A plausible defense for Officer Slager?

Based upon a video gone viral, a white South Carolina police officer has been charged with shooting and killing a fleeing black suspect. The video that shows a police officer gunning down a fleeing suspect is both stunning, and, at least facially, damning. The suspect is shot in the back. Any claim the officer had a legitimate fear for his life seems like an excuse if you focus on the moment he pulled the trigger eight times.

Those of you with more experience than I have in these type of cases, could help inform me and others about an important but seeming overlooked question. Let me explain.

Take the account of what happened as reported in the New York Times as the facts. They are:

The shooting unfolded after Officer Slager stopped the driver of a Mercedes-Benz with a broken taillight, according to police reports. Mr. Scott ran away, and Officer Slager chased him into a grassy lot that abuts a muffler shop. He fired his Taser, an electronic stun gun, but it did not stop Mr. Scott, according to police reports.

Moments after the struggle, Officer Slager reported on his radio: “Shots fired and the subject is down. He took my Taser,” according to police reports.

But the video, which was taken by a bystander and provided to The New York Times by the Scott family’s lawyer, presents a different account. The video begins in the vacant lot, apparently moments after Officer Slager fired his Taser. Wires, which carry the electrical current from the stun gun, appear to be extending from Mr. Scott’s body as the two men tussle and Mr. Scott turns to run.

Something — it is not clear whether it is the stun gun — is either tossed or knocked to the ground behind the two men, and Officer Slager draws his gun, the video shows. When the officer fires, Mr. Scott appears to be 15 to 20 feet away and fleeing. He falls after the last of eight shots.

The officer then runs back toward where the initial scuffle occurred and picks something up off the ground. Moments later, he drops an object near Mr. Scott’s body, the video shows.

 MICHAEL S. SCHMIDT and MATT APUZZO, South Carolina Officer Is Charged With Murder in Black Man’s Death, New York Times (April 7, 2015),

Does Officer Slager have an arguable defense that he shot Mr. Scott out of concern for the public safety? Focus on the “fact” that Scott resisted arrest, had been shot once with a Taser, the Taser shot failed to subdue the subject, the subject tried to reach for the officer’s Taser, and began to run away. Doesn’t the following rule apply:  “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm . . .  to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1 (1985).

I would especially like to know whether this standard is subjective or objective. It would be great to see an actual criminal jury instruction where the shooting of a fleeing subject ostensibly to protect the public was used as a defense.

Educate me please!

All the best.


55 responses

  1. Focusing only on potential civil liability for the shooting (I am not a criminal defense lawyer), I wince whenever I try to parse the current standards as “subjective vs. objective”. As you have no doubt struggled with yourself in 1983 suits, the current jurisprudence on qualified immunity is a mess (and that’s generous). For example, there is the one line of cases that asks “could any reasonable officer agree with the decision.”

    Answering your specific question, a number of cases post-Garner have sought to clarify what constitutes legitimate “fear for public safety”. I am pretty sure that the general consensus is that the fleeing person has to have a dangerous instrument and be threatening immediate lethal harm to identifiable third-parties. Many of the cases concern shooting drivers of fleeing cars, and those cases tend to turn on whether it was reasonable to believe the driver would use the car to cause serious injury or death.

    In this case, even if the victim had taken the Taser (and it doesn’t look like he had) I don’t think a Taser is sufficiently dangerous to justify the use of deadly force unless he is literally pointing it at an officer who has no backup.

  2. Pingback: But For Video: In The Back, Again (Update) | Simple Justice

  3. Tased over a broken tail light? Shot in the back and killed for running away? No weapon or other ostensible threat to anyone? Is there a defense for the police officer?


  4. How is “current jurisprudence on qualified immunity a mess” as to objectivity vs. subjectivity? It’s clearly an objective standard: would a reasonable officer have known the action was unconstitutional–just as you say. See also Carroll v. Carman, 574 U.S. __ (2014), Slip. Op. at 3-4 (“‘A right is clearly established only if its contours are sufficiently clear that “a reasonable official would understand that what he is doing violates that right.’” (quoting Anderson v. Creighton, 483 U. S. 635, 640 (1987))).

