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Police shooting withstands review

Of the Keizertimes

Note: The author of this article is the reporter who participated in the Deadly Force Review Board.

In dashcam video, Officer Tyler Wampler pulls up next to a sign marking the intersection of Springtime Court Northeast and Chemawa Road Northeast. It is March 14, 2018. In the next 35 seconds a man, suspected of robbing a Pizza Hut on River Road North, will die of a single gunshot.

Ahead of Wampler’s vehicle, where the camera will remain in a fixed view, a red Hyundai Elantra is seen crashed into a white vehicle and the suspect exits the Hyundai in a black mask, carrying a black bag and takes off on foot into the cul de sac. Wampler parks his patrol vehicle on the sidelawn of a residence and exits the vehicle with an AR-15 in hand. He shouts a warning to the suspect that he has the assault rifle in hand and will use it.

Neither man is seen on camera from here on out, but the audio from what is occurring is nearly crystal clear. Within a few seconds, Wampler issues another warning that the suspect will be shot as he chases the man into a single-family residential neighborhood. He repeats a warning again a few seconds later. Somewhere in the next moments the suspect has stopped running away and taken up a position between a large pick-up truck and a larger SUV parked in the driveway of one of the homes. According to testimony provided to a grand jury and police reports, he is looking back at Wampler and other approaching officers and is being asked to show his hands, repeatedly. Wampler and another officer later testify that the man showed one hand, but never both at the same time. About 20 seconds in, the suspect is warned again about the potential of being shot. The suspect is then heard shouting, “I have a gun.” Wampler tells the man to drop his weapon. About the 29-second mark, Wampler issues one more warning, telling the man he will be shot. Shortly thereafer, Wampler apparently sees an opportunity and takes it. A sound, somewhere between a crack and a pop, silences all chatter briefly. The suspect is killed with that single bullet, but it will take another few minutes to be certain the standoff is over.

The video was one of several exhibits examined by a Deadly Force Review Board assembled by the Keizer Police Department (KPD) Tuesday, June 12, to determine whether Wampler acted in accordance with department policy regarding use of force. Such reviews are an uncommon occurrence for KPD. Officers have used deadly force less than a half-dozen times in its more than 30-year history. The March incident was the first time such force has resulted in a death, but review boards have been assembled every time deadly force was used.

Aside from those milestones, this review board was unique in another way. Chief John Teague and Deputy Chief Jeff Kuhns invited a member of the Keizertimes staff to sit on the board and then write about the experience. It’s the first time a civilian, much less a member of the media, has been allowed to do so in the department’s history.

KPD’s use of physical force policy amounts to six pages in a manual that is more than 400 pages long, but it is informed by prominent court cases throughout the country’s history. Three court challenges are given special note. The first is Graham v. Connor, which established “The Objective Test.” The court determined that officers must balance use of force with intrusion on an individual’s freedom from unwarranted search and seizure.

In more practical terms, it established four circumstances to be considered when using reasonable force:

• The severity of the crime. In this instance, the suspect allegedly held two Pizza Hut employees at gunpoint while robbing from a cash register, then led police on a five-minute car chase through a number of residential areas before crashing at Springtime Court. When the suspect’s body was recovered from the scene, a black bag holding the same amount of cash stolen from the Pizza Hut was found next to him.

• The immediacy of the threat. There are multiple ways to view the incident through this lens. Prior to fleeing on foot, the suspect nearly collided with a number of KPD and civilian vehicles while trying to escape in the Hyundai. Many of the close calls were caught on dashcams, but others might have occurred outside those views. When pursuing the suspect on foot, Wampler testified that the suspect looked over his shoulder several times. Sgt. Bob Trump told members of the review board that such actions are considered a high-level threat. Trump summed it up saying, “If the suspect should be focused on getting away, why is he looking back to see where police officers are?”

The suspect also announced to pursuing officers that he had a gun after taking a position of cover between two vehicles. (Note: After the suspect was shot, the gun he possessed was still in his hand. Another non-lethal beanbag shot was fired several minutes later, by another officer, to knock it out of his grasp and be certain that he was not faking an injury to lure officers closer in.) Wampler told a grand jury that he feared for his safety and the safety of his fellow officers on the scene, but the standoff took place in a heavily populated area. Officers and the suspect were in the  middle of a neighborhood with houses on all sides with the potential for additional traffic passing behind on Chemawa Road Northeast or unaware drivers, pedestrians or residents coming around a corner from the end of the cul de sac. All of those circumstances added up to imminent danger.

Was Wampler able to carefully consider every facet of the situation in 35 seconds and make a decision to pull the trigger? That is a valid question, but even a low level of situational awareness would have brought some of the circumstances to the forefront of the average person’s mind.

• An active attempt to resist arrest. By taking up a defensive position, with a weapon, when he had the opportunities to stop running and surrender, the suspect made clear that he intended to resist arrest for at least for as long as the brief standoff lasted.

• An attempt to escape or elude arrest. The suspect attempted to elude police in vehicle and then on foot. Looking back to determine where officers were when he was fleeing on foot – when he might have kept running – implies that he knew a pursuit was happening and intended to escape.

Wampler’s decision to use an AR-15 was also questioned during the course of the review. The suspect was believed to be armed, and as a result, Wampler chose the AR-15. That too, is part of training in defensive tactics, said Trump.

“When the suspect has a handgun we want a rifle because it allows us to be more accurate at a greater distance,” he said.

Another major court case that molded KPD’s use of force policy is Tennessee v. Garner, which established that officers may not use deadly force to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

Given the constellation of factors leading up to the event and the suspect’s decision to confront officers rather than continue fleeing, Wampler had cause to believe that a potentially hazardous incident was in the process of unfolding. There are many “what ifs” that will never be answered as a result of Wampler choosing to end the standoff before it unspooled further, but fewer of them conclude without injury or death – possibly of a bystander.

Finally, since 1985, courts have stated law enforcement officers have a responsibility to warn suspects even when using force that is less than deadly but may lead to serious injury. There is no prescribed vocabulary for officers to use in any instance and the duty to warn only applies in situations where time allows it.

It is this space where statements provided to investigators and the testimony given before grand jury are most divergent from audio of the incident. Wampler testified that he warned the suspect that he would be shot; but gave no indication of the exact words he used or how often. (Note: It is possible Wampler legitimately cannot recall fine details of the events as they unfolded.) Wampler had not been allowed to review the video or audio before the review board completed its work and he may choose to never relive the moment. But, when considering all the questions before the review board in relation to the incident, the question of how much time passed between a warning and the shot being fired became the most urgent.

Had Wampler only warned the suspect once and then fired on him half-a-minute later, there would be some question as to whether the suspect understood the situation he had created for himself. However, the first words out of Wampler’s mouth were a warning, as were the last before he pulled the trigger. In less than 35 seconds, he repeated some variation of the phrase “you will be shot” five times.

In an objective world, there is no such thing as a “good” or “clean” shooting but, in this incident, the officer’s actions appear to have met or exceeded every requirement in Keizer Police Department policy.