Video may not be dispositive.
Last Friday night a black man named Terence Crutcher was shot and killed by police officer Betty Shelby in Tulsa, Oklahoma.
The case has already received a lot of attention as one of a line of recent incidents in which an unarmed black person was killed by police, and Tulsa Police Chief Chuck Jordan has called the video of the incident “very disturbing” and “very difficult to watch.”
It is quite early in this case, and experience has shown that what we know about it at this point is probably based on incomplete information mixed with at least a sprinkling of false information. So right now it’s not possible to come to any firm conclusions about what happened and whether Officer Shelby will face any legal liability for Crutcher’s death. Of course, that won’t stop many people from having very firm opinions about it.
With those caveats, here are some of the events and allegations so far:
(1) Two people had called police to say that a vehicle had halted in the street and was blocking traffic, and that the driver (who turned out to be Crutcher) was not in the car. When Officer Shelby arrived, she began to suspect, based on Crutcher’s somewhat vacant and non-responsive behavior, that he was under the influence of some substance that might have been PCP. PCP was later reported to have been found in his SUV, but this was after the incident rather than before.
(2) There has been no allegation that Crutcher ever attacked Shelby or the other officers who arrived when she called for backup. Nor has it been reported that he threatened them verbally or was aggressive in any way. He was intermittently cooperative and uncooperative with officers’ orders, such as (for example) the order to take his hands out of his pockets. Although he sometimes complied, he is alleged to have put his hands back into his pockets a few times, which aroused Officer Shelby’s suspicions that there might be a weapon there.
(3) Unfortunately there is no video or audio of the important early parts of the interaction between Clutcher and Officer Shelby, and the video of Crutcher’s hands during the all-important seconds just prior to the shooting, although taken from different angles, are difficult to see and analyze in part because there are many officers obscuring the sight (four were present in all, and they are quite close to Crutcher by that time). The video follows (video taken from this article):
And here is the helicopter view (most but not all of the voices you hear are from inside the helicopter):
(4) Around the same time that Officer Shelby fatally shot Crutcher, another officer had tased him, although it’s not clear whether these acts were simultaneous or not. Therefore it is possible that both officers were reacting to the same behavior on the part of Crutcher. That does not mean that their reactions were justified, but it does indicate they were reacting to something they perceived he was doing or not doing, which has been reported as the perception that he was reaching into the window of his SUV with his left hand. However, there are conflicting reports as to whether the driver’s side window that officers had perceived Crutcher as trying to reach into was actually open or closed at the time (here is a video of the Crutcher family’s lawyer making the claim that the window was closed).
(5) There has been no report as to what was being said by police to Crutcher as he was walking away, whether he responded, or whether there were any previous efforts to handcuff him or otherwise physically subdue him.
The Crutcher case is different from many other cases to which it bears a superficial resemblance. For example, unlike this case, there was no physical fight with police. Nor does it resemble the very well known Michael Brown (Ferguson) case, where Brown had grappled forcefully with Officer Wilson and tried to take his gun, then later came charging aggressively at him. Nor was it like the Tamir Rice case, in which a 195-pound 12-year-old was shot by police while brandishing an apparent gun that turned out to be a toy.
The lack of bodycam video makes the Crutcher case especially difficult to evaluate, and in the video of the final stages leading up to the shooting (already posted), the most vital moments are difficult to see and interpret. With the caveat that we don’t really know what occurred at the beginning, according to Officer Shelby it seems that Crutcher’s non-compliance, coupled with what she perceived as a move towards the supposedly open window of the vehicle, made her feel in danger from a possible gun.
Is that enough to justify the use of deadly force by the officer? Was the force she used commensurate with what a reasonable officer would have used under similar circumstances? These are unanswerable questions at the moment.
(6) Lack of compliance could be an issue.
