Is emerging Terence Crutcher case narrative accurate?

Editor’s Note: Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association’s criminal law section. Follow him @PhilHollowayEsq. The opinions expressed in this commentary are solely those of the author.

The video of the fatal shooting of Terrence Crutcher is graphic, violent and difficult to watch. Now that we know he was unarmed and, in hindsight, seemingly not an actual imminent threat, the case appears heartbreaking.

Reaction in the media – particularly social media – has been swift, and the actions of Tulsa police Officer Betty Shelby have been widely condemned, with many calling for her immediate arrest on criminal charges and the U.S Justice Department opening its own investigation within hours of the release of patrol car and helicopter video footage of the shooting.

But however tempting it might be to jump to conclusions based in part on what we think we know from other shootings, we should pause and reflect on the information we have – and don’t have – available right now.

First, I want to be clear: I am not defending this shooting. However, I am defending due process. So before the social media world collectively tries and sentences Officer Shelby for murder – or anything else – a thorough and complete investigation is in order.

I’ve practiced law since 1996, and I have maintained my certification as a peace officer since 1989. I train regularly with law enforcement on police use of force and related issues, have taught on the topic and represented officers who have been involved in shootings. I make my living, in one way or another, analyzing police work after-the-fact.

With all that in mind, and based only on the video evidence publicly available at this time, my take is that this seems to be an unreasonable use of force. But whether my opinion changes and whether this amounts to a crime depends on answers to questions yet to be answered.

The Supreme Court of the United States told us in 1989 that all police use of force must be “objectively reasonable” under the totality of the circumstances as viewed from the perspective of the officer on scene. In Graham v. Conner, the Supreme Court specifically cautions against using the 20/20 lens of hindsight. Chief Justice Rehnquist stated:

“The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation. The test of reasonableness is not capable of precise definition or mechanical application.”

Nevertheless, that is what we do every time we watch these shooting videos and try to pick them apart for answers. Yet, if anything, the limited information we have now presents more questions than it answers.

Investigators therefore need to know, among other things:

– Why was Crutcher walking away from police?

– What did the officer say was the reason she fired?

– Why was his SUV parked mostly in the lane of oncoming traffic?

– Dispatch relayed that a 911 caller said a man was warning the SUV was going to blow up. Why?

– What commands, if any, was Crutcher given, and why? Was he complying with commands?

– What did other officers on scene have to say?

– What training, if any, did the officer have in use of force and particularly “judgmental shooting?”

– Was Mr. Crutcher actually high on PCP as the officer says she feared? It’s a fair question since PCP was found in his SUV, and only a thorough autopsy can determine what – if anything – was in his system.

In addition to these questions, there is one particular question that I would want to see answered: What officer would command any suspect to put their hands in the air, walk away from the officer and toward a vehicle that may contain any number of lethal weapons? Is that the command that Officer Shelby was giving? I can’t imagine any rational officer giving such an order under these circumstances.

The emerging narrative is that Mr. Crutcher was complying with officers orders and “walking slowly towards his SUV with his hands high in the air.”

But was he? Is that emerging narrative true? If it is true, then Officer Shelby has a very serious legal problem – and may well face a murder charge. And if this narrative is true, then she is either the most incompetent officer I’ve ever seen, or she is a truly evil person who committed murder in cold blood.

On the other hand, if Shelby ordered Mr. Crutcher to stay put or to get on the ground, as her attorney says was the case – and good police training and common sense would call for – then the narrative falls apart and we are back to the “totality of the circumstances” that the Graham holding requires prosecutors and courts to apply when deciding whether or not someone committed a crime.

Under the Graham holding, the ultimate question is whether a hypothetical reasonable officer under the same or similar circumstances would have done the same thing. Here we have multiple other officers who were actually there who did NOT shoot Crutcher. That’s a good sign that there was at least an error in judgment by the officer who did shoot.

I’m not ready to accuse Officer Shelby of murder – or of any other crime for that matter – because I haven’t seen any evidence of criminal intent. Hopefully, a complete and thorough investigation will reveal the existence or absence of such intent. But the bottom line in this and similar cases is that we need more answers to decide if it was a murder or any other crime.

This article has been updated to reflect additional reporting on the contents of the SUV.