Now isn't that wonderful...

This Officer Shot an Unarmed Black Man. Now She Can Legally Say She Didn’t.

A court ruling last week “essentially makes it as if it never happened.”

By Brandon Ellington Patterson

Former Tulsa, Oklahoma, police officer Betty Shelby scored a second legal win last week, when a judge agreed to remove from the public record all documents related to her trial in the shooting death of 43-year-old Terrance Crutcher. Shelby was acquitted in May of manslaughter charges stemming from an encounter with Crutcher in September 2016.

Shot and killed an unarmed man.

Video footage showed her shoot Crutcher, whose car was stalled in the middle of the highway, as he backed away from her and other officers who were trying to engage him. Attorneys for Shelby argued in court that she shot Crutcher after he attempted to reach into an open car window. (A toxicology test found traces of PCP in Crutcher’s system.)

Under Oklahoma law, the judge’s decision to expunge her record means Shelby can legally deny the shooting ever occurred, and all records related to the incident will remain under court seal. I talked to Tulsa civil rights attorney J. Spencer Bryan to further discuss the law and its implications in such cases.

What is expungement?

Under state law, anyone prosecuted for but acquitted of a crime can petition a judge to have the case wiped from their record. If a judge is convinced that a person’s privacy or other interests outweigh the public benefit of reviewing the materials in question, he or she can order that all or part of them—including arrest records, police reports, or other documents filed with the court during the course of a criminal prosecution—be sealed.

The records are kept by the court for 10 years, after which they may be destroyed. Only a judge can grant access to an outside party, such as a police agency, prosecutor’s office, or news outlet. “It essentially makes it as if it never happened,” Bryan says. “It won’t appear on the docket. You can’t go find it. You can’t pull any documents from it. You can’t look to see when things were even filed. The entirety of the case file would be placed under seal and locked away never to be seen again.”

I searched for Shelby’s case in Tulsa County’s courts database and found nothing. Now she—and all criminal justice agencies involved in the Crutcher case—can legally deny that the shooting ever happened.

Will the shooting follow her to her next police gig?

Not through a court records search or criminal background check. Any prospective employer would have to go through her for information related to the case. Things could get sticky, Bryan says, if Shelby denied the shooting occurred in such a situation. But assuming she acknowledged it, the department still would need to petition a judge if it wanted to check the accuracy of her statements.

A few weeks before retiring from the Tulsa PD, Shelby took a volunteer gig at the Roger’s County Sheriff’s Office—that was in August, the same month a Washington Post special investigation found that, since 2006, more than 450 officers fired for misconduct have been reinstated or hired by other police departments. Expungements in use-of-force cases, Bryan says, facilitate these transitions.

In other cases, officers facing internal reviews have quit before their departments could issue a decision against them—thus maintaining a clean record—and then joined another department. Such was the path charted by former Cleveland police officer Timothy Loehmann, who shot 12-year-old Tamir Rice in 2014. Loehmann had quit his job at another department after his superiors initiated a process to fire him for poor performance. He later joined the Cleveland PD after failing to disclose the review on his application.

Could the shooting be used against her in a future court proceeding?

Unlikely. Even if you could convince a judge to unseal the records, the trial judge would almost certainly not allow a jury to see them, Bryan says: “It just adds another layer of hiding an officer’s history from the public, which is routinely exposed to that officer.” An individual or an attorney pursuing a civil rights claim against Shelby (as Crutcher’s family is) faces the same obstacles.

How often does this happen?

Bryan says this is the first he’s heard of an officer seeking an expungement after being acquitted of a crime in Oklahoma, but he’s “sure” cops have done it in lower-profile cases. Most states have a process whereby criminal defendants who have been acquitted, had a case dismissed, or have completed probation can have their record expunged, he says. It’s unclear whether any states give police officers special treatment.

What about cops whose use of force was deemed justifiable in an internal review?

In Tulsa, “if there was information contained in the police file, you wouldn’t be able to get it unless you filed a lawsuit and then subpoenaed those records or requested them,” Bryan told me. Many police departments have rules built into their union contracts or in a separate “police officer’s bill of rights” that limit public access to internal records about officers. Some union contracts also mandate that police records related to investigations of an officer be destroyed after a certain number of years. So officers whose misconduct never makes it court are already largely shielded from public scrutiny.

Can’t people just Google Shelby?

Of course, and they’ll find tons of media reports. But the details will be harder to verify now. And a search might not be as fruitful for an officer whose misconduct was not widely covered, Bryan says. Google can potentially tell you that an incident occurred, but it won’t give you access to sealed court documents.