Posted 8/24/21


When a K-9 is stabbed its handler opens fire. It’s not the first time.

     For Police Issues by Julius (Jay) Wachtel. There’s no question that the 9-1-1 call merited an urgent response. Actually there were two calls, whose timing overlapped. Fullerton (Calif.) police released a comprehensive video account of the May 27, 2020 incident that includes conversations between 9-1-1, callers and field units. Here are a few extracts:

    First call

    FPD     9-1-1, police
    Caller   Um,, my emergency is my stepdad hit my
                 brother, and they’re fighting right now...He has a knife!
                 Hurry up!
    FPD     Who has the knife?
    Caller   The owner of the house... stepdad...Hector Hernandez.
                 ...come fast...(gunshot and screaming in background)
    Caller   He pulled out a gun on me. He just tried shooting!
    FPD     Where is Hector right now? Is he still in the house or is
                 he outside?
    Caller   No. He is out in the courtyard screaming...He’s just
                 drunk...he’s drunk
    FPD     And as far as you know, nobody’s been injured?
    Caller   No

    Second call

    FPD     9-1-1 Fullerton police; what is your emergency?
    Caller   Hello, I think I heard gunshots...
    FPD     Where? Where are you? Where are you? (caller provides address)
    FPD     We have officers on the way there...How many gunshots...?
    Caller   ...please get in here...How many gunshots? Four or five...

    Dispatcher to units

    We can hear screaming in the background now...
    R/P (reporting party) is now saying the subject is armed with a gun. And fired the gun...
    R/P’s advising that the subject went back inside the house...
    And we also have neighbors calling confirming shots fired...
    They’re advising Hector is inside the res...and his 8-year old and a 13-year old are also inside.

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     Fullerton’s video includes footage from the K-9 officer bodycam. As he drives up Mr. Hernandez exits the residence and positions himself by the front door. Multiple officers are present as the K-9 cop takes the lead. He promptly releases “Rotar,” who initially runs the wrong way. After redirecting the pooch, the officer points his pistol at Mr. Hernandez and follows behind. As the dog leaps on Mr. Hernandez the officer orders him to “get on the ground!” (third image). Instantly something bad happens (Mr. Hernandez stabs the dog.) The officer yells “let me see your hands!” and fires his gun (fifth image.) As Mr. Hernandez screams in agony the officer announces, “he’s got a knife!” (sixth image) and fires again.

     Mr. Hernandez writhes in pain. Officers run up and drag “Rotar” away. In a later clip the K-9 cop tells a colleague “I think [the dog] has been stabbed.” When asked if the K-9 is “OK” he replies “I don’t know. He was stabbed and then he [Mr. Hernandez] started going after me.” Of that we’ve seen no video. But there was a knife (see top graphic) and the dog’s wound (right graphic) was grisly. Fortunately, he survived and retired. And while it turned out that Mr. Hernandez hadn’t been carrying a gun on his person, police found the pistol he had fired inside the home.

     Alas, such things have happened before. In February, 2020 Saginaw (MI) police were summoned to a home where a mentally ill man held a housemate at knifepoint. Officers physically tangled with the assailant and freed his companion. But despite being stunned with a Taser, the knife-wielding man broke loose and retreated deep into the home. A K-9 was sent in to flush him out. But when the dog took him down, the evildoer stabbed him in the head. Knife in hand, the suspect started to rise. That’s when an officer shot him dead. Prosecutors ruled the killing “justified and consistent with preservation of self and others”:

    Officer Adams was within reach of Blaisdell, Blaisdell remained in control of a large knife, he had just stabbed a police canine with the knife, and his movements indicated that he was attempting to get up from the ground. Officer Adams reported that he was in fear for his own safety; Officer Engelhart reported that he feared for Officer Adams’s life.

Still, the assailant’s mother sued, and the city ultimately settled for $510,000.

     Saginaw’s K-9 recovered and returned to the job. Alas, not K-9 “Aren.” In January 2016 he was stabbed and killed by an angry, knife-wielding man during a ferocious fight with officers in Wilkinsburg (PA). They, too, wound up shooting and killing the man, and prosecutors deemed their actions justified. Family members filed a Federal lawsuit. Although a trial judge tossed it out, an appellate court questioned the cops’ lethal response and reinstated the case, which is apparently still pending.

     Back to Fullerton. On July 21, 2021, fourteen months after Mr. Hernandez’s death, Orange County prosecutors issued a highly detailed, sixteen page report. Here's an extract:

    As Corporal Ferrell reached with his left hand towards Rotar to get Rotar off the bite, Corporal Ferrell physically reacted to seeing the knife...Corporal Ferrell jerked his body away from Rotar and Hernandez. This is when the first shot was fired by Corporal Ferrell. At the time of the shot, Corporal Ferrell was less than one foot away from Hernandez and within arms’ reach of Hernandez [thus] close enough to be stabbed...The BWC shows Corporal Ferrell yelled, “He’s got a knife!” Corporal Ferrell was still within...arm’s reach of Hernandez when he fired the second shot...

Prosecutors arrived at essentially the same conclusion as their colleagues in Michigan and Pennsylvania:

    Hernandez’ conduct captured on BWC would prevent the prosecution from proving beyond a reasonable doubt that Corporal Ferrell was not justified in believing he was in imminent fear of suffering great bodily injury and/or death at the time he discharged his service weapon.

