Wednesday, 15 April 2015

Is murder an appropriate charge for a cop who shot a man in the back?                              

I and millions of other TV viewers saw the images taken by a bystander of a North Charleston, Carolina cop (Michael T. Slager) shooting Walter L Scott, an unarmed black man in the back while he was running from the cop. They also saw the cop then walk back to the location where he fired his gun from and then pick up his Taser and walk back to the man who was lying in his belly and who was either dead then or or dying and drop it near the man’s body. If it wasn’t for the bystander’s video, it is conceivable that the officer would claim that he shot his victim in self defence. However, he would have a hard time coming up with that defence since the man was shot in the back and from a distance as there were no powder burns on the man’s clothing.

Slager was arrested, charged with murder and then he was fired from the North Charleston Police Department. At the time of this writing, he is still in jail without bond.

The question that comes to the fore is this. Should the charge against this cop be first degree murder or second degree murder?                                                                                

The most serious murder charge a defendant can face is first degree murder, commonly known as premeditated murder. But any killing, even accidental that occurs during the commission of a felony (such as robbery or arson etc) also may be charged as first degree murder in most states, including North Carolina. Under North Carolina's first degree murder laws, convicted individuals may be sentenced to life in prison or even death by lethal injection.

First degree murder is causing the death of another person in one of the following means: by means of a weapon of mass destruction; by poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing; In the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon.

I have underlined two of the means. Did Slager willfully, deliberately and with premeditation shoot Scott to death?  I don’t think so. He was shooting at Scott to stop him from running away. Did he commit a felony or make an attempt to commit a felony by using his gun? Admittedly shooting a person in the back is in itself a felony but the law actually refers to using a weapon to commit a crime such as a burglary or robbery etc.

First degree murder defendants may simply argue that the prosecution has not proved all elements of a first degree murder charge typically that the defendant killed willfully, deliberately and with premeditation. Though the defendant may support such an argument with evidence, he or she is not required to do so, as proof of all elements of the crime falls on the shoulders of the prosecution.

A defendant arguing self defense must show that the killing resulted from a reasonable use of force to resist a reasonable fear of death or bodily harm. That defence won’t apply in Slager’s case since Scott was running away from him.

Certain killings by law enforcement and other public officers qualify as justified homicides. If an officer kills someone in the exercise of duty and without an unlawful intent, recklessness or negligence, that killing generally does not constitute murder, let alone first degree murder.

That defence wouldn’t be available to Slager since him shooting a man in the back as many times that Slager shot Scott just to stop him from running away is doing so with an unlawful intent.  Shooting one’s gun eight times at someone running away, someone who isn’t a present danger to anyone in the immediate area is unlawful.

In State v. Jones, a case heard in South Carolina, the defendant, Jones driving while impaired by alcohol and drugs, recklessly collided with another vehicle and killed two of its occupants in their car. Jones was convicted of two counts of first-degree felony murder and sentenced to life imprisonment without parole. That decision was based on the killings of the two men during the felonies of assault with a deadly weapon (his car).

The North Carolina Supreme Court ruled that the defendant was improperly convicted of the two counts of first-degree felony murder because the underlying felonies—felonious assaults—were only committed through culpable negligence. The court stated that a defendant must purposely resolve to commit the underlying felony under the felony murder theory of first-degree murder which in that case, Jones didn’t.

In my respectful opinion, I seriously doubt that Slager will be facing a first degree murder when he goes to trial. It would be impossible for the prosecutor to prove that it was Slager’s intention to murder Scott since there was no motive that would benefit the officer financially or in revenge by shooting Scott in his back since his real motive was to stop Scott from running away from him. This then leaves a possible second degree murder being laid.

In North Carolina, to convict someone of second degree murder, the prosecutor must prove that malice was necessary to prove second degree murder that is based on an inherently dangerous act or omission, done in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.

There is no doubt in my mind that when Slagger shot Scott to death by shooting at his back while Scott was running from him, his act was uncalled for, unjustified and done in a reckless manner and disregard for Scott’s life.

