Patterico's Pontifications

12/9/2017

The Shooting of Daniel Shaver: The Law Enforcement Perspective

Filed under: General — Patterico @ 4:30 pm

On Thursday, an Arizona jury acquitted Philip Brailsford of murder and manslaughter in the fatal shooting of Daniel Shaver. The online reaction has been that it was a “murder” and that the jury was insanely wrong.

I’m not so sure about that. Maybe that view is right. Maybe it’s not.

Many pieces ask you to make your initial judgment by showing you a video with very little additional context. I’m going to take a little different approach, and give you the context that the police officers were facing before I give you the video to watch.

The shooting occurred after police were called to a Mesa La Quinta Inn & Suites on a report of a person pointing a gun out a fifth-floor window. A couple in a hotel hot tub told staff they saw a silhouette with a gun pointed toward a nearby highway.

. . . .

Police later learned Shaver had been showing his pellet gun to Monique Portillo and Luis Nuñez, two hotel guests Shaver had met earlier that night. Both testified Shaver Commercial inflatable water slides for sale. had been playing with the pellet gun near his hotel room window.

Shaver turned out to be unarmed when he was shot, but police did find the pellet gun inside the room.

Before I show you the events leading up to the shooting and the shooting, I am going to show you the very end of the video after the shooting — because it gives you some perspective on where the hotel room was:

You can see that the room is just beyond where they had Shaver initially lie on the ground. If they simply walked up to him and cuffed him, as many have suggested they should have done, they would have spent extra time in front of the door, where a gunman with a long gun could be just behind the door, waiting to shoot them.

Now, with that context, let’s watch the video. I warn you: it’s disturbing. Not just because of the shooting that happens at the end, but also because of the angry, contradictory, absurd commands barked by a sergeant at the scene. Critical to understand is that the shooter is not the person barking the idiotic commands. The voice you hear is that of a sergeant — the supervisor of the shooter. Here’s the video:

I am going to sum up my position on this in a nutshell, right up front, so there can be no mistake about what my views are:

  • 1) I believe this was an avoidable tragedy.
  • 2) The police officer’s instructions were absurd and contradictory.
  • 3) The video is infuriating because much of the time it’s impossible to guess what the cop actually wanted Shaver to do.
  • 4) Shaver’s reaching for his waist was a fatal mistake.
  • 5) The cop who shot Shaver was probably really scared.
  • 6) Whether this shooting was criminal or justified is a decision for a jury that has all the evidence. You can’t make up your mind based on this single video. You need more facts.

It’s points 4 through 6 that upset people the most, and therefore those are the points I plan to spend the most time on. That’s not because those points are the most important to me. It’s because I think I can offer the most value by discussing those points. You probably already feel points 1 through 3 in your gut. It doesn’t take a lot of discussion to explain these points, but I’ll start with them anyway.

One cannot “crawl” with their hands in the air. One cannot easily crawl with their legs crossed. It is impossible to “crawl” with your legs crossed and with your hands in the air. These have to be some of the stupidest instructions ever given to a suspect.

When a cop 1) screams orders at you at gunpoint, 2) screams also that you that you will be killed if you make a mistake, and then 3) gives you contradictory instructions, what in the hell are you supposed to do? Not everyone handles that situation as calmly as the old man did in Raising Arizona:

A good part of the reason people are upset by this is that they put themselves in Shaver’s position, and they imagine an angry cop barking contradictory orders at them . . . and they wonder: what would I have done in that situation? What would I have done when some cretin screams at me to crawl with my legs crossed? What would I have done when someone told me to crawl with my legs crossed with my hands in the air?

It’s insane. These ridiculous orders, and the cop’s tone, escalated the situation and made the shooting a thousand times more likely. The sergeant has no business being a police officer.

OK, now here comes the part you aren’t going to like. Shaver made a mistake putting his hands behind him without being instructed to. Thirty seconds later, he made a fatal mistake reaching for his waistband when he had been specifically told not to do that.

So, was it murder or was it justified? I don’t know. I didn’t see the trial. To me, the video alone is not necessarily enough. You need full context — the kind of context that you lack, because you did not see the trial.

You did see him reaching for his waistband, right?

I’ll take you through those actions in detail at the end of the post, with clips and screenshots of the orders Shaver was given and how he defies them. But first, let’s get some more context.

