Today’s Law of Self Defense MEMBERS ONLY show provides an analysis of the shooting this past April 22 by LAPD Officer Toni McBride of razor-wielding non-compliant suspect Daniel Hernandez. Hernandez would die of his gunshot wounds.
Little seems to have been made of this shooting at the time, but now three months later the event is in the headlines, almost certainly as part of the propaganda campaign kicked off by the lawyer for the family of Hernandez, who are seeking some large sum of money from the LAPD and Los Angeles government.
As part of that propaganda campaign, tremendous attention has been focused on the fact that Toni McBride is not only a law enforcement officer but also a high-level competitive shooter. The lawyer’s seeking to sue over Hernandez’ death are suggesting that McBride fired her fatal shots not because it was tactically and legally appropriate to do so, but because she acted as an unlawful gunslinger.
As quoted in the LA Times newspaper, that lawyer asks:
“Do we want police officers to be gunslingers, or to live up to the LAPD motto, ‘to protect and to serve’?” said Arnoldo Casillas, an attorney representing the Hernandez family.
Today in our Law of Self Defense Show we do our standard after action analysis of the several videos we have of this shooting, apply the 5-elements of self-defense law framework in that analysis, and we’ll also explore the merits of using McBride’s competitive shooting history “against her in court.”
LEVEL 1 Core Class: Saturday 25, 2020
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Enjoy the show!
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Attorney Andrew F. Branca
Law of Self Defense LLC
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The Law of self-defense content you’re about to enjoy is presented for general educational purposes only. It does not constitute legal advice. If you are in need of legal advice, consult competent legal counsel in the relevant jurisdiction.
Hey folks, hopefully I am back and all of you can see me on the screen both on Facebook Live and in our members area over at the Law of Self Defense website. If you are a Law of Self Defense member, I urge you to preferably use the membership dashboard over at the Law of Self Defense website because that’s where the substance of today’s show will be.
Today’s show is of course going to be about the shooting in LA by police officer Toni McBride of a razor wielding non compliant aggressor, which got little attention at the time and happened April 22 of this year, but he’s getting a lot more attention now that the Hernandez family has acquired an attorney seeking money and building up the defense narrative to pressure the politicians into paying him to go away.
So it’s back in the news of course along with all the other George Floyd cases and all these police alleged police misuse of force cases in the news, Toni McBride has popped back up on the public’s radar screen.
For those that don’t know I am Attorney Andrew Branca for Law of Self Defense. Thank you very much. Where we do all things Self Defense Law. And we do a series of shows every week, usually at least three, sometimes four, shows a week on self-defense law events, use of force events captured on video, and News/Q&A, which we’ll do tomorrow. I’ll let everybody know about that as well. Anything else that comes to our attention?
Now we have been doing the shows for a very long time as simply Facebook Live shows, but we are moving most of our content over to our Law of Self Defense Members area. So if you’re a Law of Self Defense Member, that’s where you should access most of this content. The one show of the week that we are continuing to do on a publicly accessible basis will be our News/Q&A Show, which we normally do Thursdays but it got pushed back to Friday, tomorrow and this week, we’ll do those live Thursdays, but tomorrow, Friday 4pm Eastern time.
And anybody can participate in the shows you don’t need to be a paying member and we’ll talk about use of force events in the news and we’ll take your questions. Take them both live and if you email them ahead of time to email@example.com, we will consider them for inclusion in the show .
Again, if you’re a Law of Self Defense Member we will prioritize your questions over those of the general public.
So what do we have to cover today? Well, before I get into all that, let me see what else I have to let everybody know about. By the way, folks, before we cut over to just the members area of our content, if you’re not a member, and therefore at the moment are unable to join us there, you can become a member pretty much instantly by going to http://lawofselfdefense.com/showaccess, and paying just 99 cents for a two week trial membership, folks. Two week trial, 99 cents, absolute guaranteed money back if you decide you don’t like it, in fact, we’ll give you 200% of your money back if you decide you don’t like it in that two week period.
You’ll be able to join us for today’s show, and get instant access to hours and hours and hours of other earlier content that we’ve produced in both blog post video and podcast form all limited to our members. You can become a member right now at law ofselfdefense.com/showaccess for just 99 cents, folks. So hopefully 99 cents is worth the investment in your self-defense law expertise and how to apply that law in real world situations.
The last item I want to bring to everybody’s attention because time is now getting short for this, folks, is this Saturday, July 25. We’re doing our Law of Self Defense LEVEL 1 Live Online Class. This is our full day, seven hour plus course of instruction on self-defense law, the most comprehensive law based course of instruction and self-defense, a lot available anywhere and I include law school folks in that description. So we don’t spend much time learning this stuff in law school, a few minutes, perhaps, you will get a multiple of the amount of education a lawyer in law school gets attending this class, but we only do a few of these classes a year. We only have two more in this year. One of them is this Saturday. When those seats are gone, those seats are gone, folks.
