Expert: No force needed in ex-Minneapolis officer’s fatal encounter

MINNEAPOLIS — Even if he was startled by a loud noise, the Minneapolis police officer who fatally shot Justine Ruszczyk Damond two summers ago would not have been justified in using a Taser or pepper spray — much less his gun — a use-of-force expert testified Wednesday.

“The use of force was objectionable, unreasonable and violated police policies … and training,” said the expert, Derrick Hacker, of former officer Mohamed Noor’s decision to fire on Damond from inside his police SUV moments after responding to her 911 call about a possible sexual assault behind her home. “No reasonable officer would have perceived a threat by somebody coming up to their squad.”

Noor faces murder and manslaughter charges, only the second police officer in recent state history to be charged for an on-duty killing.

Hacker, a lieutenant with the Crystal Police Department, argued that the outcome may have been different if Noor and his then-partner, Matthew Harrity, had handled the call with more care.

“This whole situation would have been avoided,” he said.

His testimony came as the prosecution’s case winded to a close after more than two weeks of testimony and 50 witnesses.

The defense, which expected to call its first witness Thursday, hasn’t yet signaled whether Noor will take the stand, but defense attorney Peter Wold’s cross-examination of Hacker in the late morning focused on Hacker’s lack of training of officers in two-person squads. Hacker testified earlier that Crystal police work in one-person squads due to staffing. The defense has pushed the importance of partners backing each other up on the job and relying on the other to make appropriate decisions on their own.

Under cross-examination, Hacker testified that he spent his time as a patrol officer in Crystal driving alone in a squad.

Wold asked if Hacker, a use-of-force trainer, trained officers how to respond as partners.

No, Hacker said.

Hacker tried to circumvent the questioning by saying officers should make their own decisions.

Wold clipped off the end of Hacker’s answer and interjected: Do you train officers what to do in a squad with a partner?

“No, we do not train with partners,” Hacker said.

When Wold explored the topic further, Hacker seemed to attempt to counter any possible credibility issues by saying he worked alongside partners as part of a multiagency SWAT team, which he oversees, and a multiagency drug task force.

But Wold leveraged that in his favor, asking Hacker about the one time he used deadly force in his 17 years on the SWAT team.

Hacker acknowledged that he had never fired at a person, but once killed a dog.

“There was apparent death or great bodily harm in that situation …” Hacker said. “It was either for myself or my partner.”

Hacker said an “aggressive” dog advanced toward another officer during the execution of a warrant inside a building, prompting him to shoot the dog when it was about a foot away from a colleague. About 12 to 15 officers were present, he said.

“You made that decision in a split second?” Wold asked.

“Yes, based on that threat and identifying that threat,” Hacker said.

Hacker testified that he has been paid nearly $30,000 for his 600 hours of work on behalf of the Hennepin County Attorney’s Office, which culminated with a 259-page report based on his observations and conclusions. Hacker, who was retained in August 2017, said he reviewed hundreds of pieces of evidence in the case, including Minneapolis’ training manual, police reports, cellphone records and 40 grand jury testimony transcripts.

From the outset of the closely watched trial, Noor’s attorneys have argued that the officers were startled by a loud sound, suggesting that Noor may have fired his Glock 9mm handgun in order to protect himself and Harrity, who testified last week that he also drew his gun but didn’t fire because he hadn’t yet assessed the threat.

But Hacker said such statements were “vague” and didn’t meet the threshold for officers to use deadly force. Officers are taught to apply a “force continuum” that starts with no force used and escalates up to deadly force when an officer feels lives are in danger or to stop a suspect who has committed or is committing a felony, Hacker said.

“You need to identify the target: who it is, is it a male, is it a female?” he said. “If an officer cannot see that, then the officer is not allowed to use deadly force.”

Based on the circumstances of Damond’s death, the officers shouldn’t have used any force at all, he testified: “The officers need to use the most reasonable level of force given the situation.”

Noor, he concluded, should have known better, after undergoing “use of firearms in lowlight” and “pre-ambush awareness” training during his stint at the police academy.

“Is being startled or spooked the same as fearing death or great bodily harm?” prosecutor Patrick Lofton asked.

“No, it is not,” Hacker responded.

Officers are only allowed to resort to deadly when force when the potential for great bodily harm is “apparent,” he said.

“The slap or even the barking dog or whatever is irrelevant — the fact is that Ms. Ruszczyk essentially approached the squad and she was shot,” he said.

Prosecutors have sought to prove that a “reasonable officer” in Noor’s shoes would not have fired — a standard established by the 1989 Supreme Court decision in Graham v. Connor.

Hacker, under questioning by Lofton, said that the officers should have taken greater steps to investigate the incident, making the connection between Damond’s call about a woman possibly screaming in her alley and an early incident involving an apparently disoriented woman who was seen wandering through the area.

“In your opinion, what does a female screaming mean to a police officer?” Lofton asked.

“It could mean very many different things: It could mean a crime, it could not mean a crime,” Hacker responded.

“Would you pull your gun out?” Lofton later asked.

“No, absolutely not,” the officer said.

Lofton asked him whether Damond “did anything wrong” by leaving her home to flag down the officers.

“No, Ms. Ruszczyk did nothing wrong — police are approached daily; this happens daily,” he said, adding that he didn’t find it unusual that 911 dispatchers didn’t instruct her to stay put.

He also argued that the officers’ decision to pull out their guns inside their SUV was “unreasonable and is unacceptable.”