September 21st, 2016

My post at Legal Insurrection on the Crutcher case

I have a post up at Legal Insurrection that is a comprehensive look at what we know about the Terence Crutcher case so far (or at least, what we knew last night, when I did the bulk of the research and writing for it).

It has a very different focus than the posts I wrote on the case here at my own blog. The Legal Insurrection post focuses more on the law of the thing. Please take a look.

28 Responses to “My post at Legal Insurrection on the Crutcher case”

  1. Frog Says:

    With all respect, I am not going to Legal Insurrection to read a column by a woman who has a JD degree, denies she is a lawyer, yet manifests classic legal thinking and arguing, as best I, as a mere physician, understand it.
    Bottom line for me is the law is all about Who Wins A Debate, not whether one is right or wrong. Medicine is about right and wrong. The wrong diagnosis, the wrong course of action, kills. Lawyers dissect minutiae, and when they fail, appeal; or spill the coffee as a distraction (malpractice deposition advice I received from an excellent lawyer). So we will never really understand one another; our minds work differently.

    See your chastisement of me for omitting the word “reasonable” in my Crutcher comment about justifiable homicide. I wrote “fear for one’s life and the consequent use of deadly force is a determinant of justifiable homicide.” A determinant, not THE determinant. For Pete’s sake.

  2. neo-neocon Says:

    Frog:

    Yes, I have a law degree but not only do I deny I’m a lawyer, but I’m not a lawyer. That’s not legalistic nit-picking, it’s just a fact. And my JD degree is as old as the hills.

    Don’t read that LI article of mine if you don’t want to. It was just a suggestion for those interested.

    I believe I understand lawyers and doctors equally well—which is to say I don’t generalize about their personalities or their goals, or the way they practice their professions, but of course I notice certain trends. Note, also, that I don’t have a need to bash doctors. Some are good, some are bad—just like lawyers.

    And it’s interesting that you refer to my words to you about “reasonableness” in my earlier comment as “chastising” you. Here’s what I wrote:

    In order to be justifiable homicide, a fear for one’s life leading to deadly force must be reasonable. That is the sort of thing courts decide, and there are legal standards used to determine it. And that is the sort of thing that is at question in this case—the reasonableness of the fear and the nature of the action taken.

    I am puzzled that you would think that is chastising. I added “reasonable” because it’s an extremely important part of the equation, lawyer or no. In fact, it determines the difference between guilty and not, which is one of the main things we’re concerned with, isn’t it?

    “Reasonable” is not an esoteric term, but like most legal terms it is a very well-defined and much-written-about standard.

  3. parker Says:

    No one outside of the officers at the scene know what happened. When a thorough investigation is made public we can have opinions on what actually happened. (Thanks for researching the information available to date.)

  4. Matt_SE Says:

    I hear that the original complaint calls were for erratic (possibly drug-induced) behavior. If true, this is not as clear-cut a case as the video would have you believe (and is reminiscent of the Rodney King case).

    This is why I’m content to let the jury decide it. I have no opinion.

  5. OM Says:

    Neo:

    Good analysis and presentation of what is and is not known. Frog is a curmudgeon at times. 🙂

  6. neo-neocon Says:

    Matt_SE:

    Yes, erratic behavior, but no reports (so far) of any behavior that was at all threatening or aggressive. Nor is he reported to have exhibited such behavior to Shelby. I’ve read lengthy descriptions, and so far his behavior has only been described as sort of vacant and non-responsive.

    Of course, anyone can become a threat at any time. And someone who isn’t responding to commands—or, as in this case, who is sometimes responding and sometimes not responding—can always become a threat. But there was no report of any aggression here.

    The Rodney King case was very very different. He was resisting them physically before they subdued him. Read about it. The incident had begun with a high-speed car chase, too. Very very different (and very interesting to compare).

    There was some initial roughing up of some of the car’s other inhabitants (not King) by police, and then this:

    King then grabbed his buttocks which Officer Melanie Singer took to mean King reaching for a weapon. King was later found to be unarmed. She drew her pistol and pointed it at King, ordering him to lie on the ground. Singer approached, gun drawn, preparing to effect an arrest.

    At that point LAPD Sergeant, Stacey Koon, the ranking officer at the scene, told Singer that the LAPD was taking tactical command of the situation. He ordered all officers to holster their weapons.