So what do you learn in this class? Well, you learn about how the legal system really handles claims of self-defense, we learn about what the prosecution has to do to get a conviction and by extension, what you have to do to get acquitted. We explain our five elements of self-defense legal framework that applies in every state, we covered defense of others defensive property, interacting with the police in the aftermath of the use of force event. We provide guidance on developing your own customized legally sound, self-defense strategy, and a lot more.
In fact, I recently, of course, review the presentation in preparation for this Saturday’s class and I thought to myself, my God, we do a lot of stuff in this course. How many questions do we actually answer in the course of this level one class, and it’s over 100 very specific Self Defense Law questions, folks that unless you take this course, you probably don’t know the answer to or you think you know the answer and are mistaken which is even worse. And in case you can learn more about this course by pointing a browser to lawofselfdefense.com/liveonline. There’s also a little video there where I step through those hundred questions 100 plus questions that are answered in this course, the course is only about 150 bucks folks, which for a seven hour course is about $20 an hour.
If you call my office, I’ll be glad to have the same conversation with you that I’ll be having with the whole group on Saturday, but it will cost you $600 an hour folks, not $20 an hour. So that’s one way to think about it. This class is a 97% discount on what it normally cost to get this kind of information from me.
Okay, folks, I think that’s about all I have for the general audience. Again, if you are not yet a Law of Self Defense member but would like to participate in the show, you can do so instantly by pointing your browser to lawofselfdefense.com/showaccess.
And of course the topic for today’s show, as already mentioned, is going to be the Shooting by la police officer Toni McBride of the non-compliant razor wielding aggressor she had to face down in the street and the special attention that’s being brought to her competitive shooting background as the Hernandez family lawyer tries to use that background against her in court.
All right, folks, if you’re on Facebook, I will say do as always, please stay safe. And if you are in our members area joining us just hold on just a moment, we’ll do a quick 10 second relaunch of the show and dive right into the substance. Take care.
Alright, folks, we should now be back with just those of you who are lost self-defense members on the membership dashboard. I’m going to do a quick 10 second re intro slide for the show. So it’ll be there when we have the recorded replay for all the members who couldn’t participate live. Let me pull this down. pull that down. And here we go.
Okay folks, welcome. Welcome. Welcome, all you Law of Self Defense Members as always enormously grateful for all your support without all of you we could not do what we do here at Law of Self Defense, even if we don’t do the technology as well as we would like to be able to do it.
Today’s show is about the shooting by LA police officer Toni McBride. Mr. Hernandez, who was an aggressor in the street holding a razor blade being non-compliant with officer McBride’s commands and she ended up shooting him shooting him six times. He would die of his wounds pretty much died right there. It would appear from the video we have quite a bit of video of the shooting.
Now this didn’t make much in the way of headlines at the time, at least nothing that came to my attention but uh Of course, it’s gotten a lot more attention since especially in the last few days, when the Hernandez family lawyer has begun to make a big deal out of the fact that not only was Toni McBride, a uniformed police officer, she’s also a competitive shooter. The family lawyer referred to her as a gunslinger, suggesting that her use of force in this event was inappropriate, unlawful, and he should be paid millions of dollars to not sue the city of LA and the police department into oblivion.
So what we have here is we have a bunch of videos of this event most of them are pretty short. The whole event for McBride from when she got out of her car arriving at the scene, in response to 911 calls to when she fired the fatal shots is only about a minute and a half folks, it goes really quick.
By the way, she had that minute and a half to make every single decision she needed to make in the course of the confrontation. That’s all the time she had. And that wasn’t a function of any decision she made. That was a function of the conduct of Mr. Hernandez. So we’ll step through a Video of the shooting from officer McBride’s body camera. And then we have a couple of short videos taken by witnesses at the scene with their smartphones. So let me step through now we’re not on Facebook folks, we’re only broadcasting this to all of our wonderful members. So I’ve made less of an effort to strip out audio, I’m less worried about any kind of cursing that might be in the video because Facebook can get me in trouble, since I’m not broadcasting on their platform. But if you are sensitive to that, I don’t believe there is any. But if you’re sensitive to that, you might want to mute your sound while these videos are playing.
So now I’m going to go ahead and play the first video, which involves the video taken from officer McBride’s body camera. The first few seconds might be silent because these body cameras are often set up to not be recording audio all the time. There’s a delay in the audio recording. I believe that’s what’s at play here but pretty soon a few seconds in The audio will kick in.
We’ll see McBride get out of a car. She’s been called there along with other officers because there’s been a pretty bad car accident. Mr. Hernandez had apparently, he’s apparently a meth addict. He tested positive for meth after this event. He had deliberately it appears, crashed his truck into a number of his pickup truck into a number of other vehicles, and then had begun slashing himself with his razor blade in the vehicle non-responsive to offers for help.
Eventually, he starts walking out from behind his pickup truck towards officer McBride, where she begins to give him verbal commands to show her his hand stay back dropped the knife until eventually he got to a point where she felt compelled to shoot him twice. He fell down began to get back up, she shot him twice again. He appeared to try to get back up she shot him twice again. And then he was still and he was placed under arrest and handcuffed obviously for purposes of everyone’s safety.