However, it appears from that law that the prosecutor must also prove that Slagger shot Scott to death because the officer was bent on creating mischief. Governed by state law, criminal mischief is committed when a perpetrator, having no right to do so nor any reasonable ground to believe that he/she has such right, intentionally injures another person. The word “mischief” can apply in criminal assault cases because it denotes an injury or harm caused by a person to another person. 

According to North Carolina law, a person killing another when the killing was committed in heat of passion could be charged with voluntary manslaughter. But that really appeals to extreme anger when two people are fighting one another. This wouldn’t apply to a defence for Slager since he shot a man who was running away from him.                  

It is ironic when you think about it. Had Scott not bolted out of his car and tried to escape from Slager, he would be alive today. Further, he mistakenly presumed that because he was behind in almost $7,500 in child support payments that there was a warrant for his arrest. In actual act, there wasn’t a warrant for his arrest. Minutes later, Officer Slager would have let him go on his way.

In San Jose, California on February 17, 2004, plainclothes officers were attempting to serve a warrant for a drug-related parole violation on David Gonzales. Unfortunately, 43-year-old Rodolfo Cardenas, a father of five, had the misfortune of being in the wrong place at the wrong time. The officers saw Cardenas and assumed he was David Gonzales, the man they were looking for and when they pointed their guns at Cardenas,  he became frightened  so he then fled first in his vehicle, then on foot but he was shot in the back and killed. Dorothy Duckett, a 78-year-old neighbor, told the San Jose Mercury News that when Cardenas was running away, he had his hands in the air and was yelling, “Don’t shoot.” Michael Walker, the California Bureau of Narcotics Enforcement officer who fired the fatal shot, was charged with voluntary manslaughter but was acquitted by a San Jose jury in 2005

Paul Bates, age 73, a white volunteer sheriff's deputy in Tulsa County, Oklahoma on April 2, 2015, shot and killed a black man who was on the ground being arrested. Law enforcement people initially said that the volunteer deputy had mistaken his own handgun for a Taser while trying to subdue the man and bring him into custody. The victim, Eric Harris after being shot screamed, “He shot me.” A deputy replied, “You fucking ran. Shut the fuck up.” Then the victim complained that he was having difficulty breathing. In the video of the shooting, a deputy was heard telling the man, “Fuck your breath.”

Officers Hymon and Wright in the State of Tennessee were responding to a burglary call when Hymon spotted Garner, an unarmed 15-year-old, by a fence in the backyard of the home in question. After Hymon ordered Garner to halt, the teenager tried to climb the fence. In response, the officer shot him fatally in the head. A federal district court ruled that the shooting was justified under a Tennessee statute—the law said that once a police officer voices intent to arrest a suspect, “the officer may use all the necessary means to affect the arrest.” Garner's father appealed and the case ended up in the Supreme Court, which ruled the Tennessee statute unconstitutional and the killing unjustified. Justice Byron White wrote for the majority: “It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” 

I honestly believe that Slager will be convicted of second degree murder. Now you will want to know what the minimum and maximum sentence for second degree murder in North Carolina is. It is 94 months (7 years and 10 months) to 484 months (40 years and 3 months) depending on prior record of convictions.

That shooting in North Carolina wasn’t the first time a citizens has been killed by police officers.

Officer Livoti choked to death 29-year-old Anthony Baez in a case that would later be featured in a PBS documentary titled Every Mother's Son. After their football struck his patrol car, Livoti had ordered Baez and his brother to leave the area. When the brothers refused, Livoti attempted an arrest. After Baez allegedly resisted, the officer administered the choke hold that ended his life. Livoti, who had been accused of brutality 11 times over 11 years, was charged with criminally negligent homicide, but found not guilty during a state trial in October 1996. He was fired the following year, however, after a judge ruled his choke hold illegal. In June 1998, a federal jury sentenced him to 7.5 years in prison for violating Baez's civil rights, and the Baez family received a $3 million settlement from the city later that year. In 2003, two more cops were fired for giving false testimony in Livoti’s defense.

