Saving Willie McCoy

When I first wrote about the killing of 21-year-old aspiring rapper, Willie McCoy, there was no video yet to show what happened. Now, there is.

Radley Balko called this a “straight up execution.” Others pointed at this killing as an example of how black people have no Second Amendment rights, and so police are “permitted to murder us with guns simply b/c they imagine we possess one.” Except Willie McCoy had a gun. It was sitting in his lap. He was sitting in his car, in the drive-thru lane, car running, in drive, with him passed out at the wheel.

This was not a normal situation. It becomes no more normal by omitting the surrounding circumstances and relating only the killing.

David French at NRO tries not to ignore the surrounding circumstances in his analysis of the killing of Willie Mccoy.

When the police arrive, they find McCoy fast asleep — so asleep and unresponsive that he seems closer to unconsciousness. In spite of the fact that they know that he has a gun (in the moment they think the magazine is halfway out of the gun and believe he has at most one shot, a potential round in the chamber), the officers cluster right by him, clearly in his sight line should he wake up. Then they discuss their plans. They consider opening the door and snatching the gun, or smashing the window open.

French describes McCoy’s state as “fast asleep.” The basis for this is unclear, as most people don’t suddenly fall fast asleep in the drive-thru lane. Maybe so. Maybe McCoy was passed out for another reason. But what would be the expectation of a cop arriving at the scene, that McCoy was just really, really tired, or that there was something else, some other reason, for his being unconscious?

When McCoy does start to move, the officers’ response is dramatic. From the video, they seem reasonably relaxed when McCoy scratches his left shoulder, but then McCoy leans forward and appears to move his arm. There’s no indication he’s clearly awake, yet all at once, the officers start screaming, “Show me your hands!” so loudly that it’s necessary for captions to explain that the yells weren’t in fact gunshots. Within roughly three seconds, the officers start firing.

At the moment McCoy’s left hand reached for a gun that was on his lap, what else would they scream? Or should they have screamed at all, choosing instead to inquire in calm tones, “Sir, can you tell us why there is a gun in your lap in the drive-thru lane, where you’re fast asleep?”

Of course a man should not fall asleep in a Taco Bell drive-thru. It’s even more unnerving when he does so with a gun in plain view in his lap. But it’s odd for officers to simultaneously declare that they felt in mortal danger while also placing themselves directly in the suspect’s potential line of fire, considering drastic action as he continued to sleep, and then responding to his substantial movements with a cavalcade of startling shouts that he had three seconds to properly process (from an unconscious sleep) before he was shredded by bullets. Why did officers place themselves in such a vulnerable position? Why did they ponder such dramatic measures to wake a sleeping, armed man?

Unlike others, French doesn’t simply gloss over the bizarre scenario cops found when they responded to the call. Instead, he raises the question of the police justification for the killing, that they were in fear for their lives, when it was their decision to put themselves in a position where, when McCoy roused with the gun in his lap, there would be no other reasonable possibility but to be in a life-threatening position.

The department claims the officers fired in “fear for their own safety.” Well, yes, their fear in the moment, was palpable, a fact which the law asks juries to consider in such cases. But we should also ask whether the officers’ actions were reasonable before they opened fire. Did their own decisions unnecessarily contribute to the moment of crisis?

The law is unhelpful here, as the “Reasonably Scared Cop Rule” makes no accommodation for whether the cops created, or even contributed, to the situation that resulted in their claim of fear. Even if the police did everything wrong, everything possible to create the scenario that gave rise to their claim of fear, to the potential threat to their life, there is no qualification to their right to kill. If, at the moment, no matter what else happened, their fear satisfies the rule, they get to kill. It’s not just that cops’ lives matter to cops, but they matter to the law as well.

When we evaluate police shootings, we wrongly tend to limit our analysis to the very instant of the shooting itself. The question of a cop’s reasonable fear at that instant is allowed to trump all other concerns, and becomes the deciding factor at trial. I would argue, however, that officers act unreasonably when they don’t give a citizen a reasonable chance to live — and giving a citizen a reasonable chance to live involves properly handling the situation so no weapon need be fired.

