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Video shows officer shoot unarmed man
02:21 - Source: CNN

Editor’s Note: James A. Gagliano is a CNN law enforcement analyst and a retired FBI supervisory special agent. He also serves as an adjunct assistant professor at St. John’s University in Queens, New York. Follow him on Twitter @JamesAGagliano. The views expressed in this commentary are his own.

CNN  — 

While in Mesa, Arizona on a business trip for his Texas-based pest control company in 2016, Daniel Shaver was slaughtered in a hotel hallway. And though the Arizona jury that acquitted the officer, 27-year-old Philip “Mitch” Brailsford, of second-degree murder and reckless manslaughter charges may have gotten it right according to a legal standard, a confluence of interrelated errors by the tactical team transpired to cause this tragedy, and it was entirely preventable.

James Gagliano

A video clip of the shooting, captured by body camera, was just released by police. I first watched the revolting video segment as a civilian and can describe it in one word: horrifying.

Then, I forced myself to rewatch the stomach-turning video many times over from the perspective of someone who has participated in hundreds upon hundreds of tactical resolution incidents.

Yes, two months following the shooting, Brailsford was fired from the Mesa Police Department for violating department policy – including having the words “You’re F*****” engraved on the barrel of his personal, department-approved AR-15. And, presumably, the jury determined that movements by a confused and intoxicated Shaver could have been interpreted as making furtive gestures in effort to retrieve a concealed weapon – of which none was ever recovered from the victim’s body.

Those “furtive movements” might very well have given Brailsford, in the jury’s eyes, a legal right to shoot Shaver. But the officer’s unprofessional conduct, seeming inexperience, and the confusing commands we hear being issued by a SWAT officer, directly and indirectly influenced Shaver’s reactions, which resulted in the shooting. Here’s how:

The SWAT team member issuing the initial commands instigated non-compliant situation.

In a quarter-century of participating in and leading tactical resolution operations, I have never heard a law enforcement professional use such offensive – almost taunting – rhetoric. The vocal police officer tasked with directing the operation appeared hell-bent on baiting a confused but receptive and compliant subject into making a deadly mistake.

Was this related to a dysfunctional team or to this officer’s inexperience or lack of emotional maturity and control? What police executive with oversight of tactical operations could have felt this officer possessed the leadership and interpersonal skills necessary to de-escalate potentially combustible situations?

In high-stress in extremis situations with a noncompliant subject who purposely disregards commands, it is understandable that law enforcement officers may issue loud, get-your-attention directions – sometimes laced with profanity that can be commensurate with the gravity of a potentially dangerous encounter. But these cases typically involve a physical confrontation or potentially deadly standoff.

Absent the dispatch call of “weapon(s) in a hotel room,” there is no evidence on the video that justifies the officer’s need to vocally ratchet up the temperature. Listening to him issue commands was revolting – he comes off as a drunk-with-power bully who enjoys toying with his prey.

Examples of inappropriate and unconscionable language:

(0:26) “Apparently we have a failure for you to comprehend simple instructions.”

(0:49) “Shut up! I’m not here to be tactful or diplomatic with you. You listen. You obey.”

(2:08) (to a woman who had exited the room ahead of Shaver) “Young lady, shut up and listen.”

(4:10) (screaming) “You think you’re going to fall, you better fall on your face.”

The officer issuing commands also referred to Shaver, 26, as “young man.” A simple “sir” or “ma’am” is standard professional vernacular in dealing with potential arrestees. It can be issued sternly, but respectfully. In my estimation, his use of the word “young” when addressing Shaver and his hotel guest was as a condescending pejorative.

Failure of SWAT’s senior onscene leadership to acknowledge mitigating factors.

When issuing commands, an officer needs to immediately assess external factors. Can the subject hear me? Is there a language barrier? Are my commands concise and clear enough? The confusing and contradictory commands exacerbated the situation. In incidents like this, officers must have rehearsed in training – countless times – the commands to be used in high-risk arrests. Brevity and succinctness are critical.

An inquiry was made as to whether or not Shaver had been drinking. If someone is inebriated, their default response may be a denial. Communication – reading the signs – involves intuitive analysis that takes in a person’s body language, tone of voice, and selected verbiage. Police posted at DUI checkpoints are trained for the telltale physical signs of alcohol consumption.