But unfortunately for Mr. Hernandez, all six of those rounds fired by officers MacBride struck him with fatal effect. I would encourage you in particular to pay attention to the pacing of the shots, not just the fact that they’re fired in three deliberate pairs, but for a competitive shooter, this was a really slow pace of fire. I also some video I’ll share with you later of McBride shooting in a competitive situation. And her rate of fire is much much faster than we see her us here in her role as a police officer. So here’s that body camera footage. Here we go.
Okay, so that’s the video from the body camera then we have video from the one of the witnesses to the event. So I’ll go ahead and play that for you now.
Okay, so those are the three videos that we have of this shooting event. And of course, anytime we do any kind of analysis of a shooting event, we always apply our five elements of self-defense framework. And I’ll say upfront looks like a pretty solid shooting because it looks like most of the required elements for a claim of self-defense are here.
And of course those elements are innocence, imminence, proportionality, avoidance and reasonableness. So let’s see how they apply. In this context with officer McBride first of all innocence, who’s the initial aggressor in the confrontation must not be officer MacBride of her use of force has to be lawful.
But of course the element of innocence and the question of aggression really applies to unlawful aggression, unlawful threat or use of force and police officer is privileged to be the initial aggressor in circumstances dealing with a non compliant and or violent suspect that they are lawfully, detaining, arresting, stopping.
So an officer can initiate a threat or use of force in circumstances where someone who’s not a lawn officer might not be permitted to hear in this case, Officer McBride’s initiation of force is either lawful outright she’s got her gun drawn when she gets to the scene because she’s knows this is a violent, violent incident scenario. Certainly when the Hernandez comes around the vehicle and the she recognizes he is a something appearing to be a knife in his hand. Then he is initiating that use Right a force right there. And so she retains the element of innocence
What about imminence? Well imminence is an interesting question here. I’m gonna circle back to it in a moment.
Proportionality has to do with whether or not the threat being defended against is deadly or not deadly in nature. This was clearly a deadly force threaten nature. I believe I have an image of the weapon here. Let me take a look. See if I do yes, there it is. There’s the razor kind of an odd razor setup. I’m not familiar with that type, but two separate blades protruding from the front.
First of all, it’s not necessary that McBride recognize how short the blades were in this weapon. It doesn’t matter that it wouldn’t penetrate very much any kind of cutting edge tool used as a weapon is readily capable of causing fatal injury. We’re all a box cutter away from sitting on the curb watching all the blood flow between our fingers if our karate gets cut, folks, so this is clearly a deadly force weapon. No Question about that.
So we have the element of proportionality, because she was faced with a deadly force threat deadly defensive force would be appropriate. And of course, in this context, it’s not just that Miss McBride was potentially faced with the deadly force threat, although it appears clear that Hernandez was focused on her specifically was approaching, closing on her specifically, there are a lot of other people standing around, folks, by the way, don’t do that.
If you see cops with guns out. You don’t want to be in that area where gunfire is likely to happen. So the last thing in the world I’d be doing if I saw guns in my vicinity with their guns out is take out my camera start filming, I’m going to vacate the area. But any case officer McBride has to be concerned not just about the threat to her own life but to threaten the lives of other innocence. rather difficult to tell what the proximity might have been of Hernandez to other innocent people. We can see that the streets not that wide. He couldn’t have been too far away from anybody. But even if we only focus on offset McBride clearly there is deadly force threat in terms of proportionality.
What about avoidance? Well, believe it or not, those of you who don’t know this already might be shocked. California is a stand your ground state, California does not impose a legal duty to retreat before you can use deadly force and otherwise lawful self-defense. Now, you won’t find a standard ground statute in California, they don’t have one.
But law comes in more than statutory form. It can also come in the form of case law court decisions, and California has case law still valid going back to the late 1800s. affirming the privilege to stand your ground if you’re acting and otherwise lawful self-defense, and that law is reflected in California’s jury instruction CALCRIM 505, which instructs the jury explicitly that an otherwise lawful defender has no legal duty to retreat before they can use force and self-defense. In any case, of course, a police officer is not required to retreat anywhere, even in duty to retreat states if they’re acting in the capacity as a police officer. Officer to neutralize some apparent threat to the public or to themselves. So avoidance is checked off as well.
What about reasonableness? Well, reasonableness is kind of an umbrella element that applies to all the others or requires that the defender have a subjective good faith belief in the need to act in self-defense. I don’t think there’s much question that existed here. The more relevant question might be whether or not that belief was reasonable, would a reasonable and prudent person in this case a reasonable and prudent police officer have shared the perception of officer McBride that it was necessary to use deadly defensive force in this circumstance?
