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United States v. Slager

United States District Court, D. South Carolina, Charleston Division

January 16, 2018




         This matter is before the court on the sentencing of defendant Michael Slager (“Slager”). The court held a lengthy sentencing hearing from December 4-7, 2017, during which the parties presented expert and eyewitness testimony, along with other evidence. There are four major disputes, all of which involve issues of law. The first dispute is the appropriate base offense level required by United States Sentencing Guidelines (“U.S.S.G.”) § 2H1.1(a)(1), and the second is whether an enhancement for obstruction of justice under U.S.S.G. § 3C1.1 is warranted. Based on the parties' briefing, as well as the testimony and evidence presented during the sentencing hearing, the court finds by a preponderance of the evidence that the underlying offense is second-degree murder and that the obstruction of justice enhancement applies. Slager has also filed a motion for downward departure under U.S.S.G § 5K2.10 based on victim provocation. The court denies this motion for downward departure, as it finds that the victim's conduct did not “contribut[e] significantly” to provoking the offense behavior. The court does, however, grant a two-level downward departure under U.S.S.G. § 5K2.0 in recognition of the successive state and federal prosecutions and of Slager's susceptibility to abuse in prison. Finally, it grants a three-level downward variance based on Slager's history and characteristics. Because this sentencing presents complex issues of law and fact, the court supplements the sentence it imposed from the bench at the conclusion of the sentencing hearing with this written order, to detail the particularized findings that contributed to its calculations. It does not modify the sentence or its foundation. The court imposes a sentence of 240 months imprisonment.

         I. BACKGROUND

         Slager is a former North Charleston Police Department (“NCPD”) police officer who was indicted on three counts in connection with the lethal shooting of Walter Scott (“Scott”). The federal indictment charges that on or about April 4, 2015, while acting under the color of law as a NCPD officer, Slager shot Scott without legal justification, “willfully depriving him of the right . . . to be free from the use of unreasonable force by a law enforcement officer.” ECF No. 1, Indictment ¶ 1. The indictment further charges that Slager intentionally misled South Carolina Law Enforcement Division (“SLED”) investigators tasked with investigating the incident by falsely stating that he fired his weapon while Scott was coming toward him with a taser. Id. ¶ 3. The government alleges that, in reality, Slager fired multiple shots at Scott while Scott was running away from him. Id. ¶ 4. The indictment charges Slager with (1) the deprivation of rights under the color of law, (2) the use of a weapon during the commission of a crime of violence, and (3) obstruction of justice.

         Slager was charged with murder in state court for the Scott shooting, but, after a five-week trial, the jury was unable to reach a verdict. ECF No. 128 at 1. On May 2, 2017, Slager entered a guilty plea to violating the civil rights of Scott, in violation of 18 U.S.C. § 242. ECF No. 114. The remaining federal charges, as well as the state charges, were dropped as a result of the plea agreement. Slager agrees that the following facts are accurate and form the basis for his § 242 offense:

On April 4, 2015 Slager was a commissioned police officer with the North Charleston Police Department. Slager was on duty as a police officer when he stopped Walter Scott's vehicle after observing that the center brake light was not working. During the stop, Scott fled the scene on foot. Slager engaged in a foot chase of Scott for approximately 200 yards. During the chase, Slager deployed the probes of his Taser. His first attempt to use his Taser was unsuccessful in stopping Scott. Slager ultimately caught up to Scott and deployed his Taser probes a second time.
After the second Taser deployment, Scott fell to the ground. Scott managed to get off the ground and again run away from Slager. The defendant's Taser dropped to the ground behind the defendant. As Scott was running away, Slager fired eight shots at him from his department-issued firearm. During the time that each of the eight shots were fired, Scott was unarmed and running away from Slager. Five shots hit Scott, all entering from behind. Scott suffered bodily injury and died on the scene as a result of the injuries from the gunshots.
The defendant used deadly force even though it was objectively unreasonable under the circumstances. The defendant acknowledges that his actions were done willfully, that is he acted voluntarily and intentionally and with specific intent to do something that the law forbids.

