Ron Hosko, a former FBI assistant director, is now president of the Law Enforcement Legal Defense Fund, which helps defend officers charged in fatal shootings.
The organization recently invited several journalists, including this reporter, to experience a simulator that police academies use to train cadets in order to give the media a better sense of split-second decisions officers must make.
The Huffington Post spoke with Hosko about cellphone video that shows Michael T. Slager, a white police officer in North Charleston, South Carolina, shooting an unarmed, fleeing black man, Walter Scott, in the back. Slager has charged with murder and fired. This interview has been edited for length and clarity.
In general, what was your reaction to watching the video?
It’s very, very concerning. I do not know, and I guess it will ultimately come out, what the officer had in mind, what he knew about this person who he shot. Obviously, what he knew, what was in his mind at the time as it relates to the threat, is very relevant in that analysis. If he had no prior contact, was approaching a person based on a non-violent offense, first-time, didn’t know anything more, then what was the immediate threat at hand when the encounter started? What was he trying to detain him for, and what were the person’s actions? If it was, as some reports are indicating, entirely non-violent, like late payment of [child support], then I would say that the officer is likely in deep trouble. His judgement, his training, a combination, potentially failed him greatly, and he may pay a real price for it.
What do you think would have happened in this case had the video not emerged?
Well, I can only judge based on the initial reports that I’m hearing, which is that he made a claim that the guy got his Taser from him. It could be that taking the Taser away, which obviously appears not to have happened based on the video, that he would have had a much more viable defense. I would think and hope, certainly post-Ferguson, that investigators would have picked through his story and tried to find holes that may be somewhat readily apparent. It could well be that they say, 'Hold it, timeout.' You know, non-violent subject … If, in fact, the guy did have the Taser, it makes for a slightly different question, but I think there would still be serious questions to answer, like, 'Why were you tasing?' And certainly, 'Why did you shoot what appears to be a non-violent subject who is really just trying to flee?' Straight federal case law, Supreme Court case law in Tennessee v. Garner, within the bounds of the Constitution, you don’t get to shoot a non-violent offender in the back. It’s fundamental. And so, by a straightforward Garner analysis of it, I think that [South Carolina Law Enforcement Division] would have had some serious doubts, and that there would have been a great opportunity for him to have been indicted apart from the video. Of course, the video is going to, you know, be compelling. Here it is, in black and white. In fact, in living color.
But you don’t think that based off of the initial statement that the police department put out, compared to what appeared to happen in the video -- the officer goes back, picks up the Taser, and appears to toss it next to the body -- don’t you think that it’s possible that without this video, nothing happens?
I think it’s possible. I think it’s still a difficult case for the officer. I think the case for him, his defense, potentially comes apart because, you know, here are multiple shots, from a distance, in the back. Any legitimate use of force inquiry, deadly force inquiry, is going to involve not only police investigators, but a prosecutor's office. Particularly because of the dynamic of white cop versus black deceased, that is going to be the subject of great scrutiny. His story is his story, and his story may give him some level of comfort, but I still think that a good investigation is going to peel these layers back and say timeout.
What do you expect his defense attorney to argue in this case? Will it mostly focus on what happened before the video cuts in?
Yeah, he’s got to. Either there are actions or words exchanged, and of course we don’t know if this officer and this deceased had any prior dealings. They need to determine that. They need to take a hard look at how the officer was trained, they need to take a look at whether he had deadly force legal training, firearms training. What was he being taught? How frequently? What is his understanding of the law? What’s his prior use of force history? All of those things are relevant, and I think that even with all of that, as a practical manner, I think this guy’s in deep trouble. The video is damning evidence, because here is a guy that I think reasonable people -- and again we’re trying to apply this Supreme Court decision to the whole thing -- what’s the reasonableness of the actions of this officer? Well, at face value, it does not look like the guy is doing anything but running away, and to shoot him in the back … This officer is in serious trouble.
Were you surprised by how quickly it seemed that he, on the radio, said, 'Oh, he had my Taser?' It seemed to me he very quickly came up with this story.
Yeah, I agree with you. That did seem very quick. It raised the concern, was this guy immediately kind of cooking up his story? Like, ‘Holy shit, I am in deep trouble, I just shot a guy.’ The video is deeply troubling. It didn’t seem like the officer had any move towards just chasing the guy, which happens every day in our world. People are going to run from you. So officers need to know how to process that effectively and quickly and understand the bounds of the use of force law in our land. Here, it looked like the officer, frankly, all too calmly took a firing position and began firing.
What’s the proper response here, when you have someone fleeing like that?
It’s a foot pursuit. The cop, to me, did not look like he was outmatched by this guy. He looked like he was, you know, from the video he looked like a fit enough police officer. You do what cops do, you give chase. You holler louder and say, 'Hey, you’re under arrest, stop running, you’re under arrest.' And you keep it up while you’re calling for backup, and hopefully you’re fit enough to track the guy down and tackle him and put some handcuffs on him.
What’s your stance on the person who filmed this? Is that something that people should do -- to try to film these encounters? What does this say about the need for body cameras?
I think it puts an exclamation point in moving towards body cameras. I am a cautious proponent of moving towards body cameras, and I think there’s a lot of policy and procedure considerations. I think that there’s going to have to be some things that are worked out, but I think that this will only drive that point home. It will be even faster. The First Amendment to me gives citizens the right to throw up their camera and film whatever is in the public domain, and that included police activity, as long as they are not obstructing legitimate law enforcement, they’re not interjecting themselves into the situation. You’re filming from, in this case, it looked like 20 or 30 yards away at least. The guy wasn’t making himself part of the scene. I think it’s perfectly legitimate for citizens to do that, and in this case that action by a citizen could mean the difference between conviction and a cop potentially walking free.