     Mr. Hernandez’s family was outraged. Their lawyer, Garo Mardirossian, who represents them in a lawsuit, argued that Mr. Hernandez never posed a threat to the officer. Instead, he was just trying “to protect himself from being mauled by a dog”:

    He’s just got his hands up the whole time, then they release the dog...A 2-inch or 3-inch pocket knife in your pocket is not illegal. And even then, he did not touch that pocket knife and pull it until after the dog was mauling him. And you have a right to grab whatever you stop excessive, illegal use of force against you...

Bill Brown, a friend of Mr. Hernandez and member of the “Justice for Hector Hernandez coalition” argued that the K-9 officer only fired because of what was happening to his dog:

“I mean he just got totally reckless because it was like he just got tunnel vision. He focused on, ‘Oh, my God, he’s hurting my dog, I’m gonna stop him now ...’ That’s exactly what it seems like happened — he lost all control of his training and reasonable thinking and just decided, I need to do this.”

     Mr. Brown’s assessment isn’t unreasonable. After all, if someone is stabbing your pet, and you have a gun in hand, what might you impulsively do? Yet police had been called because Mr. Hernandez was acting crazy and firing a gun. Every officer on scene must have worried that he was still “packing.” Canine handlers are especially exposed to harm. That’s why the IACP urges that they be protected by a “cover officer”:

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    ...the cover officer is usually responsible for providing cover while the handler devotes his or her concentration to the activity of the canine...Cover officers are essential if the suspect is located because the handler alone cannot safely secure both the canine and suspect or manage the canine while conducting a search of the suspect...(p. 12)

     Fullerton’s K-9 handler seemed eager to seize the opportunity to collar the man. Had he waited Mr. Hernandez might have gone back in the house, endangering its occupants and making his capture far more risky and problematic. So the officer rushed in with just his canine partner. That was inherently dangerous, so he kept his pistol trained on Mr. Hernandez. Such tactics cut both ways. As we mentioned in “Speed Kills”, examples abound of lethal errors committed by officers in a hurry. Officer personalities and skill sets also vary. Cops who are “easily rattled, risk-intolerant, impulsive or aggressive” are use-of force disasters waiting to happen.

     However, we’re just speculating. Fullerton PD’s published rules for canine deployment don’t mention the use of cover officers. We also know nothing about this K-9 cop. Whether things might have turned out more peaceably in another agency or with a different dog handler is impossible to say. What can be said is that when assessed from the perspective of Graham v. Connor’s “reasonable officer,” Mr. Hernandez’s behavior clearly set the stage for a tragic ending. Perhaps a poor outcome was inevitable; perhaps not. But sometimes you really, really can’t simply blame it on the cops.

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When Must Cops Shoot? (I) (II)     Speed Kills     Three Inexplicable Shootings      When Cops Kill (I) (II)

Posted 6/13/21


Tailor remedies to the workplace. And keep it real!

     For Police Issues by Julius (Jay) Wachtel. Chasing after suspects on foot isn’t something that should be thoughtlessly encouraged. InWant Happy Endings?” we emphasized that such pursuits often end tragically. Our example, the June 18, 2020 shooting death of an armed eighteen-year old by Los Angeles County sheriff’s deputies might have been resolved far more peacefully had officers sought to contain the youth and called for backup.

     That’s not the first time we’ve questioned foot chases. Over a decade ago we summarized the problem thusly:

    [Foot chases] place officers in unfamiliar surroundings. Often alone, lacking access to the normal tools of policing, they get wholly dependent on their guns for survival. Pumped up on anxiety and adrenaline, with little opportunity to observe or reflect, it’s inevitable that their split-second decisions will occasionally prove to be tragically wrong...Unless academies can produce Supercops who are unaffected by stress and fatigue and can see in the dark, prohibiting one-on-one foot pursuits may be the only option.

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      Foot pursuits with tragic endings aren’t just a problem in Southern California, where that essay focused. During the early morning hours of March 29, 2021 a shot-spotter device alerted Chicago police to gunfire. Two officers promptly arrived. An adult male and his young teen companion took off on foot, and the chase was on. A cop promptly corralled Ruben Roman, 21. Surveillance video would later confirm that the alleged gang member was indeed the shooter. Alas, he had apparently passed the gun to the youth, who kept on running. After a prolonged chase, the other cop cornered him. Adam Toledo tossed the gun and raised his arms as if to surrender (see image). But as he did so the officer opened fire and shot the youngster dead. (Click here for our half-speed version of the pursuit’s final moments and here for the official collection of videos of the encounter.)

     Two days later, on March 31, it was Déjà vu all over again. For unconfirmed reasons – their quarry had supposedly eluded them a day earlier – two Chicago police officers furiously chased a twenty-two year old man through a residential area at about one in the morning.  Anthony Alvarez entered a townhome complex, and as he reached a set of stairs an  officer opened fire and shot him dead. Video footage provided and edited by Chicago PD supposedly shows that during the chase Alvarez produced a gun, which some say he dropped just before the shooting (the videos aren’t clear about that.) In fact, his pistol was recovered; best we can tell, though, Alvarez never pointed it at his pursuers. (Click here and here for our extracts from Chicago PD bodycam videos.)