So where reasonableness really comes into play is now we can step back to the element we skipped over before which is the element of imminence Was there an imminent deadly force threat? Clearly, there’s a deadly force threat in the form of the razor blade, but wasn’t an imminent threat because we can’t use defensive force until the threat is imminent. It can’t be some past threat that’s over clearly doesn’t Apply here. But it also can’t be some speculative threat that might not ever happen. It has to be a threat that’s in progress or about to immediately occur.
And in the context of an impact weapon, which is what we’re dealing with here, a knife is an impact weapon, I guess, in theory, it could be thrown, but generally speaking, it’s used as an impact weapon was being used as an impact weapon here. If the person wielding the impact weapon is far enough away, that they can’t immediately bring it to bear well, then they’re not yet an imminent threat. If they’re close enough, of course, to bring it immediately to bear then they are in imminent threat. So a question of whether or not imminence exists in the context of impact weapons has to do with the distance between the aggressor and the impact weapon and their intended victim. And what is the relevant distance? Well, let’s take a look at this. See if I can pull that up.
Here we go. So, the classic framework for teaching this concept of distance being relevant relevant to determining whether a threat is imminent. When that threat is an impact weapon is something called the Tueller Drill, which comes to the conclusion that if you’re a defender with a pistol in a holster and the other fellow has an impact weapon, it’ll take you about a second and a half to draw your pistol get good center mass hits that are presumed for purposes of the Tueller Drill to be neutralizing of the threat. And if it takes you a second and a half to defend yourself, then the relevant distance at which that person becomes an imminent threat is the amount of distance they can cross in that second and a half and according to the tool or drill model, generated by a lot of empirical studies by Dennis Teuller and others, meaning they ran actual people over a measure distance for a second. Half. It turns out most people can cross 21 feet in a second and a half 21 feet is about one and a half car lanes, maybe a little bit shy of that, to give you a relevant sense. A
nd of course here we have in the imagery we have it occurs besides vehicles. Now the body camera in particular does seem to stretch out distance quite a lot. So it’s a little misleading. But the image I have up here we can see, Officer MacBride is actually a little just off to the right of the screen here. I have a second image that might be more helpful. Let’s see if I can pull that up. Yes, this one I think is a little bit better.
So there’s officer McBride in that circle on the right, here’s the moment of the first shot being fired at Hernandez, Hernandez is struck bending over there. He’s in the circle on the left. And the question is well, is that about 1.4 car lanes, and again, it’s hard to tell for much of the camera perspective, but I’d suggest it’s pretty darn close, close enough that it’s should be sufficient. Certainly this should not become an unlawful shooting because of a few feet difference in perceiving the distance from Hernandez to McBride.
I also want to point out by the way, how relatively calm McBride was throughout all this. Obviously, she’s stressed you can hear some degree of stress in her voice. But when someone is stressed to the point of loss of cognitive function, generally they’re their voice goes up a couple of octaves. I mean, grown men can sound like little girls, very high pitched voices. We don’t hear that in her voice. Also, the commands she gives are not only logical for the situation, but they’re in current internally coherent, she’s not giving internally inconsistent commands, for example, which we see sometimes happen in high stress, police use of force events. So she seems like she’s really got her game wired together.
In fact, there was an observation I made that I want wanted to share with all of you. One of the things we often suggest that people do in our courses, when we’re helping people providing guidance on developing a legally sound self-defense strategy. And we talked about how difficult it is to make good decisions while under life or death stress, the fact that stress reduces our cognitive bandwidth.
And it’s useful to have skills that let you overcome that deficit let you make more decisive decisions knowing they are well within the legal boundaries when you make them so that your mental wheels are not just spinning in mud, not getting traction in those moments when you need to make decisions quickly and again, hear officer McBride made all these decisions and something under a minute and a half folks, that’s all the time she was given to make this life or death choice.
And one of the techniques we suggest people consider is when they’re perceiving this scenario their life or death scenario or brainstorming in Safety before they’re ever involved in any kind of confrontation, but particularly if you’re actually being engaged by some threat. And you may feel that perhaps the threats not yet eminent you have perhaps the luxury of waiting before you act to actually use deadly force against that person. But you also recognize you may need to use deadly force against that person, should the situation further escalate, it can be helpful to make establish what I call decision lines or decision points.
So you might say for example, well, that person is on the other side of a car for me and they have a tire iron, but they can’t reach me at the moment. So I feel like I have the luxury of waiting of being patient consistent with safety. If however, they get around on the same side of the cars me that’s my decision point. It’s that instant that I will deploy deadly defensive force, because now there’s no longer an obstacle between us and they have become an imminent threat. That greatly amplifies the decision making process in the moment if you need to press that trigger, because you’ve already decided the criteria that will authorize that trigger.
And they’re not abstractor arbitrary criteria. They’re criteria that are consistent with what you know about the Law of Self Defense. And I couldn’t help but wonder as I watched this video if officer McBride had done exactly that had established a decision marker ahead of time, and then when Hernandez reached that marker, she had determined that at that point he would be a deadly force threat an imminent deadly force threat because he’d be close enough.
