The Walter Scott Case: Initial Impressions

Tags

Michael Slager, Police Officer, Walter Scott

I am old enough to remember the Rodney King affair firsthand. In fact, I was a police officer at the time. When I saw the video of the officers beating King, I quite spontaneously exclaimed: “those guys are toast.” I knew I was looking at a seconds-long video clip taken out of context with the complete encounter. I knew the video no one was seeing before the publicized clip might well have revealed absolute justification for the officer’s use of force, but the few seconds of video that became iconic were so inflammatory, so bad, particularly to the public uneducated in police use of force protocol and law, I knew those officers were going to be thrown to the wolves. Facts didn’t matter.

Now we have the Walter Scott shooting by North Charleston, South Carolina police officer Michael Slager. I’ve seen the approximately three minute video many times. Go here to Legal Insurrection to view the video.  I viewed it with the intention of providing a solid, second by second analysis for readers, the kind of analysis that is virtually lacking in the media. The video was obviously produced by a handheld smart phone, which is often shaky, and sometimes actually moving from place to place as the person holding it moves to get a better view.

I quickly realized that kind of second by second analysis is superfluous in this case.

Initially, the man holding the phone can be seen walking forward on a sidewalk with a 4’ chainlink fence on his right, between him and Slager and Scott. The view of the camera is downward and toward the fence. Shortly, he stops, brings the camera up, and Slager and Scott come into view. As Slager and Scott become visible, the phone briefly stabilizes and Scott, who has already turned, immediately begins to run from Slager toward the left.

There is an article on the ground a few feet in front of Slager that appears to be a Taser. It’s not possible to tell what, if anything, is in Scott’s hands, but he is clearly doing nothing but trying to flee from Slager, and he is not running very quickly. Any police officer in reasonable shape would have been able to easily run Scott down. As Scott begins to run, Slager immediately draws his handgun, and within seconds, begins to fire.

Unlike many police shootings where an officer fires multiple shots in a panic, Slager’s shots are clearly audible and evenly spaced. He is firing only relatively rapidly, and the shots do not blur together; there is time for them to be—if Slager is a practiced and accomplished shooter—aimed. It is easy to determine that Slager fires seven shots in a single string. He pauses for perhaps a second and fires one additional shot. He does not go to ready—lower the muzzle of his handgun–at any point. All of his shots are fired with his handgun pointed in, directly in line with the fleeing Scott.

As the shots are being fired, Scott jerks and stumbles slightly. Scott falls to his face, and from that point, I cannot detect any movement, but that is made more difficult by the moving and shaky smart phone. Slager holsters his handgun and walks, unhurriedly, the approximately 25 yards to Scott. As he walks, he is speaking into the radio microphone at his left shoulder. As he is approaching, he also twice orders Scott to put his hands behind his back. Sirens can be heard approaching in the background. He reaches Scott and once again orders him to put his hands behind his back, but Scott is unresponsive and Slager handcuffs him. Slager immediately trots out of the view of the camera, back toward where he stood when he shot Scott. The camera pans to briefly view Slager, and back, where another officer arrives and immediately begins to assess Scott as Slager again approaches him. As Slager walks by Scott’s right side, he stealthily drops something to the ground near Scott. It appears to be black, but I could not identify it due to the distance and the unsteady camera. Slager stands nearby, speaking to that officer, though their words can’t be heard. Soon, however, Slager reaches to the ground and picks something up, which he appears to put on his belt in a crossdraw position near his left hip. From that point, there is nothing visible on the ground near Scott’s right side.

Many right handed police officers wearing Tasers holster them in a crossdraw position near their left hip. This fact, and Slager’s motions, suggest that he dropped the Taser on the ground near Scott, but for some reason, picked it up again and holstered it. His motions with the possible Taser do not suggest that it had been fired. If so, there would have been two wires extending from it, unless Slager removed that cartridge prior to coming back into camera range after initially retrieving the Taser.

Only when the second officer—he is black–stands up and runs out of sight does Slager bend down and assess Slager’s carotid pulse. He does nothing else to help Scott or assess Scott’s condition.

As the person holding the camera is moving, he several times is heard to mutter “shit,” and “fucking abuse,” in rhythms and timbre that suggest he is black.

Unlike the Rodney King case, I’ve seen the entire video, and in this case, what happened prior to being able to see Scott and Slager matters little. Media accounts suggest the encounter began when Slager stopped Scott for a broken taillight. In is interesting that the encounter does not seem to be anywhere near a vehicle, but on a sidewalk and ultimately, a grassy area, but police reports reportedly suggest Scott ran from Slager, who chased him to the point where the confrontation began. Scott apparently had an extensive arrest record, though apparently not for overtly violent offenses.