There was, as French notes, almost no way this scenario was going to play out that didn’t end in Willie McCoy dead. It is fair to argue that this situation was so bizarre, so unanticipated, that there was no ready police protocol to deal with it, and so the officers on the scene were left to come up with their own way to address the situation. It’s impossible for police to have a handy solution to every crazy scenario humans can create.

But even without training on how to deal with the passed out guy with a gun in his lap and the car in drive in the Taco Bell drive-thru lane, should there not be training as to how to take a protective posture when faced with such an oddball fact pattern?

Unlike others, I can’t see this as a “straight out execution” scenario, but as a bizarre outlier scenario where the police were left to their own devices and came up with an approach that was nearly certain to end in Willie McCoy’s death. It’s easy to say (and like David French, I will) that there has to be a way out of even the oddest situations that leaves no room for anything but a killing.

But what that would be isn’t sufficiently clear to me that I would conclude this was an unforgivable outcome. Just that they should have done far better than this, and come up with a way that would have given Willie McCoy a chance to eat dinner another day.

32 thoughts on “Saving Willie McCoy

  1. Pedantic Grammar Police

    I’m no cop-lover, but I have a hard time finding fault with the cops here. They should have made a better plan, but there’s no law against being stupid, even if it results in a tragic death caused by stupidity on both sides.

    1. SHG Post author

      People are presumed innocent, not intelligent, has long been the rule, but does that incentivize the dumbest cop response? It’s not that I can imagine a viable test for intelligent police response to outlier scenarios, but is there no duty to avoid placing themselves in the riskiest situation that will almost certainly end in their killing someone?

      1. Pedantic Grammar Police

        I do find fault with the system. European cops rarely kill anyone, and maybe American cops could be trained similarly, but America has a unique mixture of widespread gun ownership combined with a police culture of fear that continues to create tragedy. Should the police culture be different? Yes. Can we change it? Probably not.

        I applaud your efforts in that direction. Sometimes I think that someday enough minds will be changed so that society will push the system into a different direction. Then I read the news and lose hope. Our system is hopelessly corrupt, and cops who kill based on self-inflicted fear are part of the package.

        Yes, they have a duty to minimize harm. They failed to correctly execute that duty. I suspect that 99% of American cops would have done the same or worse. If we punish these cops for this tragedy, we would be punishing them for happening to be the ones who were sent out on this call.

        1. SHG Post author

          There are two “real life” issues coming out of this. First, should the cops be criminally charged for the killing? Second, should the cops (or, in real life, the municipality that employs or insures them) be liable in damages for the wrongful death? Sad feelz aside, if neither of these fits the bill, then what is the point?

          1. Pedantic Grammar Police

            It’s hard to say what should happen in a corrupt system where the primary role of the police is to protect our rulers from us. Should we drag the elites out in the street and chop off their heads? Should we stop going to work? Should we have a pointless street protest that accomplishes nothing? All of the obvious courses of action will either accomplish nothing or make things worse.

            The McCoy family should be able to sue the municipality, and a jury should decide what they get, but that’s not a perfect solution. Are the taxpayers to blame for this? In a way I guess we are.

            1. SHG Post author

              So close. As lawyers, this is the system we deal with, as it’s utterly pointless to whine about “a corrupt system” when it’s the only system we have. If you want to play that game, just like the people who blame every problem on structural racism, then go to BCND at reddit. If you want talk about the real world, then cut that infantile crap, man the fuck up and deal with the world we’ve got.

              I’m trying to make a secondary point here, aside from that of the post. If you want to contribute to dealing with problems, don’t begin by presuming all cops are evil or the system is corrupt. Nothing is that simple and no worthwhile view can be predicated upon such a simplistic assumption.

            2. Pedantic Grammar Police

              I don’t presume that cops are evil. I suspect that the vast majority are good people. Even those who behave badly are more likely to have succumbed to bad influences than to have joined the force for evil purposes. That doesn’t mean that they aren’t part of a corrupt system.

