Tommy Maness said he had no choice but to shoot.
Called to tackle a late-night fight at a roadside diner in Alexander City, Alabama, the 34-year-old police corporal saw Emerson Crayton Jr, a young black man, hurry into his Ford SUV in the restaurant’s parking lot and start the engine.
Maness knocked on the driver’s window and told Crayton to get out. But Crayton, 21, reversed out of his space. Then he turned his wheels toward Maness, police chief Willie Robinson alleged, and “tried to run over the officer”. Maness “could not get out of the way of the vehicle”, so instead he fired his Glock pistol into it at least three times. Crayton, who was unarmed, died from a shot to the head.
According to an Alabama state bureau of investigations file on the shooting obtained by the Guardian, however, things unfolded differently.
Maness acknowledged to investigators that, in fact, he “sidestepped the truck” as he shot. A recording from his body camera showed that despite the SUV continuing to move forward after the driver was shot, Maness was not struck. Actually, the vehicle swung sharply away from him as it brushed by and headed to the highway.
“It’s a straight cover-up,” Crayton’s father, Emerson Sr, said at his home in nearby Dadeville. “Fact is, the officer did get out the way.” Asked about the video footage in an interview in his office, Robinson repeated: “People see what they want to see.”
Emerson Jr did not have a criminal record, according to his family’s attorneys. He did have a daughter, Germani, who is now three years old. “He didn’t need to die,” said his father.
The US Department of Justice, prominent international policing experts and most major police departments across the US agree: police officers should not fire their guns into moving cars. The shots are widely viewed as ineffective for stopping oncoming vehicles, and the risks to innocent parties are seen as overwhelming.
But a Guardian investigation has found US police have carried out at least 30 fatal shootings into moving vehicles they claimed were being used as weapons so far in 2015. More than a quarter of those killed were black men, a group that according to the US Census Bureau makes up just 6% of the driving-age American population.
In all cases, officers said the vehicle posed a threat either to their own lives, to those of police colleagues, or to bystanders. In almost all incidents, however, their decisions to shoot appeared to run counter to federal guidance instructing officers to open fire only if a driver presents a separate deadly threat, such as a gun. None of those killed were accused of pointing firearms at police, and in only three cases did police appear to be aware of a gun being inside the vehicle.
Like thousands of other law enforcement agencies around the US that have declined to reform their internal policies in line with DoJ standards, Alexander City has a rulebook that says officers may fire into moving vehicles “as the ultimate measure of self-defence” when “the suspect is using deadly force”. Implicit is that the vehicle itself may be considered the deadly weapon.
Rulebooks obtained by the Guardian from 20 of the departments whose officers have fired deadly shots into moving vehicles in 2015 showed that a majority had similarly lax rules. Even departments with ostensibly more restrictive policies consistently provided a caveat ultimately privileging the officer’s judgment call.
Even if Crayton did intend to drive his SUV over Maness, the officer nonetheless successfully deployed an alternative measure of self-defence as well as shooting: he stepped out of the way. A growing number of police departments have, over recent years, amended their regulations to reflect the logic that officers should position themselves away from a moving vehicle’s path rather than attack.
In several of the 2015 shootings, officers shot people in moving vehicles from the side or back. Crayton’s autopsy showed he was shot twice on the right side of his body, which Maness faced as Crayton passed. One of Maness’s bullets even entered Crayton’s front passenger-side window, travelled the width of the vehicle, then exited through the driver-side window opposite, ending up lodged in a tree.
At the same time, detailed accounts of the vehicle shootings given publicly by authorities have been called into question. There was never any fight at the Huddle House diner that night, Alexander City police now admit, according to the investigation file, which was obtained from a source involved in the case after state authorities blocked several public records requests over the past year. In his final seconds, Crayton had snatched his food order and walked out of the restaurant after allegedly making expletive-laden threats towards staff.
The restaurant’s white staff told investigators Crayton drove at Maness; several African American witnesses swore under oath he did not. “You’re going down for that,” one can be heard shouting at Maness on the bodycam recording.
