“You’re F---ed”: A Shooting in Mesa

1

Situation:

The shooting of a suspect who turns out to be unarmed raises angry questions, and teaches lessons for both police and armed citizens.

Lesson:

It’s critical for us all to understand the dynamics of furtive movement shootings, and to apply cost/benefit analysis in weapon modification.

On January 18, 2016, officers of the Mesa, Arizona Police Department converged on the La Quinta Hotel in that city after receiving a complaint a man was pointing a telescopic-sighted rifle at people outside from a fifth-floor window. The first clutch of responding officers formed an ad hoc team under the supervision of Sergeant Charles Langley, some of them armed with their AR-15 patrol rifles. They were able to determine what room was involved, and formed up in the hallway outside.

Responding to shouted commands, a man and a woman exited the room, hands visible. The female was secured and handcuffed. The male was crawling forward along the hallway floor to the officers when a staccato burst of .223 fire killed him. The press — and a public that only heard “sobbing unarmed man murdered by killer cop” — were outraged.

Sides were taken. We humans are tribal creatures. A great many “gun culture” people were furious: “That could have been me on the muzzle end of that AR-15!” Frankly, a lot of cops were likewise angered by what they heard or saw on the news and the ’net, but many also thought: “That could have been me on the trigger end of that AR-15!”

As you read what follows, please keep an open mind. I recently retired from more than 40 years as a sworn officer, part-time in policing but full-time in training and still involved in that, and I see the cop’s side of it. But I was also an armed citizen before they pinned a badge on me, and remain one now, afterward. I travel with guns, dry-firing and cleaning them in hotel rooms across the country, and can identify with the citizen who was killed, too.

Here’s the story.

Prelude

Daniel Shaver, a husband and father in his mid-late 20s, worked in pest control. A Texas resident, he was in Mesa to shoot birds that had gotten inside the local Wal-Mart. For that he used an air rifle with a telescopic sight. In his hotel room, drinking with a man and a woman he had met in the hotel, he showed them the rifle. It was pointed outside. Someone saw it and felt threatened, and the call went in and the dominoes started to fall. Led by Sergeant Charles Langley, a veteran street cop approaching retirement, the cadre of officers took up positions in the hallway and Langley shouted commands. Shaver’s male guest had apparently already departed from the room, leaving only Shaver and the woman. Langley, who gave all the commands, ordered them to come slowly out into the hall with their hands visible, and to assume prone positions.

The Incident

In stern command voice, Langley advises the pair if mistakes are made, they may not survive. Langley orders the female to cross her ankles, rise to kneeling, raise her hands, and crawl toward him. She appears to awkwardly totter forward on her knees with hands raised, and she is taken into custody without incident.

Langley then commands the already prone Shaver, “You’re not going to do anything but come towards us. Young man, you are not to move. You are to put your eyes down and look down at the carpet. You are to keep your fingers interlaced behind your head. You are to keep your feet crossed. If you move we are going to consider that a threat and we are going to deal with it and you may not survive it. Do you understand me?” Shaver replies, “Yes.”

“Young man, listen to my instructions and do not make a mistake,” Langley continues. “You are to keep your legs crossed. Do you understand me?” Shaver again answers, “Yes sir.” Langley orders, “You are to put both your hands, arms down straight out in front of you. Push yourself up to a kneeling position” — and at this point Shaver uncrosses his ankles. Langley roars, “I said keep your legs crossed!!” Shaver replies meekly, “I’m sorry.” The sergeant tells him forcibly, “I didn’t say it’s a conversation!”

At this point, both of Shaver’s hands go behind him, toward the small of his back — consistent with expecting to be handcuffed, but also consistent with reaching for a gun. The sergeant yells, “Put your hands! Hands up in the air! You do that again we’re shooting you! Do you understand?” Shaver, his voice beginning to break now, answers “Please do not shoot me.”

“Then listen to my instructions,” the sergeant barks, and Shaver answers “I’m trying to just do what you say.” Langley responds in serious command voice, “Don’t talk! Listen! Hands straight up in the air! Do not put your hands down for any reason! You think you’re going to fall — You better fall on your face! Your hands go back into the small of your back or (unintelligible) we are going to shoot you! Do you understand me?”

Sobbing now, Shaver replies “Yes, sir.” Langley commands, “Crawl toward me! Crawl toward me!” And again from Shaver, the sobbing “Yes, sir.” He begins to crawl forward… and, suddenly, Shaver’s right hand flashes back toward a spot behind his right hip.

Almost simultaneously, Sergeant Langley cries “Don’t!” and Officer Phillip Brailsford fires five shots from his AR-15 in about one second. Daniel Shaver slumps still on the floor. He will not survive. It has all been recorded on the officers’ body-worn cameras.