Id. at 1-3.

         This matter is before the court for sentencing. In anticipation of sentencing, a Presentence Report (“PSR”) was prepared. Both Slager and the government submitted sentencing memoranda, and Slager moved for a downward departure.


         The following issues are in dispute: (1) whether the appropriate cross-reference is voluntary manslaughter or second-degree murder; (2) whether the obstruction of justice enhancement is appropriate; (3) whether and to what extent there should be a downward departure pursuant to U.S.S.G. § 5K2.10 for Scott's wrongful conduct in provoking the offense behavior; (4) whether and to what extent there should be a downward departure pursuant to U.S.S.G. § 5K2.0; and (5) whether and to what extent there should be a variance. The court addresses each issue in turn.

         A. Cross-Reference

         The base offense level for Slager's conviction under § 242 is determined by a cross-reference to “the offense level from the offense guideline applicable to any underlying offense.” U.S. Sentencing Guidelines Manual § 2H1.1 (U.S. Sentencing Comm'n 2004). The parties dispute whether the appropriate cross-reference under U.S.S.G. § 2H1.1 for the underlying offense is to second-degree murder or to voluntary manslaughter. Where, as here, malice aforethought is proven by a gross deviation from the standard of reasonable care, and where there is insufficient evidence that the defendant acted in heat of passion, the appropriate cross-reference is second-degree murder.

         1.Voluntary Manslaughter

         The PSR applies a cross-reference to voluntary manslaughter. The government contends that a cross-reference to second-degree murder is more appropriate because Slager's own guilty plea established that he was “objectively unreasonable” in firing eight shots at Scott while Scott was unarmed and running away. Under the facts to which Slager admitted when he pleaded guilty, Slager admits that he “willfully” killed Scott with the specific intent to commit an illegal act. ECF No. 114 at 1-3. This forecloses Slager's ability to argue that he acted in self-defense, which could bar any legal liability. But it leaves open the possibility that the portion of the incident between Slager and Scott that occurred before Feidin Santana (“Santana”) began filming the bystander video that captures the shooting (“the Santana video”) warrants a “heat of passion” mitigation such that the cross-reference to voluntary manslaughter would be appropriate. The court finds that it is not.

         A voluntary manslaughter cross-reference is appropriate where there is a “sudden quarrel” or “heat of passion.” 18 U.S.C.A. § 1112; see United States v. Elk, 658 F.2d 644, 649 (8th Cir. 1981). The fact that distinguishes manslaughter from murder is the existence of malice. Stevenson v. United States, 162 U.S. 313 (1896). In the case of voluntary manslaughter, the onset of “heat of passion” demonstrates the absence of malice. Elk, 658 F.2d at 648. While “heat of passion” must be determined from circumstances as they appeared to the defendant, it must still involve provocation that would “arouse a reasonable and ordinary person to kill someone.” United States v. Collins, 690 F.2d 431, 437 (5th Cir. 1982) (emphasis added). For a law enforcement officer, the standard is provocation that would cause a reasonable officer to kill someone. United States v. Velazquez, 246 F.3d 204, 213 (2d Cir. 2001) (“Just as law enforcement officers are entitled to have their conduct insulated from liability by assessing the circumstances confronting them through the eyes of a reasonable officer . . . they must expect to have their actions assessed by the standards of a reasonable officer when liability is sought to be imposed.”). In United States v. Quintero, 21 F.3d 885, 890 (9th Cir. 1994), the Ninth Circuit defined “heat of passion” as “some extreme provocation, beyond what a reasonable person could be expected to withstand, severely impair[ing] her capacity for self-control in committing the killing.”

