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December 18, 2018, 09:57:02 pm
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Author Topic: The "Bad Dude" Defense  (Read 333 times)
T-Town Elder
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These Aren't the Droids You're Looking For

« on: June 21, 2017, 11:32:12 pm »

A national article with Tulsa at the core.

Itís imperative that juries understand that not all fear is reasonable, and some officers simply and wrongly panic.
Yesterday afternoon, Minnesota officials finally released the full video of the traffic stop that cost Philando Castile his life.

If you watch carefully, two salient facts should emerge. First, Philando Castile was quite literally following the police officerís instructions when he was shot. The officer asked for his license and told him not to reach for his gun. Castile reached for his license while verbally assuring the officer that he was not reaching for his gun. The officer shot him anyway.

The second fact overwhelmed the first. The officer panicked. His terror is palpable. The man went from conducting a relatively routine traffic stop to shrieking and firing in a matter of seconds. Part of this is understandable. Life can change in a flash, and when weíre in a state of ultimate distress, few of us can be as composed as SEAL Team Six.
When I saw that palpable panic, I immediately knew why he was acquitted. The unwritten law trumped the statutes on the books. The unwritten law is simple: When an officer is afraid, heís permitted to shoot. Juries tend to believe that proof of fear equals proof of innocence.

Consider, for example, the otherwise inexplicable hung jury in the case of Michael Slager, the officer who was not only caught on tape shooting Walter Scott, a fleeing, unarmed black man, in the back, he was caught planting evidence by his bleeding body. Yet even then, prosecutors couldnít convict. Why? Slager testified that there was a scuffle before the video started and that Scott had taken Slagerís taser and used it against him. Slager said, ďIn my mind was fear. I was scared. With everything leading up to this . . . it was total fear that Mr. Scott was coming toward me.Ē Scott was of course running away, he didnít have the taser, and Slager hadnít told his fellow officers that the taser was taken and used against him. He testified to his fear, however, and the jury didnít convict. But pay careful attention to the applicable jury instruction in Slagerís case:

The defendant does not have to show that he was actually in danger. It is enough if the defendant believed he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would have had the same belief. The defendant has the right to act on appearances even though the defendantís beliefs may have been mistaken. It is for you to decide whether the defendantís fear of immediate danger of death or serious bodily injury was reasonable and would have been felt by an ordinary person in the same situation. [Emphasis added.]

Legally, itís not enough for an officer to show that he was actually afraid for his life. He has to show that ďa reasonably prudent personĒ would also have the same fear. Clever defense lawyers twist this standard into a line of argument that goes something like this: The officer was afraid, and he can explain to you the reasons why he was afraid. Therefore, it was reasonable that he was afraid.

But real fear isnít always reasonable fear. Look at this extraordinary statement from Jeronimo Yanez, the officer who killed Philando Castile:

I donít remember how many rounds I let off. Um, I remember seeing the last two rounds go off and I remember seeing one of those rounds hit him in the arm. Uh, his glasses flew off. Iím not sure if it was from gunfire or from him, uh, whipping his head back or anything like that. Uh, but, uh as that was happening, as he was pulling at, out his hand, I thought I was gonna die and I thought if heís, if has the, the guts and the audacity to smoke marijuana in front of a five-year-old girl and risk her lungs and risk her life by giving her secondhand smoke and the front-seat passenger doing the same thing then what, what care does he give about me? And, I let off the rounds and then after the rounds were off, the little girls [sic] was screaming. I held the suspect at gunpoint. His arms came up into view. And they were up by his chest. I canít remember what I said. But I acknowledged this little girl first. Cuz I wanted her to be safe and I told Officer Kauser or I told her one of the two to go run out of the car and run to Office Kauser or Officer Kauser to get her. And then I turned my attention to the front-seat passenger. I didnít point my firearm at her. I still had it on the suspect. Cuz he was still moving.

Yes, Yanez actually said, ďif he has the, the guts and audacity to smoke marijuana in front of the five-year-old girl and risk her lungs and her life by giving her secondhand smoke . . . what care does he give about me.Ē While itís an explanation for his fear, itís not remotely reasonable. Letís contrast the Yanez and Slager cases with actual, reasonable fear in a similarly controversial case. Earlier this year, a Tulsa, Okla., jury acquitted officer Betty Shelby in the shooting death of Terrence Crutcher, an unarmed black man. In a 60 Minutes report broadcast just before the trial, Shelby told the story of the shooting, and itís clear that Crutcher wasnít following her commands, behaved erratically, and reached inside his car in spite of repeated commands to get on the ground. Hereís part of the report:

Shelby says Crutcher kept ignoring her commands, kept walking toward the SUV even though she had drawn her gun, and had ordered him to get on his knees. Betty Shelby: And heís not doing it. Iím hollering at him, ďStop. Stop now. And he has now put his hands back up in the air. And heís looking at his vehicle, back at me.Ē
Bill Whitaker: And youíre thinking?
Betty Shelby: Iím thinking heís calculating how he can get to his vehicle to get whatever weapon it is that heís going to get because he didnít find it in his pocket.

The other officer on the scene was also alarmed:

Bill Whitaker: Did you assess the situation as being dangerous?
Tyler Turnbough: Yes. It made the hair stand up on the back of my neck. I donít know what this guyís doing. Why is he ó why is he walking away from her? What are his intentions? Why doesnít he just stop?

The climactic moment was chilling. Officer Shelby describes a man who simply wonít do what she says, then makes a sudden move:

Betty Shelby: Iím feeling that his intent is to do me harm and I keep thinking, ďDonít do this. Please donít do this. Donít make this happen.Ē And then right there heís looking back at me. Thatís what we call ďtargeting.Ē So heís getting my position, my last-known location to retrieve and then shoot . . . His shoulders drop, his arm drops, and heís reaching in. And itís fast. Just that would tell any officer that that manís going for a weapon.

Crutcher didnít have a gun, but the law does not require cops to be omniscient. It requires that they be reasonable.
It is reasonable to believe that a person who wonít obey commands, wonít get on the ground, and is walking back toward (and ultimately reaching in) his car is a threat. Itís unreasonable to believe that a man who follows your commands ó and assures you that heís following your commands ó is a threat in part because exposing a girl to secondhand smoke exhibits some sort of depraved indifference to human life.

We trust juries to make these distinctions, even though theyíre hard ó even though they can send otherwise-good men to jail for split-second mistakes. But these are split-second mistakes with fatal consequences, and juries simply canít presume that all fear is reasonable fear.
Last year, I wrote that cops are rarely convicted in part because the legal standards rightly donít ask police to prove that they were in actual danger when they pulled the trigger. Officers arenít omniscient, and they can only react to the facts as they perceive them. Absent corruption, incompetence, or malice, most officers are going to make reasonable choices in high-stress situations. Some, however, will fail, and itís imperative that juries understand that not all fear is reasonable, and some officers simply (and wrongly) panic.

Perhaps some have unreasonable fear because of racial stereotypes. Perhaps some have unreasonable fears for other reasons. Perhaps some have a brutal habit of escalating force too quickly. But every officer must uphold the rule of reason, a rule that compels a degree of courage, a measure of discipline, and a tolerance for risk that is inherent in the job that theyíve chosen. The vast majority of officers are up to that challenge. A few are not. They must be held accountable. Justice demands no less.

"Tulsa will lay off police and firemen before we will cut back on unnecessarily wasteful streetlights."  -- March 18, 2009 TulsaNow Forum
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