by Mark M Bello
“I don’t recall.”
“And when someone is pulled over by a police officer, there is always a risk that they will run, drive away, or do something bad, right?”
“Right.”
“Those are only a few examples of the many contingencies that you are trained to handle, correct?”
“Correct.”
“And what are you trained to do in those circumstances?”
“I need more information. Why did I pull them over?”
“Let’s assume a simple traffic stop. The driver is speeding. The officer tries to pull the guy over, but let’s say, he speeds away. What should the officer do? Pull his or her gun?”
“It depends on the circumstances. What’s going on? If he simply leaves the scene, protocol requires us to call out and, perhaps, give chase, either on foot or in the squad car.”
“Does Cedar Ridge have any specific policies and procedures for traffic stops? Anything in writing?”
“Not that I am aware of.”
“Have you received any training on dealing with people of different races or religious backgrounds?”
“No.”
“The rules are applied the same way for everyone, correct?”
“You could put it that way. There is no training that I am aware of that tells us to treat different types of people in different ways.”
“And that would be true of Jones as well, correct?”
“I would presume so, yes.”
“You were the first officer on the scene after the shooting, correct?”
“Correct.”
“How long after the shooting did you arrive?”
“Within minutes.”
“And Mr. Hayes was slumped over and bleeding, correct?”
“Correct.”
“From obvious gunshot wounds?”
“Correct.”
“And according to your previous testimony, Jones had not called for an ambulance or EMS by the time you arrived?”
“Objection! Asked and answered,” Adler exclaims.
“I’ll take the answer.”
“He had not, Mickler concedes. “I had to make the call.”
“Did you review any materials to prepare for today’s deposition?”
“I reviewed the file and the dash cam video.”
“We’ll get to the dash cam. What was in the file that you are referring to?”
“Officer Jones’s report and my original report.”
“We have marked those as exhibits one and two. Do you recognize these as the reports you reviewed?”
“Yes, I do.”
“And is your testimony today and your actions at the time consistent with what is contained in those reports?”
“Yes.”
“You secured the scene for the arriving supervisors and evidence technicians, did you not?”
“I did.”
“The scene they arrived at was preserved as you saw it when you arrived and acted to preserve it, correct?”
“Correct.”
“Was your report based on contemporaneous notes you took at the scene?”
“Yes.”
“So, if your testimony conflicts with your notes or your report, we should assume the notes or report are more accurate, correct?”
“I suppose so. I don’t believe you will find inconsistencies.”
“For example, everything Jones did and said is contained in your report, right?”
“I believe so. Don’t forget the entire incident is recorded on the dash cam.”
“True. And that is the most accurate reflection of what happened, correct, Officer Mickler?”
“Yes.”
“We can absolutely rely on the dash cam, right?”
“Right.”
“Let’s mark the dash cam DVD as an exhibit and play it for the record. Afterward, please comment on its accuracy as it compares to your report and your testimony. Sound good?”
“Sure.”
“No objection,” Adler comments, for the record.
After the intense video is replayed, Blake resumes his cross-examination. Mickler is discomforted by the video.
“For the record, Officer Mickler, is this recording the same one you reviewed?”
“Yes.”
“And you reviewed it with Officer Jones before his death, correct?”
“Correct.”
“And Jones indicated at that time it was an accurate representation of the events of that evening?”
“Yes.”
“I’m going to object at this point,” Steven Adler interrupts. “I’ve listened closely to this officer’s testimony. Several words being bandied about are subject to misinterpretation or transcription error. We need an expert to make certain everyone understands the words.”
“Nice speech, Mr. Adler, but you aren’t the witness. The witness has testified the DVD video was an accurate representation. That is all I asked—he answered. That’s all there is to it. Your objection is noted.”
Blake turns back to Mickler. “By the way, Officer Mickler, for the record, the audio of the DVD is provided via a wireless microphone Officer Jones wears on his person, correct?”
“Correct.”
“And the video and the audio are made simultaneous with and recorded during the events of the shooting, correct?”
“Correct.”
“After watching and listening to the DVD, would you agree Officer Jones did, indeed, make inconsistent commands to Mr. Hayes? Specifically, Officer Mickler, Jones ordered Hayes to show him his hands at the same time he ordered him to produce his license and registration.”
“He did.”
“Is that protocol?”
“No.”
“Would you have done things differently?”
“I’d like to think so.”
“How so?”
“That’s a very broad question. I’ll have to give you a very long answer.”
“Go ahead. Knock yourself out,” Blake prompts. A cardinal rule of cross-examination is that the examining attorney asks only those questions that call for a “yes” or “no” answer. Plaintiff attorneys don’t want defense witnesses rambling or providing long-winded explanations. Blake decides to gamble, confident Mickler, despite his cordial relationship with Jones, disagrees with Jones’s behavior during the Hayes traffic stop.
