn't have to be right - just that the officer's actions are reasonalbe from an objective standpoint.

I'm not saying what the Deputy did was appropriate. But we are looking at this in hindsight. If the evidence were to come out that the deputy thought the two SF soldiers were "burglars", "casing a farm" and working as a team, and if there were some sort of conversation that was inconsistent with the soldiers being in the area for only lawful purposes, and if he saw a firearm, and if one member of the team resisted and attempted to take the firearm, and "in the heat of battle" so to speak, he thought (under the facts I've just put together for the sake of argument) the other soldier might be getting a firearm - or trying to escape; Well, a jury could find that use of force reasonable by an objective standard. Again, I'm not saying that is what happened, I wasn't there.

There are some studies that indicate burglars are a particularly dangereous class of felons, especially those that break into residential dwellings. More than often they are armed with some sort of device or weapon, they will fight if cornered, and many engage in weird activity while inside the victim's house, including autoerotic behavior, stealing personal clothing, especially underwear, and urgent bowel movements. If the deputy was investigating what he thought to be armed burglars - well he was on guard through out the entire stop. Not saying he was right, but he said that there had been a rash of burglaries.

A final point and I'll shut up - the original Terry v. Ohio decision, whether you like it or not, does not require that the crime have happened (been completed) Detective McFadden observed Terry, et al. "casing" the airline ticket office. The court felt that officers have a duty to prevent and to protect and a Terry stop may be initiated based upon a resonable suspicion that a crime is about to occur, is occuring, or has just occured. Again, if the facts as related by the Deputy indicate he though a burglary was about to happen, he was within his authority to make the stop.

God rest the Lieutenant's soul as well as give health to Phelps. Likewise, I don't imagine the Deputy is doing well after shooting two soldiers who were only engaged in training. This is the worst tradgedy.

I have a great deal of faith that the trial court will get to the bottom of this. The jury will find the true facts and the judge will apply the law. I pray for everyone involved.

v/r
phil

JAGO · 10-21-2009, 05:17

Quote:

Originally Posted by Mitch

But within any group of 25 or more professionals, one of them probably should not be there, regardless of the profession, Doctors, lawyers, School Teachers, Soldiers, Police Officers...

These so called "bad apples" however tend to move on and find work elswhere - it is amazing.

This guy Butler had many chances to have a better outcome - but above all, he couild have called somebody...

I mention all this because this hit very close to home for me 3 years ago -

(See below)

Mitch, "spot on' re: bad apples. My job is to pick them.
But reading the thread, I recall the role player was back in the police car, he couldn't hear what was going on, because of the chatter on the police radio. I think he mentioned the Deputy was calling for back up at the point he got the bag? I could be wrong, but I seem to recall that amongst the facts,

Just to continue with the Hijack

Jason worked with me at Nokia in Fort Worth - we were on a quality team, had the same boss and shared the same office area. - his desk was 10 feet from mine. He was a free living, young guy, who drove a Jeep with a cavis top and without doors, all year round. We never knew he was such a drinker though.

He died about 9:30 on a Saturday morning all he was wearing when he was shot and killed was a pair of red baithing truncks, no shoes or shirt, noothing. But he was drunk - been partying all night and was not going to stop just because the sun came up.

The officer was about 5' 4" - Jason was just shorter than me and I'm 5' 10".

I know that our department was so stunned by this that little or no work was done that week following. There is so much more to this - on the back side, but I won't go into it - it is not relevent. But again - it did not have to happen. the officer should have been better trained - drunk people deserve to get locked up - not shot and killed.

Sorry for the continued Hijack.

Mitch,
I am sorry you lost your friend.

v/r
phil

7624U · 10-21-2009, 07:28

JAGO

Yea I see where the law stands. I was just venting I talked to phelps and looked at his bullet wounds after the shooting took place. So I might be a alittle bias that butler was wrong in his actions. Good thing im not on the jury

JAGO · 10-21-2009, 07:37

Quote:

Originally Posted by 7624U

JAGO

Yea I see where the law stands. I was just venting I talked to phelps and looked at his bullet wounds after the shooting took place. So I might be a alittle bias that butler was wrong in his actions. Good thing im not on the jury

7624U

I wish that sometime I could simply "get on a jury". I would love to sit back and watch the dynamics of the "12 angry men". It wouldn't matter if it were a criminal trial or a civil suit. What an education that would be. I get challenged when called.

My point in all of this, there are two sides to this story. I have never had the pleasure of serving with or even meeting "Richard" on this board, but I love the way he can bring the opposite perspective into all of it. I will never be as good as Richard, but that is all I was trying to do here.

If the case goes against the soldier, I note that the case is in U.S. District Court and not in some county court. If the results aren't to your liking, I submit that there probably wasn't any sort of "politics" in the jury's decision, that they simply followed the law as presented by the judge, and justice was done.

I don't know how it will go and I am sorry for both sides.

v/r
phil

**Pete** · 10-25-2009, 06:39

Robin Sage exercise to begin

http://www.fayobserver.com/Articles/2009/10/25/946302

In the paper this morning.

SF_BHT · 10-25-2009, 08:37

Quote:

Originally Posted by Pete

Robin Sage exercise to begin

http://www.fayobserver.com/Articles/2009/10/25/946302

In the paper this morning.

Guess they better send special notices to local LEO's