The killing of Daniel Shaver

Two weeks ago, body camera footage of the police killing of Daniel Shaver flooded news outlets across the country, along with news that a Maricopa County, Arizona jury had acquitted the officer responsible -- Philip Brailsford -- of all charges. When a perfect storm of damning video evidence and a willing and competent prosecutor could not result in a conviction on either second-degree murder or reckless manslaughter, this result cast even further doubt on the institutions meant to hold officers accountable for excessive force. For lawyers, this outcome also raised concerns about the standards courts use to evaluate police killings and the impact of popular police narratives on the public's consciousness.

The released video captured an unarmed Shaver, openly crying and begging officers not to kill him as he attempted to follow their orders to crawl toward them with his ankles crossed. Police had been called to Shaver's hotel based upon reports that Shaver -- a pest control worker in town for work and carrying pellet guns used to exterminate birds -- appeared to have a gun. Although Arizona law allows individuals over 21 to openly carry firearms without a permit, officers engaged Shaver with guns drawn and without any explanation or questioning. Officers shouted a series of confusing and elaborate commands at him, and threatened that if he made a mistake he would be shot. When Shaver briefly reached down during his crawl -- in an apparent attempt to pull up his fallen basketball shorts -- Brailsford immediately shot him five times with his rifle etched with the words "You're Fucked." A jury watched this unsettling video, heard Shaver's cries begging not to be killed, knew that he had committed no crime and carried no weapon, and still concluded that his killing was justified.

The crux of Brailsford's defense -- and the defense of most officers who kill unarmed citizens -- was that that the officers believed the use of deadly force was reasonable at the moment of the shooting. The U.S. Supreme Court's standard of reasonableness set forth in Graham v. Connor, 490 U.S. 386 (1989) -- essentially the floor for the permissible use of deadly force -- requires considering the "totality of the circumstances" surrounding the use of force, as assessed from the perspective of a "reasonable officer on the scene." In applying this standard, however, courts have adopted and contributed to the reification of the narrative that officers are "forced" to make "split-second decisions" in "rapidly-evolving" circumstances. See, e.g., Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). This absolves officers' deadly mistakes while maintaining that the penalty for a mistake by untrained persons thrust into a terrifying police encounter (often apparently disoriented due to intoxication or a mental health crisis) is a "justifiable" death.

This "rapidly-evolving circumstances" narrative is also often inaccurate as it fails to recognize when those "circumstances" are an avoidable product of the officers' own poor decision-making. Contemporary police standards and training instruct officers on alternatives to lethal force and de-escalation: utilizing time, space and clear communication to defuse tense situations. Applying such tactics, police can safely avoid causing tragic and unnecessary killings -- but too often they fail to apply them.

In Brailsford's case, policing experts recounted a number of mistakes in the officers' response to Shaver -- including a failure to conduct any investigation before (or even while) engaging with guns drawn, issuing confusing and hard to follow instructions, failing to restrain him to eliminate any potential threat, and repeatedly shouting threats to kill him.

Nationwide, officers also deploy this narrative to justify deadly uses of force when they provoke the confrontation -- by jumping in front of a moving car (see, e.g., Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993)), barging into a home where a couple lay sleeping with a BB gun, or entering unannounced into a house with an armed homeowner. Sledd v. Lindsay, 102 F.3d 282, 286 (7th Cir. 1996). Officers cite the need for "split second" responses even when they choose to approach individuals without investigation and with guns drawn who are tending to their own distressed vehicle or actively seeking help from the police.

Police are uniquely trained in how to assess threats, deescalate situations, and use a host of non- or less-lethal tools. But unlike other professionals with specialized training, their "expert" status translates into a lower, rather than higher, standard of permissible conduct. In Brailsford's case, defense witnesses testified that the officers' training taught them to view a plethora of behavior as threatening and to react immediately, lest any failure to act possibly result in injury to themselves. And law in many states, including Arizona and California, enshrines this double standard by preventing officers from being found guilty of any homicide -- including reckless manslaughter - so long as they reasonably believed there was an imminent threat when they used force, irrespective of their conduct leading up to its use. Civilians who engage in wantonly reckless or grossly negligent behavior, on the other hand, are held criminally liable when their disregard for life results in someone else's death and generally cannot claim self-defense to justify their use of deadly force in response to a danger they provoked.

The Supreme Court has contributed to this state of affairs, avoiding opportunities to clarify that the totality of the circumstances must necessarily include the reasonableness of officers' actions that led to the use of force. They evaded this issue most recently in County of Los Angeles v. Mendez, but the qualified immunity doctrine has also allowed the high court in City and County of San Francisco v. Sheehan, and lower courts in a host of other cases to dodge this issue.

Although policing practices around deadly force have evolved significantly since the 1980s when the Supreme Court decided Graham and Tennessee v. Garner, 471 U.S. 1 (1985), neither statutory nor decisional law has kept pace. While the jury's decision in Brailsford's case was not compelled by existing law, the law and its narratives make such outcomes more likely, and must be changed.