Mimesis Law
22 April 2017

The Unassailable Position Of The Police, Or We Think You Can’t Touch This

December 9, 2016 (Fault Lines) – Last Tuesday I wrote about an officer-involved shooting near Chattanooga, and compared the public relations position of the police and the district attorney to the position of Confederate General Braxton Bragg on Missionary Ridge. When I wrote it, I never imagined that a perfect example of the attitude would pop up its head the same day.

You see, former North Charleston police officer Michael Slager was on trial for the murder of Walter Scott, an unarmed black man who was running away from Slager. The jury hung, 11 to 1 (for conviction) and the judge declared a mistrial. Now the officers at PoliceOne are commenting on the issue, and they are firmly convinced that they are in an unassailable position, just as Bragg was convinced.

They don’t understand the position of the community and, for the most part, don’t care. They also do not understand that 11 to 1 for conviction puts the prosecution in a strong position, not a weak one. Here are some of the comments from the PoliceOne crowd:

Scott did commit a violent felony. He fought with a police officer in an attempt to not do the right thing. He was wanted and chose to flee and fight.

Prior to Garner vs Tennessee, it was legal to shoot violent fleeing criminals.

A good day for Officer Slager! … I also find it ironical (or coincidental ) that the juries have been managing to ‘not’ find Police Officers ‘guilty’ of the homicides or man slaughters they are being charged with. … Possibly an indication of “political correctness OVERCHARGING”!! Stay Safe People! We are going to make America Great Again!!!

We’re cheering for you officer SLAGER.

At Police Magazine, the commentary is similar.

If you want less crime change the law to “yes it is okay to shoot a fleeing felon”

The video shows Officer Slager shooting the felon, but what happened before the video started? That pos was not trying to surrender. He brought it on himself.

COMPLY….DON’T DIE—–seems simple enough!

Granted, there are some who think that the shooting of Scott by Slager was not justified, but even those are careful in how they phrase their comment, like this one:

This is a tough case to defend. I hate to think of a brother officer as being guilty. It’s easy to see myself in the same situation. But the decision to start shooting is just not making sense to me.

Looking at the video is difficult. You see a struggle between Scott and Slager, you see Scott resisting arrest, but you don’t see Scott actively assaulting Slager. That’s important, because for Scott to be a felon, he would have had to “knowingly and willfully assault, beat, or wound,”[1] and he did not do that. Sure, he resisted, but without the assault on Slager, there is no felony, and certainly not a felony which would make the use of deadly force reasonable under Garner v. Tennessee.

This is common among police officers—overcharging, and here it is a blatant attempt to justify the shooting of an unarmed man who was running away. Slager fired eight shots at Scott at a distance of 17 feet to 37 feet. Slager’s original comments were that he feared for his life and that Scott had taken the taser from him. Slager reported that the officers performed CPR, however the video showed no effort to keep Scott alive by either officer. Slager’s first lawyer withdrew within hours of the release of the video.

While David Aylor has not specifically commented on the reason, citing attorney-client privilege, I can speculate on the reasons. The big one that I keep thinking of is that Slager lied to his attorney. Every smart lawyer gets a contract with a defendant, and almost all of them provide that the lawyer can withdraw if the client lies to the attorney.

To most observers, especially in the legal field, it appears that the district attorney will retry Slager and the odds are that he will obtain a conviction. The video is damning enough, but Slager is also a poor witness. Viewing his testimony, he simply does not appear creditable.

But none of those facts matter to the officers sitting on top of Missionary Ridge with General Bragg. They are convinced that they have the high ground, literally and morally, and that their position is unassailable. The idea that one has to comply with police orders to avoid being killed by those police officers is repugnant to the freedom guaranteed by the Constitution and the Bill of Rights, but that’s the position taken by officers.

These officers do not recognize the change happening in the United States. Until the Michael Brown shooting in Ferguson, Missouri, police officers were almost never indicted for officer-involved shootings. After Ferguson, the rate has tripled, largely due to two factors: 1) more video evidence, and 2) less trust of the police version of events.

Police officers don’t like this development. They still see their position as unassailable, and they don’t recognize that the increasing number of officers who face criminal charges means that the guys at the bottom of the hill are making their way towards the top.

[1] SC Code § 16-9-320 (2013).

4 Comments on this post.

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  • Ken
    9 December 2016 at 9:23 am - Reply

    Slager will likely get some witness training and practice before the next trial.
    That raining is something a civilian witness rarely if ever will get. It is even more unlikely that a defense attorney would give a civilian who had such evidence against them the time of day much less witness training and practice.

    • Greg Prickett
      9 December 2016 at 10:16 am - Reply

      Slager’s problem will take much more than some witness training.

  • stevie g
    10 December 2016 at 12:33 pm - Reply

    This seems to have been a clear case of jury nullification. To me, the overriding evidence was when Slager picked up his taser and then placed it near Scott. #smh

  • JohnM
    12 December 2016 at 4:16 pm - Reply

    Greg,

    Your article indicates that the the LEO community is heavily on the side of Slager. Is it completely one sided? Was the LEO who posted the “tough case to defend” comment receive any other support in replies or other comments with similar sentiments? Or did he stand alone?

    I would depressed if it 999,999 to 1.

    Thanks,
    -J