Police have occupied wide-ranging academic and public debate about “subjectivity, inequality, sovereignty, power, and text” (Karpiak 2016: 419), but largely in an imagined or polemic way (Karpiak 2016; Martin 2018). In anthropology, police have only recently emerged as an object of study themselves (Garriott 2013; Karpiak 2016; Martin 2018). Yet, the significance of police to contemporary social order makes them an important subject of study in their own right, and their integral connection with ‘the state’ gives such studies a broader importance to understanding how state power is enacted through particular practices and events. Over the past decade, events of police violence in the United States and around the world have led to wide-ranging public protests and debates about the role of police and their right to use violence.
Laurence Ralph (2017: 249) argues that scholarship on policing has tended to reify the “figure of the rogue cop or the corrupt department.” This is a mistake, he argues, that fails to recognize that the way police conceive of their job is to do whatever it takes to achieve their goals. In a different vein, Markus Dubber (2005) traces the origins of police power and argues that the objective of police power is the elimination of threats with its goal being efficiency rather than justice. Dubber's work focuses primarily on judicial instances of police power in early America, and the two taken together suggest two important things: first, that violence is foundational, rather than exceptional, to policing; and second, that court proceedings offer an important view into how state actors interpret and constrain or allow police violence.1
This article explores how police and police ‘use of force’ is conceptualized in court by analyzing the trial of former Mesa Arizona police officer Philip Brailsford who was acquitted on charges of second-degree murder and manslaughter in the shooting death of Daniel Shaver. Brailsford's body camera video,2 released after the trial, shows a scene easily interpreted as excessive violence by the police. Media and public reaction to the video focused on the disregard Brailsford seemed to have for Shaver's apparent submission: in the moments before the shooting, Shaver is on his knees begging for his life while a loud voice shouts confusing and contradictory demands at him. Combined with the fact Brailsford had “You're fucked” carved into his gun, the video evidence seemed damning on its face. Given these circumstances, I was at first surprised Brailsford was acquitted. Yet as my research continued, the view of Brailsford as an agent of the state was complicated by the ways in which he was also a subject of it. The voice yelling commands in the footage, which is often assumed to be Brailsford's (e.g., Gagliano 2017), actually belonged to Sergeant Charles Langley who was in charge of the police response team. Brailsford's defense drew attention to his position as a subject of state power by emphasizing his subordinate role to Charles Langley and his attention to rule-following. This was done by diminishing what Jeffrey Martin (2018) calls the exigent heteronomy of the police–citizen encounter and emphasizing the foundational aspects of violence to police work.
Legally, what allowed Brailsford's act of violence to be condoned was establishing him as a ‘reasonable officer’. The legal construct of ‘the reasonable officer’ is arguably not widely used by the public to interpret violent acts, but in the United States it is the established constitutional standard for assessing officer conduct, set forth in Graham v. Connor (1989)3 (Alpert and Smith 1994; Stoughton et al. 2020). Graham instructs that acts of police violence must be judged according to what a reasonable officer with the same information in the same circumstances would have done. ‘Reasonable officer’ is not defined, rather it is left to juries to determine in any given case. Thus, practically speaking, the reasonable officer is constructed through testimonies at trial which guide juries to interpreting violence as (potentially) legitimate.
While the public may be largely unaware of the reasonable officer standard, it becomes clear in police trials that the ‘reasonable officer’ is a concept police use to understand their relationship to occupational violence. For example, it is common for officers, use-of-force experts, and trainers to refer to “split-second decisions” and “the totality of the circumstances” in their testimony, phrases drawn directly from the Graham ruling. Through extensive discussions of training and policy, the reasonable officer emerges in this trial as a calm, committed public servant vetted and trained by police authorities who assesses danger quickly but dispassionately to protect those around him. This legal fiction is predicated on the fundamental idea that violence is essential to police work (Ralph 2017; Dubber 2005), and it is as firmly embedded in United States law as it is in police culture.
Because a trial is an accounting for an event of police violence, the proceedings reveal justifications and rationalizations for use of force by law enforcement agents. The testimony brought forth at trial demonstrates both the police framing of events and actors (Goodwin 1994) and the state's process of confirming or refuting the police claim that the officer used legitimate force. The trial is a meaning-making event in which both prosecution and defense are invested in upholding the legitimacy of police and the state. In order to do this, the functioning of a particular police force or the legitimacy of police policy cannot be brought into question. Rather, the debates rest on a foundation of legitimacy and turn on the boundaries of acceptable violence and the officer-defendant's actions vis-à-vis these boundaries. The requirement that a jury assess Brailsford's actions in relation to those of a ‘reasonable officer’ meant ‘policing’ was taken for granted as a reasonable and functional system; there was no room to conclude Brailsford made a mistake because of the actions of his sergeant or because of any other issues in training or policy. At trial, the only question was whether Brailsford was within his legal authority to pull the trigger at that moment or not.
