DOJ: No charges against Bend officer in deadly downtown shooting

Oregon Department of Justice investigators investigators have found insufficient evidence to bring criminal charges against Bend police Officer Scott Schaier in the fatal shooting of Michael Jacques in downtown Bend last Dec. 23, authorities said Tuesday.

In a letter sent Monday to Deschutes County District Attorney John Hummel, DOJ Chief Counsel Michael Slauson said the agency’s Criminal Justice Division had reviewed the investigation conducted by the Tri-County Major Crime Team to determine if criminal charges were warranted.

“”The evidence is insufficient to disprove that Mr. Jacques was attempting to escape at the time Officer Schaier used deadly physical force, or that Officer Schaier reasonably believed the use of deadly force was necessary to defend himself and others.”

Jacques’ family hired an attorney and indicated an intention to file suit over the deadly shooting.

Slauson wrote, “Because our review was limited to potentially criminal matters, we did not evaluate whether Officer Schaier complied with civil or administrative law and we offer no opinion with respect to his use of deadly force as it releases to those issues.”

Here’s a news release on the decision from Hummel, issued Tuesday afternoon:

Oregon Attorney General Ellen Rosenblum and her team at the Oregon Department of Justice completed their legal review of the December 23 , 2016 shooting death of Michael Jacques in downtown Bend. Deschutes County District Attorney John Hummel asked Attorney General Rosenblum to take over this case due to a potential conflict of interest (Hummel’s attorney in litigation related to injuries he sustained in a car crash was retained by the family of Mr. Jacques to represent them in a case against the City of Bend based on the circumstances of his death).

Department of Justice Chief Counsel Michael J. Slauson informed Hummel via a letter that the Department of Justice concluded there was insufficient evidence to find Bend Police Officer Scot Schaier criminally liable for shooting Jacques.

Specifically, Slauson said: “[T]he evidence is insufficient to disprove that Mr. Jacques was attempting to escape at the time Officer Schaier used deadly physical force or that Officer Schaier reasonably believed the use of deadly force was necessary to defend himself and others. Accordingly, there is insufficient evidence to prove beyond a reasonable doubt that Officer Schaier was not justified in his use of force.”

The Department of Justice’s opinion letter concludes the criminal review of the circumstances surrounding Mr. Jacques’ death.

Hummel thanked the Department of Justice for their work:

“Officer-involved shooting cases require prosecutors and investigators to expend hundreds of hours to ensure no stone is unturned and the truth comes out. Thank to you Attorney General Rosenblum and her team for taking on this case.”

Hummel also expressed his condolences to the family of Michael Jacques:

“Regardless of what the Attorney General decided in this case, Michael Jacques’ family would be grieving his loss. I assume this decision makes their pain more intense and I wish them the best in this trying time.”

Finally, Hummel recognized the struggle that the involved officers and their families have endured:

“Officers Schaier and Tisher and their families will always carry with them the pain inherent in any situation where a person’s life is taken. They have handled these last six months with grace and strength. Going forward will be slightly less difficult now that the Attorney General has completed her review.”

Slauson noted the major crime team interviewed more than 50 witnesses and collected over a dozen videos of the incident taken by passers-by.

“On the night of the shooting, several witnesses reported a white van driving dangerously through Bend,” the letter stated, including information that it was speeding and had crashed into an underpass. Officers Schaier and Mark Tisher responded to the intersection of Bond Street and Franklin Avenue around 10:30 p.m. on a busy Friday night.

Approaching the intersection,. Tisher said he “saw the van driving toward him erratically and veering across both lanes,” Slauson wrote. Schaier, who arrived separately, “saw the van fishtail, hit the concrete median at a high speed and then continue driving.”

“Neither officer had body cameras or dash cams in their police cars,” he wrote, and neither had any prior contact with or knowledge of Jacques.”

Slauson wrote that the officers approached Jacques’ van careful on the icy streets, and Schaier noted that “Jacques had glassy, bloodshot eyes and a blank stare.”

At first, Jacques complied with officers’ commands to keep his hands on the steering wheel but “was non-responsive or incoherent in responding to the officers’ questions.”

After Schaier opened the driver-side door, “Jacques took his hands off the wheel and reached toward his right side,” the investigator wrote. Schaier reached inside to grab the driver’s arm, but “Jacques pulled Officer Shaier into the van and began striking (him) on the head with his fist.” At about the same time, Tisher tried to open the passenger-side door, but it was locked.

After Schaier was able to pull free from Jacques, he fired his Taser, but “Jacques continued to struggle and pulled at the Taser wires,” Slauson wrote. “Schaier reached into the van and … stunned Mr. Jacques in his left shoulder area with the Taser gun, without any effect.”

