Oklahoma Law Bans Unreasonable Deadly Force
The fatal shooting of Terance Crutcher by Tulsa Police Officer Betty Shelby is now part of a heated nationwide debate about the way police use deadly force. In this case, the officer was arrested and charged with a first-degree manslaughter. The charge includes a seldom cited Oklahoma law against unnecessary killing while resisting criminal activity.
Shelby was charged within a week of the shooting, which occurred suddenly in the midst of what otherwise seemed to be a routine police encounter. The case will almost certainly generate spirited discussion among police and civilians alike about how officers react to perceived threats.
Criminal charges arising from the way a police officer – or anyone using deadly force for self defense – reacts to a perceived threat focus on a narrow distinction between criminal manslaughter and justifiable homicide. To better understand that distinction, consider the statute under which Shelby was charged.
Criminal charges filed against Shelby on Sept. 22, 2016 cited two alternate theories in which the fatal gunshot could amount to first-degree manslaughter in Oklahoma. The first is widely known – manslaughter in a heat of passion. The other is perhaps lesser known. It is called first-degree manslaughter, resisting criminal attempt. Okla. Stat. tit. 21 § 711
Manslaughter or Murder in Oklahoma
Before we address those two manslaughter theories, we must first consider the difference between manslaughter and murder. The question could arise, why did prosecutors charge manslaughter instead of second-degree murder? For that matter, why not first-degree murder?
Differences between first-degree manslaughter and second-degree murder depend largely on a defendant’s state of mind. A similar state-of-mind distinction separates first-degree murder from second-degree murder.
Second-degree murder in Oklahoma is a homicide perpetrated as a result of an imminently dangerous act by a person demonstrating a depraved mind. Courts instruct Oklahoma jurors that a depraved mind involves contemptuous and reckless disregard of, and total indifference to a victim’s life and safety. Okla. Stat. tit. 21 § 701.8
While second-degree murder addresses a defendant’s mental omissions – disregard and indifference — first-degree murder and first-degree manslaughter both depend more what the defendant was thinking. Okla. Stat. tit. 21 § 701.7
First-degree murder involves “malice aforethought” – often called premeditation. Malice aforethought does not simply mean hatred, spite or ill-will toward the victim, according to instructions courts read to jurors in Oklahoma first-degree murder trials. Premeditation means the killer deliberately intended to kill the victim.
Provocation Required for 1st Degree Manslaughter
While first-degree murder looks at intent, the emotional state of the accused at the time of a killing matters more in first-degree heat-of-passion manslaughter. To be convicted of first-degree manslaughter in a heat of passion, a defendant must have killed a person while dominated by a strong emotion such as fear, terror, anger or resentment.
However, the mere presence of strong emotions is not enough. The victim must have provoked the emotion.
According to Oklahoma jury instructions, the victim’s words, threats or gestures on their own are not adequate to provoke homicidal passions. In the context of a victim’s provocative conduct, however – including personal violence against the accused – words or gestures can be reasonable provocation for a first-degree manslaughter charge.
Emotional state matters in heat of passion manslaughter, but so does reason. A first-degree manslaughter conviction requires that the killing was done unjustifiably. A person might, albeit in an impassioned heat of fear, justifiably kill someone in self defense and not be convicted of first-degree manslaughter. The difference depends on whether the fear was reasonable.
Manslaughter Resisting Criminal Attempt in Oklahoma
The second, alternative charge filed against Shelby further illuminates the difference between justifiable homicide and unlawful manslaughter. The charge cites Oklahoma’s manslaughter first-degree resisting criminal attempt law. It might seem to be a superfluous charge in this case, but on closer examination the law attempts to draw what can otherwise be a difficult distinction to make.
Media statements by Shelby’s attorney suggest she believed she had a reason to fear Crutcher might produce a weapon and fire on her. We see nothing in a probable cause affidavit or from media reports to suggest she shot Crutcher merely to resist his effort to commit a crime, absent her own fear of imminent danger. Those accounts suggest she shot him because she feared he would shoot her, not merely because he illegally disobeyed her orders.
Nonetheless, for some reason, prosecutors cited the little known first-degree manslaughter, resisting criminal attempt, as an alternate charge.
The distinction between heat of passion manslaughter and manslaughter while resisting a criminal attempt seems so narrow as to be unnecessary clutter in Oklahoma statutes. It could seem implicit that, if a person used unnecessary force to prevent a criminal attempt, it would be a result of a passion that erupted when a crime is attempted.
Comments by the committee that compiles Oklahoma jury instructions shed some light on the matter. The comment addresses the purpose of a killing rather than impassioned emotions that might have clouded purposeful judgement. First-degree manslaughter could include circumstances where the accused “honestly but unreasonably believes either that he is in danger of injury, or that slaying is the only way to prevent injury.”
We could envision a scenario where a person has become so accustomed to conflict that passions such as fear no longer inform an honest but unreasonable assessment of danger. The person might err too much on the side of caution, at someone else’s mortal peril. In such a case, a dispassionate effort to confront someone unreasonably believed to be a threat might be manslaughter.
Perhaps such a scenario informed legislators’ decision to specify that honest but unreasonable assessments of danger while resisting criminal activity can be manslaughter. The manslaughter resisting criminal attempt statute also provides proseuctors — and perhaps juries — a charge to consider other than capital first-degree murder when someone uses deadly force to stop a non-threatening criminal suspect, with no specific intent to kill.
