The latest killing of a non-white person by a white officer on video comes from Tulsa, Oklahoma, formerly known as Indian Territory. This body cam video is in a class by itself, showing Eric C. Harris, 44, held down by several officers as he is shot by Deputy Robert C. Bates, 73, who immediately is heard saying, “Oh, I shot him. I’m sorry.” Bates now stands charged with second-degree manslaughter, a decision made by the local prosecutor overruling the conclusion of the Sheriff’s Department internal investigation.
The national conversation in the U.S. about violence in relations between white police officers and non-white civilians has always resonated in Indian country, where border town law enforcement is often a subject of friction between Indians and their surrounding neighbors.
The Census claims that Indians are only 5.3 percent of the Tulsa population while African-Americans are 15.6 percent, but those figures are rendered problematic by a separate count of “two or more races” (5.9 percent) and the indigenous roots of many “Hispanics” (14.1 percent) completely ignored. It is highly likely that Indians, by some definition, are the most numerous minority in Tulsa just as they were when I grew up in a suburb of Tulsa.
Eric Harris was African-American, and the body cam shows a couple of things that are too common when officers end a foot chase to require much comment. We see Harris face down on the pavement with an officer’s knee on his head. We hear Harris’s last public words, “I can’t get my breath,” and the officer’s response, “Fuck your breath!”
We also see an attempt to use a Taser on a suspect being held prone on the pavement by several officers. The objective is to coerce the suspect to put his hands behind his back. The Taser, deployed as a non-lethal method of self-defense, is so often used on suspects who have either refused an order or not complied quickly enough that the employment of a Taser here was unremarkable.
What was remarkable was right after the shouts of, “Taser! Taser!” Instead of the trademark crackle of electricity, we hear a gunshot. The apology by the shooter is immediate: “Oh, I shot him. I’m sorry!” He claimed later that he mistook his pistol for his Taser, and the video supports that claim.
Many Indians who remember their traditional law, this Cherokee included, will see an issue that did not become common until tribal law was displaced by colonial law. In traditional Cherokee law, a homicide was a homicide, without regard to the intent of the killer, and it caused an issue with the victim’s clan that had to be dealt with before the community could move forward.
In Anglo-American law, which is the basis for law in all states except Louisiana, mens rea, or “guilty mind,” is everything in a homicide case. Depending on the shooter’s mens rea, a particular shooting death might be anything from capital murder to no crime at all.
The New York Times quotes the lawyer for the shooter in this case, Charles O. Brewster, “This truly is an event that was unintended and what I consider to be a justifiable homicide.” If this report is correct, Brewster conflates a criminal homicide that is excused or justified (e.g., by self-defense) with a homicide that is not criminal at all (e.g., an execution ordered by a court). He suggests that accidents cannot be criminal homicides, and that is incorrect.
Deputy Bates stands charged not with murder—which requires that the shooting was done knowingly or purposefully—but with a degree of manslaughter that only requires criminal negligence.
In Common Law countries, we all carry around with us a duty not to be negligent, and if a failure of that duty harms another, we owe damages. This simple negligence is a mere failure to act as an ordinary reasonable person would act in the same circumstances.
Criminal negligence requires conduct that constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances. When does a deviation become “gross”?
Based on having tried several of these cases, I can only answer whenever a jury is upset enough or threatened enough by the conduct to label it not just negligence, but gross negligence. The Tulsa prosecutor thinks he can convince a jury this killing was gross negligence beyond a reasonable doubt.
The facts not contested at this time appear to be:
—The shooter was 73 years old.
—The shooter had been a police officer in 1964-65, before Tasers and Taser training became common.
—Deputies are often called upon to make split second decisions in highly stressful situations, as in this case, so the circumstances of the killing could have been foreseen.
—Sheriff Stanley Glanz of Tulsa County may have been influenced to put Deputy Bates on the street by the fact that Bates was the chairman of the Sheriff’s 2012 reelection campaign and his largest campaign contributor.
—Or the Sheriff might have taken the risk of putting Deputy Bates on the street at age 73 armed with little if any Taser training because Bates had contributed lots of equipment to the sheriff’s office, including automobiles.
Proving negligence with these facts would be a slam-dunk. Whether they constitute criminal negligence, a gross deviation from the standard of care voters expect from an elected Sheriff, is a jury question.
Oops. In my attempt to explain the law to non-lawyers, I seem to have set out a criminally negligent homicide case against Sheriff Glanz rather than Deputy Bates.
Oh, I shot him. I’m sorry.