  5. Looking up SC’s model jury instructions I find the following (pg 196-197) :



    That passage contains a reference to Garner as a footnote.

    I don’t know how much weight the “arrest for a felony” component has, but it would seem to be a problem for officer Slager, as the broken tail light was not a felony.

  6. Judge, once again your candor is refreshing if devoid of reassurance that you can ever be neutral. Not that I mind anyone rushing to the defense of someone accused, but you so obviously do that – and obviously reflexively – only when the accused is law enforcement.

    I’ll ask you to think about the less immediate consequences of judges seeing their role as a monolithic back-up to law enforcement, even in extreme cases like this: aren’t you inviting lawless behavior against other police officers? If a significant number of people think that police officers can essentially murder them with impunity because our judiciary is hopelessly biased in their favor, isn’t that an extremely dangerous situation for police officers?

    I don’t relish any of this, but it seems like we’re reaching a critical mass of viral videos that are threatening to seriously damage the social fabric. I think authoritarian responses aggravate the situation.

  7. The felony requirement comes from Tennessee v. Garner, 471 U.S. 1 (1985) where the officer shot an escaping felon, not an escaping misdemeanant. But the Supreme Court created a rule that did not make the lawfulness of deadly force depend on whether the suspect was a felon, rather than a misdemeanant. This is the rule: “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Id. at 11. Indeed, the Court explicitly rejected “the assumption that a felon is more dangerous than a misdemeanant.” Id. at 14.

    And the Circuit courts appear, based on five minutes of research, to have rejected an argument that Garner does not apply equally to misdemeanants as to felons. See, e.g., Ludwig v. Anderson, 54 F.3d 465, 471 n.5 (8th Cir. 1995) (“[T]he felony-misdemeanor distinction is no longer controlling . . . .” (citing Garner, 471 U.S. at 11-15, 105 S. Ct. at 1701-03)); Chew v. Gates, 27 F.3d 1432, 1454 (9th Cir. 1994) (“[T]he critical factor in determining when the use of deadly force is warranted is not whether the law classifies the suspect’s crime as a felony or as a misdemeanor, but whether the suspect poses a significant threat of harm to others.”); Fraire v. City of Arlington, 957 F.3d 1268, 1276 n.29 (5th Cir. 1992) (“The important distinction in Garner is not whether the suspect is suspected of committing a felony or a misdemeanor, but whether he is dangerous or benign.”).

    TLDR: I do not think the felony/misdemeanor distinction would hold up. The question is whether the suspect posed a threat.

  8. Any objective test for reasonableness has a subjective component — what is the information known to the defendant.

    From the currently available information, the victim had an active warrant for failing to pay child support. It is unclear if that warrant is for a felony or misdemeanor. If for a misdemeanor, the officer has to fall back on garden variety self-defense. Whether the officer reasonably believed that the victim had his taser (even if the taser had actually fallen to the ground) and whether the victim possessing a taser would reasonably create a fear sufficient to permit the officer to use deadly force would be jury issues.

    Alternatively, I have heard suggestions that the officer might instead defend based on sudden passion. I would assume that the officer would claim that something happened during the encounter that caused him to first tase the victim and then shoot the victim that — even if it did not rise to the higher level of self-defense — did provoke the officer to shoot the victim.

  9. Police departments MUST have Early Warning Systems in place to identify officer who have anger management (or other) mental health issues. Get body cameras NOW.

  10. Exactly right. Cops have been getting away with murder for years. Anyone who has spent time in district and superior courts knows this. Prosecutors, judges, juries so respect and fear the blue uniform (not to mention the police unions) that truth is an outlier in almost all cases of police brutality, murder, mayhem, evidence planting, etc. Had there not been a citizen filming this incident (brave soul — I kept wondering if Slager would turn on him) it would have been an open and shut case, and Slager would have a desk job for a few weeks while there was an “investigation” by Internal Affairs. Instead we see an execution taking place before our eyes.

