An experienced plaintiff’s civil trial lawyer’s take on the South Carolina police shooting

In a previous post, I wondered whether Officer Slager might have a defense that he shot the fleeing suspect in the back multiple times because he feared for public safety. Now, Kyle McNew, an experienced plaintiff’s trial lawyer, gives us his thoughts in the context of  a similar case be brought as a civil suit.



It is a fascinating and informative read, and Kyle was kind enough to allow me to reprint it. Here it is:

I just read your post about the police shooting in South Carolina and whether Officer Slager could have a defense of having probable cause to believe that there was a threat of serious harm to others under Tennessee v. Garner.

A couple years back I handled the civil side of a police shooting case where my decedent was in a car with one of those windshield screens up. She was just sitting in her car in a parking lot, and apparently someone called in a report of a suspicious vehicle. A police officer approached her and there was some kind of exchange or argument. She started driving away and he started shooting. He claimed that his arm was caught in the window and that she was dragging him through the parking lot. We, unfortunately, did not have video of the incident, but we did have two eyewitnesses who said no, his arm was not caught in the window when he fired, he was just running alongside the car yelling at her to stop. She eventually pulled away from him and got out onto a street. He ran out onto the street and fired several more shots as she drove away from him. Several shots hit home, with one going through the back glass, through the chair, and killing her.

The Officer’s defense was essentially that the first shots were to protect himself from being dragged down the road with his arm caught in her window, and the second set of shots was to protect the public from this woman driving down the road with a screen blocking her windshield.

He was prosecuted criminally and convicted of manslaughter. We then sued the Officer and others in state court (not a snowball’s chance we were letting some qualified immunity happy federal judge anywhere near the case). The criminal case received a fair amount of publicity in the northern Virginia, DC suburb area, but it did not have any of the racial or class issues that are present in these more recent cases.

There were a ton of issues in our case that are outside the scope of the reason I am replying to your post about Officer Slager’s possible defense. But, as to that specific question, I always felt that the Officer in my case could have had had a solid point about the second set of shots. For reasons that remain unclear, my decedent was driving down a road in the middle of downtown with no ability to see where she was driving. The problem is that the Officer’s credibility was so destroyed by his lies about having his arm caught in the window when he fired the first shots that no one would have believed that he was truly concerned about the public when he fired the fatal shots. Instead, my opinion was always that this was simply a guy who got ticked that someone had the audacity to disobey his commands and started blim blamming away.

We conducted some informal focus groups on the case, and that’s what we consistently got. People weren’t terribly pleased with our decedent for disobeying a police officer, which might have factored into the damages award had the case gone to trial. But, on the liability question, people consistently indicated that they did not believe that this Officer was shooting because he was actually concerned about public safety.

We never got to trial, so I do not have any jury instructions or opinions on the question of whether a Tennessee v. Garner defense is objective or subjective. But my sense was always that it is probably technically objective because it flows from the concept of probable cause, which asks whether a reasonable officer under the circumstances would have believed X to be true. Here, X would be a threat of serious harm to others.

BUT, I think in practice it also has a subjective component. If the jurors believe that the officer’s claim of being in fear for his safety or the safety of others is just post hoc malarky, they will not accept the defense EVEN IF a reasonable officer could, in fact, have harbored such a fear under the circumstances.

So, in the Slager case, I don’t really buy that a reasonable officer could have legitimately feared for public safety because I assume that the object Slager retrieved and then dropped by Scott’s body was the taser, meaning Scott did not have the taser, and there was nothing to suggest Scott was otherwise armed or posed any more threat to the public than anyone else running down the street. But even if a reasonable officer could have feared for public safety under these circumstances, I don’t think a jury would buy it here because Slager’s credibility is so destroyed by the difference between what Slager said happened and what the video shows. No juror will believe that he was actually shooting out of fear for public safety instead of just being one of that small but, unfortunately, influential minority of police officers who cannot accept that sometimes people are jerks and disobey your commands, but that that does not justify shooting them.

In short, I’ve watched the video probably 15 times and I cannot for the life of me come up with a defense for this officer. Or, to put it another way, as a Plaintiff’s lawyer, I’d like my side of the case better than the other guy’s.

Thanks Kyle. By the way, I ignore the dig about qualified immunity and the federal courts only because you are right.


12 responses

  1. I’m interested in the qualified immunity comments. I prefer federal court rather than state when bringing civil rights/ excessive force claims. The federal courts seem to have more experience with these matters, and you seem to get more quality time.

  2. Since I’m really not expert on the law of this, how is there still a plausible question of qualified immunity after the officer has been criminally convicted for manslaughter?

    To be convicted for manslaughter, there has to be a finding, beyond a reasonable doubt, that the officer engaged in reckless behavior resulting in loss of life. If it’s proven (in a judicially noticeable fashion?) that recklessness existed, how can it be the case that reasonableness for qualified immunity exists? Aren’t recklessness and reasonableness mutually exclusive?

  3. Speaking of immunity, precisely where DO judges find it in the Constitution? If it is judge-made law, it is common law, and the Bill of Rights is a waiver. Jacobs v. United States, 290 U.S. 13 (1936). They hand it out like penny candy, and lavish it on themselves.

  4. Somehow, we need to come upt with a system where individual state actors are held responsible for their conduct. Theoretically, non-judicial elected officials should be able to do this, but they do not. Nor do the courts.

  5. It was refreshing to read the comments of someone with real world experience dealing with very similar issues and not have to endure the whiny, hand-wringing tone that often accompanies these things. I particularly found this statement to be reasonable, rational, and truthful: “No juror will believe that he was actually shooting out of fear for public safety instead of just being one of that small but, unfortunately, influential minority of police officers who cannot accept that sometimes people are jerks and disobey your commands, but that that does not justify shooting them.” In my humble opinion, that is the essence of these situations, and race and all that other “society-be-damned” stuff does not change it. I shall now crawl back under my rock . . . . .

  6. You won’t find it, because it isn’t there. “In order to protect your rights, we have to be able to run roughshod over them with impunity” doesn’t even qualify as sophistry.

  7. Everywhere else in the world, either the state actor is held personally liable, or the government, in respondeat superior. There is no coherent justification for immunity in either the law or common sense. Accountability breeds prudence.

    Jon Stewart did an amazing job of contrasting the teachers in Atlanta (who did the perpwalk) and Wall Street fraudsters (who bought off the DoJ, and didn’t). It is the Neil DeGrasse Tyson episode, and worth your time:

  8. Judge:
    The jury might be convinced that the police officer mistakenly, but reasonably, believed that the decedent had possession of his taser and was going to use it against him. For instance, go here:; or here:

  9. The last sentence is the kind of overly-broad comment that smacks of paranoid fantasy. Grow the hell up.

  10. One casual fling with a floozie is more than enough to destroy trust in a marriage. How many acts of misconduct by cops, judges, DAs, and one certain Secretary of State (Keystone XL, Russian uranium) are sufficient, in your [extreme sarcasm] sober adult opinion [/sarcasm], to justifiably shatter our trust in government?

    That was Judge K’s point in The Parable.

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