This process, as noted by Charles Goodwin (1994), is one that can at times defy what an average person might consider ‘reasonable’. Yet, at court, juries are instructed to decide whether an officer acted in a reasonable way, according to his or her training, the law, and the circumstances of the situation—circumstances which are taken to include a particular police perspective on danger and threat. Here, we see the flexibility of ‘reasonableness’ first discussed by Max Gluckman (1955). Legally, reasonableness is not an inherent property of actors or their situations, rather it is a product of interpretive work in the trial setting.
In the United States, police violence and its resolution constitute a growing means through which the state is produced and imagined. Citizens need not have experience of police violence directly to have stories of it: individual incidents and localized interactions take on translocal and transnational meanings as stories are communicated through news and social media, court proceedings, and public protest (Gupta 1995, 2012). For example, Shaver's death and Brailsford's acquittal led to a vigil organized in part by Black Lives Matter, as well as journalism on police brutality and race (e.g. Farley 2020).
Courts are one significant place in which a discursive imagining of the state happens (see Friedland 2016 for an extended discussion of legal processes as “world-making”), and thus police trials are significant to how both ‘the state’ generally and its institutions of police and courts specifically are defined and legitimated. Trials of police officers are sites at which state control over violence is made explicit, and at which the legitimacy of such control is potentially subject to question. Trials are not simply accountings after the fact, but integral to how violence is interpreted and sanctioned by state institutions and agents.
‘Reframing’ and the Emergence of Subjectivity at Trial
This article draws on research from a larger project investigating the use of video in eight trials of on-duty police shootings in Canada and the United States. The SSHRC-funded project brings together scholars from Canada and the United States to investigate police trials as legal-social arenas of meaning- making. Our approach was, in general, concerned with how different court actors interpret an event of police violence, and how they draw on different resources to support their claims or dispute the claims of others. To do this, we read transcripts, watched relevant police body camera footage, and footage of the trials as available on YouTube (which in the Brailsford case was approximately two hours of cross-examination available through the local news channel AZ Family | Arizona News). The Brailsford trial transcripts included the trial from the opening to closing statements, but excluded everything before and after, including the instructions to the jury.
Trials and their final judgments are a form of official state speech that “name” and thus institute subjects (Bourdieu 1986; see also Althusser 1971). The transcript, as a record of state speech and ‘official truth’, has ongoing im- portance in defining police violence. For example, we interviewed a prosecutor who prepared for a police trial in part by reading past police trials; and in the opening statement of the Jason Vandyke trial, his lawyer used an almost identical framing to that of the defense in Brailsford's trial. In acquitting Brailsford, this trial instituted him (Bourdieu 1986) as a ‘reasonable officer’. But Rita Kesselring (2016) argues that we must be attentive to how discourse achieves subjectification, and that law cannot simply make a subject without a basis in the social.
Thus, while the judgments made at trial are important, so are the processes by which the triers of fact are guided to come to judgment. I interpret police trials as constitutive events; they are open-ended sites at which the social is emergent (Kapferer 2010). Both police shootings and police trials are events at which “participants are effectively engaging with the taken-for-granted assumptions of reality and redefining the nature of their orientations to reality” (Kapferer 2010: 12). By examining the arguments and testimony of the court transcript, we can see how participants produce and contest assumptions about policing, citizenship, and morality.4
I focus on ‘reframing’ as a means to uncover how potential subjectivities are asserted and contested during the process of court. During trial, naming subjects is an emergent and mediated process. My analysis focuses on the questioning and testimony at trial, looking in particular at three witnesses: Brailsford himself, use-of-force expert Emanuel Kapelsohn, and Brailsford's police trainer Jeff Jacobs. I focused on these witnesses because of their claims about officer reasonableness, and because of the way they reframed reasonableness in relation to both officer and victim.
Police Violence and the State
Efforts to define the police (notably hard; Fassin 2017) tend to emphasize the functions of the police as state agents and hence rely on theorizations of the state. In the criminological and sociological literature from which policing studies emerged, the state is often the Weberian rational state (Martin 2018). Another branch of theorizing uses a Marxist notion of police as “the armed wing of the state” (Durão 2017: 240, emphasis removed). In this literature, police have often been conceptualized as an extension of the state, in ways that reify both (Jauregui 2013).
The emerging anthropology of policing draws attention to the complexity of the policing landscape and the multiplicity of roles and bureaucracies that police navigate (e.g. Jauregui 2013; Owen 2016). Anthropologists show the uneven and idiosyncratic ways police discretion intersects with state bureaucratic processes (Jauregui 2013; Durão 2017). Ethnographic investigation into police violence has shown it is foundational to police work rather than exceptional (Ralph 2017; see also Durão 2017; Fassin 2019; Kyed 2017), and that it is enabled within a cultural-historical context that defines “when how and for whom” police violence is legitimate (Kyed 2017: 115).
