Patterico: A Reasoned Perspective

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.

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.

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.

17 thoughts on “Patterico: A Reasoned Perspective

  1. CLS

    One of the best things about Fault Lines was Greg’s analysis of officer shootings. He always called it right down the middle, even when it made the rest of us uncomfortable.

    Same thing with Patterico’s analysis of the Brailsford shoot. I think both Prickett and Patterico are flat wrong, but they called it as they saw it, didn’t abandon intellectual honesty, and tried to make people smarter for their efforts.

    I too thank Prickett and Patterico for making us smarter. And I’m putting Greg’s name first because I’m biased towards my former Fault Lines colleagues.

  2. Pedantic Grammar Police

    I think most people missed the fact that Brailsford was not the one who created confusion by shouting contradictory commands; this is obviously a mitigating factor. As soon as Shaver was on the ground with his hands up, someone should have handcuffed him. The fact that this did not happen was Langley’s fault, and I can understand how an Arizona jury could have allowed this mitigating factor to color their judgment. Not convicting him of the lesser charge is still a head-scratcher, but the case is not as clear-cut as it appears on the surface.

    It is odd that Langley was not charged; it seems that he was as responsible as the man who pulled the trigger, if not more.

    1. SHG Post author

      I’m glad that nothing in my post constrained you from blindly leaping down your own special rabbit hole. You go, P.

    2. Greg Prickett

      It’s difficult to get any officer charged in an OIS, much less one who didn’t fire a shot. Was Langley responsible? I can make that argument easily. You have a scared rookie officer with an idiotic dust-cover, and you have an experienced sergeant that clearly tells Shaver that if he drops his hands again that he would be shot. Seconds later, both happen.

      You could never make the case that Langley was criminally responsible though. It would never fly, and if you can’t convict Brailsford, there is no way Langley would be convicted.

      1. SHG Post author

        Langley’s incompetence, as well as the rest of this disgraceful mess, may play a more prominent role in the 1983, if they can get past QI.

        1. John Barleycorn

          I wonder if Langley retired in the Philippines in order to get a gig with Philippine National Police?

  3. Beth Clarkson

    I appreciate the additional perspective, but I agree with your original call. I think points 1,2 and 3 are more important than 4, 5 and 6. In fact, I think 5 is irrelevant. The cop is supposed to be trained on how to respond to these situations. Even if he is scared, he’s not supposed to be shooting unarmed civilians who haven’t done anything illegal. While I agree with 6, I haven’t yet heard any additional facts that justify the treatment of the suspects or the shooting.

    I was horrified by the video because I thought the cop seemed intent on humiliating those people. Why did he make them crawl forward in that awkward position while warning them if they didn’t follow his instructions perfectly, he would shoot them? Why didn’t he just have them lie still until they were safely restrained? I thought he was deliberately giving impossible instructions so that he could then kill the man for not following them. While I can accept that might not have been his intention and the end result was due to incompetence on his part, it would still have been manslaughter if not murder.

    1. SHG Post author

      The reasonableness of the scared cop is more a litmus test than anything else. As you say, he’s trained. He’s chosen his job. He doesn’t get the right to be too afraid to be responsible for maintaining calm because of whatever level of personal fear he uses to measure the threat of a suspect. From the cop’s perspective, the First Rule of Policing is the First Rule regardless.

  4. Martin

    Thanks for the thoughtful analysis and review of Patterico’s post and the underlying situation. I found this both helpful and enlightening.

  5. Laches

    Patterico’s thoughtful piece is a welcome addition to the discussion, but it did not change my mind either.

    I’m with you on the importance of the fact that there was no reason to suspect that anything illegal was happening here. He refers to Shaver as a ‘suspect’. What crime was he suspected of committing? I’m not sure what exactly the 911 caller claimed they saw, but how well could they tell what was going on in Shaver’s room? Could they even be sure it wasn’t a teenager playing around with a water gun? Seems like it should take more than a vague claim by a random caller to make you a suspect that can be approached at gunpoint by the police the way Shaver was.

    I also disagree with his claim that the fact that Shaver’s demeanor (sobbing, terrified, trying his best to comply) is irrelevant because these situations can turn dangerous in an instant Any situation could, in theory, turn dangerous in an instant. Anyone reaching in their pocket for a phone might be pulling out a gun. Any backpack could contain a bomb. So if the police are allowed to assume the most dangerous possible outcome for any situation, no matter how remote, it’s hard to think of a shooting that wouldn’t fall under the Reasonably Scared Cop rule.

  6. Joseph Masters

    Why do prosecutors even bother taking these cases to trial anymore? Am I wrong to conclude that Graham v Connor has become a license to kill for police in the United States? Unless a cop lies in the official report and is forced to plead out (Sean Groubert, Michael Slager), an officer shooting someone will be ruled as a justifiable use of force.

    Ever since Deputy Kyle Dinkheller uttered “I’m in fear for my life” on January 12, 1998, the day Andrew Brannan killed him, hasn’t the U.S. become powerless to hold police accountable for clearly inappropriate uses of force? The Dinkheller dash-cam is shown to almost all American academy cadets, to the point that a Mesa AZ cop training an AR-15 must be in fear that the prone, crawling man can pull Brannan’s M1 carbine out of a pant leg.

    Does it even matter any more? Shaver was going to die no matter what he did (his fatal mistake was not committing suicide to save the cops the trouble), and there is nothing that can prevent it in the future.

  7. Billy Beck

    “You can’t make up your mind based on this single video.”

    Yes, I certainly can, and I don’t respect anyone who can’t.

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