     Given the gunplay that typically rocks Chicago, the lethal encounter with Mr. Alvarez, an adult, was  vastly overshadowed by the shooting death of thirteen-year old Adam Toledo. So just why was a boy running around with an armed felon at two-thirty in the morning? One-time Chicago police commissioner Garry McCarthy (he was chief through 2015) blamed the child’s violent death on the gang members that infest his city. “They have the ‘shorties’ who they give the gun to,” he told WBBM radio. Former Commissioner Eddie Johnson, a Black officer who succeeded McCarthy, offered the officer who killed the boy some words of support:

    ...I don’t see anything that would dictate that the officer would be prosecuted for anything. It’s a tragedy. All of this happened in less than a second...Tossing a weapon and turning around in a split second doesn’t give your brain time enough to process. Reality isn’t like Hollywood. It’s much different...

     Outside the law enforcement community such “explanations” fell on deaf ears. Adam Toledo’s killing was widely and near-reflexively condemned. “It could have been any one of my students,” said an eight-grade teacher. “I don’t think there’s enough training for cops, especially white cops dealing with Black and brown kids,” she added. “They’re acting out of fear.” Chicago Tribune columnist Rex Huppke summarized the prevailing sentiment in an uncompromising piece:

    There is only one side here, and it’s a side that should be almost instinctual in all of us as human beings, a thread woven into our DNA: What we saw in that police body camera video is wholly, wildly, unnaturally unacceptable.

     Perhaps sensing a very ill wind, city officials quickly jumped on the bandwagon. Instead of pointing fingers at the officer – his predicament, we suspect, was too complex and legally charged to allow for a tidy scolding – they blamed police policies. Those, they pledged, would be promptly reformed. Mayor Lori Lightfoot demanded it: “We cannot and will not push the foot pursuit policy reform off for another day.”

     Full stop. By “reform” she must have meant meant “change.” Chicago P.D. had issued a foot pursuit policy in January 2018. Revised last year, the rules comprehensively set out the requirements and justifications for a foot chase. A prominently boxed warning informs officers that foot pursuits are only authorized when there is “reasonable articulable suspicion to conduct an investigatory stop or probable cause to arrest.” Officers are sternly reminded about the risks that foot chases present to everyone, including the suspect. They’re advised to exercise great caution in deciding whether and how to pursue and discouraged from giving chase except in cases of violent crime. Among other things, officers are instructed to interact with suspects in ways that prevent flight, warned against separating from colleagues, and urged to contain fleeing persons by establishing a perimeter. Use of force, including deadly force, is addressed at some length. Here’s an outtake:

    Deadly force may not be used on a fleeing subject unless the subject poses an imminent threat of death or great bodily harm to the officer or another person. Force used on a subject who is fleeing, or who is being or has been apprehended, must, as in all use of force, be objectively reasonable, necessary, and proportional.

In all, the advice seems fully consistent with Supreme Court decisions about pursuits (e.g., U.S. v. Arvizu) and use of force (e.g., Graham v. Connor.)

     But then police shot and killed a boy. Two months later, on May 26, the mayor and Commissioner Brown announced a new, comprehensive foot chase policy. (Click here for its “highlights,” here for its full text, and here for our compilation.) And be sure to grab a snack. With a word count of 5,777 it’s about three times the length of the original version. (By way of comparison, the foot pursuit policy of the La Verne police department, which the L.A. County Police Chief’s Association recently cited as a model in Lange v. California, takes about 1,613 words.

     Its massiveness aside, Chicago PD’s new foot chase policy is a polished piece. While it studiously avoids mentioning the assumedly “bad, old” directive the policy addresses most of the same concerns. Its advice, though, is far more detailed. For example, the perils of becoming separated from one’s partner, or of running with a firearm in hand, are set out in police-academy precision. Ditto coordinating pursuits with superiors and support staff. When it comes to rulemaking, the policy considers issues that transcend chases. For example, it specifically prohibits using force “as punishment or retaliation (e.g., force used to punish or retaliate for fleeing or resisting arrest)”. Throughout, many examples are given to demonstrate how the rules would apply to a variety of field situations

     So Chicago got its money’s worth, right? Not according to its embattled police union president. John Catanzara complained that the new rules in fact amount to a “no-foot-pursuit policy” that could preclude chases altogether. Mr. Catanzara, a suspended officer who endorsed the Capitol assault, is no friend of city hall. Yet his concerns can’t be easily dismissed. While the original policy didn’t require that suspected criminal behavior meet any certain level of severity to justify a chase, its replacement forbids foot chases when “the established reasonable articulable suspicion or probable cause is solely for a criminal offense less than a Class A misdemeanor (a sentence of less than one year of imprisonment) and the person...poses no obvious threat to the community or any person [or] has no obvious medical or mental health issues that pose a risk to their own safety.”

     Mr. Catanzara’s objection brings up our recurring emphasis on the police workplace. Consider the rapidly-changing, stressful situations that officers often encounter. If they happen on a lawbreaker who suddenly bolts, must they instantly and precisely assess the severity of his conduct – say, class of misdemeanor – before chasing? (Say, maybe they could carry this handbook!)  To this long-retired practitioner that seems a bit of a stretch. Happily, the new policy adopts the flexibility of the original rule’s “Whether to Pursue” section by making special allowances should a suspect pose an “obvious” threat.

     Across from Mr. Catanzara sit the civil libertarians. And they object to the new regulations for precisely the opposite reason. Given cops’ self-interest, accommodating the rules of the chase to the workplace could in practice mean that no rules exist. Here’s how Illinois ACLU legal director Nusrat Choudhury feels about the new version:

    It’s vague and at times even self-contradictory. But what a policy needs to do is give clear and easy to understand guidance on when not to chase someone on foot. When you look closely it is not going nearly as far as it should…even with the bar on Class A...I think this policy leaves a lot of room for officers to still exercise discretion. There needs to be more guardrails.