After considering the case briefly last May, a grand jury in Tallapoosa County declined to charge Maness with a crime. “He was faced with immediate harm or immediate action, and he is trained to take action,” said E Paul Jones, the district attorney, who presented the case to jurors after working in alliance with Maness’s police department for years. While one of the officers responsible for the 2015 shootings has been charged with wrongdoing, three have so far had their actions ruled justified by authorities.
TOP-237: the golden rule, born of a racially charged shooting
A shift in thinking on whether police officers should shoot bullets into moving cars can be traced back more than 40 years to a sweltering August night on New York City’s Staten Island.
In the summer of 1972, Ricky Bodden was an 11-year-old African American boy living in the New Brighton neighbourhood’s Jersey Street projects – the same gritty public housing complex where Eric Garner lived at the time of his death from an NYPD officer’s now notorious chokehold on a sidewalk, four decades later.
On the evening of 15 August, Ricky and two 14-year-old friends were spotted by officers joyriding in a stolen Pontiac. Ricky was in the back. When a patrol car began following, the boys led the police on a high-speed chase. The pursuit came to an end after patrolman Timothy Murphy, who was waiting for the Pontiac at the side of the street up ahead, shot six times at the car, striking twice. Two teenage boys sitting on a nearby stoop were shot in the legs.
Ricky and his two friends jumped from the vehicle and tried to flee. But patrolman Frank Ortolano also opened fire with his pistol, fatally hitting Ricky in the back.
Front-page reports on the case ring familiar today.
Ortolano said he shot because one of the 14-year-olds turned “and reached toward his pocket, as if armed”, the Staten Island Advance reported. The officer insisted Ricky had the misfortune to run into the line of fire; onlookers said it seemed deliberate. A headline quoting his family read: “Would it have happened if he were white?” Police promptly leaked his juvenile criminal record. A grand jury declined to bring charges and chiefs promised internal reprimands.
Some 200 people in the neighbourhood rioted over the young boy’s death, throwing bottles and rocks at police cruisers, during the latest in a series of racially charged uproars over police brutality in the city.
Police commissioner Patrick Murphy responded the very next day with new restrictions on the use of deadly force that were to fundamentally alter his officers’ rulebook. Under regulation TOP-237, NYPD officers were no longer allowed to shoot into moving vehicles; nor were they to shoot at so-called “fleeing felons” unless the suspect’s escape posed a threat of death or serious injury to others.
Thirteen years after New York City’s policy change, this same standard on fleeing felons was applied across the entire country by the US supreme court’s ruling in the landmark case of Tennessee v Garner. But while many other departments, especially larger metropolitan agencies, gradually followed New York’s lead on forbidding firing into moving cars, no similar nationwide rule or law has emerged.
Chuck Wexler, the executive director of the Police Executive Research Forum, has been the most vocal and consistent proponent of ridding American policing of the practice. He said no NYPD officer had died in more than four decades as a result of the city’s rule change.
Wexler’s organisation has advised major police departments on introducing shooting bans into their rulebooks. He returns again and again to the illogical notion, as he puts it, that an officer facing down a direct and rapidly advancing car would save himself by firing and incapacitating the person at the steering wheel. “If the driver is shot, the vehicle becomes a totally unguided threat,” he said.
“It doesn’t make any sense,” Wexler, a former senior official in the Boston police department, said in an interview. “You can’t stop a moving vehicle. You shouldn’t shoot at moving vehicles. Period. No exceptions.” Wexler also stressed the risks that ricocheted or missed shots could strike innocent bystanders.
Dr Donald Jenkins, the trauma director at the Mayo Clinic in Rochester, Minnesota, said shooting could be effective – but only in stopping a vehicle that was, say, 100 yards away. “If you’re four feet away, probably not,” said Jenkins. “You’re going to be hit by that vehicle.”
Jenkins said if a driver were struck in the chest, the likely delay in their loss of consciousness could allow him to remain a threat. A driver being struck in the head with a police-calibre firearm, meanwhile, would likely suffer near-instant death. “When one dies, the body goes completely limp,” he said. As the pressure on the accelerator diminished, the car would likely slow down, but probably wouldn’t stop until crashing into something.
