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    Legal Game Changer: Terence Crutcher had “High Levels” of PCP when shot by OK police

    Legal Game Changer: Terence Crutcher had “High Levels” of PCP when shot by OK police

    Another racial narrative in a police shooting appears to be falling apart.

    It appears that another negative narrative about a police shooting of a black suspect is about to go down in flames. This particular case involves the shooting death of suspect Terence Crutcher by Oklahoma police officer Betty Jo Shelby.

    The racial narrative in the shooting death of Crutcher appears to have taken a fatal blow with the news yesterday, as reported in the New York Times and elsewhere, that the coroner in the case has determined the Crutcher “had a high level of the drug PCP in his body” at the time of his death (emphasis added).

    This finding essentially puts the finishing bow on Officer Shelby’s narrative of a lawful use of deadly force, which was already consistent with all available evidence. It also puts a spotlight on the local prosecutor’s shameful and patently politically-motivated decision to charge Shelby with manslaughter in Crutcher’s death even before the coroner’s findings had been released.

    It is worthwhile here to recap Shelby’s narrative of the events surrounding the shooting of Crutcher (drawn primarily from this ABC news story). Naturally, none of us were there, Shelby’s recounting of events is only one side of the story, and it is subject to disproof by incriminating evidence (if any can be found).

    It is important to keep in mind, however, that the legal standard to be applied is that Shelby’s guilty must be proven, and thus her narrative of innocence disproven, beyond a reasonable doubt in order to overcome her presumed innocence. Unless there is some reasonable prospect of that happening there is no possible legal justification for bringing criminal charges against her.

    I suggest that even a superficial examination of her narrative, considered with the totality of all the other available evidence, makes it extraordinarily unlikely that it can be disproven beyond a reasonable doubt. This is even more the case with the coroner’s finding of a high level of PCP in Crutcher’s body.

    Shelby’s Account of What Happened

    Shelby states that she was responding to an unrelated domestic violence call when she came across Crutcher standing in the middle of the road, eyes on the ground. Shelby also saw an SUV parked forty feet or so further down the road, positioned across the middle of the road obstructing traffic in both directions, with the engine running. (Helicopter video shows Shelby’s patrol car stopped just short of where she first observed Crutcher, and thus a similar distance from the SUV.)

    Shelby approached the SUV and observed that the vehicles doors were closed and the windows open. At this point she observed Crutcher walking towards her. She asked him if the SUV was his vehicle, but Crutcher did not reply, but rather simply stared at her. In addition, as he approached he put his hand into his left pocket. Shelby told Crutcher to remove his hand from his pocket, but Crutcher was also unresponsive to this request.

    To this point there can be little dispute that Shelby’s conduct had been entirely reasonable and appropriate to the circumstances, and that it was Crutcher who initiated conduct that any officer would reasonably perceive as potentially threatening, and who was non-compliant with lawful police orders.

    Shelby ordered Crutcher to take his hand from his pocket a second time, and this time Crutcher did respond but in an exaggerated manner by putting his hands in the air, which Shelby had not requested. Shelby again tried to communicate with Crutcher, and he was again non-responsive, merely mumbling under his breath. Crutcher then walked to the edge of the roadway, turned back to face Shelby, and again started to reach for his pocket.

    Here it is worth noting that Crutcher’s second reach for his pocket, after being repeatedly ordered not to do so, would be perceived by an reasonable officer as a threatening motion. Pockets and the area around them are, after all, where weapons are routinely kept, and police officers are fully entitled to demand that subjects of a reasonable inquiry not engage in threatening conduct. Under these circumstances there can be no doubt that Shelby’s inquiry of Crutcher was reasonable under the circumstances.

    “High Levels” of Consistent with Shelby Account

    Furthermore, given the totality of Crutcher’s demeanor and conduct, Officer Shelby (a trained drug recognition expert) came to believe that Crutcher was “on something,” potentially PCP.

    The medical literature recognizes PCP as an “infamous hallucinogenic sought for its ability to induce the illusion of euphoria, omnipotence, superhuman strength, and social and sexual prowess …” with symptoms that include “slurred speech, violent behavior and blank staring” and that is known to “induce acute schizophrenia, including agitation, psychosis, audiovisual hallucinations, paranoid delusions, and catatonia.”

    All of this is consistent with Crutcher’s behavior in interacting with Officer Shelby, and the association of “violent behavior” with PCP use would naturally have been particularly alarming to any reasonable officer.

    It was at this point that Officer Shelby used her radio to request assistance from other officers, reporting that she was dealing with a non-compliant suspect. As the substantially larger and potentially violent Crutcher continued to close on her, Shelby drew her service pistol and commanded Crutcher to stop and get on his knees.

