Ricardo Diaz Zeferino fidgeted but appeared to keep his hands up for most of the tense encounter as multiple Gardena, California, police officers aimed their guns at him on June 2, 2013. But when he took off his baseball cap and briefly held down his hands, police opened a hail of gunfire — killing the unarmed man and wounding Eutiquio Acevedo Mendez, who was standing near Zeferino.
A video obtained by the Los Angeles Times shows the grisly dashboard camera footage, which the city of Gardena fought to keep secret in court. The shooting had resulted in a $4.7 million settlement for the relatives and family of Zeferino and Mendez, but media argued the footage was in the public interest.
Warning: graphic footage of the shooting:
The stop began when Sgt. Christopher Cuff, responding to a call about a bicycle theft that was at first reported as a robbery, stopped Mendez and another man, Jose Garcia, as they were riding their bikes in the Los Angeles County city, the Times's Matt Hamilton reported. Zeferino later arrived, reportedly to tell police that Mendez and Garcia weren't involved in the theft, and three other officers showed up as well, holding up their guns at the three unarmed men. From there, the situation escalated to the footage released by the Times.
The footage is horrifying. But the video and the court battle surrounding it also provide a real-life example of why the debate about police body and dashboard cameras is far more complicated than simply strapping recording devices on cops' outfits and vehicles.
The battle for this video shows the big question with police cameras
The court battle surrounding the Gardena shooting footage — which involved the Times, the Associated Press, and Bloomberg — exposes the big debate surrounding police body and dashboard cameras, an issue that reached the mainstream in 2014 after the high-profile police killings of Michael Brown in Missouri and Eric Garner in New York.
A big issue with the growing push for more police cameras is how they should be adopted. There are several concerns: accountability, privacy of the cop and public caught in footage, potential manipulation of the footage, and cost. Advocates, skeptics, and critics of the cameras acknowledge that these factors will need to be balanced out if body cameras are widely adopted.
But supporters of the cameras worry the concerns could be taken too far, negating the potential gains in transparency and accountability if police are given too many protections.
If accountability is the main focus, then it's easy to imagine a scenario in which the Gardena footage failed at this goal. What if the judge had been more concerned about protecting the police, or believed police had already been held accountable by the $4.7 million settlement? What if the recording took place in a city or state that didn't allow the public to obtain this kind of footage out of privacy concerns? What if police wholly controlled the footage? These are the potential scenarios that could have held back the recording from release, which means the public would never have seen what appears to be a clear example of police in the wrong.
At the same time, there are genuine privacy concerns involved. Advocates of privacy rights worry that police will essentially become moving cameras, providing footage of all public — and even some private, if they respond to a call at a private home — activity. This concerns police as well, who worry that their bosses and media could manipulate footage of a bad or distasteful joke to get an officer in trouble.
"Police sense of humor is different from what the general public expects," Ed Mullins, a sergeant in the New York City Police Department (NYPD) and president of the NYPD sergeants union, said in September. "Do I get chastised for making jokes? Things like that need to be clear, because, in any workplace, people joke."
The Gardena example provides a case that seems more clear-cut because the footage is directly related to the shooting and shows a moment that the public deserves to see. And the fact that it might not have been released, had the city gotten its way, shows just how hard it could be to hold police accountable even when potential misconduct is recorded.
Cops can legally shoot when they reasonably perceive a threat
Now that the Gardena footage is out, a question is whether cops were legally in the right when they shot and killed Zeferino, who was unarmed and appeared to pose no harm. But police only need to reasonably perceive a threat to legally fire — a threat doesn't have to be actually present.
Constitutionally, "police officers are allowed to shoot under two circumstances," David Klinger, a University of Missouri St. Louis professor who studies law enforcement officers' use of force, said in August. The first circumstance is "to protect their life or the life of another innocent party" — referred to as the "defense-of-life" standard by police departments. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect poses a dangerous threat to others.
The logic behind the second circumstance, Klinger explained, comes from Tennessee v. Garner. That case involved a pair of police officers who shot a 15-year-old boy as he fled from a burglary. (He'd stolen $10 and a purse from a house.) The court ruled that cops couldn't shoot every felon who tried to escape. But as Klinger said, "They basically say that the job of a cop is to protect people from violence, and if you've got a violent person who's fleeing, you can shoot them to stop their flight."
The key to both of the legal standards — defense of life and stopping a fleeing violent felon — is that it doesn't matter whether there is an actual threat when force is used. Instead, what matters is the officer's "objectively reasonable" belief that there is a threat.
That standard comes from the other Supreme Court case that guides use-of-force decisions: Graham v. Connor. This was a civil lawsuit brought by a man who survived his encounter with police officers but was treated roughly, had his face shoved into the hood of a car, and broke his foot — all while suffering a diabetic attack. The court didn't rule on whether the officers' actions had been justified, but said police couldn't justify their conduct solely based on whether their intentions were good. They had to demonstrate that their actions were "objectively reasonable," given the circumstances and compared with what other police officers might do.
What's "objectively reasonable" changes as the circumstances change. "One can't just say, 'Because I could use deadly force 10 seconds ago, that means I can use deadly force again now,'" Walter Katz, a California attorney who specializes in oversight of law enforcement agencies, said in August.
In general, officers are given lot of legal room to use force without fear of punishment. The intention behind these legal standards is to give police officers leeway to make split-second decisions to protect themselves and bystanders. And although critics argue that these legal standards give law enforcement a license to kill innocent or unarmed people, police officers say they are essential to their safety.
Data for police shootings is spotty, but it's particularly bad for Hispanic victims
Over the past year, a lot of the debate has focused on statistics that show police are far more likely to shoot and kill black men. But the three men stopped by police in the Gardena shooting were Hispanic. Do Hispanic people face similar disparities?
The answer is we simply don't know.
The most reliable data on police shootings, gathered by the FBI through local and state agencies, is extremely limited — to the point that some criminal justice experts disavow analyzing it altogether — since it's based on voluntary self-reporting. But the data is especially limited for Hispanic victims of police shootings.
Samuel Walker, a retired criminal justice professor from the University of Nebraska Omaha, said there's no research on how many Hispanic victims are left out of police shooting data, but he has reason to believe they're undercounted.
Walker pointed out that other parts of the criminal justice system sometimes classify Hispanic people as white, likely overestimating the number of non-Hispanic white people shot and killed by police and underestimating Hispanic victims. In many cases, determinations of race and ethnicity are made by low-level officials, potentially leading to even more errors based on perceptions and prejudices regarding race.
"In short," Walker wrote in an email, "we have no reliable data on Hispanic/Latino people shot and killed by the police."