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The shooting Saturday by Vallejo police of a man who had passed out inside a car with a gun bears striking similarities to two other Bay Area police shootings: All ended in death and sparked criticism from the slain men’s families that officers grossly overreacted and should have defused the situation.
But use-of-force experts say that the sight of a gun poses a potential threat to police even if it’s on an unconscious person, and as the person awakes, officers have to make split-second decisions.
“Those officers always have that potential threat ... during these situations,” said Jeff Martin, an attorney and former San Jose police sergeant who is a use-of-force consultant. “Should they make the decision that makes it more likely they’ll be shot or should they make a decision biased in favor of their own survival?”
Civil rights experts, meanwhile, say police have to do more to avoid a violent outcome.
The latest case occurred at a Taco Bell drive-through line where two officers responded to a report of a driver later identified as Willie McCoy, 21, slumped over in his silver Mercedes shortly after 10:30 p.m. Officers saw a handgun on the man’s lap and called for backup, according to Vallejo police. A third officer arrived and the three tried to open the car door — without waking him — to take the gun but the car was locked.
Three other officers arrived and put a Vallejo police car in front of McCoy’s vehicle to prevent him from moving forward — because his car was still in drive. Officers were in the process of putting a car behind McCoy’s car when he awoke and looked at them, police said.
They commanded him to put his hands up but said McCoy reached for the gun and they opened fire, police said. McCoy, a local rapper known as Willie Bo, died at the scene. The gun McCoy had was a fully loaded .40 caliber semi-automatic handgun with an extended magazine, police said.
All six officers are on administrative leave and the shooting is under investigation.
McCoy’s family questioned the police response and hired attorney John Burris, who represented a family in one of the other Bay Area cases involving a similar police shooting.
“It’s a really big loss, really, really unexpected,” David Harrison, McCoy’s cousin said Monday. “There’s a lot of grieving going on, trying to make sense of this thing.”
Burris said his team will investigate whether McCoy’s rights were violated that night.
Burris also represents the family of Joshua Pawlik, a 32-year-old homeless man shot and killed by Oakland police last March. In that case, police responded to a report of a man with a gun sleeping between two houses in West Oakland.
Police tried, over 45 minutes, to wake Pawlik while keeping a safe distance from him. Body-camera footage shows officers tried to wake him with a loudspeaker, made use of an armored military vehicle and repeatedly told him to “get (his) hand off the gun” when Pawlik began to move.
Police said Pawlik failed to heed the commands, prompting four officers to open fire.
Last week, Pawlik’s family filed a lawsuit against the department for excessive use of force.
The Alameda County district attorney’s office is reviewing the shooting.
Pawlik’s death came nearly three years after the fatal Oakland police shooting of Demouria Hogg, 30. In that case, Hogg was found passed out behind the wheel of his car on the Lakeshore Avenue off-ramp of Interstate 580. For more than an hour, police worked to create a peaceful resolution. They blocked off the area, broke out a passenger-side window and used loudspeakers to try to rouse him.
When Hogg abruptly woke up and reached toward his gun, an officer fired her gun twice, killing him.
Hogg’s family filed a federal lawsuit against the city, alleging that police had used excessive force on a person who posed no immediate threat. The Oakland City Council in 2016 agreed to settle the case for $1.2 million.
Prosecutors from the Alameda County district attorney’s office reviewed the case and declined to file criminal charges against the officers.
Burris acknowledges that in the Hogg and Pawlik cases, Oakland police “did a lot” to try to secure the scenes and wake the men up.
“(But) it seems to me that, from a position of safety, you have to account for the fact that the person is going to wake up and not know who’s out there,” he said.
Burris said police should consider that a person waking under such circumstances could have a startled reaction.
In all three cases, police have said the men reached for or had their hands on firearms. But Burris argues they may not have realized where they were, or that they were surrounded by police.
“The gun is there, but that in and of itself should not be the basis for this quick overreaction,” he said. “The point of the matter is there should be ways to handle this situation without immediately killing that person.”
Martin, the use-of-force consultant, said there is historical context for when it’s appropriate for an officer to fire on an unconscious person, pointing to the 1998 killing of Tyisha Miller in Riverside.
Miller had been found unconscious with a handgun in her lap, sitting in her car at a gas station, according to the Riverside Press-Enterprise. Police officers broke the glass and said Miller reached for her gun, prompting officers to fire 23 shots at her.
The shooting and ensuing protests pushed then-California Attorney General Bill Lockyer to impose reforms on the Riverside Police Department, including use-of-force training.
“If you just stand up, put one or both of your hands into your coat or pants pockets, how long does it take you to pull that hand out and point it at something?” Martin said. “You’re talking about well under a second, maybe around a half a second, and so those officers always have that potential and deadly threat during these situations.”
The Vallejo Police Department’s use-of-force policy states that officers are justified in using “deadly force” when the subject poses what an officer “reasonably believes would be an imminent threat of death or serious bodily injury.”
“Imminent does not mean immediate or instantaneous,” according to the policy. If the person has a weapon and officers believe the person intends to use it against the officer, the policy said that it would be justified to use deadly force.
The question about when police officers should use lethal force is the subject of at least one bill introduced in the Legislature this year. The bill, backed by the American Civil Liberties Union, could change the California Penal Code to authorize deadly force only when there are no non-lethal alternatives.
“We want to make sure officers, when they have an opportunity to, use alternatives to deadly force,” said Lizzie Buchen, legislative advocate for the ACLU. “Officers have a lot of tools at their disposal.”
In California, it’s legal for a person with a permit to carry a concealed weapon but illegal to carry the gun openly.
“Guys that carry guns know it’s illegal to have an extended magazine,” said Don Cameron, a former Berkeley and BART police officer who now teaches at Bay Area police academies.
If officers are preparing to engage with the person, they could try to divert traffic out of the area. It’s not always possible, Cameron said.
“If you have the time, that’s fine, but if the guy has a gun and he’s asleep, at some point, you can’t really sit there all day long.”
Barry Donelan, a sergeant with the Oakland Police Department and president of the Oakland Police Officers’ Association, commended his officers for the “forethought” they put into the Pawlik incident.
“They set up a perimeter, stopped all traffic from coming in there, tried to wake him up, have him drop the gun,” he said. “And, sadly, that’s not how it ended up.”
When officers approach an unconscious subject, policy dictates that they give the individual time and space, Donelan said, stressing that the officers did just that.
“But ultimately when the suspect brings it to a head, which he did, that’s when we come to the sad conclusion that we faced,” Donelan said.
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