However the law might be applied, Oklahoma legislators clearly intended to set a limit on how deadly force can be used to prevent criminal attempts. And the manslaughter statute is not all the legislature has said about it, either.
Oklahoma law says any police officer who uses excessive force in the line of duty is “subject to the criminal laws of the state to the same degree as any other citizen.” Excessive force, under Okla. Stat. tit. 22 § 41(B) is force that exceeds the force allowed by law or by policies governing a police agency.
Oklahoma’s Stand Your Ground Law
Oklahoma law allows citizens to “resist” – sufficient to prevent an offense – for self-defense, to protect their family or to protect their property. Okla. Stat. tit. 22 § 32 But beyond resisting an immediate offense, and proportionate use of force sufficient to stop an offense, Oklahomans who deploy deadly force could face some peril.
The Oklahoma Firearms Act further allows a person not otherwise involved in illegal activity to “stand his or her ground” and “meet force with force” – including deadly force – when the person “reasonably believes it is necessary to prevent the death or great bodily harm to himself or herself or to prevent the commission of a forcible felony.” Okla. Stat. tit. 21 § 1289.25(D)
Stand your ground laws tend to afford citizens some of the same legal protections police officers rely on when they are threatened by people committing crimes. While some people believe such laws provide a broad right to use deadly force to stop any crime, it is not so simple. Whether it is reasonable to believe deadly force is necessary in any particular situation can be something a jury will be asked to decide.
Fleeing Felon Laws
Another concern that affects use of force against anyone suspected of a crime is known in common law as a fleeing felon rule. Contrary to common law, current U.S. Supreme Court case law does not allow police to use deadly force against fleeing felons, unless the suspect poses a threat of serious physical harm to the officer or others.
We should note that, as far as we know from media reports, Shelby was not aware of any warrants or felony allegations against Crutcher when she shot him. She reportedly suspected he was under the influence of drugs and might have investigated those suspicions had he complied with orders.
However, ignoring police commands and walking away during a casual encounter with a police officer would at most be a misdemeanor, or an occassion for a stern warning. Prosecutors would likely argue she had no reason to believe at the moment she shot him that he was a fleeing felon, much less one likely to immediately injure her.
The encounter with Shelby, though, would have likely resulted in Crutcher’s arrest had she not shot him. At the time of his death, Crutcher had active warrants for failure to pay fines in a 2006 drug distribution felony and a 2013 DUI case that included a conviction for resisting an officer. Shelby apparently did not yet know about those warrants because she had not identified him before he was shot.
His criminal background also included a 2012 conviction for public intoxication and misdemeanor obstructing an officer, a 2011 public intoxication conviction, and the 2006 arrest for assault and battery on a police officer, resisting arrest and trafficking in illegal drugs. A plea agreement in that 2006 felony case resulted in all but the drug-distribution charge being dismissed.
An officer accused of manslaughter might argue that a victim’s history of repeatedly resisting, obstructing or assaulting police confirms a suspicion developed on first impression that the person is dangerous. Courts, however, often refuse to let such evidence into trial records because the officer did not know of that history at the time a shooting occurred.
In the definitive U.S. case on use of force againt fleeing felons, Tennessee v Garner 471 U.S. 1 (1985), the court concluded a “police officer may not seize an unarmed, non-dangerous suspect by shooting him dead…”
It was not always that way. Under common law, which once governed jurisprudence in much of the world – including the U.S. absent specific statutory law related to a subject — deadly force could be used against a fleeing person suspected of a felony. The long history of the common law fleeing felon rule might contribute to otherwise false notions that police have broad latitude to shoot people who do not comply.
Common Sense and Self Defense
Even when use of force might be legal, it might not be wise. A state law that says you can stand your ground does not mean you must stand your ground against any and all threats or criminal challenges. Even those state laws that allow a citizen to conduct a citizens arrests might not protect a citizen who shoots a suspect who walks away from an attempted citizens arrest. Okla. Stat. tit. 22 § 202
We will leave it for Tulsa courts to determine what amounts to justice in this case, and how justice should be administered. It is not our purpose here to adjudicate any case involving use of force, nor for that matter to provide any specific legal advise about any situation by way of our online publication.
Our purpose instead is to point out what Oklahoma law says about reasonable use of force to defend life and property, as well as to highlight ambiguity in how those laws might apply to various circumstances.
Felony Murder in Oklahoma
As a footnote, while we are on the topic of murder and manslaughter, we should clarify: there is another way to charge first-degree murder, second-degree murder or first-degree manslaughter. It is often called felony murder.
If someone dies during the commission of a felony, a person can be charged with the death even though the person charged did not intend the death or directly cause the death. A typical scenario can involve an armed robber charged with first-degree murder for the death of a getaway driver fatally shot by police.
Deaths during certain violent felonies can result in first-degree murder charges. Other deaths during felonies can result in second-degree murder charges, while deaths during commission of a misdemeanor can result in first-degree manslaughter charges.
Strategy Session: Tulsa Criminal Attorney
If you or a loved one is the victim of excessive force by police or by anyone claiming self-defense, you may be entitled to compensation. And some people who legitimately use force to protect life or property nonetheless find themselves facing criminal charges. Those are the kinds of circumstances where you need an attorney to consider the facts of your particular case in view of Oklahoma law. That is what we do.
To schedule your initial strategy session about your rights where use of force or self defense is involved, contact a Tulsa criminal attorney at Wirth Law Office. Call (918) 879-1681 or send your question using the email address at the top of this page.