         Offenses that can be categorized as voluntary manslaughter comprise what some courts have termed a “limited” category. See United States v. Livoti, 22 F.Supp.2d 235, 245 (S.D.N.Y. 1998) (“[This] offense cannot be shoehorned into the limited category of voluntary manslaughter.”). For example, courts have generally found that adultery is adequate provocation for a voluntary manslaughter instruction. United States v. Comer, 421 F.2d 1149 (D.C. Cir. 1970) (holding that a defendant who fatally stabbed his wife after finding her in bed with another man was entitled to a voluntary manslaughter instruction). Courts have also found that where there is evidence a person was scared for his life, a jury should be instructed on voluntary manslaughter. For example, in Kinard v. United States, 96 F.2d 522, 525 (D.C. Cir. 1938), the court found that the jury should have received a voluntary manslaughter instruction where the defendant testified that his wife, while holding a knife, told him “I am going to get you” and shoved him in the back of the head. Even under these facts, however, the Kinard court reasoned that the evidence was “overwhelmingly indicative of murder rather than manslaughter.” Id.

         In arguing that “heat of passion” applies, Slager contends that when ordered to stop running, Scott yelled back “Fuck the police.” ECF No. 129 at 13. Words alone will not suffice for a “heat of passion” finding. United States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990) (“[M]ere words by a pretrial detainee [cannot] justify the use of physical force by a police officer.”). To decide the reasonableness of Slager's alleged “heat of passion” in confronting someone who fled after being stopped for a broken brake light, the court must determine what happened in the minutes immediately prior to the events captured by the Santana video. Most saliently, it depends on whether Scott was ever “on top of” Slager during the ground altercation and/or was in control of his taser, and whether Scott tased or attempted to tase Slager. Government expert FBI Special Analyst Tony Imel (“Imel”) testified during the sentencing hearing that based on his reverse projection photogrammetry analysis, Scott was over sixteen feet away from Slager when Slager fired the first shot.[1] Sentencing Hr'g Tr. 174:23-25, Dec. 4, 2017. Imel further testified that Scott was nearly forty feet away by the time that Slager fired the seventh shot.[2] Id. at 177:8-16. The Santana video makes clear that at no point did Scott turn around, let alone attempt to attack Slager.

         There are two people who can testify about the events that took place before the Santana video-Slager and Santana, the bystander who witnessed the incident and filmed portions of it on his cellular phone. As explained in more detail in section II.B.4, Slager gave different stories to NCPD officers at the scene, to SLED investigators in the 72 hours after the shooting, during his trial in state court, and in the pretrial proceedings in federal court. Due to Slager's evolving stories of what happened before and during the shooting, he is not a credible witness. On the other hand, a review of the statement that Santana gave to SLED, Santana's state court testimony, and his federal court testimony reveals a consistent story that is at odds with Slager's presentation of the sequence of events-and indeed the events themselves-making Santana a more credible witness. Therefore, the court credits Santana's eyewitness account of the incident.

         SLED Agent Andrea Peterson (“Peterson”) interviewed Santana on April 10th, 14th, 20th, and 21st in connection with the Scott shooting. Peterson's memorandum of the interview-which Santana was given the chance to amend if needed-is consistent with Santana's state court and federal sentencing hearing testimony. In his statement to SLED, Santana described Scott's actions “to be as if someone was trying to grab you and you didn't want them to control you.” Def. Ex. 23. Santana said “he could see both of Scott's hands” and that Scott did not have anything in his hands. Def. Ex. 23. Santana further explained that he saw Scott begin to run, “and that was when” Slager took his gun out and shot at Scott several times. Def. Ex. 23.

