Law & the Courts

Is the Tide Turning toward Justice for Police-Shooting Victims?

Chicago police Officer Jason Van Dyke is lead away after his guilty verdict in his murder trial for the shooting death of Laquan McDonald, in Chicago, Ill., October 5, 2018. (Antonio Perez/Reuters )
We may be witnessing the repeal of the unwritten law that helps bad cops go free.

It’s been almost two years since the puzzling, infuriating mistrial in one of the most grotesque police shootings ever caught on tape. A jury couldn’t reach a verdict after watching video footage of South Carolina police officer Michael Slager shooting 50-year-old Walter Scott in the back as Scott slowly ran away, before picking up a dark object (likely his Taser) and placing it by Scott’s body in a blatant effort to corrupt the crime scene.

Slager got away with it in large part because he testified that he was afraid. But now, there are signs that such a defense will no longer be enough. Now, there are signs that juries are prepared to do their jobs, follow the law, and appropriately second-guess even officers who express fear for their lives or the lives of others.

In August and October of this year, in two very different cities, in two very different states, two different juries convicted police officers for murdering young black men in abuses of power arguably less egregious than Slager’s cold-blooded murder of Scott.

The first verdict came in Texas, where a Dallas jury convicted Officer Roy Oliver of murder for shooting 15-year-old Jordan Edwards in the head as he sat in the passenger seat of a car that was attempting to leave a house party in Balch Springs. The facts of the case were terrible. Oliver was at the scene of a peaceful gathering when shots rang out in a nearby parking lot. As the partygoers scattered, Edwards tried to leave with his stepbrother. Oliver’s partner apparently ordered the car to stop as it was backing away from him and then broke the back windshield. Oliver fired five shots straight into the car, hitting Edwards in the head, killing him instantly.

The next verdict was handed down last week in Chicago. For the first time in more than 50 years, a jury convicted a Chicago police officer of murder for an on-duty shooting. The jury returned a guilty verdict against Officer Jason Van Dyke for shooting 17-year-old Laquan McDonald as McDonald appeared to be walking away while holding a small (three-inch) knife. According to prosecutors, Van Dyke “continued firing for at least twelve seconds while McDonald lay prone in the street, emptying all 16 rounds [from his magazine] into his body.”

In both cases, the defense’s argument turned at least in part on fear — in Oliver’s case, fear for his partner, in Van Dyke’s case, fear that McDonald constituted a “threat.” And, ordinarily, an officer’s expression of fear, combined with testimony about the need to make “split second” decisions, is more than enough to avoid conviction. As I’ve written before, this form of testimony appeals to the unwritten law that helps bad cops go free: Historically speaking, when an officer is afraid, he’s allowed to shoot. Proof of fear equals proof of innocence.

There’s an understandable, human impulse behind this unwritten standard. Juries appreciate men in uniform who take risks to protect their communities. They are reluctant to second-guess decisions made in the heat of the moment. They’re swayed by expert testimony that often vividly describes how things “could have” gone very wrong, very quickly. Who are they to judge cops from the safety and security of a jury box?

But there’s a problem with this sympathetic analysis. It doesn’t reflect the law as written. Cops don’t have the freedom to fire when afraid. By law, they must exercise a degree of fortitude, and by law they can pull the trigger only when their fear is objectively reasonable. To borrow from the jury instructions in Slager’s case, he had to show that a person of “ordinary firmness and courage” would have believed he was in imminent danger when Scott was running slowly away from him, unarmed.

In other words, juries can’t be reluctant to second-guess an officer’s decision. That’s their job.

The Oliver and Van Dyke verdicts are important for reasons that reach beyond even the vital demands of justice for the victims. A sense that police operate outside or above the law impairs trust in law enforcement, and it breaks bonds with the communities cops are sworn to protect. A sense that the law does not or will not apply to the police in the same way that it applies to civilians can contribute to a culture of impunity.

When training anyone to use force, individual stories matter, and the promise of law enforcement matters. In the case of Chicago, if you’re a cop in a department that has killed hundreds of men and women in the last half-century, with zero guilty verdicts for even a single panicked or malicious shot, it’s hard to argue that this lack of accountability doesn’t impact the culture of the force.

Culture change takes time, both in police departments and in jury pools, but perhaps a culture change is underway. The preservation of our fundamental freedoms is too important to be left to sympathy and prejudice. Applying the written law respects life and protects liberty. In Chicago and Dallas, two juries have shown the way.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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