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     We’re skeptical. George Floyd’s killing and the criticism and increased oversight that followed have been widely credited for inspiring “police pullbacks.” These retrenchments may have contributed to the surge in violence that’s beset cities across the U.S. During the June 4-7 weekend at least sixty persons were shot in Chicago, including eight in a single incident. Among the wounded were an 11-year old girl and a 15-year old boy. Police commissioner David Brown blamed the gunplay on “gang cultures, revenge, retaliation and street justice.”

     Policing is consumed with risk, uncertainty and a chronic lack of accurate information. Stirring in a bucketful of restrictions may produce a brew that practitioners of the demanding craft might find too toxic to consume. Say that foot chases get the ax or its tightly-written equivalent. Cops become reluctant to test the rules, and word gets out. What might the Windy City’s denizens then face?


9/4/21  Chicago PD has delayed making its new foot pursuit policy permanent. Officials say they are continuing to gather reactions to the complex measure from “community partners” and police officers. In addition, the Federal judge who oversees the agency’s consent decree has reportedly asked for more time and information so as to better assess the measure before it goes into its final form.

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Want Happy Endings? Don’t Chase     The Usual Victims     First, Do no Harm     The Chase is On

Posted 1/11/20


Rioters overrun the Capitol. Are police to blame?

     For Police Issues by Julius (Jay) Wachtel.  On January 6, 2121 hordes of protesters inflamed by President Trump’s defeat and exhorted by him and his son to convey their message to legislators stormed the U.S. Capitol, overwhelming police. While none visibly carried firearms, some had or got hold of pipes and other objects. Once inside, rioters fought with several officers, and Capitol police officer Brian Sicknick was repeatedly struck with a fire extinguisher, sustaining ultimately fatal injuries. (Click here for the video of a rioter spraying officers with a fire extinguisher.) A military veteran and avid supporter of the President, officer Sicknick had served with the Capitol force since 2008.

     Most Capitol cops left their guns holstered. However, as intruders smashed through a window on the door that led from their corridor to the Speaker’s Lobby, a plainclothes officer on the other side drew his pistol. As Ashli Babbitt, 35 climbed through the opening the officer fired. She was quickly attended to but her wound proved fatal. Here’s an excerpt from a statement by Capitol police chief Steven Sund:

    As protesters were forcing their way toward the House Chamber where Members of Congress were sheltering in place, a sworn USCP employee discharged their service weapon, striking an adult female. Medical assistance was rendered immediately, and the female was transported to the hospital where she later succumbed to her injuries.

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Ms. Babbitt was reportedly unarmed. Her husband and family said that she was a patriot and a U.S. Air Force veteran. Her social media account displayed fervent support for the President and endorsed far-right positions on a host of issues.

     Three other protesters died from unspecified “medical emergencies” suffered during the siege (one reportedly fell to his death while climbing.) More than fifty officers sustained non-fatal injuries, a few considered serious.

     None of the intruders openly flaunted firearms and most let members of the media carry on with their work. No reporters were apparently hurt, although at least a couple were observably pushed around. Yet as one pores through the profusion of news accounts about the melee (this clip is from the L.A. Times print edition) the unmistakable tenor is that the intruder’s aggressive behavior gave Capitol staff and legislators abundant reason to fear physical harm. Here’s an outtake from “Inside the assault on the Capitol: Evacuating the Senate” by the Washington Post’s Paul Kane:

    It was 2:15 p.m. Wednesday and the U.S. Capitol was under assault, the most brazen attack on Congress since terrorists hijacked an airplane and attempted to slam it into the building more than 19 years ago. On Wednesday, a pro-Trump mob crashed into the building in a historic first that sent Washington into lockdown and prompted the type of evacuation that congressional security officials have been planning since 9/11 but had never had to execute.

     How did the rioters get in? Check out Google Earth’s satellite image of the Capitol. It’s a vast place with a cornucopia of entry points. Controlling access would require miles of fencing (think “border wall”) and an immense, continuous police presence. Until D.C. police showed up, Capitol police were vastly outnumbered and officers guarding the exterior were quickly overrun. That, of course, is exactly what the rioters had counted on.

     Let’s personalize this. You’re a Capitol cop. Say that a dozen flag-waving but visibly unarmed anarchists approach a bashed-in entryway. In a few moments they’ll be in a supposedly “secure” area, rubbing shoulders with legislators. Do you shoot them? Legally, can you?

     Probably not. According to the Code of Federal Regulations (10 CFR 1047.7) Federal officers can only use lethal force to protect themselves or others from “imminent danger of death or serious bodily harm” or when trying to keep someone who poses such threats from fleeing. Here, for example, is the FBI’s plain-language rule:

    FBI special agents may use deadly force only when necessary — when the agent has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the agent or another person. If feasible, a verbal warning to submit to the authority of the special agent is given prior to the use of deadly force.

Federal law (18 USC Sec. 1752) makes it a misdemeanor to illegally enter or engage in disruption in a restricted Federal zone, such as the Capitol and its grounds. Violations become felonies when someone carries a dangerous weapon or firearm or their acts cause “significant bodily injury.” Simply trying to arrest an unarmed someone – even  for a felony – is by itself insufficient for using lethal force. That requires a threat of “death or serious bodily harm.”

