Law & the Courts

The Charlotte Cop Who Killed Keith Lamont Scott Was Not Charged for Good Reason

Evidence photo of gun recovered after the shooting of Keith Lamont Scott. (Photo: Charlotte-Mecklenburg Police Department/Handout/Reuters)
The evidence supported the conclusion that he acted in self-defense.

Last Thursday night, Charlotte, N.C., was the target of protests by Black Lives Matter and other activists. Their complaint? The announcement earlier that day that no criminal charges are to be filed against police officer Brentley Vinson in the shooting death last September of Keith Lamont Scott. You may recall this as the case in which it was claimed that the police shot a black man for the “crime” of having a book (a story now proven demonstrably false).

Intentionally shooting and killing someone is, on its face, a serious crime, typically some form of murder or voluntary manslaughter. There are, of course, circumstances in which killing someone is not a crime but rather justifiable and arguably even a social good.

The most classic of such circumstances is self-defense, which is both a physical act and a legal defense against a criminal charge. Once raised as a legal defense by the defendant, it becomes the burden of the prosecutor to disprove self-defense beyond a reasonable doubt, a very high standard. (Ohio is the sole exception to this rule; there the defendant must prove self-defense by a preponderance of the evidence.) The trial jury will be instructed that if the prosecution has failed to disprove self-defense beyond a reasonable doubt, the defendant must be acquitted.

This legal principle necessarily guides the decision-making of any prosecutor tasked with determining whether to charge a defendant in any use-of-force crime in which self-defense is likely to arise. If after investigation there is little prospect of disproving self-defense beyond a reasonable doubt, there is little purpose to pursuing the case.

So how does a prosecutor evaluate whether a claim of self-defense is vulnerable to defeat at trial? By examining the evidence relevant to the required legal elements of a self-defense claim.

Self-defense consists of (up to) five required elements, or prongs. They are cumulative. For a prosecutor to destroy a claim of self-defense, he does not need to disprove all of the required elements. He must merely disprove any one of them.

These five elements of a self-defense claim are: innocence, imminence, proportionality, avoidance, and reasonableness. Many people are surprised to find that these apply not only to civilians who act in self-defense but also to law-enforcement officers who act in self-defense. That said, as a practical matter, there are some differences in how these five elements are applied to police, as we’ll discuss in a moment.

To tie these legal principles back to Officer Vinson’s shooting of Scott, district attorney R. Andrew Murray was tasked with looking at the evidence around the killing and determining whether any of the required self-defense elements appeared susceptible to being disproved beyond a reasonable doubt.

If even one of these elements appeared susceptible to disproof, prosecution would be warranted. If not, however, a resultant prosecution would be pointless, contrary to law, and a miscarriage of justice.

Innocence. The element of innocence generally requires that the defender must not have been the aggressor in the conflict — that is, must not have initiated the use or threat of physical force. The police, of course, are often required to be the physical aggressor in order to prevent or stop a crime. So the question in the context of law enforcement becomes whether the officer had legal justification for being the aggressor in his engagement with a suspect.

In general, the police may not engage a person with any degree of force unless they have at least reasonable suspicion that the person has committed or is about to commit a crime.

In general, the police may not engage a person with any degree of force unless they have at least reasonable suspicion that the person has committed or is about to commit a crime. In this case, Officer Vinson initially observed Scott prepare and smoke a marijuana cigarette. Possession of marijuana is unlawful in North Carolina, but the possession of small quantities is a minor offense, and Vinson initially declined to engage Scott on the basis of the marijuana. (Vinson was at the time engaged in a criminal surveillance related to more serious crimes.)

When Vinson then observed him hold up a semi-automatic handgun, however, the level of apparent criminality rose to a level sufficiently to high justify a stop and investigation of Scott.

It has been claimed by some that Scott was not, in fact, in possession of marijuana or a firearm. The evidence against this position is, however, overwhelming. A partially smoked marijuana cigarette and a pill bottle containing traces of marijuana were in fact found in Scott’s vehicle. In addition, the gun recovered at the scene beside Scott’s body was found to test positive for Scott’s DNA; the man who sold Scott the gun was identified, and Scott was found in possession of an ankle holster modified for the gun in question. Indeed, attorneys for the Scott family have now conceded that he was in possession of a gun.

