http://www.jsonline.com/news/metro/jun03/147608.asp

Jury rejects self-defense claim
DA to consider mixed advisory on shooting by UWM officer
By TOM HELD
[email protected]
Last Updated: June 11, 2003
In a rare decision against a police officer, a Milwaukee County inquest jury Wednesday rejected a self-defense justification for a February shooting that ended a chase and killed a 34-year-old Greenfield man.


But the jury also found the University of Wisconsin-Milwaukee officer's actions did not amount to probable cause for a charge of second-degree intentional homicide.

District Attorney E. Michael McCann is left to consider the mixed advisory in his own review of the officer's use of deadly force.

McCann will make the final decision on whether to pursue criminal charges against Brian Switala, a three-year veteran of the UWM police.

A review of Milwaukee County inquests over the past 20 years revealed just one verdict similar to Wednesday's. That decision came in the death of Antonio Davis, who was shot in the neck and killed by Milwaukee police Officer Byron Andrews in 1998.

The jury ruled the death an accident but put a handwritten note on the verdict form saying they believed there had been "severe negligence on the part of officer Byron Andrews."

Yet they refused to recommend that the officer be charged with any crime. The district attorney's office declined to charge Andrews, who remains with the department.

And it is very unusual for local inquest juries not to find the actions of police officers justified, records of such proceedings show. Usually, shootings determined not to be in self-defense or defense of others are ruled accidental.

"I'm very impressed that these folks took their jobs very seriously and analyzed the evidence and came to this conclusion," said Lynn Laufenberg, an attorney representing the mother of Joseph Bauschek, the man killed by Switala.

"Obviously the jury believed that he was not justified in firing the fatal shot," Laufenberg said.

Attorney Martin Kohler, who represents Switala, had a much different assessment of the verdict.

"This jury, I think, was confused," Kohler said. "I believe deep down they believe this shooting was justified."

Feared being run over
Switala contended he thought Bauschek, driving a Jeep, was about to run him over when he began firing his 9mm handgun at the vehicle in the intersection of E. Beverly Road and N. Cramer St. in Shorewood Feb. 3.

In a re-enactment Tuesday, Switala showed the jurors how he stood next to his squad car as Bauschek drove directly toward him from about 30 feet away. The officer, 27 at the time, fired seven shots as the Jeep approached then passed roughly eight to 10 feet to his left.

Switala testified that he had no recollection of intentionally firing at the back of the Jeep as it moved away from him.

But the shot that killed Bauschek pierced the back of the Jeep's convertible top before going through the driver's seat and into Bauschek's back.

That presented a dilemma for the jurors, Assistant District Attorney Steven Licata said in his closing statement.

"Once the Jeep veered to the side, why did he keep shooting?" Licata said. "That's a very fair question and it's a very important question, and I think reasonable minds can come to different conclusions.

"The fatal shot was in the back, there's no doubt about that, and that troubles me," Licata said. "That's why you're here, to give that a good, long look."

After several hours of deliberation, the jury sent a handwritten note to Circuit Judge Karen Christenson.

The six jurors asked whether more investigation would be conducted if they ruled the shooting was not justified, and what would happen if they also found that Switala's actions did not constitute probable cause for second-degree intentional homicide. That was the only charge the jury was given to consider in its instructions.

The jurors issued their verdict roughly 20 minutes after sending the note.

Kohler, Switala's attorney, said the Jeep was sliding on the slick road as it went past Switala, and that the officer fired seven shots in 3.2 seconds, a continuous action in response to the threat.

Switala's first three shots hit the front of the Jeep; a fourth hit the windshield on the driver's side. The fifth hit the rear of the driver's side door, the sixth penetrated the soft top from behind and the seventh squarely hit the spare tire attached to the back.

Laufenberg, who is representing Helen Bauschek, said the jurors correctly questioned Switala's actions.

"Giving the officer the benefit of his statement that he felt himself to be in danger when he fired the first three shots, the question has to be asked, why are the other shots fired," Laufenberg said.

Initial chase questioned
Laufenberg said Helen Bauschek had not decided whether to sue the university or Switala for the death of her son. The inquest raised a number of questions beyond the justification for the shooting itself, including the propriety of the chase that preceded it, he said.

The incident began when UWM police Officer Lamar Griffin approached Bauschek outside the campus union to investigate a complaint that he was harassing students. Bauschek drove away. Griffin and Switala followed in separate vehicles, driving roughly 25 to 35 mph on snow-covered streets, into Shorewood.