In nine of the 30 fatal shootings so far this year, vehicles shot at were reported to have made contact with an officer. None of the officers was reported to have been seriously injured.
The death of a driver could also have the opposite effect, experts said, with similarly dangerous consequences. This was illustrated vividly in July when University of Cincinnati police officer Ray Tensing fatally shot Samuel DuBose in the head through his driver’s window after his vehicle appeared to begin creeping away from a traffic stop over a missing front licence plate.
“Presuming the driver does not have his foot on the accelerator but has his knee bent and his foot near the pedal, when he’s shot and rendered limp, those muscles give up,” Jenkins said. “The foot would drop to its natural position”, and could put weight on the accelerator.
Footage from Tensing’s body camera showed that immediately after the officer fired, DuBose’s vehicle indeed accelerated forward, eventually halting when it crashed into a utility pole farther down the street. Professor Lori Fridell, a criminologist at the University of South Florida, said the incident highlighted the “potential jeopardy” to which bystanders could be exposed when police shoot the driver of a moving vehicle – even one that is just rolling away. “Pedestrians could easily have been struck,” she said. Tensing has been charged with murder and pleaded not guilty.
A few years after Ricky Bodden’s death, professor James Fyfe, a criminologist at American University who had served as an NYPD lieutenant, found the average number of officers in the city firing their guns dropped by 30% in the three years after rule TOP-237’s introduction. While total homicides in the city remained roughly static, the number of people killed by police fell by 37%. And perhaps most surprising of all, the number of officers killed in the line of duty halved. Between 1972 and 2010, the number of incidents each year involving an NYPD officer firing his or her gun dropped from 944 to 92.
Academic research on the issue since then has been scant. But reports from departments have left analysts convinced. “This is one policy which for 40 years has resulted in a reduction in use of force incidents and injuries to officers, so it’s a win-win situation,” said Wexler. “It really makes sense because officers need guidance. They need discretion but they also need guidance, and parameters.”
“If an officer puts himself in a position where they have no alternative but to use deadly force, they will use deadly force,” said Wexler. “What you really want them to do is think ‘I should not stand in front of this car. I should not put myself in a position where I have no alternative’.”
Sending teenagers to do a police officer’s job
Deputies Jason Robinson and Christopher Rudolph had an alternative.
Responding to reports of a burglary in Huntley, Montana, in January, the two Yellowstone County deputies spotted a purple Ford Explorer matching the description of one reported stolen in nearby Billings. They began to follow, but the snow became overwhelming. They were stuck.
So, according to a recently filed civil lawsuit, they flagged down two local 14-year-olds and a 16-year-old who had stepped off a bus nearby. The teenagers said the stolen car would soon meet a dead end. After helping to free the snowbound police vehicle, they were deputised to work as spotters.
Having exchanged cellphone numbers with the youngsters, the deputies allegedly sent them up White Buffalo Road and told them to call when they saw the stolen car returning. The deputies meanwhile headed downhill and parked in a narrowly ploughed section of road, effectively establishing a road block with foot-high snow banks on each side.
The teenagers called: the car was on its way. Robinson and Rudolph stepped out of the cruiser armed respectively with an AR15 rifle and a shotgun. As the Ford approached, they fired. The car swerved out of control and came to a stop in one of the snow banks. But Robinson and Rudolph continued to shoot.
Behind the wheel, Loren Simpson slumped, lifeless. Simpson, 28, had been struck several times. Nathan Wagner, an attorney for his family, accused Robinson and Rudolph of employing tactics more suited to a war zone.
“Why are you treating a burglary situation like we’re talking about a checkpoint in the Green Zone in Iraq – where you’re deploying weapons to prevent a vehicle from driving down the road? It just doesn’t make sense,” he said.
“And if you felt this person was such a danger that you needed to have your weapons deployed before you even made contact with him, why are you sending teenage kids up to do your investigation for you?”
The officers insisted they were forced to shoot. “They ordered him to stop,” said a document filed the next day by Yellowstone County detective Shane Bancroft, but “the vehicle continued toward the deputies”. The officers continued firing even as the car sat nose-down in a ditch with its back wheels turning because they thought “the suspect was continuing to reverse the car into them”, according to the police.
