Expert: PSU shooting may hinge on these legal questions
To legal expert Jeff Noble, the question is not so much whether or not Portland State University's security officers had guns. It's whether or not any "reasonable officer" would have shot Jason Washington early in the morning on June 29 under the same circumstances with the same knowledge.
Noble — a former police officer and lawyer who has testified against officers in the Tamir Rice, Philando Castille and other cases of officer-involved shootings — said no one would be able to make a determination on the guilt or innocence of PSU Officers Shawn McKenzie or James Dewey based on the cell phone video shot by a bystander and widely distributed.
Noble said the legal questions of officers' use of force — including deadly force — are largely based on a 1989 U.S. Supreme Court case.
As laid out in the Graham vs. Connor case, in 1984, a diabetic black man named Dethorne Graham ran into a convenience store in North Carolina to get orange juice to avoid an insulin shock. But Graham ran out again when he saw how long the line was, which a nearby officer found suspicious.
In a unanimous decision, the high court determined it was reasonable to forcibly handcuff Graham based on the agitated way he was acting and the officers' knowledge at the time. Graham was released after no robbery was reported from the store, but reported sustaining multiple injuries during the arrest, including a broken foot.
In Portland's Washington case, one question will be whether the 45-year-old father of three could have been perceived as an immediate threat to officers or others.
"Obviously, in this case, active resistance and flight aren't factors," Noble said. Washington fell to the ground during a fight outside of The Cheerful Tortoise and his holstered handgun fell too. Washington appeared to be reaching for it while officers shouted for him not to. Then they fired.
Video courtesy of news partner OPB.org.
The California legal expert also dispensed with the "movie nonsense" of disabling a person or firing a warning shot. Officers are trained to aim for "center mass," as they are responsible for wherever their bullet goes and limbs are hard to hit, Noble said. That often means they aim at the torso.
Noble said a court — if this case went to trial, which is uncertain at this point — would not consider what we have learned since: that Washington was trying to break up the fight and legally carrying a firearm.
Instead, he said, it would work through questions like: "When did the police officer get there? What did the police officer know?"
In making a decision, courts also give officers deference due to the fact that they operate in tense, uncertain circumstances. That deference is lessened the more time the officers have to consider their actions.
"Based on the video, looks like it's pretty quick," Noble said.