Expert: Motorist Shooting Justified

Police trainer wants to use case in teaching


Longview News Journal
Sunday, June 17, 2007

A veteran cop and co-founder of a New Hampshire law enforcement training center said a Gregg County Sheriff's deputy arrived at "reasonable conclusions" before he shot and killed a motorist on New Year's Eve.

Thomas J. Aveni wants to use dashboard video of the shooting when the Police Policy Studies Council trains police across the country on how to assess the potential danger by observing a suspect's body movements.

According to an offense report, Deputy Roy Nixon tried to pull over a suspected drunken driver on F.M. 1252 around 8 p.m. on Dec. 31. After a short pursuit, Abel Jaimes Benitez, 21, stopped his vehicle and got out.

When Benitez failed to follow several of Nixon's orders - as seen and heard on sheriff's video of the stop the deputy fired his gun once from near the patrol car.

Benitez was later pronounced dead at a Kilgore hospital.

Aveni hopes the circumstances and Nixon's actions will serve as an example to other law enforcement officers who make an "unknown risk" traffic stop.

"We train officers to maintain distance and utilize cover when they are uncertain about a threat; use verbal commands as much as possible; and bathe the suspect in as much light as possible," Aveni said. "In this case, it seems like the officer did all those things."

Aveni also said the incident should serve to educate people who are stopped by police.

"If you are approached by a police officer for an infraction, it's prudent to obey the commands, make your hands visible and don't do anything else that might be construed as a threat," Aveni said.

Aveni said there were some ambiguous factors in the shooting because of things Benitez did, adding that research by his company shows that about half of questionable shootings by law officers involve "furtive" movement by the suspect. He said the Police Policy Studies Council conducted studies on shootings by law enforcement in Los Angeles County between 1996 and 2002 and continues to gather data from across the United States.

Under sheriff's office policy, Nixon was immediately placed on administrative leave while the Texas Rangers and Bureau of Alcohol, Tobacco, Firearms and Explosives investigated. Evidence was presented to a grand jury, which declined to indict Nixon on May 4. He's since returned to work.

Neither sheriff's officials nor incident investigators have publicly discussed their findings, but Aveni said shootings such as the one on New Year's Eve are often a result of "simple mathematics."

"The deceased in this case exhibited many cues from our furtive movement index, which lists categorically the types of behavioral nuances that might lead a reasonable officer to believe a threat is imminent," Aveni said.

Aveni said the first cues he saw on the video were Benitez not showing his hands, then turning his back on Nixon.

"Then he looked over his shoulder back toward the officer," Aveni said. "From a law enforcement vantage point, this type of behavior is a fairly accurate pre-threat indicator."

He said the video then shows Benitez dip his right shoulder, which inferred that the suspect may have been reaching into his waistband for something.

"That is followed by the suspect turning abruptly toward the officer and, as he does, he still has his right hand concealed," Aveni said. "He does all these things and there is also apparent non-compliance with repeated verbal commands."

Before the grand jury no-billed Nixon, Tyler attorney Domingo A. Garcia announced that his office was representing Benitez' family in a request to the FBI for a civil rights violation investigation.

Neither Garcia nor the Gregg County Sheriff's Office would comment about Aveni's findings or the case, but Garcia told the Longview News-Journal in January that Benitez was not armed. His office also confirmed last week that Benitez did not speak or understand English.

"There are certain understandings that transcend nationalities," Aveni said, adding that he has worked with police in Mexico. "Baiting a police officer with behavior that appears to be threatening in any culture or language would be viewed as foolish at the very least and probably suicidal at worst."

Aveni added that incapacitating Benitez with a Tazer device was not likely a possibility, based on the distance between the two men on police video.

"When officers get close enough to deploy a Tazer, they often do so at their own peril by virtue of the fact that they leave the cover of their car," Aveni said.

He added that any attempted non-lethal shot would have also been out of the question for most trained police officers.

"The only justification for using a firearm is the belief that there is imminent danger of death or bodily injury," Aveni said.

"Firing what you believe to be a wounding round would be contrary to the way (police) have been trained to use their weapons. The other fallacy with shooting someone in the leg, for example, is that it's not lethal. You can still hit their femoral artery and they would bleed to death very quickly."

Aveni said people who are not trained in law enforcement might better understand his perspective if they compare Benitez' actions to someone walking down the street.

"If you approached someone on the street and you saw their hands, you would view it one way. But if that person turned his back, looked over his shoulder (at you) and had his hand concealed, you would view it differently," he said.

"I'm not an apologist for mistakes that police make," Aveni added, "but I would say this shooting appears to be objectionably reasonable. If there had been compliance on the driver's part, there would have been much different results."