However, these conceptualizations are largely based on the actions and processes of policing outside of courts, practices which are talked about but not directly enacted during police trials. Police trials are understudied (with a few notable exceptions such as Goodwin 1994). Lawrence Ralph (2017: 250) argues that trials give insight into the social conditions “that give rise to use of force.” Building on this insight, I suggest trials are sites at which the state and its relationship to violence are constituted through the interaction of the different, but inter-related, institutions of police and justice. As Goodwin has shown, testimony at trial builds a “professional vision” of police for the triers of fact, using techniques that recategorize the actions of officers and suspect/victims in terms that render them sensible to the frame of ‘use of force’. Goodwin argues that this testimony structures police perception as not an individual phenomenon, but as “a domain of professional competence” (1994: 616) that is shared (thereby allowing expert testimony). Goodwin points out the asymmetry of the process: no comparable vision is available for victims, and there is no one to speak to their perceptions.
This asymmetry is not simply the result of professional vision or expert testimony. Dubber (2005) shows that there is a long history of courts enacting police power through decisions that strip the rights of anyone or anything defined as a ‘threat’ to the public. Thus, the enactment of police power is rooted not in the upholding of citizens’ rights, but rather in the enforcement of the public peace. Although Dubber demonstrates this through many historical court orders, the contrast is not one that is widely acknowledged in public discourse about the police. It is, however, implicit in the legal definition of acceptable police violence: that police may use up to lethal force when they perceive a threat of death or great bodily harm to themselves or a third party.
Police trials require that the reason for an act of violence be made explicit and examined, which puts the institutions of police and justice into tension. The objectives within a police precinct and a court are different, and Martin (2018) argues, based on “radically different ways of conceptualizing state order” (136). Law, he suggests, is envisioned as an arena of equality, where state institutions manifest a political community of equals. He contrasts this to the “illiberal dimensions of police power” (136) that are hierarchical and unequal, reminiscent more of systems of kinship that produce rights-bearing identities than of liberal ideals of equal and autonomous citizens. But rather than any singular liberal or illiberal model, he argues “existing police systems are, and have always been, complex assemblages of disarticulate powers, attached only partially to the legal-bureaucratic apparatus” (136).
A key tension between police and justice is in the assumption of how the citizen relates to the state. Drawing on Dubber (2005), Martin argues that “law is a sphere of aspirational autonomy, police the sphere of exigent heteronomy” (2018: 136). Under the law, citizens are envisioned as autonomous actors with state-protected rights. However, in the police encounter, rights are often suspended. Thus, police encounters are heteronomous because of “the material dependency of human beings as objects of police” and exigent because this condition “is always-already prior to [a citizen's] aspirational autonomy as subjects of the law” (136). During an encounter, the police's right to take a citizen's freedom and even life creates the “material dependency” of the citizen on the police, one that can only be challenged after the fact in the court of law.
A clear example of this dynamic is resistance to unlawful arrest: in theory a person has the right and autonomy to resist but in practice this right is established post hoc in court; the arrest will always happen prior to the recognition of its unlawfulness, and the consequences of that arrest will be materially borne out by the person who is object to the police. The material dependency of the citizen is never clearer than when an officer kills; the very term used by critics, ‘extrajudicial killing’, evokes the illiberal dependency of the citizen- victim to both the material power of the officer and to the fact that officer discretion takes them outside the processes of liberal citizenship. A dramatic example of this is the 2023 killing of Tyre Nichols, in which officers were charged with kidnapping because it was deemed after his death that at some point the arrest became unlawful (Sainz and Reynolds 2023).
What is unique about an officer's trial is that the exigent heteronomy of the officer–citizen interaction becomes the justifying circumstance of an officer's defense. Yet, such a defense threatens to lay bare the radical difference between law and policing, and potentially undermine the legitimacy of either or both. Thus, trials become sites at which “significant ideological labor is invested in reconciling the liberal value of autonomy with the heteronomy of police control” (Martin 2018: 138). After a brief description of the incident, I will show that much of this ideological work is done by reframing Philip Brailsford as subject to police power through his training and specific role in a group, and reframing Daniel Shaver as an active agent in control of the situation. Thus, the difference in power between Brailsford and Shaver is partially equalized.
The Death of Daniel Shaver
The events leading up to Daniel Shaver's death were extensively discussed by various witnesses in his trial. The following is an overview based on this testimony (State of Arizona v. Brailsford 2017),5 and on Brailsford's body worn camera footage.
On January 18, 2016, Daniel Shaver was staying at the La Quinta hotel in Mesa, Arizona while traveling for his job in pest control. After inviting two guests, Monique Portillo and Luis Nunez, to his room to drink, he and Nunez began to examine the air-rifle pellet gun he used for his job, pointing it out the window to look through the scope. This was seen by guests below who interpreted it as a threat and reported it to the front desk. The hotel called the police who assembled in the parking lot to form the response team.
