Friday, September 23, 2016

Tulsa Officer Charged For Killing Terence Crutcher - Is It the Right Charge Under the Law?

As you've likely heard by now, the Oklahoma police officer, Betty Jo Shelby, who shot and killed Terence Crutcher, has now been charged with First Degree Manslaughter.  In criminal law, when another human being is killed, the criminal charge associated with their death amounts to either murder or manslaughter.  Murder is, generally speaking, the intentional killing of one person by another.  Manslaughter, by contrast, is similar to murder but without the element of intent.  It's an acknowledgment that somebody's life was taken, but also an acknowledgment that their death may not have been purposely premeditated.

Oklahoma law (21 O.S. § 711) states that a person is guilty of First Degree Manslaughter under the following 3 scenarios:
  1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.
  2. When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
  3. When perpetrated unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed.
So what does this mean in plain English and is this the right charge given the facts that we know?  Let's take a deeper look.

The first section of the Oklahoma statute only applies in situations where the alleged killer is "engaged in the commission of a misdemeanor."  Officer Shelby was not engaged in a misdemeanor, so this section does not apply here.  Similarly, the third section is also inapplicable here because it deals with situations where someone dies during or shortly after they've attempted to commit a crime.  Based on what we can plainly observe from the police video, Terence Crutcher had not committed, nor was in the process of committing, a crime against Officer Shelby during the final moments when he was killed.

Which leaves us with section 2.  As explained by the Times:
Tulsa County DA
According to court documents, the officer, Betty Jo Shelby, 42, was overcome with fear that the man, Terence Crutcher, 40, who was not responding to her commands and was walking away from her with his hands up, was going to kill her.
An investigator with the Tulsa County district attorney’s office said in an affidavit that Officer Shelby became “emotionally involved to the point that she overreacted” and fired her weapon even though she “was not able to see any weapons or bulges indicating” that Mr. Crutcher had a gun.
Prosecutors have charged the officer with committing manslaughter “in the heat of passion.” Oklahoma law defines such passion as a strong emotion, such as fear or anger, that exists to such a degree in a defendant that it affects “the ability to reason and render the mind incapable of cool reflection.” Those found guilty of first-degree manslaughter face a sentence of no fewer than four years in prison.
Mr. Crutcher was unarmed when he was shot, and no weapons were found in his vehicle, officials said. The Tulsa County district attorney, Stephen A. Kunzweiler, said he filed the charge against Officer Shelby after reviewing video of the shooting from both a patrol car’s dashboard camera and from a helicopter that had responded, as well as 911 calls, witness interviews and other evidence.
Court documents state that based on Mr. Crutcher’s noncompliance, Officer Shelby’s fear “resulted in her unreasonable actions” that led her to fire her weapon. Mr. Crutcher died from a single gunshot wound to the chest.
According to Oklahoma law, "heat of passion manslaughter is the unlawful and intentional killing of another under the influence of a sudden heat of passion caused by adequate provocation and without malice."  Morgan v. State, 1975 OK CR 89, ¶ 2, 536 P.2d 952, 959-60 (Crim. App. 1975).  But you may be asking, well what about murder?  Can't you commit murder in the heat of passion too?  

With respect to distinguishing manslaughter from murder, Oklahoma takes the following position:
The use of "deliberate intent" in the definition of malice in Oklahoma connotes an intent that is thought out or considered before commission of the fatal act, rather than some undefined condition of the mind or heart. Because heat of passion requires the defendant to act on the force of a strong emotion following adequate provocation that would naturally affect the ability to reason and render the mind incapable of cool reflection, i.e., not with a deliberate intent pre-formed, the Oklahoma definitions of malice and heat of passion show they cannot co-exist.
Black v. State, 2001 OK CR 5, ¶¶ 48-49, 21 P.3d 1047, 1066-67 (Crim. App. 2001).  In plain English, in order to commit murder in Oklahoma you must have made up your mind that you are going to commit murder before you take action.  Manslaughter, by contrast, is something that happens on the fly after you've already taken action.  You don't wake up in the morning and say to yourself "I'm going to commit manslaughter today."  It just happens in the spur of the moment due to circumstances beyond your control.  In legalese, we call those circumstances beyond your control "adequate provocation."  

The problem for Officer Shelby here is two-fold: (1) was there "adequate provocation" presented by the facts here; and (2) even if there was adequate provocation and she did commit manslaughter, can she make out the case for excusable or justifiable homicide?    

In Oklahoma, "adequate provocation" is defined as:
any improper conduct of the deceased toward the defendant which naturally or reasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant. Generally, actions which are calculated to provoke an emotional response and ordinarily cause serious violence are recognized as adequate provocation. Actions that do not ordinarily provoke serious violence do not constitute adequate provocation. In determining whether the deceased's conduct was adequate provocation, the conduct is judged as a person of reasonable intelligence and disposition would respond to it. Mere words alone, or threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation. However, words, threats, menaces, or gestures, when considered in connection with provoking conduct of the deceased, may constitute adequate provocation. Personal violence or aggression by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodshed, or bodily harm to the defendant may be adequate provocation.
Black, 2001 OK CR at ¶57, 21 P.3d at 1067.  In plain English, what this boils down to is whether Officer Shelby's fear of Crutcher was reasonable.  On this point, Shelby's attorney said the following:
Shelby believed Crutcher was retrieving a weapon from his car. She told homicide detectives afterward, "I was never so scared in my life as in that moment right then," according to her attorney. 
If true, retrieving a gun from one's car is unquestionably the kind of "adequate provocation" that would cause fear in a reasonable person.  There's only one problem with Shelby's story here:
attorneys of Crutcher's family have said a window of Crutcher's car that he was standing near when he was killed was raised — citing blood splattered on the window
Now if it turns out that the car window was up, then that not only negates Shelby's story but it would also negate the fact that there was any "adequate provocation."  Without "adequate provocation," the DA would be forced to amend the charge from manslaughter to murder.  For Shelby's sake, her attorney better find a way to prove that the car window was rolled down.  Otherwise, manslaughter is the least of her worries.