IMPORTANT NOTE THAT MANY WILL IGNORE: Please don’t tell me that I am “excusing” or “justifying” the shooting in the following discussion. It’s possible that a rational jury could find the shooter guilty of manslaughter or murder. That is not something I would say if I were “excusing” or “justifying” the shooting. I know that people love to get upset about things on the Internet and then unload on someone who they believe disagrees with them — and this is even more satisfying and cathartic if you can convince yourself that your opponent is simply evil. But it would be dishonest in the extreme to tell me that I am justifying this when I have repeatedly explained that I am not. So if you want to feel that frisson of self-righteousness that accompanies the act of telling off a jerk, find someone else who has no doubts about, or criticism of, the cops’ actions here. I do have doubts about, and criticism of, the police actions here.

A TRULY BAD OFFICER-INVOLVED SHOOTING

I’d like to start out the discussion with an example of an undeniably bad officer-involved shooting, by way of contrast. Here’s a video from 2016 in which an officer responded to a call of a man harassing people outside a convenience store. The officer sees a man fitting the description — or so he thinks — and confronts the man, who seems calm but continues to go about his business. Well, of course! He’s minding his own business talking on the phone! Why should he have to stop what he is doing just because some officer is yelling at him? The officer starts to freak out about the fact that the guy won’t take his hands out of his pockets, even though nobody ever said the man at the convenience store was armed. What happened next is an object lesson in how police officers get carried away at the slightest “false move.” There is about a minute of video here, and I warn you that it ends in a shooting:

OK, my description of the video was deliberately misleading — for a reason. I wanted you to view the video using the assumption that the man being stopped by the police officer was non-aggressive — so that you could actually feel, emotionally, in your gut, how someone who doesn’t appear to be presenting much of a threat can turn deadly in a heartbeat. Every police officer knows this, which is why their jobs are so dangerous and why their wives worry each time they leave the house that they might never come back.

There are plenty of other videos you can find online where people look normal one second and are shooting the next. So when cops think you may have a gun they do not want you to reach for your waistband — and if you do, it’s not good.

BUT HE WAS SOBBING! LOOK AT THE CONTEXT!

I have also had people tell me that the fact that the guy seemed “compliant” means he was not a threat. That we have to look at the context.

I’m happy to look at the context. That’s why I started the post by looking at what the officers believed they were responding to: a report of a man pointing a long gun out a hotel room window towards a highway.

Obviously he didn’t have a long gun on him. But that means another man with a long gun might still be in the hotel room. That is almost surely why they didn’t just walk up to him and cuff him. They wanted to minimize the time of exposure to a possible gunman behind the door.

Also, someone pointing a long gun out of a window in a hotel room might also have a handgun in his waistband.

Context can change. If you want to talk context, here’s a video of a traffic stop in which the motorist is dancing and cursing. Watch about 23 seconds, ending with the motorist dancing:

Ha ha! What a funny old man! It’s so comically absurd that it almost looks like one of those parody videos where the cop is doing field sobriety tests:

But the dancing motorist in the non-parody video turns out to be aggressive, showing you that context matters, but context can change on a dime. If you have a couple of minutes, watch the rest of the video with the dancing motorist. What happens is no parody. It was very real:

For better and for worse, that video is shown in police academies across the country as an example of what can happen to a police officer when he hesitates:

Experts and activists keep calling for de-escalation training, less-lethal force, anything to stop an officer’s bullet from taking flight. But a beanbag shotgun won’t fit on a utility belt. A baton has very short range. Pepper spray can blow back in your face. A Taser might not work on a suspect in a heavy coat. And in a nation with nearly as many guns as people, the Kyle Dinkheller video tells officers there could be a time when pulling the trigger is the only way.

“It has saved innumerable officers’ lives, in my opinion,” Ron Barber said.

Kirk Dinkheller believes the same thing, which is why he regularly visits police academies to expound on its lessons. He says several officers have approached him over the years and told him the video saved their lives. Its full effect is impossible to calculate. Many thousands of officers have seen it, and they’ve been in innumerable tense situations, and perhaps in some of those situations the video has made them a little quicker to fire. Is this a good thing? That is also unknowable. The line between firing too slowly and too quickly can be very, very thin.

Again, I am not comparing this man’s actions to Shaver’s actions. Instead, my point is that a dancing man turned violent. If the police officer had fired at the guy when he went back towards his truck, people would have said: how could he shoot a guy who just moments before was dancing around like a clown? In context, isn’t he obviously comical and harmless? Maybe. But context can change.

