Back in September 2016 Terence Crutcher — a quite large black man — was shot and killed by white police officer Betty Shelby in Tulsa OK.

I covered the case evidence in a prior post, Legal Game Changer: Terence Crutcher had “High Levels” of PCP when shot by OK police. Included in that post is an extensive discussion of the history and legal significance of a suspect not obeying instructions and returning to his vehicle.

Shelby has since been charged with manslaughter, and last night she appeared on CBS’s 60 Minutes television show. (Video here, not embed possible).

The segment was hosted by correspondent Bill Whitaker.

At the time of the shooting Crutcher was acting in a bizarre manner, wandering down the road in the dark after having apparently left his vehicle unattended and running in the middle of the roadway (across the two lanes of traffic). Shelby initially drove past Crutcher on her way to a domestic violence call, but stopped when she encountered the abandoned car. (Because her siren was not on, her dash camera was not recording.)

Crutcher walked onto the scene shortly thereafter, and their interaction would begin near Shelby’s patrol car, parked a short distance behind Crutcher’s vehicle.

On autopsy it was found that Crutcher had PCP in his system, and a vial of PCP was found in his car. He had previously served a four-year prison sentence for dealing crack cocaine.

Shelby initially inquired if the abandoned vehicle was Crutcher’s. He was non-responsive, however, and his very blank affect led Shelby to wonder whether he might be high on PCP, a drug known to be associated with acts of violence. Crutcher was substantially larger than Shelby. Crutcher also repeatedly placed his hands in his pockets, despite Shelby’s orders to the contrary.

Shelby grew concerned that he was looking for a weapon in his pockets. This sufficiently alarmed Shelby that she drew her sidearm to a ready position, and radioed for backup, stating that she was dealing with a non-compliant suspect who would not show his hands.

Around this time Officer Tyler Turnbough arrived on scene, with his siren and dash camera operating. The resultant video shows Crutcher walking slowly from the patrol car to his own vehicle, with Shelby a short distance behind him. His hands were raised, but he was otherwise completely non-compliant with the officer as he approached his car. At this point Shelby was concerned that Crutcher was moving to his vehicle to obtain the weapon he had not found in his pocket.

Dash camera video of shooting

Officer Turnbough exited his patrol car and quickly runs up beside Shelby, drawing his Taser device as he does so. Turnbough, also interviewed on 60 minutes, states that he chose to deploy his Taser because Shelby already had her gun drawn. If Shelby had had her own Taser drawn, he said, he would have drawn his gun.

The two officers are now between Crutcher and the dash camera of Turnbough’s patrol car, so it becomes difficult to see Crutcher with any great deal of clarity. It is clear, however, that he has approached the driver side door of his car, the window of which was open.

Crutcher Reaches Into His Vehicle

At this point both Officer Shelby and Officer Turnbough state that Crutcher moved to reach into the vehicle. As Shelby describes the events on 60 Minutes:

His shoulder dropped, his arm dropped, and he’s reaching in[to the car]. It’s fast.

Shelby ended the aired interview with this comment:

Bill Whitaker: Was Terence Crutcher’s an avoidable death?

Betty Shelby: Yes.

Bill Whitaker: Did this have to play out the way it did?

Betty Shelby: No.

Bill Whitaker: What would’ve changed things?

Betty Shelby: If he would’ve complied.  If he would have communicated with me, if he would’ve just done as I asked him to do we would not be here. You and I would never have met and no one would ever know my name.

Both officers fired their weapons—Shelby a single round from her service pistol and Turnbough his Taser. Turnbough explicitly states that he is responding to the same perceived threat as did Shelby.

It is impossible to tell from the dash camera video, or from video captured by a police helicopter overhead, precisely what movements Crutcher was making. That, however, is just another way of saying that the only available evidence is that undeniably non-compliant Crutcher was reaching into the vehicle, as the officers claim.

About 10 seconds after the shot was fired Crutcher collapsed to the ground and Shelby radioed that shots had been fired. Crutcher’s single gun-shot wound would prove fatal.

A police investigation of the shooting was promptly initiated, but even before that investigation was completed the local prosecutor had charged Shelby with manslaughter. Why? We can only speculate. Shortly prior to this shooting in Tulsa OK, however, there had been another shooting of a black man by police

 

officers in Charlotte NC, and that shooting had resulted in riots and property damage in Charlotte. It seems likely that the OK prosecutor moved as swiftly as he did in the hope that by doing so he could avoid similar riots in Tulsa. In the event, there were no riots in Tulsa.

