SC officers exonerated in more than 200 shootings

Solicitor David Pascoe cross-examines former Eutawville, SC, police chief Richard Combs in January while holding the gun Combs used in the shooting death of Bernard Bailey, an unarmed black man, in May 2011.
Solicitor David Pascoe cross-examines former Eutawville, SC, police chief Richard Combs in January while holding the gun Combs used in the shooting death of Bernard Bailey, an unarmed black man, in May 2011. TIM DOMINICK

Police in South Carolina have fired their weapons at 209 suspects in the past five years, and a handful of officers have been accused of pulling the trigger illegally – but none has being convicted, according to an analysis by The State newspaper.

In South Carolina, it remains exceedingly rare for an officer to be found at fault criminally for shooting at someone.

In an unusual turnaround, prosecutors late last year filed a spate of charges for use of excessive force against three white officers in the shootings of black drivers. Only one went to trial but resulted in a hung jury.

Why so few prosecutions?

There are many reasons why prosecutions and convictions of officers are unusual.

First of all, the public – including juries – puts trust in police and expects that officers’ training teaches them how to use force properly.

Second, when the suspect is armed, it’s difficult to say a shooting wasn’t justified. The officer is defending himself or others from someone who wants to get away at all costs or, in rare cases, hurt an officer intentionally.

South Carolina has been in the news for a Highway Patrol officer’s shooting last September of an unarmed driver at a gas station after the officer stopped him for a seat-belt violation. But the vast majority of the suspects shot at in South Carolina during the past five years have been armed.

Firearms are the weapon of choice for suspects, SLED’s records show. But some used vehicles, screwdrivers, BB guns and even a dark-colored glue gun. At least four committed suicide as police closed in.

Still, when someone is carrying a weapon it doesn’t mean someone else is in mortal danger. There is supposed to be an imminent threat for an officer to fire a weapon legally. This is where much of the dispute and public debate centers, even though each case is different.

“If you’re in a gunfight, what else are you going to try?” said Mike Lanier, deputy director of the state’s police academy, which trains some 1,000 officers yearly. “The alternatives are very limited.”

But some say a third reason why prosecutions and convictions of officers are unusual is who investigates a case.

The Legislature has passed a law banning police from investigating their own traffic collisions but not a requirement that SLED, or any other external agency, conduct independent investigations of police shootings.

Still, some researchers and police say the Palmetto State has a better system for reviewing officer-involved shootings than many cities and states outside South Carolina.

By practice if not policy, SLED serves an objective role in investigating in most cases, and prosecutors decide whether the evidence points toward police misconduct.

And there’s plenty to investigate.

During the past 15 years, there have been some 550 reported police shootings across the state, SLED’s records indicate. That’s an annual average of 36 shootings.

Prosecutors and grand juries

Prosecutors for S.C. counties where the largest number of shootings occurred between Jan. 1, 2010, and Dec. 31, 2014, would not discuss police shootings with the newspaper despite repeated requests for interviews.

Columbia’s Dan Johnson, the chief prosecutor in Richland and Kershaw counties, said he’s satisfied that police-shooting cases are handled properly.

“I investigate the cases independently (of SLED’s findings),” Johnson said of his six-person staff of investigators. “If I find something that needs to be answered, I go get it. And I trust the agencies I work with.

“Where there’s probable cause, we have a citizen review panel,” Johnson said. “They’re called grand jurors.”

A grand jury last year refused to indict Richland County deputy Kirk Willis, who is white, in the April 22, 2014, shooting of Tymeek Payne, a black man. Sheriff Leon Lott said he asked that the case go before the grand jury.

After the grand jury’s decision, Lott said he still fired Willis because of Willis’ judgment: The second time the deputy fired at Payne, there was no imminent threat, the sheriff said.

Johnson would not discuss the pending case against former Highway Patrol trooper Sean Groubert, who shot an unarmed motorist at a gas station in the Columbia area in September after stopping him for a seat-belt violation. Groubert, who was fired by the patrol, faces a charge of assault and battery of a high and aggravated nature.

Statewide, in a particularly disputed case, Sumter police shot and killed Aaron Jacobs, 25, on Sept. 28, 2010. They said Jacobs, a carjacking suspect, had a gun in his waistband when he ran away on foot during a patdown.

An autopsy showed Jacobs was shot twice in the back of the head and twice in the back, according to published accounts. Authorities fought the release of the autopsy all the way to the S.C. Supreme Court, which later ruled autopsies no longer are public records.

Third Circuit Solicitor Ernest Finney III exonerated the officer, saying the evidence did not substantiate a criminal charge. Critics said the public was cut off from information critical to understanding exactly what happened.

Critics also have said repeatedly that prosecutors, because they work so intimately with police to prosecute criminals, are too close to the situation to be as effective as they should be.

Among the dozens of case files reviewed by the newspaper, only in one instance did a prosecutor, Chrissy Adams, the solicitor in Anderson and Oconee counties, express concern about an officer’s conduct.

