Crime & Courts

EXCLUSIVE: SC officers exonerated in more than 200 shootings

Solicitor David Pascoe cross-examines former Eutawville 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. Pascoe said he intends to bring Combs to trial again after the jury announced it could not reach a decision and the judge declared a mistrial.
Solicitor David Pascoe cross-examines former Eutawville 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. Pascoe said he intends to bring Combs to trial again after the jury announced it could not reach a decision and the judge declared a mistrial. tdominick@thestate.com

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.

Charges in those three cases represent a decades-long reversal, with prosecutors, including the Capital City’s solicitor, creating national headlines, particularly because of the race of those involved.

Columbia lawyer John O’Leary has represented police across the state for 26 years and doubts an officer has ever been convicted. “I really cannot remember any,” he said. “Certainly, there’s been a lot of shootings.”

O’Leary can recall two cases in which officers went to trial. Neither was convicted. However, many cases turn into civil lawsuits, he said.

Johnny Gasser, a prosecutor in Richland and Kershaw counties for 15 years and now a Columbia defense attorney, can’t recall the solicitor’s office formally accusing an officer – until last year.

“I don’t think we ever charged anybody during the time I was there,” said Gasser, who left the office in 2002. “We ruled all the shootings were justified – and we looked at dozens and dozens of them.”

The State newspaper examined five years of data because of the keen public interest here and nationally in how often shootings occur as well as whether police fire too often and too quickly.

In particular, critics complain about how rarely police are held accountable and who makes those decisions.

It’s possible to examine more data, but the records are buried in thick investigative files and are sometimes incomplete, which leaves key details to be ferreted from individual police agencies.

University of South Carolina criminal justice professor and use-of-force expert Geoff Alpert said apart from The State’s analysis, he knows of no other effort to review police shooting information for an entire state, much less for five years.

“I’ve never seen any analysis of statewide data,” said Alpert, who has been a law enforcement researcher and instructor for several decades and has testified before a presidential task force on 20th-century policing about the lack of reliable police shooting data.

Looking beyond the five-year period examined, those in S.C. law enforcement will tell you anecdotally that a handful of officers have been charged criminally during the past couple of decades. But when their cases go to juries, the allegations almost always are dismissed, jurors deadlock or officers are acquitted.

One officer, a former police chief in Eutawville, is facing a retrial in a fatal shooting because of a hung jury earlier this year.

And a Chesnee police officer pleaded guilty in 2005 to misconduct for shooting a motorist after a chase a year earlier. A judge sentenced the officer to probation – not to jail. But that was a decade ago.

For the past five years, State Law Enforcement Division records reviewed by the newspaper showed:

▪ At least four officers lost their lives and at least 33 were injured, although numbers for 2010 were not readily available.

▪ At least 101 African-American suspects were shot at, of whom 34 died. At least 67 white suspects were shot at; 41 died. Five were either Latino, Asian or Native American; four of them died. There are 36 cases where racial information was not available.

▪ Richland County led the state with 27 incidents. But the county also tops the state in violent crimes, something that usually drives the numbers up, SLED figures for the past three years show.

▪ Three Upstate counties that straddle the I-85 corridor as a group had 51 shootings.

SLED’s information is incomplete. That’s because there is no law that the agency be notified of a shooting or that SLED or some other outside police agency investigate.

But the state agency’s files are the best thing South Carolina has to document use-of-force cases.

While agencies nationally can track general information about police shootings and injuries to officers, the numbers are incomplete at best and often incorrect, according to experts and newspaper investigations.

That lack of transparency keeps the public from learning whether there are trends in how things go wrong and whether officers who make mistakes are held accountable.

SLED Chief Mark Keel worries about how quickly South Carolinians resist lawful police commands to the point of violence and whether increased public scrutiny might result in more officer deaths as people second-guess the officers’ split-second decisions.

“The bottom line,” Keel said, “is that as long as individuals continue to not follow the instructions of law enforcement ... there’s going to continue to be these confrontations. The public has to understand to be more compliant.”

Still, Robert Johnson, of the University of Toledo in Ohio, reminds us that the likelihood of the average citizen being shot by police is akin to the chance of being struck by lightning.

The incomplete data Johnson mined between 2009 and 2012 found that 372 people die each year nationwide during use-of-force encounters. Of those who died, 61.4 percent were white and 32.2 percent were African-American.

Slide show by Dr. Richard Johnson of Toldeo University, “Examining the Prevelance of Deaths from Police Use of Force”

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, 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.

Reach LeBlanc at (803) 771-8664.

KEY FINDINGS

The State newspaper examined five years’ worth of police records, from 2010 to 2014, compiled by the State Law Enforcement Division, then got more information by going directly to local police agencies that had numerous shootings.

Key findings from SLED records

209: Number of times officers fired their weapons at suspects

3: Number of officers accused of misuse of force

0: Number of accused officers who were convicted

79: Number of suspects killed

4: Number of officers killed

42: Average annual number of incidents

VIOLENT CRIME AND POLICE SHOOTING INCIDENTS

The number of violent crimes across the state generally have held steady, according to SLED’s figures for 2010 through 2012, the most recent year for which SLED has statewide data.

Richland County led the way, by far. The capital city area had 11,241 reported violent crimes, or an annual average of 3,747 crimes. Police shooting incidents, 2010-14, in Richland County: 27

Greenville County had 8,416 violent crimes reported, for an annual average of 2,805. Police shooting incidents, 2010-14, in Greenville County: 24

Charleston County had 5,818 violent crimes reported, for an annual average of 1,939. Police shooting incidents, 2010-14, in Charleston County: 17

Spartanburg County had 4,216 violent crimes reported, for an annual average of 1,405. Police shooting incidents, 2010-14, in Spartanburg County: 13

Anderson County had 3,437 violent crimes reported, for an annual average of 1,145. Police shooting incidents, 2010-14, in Anderson County: 15

Other Findings

At least 101 African-American suspects and at least 67 white suspects were shot at.

That pattern contradicts the national picture, which shows whites are shot more often, although South Carolina’s black population is larger than the national population: 28 percent, compared to 13 percent.

However, the records are unclear about suspects’ racial identity in 36 S.C. cases. In the unlikely event that all 36 are white, the racial breakdown would be equal. Five of the suspects shot were Latino, Asian and Native American.

Three of the top five counties where most shootings occurred during the five years examined are clustered along I-85 in the Upstate: Greenville (23); Anderson (15) and Spartanburg (13).

Richland County and its cities had 27 shootings, the most of any S.C. county.

SLED’s violent-crime figures show Richland County has substantially more violent crimes than any other county during a three-year period. (All county totals include shootings by municipal police departments within those counties.)

The small Summerville Police Department near Charleston had no officer-involved shootings in 2011 through 2014. But an outbreak of four within five months in 2010 underscores the randomness of the violence.

At least four suspects killed themselves as police closed in.

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