    LAPD officers are taught to approach a suspect without his/her gun drawn, as there is a risk that any suspect may gain control of it if an officer gets too close. Koon then ordered the four other LAPD officers at the scene—Briseno, Powell, Solano, and Wind—to subdue and handcuff King using a technique called a “swarm.” This involves multiple officers grabbing a suspect with empty hands, in order to quickly overcome potential resistance. As four officers attempted to restrain King, King resisted by standing to remove Officers Powell and Briseno from his back. The officers later testified that they believed King was under the influence of the dissociative drug phencyclidine (PCP), although King’s toxicology tested negative for the drug.

    King was twice Tasered by Koon. This marks the approximate start of the George Holliday videotape of the incident. In the tape, King is seen on the ground. He rises and rushes toward Powell—as argued in court, either to attack Powell or to flee—but regardless King and Powell both collided in the rush. Taser wire can be seen on King’s body. Officer Powell strikes King with his baton, and King is knocked to the ground. Powell strikes King several more times with his baton.

    A real parallel would have been if Officer Melanie Singer had shot and killed King when he grabbed his buttocks and she thought he had a gun.

  7. J.J. Says:

    I liked your article at LI. Thorough analysis without coming to any conclusion as to the right or wrong of the officer’s actions. Ah, that our society could show such restraint and judgment.

  8. Ann Says:

    The LA Times had a piece yesterday that said something I’d not seen before — that Officer Shelby wasn’t aware that other officers had arrived:

    Shelby’s attorney, Scott Wood, says that when she showed up and asked Crutcher whether the car was his, he did not respond. Crutcher put his hands in his pockets as he walked toward her, then removed them and put his hands up before walking toward the back of her patrol car and putting his hands back in his pockets, Wood said.

    He said she planned to arrest Crutcher, who she thought was intoxicated, and called dispatch. Crutcher did not comply when Shelby took out her gun and told him to get on his knees, but instead walked toward his car, the attorney said.

    Wood said Shelby fired her gun at the same time that Turnbough fired a Taser at Crutcher because she had “tunnel vision” and did not realize other officers had arrived on scene.

    If true, would that work toward deeming her action “reasonable”?

  9. Big Maq Says:

    “Lawyers dissect minutiae, and when they fail, appeal; or spill the coffee as a distraction (malpractice deposition advice I received from an excellent lawyer).” – Frog

    That lawyer’s name is Saul Goodman

    Better Call Saul.
    http://www.amc.com/shows/better-call-saul/video-extras/season-01/episode-06/talked-about-scene-episode-106-better-call-saul-five-o

    S’all good man.

  10. parker Says:

    Ann,

    I have my doubts that Shelby’s lack of situational awareness as described is “reasonable” or helps her defense against charges of illegal use of deadly force. Her attorney is an idiot if he/she actually talked with the LA times. Always there is speculation and rumors.

  11. Big Maq Says:

    “If true, would that work toward deeming her action “reasonable”?” – Ann

    Perhaps arguably so.

    Again, we will see what the facts are as this thing unfolds – don’t want to second guess it all.
    .

    What we will never know is how the situation might have turned out differently if there wasn’t too much reliance on lethal force, and reaching for a gun wasn’t the first reflex.

    If we are to now argue that police are like everyone else and get scared, get tunnel vision, etc, etc.. Seems even more of a reason to have them pull that gun on fewer occasions, as we cannot trust their training to see them through these situations.

    It is hard because on the one hand we absolutely need to support our good folks in blue, but when it comes to having authorized use of lethal force, we ought to have / expect a higher standard for those who are given that responsibility.
    .

    Certainly, body cams (video and voice) if they weren’t employed here, are increasingly becoming a must have, both FOR the police and for the citizens.

  12. Frog Says:

    Neo, I believe I know lawyers and doctors equally well also. My opinion about lawyers and doctors stands, be I a curmudgeon or not! Having witnessed my youngest’s legal education, I know I could not be a lawyer. Before I retired I was considered a pretty good doc by my peers, as in “Best Doctors in America.” There is a fundamental thinking and processing difference between the two disciplines, I am convinced. Have long thought so, as a result of seeing both disciplines in action, as a medical standard-setter in my specialty organizations, and as a malpractice defendant (6 spurious lawsuits, no defeats) and medical consultant and expert witness for multiple lawyers.
    I see it in the differences you and I have had about handling US Ebola cases, where I thought you didn’t get it, and you thought I didn’t. My comments were medical and epidemiologic, and you were on civil rights and the legal process, IIRC. The twain did not meet.

