The Shooting of Patrick Lyoya

Note: First published by license at Simple Justice.

On April 4, 2022, an unidentified Grand Rapids, Michigan police officer fired a single shot into the back of the head of Patrick Lyoya, killing the 26-year-old, who was from the Democratic Republic of the Congo. The officer was white, Lyoya was black, and there was both body camera footage and cellphone video of the shooting.

I’ve watched the videos repeatedly, and believe that the officer was justified in killing Lyoya based on the following:

• The officer stopped Lyoya for driving a car which was displaying license plates for another vehicle.
• Lyoya attempted to flee and was tackled by the officer after a short chase.
• Lyoya then actively resisted the officer, refusing to put his hands behind his back.
• Telling an officer that you are not resisting when you are is not going to change the officer’s mind that you are resisting.
• When the officer drew his Taser to subdue Lyoya, Lyoya fought him for control of the weapon.
• Loyoya not letting go of the Taser indicates that he may intend to harm the officer.
• By the end of the struggle, Lyoya had control of the Taser, which although “less-lethal” is still a weapon.
• Commentary by Lyoya’s passenger for the officer to just “talk” while Lyoya is still clearly fighting is meaningless.
• Had Lyoya tased the officer, he would be able to take the officer’s fiream.
• Once Lyoya had the Taser, the officer’s only choice was to use deadly force to protect himself.

It’s both sad and tragic, and while I understand the grief of Lyoya’s family, it’s not criminal or a wrongful death. It’s not an execution, as Lyoya’s father has claimed through his interpreter (the father does not speak English). It also shouldn’t be turned into a political football by the gubernatorial candidates, who are staking out positions based on the video and their supporters.

It’s a tragedy, but it is what happens when a young person decides to fight the police and there are weapons involved. It’s what happens when a group of the populace has lost confidence in the police due to past incidents and a perceived lack of accountability.

The case is being investigated by the Michigan State Police and the Kent County prosecutor is waiting on the conclusion of that investigation. This will likely result in a no prosecution decision, as it should in this case.

The Capitol Police, the Metro Police, and the Aftermath of January 6th

This post is based off of a series of tweets that I made in response to a comment about the impeachment trial. That comment stated that Trump did not incite the insurrection at the Capitol, at least not under the standards alleged. My response followed.

It’s absolutely incitement. The mob did exactly what [Trump] wanted them to do. One police officer lost his life, two others were so traumatized that they took theirs, one lost an eye and is now blinded, another lost three fingers. Smashed spinal disks, cracked ribs, an officer stabbed, traumatic brain injuries that may leave officers permanently brain damaged. An officer forced to shoot an insurrectionist.

These officers are going to have to live with the memories of this for the rest of their lives. I know what they are going through because I’ve been there, though nowhere near the degree that they are. I’ve been shot at, I’ve been in riots, I’ve had bottles and rocks thrown at me and my fellow officers . . . and I’ve had the nightmares, the sudden fear when something triggers the memory, and so on.

Thankfully, I’m out of that business and the problems have eased, but they never go away.

They are never going to go away for the officers at the Capitol, and Trump incited that. 

Now is the time for him to be held accountable.

Maybe I’m too focused on this, maybe I’m too biased against Donald Trump. Lord knows, I’ve never been a fan nor a supporter of his since the 1990s. So, in my view the case is clear-cut, but that’s not what this is really about.

I spent over 20 years on the street, worked in a major city’s housing projects, at an airport, and in a university environment. I had some rough times, as I noted above, but thankfully went through less than one-tenth of what these officers went through. Even so, I had issues until I left police work. I occasionally still have issues, but only in a more limited way now, mostly insomnia or minor bad dreams. I still carry a gun every day, and I always sit facing the door, because I’m aware of the bad things that can happen without notice.

The Capitol and Metro Police officers went through much worse, and they are likely having a feeling of betrayal in their leadership right now. It’s come out that the leaders had warning but did not adequately prepare. The Capitol Police union is furious enough that they are preparing to have a vote of “no confidence” in the police leadership.