     Visuals-rich pieces in the New York Times (click here, here and here) aptly depict what took place. Rioters easily pushed through and circumvented a depleted Capital police force that remained outside. And here a bit of explanation is called for. Capitol cops’ core function – their raison d’etre – is to protect legislators, staff and authorized visitors. Realizing what was up, most scrambled inside to do just that. This was not the time to tie up critical resources by making petty arrests.

     Natch, the rabble took advantage. Storming the building, they climbed walls, broke windows and gained mass entry by breaking through exterior doors to the Rotunda. Videos posted by NBC News show what happened inside. As a few officers use pepper spray and such to slow the horde down, their colleagues frantically shepherd legislators and staff into the Senate and House chambers and pile furniture against the doors to block access. One photo depicts plainclothes officers pointing their sidearms at a protester who is peering into one of the galleries where legislators had hunkered down. Another portrays officers outside a chamber as they watch over several arrestees.

     Five persons lost their lives: Officer Brian Sicknick, Ms. Ashli Babbitt, and three intruders who died from unspecified “medical emergencies” during the siege (one supposedly fell to his death while climbing.) D.C. Police Chief Robert Contee reported that “valiant fighting” left fifty-six officers injured. Several were seriously hurt, including one who was “snatched into a crowd” then beaten and tased.

     In its initial wave of prosecutions, the Department of Justice accused fourteen rioters of committing Federal crimes. Nine face charges of misdemeanor illegal entry. Among these is Arkansas man Richard Barnett, the smug fellow who was photographed with his feet on a desk in the office of the Speaker of the House. Allegations against the other five are more serious, including alleged threats, assault, possession of loaded handguns, and, for one defendant, possession of explosives.

     D.C. police officers arrived in force during the melee to help clear intruders from the interior. Again, taking persons into custody can tie up multiple cops, so not everyone could be arrested. In the end, D.C. police made sixty-eight arrests. Federal agencies are now poring through photos and videos to identify additional interlopers who are deemed worthy of being charged. Those who broke windows and doors and carried away artifacts are first in line. (Click here for a New York Times list of “notable arrests” as of January 10.)

      So far, the most serious unprosecuted offenses relate to the deaths of officer Sicknick and Ms. Babbitt. Officer Sicknick’s assailants are yet to be named. Ms. Babbitt, an intruder, was killed by a Capitol police officer, who has been placed on leave. His status is in the air. Did her actions and demeanor pose a reasonable fear that she might hurt someone? We’ll update both cases as developments occur.

     Was the mob “storming” foreseen? Pointing to “violent clashes, stabbings and acts of destruction” that happened during a similar rally in December, D.C. Mayor Muriel Bowser, who was very critical of the response, had warned of impending violence for weeks. And while the New York Times discovered no “broadly organized plan to take action,” its reporting suggested that something big might happen. “Storm the Capitol” had come up online 100,000 times during the preceding month. Far-right forums bulged with posts “threatening violence” over the fraud that supposedly cost their hero the election, and user comments were replete with goodies such as “pack a crowbar” and “does anyone know if the windows on the second floor are reinforced?” Here’s what a former Secretary of Homeland Security recently said:

    You didn’t need intelligence. You just needed to read the newspaper...They were advertising, ‘Let’s go wild. Bring your guns.’ You don’t need to have an FBI investigation. You just need to be able to be able to read.

     On the other hand, Representative Tim Ryan (D-Ohio), whose committee funds the Capitol police, denied there was any advance intelligence of a “storming.” Ditto Capitol police chief Steven Sund, who is resigning over the debacle along with the Masters-at-Arms of both Houses. Chief Sund called the episode completely unanticipated and “unlike any I have ever experienced in my 30 years in law enforcement here in Washington, D.C.”:

    Maintaining public safety in an open environment – specifically for First Amendment activities – has long been a challenge. The USCP had a robust plan established to address anticipated First Amendment activities.  But make no mistake – these mass riots were not First Amendment activities; they were criminal riotous behavior.

     Unfortunately, the President’s stirring of the pot helped make the “unanticipated” inevitable. On December 19 he tweeted “Big protest in D.C. on January 6th. Be there, will be wild!” His final call to duty (with a Twitter link, no less) came on Tuesday, January 5th:

    I will be speaking at the SAVE AMERICA RALLY tomorrow on the Ellipse at 11AM Eastern. Arrive early — doors open at 7AM Eastern. BIG CROWDS!

That evening thousands gathered at a pre-rally event south of the White House to hear “speaker after angry speaker” denounce the stolen election and identify the “Democrats and weak Republicans, Communists and Satanists” who deserved blame. There were sizeable delegations from far-right groups including the “Oath Keepers,” the “Proud Boys” and “Q-Anon,” which promote conspiracy theories and point to Biden’s election as evidence that America is being subverted from within. And while tactical gear wasn’t the common mode of dress, some in the audience carried pepper spray and clubs and wore helmets and flak jackets.

     They returned in force early the next morning to hear their main man. According to NBC News, park authorities originally permitted the event for ten-thousand, but the President’s exhortations had likely driven up attendance, and the crowd wound up about three times that size. And they got what they came for. Here’s an excerpt from Eric Trump’s warm-up remarks:

    Have some backbone. Show some fight. Learn from Donald Trump. And we need to march on the Capitol today. And we need to stand up for this country. And we need to stand up for what’s right.

