The issue is, what can the public reasonably expect of its police officers? Christie Blatchford,
Defence lawyer, witness disagree on whether teen posed ‘imminent threat’
It was with one answer that Robert Warshaw, the key prosecution witness at the trial of Toronto Police Const. James Forcillo, put into manageable size the bottomline issue with which jurors in these cases must always grapple.
The issue is, what can the public reasonably expect of its police officers?
What Warshaw said, and he was answering a particular question, was this: “We’re not talking about the plumber, the schoolteacher, but a trained police officer … He is a trained police officer and should be held to the standard police officers are trained to do.”
Warshaw was in the final throes of a long cross-examination by Peter Brauti, lead lawyer for the 32-year-old officer who is pleading not guilty to second-degree murder in the July 27, 2013, shooting of Sammy Yatim.
The two men had been going round and round for more than a day, their positions basically irreconcilable.
Brauti, defending an officer who shot and killed someone in the line of duty, was making the point that officers must make split-second decisions, under unimaginably fraught conditions, the inference that anything else was Monday-morning quarterbacking.
Warshaw, a former police chief in several U.S. cities and qualified here as a use-of-force expert, was insisting that the creative officer with his eye on the ball — that ball being the ethos of the Toronto Police Service and many others, the preservation of life — would have tried almost anything, including less than ideal alternatives such as pepperspraying Yatim, to avoid having to use lethal force.
Ontario Superior Court Judge Ed Then and the jurors know that about 20 seconds before he fired the first volley of three shots, Forcillo asked that a sergeant with a Taser be called to the scene.
“That was a good and prudent thing to do?” Brauti asked. “Yes,” said Warshaw.
“It shows you that Officer Forcillo was interested in resolving the situation without deadly force?” Brauti asked. “Yes,” said Warshaw.
Brauti said it would make no sense that with that frame of mind, Forcillo would not then try to delay or slow the standoff in order to give the sergeant time to arrive.
Warshaw agreed, but said it also made no sense that Forcillo would have asked for the Taser “and not exercised the de-escalation techniques he had learned” in training, such as trying to engage Yatim in conversation.
“Twenty seconds is an eternity,” Warshaw said. “Officer Forcillo could have and should have said to himself — ‘I asked for a Taser, a Taser is en route, I have to keep this guy calm.’ ”
By that point, the 18-year-old Yatim had moved away from the open streetcar doors, and Forcillo told him: “You take one step in this direction and (indecipherable) shoot you, I’m telling you right now.”
(Warshaw objects to such warnings, believing they may be self-fulfilling prophecies.)
What appears to have precipitated the first shots was that Yatim disobeyed that order, took a single step and was in the midst of a second one.
As Warshaw put it another time, “These are trained police officers, trained by an organization that values (first) preservation of life … if a less-than-lethal piece of weaponry is en route …”
“That’s easy to say in a nice suit and a comfortable chair,” Brauti sniped.
And Warshaw said, “These are unquestionably tense situations, police officers out on the streets (have to deal with) knives and firearms …” In other words, he was suggesting, police face risks all the time, police work is inherently dangerous, and it’s the training officers receive which allows them to make judgment calls in high-stress situations.
As he said on another occasion, “This is a trained police officer, proficient in firearms, not a weekend shooter …”
Brauti presented Warshaw with a complex hypothetical question, mirroring the actual shooting but with defence calculations included, and asked if Forcillo couldn’t have reasonably concluded he was in “imminent threat of serious bodily harm or death. Agree?” “No,” said Warshaw. “You don’t agree?” Brauti asked.
“That’s correct,” Warshaw said, and explained he disagreed with the premise that Yatim was “moving forward” at the time Forcillo fired.
“If Mr. Yatim was conducting himself in an assaultive manner, was picking up speed,” he said coolly, “you’d get a different response.”
Brauti mocked some of the less-than-lethal ideas Warshaw has said Forcillo could have used, everything from throwing a baseball at him to blocking the streetcar doors with a police car (to totally confine him) to using pepper spray.
For instance, at one point, Brauti said that had Yatim been pepper-sprayed, it might have caused him to run out the front door, whereupon he would have been shot anyway.
“You just killed Mr. Yatim, as the expert,” he cried. “No,” said Warshaw, “I didn’t.” His fundamental view is that Sammy Yatim, for all that he had a knife in his hand, never really posed a serious or immediate threat to Forcillo or the other officers — and that they should have been able to deal with it.
Warshaw agreed that his suggestions weren’t perfect, but said that they were “viable options … If one doesn’t work, try another. At the end of the day, because the options weren’t used, someone died.”
As he put it once, “It’s a risky job, Mr. Brauti.”
Prosecutors Milan Rupic and Ian Bulmer are expected to close their case on Monday.
We’re not talking about the plumber, the schoolteacher, but a trained police officer ... He is a trained police officer.