Now I’m speculating of course what was in her mind she hasn’t said any of this. But I’m wondering if this might have occurred because I noticed that there is let’s see if I can pull this up. This is the right image. So it’s a little hard to see but right now she’s This is her body camera image. The the larger of these two red circles here shows Hernandez he’s begun to approach You’re walking down the street, she’s giving him commands. Stay back, show your hands Drop the knife at this moment. She knows now that he has a knife, he continues to come closer, never pauses. He’s not moving very quickly, at least in this moment.
But he continues continues to come closer. And you notice in that smaller red circle, there’s a some object on the roadway. Presumably that’s something that came off one of the vehicles involved in the car accident.
But it’s there and it’s clearly in her line of view and Hernandez is approaching that object. And it’s a coincidence that when he reaches that object here at this moment, he’s his next step will bring him to that object and he is stepping forward. He’s still in motion. That’s the instant in which McBride fired the shot when he reached that object.
And I can’t help but wonder she had decided ahead of time that that was a decision line. If he stopped before if he dropped his weapon before well, then the whole situation changes and deadly defensive force may not be necessary. But if he’s continuing to close with that deadly weapon when he reaches that object, then he will have become an imminent threat, he will have become entered within that Tueller distance.
And therefore it would be appropriate, tactically and lawfully to use deadly defensive force at that point. Here we see it again from a different angle. This is from the witness camera angle. There’s Hernandez, he’s walking towards McBride, who’s just off to the right of this picture frame here and there in the red circle is that object in the road. And when does Hernandez fire that fatal set of shots? It’s right at the moment that Hernandez reaches that object. So just speculation there on my part, but it certainly seems as if that might have been the case.
And again, something I recommend to all of the law self-defense community to think about as a strategy for facilitating your ability To make good solid, decisive, legally sound decisions under the stress of a life or death attack, because you don’t want your decision making to be ambivalent. I tell everyone don’t fight, don’t get into fights you don’t need to get into the risks are too high. But it’s also true that when it does come time to fight, folks, you need to fight 150%. And right now, there is no more time to be ambivalent about whether or not you’re going to use force and having these kinds of decision lines, sound legally sound decision lines can help you beat the size of when it’s important that that’d be the case.
Another issue I wanted to comment on here because it tends to come up increasingly, is why didn’t the officers attempt to use some kind of non deadly force on Hernandez and there was in fact, a taser available. I don’t know if McBride had a taser on her person. I suspect she did because other officers on scene did have the Those tasers. Here’s a very short clip where we see a taser on an officers person. You’ll see a little red circle whoops. Sorry, folks. That’s not what I wanted to do. Let’s try it again.
And this does not seem to want to cooperate. See if I can come back. Well, in any case appears that little video clip does not want to be helpful for us today. Here we go. So this officer, they’ll freeze. Well, didn’t show you much. But that officer we were approaching that was McBride’s body camera approaching a fellow officer. He had a taser on his belt.
So the question is, well, why didn’t they try to use non deadly force less than lethal force? And McBride herself has heard asked me in the video if they have less lethal available, so why not The taser? Well, a taser is a wonderful instrument in the right hands, folks, but it’s not magic and it’s not appropriate for all circumstances. I’m going to play that little video of McBride and competition in a few moments. But here again, I have that video talking about the tool or distance.
And the tool or distance at which an approaching aggressor with an impact weapon becomes an imminent threat is according to the Tueller drill 21 feet. The really effective range of a taser when they work at all and they often don’t work, even within this range is about 15 to 25 feet. Now some of them do shoot their darts about 35 feet distance, but the prospect of getting too good hits on a suspect to 35 feet is not likely to say the least. So the really the effective range of the tasers typically believed to be between 15 and 21 feet which really happens to very closely bracket the exact distance at which the aggressor becomes that imminent deadly force threat with their impact weapon. So this is not a circumstance in which a taser would be a great tool.
Now, it might be if officers have time to coordinate with each other. You could have one officer try the taser when you have one or two other officers beside him or her with their guns drawn. So if the taser proves to be ineffective, the officer manning the taser, he’s not alone. He doesn’t get overrun by the knife wielder gets stamped that the officers beside him can deploy deadly defensive force if the taser doesn’t work. But it may take a few moments, a few seconds for officers to coordinate that.
And as we see here, there was not a lot of time Toni McBride had to go from exiting our car to firing those fatal shots in something less than a minute and a half. I think when McBride was asking about less lethal it wasn’t because she didn’t have a taser on her person. It’s probably because she recognized this was not a great scenario for a taser.
And did they have some other less lethal tools with a longer more effective reached like shotgun beanbags, for example, can reach quite a bit further, be more will have a different different effect. Different mechanism of function obviously than the taser does. There’s no shock but there’s considerable pain and discomfort from the from the beanbag balls that can be hits.
So what else do we have to talk about? Oh, I do want to say also To be fair, and cover both sides of the coin here. So the jeweler distance the jeweler drill is a model that many people look at, except uncritically or excessively rigidly, and that was never Dennis jewelers intent. Dennis Taylor’s intent was never that 21 feet is a magic number and if someone closes within 21 feet, you can just shoot him.