    Here Crutcher has a clear choice. He can comply with Shelby’s lawful orders to secure the safety of the scene, or he can remain threatening non-compliant in the face of a drawn weapon. Crutcher choose poorly, an began to move back towards the SUV.

    Just as a pocket and the waistline of a suspect are places where officers are reasonably concerned might contain a weapon, exactly the same is true of a suspect’s vehicle. Indeed, the readily accessible areas of a vehicle are subject to police search upon a reasonable stop, without any requirement for a search warrant, precisely for that reason. Indeed, it is not uncommon for officers to find themselves the targets of weapons retrieved from vehicles by suspects, often at the cost of the officer’s life.

    Crutcher’s Return to the Vehicle

    A classic example of this occurring is that of the shooting death of Police Officer Kyle Dinkheller. Dinkheller has made a lawful traffic stop, and the driver was non-compliant to repeated lawful commands. Eventually the suspect would return to his vehicle, contrary to Dinkheller’s commands, and retrieve a rifle with which he attacked and murdered Dinkheller. This incident was captured by Dinkheller’s dash camera, and is used widely throughout the US and elsewhere to train officers on the dangers of suspects who attempt to access their vehicles contrary to police commands. Officer Shelby is known to have observed this video in her own training, and thus would be acutely aware of the danger presented by Crutcher attempting to access the SUV.

    The Dinkheller video is embedded below, but I caution that it is not for the faint of heart as it shows a good man being murdered. (Incidentally, it is commonly believed that Dinkheller was not more aggressive in neutralizing his attacker earlier in the interaction because he had just been chastised by his department for a recent use-of-force incident. And early example of the deadly “Ferguson effect,” perhaps?)

    In short, when Crutcher began moving towards his vehicle contrary to Shelby’s repeated order to desist, his conduct was exactly as threatening as if he was reaching for his pocket contrary to repeated police orders.

    As Crutcher continues to move towards the driver’s side of the SUV, Shelby maintains her muzzle on the suspect and continues to give him lawful commands to which he is non-compliant. Consistent with standard police training, Shelby uses the rear of the SUV to provide cover from any force Crutcher may attempt to bring to bear. This positioning places her such that she is looking down the length of the driver’s side of the SUV, from the rear towards the front of the vehicle.

    The dash camera video captured by Shelby’s patrol car, captures Crutcher approaching the driver’s side of the SUV. At this point several backup officers respond to support Shelby, and crowd up alongside her. In doing so their bodies incidentally block the camera’s view of Crutcher. The relevant portion of that dash camera video can be seen here:

    It is Shelby’s statement that it was at this point that Crutcher has moved adjacent to the driver’s side door of the SUV. Crutcher turned to the vehicle, and reached into the driver’s side window. It was at this point that Shelby fired her service weapon once, mortally wounding Crutcher. A second officer who had presented a Taser device would also discharge the weapon at Crutcher.

    No Necessity that Shelby Saw a Weapon

    Shelby states that she believed that when Crutcher reached into his SUV he was doing so to retrieve a weapon. This belief is a reasonable one based on Crutcher’s observed demeanor and conduct and Shelby’s training and experience as an officer (see again Dinkheller, above).

    It is worth noting that neither the law nor tactical reality requires that an officer wait until they actually see a suspect’s weapon before they can engage with defensive force. As a practical reality, waiting until a weapon is actually displayed leaves the officer with too little time in which to react in self-defense. Instead, the officer is permitted to use defensive force against a reasonably perceived imminent threat of force.

    The following video clip we first see a shooter responding to a audible signal to fire his gun (to represent an officer visually identifying a weapon), and we see it takes him an average of about 0.8 seconds to fire.  We next see a shooter retrieving a weapon from a vehicle and firing at a target, and we can see it takes less than half that amount of time to for the “aggressor” to fire their shot.  This makes intuitive sense, because the aggressor has already made the mental decision to shoot, and thus need only spend time on the physical act of firing.  In short, if a defender waits until they see the criminal aggressor’s gun, the action of the aggressor invariably beats the reaction of the defender. (Note, the clip below is only a small portion of the original, which was produced by a third-party on Youtube; I encourage you to view the video in full here.)

    Given this practical reality, then, there is little doubt that Crutcher’s conduct of reaching into the vehicle contrary to police orders and knowing he was being held at gunpoint is consistent with Shelby’s reasonably perception of an imminent threat of deadly force.

    In addition to the video captured by Shelby’s dash camera, there is also video of these events that was captured by a police helicopter overhead. I’ve also embedded that video below. There are two important points to make in the context of that video. First, there is nothing explicitly inconsistent between the helicopter video and Shelby’s stated narrative of events. Second, even if there were some inconsistency, the legal standard by which Shelby is judged is what a reasonable person in her position would have perceived under the circumstances, not what a person in a helicopter might have perceived. In any case, here is that helicopter video:

    If the evidence favorable to Shelby stopped there, Shelby’s narrative of a lawful use of force would be remarkably robust, absent clearly rebutting incriminating evidence. But the evidence favorable to Shelby does not stop there.

