The Killing of Daniel Shaver

The killing of Daniel Shaver was an avoidable tragedy. But it was not a murder.

If you're not familiar with the story, Daniel Shaver was a 27 year old man who was shot to death at a La Quinta in by a City of Mesa Police officer in January of 2016. Shaver, an exterminator, had two air rifles in the room and was showing them off to guests. This included aiming through the scope out the window, an action which alarmed onlookers and prompted the calls to 911 by hotel staff. Police responded with an armed tactical team. When shaver and his female companion exited the room, police ordered them down to the ground. Shaver's female companion was taken into custody without incident. Shaver himself, seemingly unwilling to obey commands, reached for his waist and was promptly shot five times by Officer Brailsford, and died instantly.

Eye of the Beholder

One of a defense attorney's biggest tool is multiple witness statements. A single witness to an event provides a single record of an event of which veracity cannot be challenged. Instead, the veracity of the witness itself has to be challenged. Consider the Harper Lee novel "To Kill a Mockingbird", in which Atticus finch is given the unenviable task of defending a black man against charges of raping a young white woman during the 1930's. Aside from the victims allegation and the circumstantial evidence, there was one witness - the neighbor's black live-in housekeeper, Calpurnia. At a moment of high drama during the trial, Atticus noticed that Calpurnia had the characteristic marks on her nose of someone who wore glasses, but that she was not wearing glasses. On examination, Calpurnia admitted that her eyesight would not have been good enough to view the details she claimed. That stunning turn of events contributed to the eventual acquittal of the accused.

The key takeaway from this is something that is very common in court rooms - that witness statements often carry more credibility than they should. People often assume that human memory is like a video recorder, and provides perfect recall. Instead, as Professor Elizabeth Loftus of the University of California explains, memories are assembled like puzzle pieces. Pieces can be misplaced in the puzzle with enough effort. And unlike a puzzle, missing pieces get filled in by the brain. Pieces can even be created. Even the act of questioning can alter how an individual recalls an event. It is extremely rare in investigations for multiple witnesses to give statements which are in agreement. Often, investigators have to create narratives which fit as many as the facts and witness statements as possible, and that itself involves a contribution of imagination.

Despite there only being five officers in the hallway, this event was literally witnessed by millions of people. That is because the encounter was captured by the officer's body cam.

The Camera Does Not Lie

People often assume photographic evidence is a fact. In reality, it's as close to the fact as you can get without perfect omniscience. The phrase "the camera does not lie" has it's origins long ago in photography, but the first print citation is from the 1895 Lincoln Nebraska Evening News. But even then, it was understood that the photographer and the photograph can "fib as badly as the canvas on occasion."

That is because even though each viewer was not physically present, they were nevertheless aware that the situation was terminal, that Shaver was in extremis, and that the video would show the killing of a fellow human being. Even when viewers know a video is fake, there are measurable changes in endocrine responses measured in the lab in response to the film portrayal of death. These involuntary physiological changes - heart rate increase, sweating, trembling, unsteady breathing - are tell tale signs of distress. It the police body cam footage, the fact of the event was well known by the viewer. And it is a very disturbing video to watch.

For that reason, the same conditions which affect witnesses to real life events also affect second hand witnesses. Memories associated with traumatic events are very unreliable, and emotion can can often cloud judgement in formulating a response.

Cop Killers and Killer Cops

Policing is an inherently dangerous profession. It is the job of police officers to pursue criminals, sometimes violent criminals. It is always been the case that those who do not respect the laws of society are more likely to also not respect authority figures, and therefore stand a good chance of trying to harm or kill an officer who is preventing them from carrying out crimes or escaping the consequences of them. As a result, police are given significantly more latitude in decision making when it comes to deadly force. This latitude has often been abused, and it is common among the law enforcement community to say things like "make sure you go home at the end of your shift", or "better judged by twelve than carried by six", implying that it is better to kill than be killed. The "killer cop" has been glorified in movie and television crime dramas, particularly the "Dirty Harry" and "Magnum Force" franchises of the 1980's.

It is precisely the overwhelming use of force and aggression in policing that leads to a seemingly contrary fact. Despite being an inherently dangerous profession, policing is not even remotely one of the deadliest professions. According to the National Law Enforcement Officer's Memorial Fund, 140 police officers in the US lost their lives in 2017 to date. Of that, just under half (64) were killed by gunfire. Because police exercise hyper-awareness, and because they use their authority as a way to achieve initiative in potentially violent encounters, the actual fatality rate for police officers is just 11.1 per 100,000. Many other occupations are far more dangerous, including logger, commercial fisherman, professional pilot, garbage man, and truck driver.