Section 2 of Oklahoma's manslaughter statute provides in pertinent part:
When perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.
This last sentence, in plain English, is saying that you can't be convicted of manslaughter if you kill somebody in a scenario where the death is ruled as "excusable homicide" or "justifiable homicide."

Excusable Homicide
Excusable homicide is where death results from a lawful act by lawful means, accomplished accidentally or by misfortune or misadventure . . . The constituent elements of excusable homicide are three: First, absence of an intent to do harm; second, the lawfulness of the act resulting in death; third, proper precaution to avoid mischief.  For example, if a workman in a town was on a house and threw off a scantling, and g[a]ve due notice of the intent to throw it, and it hit someone and killed him, that would be an accident [aka "excusable homicide"], and he should go free; but if a workman in a town should throw a piece of scantling or other heavy substance off a house into a street where people were passing, and it should strike and kill someone, this would be manslaughter.
Bell v. State, 381 P. 2d 167, 176-77 (OK Crim. App. 1962).  In other words, "excusable homicide" is an accident.  This shooting would not classify as an accident because when Officer Shelby drew her gun, she obviously intended to use it to shoot Mr. Crutcher.  This flies in the face of the first element of excusable homicide which requires an "absence of an intent to do harm."  While she may not have intended to kill Mr. Crutcher, by drawing her gun and pointing it at him she certainly became aware of the possibility that doing so might end up harming him.  Any shooting under such circumstances would not be accidental but instead would be intentional and, therefore, not "excusable homicide."

Justifiable Homicide
Justifiable homicide is a defense if committed by a public officer acting within the provisions of 21 O.S. § 732. In addition, the defense of justifiable homicide is available to any person when the homicide is committed under one of the three fact situations set forth in 21 O.S. § 733. Section 733 establishes the perimeters of the defense of self-defense.
Camron v. State, 829 P. 2d 47, 56 (OK Crim. App. 1992).  In other words, "justifiable homicide" is legal speak for what we all commonly know as self-defense.  In Oklahoma, every person is entitled to argue self-defense, but Oklahoma also provides a special self-defense law specifically for police officers.  That law, 21 O.S. § 732, provides:
A peace officer, correctional officer, or any person acting by his command in his aid and assistance, is justified in using deadly force when:

1. The officer is acting in obedience to and in accordance with any judgment of a competent court in executing a penalty of death; or
2. In effecting an arrest or preventing an escape from custody following arrest and the officer reasonably believes both that:
a.such force is necessary to prevent the arrest from being defeated by resistance or escape, and
b.there is probable cause to believe that the person to be arrested has committed a crime involving the infliction or threatened infliction of serious bodily harm, or the person to be arrested is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay; or
3. The officer is in the performance of his legal duty or the execution of legal process and reasonably believes the use of the force is necessary to protect himself or others from the infliction of serious bodily harm; or
4. The force is necessary to prevent an escape from a penal institution or other place of confinement used primarily for the custody of persons convicted of felonies or from custody while in transit thereto or therefrom unless the officer has reason to know:
a.the person escaping is not a person who has committed a felony involving violence, and
b.the person escaping is not likely to endanger human life or to inflict serious bodily harm if not apprehended.
Undoubtedly, Officer Shelby's attorney will attempt to argue Section 3 of this self-defense statute.  The question then becomes whether or not Officer Shelby had a "reasonable" belief that she had to shoot Crutcher to protect herself and her fellow officers.  Once again, this will likely go back to the position of the car window.  If the car window was down, then Shelby can make a good faith argument that she feared that Crutcher was reaching for a gun inside the vehicle.  If, on the other hand, the car window was rolled up, then any "reasonable" belief that Crutcher could be reaching for a gun evaporates and Shelby's self-defense argument would fail.

Obviously Mr. Crutcher was killed by Officer Shelby, and when somebody is killed the law dictates that there be consequences.  Nobody is above the law, not even police officers.  That said, the DA appears to have made the right call under the law by charging Officer Shelby with First Degree Manslaughter, as opposed to charging her with murder or, alternatively, not charging her at all.  If facts emerge during the course of the investigation that call into question whether or not "adequate provocation" existed, then, as discussed above, the manslaughter charge itself may have to be revisited and adjusted up to murder.  

Assuming for the moment that "adequate provocation" exists, this trial will invariably come down to whether or not Officer Shelby can make out her case for self-defense.  Normally, self-defense is a proportional response to an actual threat.  For instance, if somebody attacks you with bare hands, then the law allows you to respond with bare hands. Likewise, if somebody attacks you with a gun, then the law allows you to respond with a gun.  However, when an armed police officer shoots an unarmed civilian and claims self-defense, the proportionality argument goes out the window.  In police self-defense cases, the self-defense argument does not turn on whether the unarmed civilian actually possessed a weapon but rather it turns on whether or not the police officer in question reasonably believed that they did.  Under such a standard, it is difficult to convict a police officer claiming self-defense.

What are your thoughts?

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