That’s not the lesson he was trying to teach. The lesson Dennis was trying to teach was that someone with an impact weapon can be a deadly force threat at a substantially closer distance, sorry, and a substantially further distance. You might think they don’t need to be standing right beside you, they can be three or six or nine or 12 or 15 or 21 feet away and still be an imminent threat in the sense that they can cause you that fatal injury before you’re able to defend yourself, but it’s a highly dynamic number, subject to all the circumstances surrounding the event. So the whole premise of the Tueller drill, the whole second and a half the whole 21 feet, is premised on a police officer with their pistol in their holster.
Well, that’s not the case here is it? McBride has her gun already out appropriately so but that means it takes her less than a second and a half in order to fire those shots. If it takes less than a second and a half, then the relevant tool or distance is appropriately closer and in other words, impact bearing aggressor could get closer before they got inside your reaction time, a closer than 21 feet.
Now there’s also the converse argument that Of course we all know that handguns in particular are not magic. They’re not stun lasers from Star Trek. In this instance, they proved fairly effective. On the other hand, the first two shots that struck Hernandez did not stop Hernandez. He kind of bent over a little bit and then was getting right back up shadow two times again and he was still not incapacitated, he looked to be trying to get back up again and then she shot him the fifth and sixth time and that eventually neutralized them. That’s a lot of shots folks. And you don’t know that you’re going to hit.
Now apparently, Miss McBride is a pretty good shot not surprising given her competition practices, but and she scored six hits out of six shots fired which is awesome, especially for the people downrange but most police officers involved in shootings miss most of the time folks so those rounds that Miss aren’t having any effect on the aggressor trying to kill them.
So the many people now argue many well respected trainers none argue that in fact, the tool addresses is too long if you’re talking about an aggressor, intent on killing the victim, when you can’t count on even hits with the handgun, effectively stopping the aggressor before they can cause moral injury. What else did I want to mention about all of that? I think that was that was sent. If any of you have questions, of course, feel free to put them in the comments. And I’ll scroll through those before we close out. Now. A big part of the story is of course, and it was in the the headline of today’s show, which is that, of course the Hernandez family has decided they’d like to get money off of this.
So they’ve retained an attorney and that attorney is suing the Los Angeles Police Department and presumably the government as well. Sure, it’ll be a Federal §1983 case and the lawyer suggesting that perhaps, in fact, as far as he’s concerned, definitely, Officer McBride did not shoot Hernandez because it was tactically and legally appropriate to do so. She shot him because in his words, she’s a gunslinger. In fact, I have a little quote from him here. Let’s see.
Here’s the lawyer, Casius. He says she, meaning McBride, loves to shoot all these things as fast as she can. That’s certainly in stark contrast to the measured cautious police officer exhibiting a reverence for life that we expect this isn’t a movie. He also asks, Do we want police officers to be gunslingers or to live up to the LAPD motto to protect and to serve? So that’s the lawyer for the family.
And of course you can understand why he’s making that argument. Given his mission right. His mission is not to be fair. His mission is To represent the family and attempt to induce the LAPD and La government to pay him millions of dollars, rather than to have to put up with a public relations nightmare, and possibly go to trial and maybe lose even larger sums of money at trial. The mission of a plaintiff’s attorney in this context is to convince politicians, because the people making this decision of whether to settle the suit and for how much our politicians it’s obviously not the officer making that decision.
It’s politicians making that decision, and they’re going to make it for political reasons. In other words, their calculation is how much political pain is this causing me? Am I going to be characterized relentlessly in the LA Times as defending a racist cop murderer of minorities? Or can I make that problem go away by spending a bunch of other people’s money? It’s not the politicians money that’s going to the Hernandez family if any does it’s the taxpayers money, the public Doesn’t feel that pinch. So often the easiest solution for these politicians is to pay to make the problem go away the political problem go away. the plaintiff’s attorney knows this.
So he’s trying to create pain. He’s trying to create a narrative that he can get others, including the media to leverage in his favor, to put as much pressure on the LAPD and the LA government to offer to settle this case for millions of dollars, from which the lawyer will get somewhere between 30 and 50%. Pretty nice payday. And one way to do that is to suggest that, of course, there was some motive other than sound tactics and sound legal decision making that led the officer to use deadly defensive force. I mentioned earlier that if we compare officer McBride’s shooting of Hernandez the pace of that shooting, they try to characterize it in the newspapers as being very fast in fact, from a company habit of perspective. It was very slow it was very deliberate and good for McBride.
Clearly, she’s able to distinguish between a life or death, use of deadly defensive force and our role as a police officer and the, you know, not life and death environment of a competitive setting. And here I’d like to play that video we have from you from Karen tactical. This is Taryn Butler’s company. Karen likes to produce videos of pretty women shooting guns and his range and sometimes movie stars actors and actresses as well. He’s had Kanna Reeves he’s had Halle Berry is that the name very Haley can never remember. Both actors from those john wick movies filmed at his range. And now we have a little bit of video of Toni McBride. Toni McBride was also on the competitive gun show top shots.