ONE VIDEO FROM ONE CAMERA ANGLE CAN BE MISLEADING

Another issue is that a single camera angle does not always tell the whole story. Here is a 26-second clip of police shooting an unarmed man in the back. It’s all caught on video:

This really happened. The man was unarmed. He was shot in the back. What was the cops’ lame story this time, to justify their cold-blooded execution? Get this: the cops said that the man had a cell phone. They gave him orders to drop it and he refused, instead repeatedly pointing it at them like it was a gun. Why, they had to shoot him!

That’s obviously a load of horse excrement, right? First of all, who points a cell phone at cops like it’s a gun? Second of all, it’s all caught on tape. You just watched the cold-blooded, first-degree-murder execution of an unarmed man. The cops aren’t just murderers; they’re liars, undone by the cold hard evidence of the dashcam.

There is no excuse for this, right? Verdict of Twitter court: convicted! Next case!

Except . . . there is a second angle:

How about that? Turns out he was indeed pointing the cell phone precisely like a gun, as you can see in this screenshot from 11 seconds into angle 2:

Angle 2 Screenshot 1

There is a police officer off to the left when he points the phone. I’m shocked that they didn’t shoot him then and there, but it probably has to do with reaction time and the fact that he stops pointing it. At that point, though, running through the officers’ minds as the man walks away are two things: 1) this guy has a gun and 2) he just pointed this gun at an officer. So when he suddenly spins around and seems to point it again, as he does here, 17 seconds in to camera angle 2, that’s all it takes to get them to open fire:

Angle 2 Screenshot 2

Again, due to reaction time, they’re not firing until he has again turned his back. Things don’t happen instantaneously in real life. You have to process visual cues and react.

Again: my point here is not to compare the actions of this individual to Shaver’s actions, or to suggest the facts are comparable in any way. The only reason I am presenting this example is to illustrate — I think pretty effectively — that a single camera angle doesn’t always show everything.

But what more do we need to know from the Shaver video? You could say the same thing about what you just watched, after watching the first video. What else did we need to see there? We didn’t know until we saw the second video, did we? The point is, one angle doesn’t always show everything.

LOOKING CLOSELY AT THE SHAVER SHOOTING

And now, with that context, let’s look at the critical moments when Shaver defies instructions and makes suspicious motions with his hands. Watch this 11-second clip from about 30 seconds or so before the shooting. Shaver puts his hands behind his back — where a gun could be in his waistband:

Nobody shoots him at that moment, but the cop explicitly tells him that if he does that again, he will be shot. He repeats the warning in this six-second clip:

COP: Your hands go into the small of your back or down, we are going to shoot you. Do you understand me?

SHAVER: Yes, sir.

And then Shaver reaches towards his right waistband in this two-second clip:

Here are a couple of screenshots:

Shaver reaching for his waistband:

Shaver Reaches for Waistband 1

And here he is coming down from the reach:

Shaver Reaches for Waistband 2

Is there anything in his hand? We know now that there wasn’t, but look closely. Are you willing to risk your life that this guy who just defied instructions not to reach for his back didn’t just get a gun?

Watch those two seconds again:

A detective testified during the trial that Shaver may have been going to pull up his pants. That is possible — and if that’s what happened, it compounds the tragedy. But a police officer who sees a man going for his waistband in contravention of lawful instructions has a difficult decision to make. I’m guessing the jury understood that.

THE LAW

In Twitter Court, the unwritten instructions for determining whether a killing is murder or manslaughter go a little something like this:

  • First-degree murder: killing that makes you super-upset
  • Second-degree murder: killing that makes you pretty damned upset
  • Manslaughter: killing that upsets you, but not as much as other killings do

In real court, a jury is read actual instructions that come from actual statutes passed by legislatures.

What is the law of murder in Arizona? I don’t know, and I’m not going to try to give a definitive view based on quick Internet research. My recent experience with people trying to explain the law of murder in California to me, based on quick visits to Web sites run by criminal defense attorneys, reinforces my belief that it’s easy to reach a false belief that you understand the law based on Googling it. I’m happy to discuss how California law would treat a case like this, but I can’t tell you how the Arizona jury was instructed, because every state’s law is potentially different.

In California the decision between murder and manslaughter is based on whether there was actual honest fear. The decision between manslaughter and an acquittal is based on whether that fear is reasonable. Someone who kills out of an honest belief that they needed to use deadly force is not guilty of murder. But if their response was unreasonable, they are guilty of manslaughter. It’s called “imperfect self-defense.” If their response was reasonable, it’s a not guilty.