         In the state trial, Santana testified that “Scott just tried to get away from the taser, ” and that he “didn't see [the taser] in Walter Scott's hands.”[3] State v. Slager, Charleston Cty. Ct. Gen. Sess., 2015-A1010201687, Trial Tr. 24:7-8, 24:23-24, Nov. 4, 2016 (hereafter, “Nov. 4 Tr.”). When asked about the ground altercation, before the first shot was fired, Santana testified that “[t]he officer was on top.” Id. at 25:16-22. When asked if at any point Scott was on top, Santana answered that he “didn't see” Scott ever being on top. Id. Santana later reiterated that Slager was on top at all times during the ground altercation, and that “[i]t was just [Scott] trying to get away from the taser. And when I say a lot of movement, I don't mean being in a steady position. I mean moving trying to stand up.” Id. at 26:2-8. While Slager and Scott were on the ground, Santana saw Slager “on top of Scott . . . punching [Scott] on the back.” Id. at 116:2-7. Santana acknowledges that Scott did get up at one point, but in what was an apparent attempt to “to get away.” Id. at 26:9-15. When asked if Scott moved towards Slager, Santana replied that Scott was “trying to get up . . . to get away from the taser.” Id. at 27:20-24. Santana testified that, upon getting up from the ground Scott did move “towards . . . this side” to “get away” from Slager, but Santana “didn't see any kind of gun, ” including a “taser or stun gun.” Id. at 28:2-11.

         During the sentencing hearing, Santana's testimony remained consistent with his state court testimony and the statements that he gave to SLED. Santana began by discussing that he saw “a tasing in the street, ” and that the first thing he witnessed was “Walter Scott running.” Sentencing Hr'g Tr. 26:14-19, Dec. 4, 2017. When Santana witnessed the ground altercation, he saw Slager “in a tussle” with Scott, with Scott on the ground “facing down” and Slager “on top.” Id. at 28:12-17. When asked if Scott was ever “facing up towards” Slager during the ground altercation, Santana stated that Scott was “always laying face down”. Id. at 29:9-30:4. Indeed, Santana testified that during the ground altercation Scott was never on top of Slager, that Scott never punched Slager, and that Scott never fought with Slager. Id. at 30:5-15. Santana also testified that he never saw Scott taking control of the taser or “charging towards” Slager. Id. at 30:17-22. After Slager and Scott got up off the ground, Santana observed Slager “still holding” Scott, and testified again that at no point after Scott got off the ground did he assault Slager, take control of the taser, or charge towards Slager. Id. at 32:19-33:6. Scott then, according to Santana, “got off” the ground and in a “determined” manner began to run away, at which point Slager began to fire. Id. at 31:23-32:18.

         During the sentencing hearing, Slager offered Liscio as an expert forensic analyst who reconstructs crime and accident scenes to testify. Sentencing Hr'g Tr. 287:20-23, Dec. 5, 2017. Liscio created a 3-D model of the crime scene using the Santana video and a laser scan of the area taken by SLED, which allowed the viewer to see the position of Slager and Scott from many different angles. Liscio also used reverse projection photogrammetry analysis to determine the distances between Slager and Scott at each of the eight shots.

         A significant portion of Liscio's testimony revolved around his manipulation of the 3D video to determine the origin of the discarded taser-namely, whether it came from Slager or Scott's hand. Liscio came to the conclusion that the taser came from Scott's hand by looking at the 3D video, and determining through a process of elimination from where the taser came to rest. For example, Liscio surmises that:

“[I]f we were to say did [the taser] come from Mr. Slager's right arm . . . there's a couple of issues there . . . just like a baseball player would throw a ball, you need to follow through. So if you're throwing something, and throwing it away, and I assume you want to get rid of something, you don't want to have it in front of you, you would try to throw it as far away as you can from you.”

Id. at 311:15-25. However, when asked if there was any part of the Santana video where “a person can actually see the taser in Walter Scott's hand, ” Liscio admitted “there's no part in [the Santana video] where you can actually see the taser being held.” Id. at 331:9- 16. Indeed, Liscio further testified that there was no part of the Santana video where he could see the taser closer to Scott than it was to Slager. Id. at 331:17-20. Liscio finally testified that “if you look at, for example, Mr. Slager's right arm and where the taser is in relation to that, and you look at Mr. Scott's right arm and where the taser is in relation to that, you have to make your own judgment call.” Id. at 335:18-336:1.

