When is police deadly force justified?

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BURLINGTON, Vt. (WCAX) Our WCAX legal analyst Jerry O'Neill offered his experience and perspective on Tuesday's fatal officer-involved shooting, and outlined what the state's attorney will now have to consider when he determines if it was justified.

Former U.S. Attorney Jerry O'Neill is no stranger to rulings on cases regarding police conduct.

Jerry O'Neill: What you're evaluating is whether or not the police had an objective basis to believe that they, or someone else, were in danger of death or serious injury.
Reporter Tyler Dumont: Is it in that moment they fire?
Jerry O'Neill: It's precisely at the moment they fire.

O'Neill reviewed raw video captured by a Channel 3 News photographer which shows suspect Nate Giffin walking around on an athletic field while holding a gun. "Makes me uncomfortable every time he lifts the weapon up," O'Neill said.

Reporter Tyler Dumont: What does that body language say to you?
Jerry O'Neill: The body language says to me he's not really sure what he wants to do. He's swinging the gun around, he's not really bringing it up and pointing it directly and holding it there. But rather, he's swinging it around, trying to figure out what he wants to do. But, he's holding on tight to that gun.

Eventually Giffin gets closer to officers. Out of view of our camera are tactical team members who have him at gunpoint. "He starts walking towards them, which is dangerous. He takes his hood off as if he's about to undertake some action. He keeps moving the pistol around, as if he's going to do something with it," O'Neill said.

Then, Giffin is seen turning. That's when nine police officers open fire. "It's hard to understand why they shot at that point. We don't hear the dialogue, but objectively he isn't doing anything that he wasn't doing earlier -- which is walking. He's got the pistol in his hand, but he doesn't raise it up," O'Neill said.

O'Neill says there was likely no way police could have known the weapon was actually a BB gun, and because Giffin's back is turned to our camera just before police fire, it's unclear if he said anything to them, and if so, what.

Reporter Tyler Dumont: How much do words weigh with actions?
Jerry O'Neill: It's the combination. If he's saying I'm going to come up towards you and shoot and kill someone of you -- that's a situation that would probably give rise to the belief that we have to stop him before he snaps it up and shoots. If on the other hand, he's just walking along and holding it down low and not saying anything to them -- in that case it changes the situation and you have to wonder whether it was necessary or not.

There remains factors we do not know -- including specific state police tactics, what Giffin may have said to police or others just before the shooting that led officers to fire at that moment. All of those are part of the investigation which is still ongoing.