    To RGK’s question, of course there will be a vigorous defense. I predict a bargain to invol mans and suspended sentence. No one wants to take this one before a jury.

  11. There could be only one possible defense of this shooting and that is if the officer, after stopping this individual, heard back via radio an “F-Frank” warning of a suspected felon he had stopped. Even that would be a thin, fraying thread of an excuse. Why not call for backup? Why not chase him on foot? Why not wait for him to show up at his home? Why not do any number of things rather than killing this guy? As an ex-cop, I find myself sickened.

  12. reasonableness test is should know, the negligence standard, and imposes a duty to investigate, where investigation is not involved actors knowledge stock is controlling subject to issues of willful blindness. Imperfect self defense and other diminished responsibility partial defense do use a somewhat subjective in considering personal factors in response. Trend started with famous HofL decision in Champion.

  13. There you go. In the subjective “reasonable man” theory, the conduct of officer Slager would be compared to that of a reasonably well-trained officer under similar circumstances. To whit: “When presented with a suspect trying to escape custody, the officer should give chase (Slager could easily outrun the slow-moving, 55-year-old suspect). If the fleeing suspect is a known felon or fugitive and escape is imminent, the officer should verbally warn the suspect and *may* fire a warning shot into the air. The officer should immediately call for backup to flood the area with officers and a K-9 (if available) to help with the search. Officers should respond to the LKA…” etc. All this before resorting to deadly force.

    Clearly Slager doesn’t stand up to a subjective standard.

  14. JMRJ,

    I am sorry that I left that impression. I have previously explained why I have a tendency to believe cops, recognizing that I must be aware of and curb such bias. But, in this case, I really was simply seeking an answer to a question and nothing more.

    All the best.


  15. This doesn’t address the technical points, but here’s a good reason why it’s not defensible: The comments from the denizens at PoliceOne and other highly-restrictive communication nodes full of current and former LE* are, by a large majority, in favor of the murder charge. That’s tantamount to strolling into an off-the-highway strip club at 3:00 A.M. only to find a proper cotillion in process.

    *OK, it’s just a Google group. Shut up.

  16. You did NOT leave that impression. Rather, your critics have huge chips on their shoulders about law enforcement and are perhaps too quick to condemn. In this instance one can reasonably assume that the system will work effectively to convict the cop of a very serious crime. His days of freedom are over.

  17. Just going by all the instructions that I have seen on self-defense and defense of others and defense of property. None of them expressly state a duty to investigate and merely use the phrase reasonably believed which in my mind has both a partially subjective component — what did the person believe — and a partially objective component — was that belief reasonable under the circumstances at the time that the defendant acted.

  18. Surveying the comments, I see a lot of legal reasoning. Let’s try to look at it from the point of view of the real world:

    The man was running away. He was not armed. (From the video, there’s next to no chance that he actually took the officer’s Taser. Even less chance if he had been shot with it.)

    Even if he had the Taser, did he pose a risk of sufficiently serious physical harm to justify shooting him in the back and killing him? I say no. If you disagree, I suggest you look on YouTube for videos of people whom the police have tased over and over again.

    It seems to me that the last issue–how much danger must there be to justify a police killing–is one that is almost never analyzed in any detail.

    (Finally, I can’t resist asking what would happen if the deceased were white and the police officer black.)

  19. If you have body cameras, who has a right to access that video under state sunshine/FOIA laws and under what circumstances? Be careful what privacy you might be invading in your quest to hold police accountable.

  20. Good point. It might depend on how the FOIA law is drafted. In some state’s the video doesn’t have to be released pending an active criminal investigation.

