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Does officer who shot Walter Scott have a defense? State law there — like in Missouri — is confusing

The shooting of Walter Scott

The police killing of Walter Scott in South Carolina looks like an open and shut case of murder. But South Carolina, like Missouri and many other states, has confusing laws on police use of deadly force — laws that could provide Officer Michael Slager with a defense, experts say.

Because of outdated and conflicting law, an officer sometimes can justify shooting an unarmed suspect who has fought with the officer and fled. In short, an officer sometimes can get away with what may look like murder on the video screen.

If Slager had killed Scott in Missouri, he could have claimed under Missouri law that he had to shoot the fleeing felon to arrest him. That’s all that is required by Missouri’s statute. South Carolina’s laws are confusing enough that Slager might be able to make a similar argument there, experts say.

Stephen E. Henderson, an expert at the University of Oklahoma College of Law, likens the confusion in South Carolina to that in Missouri during the Ferguson grand jury last year.

“South Carolina law is unclear,” he wrote in an email. “So it's at least possible the courts would follow the common law rule for justification of law enforcement (the same rule that governs by statute in Missouri). And if they did, the officer has a plausible defense to state criminal charges. … It is certainly no slam dunk, but the argument can be made.”

The messy state of the law is a reminder that eight months after Michael Brown’s death, Missouri’s old law with its broad authorization of police force is still on the books. Prospects are dim for passage of reform bills in the Missouri Legislature.

Criminal standard different from civil

In the aftermath of the video of Slager shooting Scott in the back, media reported widely that the law governing police use of deadly force was laid down by the U.S. Supreme Court in the 1985 decision of Tennessee v. Garner. But that’s misleading.

In Garner, Memphis police had fatally shot Edward Garner, a 15-year-old African American, as he tried to tried to jump a fence to escape from a burglary. He had stolen $10 and a purse. The court ruled police could not use deadly force to seize a fleeing felon who is unarmed and non-dangerous.

It is true, experts say, that Garner determines the constitutional standard to be used in civil cases when a victim’s family claims a violation of civil rights and tries to collect damages.

But the murder charge against Slager is criminal, not civil. Garner does not automatically determine the standard for a criminal case when an officer is charged with killing a fleeing felon. States don’t have to make all unconstitutional police behavior a crime, notes Roger Goldman, a professor emeritus at Saint Louis University Law School.

That means each state can determine itself when the use of deadly force by police is justified and when it is criminal.

‘Any felony’ rule

The traditional rule for much of the 20th century was that police could use deadly force to apprehend a fleeing felon if the force was necessary to effect the capture. This is often referred to as the common law or “any felony” rule.

Garner rejected that. The high court concluded that police conducted an illegal seizure under the Fourth Amendment if they shot a fleeing felon who was unarmed and non-dangerous. But many states – like Missouri – did not change their laws to conform with Garner.

An authoritative study conducted five years after Garner found 22 states had the “any felony” rule at the time of the decision. Eighteen of them, including Missouri and South Carolina, failed to change their law to align with Garner. Four other states made the reform.

In Missouri things got complicated because the Missouri Supreme Court adopted jury instructions that followed Garner but contradicted the statute on deadly force. This was the source of confusion in the Ferguson grand jury.

St. Louis County Prosecuting Attorney Robert McCulloch’s prosecutors initially presented the grand jury with the broad state law permitting the use of force to effect the arrest of an unarmed fleeing felon. But they switched to the Garner standard at the last minute. That made it easier to indict Officer Darren Wilson for Brown’s killing, although the grand jury still decided not to do so.

Unclear in South Carolina

The law is confusing in South Carolina as well.

In Sheppard v. State in 2004, the South Carolina Supreme Court wrote:  “…a law enforcement officer may use whatever force is necessary to effect the arrest of a felon including deadly force, if necessary, to effect that arrest.”

That is a statement of the old common law rule that does not require a showing that the fleeing felon is dangerous to the officer or the public.

But a few sentences later, the court cited Garner for the proposition that, “(during felony arrest, if arresting officer has probable cause to believe suspect poses threat of serious physical harm, officer may prevent escape by using deadly force.)”