         Liscio is certainly qualified to show the 3D video that he created from the Santana video. However, Liscio's opinion about where the taser originated from is one that any viewer of the video can form. Therefore, the court does not consider Liscio's opinion regarding whose hand the taser was dropped as credible. The court finds it particularly persuasive that none of the other experts who viewed the Santana video-including Grant Fredericks (“Fredericks), Slager's forensic video analyst, and Imel-opined on where the taser originated from. See id. at 235:3-8 (Fredericks testifying that the taser being “right behind Mr. Slager's left foot” was “the first time [the Santana video] can assist us with any information about the visual information about the taser.”); id. at 238:9-17 (At the point that Fredericks first identifies the taser in the Santana video, he testified that the taser is “inches behind” Slager's left foot, and Slager and Scott are “an arm's length apart” from each other.); id. at 239:1-7 (Fredericks testifying that when the taser is behind Slager, the Santana video clearly shows that Slager has his firearm in his hand); id. at 348:23-24 (Imel testifiying that he is “very adamant that we do not know where that taser came from”). Finally, Santana, who was an eyewitness to the ground altercation as well as the subsequent shooting, testified that at no point did Scott have the taser in his hands.[4] Sentencing Hr'g Tr. 30:17-22, Dec. 4, 2017. The court credits Santana's eyewitness account over Liscio's assumption, and finds that Scott did not have the taser at any point during the incident.

         Santana did not begin filming the Santana video until the ground altercation had already begun, although he witnessed more than he filmed. Id. at 31:5-7. Santana also did not see anything that may have occurred in the alleyway between the time that Scott ran away from Slager after the initial traffic stop-which is recorded on the dashboard camera video from Slager's police cruiser-and the ground altercation. But this period in the alley was very brief, and appears to consist solely of Scott running away from Slager.

         Slager's contradictory stories render him an incredible witness. Given the choice between Slager's self-serving, evolving, and internally inconsistent testimony and Santana's state court testimony, which he repeated during the federal sentencing hearing, the court gives more weight to Santana's account of events. Santana's testimony reveals that Scott was not on top of Slager during the ground altercation, that Scott never had the taser, and that Scott was running away from Slager when he was shot and killed.

         Having made the above factual determinations about what occurred on April 4, 2015, the court next turns to survey 18 U.S.C. § 242 cases to determine under what circumstances courts have applied the voluntary manslaughter cross-reference. In Livoti, the court held that “no reasonable police officer, would have lost self-control and been murderously aroused by a kid refusing to go home or by his brother telling the officer that there were no grounds for his arrest.” 22 F.Supp.2d at 244. The Livoti court found that resistance by the victim to having his hands put behind his back to be cuffed did not suffice to send a “reasonable police officer into a passion of rage in which he loses his self-control.” Id. (emphasis in original). Certainly, the level of resistance here is higher than that in Livoti-it is clear that at the very least Scott opened his car door and ran away from Slager after the initial traffic stop, and that there was a ground altercation before Slager began to fire at Scott. But Santana's state and federal testimony reveal that during the entirety of the ground altercation, Scott was on the bottom and did not assault or tase Slager. Furthermore, the Santana video shows that at the time Slager fired the first shot, Scott was running away, not pointing a taser at Slager or advancing towards him. The court finds that Scott's level of resistance was inadequate to send a reasonable police officer into a “passion of rage in which he loses his self-control.”[5] Livoti, 22 F.Supp.2d at 244.

         Similarly, in Velazquez, 246 F.3d at 213, the court found that there was no evidence for a “heat of passion” defense where an inmate was fatally beaten for refusing to obey a prison guard's command to reenter his cell. The Velazquez court noted that the victim was already in his cell when the fatal beating was administered, and that the beating was “not used to obtain compliance with a disregarded command; it was summary punishment for previous (and momentary) disobedience.” Id. The lower court applied the voluntary manslaughter cross-reference, finding that the prison guards acted in the “heat of passion” in response to the victim's refusal to comply with orders and verbal abuse directed at the guards. Id. at 210. The Velazquez court held that this verbal abuse and refusal to comply did not support a “heat of passion” finding. Id. at 213. The Velazquez court vacated the sentence and instructed the lower court on remand as follows:

[T]he choice between second-degree murder and involuntary manslaughter will turn on how great a risk of serious bodily injury [the victim's] assailants could reasonably apprehend would result from their assaultive conduct and what that risk reveals about the degree of their indifference to [the victim's] life . . . In particular, it will be necessary to determine whether there was a substantial risk that the repeated punching and kicking administered by [the prison guards] would inflict serious bodily injury on an average adult, sufficient to infer an extreme indifference to human life, or whether the resulting laceration of [the victim's] spleen occurred primarily because it was enlarged five or six times normal weight, a circumstance that was not reasonably foreseeable.