Of course, the officers have no confidence, the leadership was a joke. How is the officer supposed to view his leadership after he was pulled out of the doorway by Jeffrey Sabol, who held him down with a baton while Peter Stager beat the officer with a flagpole, American flag proudly attached? Both Sabol and Stager could legally have been shot by other officers, but is that wise when you’re outnumbered 10 or 20 to 1? The leadership had knowledge of the threat, yet did nothing?

When you look at the mugshot of Sabol, what’s your view of his attitude? I think that he’s lost it. Reportedly after trying to flee the country to Switzerland, he attempted suicide and was hospitalized before he was arrested and denied bond. He’s now being held without bond, as is Stager, who was caught in Arkansas. They are likely to be held accountable, but does it look like he’s concerned? Not really.

If you want to know why police develop an us vs. them attitude, you have to look no further than this insurrection and the response of the leadership and the public. These officers were hung out to dry, yet they still fought back, for hours, without much hope of help. They didn’t break and run, and some did incredibly brave things. Another officer, a police lieutenant, had to shoot an insurrectionist in order to protect the Representatives who were still trying to get out of the area.

I wrote about that incident, and why I thought that the shooting was justified, but you’ve got people claiming that the insurrectionist was a “patriot” who was doing what she thought was right—which is crap, but how do you think that affects the officer who pulled the trigger. I never had to pull the trigger, fortunately, but I’ve met numerous officers who have done so. Each and every one of them was affected by the fact that they had to take a life. All had suffered because of their actions to protect themselves and the public. 

The Capitol Police leadership say that counseling is “available” for any officer that wants it—which is a cop-out because few, if any officers are going to seek out counseling. In the police culture, it’s a sign of weakness, a sign that you can’t hold it together. What the Capitol Police need to do is to make the counselling mandatory, to bring in counsellors and staff to help the officers deal with the mental trauma from the event, and the fact that one section of the country doesn’t care about accountability or what happened to these officers on January 6, 2021.

What’s worse, is that is the segment that claims to be in support of law and order, but instead is dismissive of what happened at the Capitol. How are the officers supposed to feel? 

More importantly, how do we make sure that the officers get the support and help that they will need to move forward?

Too Stupid to Serve, Racism in Georgia

The town of Hamilton, Georgia has a police department of four, one full-time chief, one full-time officer, and two part-time officers. It now has two-part time officers after both of the full-time officers were fired. It seems that the officer was showing the chief how to operate the body cam, forgot or didn’t know how to turn it off, and both he and the chief proceeded to talk about blacks in derogatory terms, including use of the “N” word. Then when the memory card filled up, they weren’t smart enough to download it or put another card in it, and reported that the body cams were broken. When another city employee started to examine the cameras, he discovered the problem, and saw the racist rant video.*

Chief Gene Allmond and Patrolman John Brooks have both lost their jobs. Allmond resigned, and Brooks was fired after offering to resign.† It seems that the chief thought that blacks didn’t have it so bad when they were slaves, since they had housing, food, and clothing provided. Really? These two are symbolic of the problems in rural America, where you don’t get the pick of the litter for your police department. You get what you pay for.‡

This is why there is a problem with systemic racism, why blacks don’t trust the police, and why blacks are protesting. When a potential police officer with a high school diploma can drive 30 minutes to the south, to Columbus, and start at about $40000 per year, where do you think that the better candidates are going to go?

If you want to put an end to this type of crap, you are going to have to raise the standards for police officers, and you are going to have to pay for it. Otherwise you get people who are too stupid to operate a body cam, and too racist to keep on the department.

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My suggested minimum requirements for police:

• Entering officers:
  • Associate degree in Criminal Justice
  • Police academy of at least 32 weeks (1280 hrs of instruction)
  • At least 21 years of age by end of academy
  • Pass state licensing test
  • Field training program of at least 26 weeks
  • Clean background
  • Psychological assessment
• Additional requirements for promotion:
  • Corporal
    • Two years service
    • Intermediate certificate**
  • Sergeant
    • Two years as corporal
    • Basic supervision course of 80 hours
    • 90 college hours
  • Lieutenant
    • Four years as a sergeant
    • Intermediate supervision course of 30 days
    • Bachelor degree in Criminal Justice
    • Advanced certificate
  • Captain and above
    • Three years as a lieutenant
    • Advanced police training such as the FBI National Academy or comparable regional training (Southern Police Inst., Inst. for Law Enf. Admin., Northwestern Center for Pub. Safety, etc.)
    • Master degree in Criminal Justice or Public Administration
    • Master peace officer certificate

Additionally, the state licensing board would be able to hear complaints against officers, in the same manner as the state bar does for lawyers, the state medical board does for doctors, etc.