Michael J. Zydney Mannheimer, a law professor at Northern Kentucky, calls the Sheppard decision “inept.” He wrote a few days after the Scott killing that the “status of the law in S.C. is entirely unclear, in part because of the poorly written Sheppard case, which simultaneously states two inconsistent rules on the use of deadly force to effectuate an arrest.”

What’s in the officer’s mind?

Other South Carolina Supreme Court decisions further confuse the situation.

In a 1989 decision, the state supreme court said it would give the shooter in a self-defense situation the “right to act on appearances” that he was in danger, even if he wasn’t actually in danger.

“A defendant must show that he believed he was in imminent danger, not that he was actually in such danger, because he had the right to act on appearances…” (emphasis added.)

South Carolina courts that requires the prosecutor to prove beyond a reasonable doubt that the officer didn't believe he was in imminent danger.

So, if Slager can show he subjectively believed he was in danger, he could be acquitted even it is apparent that objectively he was not.

Slager also would be aided by another decision of the South Carolina courts that requires the prosecutor to prove beyond a reasonable doubt that the officer didn’t believe he was in imminent danger. Proving beyond a reasonable doubt what was in an officer’s mind makes the prosecutor’s job doubly hard, say the experts.

The South Carolina Supreme Court’s jury instruction also contains language giving the officer the benefit of the doubt. It states that a person claiming self-defense “does not have to show” he was “actually in danger. It is enough if the defendant (officer) believed” he was in imminent danger. The officer “has the right to act on appearances even though the defendant’s beliefs may have been mistaken.”

Criminal law experts say that taken together, the South Carolina decisions give police officers broader discretion to use deadly force than Garner provides.

This means that Slager’s lawyer can claim he had to fire to stop Scott, who arguably became a fleeing felon because he had allegedly wrestled with Slager over the Taser.

Slager’s potential defense is undercut, Henderson says, by the video that appears to show him trying to plant the Taser near Scott after the shooting.

The video also undercuts an argument that it was necessary for Slager to use deadly force to effect the arrest. Scott is moving away in a slow run and another officer is approaching around the time of the shots.

The bottom line, legal experts say, is that Slager could end up guilty of a lesser crime, like manslaughter.

Missouri law

When the legislative session began in Jefferson City, legislators filed half a dozen bills to update the Missouri law on deadly force. 

Only one of those bills has a chance of passage, and even that one has an uphill path.

SB 199, sponsored by Sen. Bob Dixon, R-Springfield and chair of the Senate Judiciary Committee, was put on the informal calendar last week. The bill provides that police can use deadly force if necessary to effect the arrest of a person who committed a felony "involving the infliction or threatened infliction of serious bodily injury."

In a case like the Scott shooting, the officer could claim that the struggle with Scott over the Taser involved a felony threatening infliction of serious bodily injury.

Similarly, in the Ferguson case, Michael Brown was considered to be a felon from the time he fought with Officer Darren Wilson over the gun at the police car. Under the Dixon bill, Wilson could have fired at Brown when Brown fled, if Wilson thought that was necessary to effect the arrest.

Dixon’s bill puts fewer restraints on police use of force than one proposed by Saint Louis University law professors Chad Flanders and Marcia McCormick earlier this year. Their proposal, based on the Model Penal Code, would allow deadly force only if the suspect used or threatened "deadly force."

So a suspect who threatened serious bodily injury – as Scott arguably did if he fought for the laser – could be shot under Dixon’s bill but not under the Flanders/McCormick proposal because Scott didn’t threaten deadly force.

Dixon’s bill also says an officer can use deadly force to shoot a fleeing suspect who "may endanger” his or others’ lives, while the Flanders/McCormick bill would require there to be a “substantial risk” that lives were endangered.

So, while Dixon’s law would restrict the police use of force more than the current statute, it would restrict it less than recommended by Flanders and McCormick.

Dixon’s office said the senator is not commenting on how his bill would affect situations such as the one in South Carolina. His office said the senator’s bill is likely to come up before the end of the session next month. But Marshall Griffin, the Jefferson City correspondent for St. Louis Public Radio, notes that the bill still hasn’t gone through the House, limiting its chances of passage.

William H. Freivogel is a professor in the Southern Illinois University's School of Journalism, a contributor to St. Louis Public Radio and publisher of the Gateway Journalism Review.