  21. From ‘Homicide: Life on the Streets’: “For homicide detectives, however, a justified police shooting means only that there was no criminal intent behind the officer’s actions and that at the time he used deadly force the officer genuinely believed himself or others to be in serious danger. From a legal standpoint, this is a hole large enough for the proverbial truck…”

  22. I do not think we are in disagreement, when no investigation is involved knowledge stock of actor is is used but knowledge must be used reasonably. Belief is a different matter from knowledge and must be reasonable for complete defense. More subjective factors enter in where imperfect defenses diminish culpability. For example in imperfect self defense producing manslaughter in diminution in murder. May be being too professorial. Retirement leaves me with lecture notes and no audience.

  23. MOK You are an optimist, years ago we had a very similar case in Omaha, jury aquited as I recall making frightening Black teenager a defense in Douglas County.Do not think I have a chip on my shoulder about law enforcement, 2 generations of cops before family was lead astray by law school.. Not sure a subjective fear for public safety unaccompanied by evidence of danger would be a common reaction to this case.

  24. Judge:
    As I have stated here in the past, both dashboard AND body cameras for all law enforcement personnel are arguably the best means by which to capture the raw data necessary to subsequently understand these incidents (this is true especially when one considers that, in this instance, it was a third party, rather than law enforcement, who just happened to capture this camera). I concede that there is a danger in the broadcasting of sensational video images which might skew the public perception of these events, cf. the Rodney King tape, as well as potential issues surrounding who may have access to the video itself. Nonetheless, the police and the general public are probably better off with this information than without it.

  25. Understood. I was really reacting to MarcoD’s overly-zealous comment that “Cops have been getting away with murder for years.” That is BS. Do cops make mistakes and sometimes get the benefit of the doubt? Yes, you bet. But, out and out murder? Those cases are far and few between in my humble opinion. Plus, let us not forget that almost all of these damn cases start out with a citizen getting crossways with a cop who has a gun. Things escalate, too often for dumb reasons, and then we end up with people in the streets shouting or worse.

  26. Quite possible, though rather circular (if fleeing is a felony, why the need to specify felony arrest flights)?

    More to the point of your original question, I agree with SHG’s analysis that it is both subjective (the officer has to in fact fear for his or others’ safety) and objective (that fear has to be objectively reasonable).

    In this case, there is not a plausible case that at the time of the shots, that a reasonable person in the officer’s shoes would fear for anyone’s safety. The man was running through an empty lot, towards nobody, unarmed.

  27. Judge, thanks for pointing out the Garner case. It’s clear to me from watching the video and knowing that the cop initially lied to cover his tracks, that the deceased posed no danger to him or society in general.

  28. Why do you refer to “the “fact” that Scott resisted arrest”? Why not the “fact” that he was running toward a cache of small arms, or the “fact” that the Mercedes was stolen, or any number of other made-up “facts” that might wrongly slant the story Slager’s way?

    There is no basis to believe that Scott resisted arrest. Maybe, if you ignore 2014, you could argue that, in general if an officer tases someone, there’s at least a decent probability that that person was resisting arrest. It’s not proof, but it’s evidence. Maybe. But even that tenuous generalization is of no help here. We don’t know much about Slager, but we know enough to know that the fact that he tased Scott has no relevance to the question whether Scott was resisting arrest.

    Scott was fleeing a violent bully–I don’t think “psychopath” is too strong a word. You would have to make up a lot of facts to even conjure up a really weak defense. Which is fine, I guess, but … why?

  29. MOK. Do you doubt that had there not been a videographer present and filming, Officer Slager would be, at worst, sitting at a desk for a week or two before he got his Glock back? Do you doubt that similar events occur and have occurred with some regularity in the US? If it helps, I can reduce the charge to “getting away with manslaughter for years.” I agree, things escalate for dumb reasons. Yes, it’s stupid to run from a cop, or quickly reach for your license at night, or turn suddenly when you’re being frisked, or open the glove compartment, or refuse to get out of the vehicle, or get out of the vehicle too quickly, or talk back, or not answer the question. All of which can and have gotten people killed, especially, it must be said, black people.

