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Does “caught on tape” mean a conviction?

While cellphone video of Walter Scott’s death at the hands of Police Officer Michael Slager in North Charleston, S.C., is damning, the past has taught us that sometimes video isn’t enough. Yet without it, most cases turn into a dead man’s body versus an officer’s claim of justifiable force.

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Rodney Hill, an attorney and chief of internal affairs for the Baltimore City Police Department, cites intent as the primary reason some excessive-force cases lead to the officer’s getting off, with or without video. Hill once served as the chief of staff for Montgomery County, Md., Police Chief Charles Moose during the Beltway Sniper case and was a chief solicitor prosecuting police in brutality cases.

“In getting convictions, you have to prove intent,” Hill said. “It’s very difficult to prove malicious intent. More often than not, I didn’t get a conviction, unless there was video.”

Hill spoke to The Root about five well-known excessive-force cases involving video and why some officers were convicted while others walked free:

1. Tamir Rice

In the shooting death of 12-year-old Tamir Rice, surveillance video shows the child playing with a toy gun when an officer pulls up in a car and fires two shots at him, at close range, within seconds of arriving on the scene. Neither Officer Timothy Loehmann nor Officer Frank Garmback administered first aid to Tamir immediately following the shooting. The officers have not been indicted and are on administrative leave, awaiting a grand jury hearing.

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“This case is ridiculously appalling. I would say the officer didn’t give the boy time to do anything,” said Hill. “They pulled right up to him. You don’t approach a suspect with gun drawn; the suspect may gain control if the officer gets too close. That violates all kinds of training.”

The burden of proof, however, will rest on whether the prosecutor can prove malicious intent. “The officer should have known better that this was reckless behavior; the specific behavior is that he pulled his weapon and his intent was to kill him."

2. Eric Garner

Garner, who had just stopped a fight, was approached by officers under the suspicion that he was selling “loosey” cigarettes. After an argument during which Garner accused the police of harassment, Officer Daniel Pantaleo put his arms around Garner’s neck and pulled him backward down onto the ground. The New York City Police Department prohibits choke holds, but it was ruled that this was not a choke hold. Garner died on the scene and the medical examiner ruled it a homicide, but Pantaleo was not charged by a grand jury. Hill chalked this up again to intent.

“It is very difficult to prove intent—that there was malicious intent,” said Hill. “In the Garner case, the officer can claim ‘I wasn’t trying to do anything malicious, I was just trying to arrest him.’”

3. Anthony Baez

In the Anthony Baez case in 1994, Officer Francis Livoti told Baez and his brother to go home after their football accidentally hit a patrol car. They continued playing the game, and officers attempted to arrest both of them for disorderly conduct. Baez, an asthmatic, died from asphyxiation when Livoti put him in what appeared to be a choke hold. Doctors ruled it a homicide. Livoti testified that he did not use a choke hold and that any choking was unintentional.

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Livoti was indicted on criminally negligent homicide charges but was acquitted of using a banned choke hold when officers testified that he did not use the choke hold. Officer Daisy Boria broke the blue wall of silence, contradicting testimony of her partner and two other fellow police officers that Baez died while resisting arrest. She wore a bulletproof vest to work to protect herself because she had trouble returning to duty after her testimony.  While Livoti was acquitted at the state level, the federal case was successful.

“You can be charged in federal court for the exact-same crime. It’s easier to convict for civil cases—jury pool is local and the feds won't charge anything unless they have it on a silver platter; plus they have more resources. Rather than having to show criminal intent, they have to prove were their civil rights violated," said Hill.

Federal prosecutors later charged Livoti with civil rights violations. He was convicted and sentenced to seven-and-a-half years in federal prison. Acting State Supreme Court Judge Gerald Sheindlin termed conflicting testimony of six cops who testified “a nest of perjury.” Boria’s testimony was key to Livoti’s prosecution.

4. Amadou Diallo

Four plainclothes officers—Edward McMellon, Sean Carroll, Kenneth Boss and Richard Murphy—fired a total of 41 shots at Diallo outside his apartment in the Bronx, N.Y. Diallo was pulling a wallet out of his pocket, which an officer thought was a gun. Officers had initially approached him because they claimed he matched the description of a serial rapist. The officers were charged with second-degree murder and reckless endangerment but were acquitted of all charges.  

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“In training, officers are trained to fire until the threat is eliminated. In this case, the officer can say, ‘I thought he was going for his weapon’ and force can be ruled justified,” said Hill.

5. Oscar Grant

In Oakland, Calif., in 2009, Officer Johannes Mehserle shot Oscar Grant after he and his friends were detained at the BART train station after reports of a fight in the station. While Grant was lying facedown, Mehserle shot him, claiming that he meant to reach for his Taser rather than his gun. Mehserle was convicted of involuntary manslaughter and found not guilty of second-degree murder and voluntary manslaughter and was sentenced to two years in prison. He served 11 months.

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“The Oscar Grant case got a conviction. Since that case, one thing that departments have taught is that the Taser should be on the opposite side of your weapon. They teach you in the academy don’t look at your weapon as you’re going for it,” Hill said.

Beyond the laws that regulate excessive force if the officer feels there is a threat, it becomes difficult to convict police officers because of psychological reasons, said Hill. 

Given these cases and their outcomes, what will it take for the Scott case to gain a conviction?

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“Video definitely helps in this case,” said Hill. “The stop was for a taillight, so it’s not like we’re talking about a rapist who was fleeing. What threat did he pose? He’s not reaching in his waistband looking for a weapon; he’s running from him. For a defense attorney, this case will be difficult.”