  13. Ymarsakar Says:

    Certainly, body cams (video and voice) if they weren’t employed here, are increasingly becoming a must have, both FOR the police and for the citizens.

    Which is why police unions don’t like them and order their union members to make sure no civilians are recording. Even though, by law, they have dashcams… usually, unless they mysteriously turn themselves “off”.

  14. Ymarsakar Says:

    It’s not particularly surprising to me that women and noobies to the police force and from the police academy, get tunnel vision. That’s probably a heart rate and adrenaline dump excess, of about more than 160 beats per second. Adrenaline forcibly starts your heart beating faster, and the fear hormone also gets accelerated into your blood stream faster via the injection. Probably also neurotransmitters are involved to speed up things even more.

    “Tunnel vision” is generally when oxygen blood floods the visual cortex and eyes, to where you can now see things with more accuracy, but only where you are looking, because you have deemed the object you are looking at as a life threatening source.

    You are now “locked on” so to speak. Back in the primal days where a charging boar or sabre cat running at you was too dangerous to look away from, otherwise you won’t be able to dodge or stab em in time, that “tunnel vision” was pretty useful, when combined with time accelerated visual acuity in recognizing more frames per second in a second.

    The exact process I am unfamiliar with for all tunnel visions, biologically speaking. But it can be reversed or controlled, with discipline and other training methods. Some people, like parker, call it “situational awareness”. A person can be trained to treat their eyes as motion detectors instead of heat seeking missile locks on. This then “sees” the situation via motion detect or at least is better than a lock on of tunnel vision.

    It is part of the repertoire of the warrior and defender, sheepdog or not, to acquire and practice their repertoire and toolbox skills. It is not part of the warrior and defender, to learn how to enforce laws or think about justified force continuums. It’s something usually people can master in a few years to 10 years, but right out of the academy or with barely any combat or practical experience? Highly unlikely that, especially if a woman fears a grown man’s size.

  15. Ymarsakar Says:

    PCP and various other stimulants, can turn a human mortal into something of a heroic avatar.

    By that I mean that normal force which is used to subdue humans, don’t work on those hyped up on drugs.

    Shooters in Iraq have confirmed that terrorists take multiple shots to put down, not necessarily because of the over penetration of the 5.56mm… although there is that. But because terrorists are hopped up on combat drugs and stimulants, and they take extra firepower to stop. Fanaticism also plays a part. The Islamic guerillas that Pershing suppressed, were like that as well. Couldn’t be put down with one gunshot from one of their revolvers, so they started using the 1911.

    Potential criminals under PCP or cocaine or other such things like meth, are almost superhumanely strong. That’s probably where the “swarm tactic comes in”. Experienced martial artists have also broken the legs of these extra strong zombies. They have also crushed knee caps with a boot stomp. None of it affects the brain of the zombie on PCP or etc. It slows them yes, but it doesn’t stop them, as it would for a normal human. For humans wit ha pain threshold near that of a pcp zombie, they might understand just exactly how that works, from personal experience. But to most people, including police instructors teaching newbies… stories like this, can alert the new police candidate and officer to be extra “vigilant” and on guard against druggies.

    Which they will be. Which will also make their adrenaline and fear conditions stronger or faster.

    Originally I wrote something about a heroic avatar. That’s because many of humanity’s heroes, mass killers of enemies, could naturally summon up the willpower to resist pain, carry on no matter the odds or personal damage. They literally will not stop killing you, the enemy, unless you kill them, immediately, like beheading them.

    Chokes are still effective, even a PCP zombie needs air. Physiological weakness of humans. Chokes that take a lot of time… may be problematic.

    Of course, pepper spray and tazers are also less effective as a result. That’s also something I would have notified any police under my training as well. Of course, to me, that isn’t much of an extra danger, since I don’t use pepper spray or tazers all that much, if at all. I rely on personal combat abilities.

    If a PCP zombie doesn’t go down if you break their joints? Then break all of them, including their neck, rupture their eardrums so they can’t balance, and crush their wind pipe. If you’re going to break them, at least do it correctly. If the first attempt didn’t succeed, try try again. Yes, most humans would go down with relatively little challenge, but since warriors should plan to face other warriors, they should at least hope for the best, and prepare for the worst. Usually the worst is always someone faster, stronger, tougher, and bigger than they are.

