The Shooting of Zachary Hammond: Is This What Self-Defense Looks Like?
by Jacob Sullum –
No matter what prosecutors say, killing a teenager during a penny-ante pot bust cannot be justified
As Ed Krayewski noted yesterday, a local prosecutor has decided not to charge the Seneca, South Carolina, police officer who shot and killed 19-year-old Zachary Hammond during a penny-ante drug sting on July 27. Police planned to arrest Hammond’s date, 23-year-old Toni Morton, whom an undercover cop had lured to a Hardee’s parking lot by pretending to be a pot buyer. Morton was sitting in the front passenger seat of Hammond’s car as Lt. Mark Tiller approached the driver’s side with his gun drawn. Tiller claimed he was forced to shoot because Hammond was trying to run him over. But that is not what the dashcam video of the encounter—which police did not release until yesterday, three months after the shooting—seems to show.
As Tiller approaches the car, Hammond backs up and makes a sharp left, trying to leave the parking lot. “Hands up! Put ’em up! Stop! Stop! Stop!” Tiller shouts. “I’m gonna shoot your fucking ass!” Then he briefly steps into the car’s path before backing up, pushing against the car near the side view mirror. When Tiller fires the first shot, he is no longer in the car’s path. He fires a second shot as Hammond is driving past him. There is no indication that Hammond ever aimed the car at Tiller, and Tiller was not in danger of being hit by the car when he fired those two rounds. According to an independent autopsy commissioned by Hammond’s family, one bullet entered his left shoulder from behind while the other entered his chest from the side, which is consistent with the video.
Tenth Circuit Solicitor Chrissy Adams, the prosecutor who decided that state criminal charges against Tiller were not appropriate, conceded that the video, “viewed at full speed, standing alone, is troublesome.” I think she meant troubling, but the slip is revealing: The video (a slowed-down version of which is posted below) is indeed troublesome for someone trying to justify the shooting. According to the South Carolina Supreme Court, the use of lethal force in self-defense is justified when these conditions are met:
(1) The defendant was without fault in bringing on the difficulty;
(2) The defendant…actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger;
(3) If the defense is based upon the defendant’s actual belief of imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief…; and
(4) The defendant had no other probable means of avoiding the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.
Was Tiller “without fault in bringing on the difficulty”? Not in the ordinary sense of the phrase. According to The New York Times, Adams “criticized Lieutenant Tiller’s actions, saying it had been ‘improper’ for him to run up to Mr. Hammond’s car instead of staying behind the door of his own patrol car.” Because he rushed right up to the driver’s side of the car, she said, “control of the situation was lost.” Or as Eric Bland, an attorney for Hammond’s family, told the Times, “The officer put himself in an unreasonable position with how he came in hot, with guns drawn.”
Did Tiller actually believe “he was in imminent danger of losing his life or sustaining serious bodily injury”? Adams concluded that he did.
Would “a reasonable prudent man of ordinary firmness and courage..have entertained the same belief”? Adams seems to think so. “The evidence from this investigation corroborates and supports Lieutenant Tiller’s belief that he was going to be run over,” she said. “Therefore, the only conclusion that can be rendered is that deadly force was justified.”
Yet the video and autopsy evidence indicates that Tiller was not “going to be run over.” Although he was briefly in danger of being grazed by the car when he stepped into its path, that danger passed once he stepped back and Hammond continued on his way. It is therefore hard to see how Tiller can claim there was “no other probable means of avoiding the danger.”
If Adams had charged Tiller with murder or manslaughter, the prosecution would have had the burden of proving beyond a reasonable doubt that he did not meet the criteria for a legitimate self-defense claim. There’s a good chance a jury would have given him the benefit of that doubt on all of these points, although the idea that lethal force was the only way to avoid the perceived danger seems inconsistent with the dashcam video and the autopsy results.
It looks to me like Tiller shot Hammond not in self-defense but to stop him from escaping. But according to the U.S. Supreme Court, the Fourth Amendment allows police to shoot at a fleeing suspect only when he “poses a threat of serious physical harm, either to the officer or to others.” Again, it does not look like Hammond was trying to hurt anyone; he was just trying to get away.
A federal investigation of the shooting is still under way, but proving that Tiller committed a federal crime would be harder than proving the shooting was not justified under state law. The relevant statute is Title 18, Section 242, which makes it a federal crime to “willfully” deprive someone of his constitutional rights “under color of any law.” Tiller would be guilty of that crime only if he knew the shooting was unjustified. As the Justice Department explained in its report on Darren Wilson’s 2014 shooting of Michael Brown in Ferguson, Missouri, “Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.”
Whether or not Tiller’s shooting of Hammond was legally justified, it cannot be morally justified. Even leaving aside Tiller’s recklessness, the entire situation was orchestrated by the police to catch Morton with 10 grams of dried vegetable matter that you can legally and openly buy from state-licensed stores in Denver and Seattle. Hammond’s death was stupid, pointless, and outrageous regardless of what state or federal prosecutors say about it.
Here is the full-speed version of the dashcam video, with audio:
Here is a slowed-down, silent version:
Reprinted with permission from Reason.com