• Lt. Tim McMillan (Ret.)

When Does Justice Become "Just Us?"

I remember early when the video of the Walter Scott shooting death emerged in the mainstream media; I had a gentleman say to me, “Man, you guys have a tough job.” My reply to him was, “Not as tough as being a black man in America if we are shooting them in the back as they run away.” The measure of whether a law enforcement officer’s actions are lawful and justified is set by a quarter-century old U.S. Supreme Court ruling, Graham v. Conner. This set the “Objectively reasonable” standard. In summary, the “Objectively reasonable” standard says that a police officer must use constitutionally appropriate levels of force based on the unique set of circumstances of each incident. What determines if the officer’s use of force is lawful rests on the precedent that another reasonable and prudent police officer would have done the same thing given the same scenario. In essence, what Graham v. Conner says is that the police make up their own laws when it comes to how they use force against citizens. Now, I am not implying this derogatorily against my own profession. Rather, I am just stating the facts. In reality, what Graham v. Conner or the Objectively Reasonable standard involves a compartmentalization of the 1953 U.S. Supreme Court ruling in Rochin v. California that produced the “Shocks the Conscience” standard. This ruling deemed that an action was unlawful and violated one’s right to due process if an action “shocks the conscience.” In essence, Objectively Reasonable standard to be violated it must “shock the conscious” of the collective law enforcement profession. Now this poses a question as to when does the Objectively Reasonable standard become problematic, and suddenly it begins to resemble anything but justice? The Walter Scott shooting is one of those incidents that causes me to examine the entire criminal justice system and how police are held accountable to the law. First of all, they may exist out there. However, I have yet to find a single police officer in my entire social network that felt the shooting of Walter Scott was justified. Watching the video of that shooting is disturbing and amounts to seeing someone within your profession act like an executioner. By the Objectively Reasonable standard, the law enforcement community said the shooting was wrong. The fact that I have seen so many cops around me agree that the shooting amounted to murder is in itself astonishing and demonstrates the depth that incident shocked the collective police conscious. In light of that, Michael Slager’s first jury trial ended December 5, 2016, in a mistrial. I am genuinely interested in how one could rationalize the shooting of Walter Scott as being justified. I cannot fathom anyone within the police profession defending the shooting. Ultimately, we should know the laws of use of force better than anyone. We should be aware that the 1985 U.S. Supreme Court case Tennessee v. Garner made it unlawful to use deadly force against a fleeing suspect. Frankly, I pray the moral standard of shooting a person in the back, except in the most extreme of extenuating of circumstances, was in place long before 1985. Better yet, the law enforcement community should know how much the story that Mr. Scott had gained control of Slager’s Taser and that was why he was shot is a work of fiction. Slager had already fired two Taser cartridges at Mr. Scott, one just before losing control of the less-lethal device. Therefore, unless somehow Slager had a magic Taser, the device couldn’t have fired any probes ever to have been a threat to him.  Secondly, we as police officers should all know that the maximum distance that the Taser can reach a person. Therefore, had a cartridge been in the device the furthest the device could have been effective was 15-20-feet. By the time Slager started his volley of gunfire at Mr. Scott, he was already approximately 20-feet away. In essence, even if the Taser could have been fired, the maximum length of the Taser probe wires would have never have reached Slager. Lastly, we know that Slager knew he was wrong. This is something that the North Charleston PD was upfront from the beginning. Slager’s description of the event did not match the reality of what happened. At a minimum, Slager knew what he did was wrong immediately afterward he fired the fatal shots because he purposefully placed the Taser that Scott, never had on him, to begin with, next to his body. Primarily, Slager staged the entire scene to represent the lie he would later tell. So with all of that said, how could twelve members of a jury not come to the conclusion that Michael Slager had indeed committed a crime? It is almost inarguable that had Michael Slager not been acting in the capacity of a police officer that day, he indeed would have been convicted of murder. Granted the nature of law enforcement is a dynamic one, that does indeed require Officers to make split second decisions. At times those decisions can affect life and death. Therefore, understandably there is a degree of exception that the police officer must have when it comes to the use of violence required to enforce the law. However, that exception shouldn’t extend to the degree in which an incident like Walter Scott’s death becomes so convoluted that statutory limitations become a detriment to justice. It makes me wonder, is the standard of determining innocence and guilt of police officers accused of crimes unrealistic at times? Ultimately, one of the most unfortunate aspects of the Objectively Reasonable standard of justice is that it makes it almost impossible for a civilian jury to ever convict anyone who commits a crime during their duties as a police officer. How could you ever expect anyone to convict a person beyond a reasonable doubt when determining what is objectively reasonable to another police officer is impossible if you, yourself are not a cop? Is the death of Walter Scott and the inability to convict Michael Slager in his first trail an anomaly? Is it merely, a product of a jury pool selection that included members of the jury who just refused to believe in the guilt of someone, simply because they wore a badge? Or is this incident a public demonstration of a more concerning underlying problem? Ultimately, in my opinion, it could be both. In the end, expressing the concern over how police conduct is judged, should never be considered not being supportive of the law enforcement profession. In actuality, it is the exact opposite. We as police officers should represent and defend justice. We shouldn’t desire for the uniqueness of our job to allow for justice to actually represent “just us.” 

Tim McMillan is a retired police lieutenant and investigative intelligence analyst; and holds BA's in mathematics and cognitive psychology. Primarily, focusing on the Defense and Intelligence Communities, he now uses his unique background, coupled with a willingness to examine any mystery, to deliver groundbreaking investigative reporting. Tim is a contributor for The War Zone, Vice, and Popular Mechanics

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