Sex assault suspect killed by police

12-19-2010 California:

LONG BEACH, Calif., Dec. 19 (UPI) -- A California man suspected of sexually assaulting a minor family member was fatally shot Sunday by an officer who went to a home to question him, police said.

The Long Beach Police Department said in a statement officers were flagged down about 5 a.m. by a female who made the sex assault allegation.

Police said when the officers contacted the unnamed suspect, he produced a handgun and was shot by an officer, the Long Beach Post reported online. He was pronounced dead at the scene by city paramedics, the news Web site said.

No officers were hurt.

The minor who was allegedly assaulted was treated at a hospital.

City homicide detectives and the Los Angeles County District Attorney's office were investigating the officer-involved shooting. ..Source.. by UPI

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UPDATE: Long Beach Police Officers Fatally Shoot Sexual Assault Suspect

12-20-2010 California:

UPDATE 9:34am Monday | Chief of Police Jim McDonnell issued a statement and took questions from the media Sunday afternoon after the early morning officer-involved shooting that killed a sexual assault suspect in Long Beach. He reiterated the story released by the department yesterday (which you can read below) and also added new details.

After last weekend's controversial shooting of Doug Zerby, in which it appears officers did not notify Zerby that they were present nor asked him to drop his weapon (it would turn out to be a water nozzle), McDonnell on Sunday made it very clear that officers confronted the suspect and announced themselves in both English and Spanish.

The suspect had fled to a nearby home and officers told him to exit in both languages. When he did not, they entered the home in an attempt to arrest him.

They found the suspect in a second-story bedroom and again told him to surrender in both English and Spanish. The suspect was sitting on a bed and rolled to the other side, where he grabbed a handgun and three officers opened fire, killing him. ..Source.. by Ryan ZumMallen

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Competing Claims And Motives In The Zerby Case

12-27-2010:

11:31am | I've never liked the adversarial system as it plays out in American jurisprudence.

Even if you're unfamiliar with the term 'adversarial system,' you know what it is: the prosecution and the defense each put on its best case, and a judge or jury decides the winner.

Especially in the context of criminal justice, where people are accused of the worst sorts of inhumane behavior, the term 'winner' is crass; nevertheless, it fittingly reflects the reality: within the parameters of what is legally allowable1, each side tries to win, period. Thus do you often hear variations on a theme: "If you're looking for truth in a court of law,

you're looking in the wrong place." The adversarial system is not about finding truth, it's about beating your adversary. It's about winning.

While I am completely on board with the state trying to prove its case and the accused getting a competent, vigorous defense against prosecution, I have always imagined it would be possible to have a system wherein both sides' first priority is to serve truth. That, it seems to me, would always make for the best chance to find "justice."

This oppositional frame shapes events far outside the courthouse walls. Historically we have found it alive and ill-but-thriving in police going to criminal lengths to justify their criminal behavior, and attorneys materially obfuscating fact and truth in the pursuit of victory.

I'm on this a priori tangent about the Zerby case because I've just been comparing the contrasting versions of the December 12 shooting of Doug Zerby offered to us by Long Beach Police Department Chief Jim McDonnell and by Brian E. Claypool, the attorney hired by Doug Zerby's family. And while I still count myself in that nearly all-inclusive group of people who are in no position to know what happened on December 12, what I do know is that already we are seeing both sides positioning themselves for combat, and it does not seem certain either is primarily driven by a search for truth.

Let us start by considering Claypool's version of events, which he animatedly offered on December 17, five days after the shooting. Piecing together everything he said, "Here's what really happened":

A very drunken Zerby did not wish to drive, and so he stumbled to his friend Doug's house and knocked on the door. Since Doug was not home, Zerby sat on the porch to wait, killing time by playing with a water nozzle he found there, apparently sometimes handling it as if it were a gun2. Police received a 911 call from an individual claiming he saw Zerby with a gun, though admitting that he didn't know much about guns3. "[A]t least five to six […] possibly more; could've been upwards of seven or so" officers arrived on the scene, and during a period of 10–15 minutes they took up positions around Zerby, one officer as close as 12 feet away behind a brick post that would have protected him from harm even if Zerby had a gun and opened fire. They observed Zerby with his legs crossed and his hands in his lap. "We know they [i.e., the officers] […] didn't fear for their lives." Eventually one of the officers made a noise, and Zerby turned in that direction, though with his arms still down, and one officer began firing, which triggered at least two and maybe three others to do the same4, "blast[ing] 20 rounds" at Zerby, 10 to 12 of which hit him, some after he was slumping forward from being shot5. "It was target practice for the Long Beach Police Department […] a flat-out ambush." Zerby's body ended up leaning against a banister, which suggests Zerby never made an aggressive maneuver.