Sergeant Langley, the senior officer reporting to the scene, took charge of setting the plan and assigning roles to officers. Brailsford and his colleague Brian Elmore were assigned “lethal coverage,” meaning they were tasked with protecting other officers through the use of lethal force if necessary. Other officers had roles such as handcuffing the suspects or searching people. Once assembled outside of Shaver's room, Langley called out for occupants to leave the room. Shaver and Portillo (Nunez had left by then) did not immediately respond to instructions. This caused frustration to Langley (observable on the body camera video), and likely the officers as well, as officer training conflates delay with non-compliance, often construed as a magnification of threat. One officer left to call the room, and another to get the room key from the staff. The call was picked up by Shaver, who was instructed that Portillo should leave the room then followed by Shaver. The video shows almost 10 minutes lapses before Portillo and Shaver emerge together.
Sergeant Langley, who had already been yelling commands, reacted strongly to their simultaneous emergence. His instructions became increasingly loud and demeaning, especially towards Shaver. Portillo was successfully taken into custody, leaving Shaver lying face down on the floor. Langley began to instruct Shaver, who had some difficulty following his commands. At one point, Shaver put his hands behind his back; the prosecution later suggests this was in anticipation of being cuffed. Langley became agitated, responding “You do that again and we're shooting you, do you understand?” Shaver began to cry, and Langley instructed him to crawl forward. He began to do so, crying, and then reached once again behind his back—at which point Brailsford fired his personal AR-15, killing Shaver instantly.
At this level of description, we can be fairly certain—and fairly neutral—about the events as they occurred. But the trial never questioned whether Brailsford caused Shaver's death; this was settled well before trial as an agreed-upon fact. Thus, beyond giving the context for the arguments made, the sequence of events offers little insight into the outcome of the trial. The focus of the trial was whether Brailsford, in his capacity as a state agent charged with protecting the public, had the right to cause Shaver's death. The question turned on whether Brailsford's alleged belief that he and other officers were in danger was true and reasonable.
Reframing the Victim
Victim framing is a notable feature of most court cases, although the specifics of the framing vary. Many scholars have looked at various tropes or ideal types in victim framing (e.g., Christie 1986; Howard 1984). However, I propose the key to the framing of police victims is not what ideal type they are, but to what extent the defense is able to portray them as in control of the police–citizen encounter.
In trials of police officers, common tropes that increase or decrease sympathy for the victim do not seem to predict outcomes. In some cases, increased sympathy correlates with officer conviction. For example, Roy Oliver was convicted of shooting upstanding black teen Jordan Edwards who was a passenger in a car Oliver was trying to stop. But in other cases, unsympathetic victim framing does not result in acquittals: Jason Van Dyke was convicted for shooting Laquan McDonald while McDonald was high and waving a knife. And more recently, Derek Chauvin was convicted despite defense framing George Floyd as a drug user and arguing his death was caused by opioid use rather than Chauvin's actions. In Daniel Shaver's case, the video shows him making an effort to comply while crying and begging for his life; yet Brailsford is not convicted. I propose convictions turn partially on the degree to which the exigent heteronomy of the police encounter is diminished or emphasized. That is, it is not what victims are but what they are able to do during the police–citizen encounter that contributes the most to victim framing in police trials.
In this case, defense attorney Michael Piccarreta reframed the situation as one in which Shaver was the ultimate author of his own misfortune and Brailsford was merely responding to circumstances outside his control. That Shaver was subjected to the power of the state vis-à-vis Sergeant Langley and the cadre of officers pointing weapons at him is hard to dispute given the video evidence, but the strategy in court was not to excuse this. Rather, defense arguments first diminished the importance of this fact by recasting Shaver as a danger and a threat, outside of the ‘citizenry’ officers are sworn to protect. Secondly, through extensive testimony of both officers and expert witnesses, Brailsford was cast as himself in a heteronomous position, subject to external authority in the form of both Langley and his state-provided training. Thus, Shaver is portrayed as the agent of his death, and where that falls short, Brailsford is portrayed alongside Shaver as subject to the exigent heteronomy of the situation.
Throughout the trial, there are subtle and explicit ways in which Shaver's culpability is asserted. For example, although known at the time of the trial that Shaver was not a threat, he was repeatedly referred to as a ‘suspect’ and testimony would track between specific reference to Shaver as a suspect and beliefs about ‘suspects’ as an abstract category of actors. While this may seem an obvious way to interrogate an officer's beliefs at the time, in court it diminishes the victim's personhood, making the heteronomy of the situation more justified.