              The corruption in the system is hard to miss. If we pretend that it isn’t there, is that not also a simplistic assumption? The real world includes corruption.

    2. Ken

      You violated his constitutional right period… the right to bare arm. And he’s in his car that consider his home so it dont matter where his gun at are how it is…

      1. SHG Post author

        The forcefulness of your myopic view is adorable, but rights don’t quite work that simply, and cars carry nowhere near the level of 4th Amendment protection of a home (see automobile exception). This is about as helpful as the college kid screaming hate speech isn’t protected by the 1st A; deeply passionate and completely wrong.

  2. ACHughes

    “Unlike others, I can’t see this as a “straight out execution” scenario, but as a bizarre outlier scenario where the police were left to their own devices and came up with an approach that was nearly certain to end in Willie McCoy’s death.”

    I think you’re right but the argument not fully stated in French’s piece, but nonetheless the one I think he and other critics were trying to make (hell, at least the one I’d make if I’m not just projecting) is that killing someone is an extraordinary measure. I don’t think anyone should be charged or even fired over this, but I do think the police ought to have taken more seriously the fact that their measures were liable to result in a justifiable killing – and as such, should have tried to choose a path less likely to end in someone being dead. They had the power to set up the scenario under which they’d wake McCoy, and people who sincerely and desparately valued human life and were disgusted by the thought of taking it could have done better. Had they done one of the alternative scenarios – snatching the gun from his lap, waking him while stationed behind cover, etc., he might just be remembered as that irresponsible asshole who fell asleep in a Taco Bell drivethrough, not the guy who got shot to death in a Taco Bell drivethrough. Not to mention that the tragedy here is only compounded by the fact that Taco Bell is awful and so he was killed attempting to reach not for the stars, but for the dirt.

    1. SHG Post author

      So if no one should be charged or fired over this, then what? Of course killing someone is an extraordinary measure, but what then? To call it a tragedy is easy, but what is there to do about it?

      1. ACHughes

        Fair, I’m not so sure about what the merited punitive measures are. This isn’t a case of cops taking delight in the opportunity to unnecessarily kill someone – demotions? To be frank I think the will to care about all peoples’ wellbeing and to hate the idea of a justifiable homicide is so niche that I doubt public support would go beyond anything as simple as saying ‘these guys probably shouldn’t work the streets’.

  3. Hunting Guy

    Maybe I missed it in the articles, but speaking as a gun owner, a lot of of the fault lies with McCoy.

    It’s terminally stupid to drive around with a gun in your lap. There are too many ways for things to go wrong that don’t involve the police. And it doesn’t matter if you are white, black, green or purple. It’s stupid and asking for something bad to happen. I can think of several scenarios where the gun falls from your lap and goes off.

    Could it have been handled differently? Sure. But you play the hand you’re dealt.

    I’m being a bit harsh, but it sounds like Darwin in action.

    1. SHG Post author

      I don’t think anyone can seriously question that McCoy was wrong to have a gun in his lap, together with a list of other things, but stupid isn’t (or at least shouldn’t be) a capital offense. Can a person be stupid and still live another day?

    2. ACHughes

      McCoy bears (I won’t bother findng out if that’s the right bears) pleanty of responsibility for what happened to him, but what myself and other observers are pissed about is the notion that this was preventable by his actions, and therefore his fault. What I and I suspect many others believe is that human life is so precious that extraordinary measures should have been taken so cops could have awoken McCoy without generating a scenario for a justifiable homicide. They could have opened the door and grabbed his gun, they could have taken cover and woken him via loudspeaker – if you demand all human life to be seen as sacred, you’d be inclined to investigate these options first. Instead, they went to an option that would inevitably lead to his death. Even if justifiable, McCoy’s death is a tragedy, as there are doubtlessly people who knew and loved him, if not for the value of his own life. He shouldn’t be judged against Darwinian standards regarding what members of our species are most fit, but against the standard by which we weigh how unfortunate it is that a person prematurely lost their life.

