Author: Grumpy

Lesson: The rule is, “You don’t have to be right, but you do have to be reasonable.” You can be cleared four times over in a shooting and still be criminally charged. If you’re a cop criminally charged, we hope you belong to a union or fraternal organization.

A furtive movement shooting occurs when someone appears to be going for a gun, gets shot for it and turns out not to be armed. Sometimes the movement is a deliberate faking of the menacing gesture — to intimidate a victim or to achieve “suicide by cop” — and sometimes, it is unintentional.

For peace officers and armed citizens alike, the green light to use deadly force normally turns on only in a situation of immediate, otherwise unavoidable danger of death or great bodily harm to oneself or some other innocent party. For that situation to exist, three criteria must be simultaneously present. They are most commonly known as ability, opportunity and jeopardy.

The ability factor, sometimes called means, translates as “power to kill or cripple.” The opponent must be reasonably perceived to be either armed with a deadly weapon such as a gun, knife or club or have such a great unarmed advantage over you as to constitute disparity of force. This might take the form of greater size and strength, force of numbers or known or obviously recognizable skill in unarmed combat. The opportunity factor means they are close enough to employ that power to kill or maim quickly. Finally, the jeopardy factor is the element of manifest intent: The opponent must manifest, by words or actions, what would be reasonably interpreted as intent to kill or cause great bodily harm.

The furtive movement goes to the ability element. It gives the defender reason to believe the opponent is armed with a deadly weapon. It must happen in such a way the reasonable person would construe it as going for a weapon and nothing else within what the courts call the totality of the circumstances. The opponent must still be close enough to harm you with the weapon you reasonably believe they are armed with and must still be manifesting an intent to hurt or slay.

For perspective, why is the charge “Armed Robbery” when the perpetrator robs a bank with a note that says, “I have a gun, give me all the money” or simply has a hand in a pocket making a “finger gun,” but turns out to have no actual weapon? It is because his actions have given the victim reason to fear being unlawfully shot. The same furtive movement principle is in play if the intended victim draws a gun and shoots the suspect making said movement.

Please bear all of this in mind as we look at the United States v. Richard Palmer case.

The Stage Is Set

Deputy Richard Palmer had served with distinction as a uniformed law enforcement officer for more than 20 years, most of it with the Lake County Sheriff’s Department headquartered in Tavares, Fla. The agency comprises more than 500 sworn deputies and some 260 non-sworn personnel. On the night of October 11, 2016, Palmer was on routine patrol when he received a call of a disturbance at a known drug house in a rural part of the town of Paisley. As he headed to the address, he remembered a brother officer who had been murdered near there not long before.

Approaching the narrow road which led to the house, Palmer saw a Mercury sedan with a lone female at the wheel approaching from that direction. She blew through the stop sign and came to a halt directly in front of his marked unit. His first thought was that she was fleeing the scene; he obviously needed to talk to her. Palmer already had his windows down so he could hear any danger signals as he approached, and he saw her window was down, too. As she gestured apologetically, he gestured back for her to pull over and told her so loudly.

Instead, she accelerated away from him.

Palmer spun the steering wheel and followed, carefully avoiding two bicyclists, the only other people in sight. The woman drove less than a hundred yards and then suddenly cut left, across the lawn of a house, and came to a stop in the yard. Palmer followed, throwing the patrol unit into park and making sure it was angled to the left to put the engine block between her and him.

He saw the driver’s door pop open. Alarm bells went off in his head. When a driver does that, it’s telling the officer behind them there’s something in their car they don’t want the cop to see. It is also, Palmer knew, one of the most common patterns of ambush murder during traffic stops.

There had been no time to radio in. Palmer quickly opened the door of his unit, stepping to the left for an angle to better see the driver. What he saw chilled him: She appeared to be putting a black semiautomatic pistol into the front pocket of her hoodie with her left hand.

She approached him rapidly, her hands now visible. Palmer’s department-issue GLOCK 22 was out and in hand, muzzle down, as he yelled at her repeatedly to stop. But she kept coming.

The Unforgiving Moment

The hands are where he can see them … and then suddenly they drop, the left hand appearing to be going for the hoodie pocket. Palmer raises the GLOCK, leveling on her chest, and fires. The woman jerks and then falls heavily to her right. The hands are visible again and empty. Palmer ceases fire.

He moves forward. GLOCK still pointed at her, the deputy tries to remove the gun from the hoodie pocket.

He finds only an iPhone. He tosses it to the side. It is at that moment he realizes she is unarmed.

Immediate Aftermath

The woman, whom we will refer to here as only RP — yes, she had the same initials as the deputy who shot her — survived. The bullet struck her right hip from about 20′, dropping her instantly. She would complain of permanent pain thereafter.

