https://townhall.com/columnists/marinamedvin/2020/08/12/phoenix-police-shooting-was-justified-use-of-force-n2574174

With great power comes great responsibility. When a citizen answers the police knocking on his door with a firearm in hand, he assumes a lethal risk. He immediately becomes a deadly threat to the officers and should expect the officers to arm themselves in response to his actions. What happens next will be a matter of life and death, so he must tread carefully. 

On May 21, 2020, Mr. Ryan Whitaker was shot to death by Phoenix Police after answering his door with a firearm in hand. Mr. Whitaker’s family believes the shooting was unjustified, and they are calling for the officer to be charged with murder. The county attorney’s office has not yet commented on whether the officer who killed Mr. Whitaker will be prosecuted. The Phoenix Police Department released a brief statement of what happened and video from two officers’ body cameras that captured the incident.

Based on the evidence released, I do not believe the police officer should be prosecuted.

The Phoenix Police Department received two 911 calls after 10 PM from a neighbor who initially reported a loud domestic dispute and later called in fear that it escalated to violence. Two police officers were sent to the apartment to investigate, Officer Jeff Cooke and Officer John Ferragamo. Their body cameras reveal the officers arriving at the scene relaxed, with their arms on their vests, guns holstered. They knock on the door and announce “Phoenix Police,” then back away from the door. Moments later, Mr. Whitaker opens the door and proceeds to come out. He sees Officer Ferragamo and continues to move briskly from his apartment into the hallway, revealing a handgun in his right hand – pointed down and in front of his body. He does not say a word.

Officer Ferragamo sees the firearm and is heard yelling, “whoa!” He begins to draw his service weapon, shouting, “hands, hands!” Mr. Whitaker then moves his hand with the pistol in it behind his back and conceals the firearm from Officer Ferragamo behind his back. Officer Cooke, standing maybe a couple of yards behind Mr. Whitaker, can now see the gun in Mr. Whitaker’s right hand. 

Without being told to do so, Mr. Whitaker, while still facing Officer Ferragamo, begins to kneel down in the doorway, holding his left hand out, but bringing his right hand down in the obscured doorway, where neither officer can see what Mr. Whitaker is doing. An officer is heard shouting, “put your hands down.” Then, as Mr. Whitaker appears to begin rising up again from the kneeling position, still looking at Officer Ferragamo and his hand still in the obscured doorway, Officer Cooke fires three shots into Mr. Whitaker’s back, two of which hit Mr. Whitaker. As Mr. Whitaker falls forwards from the force of the bullets, his right hand comes into view, and it is empty. His gun was found in the doorway later. 

Mr. Whitaker died of his injuries on the scene.

According to the police department, Officer Cooke stated that he shot Mr. Whitaker “believing the other officer is in immediate danger.” The period from the moment that Mr. Whitaker opens the door to when he is shot is 3 seconds, and from the moment that Officer Cooke sees the firearm to when he shoots Mr. Whitaker is 1.5 seconds. Thus, Officer Cooke, who was not holding his gun when Mr. Whitaker first exited his apartment, responded promptly to what he perceived as an immediate threat to Officer Ferragamo’s life.

What Mr. Whitaker’s family believes he could have been thinking at the time of the incident is not relevant to evaluating whether Officer Cooke should be charged with a crime for shooting Mr. Whitaker. Irrespective of the family’s story of what they thought happened, the standard by which an Arizona police officer is judged is an inquiry into what the officer reasonably believed at the time of the shooting. It is an analysis from the perspective of the officer, not the deceased.

Arizona’s jury instruction for “the justified use of force in crime prevention” states, in relevant part: “A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other’s commission of [murder, manslaughter, aggravated assault] … A person is presumed to be acting reasonably … if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses listed…” (Emphasis added.)

Indeed, Officer Cooke asserted that he fired his service weapon to save Officer Ferragamo from being shot by Mr. Whitaker. As it appeared to Officer Cooke at the time, the events signified that Mr. Whitaker was an imminent threat. Officer Cooke had to make a decision fast, and he chose to save his partner’s life over waiting to risk another second to see what Mr. Whitaker would do with that gun. After all, waiting for Mr. Whitaker to first fire his gun at Officer Ferragamo would be too late to save Officer Ferragamo.

For background, the officers were responding to a domestic violence call, which is one of the most dangerous calls for police officers. According to available FBI data, for the period between 1980 and 2006, a total of 113,236 officers were assaulted responding to domestic violence calls; 160 police officers died as a result. Domestic violence calls are notoriously dangerous. The background these Phoenix officers had on the incident was that there was something loud or violent going on in that apartment before they arrived. 

True to form, the incident unfolded very dangerously for the officers once they knocked on the door and announced themselves as police. A man opened the door and came at them with a gun. This man then tried to conceal the gun behind his back, and then again in the doorway. He didn’t communicate with the officers, so the only intent they could read from him was his body language. His posture showed he was on the offense: he stepped out confidently, acted on his own accord. The man kept moving, hid the gun behind his back, then began bending down on his own, hiding the hand with the firearm in an obstructed doorway where Officer Cooke could not see what he was doing. The entire time, this man is staring at his partner. Then this man started rising up again without being told to do so, that hand with the firearm still obscured. Officer Cooke took all of these cues to indicate that this man was going to shoot, and he did the only thing he could do at that moment to stop this man from shooting his partner.

The Monday morning quarterback would have always waited to shoot, I know. But this officer didn’t have the benefit of 20/20 hindsight when he had to decide within second’s time whether he should save his partner’s life. Officer Cooke certainly didn’t come to this domestic call with a gun in hand. It wasn’t until Mr. Whitaker presented the threat that Officer Cooke did what he thought he had to do to save his partner. 

Over 30 years ago, three experts on the police use of deadly force testified in an Arizona trial that arose out of a police officer shooting and killing a suspect. The state Court of Appeals summarized their testimony as follows: “[Even] if the suspect were immobile, holding his weapon limply at his side, whether the officer should shoot would be a very close call … any overt movement by an armed suspect justifies the officer’s use of deadly force because of the unpredictability of the suspect and the officer’s disadvantage in having to react to the suspect’s actions. Even a change in facial expression would be enough.”

With great power comes great responsibility. How a man acts upon police seeing him with a gun in hand will be the difference between life and death. Mr. Whitaker may have been putting the gun down in the obscured hallway, which would explain why he was bending down and why the gun was later found there, but the officers did not know that and could not see that. Communication and body language is critical in these instances, and Mr. Whitaker did not communicate nor behave carefully. 

Mr. Whitaker’s death is tragic. But based on the evidence, Officer Cook’s perceptions were reasonable and his use of deadly force was justified.

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