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Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 1:25 pm
by KBCraig
Here is another case where being punched in the head justified deadly force. And note TXI's (least-) favorite phrase, "He feared for his life."

This isn't the best area of Texarkana, but it's far from the worst.

http://www.texarkanagazette.com/news/lo ... icer-7.php

Man dies after fight with officer
Police say officer shot 25-year-old out of fear for his life and others
By: Terri Richardson - Texarkana Gazette - Published: 02/18/2008

A 25-year-old Texarkana, Texas, man was shot and killed Sunday morning during a fist fight with a Texas-side police officer at the Family Dollar store at 3019 S. Lake Drive.

Jermain D. Henry was pronounced dead at Wadley Regional Medical Center before noon Sunday. He was taken there by LifeNet ambulance, said Sgt. Shawn Fitzgerald, spokesman for the Texarkana, Texas, Police Department.

The officer who shot Henry, who was unarmed, was injured during the physical altercation and was taken by LifeNet ambulance to CHRISTUS St. Michael Health System.

Store employees called police to the store at 11 a.m., complaining that Henry was trespassing.

“He (Henry) was banned for being rude and using foul language with the employees,� said Rick Pardue, a Family Dollar district manager.

The first officer to arrive located Henry near the checkout counter, Fitzgerald said.

“Upon making contact, the officer asked the suspect to step away from the counter so that he could speak with him,� said Fitzgerald.

The conversation quickly escalated into a verbal altercation and then a physical confrontation. During the fight, the officer and Henry fell to the floor. Henry wrestled his way on top of the officer and continued to strike him repeatedly in the head and upper body, Fitzgerald said.

“As the assault continued, the officer was able to retrieve his service weapon and shoot the suspect, thereby knocking him off the officer,� said Fitzgerald.

The officer was table to call for an ambulance for Henry and himself. The incident occurred near the cash registers, just inside the front doors.

“No one else was injured in the fray,� Fitzgerald said. “The officer feared for his life and for the lives of those in the store.�

The Family Dollar was surrounded by police cars, and crime scene tape cordoned off the parking lot. Detectives arrived after the initial flood of patrol officers.

Texas Ranger Jay Womack also responded. The police department’s standard operating procedure in the case of an officer-involved shooting calls for the Rangers to conduct an independent investigation.

The Metro Crime Scene Unit arrived about noon..

Onlookers and potential customers drove by slowly on U.S. Highway 59. Even with the police tape and apparent activities, some stopped to see if the store was open.

The store did not reopen Sunday, but will be open today.

“We are just concerned for our employees. They were in shock over this,� said Pardue.

“They shouldn’t have to be subject to things like that at work,� he said. “We’re a family-oriented business and that’s the way we want to keep it.�

Several onlookers stopped out of concern for employees, whom they consider their friends through patronage.

“I come in at 11 every morning,� said Michael Cridell, a cook at the Dairy Queen restaurant only 25 yards from the Family Dollar store.

“When I pulled up, a lady ran out, one of the employees. She was hysterical and was shouting, ‘He’s shooting, he’s shooting,’� said Cridell, who believes he heard the first shot fired.

“I heard the first shot go off after I got out at Dairy Queen. She ran across to where I was and I called 911 just as a squad car was pulling up,� said Cridell. “The second officer went into the building, and I heard two more shots.�

Police did not confirm that more than one shot was fired.

Cridell said numerous officers then arrived.

After ushering the female Family Dollar employee and one of her customers over to the Dairy Queen, Cridell watched EMTs take the wounded suspect from the store.

“I saw them carry him out on the stretcher. They were doing CPR on him as they brought him out,� said Cridell, who said he did not approach the front of the store.

“There is a relationship between the workers there and the workers at our place,� said Cridell. “Everybody goes between the two and develops a relationship with the workers.�

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 2:01 pm
by DoubleJ
Well, at least they didn't use his other favorite phrase, "brandishing."


sounds like somebody needs a hand to hand class.

and somebody needs a reminder not to fight a cop. oh, wait...... nevermind.

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 2:03 pm
by M9FAN
If I were reduced to being on my back with a BG on top of me pummeling my head, I would not hesitate to draw and fire either. :fire The article makes no mention of the offender's size (compared to the LEO's size) or whether or not the offender was under the influence of any type of mind-altering substance. Glad the good guy lived to see another day...

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 2:11 pm
by locknload
M9FAN wrote:If I were reduced to being on my back with a BG on top of me pummeling my head, I would not hesitate to draw and fire either. :fire The article makes no mention of the offender's size (compared to the LEO's size) or whether or not the offender was under the influence of any type of mind-altering substance. Glad the good guy lived to see another day...
Or, perhaps, the BG was "off" his mind-altering meds and shouldn't have been! :rolll

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 2:14 pm
by dukalmighty
I gotta bring up one thing,how many oficers have been killed by their own weapons that a BG wrestled from them during a physical confrontation,if I'm in physical contact ad BG is tryig to get my firearm i'm in fear for my life,from the information i have seen the individual was already being confrontationl for whatever means whether he was under the influence of a mood altering substance or had psychiatrc issues,should the officer of backed off and waited for backup arm chair quarterbacking is easy but the officer was and he made the decision,I have seen small guys whoop bigger guys,don't judge the fight n the dog by the size of the dog

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 2:54 pm
by flintknapper
The conversation quickly escalated into a verbal altercation and then a physical confrontation. During the fight, the officer and Henry fell to the floor. Henry wrestled his way on top of the officer and continued to strike him repeatedly in the head and upper body, Fitzgerald said.