Amadou Diallo, an unarmed, 23-year-old immigrant from Guinea, was killed in the vestibule of his own building when four white police officers fired 41 shots, striking him 19 times. Diallo had just returned home from his job as a street vendor at 12:44 a.m. when he was confronted by the plainclothes officers. The officers later said he matched the description of a rape suspect, and that they mistakenly believed he was reaching for a gun. (He was pulling out his wallet.) Three of the officers had been involved in previous shootings, including one that led to the death of another black civilian in 1997. The four cops were acquitted of all charges, prompting citywide protests. They were not fired, either, but lost permission to carry a weapon—although one of the officers eventually had his carrying privilege restored. In 2004, Diallo's family received a $3 million settlement from the city.

Early on New Year's Day, BART transit officers responding to reports of fighting on a train detained Oscar Grant, 22, and several other men on the platform at Fruitvale Station. In an incident captured on cell phone cameras, Officer Mehserle pulled out his gun and fatally shot Grant, who was face down on the platform at the time. Mehserle later testified that he thought he was reaching for his Taser while trying to put handcuffs on Grant, who resisted. A jury found Mehserle guilty of involuntary manslaughter and sentenced him to two years in jail. He was released after serving 11 months at the Los Angeles County Jail.

Sammy Yatim, an 18-year-old Toronto man, was shot eight times and missed once by 30-year-old Toronto Police Service officer James Forcillo who was standing very close to the sidewalk while the victim was at the inside entrance of the streetcar. Yatim had previously brandished a three-inch knife and exposed himself while the streetcar was in motion. After being shot and lying on his belly, another officer who got inside the streetcar from another entrance then he Tasered Yatim on his back. He was later pronounced dead at St. Michael's Hospital. The incident was video recorded by a bystander and footage of it was released for public viewing. On August 19, 2013, James Forcillo was charged with second-degree murder. On July 30, 2014, he was additionally charged with attempted murder. He is currently awaiting trial.

Narcotics officers who kill innocent people in the war on drugs often don’t even face suspensions, let alone criminal charges. But the conduct of three Atlanta police officers in the killing of 92-year-old Kathryn Johnston was so unscrupulous that all three faced criminal charges.

On November 21, 2006, plainclothes officers Jason R. Smith, Gregg Junnier and Arthur Tesler carried out a no-knock drug raid on Johnston’s Atlanta home based on bad information from an informant/marijuana dealer named Alex White. When they broke in, Johnston (who lived alone in a high-crime area of the city and kept a gun in her house for protection) assumed she was being the victim of a home invasion and fired a shot. But a lot more shooting was done by the officers: a total of 39 shots were fired, several of which hit her. And while Johnston was lying on the floor dying, Smith handcuffed her. An investigation revealed that after Johnston’s death, a major cover-up was attempted, including planting bags of marijuana in her house and trying to bully White into lying and saying that Johnston was selling crack cocaine. Smith, Junnier and Tesler faced a variety of charges from both the federal government and the state of Georgia. Smith and Junnier both pled guilty to charges of voluntary manslaughter; Smith also pled guilty to perjury and admitted he planted the marijuana in Johnston’s house. And all three of them pled guilty to federal charges of conspiracy to violate her civil rights. In a civil suit, Johnston’s family was awarded a $490,000 settlement.

On January 4, 2008, narcotics officer Joseph Chavalia shot and killed 26-year-old Tarika Wilson in Lima, Ohio. Wilson, a single mother, had been romantically involved with a suspected drug dealer named Anthony Terry (who later pled guilty to selling drugs). When Chavalia and other narcotics officers raided the house where Wilson was living, Terry was nowhere to be found. Wilson, however, was in one of the bedrooms; when Chavalia fired shots into that bedroom, she was killed. Wilson’s one-year-old child was also shot but survived, although one of his fingers needed to be amputated. Chavalia later said he thought shots were coming from that bedroom, but the fact that he killed an unarmed woman holding a baby was inexcusable, especially in light of the fact that Wilson, according to her sister Tania Wilson, was not involved in drug sales herself. Using a SWAT team to go after a small-time drug dealer is bad police work. Although Chavalia was acquitted of criminal charges, Wilson’s family was awarded $2.5 million in 2010 in a civil lawsuit against the city of Lima.