    Following the shooting the SUV was searched, and PCP was in fact found in the vehicle. This is consistent with Shelby’s observations of Crutcher’s behavior and her reasonable perception that Crutcher presented a substantive risk of violence.

    Still, while it would be shockingly uncommon to find PCP in a vehicle and not in the suspect under these circumstances, it was at least theoretically possible that such was the case here. After all, if there was no PCP found in Crutcher’s system that could undermine the reasonableness of Shelby’s perception of Crutcher’s dangerousness.

    As experience strongly suggested, however, in fact there was PCP found in Crutcher’s system, and not just modest amounts of PCP but “a high level.”

    In summary, this finding of high levels of PCP in Crutcher combined with the evidence already available makes it all but impossible that Shelby’s narrative of a lawful use of force in self-defense and defense of her fellow officers can be disproven beyond a reasonable doubt.

    The Video Helps and Hurts Shelby

    Is it theoretically possible that evidence might emerge that undermines Shelby’s narrative of innocence? Sure. A video that clearly shows Crutcher was not acting in a manner that could be reasonably perceived by Shelby as reaching into his vehicle, for example, would seriously undermine her narrative. Neither the dash cam nor the helicopter video shows this, however, and absent some similar incriminating Shelby’s narrative of innocence seems the clear winner.

    It used to be the case that the mere fact that a prosecutor had brought charges would be sufficient to strongly suggest that substantive incriminating evidence must exist, perhaps not known to the public but known to the prosecutor.

    In recent years, however, we have seen numerous instances of prosecutors bringing political cases against defendants with little or no incriminating evidence, and even in the face of an overwhelming volume of exculpatory evidence. The trial of George Zimmerman in the shooting death of Trayvon Martin and the trials of the Baltimore police officers in the in-custody death of Freddie Gray are obvious examples.

    It seems increasingly rare that prosecutors apply the law appropriately and decline to bring charges even in a racially-charged case where such charges are not warranted. The refusal of the prosecutor to bring Officer Darren Wilson to trial over the lawful shooting of Michael Brown in Ferguson is one such example of adherence to due process (a refusal that would also be adopted by the Department of Justice).

    It would appear, then, that the shooting of Terence Crutcher will not have the “legs” needed by Black Lives Matter to leverage for their long-term political purposes. In such cases the event is typically allowed to quietly wither away without further examination, and to disappear from the collective historical memory. Instances of police uses of force that are lawful are, after all, of little interest to racial activists.

    They can be certain, of course, that soon enough another non-compliant and prospectively violent black suspect will be shot by a white police officer, and then they can crank up the propaganda machine once again until that case, too, is proven to have been lawful. Then rinse, repeat, ad infinitum.

    –-Andrew, @LawSelfDefense

    Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
    “Law of Self Defense, 3rd Ed.” /Seminars / Instructor Program / Twitter /Facebook / Youtube


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    dmi60ex | October 12, 2016 at 8:22 pm

    Mr Branca
    Officer Ray Tensing goes on trial Oct 24 .
    You did a piece on him last year .
    Reddit did a line on this shooting and there several analyses that shows he was dragged as he had stated .
    I could send the links to you .
    Is the Andrew, the email?

    I saved them I could email them to you.

    Andrew, there are many claims that the helicopter video shows closed windows, therefore Crutcher couldn’t have reached in. I don’t see that myself.

      Char Char Binks in reply to SDN. | October 13, 2016 at 3:08 pm

      Benjamin Crump made that claim. He can’t tell the difference between blood spatter and a seatbelt, apparently.

      I don’t see the window clearly closed in the helicopter video, either, but it hardly matters. What’s relevant is what Shelby saw, and whether the inferences she made as a result were reasonable. The fact that the helicopter may have seen something different (if it did) does not make Shelby’s perception unreasonable. Remember, we’re not required to make perfect observations when acting in self-defense, we’re merely expected to make reasonable observations. Mistakes are perfectly acceptable, if they are reasonable mistakes.


    Sam in Texas | October 13, 2016 at 12:04 am

    “It is worth noting that neither the law nor tactical reality requires that an officer wait until they actually see a suspect’s weapon before they can engage with defensive force.”

    Yeah, that was saved for Rules of Engagement of our military in Afghanistan.

    Char Char Binks | October 13, 2016 at 1:05 pm

    It’s funny, many articles reported that Crutcher had PCP in his system, seemingly minimizing its importance, when the tox report actually said he had “acute phencyclidine intoxication.” And by “funny” I mean “not funny”.

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