These multiple ways of blaming or dehumanizing Shaver are particularly notable in the testimony of defense expert witness Emanuel Kapelsohn. Brought in as an expert on police training, Kapelsohn's testimony expounds on beliefs about how people behave when confronted by police. He regularly casts Shaver in the role of suspect, criminal, and dangerous threat. For example, he explains “furtive movements” are different at a traffic stop than at an armed robbery. He implicitly links the situation at the hotel to the armed robbery rather than the traffic stop, arguing it is “inherently threatening.”
When Kapelsohn begins to describe Langley yelling for Shaver to put his hands up, the defense stops him and asks: “In this type of call, are officers trained to presume that individuals may be armed and dangerous?” Kapelsohn reframes in his response: “They're trained to presume that the suspects they're dealing with are armed until they can confirm that they are not armed by searching them.” After some back and forth, he expands: “It would apply when arresting someone the police know to be an armed criminal, but in many other situations, as well. . . . ”
For Kapelsohn, everything in the context is framed as a threat: he suggests that Shaver's manner of dress (T-shirt and gym shorts) does not diminish the threat but rather he discusses potential weapons Shaver could have carried. While the judge sustained an objection to Kapelsohn's physical demonstrations at this time, he allowed the questioning to continue along this line of argument. When asked whether officers are instructed that “people can carry firearms and not be visually seen even wearing basketball shorts or T-shirts,” Kapelsohn replies “Absolutely” and goes on to describe a variety of guns that can be easily hidden. He claims the hotel hallway is tactically dangerous despite the fact that six armed officers surrounded the room. He claims the threat was escalated because Shaver and Portillo came out together.
Finally, the defense addresses the moment that looks to the non-police viewer like Shaver's total submission to the situation and the officers,6 the moment most damaging to Brailsford's claim that he believed he was in danger:
Q. What about if a suspect — or how are officers trained if someone tries to appear to be docile, crying, says, after asked, don't put your hands back, you'll get shot, says don't shoot me, are officers trained to rely on those words?
A. No. The suspect's demeanor, the suspect's words, the suspect's behavior, crying or whining or whatever it might be may be genuine or may be a ruse. Some departments teach this as what is called cooperative disadvantage, meaning a suspect will appear to be cooperative for the purpose of putting an officer at a disadvantage. He may say, oh, officer, let me just show you my identification, and he'll use that as a way to take two steps closer to the officer before attacking, or he'll say to the officer, let me just show you my — my wallet, and he'll reach back and come out with a gun.
So you can't rely on something like that, and, if — if armed robbers could simply say to the police, don't shoot me, I guess they'd be home-free, but that can't be.
Kapelsohn is accurate in his claim that police are trained to view submission with suspicion, but what stands out here is the foreclosure of any possibility this might be wrong, or at least over-determined; there is no interrogation of what evidence ‘cooperative disadvantage’ is based on by the prosecution. The concept suggests that suspects, even while crying and begging for their lives, have an advantage over officers they can exploit to do harm. This diminishes the exigent heteronomy of the situation, casting the people who become the objects of police power as active agents in control of the situation. This position reflects “the danger imperative,” a cultural frame in policing “that emphasizes violence and the need to provide for officer safety” (Sierra-Arévalo 2021: 71). Notably Michael Sierra-Arévalo (2021) argues this frame does not accurately represent the causes of police injury: it over-determines the danger posed by citizens while under-determining other dangers (such as driving without a seatbelt).
While the danger imperative was not directly challenged in court, the degree to which Kapelsohn excludes the legitimacy of a person's confusion or difficulty with compliance became apparent when prosecutor Susie Charbel returned to this exchange in her cross-examination. Here she draws attention to the absurdity of the commands and the common-sense interpretation that Shaver lost his balance rather than intentionally chose to ignore the commands:
Q. . . . You said that there were several times that Daniel did not comply. Is that — is that still your answer?
A. I'd say it's still my answer, yes.
Q. Okay. Could you tell us what those times were?
A. He was told to be quiet and listen to the commands, and then he, I believe, attempted to speak again or say things again after that point. He was told where to put his hands, and he put them behind his back. He was told that if he put them behind his back again, he — he might be shot, or he would be shot. He then put his hand behind his back again. There were a number of things he did that were not in keeping — he was told to crawl forward with his hands in the air, and then he almost immediately went on to all fours. I don't know whether that's from a lack of balance or from disregarding the commands, but he — there were a lot of things that he was told to do that he didn't do.
Q. All right. And part of it, as you said, it could've been lack a [sic] balance that he had keeping his legs crossed and trying to crawl?
A. Could've been.
In his answer, Kapelsohn tries to continue framing Shaver as a non-compliant suspect whose actions escalate the situation. Notably he does this out of chronological order: Shaver indeed put his hands behind his back after being warned he would be shot, but the next action was that Brailsford shot him. Kapelsohn's rendition puts this in the middle of events, disassociating the escalation of the confusing commands from the action that preceded the shot. In Kapelsohn's telling, Shaver is the agent of his own death, guilty of criminal-like non-compliance that created an inevitable situation in which police violence was necessary.
