No standard formula to determine if officer’s fear was reasonable
By Michael Tarm
Associated Press
CHICAGO (AP) - A familiar question that arose after other police shootings now looms over Oklahoma: Will the white officer seen on video fatally shooting an unarmed black man be charged with a crime?
Officer Betty Shelby shot Terence Crutcher on Friday just moments after the 40-year-old walked back to his SUV, holding his hands high over his head. Shelby's lawyer said Crutcher ignored officers' commands, kept touching his pocket and was reaching through one of the vehicle's windows when she fired. A fellow officer drew a stun gun to shock Crutcher.
Some answers to common questions about factors that could determine if the officer is charged:
Q: DOES IT MATTER WHAT THE OFFICER WAS THINKING?
A:Definitely. Any investigators contemplating charges must get inside Shelby's head. When it comes to criminal charges, legal experts said, the most important determination isn't whether the officer was actually in danger in hindsight. It's whether the officer reasonably believed that he or she or fellow officers were in danger in the split second that person chose to shoot.
There's no clear, standard formula to determine if an officer's fear was reasonable, said Jeff Cramer, a former federal prosecutor in Chicago.
"Does the officer have to see a gun or be shot at before they fire? Clearly no," he said. "That's what makes these cases so hard."
For an officer's actions to qualify for serious charges such as murder under state law, prosecutors would have to demonstrate that Shelby was not just reckless but that she had ill intentions, Cramer said.
"There has to be a purposefulness to what you did," he said. "You have to know something is illegal and you do it anyway."
Q: IS THE USE OF A TASER TELLING?
A:That a fellow officer used a stun-gun at the same time that Shelby fired could work for and against her. On one hand, it shows she was not alone in perceiving that there was some level of threat. It would be that much harder for an officer to argue his or her fears were legitimate when that officer was the only one to use a weapon. On the other hand, the fact that Shelby's fellow officer used nonlethal force could undermine any assertion that the threat she perceived to her life was clear. Shelby also carried a stun gun, authorities said.
Q: DOES VIDEO SHOW CLEARLY WHAT HAPPENED?
A:No. The view of the moment Shelby shoots is obscured on a video from one squad car's dashboard camera. There's some audio, but listeners cannot hear what officers said to Crutcher or what he said to them. After Crutcher falls, a female voice can be heard telling a dispatcher, "Shots fired!"
There's also footage from a police helicopter overhead, but it does not show the events clearly either. Someone in the helicopter is heard saying before Crutcher falls, "Looks like a bad dude. Maybe on something." Authorities said a vial of PCP was found in Crutcher's car.
Q: WHAT ARE THE POTENTIAL STATE CHARGES?
A:The onus in Oklahoma is on county district attorneys to decide whether there's sufficient evidence to pursue charges, explains Lee F. Berlin, a Tulsa-based defense lawyer and a former assistant district attorney. If the DA concludes charges are called for, he then asks a judge - not a grand jury - to rule on whether the prosecution can move forward. The Tulsa county district attorney, Steve Kunzweiler, could cite conflicts of interest and ask for a DA in another county to take over, though Berlin said that's unlikely and, he thought, unnecessary.
Kunzweiler, elected in 2014, was the DA when charges were brought against Robert Bates, a reserve deputy later convicted of manslaughter for fatally shooting an unarmed man in 2015 in Tulsa when he mistakenly fired his handgun instead of his stun gun. Bates was sentenced in May to four years in prison in the death of Eric Harris.
A first-degree murder charge - which can carry the death penalty in Oklahoma - would seem highly unlikely, no matter what the investigation turns up, Berlin said. Such a charge would require what's known as "malice aforethought," meaning Shelby would essentially have had to plan Crutcher's killing in advance.
A more plausible potential charge, Berlin said, might be second-degree manslaughter, which requires extreme negligence. Such a charge could be filed, for instance, against an officer who grabs and shoots a handgun mistaking it for a stun gun, Berlin said.
Q: WHAT ABOUT FEDERAL CHARGES?
A:U.S. attorneys could potentially charge Shelby with depriving Crutcher of his constitutional rights by killing him, said Cramer, currently a managing director of investigations at Berkeley Research Group.
Federal prosecutors sometimes defer to local prosecutors, giving them first crack at filing charges. But if county prosecutors choose not to charge Shelby and if federal authorities believe that was the wrong call, U.S. prosecutors could step in and pursue charges months or even years from now, Cramer said.
The Justice Department is conducting a civil rights investigation separate from the local investigation.
Among police charged recently under federal statutes was Michael Slager, a former South Carolina officer who last year fatally shot Walter Scott as he fled from a traffic stop. Scott, a 50-year-old black man, was unarmed.
Slager, who is white, was awaiting trial on a state murder charge when he was indicted federally in May for depriving Scott of his rights. That indictment also charged Slager with obstruction of justice and unlawful use of a weapon during the commission of a crime. If convicted on all federal counts, Slager faces up to life in prison.
Published: Thu, Sep 22, 2016