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*The video was from June 2020, when the officers were present for a Black Lives Matter protest at Hamilton.

†Brooks was going to be allowed to resign, but was fired when he did not return the city’s property by the time agreed on.

‡According to a Georgia state site, pay for an officer in Hamilton ranged from $18000 to $50000 per year in 2016, and the chief’s pay was between $31000 and $62000.

**Using the Texas system of license, basic certificate, intermediate certificate, advanced certificate, and master peace officer certificate.

A Quick Look at Impeachment & Trial

With all of the hoopla over whether Donald Trump can be “impeached” after he left office, I thought that we should look at this from a legal standpoint.

1. Put down your far right-wing propaganda sources and step away from them. The same goes for your far left-wing propaganda sources. We're going to look strictly at the law.

2. Look at U.S. Constitution, Article I, Section 2, Clause 5, which states: "The House of Representatives shall . . . have the sole Power of Impeachment." which means that they can impeach the President.

3. Trump was the President when he was impeached, not a private citizen.

4. Look at U.S. Constitution, Article I, Section 3, Clause 6, which states: "The Senate shall have the sole Power to try all Impeachments. . . ."

5. Trump was impeached while in office, now the Senate will try him.

6. Then the same clause continues and states: "When the President of the United States is tried, the Chief Justice shall preside. . . ."

7. Trump has left office, so he not currently the President, ergo, no Chief Justice to preside.

8. In 1876, the Senate tried former Secretary of War William Belknap, after voting that they still had jurisdiction under the Constitution to do so, even though he had left office.

9. In 1993, the Supreme Court, in a 6-0 decision with 3 concurring opinions, ruled that how the Senate tried an impeachment was not subject to judicial review, in Nixon v. United States. This affected two federal judges, Walter Nixon and Alcee Hastings, both of whom had been impeached, tried, and removed from office, but not barred from future offices. Nixon was convicted in a criminal trial of perjury, Hastings had been acquitted in his criminal trial.

10. CJ Rehnquist, in dicta, stated that in addition to not being subject to judicial review, for the Supreme Court to attempt to tell the House and Senate how to conduct impeachment and trial would be a violation of the separation of powers in the Constitution.

11. Hastings ran for the House of Representatives and was elected from Florida. He is currently in Congress, and voted to impeach Trump two times.

12. The Senate considered the question on whether Trump could be tried and ruled that he could be.

Simply put, it is legal for the Senate to try Trump on the single article of impeachment. Plus, the Nixon case is the only case that addresses the impeachment clause in a way that is even close to being on point.

For further on this issue, I would recommend reading this law review article: Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13 (2001).

Disclosure: I had voted for GOP presidential candidates from Ronald Reagan to Mitt Romney, but I could not bring myself to vote for Trump and left the Republican Party when he was nominated for President. In 2016 I supported Gary Johnson (former GOP governor of New Mexico, Libertarian Party), and in 2020 I voted for Joe Biden, mainly to get Trump out of office. I also supported the Lincoln Project during that time. I would prefer that Trump be convicted and barred from future office, but I’m also aware that this is not likely to happen.

Hasbun’s Law

I spend some time at a website called RallyPoint, where military service members, veterans, retirees, and so-on gather. It’s sort of a cross between FaceBook and LinkedIn for the military, and you can find some absolute gems there from time to time. Recently in a thread on the insurrection and rioting at the Capitol on January 6, 2021, one of the members, Sergeant First Class Michael Hasbun made a statement that was absolutely brilliant.

I have found that in times of political confusion, particularly when emotions are running high and creating tunnel vision, the presence of Nazis can be an extremely helpful indicator. If I am attending a local demonstration or event and I see Nazis…neo-Nazis, miscellaneous-Nazis, master race Nazis, or the latest-whatever-uber-mythology-Nazis, I figure out which side they are on. And if they are on my side of the demonstration? I am on the wrong side.