Immediate Aftermath

In this day and age, all OIS (Officer-Involved Shooting) cases are intensively investigated. This one was no exception, and because Shaver turned out not to be carrying a weapon at the time, the perception of a sobbing, unarmed man shot five times while on his belly led to a very loud outcry. In March of 2016, Officer Brailsford was charged with Second Degree Murder. Shortly thereafter, he was fired from the Mesa Police Department. A lawsuit was filed by the widow of Mr. Shaver. One reason cited by the department for his firing, and harped on by the plaintiff’s lawyer representing the widow, involved Brailsford’s weapon. The privately-owned and presumably department-approved weapon was equipped with a dust cover inscribed on the outside, “Molon Labe,” and on the inside, “You’re F***ed.”

The Trial

If convicted, Brailsford was looking at 25 years in prison. Trial began on October 23, 2017, in the Maricopa County Municipal Court of Judge George Foster. It ended some six weeks later on December 7, 2017. The jury found Phillip Brailsford Not Guilty on all charges. Other legal matters, including Brailsford’s suit to be reinstated or compensated by his police department, are pending at this writing.

Issues And Answers

The key issue, of course, was the shooting itself. On the bodycam videos, Daniel Shaver’s right hand can clearly be seen reaching back to where a hip-carried handgun would be. In Brailsford’s own calm testimony, which can be found on video with a Google search, he explained why he believed Shaver was reaching for a gun.

Issue: “They shot him for nothing!” Fact: No, they didn’t. It’s amazing how often if we’re told we’ll see something on a video, we perceive ourselves to have seen what we were told we’d see. Those who were told they’d see the needless murder of a helpless man, saw that. In the same vein, most people believe they saw President Kennedy clutch his throat on the Zapruder video of his assassination, because that’s what they were told they’d see.

One has to know what to look for. On the Zapruder film, the President’s hands never touch his throat; they curl up as his arms rise spasmodically into what is called Thorburn’s Reflex, a neurological response consistent with trauma to the spinal cord near the sixth cervical vertebra, as found in the JFK autopsy. If one watches for it, this is what they see.

One needs to view the death of Shaver on bodycam while watching his right hand and arm. Cops are taught to “watch the hands” early on at the police academy, and armed citizens are wise to follow the same advice. Shaver’s hand and elbow can clearly be seen moving suddenly as if for a hip holster.

Issue: “Why didn’t the other cops see what Brailsford did and shoot Shaver, too?” Fact: They did see it. Multiple officers observed the arm movement and confirmed they, too, perceived Shaver to be going for a gun. They didn’t shoot because Brailsford was the primary “designated lethal cover,” on point in their array in the narrow hallway. At least one officer said he didn’t shoot because Brailsford was in his line of fire, according to sworn testimony.

Issue: “But he was just pulling up his tennis shorts!” Fact: The officers were not telepathic. It has been theorized crawling down the hall had caused Shaver’s tennis shorts to slip down, and he reflexively reached to pull them up, thus mimicking the furtive movement that led to his being shot. However, this doesn’t seem to be visible on bodycam footage and likely would not have been noticeable to the officers.

Issue: “It’s unreasonable to believe he could have hidden a gun in his tennis shorts!” Fact: Like hell it is. Anyone familiar with concealed carry knows people who carry lightweight pistols in tennis shorts, sweat pants and similar garments; a friend of mine regularly conceals a Ruger LCP .380 with clip attachment inside his swimsuit at the beach. Since the 1960s, elastic belly bands that can hold full size .45s and .357 Magnums have been worn under beltless pants and shorts, easily concealed by the kind of shirt Shaver was wearing — and smart cops know this.

Issue: “A man who’s crying and complying can’t be dangerous!” Fact: That’s just not so. Suspects often feign compliance or even tears to get officers off guard, and then attack by surprise — and every veteran cop knows it.

Issue: “The cops should have taken it into consideration that Shaver might be drunk and unable to follow commands!” Fact: They did. If you listen to the whole encounter, readily available on YouTube, early on you’ll hear Sgt. Langley ask Shaver and the woman if they are drunk, and you hear them both answer in the negative. Shaver neither sounds nor appears intoxicated.

Issue: “Why did the cop have to shoot him so many times?” Fact: He was following training. Testimony showed he had been taught to fire until the threat was over. It can easily take more than a second — roughly the duration of the five-shot sequence — to perceive the threat has passed and cease firing.

Issue: “Why couldn’t the cop wait to see the man’s gun?” Fact: Because, as I’ve been saying in court in such cases since 1984, if you wait to see the gun you’ll see what comes out of it. Today’s cops know that. So should all armed citizens. And so did the jury in this case when defense expert witness Emmanuel Kapelsohn explained it to them.

Issue: “Instead of making him crawl forward, the cops should have left him still and moved up themselves to search and handcuff!” Fact: This perception does not take into account the tactical reality of the situation the officers faced. The sergeant’s testimony, available for study in detail on YouTube, was given the layout of the hallway and unknown factors as to who else could be in Shaver’s room or another nearby with a weapon, he didn’t want to expose his officers to greater danger due to angles of potential fire if he sent them forward.

