“I think there are a lot of unanswered questions here,” said Seth Stoughton, a law professor at the University of South Carolina and a former Florida police officer who testified as a use-of-force expert in the Derek Chauvin trial.
An incident last month during which a Santa Cruz County Sheriff’s Office deputy shot a man who officials say fired a weapon before advancing toward deputies is “likely to be considered a justified shooting,” says one law enforcement expert who reviewed video of what happened, while a second expert cautions that the video leaves a lot unclear.
Amid a national spotlight on shootings by police, Lookout asked the experts to review police bodycam footage of the April 6 shooting of 40-year-old Eli Burry of Soquel, who recently pleaded “not guilty” to several felony charges related to the incident, including resisting officers and illegal discharge of a firearm.
“I think there are a lot of unanswered questions here,” said Seth Stoughton, a law professor at the University of South Carolina and a former Florida police officer who testified as a use-of-force expert in the trial of former Minneapolis police officer Derek Chauvin, who was found guilty of murder in last year’s knee-on-the-kneck killing of George Floyd. “It does not mean that the officers necessarily did anything wrong. But it doesn’t necessarily mean that they did everything correctly either.”
To Dennis Kenney, a professor of criminal justice at John Jay College and another former police officer in Florida, it looked like an “especially difficult situation” for deputies, in part because of how dark it was when they encountered Burry’s parked car behind the Aptos Village Square shopping center.
“The only thing that wasn’t clear to me was whether they believed he still had the gun when he got out of the car,” Kenney said. “It appeared to have been very dark, and so I can imagine it was difficult for them to know whether he had the gun or not.”
Both Stoughton and Kenney commended the deputies for some of their actions, including having “good control of themselves” and strong verbal communication at the beginning of the incident. But Kenney said he was a bit surprised that the three deputies involved didn’t call for additional backup as the incident was unfolding — and didn’t attempt to shine more light on the car than they did during the incident, which happened close to 11 p.m.
The deputies approached Burry’s car and asked him to step out, which he refused to do. None of the deputies, nor a passenger in Burry’s car were injured in the shooting.
Where the investigations stand
The sheriff’s office declined to comment for this story, but Sheriff Jim Hart said in mid-April that, per standard practice, the Santa Cruz County District Attorney’s Office is leading an investigation to determine if deputies violated any laws. Hart’s agency is conducting its own separate internal affairs investigation to determine if any internal policies or procedures were violated.
“When we have a serious use of force incident, certain procedures and investigative steps to ensure an independent process are initiated,” Hart said, adding that the investigation is in its early stages and could take “many weeks” to be completed.
The sheriff’s office released the bodycam footage on April 14, eight days after the shooting.Deputies were investigating a “suspicious vehicle” parked behind the Aptos Village Square shopping center. The car was registered to Burry, officials said, and in the video deputies can be heard calling him “Eli,” with one officer telling the other to remember that Burry had once been found with “a lot of guns.” In March 2020, detectives arrested Burry at a Soquel home where they say they found close to a pound of methamphetamine and 17 firearms, including two classified as unregistered assault weapons. Burry was free on bail while awaiting the resolution of that case.
Deputies repeatedly asked Burry and Burry’s passenger to step out of the car, but they refused to comply for several minutes as deputies knocked on the windows, which appear to be tinted.
Kenney said he was “a little surprised” that the deputies were as tolerant as they were when the occupants did not roll the windows down, adding that it was an “especially dangerous position that they were in.” He said he imagines most officers would have given up trying to talk the men out of the car and would’ve broken the windows “given that you can’t really see what’s going on inside the car.”
“Eli, open the door man, we’re not leaving,” one officer can be heard saying on the video.
Suspect fired weapon, officials say
Eventually, that happens, and a deputy attempts to handcuff Burry while repeatedly telling him he isn’t trying to arrest him.
Stoughton said he would like to know why the deputy decided to handcuff Burry when he did, “especially when it sounded like the officer was willing to let the guy not be handcuffed as long as he stepped out of the car.”
“I don’t know whether the officer was intending to make an arrest, even though he was telling the individual that he wasn’t under arrest or whether that was just handcuffing for preventative control purposes — but I’d like to get some information about why that decision was made,” Stoughton said. “Doesn’t mean it’s wrong, but … it’s one aspect of an interaction that can lead to predictable escalation so it has to be applied appropriately.”
In the video, the deputy appears to say that he is detaining Burry “just for my safety.”
Next, deputies see Burry reach for “what appeared to be a weapon” wedged in next to the driver’s seat, according to the sheriff’s office and in the video deputies can be heard warning him that they would shoot if he did.
A taser deployed by one deputy while Burry was in the car amid a struggle to handcuff him proved ineffective. Officials say Burry then fired a gun — later identified as a flare gun loaded with a shotgun shell — “in an unknown direction.”
On the video, a bang can be heard around the time Burry gets out of the car.
The video then shows Burry walking quickly toward a deputy while placing his hand under his jacket and disobeying commands to get on the ground. When Bury continues to advance, a deputy fires five shots, striking Burry.
It is unclear whether Burry is in possession of the weapon at the time. Sheriff’s officials have not said whether Burry was in possession of the gun when he was shot. Officials said, however, they found numerous weapons and drug paraphernalia in the car.
The fact that Burry was reported to not have life-threatening injuries after the deputy fired his weapon five times surprised Kenney. “Five shots that close, it’s a little bit surprising that the individual survived.” It is unclear where — or how many times — Burry was shot.
At one point in the video, Burry can be heard yelling “shoot me” multiple times while walking toward deputies, but both experts said it would be tough to tell whether the situation was an attempt at “suicide by cop” — a situation in which a person effectively provokes police into shooting them in hopes of ending one’s life.
Officials say deputies rendered medical aid to Burry until an ambulance arrived. He was taken to the hospital with non-life threatening injuries, according to the sheriff’s office. Burry is being represented by the county public defender’s office; he is set to appear in court for a preliminary hearing on May 10. His defense attorney declined to comment Monday.
Did suspect have weapon in hand?
Overall, Kenney said that in his opinion, “there’s not a whole lot” that deputies could have done differently that night. He said given the circumstances he thinks “that it’s likely to be considered a justified shooting” when the investigations are complete. “The general standard for deadly force is defense of life, and I think that they can make a reasonable argument given the events leading up, given how dark it was, given the resistance of the individual to comply, the fact that he’d already retrieved the gun and fired one shot,” Kenney said.
Stoughton, however, said someone approaching an officer, even aggressively, in and of itself, “does not establish an imminent threat of death or great bodily harm, especially not when there are multiple officers on scene.”
“Now if the guy had a weapon in his hand, that’s a different story,” he said. “I can’t tell that from the video.”
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In general, the video “leaves a lot unclear,” Stoughton said, which isn’t unusual for an incident that happens at night at relatively close range with a lot of movement where “body camera [footage] is not tremendously valuable.”
“It offers a piece of evidence, but it doesn’t offer anything like comprehensive evidence that I need to actually understand what happened,” Stoughton said. “As is often the case when I review a video like this, I have more questions than I do answers.”
Stoughton said he hopes that the sheriff’s office in its own analysis will look at not just “did the officer do anything wrong,” since that’s a “very narrow question,” but also examine other potential options about the way the incident could have been handled — and whether those could have potentially improved the outcome.
“Those are important questions, not for holding an individual officer accountable, but for improving the next case … improving the outcomes in the future,” Stoughton said.