Simpson was accused of stealing DVDs and prescription drugs during a burglary. Court filings said a rifle with a single unfired round was found inside the vehicle, but there was no suggestion the 28-year-old had it in his hands during the incident, nor that he was reported as armed during the alleged robbery. In six other cases so far this year, firearms were later discovered inside vehicles following fatal shootings in which the vehicle had been described as the threat.
The following month, both Yellowstone deputies resigned from their jobs, giving no reason why they quit.
A month after that, however, a police review board not only cleared them of wrongdoing but “praised the deputies in their sound judgment”. Two members of the five-man panel were fellow Yellowstone deputies. Two were also local law enforcement officers. The fifth was a prominent local attorney. The sheriff’s department rejected requests from the Guardian for the inquiry report and footage of the incident they say was recorded by the police vehicle’s dashboard camera, pending a coroner’s inquiry.
If that material is ever released, according to Wagner, it will demonstrate his client posed no serious threat and the officers’ actions were “totally unjustified”.
The sheriff’s department’s internal rulebook tells deputies they may shoot at a moving vehicle “if necessary” to protect themselves against serious injury. Sheriff Mike Linder conceded the fatal shooting may result in a change of this policy. “We’ll determine that after the inquest,” he said.
‘She wasn’t threatening their lives’
Of 20 use of force policies obtained by the Guardian under open records laws from agencies involved in the 30 fatal moving-vehicle shootings in 2015, Yellowstone County is alone in choosing to articulate when its officers can and should shoot at vehicles, without clearly stating when they can’t and why they shouldn’t.
Even when departments have regulations advising officers not to shoot, they almost always offer one significant caveat, which privileges an officer’s judgment call. In practice, these exceptions have eclipsed the rule, from California to Indiana to Georgia. The reasonableness of such calls is well known as difficult to challenge, and usually is not – whether by police chiefs, prosecutors, grand juries or trial juries.
Monongalia County, West Virginia, tells its deputies not to fire into vehicles except as “the ultimate measure of self-defense or defense of another or when the suspect is using deadly force and life is imminently threatened”.
In June this year, a Monongalia deputy fatally shot Christie Cathers from behind as she sat at the wheel of her silver Dodge sedan in Morgantown. Cathers, a 45-year-old mother of three whose Twitter page declared “LIFE IS GOOD!”, had just driven into another deputy’s vehicle at the end of a brief chase. One witness told the local Dominion Post newspaper the impact of Cathers’ vehicle was “not real hard, but hard enough for me to hear it”.
Seven other fatal shootings into cars so far in 2015 happened after vehicles made contact with another vehicle, including police cruisers.
A preliminary examination of Cathers’s body found she was shot repeatedly from behind her car, according to John Benedict, her father. One bullet went into the back of her head and killed her, he said in an interview. State officials declined to confirm the findings but photographs from the scene show much of the rear windshield of the Dodge was smashed out.
Cathers may have been going through “some kind of breakdown”, Benedict said. She was pursued by police after nearby residents called 911 to report she was acting strangely and waving a pocket knife. Initial news reports stating she had shot at officers from her car were not corrected until days later by authorities, who said she did not have a gun. Police alleged Cathers had tried to run down a deputy as she fled the first scene.
“It all just does not fit who my daughter was,” said Benedict. “She was five-foot-two and 120lbs, if that. She didn’t have a gun. She wasn’t threatening their lives.”
The case is being considered by the county’s prosecuting attorney, Marcia Ashdown, who works consistently alongside the sheriff’s department on the same side of other prosecutions. An internal review found two deputies involved in the case did not violate any of the department’s policies, so they returned to work.
Monongalia County’s rulebook is typical of those at police departments that released their regulations, a majority of which were located away from major cities. The sheriff’s office for Sonoma County in California, for instance, calls shooting into moving vehicles “not generally an effective tactic”, but states plainly this is not intended as a prohibition. Sonoma deputies fatally shot Karen Janks in April when she allegedly reversed her vehicle toward them after a chase.