  30. MOK, I submit the following. 105 police killings of civilians from one month, August, 2014. Please read the brief reports of each one and tell me there isn’t an epidemic of police killing drunks, schizophrenics, the homeless, bystanders, etc. etc. I don’t claim to know how many of these were justifiable homicides, but I know damn well that at least some were not.


  31. Officer Slager can, of course, argue whatever he wants. If one believes that Scott did “assault, beat or wound an officer while the accused was resisting a lawful arrest . . .” which is doubtful based on the video, then you have the requisite felony. Running away is most certainly not a felony.

    “In order to invoke the defense of justifiable killing in apprehending a fleeing felon, appellant at a minimum must show that he had certain information that a felony had been committed, § 17–13–10(b), and he used reasonable means to effect the arrest.” State v. Cooney, 320 S.C. 107, 111, 463 S.E.2d 597, 599 (1995) (internal citation omitted).

    That’s the key in this case for a Garner defense, that Scott was actually a fleeing felon. I don’t see the underlying felony, and I certainly do not see Scott assault, beat, or wound Slager. Without that underlying felony, the fleeing felon rule is not relevant.

    As someone else noted above, the unscientific results from PoliceOne are overwhelmingly to condemn the officer, with some calling him a POS and that he deserves prison. I concur. As a former police officer and firearms/deadly force instructor, I see no justification at all for the shooting.

    Slager, in my view, murdered Scott, and now he has to answer for it. He needs to be tried and convicted, and then sentenced to the maximum possible punishment, pour encourager les autres.

  32. Random “justice” is the new thing.

    Like random disaster, random rescue, and random loss of control to predicaments:

    Describing the murder charges brought against a white South Carolina police officer who was filmed shooting an unarmed black man as an encouraging step in the right direction, the American populace reported Wednesday they were hopeful that future victims of police abuse would have an equally random chance of receiving justice. “The number of law enforcement officers who have shot unarmed civilians and gone free over the past year has been extremely discouraging, but the fact that this policeman was arrested so swiftly shows that there can be justice for victims so long as a bystander is nearby, has a camera phone on them, captures the whole interaction, and several dozen other circumstances play out in the precise sequence,” said North Charleston, SC resident Jenine Williams, echoing the sentiments of millions of Americans who told reporters they have faith that, as long as a fair-minded eyewitness happens to be passing by at the exact right time; has the inclination to stop and film; an unobstructed view; enough battery life and memory on their phone; a steady hand; the forethought to start filming an interaction with the police before it escalates into violence; is close enough to get detailed footage, but far enough away to avoid being shot themselves or seen by the officer and potentially having their phone confiscated; and it is daytime, then justice would certainly be served.”

    (Nation Hopeful There Will Be Equally Random Chance Of Justice For Future Victims).

  33. When QI is framed as “arguable probable cause”, which is something lesser than “actual probable cause”, it becomes a subjective test; particularly because the entire probable cause analysis turns on what the arresting officer knew at the time the decision to arrest was made.

    The muddle is even murkier when discussing QI in the force context. “Reasonable and necessary force” is not excessive; but is there is a zone of force that is determined after the fact to have not been “reasonable”, yet the officer would nevertheless enjoy QI? If so, then there is force that is objectively unreasonable (e.g. Excessive) yet subjectively reasonable enough that the officer is immune. If there is no such distinction, then the QI inquiry collapses into the 4th Amend. excessiveness inquiry. But no one has ever suggested that QI doesn’t exist in force cases.

  34. I understand that the dashboard camera video from the officer’s cruiser will be released today. Where there was a shooting–fatal or not–and the department had video, why did it not react publicly for two days afterward, until the incriminating video went viral? If the dashboard cam is inconclusive, or even tends to support the officer’s version of events, that might be understandable. But if it tends to support the criminal charge, it may be damning—and not just to him.

