Arizona Officer Acquitted For The Killing of Daniel Shaver

Daniel Shaver and family

I generally report on cases and jury verdicts without opinion.  This time however, I feel the need to editorialize.

I reported on the killing of Daniel Shaver in April 2016.   That post includes a video of Daniel’s widow talking about the conversations she had with authorities that centered on the body cam videos and a plea deal. It left me with the feeling that she believed that if the videos were publicly released and Philip Brailsford brought to trial, that the jury would convict him.

Some of us know better.  The families of Sam Dubose, Eric Garner, Walter Scott, Delrawn Small, Alton Sterling, Patrick Harmon, Dillon Taylor and a host of others, know better.

For years, I’ve mentioned that justifiable homicide burden of proof in cases involving police shootings is wrong.   It’s wrong because the deceased are blamed for the officer using deadly force. The dead cannot face their accuser.  The justification is one-sided, and it always includes what the officer thought.  Defense attorneys argue an abuse of discretion burden of proof without the jury knowing the requirements to meet that proof.   An abuse of discretion is if the accused has failed to exercise sound, reasonable, and legal decision-making skills.

Law enforcement officers are given discretion in performing their jobs.  They are even given discretion on whether or not to stop and frisk; whether or not to arrest; and whether or not to use deadly force.

Discretion is what gives police authority to see a woman crying for help on one side of the street, and a suspicious person standing on the other side of the street, and stop and frisk the suspicious person rather than help the woman crying for help, (while the man who snatched the woman’s purse and knocked her down breaking her leg, casually took off in a Ford pickup truck with a Confederate Battle Flag in the rear window).

Philip Brailsford

When I read reports on the jury’s verdict in the trial of former Mesa police officer Philip Brailsford for killing unarmed Daniel Shaver, I heard the “discretion” dog whistles.  For example, USA Today reports that Maricopa County Attorney’s office issued a statement shortly after the verdict saying:

“This case did not and does not represent the vast number of honorable men and women who wear the uniform of law enforcement in Maricopa County,” the statement said. “Should similar facts as readily evident as portrayed in the video ever present themselves again, we will do our job and place the matter before a jury.” 

What I hear is that when videos demonstrate that excessive force was unnecessary, that the County’s Attorney will file a charge and let a jury decide on whether or not there was a killing beyond a reasonable doubt, or if the force was necessary based on the officer’s discretion in spite of all other evidence — because discretion to assume takes precedence over whatever the victim thought.

Discretion takes precedent over what victims can physically do.  Discretion takes precedent over whether or not the victim was armed.  Discretion takes precedent over how citizens are treated even before any officer has determined that a crime has been committed for an arrest.  With all the tactical and protective gear, the officer still has discretion in increments of seconds to place the importance of his/her life over the life of an innocent person.

Daniel Shaver committed no crime.  It’s a situation much like that of John Crawford and Tamir Rice where someone calls 911 with their perspective, and officers arrive and use assumptions to end human life.

Daniel Shaver was unarmed.  Daniel Shaver was afraid.  Daniel Shaver had a bit too much to drink.  Daniel Shaver begged for his life.

The shooting occurred after police were called to a Mesa La Quinta Inn & Suites on a report of a person pointing a gun out a fifth-floor window. A couple in a hotel hot tub told staff they saw a silhouette with a gun pointed toward a nearby highway.

Police later learned Shaver had been showing his pellet gun to Monique Portillo and Luis Nuñez, two hotel guests Shaver had met earlier that night. Both testified Shaver had been playing with the pellet gun near his hotel room window.  After he was killed, police determined that Daniel Shaver was unarmed. They did find a pellet gun in his hotel room, which Shaver used for his job as a pest-control worker.

Here’s the video below.  It comes with warning and I also warn that the way Shaver and the woman were instructed puts me in fear.  It puts me in fear because if I was ordered to cross my feet at the ankles and move on my knees towards the instructing officer, that I would not be able to do that due to painful arthritis in both knees.  Based on this video and that of others where officers do not listen to people but shout over them giving the same command and telling them “Do not talk,”  I would be shot.