Hasbun, Jan. 14, 2021

This avoids all of the confusion caused in the past by various individuals claiming that there were good people on both sides, because it boils it down to a quickly discernible issue. Are the Nazis on my side?

• 

• 

• 

Indications that you’re on the wrong side

There will be those who bring up Godwin’s law, but they misunderstand its use and the use of Hasbun’s law. Godwin’s law states that the longer an internet discussion goes, the likelihood that someone will bring up the Nazis or Hitler approaches one, and its more commonly asserted corollary that whomever brought up Hilter or the Nazis losses the argument. That’s still valid for internet discussions, such as on RallyPoint.

But if you are actually at a protest site, Hasbun’s law proves its worth quickly. If you see the guy in the “Camp Auschwitz” shirt, and he’s on your side? You’re on the wrong side. Or if someone is standing next to you with a 6MWE (6 million wasn’t enough) anti-Semite shirt on, you’re on the wrong side. If your fellow protesters are wearing a sheet with a pillow case for a hat, or carrying a confederate battle flag, then you are on the wrong side. #HasbunsLaw

This isn’t to say that those idiots can believe what they want, or associate with whomever they please, they can, that’s the whole purpose of the First Amendment. And we should protect those rights.

If, for no other reason than it quickly lets us know if we are on the wrong side or not.

FBI Seeking Killer of Officer Sicknick – UPDATED

UPDATE: Robert Sanford, retired Chester, PA firefighter, has been arrested. The initial report that he was involved in the death of Officer Sicknick was incorrect, the officer assaulted was Officer William Young, who was treated and released.

The FBI is seeking to ID this man, a suspect in the murder of Capitol Police Officer Brian Sicknick. Please share and if you know who he is, notify your local FBI Office.

This man is wanted for questioning in connection with the murder of fallen Capitol Police Officer Brian Sicknick https://twitter.com/SenBillCassidy/status/1348998640099094528/photo/1 Credit: US Capitol Police

The Death of Officer Brian Sicknick

Both the right and the left are posturing about U.S. Capitol Police Officer Brian Sicknick, who died from injuries received while defending the Capitol from seditionists and insurrectionists who were trying to gain entry and take control of the American seat of government. The left wants to point out that Brian Sicknick was beaten with a fire extinguisher by Trump supporters. The right points out that Brian was himself a Trump supporter. Neither side gets it.

Yes, Brian supported Trump. I imagine that most police officers do or did. Trump is very adept at pulling the type of people who become police officers into his camp, and I have no reason to doubt that he supported Trump, especially given the comments of Caroline Behringer, a former Congressional staffer for Speaker Pelosi. Behringer stated flat out that Brian was a Trump supporter, but also that he had a smile and a joke when she would come to work every day.

It’s also true that Brian was murdered by Trump supporters who were storming the Capitol, and what people on the right are not realizing is that Brian was going to do his job no matter what his personal feelings were. It didn’t matter that Brian agreed with the seditionists and rioters, it was his job to protect the Congressmen, Congresswomen, Senators, and staff, and that’s what he was going to do. He died doing it.

That should be the takeaway from this, that he was doing his job, and lost his life doing it. The rest of it is bullshit, political theatre, and does nothing to help his family. He is survived by his parents, two older brothers, and a long-term girlfriend. They don’t want Brian to be remembered as a political football, and their wishes should be honored.

The Death of Ashli Babbitt

Ashli Babbitt, of San Diego, a Trump supporter and a 14-year Air Force veteran was shot and killed as she attempted to gain entry to an area where Congress critters were sheltering. The MAGA crowd is screaming that the Capitol Police murdered an unarmed woman who was peacefully protesting.

Bullshit. The Capitol Police performed their duty to protect their charges. Do these idiots think that they would be treated any different if they tried to storm the White House? If President Trump were at the end of the hall and Babbitt was trying to charge into see him, do the MAGA crowd think that she wouldn’t have been shot?

I don’t know what she did in the Air Force, but all airmen and officers are taught from the beginning that if it comes down to protecting them or a priority resource, the resource is going to be protected every time. Congress critters are priority resources. She knew better. She did it anyway.