Absent, although somewhat implied in Charbel's cross-examination, is an acknowledgment of Shaver himself as a reasonable person. This potential framing of Shaver was avoided by the defense and undeveloped by the prosecution. In the absence of a reasonable citizen, Kapelsohn's danger imperative frame (Sierra-Arévalo 2021) that casts Shaver as a threat faces no challenge. Thus, the reasonable officer stands opposed to the non-compliant suspect rather than the reasonable citizen, suggesting that a reasonable officer does not need to assume reasonableness on both sides of the police–citizen encounter.
Reframing Police Action
Despite efforts to cast Shaver as a more active agent in his death, no one disputed that Brailsford had fired the shot that killed him. Instead, Brailsford was reframed from the main actor and direct cause of Shaver's death to a man who did the best he could with the limited knowledge and options available to him, in other words, as a ‘reasonable officer’. To achieve this, the defense goal was twofold: first, to diminish the sense of Brailsford's responsibility by emphasizing he was also subject to police power rather than the sole enactor of it; and second to show that his interpretation of Shaver's movement was reasonable and that he acted within an a priori state-sanctioned framework for taking violent actions against citizens.
The Reasonable Officer Built through Testimony
Brailsford's testimony begins by describing his early life, as far back as grade school and high school. During this early testimony, his attorney uses words like “service” and “commitment” to describe Brailsford's activities. The life story presented is out of order, first focusing on public service then switching to family commitments. When the prosecution objects to questions about his time as a Boy Scout, the judge overrules and allows the line of questioning to continue. This section of testimony has the overall effect of establishing Brailsford as a good, dedicated, local, All-American man with a lifetime commitment to public service. This also serves to establish the qualities of an idealized good officer, who is of course also a reasonable officer.
As the testimony switches to becoming a police officer, there is an interesting sequence in which his attorney asks what tests or vetting Brailsford went through, following up each statement with a question about whether he was admitted to the next stage. This seems redundant given that Brailsford became a police officer—he must have passed. But it helps establish Brailsford as subject to the institutional structure of policing. It is not that one simply chooses to be a police officer, but that the police force chooses from among those who are interested and validates through training and policy that they are fit to administer force according to the state's approved procedures (Stoughton et al. 2020). Thus, he is a vetted officer, one judged by the state to have the capacity to be a reasonable officer.
In building the case that Brailsford was a reasonable officer, the defense narrative diminishes all aspects of responsibility: his intent, state of mind, and response to Shaver's death are all carefully emphasized as appropriate during the direct testimony. And while the defense concedes the fact that Brailsford is the proximate cause of Shaver's death, having shot the bullets that killed Shaver, Piccarreta attempts to diminish the significance of this fact by reclassifying Shaver from a bystander or citizen to a suspect, and by emphasizing Brailsford's lack of knowledge about the situation and reliance on training and policy to make decisions.
In order to establish Brailsford's state of mind and response to the shooting, defense questioning carefully constructed a five-day narrative of Brailsford's everyday experiences as relevant to the decision to shoot. This narrative begins two days prior to the incident, describing quotidian activities at home and on patrol. Prior to the shooting, Brailsford's narrative describes a calm, service-oriented family man. He had a normal morning, eating breakfast and going for a jog, which serves to eliminate explanations for his state of mind that would implicate blameworthiness on his part (i.e., fatigue or exhaustion, conflict with a spouse or other clouding his judgment, etc.; c.f. Mair et al. 2012). This contrasts to the aftermath in which he became a traumatized insomniac who could not sleep for 72 hours after the shooting.
The discussion of “what happened that night” is interwoven with questions that serve to emphasize Brailsford's conformity with training and policy. Thus, a long section of testimony that seems to meander in time is used to further establish the reasonableness of Brailsford's actions and interpretations that night. When they begin to discuss taking the call, the focus is on policy and knowledge, highlighting the unknown aspects of the situation and the ways in which Brailsford relies on policy and procedure to guide his actions:
Q. And when you're approaching La Quinta, do you turn down your lights and sirens prior to arriving at the hotel?
A. Right. And that's just common practice when we start to get nearby to the target location. We're going to shut down the lights and sirens so that we don't alert the suspect or, you know, whoever's there that we're coming.
But within this focus, there is an unquestioned framing of the person who has triggered the call as a ‘suspect’, which places them as the object of police action, rather than as a person to be protected by police. As Didier Fassin (2019) points out, representing groups as criminals or potential criminals helps legitimate police violence. Both the emphasis on rule-following and the constant referral to Shaver as a ‘suspect’ rather than as a victim or simply a person create the foundations of the ‘reasonable officer’ argument that Brailsford did what any reasonable officer would do in the same situation.