Here’s an outtake from his father’s closing words:

    ...nobody until I came along had any idea how corrupt our elections were...but I said something is wrong here, something is really wrong, can't have happened and we fight, we fight like hell, and if you don't fight like hell you're not going to have a country anymore...So we are going to--we are going to walk down Pennsylvania Avenue...and we are going to the Capitol, and we are going to try and give--the Democrats are hopeless, they are never voting for anything, not even one vote but we are going to try--give our Republicans, the weak ones because the strong ones don't need any of our help, we're try--going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue.

And thousands did (natch, sans the Donald). While most either kept on walking or paused to demonstrate – legally – on the Capitol’s vast greenspace, a rabid contingent several-hundred strong split off. Inciting each other through word and deed, they high-tailed it for the building. And ran smack-dab into officers whose leadership hadn’t prepared them for the storm. Or the potentially threatening nature of the “stormers.” While there is no proof at present that their activities were coordinated, the mob bristled with members of far-right groups. It also included personalities such as Nick Fuentes, a star of the far-right Internet media, and Q-Anon booster Jake Angeli, the fellow in a fur coat and horns.

     As media accounts make clear, enforcement-wise things quickly turned desperate, and D.C. police and other law enforcement agencies were summoned. But the delay in battening down the hatches enabled the violent breach of an American treasure, leading to vandalism, injuries and deaths. A cascade of blame has followed. Given all the warnings, why did police fail to prepare for the seemingly inevitable? Here’s what former Senate sergeant-at-arms Frank Larkin thinks:

    The police should have defined a hard line and there should have been consequences for crossing it. The fight should have been outside. Not inside. To have that confrontation at the door, that was a losing formula.

Ditto the head of the Capitol police union, which called on the chief and his top commanders to promptly resign: “This lack of planning led to the greatest breach of the U.S. Capitol since the War of 1812” (that’s when the Brits set the Capitol on fire.)

     Still, former Capitol cop Jose Cervino, who planned security for protests and events, wasn’t sure that the President’s anticipated comments left a realistic strategy available:

    No one expected the president to say, ‘Hey guys, let’s all go down to the Capitol and show them who’s boss.’ That is a completely different thing that no one’s ever planned or prepared for. How could you?

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And once the impossible happened, officers couldn’t turn to the one measure that would bring the episode to an end:

    We have the members and we have the leadership secured. Is it correct to start shooting people? I can’t imagine that I would be happier today if we found out we kept the crowd out, but wound up shooting 40 people.

     There was another concern. Feds and D.C. police are still smarting from heated criticism about their enthusiastic crackdown on June racial protests near the White House. Their purpose, it’s said, was in part to keep hostile crowds away from the fence-encased, supremely distanced and heavily guarded residence of the President. Six months later, officials in charge of Capitol security worried that hardening the “people’s house” would lead to similar complaints.

     Of course, the Capitol is no White House. It’s a wholly different venue, supposedly welcoming to all sides of the spectrum. There are even visitor galleries! But in our current, deeply polarized atmosphere, some politicians (and their lawyers) seem determined to encourage their followers to exercise their worst qualities. Regretfully, deaths and injuries happened. Yet as short-staffed as they were, police were able to keep legislators and staff from harm. Yet some of what happened off-site raises alarm. We’ve heard about the pipe bombs that were found and disarmed near the Republican and Democratic party offices. Now consider these episodes:

  • A 70-year old Alabama grandfather showed up in a pickup stuffed-full with “an M4 assault rifle, loaded magazines, three handguns and 11 Mason jars filled with homemade napalm [i.e. Molotov cocktails.]” He carried a pistol in his pockets.
  • A Georgia man and fervent Trump booster texted a profusion of inflammatory, threatening comments, i.e., that he was taking a “s-ton” of 5.56 mm ammunition and was “thinking about heading over to Pelosi C—’s speech and putting a bullet in her noggin on Live TV.” FBI agents tracked him to a hotel. They seized an assault rifle, a pistol, ammunition and drugs.

     Effectively “securing” the Capitol against a repeat intrusion – and the air is thick with warnings about Inauguration Day – might require measures that would in effect remove a national treasure from the public sphere. (Fencing is being installed as we write.) That may not be what we want, but unless our dueling tribes come together as the Americans they ostensibly are, and exercise some common sense in how they go about their business and communicate with their supporters, it’s what we’re surely going to get.


9/19/21  Deterred by warnings that they were being “set up” for arrest, few demonstrators showed up at the September 18th. “Justice for J6” rally at the Capitol, held to protest authorities’ treatment of the January 6th. rioters. Those who came encountered re-installed fencing and a large police presence. Stung by arrests and prosecutions, most far-right groups including the “Proud Boys” declined to participate in the D.C. event. Protests in other areas were also few and muted.

9/12/21  Capitol police announced that the January 6th. intrusion led to 38 internal investigations for alleged misconduct. None of the 26 officers identified were deemed by prosecutors to have committed a crime. But the agency “sustained” internal charges and recommended discipline against six: “Three for conduct unbecoming, one for failure to comply with directives, one for improper remarks, [and] one for improper dissemination of information.” Action involving a seventh officer is pending.

9/9/21  More than two-hundred Capitol rioters were charged with “obstruction of an official proceeding,” a serious felony punishable by up to twenty years imprisonment (18 USC 1512[c][2]). But some judges are questioning whether their behavior substantially differed from other rioters who were charged with misdemeanors, such as entering a restricted area or being disorderly (18 USC 1752). Bottom line: is the felony charge unconstitutionally vague?

