When is a gun not a gun?

// Apparently when TPD officers say it isn’t a crime to use one to force children to the ground

An incident, and the way it was handled by Tacoma police officers, has a handful of parents a little less than pleased about the level of public safety provided to their Hilltop neighborhood. Police Chief Don Ramsdell, department officials stand by the decisions of their officers and will not comment on the case further, and neither will Tacoma City Council members nor the mayor. All were contacted for interviews. All declined. The suspect is not talking either but the parents are, and their version of events is backed up by what little paperwork police filed concerning the incident.

Here is what has been pieced together based on witness and victims’ accounts:

A handful of children, between the ages of 11 and 15 were playing tag within 50 yards of their homes around the corner of South 16th and Ainsworth streets at about 10:30 p.m. Oct. 27. A man living at the corner house rushed out of the home with what the children described as a long-barreled rifle. He was holding it with both hands by his hip. “Get on the f---||||ing ground, get on the f---||||ing ground,” the children and witnesses said he yelled. Three of the children, all girls, dropped to the ground where they stood, which was across the street from the man’s house. Two boys walked up to the scene moments later. One of the girls force to the ground, 15-year-old Isabella Carter, said she screamed out, “We’re just kids. We’re only playing a game.” The children said several minutes passed as they lied on the ground at gunpoint while the man yelled at them with his arms shaking with his hand on the trigger. He then began backing up while still pointing the gun at the children. “He kept pointing it at us until we couldn’t see him anymore when he went into his house,” Isabella Carter said. “To me it was a gun. It wasn’t anything else. It was a gun and he was pointing it at us.”

The children said they ran to a nearby house where their parents were gathering for a pre-Halloween party, about 30 yards from where the children were forced to lie on the ground. The children said they were crying and screaming as they told their parents about the incident. “It was kind of an unusual thing for them to tell me,” said Aaron Wilson, the parent of a 12-year-old girl who was involved in the incident. Isabella’s mother, Jamey Voorhees Carter Rivera, reportedly ran to the man’s house and demanded an explanation; a woman inside said the rifle was only a bb gun and that the man would not come out of the house to talk about the incident. A flurry of 911 calls then prompted five officers to respond. Emergency dispatchers logged the call at 11:18 p.m. The first car arrived at 11:21 p.m., according to the only official record of the case. Two officers talked to the children and their parents, then walked to the suspect’s house and were apparently refused entry to question the man. A woman inside the house apparently told officer Steve Storwick that the gun the man pulled on the children was “just a pellet gun” and refused to answer further questions. “If he had even slightly mishandled that he could have killed one of them,” Rivera stated later. “I don't understand why the police didn't ask him to see it.” The officers returned to the house where the victims were gathered and told the parents that no crime was committed. No arrest. No police report would even be filed. The case was closed. The entire police investigation took 10 minutes, 911 records show.

“It just didn’t rise to the level of being a crime,” police spokesman Mark Fulghum said after reviewing the case with the officers. “He (the suspect) thought there was a car prowler, and that’s why he went out.” There is no record, or even an allegation, of the pre-teen children breaking into any cars, and they never entered the man’s property. They were forced to the ground on the public sidewalk across the street from the suspect’s house. “I couldn’t believe nothing was done about this,” Wilson said. This is where the case gets weird. One parent called it surreal. The children, oddly enough, felt unsatisfied with the police response. Isabella confronted the man the following morning and asked for an apology for pulling a gun on children while playing tag. She did not receive one. She and her friends then took it upon themselves to make signs warning neighbors of the incident. One sign read, “This man pointed a gun at me while I was playing tag. He was scared.” Another said, “I pointed guns at children.” The children placed the signs in the right-of-way by the man’s house, where they remained for much of the afternoon. Two officers, identified as Keith O’Rourke and Matt Verkoelen, came knocking on Rivera’s door that evening. “I thought they were here to do a follow-up investigation about the guy pulling a gun on a group of kids,” she said.

They were not. They were investigating the man’s allegations of harassment because of the signs and an allegation of someone kicking leaves into his yard. Rivera was threatened with arrest and a no-trespass order. No charges against her or police reports were filed in this case either. Rivera said officers spent 20 minutes on her neighbor’s complaint while giving just 10 minutes to the initial man-with-a-gun incident. “I couldn’t believe how they were treating me,” Rivera said, noting that the officers told the children to “shut up” and not to interrupt their investigation about the placement of signs on public property. “When my daughter tried to explain it was her (who posted the signs) and that no one trespassed or did anything illegal, (the officer) told her she was being ‘rude,’ to ‘shut up,’ to ‘go away’ and to ‘stop interrupting,’” Rivera wrote about the Sunday evening incident. “This treatment was completely out of line. He had zero business talking to anyone like that, much less a child who had been traumatized by a gunman and already been told by the police once in 24 hours that they couldn’t do anything to help her. It was at this point that officer Verkoelen finally told me what it is I had done that was warranting this treatment.”  The difference between a bb gun and an actual gun is a bit moot since state law sides on what the victim thinks the item was, not what the weapon actually turned out to be. A threat with a bb gun is seen in the eyes of state law as a threat with a real gun. Both are legally defined as firearms, capable of doing bodily harm up to and including death. But state laws about the use of firearms are a bit gray. RCW 9.41.270 and its associated statutes, for example, state: “It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons. It is unlawful for any person to point or shoot an air gun at any person or property of another, or to aim or discharge such weapon in the direction of the person or residence of another, while within such range as to cause or inflict injury to the person or damage the property of another.”

