Brief, dark and grainy, the video image is a punch to the gut.
A California sheriff’s deputy is trying to detain a subject who’s on the ground after a high-speed chase and says to him, “Get up! Get up!” The man says, “OK, I’m gonna get up,” and starts to rise. Without another word, the deputy shoots him three times in quick succession. [Read the news report]
With millions of others, you probably became a vicarious eyewitness when the scene was broadcast worldwide. Be honest. The man complied with an officer’s command, and the shooting was not an unintentional discharge. Didn’t it look like a slam-dunk case of egregious abuse of force?
Late last month [June 28, 2007] after less than four hours’ deliberation following a trial that lasted more than a month, a jury acquitted the deputy, Ivory Webb Jr., of attempted voluntary manslaughter and firearms assault. The charges could have sent him to prison for 18 years. For people who knew nothing more about the case than what they’d seen on TV or the Internet, the verdict seemed a puzzlement, if not an outrageous miscarriage of justice.
But jurors said the tale of the video took on a whole different flavor when considered in context with circumstances that were little known publicly until Webb’s trial.
Dr. Bill Lewinski, executive director of the Force Science Research Center at Minnesota State University-Mankato, was part of the defense team. He was brought into the case “to explain the human factors behind the shooting,” based on his expertise as a behavioral scientist and on FSRC’s unique studies of lethal-force dynamics.
In a recent interview with Force Science News, Lewinski reprised his courtroom testimony and his insider’s knowledge of the pressure-cooker confrontation that embroiled Webb and resulted in his becoming the first LEO ever charged criminally for an on-duty shooting in San Bernardino County.
“It was important to paint a picture of what happened from Webb’s perspective,” Lewinski says. “The video was so vivid, so seemingly clear-cut, that people didn’t properly factor in what led up to the shooting.”
Webb was 46 years old at the time of the shooting, a former college football player (Rose Bowl ’82), the son of a retired California police chief and a veteran of nearly 10 years with the San Bernardino County Sheriff’s Department. Most of his career had been spent as a jail officer. Although he’d been on the street for more than four years, “he had never been the primary officer on a felony vehicle stop,” Lewinski says. “He performed pretty much as a backup officer.”
The subjects he confronted at the shooting scene were Luis Escobedo, 22, who had a rap sheet from previous run-ins with police and would later be arrested for CCW, and Elio Carrion, 21, an Air Force senior airman and security officer.
On the last weekend night in January 2006, Escobedo and Carrion were at a late-night barbeque in Montclair, east of Los Angeles, celebrating Carrion’s recent return from a six-month stint in Iraq. They’d been heavily consuming beer and tequila when they decided to take a fellow partygoer’s Corvette for a spin. Both had blood alcohol levels of more than double the state’s legal limit for driving.
Escobedo took the wheel (although he had no driver’s license) and on a lightly trafficked industrial road near some railroad tracks, he opened up the sleek muscle car to see how fast it would go. Soon they passed a San Bernardino deputy who gave pursuit but couldn’t keep up.
Webb, returning to patrol from another call, heard radio traffic about the chase and moments later saw the Corvette “coming directly at me. If I hadn’t swerved into the other lane, they would have smashed right into me.”
Webb barreled after them and soon was driving faster than 100 mph to keep up. The Corvette screeched around a corner, caromed off curbs, and at one point “spun around and came directly at me a second time.” Before colliding with Webb's vehicle, it suddenly smoked into a U-turn and wove wildly from one side of the street to another, then crashed into a cinder block wall facing opposing traffic and “hung up there.” The chase had ended in the municipality of Chino.
When Webb pulled up, the vehicle was shaking as the occupants tried to force the doors open, he said. The trunk lid had popped up from the impact, blocking the view from behind. He nosed in slightly toward the right rear of the Corvette and stepped out of his patrol car.
