Experts weigh in on 'split-second' decision, felony murder charge in Phoenix shooting

PHOENIX - Court documents say a Phoenix Police officer fired the bullet that killed a man in his south Phoenix home Monday evening, raising questions about use-of-force standards and Arizona’s felony murder laws.

The backstory:

The investigation began when officers responded to a shots fired call involving reports of ongoing violence on Jan. 26. Upon arrival, officers encountered a chaotic scene where Christian Diaz was reportedly on top of Edgar Garcia, striking him repeatedly.

Police later learned Garcia was the initial aggressor who had been shooting at the home while trying to break in.

The Arizona Department of Public Safety is investigating the shooting. The family of Diaz, a husband and father, says he died while attempting to protect them.

What they're saying:

"It's an absolute tragedy," said Josh Logan, co-founder and director of Guardian Training and Consulting and a former Chandler Police officer. Logan noted that while it is impossible to know an officer’s exact mindset, legal precedents for use of force include the severity of the crime and the immediate threat to others.

"We have somebody that's shooting a gun at people and potentially killing other people, so that's the highest of the high," Logan said. He added that based on preliminary reports, "The officer had to make a split-second decision with their rifle and potentially end the threat."

While no charges have been filed against the officer, Garcia faces several charges, including first-degree felony murder.

‘Felony murder applies’

Criminal defense attorney Josh Kolsrud explained that under Arizona law, a defendant can be held responsible for a death even if they did not pull the trigger.

"If the officer is the one that pulled the trigger, and he doesn't even know the defendant, how can the defendant be charged with felony murder?" Kolsrud said. "The reason is because when you bring a gun, and you start shooting at people, it's foreseeable that a police officer could fire their own weapon and somebody could die, and because that is a foreseeable and predictable result, felony murder applies."

Kolsrud gives the example of a person who acts as the "getaway driver" in a robbery. That person's friend is the one planning to go inside and rob a business or home, and that friend says they will simply point their finger at the person or people they meet under their coat to give the impression that they are armed.

The person driving the car sees the friend go inside and later return with a wad of cash. That person later finds out the friend did in fact shoot and kill people inside. Despite the fact that the driver did not shoot or kill the people, nor did they know it was happening, there was the foreseeable chance for death to occur, and the driver can now face a felony murder charge and potentially the death penalty.

Dig deeper:

Logan says he typically spends at least 30 hours studying cases when he is offering to be an expert witness for legal cases. The initial reports from this incident give him only part of the assessment he says would normally include body-worn camera footage, the full incident report from police, and autopsy findings.

The presence or absence of a weapon is just one factor in the decision-making for an officer, he says. Previous calls for service at the location, lighting due to time of day, and the individual officer's level of training can all play a part in any officer-involved shooting or other officer-involved incident.

He says typically in the Phoenix metro area, if an officer has a patrol rifle, that officer is likely already in a heightened state of alert regarding the potential for an armed confrontation. He adds that he feels a majority of law enforcement officers never want to use their issued firearms.