At some point, Scott and Slager somehow got into a struggle over Slager’s Taser. I haven’t seen any definitive account of that, but by the time both men appeared on video, the Taser was on the ground and Scott was turning and running from Slager, who did not pursue him. This is potentially significant in that if the police reports are accurate, Slager was obviously able to catch a fleeing Scott only seconds or minutes earlier. Slager shows no signs of being physically unable to do it again.

Keep in mind that I am working only from media accounts, and regular readers know how inaccurate they can be, particularly when the police officer involved is white and the person shot is black, as is the case here. The “evil white cop murders unarmed black man” narrative is irresistible.

The Law:

South Carolina law is unremarkable where the use of deadly force is concerned. Deadly force is lawful if one reasonably believes they are facing the imminent threat of serious bodily injury or death. It is interesting that there is a specific law making the taking of a weapon from a law enforcement officer a crime.

Also important in this case is the U.S. Supreme Court’s 1985 Tennessee v. Garner decision. 

The court found a Tennessee statute allowing police to use deadly force to apprehend fleeing criminal unconstitutional:

The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such 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 physical injury to the officer or others. Pp. 7-22. [471 U.S. 1, 2]

(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment’s reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.

Analysis:

Again, remember that because of the racial dynamic involved, it would not be unreasonable to believe that media accounts—and that’s all I have at the moment—would purposely withhold or slant any information favorable to Officer Slager, just as they did in the Michael Brown case. It took substantial time to learn that Darren Wilson had been beaten by Michael Brown, who was trying to take away his handgun. There is, at the moment, no such information in this case. Slager has been charged with second degree murder, and has apparently already been fired by his law enforcement agency. To understand these actions, it’s necessary to analyze three phases of the encounter, the phase prior to Slager and Scott’s appearance on film, the phase of Scott’s flight, and the phase after Scott was shot and collapsed.

Pre-shooting: It is difficult to make definitive statements with the sketchy information currently available, however, it seems clear there was a struggle of some kind over Slager’s taser. I don’t know if Slager was able to discharge the Taser at Scott. I don’t know if Slager drew it, causing Scott to then grab it, or whether Scott attempted to take it from Slager’s holster, causing Slager to defend it, but there was apparently a struggle, and the Taser ended up on the ground a few feet from Slager’s feet. During that struggle, Slager would theoretically have been justified in using deadly force against Scott so long as it could be shown that Scott represented a credible and imminent threat of serious bodily injury or death. If he had his hands on the Taser trying to wrest it from Slager, or if he had effective control of it, a solid case for deadly danger to Slager could be made. Any police officer understands that if they are rendered helpless or unconscious by any means by an attacker, they are almost certainly going to be killed. If Slager drew his handgun during such a struggle and shot Scott, he would likely have been justified.

Flight and Shooting: As both men become visible on the video, the Taser is already on the ground and Scott has already turned and begun to run away from Slager, to the left. Slager calmly draws, aims, waits approximately two seconds, and equally calmly fires a well- spaced string of seven shots—they’re easy to count. He pauses perhaps a second, and fires an 8^th shot, and calmly holsters his handgun. Scott does not collapse until the 8^th shot has been fired.

Scott, again according to media accounts, was hit five times: thrice in the back, once in the upper buttocks, and once in the ear. Slager missed with three rounds. This too is significant in that police officers under great stress often miss every round they fire even at near muzzle contact distance. At the ranges at which Slager is firing, police routinely can’t hit the broad side of a barn, yet he was able to place five of eight shots more or less on target. Considering the control he exhibited in shooting, this is not particularly surprising, however, it would suggest that Slager is a well-practiced and experienced handgun shooter, and/or that he remains unusually cool under stress. The other possibility is that he really wasn’t under any significant stress.

Slager is not apparently frightened. He is not acting in a panic born of an imminent threat to life or limb. His movements are cool, calm, and measured. He does not shout. I can’t hear what—if anything he is saying—and his voice does not, therefore, raise in pitch an octave as is common in high stress situations. He does not—again, I can’t hear anything he might be saying at this point in the video—order Scott to stop. His defense attorneys will surely represent him as a man in fear of his life, but nothing on the video makes that obvious, perhaps not even plausible.

While I can’t see anything in Scott’s hands, there has been no suggesting thus far that he had a weapon, or anything that could have been mistaken for a weapon, of any kind. I could not see anything—other than the item Slager dropped—on the ground near Scott. He appears to have been unarmed, which, as at least some of the public learned in the Trayvon Martin and Michael Brown cases, often has no bearing whatever on whether deadly force was lawfully applied in such cases.

The problem for Slager is that because Scott was running away, and apparently posed no imminent threat to him, there was no reason to shoot him. The only exception is if Scott had said or done something to indicate to Slager that if he escaped he would pose an extraordinary threat to anyone he met if not immediately stopped, but then Slager would also need to demonstrate that the only means he had of stopping Scott was shooting him. Scott was no Olympic sprinter. Slager made no attempt to pursue him on foot, even though he apparently was able to do that successfully only minutes—perhaps seconds—earlier.