Shorewood police Sgt. Mark Schraith joined the chase down N. Frederick Ave., and collided with the Jeep when it slid into a parked car. Schraith and Bauschek collided at least two more times near the intersection at E. Beverly and N. Cramer, before the Jeep paused on the sidewalk.

Licata said Switala had gotten out of his squad car at that point because he believed the chase was over.

Switala testified that Bauschek had a desperate look as he began driving toward him, Licata said. The medical examiner's office later found that Bauschek had a high level of cocaine in his system.

"He told you he believed he did what he had to do," Licata reminded the jury.

Laufenberg wondered why Switala got to that point.

The officers chasing Bauschek had no indication he was dangerous or wanted for any serious crimes, yet they continued to pursue him through residential neighborhoods on snow-covered streets.

"I didn't see any evidence that there was any evaluation by any of the officers whether continuing this chase was the right thing to do," Laufenberg said. "Why was it allowed to get to the point it did?"

Switala has been assigned to administrative duties since the shooting, and will remain in that capacity pending McCann's findings and an internal review by UWM police.

During Licata's closing statement, Switala sat in the back row of the courtroom. His hands remained folded in his lap throughout the summation that included this statement: "Nobody in this room feels anything but sorrow and pity over what happened."

Gina Barton of the Journal Sentinel staff contributed to this report.

"...sorrow and pity.."
over the guy being shot and killed? or over the fact that he has to be held responsible for his actions?

Becuase the suspect had just tried to kill him, and the cop reasonably believed the the suspect would do the same thing to anyone else that tried to apprehend him, as long as he had his weapon (the jeep).

Saying he shouldnt continue firing at the jeep is like saying if someone shoots at you but then lowers their gun, you shouldnt shoot back.

Some cops just want a kill, on their record, so's they can brag about it latter.

It takes 2-4 seconds for a trained person to decide to use deadly force. They have to recognize the threat. React to it (present their weapon) and then make the shoot/don't shoot decision. This gap is why the person who initiates the gunfight almost always gets off the first the shots, with greater accuracy. It takes another 2 seconds to decide to stop using deadly force. This is why there are often shots in the back during shootouts. Don't believe me? We demonstrate this to doubters in training, so they can undersatnd WHY the things that happen in shootouts happen.

This is "Mechanics of Deadly Force Encounters 101." Sounds like they need better training in how to articulate their actions at the University Of Wisconsin PD.

Your badge envy is showing again.

I'm almost scared to go into law enforcement b/c of cases like this.  Sure I'd rather be tried by 12 than buried by 6, but give me a friggin break.  I so tired of seeing such hypocritical convictions.  This man had the guts to try and protect his life, when the average person would have just stood there and got hit by the jeep.  So, he shot the fucker in the back...Don't try and run over a cop and you won't get dead.  This would have been a non-issue if the 1st or second bullet had killed the man, and they would have ignored the fact that the officer kept firing.  I think it's sad that we let average citizens judge the fate of officers in cases where they lack so much necessary understanding in operational issues.  

This sounds more like "that  f****r is NOT getting away from ME!"

Also, is there any tape or camera demonstrating whether:

Guy drives at officer, so officer shoots
vs.
Officer shoots, so  guy tries to get the hell out od Dodge
vs.
Guy tries to get out, then officer shoots

They must have something, or else they could not pin it down to 3.2 seconds

I thought the idea was that you keep shooting until the threat is stopped, not necessarily until the threat is dead.

You may be on to something there.

I wonder how different this case would be, if the officer had spike strips to stop the pursuit, instead of a gun.

Why did he stop his vehicle, ahead of the pursuit, and then get out, where he would be vulnerable to being run over?

Were any dogs injured?

[;D]

The jury in that state is not allowed to consider the danger to the [i]public[/i] posed by a potential high speed car chase?

I have read about and watched on TV Arizona cops to some really radical things to keep suspects from escaping in vheicles. Placing themselves in front of the vheicles escape route-with or without their cruser. Jumping on running boards, throwing themselves through car windows to wrestle car keys out of ignitions.

They get hit, they get dragged, a couple have gotten killed, and they have shot more than a few people for trying to run over or dragging them. And even though they put themselves in a position where they COULD be hit or dragged when they did not absolutely have to the courts have upheld their actions.

It is in part a reflection of how much Los Angeles type car chases are hated here. The police and sheriffs deputies around greater Phoenix will do anything to keep suspects from escaping in a vheicle, even if it increases the chances of a officer involved shooting, because of the danger such chases are perceved to be to the public here in this state. They are not considered public entertainment like in California.

