There is little doubt Police involved shootings are some of the most misunderstood, controversial issues that face Law Enforcement.
Unrealistic public expectations regarding the use of less than lethal force or suggestions that sharp shooting Police Officer’s should wing suspects in the arms or legs do little to further the understanding of these tragic incidents.
As a former Homicide Unit Supervisor I was often called upon to direct Police Officer involved shootings or incidents where deadly force was used. Additional responsibilities included the need to complete a report analyzing the use of force, making determinations regarding the justification for the use of deadly force and identifying any issues related to policy.
In July of 2013 I wrote a story called, “The Shooting of Sammy Yatim – Justified or Not?”
The story included objective, in-depth analysis of a deadly shooting that occurred on a Toronto Street car that ended with the tragic death of a troubled young man. The story spread on social media and generated reactions from a diverse audience that included hostile and emotionally charged commentary, accusations of bias and the occasional open-minded viewpoint.
When I wrote the story my intention was to publish a dispassionate analysis of the shooting to counteract main stream media’s jaded, inflammatory and speculative reporting. The story was a cautionary work that encouraged people to resist the urge to rush to judgement.
Tragedy strikes again.
On Monday, December 2, 2013, Michael MacIsaac (47) was shot and killed by a Durham Regional Police Officer.
On March 23, 2014, a detailed account of the shooting was written by Jennifer Pagliaro and published on thestar.com, Canada’s largest online news website. Much like the reporting on the Yatim shooting, the article posed many questions but offered little in the way of answers. The report clearly questions the justification for the shooting.
Once again, I find myself encouraging people to resist the urge to rush to judgement.
Pagliaro reports MacIsaac was diagnosed with temporal lobe epilepsy, a condition that affects the areas of the brain that control memory and behaviour. The day before he died MacIsaac was running a fever, appeared dazed and had no appetite. He had a minor seizure his wife classified as, “typical,” and rested most of the day.
On Monday, December 2, 2013, MacIsaac booked off sick and stayed home to rest. Just before 10:00 am, he suddenly appeared naked in a hallway, was speaking but not making sense and seemed delirious. He was agitated and resisted his wife’s attempts to restrain him. He had never been violent before and his behaviour was troubling.
MacIsaac suddenly bolted out of his home, still naked, in near zero degree temperatures, with no socks or shoes on his feet. He ran so fast his wife couldn’t chase after him. In the next few minutes several people called Durham Police reporting a man acting in a strange manner. At one point, MacIsaac started approaching cars and banged on car windows with his fists while swearing at the driver to open them.
He was subsequently observed to enter a yard where he picked up a large rock from a garden. He then approached an occupied car while holding the rock in what can only be described as a menacing manner. Moments later MacIsaac disappeared on a porch and banged a small patio table off a side window breaking off its wicker top.
When he returned to the street MacIsaac was carrying a wrought-iron chair leg like a baseball bat.
At this precise moment, two (2) Police cruiser cars approached and three (3) Officers subsequently exited the vehicles with their service firearms drawn. As MacIsaac “stepped off the curb” one of the Officers fired three (3) times.
A witness indicated MacIsaac never swung the chair leg. She further reported she saw the Officers kick the chair leg from his hands once he was lying on the pavement before they handcuffed him. The Officers then covered him with a blanket and eventually turned him over to EMS.
Michael MacIsaac died from his injuries the next day.
In a video interview posted on The Star website MacIsaac’s wife Marianne states, “They mowed him down like a dog in the street. I can’t believe an Officer can do that to another human being.”
At another point she asks, “Why did he shoot? We know Michael had no lethal weapon in his hand, he was harmless, that’s the number one question?”
While I have a great deal of sympathy and compassion for Marianne MacIsaac, I respectfully suggest she may not have a full understanding of the elements that constitute a deadly force encounter.
A deadly force threat requires three (3) specific elements, a) Weapon, b) Intent and c) Delivery System – ie: the subject must be capable of using the weapon against someone.
In this case an argument could be made that all three elements existed;
a) Despite the suggestion MacIsaac “had no lethal weapon in his hand” it’s clear from the report he was armed with a deadly weapon (wrought-iron chair leg) capable of causing death or grievous bodily harm.
b) The requisite intent can be inferred by MacIsaac’s aggressive, agitated behaviour.
c) A delivery system existed if MacIsaac was in close enough proximity to the officers to launch a deadly attack with the chair leg. (In edged weapon attacks that distance may be within a range of twenty-one (21) feet.) The report indicates MacIsaac was shot when he “stepped off the curb.” An inference can be made from this information that he was closing the distance on the Police Officers when the shots were fired.
It’s unfortunate that Police Agencies have to lock down information when incidents like this occur. In a perfect world, widows and family members would be provided with full particulars of a deadly force encounter. In the world of criminal justice, the need to protect information, preserve evidence and maintain the integrity of investigations will always take precedence over the rights of grieving family members.
Having said that, I will venture to answer some of the critical questions at issue;
Q Was the shooting justified?