Protecting one’s life or property with the showing of a firearm is justified “for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person. … the show of force is only justified however if “no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was reasonable to effect the lawful purpose intended. … or “to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.” None of these state laws, however, were apparently violated by the suspect pointing a gun, or bb gun, or pellet gun or stick and forcing the children to the ground. The parents then sought a police investigation into how O’Rourke and Verkoelen treated Rivera and how the officers investigated an allegation of kicking fallen leaves into a man’s yard more extensively than the undisputed claim of a man forcing children to the ground with what best could be described as a bb gun. The case landed on Sgt. Pete Habib’s desk, and he apparently told the parents he was “pushing it up the chain of command.” Fulghum contradicts that belief saying that there is no investigation into how the officers in either incident responded. He did say that the community liaison officer for the neighborhood was trying to gather the suspect and parents together to work out a solution. No such meeting has been planned, however.

This reporter made several attempts to contact the suspect in the initial case. He has yet to respond. Tacoma Weekly is not identifying him because he has not been charged with a crime. However, he is no stranger to the legal system. A background of public records shows that the 37-year-old man has faced 15 different driving, domestic violence and malicious mischief charges dating back to 2007 and involving incidents in Tacoma, Spokane, Lakewood, Pierce and Whitman counties. The most recent local cases were domestic violence and threatening bodily harm in 2009. Those Tacoma Municipal Court charges were dismissed with prejudice, which means they will not be refiled. A 2012 case involves a failure to file a change of address with the Department of Licensing. Neighbors have said the man has since moved from the area. They, however, point out that they have never seen him with a bb gun but know that he has a 30-06 Springfield rifle, which is similar in design to what the children described and later determined by officers to be a bb gun and then a stick. Police officers in three jurisdictions outside of Tacoma were asked to review the basics of the “man with a gun” incident to see how, or if, they would respond differently than what happened in Tacoma. They said they would have filed a police report to create a paper trail if more incidents are alleged later. “I would have at least filed a police report,” one officer said. “That seems like a crime to me, even in Tacoma.”

PLOT TWISTS

Another twist in the case is that Keith O’Rourke, Sgt. Pete Habib and Matt Verkoelen have killed gunmen in the line of duty after feeling threatened by men with firearms in much the same way the children felt threatened. O’Rourke, a six-year veteran of the department, has been present at three officer-involved shootings. He did not fire his service weapon in two of those cases when other officers shot.

The third involved O’Rourke responding to a domestic violence call along South ‘M’ Street this fall, where he spotted a man drive up to a house and attempt to run inside with a gun in his hand. O’Rourke fired twice, killing 29-year-old Prince Jamel Gavin, a Joint Base Lewis-McChord soldier, with a single shot to his chest. A .45-caliber handgun was found at the scene.


Verkoelen was patrolling with another officer, Sean Mallott, Jan. 28, 2011, when they fatally shot a mentally ill man after he fired a handgun at them while they investigated him as a possible suspect in a vehicle prowling case that had occurred along Puyallup Avenue. The officers stated the man reached into his jacket and pulled out a revolver, firing it twice at them before he attempted to run away. They returned fire, hitting him multiple times. Robert David O’Connell, 42, reportedly continued to move after being shot. Mallott fired several more bullets into Connell until he no longer moved. O’Connell died at the scene. An independent review determined the shooting was justified.

At about 8:25 p.m. on Oct. 30, 2010, Habib, Verkoelen and officer Scott Harris shot and killed Kenneth Wickham in the parking lot of the Ram Restaurant along Ruston Way after Wickham pointed a handgun at the officers. Numerous officers responded to a 911 dispatch regarding a man standing in the parking lot of the Ram armed with a loaded .45 caliber handgun. According to witnesses, at some point during the conversation with the officers, Wickham abruptly changed his physical posture and pointed the handgun in a threatening manner towards the position where some of the officers were situated. Habib, Harris and Verkoelen simultaneously fired their weapons at him for fear of their own and others’ safety. Wickham was struck several times by the officers’ shots and immediately dropped the weapon and fell face first to the ground. Emergency aid units responded and Wickham was pronounced dead at the scene. An independent review determined the shooting was justified.

With the Police Department facing cuts, none of the officers involved in the case are on the short list to be laid off as the city battles to cover a $63 million shortfall.

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