On August 9, 1999, 64-year-old Mario Paz was in his home in Southern California when up to 20 narcotics officers for the city of El Monte conducted a no-knock raid and used a grenade during the attack. Some of the officers claimed that Paz appeared to be going for a gun, and they fatally shot him twice in the back in front of his wife. Although Paz was a gun owner, he never shot at the officers. No drugs were found in the house, and Bill Ankeny (El Monte’s assistant police chief) later acknowledged that there was never any evidence of the Paz family being involved in drug dealing. The decision to raid the Paz home, according to Ankeny, was made after narcotics officers found some bills and Department of Motor Vehicle records containing the family’s address among the possessions of a drug suspect named Marcos Beltrán. Back in the 1980s, Beltrán had lived next door to the Paz family and at one point, they agreed to let Beltrán receive mail in their home. So in other words, El Monte officers conducted a commando-style raid on the Paz home based on the fact that a drug suspect (who was out on bail and hadn’t been convicted) had received some mail in their home during the previous decade.

The Rev. Accelyne Williams was no drug dealer. In fact, the 75-year-old minister was a substance abuse counselor in Boston and had a long history of doing good work in that city’s African-American community. On March 25, 1994, Williams’ efforts to help a substance abuser led to his death. That substance abuser was a police informant who gave Boston narcotics officers the address of an alleged drug dealer who lived in the same building as Williams, but a SWAT team raided the wrong apartment—Williams’ apartment—and after being violently shoved onto the ground and handcuffed, the minister began to vomit. Williams suffered a heart attack and died.

Rev. Jonathan Ayers, a 28-year-old Baptist minister from northern Georgia. Ayers who was white, did things to help people. On September 1, 2009, he gave a woman named Johanna Jones Barrett $23 to help her pay her rent. Undercover narcotics officers who had been trailing Barrett suspected that she was selling crack cocaine, and when Ayers gave her $23, they began trailing Ayers. When Ayers left a gas station/convenience store after using an ATM and saw three plainclothes officers pointing their guns at him, he had no idea they were cops. Ayers, who obviously thought they were gang members or carjackers, tried to escape but was shot and killed. Not surprisingly, no drugs were found in either Ayers’ vehicle or on his dead body, although one of the officers claimed that before the killing, Barrett had sold him $50 worth of crack cocaine. Yeah and the moon is made of cheese.

On July 12, 1998, Houston officers raided Navarro’s home based on an alleged drug user’s claim that drugs were being sold there. A total of 30 bullets were fired, and Navarro was shot 12 times. Officers claimed Navarro had a gun and fired at them, but ballistics tests proved that all 30 shots were fired by the officers. The officers who raided Navarro’s home violated department policy by failing to obtain a search warrant. No illegal drugs were found in Navarro’s home, and blood tests conducted after his death showed no traces of any illegal drugs in his system.

In 2013, British police officers fired their weapons only three times. The number of people fatally shot was zero. In 2012 the figure was just one. Even after adjusting for the smaller size of Britain’s population, British citizens are around 100 times less likely to be shot by a police officer than Americans. Between 2010 and 2014 the police force of one small American city, Albuquerque in New Mexico, shot and killed 23 civilians; seven times more than the number of Brits killed by all of England and Wales’s 43 forces during the same period.

Nearly two times a week in the United States, a white police officer killed a black person during a seven-year period ending in 2012, according to the most recent accounts of justifiable homicide reported to the FBI. The reports show that 18% of the blacks killed during those seven years were under age 21, compared to 8.7% of whites.

I believe that all police officers should be required to wear small video body cameras secured to their lapels so that their supervisors, the courts and the public can see what really happens in these senseless shootings. I also feel that heavy sentences should be given to police officers if they negligently shoot citizens. In Canada, a conviction of negligence causing death can be punishable with a minimum of 20 years in prison in prison. Perhaps if more of these kinds of sentences were given to police officers who negligently shoot a suspect or innocent person to death, there would be less people being shot by bad cops. 

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