Make no mistake about it. Samuel Dubose was shot in the head at point blank range. The video obtained from Officer Ray Tensing’s body camera is shocking. According to news accounts of the incident, Officer Tensing, a University of Cincinnati Police Department patrolman, pulled Dubose over for a tag violation.
During the brief encounter that ensued, Dubose failed to give a straight answer about whether or not he had a drivers license. When Officer Tensing persisted in his questioning about the license, Dubose abruptly turned the car on and tried to speed away. In response, Officer Tensing drew his gun and fired a single shot that hit Dubose in the head. The car peeled off and crashed into a nearby tree where Dubose was found dead.
TWO SIDES; ONE STORY
Before you formulate an opinion about this case, you absolutely must watch the video obtained from Officer Tensing’s body camera first. I say this because there are two very distinct perspectives that will be taken in this case, likely depending on the viewer’s personal feelings about the latest spat of police abuses.
LETS START WITH OFFICER TENSING
One of the most dangerous aspects of police work are traffic stops. Every stop is an encounter with a stranger where the officer is completely exposed and the stranger is protected and on home turf. Danger to a police officer can come from a gun, a knife, or when a driver who decides to peel off abruptly.
In my practice as a criminal lawyer, I have seen cases where cops have been dragged down the street because their arm got stuck in the window of a fleeing vehicle during a traffic stop. In other cases, officers have been hit by uninvolved passing vehicles as they step backwards to avoid being hit by a fleeing traffic stop. In yet other cases, backup officers have been run over as they stood next to or in front of a fleeing vehicle. Police officers have also been run over by the rear wheels of a fleeing car because they didn’t get out of the way quick enough or didn’t jump far enough.
This is the reality of pulling cars over for police officers and it happens every day. In fact, Florida passed the Move Over Act (Florida Statute 316.126) which requires motorists to change lanes away from a stopped police car, when safe, to avoid hitting a officer conducting the traffic stop. Florida’s “Move Over” law was passed after a Florida Highway Patrol trooper was killed on I-95.
The bottom line is this – when a cop pulls you over, the number one thing on his mind is officer safety. When they stand next to your window and ask you questions, they are literally poised and ready for you to draw a gun or do something else that threatens them, including speeding off and running them over in the process.
That is why I am not surprised by Officer Tensing’s reaction when Samuel Dubose turned the car on and began to peel off.
This case presents a classic example of self-defense. To that end, the ultimate question to be answered was whether or not Office Tensing was justified in his use of deadly force against Samuel Dubose. Under the law, a person can use deadly force against another to defend themselves against death or serious bodily injury.
In self-defense cases, the question typically focuses on the reasonableness or unreasonableness of using such force in light of the circumstances present.
As this case proceeds to the courts, I expect lawyers defending Officer Tensing to point out that this traffic stop was lawful as well as calm and peaceful until Dubose made it dangerous. It is not like Officer Tensing was aggressive, escalating, or rude with Dubose, like the officer in the Sandra Bland case was.
By turning on his car and attempting to speed off, defense lawyers will argue that Dubose created circumstances that caused Officer Tensing to reasonably perceive a threat to his life and safety, which in turn triggered a reasonable instinctive reaction to defend himself.
They will argue that the issue in this case is not the fact that the shooting happened at close range or that Dubose was shot in the head. Defense lawyers will argue that the real issue surrounds the circumstances that prompted Officer Tensing to draw his gun and pull the trigger.
ANALYZING OFFICER TENSING’S BODY CAMERA VIDEO
A frame by frame analysis of this video is very telling and supports the defense position. Using the above video as a reference (other recordings will have different time stamps), we can garner the following information:
- At 1:49, Officer Tensing asks Dubose to take his seat belt off and tries to open the car door after Dubose fails to clarify the situation about his drivers license.
- At 1:51, Dubose begins to resist Officer Tensing’s efforts by using his left hand to pull back on the driver door as his right hand begins to move toward the car’s ignition.
- At 1:53, Dubose begins to turn the ignition.
- At 1:54, Officer Tensing drew his gun, but did not have his finger on the trigger. Was this due to training or did he see something that caused him to shoot after drawing his gun?
- At 1:56, the gun is fired one time. There is no other shooting for the rest of the encounter.
- At 1:57, Officer Tensing is knocked over and tumbles backwards onto the pavement. The camera clearly records the horizon moving 180 degrees.
- At 1:58, the camera’s field of view levels and Officer Tensing is seen with his butt on the ground and his feet in front of him as the vehicle moves away from him frame by frame.
- At 1:59, Officer Tensing gets up and runs after the car.
The fact that the fleeing car knocked Officer Tensing over, to the point where he literally flipped over backwards and landed on the pavement in a seated position PROVES that the force created by the car was real enough to kill or cause serious bodily injury. Luckily for Officer Tensing, he was not run over by the rear driver side wheel or dragged underneath the car.
When watching the video, most viewers will focus their attention on the horror of the point blank shooting. However, to limit one’s view simply to that aspect of the video is to only observe half a story.
It is IMPERATIVE to see how the force of the fleeing car literally knocked this grown man off his feet. Viewing the facts in this light, a jury must consider whether or not the use of deadly force was reasonable.
Moreover, a jury must consider how this encounter would have ended for Officer Tensing had he not shot Samuel Dubose.
If you re-watch the video, it is clear the shot is fired at 1:56 and then the engine is heard revving as the car speeds away. Shooting Dubose may have made the split second difference between getting knocked over and getting run over for Officer Tensing.
The Prosecution’s Argument
For the prosecution, this is a case about the unlawful use of deadly force. The black letter of the law is clear – force likely to cause death or serious bodily injury may only be used to defend oneself or others from death or serious bodily injury.
Prosecutors will also argue that University of Cincinnati Police Department’s protocol does not permit an officer to fire a weapon at a moving vehicle, unless it is absolutely necessary to defend life.
The prosecution will rely heavily on the shock value of the video. They will attack Officer Tensing’s self-defense claim by using the video to sway the jury’s emotions against Officer Tensing. In building their case, their goal will be to convince the jury that this is not a self-defense case but rather a senseless execution.
Seeing is Believing
The best type of evidence for trial lawyers is always the evidence that jurors can see. Depending on what side of case you are on, it can also be the worst type of evidence. When it comes to cases with video, seeing is always believing. In this case, the video can be viewed in two ways. It can be used as a tool to convey the horror of a person shot in the head at close range, thereby evoking feelings of anger, rage, revenge, disgust, and sympathy.
On the other side, the video, when broken down frame-by-frame, second-by-second, and then watched in its entirety, has evidence that substantiates a claim of self-defense. For instance, if the fleeing car was not a threat to Officer Tensing, why was he knocked over? Why was he not only knocked over, but flipped over head over feet to the point where he landed on the pavement in a seated position? The man literally tumbled.
WILL OFFICER TENSING BE FOUND GUILTY?
The outcome of a jury trial is still too far away to accurately predict. However, I will tell you that this case will be won or lost on jury selection. For the prosecution, a jury panel of people angry or distrustful of the police would be ideal. For the defense, a good jury panel will include at least one person who is neutral or who has positive feelings about police. Remember, for the prosecution to win, there must be a unanimous guilty verdict. For the defense to win, all they need is one person to disagree, stick to their convictions, and then contaminate the rest of the panel or cause a hung jury.
We will be following this case as it develops…