An officer may use deadly force:
"The word imminent means ‘about to happen.’ An "imminent threat" is an immediate threat. For a subject's threat to be considered "imminent," it must meet three criteria:
"Delivery System." The subject must have a means of using the weapon to inflict harm."
The law, the Policies and Procedure, and the Training Guides are clear. No matter what Officer Strausbaugh yelled, Officer Gonzales's use of deadly force is not justified if Michael Bell did not present an imminent threat, And Michael Bell did not present an imminent threat if he did not have Officer Strausbaugh's gun. No gun means no delivery system, and therefore no imminent threat.
First, Wisconsin State Crime Lab tested the gun and holster for DNA. It found Officer Strausbaugh’s DNA but not Michael Bell’s. The defendants hired Allan Friedman to dispute the Crime Lab's conclusion, Mr. Friedman agreed that there was no evidence that would support a finding of Michael Bell’s DNA on the gun. He disputed the Crime Lab's conclusion that Michael Bell's DNA was not on the holster, but in order to do so, had to use a threshold for inclusion that was so broad it violated the state Crime Lab Guidelines and his own laboratory's guidelines for inclusion. (Friedman's Lab Standards typically use a threshold of 100 RFUs.) To get Michael Bell’s DNA included in the holster sample he had to reduce his threshold to 45, a threshold so low he had not used it in any other case.
Second, eyewitness and defendant Erich Weidner initially stated that he only saw one hand on the gun. He ultimately changed his testimony to "two hands on the gun." This change only came after he realized that this was an important piece of information, a decision he made "When I was speaking with the lawyers." In other words, the defendants realize that only one hand on the gun means Strausbaugh's hand, not Bell's.
Third, Shantae Bell testified that she saw her brother's right hand behind his back with a handcuff on it when Officer Strausbaugh yelled "He's got my gun," and she yelled, "No he doesn't have it. Don’t kill him."
Fourth, Eyewitness Francis Clark testified that he saw an officer pull Michael's right arm behind his back and try to handcuff Michael when they had him against the side of the car.