POLICE Magazine

JUN 2019

Magazine for police and law enforcement

Issue link: https://policemag.epubxp.com/i/1129771

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Page 108 of 124

106 P O L I C E J U N E 2 019 M ultiple videos on the Internet show officers not making a decision when asked by a citizen if they are free to go. ere are only two answers "yes" or "no," and the answer is based on your evaluation of the known circumstances at the time of the stop. Why are officers unsure of the answer? Let's look at a recent case out of the 6th Circuit Court of Ap- peals. In Wilkerson v. Danzy, the court reviews the re- quirements necessary to support a proper Terry stop and the problems that can arise when the court's re- view of video footage leads the court to find that a jury might have a different opin- ion of the suspect's "furtive" movements. However, Wilk- erson v. Danzy is not a simple "Terry Stop" case. During the course of the encounter, officers struggled with the suspect, the suspect's gun discharged, and the officer shot and killed the suspect. THE CASE Off-duty Akron, OH, Police Officer Howard Vaughn observed an SUV parked in his neighborhood with a flat tire and two men sitting in the front seats. When Vaughn returned from his errands, he observed the two men—Rau- phael omas and Jesse Gray—standing in his driveway and the SUV was gone. Vaughn asked the men if they needed assistance and they replied that they were OK. Several minutes later Vaughn looked out his window and saw the two men standing in his neighbor's driveway. Concerned that the two men might be "casing houses in the neighbor- hood," because of recent house breaks, Vaughn called the station and asked for a unit to check on the two men. On-duty officer Joseph Danzy responded to the scene and observed the two men standing on the grassy strip between the sidewalk and the street. omas and Gray walked up to the hood of Dan- zy's cruiser, pointed down the street and said "something about a flat tire." omas then turned away and took two steps before Officer Danzy told him to stop. Danzy later testified that omas appeared ner- vous, was looking around, and pivoted away from Danzy, which Danzy de- scribed as "blading." Based on the information provided by the off-duty of- ficer and omas' behavior, Officer Danzy decided to stop omas and pat him down as a second officer ar- rived on the scene. Officer Danzy and the second offi- cer attempted to put om- as up against the cruiser and control his arms. How- ever, a struggle ensued and both the officers and om- as fell to the ground. Officer Danzy claimed that omas was holding a .25 caliber pistol and as they wrestled for control of the weapon a shot discharged. After the shot fired, omas jumped up and be- gan running away and Offi- cer Danzy testified he fired two rounds believing that omas was an "active threat." omas fell to the ground and the officers then handcuffed him and recovered the .25 caliber pistol that was lying next to him. e officers called for an ambulance, but omas died from his wounds an hour after arriving at the hospital. THE PLAINTIFF'S CLAIM Sherry Wilkerson, Rauphael omas' mother, was the administrator of his estate. She filed a civil suit alleging a Section 1983 claim and state tort claims alleging that: PHOTO: POLICE FILE WITHOUT REASONABLE SUSPICION OR PROBABLE CAUSE, YOU CANNOT LEGALLY DETAIN A SUBJECT DURING A CONSENSUAL CONTACT. H ERIC DAIGLE POINT OF L AW OFFICER, AM I FREE TO GO?

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