    Of course, for a woman who wasn’t confident in her ability to overpower or escape from a male grappler, it’s not something her survival instincts would have relied on. It’s unreliable even. The gun was right there, her max force option. Even without police/military conditioning, a person would probably have pulled that out first. But that just makes them like any other human around, nothing special. Not a sheepdog, but a sheep that was told she was now a sheepdog. That’s not always going to work, of course.

  16. neo-neocon Says:

    Ymarsakar:

    I have no idea what you think is relevant about your last comment. In this case no one was grappling with anyone; no one even tried to grapple—not Shelby, not Crutcher. She didn’t even allege anything of the sort.

    I already described her story. But if you want to familiarize yourself with it, read this.

  17. Frog Says:

    You made a slap at Ymar in your last comment. Not necessary.
    I am going to tell you to see Charlotte, NC while you are in a police-criticizing state of mind. And Baltimore, where 16% of cops have quit the force and crime has soared.
    Your anti-Shelby posturing before the facts are known (adjudicated) is just putting fuel into the fire.
    Rioters should be shot. Period. Use rubber bullets first.

  18. liz Says:

    I am glad that Tulsa has had peaceful protests. Per the Tulsa station that I am listening to, Obama called the Tulsa mayor today to comment on that fact. It will be interesting to see what happens if and when out-of-staters show up to protest.

    Last night while talking with friends about the situation and what was happening in NC, a former MP simply commented where are the protests for what happened in Midwest City.”

    http://www.koco.com/news/suspect-identified-as-17yearold-in-deadly-midwest-city-store-clerk-shooting/41710872

    This shooting was a black on another POC (Salman Tahir, probably of Mideastern heritage), at a store. The clerk followed all directions and was still shoot and killed in the back. The shooter is still at large as far as I know.

    My friend was very hesitant about commenting about the Tulsa case – he didn’t know what was in her head. He did indicate that Tasers do make a loud enough noise so if someone was not aware that it was going off, it could result in an involuntary reaction of pulling a finger on a trigger.

    He never had to draw his weapon at a person, but he did mention that having a weapon out while searching a location did impact him – he realized the potential impact of the “next reaction”.

    There are things that I wonder about (time of day, the car window tinting, tag check before approaching the car, who owned the car, variances in the spelling of the name for arrest history, communications between female officer and suspect and the communication between female officer and the backup officers).

    The Tulsa stations are talking about getting body cams for their officers. The OKC PD have the cams, but they are still discussing with the police union about policies, so they are not operational. The other issue (post Dallas) is letting the OKCPD carry rifles.. Last I heard, they will let the officers have their personal rifles in their cars, provided that they pass some review and use the ammo that OKCPD buys. Eventually, the department will provide the rifles.

  19. liz Says:

    Just heard on KRMG (Tulsa radio station) that they re charging the female officer with manslaughter, but I can’t find a link yet on the OKC and Tulsa sites….

  20. liz Says:

    http://newsok.com/tulsa-da-calls-for-first-degree-manslaughter-charge-against-officer-in-fatal-shooting-of-terence-crutcher/article/5519313

    first listing

  21. liz Says:

    Another report on the Tulsa radio station site

    http://www.krmg.com/ap/ap/oklahoma/tulsa-police-officer-charged-in-mans-death/nsc8J/

  22. OM Says:

    Frog has jumped the Shark.

  23. JuliB Says:

    I’ve read on yahoo that the PO was en route to a different call when she came up on the scene.

    I enjoyed your article at LI, and esp. comments made by Archer52.

    The whole non-compliance factor continues to be at play in (nearly) all of these shootings. If someone pointing a gun at you says ‘do X’, for the most part you should do X, esp if the person with the gun is a PO. (Of course, there’s a reasonableness factor to it, but in this day and age with dashcams and people everywhere, X will likely be reasonable.)

    Another commenter at LI blamed Obama and his ilk saying that the black community is being told it’s being oppressed by racists and they should resist. Thugs (or people high on drugs, etc) resist foolishly, not in a sensible manner.

    There are over 300 million people in our country- of course such things will happen. This is mainly a method to federalize our police.

  24. liz Says:

    I am listening to KRMG (Tulsa radio) and they reported that EMSA (Emergency Medical Services) was threatened. Really? These rigs are stationed over various areas in Tulsa and OKCMetro areas. Why threaten them? Will post the link when it appears.

