United States v. Slager

• Decision Date: 08 January 2019
• Docket Number: No. 18-4036,18-4036
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Michael SLAGER, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

912 F.3d 224

UNITED STATES of America, Plaintiff – Appellee,

v.Michael SLAGER, Defendant – Appellant.

No. 18-4036

United States Court of Appeals, Fourth Circuit.

Argued: November 1, 2018

Decided: January 8, 2019

ARGUED: Elizabeth Anne Franklin-Best, BLUME, FRANKLIN-BEST & YOUNG, LLC, Columbia, South Carolina, for Appellant. Elizabeth Parr Hecker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: John M. Gore, Acting Assistant Attorney General, Tovah R. Calderon, Appellate Section, Civil Rights Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Before WILKINSON, WYNN, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Wilkinson and Judge Diaz joined.

WYNN, Circuit Judge:

Defendant Michael Slager ("Defendant"), a former officer with the North Charleston Police Department, admitted that he "willfully" shot and killed Walter Scott ("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.

The district court sentenced Defendant to a 240-month term of imprisonment. Before this Court, Defendant argues that the district court reversibly erred in setting his sentence by: (1) using second-degree murder as the sentencing cross-reference for his offense rather than voluntary manslaughter, and (2) applying a two-level enhancement for obstruction of justice. Finding no reversible error, we affirm Defendant’s sentence.

I.

A.

In May 2016, a federal grand jury in the District of South Carolina returned an indictment alleging, among other things, that Defendant, "while acting under color of law as an officer with the North Charleston Police Department, shot [and killed] Walter Scott without legal justification, willfully depriving him of the right ... to be free from the use of unreasonable force by a law enforcement officer." J.A. 13. In the meantime, Defendant was tried in state court on one count of murder. That trial resulted in a hung jury and mistrial.

Thereafter, Defendant entered into a global plea agreement with the United States and the State of South Carolina. Under that agreement, in exchange for Defendant’s guilty plea in federal court to one count of depriving Scott of his civil rights under color of law, the United States agreed to drop the remaining counts of the indictment¹ and agreed to recommend a three-level reduction in the applicable sentencing level for acceptance of responsibility. Additionally, South Carolina agreed not to retry Defendant and dismissed the murder charge against him.

Some of the undisputed facts that formed the basis for Defendant’s plea includes evidence showing that on the morning of April 4, 2015, while on duty, Defendant stopped Scott’s vehicle after observing that his center brake light was not working. After the stop, Scott fled on foot and Defendant chased him. During the chase, Defendant shot his taser probes twice, hitting and bringing Scott down with the second shot. See United States v. Slager , No. 2:16-CR-00378-DCN, 2018 WL 445497, at *2 (D.S.C. Jan. 16, 2018).

At some point thereafter, Scott got up and fled. While Scott was unarmed and running away, Defendant drew his department-issued firearm and fired eight shots at Scott, five of which struck Scott in the back. Scott died on the scene from these wounds. Id.

A bystander witnessed and testified about the incident. The bystander also filmed parts of the incident. The bystander’s testimony and video of the incident directly contradicted Defendant’s initial account of the incident. In conformance with the global guilty plea agreement, Defendant admitted that he "used deadly force even though it was objectively unreasonable under the circumstances." Id. And, Defendant acknowledged that "his actions were done willfully, that is he acted voluntarily and intentionally and with specific intent to do something that the law forbids." Id.

B.

Defendant’s sentencing hearing began on December 4, 2017, and lasted four days. 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. See U.S.S.G. § 2H1.1(a)(1). 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.

Although most of the facts were undisputed at Defendant’s sentencing hearing, the government and Defendant disagreed as to what occurred after Scott fell to the ground, but before Scott got up and ran away from Defendant.

i.

The government’s version of events is based primarily on the only third-party eyewitness to the shooting, Feidin Santana. Santana recounted the shooting during a South Carolina Law Enforcement Division ("SLED") interview, and during Defendant’s state and federal proceedings. Each time, Santana provided a consistent account of the shooting.

