By now everyone in the world is aware of the officer in Tulsa whom used force to end an encounter with a subject who was not following directions. The pundits, social commentators, and Department of Justice are looking into the actions of Tulsa Police Officer Betty Shelby. On September 22, 2016, we learned that Officer Shelby will be charged with 1st Degree Manslaughter. I do not know anything about the investigation although I do ask that you ponder these questions when you determine if the application of force was reasonable or not.
The factors that are to be considered and reviewed are what Officer Shelby faced on the night she applied the force. Anytime an officer uses lethal force, and a subject dies, it is a bad thing, but that doesn’t mean that the actions were not reasonable, or were reasonable. The actions of the officer need to be viewed at the time force was applied, and investigated as if the officers were in her shoes at the time force was applied. I know nothing more than what is publicly made available and I opine not on any action of force as to if it was reasonable or not, but provide you a position from which to review the force.
Severity of Crime
The discussion that is before us now, as it relates to the application of force, was the subject, whose “hands were up” violating a crime. Based on my review of the incident, the answer is yes, but it wasn’t necessarily a serve crime, (some of you are saying that I’m using hindsight, I am but bear with me). Officer Shelby was originally on the scene to conduct one a lawful investigation for a violation of either traffic or criminal law in Oklahoma. The situation is clearly tense, uncertain and rapidly evolving. There are a maelstrom of officers arriving on scene, a helicopter in the area, and a subject who is not complying with instructions. I heard stress in the voice of a female officer on scene requesting assistance, and putting out shots fired. This goes to demonstrate the stress and state of mind that the female officer was under. If she is the officer involved, or not, it clearly demonstrates an officer’s frame of mind at the time the situation was evolving. The severity of crime is not entirety for the basis of the application of force, but part of a unique paring or equation that the SCOTUS has upheld time and time again, and reaffirmed in Scott v. Harris.
Threat to officer or others
In looking at the interaction from the publicly made videos, we see over, and over, and over again what happened. Officer Shelby had to make a split second decision, and she only got to see it once. Was there a threat to the officers? Clearly Officer Shelby felt like there was and in the age of video, the subjective nature of the video is used to provide an objective understanding of an officer’s actions. The officers’ actions need to be combined with Officer Shelby’s frame of mind at the time she used force. With human factors playing an important part, we know that she had a narrow focus, and couldn’t see everything that the cameras saw. Her own attorney said that she was suffering from ‘auditory exclusion’ which is a well researched and proven phenomenon in high stress incidents.
Resisting arrest or flee
If you are confused by where I stand, on this issue please re-read the above paragraphs.
To make an appropriate and objectively reasonable decision on the application of force, we have to know what Officer Shelby was thinking at the time the force was applied. Just because other officers didn’t use force, doesn’t mean that she wasn’t reasonable in her application of force. The helicopter and videos do not provide for her perspective that she faced. Her perceptions at the time of the incident is the only thing that should matter in determining the reasonableness of her force. The decision relies solely on her, and what she was thinking during the interaction with the subject. Any policy or tactical violations, if present, does not mean nor mitigate that the force was unreasonable.
Just because you would have done something different doesn’t mean that her actions were not unreasonable.
Second guessing and hindsight is not fair, it confounds the issues, and is not allowed under Graham.
Dr. Matthew J. Stiehm has received an Educational Doctorate from Argosy University, where the focus of his research was campus safety and security. He has a Master’s Degree of Criminal Justice from Central Missouri State University, with his final paper which focused on the investigation of child abuse and finally a Bachelors of Science from Wayne State College, Nebraska. He has served as a police officer in three states (CA, MN and NE), he keeps current on law enforcement trends most recently he conducted an 8 month study with Columbia Heights Police Department (MN) on Community Policing. He currently is a member of ILEETA, an Associate Member of the IACP, Support, and Police Executive Research Forum Subscribing Member.
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