“First of all, statistically, a traffic stop is one of the most dangerous things that a police officer does,” Mickler begins.
“Why is that?”
“Because the officer never knows who they are approaching. They don’t know whether they’re law-abiding citizens or criminals, whether they’re on drugs, drinking, or whether they’re armed or otherwise dangerous. So, with a traffic stop, there is already a heightened state of awareness.”
“Understood. Please continue, Officer Mickler.”
“In this case, Officer Jones had to couple that heightened awareness with the discovery the driver was armed. This new fact exacerbated an already tense situation, especially when added to the fact that Jones pulled the vehicle over because he was suspicious of criminality—rightly or wrongly.”
“Wrongly, in this case.”
“True, but that doesn’t change Officer Jones’s state of mind as he approaches the vehicle,” Mickler explains.
“Understood. Continue, please.”
“This is where, unfortunately, I fail to understand Jones’s conduct that night. If you follow the dash cam video, it is clear Jones gave inconsistent commands and apparently shot Mr. Hayes for doing what he was told to do. Jones requested his license and registration. When Hayes told Officer Jones he was carrying, Jones panicked and failed to provide clear direction. He should not have demanded the carry permit. He should have positioned himself behind rather than in front of Hayes, for his own safety and the safety of the children in the back seat. The officer’s positioning put the children in the direct line of fire.
“From a position behind Hayes, Jones should have dire
cted Hayes to raise his hands. At that point, Jones could have opened the driver’s side door with his gun trained on the driver, ordered him out of the vehicle with his hands raised, and waited for backup. He was advised not to approach before backup arrived, but he ignored that advice and approached anyway.”
Bingo! Blake is pumped. Why stop him now? “Anything else, Officer Mickler?”
“Yes. Officer Jones was afraid for his life. He thought he was dealing with a robber. He smelled marijuana, and the driver told him he had a gun. This was a tough situation.”
Shit! Well, that’s what I get for letting him ramble on. Time to gamble a bit. “Did the fact Hayes was carrying automatically make the stop more dangerous?”
“I’m not sure I understand.”
“Mr. Hayes told the officer he was carrying, right?”
“Right.”
“And I believe you have already testified it would be unusual for someone about to pull a gun and shoot you to advise you he or she is carrying?”
“Yes, that would be unusual.”
“So, the fact Mr. Hayes informed Officer Jones he was carrying should have reassured the officer, not panicked him, correct?”
“I don’t know about reassured, but it should not have automatically panicked Jones, as it seems to have done in this case. Concealed weapons carriers are among the most law-abiding demographics in this country.
“Jones saw the age of the driver and the sex and ages of the passengers. He saw the children. Why didn’t the presence of children diffuse the situation? Was this driver a teenaged robber or a law-abiding adult citizen? Marijuana and race are the wild cards here, but I question whether these people should have been pulled over in the first place.”
Wow! “Have you or any other officers you know of been through any special training on dealing with drivers who are legally carrying?”
“Training, yes. Special training, no.”
“Jones?”
“Not to my knowledge. Cedar Ridge has never offered special training in this area. If Jones was trained, he was trained elsewhere.”
“Do you know whether or not other departments offer special training or are more proactive in how officers deal with this issue?”
“I do not.”
“As more and more people carry guns, you would agree this education should be offered, since cops are going to encounter a responsibly armed citizen and that fact should not, by itself, place an officer in fear, correct?”
“Absolutely.”
“What do you believe, as an experienced officer of the law, happened to cause Officer Jones to shoot Mr. Hayes that night?”
“Objection, calls for speculation. Mr. Hayes was dead when Officer Mickler arrived at the scene,” Adler grumbles.
“I’ll take the answer.”
“Officer Jones is dead. Only he knew whether Hayes made a threatening move. I do not see one on dash cam video. On the other hand, shooting someone is a last resort activity by any cop. We take our training, tactics, and performance to avoid having to discharge our weapons very seriously. No cop wants to shoot someone.”
“There’s an imminent peril requirement to use lethal force, isn’t there?”
“Yes.”
“Did you see imminent peril here?”
“Objection. Asked and answered. This is becoming very redundant overkill, Mr. Blake,” Adler declares in frustration.
“Interesting choice of words, ‘overkill.’ I’ll take the answer over the objection.”
“No,” Mickler concedes.
“Any threat of death or serious bodily harm?”
“Same objection,” Adler blusters.
“No,” Mickler sighs. “I did not.”
“Your superiors have reviewed the dash cam video, have they not?”
“Some of them have.”
“Chief Brooks?”
“Yes.”
“What was his conclusion?”
“Objection!”
“I’ll ask the Chief,” Blake snickers.
“By the way, a use-of-force report is required in every officer-involved shooting, is it not?”
“Yes.”
“Who completes that?”
“The officer involved.”
“Jones, in this case?”
“Yes.”
“Was one completed for this case?”