As with most news reports….we need more information. We are not told the size and strength of either person, the intensity of the attack, or if the “deceased� ever reached for the officers weapon.
From initial reports….it sounds like the officer was in a disadvantaged position and was getting his rear end handed to him. I have no doubt he was greatly concerned for his safety at this point.



“No one else was injured in the fray,� Fitzgerald said. “The officer feared for his life and for the lives of those in the store.�
The statement above was made by a dept. spokesperson and may well be a direct quote from the officer, but not necessarily.

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 6:41 pm
by KC5AV
I just think it's sad that it got to that point. I would hope that when the patrons of the store realized that the officer was in danger, they might have stepped in and dispensed a little bit of vigilante justice on the guy.

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 6:58 pm
by flintknapper
KC5AV wrote:I just think it's sad that it got to that point. I would hope that when the patrons of the store realized that the officer was in danger, they might have stepped in and dispensed a little bit of vigilante justice on the guy.

My guess is that it all happened pretty quickly and the "shock factor" hadn't yet worn off of any patrons/witnesses.

Generally, the populace is hesitant to step in and help regardless of the time frame involved. :???:

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 7:59 pm
by M9FAN
flintknapper wrote:
KC5AV wrote:I just think it's sad that it got to that point. I would hope that when the patrons of the store realized that the officer was in danger, they might have stepped in and dispensed a little bit of vigilante justice on the guy.

My guess is that it all happened pretty quickly and the "shock factor" hadn't yet worn off of any patrons/witnesses.

Generally, the populace is hesitant to step in and help regardless of the time frame involved. :???:
:iagree:

Re: Blows to the head as justification ("Feared for his life")

Posted: Mon Feb 18, 2008 8:08 pm
by longtooth
Could well have been a store of only ladies too. Some women are willing to fight back but many women dont even know they can fight back. Never knew it was an option.

Re: Blows to the head as justification ("Feared for his life")

Posted: Tue Feb 19, 2008 4:43 am
by Glock 23
when someone is on top of you pounding your head in.....I dont blame him at all for using lethal force.

Re: Blows to the head as justification ("Feared for his life")

Posted: Tue Feb 19, 2008 9:33 am
by mbw
Please correct me if I am wrong about this-

When I took my first CHL course way back when, my instructor told me that "In TX, any blow about the head or neck with a closed fist is considered use of deadly force". In that class I asked him where in the TX statues I could find that information. He stated that is was case law with no further information. That instructor is no longer in TX so I am not able to follow up with him.

Can anyone here confirm this statement? Maybe one of you lawyers have any thoughts?

Thanks

Re: Blows to the head as justification ("Feared for his life")

Posted: Tue Feb 19, 2008 9:58 am
by seamusTX
That is my understanding also: Blows to the head, neck, or chest with fists or a blunt instrument are deadly force. Certainly many people have been killed by such blows, including boxers. I would venture to say this is firmly settled as a principle of law, but as always IANAL.

Here's a case, U.S. v. Ruiz, in which the Fifth Circuit Court of Appeals upheld the conviction of a Texas police officer for kicking and hitting an arrestee in the head: http://www.usdoj.gov/crt/briefs/ruiz2.pdf

- Jim

Re: Blows to the head as justification ("Feared for his life")

Posted: Tue Feb 19, 2008 11:19 am
by mbw
seamus-

Thanks for the information. The case you posted several times meantions that in Ft. Worth "Kicks and or Knees to the head" are considered use of deadly force. There was no meantion of fists but I would assume that the same or a similar rule would apply.

Kind of makes you think twice about punching someone!

If the facts of the shooting in the above case are as stated, it looks as though the officer was totaly justified in useing deadly force to counter the others prior use deadly force.

Re: Blows to the head as justification ("Feared for his life")

Posted: Tue Feb 19, 2008 1:55 pm
by flintknapper
mbw wrote:Please correct me if I am wrong about this-

When I took my first CHL course way back when, my instructor told me that "In TX, any blow about the head or neck with a closed fist is considered use of deadly force". In that class I asked him where in the TX statues I could find that information. He stated that is was case law with no further information. That instructor is no longer in TX so I am not able to follow up with him.

Can anyone here confirm this statement? Maybe one of you lawyers have any thoughts?

Thanks

Well.....not to pick his statement apart...but common sense tells us that more must be considered than just the proximity of the blows.

Clearly, a weak, frail 80 yr. old man doing his darnedest to take out a strapping 6'-4"...220 lb. 20 yr. old isn't going to pass the litmus test here.

"REAL" potential for serious bodily harm or death is the standard.