A friend of the eyewitness to a crazy police shooting that happened today in Beckley, West Virginia, sent me the footage captured via smartphone, while bystanders stuck in traffic watched it go down right in front of them. I already posted it on my twitter page, where it’s spreading quickly and obviously disturbing most people. I didn’t want to get in trouble again on Youtube, so I’m going to edit the version I post there, and then re-direct anyone who wants to see the entire thing to this post. So, here’s the footage:

Apparently there was a pursuit involving an unidentified subject, who is very clearly armed with what appears to be a handgun, and he is pointing it at his own head, as he walks quickly away from a small army of police officers pursuing him. He walks onto the public road, with bystanders in stopped traffic watching. It appears that the officers are ordering him repeatedly to drop the gun. It’s also obvious that he is in a bad place mentally, and is threatening suicide, or perhaps seeking “suicide by cop.”

Eventually, one or more officers start shooting the man. He drops the ground. Also dropping to the ground is the man’s handgun, which thereafter can be seen out of his reach, below where his feet are lying. What’s really disturbing here, is that the police officers’ guns continue to fire, and continue to impact the limp and incapacitated man lying motionless on the ground. The video then cuts off after a barrage of such shots. It’s unknown to me whether there were additional shots after the camera cuts out. I count at least 6 officers in the immediate vicinity, with more following behind them, as the first shots ring out. I tried to count the number of times they fired, but it seems impossible. It looks like the first two shots incapacitated the man and then the large majority of them came afterwards. In the video, you can see that the officers who are firing can see the handgun on the ground, because some of the rounds are hitting right where the gun is located on the ground. Perhaps they were still shooting at the gun? They keep shooting the man, as his body rolls over prone, with rounds hitting the asphalt all around him, as well as impacting his body, and apparently his legs.

I don’t think there’s much of an issue about the first shots fired. The case law is pretty clear that cops can shoot a suspect armed with a handgun, so long as he’s objectively viewed as an imminent threat. An officer may use deadly force when the officer has “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Tennessee v. Garner (1985). I looked closely, and can’t quite tell which hand is holding the handgun at the time the first shots are fired. It looks to be the right hand. And it’s also a close call whether the right hand, arguably holding the gun, rises towards the officer before, or after, the first shot. But it does start to come up.

However, the Fourth Amendment still prohibits law enforcement officers from using excessive or unreasonable force in the course of making an arrest or otherwise seizing a person, which includes shooting him. See Graham v. Connor (1989). The courts determine whether the amount of force used by police is reasonable based on an objective standard, looking at the the circumstances confronting the officer “immediately prior to and at the very moment” he fired his weapon. Greenidge v. Ruffin (4th Circ. 1991). Moreover, this is assessed specifically as of the “moment that force is employed,” Waterman v. Batton (4th Cir. 2005).

This took place in the jurisdiction of the Fourth Circuit, which has previously held that the number of shots fired by police, itself, is not dispositive, if other facts indicate reasonableness. See Elliott v. Leavitt (4th Circ. 1996). The Fourth Circuit has held a couple of times that “force justified at the beginning of an encounter is not justified even seconds later if the justification for the initial force has been eliminated.” See Brockington v.  Boykins (4th Circ. 2011). An officer will not be entitled to qualified immunity for engaging in a use of force that is “unnecessary, gratuitous, and disproportionate force to seize a secured, unarmed citizen….” Estate v. City of Martinsburg (4th Circ. 2020). Although the subject appears to have been armed at the time of the first shots, the video very clearly shows he was not armed for the majority of the shots. Thus, the courts could treat subsequent shots as against an unarmed subject. Of course there could be additional facts of which we’re unaware, such as information indicating to the shooters that another firearm was present.

I wonder if any of these officers were interviewed, or provided statements, immediately following the incident, while it was still fresh in their minds? Or will they be given the opportunity to sleep on it; to review video footage; to speak with union reps; to seek legal counsel; and to submit a written statement at a later time? Whatever the answer is to that – we peasants should be entitled to the same protections….