- Before that assessment can be made a detailed interview with the contact officer is required. His mindset, interpretation and articulation of the threat are essential elements required to arrive at any conclusion regarding his use of deadly force. Did the Officer have the reasonable belief that he, or anyone under his protection, was in danger of suffering death or grievous bodily harm? The shooters evidence will be heavily scrutinized and measured against other investigative findings to conduct a proper assessment.
Q Did MacIsaac possess a lethal weapon?
- Yes, there’s no question that a wrought-iron chair leg could be used as a weapon capable of causing death or grievous bodily harm.
Q Did MacIsaac have a delivery system?
- The distance between the contact Officer and MacIsaac will be an extremely important part of the puzzle. For a deadly threat to exist, the Officer must have had the reasonable belief that MacIsaac had the ability to inflict death or grievous bodily harm to him or any other Officer or civilian in his proximity. It appears evident from the report that MacIsaac had stepped off the curb and was moving towards the Police at the time he was shot.
- A significant omission in Pagliaro’s report is the lack of any information regarding the Police Officers verbal commands to MacIsaac in the moments preceding the shooting. Police Officers are trained to use verbal commands in deadly force encounters. I doubt the contact Officer exited his cruiser car and immediately started shooting without issuing any verbal commands.
As a former SWAT Team member I frequently participated in shoot or don’t shoot scenario training. The shoot or don’t shoot decision is one that is made in a fraction of a second. When conducting analysis of a deadly force encounter one must closely examine the events that immediately precipitated the shooting. In this case, critical questions remain unanswered;
- What verbal direction did Police give MacIsaac?
- What was his reaction to the verbal direction?
- Was he told to drop his weapon?
- Did he refuse to drop his weapon?
- Did he close distance on the Police Officers after being told to drop his weapon?
- What was the distance between the contact officer and MacIsaac at the time the shots were fired?
The answers to these questions are essential before anyone can make an assessment regarding the justification for the use of deadly force.
Q Did MacIsaac demonstrate the requisite intent?
- A strong inference regarding intent could be made by virtue of the fact MacIsaac armed himself with a potentially deadly weapon, was aggressive and was acting in an agitated state. Verbally aggressive language, gestures or a refusal to drop a weapon can also support conclusions regarding a subject’s intent. It’s also important to consider what information the contact Officer received prior to his encounter with MacIsaac.
Q What inference can be made by virtue of the fact only one Officer fired his weapon?
- No meaningful inference can be made without having the benefit of a full and complete understanding of the investigative results. Was the contact Officer in closest proximity to MacIsaac when the shots were fired? Did the other Officers have the benefit of cover or concealment? Did a cross fire situation exist that prevented the other Officers from shooting? Did the other Officers articulate the elements required to justify the use of deadly force?
Q Should the Officers be criticized for not using a de-escalation technique?
- It appears the MacIsaac shooting was a dynamic, volatile and escalating incident. Dynamic incidents offer little time for the use of de-escalation techniques. Deadly force encounters often require split second life or death decisions. Police Officers are trained to react to a deadly force encounter with deadly force. Officers will only attempt a de-escalation technique if no immediate threat of death of grievous bodily harm exists. In this case, it’s clear the contact Officer believed Mr MacIsaac presented an imminent deadly threat.
Q Should the Police have used a less than lethal force option?
- When faced with a deadly threat, Police Officers are justified in responding with lethal force and are not required to attempt to use less than lethal force options. (Pepper spray, Asp baton, Taser, bean bag rounds) In fact, sometimes, attempting to use less than lethal force options could be ill-advised or highly dangerous. When facing a deadly threat, the use of these less than lethal options should only be used in conjunction with deadly force options and only when circumstances dictate their safe use. Professional Police Officers trained in the use of force are able to articulate and justify their use of force and why less lethal options were considered to be either inappropriate or ineffective.
Although I can’t arrive at any firm conclusion regarding the justification for the use of deadly force in this incident, I am certain of one thing. The Police Officer who shot and killed Michael MacIsaac never woke up that morning with the intention of killing anyone, no less a man who struggled with mental health issues.
The Officer went on patrol that day to do his duty, that is, to serve and protect the citizens of Durham. In doing his duty he was dispatched to a dynamic, volatile situation and subsequently found himself in the midst of a deadly force encounter.
The truth is, Police Officer’s who use deadly force in the line of duty often suffer from serious emotional trauma after being involved in these events. I’ve witnessed those devastating effects on many occasions.
The investigation into the Police involved shooting of Michael MacIsaac must run its course before any conclusions can be made. The goal of the investigation will be to determine if the perceptions, actions and force used by the Officer in question were reasonable given the threat he faced.
That determination has yet to be made.
Pagliaro’s report raises many questions regarding the Durham Police investigation, SIU overlap, jurisdiction and competing interests. All of these issues detract from the core issue regarding the justification for the use of deadly force and should form part of a different conversation.
While the questions raised are not germane to the core issue, they should give members of the WPS pause for concern regarding the pending formation of Manitoba’s Independent Investigations Unit. The story demonstrates that roll out and operational issues may be both complex and wide-ranging.
Members of the WPS Executive should be alert to these issues.