Good question.

Of course spike strips probably take a little  time and might not totally incapacitate the vehicle.

We should ask the opinion of that Sheriff John Brunell.  No, wait, that guy would probably be at a loss for words.

Spike strips take seconds to get out and on the road. They are very simple. No even with 4 flat tires the amount of incapacitation depends on several factors. I bet a 4wd/AWD Jeep with stiff sidewall tires wouldn't be as effected as many other vehicles. But it would lose the ability to go fast, or accelerate quickly, and the longer it was driven the more degrade it's capabilities would become, as the tires disintigrated.

FYI I've spiked 2 vehicles, one stopped within  100 ft the other went about 1000 ft. No injury or damage, except for 6 flat tires.

That's the dumbest thing I've read here in a very long time.

Wont be long before you hang yourself on this site.  

I have to pile on here.  Cyanide, there may be one or two in the whole friggin' country that THINK that way. My bet is, they are ones that haven't had to do it.  Also, YOU haven't had to do it.  I'd give 1000: 1 odds on that.

I spoke with one who came back after having to pull the trigger on a guy who pulled a gun on him in a room deep inside a not-so-friendly house.

Though all I could say was that it was a tough deal for him, and that it sounded like he had no choice in order to survive, it seemed like he could barely even hear me. Believe, me, he was not in  an 'attaboy' mood.

Hey cops: Can you legally shoot someone to prevent them from getting away from you?



i'm sure the answer will start with "it depends"
but i'm interested in how this works

Short answer is yes. I don't feel like going in to the long answer because as I'm sure you already know, it depends on the circumstances.

In some states, if the person has commited a felony, and the public would be endagered if they are not immediately apprehended.

No he wouldn't, I'll tell you exactly what he would say.

"Only the officers quick thinking and excellent firearms training and marksmanship prevented this madman from running some innocent civilian over. It just goes to show it doesn't pay to run from the cops."

Or some such nonsense.

That guy puts a spin on everything the cops do since its a cops show.
Cop crashes into a tree?

"The officers superb driving skill and training allowed him to run his car into a tree avoiding a deadly colission with a oncoming semi...."

OK,  Kabal57.   You got the script writing job.

Are you a troll, or can you possibly mean this?  If you meant this, the logical conclusion is that no jury should ever hear a malpractice case, a fraud case, an embezzlement case, etc.

What part of Ohio were you planning to work LE?  I need to know if I need to look out for you.  A cop with that much of an elitist, nobility type attitude can be dangerous.

Uh, this was a school cop, right? Yes, I know he works for a "university", but it's not like you'll ever see a version of "Cops" feature a ridealong with a campus cop.

"Hey kid, you can't skateboard here" just won't draw viewers.

It woould have been a simple matter to compose as :It's sad that people who judge don't have the knowledge", but he chose to say " I think it's sad that we let average citizens judge the fate of officers".  He does not regret that civvies have little understanding, he clearly regrets that civilians (which includes cops, dammit) presume to judge the officers.
"Operational Issues", forsooth.  Like there is a separate reality for cops.  Juries judge people that were in situations beyond their experience and ken everyday; we don't require that a jury in  a DUI case be an alcoholic.

Well, you would submit wrongly.  Notice that you had to add a word to the definition to get your conclusion?  That should be a clue.

It just means that we are not to be judged by judges alone, but that freeman should be able to see the equity in a trial.  It is a point that disallows the nobility, whether hereditary or occupational, from having free reign over "regular joes".
Otherwise, who has the right to sit in judgement of, ohhhh, say a doctor?  Just doctors?  Think we would ever see another malpractice case convicted?

I believe I understand the point; I just disagree with it.
I think any citizen can understand deadly force, or should be able to; I think the media has messed up a few minds, though.
I simply believe that the rules of engagement and judgement are no different for police and others.
BTW, I am an EMT/FireFighter who works with and respects the officers around here; we have a great bunch of guys; and a few great gals.  We are a team when we work together; but they are just people too.  They know this, and have no problems with it.

It's the ones who think they are above judgement by mere citizens that give cops a bad name.  

The dude tried to kill the cop right? How many of us wouldn't have emptied the clip on his ass?

he was driving in that direction, we don't know if he meant to hit him or not.  The point is that he was killed by a shot in the back, man.  After he had turned.

