Ed. Note: Greg Prickett is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.
There are times when police officers overstep when using deadly force, and times when they do not—and body cameras have proved essential in determining the facts in those cases. On April 22, 2020, Daniel Hernandez caused a five-car accident in Los Angeles, and, according to a 911 call, was cutting himself with a knife.
Officers responding to another call drove up to the accident at about the same time that dispatch put out the call that the driver had a knife. One of the two officers on the scene was Toni McBride, 23, who was also the daughter of the police union director.[i]
Daniel Hernandez approached the officers with a knife, ignored commands to drop the knife, and was shot. He was shot twice, dropped to the ground, got up, and was then shot again four times. He partially dropped to the ground again after the third shot and was then shot for the fifth and sixth time as he staggered to the side.
The Los Angeles Police Inspector General said that the final two shots were against policy, but the Chief of Police, Michel Moore[ii] said that all six shots were justified. The matter then went to the Civilian Police Commission, which, in a 4-1 vote, took the side of the IG over Chief Moore.
Moore’s right, and the others are wrong, and he’s got the background to back it up. First, he’s been in that situation before and did what he had to do, risking his life in an effort to protect the innocent. Next, he’s done the job of evaluating police use of force, serving as the chair of the Use of Force Review Board, where he’s viewed all kinds of use of force incidents.
Those who want Toni McBride fired and prosecuted have brought up, inappropriately, what she does outside of the department. You see, McBride is an attractive woman and has done some modeling outside of work, including for Tartantactical, a local firearms company that has a pretty good resume. She’s also apparently a very good shot and enjoys the practical shooting sports.
That apparently drew the attention of Hernandez’s lawyers, who filed the inevitable lawsuit for excessive force and wrongful death. In addition, one of the Hernandez attorneys, Narine Mkrtchyan, is an idiot, claiming that the fact that McBride enjoys shooting and celebrates her skills somehow meant that the Police Department employed “McBride, [] whom LAPD knew, or who reasonably should have known, to have reckless violent and homicidal propensities. . .” and that “I’ve never seen a police officer enjoying shooting to that degree and joking about it.” The first comment is just over the top, and the second comment just means that she’s never hung around cops before.
I would have loved to be able to shoot competitively like McBride, but I didn’t have the money and don’t have the looks to get a sponsor. In addition, most police officers who do shoot like that are assigned as departmental firearms instructor at departments that are big enough to have a full-time range staff.
None of that has any impact on the shooting and whether it was justified or not.
What does have an impact is whether the force was necessary, and the hard part is already done. Everyone (except the Hernandez family) agrees that the first four shots were justified. If someone is coming at you with a knife, you don’t invite them to discuss it over a cup of coffee. You shoot them. And you continue to shoot them until they stop.[iii] So McBride executed a series of three double-taps,[iv] and stopped when Hernandez was on the ground. These are stills of the shooting:
Like I said, the first two shots were clearly justifiable.
And here, everyone agrees that shots 3 and 4 are also justifiable, and as far as I’m concerned, so are shots 5 and 6. What those who have not been there don’t understand is that when these incidents happen, it’s not long and drawn out, it happens with less than a second between shots.
According to the medical examiner, the first two shots killed Hernandez, but as we can clearly see, they didn’t stop him. Perhaps it was some form of manic desire, perhaps it was the meth in his system, but he continued to try and get up. We’ll never know what was going through his mind, but we can know what we see, and that justifies the shots, all of them.
I’ll also point out that while I am in favor of civilian oversight, it needs to be fair oversight. It needs to objectively view the cases it reviews, not take a biased view of issue. Remember that this is the same review panel where a former commissioner called for a moment of silence to honor those who have been shot and killed by the police. Let that sink in for a second. Is an officer going to get a fair hearing by that body?
[i] Jamie McBride, her father, is director of the Los Angeles Police Protective League.
[ii] Chief Moore, as an officer, earned the LAPD Medal of Valor in 1987 for taking out a killer with a rifle who had just killed his wife and had turned the rifle on Moore.
[iii] A number of police firearms experts have stated that you fire in two-round groups, pause to evaluate, then fire again if necessary, and repeat until the subject is no longer a threat. That procedure was obsolete twenty years ago, and we taught to fire at least two rounds, assess, and then continue to fire until either the threat was stopped, or your slide locked back. Assessment should be continuous.
[iv] A double-tap is not just two shots fired as fast as one can; it is two shots, each fired deliberately, as rapidly as one can while keeping the second shot within four inches of the first, and normally done at a range of 9 to 21 feet (3 to 7 yards). Anything further isn’t double-taps. They are controlled pairs, and anything closer is just firing as quick as possible at contact range.
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Thank you for the clarity, especially in notes iii and iv.
I suppose in another world Hernandez could have posed a threat after the first two shots. And in some other universe it’s possible he may have still presented a threat after the next volley of shots. But in this world all that would have been necessary after the first two shots would have been to back away a few yards and allow nature to take its course the same way hunters do after shooting a deer.
Anyone familiar with the damage caused by two 9mm bullets to the torso of the human body at close range knows the subject will begin bleeding out in under a minute, and be completely incapacitated and unable to stand or possibly even move within three. This was overkill. Should be an easy task to convince a jury that it was the result of target practice by a cop who wanted a kill, which it was.
