Criminal – Officer’s 20-year sentence for shooting unarmed man stands

In reviewing a former police officer’s appeal of his sentence for willfully shooting an unarmed man, the appellate panel found the district court did not err in concluding that second-degree murder was the appropriate cross-reference, as each of defendant’s four accounts of the encounter were found to be contradictory and self-serving; nor did the court err in applying a sentencing enhancement for obstruction of justice based upon defendant’s false statements to investigators during his unsworn interview.

Background

Michael Slager, a former officer with the North Charleston Police Department, admitted that he “willfully” shot and killed Walter Scott when Scott was unarmed and fleeing arrest. Defendant further admitted that his decision to shoot Scott was “objectively unreasonable.” Based on those admissions, defendant pleaded guilty to depriving Scott of his civil rights under color of law.

Because defendant pleaded guilty to depriving Scott of his civil rights under color of law, the district court was required during sentencing to cross-reference the offense underlying the deprivation. The government contended that the proper cross-reference was second-degree murder because defendant was acting with malice aforethought when he shot Scott. In contrast, defendant argued that the proper cross-reference was voluntary manslaughter because he was provoked by Scott and was thus not acting with malice.

The district court sentenced defendant to a 240-month term of imprisonment. In an accompanying order explaining its sentencing decision, the court determined that second-degree murder was the appropriate sentencing cross-reference for defendant’s offense because “malice aforethought is proven by a gross deviation from the standard of reasonable care, and [because] there is insufficient evidence that the defendant acted in heat of passion.”

The district court also applied a two-level sentencing enhancement for obstruction of justice based upon defendant’s false statements to investigators during his unsworn interview.

Second-degree murder

Defendant first argues that the district court erred by determining that second-degree murder was the proper cross-reference under Section 2H1.1.

Because video taken by the only third-party eyewitness to the shooting, Feidin Santana, does not capture the entirety of the disputed period, the court based many of its factual findings on its assessment of the credibility of the two testifying eyewitnesses to the encounter: defendant and Santana. Examining at length each of defendant’s four accounts of the encounter, the court discredited defendant’s testimony as “contradictory,” “self-serving, evolving, and internally inconsistent.” The record amply supports that credibility determination.

Defendant nevertheless claims that the district court reversibly erred in declining to find that the testimony of defendant’s expert witnesses rendered defendant’s account of the encounter credible. However, the district court emphasized—as the record demonstrates—that each expert admitted their respective techniques could not provide the court with definitive conclusions as to what happened during the disputed period. Instead, the experts couched their opinions with statements of equivocation and invited the court to make its own judgment as to what, in fact, occurred during the disputed period. The district court thus did not reversibly err in choosing not to give weight to these equivocal opinions.

Defendant next contends that the district court’s factual findings do not support a finding of malice aforethought. Again, we disagree. In his plea agreement, defendant admitted that he acted “voluntarily and intentionally with specific intent to do something the law forbids.” Additionally, defendant admitted that he “fired eight shots at Scott, and each of those eight shots were fired while Scott was unarmed and running away.” Defendant’s voluntary, intentional and repeated discharge of his firearm at Scott as he attempted to run away “may be expected naturally and probably to cause death.”

Nor did the district court err in determining that defendant’s malice was not negated by “sudden quarrel or heat of passion.” Accordingly, the court properly cross-referenced second-degree murder.

Sentencing enhancement

 Next, defendant argues that the district court erred in applying a two-level sentence enhancement for obstructing justice based on defendant’s false statements to SLED. Defendant raises this issue for the first time on appeal. “Because this issue was not advanced in the district court, we review the district court decision for plain error.” Under this circumscribed standard of review, we do not find that the district court plainly erred by applying the obstruction sentencing enhancement.

Affirmed.

United States v. Slager (Lawyers Weekly No. 001-005-19, 24 pp.) (James Wynn, J.) Case No. 18-4036. Jan. 8, 2019. From D.S.C. (David Norton, J.) Elizabeth Anne Franklin-Best for Appellant, Elizabeth Parr Hecker for Appellee.