Criminal justice professor: Topeka police officers had authority to search for gun before killing Dominique White

Before killing Dominique White, the two Topeka police officers who stopped him exercised broad authority to conduct an investigatory detention based on reasonable suspicion of criminal activity, extending to their efforts to retrieve his gun.

 

Their actions leading to the shooting can be explained by the report of shots fired that led officers to Ripley Park, said Justin Nix, an assistant professor in criminal justice at the University of Nebraska at Omaha.

Last week, The Topeka Capital-Journal published video of officers attempting to secure White’s gun before shooting him as he fled, prompting questions from readers about why it was necessary for Michael Cruse and the second officer to take White’s gun away.

Authorities were permitted to pat White down for their safety during the investigatory detention, Nix said. Such action was established in the 1968 U.S. Supreme Court case Terry v. Ohio, and investigatory detentions are commonly referred to as “Terry stops.”

White was barred from carrying a weapon because of prior felony convictions, and gunshot residue indicated he fired a gun shortly before the altercation with police. Discharging a firearm within city limits is a misdemeanor offense.

However, the two officers didn’t know White’s criminal background at the time of the encounter.

In a Facebook post, White’s stepmother, Molly White, said her stepson’s mistakes didn’t warrant being killed.

“The fact of the matter was that Dominique should not have had a gun and Dominique should not have ran,” she said. “That’s it! But that does not and did not justify him being killed.”

In general, there is a delicate balance between officer safety and the protection of individual rights, Topeka police Lt. Colleen Stuart said, and officers have to make a balanced assessment based on all details within the situation to take the best course of action.

State law says that Kansans 21 and older who aren’t otherwise prohibited can carry a firearm without a concealed carry permit. But Stuart said it is difficult to generalize across all possible scenarios.

“Along the continuum of situations an officer may take a firearm away (is) if a crime has been committed and the individual is being arrested,” Stuart said. “In another situation, such as a traffic stop, the driver may indicate they have a weapon in the vehicle. The officer may temporarily take control of the firearm during the encounter, giving it back to the driver at the conclusion of the stop. This all depends on a totality of circumstances — at the crux of every interaction, involving a firearm or not, is the level of communication and compliance.”

According to TPD’s policy on Terry stops, officers may inquire about a suspect’s name, address and an explanation of their actions. Use of force or restraints is permitted only if reasonably necessary, the policy reads, and excessive force is prohibited.

City of Topeka spokeswoman Molly Hadfield declined to comment on the grounds officers had in securing White’s firearm, instead encouraging enrollment in the city’s upcoming Citizens Academy.

“Many of the questions related to how and why the police operate in the manner in which they do will be addressed as part of the coursework,” Hadfield said.

Investigatory stops have provoked controversy over concerns it leads to racial profiling.

In New York City, the practice known as “stop and frisk” involved large numbers of people who were overwhelmingly black and Hispanic. Stop and frisk was dramatically scaled back in 2011, according to a New York Times story. Since then, violent crime has continued to drop, the Times reported in a December story.

In Massachusetts, the state Supreme Court published a 2016 opinion that referred to a Boston police study that found black men were more likely to be targeted in stops and frisks. The Supreme Court went on to conclude that while fleeing from police could be a factor in reasonable suspicion, fleeing “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled.”

White’s shooting death was ruled justifiable last week by Shawnee County District Attorney Mike Kagay. White, while running from police, hovered his left hand over the pocket containing the gun, making him a threat to use deadly force, Kagay said.

Nix said it was difficult to see if White’s hand was hovering over the pocket as if he might reach for the gun. But the video footage is less important than the threat the officer perceived in the moment, he said.

“If they felt there was probable cause to believe this man posed a significant threat of death or serious injury to others, their decision to shoot was justified,” he said.

Other factors in Kagay’s decision included evidence that White failed to comply with officers’ commands, his gun was loaded and gun residue was later detected on his gloves. However, Kagay also said that it was difficult to evaluate White’s intentions.

“From the perspective of the officers, it can certainly be argued that Mr. White was attempting to retrieve a firearm from his pocket,” Kagay said in a seven-page analysis of his decision. “However, it can also be argued that Mr. White was simply attempting to flee the scene.”

The decision not to file charges wasn’t one Kagay expected White’s family to agree with. The White family’s attorney, Gillian Cassell-Stiga, said she believes a constitutional violation was committed.

Officers shot him “just because he was running away,” she said.

The case is under administrative review with the Topeka Police Department’s professional standards unit, and the FBI has its own investigation.

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