    OK – I called KRMG and they referred me to the local Fox station site. AS I post this, KRMG still does not link to the Fox station report. Not good for them….

    http://www.fox23.com/news/tulsa-emsa-takes-safety-steps-after-crutcher-shooting/448944572

    FYI – EMSA stations their rigs all over the OKC and Tulsa areas so that they can quickly respond to emergency calls. You see them at gas stations, malls and so on. Why would anyone threaten them when they are there to help as fast as feasible?

    gees… not smart…. and if EMSA changes their routines, it affects many people in OK – the metro Tulsa and OKC areas.

  25. neo-neocon Says:

    OM:

    Well, frogs are good at jumping, aren’t they?

  26. OM Says:

    Neo:

    🙂

  27. Ymarsakar Says:

    In this case no one was grappling with anyone; no one even tried to grapple—not Shelby, not Crutcher. She didn’t even allege anything of the sort.

    Fear is a perception. All someone has to do is to think about it, and it will become a kind of reality for their body to react to.

    Besides, police safety tactics always prioritize things such as not allowing people to get into grappling range, because then they can overpower the officer, take their gun, and shoot the officer with their own gun. So police officers not only have to worry about potential crims shooting first, but also when crims start walking towards them and they will have to fire first or else lose their firearm entirely.

    For someone that only parses the situation based on eye witness reports, you’re right, it wouldn’t be part of what people would talk about, especially if they panick or are shaken up about it. They aren’t entirely accurate in analyzing what happened if they don’t understand their own reactions.

    I, do understand my own reactions, and I am describing what would naturally go on in the minds of people in the situation described, which is not reliant on anyone’s testimony per say, but on my own reconstruction of the situation.

    A police officer that never thinks about a perp getting within grappling range, yet feels so afraid they cap the target using a tunnel visioned situational unaware state… is maybe psycho not just negligent. Since I’ll just assume this woman and LEO isn’t psycho, I don’t go down that route.

    Even in the previous situation people used to talk about, where the black casualty was in his car seat, probably with a seat belt on, with the car door closed, the police man that used his gun, had time to rotate a scenario where the guy rushes out. That’s part of their training, so their OODA would have looped at least once, to consider the situation. They may discard it as non threatening, but then shoot because of a perceived other threat.

    I already described her story. But if you want to familiarize yourself with it, read this.

    The difference here is, that I don’t need to describe her story, because I’m not using the same analytical methods as you, Neo. I can recreate the situation based on general details, and besides it is more accurate than to fall for media deception and eye witness testimony mistakes. A person that isn’t even aware of other allies around them, due to tunnel vision, will have an interesting testimony, but I wouldn’t consider it all that objective. Of course, that may in itself be inaccurate.

    Which is all the more reason why I rely on my own judgment and reconstruction of the incident. Unless they have something more objective to show me, such as the police recording Zimmerman walking through his neighborhood reconstructing the incident which he might be charged with, physical confrontations cannot be reconstructed by using the logic of reading.

    The necessary data bandwidth and details aren’t there.

  28. Ymarsakar Says:

    The reason why investigations are more accurate than internet armchairing is because reading words describing a situation not everyone in the situation even knows what happened, isn’t going to do much. Unless you’ve been in similar situations, unless you’ve trained for it, or have something to compare it to, or if you have video and photographic evidence on par with what Zimmerman produced for the Florida police, there’s nothing worth investigating or analyzing.

    While I believe investigations are useful because they can get to witness testimonies, all of it, and all of the available evidence, that doesn’t mean I am helpless. There is enough general context description for me to create a preliminary reconstruction of the situation, even if it is just one photo and an incomplete dash cam. Haven’t even seen the dash cam yet, but the photo was very good about the range.

    That is not grappling range, of course, but because the woman was trying to “arrest” the target, she was moving herself into grappling range. Of course she should know that herself, which is why she pulled out the gun instead of something else. Lack of confidence in other options will naturally produce that action, because the human instinct doesn’t care about “maybe will work” in perceived life and death situations.

    For a person reading a story and trying to judge “whodunnit”, none of this is relevant. Because you aren’t actually doing the action, just reading about it, which is why police don’t like the media and the general public criticizing them from that point of view.

    When the police members themselves criticize member conduct, it’s from a different pov.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.
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