  35. Take your anger elsewhere. Use of words like “epidemic” speaks of zealotry and and an agenda. Tell me about the “epidemic” of senseless gang killings of “civilians” on the streets of our major cities and then maybe you’ll have a cause. Plus, I am just damn sick and tired of the race, race, race, card being thrown down at every opportunity.

  36. Remember the old one about people who live in glass houses?

    Is it a fact that the number of African-Americans who are killed by the police is far out of proportion to their representation in the general population? Yes, I believe there is. Are many of those killings questionable, if not suspect? Again, I believe so. Is anger justified by unnecessary deaths such as those of Michael Brown, Eric Garner and Walter Scott? Yes. Even if the acts of the police involved were defensible legally, those men did not have to die. At best–and it is a long stretch–those officers were dumb, dumb, dumb.

    As for playing the race card, every time I hear that said, it is an excuse to keep from changing a society that has consistently treated African-Americans far worse than it has treated whites.

  37. Well, Judge, I appreciate the response, and that we all have biases we need to check and sometimes we need help checking them.

    For what it’s worth, in my opinion the answer to your question is not terribly difficult. Practically any police shooting that is colorably in the course of an ‘investigation’ or arrest can be spun into legitimacy because that’s the way the SCOTUS has it rigged. Yet it’s the wrong question. It has to be. You know that because when you see a video of an overweight, middle aged, unarmed man fleeing on foot at slow speed being shot in the back – and to death – further discussion of the wrongfulness of the conduct is just embarrassing. If the law doesn’t recognize the obvious we’re in terrible trouble.

    From there what legal box you put it in – murder, manslaughter, negligent homicide – can be debated. But an approach where this somehow becomes a ‘justifiable’ homicide in advance – and therefore not wrongful at all – is almost emblematic of the law’s failure, which is why these incidents seem to be increasingly generating civil unrest.

    Leaving aside the SCOTUS contortions and using the traditional justification criteria is useful, though. There has been some discussion of the “subjective v. objective” elements of self-defense or justification. Traditionally, the justification defense had a subjective component: did the defendant actually believe there was a threat to him or someone else? That belief does not have to be ‘reasonable’; that is, the defendant can be entirely mistaken about the existence of the actual threat, but as long as he subjectively believed it he could still be justified.

    But there is also an objective component: the force used must be reasonable in view of the threat perceived. Thus, if the threat I perceive is that the decedent is going to throw a cream pie in my face, I am not justified in pulling out my 9 mm and shooting him 5 times to death. I would be justified in grabbing him and trying to prevent him from throwing the pie, though, and that would be true even if I was mistaken in perceiving that he was going to throw the cream pie at me.

    See the difference?

    And on this traditional analysis, this is where Slager’s effort at a justification defense would (or should) fail. Regardless of the threat he subjectively perceived, whether correctly or not, the use of force was plainly disproportionate as an objective matter.

    One caveat being: this is based on seeing the vid. There could be facts and circumstances not portrayed on the vid that might change the calculus, and we have to remain open to that.

    You’re not the only one that has biases that might need checking.

  38. Yes, yes, yes, feelings of collective guilt by “a society” is required for the actions of individual human beings making huge mistakes or acting with bad intent.

  39. You miss the point completely. It’s not feelings of collective guilt or remorse that are important. It is changes in society’s attitudes and changes in the behavior of its agents that are needed.

  40. The fact expertise is taken into account does not make a standard subjective and in this instance the standard is not set by police unlike in medical cases. Rather professional training is a circumstances as in admiralty cases on captains.

  41. We have different views of the world. I see people. You see colors. Let’s leave it at that.

  42. “The relevant, dispositive inquiry in determining whether
    a right is clearly established is whether it would be clear to a
    reasonable officer that his conduct was unlawful in the
    situation he confronted.” Saucier, 533 U.S. at 202.

  43. This is a wonderful discussion of relevant cases and an analysis of the legal arguments for what happened in this incident, and it’s as hollow as a bamboo fishing rod. We have the most intricate justice system in the history of mankind, and if it doesn’t exist to promote the greater welfare by distributing justice as warranted then we might as well use magic eight balls. Mr. Scott didn’t deserve to die, and Officer Slagle operated callously in meriting out the death.