Brailsford as Subject to Police Power
The main thrust of the defense argument was that the shooting was a legitimate use of force: there was a threat, properly interpreted by Brailsford according to his training, and that his response was appropriate and proportionate. I return to this focus of the defense in the following section, but first I discuss a more subtle positioning of Brailsford as himself subjected to police power. It began with the discussion of how Brailsford became a police officer, and it became most explicit when discussing Brailsford's interactions with Sergeant Langley. As the questioning broached the actual event, Piccarreta reframed Brailsford as a ‘cog in the wheel’ subject to Sergeant Langley:
Q. And what happens after you arrive?
A. So after I arrive, we, you know, we're waiting for Sergeant Langley to give us our instructions. He actually starts giving out, you know, orders of who's doing what. I'm assuming he saw Elmore and I because we both had our rifles with us. And so he would have given out instructions, you know. He told me specifically you're cover officer. He told Elmore he's cover officer. And then he would have given instructions to the other officers as to what their roles were going to be. This is him setting up the Immediate Response team at this point.
Q. That's his job?
A. That's his job.
. . .
Q. And whose decision is it to when and how and to do anything relating to an investigation or the tactics to be used to make the scene safe?
A. That's going to be Sergeant Langley.
Q. Did you talk to anyone at the hotel?
A. I did not.
Q. Were you provided any information?
In these passages, Brailsford is set up as a subordinate to Sergeant Langley, and to some degree subject to police power as well as an agent of it. This becomes important during the shooting, because the escalating commands and demands heard on the video evidence come not from Brailsford, but from Langley.
After a few questions about how well Brailsford remembers what he decided and what he knows, the defense asks Brailsford if he is the one shouting commands during the encounter:
A. No, that would be Sergeant Langley.
Q. Now, as coverage officer, what was your role?
A. I had one role and it was a simple role. It's, one, I'm responsible for everyone else, including myself. And I need to keep the scene safe. The important — I guess the important duty is to [sic] I'm providing the coverage for the other officers. I have to watch the hands in a sense.
Q. Of the suspects?
A. Of the suspect.
Brailsford testifies he has only one role: to keep “everyone” and “the scene” safe. Implicitly, “everyone” and “the scene” exclude Shaver, who is the putative danger Brailsford is protecting against.
Langley's escalating commands, then, become part of what defines the scene and its dangers for Brailsford. Rather than independently imposing his power on the victim—as one might be inclined to interpret the dramatic video or the fact that the other coverage officer did not shoot—Brailsford and Shaver are both subject to the circumstances of the scene and Langley's commands:
Q. Are you authorized at that point if you go, I don't want to do lethal coverage anymore. I'm going to take out some mace?
A. If only it was that simple, no. Because I was assigned lethal coverage, that is my duty until this is over.
While Brailsford does later quite explicitly state he was not following orders when he shot Shaver, he stresses his role on the team and a ‘just doing my job’ interpretation. This obscures the discretionary nature of police violence, de-emphasizing Brailsford's choice to pull the trigger. It also serves in the construction of the reasonable officer by removing emotional or moral motivations from the picture the defense creates. Brailsford is not choosing to do violence or meting out punishment (Fassin 2019), he is making “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving” (Graham v. Connor 1989). Through this testimony, the defense is able to present Brailsford as focused, rational, and attuned to his ‘duty’.
Expert Witnesses and Training: Acceptable ‘Use of Force’
Defense witness Jeff Jacobs, who conducted Brailsford's use-of-force training, was a significant person in establishing Brailsford as a reasonable officer. In describing training, Jacobs classes suspects as the “target” or “threat,” contrasted against the “people” an officer is responsible for protecting. Jacobs referenced unspecified “case studies,” “dash cam,” and “body cam” to establish claims about how to interpret suspect behavior (which somewhat bizarrely excluded anything the suspect says) and “contextual cues.” In support of Brailsford's reasonableness, Jacobs claimed that Shaver and Portillo exiting the room together was “a contextual cue to something's not quite right.” Knowledge of contextual cues is drawn from training and experience, and these cues contribute to risk analysis. If the risk is great enough, the officer is trained to act first:
When we have the belief, based on the facts, the circumstances, the context, weight against risk, all that information contextually that there is danger and then we have these what we call contextual cues that something is happening that's going to be really, really dangerous, if I wait to see what that is or what's going to happen, I can't win.
Further, as Shaver was the embodiment of the ‘threat’, he was excluded from police protection and his safety was not considered in the weighing of risks and consequences to deadly force.
Of course, the “contextual cues” of danger in this case were actually wrong. There was no danger, as neither Portillo nor Shaver was armed. Yet according to Jacobs, the contextual cues made Shaver a legitimate threat, and therefore made Brailsford's interpretation reasonable:
Q. And it is — is it your opinion that with the risk level that you've talked about being sky high, that that the movement of Mr. Shaver would constitute an imminent threat to a well-trained officer from Officer Brailsford's perspective?
A. Yes, that's exactly how we trained. If I use this case as a training scenario, that's exactly how I would train it. That movement is a — it's an exact draw stroke. That's exactly what it looks like.