9/4/21  QAnon’s “Shaman,” Jacob Anthony Chansley, the horned, fur-wrapped devil who has been in custody on multiple charges since his January 9th. arrest for the Capitol breach, pled guilty to  “Obstruction of an Official Proceeding.” He reportedly faces three years imprisonment.

9/3/21  Charging that the arrests on January 6th. were politically motivated, “Look Ahead America,” a group founded by former Trumpist Matt Braynard, is planning a September 18th. protest at the Capitol. Police are gearing up, and there are signs the fence may be reinstalled. Whether other groups might show up is unknown, but the Proud Boys have supposedly declined, calling it a setup to justify more arrests.

8/24/21  Capitol police cleared the police lieutenant who shot and killed Ms. Ashli Babbitt as she tried to climb into an area that officers had secured to allow legislators to flee. According to the agency, “The actions of the officer in this case potentially saved members and staff from serious injury and possible death from a large crowd of rioters.” DOJ lawyers ruled in April that the lieutenant’s actions had been justified and that he would not be charged.

8/15/21  D.C. officer Jeffrey Smith’s survivors filed a wrongful death lawsuit against two persons whom private researchers identified as his attackers. According to the plaintiffs, officer Smith suffered a severe blow that caused a traumatic brain injury, left him constantly weepy and unable to sleep, and led him to commit suicide.

8/7/21  A 44-year old New Jersey gym owner, Scott Fairlamb, and a 22-year old Seattle man, Devlyn D. Thompson, are the first to plead guilty to assaulting officers during the Capitol breach. Fairlamb admitted he “shoved and punched” an officer, while Thompson said he struck an officer with a collapsible baton. Both were placed in custody and face prison time. (Click here and here for the official case details.)

8/4/21  Four law enforcement officers who defended the Capitol on January 6 have committed suicide. Three: Gunther Hashida (EOW: 7/29), Kyle DeFreytag (EOW: 7/10) and Jeffrey Smith (EOW: 1/15) were D.C police officers; one, Howard Liebengood (EOW: 1/9) was with the Capitol police. Officer Smith’s widow recounted her husband’s troubled text message during the assault: “London has fallen”, and his painful convalescence from injuries suffered when struck by a rioter with a metal pole.

7/27/21  Four Capitol officers testified as House Democrats opened their probe of the January 6th. assault. They recounted “near-death” experiences in graphic detail. One said that rioters tried “to gouge out his eye”; another that he “was beaten unconscious” and Tasered. According to a police sergeant, multiple rioters announced that “Trump sent us.” Republicans have boycotted the inquiry.

7/21/21  Mark Sami Ibrahim, 33, a military veteran and rookie DEA agent, was charged with unlawfully entering the Capitol grounds while armed, then lying about it when questioned. Ibrahim, a fervent right-winger, carried a “Liberty or Death” flag, had his DEA-issued pistol, and wore his badge on his belt. He had already given DEA notice that he would soon resign. For the complaint with pictures, click here.

7/20/21  The first felony sentence in the Capitol assault was handed out to Paul Hodgkins, 38. A resident of Tampa, his claim to fame was carrying a Trump 2020 flag onto the Senate floor. Hodgkins pled guilty to obstructing a legislative gathering and soulfully apologized. He got eight months.

7/1/21  The House created a thirteen-member select committee to “investigate the facts, circumstances and causes” of the Capitol riot and issue a report with “findings, conclusions, and recommendations for corrective measures.” It will be controlled by Democrats. Click here for the document.

6/26/21  Washington D.C. police officer Michael Fanone remains on leave, recuperating from a heart attack and brain injuries sustained from being beaten and Tasered by the mob that stormed the Capitol. He recently asked House minority leader Kevin McCarthy, apparently unsuccessfully, to denounce the storming, which reportedly injured “nearly 140 officers” and led to seven deaths. McCarthy has opposed forming an independent commission to examine the assault, so House Speaker Nancy Pelosi announced she will form a House committee for that purpose.

6/25/21  According to the Department of Justice, more than five-hundred persons have been arrested thus far for participating in the Capitol attack, including one-hundred for assaulting an officer. For a detailed list of Federal defendants, including names and charges, click here.

5/29/21  A Democratic-led move to create a “January 6” commission of inquiry on the Capitol riot passed the House but failed by six votes to gather a filibuster-proof sixty votes in the Senate. Only six Republican senators voted “yea”; five of them had also supported impeaching ex-President Trump. Senate Republican leader Mitch McConnell (R-Ky) called a special commission “extraneous” because DOJ and congressional committees are already looking into the siege.

4/26/21  Should all Capitol defendants be treated alike? Slapping down a lower court’s blanket denial of bail, an appeals panel distinguished between two types of accused: “In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.”  NY Times

4/4/21  A mentally ill man “slipped” his car through a Capitol gate and rammed it into a barrier, striking two Capitol police officers. Noah Green, 25 stepped out with a knife and one of the officers shot him dead. But the officer’s partner, William “Billy” Evans, an 18-year veteran, succumbed from his injuries. While legislators are anxious to bring down the unsightly security fencing installed after the assault and once again allow citizens to approach the Capitol’s exterior, this tragedy has caused a reassessment.

