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.

Kyle

Kyle

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.

RGK

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.

RGK

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