Military and Police

Mistrial in Case of Walter Scott Shooting

By T.B. Lefever:

During a time in our country where police officers are increasingly facing not only physical attacks, but assaults on their character, ethics, and morals, the support we do retain from the citizens we serve is very much appreciated.  With that said, the headline announcing the mistrial of North Charleston Police Officer Michael Slager is a head scratcher.

On April 4, 2015, Officer Michael Slager pulled over Walter Scott for a broken tag light behind a pawn shop in South Carolina.  At some point a struggle ensued and the camera of a bystander began to roll.  You can see a taser get slapped out of the hand of the officer by the deceased.  Mr. Scott then turns to run with taser wires trailing him from behind.  Scott makes it about 10-15 feet before he is dropped with five of eight fired gun shots to the back by the officer, who appears to  make the decision to draw his weapon and fire instead of giving chase on foot.

I can remember the day the video went viral and became the crown jewel of the national news cycle, because I was working that night.  Prior to taking the street, we watched the footage and then discussed it in roll call.  The opinion of the room was pretty much a unanimous, “This officer is screwed.”  No one at the office that day said that they thought Slager woke up that morning and “planned to kill a black guy,” but no one said that Slager’s use of deadly force was justified, either.  All agreed that his level of incompetence in that situation to pull the trigger as an unarmed man ran from him could not go unpunished.  Even worse, the video capturing Slager dropping the taser onto Mr. Scott after the shooting brought shame on every police officer working the street nationwide.

We have seen classic race-baiting following white officer involved shootings shift towards outrage and misplaced racial anger when even a black or Latino officer shoots a black suspect in 2016.  The Black Lives Matter narrative has become “it’s all racist somehow.”  But while the rest of the high profile officer involved shootings this year appeared to be the results of reasonably perceived life or death circumstances playing out, the Walter Scott shooting lacks that gray area or “fog of war” dynamic from my perspective as a police officer that’s had suspects push, punch, kick, and run. In such situations, the thought of drawing my gun and shooting never entered my mind.

In the months following, we continued the discussion as the Southern States Police Benevolent Association, a police union that most of the officers I work with pay and rely on for legal defense insurance, refused to represent and separated itself from Ofc. Slager, who was a paying member.

The options for the jury were Murder, Voluntary Manslaughter, and acquittal.  As a prosecutor, I would have gone with Voluntary Manslaughter, although it appears the D.A. attempted to overcharge with Murder because of the action Slager took to “stage the crime scene.”  Overcharging a police officer is very dangerous territory for prosecution, as there is always the chance of there being a juror with unwavering support of law enforcement for the difficult job that they do.  For this kind of juror, I’d imagine accepting an officer unnecessarily killed a suspect must be like accepting daddy betrayed mommy by having an extramarital affair when they were a kid.  It’s the kind of thing they just can’t accept and come to terms with about a person they respect and admire.  Aside from this, there is the case law.

In 1985, The US Supreme Court ruled on Tennessee v. Garner to set the precedent that “deadly force…may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious bodily harm to the officer or others.”  In 1989, the court expanded on this definition in Graham v. Connor to include: “objective reasonableness” standard—not subjective as to what the officer’s intent might have been—and it must be judged from the perspective of a reasonable officer at the scene—and its calculus must embody the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

Graham v. Connor gave extra protections to police officers who should find themselves in an officer involved shooting against “probable cause” being determined by the inexperienced and untrained citizen’s perspective.  In more modern application, I also believe it protects officers from being railroaded in the court room as a result of the railroading they’ve received in the court of public opinion as CNN, MSNBC, and your local 5 o’clock news dictate what narrative is disseminated to greater society.

Officers are placed in extraordinary circumstances as a fundamental job function, and therefore should be judged by extraordinary standards when chaos occurs.  The problem with Slager/Scott is that based on Graham v. Conor, Slager is still not justified.  The “objective reasonableness” standard postulates that reasonableness is determined through the perspective of what any reasonable officer would do.  Reasonable police officers do not view shooting an unarmed person suspected of non-violent crimes in the back as he runs away.  If this type of shooting were considered reasonable by police officers, there would be several Slager/Scott style shootings around the country every day.  Suspects run. It’s a relatively routine part of the job.  The reasonable officer in this situation gives chase on foot, radios for backup, and effects the arrest with non-lethal force.  If a life or death struggle occurs that the officer cannot win at this point, then it can then be considered reasonable that the officer is in total fear of his safety and must use deadly force.

As for staging the crime scene by picking up the taser and throwing it next to Mr. Scott’s body, I do not buy Ofc. Slager’s testimony that he was accounting for his weapons.  All officer involved shootings are to be treated as homicide investigations.  Destroying the crime scene is not standard procedure.  The action was either grossly negligent or a blatant attempt to create evidence for a false narrative.

I do not write this piece to throw a fellow officer under the bus.  I don’t write it to take responsibility off of the shoulders of the deceased, either.  Tragically, Michael Scott is dead.  Michael Scott would not be dead if he complied with the officer throughout their interaction.  I will always urge the public to comply with police officers because, like all human beings, order is better maintained in a calm setting. When you introduce chaos, you put yourself and the officer at risk of what could happen as a result.

My main reason for writing this article is because the incident carries us backwards as a society.  The case of Walter Scott’s death and mistrial does far more to soil the image of police officers and the justice system in our nation than the incidents involving Michael Brown, Alton Sterling, Philando Castile, or Keith Lamont Scott because it gives undue credence to the ugly and largely untrue narrative pushed by Black Lives Matter, a group that considers the shooting itself to be “evidence” of racist officers running around fantasizing about killing black Americans; and the mistrial as evidence of a justice system that does not value black lives.  In a case that appears cut and dry by even fellow police officers such as this one, a mistrial is the type of thing that could really garner some support for BLM that they might not have otherwise had, as they will undoubtedly seize the opportunity to rally the base and expand.  Regardless of identity politics, we police officers have to be held to Graham v. Connor.  I trust that Ofc. Slager will be held to that standard in the retrial.

T.B. Lefever is an OpsLens Contributor and active police officer in the Metro-Atlanta area. Throughout his career, Lefever has served as a SWAT Hostage Negotiator, a member of the Crime Suppression Unit, a School Resource Officer, and a Uniformed Patrol Officer. He has a BA in Criminal Justice and Sociology from Rutgers University.

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