Some will be tempted to argue that shooting Scott eight times was somehow illegal. If Slager had lawful justification to shoot, it doesn’t matter how many rounds, or what caliber, were used to stop Scott. Slager could keep shooting until Scott was stopped.

Again, I don’t have all the facts, but based on what is currently known, and based on my observation of the video, Slager had no justification to shoot Scott. Shooting him in the back as he was running away, particularly in such a relaxed, calm manner, only makes Slager look even more culpable.

Post-Shooting: Slager calmly holsters his handgun and begins, almost leisurely, to walk toward Scott, who is not obviously moving. He even pauses a few seconds to complete his radio call, then he casually walks to Scott, ordering him to put his hands behind his back as he approaches. His voice is calm and unstressed. This too is unusual.

Normally, an officer involved in a shooting does not holster his handgun until he is absolutely certain that the person he had to shoot no longer represents a threat. His handgun will remain at least at ready—pointed toward the suspect with the muzzle below shoulder level—normally until another officer arrives and secures the suspect.

The prosecution in this case will argue that Slager did not behave normally because he never believed there was a deadly threat. He knew Scott was unarmed and wanted nothing more than to escape. He knew Scott was incapacitated or dead, probably before he fired his last shot, and knew he had nothing to fear from him, so he immediately holstered his gun, and took his time getting to Scott. Slager’s commands to Scott were nothing more than window dressing for any bystanders, something police officers are trained to do. Unfortunately for Slager, the video will tend to confirm this interpretation.

After handcuffing Scott, Slager trotted back to pick up the Taser, and rather than holstering it, he carried it in his right hand back to Scott. That’s visible in the video. Before he could reach Scott, however, the second officer arrived and began to tend to him. Scott stealthily dropped the Taser by Scott’s body, but soon picked it up and apparently holstered it.

This will not only convict Slager, but will increase the terms of his sentence. This looks exactly like an attempt to place a throw down weapon, to place a weapon Scott never had by his body to justify an unjustifiable shoot. While Slager will not have to testify, how could he possibly explain why he dropped it by Scott’s body and why he picked it back up? How could he explain why he didn’t holster it when he retrieved it, but did after he picked it off the ground by Scott’s body? If the second officer saw what Slager did—remember, I couldn’t hear, what the officers were saying to each other–and told him to pick it up, and he testifies to that there will be no defense, no explanation.

While it is undeniably true that there was little, or nothing, Slager could have done medically for Scott, his casual approach, and the fact that he did nothing to assess him, will not be points in his favor. His defense attorney will argue that the first thing he did after shooting was to notify the dispatcher of the shooting and call for an ambulance (I’m assuming he did that—any competent officer would) and that because the second officer was doing what he could medically, there was nothing else Slager could do, and that will likely be true, but Slager still will not look good.

Final Thoughts:

I can’t say often enough that at this stage I don’t have the all the facts. I’m making an analysis based on my knowledge, experience, and media accounts. I will, as always, make whatever alterations are necessary after more complete and accurate information becomes available.

What is unlikely to change is that there appears to be no justification for the shooting. The actions of Slager’s agency in firing him so quickly are likely unfortunate and far too fast. There is nothing to be lost and much to be gained by completing a professional, comprehensive investigation before taking any such action. I certainly hope this decision wasn’t made due to the racial dynamic involved. Was Slager fired in the hope that the town wouldn’t be burned down like Ferguson, MO? Was it done in the hope the racist Holder DOJ would leave them alone? If so, that’s a horrible precedent for all police officers everywhere. If they happen to shoot the wrong color person, they may very well be thrown under the bus before the last echoes of gunfire fade, and surely months before a competent investigation can be done.

That said, this does appear to be a classic bad shoot. Whatever mistakes Officer Slager ever might have made as a human being and police officer will surely be made known. Perhaps he was a bad cop, but if so, his former agency will have much explaining to do. Why was such a person still carrying a gun and badge? If he was a good cop, he has surely been abandoned with unbelievable and unnatural speed.

One must feel sorrow for Walter Scott and those that loved him, but there may be a tear to be shed for Michael Slager as well. He is likely to live every police officer’s worst nightmare. Prison is not a comforting place for police officers, and he may well find himself getting a worse sentence than he would otherwise experience because Walter Scott was black, and because the media and the Obama Administration will be highly likely to make maximum use of this situation.

The Federal Department of Justice will make the usual noises about investigating the case, but in the end, will likely have to admit there are no grounds for federal civil rights charges, much as they would like to abandon the Constitution and its due process protections to press them.

Darren Wilson was a good cop who did his job exactly as he should have. He lost his career, and likely, his freedom to live life in relative anonymity like most Americans. While Michael Slager may prove to have been a bad cop, or a good cop who made the worst mistake any cop could make, the lesson good police officers will likely learn is being any kind of cop just isn’t worth it.

If that becomes the case, we’re not going to like the kinds of people who do think it worth it.