That same month in Georgia, Lowndes County sheriff’s deputies fatally shot Dexter Bethea when he tried to flee and drove in their direction. The sheriff’s office bans shooting at cars except in loosely defined “unusual or exigent circumstances”. In July a grand jury ruled the shooting justified, but recommended the department invest in body cameras, which could “help show more clearly what occurred” in the future.
Professor Geoffrey Alpert of the University of South Carolina, a criminologist and national authority on police use of force, said the country’s vast federalised system of law enforcement had left thousands of smaller departments similarly unreconstructed. “We just don’t have the kind of national structure as in Australia or England,” he said in an interview.
“We have 17,000 to 18,000 police departments in this country, many of which are incredibly small and badly managed,” said Alpert. “Often the chief doesn’t have the leadership abilities to tell his officers what’s right, and still wants to be one of the boys and liked rather than respected.”
Among the handful of major city departments behind killings in moving vehicles so far this year, the Indianapolis metropolitan police department’s rules stand out as unusually loose. The department, which had once banned the practice, revised their policy in 2012, making it less restrictive. In June, an IMPD officer’s bullet struck 34-year-old Joshua Dyer in the head while he sat in the passenger seat of a vehicle that police said driver Matthew Cole was trying to use as a weapon.
Cole had fled a traffic stop and led officers on a brief chase before losing control of the car in a yard. The vehicle came to a stop. Officer Timothy Elliott approached on the driver’s side, and officer Derik Harper approached on the passenger’s side.
Cole then put the car into reverse. The officers said he nearly hit Elliott, then cut the wheel right and nearly hit Harper. Elliott had his weapon drawn and did not fire; Harper, from the passenger’s side, did. Elliott reported hearing one single “pop”, and Dyer was dead. Despite Cole being unharmed, neither officer was struck by the vehicle, which continued to reverse, nearly striking a house and taking down several fences before coming to a halt.
Authorities charged Cole with weapon and drug possession crimes in addition to resisting arrest. In that count, Cole is alleged to have “operated a vehicle in such a manner that it caused the death of Joshua Dyer”. Six weeks later IMPD officers shot and killed 15-year-old Andre Green when they said the stolen vehicle he was driving advanced toward them.
The IMPD’s policy suggests that officers attempt to move out of the way of moving vehicles but states this is “not intended to restrict an officer’s right to use deadly force directed at the operator of a vehicle when it is reasonably perceived that the vehicle is being used as a weapon”.
‘Step out of the way and we’ll get them later’
Such regulations are out of step with contemporary policing theory. And while the introduction of stricter parameters has been incremental, the institutional weight behind their further spread is now considerable.
The US Department of Justice has in recent years consistently advised or instructed departments to ban shooting at moving vehicles. After the DoJ’s Community Oriented Policing Services (Cops) office looked into the Las Vegas police department in 2012 after a series of controversial shootings, it brought in a new policy specifying “the imminent threat must be by means other than the vehicle itself”.
The same standard was included when the Cops office concluded a similar report on the Philadelphia police department earlier this year. And it was thrust upon Cleveland when the justice department’s civil rights division concluded an investigation there in 2014.
Mary Brandenberger, a justice department spokeswoman for the Cops office, said the recommendations were not merely “guidance” specific to individual departments needing special measures, but rather best practices that are applicable to law enforcement agencies nationwide.
The idea has spread thanks to the International Association of Chiefs of Police. In 1989, the Virginia-based union for senior officers developed a model policy on the issue that has fed rulebooks in major US cities and beyond. Its big idea – that shooting is only justified if a driver poses a “deadly force by means other than the vehicle” – essentially swept away the justification of car-as-weapon in most cases.
In a paper explaining the policy, the IACP cites findings that service handguns are “generally ineffective in attempts to disable a motor vehicle”, that vehicles will “almost certainly proceed out of control” if the driver is killed, that it is likely the officer will miss, and that it is possible innocent bystanders will be struck with errant bullets.
“Most conventional police firearms, in fact, will normally fail to penetrate automobile bodies, or steel-belted automobile tires that are in motion, and frequently do not penetrate auto safety glass,” according to the IACP report authors.
