DAYTON, Ohio (WDTN) – After Hamilton County prosecutor Joe Deters examined video of the shooting of Sam DuBose in 2015, he filed murder and voluntary manslaughter charges against then University of Cincinnati Police Officer Ray Tensing, who shot DuBose while he was sitting in his vehicle.
Two trials later, Deters dropped the case after jurors failed to convict Tensing both times.
“I don’t like it,” Deters said in 2018, after he announced he wouldn’t seek a third trial. “We believe we cannot be successful at trial.”
The Tensing case was an example of how difficult it is to convict police officers during alleged shooting or brutality incidents. Police officers are given protections as official authority figures to do their job, according to Wright State professor Edward Fitzgerald. But some of these protections also make it difficult to convict police officers in criminal cases or hold them liable in civil court.
“In any kind of criminal case, regardless of who you bring it against, you have a high standard of proof,” Fitzgerald said. “You have to prove your case beyond a reasonable doubt, that’s difficult.”
Fitzgerald said the standard for murder convictions could be difficult to prove in the case of George Floyd. Floyd died on May 25 while being arrested by Derek Chauvin. Chauvin, who was kneeling on Floyd’s neck during the arrest, was fired by the Minneapolis Police Department, along with three other officers at the scene. Chauvin was charged with unintentional second-degree murder, third-degree murder and manslaughter. The other three officers also face criminal charges.
Fitzgerald said convicting Chauvin wouldn’t be easy.
“With first-degree murder, you have to show premeditation and intent,” Fitzgerald said. “With second-degree murder, you have to show intent, but there’s another factor in there, and that’s assault. If you can show he intended to commit felony assault (against Floyd), that can get you to second-degree murder conviction.”
Fitzgerald said third-degree murder charges are based on recklessness and this could be the state’s best chance of convicting Chauvin.
“The state would have to show he went forward with knowing there was a risk with putting his knee on his neck but did it anyway,” Fitzgerald said.
But police also have protections given by the federal government, specifically from two Supreme Court cases in the 1980s. In Tennessee v. Garner, the court ruled police officers could use deadly force if they believed the suspect posed a significant threat to themself or others around them. In Graham v. Connor, courts must judge the use of force by a standard called objective reasonableness.
“Police have qualified immunity as agents of the government, as long as they’re operating under their scope of authority,” Fitzgerald said. “If they go beyond that, you have to prove they used excessive force. That’s where you have to show if it was objectively reasonable for the officer to use whatever amount of force they used.”
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