    I wouldn’t worry too much, however, as there will be another video in a week or so of another shocking police killing to push this one back into the arcane legal stadiums where all the case law can become the center of the show again.

  44. At this website’s April 12 post, entitled “This and That,” I, a non-lawyer (albeit one with a law degree), submitted a question about this shooting of Walter Scott by Michael Slager. I explained that the question was one I’d posted at another website, where two self-identified lawyers have now replied to it.

    In response to my post at “This and That,” MarcosD directed me to the present thread, in which, as we see above, he is a participant. I have found this thread very helpful.

    In case it will be of interest to you, I will now post a follow-up, which I also posted at the other website, where it, too, has been replied to by the two lawyers. It involves a hypothetical inspired by evidence that seems to me to be emerging in this case of the encounter between Slager and Scott. Here goes:

    Let’s suppose that Michael Slager, in response to a simple and direct question why he shot Walter Scott, says something like the following:

    “I’d chased him, I’d tussled with him, I’d tasered him. He’d run, I’d caught up with him again, and we’d ended up wrestling on the ground. We got upright. I tasered him a second time, he grabbed my taser. I grabbed his arm and struggled to hold onto him. I told him I’d shoot him if he were not to stop struggling; and as I was drawing my gun, he broke away. I knew it was not safe for me to tangle with him again; I knew there were nearby buildings with cars in employee parking lots and that other officers were converging on the scene and might be soon arriving. I felt he was a danger to anyone he might encounter in his continuation of his flight; and on the basis of my training, I felt I had not only the authority but the duty to stop him, with deadly force. I fired my gun at him until his flight was ended, when he was brought down.”

    Let’s suppose, in addition, that all the other evidence comports with that account, matches it so closely that there’s no reason to doubt a word of it; but that the law turns out to be that, no, unless Slager saw, say, some specific “innocent bystander” in the path of the fleeing Scott, he (Slager) did not have the authority to fire at Scott. Slager, according to the law, should simply have used his radio to give other officers, en route to the scene, a description of the path Scott was taking.

    If we suppose all of that, is Slager–who believed that what he was doing was his duty, who had no criminal intent whatsoever–guilty of criminal homicide?

  45. Given the parameters of your question – which are very favorable to the officer – my humble opinion is that criminal liability would be questionable. Meaning there could be legitimate arguments either way. Also, criminally negligent homicide would be the most appropriate, probably the maximum, charge.

    Still a terrible incident, of course.

  46. A good defense, except it requires putting Slager on as the only person to voice it since there were (as far as we know) no sympathetic witnesses or further video to corroborate. That would take brave counsel, to subject Slager to a mean cross. A reasonably good pros would pick him to shreds. My money, as I said earlier, is on a bargain to invol mansl.

  47. Thank you for your reply, JMRJ. Very helpful. In case you’re interested, one of the two lawyers at the other website assessed my hypothetical rather as you did: a close call. The other lawyer answered my question—whether Slager would be guilty of criminal homicide—with a single word: Yes.

    In my reply below, to MarcosD, who has also responded to my hypothetical, I’ll include links that provide some helpful information as to what happened between Slager and Scott. Of course, the host of the present website will be free to delete all the links, should he feel I’m presuming on his bandwidth; but I’ll present them on the chance that readers of the present thread will find them interesting.

    Thanks again. A great help to me.

  48. MarcosD –

    Thank you for your very-helpful reply. I’m pleased you thought my hypothetical statement from Slager “[a] good defense”; but really, it was simply assembled from information that seems to me to be emerging (though I filled in or arranged some things—taser facts, for example—that are not yet clear to me).