Although I have to confess I don’t remember seeing her in that show. But wasn’t all that memorable. And she also appeared at least once in the Dillon Blue Press. The Blue Press, for those who don’t know is kind of the internal press publication of Dillon. Dillon press, and Dillon makes reloading presses. Their blue. I have one 650XL, XL650 I can ever remember the order. I must have loaded well over 100,000 rounds on that thing myself. I’ve had it for a very long time. Dillon does great work. If you ever need a reloading press, I strongly encourage you to consider their products.
No, they’re not a sponsor. I just love what they do. But anyway, there’s Toni McBride on the let’s see, I guess it’s not appearing correctly for you. See if I can pull it up. There she is Toni McBride on the blue press. And now here’s that video from Karen Tactical Here we go.
[EMBED TONI MCBRIDE VIDEO]
I can tell you based on my experience that those split times the time between each of the pairs of shots was about probably two tenths of a second, maybe two five of a second, so about a fifth or a quarter of a second. The splits in her shooting at Hernandez were more like half a second so roughly half the pace or slower more than twice as long to fire the same pairs of shots as she was firing competition. So clearly she’s capable of firing much, much more quickly than she fired her shots at Hernandez.
Presumably for very good reason she slowed down her pace. It’s a life or death situation she needs to stop that attacker armed with the knife. She doesn’t want to miss and hit anyone and the innocent party downrange, all very good decision making.
By the way, I do want to mention in passing we could imagine a couple of scenarios that could be could have been rather awkward for let’s see. Miss McBride. Imagine for example that you’ve been holding Hernandez at gunpoint. Imagine the facts were more ambiguous. Imagine he had stopped approaching or he had dropped the gun on the knife
But nevertheless, you still had them at gunpoint for the moment. And suddenly a beep had sounded that resembled that of a timer using competition. And she shot him in response to hearing the beep. That obviously didn’t happen here. But that would have been awkward, because it would have suggested that she fired the shot not because it was unnecessary self-defense, but because of a reflexive response to hearing the beep whenever she hears the beep in competition, that’s when it’s time to shoot.
And of course, we all walk around matches, we hear beeps all the time, we’re not drawing our guns and shooting everybody, but we’re not on the firing line. And here she was in the firing line. And that can sometimes happen, that reflexive discharge of the gun because the defender hears a loud noise, maybe believes they’ve heard a gunshot or they’re just startled or somebody comes up and touches them, and that makes them fire the gun. That would have been awkward or something like that had happened here. So thankfully, that did not happen.
Let’s see what else I have to share with all of you. Before I turn to your comments. Yeah, so one of the questions that comes up increasingly today is kind of, and this is really less a legal question than a public policy question. It’s and it’s where do we want to provide the balance and giving the benefit of the doubt to either the police officer or the suspect in these law enforcement use of force events?
And I suppose one could make the argument that the ideal balance would be somewhere in the middle. But is that really where the balance should be? I mean, should we judge the officer and the suspect, presumably, that the deadly force suspect in exactly the same manner? Or should we give greater discretion to the officer a greater range of conduct to the officer because obviously, we hired the officer for a reason, right? We hired him because he’s trained and background checked and we trust him. In the suspect is a known criminal entity in many cases. So do we give the officer the benefit of the doubt? Do we say it was a lawful shoot if it pretty much looks like a lawful shoot?
Or do we hold the officer to a higher standard? Do we say well, precisely because of that training, that expertise, we’re going to hold the officer to a higher standard. And if the officer makes even a hair of a mistake, we’re going to call that use of force unlawful, and we’re going to put that officer in prison for the rest of his life. Now, from a public policy decision, you could put the balance point anywhere you like, I suppose along the spectrum.
Of course, if you put it here, where you put the greater burden on the officer and you give the greater benefit of the doubt, to violent non-compliant suspects, I don’t think you’ll like the society you end up with and I don’t think you’ll like much the police department you end up with because relatively few people are going to take that job under those circumstances and, and if they have the job, relatively few of those people are going to be very proactive about law enforcement because of the risks that they now entail and attempting to do their jobs.
So obviously, there’s a lot of pressure here today to shift the balance in this direction to place the burden of ambiguity on the officer to a very high degree. I mean, some are even calling to have no officers at all or to defund them by enormous levels. I’m not sure a defunded Police Department gets you a better police department. But again, that’s a public policy question that people can debate, not really a legal question.
All right, folks. I’m going to go ahead and scroll through the comments. Now. If you have any comments you’d like to questions you’d like to pose. Now would be the time to put them in the comments.
Let’s see. Yep, she certainly acted decisively, and we do hear her ask for less lethal? Absolutely.
Hello asks this officers being sued personally. What about qualified immunity? Yeah, so, to my knowledge, California hasn’t yet done away with qualified immunity. Some states either have or have legislation making their way through the books. here in Colorado, they’ve really hamstrung qualified immunity tremendously. Officers are now explicitly at risk for personal liability for conduct within the legal boundaries, and in the course of their duties.
