GRAND RAPIDS, Mich. (WOOD) — It’s been about a month and a half since 26-year-old Patrick Lyoya was shot and killed by Grand Rapids Police officer Christopher Schurr.
The decision on whether to charge Schurr is in the hands of Kent County Prosecutor Chris Becker, who has yet to make a decision.
On Wednesday, Becker provided an update, saying he will need more time. He said he’s seeking “additional expert guidance” in order to make a “fully informed decision” on whether to charge Schurr.
“I recognize the investigation appears to be moving painstakingly slowly,” Becker stated. “However, as in all cases that come before this office, it is imperative that I review all the facts and evidence before making a charging decision. In this situation, my decision can only be made by taking the time to gather all the available information — both from the MSP and from state and national experts.”
The shooting happened April 4. Video released by GRPD shows that Schurr pulled Lyoya over and Lyoya ran away. There was a struggle that included Lyoya grabbing Schurr’s Taser. Schurr, who was on top of Lyoya trying to hold him down, shot Lyoya in the back of the head.
Becker did not specify Wednesday exactly what “expert guidance” he wants.
News 8 spoke with two legal experts on Wednesday afternoon to provide insight on what new details Becker could be looking for. The first, Sarissa Montague, is a criminal defense attorney for Levine and Levine in Kalamazoo.
“It’s complicated,” Montague said. “It’s difficult because we see this act that’s horrific but then there’s a legal standard that gets applied to it.”
Montague said Becker is likely consulting with use of force experts, something Montague did herself when she represented officers in a past case.
“My guess is that Prosecutor Becker is looking to see if the force used in this case — ultimately the deadly force that was used in this case — is reasonable force,” she said.
At the heart of the case is determining whether Schurr’s actions constitute “reasonable force,” she said.
Montague said a police officer can use reasonable force when the officer is making an arrest and the suspect fights back. Additionally, the officer can use reasonable force to prevent the suspect from fleeing.
Reasonable force, Montague said, is the “amount of force which an ordinarily prudent and intelligent person with the knowledge and in the situation of the arresting officer would have deemed necessary.”
If the force is deemed reasonable, Montague said it’s known as “law enforcement authority,” and the actions are justified and not a crime.
Attorneys for Lyoya’s family have said Schurr’s use of force was excessive and that he repeatedly failed to deescalate the situation. They have called for Schurr to be fired and charged.
A key part of this case is the struggle over the Taser, experts say. In the video showing the shooting, Schurr is heard yelling “drop the Taser, drop the Taser” at Lyoya before shooting and killing him.
The second expert News 8 spoke with, Lewis Langham, is a retired Michigan State Police detective lieutenant. He is now a professor emeritus at WMU-Cooley Law School.
“The Tasers are designed (where) under most circumstances you can fire them once or twice,” Langham said. “Even after that, as long as there’s a charged battery in the Taser, the Taser can be dry fired.”
Langham said if Lyoya was holding the Taser, the question is whether it was a threat to the officer. That’s why Langham said Becker may consider consulting the manufacturer of the Taser.
“The officer could be dry-stunned with the Taser and incapacitated long enough for if Patrick wanted to or decided to remove his firearm,” Langham said.
Becker said Wednesday that he and MSP expect to get forensic reports from the manufacturer of the Taser and the officer’s body camera this week or early next week.
Langham added Becker would likely need to know whether the Taser in the Lyoya case was designed to allow a dry stun.
“It would have to make contact with the skin,” he added. “The prongs that come out have already been ejected from the Taser. So the prongs aren’t the issue anymore. It’s whether or not the officer felt the possibility of great bodily harm or death (if) Patrick actually was able to push him off and stun him.”
Montague said that while consulting a Taser manufacturer is an option, from a prosecutor’s perspective the issue isn’t necessarily about how the Taser was working.
“What did the officer think at the time, in terms of whether or not it was a danger and a threat to him?” Montague explained.
Langham agreed that Becker may look to connect with use of force experts. But he also said Becker may contact those knowledgeable with ballistics to make sure the firearm was working properly.
“Because the prosecutor has to be prepared,” Langham said. “Was it a misfire, or was the trigger deliberately pulled? So they need a manufacturer of the firearm itself to examine that.”
Langham said that if Becker decides to charge Schurr, connecting with experts ahead of time would be beneficial.
“If they charge, and the officer’s arraigned, the officer’s entitled to a felony preliminary examination within 21 days of the arraignment,” Langham said. “Therefore the clock starts and you need to have people lined up. Whether or not the prosecutor would need to have those expert witnesses lined up to be able to testify at that preliminary examination, he would have to coordinate that with those expert witnesses if he needed their testimony.”
The same is true even if Becker decides not to charge Schurr.
“They still want some type of documentation to be able to explain to the general public at large why they are not charging,” Langham said.
He said he’s confident Becker will look at every aspect of the case before making a decision on charges, a process that takes time.
“Everyone wants this to be done right, whatever right happens to be,” Langham said. “Whatever the correct decision is, I’m sure the prosecutor wants to make sure they’ve done due diligence and looked at every angle they could before making a decision one way or another.”
“If they don’t charge, the community is going to insist upon why, and I think the prosecutor wants to be quite prepared to make a statement on that,” Langham added. “If there are in fact charges … it may not be murder or second-degree murder, it may be involuntary manslaughter type charges.”