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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