    As I said in my reply above, to JMRJ, I’ll now present links to helpful information about the encounter between Slager and Scott. I’ll do so with the full knowledge that the host of the present website might promptly delete them, because they’ll seem a waste or misuse of the website’s bandwidth. Here goes:

    1 – https://www.youtube.com/watch?v=glsGDw8f6ns&feature=youtu.be This is a thirteen-minute video clip in which the bystander video has been combined with police radio and with dashcam video from two police cars (that of Slager and that of an officer who arrives after the shooting). Though it has many visual gaps, it is a coherent presentation of the encounter between Slager and Scott, plus the shooting’s aftermath.

    2 — https://theconservativetreehouse.files.wordpress.com/2015/04/walter-scott-map-2.jpg This is a satellite view on which the geography of the encounter has been mapped. It is also seen at the opening of the thirteen-minute video, linked above.

    3 — https://theconservativetreehouse.files.wordpress.com/2015/04/walter-scott-upper-hand.jpg This, I believe, is a very-blurry frame extracted from the bystander video, recorded by Feidin Santana. As you will see, it seems to show Slager and Scott on the ground together, at or near the spot whence Scott bolted from Slager. I think it’s from about eleven or twelve seconds before the moment at which the bystander camera comes into proper position on Slager and Scott (just as Scott bolts). Very blurry, as I say, but the green shirt is Scott’s. (Santana, the bystander, has said he saw Slager and Scott on the ground. In the original video, this frame is almost impossible to see and is, I think, sideways.)

    4 — https://theconservativetreehouse.files.wordpress.com/2015/04/walter-scott-taser-lead.jpg Another frame from the bystander video. Slager looks to be getting his gun into firing position as Scott is heading off. Taser wire is hanging from the area of Scott’s arm and comes down along his leg.

    5 — https://theconservativetreehouse.files.wordpress.com/2015/04/walter-scott-tazer-leads.png Subsequent frame from the bystander video. The taser wire, which is somehow connected to Scott or wrapped around his foot/leg, is now drawn taut, between Slager and him, as Scott is continuing away and Slager is just about into firing position.

    6 — https://www.youtube.com/watch?v=mYFg-g430Ow This is a very-brief bit of audio, extracted from the bystander video recording, I think. In the thirteen-minute video above (Link 1), it is heard at 4:43-4:44, around four seconds before Slager fires his first shot. In this one-minute-long YouTube post, it is repeated several times—and maybe even slowed down a bit a few times; but identifying the voice and determining what is said are difficult, if not impossible.

    7 — http://www.dailymail.co.uk/video/news/video-1174432/New-dashcam-video-shows-Walter-Scott-scene-new-angle.html This is the second of the two dashcam videos incorporated into the thirteen-minute video at Link 1, above. As you will see, Feidin Santana, who recorded the bystander video, is highlighted at 00:13 (as the arriving police car is moving along the roadway beside the fence) and at 00:34 (after the police car has made its U-turn and come down along the altercation path). I present this so you’ll be able to see (1) that the area from which Santana recorded his video is not at all far from the spot where the shot Scott fell and (2) Santana would seem to be in plain view of Slager and other officers near the felled Scott. That has struck me personally as important with respect to the moments, in the bystander video, in which Slager retrieves something from the struggle spot and then lets something drop to the ground near Scott. Because the bystander himself is right there, visible to all, it seems to me unlikely that the bystander video “caught” Slager doing something nefarious (planting evidence), as if the bystander had been recording from a hidden vantage.

    8 — https://www.youtube.com/watch?v=QEzYcrq3A38 This is Feidin Santana’s bystander video, which brought the Slager-Scott encounter to world attention. At 1:35 and 1:45, Santana himself is heard editorializing, under his breath. “F***in’ abuse,” “F***in’ abuse, man,” seems to me to be what he is saying, though my hearing is weak. I mention this only because I imagine it would relate to the evenhandedness of whatever eyewitness testimony Santana might be called to offer.

    That’s it. Thank you again.

  49. Pingback: An experienced plaintiff’s civil trial lawyer’s take on the South Carolina police shooting « Hercules and the umpire.

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