Given this evidence, there was little prospect that the self-defense element of innocence could have been disproven beyond a reasonable doubt at trial.

Imminence. The element of imminence requires that the threat defended against must have been about to happen right now or be otherwise unavoidable.

In his investigative report, Murray spends considerable effort on the element of imminence, because some (including the Scott family attorneys) have claimed that even though they concede that Scott possessed a gun, there was no evidence that he had the gun in his hand or pointed it at officers. Their suggestion is that there is no imminent threat unless the gun is in hand or pointed.

There is considerable evidence from credible witnesses that Scott had the gun in his hand before exiting the vehicle and up to the moment he was shot by Vinson. In any case, it is not required that an officer wait until an armed suspect has drawn or pointed his gun before the officer can use deadly force to stop an apparently deadly threat.

Murray in his report cites two expert sources on this point. Both agree that it cannot be required or expected that an officer will wait until it is too late to defend himself or others before he can use force in self-defense, and that requiring the officer to delay until the suspect’s weapon is drawn or pointed would in fact be too late.

Given the evidence, there was little prospect that the self-defense element of imminence could have been disproven beyond a reasonable doubt at trial.

Proportionality. The element of proportionality requires that the defensive force used be proportional to the force being defended against. In general, this means that if one is threatened only with non-deadly force, one may use only non-deadly force in self-defense.

It cannot be required or expected that an officer will wait until it is too late to defend himself or others before he can use force in self-defense.

Officer Vinson’s shooting of Scott obviously constituted deadly defensive force and therefore could be justified only if Scott presented a deadly-force threat. For reasons already explained, it is incontrovertible that Scott was armed with deadly force — a handgun — when confronted by officers. Moreover, Scott refused to divest himself of the weapon despite as many as ten demands by officers that he drop the gun.

Given this evidence, there was little prospect that the self-defense element of imminence could have been disproven beyond a reasonable doubt at trial.

Avoidance. The element of avoidance requires that one take advantage of a safe avenue of retreat before resorting to the use of force in self-defense.

The element of avoidance, however, is irrelevant to police officers acting in the lawful performance of their duties (as we have already demonstrated Vinson was doing). An officer has a legal duty to confront a suspect when he has reasonable suspicion that a criminal act is in progress or about to occur.

This is particularly the case where the apparent criminal act represents an imminent threat of death or grave bodily harm to the public, such as displaying a firearm, precisely the behavior to which Vinson was responding. There was little prospect, then, that the self-defense element of avoidance would have been relevant in this case. It would not have been a likely means by which Vinson’s claim of self-defense could be defeated.

Reasonableness. The element of reasonableness can be thought of as an umbrella element that stands over all the others. The defender’s actions must have been those of a reasonable and prudent person. In the case of police officers the legal standard is the officer’s “use of force must be judged from the perspective of a reasonable officer on the scene” as stated in the U.S. Supreme Court decision of Graham v. Connor (1989).

In light of all of the credible evidence cited above, and given the utter lack of credibility of purportedly contrary evidence (e.g., “eyewitness” statements by persons found not to have been present at the scene), there are no grounds on which Vinson’s conduct can be found to have been unreasonable under the totality of the circumstances. There was no prospect that the self-defense element of reasonableness could have been disproven beyond a reasonable doubt at trial.

#related#Having determined that there was little or no prospect of disproving beyond a reasonable doubt even a single relevant element of Officer Vinson’s anticipated claim of self-defense, District Attorney Murray correctly concluded that there would be no legally sound purpose to bringing criminal charges against Vinson.

Murray’s office was kind enough to release the entirety of the 22-page investigative report that led to this conclusion, a report that summarizes an investigation that consumed more than 2,300 hours of the time of 65 investigative agents across North Carolina. Although the report is not framed by the five-elements approach provided here, it provides adequate evidence on each element. In addition, the report includes considerable detail exposing the weak and often outright false nature of the purported evidence that ran contrary to Officer Vinson’s claim of self-defense. Well worth reading in its entirety, it can be found here.

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