“Considering that they’d played chicken with him twice and had shown no regard for human safety with their reckless speeding, Webb reasonably assessed the car’s occupants as really dangerous,” Lewinski says. “He had his full uniform on, his overheads were flashing, and he had his gun and flashlight out, so there was no mistaking his authority.
"Carrion began to exit the vehicle and took a step in the direction of Webb’s patrol car. Webb ordered him to show his hands clearly. Carrion didn’t. Webb ordered him to get down. Carrion didn’t. Inside the vehicle, Escobedo kept reaching his hands into areas Webb could not see.” The deputy’s commands to both subjects were repeated in a stream, with no compliance. In his frustration and concern, Webb ratcheted up his language with liberal infusions of profanity.
At trial, a retired LASD lieutenant testified as a tactical expert for the prosecution and condemned Webb for not remaining “calm and assertive,” as officers are trained to do. But Lewinski took Webb’s words out of the context of antiseptic Monday morning quarterbacking and put them in the context of his on-the-spot fears.
The chase had led the deputy into an unfamiliar section of Chino and, essentially, “he was lost,” Lewinski says. He knew the street he was on but in the blur of the pursuit he’d had a hard time tracking the cross streets. Several times he named the nearest intersection incorrectly when radioing for help. Deputies trying to reach him sometimes cited directions and their own locations erroneously, too.
The two suspects could overhear the radio jabber.
“Webb knew that they knew his backup couldn’t find him and that he was all alone with two drunken young men who were not complying with any of his orders,” Lewinski says.
The pair was physically separated, so Webb constantly had to shift his focus and his flashlight from one to the other to keep tabs on their actions. And they kept trying verbally to intimidate him, Lewinski explains:
“Carrion at one point told the deputy, ‘I’ve spent more time than you in the fuckin’ police, in the fuckin’ military.’ Webb recognized all this from his jail experience as a common tactic among gangbangers: separate, keep up a barrage of chatter to distract, then attack. Webb ordered them to shut up, but they didn’t.”
At a point when Carrion had gotten within his reactionary gap, Webb kicked him to take him to the ground. (The prosecution’s expert would claim later that police are not trained to kick suspects because it puts them off-balance. But Lewinski points out that in fact kicks and leg strikes are common staples in contemporary defensive tactics.) On the ground, Carrion was propped up on his arms, “controlled to some degree” but not proned out like Webb wanted.
The grinding crash of the speeding Corvette against the wall and the flashing lights and all the yelling that followed had alerted a used car salesman living across the street that something worth filming was going down. He grabbed his Sony digital zoom camera and started recording after Carrion climbed out of the car.
This man, a Cuban refugee, was wanted on old felony warrants for aggravated assault in Florida. His past would surface after his sensational footage saturated the airwaves.
But for now, his camera was about to capture what photographers often call “the money shot.”
When the video was first reviewed and broadcast, the figures of Webb and Carrion could be grossly seen on the darkened street, the deputy with his gun out standing over the semi-grounded suspect. But subtleties were hard to distinguish. The audio track, too, was tough to make out, although what could be heard sounded discouragingly incriminating.
Carrion: We’re here on your side. We mean you no harm.
Webb: OK, get up! (inaudible) Get up!
Carrion: OK, I’m just gonna get up.
Carrion starts to move up. Three shots ring out from Webb’s .45. Carrion is hit in the left shoulder, the left thigh, and the left ribs. He’s critically wounded but survives.
The digital recording was “enhanced” by an FBI laboratory to reveal more visual detail. Through ultra-sophisticated technology of David Notowitz, a video expert engaged by Webb’s attorneys, it was then enhanced even further, to the point that images were recovered from a section of the recording that seemingly had been completely whited out by the amateur cameraman ineptly fiddling with the controls.
Webb had experienced difficulty articulating precisely what happened just before he started shooting. In Lewinski’s opinion, he suffered memory problems that are not uncommon after high-intensity officer-involved shootings.
“But when the enhanced footage was slowed down and time coded so we could study the action fragment by fragment," Lewinski says, "I became convinced he was reacting instinctively to a legitimate perceived threat.”