Remember, folks qualified immunity doesn’t say a cop can do whatever he wants. It just says if a cop had reason to believe that his conduct was lawful, even if it later turns out to have been unlawful, but he had good reason to believe that he’s for example, use of force was lawful, then it doesn’t relieve them from prosecution either, by the way, but immunizes them against civil liability, personal civil liability. And the reason we do that folks, is because cops are the people in our society we pay to put their hands on other people.
And anytime you touch it on the person in an aggressive manner, you’re subject to a lawsuit. And if every time a cop touched a suspect he was subject to a lawsuit, he wouldn’t be able to do his job. He could literally be facing thousands of lawsuits a year. Nobody could. Nobody could pay that cost just for the legal expenses alone. So that’s why we have qualified immunity where an officer’s conduct is clearly egregious, clearly outside the bounds. He’s still subject to civil liability. And of course, he’s always subject to criminal liability. Qualified immunity does not protect an officer from criminal liability.
So what normally happens in these cases, however, is that whether usually a it’s often the case that a question on qualified immunity is actually made by the court. So this is would typically be what’s called a section 1983 case in federal court, a deprivation of civil rights case in federal court. Normally what happens is the plaintiff’s lawyer sues. Everybody names everybody in the lawsuit, including the police officer. But very quickly in the legal proceeding itself, the federal judge will release the police officer from the suit.
So all of these famous cases we know about at the supreme court level, Tennessee v. Garner, Graham v. Connor. These are all police use of force cases in which the police officer was named in the suit. But he wasn’t still involved in the suit. When it finally got to the Supreme Court. He’d long since been released from the suit. His name was just part of the formal name of the case still, but he wasn’t facing any liability personally, because he’d long since had that liability dismissed by the courts on the basis of qualified immunity. The person being sued, the entity being sued is that officers department, not the officer.
So what I would expect to have happen here is for the plaintiff’s lawyer to name Toni McBride in the suit, and then for Toni McBride to be excused from the suit very quickly by the Federal Court and the legal process. To proceed against McBride’s department.
Scott says I believe I read officer McBride had tried to take down her social media posts about her shooting sport. After all this, I had read something in the LA Times about her taking down some Instagram posts. I don’t know I don’t use Instagram much. I didn’t find any I didn’t look for or find any of her content there.
But you can understand why you might want to do that. I mean, from a strictly legal perspective, it’s surprisingly unhelpful because it actually was incriminating in any way, then the the prosecutors or the plaintiff’s attorney would simply go to those social media platforms with a warrant and get those posts.
So you can’t really hide them from the legal process. They’re never completely deleted from The social platform still has them. So you haven’t actually put them out of reach. What you have done, however, is put them out of reach from the normal person who’s wouldn’t have the privilege of seeking a warrant to get those, or a subpoena to get those videos. And that might help in your personal life, and you become less of a firestorm as people pass these videos around again and again.
So I can certainly understand why she would want to do that. You do have to be careful, however, because if it looks like you’re actually trying to hide it from people who would be privileged to have it, then it could look like consciousness of guilt evidence that you think it’s incriminating yourself, and that’s why you’re taking it down. So that’s something you do have to be careful with, but I’m sure McBride is represented by counsel. In fact, I know she is. And they’re I’m sure they’re doing this in a well coordinated way.
Hello says these kinds of lawsuits will continue until the plaintiff’s lawyer has something to lose if he brings a frivolous lawsuit. Yeah, there are states that have put in place pretty good penalties for lawyers who bring these frivolous lawsuits in use of force cases, even in the context of civilian.
So for example, in Florida, if you’re civilly sued, and you seek self-defense immunity, you seek immunity from a court from that lawsuit and you’re granted immunity, the other party has to pay all your legal expenses. And their lawyer himself has to pay half of those. So he’s got skin in the game, if he’s bringing what he knows to be a frivolous lawsuit, in circumstances in which you could qualify for self-defense immunity.
Also the person, the plaintiff, who may very well be sitting in jail, right because they attacked you. You defended yourself. That plaintiff if they bring the suit and you’re granted immunity and the suits dismissed on the basis of immunity, they lose all their privileges in prison. They lose commissary privileges, they lose exercise privileges. They lose visitation privileges. So they have real skin in the game as well. So those kinds of punishments I guess you could call them are costs that can be exacted from people who bring these lawsuits frivolously can indeed be extremely helpful. In theory we have those kinds of leavers at the federal level as well, but they’re so rarely applied that for all practical purposes, they don’t really exist.
Alright, folks, I guess we’ve been going just about an hour so I’ll get go ahead and wrap up. As always.
As always, I want to remind all of you if you carry a gun so that you’re hard to kill. That’s certainly why I carry a gun.
Make sure you also know the law so that you’re hard to convict
I’m attorney Andrew Branca for Law of Self Defense. Stay safe.