State task force working to set rules for use of force by S.C. police 

Power Play

The New York Times reported a very rare occurrence last week. A Sept. 25 headline read, "South Carolina Deputy in Video of Violent Arrest is Fired." The firing occurred after a video went viral showing several Greenville County deputies beating a 56-year-old African-American man while he was pinned face down as police held his hands behind his back. He was later charged with minor traffic violations and resisting arrest.

That video from Aug. 1 showed five officers holding down Zebbie Hudgens while one of the deputies slammed Hudgens' head into the ground and repeatedly punched him. Fortunately, Hudgens was not killed; although, he did suffer serious injuries. One of the deputies, James Pregel, was terminated.

click to enlarge Dwayne Green - FILE
  • File
  • Dwayne Green

Contrast Pregel's firing with the treatment of the officer in the infamous Eric Garner case. Garner was selling cigarettes when the officer in his case put him in a choke hold despite Garner's protestations that he could not breathe. The officer in that case, Daniel Pantaleo remained on the New York Police Department force for five years before an administrative judge recommended that his employment be terminated earlier this year. The disparity in how each case was treated was a result of various factors which make it very difficult to fire or successfully prosecute a police officer — even if an officer unnecessarily used violent or lethal force.

A task force in South Carolina has been working to eliminate those discrepancies. The South Carolina Prosecution Commission Task Force on the Investigation and Prosecution of Law Enforcement Officers is part of a larger group operating under the South Carolina Commission on Prosecution Coordination (SCCPC). The purpose of the commission, according to its website, is "to improve South Carolina's criminal justice system by developing, coordinating, and training resources and support services" for S.C. solicitors' offices, with the end goal of promoting "fair, just, and uniform administration of justice in the prosecution of criminal cases."

Although the SCCPC was created in 1990, the task force on the investigation and prosecution of officers has been working this year on the creation of an excessive force statute for South Carolina. Nationwide, 41 states have "use of force" statutes. Without it, S.C. law enforcement and prosecutors lack guidance when an officer is alleged to have used deadly force unnecessarily.

In 1985, the Supreme Court ruled in Tennessee v. Garner that: "The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so."

The interpretation of this case factored heavily in the case against former North Charleston police officer Michael Slager for shooting Walter Scott in the back while he attempted to flee.

The Slager case may be more clear cut, but the proposed excessive force statute which has been endorsed by the South Carolina Prosecution Commission Task Force seeks to establish statutory guidelines so that justice can be meted out consistently and fairly.

The proposed language for the South Carolina statute generally states that an officer is justified in using deadly force when they reasonably believe it is necessary to prevent an arrest from being defeated by escape and the officer has probable cause to believe that the suspect has committed a felony offense involving the infliction or threatened infliction of death or serious injury.

The proposed statute goes on to say that an officer is justified in using deadly force when the officer has probable cause to believe the suspect poses a threat of death or serious bodily injury to the officer. These are very specific circumstances which would not excuse the use of deadly force for routine traffic stops or situations such as the one involving Walter Scott. As part of his defense, Slager claimed that he was threatened with imminent harm or injury and that he feared for his life, a claim that would not be plausible under the proposed Use of Force statute.

It is encouraging that our own solicitor, Scarlett Wilson, supports this proposed statute which appears to have bipartisan support in the state legislature. It is encouraging to see that the deputy in Greenville County was held accountable for using excessive force, and fortunately the victim survived. The proposed legislation by The South Carolina Prosecution Commission Task Force will help prosecutors and juries fairly deliver justice in cases where the victim is not so fortunate.

Dwayne Green is a former city attorney from Charleston who focuses on litigation, municipal, and zoning issues.


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