Issue: “It was all the sergeant’s fault for giving bad commands!” Fact: The 20/20 vision of hindsight is expressly forbidden in such cases by the US Supreme Court’s decision in Graham. v. Connor. Many officers have reported their departments are now using this bodycam video as a negative teaching example for their own personnel. I know I would have a hell of a time crawling forward with my ankles crossed as Shaver was commanded to do. That said, Langley remained calm and professional, going to command voice only when initial commands were not followed, and it is hard to find culpable error in that.

Issue: “That slogan on the rifle’s dust cover is evidence of malice right there!” Fact: The judge didn’t think so, and didn’t allow it in. But this is a gun magazine, and firearms modifications do indeed come up in both criminal and civil cases, so let’s address that in a bit more depth.

The Firearm Modification

On the gun-related Internet, it seemed the inscription on the dust cover got more discussion than the shooting itself. Personally, when it first came up long before the trial, I didn’t see it as what the courts call “indicia of malice.” It’s not like “Smile, Wait For Flash” etched on a gun muzzle. No one you hold at gunpoint will ever see the inside of your AR’s dust cover. It’s most likely to be seen by the shooter, when he looks into his ejection port to see why his gun has stopped working. It’s more of a reminder that the duty weapon is an emergency rescue tool, and it’s your responsibility to maintain it so it will work when needed to save life.

Brailsford’s accusers, however, played the indicia of malice card big-time. In pre-trial motions in limine, the judge decides what evidence will and won’t go in front of the jury with a balance test: probative value, or “will this help the jury to come to the truth of the matter,” versus prejudicial potential, as in “Your Honor, the other side is only introducing this to inflame the passions of the jury against my client.” In this case, the judge ruled it out, and the jury never heard about the “You’re F***ed” element.

Some observers took this as a sign gun modifications don’t matter in court. Au contraire, for at least four reasons.

1: Brailsford’s brilliant defense attorney, Michael Piccarreta, told me it took at least 10 hours of his time to craft and argue the successful motion in limine, not counting the research time of his paralegals and of his expert witness, Manny Kapelsohn.

In March of 2018, Manny was on the Panel of Experts I run on deadly force and firearms training at the International Law Enforcement Educators and Trainers Association annual conference, and I asked him to brief our audience of police instructors on the Brailsford case. Manny, an attorney himself, estimated the cost of winning just that one motion was between $15,000 and $20,000. Attorney Piccarreta, by the way, credited Kapelsohn with doing a superb job of explaining relevant issues to the jury.

2: If the judge had ruled the other way, it would have cost even more to defend that issue at trial.

3: In a very real sense, the dust cover inscription cost Brailsford his job. AZCentral.com News reported, “Brailsford was fired by the Mesa Police Department on March 21 in connection with the fatal shooting. The department also cited an inappropriate etching on Brailsford’s AR-15 patrol rifle as a violation of the department’s service weapons policy.”

4: Finally, Piccarreta told me he felt the dust cover played a role in the prosecution’s decision to make the murder charge in the first place. Ditto the accompanying lawsuit: “‘That statement tells me this is a person who’s enthusiastic about killing people,’ Marc Victor, lawyer for (Shaver’s widow) and her late husband, argued. ‘That’s what that inscription means,’” KDHO/KTVK Tucson News Now reported.

Lessons

For the armed citizen, we learn from this case we or our guests should not be wielding even harmless guns at windows where passers-by can construe us to be dangerous mass murderers about to open fire. This case also reinforces the old saying, “alcohol and guns don’t mix.” Shaver had a history of DUI, and at the time of his death according to post-mortem toxicology screen had a blood alcohol level of 0.24 to 0.26, three times or more the legal standard for “under the influence.” How much did this contribute to the furtive movement causing his death? We will never know, but it certainly didn’t help.

For the many police who read this, keep verbal commands as simple and easy to follow as possible. And wear your bodycam — in this case, the captured image of the decedent’s hand and arm clearly mimicking a draw may have been the single most important evidence to prove Brailsford had a reasonable belief he had to shoot.
For all of us: remember the standard boils down to “You don’t have to be right, but you do have to be reasonable. Some critics of the acquittal felt this standard from Graham v. Connor gives police a special privilege. On the contrary, it’s simply the police version of what the armed citizen has always had, the well-known Reasonable Man Doctrine.

I wish to thank Michael Piccarreta and Manny Kapelsohn for talking to me and American Handgunner about what happened “inside” this case. And I’d like to thank our readers for seeing both sides of a controversial shooting and trial the media and so many Internet forums only saw from the accuser’s perspective. Our readers — like us at the magazine, and like the involved officers and the defense team — should see this as a tragedy, not a battle between good and evil. Hopefully, we can all learn from it in hopes of keeping such a tragedy from being repeated.

AH Sept/Oct 2018

Purchase A PDF Download Of The American Handgunner Sept/Oct 2018 Issue Now!