The dashboard camera had been set slightly to the right of center in the patrol car, several feet from where Deputy Palmer was standing when he fired the shot in question. Its time counter showed less than one minute from when she accelerated away from the patrol car at the intersection to when she was shot.

In the silent video, RP gets out of the car. She has an apologetic smile as she walks toward the patrol car and her hands are chest high. Suddenly, both hands dip down toward her waist. The hands rise again, and an instant later, she is seen to collapse down to her right from the gunshot. Palmer is seen approaching from the left, GLOCK still covering her, and immediately going to her left hoodie pocket. He is seen to withdraw the smartphone and toss it aside. He then holsters, attempts to handcuff her and finds it is causing her too much pain. He abandons the handcuffing and radios for paramedics and backup.

Investigative Aftermath

It was clearly a furtive movement shooting. We’ve all heard the term “justifiable shooting.” It means the shooter did the right thing by pulling the trigger. As the late Judge Roy Bean might have said, “That person needed to be shot.” Less widely known is the concept of the “excusable shooting.” That conclusion says, “With 20/20 hindsight and unlimited time, we now know that the person in question didn’t need to be shot. However, the circumstances were such that any reasonable person might have done the same as the shooter, and therefore, the shooter should be held harmless (i.e., not be convicted of, or punished for, the shooting).” This incident fits the latter profile.

The Lake County Sheriff’s Office concluded so. Rick Palmer was restored to duty and was later promoted to a supervisory position.
FDLE, the Florida Department of Law Enforcement, also investigated the shooting. That agency has a reputation for not covering for bad cops. They found no wrongdoing on Palmer’s part.

The State’s Attorney’s Office reviewed the shooting and found no problem with it.

Indeed, a Grand Jury assessed the matter and returned No True Bill, which in essence is a finding that no crime has been committed.

However, much later, the incident came to the attention of an attorney in the United States Department of Justice Civil Rights Division. He thought otherwise. In September 2019, Palmer was indicted on Federal charges of violating RP’s civil rights and lying to investigators.

Trial

The trial was held in Federal Court in Tampa from the end of March through early April 2022. The competent Alan Diamond and Kepler Funk were co-counsel for the defense. Palmer had hired them out of his own pocket. Never thinking anything like this would happen to him, Palmer had never joined the Fraternal Order of Police. The prosecution’s theory was Palmer had become angry with RP for not pulling over and shot her for that reason.

Sheriff Payton Grinnell was called to the stand. On direct, he answered yes to the prosecutor’s questions that department regulations called for the officer to radio in the stop and turn on emergency lights that would activate sound recording on the dashcam, which Palmer had not done. However, on cross-examination, the sheriff explained the regulations in that regard were guidelines, not laws.

RP herself was not called by the prosecution to testify. Only the prosecution can say why. Had she taken the witness stand, she might have had to admit to the alcohol and narcotics in her bloodstream that night and that she’d had many arrests often involving methamphetamine and had done jail time. It would probably also have come out she had previously testified she had pulled into a stranger’s yard because she knew she was driving someone else’s car without their permission and without a driver’s license. She somehow believed the car wouldn’t be towed if it was on private property. This would have killed the Government’s insinuation she didn’t know she was being stopped by the police. Because Palmer didn’t know her background at the time of the stop, it could not be introduced by his defense attorneys.

The defense’s case was brief. As an expert witness for the defense and having intensively debriefed Palmer, it was easy for me to counter the prosecution’s assertions.

Why didn’t Palmer turn on the emergency lights or siren? Their purpose is to notify the target driver and others on the road a stop is taking place. The video showed clearly the two bicyclists saw Palmer and stayed out of his way and that RP could clearly see the marked car, the uniformed officer, and hear and see his directions to her. In the few short seconds of the interaction, he simply hadn’t had time to hit the now unnecessary toggle switch. The Government alleged he didn’t know the dashcam was running. In fact, Palmer had watched its installation and knew it was indeed operative. Why didn’t he radio in? He didn’t have time. He hadn’t been able to read the license plate, and the “chase” covered less than a hundred yards.

Part of the prosecution’s case theory was Palmer violated procedure by doing a routine traffic stop instead of proceeding to a more serious call for police service. I explained the woman blowing through the stop sign was the least of it: She appeared to be coming from the scene of the serious call, could be expected to provide critical information on what was happening there and might even be the perpetrator. Thus, stopping her was logical and a part of responding to the more urgent call.

The core question was, how could the shooting have happened? Despite access to top experts at the FBI and DEA academies and more, the Government hadn’t figured it out. RP’s sudden turn into the yard had given Palmer no time to radio for backup. Her emergence from the vehicle, appearing to put a pistol-like object in her pocket and her rapidly approaching him in defiance of his orders to stop all warranted taking her at gunpoint. Her hands coming down to where she had appeared to have stowed a gun triggered the shooting.