The case involved then-Anderson County deputy Erik Nubern’s conduct during a May 2, 2013, clash with a convicted felon.

“Deputy Nubern’s actions, although concerning, do not rise to the level of criminal activity,” Adams wrote to SLED when she exonerated him March 3, 2014, in the shooting of Ricky Clark. Both men are white.

Adams dropped the attempted-murder charge against Clark, accused of trying to run over deputies during the confrontation. She told a Spartanburg TV station recently the convicted felon’s account was more believable than the deputy’s.

Nubern’s version did not add up, Adams said, and his history of internal affairs investigations made him untrustworthy.

In one noteworthy exoneration, Kevin Brackett, chief prosecutor in Spartanburg and Cherokee counties, which have seen 15 shootings in five years, invoked the Bible in a case of a black deputy who shot a white motorist after he mistook the driver’s cane handle for the butt of a shotgun. The deputy can be seen on dash-cam video asking God to forgive his mistake.

“Mistake has been recognized as a legitimate defense to an accusation of wrongdoing since the beginning of time,” Brackett wrote in his letter to SLED about the case. “See Genesis 20:1-6. If true, it eliminates the presence of criminal intent.”

A lack of fact clouds debate

Because there is not a manageable way to track either shootings or prosecutions precisely, the lack of clear facts intensifies the debate.

Even the administrative arm of the S.C. Supreme Court has no efficient way of tracking prosecutions because the charges might be filed as misconduct in office, various kinds of assaults and even murder, Chief Justice Jean Toal said.

That leaves a resident the option of going to each of the Palmetto State’s hundreds of magistrate’s courts and 46 county courthouses with a complete list of the accused officers and checking court records.

Without good information, the state and nation don’t have an accurate picture nor can the law enforcement profession address solutions, including to what USC’s Alpert calls “lawful but awful” shootings.

Alpert said South Carolina’s 209 people shot or shot at during the past five years “seems high.”

Then he added, “I don’t know what the numbers mean. How many of these were justified legally? I just don’t have any context.”

Alpert said he’d never sought the data the newspaper requested from SLED, including access to its completed investigations.

A fuller analysis of the shootings needs to be viewed in the context of the numbers of violent crimes in the state as well as in counties where the confrontations occurred, Alpert, Johnson and Lott said.

Some say police clearly face a greater threat in counties with the highest violent crime rates.

The overall number of violent crimes across South Carolina has held steady, according to SLED records from 2010 through 2012 – the most recent year for which data is available.

Richland County, which includes the Capital City, had 11,241 reported violent crimes – well more than the Greenville County, the next highest, with 8,416.

Anderson and Spartanburg counties, which like Greenville are along the I-85 corridor, have the fourth and fifth largest number of violent crimes, SLED’s figures show.

A changing system

The way officer conduct is reviewed in use-of-force cases has changed dramatically since a 1988 state Supreme Court decision in a fatal shooting by Columbia police officer Isa Greene.

A defense attorney challenged a prosecutor’s decision that Greene fired in self-defense at a 16-year-old she said was armed with knife. Until her case, police in South Carolina involved in shootings were charged with a crime and judges routinely would dismiss the charges, an action that protected officers from being accused criminally at a later time.

The justices ruled in Greene’s case that those early charges were not necessary, that prosecutors have the power to dismiss a charge before it goes to trial and that a judge could not override that decision.

Prosecutor Johnson called the old way “a sham,” because officers were charged with a crime without sufficient proof. O’Leary, once the head of the state’s police academy, said the old system “looked like a cover-up.”

O’Leary, Alpert and prosecutor-turned defense attorney Gasser agree that having SLED conduct investigations is better than how cases are handled in many large cities where police agencies investigate their own officer-involved shootings. That is the situation in the four Georgia police agencies that include and surround Atlanta, where about half that state’s population lives.

Gasser said SLED largely is viewed as fair and independent.

“The process worked largely because of Robert Stewart,” SLED’s longtime former chief, said Gasser, the attorney. “There’s a built-in sense of competence.”

Still, civil libertarians have called for better civilian oversight when police use force.

“While many jurisdictions around the country currently have governmental agencies independent of the local police department to investigate civilian complaints of police officer misconduct, none of these agencies have the power to actually discipline those officers,” Darius Charney of the Center for Constitutional Rights told a presidential task force in January.

“In virtually all jurisdictions, the power to impose disciplinary penalties of offending officers rests solely with the commissioner or chief of the department,” Charney said. “This lack of independent disciplinary authority has in turn resulted in repeated failures by police departments to hold officers who have violated civilians’ rights accountable in any meaningful way.”

But every system has its flaws, use-of-force expert Alpert said.

“Officer-involved shootings are very tricky,” he said. “You have (police) unions. You have officers. You have politics.”

Yet, “It has to be above reproach or citizens just don’t have any faith in it,” Alpert said.

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