I think something else is being missed also...
I've been a university cop for about a year now, and after working a municipality with about 130 sworn to a college with 15 or so sworn, there is absolutely NO training for anything, much less deadly force encounters.The upper echelon from the president down still look upon us as security guards ,not certified policemen.They absolutely refuse to believe that any kind of violence,drugs or anything else will happen on their campus,so since it doesn't happen,we don't need to be trained in it.
Now ,not to discount what the policeman did,he shot someone from the back, a big no-no.But like I said,someone needs to look into the training atmosphere of that department and see what they do.If theirs is anything like ours,the department should be just as liable as the officer.

All of it still leaves alot to consider though,and many questions unanswered by just the news-release.

[red]The incident began when UWM police Officer Lamar Griffin approached Bauschek outside the campus union to investigate a complaint that he was harassing students. Bauschek drove away. Griffin and Switala followed in separate vehicles, driving roughly 25 to 35 mph on snow-covered streets, into Shorewood.[/red]

As long as you ar quoting, these are the only speeds listed in the article. 25-30 mph hardly seems like a chase. Most residential streets are 25 mph zones in WI. So he was not stopping, at the speed limit? Oh, he also hit a police car 2 times.

Campus police officers are full fledged police officers. Many of the UW system campus' are in highly populated areas, not set off by themselves.

They have lost of people, some who are "out of the house" for the first time in their lives. They do get to deal with a lot of strange behavior. Sexual assualt is a frequent crime.

The jeep driver was harrasing students, one might wonder if that meant lewd comments to multiple female students............................................. Not that that would be a warning sign of anything.  

Hmm.. The guy was reported to be harrassing students, ran from the cops, refused to stop, hit a patrol car twice, got dead, and was found to have [bold]LARGE AMOUNTS OF COCAINE[/bold] in his system.

Sorry, but in THIS case, I have to break from my normal practice of siding with the "civilian" victim and side with the cop.

1st off, the average citizen on that jury seems to view life or death as far to cut and dried an issue for the case that we are discussing.  In other words, they don't seem to allow for anything other than your standard police shooting.  They're arguing a matter of a mere second or two after the officers life was threatened, and saying that the second the car was past him he should have realized that he was no longer in danger.  I'm sorry, but it doesn't seem that the "average" citizen on that jury understands what it's like to realize that you might not wake up tomorrow.  

Ohio: NO, I'm not a troll, and in fact, I did mean what I said.  I think it's "sad," but I never said it should be changed.  I'd rather see 12 citizens judge the fate of a man than one judge.  Yes, cops do serve on juries, but they are such a small % of the population that the chances of a cop being on that grand jury are slim to none.  



I didn't think anyone would misconstrue what I said, but I guess that's the case here.  SGB seemed to understand what I said.  I wasn't posting some altruistic statement about how the jury system in the USA should be overhauled.  I was simply saying that it's sad that this cop's shooting was ruled unjust by the jury, who seemed to have an immense lack of understanding of what it's like to have your life threatened.  Granted, it's not a requirement for juries to have empathy for the cop, but sympathy would have been the next best thing.  



Wow.  I do?  I never knew that about myself.  Please stop putting words in my mouth.  I regret nothing about our jury system in America.  It's amazing that you can get all that from one sentence.  I've got some books I'd like to read, but they're kind of long, maybe you can summarize them for my by looking at the titles [;)]

You must be a complete and utter moron!

There was a cop shooting not long ago here in Shreveport, La. I saw the footage of it and I must say it was disturbing to say the least. It is very obvious that the police in this case didn't need to shoot this man. Now he is dead. I honestly fear the police nowadays.

So? If you try to run over me, you better not miss. I'll shoot till the gun is empty or You're out of sight. I think he did what damn near everybody on this board would do in that situation.

LEOs are average citizens and should remember that.  If you are an LEO and your lawyer and the Dep't lawyer and the union lawyer and the City/?? lawyer can't convince a jury that you were justified, what does that say.  I have seen a bunch of dumb elitist attitude cops in my life.  Most are OK but every so often you get the attitude.

Don't get me wrong, I kinda been there, MY Dad, Granpa, were Cops on my side of the family, Wifes bro is a sheriff (LASO), Cousin, Uncle and Grandpa are/were LAPD.  I stood Shore Patrol Officer in the Philippines.  One of my buddies I used to ride along was fully pensioned off when an officer negligently discharged a 308 about a foot from his head.  He has problems standing up his ears were so screwed.

If an officers conduct can't stand the scrutingy of average citizens somethings wrong.