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Over the past six weeks, settlement agreements have been reached in two separate Colorado cases involving a driver who’d been sleeping behind the wheel of a car reported as stolen, who was shot and killed by law enforcement officials after he woke up and tried to drive away. And while dollar amounts haven’t been made public in either case, Denver paid just shy of $1 million in compensation to the family of seventeen-year-old Jessie Hernandez, who died under nearly identical circumstances in 2015, and a similar incident in North Carolina was settled in June for $3 million.
That fatal police shootings like these keep happening is frustrating to Chuck Wexler, executive director of the Police Executive Research Forum, a think tank based in Washington, D.C. After all, officers are prohibited from shooting into moving vehicles “by most major police departments in this country,” he says. “But unfortunately, there are still departments that are not aware of this as a best practice.”
Such agencies can’t blame their failure to adopt the policy on concerns about it being new and unproven. The concept has been around for half a century – 2022 marks the fiftieth anniversary of the order that provided a blueprint for those that followed – and has been shown to be effective time and again to prevent tragedies that have proved to be very expensive around the country, including Colorado.
In late August, a settlement was reached regarding the Halloween 2020 killing of John Pacheaco, who’d been passed out in a stolen truck on Colorado Boulevard seconds before Glendale Police Department officers Chandler Phillips and Neil McCormick unloaded nineteen shots into it. The GPD and members of Pacheaco’s estate mutually agreed not to discuss the details of the deal publicly.
On September 28, Westword reported that the Colorado State Patrol, represented by the Colorado Attorney General’s Office, had agreed to settle a lawsuit over Trooper Gregorio Retana’s killing of nineteen-year-old Ryan Millsap in Jefferson County in 2018. At the time, Sean Simeson of Englewood-based Baumgartner Law, one of the attorneys for Millsap’s mother, said that the settlement was “pending approval by a state committee, which is merely a formality.” Nonetheless, both the CSP and the AG’s office rejected Westword‘s request for information under the Colorado Open Records Act, citing a statute enforcing confidentiality in arbitration and mediation.
Pacheaco, Millsap and others might have had a much better chance of surviving their encounter with police officers had the departments paid heed to ten-year-old Ricky Bodden’s encounter with New York City police.
On August 15, 1972, Bodden was a passenger in a stolen Pontiac being chased by NYC officers, who were shooting at the vehicle. After the car stalled, Bodden and two other occupants abandoned it, with one winding up in a crouched position that made an officer think he was about to open fire – so he beat the suspect to the trigger.
That crouch resulted in fourteen-year-old William Graham being shot in the shoulder – and Bodden was hit in the back and killed.
Bodden’s death led most immediately to two days of rioting. However, it also persuaded the New York Police Department to thoroughly examine its policies and procedures. “The then-police commissioner said, ‘Why are we doing this? We have to have a strict prohibition against this, and we have to tell officers what’s expected of them,'” Wexler recounts. “So they created a policy that simply states that officers are prohibited from shooting at a moving vehicle unless the force used is something other than the vehicle – which basically means unless the officers are being fired upon. The only exception would be something like a terrorist ramming incident.”
Critics argued that the shooting ban would put the lives of police officers in greater danger, but as documented in the Police Executive Research Forum’s “Guiding Principles on Use of Force,” while there was an enormous decline in shootings, there were no increases in injuries or fatalities among law enforcement officers. In 1972, according to Wexler, NYPD officers “had either hit or shot at 950 vehicles. Two years later, it was cut down to about 450,” and that number kept falling. Last year, the department’s officer-involved shooting total was fifty.
Since then, law enforcement agencies from coast to coast have followed New York City’s lead, including the Los Angeles Police Department and the Denver Police Department, whose shift was directly related to the uproar over the 2015 Hernandez shooting. But the procedure hasn’t become universal, for reasons Wexler attributes to scale and habit.
“With over 16,000 police departments in the United States, many of them with under 25 officers and no national standards, old practices are hard to change,” he says. “And in some departments, the issue is as much about culture as policy. If someone doesn’t stop, people think it gives them the right to use whatever force is necessary. But today, we need to talk in different terms, including about the sanctity of human life and the fact that everyone deserves to go home at night – the police officer, but the car thief, too.”
There are plenty of such crimes in Colorado, which had the most car thefts per capita in the U.S. last year. But as Wexler points out, stealing a car is considered a relatively low-level crime that frequently results in minor punishment. “How can you justify using deadly force on someone stealing a car when practically no one even goes to jail for it anymore?” he asks. “Why would you think you’d need to shoot them over a car? Do you care about the car, or do you care about the lives? If that person gets away, you can get them another day.”
This philosophy explains why Wexler prefers not to focus on the size of settlements in cases like those involving Pacheaco and Millsap. “There are a million good reasons why you shouldn’t do this, and certainly the liability factor is one,” he acknowledges. “But I’d rather talk in human terms. No one should die because they’re in a stolen car and they don’t stop. You can get that car back, or you can get back the monetary value. But you can’t get back a human life.”
Click to read the The Estate of John Pacheaco Jr. v. Neil McCormick and Chandler Phillips and Dianna Millsap v. Colorado State Patrol, et al.