While that was going on, Tisher returned to the driver side of the van and also fired his Taser at Jacque, who continued to pull at the wires, while Schaier sprayed pepper gel into Jacques’ face and eyes, with “no apparent effect.”

The van then began to lurch forward and, “with the tires screeching and spinning in place briefly, it began moving forward,” Slausen wrote.

Schaier told investigators he felt a sensation of being pulled to his left and believed his uniform or bullet-proof vest may have gotten caught on the van.”

“Officer Schaier yelled loudly to Mr. Jacques, ‘Put the car in park now!'” Slauson wrote, but both officers said “despite their efforts, they did not have control over Mr. Jacques.”

Schaier said that “at this point, he was afraid that Officer Tisher would get struck by the open driver’s side door of the van, fall and get pulled under the van, and be run over by the back tire,” the investigator said.

He also said “he was also concerned for his own safety, in that he believed he would get swept under the vehicle or dragged by the vehicle” and was “also afraid of pedestrians being struck by the van because of the reckless driving, as well as considering that the driver was potentially intoxicated, his assaultive behavior, and his attempt to elude and drive away.”

“Officer Schaier dropped his pepper spray on the ground, drew his handgun toward Mr. Jacques and fired off five shots, killing Mr. Jacques.”

Later, in the legal analysis, Slauson said “the evidence developed during the investigation tends to support the belief” of Schaier that “his and Tisher’s lives, and those of numerous nearby pedestrians, were at risk.”

“Under those circumstances, the state could not carry its burden to prove that Officer Schaier acted unreasonably in believing that deadly force was necessary to defend himself or others,” Slauson wrote.

Bend Police Chief Jim Porter issued the following statement Tuesday afternoon:

The following is a statement from Chief Jim Porter regarding the findings by the Oregon Department of Justice:

I, and the members of the Bend Police Department welcome the conclusion of the investigation into Michael Jacques death. The investigation of Officer Schaier and Tisher’s actions was led by the Oregon State Police and independently reviewed by the Oregon Department of Justice.

The attempted apprehension and arrest of Michael Jacques was witnessed by numerous citizens, some of which provided video recordings of the incident. We thank all those who provided witness testimony and their video of the incident. This evidence and recorded witness statements provided on the night of the incident are consistent with the statements given by Officers Schaier and Tisher and support the findings of the Oregon Department of Justice.

The officers serving the citizens of Bend do so with pride and compassion, placing themselves in harm’s way on a daily basis to save lives, to help those in distress to keep Bend a safe community. In 2016 officers responded to over 87,000 calls for service, arrested 3,100 offenders, and were only required to use force in 65 of these calls.

—

Here are notes from a news conference statement by the Jacques family’s attorney, Jennifer Coughlin:

DOJ”s findings are not unexpected but honestly it raises more questions than it answers. It relies very heavily on the officer’s recollection, which he was afforded many days to recount.

Our job, on behalf of the family, is to determine whether Officer Schaier had an objectively reasonable basis for using lethal force on Tyler Jacques. Simply because the Department of Justice did not find criminal liability doesn’t mean the officer didn’t have a choice.

Our job is to now vigorously pursue the civil matter to determine whether his choice violated this young man’s constitutional right as an American citizen. Without that inquiry, I fear a society which allows police officer’s to shoot people without consequence and in violation of our Constitution.

The standard that I am concerned with is not whether this officer can be found criminally liable beyond a reasonable doubt, but whether this officer was objectively reasonable, given the circumstance surrounding him, to use lethal force. In other words, did he had an ability to diffuse the situation? To wait for back up? To use other non-lethal forms of restraint?

The Department of Justice didn’t say they believed he was justified in his of self defense, but only that they couldn’t prove beyond a reasonable doubt that he wasn’t justified in his use of self-defense.

They didn’t say he acted reasonably, which is my inquiry. they said he didn’t act criminally. The reasonableness of his conduct is an entirely different issue.

The Department of Justice stated in the letter with its findings that they did not make any inquiry into any civil liability or violations, which is now what we intend to do.

The victim’s family doesn’t want anyone to be unjustly criminally prosecuted, especially after what they went through with their son. However, they find it frustrating that the Dept of Justice’s investigation seems to be based solely on the recollection of the officers, which they were allowed several days to ponder before giving their statements.

The basic question is: Why did this young man, who was unarmed when pulled over for a traffic stop, get shot within a minute of being pulled over? And we look forward to vigorously representing the family in finding answers to that exact question.