Officer’s lawyer ridicules use-of-force expert
‘One of the worst ideas anyone could come up with,’ attorney says of alternative to opening fire on Sammy Yatim
In an aggressive cross-examination peppered with objections from the Crown, Const. James Forcillo’s lawyer attempted to dismiss a use-offorce tactics expert as a “Monday morning quarterback” who is “in way, way over (his) head in this case.”
The jury has heard Forcillo fatally shot 18-year-old Sammy Yatim eight times as the teen held a knife on an empty Dundas streetcar in July 2013. Forcillo has pleaded not guilty to second-degree murder and attempted murder and is expected to argue that his use of lethal force was both justified and in defence of himself and bystanders.
Robert Warshaw, the Crown expert and a former American police chief who now specializes in reforming police departments dealing with problems including excessive use of force, has testified that Forcillo failed to use several reasonable alternatives to lethal force that night, including de-escalation techniques.
Lawyer Peter Brauti challenged several of these alternatives as dangerous or ineffective, criticizing War- shaw — who spent several years as a chief or assistant chief in various police departments until 1998 — for a “lack of practical experience” in the area of police tactics and use of force.
The jury has been instructed to consider Warshaw’s evidence only on what alternatives Forcillo had at the time the shooting happened — not from the moment Forcillo arrived at the scene.
Among the suggestions: de-escalating the situation by asking Yatim questions; stalling or delaying to allow a Taser or more officers to arrive; closing the streetcar doors or blocking them; using pepper spray to disorient Yatim; or throwing a police baton at him.
“Instead of yelling ‘Drop it,’ (as Yatim stepped forward) he should be engaging in saying ‘Do you want a drink of water?’ ” Brauti demanded.
“I think you are frivolizing my alternatives,” Warshaw replied.
Brauti ridiculed the suggestion that Forcillo or another officer throw a baseball or a police baton at Yatim to distract him as “one of the worst ideas anyone could come up with.”
“I think you are mocking what I am saying,” Warshaw said at one point. “I am,” said Brauti. “You are mocking what I am saying instead of understanding my point,” Warshaw continued. “Police officers are extremely creative.”
He said Forcillo could have asked other officers on scene to assist him and noted that police are trained in diversion tactics.
“But if you threw a baton at Yatim, then he would be armed with a knife and a baton,” Brauti said.
Warshaw admitted this was not the best alternative, but it was still a reasonable, safe alternative to shooting.
The suggestion that the streetcar doors be closed via a switch by the front of the vehicle is “tactically unsound” because it could put officers at risk, Brauti said.
“Is it Officer Forcillo who is going to be holding his gun and creeping up to the switch?” Brauti said, dramatically miming the movement. Or, he continued, should Forcillo ask one of the other officers to go within two feet of where he could be firing a weapon?
Warshaw responded that an officer could have reasonably reached the streetcar switch by hiding alongside the front of streetcar, possibly without Yatim even noticing.
“I think police officers recognize this can be a dangerous job. There are risk factors that run concurrent with a police officer’s responsibility,” Warshaw said. “This is the job police officers sign up for. This is how they preserve life and how they protect the public.”
Brauti: “What they don’t have to do is put themselves in situations knowing it could end their own lives.”
Warshaw responded: “I’m not suggesting any police officer put themselves in a situation knowing with certainty it could put an end to their own life. That’s a little bit different from police officers risking their lives or police officers executing tactical operations to get a certain outcome.”
Warshaw did agree that Forcillo’s commands for Yatim to drop the knife were appropriate and within police training. He also conceded that short, loud, simple commands are effective in most instances when dealing with someone who is in a crisis and fixated on something.
Forcillo and the other officers on scene were also concerned about a potential hostage situation if Yatim was not the only one on the streetcar, Brauti said.
Warshaw maintained closing the doors was a reasonable alternative because there was no indication that anyone else was on the streetcar. If there was genuine concern that someone else was on board, the officer should have requested the Emergency Task Force attend and delayed at all costs, he said.
If an officer did believe someone was on board and proceeded to fire nine times into the streetcar, with the possibility of ricochets, that would be reckless behaviour, he said.
Brauti and Warshaw spent some of the afternoon sparring over the degree of threat Yatim posed to the officers at the scene. Brauti said that an expert he intends to call will say Yatim, holding a 10-centimetre switchblade, posed a serious risk.
Warshaw maintained that Yatim posed “no risk or negligible risk” to the officers and that Yatim’s step forward, knife in hand, did not constitute an imminent attack on Forcillo.
“He wasn’t coming forward,” said Warshaw. “He moved. It’s all that happened, that he moved back to the position he was in initially.”
The trial continues.