Laura Coates: The fact the videos in the Keith Lamont Scott case are inconclusive doesn't automatically benefit the officer
To say this case is difficult for even the most responsible prosecutor would be a huge understatement, she says
Editor’s Note: Laura Coates is a CNN legal analyst. She is a former assistant U.S. attorney for the District of Columbia and trial attorney in the Civil Rights Division of the Department of Justice. Follow her @thelauracoates. The views expressed are her own.
We all wondered why Chief Kerr Putney refused to release the police video footage of the killing of Keith Lamont Scott, who was shot dead this month by a Charlotte police officer.
He suggested it would be insensitive to the family to display the demise of their loved one. The family said, “Show it.” He said it was inconclusive and may not satiate the community. The community said, “Try us.” He said it was because it would compromise the internal investigation. But he then admitted the North Carolina State Bureau of Investigations had told him it wouldn’t.
But before we saw the video, we got still photographs of a handgun, an ankle holster, a marijuana blunt and confirmation that Mr. Scott’s DNA was found on that loaded handgun. So, an innocence-proving package tied with a neat little bow? Not so fast, Chief Putney.
The decision whether to charge Officer Brentley Vinson lies within the sole discretion of the local prosecutor, and ultimately with a grand jury. What will the prosecutor be thinking as he or she evaluates this case? One thing for sure: Is there any reason for me to believe that the use of lethal force was not justified?
First, there is the police footage. The fact that the videos are inconclusive doesn’t automatically benefit the police officer. It’s what is inconclusive that makes all the difference. In this case, the video does not show, let alone confirm, that Mr. Scott was holding a weapon in his hand as has been claimed by Charlotte police. The video also does not show, let alone confirm, that Mr. Scott made any sudden movements toward any of the officers immediately before he was shot.
Indeed, it shows the opposite. Mr. Scott is seen walking backwards in a non-aggressive way with his arms to his side, and his head turned toward two officers with their guns drawn. The video does not show, let alone confirm, the location of where the gun was recovered in relation to Mr. Scott’s hands. In fact, we see footage of Mr. Scott’s bloodied hand being placed behind his back to be handcuffed.
If I can’t conclude Mr. Scott either had a gun or, if he did, brandished one, I can’t conclude that the officer was sufficiently provoked to kill him. So let’s talk about how the prosecutor weighs provocation.
The U.S. Supreme Court precedent has conferred a tremendous level of deference to officers in deciding the appropriate amount of force to use in civilian encounters. Because officers are uniquely positioned to frequently make split-second decisions in dangerous circumstances, mere mortals should not second-guess the officer’s conclusion.
But while us mere mortals can’t question it, other officers certainly can. In fact, the case law allows us to judge an officer’s decision based on what another reasonable-minded officer would have done when confronted with the same facts in a similar situation.
Normally, that comparison involves only a hypothetical officer. But here, we are not confined to the hypothetical officer. We have at least three other officers on the scene who were presented with the same facts and not just in a similar, but exactly the same, scenario. Yet, only one officer fired his weapon.
Was it reasonable for that officer to fear what at least three other visible officers did not? Ask Betty Shelby or Jason Van Dyke what happens when you’re the only one to take a shot. One point in favor of indictment.
But that’s not enough, especially since Chief Putney alluded to eyewitness statements (both civilian and officer) who support the officer’s claim he was justified. So, what else do you have?
Second, there is the cell phone video taken by Mr. Scott’s wife, Rakeyia Scott. While understandably heartbreaking to view, it cuts both ways. In the battle of vantage points, Mrs. Scott’s view loses by a significant margin. She is behind the police perimeter, with her view often obstructed, and the precise moment of the killing is not captured. But her video provides compelling contextual clues.
Generally speaking, prosecutors can’t hang their case on the words of a mother or a wife – their bias is as obvious as their belief (contrived or genuine) that their loved one has not committed any wrongdoing. The prosecutor must specifically assess the credibility of Mrs. Scott, particularly if her claims that Mr. Scott did not have a weapon are later in some way contradicted by reports of alleged earlier domestic violence suggesting that he may have once been illegally in possession of a handgun.