I’m not sure if this is the law in Arizona. The doctrine of “imperfect self-defense” might not be available in Arizona. Apparently Brailsford was also acquitted of something called “reckless manslaughter.” How an honest but unreasonable use of force is analyzed under these laws, I am not even going to try to guess.

APPLYING THE LAW: SEEING IT FROM THE OFFICERS’ POINT OF VIEW

So was the jury wrong? I don’t know, because I didn’t see the trial. Based on what I know, I think the range of reasonable outcomes included a not guilty.

You’re probably recoiling against that conclusion. I think part of the reason might be that the jury explicitly has to look at the point of view of the shooter to make its decision. And that is a very difficult for most people to do in this case. Judging from my interactions with people on Twitter last night, any attempt I made to get people to understand the situation from the perspective of police officers was quickly turned around to viewing it from Shaver’s point of view.

I can see this situation from both sides.

I can imagine what it’s like to be in the position of the guy who was shot. I speak from some personal experience here, as someone who has had police officers point loaded guns at me twice — once as a teenager and once as an adult. (I did nothing wrong either time and each resulted from a misunderstanding that was quickly resolved.) I know what it’s like to be in that situation, and I can easily put myself in the decedent’s situation. I think just about anyone who watched the video can easily empathize with the plight of the decedent, desperately trying to follow the contradictory barked orders of an angry police officer.

I get it. From Shaver’s point of view, he is trying his best to follow absurd contradictory instructions.

But I can also put myself in the shoes of the police officers. And from the officers’ point of view, he reaches towards his back twice. It’s not five minutes of pure compliance, as I have seen many argue on Twitter. They’re responding to a call of a man with a gun. The guy has already reached towards his back once. He’s been told not to do it again.

If you honestly think this police officer shot while feeling no fear, it’s murder. Many point to the fact that the shooting officer etched “You’re f*cked” into the dust cover of the weapon that was used — a fact the jury was not allowed to hear. But even with that fact, the notion that the cop shot for the fun of it just seems like a wacky conclusion to me. The woman was not shot, and Shaver wasn’t shot until he reached for his waist..

Brailsford may have been too quick on the trigger. He may have acted unreasonably. But I think it’s ridiculous to believe that he shot a man on video for giggles.

So it comes down to a judgment whether the force was reasonable. The jury decided it was. As someone who did not see the trial, I can’t say for sure they were wrong.

Keep in mind: this shooting happened in 2016, long before Stephen Paddock opened fire from a Mandalay Bay hotel room, killing 58 people and wounding 546. But the jurors who heard this case — who heard that the cops were responding to a report of a man pointing a long gun out a hotel window — those jurors knew about Stephen Paddock.

Although the Vegas shooting had not happened yet, others had. And such shootings were on the cops’ mind. One police officer who didn’t shoot because he did not perceive an imminent threat said as much in the trial:

Mesa Police officer Brian Elmore testified Tuesday in a former colleague’s murder trial that he didn’t shoot at an unarmed Texas man because he didn’t see an imminent threat.

. . . .

At a time when active shooters situations have become more common, such tragedies were in Elmore’s mind when he responded to the call, the officer testified.

“I did think about some high-profile situations going on around the country,” he told the jury.

And in a devastating answer for the prosecution, he said he might have fired had he been in Brailsford’s position:

Still, he said, he didn’t shoot because he didn’t see the same threat as Brailsford, who was standing on the left side of Shaver several feet away when officers encountered him.

Piccarreta asked Elmore if he had been standing where Brailsford was standing, would he have shot Shaver.

“It’s possible,” Elmore responded.

In summary, the tactics here were terrible. The instructions were absurd and confusing. The sergeant who barked out the instructions probably created the atmosphere that made the tragedy possible.

But Shaver should never, ever have reached for his waistband. That action probably caused a genuine fear on the part of the police officer who shot him. Might a jury find that fear, and his actions in response, reasonable? Apparently they did. Was that verdict necessarily irrational? I can’t say for sure that it was.

One final thought: thank God Shaver was white, huh? Had he been black, there would be marches and riots. People might die as a result. If this is truly the worst police shooting people have ever seen, let’s remember that it happened to a white guy, and not assume that every police shooting is motivated by race.

[Cross-posted at RedState and The Jury Talks Back.]


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