While pretty much everyone but the badge-licking lunatics found the killing of Daniel Shaver and the acquittal of ex-Mesa Cop Mitch Brailsford an outrage. Patterico, who’s real life California prosecutor, Patrick Frey, did something few have the interest or capacity to do. He went through it in a detailed, thorough and, most importantly, thoughtful way. Unlike the #MeToo expressions of anger, this was illuminating.
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.
There’s method to his madness, and he put in a significant amount of effort in breaking it down, inch by inch, so that the unwashed who are either disinclined, or just not capable of assimilating many facts and details, can follow along. This was a yeoman’s effort, knowing that many would never read, watch or think hard enough to understand what he was saying. And, indeed, from the reaction to the post on the twitters, many failed miserably.
Patrick does not excuse what happened. Patrick points out a great many flaws in what happened that shouldn’t have, that created the untenable situation resulting in death. But he also separates the simplistic overarching “it was murder” from the detailed parsing of facts and their analysis that he, as a prosecutor, would apply.
What makes this particularly unfortunate is that people could have read Patrick’s post, learned from it, recognized that rarely is anything as simple as it seems. That doesn’t mean they would necessarily change their mind about the outcome, and indeed, as Patrick makes absolutely clear despite the blithering idiots who shrieked otherwise, this was a tragic botch.
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.
Patrick did an impressive, and honest, job of deconstructing what happened. After reading his post, I twitted that it was a reasoned, but factually flawed, analysis. Patrick disagreed, and we had a discussion on the twitters, to the extent the medium allows for such things.
My issue, the flaw I raise, is that Patrick’s analysis failed to note or account for the fact that Arizona is an open-carry state. A guy with a long rifle? That’s not a crime. The analysis, I argued, has to begin there.
While we don’t have the original 911 call or the dispatch to Brailsford of the radio run, we do have a post-killing report that includes a supplemental report that includes, at the bottom of page 11, a description of the initiation of the run. I take this with a few grains of salt, as it was written post-killing.
While the description is filtered through what happened afterward, the word choice of the person describing the 911 call, the fact that it was a second-hand 911 call to begin with, and some internal inconsistencies, it provides that the initial call was to report “someone in room #502 pointing a rifle out the window.” Whether this means the rifle itself was pointed and physically extended outside the window or was entirely within the room and pointed in the direction of outside the window is unclear.
Then, among numerous other salient questions, is whether Brailsford “heard or read the call comments” that it was a rifle, rather than the generic “subject with a gun.” As noted here many times, the less information a cop possesses, the greater the latitude he’s given to be wrong and act upon his ignorance.
One of the significant issues in this killing is whether an allegation that he possessed a long rifle gives rise to a reasonable suspicion that he also possessed a concealed handgun. If not, then Shaver’s reaching for his waist immediately before he’s killed is irrelevant. Yes, he was ordered not to do so. No, mere noncompliance with a cop’s command is not a justification for execution.
Was the 911 call, even as filtered here, sufficient to give rise to reasonable suspicion? It clearly falls short of probable cause, but if at least reasonable suspicion, then Terry kicks in and the officers have a lawful basis to detain and inquire. Here, there would need to be reasonable suspicion that Shaver committed a crime, and secondary reasonable suspicion that Shaver was armed and posed a threat of harm to the officers, which would give the officers the authority to conduct a pat-down search for weapons.
My “flaw” was that Patrick failed to raise and address this at the outset of his analysis. Patrick believe that the call of a man pointing a rifle out a window was at least sufficient for reasonable and articulable suspicion.
Greg Prickett, who did 20 years as a cop, also disagrees with my view*.
Patterico’s not wrong, but Scott is wrong about one key issue. Scott keeps saying that Arizona is an open-carry state and that therefore the officers did not have reasonable suspicion to contact Shaver. That’s just incorrect.
To legitimately contact Shaver and detain him, all the officers had to have is “unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous…”
Here you have a call that someone is pointing a rifle out of a fifth story window. Any police officer would recognize this as reasonable suspicion that someone may be committing a crime. He could be a sniper, after all. And the Supreme Court has repeatedly held that reasonable suspicion “need not rule out the possibility of innocent conduct.”
While I’m still unpersuaded, that’s not important. Much of law involves resolving vagaries and ambiguities, where the are reasonable arguments to be made on both sides. What is important is that Patrick and Greg add perspectives that run contrary to the mob, are thoughtful, rational and illuminating, and contribute to a broader and deeper understanding of what happened. It’s not just about winning the argument, but adding illuminating thought.
Even though I remain of the same view as when I started, I am smarter for having read their thoughts. For that, I thank them. Reasonable minds may differ.
*Greg posted after I began this post, so he doesn’t get his name in the title. Sorry, pal.