Andrew Branca, our resident expert on the topic of self-defense, has rightly cautioned that non-compliance during police encounters such as traffic stops can rapidly escalate. Here he is describing what happened in the Sandra Bland case (Bland was taken into police custody during a traffic stop and later committed suicide, so her encounter with police was not a case of an officer using deadly force):
Once the officer has made a lawful stop he is permitted to take whatever steps may be reasonably necessary to ensure the safety of himself, the suspect, and the general public while the stop is taking place. This includes asking the driver of a stopped vehicle to step out of the vehicle, and would even authorize the officer to handcuff the suspect during the duration of the stop…
In the case of asking Bland to exit the vehicle, that again was consistent with officer safety, and perfectly acceptable law enforcement doctrine, as it separates the suspect from any weapons they may have concealed in an immediately accessible place inside the vehicle. Indeed, the officer is also permitted to search those easily accessible areas of the car for a prospective weapon, with no requirement for a search warrant…
In [Bland’s] case, the officer moved incrementally up the use-of-force continuum, consistent with the duration and intensity of Bland’s non-compliance, from simple verbal commands, to increasingly strident verbal commands, to warning of imminent non-deadly force, to threatening non-deadly force, to use of non-deadly force, to handcuffing and restraining the violently non-compliant suspect, and then (I’m speculating based on audio) using routine (albeit definitely painful) handcuff-control techniques on Bland as she continues to be non-compliant.
Bland, in turn, engages in explicitly criminal conduct in resisting the lawful arrest and committing a simple assault/battery on a law enforcement officer (e.g., kicking him).
Crutcher, unlike Bland, was not stopped for a traffic violation. When Shelby encountered him he was already outside his vehicle, which is alleged to have had some mechanical trouble. We lack knowledge of whether Shelby had “moved incrementally up the use-of-force continuum,” but as yet we have no evidence of an attempt at the use of non-deadly force until the tasering, which seems to have occurred more or less simultaneously with the shooting. Nor are there allegations of any prior attempts to handcuff him, although it must again be cautioned that we don’t have the full story.
It is certainly possible—even probable—that more evidence will come out that will change the way we look at this, including more audio or video or eyewitness testimony. Whether or not Terence Crutcher was under the influence of PCP has yet to be learned, but it is less relevant than his actual behavior and whether it justified Officer Shelby’s reaction, which should be judged by the standard of reasonableness—that is, what “a reasonable and prudent police officer” would do under “the same circumstances, with the same capabilities, possessing the same specialized knowledge, and under the same stresses.”
(7) Crutcher’s return to the car was a potential threat based on common police training.
It is important to note the significance of Crutcher’s returning to his car. We don’t know what (if anything) he said, or what orders or warnings Shelby or any of the other officers made in order to impress on him the need to stop. But police are trained to be very aware of the dangers that can be involved in allowing a person to return to his/her vehicle, and this knowledge was likely to have influenced Officer Shelby when Crutcher began what turned out to be his final walk.
As Bob Owens at Bearing Arms notes, a well-known police training video on this subject involves the shooting of police officer Kyle Dinkheller, who was killed in 1998 by a man he had stopped for a speeding violation named Andrew Brannan. After demonstrating extreme verbal aggressiveness, and after being hit (but not subdued) by Officer Dinkheller with his baton, Brannan went back to his vehicle, got a rifle, and killed the officer (you can watch the video here if you would like; it’s very chilling).
The Dinkheller case is explained in detail in this article, which is a lengthy discussion of what went wrong during the confrontation and what other approaches might have prevented the escalation of the situation. There are many obvious differences between the Dinkheller case and what is reported to have occurred with Crutcher, but one very large difference is that Dinkheller waited a long time to use potentially deadly force on Brannan, who had established his verbal aggressiveness, yelled obscenities at Dinkheller, gone back to his vehicle, rooted around in it looking for something, brought the rifle out, loaded it, and refused to drop it when ordered. So the threat from Brannan was relatively slow in developing, and the deadly force from Dinkheller came late—too late, as it turned out.
Contrast that with the Crutcher case. An officer is not required to see a gun before he/she shoots in self-defense, but there must be some reasonable perception of a threat of serious harm, and it is not at all clear whether such a perception was present in the Crutcher shooting.
When Terence Crutcher returned to his vehicle against the lawful commands of police, he put his life, the lives of officers, and everyone else at risk.
If you refuse to follow lawful commands just because you don’t feel like it and put officers in a situation where they have a reason to believe that you are reaching for a weapon or otherwise constituting a deadly force threat, you run the risk of being shot as Terence Crutcher was. Officers cannot determine if a suspect is armed or not until after the fact, and are authorized to use deadly force based on your actions, not on necessarily seeing a weapon.
It is not easy to make such decisions in the stress of the moment, and yet police officers must do so. React too slowly and you can end up dead. React too quickly or in the wrong situation and you can end up killing an innocent person, and perhaps getting convicted of a crime. But the difficulty and stress of the situation is not an excuse, and police don’t have carte blanche to kill anyone who doesn’t show perfect compliance. Time will tell into which category this case falls.
[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]