While traveling to work on the morning of the shooting, Santana saw Scott running from Defendant. Santana followed, but briefly lost sight of Scott and Defendant. When Santana next saw them, Scott was facing down, and Defendant was on top of Scott and "trying to control" him. J.A. 971. Santana testified that it sounded like Scott was "being hurt" and he heard something "electric." J.A. 972. According to Santana, Defendant punched Scott in the back, but Scott never flipped over. Santana did not see Scott punch back. Nor did Santana see Scott grab the taser and charge toward Defendant. Indeed, Santana never saw Scott holding the taser. Rather, according to Santana, Scott did not seem to want to "hurt" Defendant but was "just trying to leave." J.A. 974. At some point, Scott shot up "aggressively," Santana testified. J.A. 975. By this, Santana meant that Scott was "determined to ... just leave." Id. When Scott broke free and began to run, Defendant shot him. Defendant then handcuffed Scott and checked his pulse but did not treat him.

Santana also recorded a portion of the encounter with his cell phone. Santana’s video does not clearly show the period during which Scott and Defendant were allegedly on the ground. But the video does show that Scott stood up and was running away—not pointing a taser at Defendant or advancing toward Defendant—when Defendant fired at him. Additionally, the video shows Defendant picked up the taser approximately ten feet behind the point where Defendant was standing when he shot Scott—not between Scott and Defendant.

ii.

In contrast to Santana’s consistent recollection of the encounter, Defendant provided four different accounts as to what happened on the morning of April 4, 2015.

First, Defendant made an on-scene statement to his superior officer, Lieutenant Daniel Bowman, who arrived shortly after the shooting occurred. Defendant told Lt. Bowman that Scott continued to resist arrest after being tasered and falling to the ground. Defendant tased Scott twice more while he laid on the ground, but Scott resisted and "was able to roll over onto his back." Supp. J.A. 75. Scott then "use[d] both hands to grab the taser" and after "a short struggle," Scott "was able to wrestle it away." Id. Scott then "stood up and pointed the taser at" Defendant. Id. Defendant told Lt. Bowman that, when faced with this alleged threat, he "drew his weapon as he was returning to the standing position and fired multiple times." Id. Several of Defendant’s shots struck Scott, who then fell to the ground. According to this account, Defendant then "rendered emergency aid until other officers arrived seconds later." Id.

Three days after the shooting, on April 7, 2015, Defendant gave a second account of the encounter in an unsworn interview with SLED investigators. Before giving this statement, Defendant asked his attorney to verify with the SLED investigators whether there was "[a]ny video, surveillance video of businesses, security cameras, [or] anything" else documenting the shooting. J.A. 702. Defendant also asked whether there were any witnesses who viewed the shooting. The SLED investigators did not apprise Defendant of Santana or his recorded video.

At the start of the interview, the SLED investigators informed Defendant that the interview was part of a criminal investigation and that Defendant could decline to participate. Still, Defendant agreed to make a statement. Over the course of the interview, Defendant added new details not mentioned in his prior statement to Lt. Bowman and physically reenacted key aspects of the encounter. For example, Defendant claimed that Scott was "coming straight at him" holding the taser, with his "arm extending straight out." J.A. 1640. Defendant told the SLED investigators that he was "shuffle-stepping" to avoid the taser as he "pulled his gun." Id. According to this account, Scott was "turning to his left" when Defendant fired. Id. Then, "Scott ran off, stumbled into the grass, [and] fell to the ground." Id. Defendant further told the investigators that "Scott must have dropped" the taser during this altercation, because he retrieved it "between the place where he had been shooting and where Scott landed." J.A. 1641.

During his state trial, Defendant provided a third description of his encounter with Scott. In this retelling, Defendant claimed that, during the alleged ground struggle, he had attempted to put Scott’s left hand "behind his back to handcuff him." J.A. 282. However, Scott was in a "pushup position" and was "trying to get up" at the same time. Id. Defendant testified that while this was occurring, he and Scott were "fighting" and "rolling around on the ground." J.A. 285. According to this account, Scott...