“Not to my knowledge.”
“Why not?”
“I don’t know. That’s above my pay grade.”
“Do you know what a high-risk stop is, Officer Mickler?”
“I do.”
“Based on his perception of the danger, Officer Mickler, should Officer Jones have handled the Marcus Hayes traffic stop as a high-risk stop?”
“Based on his perception? Yes.”
“And did he?”
“Did he what?”
“Handle this as a high-risk stop?”
“No, he did not.”
“The rules say that firearms shall not be discharged when it appears likely that innocents may be injured, correct?”
“Yes.”
“You’ve already testified that there were children in the back seat?”
“Yes.”
“And that they were in the direct line of fire?”
“I’m not—”
“Objection! This witness does not know the exact positioning and would be testifying to a presumption. There is no foundation,” cries Adler.
“Steven, Steven,” Blake mocks. He turns his back to his adversary and faces the witness.
“Officer Mickler? Would you like me to have the court reporter read Mr. Adler’s objection back to you? After all, his words are exactly the ones he wants you to utilize in answering my question. Mr. Adler was prompting you,” Blake posits.
“Objection! Adler shrieks. “Editorializing! My objection stands for the record.”
“If the bullets missed Mr. Hayes, where would they have gone?”
“Objection! Calls for speculation.”
“I’ll take the answer. Where would they have gone, Officer Mickler?”
“Back seat,” Mickler admits. He looks away.
“And who was in the back seat?”
“The children.”
“How old?”
“Toddlers.”
“Nothing further.”
“No questions,” Adler fumes.
“No questions,” Jackson chuckles.
Chapter Twenty-Six
Chief Warren Brooks was dead serious about changing the culture and practices of the Cedar Ridge Police Department. His blue-ribbon community task force included multicultural civic leaders, politicians, attorneys, police executives, retired police and federal officers, and, most importantly, ordinary citizens. One of the task force members was Michael Kendell of Black Lives Matter.
Cedar Ridge mayor Mendoza and other city officials and dignitaries were on board as long as the work and findings of the task force remained confidential. The mayor was concerned committee criticisms might be used against the city in present and future civil rights litigation.
Professor Kendell promised himself that he would research and help flush out any institutional racism problem in the Cedar Ridge Police Department. Initially, he pledged to share that research with Zachary Blake and Sarah Hayes for use in their civil rights litigation against the city.
Appointment to the task force required Kendell to sign an NDA and a confidentiality agreement. If he followed through with his pledge to share committee findings with Blake and Sarah, he’d be in violation of his oath. He was seriously conflicted and almost declined the appointment.
In the end, Kendell decided the appointment served the greater good. Sister Sarah was in good hands with Zack Blake and would get the justice she deserves.
At the first meeting of the task force, Chief Brooks reinforced Cedar Ridge’s commitment to racial justice in the city. His goal was a completely colorblind police force. He acknowledged policing reforms must come, not only from the cops
but also from a range of constituencies, like the “people in this room.”
He encouraged innovative ideas and declared these ideas could come from the most distinguished and decorated officer or from John Q Citizen. Brooks didn’t care. He just wanted as many as possible.
Cedar Ridge shared its cultural problems with other American communities, large and small, but Brooks determined Cedar Ridge would be a leader in developing solutions rather than allowing its department to be part of the problem. A police shooting takes a terrible toll on a community. Marcus Hayes was not the sole victim in this case. A criminal indictment was issued, a young officer took his own life, two widows and young children were left behind, and a city and its police force were in turmoil.
The committee listened intently and absorbed every word. Each member then rolled up their sleeves and went to work. Like a Fortune 500 company searching for the ultimate competitive advantage, Chief Brooks was looking to become a leader, an innovator who changed the rules and the culture of the game.
He desired to reinvent community policing, to drastically reduce— eliminate was probably too lofty a goal—the likelihood people of different races and creeds were treated differently than their white neighbors. Privately, he was determined that an incident like the Marcus Hayes shooting would never be repeated in his beloved city.
***
Chief Warren Brooks sits in his dimly lit office at the end of a long day and begins to leaf through a multi-page bound document. It has been nine months since he assembled the blue ribbon task force. The committee has finally submitted its report to Brooks and Mayor Mendoza. The report is entitled “PROPOSALS FOR COLORBLIND POLICE PROCEDURES.” Some proposals were updates to older policies and procedures. Others were refreshing and innovative.
Brooks leans back in his executive chair and places shoeless feet up on his desk. With reading glasses perched at the end of his nose, he begins to study the comprehensive report. He’s very pleased with what he’s reading.
The committee has provided a list of procedural proposals that include improved transparency, use of non-lethal weapons, scaling down purchases of military hardware from the federal government, increasing educational standards for recruitment of police officers, warnings training, data collections and reporting by involved officers, increased civilian and internal affairs oversight, and recruiting a more diversified workforce.