Police departments around the country have subscribed to the tighter rule, typically after controversial incidents in their jurisdictions led to demands for local reform.
In Boston, police commissioner Paul Evans pushed it through in September 2002 after officers fatally shot Eveline Barros Cepeda, 25, who was travelling in the back of a car police said had driven through a red light, refused to stop, and hit an officer. The shooting was nonetheless ruled justified by the Suffolk County district attorney.
The rule change led to a bitter internal dispute in which the Boston Police Patrolmen’s Association unsuccessfully attempted to oust Evans. Yet “it’s worked out well,” Evans, whose brother William is the current Boston police commissioner, said in an interview. “I haven’t seen many, if any, instances of such shootings since then.” The Boston police department declined several requests for official data on the rule change’s impact.
Alpert, the University of South Carolina criminologist, said Boston was a turning point. “Everyone stood up and took notice,” he said. “That was kind of a milestone.” Cities such as Los Angeles; Orlando and Miami in Florida; Detroit; Houston; and Cincinnati did likewise, typically after their own controversial killings in cars.
The march has continued apace in recent years. Few major American cities now permit police shootings unless the driver presents a separate threat. Cleveland implemented the rule last year amid outrage over the fatal shootings of two African Americans in a Chevrolet Malibu in 2012. After driving away from a traffic stop over a turn-light violation, Timothy Russell, 43, and Malissa Williams, 30, were shot at 137 times by more than a dozen officers after false reports that they were armed.
The alternative to shooting proposed by the IACP and dozens of other policing experts is simple: get out of the way. “An officer threatened by an oncoming vehicle shall move out of its path instead of discharging a firearm at it or any of its occupants,” the organisation’s model policy states.
Evans, the former Boston police commissioner, recalled telling his rank-and-file to think about going home to their spouses and children before placing themselves in the path of a vehicle. “My message was ‘Step out the way and we’ll get them later’,” said Evans. “With all our technology and forensic capability, we will get them. So don’t put your life at risk.”
‘Looming’ and ‘inattentional blindness’: in defence of the shootings
A select group of law enforcement thinkers, however, say these reformists are the ones endangering officers’ lives. Professor Maria Haberfeld, chairperson of the John Jay college of criminal justice at the City University of New York, said that by banning them outright from shooting into moving vehicles, police chiefs were “literally throwing officers under the bus”.
Haberfeld, a former sergeant in a counter-terrorist unit of the Israel Defense Forces and an officer in Israel’s national police force, blamed “political correctness” for hindering clear-eyed analyses of the threats faced by rank-and-file officers on the street. “Police are sworn to serve and protect, but not to lose their lives,” she said.
“There are situations where officers have to be given credit and their assessment of the situation should allow them to use deadly force,” she said. “The message being given to officers is ‘I cannot use my discretion, because if I do my career is over’.”
Haberfeld and like minds such as Thomas Aveni, executive director of the Police Policy Studies Council, insist that requiring a driver to be armed as well as advancing in his or her vehicle is too high a threshold to be safe. Aveni said departments were placing restrictions on officers “in haste”.
“Vehicles can get used as weapons,” said Aveni. “In Las Vegas, in New York, there have been cases where people have purposely driven into crowds and collided with dozens of people. People do also try to run down police officers. It happens, and police sometimes need to act.”
Both emphasised that better and more frequent training should encourage officers to have the presence of mind in high-stress situations to move before reaching for their service weapon. “Otherwise they revert to very basic human instinct,” said Haberfeld. Neither she nor Avenie could, however, point to supporting studies or specific examples of incidents of an officer working under a restrictive policy who might have begun shooting but instead held fire, and was injured or killed.
Instead, underpinning such counterarguments is in most cases the work of a single controversial psychologist.
Dr Bill Lewinski, the founder and director of the Force Science Institute, a company that trains officers on using force, is perhaps America’s most strident critic of efforts to restrict shootings into moving vehicles.
Lewinski, who in a series of emails declined to be interviewed, used a recent post on his website to declare departments that prohibit shooting into vehicles “increase the risk of injury and death to officers” and were “driven by political pressure”, basing decisions “more on speculation than on solid behavioural science”.