Jacobs’ testimony demonstrates a grave risk of circular, self-perpetuating logic to police accounts of use of force: Brailsford is correct because he acted according to training and training is correct because it is based on officers’ experiences. There is a relativism to the relationship between training and accountability that can be used to justify almost any use of force—and indeed, this relativism is observable in many police trials other than Brailsford's (Lvovsky 2021).
Conclusion
Noting the contrast between scholarly conceptualizations of pervasive police power and the fact that there are instances where that power is circumscribed, John Comaroff suggests that a significant question for the anthropology of police is: “how do we count the palpable limits of [police] sovereignty . . . wherein lie the outer bounds of police power?” (2013: xvii, emphasis original). Police trials offer a significant site at which to explore this question. Here, the reframing of both Brailsford and Shaver casts the police encounter as one in which the power between the two is at least partially equalized—a rather stunning achievement given Shaver's abject cries and unarmed status witnessed by the jury through Brailsford's body worn camera video. This reframing served to diminish the exigent heteronomy of the police encounter and reconcile police violence with the liberal objectives of the court.
Despite a thoroughgoing critique of the Weberian rational state in anthropology,7 Weber's definition of the state as having a monopoly over legitimate force, vested in police and military, remains “manifest in much scholarly work” as well as in the “organic anthropologies and vernacular ideologies with which law enforcement agencies themselves work” (Comaroff 2013: xii, emphasis original). Through the analysis of this case, we can see that the right to enact violence is negotiated in court; it is at least in part through court processes after the fact that the state asserts its monopoly on violence. The reasonable officer is the figure in which this monopoly is vested: officers on trial must measure against the reasonable officer to prove their right to use force. The reasonable officer is the state's legitimate purveyor of violence, a construct that supposes—quite contrary to ethnographic evidence (Martin 2018)—the rationality and boundedness of police violence. It obscures the boundary between police policy and discretion, as the reasonable officer's discretion is by definition also reasonable and within the bounds of training and policy.
Importantly, ‘the reasonable officer’ is built through testimony about both general police practices, beliefs, or policies, and specific reference to the officer-defendant himself. That is, the reasonable officer does not exist ‘out there’ to compare an actual officer against; the defense takes the position that the defendant was a reasonable officer and uses examples of the defendant's actions and beliefs to help establish what the ‘reasonable officer’ is. The prosecution takes the stance that the officer was unreasonable, and also calls police witnesses to put forth an account of reasonableness. This reliance on police definitions of the reasonable officer means that police agents themselves are integral to defining the legal limits of police violence.
Trials are significant to how the state defines and constrains police violence. Both convictions and acquittals confirm the legitimacy of ‘reasonable’ acts of violence, and the centrality of violence to police work. Police trials are an important space to explore how meaning is given to violent acts within a framework premised on the legitimacy of some types of police violence; here the limits of ‘state-sanctioned violence’ are tested and made concrete.
Acknowledgments
This research was made possible with funding from the Social Sciences and Humanities Research Council of Canada. I would also like to thank Patrick Watson, Albert J. Meehan, Ann Marie Dennis, and Michael Lynch with whom I have worked on several projects related to policing, and who have read earlier drafts and provided encouragement and feedback.
Notes
Police and courts use the term ‘use of force’ when referring to police violence. This is a particular framing, which neutralizes the moral questions brought to bear on an action, and frames actions as technical and legitimate. ‘Excessive force’ or ‘excessive use of force’ are the terms used in this frame for illegitimate actions. I choose to use ‘violence’ because its broader framing of action gives rise to questions of morality and legitimacy. Whereas ‘use of force’ is implicitly ‘legitimate’ within its frame, ‘violence’ leaves the question of legitimacy open.
“Body-Cam Video of Daniel Shaver Shooting,” Los Angeles Times. Video. Uploaded 8 December 2017. https://www.youtube.com/watch?v=VBUUx0jUKxc.
Graham v Connor, 490 U.S. 386 (U.S. Supreme Court 1989).
In many police trials, ‘race’ can be included in this list. However, in this trial, a white police officer shot a white man and race was not brought up explicitly or implicitly. It is interesting to note, however, that the dehumanizing discourse around ‘threats’ and ‘suspects’ on display at the trial can also have a ‘deracializing’ effect.
State of Arizona v Philip Brailsford. 2016-004743-001 (Maricopa County Superior Court, 2017).
Colleagues have described the treatment of Shaver as degrading and demeaning, reminiscent of Garfinkel's degradation ceremonies (Garfinkel 1956); YouTube comments on the LA Times posting of the video suggest that the vast majority of viewers see Shaver as in total submission; media articles (e.g. Lowery 2017) also make this point.
Many reviews of this literature can be found, for example Laszczkowski and Reeves (2015); Thelen et al. (2014).
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