It’s rare to see a police officer on trial for killing someone in the line of duty, but for the past week and change, it’s been happening in two separate courtrooms, in two different states. Both cases center on shootings of unarmed black men that were captured on video and became national news. Regardless of how they turn out, they will become widely cited data points in the story of how the criminal justice system deals with violence in American policing. They will also be the first high-profile police shootings to be criminally adjudicated since the election of Donald Trump, whose well-documented affection for law enforcement and contempt for the Black Lives Matter movement are sure to inform his public reaction to any verdict that may come down.
In Ohio on Nov. 1, jurors heard opening statements in the trial of Ray Tensing, who was an officer for the University of Cincinnati campus police when he shot and killed Sam DuBose on July 19, 2015. Tensing had pulled DuBose over for driving without a license plate. According to an analysis of bodycam footage conducted by the university, DuBose started his car during the traffic stop and put it in drive after Tensing tried to open the driver’s side door. About two seconds later, after Tensing tried to reach into the car to pull the keys out of the ignition, he brought out his service weapon and shot DuBose in the head. Although the bodycam footage appears to show Tensing firing before the car started moving, the officer’s defense at trial has been that he’d pulled the trigger because DuBose was dragging him with his car. Tensing was indicted for murder 10 days after the shooting. As I write this, jurors are in their third day of deliberations and have just been sent back for more deliberations after informing the judge they are deadlocked.
The other ongoing trial is that of Michael Slager, who shot Walter Scott in the back on April 4, 2015 in North Charleston, South Carolina. Slager, who had pulled Scott over for a broken taillight, told investigators that Scott had struggled with him and grabbed his Taser. But when a video filmed by a bystander surfaced a few days after the shooting, it became clear that Slager had fired on Scott only after the 50-year-old had started running away. Slager’s first defense lawyer quit the case after seeing the video; the officer was promptly charged with murder. Even the police union he belonged to refused to support him, declining to pay his legal bills on the grounds that he had acted outside the bounds of his job. On Thursday, the Slager trial entered its sixth day of testimony.
At first glance, both the DuBose and Scott shootings seem to be open-and-shut cases of unacceptable, gratuitous, and illegal police violence. In both instances, video footage shows the exact moment when the officer decided to raise his gun and pull the trigger, and neither leaves much room for disagreement about whether the shooting was necessary. Tensing could have let DuBose drive away; Slager could have let Scott run. Both had already been identified, so they could have been apprehended later. Neither officer’s life was in jeopardy, and neither of them had any good reason to think otherwise.
It’s important to note that most police shootings—the vast majority of which don’t get covered by the national media—aren’t as clear cut as these two. For one thing, most of them don’t get caught on tape, making it difficult for outsiders to draw confident conclusions about what really happened. More importantly, as the Washington Post’s database of police shootings shows, when police officers use deadly force, their victims are typically armed with guns or knives. Even the cases that end up being embraced by activists and that develop into national stories often contain some element of ambiguity. In the Freddie Gray case, it wasn’t clear anyone made a conscious decision to injure Gray or cause his death. In the Michael Brown case, the Justice Department uncovered evidence that Brown was not running away with his hands up from the officer who shot him and that he had engaged in a struggle with him inside his squad car. Even Tamir Rice, the defenseless 12-year-old who was killed while playing at a park, was shot because he’d been brandishing a toy gun that had been specifically modified to look more realistic. In all these cases, a motivated observer can point to some aspect of the fact pattern and say, “Well…” With Scott and DuBose, it’s not merely hard to come up with a basis for justifying their deaths. It’s also hard to understand what the officers on the scene could have possibly been thinking.
But that doesn’t mean these two trials are going to end in murder convictions. For that to happen, jurors will have to decide that the actions taken by the police officers violated criminal laws that govern the use of deadly force. That will prove much more difficult than it sounds. As Saint Louis University researchers Chad Flanders and Joseph C. Welling make plain in a recent paper, neither South Carolina nor Ohio has formal laws on the books governing the use of deadly force by police officers. Instead, they both use interpretations of what’s known as the common law standard—a rule that says, basically, that police can use any amount of force, including deadly force, to “seize” a fleeing felon if necessary.
In Ohio, at least, there is case law that embraces the precedent set in the 1985 Supreme Court case Tennessee v. Garner, which established that deadly force cannot be used unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” In South Carolina, as William Freivogel explains in this immensely valuable article for St. Louis Public Radio, there’s much less clarity. A deeply confusing 2004 ruling by the South Carolina Supreme Court seemed to say, simultaneously, that police officers can use deadly force on any fleeing felon if necessary and that they can only do so when said felon poses a dangerous threat.
In an interview Friday, Michael J.Z. Mannheimer—a law professor at Northern Kentucky University and one of the sources for that St. Louis Public Radio article—told me the incoherent Sheppard v. State ruling makes it impossible to predict how the judge in the Slager case will explain the law to the jurors. “We’ve got very confused prosecutors, we’ve got very confused defense attorneys, and we’ve got very confused justices of the South Carolina Supreme Court,” Mannheimer said. “What the judge tells the jurors is often determined by what the lawyers think the judges should tell the jurors, because typically the judges will ask for proposed jury instructions from the prosecutors and the defense counsel. Sometimes the parties agree and sometimes they disagree and the judge has to decide. But if both the prosecutor and the defense counselor are confused about it, and the judge doesn’t catch it, you’re going to have an erroneous jury instruction.” Worse, he added: “We don’t even really know what ‘erroneous’ would mean because of this terrible opinion.”
Seth Stoughton, an assistant law professor at the University of South Carolina School of Law and a former police officer, told me in an email that the confusing South Carolina rule favors the police officer. “The prosecutor’s job is to prove a case beyond a reasonable doubt,” he wrote. “When there is no clear legal rule to follow, it’s easier for the jurors to be confused. That confusion can create reasonable doubts about whether the defendant’s actions fit the definition of a crime.”
So much for open and shut. For what it’s worth, Stoughton told me he believes straight-up murder convictions are unlikely in either case because of the difficulty of proving premeditation or malice, though he does think manslaughter verdicts are possible. Even then, the shakiness and graininess of the Tensing footage will likely work in favor of the defense. “I think a jury may view the video there as less definitive, which means they’ll be relying more on other sources of evidence (such as the defendant’s testimony and expert witnesses),” Stoughton wrote. “If that’s true, it all comes down to credibility—which witnesses do they believe?” He added: “If the jury disbelieves [Tensing’s] assertion that he was afraid, then I think it’s highly likely to convict. Even if the jury believes that he was, though, it will have to ask whether that [fear] was reasonable.”
We don’t know, at this point, how the 24 jurors who were selected for these trials are going to interpret the law or the facts of either case. What we do know is who the jurors are: four white women, six white men, and two black women in Cincinnati; six white men, five white women, and one black man in North Charleston. Maybe that racial makeup will matter, maybe it won’t. But if you’re expecting Ray Tensing and Michael Slager to be convicted, the ambiguity in the laws these jurors are tasked with applying makes it advisable to at least prepare for a different outcome.