It’d only be guesswork to see what [the investigation] would turn up, but I do think we’re talking about a competent investigative agency, and they know what the use of force is, and there’d be prosecutors involved. You’re talking about shots, in the back, from a distance. The forensics would show that. It didn’t look like that victim was turning back to potentially use a weapon, and I assume that’s what the autopsy will show. These were shots in the back from a person running away. It’s not a pretty scene.
There have been a large number of police shootings investigated in South Carolina, and a lot of the shootings had been justified. Obviously this is one of the shootings that appears to have been caught clearly on video. In the other cases, do you think that they were all justified, or was this just a matter of there not being enough evidence, like clear evidence in this video, that there are more questionable ones that didn’t get prosecuted because there wasn’t existence of video?
I will tell you that my organization is helping to defend one former chief down there in a shooting incident that I believe was justified, otherwise our organization would not be supporting the former officer. But you’re raising the right point. The results of these cases have to be driven by the evidence. Otherwise, they’re driven by speculation, which, by the way, was Michael Brown versus Darren Wilson. Speculation ran rampant in the country for weeks, actually for months, and drove the discussion. And when DOJ pulled back all the layers, what we saw was a big teenager, unarmed, struggling with a cop for his weapon inside the cop car. And Darren Wilson was justified in what he did. Any other cop would have been justified in doing the same thing. At the end of the day, the prosecution, or lack of, is going to depend on the evidence. We’re dependent on legitimate investigations trying to turn over every stone and find the facts.
What do you think would have happened in the Michael Brown case had there been video of the actual shooting, in terms of the protests?
It’s going to be one of those bumpy ways forward on the use of body cameras. There’s going to be an increased expectation, by you as a reporter and by me as a private citizen, that it’s going to be video on demand, right? There’s a complaint, there’s an allegation, whatever, and all the sudden here’s the video of it 15 minutes later because the media asked or the public wants to know. We’re going to find significant imperfections in that. The video won’t be available, the video will be of poor quality, the camera will be pointed in one direction, or you’ll see what appears to be a scuffle that won’t tell you anything you want to know, other than that two people were tussling. There will be times when a police department will review the video quickly, a prosecutor or chief will order its release, and it will vindicate or condemn the police officer, and prove that they were being truthful, or the story was cooked. I think we’re going to see all of the above. So it’s not going to be a straight line to success with the video cameras. I think we will see a decline in the use of force by police, and I think we will see a decline in the complaints of citizens against the police, and that will be good.
So you think it will change behavior of both citizens and officers.
Yes. Yes I do. I’m hopeful that it will.
There have been some state efforts to keep these videos non-accessible or to keep the names of officers private for a length of time. What do you think of those?
There’s going to be growing pains with use of video. Localities want to give that stuff out as soon as the media asks for it. You’re going to see others that say, time out, let us conduct an internal investigation first, let us go through our steps first, without playing this out in the court of public opinion. It’s two-dimensions. It could be the camera is pointing one way and the threat is coming from another direction. Law enforcement and prosecutors and you guys will be struggling for the right answer to all these questions for many, many months, and there will be vigorous differences of opinion. But I think the net result will be a positive one, that we’ll see the right declines in the use of force. In a perfect world, we would have a law enforcement ethos that is, 'I don’t need a camera looking over my shoulder to do the right thing.' But we’re talking about human beings, and human being have failings, and to have a camera looking over your shoulder to help you do the right thing isn’t always a bad thing.
I would have struggled as the police chief of Ferguson with releasing the name of Darren Wilson when they did, because what did that get us? Well that got us a name, sure enough. It got us a face and a home address so that the media could do their research and find his residence, which happened, which caused the police to put a guard around his residence. Here we are, seven months later, and Darren Wilson has in effect been acquitted of doing anything wrong, and look at the harm to him. He’s out of the profession, he essentially has a Fraternal Order of Police bodyguard group around him, he has to hide in public because we released his name. What was the greater good that happened from releasing the name Darren Wilson at the time? How many of the good citizens of Ferguson have read the Ferguson report of the conflict between Darren Wilson and Michael Brown today? People got their facts from the media, they learned what they learned on the street, they learned what they learned from whispering down the lane, so they don’t have to concern themselves with what DOJ found was fact. I think you have to balance what the upside and what the potential harm. The Darren Wilson case showed us in great detail the harm. If an officer is going to be charged, he’s going to be identified, he’s going to be processed like others who have been charged. His picture will be available, his history would be available, it’s going to be available.
What do you think the discussion has been like within the law enforcement community in terms of the shooting? You haven’t seen any rallying around the officer.
I don’t think there’s a strong sense that this is what law enforcement wants to defend. The video is a very, very concerning video. You know what I do for a living now. I stand for the proposition that an accused police officer should have legal rights as well. He should enjoy the presumption of innocence as well. What did you think of the Bob Menendez indictment? As a citizen, I read that indictment and think it’s very, very troubling. This video is very, very troubling. That being said, you have the presumption of innocence. They both have the right to due process and to get an attorney and get the best defense available to them. There’s a great likelihood that neither of them will prevail.
I have not seen any tremendous rallying of law enforcement or former law enforcement support for what we saw in that video. It was deeply troubling. But I do not think that is reflective of what’s going on in policing today. There’s a great threat towards police, people resist, fight, shoot, want to kill police every day in the streets of our country, and so law enforcement at large should not be defined by the actions of one.