His chief defence is the principle of “looming”, a psychological phenomenon that occurs when an object travels head-on towards an individual at speed. This results in a perception that the object is increasing exponentially in size, making the person feel it is moving faster toward them than it really is.
“The targeted officer may falsely sense that he or she has no time to leap clear, and start shooting instead,” said a 2013 article co-authored by Lewinski, adding witnesses who observed an incident from the side would not experience looming and might accuse an officer of lying.
His theory played a critical role in a pivotal case in the history of the debate, when Bill Bratton, then the police chief of Los Angeles, moved to reform the policy at California’s largest police department.
After a string of controversial cases, the final straw for Bratton was the death of Devin Brown, an unarmed African American 13-year-old, who had stolen a Toyota Camry in February 2005. Devin was shot eight times by officer Steven Garcia when he reversed the car toward officers. Investigators found he was travelling at 1 mph.
Instructions came down from Bratton that LAPD officers were now permitted to fire on moving vehicles only when drivers threatened them “with deadly force by other means than the vehicle”.
While the district attorney’s office said there was insufficient evidence for a prosecution, the city paid Devin’s family $1.5m to settle a lawsuit. Garcia was sharply reprimanded by a civilian oversight panel, which found his claim to have felt his life was in danger not “objectively reasonable” and that the shooting “violated department rules and warrants discipline”.
The ability to discipline Garcia fell, however, to the department’s board of rights. In considering the case, the board leaned heavily on the analysis of one expert witness in particular: Lewinski.
He argued “the noise, the movement, the angles, the tight proximity and tunnel vision on the oncoming vehicle all would have combined to make the car appear to Garcia to be even closer, faster and more ominous than it was”. Stressing Lewinski “clarified” key concepts for them, the board exonerated Garcia of wrongdoing.
Experts who analysed his writings told the Guardian that while Lewinski’s understanding of looming was broadly correct, his linking it to an officer’s impulse to employ force rather than move out of the way was simply not established in peer-reviewed psychological research.
Force Science says it has not carried out any research of its own on looming, instead citing an academic literature review. The Guardian shared this review with professor Patricia Delucia, a psychologist at Texas Tech University and one of the country’s foremost experts in “time to contact” psychological research. Delucia concluded there was no evidence to support the argument that the looming effect would automatically induce an impulse for “fight” over “flight” – in other words, drawing a gun and shooting rather than getting out of the way.
Lewinski has since gone on to testify in more than 200 trials, typically in defence of law enforcement officers who employed force, often to deadly effect. In one such trial in June 2011, Lewinski appeared as part of the defence of two officers being sued in a civil rights lawsuit following a shooting into a vehicle.
Police alleged Alex Morton, of Guntersville, Alabama, drove his car directly at officer Tim Nugent, forcing Nugent’s partner, officer Jeremy Kirkwood, to fire. Morton, 21, was shot seven times and left paralysed from the middle of his chest down.
But Morton recovered enough to tell his side of the story. He testified he had been sitting by his car looking over a nearby lake as the officers pulled up back in January 2010. He went to his vehicle, placed the car into drive, and rolled forward, he said. As he noticed Kirkwood approach from the side with his gun drawn, he stopped the vehicle and raised his hands in the air. Then Kirkwood began to shoot.
Even Nugent conceded he had not seen Morton’s car move forward. Kirkwood, though, insisted the vehicle only stopped after he shot. And Lewinski was there to provide a explanation to court for the discrepancy between the officers’ accounts.
He attributed the mismatch to “inattentional blindness”, a psychological phenomenon in which the brain is so transfixed on one detail that it blocks out all others. Throughout much of his written analysis of the incident, Lewinski compared what Kirkwood and Nugent experienced that day to a professional sports match – a device to which he frequently returns in his work.
“It is almost impossible to intently and simultaneously focus on both the offense and the defense at the same time even when both are simultaneously presented on a TV screen in front of us,” Lewinski wrote.