Timing

The Government’s video of the shooting, complete with a time counter, showed from the moment her hands started going down, they had reached the area of the hoodie pocket in 0.33 of one second. The movement caused Palmer to raise his gun, indexing on her chest. In an extended isosceles stance, his hands and pistol now blocked his view of her hands, which remained down for another 0.475 of a second. It took another 0.315 seconds for the rising hands to reach chest level — Palmer told me he never did see the hands come back up. By then, the 180-grain Gold Dot .40 bullet was on its way. She reacted to the bullet wound only a fifth of a second after the hands reached chest level. Overall, only 1.32 seconds had elapsed from the downward movement of her hands that triggered Palmer’s decision to fire to when she crumpled from the bullet strike.

Once it appeared she was going for the gun, even if he had seen the rising hands, it would have been an unanticipated stimulus to stop a trigger pull already under way. While reaction to anticipated stimulus averages about a quarter-second, the cognitive response required for a reaction to unanticipated response averages over a second for most people and will rarely happen quicker than seven-tenths of a second at best.

Why not wait to see the gun? Because if you wait that long you’ll see what comes out of it. I testified once the hand was on the perceived gun, a person in RP’s position could have drawn and shot the deputy in less than a second.

The prosecution harped on the hip shot, implying it was intentionally fired to torture and punish and emphasizing police are taught to shoot center mass. I was able to testify the officer had told me (and the initial investigators) he was trying to put the shot center chest. However, I explained right-handed shooters such as Palmer tend to shoot low left (and southpaws, low right) due to “milking” the gun under pressure, which I demonstrated to the jury with Mr. Diamond. In a previous questioning, Palmer had been discussing this when he blurted he didn’t want to kill her; the Government seemed to interpret that as an admission to having shot her to torture her. Their theory did not explain why a rogue cop who wanted to torture someone with a bullet wound would leave her alive to testify against him.

I took the witness stand at about 10:30 a.m. and was done with cross-examination at about 2:30 p.m. Cross is easy when the truth is on your side, and you can explain it. On my departure, I learned the testimony I had expected from the defendant and department use of force instructor Richard Rippy had not taken place. Diamond and Funk felt it looked like we had covered the waterfront, and the jury had “gotten it.” In a “strike, while the iron is hot” decision, the defense closed after I left the stand.

To make a long story short, Kepler Funk delivered a brilliant closing argument in which he pointed out something I had established in my testimony: In the years since the shooting, the Government had had millions of times longer to second guess Rick Palmer than Palmer had when he reasonably believed he was about to be shot to death in the dark.

The jury acquitted him on all charges.

Months later, a Google search showed nothing whatsoever about his acquittal but still showed his 2019 indictment.
Palmer was welcomed back at the Sheriff’s Department with open arms and given a much-appreciated appointment to Marine Patrol, where he is now working.

Lessons

Action-reaction paradigms must be taken into account when analyzing cases of this type. They were, insofar as the Sheriff’s Office, FDLE and the State’s Attorney’s Office … but apparently not by the U.S. Department of Justice.

The guiding light for police use of force is the U.S. Supreme Court’s 1989 decision in Graham v. Connor. It focuses on the standard of objective reasonableness. The Court said, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

The opinion also stated, “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary for a particular situation.” Diamond and Kepler were able to get a jury instruction outlining this principle.

It is essential to have post-accusation support. Legal cases cost big money. I’ve always urged police officers to join their union or fraternal organization: It is the one entity that will likely pay for your legal defense if criminally charged. As much as the department might want to stand behind you, they’re not allowed to pay legal fees for people accused of crimes.
Organizations like Armed Citizens Legal Defense Network (ArmedCitizensNetwork.org) serve a similar purpose for private citizens. (Disclosure: I’m on ACLDN’s advisory board.) Rick Palmer paid about $100,000 out of his own pocket and Diamond and company gave him a hell of a deal at that.

Be sure your instructors will speak for you. Cop or armed citizen, a jury told you did what you were trained to do (and what you were trained was, in fact, the right thing to do) can be enormously helpful. Retired deputy Richard Rippy stood ready to do so. In this case, Rippy had briefed me on the training, and I was able to get it in. Some instructors fail to do so, particularly in high-profile or politically motivated cases.

I would like to publicly recognize Alan Diamond and Kepler Funk for a great job of lawyering and Richard Rippy and Sheriff Grinnell for being stand-up, honest lawmen. I would also like to applaud the trial judge, James D. Whittemore, who did a very fair and impartial job in what turned out to be his final case before retirement from a most distinguished career. Finally, a hearty thanks to Rick Palmer’s family — including one son in the same department — who stood by him all the way through the unnecessary nightmare it took more than half a decade to end.