Id. at 215 (emphasis added). On remand, the lower court found that there was not adequate provocation and applied the cross-reference of second-degree murder.[6]

         The court finds that the ground altercation between Scott and Slager that ensued before the first shot was fired-at which point Slager admits that he employed unreasonable deadly force-was not the sort that would cause an “ordinary, reasonable law enforcement officer” to shoot and kill someone, and so a cross-reference to voluntary manslaughter would be erroneous. It is indisputable that shooting at someone's back eight times, with five shots hitting the victim, will very likely lead to death. Under these circumstances, the court finds that Slager's decision to fire eight shots at the back of a fleeing Scott evinces an “extreme indifference to human life.”

         Slager argues that “violations of 18 U.S.C. § 242 can commonly be accompanied by consistent verdicts of voluntary manslaughter.” ECF No. 128 at 21. In support, he cites to Velazquez, United States v. Moore. 708 F.3d 639 (5th Cir. 2013), and United States v. Warren, 2013 WL 1962291 (E.D. La. May 10, 2013). As discussed, in Velazquez the lower court found on resentencing that there was no adequate provocation and applied a second-degree murder cross-reference. See Regnier, 44 F. App'x at 525. The court now turns to consider Moore and Warren.

         In Moore, the Fifth Circuit upheld the district court's determination that the underlying offense was voluntary manslaughter where two police officers handcuffed the victim, kicked him in the torso, and struck him across the legs and torso with a metal police baton while he was on the ground. Moore, 708 F.3d at 639. The officers then drove the victim to a nearby hospital and told the hospital staff that the victim had “been found lying on the ground under a bridge and had a history of drug use, ” and the victim ultimately died from a ruptured spleen as a result of the beatings that the officers administered. Id. The lower court found that, based on the officers' initial encounter with the victim as well as the manner in which they delivered him to the hospital, the officers' conduct “so grossly deviated from the reasonable care standard that he must have been aware that a serious risk of bodily injury occurred.” Id. at 647.

         Warren arises from the fatal shooting of Henry Glover, in what the Fifth Circuit deemed “one of the nightmarish stories that arose from Hurricane Katrina in 2005-the physical devastation, human diaspora, and struggle of the City to maintain some semblance of law and order, and, in the chaos, a horrific failure of law enforcement.” United States v. McRae, 702 F.3d 806, 810 (5th Cir. 2012). David Warren (“Warren”), an officer of the New Orleans Police Department (“NOPD”), was patrolling an area of New Orleans four days after Hurricane Katrina made landfall, while the city was under a mandatory evacuation order. Id. at 812. Although there are conflicting stories of the shooting, it is undisputed that Glover was carrying likely-stolen items out of a shopping center parking lot when Warren shot at him from a breezeway overlooking the parking lot. Id. at 813. Warren and other NOPD officers then drove a car with a fatally wounded Glover in the backseat to an abandoned levee and set the car-with Glover's body inside-on fire. Id. at 817. The jury convicted Warren of violating 18 U.S.C. § 242 in Glover's death, [7] and found that his actions constituted manslaughter in violation of 18 U.S.C. § 924(j)(2). United States v. Warren, 2013 WL 1962291, at *2 (E.D. La. May 10, 2013).

