Duncan says it was unusual for him to be the first through the door, since general practice calls for the “breacher” – the officer who wields the battering ram – to smash open a door, step aside as others rush in single-file, and then enter as the last officer in the “stack.”In this case, he said, the center of the door broke, but the door remained in the frame. Concerned that other officers might get hung up on the frame, he pushes through first, clearing the opening.As he scans the first room and sees no one, Duncan says, he moves toward a hallway, where he finds a man, face down on the floor, with his arms extended in front of him.Duncan describes moving toward the man – who turned out to be Stamps – with his M4 in the “low-ready” position, a round in the chamber and the rifle in semi-automatic, or single-shot, mode. “I see a man laying on his stomach, somewhere in the hallway,” Duncan tells Forster in the interview on Jan. 6, the day after the shooting.“Probably if I were to guess, a couple of feet past the threshold, maybe two, maybe three feet past the threshold. … The other two SWAT operators are gone (into another room). I look down, I see the individual laying there. At that time, he’s laying on his stomach, his hands are, I believe, are above, I believe his elbows were resting on the floor. His hands and fingers are above him, and they aren’t on his head, they’re hovering above his head.“As I approach him at the threshold, I recall his head moving up toward me. And his hands moving like in a motion of, you know, ‘Who’s this? What’s coming in here?’ So I see the hands moving and head go up, not a great distance, just enough my attention automatically went to his hands and his head.”Duncan says the two other SWAT team members who were in another room “had not checked him (Stamps) for any weapons. I know that there was no check of the area for any weapons, other than maybe a quick one with their eyes,” Duncan tells Forster. “I make a decision at that point. My options are, focus on him like this and say, ‘Don’t move, don’t move.’ But what happens if there’s a gun or something hidden anywhere and he just reaches quick? What happens?“Well, I’m still in a position where I gotta make a decision. Do I fire, do I not fire? In my mind as quickly as it was going, I made a decision, I’m gonna take that out of this equation.“I decided I’m going to go beside of him, get his hands behind his back, not to handcuff him, but just tighten up on his hands and kneel down on him so he can’t reach for anything at all. In the back of my mind it takes any threat that maybe someplace I can’t see completely out of the equation as far as any firearms or weapons,” Duncan says.
As Officer Duncan moved to the right of Mr. Stamps, just past Mr. Stamps’ shoulders, he had to step to his left. As he stepped to his left, he lost his balance, and began to fall over backwards. Officer Duncan realized that his right foot was off the floor and that the tactical equipment that he was wearing was making his movements very awkward. While falling, Officer Duncan removed his left hand from his rifle, which was pointing down towards the ground, and put his left arm out to try and catch himself. As he did so, he heard a shot and then his body made impact with the wall. At that point, Officer Duncan, who was lying on the ground with his back against the wall, realized that he was practically on top of Mr. Stamps and that Mr. Stamps was bleeding.
- I don’t think criminal charges against Duncan would have been appropriate. There’s no reason to think he deliberately set out to kill Stamps or killed him in a moment of anger. It appears to have been an accident — the regrettable result of a volatile, high-risk situation.
- That said, the people who are subjected to these raids aren’t given the same sort of deference when they make similar mistakes under similar circumstances. Shoot a cop during a drug raid, and you’re likely going to prison. It doesn’t matter if the person thought the cops were invading criminals or rival drug dealers. It doesn’t matter if you aren’t a drug dealer at all. (There have been a couple recent exceptions, but they’re far outnumbered by the rule.)
- The double standard is exacerbated by the fact that it is the police who create the volatility and risk by insisting on using dynamic entry tactics to serve drug warrants. The police create the circumstances that excuse their errors — errors that can cause the death of innocent people. Those on the receiving end of these raids are expected to behave perfectly, to show impeccable judgment and restraint, despite the fact that the tactics are designed to disorient them, confuse them and take them by surprise.
- Eurie Stamps is dead. He was innocent. He was killed due in part to the circumstances created by serving a search warrant for a nonviolent crime with extraordinarily violent tactics. Local law enforcement officials found no fault with the officers, and no fault with the tactics. The only possible conclusion: The death of an innocent 68-year-old man is an acceptable consequence of our efforts to stop people from getting high.
- Do you think it was even marginally more difficult to buy crack cocaine in Framingham on the night after Stamps’s death than it was the night before? Or in other words, what exactly is all this violence achieving?
It is undisputed that Duncan entered the apartment with his gun drawn, moved the safety from “safe” mode to “semi-automatic,” pointed the weapon at Stamps, and placed his finger inside the guard on the trigger. He then shot him in the head, albeit unintentionally. Although there is apparently no issue with respect to the reasonableness of drawing the weapon, there are substantial issues as to the reasonableness of Duncan’s conduct as a whole.First, Stamps posed no actual threat. He was an elderly man. There was no struggle of any kind when the police encountered him. He immediately cooperated with the police and lay down on this stomach, with his hands visible. He made no movement or sound of any kind to indicate any type of resistance, force, or flight.Second, Stamps was not a suspected threat. The police were not surprised by his presence at the scene (which was his own home). He was not a criminal suspect. He had no history of violence. Indeed, the police officers had been told that Stamps posed no known threat to the police.Third, the potential harm posed to Stamps from the form of restraint used by Duncan was high—indeed, extremely high. Duncan did not use his hands, or a nightstick, or a chokehold. He did not restrain Stamps with handcuffs. Instead, he pointed a semi-automatic firearm in apparent close proximity to Stamps’s head. The likely harm to Stamps, should a misstep occur, was not a mere bruise or broken bone, but death or serious injury.Fourth, Duncan’s intentional actions greatly increased the risk of accidental harm. By turning off the safety and putting his finger on the trigger, he created the very real possibility that any bump or jolt—or nervous twitch—would result in Stamps’s death.Fifth, there was no obvious justification or need for Duncan to have turned off the safety and put his finger on the trigger, inside the trigger guard. The placement of his finger apparently violated police department policy, and possibly proper police practice. See Sorenson v. McLaughlin, 2011 WL 1990143, at * 6 (D. Minn. 2011) (officer’s placement of finger inside trigger guard that led to accidental shooting violated police training). There is no reason to believe that Duncan could not have quickly moved the safety, and put his finger inside the guard, had any actual threat materialized.Under the circumstances, a reasonable jury could find that Duncan’s actions leading up to the shooting were objectively unreasonable, and therefore that he employed excessive force in violation of the Fourth Amendment.
“I know my right hand has the rifle, I’m trying to pull it away,” Duncan responds. “I’m trying to get it toward the wall. But it was … as long as it sounds like … it seems to me now it was a millisecond. Under the trigger guard there is what I would classify as a hand hold or small grip similar to the grip on your sidearm. As I’m going backwards, or falling, I was trying to control that, but it seems to me there was a thousand thoughts going on in my head. Prior to falling, my index finger was on the outside of the trigger guard. And I don’t know ….”Forster: “Whether it made it in there or not when you’re falling?”Duncan: “But at some point the weapon discharged.”Forster: “We don’t know if the weapon discharged because you pulled the trigger or because of the impact of you falling.”Duncan: “I just know that it discharged. I don’t know consciously that my finger was in there (inside the trigger guard). I just know that the weapon discharged.”