Needless to say, Version Claypool differs from the LBPD version of events, which, as outlined by Chief McDonnell at his December 13 press conference, goes like this:

At approximately 4:40 p.m. police were dispatched to the scene based on the 911 call, which involved two witnesses who believed Zerby was brandishing a gun identified as a "six-shooter." Officers arrived and "took positions where they could watch the suspect until more officers arrived,"6 from where they observed an apparently intoxicated Zerby brandishing what appeared to them to be a handgun. They did not establish contact with Zerby because they first wanted to set up "containment" in case Zerby tried to exit the scene; and because they first wanted "a helicopter […], K9 units, and […] our mental-evaluation team." Over the course of 10–15 minutes as they waited for these resources to arrive, the officers observed Zerby pointing the presumed gun at the apartment building, then continued to play with the object, "which made noises that were similar to that [of] a handgun." As soon as Zerby became aware of the officers' presence, he pointed the supposed gun at the officers, using a two-handed grip typical of an individual about to discharge a handgun, at which point two officers shot him, including with two shotgun rounds. The officers did not speak with Zerby before shooting him "due to the actions of Mr. Zerby […]." "The message is: you're responsible for your actions."7

There's plenty in both accounts to wonder about. In Version Claypool, it strains credulity8 to think three to four officers who didn't fear for their lives fired 20 times on someone sitting cross-legged with his hands in his lap, including at least some shots after he was leaning forward, incapacitated. In Version McDonnell, there are frighteningly obvious questions, such as why officers had to wait for dogs and a helicopter before saying, "Long Beach Police Department. Drop your weapon."

Then there's also the matter of the factual discrepancies. From the little I know about forensics and ballistics, the number of shooters and their distance from Zerby when they fired is absolutely determinable—which means either Claypool or McDonnell can (and eventually will) be shown to have, for whatever reason(s), put forward inaccurate information.

Lastly, we have both Claypool and McDonnell inserting themselves into the mix by offering conclusions. To begin with, aside from spinning the incident as an "ambush," Claypool's account includes information he cannot possibly know, such as assertions about the intentions of the officers involved and Zerby's state of mind. And so whatever else is the case regarding his various assertions of fact, Version Claypool is at least somewhat embellished, in that it is not confined to the facts involved.9

For his part, McDonnell's stated conclusion that Zerby's own actions caused the officers not to speak with Zerby and then to shoot him can be nothing but spin, an attempt to exonerate the officers' actions in the forum of public opinion in advance of the investigation being conducted to determine whether that conclusion is valid, or whether what is truer is that the officers killed a man due to a deadly ineptitude (isolated or systemic). I'm open to the possibility that the officers and the LBPD may be blameless, but I cannot see how on December 13 anybody—especially those of us who weren't there—was in a good enough position to have determined it to be so.

That a mere one day after an officer-involved shooting of an unarmed man the chief of that police department seems already to have determined the shooting to be justified might reasonably cause one to be concerned about whether any departmental investigation of the incident isn't compromised from the start.10

In a tragedy such as the death of Doug Zerby, there are inevitable questions, especially in the immediate aftermath. Unfortunately, Claypool and McDonnell, by focusing on more than simply finding and acting upon truth, have made the process more questionable than it needs to be. In going forward, we should urge both sides not to be focused primarily on coming out of their corners fighting. Because this is not a boxing match; this is not a debate. An unarmed man was killed, and we should have a common goal, a goal that none of our behaviors should compromise: to find out why it happened, and to take whatever steps we might to minimize the chance that such a calamity will again befall us.

Beyond that, there may be a time when we can definitely assign blame, and there may be appropriate actions to take in that regard. But that time was not within a week of the shooting. Those who would play the blame game in that time frame might fairly be said to be posturing, digging trenches and hunkering down for an upcoming battle. That is not about justice; it's just another way of burying one's—and others'—head(s) in the sand.

Let's not go there.

Footnotes
1And, on occasion, outside of those parameters.
2Claypool skips over the question of what Zerby was doing with it, but he doesn't dispute that Zerby must have been doing something with it that made it appear to at least one person—namely, the 911 caller—that it was a gun.
3While this is true, Claypool takes the statement out of context: the caller was committed to his belief that Zerby had a gun; his statement about knowing little about guns was made in relation to the 911 operator's asking what kind of gun it was, to which the caller stated his belief that Zerby was brandishing a "a little tiny six-shooter or something like that" and not a 9 mm or a .45 caliber handgun. "Do you actually see a gun?" the 911 operator asks. "Yes, I do," the caller replies immediately.
4Regarding two of the officers, Claypool says, "All they did was barge in the apartment […] go to the side deck, and start shooting a shotgun at Doug Zerby."
5"Doug had already been incapacitated, and these police officers continued to shoot."
6Later McDonnell indicates that they tried to take positions of cover, and implies they were "30 to 40 feet" away—well beyond the effective range of the tazers they possessed, he says.
7This may sound harsher than it was meant, as McDonnell never (otherwise) implies that Zerby "deserved" to be shot; but this was McDonnell's statement in response to a reporter's question about what message this shooting sends to members of the community.
8Unless we were talking about, for example, a racially-motivated killing—as once were common enough in this country and which, unfortunately, are not extinct—but no one is suggesting this kind of factor is in play.
9This includes one assertion by Claypool that already we know to be false: "There was no indication from that 911 call that Doug Zerby had committed a crime," he says, even though brandishing a handgun in public—which is what the caller stated Zerby was doing—is a crime in California. (See California Penal Code Section 417.) That it turned out Zerby was not committing a crime does not lessen the fact the 911 call was indeed an "indication that Doug Zerby had committed a crime."
10Something I like about American jurisprudence is built into it is the possibility of outside investigations.

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IN PRINT: Zerby Shooting

11-20-2011