         Although the courts in Moore and Warren both applied a voluntary manslaughter cross-reference, the court is not able to discern whether the government ever asked either court to apply a second-degree murder cross-reference at the sentencing phase. Notably, in Warren, it was the jury-not the court at sentencing-that determined Warren's actions constituted voluntary manslaughter. Here, the government objected to the PSR's application of the voluntary manslaughter cross-reference and has asked the court to apply the second-degree murder cross-reference instead. The court agrees that a cross-reference of voluntary manslaughter can be consistent with a § 242 violation. But this does not mean that a voluntary manslaughter cross-reference is appropriate under the circumstances of this case. As discussed, the court does not find that the events that transpired between Slager and Scott constitute “heat of passion.” The court has considered a number of cases involving a manslaughter cross-reference for guidance, and its analysis must necessarily focus on those cases where courts have actually discussed what circumstances constitute “heat of passion.”

         After careful consideration of the testimony and evidence presented during the sentencing hearing, the court finds by a preponderance of the evidence that Slager, while acting in his capacity as a NCPD officer, stopped Scott for a broken brake light. When Slager returned to his police car to run the details of Scott's driver's license, Scott fled. Slager gave chase, and deployed his taser on Scott multiple times. Even after being tased, Scott kept running. At this point, bystander Santana became aware of the chase. After briefly passing out of sight in an alleyway, Santana observed Slager and Scott in a ground altercation. At all times during the ground altercation, Scott was never on top of Slager and never had the taser in his hands. After getting up from the ground, Scott ran away from Slager. Instead of giving chase once again, Slager shot at Scott eight times. Five of these shots hit Scott in the back, and Scott died as a result of the gunshots. At no point after Slager fired the first shot-when Scott was over fifteen feet away-to when Slager fired the eighth shot-when Scott was nearly forty feet away-did Scott turn around. This conduct is a “gross deviation” from the standard of care of a reasonable police officer, and evinces malice aforethought as defined by the Fourth Circuit. The court has considered all of the circumstances leading up to the shooting-that Scott yelled “Fuck the police, ” that Scott ran away from Slager during the initial traffic stop and disobeyed commands to stop, and that there was a ground altercation immediately prior to the shooting-and finds that taken together, they do not constitute adequate provocation to apply the “heat of passion” mitigation.[8] Therefore, the cross-reference to voluntary manslaughter is inapplicable.

         2. Second-Degree Murder

         The elements for second-degree murder in violation of 18 U.S.C. § 1111 are: (1) the unlawful killing of a human being; (2) with malice aforethought; and (3) within the special maritime or territorial jurisdiction of the United States. There is no question that the shooting happened in the United States. By virtue of the admitted facts in the guilty plea, there is also no dispute that Slager unlawfully killed Scott. Therefore, the court must determine only if the Scott shooting evinces “malice aforethought.” It finds that it does.

         Malice aforethought “may be established by evidence of conduct which is reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.” United States v. Williams, 342 F.3d 350, 356 (4th Cir. 2003). The presence or absence of malice must be inferred from all the facts and circumstances surrounding a killing. United States v. Flemming, 739 F.2d 945, 947 (4th Cir. 1984). That standard is met here, as the facts admitted in the guilty plea establish that Slager fired eight shots at Scott and each of the eight shots was fired while Scott was unarmed and running away. ECF No. 114 at 3. Five shots hit Scott in the back. Id. The court holds that a jury could infer that shooting an unarmed man in the back as he was running away was a “gross deviation” from the standard of care for a reasonable law enforcement officer. Certainly, shooting at Scott eight times as he ran away meant that Slager was at the very least aware that there was a risk of serious bodily harm. See United States v. Wood, 207 F.3d 1222, 1228 (10th Cir. 2000) (“‘[S]econd degree murder's malice aforethought element is satisfied by: . . . (2) intent-to-do-serious-bodily-injury ___'”) (quoting United States v. Pearson, 159 F.3d 480, 486 (10th Cir. 1998)); United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984) (Holding that to support a conviction for murder, the government “need only” prove that the defendant acted “without regard for the life and safety of others”).

         The court has examined a number of cases involving a cross-reference to second-degree murder to guide its analysis on the applicability of the ...

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