      1. Fubar

        McCoy bears (I won’t bother findng out if that’s the right bears) pleanty of responsibility for what happened to him, but what myself and other observers are pissed about is the notion that this was preventable by his actions, and therefore his fault.

        Exactly.

        Working backward in the video from the first gunshot:

        3. Police never identified themselves as police, even when trying to awaken McCoy. Instead, they shine lights in his face and shout “hands up!” This guarantees that upon awakening McCoy will not know whether he is facing police or armed robbers.

        2. Police, upon noticing that McCoy has a gun in his lap, assume aggressive positions and postures, ready to shoot if he makes any move whatever. Backing away and taking cover before shouting commands would at least have demonstrated that they gave some consideration for McCoy’s safety or their own safety, or the safety of innocent people nearby.

        1. In the video, one officer grabs another officer’s gun in hand to point out that McCoy has a gun. To grab a gun held by someone else, even your friend, is to invite accidental discharge. That’s gun safety 101.

        Vallejo police thereby demonstrated no consideration for safety of either the unconscious driver, or themselves, or others.

        0. Although not in evidence in the video except by the absence of EMTs, the 911 dispatcher, upon receiving a call that a man is unconscious in his car at a drive-through window, dispatched police instead of EMTs. It is almost impossibly unlikely that nobody has ever suffered a heart attack or stroke in Vallejo.

        Nothing McCoy could have done (except not passing out while driving) could have prevented those acts by police. Each act demonstrates either disregard for safety of police or subjects of police “investigation”, if not active intent to shoot first and ask questions (or make stupid excuses) later.

        1. ACHughes

          Couldn’t agree more. People who saw McCoy’s life as something precious wouldn’t have acted this way.

        2. Hunting Guy

          “Nothing McCoy could have done (except not passing out while driving) could have prevented those acts by police.”

          As a gun owner, this is wrong. All McCoy had to do was keep the gun hidden.

          Are the cops at fault? Somewhat, but the ultimate blame lies on McCoy.

          1. Fubar

            All McCoy had to do was keep the gun hidden.

            Until recent years, open carry was lawful in CA. McCoy would have violated no law by openly carrying an unloaded gun.

            But Gov. Moonbeam and a legislature full of “progressives” relieved Californians of their longstanding right to carry an unconcealed unloaded handgun.

            I recall in recent years prior to that, being in various public places and noticing that some ordinary citizen was packing unloaded heat in full view, typically in a holster on their waist or hip.

            Under current CA law, without a proper permit, McCoy would be committing a criminal offense to conceal the gun, or to carry it openly.

            Under prior open carry law, only brandishing the gun (which is legally defined) would be a criminal offense.

            1. SHG Post author

              Not that you’re technically wrong, but be careful about how reality and theory mesh. Open carry and the Reasonably Scared Cop Rule are often in facial conflict, and there aren’t many cops (or many ordinary folk) who are willing to take a bullet to find out whether it’s the exercise of a constitutional right or a threat to their life when they’re staring at a gun under peculiar circumstances.

              The question is less who’s right than how does everybody manage to get home for dinner. You can’t sue later if you’re dead.

          2. zoe

            If only Taco Bell didn’t have a late-night drive-thru…
            If only McCoy didn’t have poor eating habits…
            If only McCoy didn’t have narcolepsy or any other medical condition leading to unconsciousness (not that you, or the cops, would know this beforehand)…

            Everyone’s fault…except the cops. (Unless, of course…they were just hunting.)

  4. John Barleycorn

    Hey now rappers have been known to stroke their gun to sleep. I hear it has a calming effect and aids in getting a few rems in during a power nap.

    That being said…, the po–po don’t get enough practice with their bomb suits and robots. What were they thinking?!

    If it wasn’t a young man asleep behind the wheel but a package with a bow on top on the seat they would have evacuated the area and dealt with it in a much more deliberative and cautious manner. In the name of safety and all….

    Yeah, they might have blown up the car but if there were a puppy in the package at least the puppy could have attempted “surrender” once the robot popped out the window and nap time was over.