Authorities in Baltimore applied a similar rationale in charging six police officers in Baltimore over the in-custody death of Freddie Gray. Three of those officers would be acquitted in bench trials, and charges against the other three were ultimately dropped when the prospect of convictions seemed non-existent.

Burden on Prosecution to Disprove Self-Defense Beyond a Reasonable Doubt

Officer Shelby will naturally raise a legal defense of self-defense in her upcoming trial on the manslaughter charge. Under Oklahoma law it will be the prosecution will bear the burden to disprove self-defense beyond a reasonable doubt, or the jury will be instructed to acquit Shelby of the manslaughter charge.

This would seem an impossible burden for the prosecution to carry. Literally all of the available evidence in the case is consistent with Shelby’s narrative of self-defense. None of the available evidence of self-defense is inconsistent with self-defense.

While it would be nice to have useful video footage of the moment of the shooting, the simple reality is that very few shooting cases that go to trial have the benefit of any video footage at all. In those cases, as in this one, the evidence is in the form of witness statements, and in this case the only witnesses with personal knowledge of the moment of the shooting—Officer Turnbough and Officer Shelby herself–are giving narratives consistent with self-defense.

Absent even a hint of evidence to counter that narrative of self-defense, it hardly seems possible that the prosecution could hope to disprove Shelby’s self-defense claim beyond a reasonable doubt.

Frankly, the whole matter strikes me as legally very straightforward, with an acquittal all but a certainty if a reasonable jury is empaneled.

Of course, all of the jurors know they will eventually be returning to their communities after Shelby’s trial, and an acquittal in Oklahoma can only mean that each and every one of the jurors voted for a verdict of not guilty.

Whether that might influence their deliberations is impossible to know, but it certainly does not seem beyond the realm of possibility. (It was precisely because of this concern that the acquittals of the Baltimore officers were the result of bench, rather than jury, trials.)

“Tragic Narrative of Police Shooting Unarmed Black Men”

Perhaps the most notable portion of the 60 minutes interview to me, however, was the portion with Tiffany, the twin sister of Terence Crutcher.

She, of course, has no personal knowledge of the events in question, and knows no more than anybody else of actually transpired when her brother encountered Officer Shelby, yet she is utterly convinced that her brother’s shooting was unlawful.

Tiffany Crutcher

Indeed, she goes further, and places her brother among a list of other purportedly unarmed black men shot by the police.  More specifically:

Whittaker [narrating]: “Terence Crutcher’s twin sister, Tiffany, says her brother’s death is a tragic narrative of police shooting unarmed black men.

Tiffany: “I saw Trayvon Martin, I saw Mike Brown, I saw Philando Castille, I saw Tamir Rice. But never in a thousand years would my family, would we have thought, that we would be on their side of it.”

Setting aside the question of whether it was reasonably foreseeable that a convicted drug dealer actively using PCP might be at a somewhat higher risk of being shot by the police than might otherwise be the case, the list she presents in supporting this “tragic narrative of police s hooting unarmed black men” is remarkable.

Trayvon Martin was not shot by the police. He was shot by George Zimmerman, who has never been a police officer.

Mike Brown was indeed an unarmed black man shot by a police officer, but only after he viciously attacked that officer, got shot trying to take that officer’s gun from him, and then charged the officer when held at gunpoint. It is notable that Mike Brown was much larger than the officer he attacked, and clearly unhesitant in attacking and attempting to disarm a police officer pointing a gun at him.

Philando Castille was shot by a police officer, and that shooting might yet turn out to have been unlawful. But Castille was not an “unarmed black man,” he was in fact armed with a gun.

Finally, we have Tamir Rice. Rice was shot by a police officer, but Rice was not “unarmed” for any useful values of the term “unarmed.” Police were responding to 911 calls about Rice pointing an apparently real handgun at people in a public park. When they arrived on scene, the 200-pound Rice immediately reached for that apparently real handgun in his waistband, and got himself shot as a result. It would later be found that Rice’s gun was in fact not an actual firearm.

“Gun” of Tamir Rice

The fact that Rice’s gun later turned out to not be an actual firearm does not make his shooting unlawful. The police, and all of us, are entitled to act in self-defense on reasonable appearances—if it reasonably looks like a gun, we can defend ourselves as if it were a gun.

–-Andrew

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.

[Featured photo is a screen capture of 60 minutes video, as is the photo of Tiffany Crutcher. The dash cam image of the Terence Crutcher shooting scene and the photo of Tamir Rice’s gun are both drawn from publicly available evidence in the respective cases.]

[4/9/17: This post has been updated to remove a mistaken reference to the race of the police officer who fired the fatal shots in the mentioned Charlotte NC shooting of a black suspect. –AFB]