Another video. Another police shooting. Another black person’s body dead on an American road. Every person is innocent until proven guilty.
That is true for Betty Shelby, the police officer who shot and killed Terence Crutcher in Tulsa, Oklahoma, on Sept. 16. It also should have been true for Crutcher.
So what did Crutcher do to justify a death sentence?
Legally, we have to ask two questions. What did Crutcher do to cause Shelby to fire her weapon at him? And, according to established legal precedent, was Shelby’s shooting justified?
We do not know enough information to answer those questions. An investigation needs to uncover what Shelby, or the other police officers, told Crutcher, and what Crutcher did during the moments before Shelby fired her weapon.
Enough of these killings have happened to unarmed black people that citizens can and should begin to ask more serious questions about circumstances that justify police officers using deadly force.
The case that set the standard on when police officers are justified in using excessive force is Graham v. Connor. In the 1989 Graham decision, the U.S. Supreme Court held that a standard of “objective reasonableness” determined whether a police officer’s actions while making an arrest, issuing a search-and-seizure warrant or making a stop violated a citizen’s Fourth Amendment rights. The summary of the court’s ruling explains that:
“The Fourth Amendment ‘reasonableness’ inquiry is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
So, how can the shooting and death of Crutcher stand up to legal scrutiny according to the “objective reasonableness” standard set in Graham?
Exceptions to Fourth Amendment protections against search and seizure, in this case excessive use of force in an arrest, have to satisfactorily apply “objective reasonableness” to at least three criteria: did the arresting officers already have the apprehended person subdued by other means; was the apprehended person attempting to flee; and were there exigent circumstances that required force beyond what an objectively reasonable police officer would need to apply in that situation. Perhaps most important in understanding the Graham decision: the “objective reasonableness” standard does not take into consideration intent or motive. As Chief Justice William Rehnquist said in the Supreme Court’s ruling, “objective reasonableness” also cannot consider “the 20/20 vision of hindsight.” It has to deal with the facts of the situation. It has to ask if an officer’s use of force was objectively reasonable in any and all such situations.
In short, would another objectively reasonable officer in the exact same situation do the exact same thing?
Based on video evidence, before Shelby shot Crutcher — or simultaneously as she shot him — Crutcher already had been shot with a stun gun by one of the officers on the scene. The video makes clear that Crutcher was walking back to his car. His hands look raised.
“That looks like a bad dude, too,” said one police officer, who observed the scene unfold live from a helicopter. “He could be on something.”
The video shows at least four officers on the scene. Early details from the investigation indicate the officers claiming that Crutcher attempted to reach into his car before Shelby shot him. The video’s footage is inconclusive on that issue.
Whether or how these officers will answer for Crutcher’s death hinges on application of the holding in Graham.
Did Shelby have reasonably objective grounds for applying additional, deadly force according to the criteria through which investigators use the Graham holding to determine justified uses of force: was the suspect already subdued; was the suspect attempting to flee; and did exigent circumstances demand excessive force?
That third criterion — exigent circumstances — is the one where arresting officers literally get away with murder. A police officer can claim fear for his safety or the safety of his fellow officers or other citizens. This claim usually passes scrutiny when an officer is alone. In this case, Shelby was surrounded by several other officers.
So this situation begs the question: on what objectively reasonable grounds did the officer require using deadly force to subdue Crutcher? What made Crutcher a “bad dude”? Did his size, color and sex factor into that assessment? Does a black man walking toward a car with hands raised engaged by four trained police officers cause a level of fear that warrants deadly force? Are these objectively reasonable conditions to justify a death penalty?
This is a question that concerns the entire nation.
If widespread violation of a fundamental constitutional right (the Fourth Amendment) continuously occurs to citizens, this issue is bigger than either the personal experiences of law enforcement officers or individual citizens. The Fourth Amendment exists to protect everyone. If violations of it result in wrongful deaths, it is incumbent on all citizens to know when, where, how and why that happens and what we can do to fix it.
If allowances for excessive force according to the Graham ruling are applied in discriminatory fashions — if these allowances apply when arresting officers consistently use excessive force on people from certain races, colors, regions or economic classes, but not on others — then those practices may violate the 14th Amendment and possibly the Civil Rights Act.
Objectively reasonable fears for an officer’s safety exist. But such a standard cannot become a shield to protect against murder, brutality or coercion. That is not a nation ruled by law and order. It is a nation ruled by fear-driven deadly force.
And that is not a nation in which anyone should live.
Brian Purnell is associate professor of Africana studies and history at Bowdoin College in Brunswick. He is the author of “Fighting Jim Crow in the County of Kings: The Congress of Racial Equality in Brooklyn,” which won the New York State Historical Association’s Dixon Ryan Fox Manuscript Prize. This article originally appeared on CommonDreams.org.