3/16/21  Federal agents arrested two men, one from West Virginia, the other from Pennsylvania, for spraying a toxic substance into the face of three officers during the intrusion. One of their victims was Capitol police officer Brian D. Sicknick, who later succumbed to unspecified injuries. DOJ release

3/4/21  Maj. Gen. William J. Walker, commander of the D.C. National Guard, testified that he was “stunned” that the Defense Department refused to immediately authorize sending in troops to help besieged Capitol police. Gen. Walker said he had received a “frantic” call from former Capitol police chief Steven Sund advising that his officers had been overrun, but that more than three hours would pass before superiors authorized his request to mobilize the Guard.

Capitol police reported that members of a militia, possibly the “Three Percenters,” had planned a repeat assault on the Capitol for March 4. That’s reportedly the day when adherents of QAnon apparently believe that former President Trump, whom they admire, will return to power.

2/24/21  Three former officials in charge of Capitol security testified that none of the intelligence they received informed them that an invasion was planned. According to former Capitol police chief Steven Sund, “We properly planned for a mass demonstration with possible violence. What we got was a military-style, coordinated assault on my officers and a violent takeover of the Capitol building.”

2/13/21  Described by one officer as “scarier than two tours as a soldier in Iraq,” the assault on the Capitol severely tested the mental health of its police. “Several” officers reportedly contemplated suicide in subsequent days, and one turned in their weapon. Mental health has now become a priority. But a move to classify the two officer suicides that took place as “line of duty” deaths lacks official support.

2/3/21  Two Capitol police officers who were present during the assault have committed suicide. On January 9 Capitol police officer Howard Liebengood, 51, who had been on the job fifteen years, killed himself while off duty. He is the son of a former Senate Sergeant-at-Arms. On January 15 officer Jeffrey Smith, 35, a 12-year veteran, killed himself while on his way to work. Officer Smith had been injured during the attack. Assault on the Capitol special topic

1/27/21  According to the Wall Street Journal, the FBI’s focus has shifted from the near-term to the long. Beyond documenting and prosecuting individuals who intruded into the Capitol, large teams of agents are poring over evidence, including social media, to craft conspiracy cases alleging that organized extremist groups planned the assault well in advance.

1/26/21  Yogananda Pittman, the Capitol’s acting police chief, told a House committee that preventing an incursion into the Capitol would have foreclosed having an “open campus” that allowed protesting. She testified that the agency knew “that militia groups and white supremacists organizations would descend on Washington, D.C.” and that “there was a strong potential for violence” and apologized for a failure to adequately prepare. Two days before the attack the then-police chief had asked his board to declare an emergency and immediately bring in the National Guard but was turned down. In his testimony, the Guard’s commanding general said that the Pentagon had taken away his original authority to order in troops, leading to an hour-long delay to send them in once the assault took place.

1/24/21   As many as eight-hundred protesters may have breached the Capitol. That has led hard-pressed authorities to ponder not charging those who simply committed misdemeanor unlawful entry, but whose behavior did not involve violence, threats or destruction.Some officials, though, fear this would send the wrong message. Prosecutors are most interested on identifying planners of the storming so they canbe charged with felony “seditious conspiracy.”

1/23/21  Ms. Ashli Babbitt was shot dead by a Capitol police lieutenant who had taken up a “strategic choke point” to allow legislators to flee. His official account, as related by a third party, emphasized the chaos and violence. Radio traffic was replete with accounts of force, requests for backup, and, he thought, a mention of shots being fired. He couldn’t tell whether Ms. Babbitt and her companions were armed. He didn’t know that officers were in the hallway she occupied, nor that a tactical team was coming.

1/14/21 “Dozens” of individuals on an official FBI terrorism watch list (TSDB, Terrorist Screening Database, with “hundreds of thousands” of entries) reportedly attended pro-Trump rallies in D.C. on the day of the attack. Most were white supremacists. FBI agents had supposedly visited many in advance to discourage them from attending.

1/13/21 Acting A.G. Jeffrey Rosen, who took over after A.G. Barr’s resignation in December, stated that DOJ is aware that protests are planned for the Inauguration. He pledged that DOJ would support the exercise of Constitutional rights but “will have no tolerance whatsoever for any attempts to disrupt the peaceful transfer of power [or] for any attempts to forcefully occupy government buildings.”

One day before the assault on the Capitol a leaked FBI memo warned about online exchanges between extremists who were preparing for “war,” designating places to meet and form groups, and circulating plans of the facility’s tunnels. But the memo’s author was also concerned about encroaching on free speech. A earlier FBI memo warns that members of the Boogaloo movement plan to hold rallies across the U.S. and stage armed marches on State Capitols on Inauguration Day, January 20.

1/12/21 A Federal “sedition and conspiracy task force” with anti-terrorism and intelligence components has taken over the Capitol investigation. So far 170 suspects have been identified and seventy have been charged. In addition to illegal entry their crimes include theft and damage, possessing weapons, stealing security information, assaulting officers and felony murder. One accused, Lonnie L. Coffman, had a wide assortment of loaded firearms as well as “a crossbow, several machetes, a stun gun and [incendiary] devices.” Another, Aaron Mostofsky (he wore fur pelts) grabbed a Capitol police shield and a vest. He had posted a video claiming that Trump was cheated out of ten million votes.

1/11/21  Three days after helping defend the institution he served for fifteen years, Capitol police officer Howard Liebengood, son of a former Senate Sergeant-at-Arms, apparently took his own life. He was off-duty (see 2/3/21 update.)

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Special topic: Assault on the Capitol

Ideology Trumps Reason     Cop? Terrorist? Both?