The officer you hear shouting the commands is Sergeant Charles Langley, one of six officers in the hallway.  Langley has since retired from the force and moved to the Philippines.   Langley led Daniel through a game of Simon Says while officer Philip Brailsford stood on the side to execute the death penalty.  To be clear, the officer shouting commands DID NOT FIRE THE BULLETS that killed Daniel.  Philip Brailsford was the only officer out of six to fire his weapon.  He shot Daniel 5 times.

Brailsford’s trial began in October.  The court did not hold trial each day and it carried on through November. On Thursday, December 8, 2017, an 8-member jury deliberated less than six hours over two days, and returned a verdict of not guilty of second-degree murder and not guilty of the lesser charge of reckless manslaughter.  (Arizona Central reported that the jury consisted of 11 members.)

USA Today reports that the packed courtroom in Maricopa County Superior Court was quiet after one of Judge George Foster’s clerks read the verdict.  Daniel’s widow, Laney Sweet, and Daniel’s parents have filed wrongful-death lawsuits against the city of Mesa.

Mesa Mayor John Giles, in a statement provided by his spokeswoman said, “We trust the judicial process and respect the court’s decision.”

Do we have any other choice?  Our constitution protects against double jeopardy.  Citizens do not get a do-over.

Okay.  Let’s talk about police killings and race.  On Twitter, some folks are asking where is Black Lives Matter or are they only concerned about Black lives?  Where is the media?  Apparently, they haven’t watched the video of Daniel’s widow. The prosecutor asked for her silence.  They did not want to publicly release the body cam video for fear it would prejudice a fair trial. (They would not publicly state why they fired Brailsford, saying it might prejudice his chances of receiving a fair trial.)

While Laney Sweet was of the opinion that the public needs to know that her husband committed no crime, was complying with commands, and was shot 5 times, the prosecutor told Laney that the media doesn’t give a “rat’s ass” about her and only wants her to be emotional on camera to help their ratings.

The powers that be enjoy seeing social media take off when a Black person is killed by police because they can then present it as a Black issue.   They love the press conferences that address if race played a role in the killing because again, that makes it a Black problem.  But they tell the family of White victims to be silent and not talk to the media because it might prejudice the defendant’s trial.

The deaths of Blacks killed by police gives some of the population opportunity to justify death by execution for things such as traffic tickets, failure to pay child support, being charged for carrying a marijuana joint.  It gives them the chance to say that Blacks should comply with police commands and not pull up their pants or make a fast move.  They could make those demeaning and dehumanizing justifications — until the video of Daniel Shaver’s death.

Police use of deadly force against unarmed citizens is a problem.  Regardless whether race or gender plays a role, the foundational problem is abuse of discretion.  Police officers have discretion to assume that any move by a suspect is a movement to get a weapon.

The judiciary should stop confusing juries with the beyond a reasonable doubt standard of proof and including  instructions about justified use of force. Give juries an abuse of discretion standard that allows them to test whether the defendant failed to exercise sound, reasonable, and legal decision-making skills.

Beyond a reasonable doubt, Philip Brailsford shot and killed Daniel Shaver.

Beyond a reasonable doubt, Daniel Shaver was unarmed.

No logical person would think that a gun is the right weapon to use against 6 men with automatic rifles, clothed in bullet proof vests.

Philip Brailsford abused his discretion when assuming Daniel was going for a gun.  Langley abused his discretion when having Daniel play Simon Says crawling on the floor rather than having him stand spread eagle to be handcuffed and searched.

Change jury instructions to abuse of discretion, and we might find that those who like playing Simon Says to see frighten people beg for their lives, while another officer waits for the opportunity to execute death on the suspect, will no longer be attracted to jobs in law enforcement.

USA Today reports that since 2005, 84 police officers across the nation have been charged with murder or manslaughter in connection with an on-duty shooting, according to research by Philip Stinson, an associate professor at Bowling Green State University in Ohio.  In that time, 32 officers have been convicted, while 40 have not, the research shows. The remaining cases are pending.