South Carolina prosecutors did their job in indicting Walter Scott's killer cop for murder

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The indictment against former police officer Michael Slager for the murder of Walter Scott is a brief document. "Slager did, with malice aforethought, kill and murder Walter Lamar Scott," the grand jury decision reads. A murder charge against a white cop, caught on video shooting an unarmed black 50-year-old in the back five times, might read as a victory in the struggle to hold police officers accountable when they summarily end black lives. I wouldn't go so far.

But the fact that Slager is not only charged, but faces a minimum 30-year sentence if convicted, marks a shift. Namely, that prosecutors may finally be doing their job when it comes to police. It's no bold action to prosecute a suspect appropriately

South Carolina state prosecutor Scarlett Wilson brought only one charge to the grand jury to investigate: Murder. Anyone who has watched the video of Scott's shooting would intuitively see why a murder charge is appropriate. The unarmed victim is fleeing, Slager in pursuit but from a decent distance, opens fire on Scott's back. Assuming the cop knew how bullets fired from a gun can interact with human flesh, it would require some elaborate narrative spinning to suggest an absence of what criminal justice calls malice aforethought. That is, the criterion separating murder from manslaughter: intent to seriously harm or kill, or extreme, reckless disregard for life. Indeed, to see the video it's hard to see the case as anything but open and shut.


But, then again, U.S. justice has shown credulous tendencies when it comes to police narratives about killing black men in the past. The grand jury could have rejected the proposed charge and declined to indict, as was the case for uniformed killers of Mike Brown and Eric Garner.

The NYPD officers who shot dead unarmed black teen Ramarley Graham in his grandmother's Bronx bathroom were tried and acquitted for manslaughter only. New York officer Peter Liang, who shot dead 28-year-old Akai Gurley, also black and unarmed, also faces manslaughter, not murder, charges. He shot Gurley when the young man opened the door in a darkened project house stairwell.

BART police officer Johannes Mehserle fatally shot Oscar Grant as the unarmed black man was prostrate on a train station platform, another cop kneeling on his neck. The incident, like Scott's killing, was caught on cell phone camera. But Mehserle claimed he had aimed to grab his Taser, not his gun, and second-degree murder charges were dropped to involuntary manslaughter, for which the cop barely served a year behind bars. Slager ostensibly has few such defenses available. But, thanks to the archaic and confusing vagaries of South Carolina law regarding police use of deadly force, he may not need them.

There was a Supreme Court ruling in 1985 that stated that the police could not use deadly force to seize a fleeing felon who is unarmed and non-dangerous. The problem is, the ruling applied originally to civil cases, and while generally set a precedent nationwide, some states are yet to shift criminal statutes relating to law enforcement deadly force and fleeing felons.


South Carolina law is particularly problematic here. The precedent setting case in the state in 2004 posited two contradicting things. It states, contra the 1985 SCOTUS decision, that an officer can use "whatever force is necessary to effect the arrest of a felon including deadly force, if necessary, to effect that arrest."

This is known as the "any felony" rule and means that a person can flee, be unarmed and non-dangerous, and be legally killed by a cop simply to enable arrest. Given the regularity with which police treat black skin as a mark of criminal guilt, the "any felony" rule is a direct threat to black life in America and should be struck from every legal code. Like "Stand Your Ground" legislation, the writ of the law appears race neutral, but its application cannot, be given the criminalization of black skin in this country.


But the 2004 ruling also says "during felony arrest, if arresting officer has probable cause to believe suspect poses threat of serious physical harm" then the officer can use deadly force. But it's not clear whether physical threat is necessary to permit deadly force, or merely another grounds for it.

The same confusion plagues Missouri Law, and was relevant in the Mike Brown case. The Ferguson grand jury didn't rely on the "any felony" rule, but didn't indict Officer Wilson anyway, and Brown was not originally fleeing. As William H. Freivogel noted for St Louis public radio, if the "any felony" rule applies, "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."


It's also worth noting that South Carolina doesn't distinguish between first and second degree murder in its statutes. The grand jury decision does not charge Slager with premeditation, just malice aforethought, which includes reckless regard for life and doesn't necessarily equal something like first degree murder-style intention. Nonetheless, the minimum sentence for a murder conviction remains 30 years, and such a sentence would at least be a message that cops are not exempt such punishment.

Deadly racism and police violence would not end, so a conviction would not achieve a state of justice. The justice system does not affirm that black lives matter because a prosecutor and grand jurors did a decent job. We find ourselves at a very low standard of justice indeed, if it takes a video as horrifying as that of Scott's killing to present a cop as a suspected murderer.

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