The Corner

Law & the Courts

The Officer Shouting Instructions at Daniel Shaver Was Not the Officer Who Killed Him

I agree with David French: What happened to Daniel Shaver was nauseating. The police employed horrendous tactics and gave confusing instructions that made it difficult for Shaver to comply — and needlessly required him to make a series of movements that could lead to his hands’ ending up in the wrong place.

I’m seeing a mistake all over, though, that needs correcting. The officer who shouted instructions at Shaver was not Philip Brailsford, the officer who fired five rounds and was later tried for murder. There is an important legal question about whether bad tactics can make an officer culpable for a subsequent use of force, but in this case the bad tactics were not executed by the officer who used force.

David didn’t make this error, to be clear. But CNN is in the process of revising a piece largely premised on it, and it was my initial impression, too, upon viewing the video.

This doesn’t excuse the officer’s decision to shoot, but it makes the jury’s decision more understandable. After being called to a report of someone waving a rifle out of a hotel window, Brailsford was faced with a shoot/don’t-shoot decision where the suspect unambiguously reached toward his waistband. As I’ve written several times, officers are trained to react quickly to such movements when suspects have been instructed not to make them, because if a suspect is in fact armed, the cop will be dead if he waits to find out what the suspect is reaching for.

In this case, the broader circumstances — a drunk, crying man crawling on the floor, trying his hardest to comply with confusing instructions and begging the officers not to shoot him, outnumbered by the police many times over — still make the decision to shoot wrong. I hope the family’s lawsuits succeed spectacularly. But in the context of Brailsford’s trial, the video does look somewhat different when you realize the voice and the gunshots don’t come from the same person.

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