A Tragedy of Errors

A neutral, impassioned, detached observer would note the following. First, Officer Brailsford placed a considerable amount of undue emphasis on telling the suspect that he could die as a consequence of not following commands. That led Shaver to an emotionally charged state and increased the likelihood of making errors in judgement. Brailsford also escalated the situation by his tone and behavior, when it is the responsibility of an officer to deescalate situations wherever possible. Many of Brailsford's commands were contradictory, at once telling Shaver to keep his hands in the air (under threat of death), then telling him to crawl to him on all fours, for example. Unknown to officer Brailsford was that Shaver was heavily intoxicated - blood tests later revealed an astonishing 0.3 blood alcohol content. This would have made compliance with commands difficult under any circumstance. While Brailsford did ask whether Shaver had been drinking (to which Shaver responded that he hadn't), Brailsford should have been able to recognize signs of intoxication and incorporate that into the response. Brailsford created the conditions which led to Shaver's death, and I personally have no doubt that Brailsford will be found guilty in a civil case. But in a criminal case in a court of law, alleging murder or voluntary manslaughter, simply creating the conditions that leads to the death of another is not sufficient to garner a conviction. The prosecutor in this case should have pursued involuntary manslaughter charges, but made the decision to do otherwise.

Brailsford was not the only actor with culpability in this case, however. Shaver bears considerable responsibility for a series of poor decisions rising from bad judgement which led to this end. As mentioned, Shaver is a married man and father of two children. He was in town on business, not accompanied by his wife. He elected to invite two acquaintances to his room where alcohol was consumed in considerable amounts. While intoxicated, Shaver chose to handle firearms and display them to his guests. (Pellet guns are considered firearms by definition, and in appearance they are indistinguishable from high powered rifles.) Shaver then allowed his guests and did himself to "sight" the rifle, pointing them out the window of the hotel room. This act alarmed guests and bystanders, who notified the hotel staff who in turn alerted the police. When police arrived, they tried to make contact with the occupants of the room, but Shaver and his guests did not answer the repeated phone calls to the room. Eventually, Shaver and his guest came out of their room and were met by five armed officers of the Mesa Police Department. When questioned by Brailsford as to whether they had been drinking, Shaver and his guest both emphatically stated "no". When ordered to get up in a kneeling position, Shaver uncrossed his legs and bounced up on his knees, despite being told by Brailsford to keep his legs crossed. Despite being told to keep his hands up, Shaver hid his hands behind his back. When commanded to put them up, Shaver swung them forward and together as if he was holding something, then raised them over his head. But the final, fatal error on Shaver's part, came when he was crawling to officers as commanded. Inexplicably, he raised up off his right hand, and reached towards his waistband. That is the moment when Brailsford fired five shots, killing Shaver instantly.

The Most Dangerous Thing You Can Own Is Your Own Waistband

In November of 2014, while on trial for the shooting death of Michael Brown in Ferguson, MO, officer Darren Wilson claimed that the reason he shot Brown was because he saw him 'reach into his waistband'. In a similarly high-profile incident caught on video, rookie officer Timothy Loehmann claimed he shot 12 year old Tamir Rice because he was 'reaching for his waistband', a fact supported by the grainy stop-motion surveillance video of the incident. (Rice, like Brown, later died, but triggered outcries against police violence from across the nation.)

If it seems like a cop movie trope, wherein every cop might claim the suspect was reaching for their waistband when they shot them, that's understandable. In 2001, over half of young black men shot by officers in Los Angeles were said to be reaching for their waistband. Part of the reason can be explained by fashion - young black men typically wear the kind of baggy, low-hung jeans common among hip-hop stars, and often need to grab them and pull them up. Particularly if they plan to run. However, the reason cops shoot is simpler - the waistband is the most common place where suspects hide guns. And if a suspect is reaching there, the safest response for the officer is to assume they are reaching for a gun and respond accordingly. Often that means firing to avoid being fired upon.

The phenomena isn't limited to young black men. But it is peculiar to young men in general. More than 50% of police shootings are against white suspect, and a list of 'waistband shootings' can be said to be particularly diverse. While there are a plethora of reasons why someone would reach for their waistband, officers who are trained to react instantly to specific scenarios are not equipped to deal with the possibility, or even probability, that a suspect is adjusting his drawers.

Accepting Tragedy

In the aftermath of the Shaver verdict, just like in every other shooting which has been questioned by the public, there will be calls for police to soften, to move away from increasingly violent and militaristic tactics. The problem is that those calls are completely at odds with what the public expects - cops who are tough on crime, and protect the public.

In the case of the Las Vegas Shooting police were roundly criticized for their "slow" response time, and for not using precisely the tactics used against Shaver. In reality, police were able to locate the 31st floor room of Stephen Paddock within 12 minutes - 8 minutes quicker than the national average. By that time, however, Paddock had stopped shooting the crowd, and was in the process of taking his own life.

In each public mass shooting or terrorist attack, the public calls for increased security, increased law enforcement, and increased militarization. Often, the measures would not have addressed the original attack, and failed to prevent subsequent attacks. School resource officers put in place after the 1999 Columbine High School massacre did not stop or prevent the next 198 school shootings since then. Likewise, terrorist attacks by foreign actors have increased since the September 11th, 2001 attacks despite increased police power, heightened surveillance, and billions in additional equipment for police including military hardware.

The fact of the matter is, whether you believe in God or not, and whether you believe that humans are basically good, or basically selfish, there is evil in the world. While it is not an excuse to prepare for or insure against being a victim of either violent criminals, crazed attackers, or even overly aggressive cops, it is also not an excuse to find outrage in everything that happens. If we are to have a peaceful, happy, and civil society, we must learn that tragedy can does happen, and there is not always one person who is solely at fault. We need to accept the likelihood of tragedy as being part of the nature of being, and the freedom to life live.