Ashli Babbitt was in the process of committing a felony, and ignored commands to back off. She was carrying a backpack, and the officers had no clue what that contained. It could have been a bomb, or contained weapons, or any number of things. At the time she was killed, she was not a patriot, she was a felon. She’s not a martyr nor a hero.

Rebuttal: Christopher Young, New York Post OpEd

I don’t doubt Christopher Young’s sincerity when he wrote the op-ed in the New York Post. He says he is a progressive, and I don’t doubt it. He’s certainly not the only police officer who thinks that the War on Drugs is a failure, wants reform in other areas, etc. He then lists four police myths that he wants to debunk. The problem is that he’s wrong. My old mean-ass editor, Scott Greenfield, wrote a column on it at Simple Justice, and it’s good. It’s just not from the cop standpoint.

I was a police officer in Texas for over 20 years, starting in the housing projects of a major city. I’ve been in patrol, and have supervised patrol, detectives, training, administration, and parking enforcement, among other duties. I have taught in the classroom at the academy and at in-service training, and was also a firearms instructor. I am also retired military, serving on both active duty and in the reserve, both as enlisted and as an officer.

So let’s go through his comments, and address each, one by one.

1) Police are killing large numbers of civilians. That’s simply not true. In New York City, the police department has meticulously tracked every shot fired by its officers since 1971. These officers represent roughly 5 percent of the entire American force, so it’s a large sample. The NYPD’s annual report shows a dramatic, sustained drop in killings by police — from 93 in 1971 to just five in 2018. 

Christopher Young, New York Post Online, Dec. 27, 2020

As of today, according to Mapping Police Violence, 1,066 people have been killed by police in 2020. Last year, it was 1,037. The Washington Post database has similar numbers. This year, according to the Officer Down Memorial Page, there have been 296 police deaths in the line of duty, up by 103%. That’s misleading though, because it includes 180 deaths from COVID-19. Without that, it is 116 deaths, and only 45 by gunfire. That’s a 22% decrease from 2019, which had a 20% decrease from 2018. The things that are constant is that about 15-20% of those killed by police are unarmed, and that the number killed by police isn’t going down the way police fatalities are. Basically a citizen is about 10 times more likely to be killed by the police than the police are to be killed by the citizen.

2) The anti-cop movement is largely peaceful. Again, false. The movement, rather, is akin to the Batman villain Two-Face. Anyone who watched the protests on television would know that the daytime ones were lawful free speech. But the dynamic changed dramatically at night. Protests became intentional riots, designed to draw a police response that allowed rioters to claim victim status.

Id.

I don’t disagree with him here, although I will point out that some of the nighttime problems are caused by white supremacist groups, like the Proud Boys and the Boogaloos. These are people trying to increase tensions, not decrease them. That’s according to information from the FBI and DHS. And anyone rioting, destroying property, or hurting people (including police) needs to be arrested and tried for their crimes.

3) Abolishing police wouldn’t lead to lawlessness. Many of the defunders are genuine anarchists, who want no government at all and believe in a society of angels who serve each other voluntarily.

This is nonsense. One of the greatest achievements in human history was creating government monopolies on the use of force. Ancient tribal societies had a violent death rate of 500 per 100,000 people per year. That number dropped to 50 in medieval societies and just one to five in the modern West.

Id.

Sure, some of the calls for defunding the police are from anarchists. Many more of the calls is not to eliminate the police, but to reform and restructure it. Police should not be sent on mental health calls, they are not trained in counseling, nor, for the most part, do they have the temperament. No, what we should be looking at is adding social workers and mental health specialists to handle those types of calls.

The second part of the equation here is the problem created with the first rule of law enforcement. Young, like most cops, believe that police officers have a right to go home at the end of his shift. But if you ask him about the right of the citizens to go home at the end of the day, you will likely get a blank look. It just simply never crosses their mind that citizens should have the same right that they do to go home.

4) Today’s police are “militarized.” Wrong, wrong, wrong. As a soldier, I rode in an armored vehicle and sat in a turret with a belt-fed machine gun. My job was to shoot enemy soldiers. In my 26 years as a cop, I have done no such thing.