As Carrion braces on his hands, resistant to going fully to the ground, he first can be seen jabbing a hand up toward Webb’s gun. The weapon is well within his grasp, but he quickly lowers his hand without attempting a grab.
Then the video confirms that he twice reaches his hand inside his black Oakland Raiders jacket. Carrion would claim on the witness stand that he was just pointing to his chest.
“But the enhanced image shows his hand buried in the jacket up to the knuckles,” Lewinski says. “It was definitely inside.”
Less than a second later, Webb jerks his gun barrel up slightly as if motioning with it as he commands, “Get up! Get up!”
“He’s talking to the hand, focusing on it,” Lewinski says. “What I sincerely believe he was thinking was, ‘Get your hand up,’ meaning get it away from where you may have a weapon hidden and out where I can see it. But the words came out different than his thought.
“Some of our studies have shown that when officers feel they are in control of a situation, they tend to give clear and relevant commands. But when they feel out of control, their commands often deteriorate. For Ivory Webb, that was an enormously stressful situation and there was nothing he felt in control of.
“Under stress and time compression, people commonly experience slips between thought and speech.”
En Route to the trial, for example, Lewinski asked a harried airline ticket agent for directions to a travelers’ lounge. “Down there,” she said — and pointed up. Even the prosecutor while cross-examining Lewinski misspoke in referencing something, and apologized for it.
“It’s easy to do, isn’t it?” Lewinski softly replied.
Lewinski cited a case of an officer who, facing a suspect with a knife, repeatedly shouted “Show me your hands!” even though both hands were visible. The officer was trying to say “Drop the knife” but “resorted to familiar commands from his training under stress,” Lewinski explains.
In the uncertain and rapidly evolving circumstances on the street in Chino, Carrion reaching into his jacket had “extremely threatening implications,” Lewinski says. “He turned out not to be armed, but Webb couldn’t know that. For the first time in the encounter, Carrion obeyed the command he heard. He began to rise up and a little forward, like starting to lunge. Webb had already made the decision to fire, thinking his life was in jeopardy, and pulled the trigger.”
A tactics expert who volunteered for the defense, Sgt. Kenton Ferrin of the Inglewood (Calif.) Police Department, said he would have shot under the same circumstances. Webb “thought he was going to die,” Ferrin testified.
The prosecutor’s expert, however, asserted that each of Webb’s shots was a deliberate decision, bolstering the contention that the deputy in effect had committed a cold, calculating execution. But Lewinski pointed out that the time-coded video enhancement showed there was just 6/10 of a second between each round. He explained that FSRC’s time-and-motion studies had proven that in that tight sequencing, with the officer and the subject moving slightly, there’s no possibility of conscious decision-making prompting each shot. “At that point, after the first round, it was just an instinctive process.”
“The purpose of Dr. Lewinski’s testimony,” says Webb’s attorney Michael Schwartz of the Santa Monica firm Silver, Hadden, Silver, Wexler & Levine, “was to help the jury see that behavior the prosecution considered grounds for suspicion and criminal action could, in fact, be understood as common human behavior in circumstances of extreme stress.”
The first poll inside the jury room was 11 for acquittal, one for conviction. The dissenter soon changed his mind. When the verdict was announced, Webb burst into tears and praised God.
That was just the first of the legal challenges he faces. Carrion and his family have asked federal authorities to bring criminal charges against Webb, and a civil suit has of course been filed.
Meanwhile, with cell phone cameras and camcorders proliferating, a profusion of controversial police actions seems destined in days ahead to be seen and judged by millions who understand little about them.
After the Webb verdict, a reporter for The Associated Press interviewed Eugene O’Donnell, a former cop and prosecutor who now teaches police studies at John Jay College of Criminal Justice in New York City.
“Videos are drenched with caveats,” O’Donnell cautioned. “One thing we’ve learned about videos is that there are often missing pieces.”