This officer also should have noted how visibly shaken and fearful the subject was. It is true that duplicitous subjects may attempt to employ a ruse to get the officer to relax or drop his guard. But in this instance, you had a tactical team, strength in numbers, and a position of command resulting from the element of surprise.

My belief is that as confused (and inebriated) as Shaver was, the steady volley of confusing shouted commands frustrated him and he assumed a pose he felt was consistent with an arrest, i.e., placing his hands behind his back. His confused state and reflexive reaction to place hands behind his back could then be “interpreted” as “going for a weapon.”

Two more gestures to his backside appear to be his attempts to pull his pants up while complying with a flurry of confusing commands. While we have the benefit of 20/20 hindsight, my assessment is that this officer was not equipped with the necessary behavioral assessment experience.

The SWAT team disregarded arrest protocols.

What appears obvious from the video is the senior onscene officer’s inability to discern that subject was struggling to find his balance while complying with the confusing commands. To those speculating as to why he would have been asked to cross his ankles, this is standard arrest protocol in a high-risk scenario. If a subject is lying prone or kneeling with their ankles crossed, the un-crossing of ankles requires an additional movement prior to any effort to escape or physically confront arresting officers. This provides officers more reaction time.

But asking a subject to crawl forward with crossed ankles is not a standard safe arrest practice or protocol. The most forward operator does not typically deliver commands, as his specific role is to focus on the door down the hallway from which the subjects had just exited. Shaver could have been asked to lie prone and await cuffing from advancing officers, while this “hallway monitor” remains trained on the door ahead. Then, the advance man (Brailsford) could hurriedly move forward past a prone Shaver (with interlaced fingers behind his head) and then a “cuffing team” could immediately move forward in trace, and effect the handcuffing of the subject.

Alternatively, Shaver could have been put on his knees, with fingers interlaced and hands placed atop his head. Brailsford could have had him rotate in a circle and then remain facing away from responding officers, so police could view his beltline and any potential secreted weapons. Shaver could have then been instructed to lift his shirt while facing away. This gives police valuable time to assess the threat and respond with deadly force appropriately if Shaver were to pull a weapon, spin around and attempt to locate a target.

At trial, Deputy County Attorney Susie Charbel told the jury that Shaver was intoxicated and still referred to Brailsford’s actions as that of a “killer.”

And while Brailsford, as the shooter, stood trial alone, the team’s leadership surely deserves a fair amount of the criticism. The toxicology report would definitively chronicle what Shaver’s blood alcohol content level was. His apparent alcohol impairment combined with the rational fear any reasonable person would be consumed with in a similar situation. These circumstances then abruptly collided bluntly with the unforced errors committed by the tactical team — and the result was a shooting that shouldn’t have occurred.

Officers should have gathered more intelligence.

Allow for potential cooperation from the two subjects in your custody to provide you better context and intelligence. Ask questions about weaponry in the room and, if subject admits as much, query the purpose for having them. Maybe Shaver could have explained his professional need for pellet guns and advised where they were located. At a minimum, it would have applied context. You never trust without verification, but Shaver’s explanation could have been combined with information investigators might have gathered from employees at the front desk while SWAT was handling the threat upstairs.

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    Many of the police shootings that have drawn attention to the inappropriate and all too often deadly actions of officers illustrate the role of race and implicit bias in their devastating outcomes. The case of Philip Brailsford illustrates something different – a young, inexperienced police officer who was part of a team comprised of specialists (one who exhibited unprofessionalism and lack of expertise in issuing commands) ill-suited to read a less-than-complex set of circumstances, leading to a series of preventable errors that resulted in the infuriatingly “legal” execution of a man.

    In the numerous officer-involved shootings I’ve reviewed, I can often provide a sensible explanation for a tactical team’s actions or find benefit of the doubt to apply.

    There are neither here.

    A previous version of this article incorrectly identified Philip Brailsford as the officer giving commands in the video. Another officer testified during the trial that he, not Brailsford, was issuing those commands so this article has been updated to reflect that the other officer was the one giving commands.