Contrary to activist complaints, SWAT teams’ armored vehicles, armored clothing and special training help them avoid deadly force, not commit it. A regular cop is often justified shooting someone who threateningly brandishes a gun. A SWAT officer wearing protection, however, will wait longer before resorting to deadly force. In Seattle, our SWAT team recently saved a suicidal young black man with a gun.

Id.

Police today are militarized. When I started, an officer carried a revolver, usually in .38 or .357 with two, maybe three reloads. Almost no officers carried a rifle, much less a mil-spec carbine with a 30-round magazine and a minimum of 3 to 4 reloads. Armored cars were for the big cities, of a million or more people. SWAT was rarely used, because it was designed to deal with heavily armed and dangerous subjects, and no-knock warrants were rare.

Now SWAT raids are routine, and used when not needed, such as to arrest a young man for an assault warrant–less than four hours after the young man had been in court, while the warrant was active. In Dallas, SWAT raided a VFW hall for an illegal poker game. Is this something that detectives and patrol couldn’t handle? We were taught to deescalate and wait someone out, for days if needed. Now you roll up in an armored vehicle and breach. One small town sent an armored car and a couple dozen deputies to collect a civil judgement from a 70-something year old man.

I understand where Young is coming from. Hell, I used to be there myself. But that doesn’t make his position right.

For Colorado Parolees, Choose Going to Church or Back to Prison

Mark Janny is a convicted felon in Colorado, and to be honest, he hasn’t been the best of parolees. He’s committed minor violations, such as curfew violations and missing an appointment, and he’s been sent back behind bars for those violations by his parole officer, John Gamez. Technical violations will get people every time. The last time, the Colorado State Board of Parole dismissed the charges Gamez filed and released Janny. Gamez then assigned Janny to a halfway house run by a friend of his, Jim Carmack, and advised Janny that he had to follow all of the rules or he would be back in jail.

The halfway house is the Denver Rescue Mission, in Fort Collins, and is a Christian-based organization. Janny is an atheist, and objected to be required to attend daily religious meetings and Sunday religious services, among other conditions. Carmack immediately informed Janny that:

While in the Program, Janny would be prohibited from “tell[ing] people [he] was an atheist or express[ing] [his] religious thoughts, views, and beliefs.”

“[Y]ou’re going to still do these Bible studies and these prayers and talk with me about religion.”

“[Y]ou don’t have religious rights here.” 

If Janny refused, he would be “kicked out” and he would “go to jail.” 

Quoted from Appellant’s Brief

After Janny’s objection, Carmack called Gamez and informed him that as an atheist, Janny was not suited for the program at the halfway house, and that Janny objected to participating in religious activities, whereupon Gamez told Janny that:

It doesn’t matter. You’re going to follow the rules of the [P]rogram or you’re going to go to jail.

Id.

Janny attended the daily devotionals, was subjected to extreme pressure to convert to Christianity, including the use of Pascal’s Wager, and then refused to attend a chapel service. On his refusal, Carmack told him to leave, that he was being put out of the program and the site. Janny left, taking the ankle monitor box with him as he was instructed, and reported to the Parole Office the next day.

In the meantime, Gamez reported Janny as having “absconded” from the facility “without the authority of the staff” and obtained an arrest warrant. The Parole Board found that Janny had violated the rule that required him to stay at the designated residence unless his P.O. approved his leaving. He was sent back to prison for five months, and sued Gamez, Carmack, and others for violating his Constitutional rights, representing himself.

The United States District Court for Colorado dismissed the case on a summary judgment, when Judge Raymond P. Moore ruled in favor of the defendants. Normally, that would be it, but the American Civil Liberties Union (ACLU), Americans United for the Separation of Church and State (AU), and the big box firm of DLA Piper stepped forward and filed an appeal. The problems with most appeals of pro se cases is that the person representing themselves doesn’t have a clue on legal procedure, meaning that the person did not preserve error for an appellate court to review.

And then you have the jailhouse lawyers, convicts who actually get the process and procedure, and who sometimes do an adequate job in filing the proper motions and pleadings, within the established deadlines, etc. Having skimmed some of Janny’s pleadings, I believe that he is in this category. Sometimes these are the guys that get the attention of the courts or attorneys, and are the ones that make significant changes. That’s what I think will happen in this case.