“Subsequently it is not unusual that officer Kirkwood’s perception and memory is was [sic] very different than officer Nugent especially during the shooting. This is a classical example of the limitation of human perception and memory by professionals operating under high stress encounter,” Lewinski wrote, having cited his earlier research into the phenomenon.
Dr Lisa Fournier, an associate professor of psychology at Washington State University, reviewed Lewinski’s research on the effects of inattentional blindness on police officers. Commissioned by the US Department of Justice in 2011, she concluded the research was “not valid or reliable” due to flaws in his methodology and conclusions based “on manipulations that were not incorporated in the research design”.
A jury considering the shooting into the moving-vehicle-that-wasn’t found in favour of Kirkwood. Lewinski’s theories had prevailed. As in many other cases, the officer’s version of events would stand.
A 23-year-old shot from behind
Nicholas Thomas knew how that felt.
Thomas was trying to get on the right track, according to Atlanta attorney Holly Hughes. The 23-year-old left her a message in March, hours before he was shot and killed by Smyrna police sergeant Kenneth Owens. Hughes said Thomas called her office to deal with a six-month-old warrant he was facing for a probation violation.
“Everything in that voicemail told me this young man was trying to make it right,” said Hughes.
But he was also caught up in old habits. The previous evening, when Thomas was spotted in his car by Smyrna officer Mark Cole, he did what he always did – he fled.
Cole found an active warrant for Thomas out of a neighboring county and began following him to make a stop. But Thomas drove evasively, forcing Cole to make a series of U-turns, and eventually lose sight of Thomas as he sped away.
The next morning Thomas placed that call to Hughes, the attorney, to find out how to get the warrant dealt with. But before Hughes could call back, a large multijurisdictional team of officers from Cobb County and Smyrna police departments had arrived at the service centre in nearby Vinings where Thomas was working as a mechanic, and surrounded the building.
Thomas tried again to escape. Surveillance video showed Thomas getting into a white Maserati brought in for service, and drive back and forth around the building several times.
Although the location was outside their jurisdiction, it was Smyrna officers including Cole, the officer left frustrated the night before, who chased Thomas’s vehicle on foot as he traced the same futile loop.
On Thomas’s final pass around the building, Owens ran towards the Maserati, ending up behind it. Cole ran toward the vehicle’s front. The encounter was just out of the security camera’s sight. According to police, Thomas drove at Cole and his police dog, so Owens fired three shots into the car.
In a later interview with state investigators, however, Cole said the car was already “passing” him when he heard the shots. Both bullets struck Thomas from behind.
Thomas’s car rolled onward, the officers and dog avoiding being hit. It came to a stop against an embankment. Officers ordered Thomas out but he did not comply, likely because he was already dead. He was found to be unarmed.
In July a grand jury declined to charge Owens with a crime. At a press conference after the decision, prosecutors told those present to “watch him almost strike police officers” as they showed a clip of surveillance video in which Thomas drove past an officer who stepped to his side to ensure he was well clear of the vehicle as it rounded a corner.
It turned out Thomas had in 2013 been charged with aggravated assault for “driving and accelerating his motor vehicle at” a Kennesaw State University police officer after fleeing a traffic stop. Thomas pleaded guilty but under Georgia’s “first-time offenders act”, meaning the court “imposed no judgment of guilt”.
The plea was nonetheless reported after the fatal March 2015 shooting as a “conviction” – and proof Thomas had a record of threatening cops with his car.
Court documents from the 2013 case state, however, that the officer placed his patrol car in Thomas’s path to slow him, and Thomas “swerved away at the last minute” to avoid hitting it. This, to the Georgia courts, was “aggravated assault”.
That time there were no shots fired. Another Kennesaw officer spun Thomas around by nudging the rear bumper of his car and skillfully used his cruiser to pin Thomas’s car against a wall. Thomas, uninjured, left with his hands up and was arrested.
As he was handcuffed, he made a speech. “This is not my first rodeo, and I hope y’all know that,” Thomas said. “Y’all hit my vehicle! You could have killed me! You could have risked my life! That’s why we run! We scared of y’all! Y’all can take our life!”
Interactive design by Kenan Davis, Rich Harris and Kenton Powell. Additional reporting by Ciara McCarthy.
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