That said, previous allegations that Mr. Scott possessed a gun before the fatal police encounter, even if true, doesn’t prove he had a gun when he was fatally shot. We need more.
Upon hearing unidentified officers repeatedly tell her husband to “drop the gun,” she responds by saying, “He doesn’t have a gun. He has a TBI. He’s not going to do anything to you guys. He just took his medicine.”
Let’s dissect this statement, shall we? Mrs. Scott did not identify the acronym, TBI, which stands for Traumatic Brain Injury. The term is not universally understood, particularly amongst laymen. But we’re not talking about laymen, are we? We’re talking about police officers who presumably deal quite frequently with persons with a similar mental health condition. Presumably.
But here’s comes that inconclusive factor again. Her video doesn’t confirm whether the officers even heard her statement, never mind understood the term TBI. Why is that important? Because you’re asking me, the prosecutor, to charge an officer with an intent-based crime that can be legally excused if the officer reasonably felt in fear for his life.
More important than Mrs. Scott’s TBI reference, of course, was her pleas to her husband to comply with the officers’ orders to get out of the car, and then not to do something when he was surrounded by officers. Specifically, “Keith, don’t you do it.” This plea is interlaced between the officer’s commands to “drop the gun.” It begs the question, what was Mrs. Scott asking her husband not to do?
If social media is any indication, that plea alone is subject to at least three interpretations: 1) Mrs. Scott is telling her husband to not use the gun that the officers are ordering him to drop; 2) Mrs. Scott’s plea assumes a maternal tone with an intent to calm her husband; or 3) Mrs. Scott’s statement was actually intended for two audiences – when she said her husband’s name, she was speaking to Mr. Scott, but when she said, “don’t do it,” she was speaking to the officers.
Each interpretation holds a pretty clear spot on the believability spectrum, but the mere existence of each is fodder for a grand jury deliberation on whether you have probable cause to charge the officer. One point against indictment.
Third, there are the photographs and DNA. Sometimes evidence is conclusive. Other times it is convenient. Here, they are convenient at best. Officers claim Mr. Scott had a gun. Here’s a photograph of a gun – and confirmation that it was loaded and had his DNA is on it. Officers claim they first noticed him because he was rolling a blunt. Here’s a photograph of a blunt. Officers claim Mr. Scott had the gun in his hand, not in a concealed ankle holster. Here’s a photograph of an empty ankle holster.
But the photographs are as inconclusive as the video in determining whether the officer was provoked to use lethal force.
None of the pictures shows the relative location of any of these objects near Mr. Scott’s body. How do I know from the photographs that the gun was not found inside of the holster? How do I know that Mr. Scott possessed that marijuana blunt? How do I know that the gun was readily available when he was fatally shot? It’s like showing me a picture of Mount Kilimanjaro and then telling me you climbed it. One point in favor of indictment.
Finally, the jury pool. Jurors, grand jurors and trial jurors, are selected from the community, which necessarily includes those peaceful and non-peaceful protesters who share a growing distrust for the police and state officials. This distrust, like the presence of reasonable officers on the scene, is not hypothetical. Locally, it is informed by the failure to convict an officer in the killing of Jonathan Ferrell, an unarmed black man, in a trial last year.
Nationally, it is informed by the all too frequent police-involved shootings of black boys and men, girls and women. To what extent this distrust influences a grand jury’s findings remains to be seen, but it certainly can’t be discounted. One point pending.
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To say this case is difficult for even the most responsible prosecutor would be a huge understatement. We are not privy to all of the information or evidence in the comprehensive investigation. We may never be. But even with the video footage, the photographs, the DNA and the gratuitous police narrative, we still have a jigsaw puzzle that is missing two pieces. One piece holds the answer to this question: “Was it necessary to kill Mr. Scott?” The other piece asks, “Can I prove it?”
So far, to paraphrase Chief Putney: “The answer is inconclusive.”