Sure, the subject will begin bleeding out in under a minute. What other harm could he do in that “under a minute”? Whatever the answer is, it isn’t “none”.
And even if it’s agreed that some shots after the first two were unnecessary, those first two were the immediate cause of death. How are the fifth and sixth shots relevant to a suit for wrongful death?
So during that minute to three minutes, are you supposed to stand there and let Hernandez cut you up or stab a bystander? When Hernandez popped up immediately after taking two hits, did you know if he were on PCP or another drug? Second, you can be hit far more than two times and still survive. Emmett Dalton took 23 hits by various rifle and pistol rounds, and survived into his sixties. In North Carolina about 10 years ago, Kenny Vaughan was shot 20 times with a rifle by a former neighbor, and he lived. There is a guy in Toronto who had 30 holes in him from gunshots, in 2018. He’s still around.
So the adage, eliminate the threat really translates to kill the suspect. But make sure the suspect isn’t t moving while you’re doing it. It seems clear to me that the 1st 2 bullets accomplished their task. Until such time the suspect made an aggressive move toward an innocent bystander, further shots are not necessary. And in this case, the suspect appeared not to have the capacity to make any such movement. The problem here is the following, movement does not equate threat.
Anonymous.
“I’d rather be judged by 12, than carried by 6.”
No, eliminate the threat does not mean to kill the suspect. There were several occasions in my police career where I would have been perfectly justified in shooting a suspect. I still, to this day, and in some cases over 30 years later, remember distinctly each and every scene. And in all of those situations, I didn’t have to shoot the person, because that person did not force me to do so by his actions.
You’re missing that this was controlled by Hernandez, not McBride. He was the one who could have stopped this at any time.
So the comply or die argument is still strong….even today. And the argument that a man that had two potentially fatal bullets was in control of the situation is laughable. Was there a possible threat? Yes. Was that threat a potentially deadly threat? I don’t believe so. We still have this problem where an officer’s perceived threat is disassociated from reality. In the UK, armed officers are trained to tactically evaluate after almost every shot, to determine threat levels and appropriate response. Not so for our police, where its common for officers to empty an entire clip on a suspect. The case with Hernandez is in practice no better than emptying a clip. No reasonable thought required. The guy had a knife, the man was still moving…let’s pull the trigger a few more times just to make sure.
You’d never survive as a grunt in the sandbox.
And it’s a magazine, not a clip.
Accuracy in language is important.
In this universe, a mortal wound isn’t necessarily instantly debilitating, and you can be killed by someone who is “dead” in much less than a minute.
The Real Kurt
You shoot to stop, not to kill. And you would be surprised to find out how many suspects with fatal injuries nonetheless injured or killed the cop that shot him. And I’m not even going to go into the reaction gap causing a shooter to keep shooting as the suspect turns or falls.
You should check out some of Mas Ayoob’s articles that dissect actual gunfights before you opine in an area outside your expertise.
It takes three to ten seconds for the body to recognize it is dead and start shutting down. Hold down the trigger of a fully automatic weapon for that time and see how many rounds you can get out.
Look at the videos of the FBI Mami-Dade shootout and you will one criminal game 10+ hits and still keep on going for a considerable amount of time.
People with extreme amounts of damage can still get up and kill you.
My thanks to the author for this article.
Let’s assume the first shots were justified. He dropped to the ground.
Why does non-lethal — hell, let’s call it less lethal — force come off the table?
Shoot a dude with a knife twice, my guess is tasing the gunshot person will prove effective. Or just, you know, bum-rush the man who has been shot twice?
Two police officers without shooting vs one guy on the pavement with a knife. Knife wounds can be fatal, but rarely are. And please spare me the exceptional cases. Data about knife wounds vs fatalities would be welcome.
Moore was right. At some point stop shooting and start securing the suspect.
I love this blawg because it challenges my beliefs and, surprisingly often changed my mind. Your entries were my favorite at Crosslines, btw.
This particular article simply reminds me that cops advertise bravery outside of the courtroom, and cowardice inside that same courtroom. See “Reasonably Scared” rule.
A knife can kill, no doubt. But it is far, far less likely to do than a gun. Especially against someone who was just shot twice. Then four times.
Tasers, billy-clubs, fists and zip ties did not magically disappear once the first shot was fired.
A conceivable threat vs a probable threat are not the same.
This is kinda disjointed because I’m having difficulty trying to put things in words.
……
All these Monday morning quarterbacks.
You sound like the idiots that say cops should just shoot the gun out of their hands.
If you’ve never been in a situation like that then you aren’t qualified to judge.
You ever been in a real fight, where your life was on the line?
You ever been in a position where your instant decision could/would result in your or someone else’s death?
Yes, there are egregious situations and we expect high standards from our police but this isn’t that situation.
So unless you’ve BTDT you don’t know what you’re talking about.
(Never been a police officer but been in a couple of firefights with people really trying to kill me and my friends in some unpleasant places.)
It’s depressing the uninformed would really weigh in on exactly how many shots were necessary in an extremely volatile and dangerous situation that spanned seconds. That video is scary and I’m happy I don’t have to confront a half-naked man with a knife who previously wrecked his car purposefully into others and then started to approach me. Two, four, or six times, just shoot him enough so he can’t hurt anyone else. There are plenty of other videos to pore over if anyone wants to be enraged for better reasons. Thanks for the analysis as always.