    P.S. Speaking of bombs when the fuck are you going to publish that white paper about “new scared cop laws” for consideration. Think of how good it will be for the economy if they actually have to shit their paints before they can claim “reasonable”.

  5. Jesse127

    The problem I have here is that no regular citizen, confronted (were the the police “confronted”? In a prior era this wasn’t an emergency) with the same circumstances would be absolved of this response. Only police get to come to a situation such as this, and be absolved of their reasoning that ends up in death.

    The Taco Bell employees, doing the same thing, would be charged with murder, almost without doubt.

      1. John Barleycorn

        “Taco Bell” is referenced 7 times in the post and the back pages, “Killing” 11 times.

        So, there is that to be optimistic about….

        P.S. I think that retort you shredded was my first “Blackstone” attempt ever. Should I double down?

        It was good too wasn’t it!? 😉 Felt good too!

        Prosecutor in this case (which will not happen because your white paper is tardy) could have made hay with that motion suggestion, just for fun and good optics.

        Just fucking with ya…. Until Blackstone and Amazon figure it out and cut a deal.

    1. Cabbage

      The police have a duty to deal with these people. You and I, regular citizens, do not. We have the right to walk away – and that lets us avoid dangerous interactions that police have no choice about getting into.

      That should not be a reason to give them infinite leeway when they badly handle violent confrontations, of course. But it should be a reason to give them some.

  6. Ahaz

    I believe you already made my points, SGH, better than I ever could. But ultimately, how to we change the behavior of COPs? It’s been ingrained into them that their safety is paramount. Reasonable has been redefined to such a low standard, that a COP can legally justify any reason so long as he states “I feared for my life”. DA’s often act as personal defense attorneys for the officer and sadly, the public in general, firmly believes that the life of a police officer is worth more than that of a suspect.
    While I don’t believe that even questionable action taken in use of force and deadly force scenario should be pursued criminally, those that display poor judgment or contributed to the conditions that cause loss of life, should not be COPs. Our society, despite the occasional protest, still acquit charged officers, keep re-electing the same DAs, still allow the police to define what reasonable means, so long as it happens to the other guy.

    1. SHG Post author

      I’ve addressed the generic issue, the Graham v. Connor “Reasonably Scare Cop Rule,” and the prosecutor problem in numerous other posts. This post is about what happened to Willie McCoy. Focus.

  7. N. Freed

    The weird thing is it has happened before, more or less. Back in 1998 Tyisha Miller lost consciousness in her locked car with a gun in her lap. She ended up getting shot 12 times after police broke into the car and attempted to take the gun away

    Google has more, of course.

  8. Cabbage

    To me, a better strategy is immediately obvious:

    1. Back away
    2. Position several cops a good distance away, beyond the effective range of a confused sleepy guy with a handgun, behind cover (e.g. behind the hoods of their cars), with guns trained on him
    3. Shout instructions from a distance

    No need to blow him away the moment he reaches, that way.

    There are maybe clever, unusual tricks you could play in addition to the above (since it’s nighttime and the guy’s asleep, maybe you can wake him up by positioning a car in front of his and blasting its main beams into the guy’s face, leaving him unable to see any cops to shoot at them) but you don’t even need them to do a better job than the cops here did. All you need is the instinct to position yourselves somewhere where you WON’T have to panickedly kill the guy the instant he moves, and then give orders from that position of relative safety. That, it seems to me, is David French’s thesis.

  9. B. McLeod

    Well, when this first was a story, some readers posited the police should have snatched him out of the car. Now we know they considered that, but his door was locked. I wondered at the time why the “Show your hands” came after the firing, but this video explains that too.

    It’s too bad this happened. I still wonder whether somebody who wanted this guy dead orchestrated this setup. Especially given that there was an extended mag, but it was hanging out. Still, the way it went down, I’m not seeing liability for the police. I hope they will devote some assets investigating how this guy came to be where he was, unresponsive, and with this powerful handgun on his lap, magazine unseated.

Comments are closed.