The Tulsa County Sheriff’s Office apparently did not follow its own policy requiring weapons testing after Reserve Deputy Robert Bates shot and killed Eric Harris last year, The Frontier has learned.
And, while Bates’ defense may involve similarities between his Taser and gun, neither prosecutors nor his own defense attorneys appear to be interested in testing the gun’s trigger pull.
Bates was carrying a .357 revolver not allowed by policy and his attorney, Clark Brewster, has described the gun’s trigger pull as “unbelievably light.” That has led to questions about whether Bates’ revolver had been modified to make it easier to discharge.
Bates’ trial on second-degree manslaughter is scheduled to begin at 1 p.m. Monday before District Judge Bill Musseman with jury selection.
Marq Lewis, founder of the group that led a grand jury petition drive after Bates’ shooting, said he believes Tulsa County prosecutors don’t want to know if Bates’ gun had a modified trigger. That could create liability for the county when it must defend the sheriff’s office in a civil lawsuit filed on behalf of Harris’ estate, he said.
“Them not wanting to do that speaks really big volumes about how they’re going to prosecute this case,” Lewis said. “I think they’re not looking at how important this is. Everything kept going back to the civil litigation.”
Marq Lewis, founder of We The People Oklahoma, speaks to reporters last year. Lewis’ group led a grand jury petition drive that ended in the ouster of then-Sheriff Stanley Glanz. DYLAN GOFORTH / The Frontier
District Attorney Steve Kunzweiler’s office declined a request by The Frontier for an interview for this story.
Brewster also did not respond to questions last week by The Frontier regarding Bates’ gun. However he told KTUL that Bates’ gun used in the shooting had been purchased from another owner.
To win a conviction, prosecutors must prove beyond a reasonable doubt that Bates was “culpably negligent” when he shot Harris April 2, 2015.
According to state law, “every killing of one human being by the act, procurement or culpable negligence of another, which … is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.”
Court cases have defined culpable negligence as “recklessly acting without reasonable caution and putting another person at risk of injury or death.”
If convicted, Bates faces up to four years in prison when he is sentenced by Musseman.
Bates, a 74-year-old insurance company executive, is a longtime friend and former campaign manager for former Sheriff Stanley Glanz. Bates’ daughter, Leslie McCrary, also holds a patronage job as a sheriff’s appraiser, as do Brewster’s wife and daughter.
Bates was acting as a volunteer reserve deputy when he shot Harris during an undercover gun sting. Harris, a felon who faced a long prison sentence, ran and he was tackled by several deputies near 1900 N. Harvard Ave.
Harris was on the ground and subdued by deputies when Bates walked up and shot him, a single .38-caliber bullet entering near Harris’ armpit. On the video of the shooting, Bates’ five-shot Airlite revolver is shown on the ground and Bates states: “Oh, I shot him. I’m sorry.”
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Though the shooting was inside Tulsa’s city limits, the sheriff’s office told Tulsa police not to respond. Bates did not give a formal statement about the shooting for four days, during which his attorney, Scott Wood, billed the county for work on Bates’ case.
In the statement, Bates says: “I never intended at that moment to use deadly force. I believed I was acting appropriately and in a reasonable manner by deploying my Taser.”
‘No records responsive’
TCSO policy contains a list of weapons that deputies, including reserves, are allowed to carry. Bates’ .357 revolver, which has a laser sight, was not on that list.
Reserves are also supposed to qualify at the firearms range on the gun they carry. Records show that did not occur in Bates’ case. In fact, supervisors raised concerns that Bates had not completed required training but was allowed to function as an advanced reserve deputy, making arrests and tagging along with the agency’s drug task force.
TCSO policy requires that weapons carried by deputies be inspected annually by the sheriff’s office to ensure they meet “proper specifications.” The policy also states that “anytime a weapon is discharged or used it will be inspected by a supervisor or armorer for its condition and serviceability.”
“If the use of the weapon is in the line of duty, a written report will be made, giving the results of the inspection,” the policy states.
When asked whether Bates’ gun was inspected annually and tested after the shooting as required, Deputy Justin Green referred questions to the district attorney’s office, which has declined comment.
The Frontier then requested all records related to testing of Bates’ gun used in the April 2, 2015 shooting. The Open Records Act states that agencies may not withhold records “because a public body or public official is using or has taken possession of such records for investigatory purposes.”
Casey Roebuck, a spokeswoman for Sheriff Vic Regalado, said in an email to The Frontier late Friday: “I’ve researched your records. It’s denied. No records responsive.”
Sheriff Vic Regalado has said he wants to ensure all TCSO policies are followed. A gun used in a fatal shooting last year still hasn’t been tested, despite policies requiring such tests. DYLAN GOFORTH / The Frontier
Lewis said the sheriff’s office under Glanz may not have followed its weapons testing policy after the shooting, but “there’s nothing that stops him (Regalado) from saying, ‘Hey, we’re going to test the gun.’ ”
“I think they don’t want to know the truth. I think they want to allow his (Bates’) excuse in the defense to be that. You could just see how all the evidence that was gathered came from you guys. It came from the media.”
Dan Smolen, an attorney representing Harris’ family in the civil suit, filed a motion in federal court to have Bates’ gun tested last week. The motion followed statements that Brewster made during a court hearing in which he described test firing Bates’ gun.
A federal magistrate denied the motion, refusing to order testing of the gun.
Smolen said the issue of whether the gun’s trigger has been modified is a “double-edged sword” for Bates and the county.
“It’s a non-tested, non-certified, non-approved weapon. Just him (Bates) using the gun itself can be argued it is culpable negligence on a criminal side and deliberate indifference on the civil side.”
However if tests found that the gun’s trigger pull is heavy, jurors would be less inclined to believe Bates confused his Taser and gun, he said.
Smolen agreed that Regalado, as the new sheriff, should follow the office’s policy and have the gun tested.
“For him not to have the gun tested violates his policy. The policy doesn’t have a time limit … You could test that gun right now. They’ve got possession of it.”
