Nick Krieger (@nckrieger):
Just a short note on the recent video (which has now gone viral) of the shooting of 50-year-old motorist Walter Scott in North Charleston, South Carolina. Officer Michael Slager of the North Charleston police department has now been charged with murder under South Carolina law. The video clearly depicts Slager shooting Scott multiple times in the back with a semiautomatic pistol as Scott runs away from him.
When the police shoot a suspect, it constitutes a "seizure" under the Fourth Amendment. The United States Supreme Court has held that an officer may not shoot an unarmed fleeing felon in the back unless the officer has probable cause to believe that the suspect poses an immediate threat of death or serious bodily injury to the officer or others. Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985). A state statute purporting to authorize police officers to stop all fleeing felons through the use of deadly force is unconstitutional on its face. Id. At this point, it is unclear whether Scott committed any crime or actually attempted to take Slager's taser as Slager claims. However, we do know for certain that Scott was unarmed and running away from Slager at the time he was shot.
Some police shootings are perfectly justified. For example, a suspect might be aiming a gun directly at police officers and threatening to shoot them. In other cases, suspects might be actively shooting at people or generally acting in such a way as to cause death or serious bodily injury. In these instances, the police are justified in using deadly force to seize the suspects.
But once a suspect is seized and no longer a threat (having been neutralized by the application of force) the common law would seem to impose upon the officer a duty to timely summon emergency medical assistance. This is particularly true when it is apparent that the individual, although completely incapacitated by the gunshots or other lethal force, is still gasping for air.
And lest there be any doubt, the type of police behavior exhibited in this case is not unique to North Charleston, South Carolina. Police shootings with similar facts have taken place in Michigan as well.
During my ten years as a Michigan attorney, I've worked on four civil cases in which a Michigan law enforcement officer shot a citizen. In each case, the citizen died of his or her wounds. A couple of the shootings were justified; two raised fact questions for the jury. None of the victims was armed with a gun. In none of the cases did the officer timely call for emergency medical assistance. In three of the cases, the medical examiner testified that the victim would have had at least a 50 percent chance of survival if medical attention had been promptly administered.
Once the perceived threat has been neutralized, a police officer has a legal and ethical responsibility to summon medical help. After all, the purpose of the shooting is not to kill the suspect—it is merely to stop the suspect from inflicting serious injury on others. Once the suspect is incapacitated, and necessarily unable to inflict such injuries on others, the police officer must do what he or she can to save the suspect's life.
Most police shootings are not caught on video. Therefore, we generally do not see the callousness exhibited by Officer Slager in this case. Often, a police officer's claim to have provided medical assistance following a shooting cannot be rebutted because there is no photographic or video evidence and other police eyewitnesses are disinclined to testify against their fellow officer.
But in this case, we all saw what happened. Slager stood above Scott's body and essentially watched him die—doing little, if anything, to help him.
When an unarmed citizen dies after being shot by the police, it isn't just a tragic accident. My experience teaches me that it's planned that way. Just something to think about.