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This post has been updated.
There were no eyewitnesses to the 2012 shooting of Victor Ortega by San Diego police officer Jonathan McCarthy. But there were “earwitnesses” — people who heard the struggle in a Mira Mesa alley without seeing it — and none reported hearing McCarthy warn Ortega before he fired two fatal shots.
That’s because saying, “Stop or I’m going to shoot” would have taken a fraction of a second too long — at least according to a controversial police tactics and training expert, William Lewinski, whom the city attorney’s office has hired as an expert witness in a lawsuit filed by Shakina Ortega, the victim’s widow.
Lewinski was the subject of a lengthy New York Times story earlier this month that challenged the validity of research he’s used to support his testimony in more than 200 cases. The article questioned whether, amid a national push for police to rethink use-of-force tactics, Lewinski is doing policing more harm than good.
From the New York Times:
His conclusions are consistent: The officer acted appropriately, even when shooting an unarmed person. Even when shooting someone in the back. Even when witness testimony, forensic evidence or video footage contradicts the officer’s story. …
A former Minnesota State professor, he says his testimony and training are based on hard science, but his research has been roundly criticized by experts. An editor for The American Journal of Psychology called his work “pseudoscience.” The Justice Department denounced his findings as “lacking in both foundation and reliability.” Civil rights lawyers say he is selling dangerous ideas.
In a five-page declaration in the Ortega case, Lewinski argues that in “a violent dynamic encounter,” a person “in a forward charge” can close a distance of 11 feet in one second or three feet in a third of a second. Add in a forward sweep of an arm and you can cover two additional feet. Saying, “Stop or I’m going to shoot” takes between one and two seconds — too much time for an officer who needs to react quickly.
McCarthy told police investigators that Ortega, who was unarmed, rushed at him from a distance of 5 feet and tried to grab his gun, forcing the officer to shoot. Forensic evidence, though, suggested Ortega was on his knees, bent forward, when he was shot. The earwitnesses reported hearing Ortega say, “Are you kidding me?” in a tone described as “one of compliance and disbelief, not confrontational or violent.”
In the Ortega declaration, Lewinski writes that his findings are based on “peer-reviewed research” published in 2013:
From my peer-reviewed research, published last year in the International Journal of Exercise Science, in a violent dynamic encounter, in one second, the average person, in a forward charge, can complete three strides (covering a distance of at least 11 feet) and be partially through a fourth step.
What he doesn’t mention, though, is that the research had nothing to do with law enforcement scenarios – nor were the subjects in the study “average.” The study, “The Influence of Start Position, Initial Step Type, and Usage of a Focal Point on Sprinting Performance,” looks at how collegiate athletes performed in various sprint trials in order “to better prepare them in training.” The subjects were taped doing short sprints toward a video camera in a college gymnasium.
Through a spokesman, Lewinski declined to comment. Lewinski writes on his website that the study findings “can help trainers to expose officers to the true speeds at which assaults can occur and condition them to approach and respond to dangerous threats accordingly.”
City attorney spokesperson Gerry Braun declined to say how much Lewinski was paid for the declaration or whether he’d testify if the lawsuit goes to trial, since the case is ongoing.
So far, Lewinski has been paid $18,587.50 for services in the Ortega case, though the lawsuit is ongoing.
“Dr. William J. Lewinski is an expert on high-stress life-threatening encounters,” city attorney spokesperson Gerry Braun wrote in an email, “and on the distance an assailant can close faster than an officer can react. He is an experienced scientist who has testified in hundreds of cases. Judges across the country have found him qualified to testify as an expert witness and accepted his testimony.”
Christina Denning, Shakina Ortega’s attorney, said that unlike other witnesses in the case, she opted not to depose Lewinski.
“It would have been a waste of time,” she said. “His testimony is the same in every case.”
Braun said the Ortega case is the third time the city attorney has used Lewinski. So far, he’s been paid $35,988.65 for work on the three cases.
In 2010, Lewinski was paid $4,512, Braun said, to provide a written declaration in a lawsuit filed by Luis Silva, whose 8-year-old son, Johnny, and ex-wife, Rachel Silva, were shot by off-duty San Diego Police officer Frank White in a road-rage incident. According to court documents, White brandished his gun after Rachel Silva followed him into a parking lot and blocked his car. After Silva sideswiped his car, White opened fire as she tried to back away. According to city records, in 2009 and 2010, Lewinski was paid a total of $12,888 for a written declaration in the case of Alan Kosakoff, a 35-year-old paranoid schizophrenic off his meds.
Kosakoff led police on a high-speed chase and then pulled his car into his mom’s garage, where three officers confronted him. When he started to slowly reverse, two opened fire, even though the car was backing away from them.
In both cases, Lewinski was brought in to explain why an officer might continue shooting even though he’s no longer facing a threat. In the Silva case, White continued firing after Silva’s car had passed him. In the Kosakoff case, two officers fired seven times, with the fatal shot striking Kosakoff in the head after his car had cleared the garage.
An officer who’s firing rapidly, Lewinski explained in the Kosakoff declaration, and “engaged in multi-tasking (shooting and assessing),” might not immediately perceive that a person no longer poses a threat.
Attorneys for Kosakoff’s parents filed a motion asking a judge to rule the declaration inadmissible, arguing, “There is no showing that the declaration is the product of reliable principles or methods.”
According to court records, attorneys for the county of San Diego have used Lewinski at least twice, both in civil lawsuits involving the shooting deaths of unarmed Latino men. He also testified for the city of Coronado in a civil suit brought by former Chargers linebacker Steve Foley, who was shot by off-duty Coronado police officer Aaron Mansker. Mansker claimed Foley was advancing and had reached into his waistband. Lewinski testified that Mansker didn’t have time to confirm whether Foley had a gun. Foley, who survived the shooting but could no longer play football, was unarmed.
Correction/Update: An earlier version of this post said Lewinski was paid $12,888 in the Kosakoff case in 2010. City records received after this post was published show Lewinski received payments in 2009 and 2010 totaling $12,888. City attorney spokesman Gerry Braun initially said the city could not disclose how much Lewinski has been paid in the Ortega case. The records received after this post published show he has been paid $18,587.50.