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Next Post offers an analysis of an increasingly controversial case, in which Spokane Deputy Brian Hirzel Sheriff shot Wayne Scott Creach. The theory is sound—when a cop tells you to do something, you do it. The facts are less clear, especially as there were no witnesses and Creach isn’t saying anything anymore to anyone ever . . .

[Deputy] Hirzel said he was writing up a collision report at about 11:07 p.m. when he saw the shirtless Creach approaching with a gun in his right hand and a flashlight in his left. Though no witnesses heard him, Hirzel said he ordered Creach five or six times to drop the gun. He said Creach replied that he didn’t have to and instead put the .45-caliber, semi-automatic pistol in his back waistband.

Hirzel said he ordered Creach to the ground, but the older man refused, and the deputy struck Creach in the leg with his baton using a backhand swing. Hirzel said Creach, 74, reached for his gun and Hirzel fired when he saw the butt of the weapon.

Medical and forensic tests could find no sign of Hirzel’s baton strike, according to the investigative report released Thursday.

[Lawyer Jeffry] Finer believes Hirzel’s use of the baton might muddy the legal waters somewhat, although another legal expert disagrees.

Finer said case law backed Hirzel in ordering Creach to drop the weapon, but that the law may have shifted back to Creach if the baton use is later deemed excessive force.

“These things happen rapidly. At one point the officer gives a reasonable order that has to be complied with. But if the officer follows that up with unreasonable use of force, then it shifts back to the person or detainee who then has the right to defend himself,” Finer said. “You don’t have the right to fight with an officer. But you do have the right to protect yourself from an officer using unreasonable force.”

But John Strait, a professor of legal ethics at Seattle University School of Law, said Finer is “flat wrong.”

“You don’t have the right of self-defense under that case even if the police officer is completely illegal and using way excessive force,” Strait said.

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