Officer shooting: What grand jury can consider

Law enforcement officers rarely face criminal charges when they shoot and kill someone while on duty.

Nationwide, “only three to five times a year is an officer criminally charged,” said Bowling Green State University criminologist Philip Stinson, who studies the issue. That’s out of an estimated 1,100 fatal officer-involved shootings every year. The number of those criminally charged is small, because most shootings are determined to be “justified.”

There is no reliable nationwide tracking of officer-involved shootings. Stinson’s data is mostly compiled through news reports and news releases.

The charges most often brought against officers, in cases Stinson has researched, are manslaughter or murder, he said.

A Hamilton County grand jury is believed to be considering whether to bring charges against University of Cincinnati police Officer Ray Tensing in the fatal shooting of Samuel DuBose during a traffic stop. DuBose, 43, was unarmed, although an incident report says Tensing thought he “almost was run over” by the car DuBose was driving.

Under Ohio law, grand juries can consider several charges in homicide cases: Aggravated murder, murder, voluntary manslaughter, involuntary manslaughter, reckless homicide and negligent homicide. The penalties range from the death penalty for aggravated murder to six months in jail for negligent homicide, a misdemeanor.

The most serious charge – aggravated murder – involves planning the killing in advance. The law calls that “prior calculation and design” and doesn’t appear to apply to the Tensing case.

An aggravated murder charge “would require the officer to determine he was going to shoot somebody before he got out of the car,” said Bill Gallagher, a former president of the Greater Cincinnati Criminal Defense Lawyer’s Association who has been practicing nearly three decades.

There’s also a straight murder charge, punishable by 15 years to life in prison. That involves “purposely” causing the death of another person.

“I point a gun, shoot at you, and you die,” Gallagher said in explaining a murder charge.

Tensing also could face a voluntary or involuntary manslaughter charge. The maximum penalty, if found guilty of that charge, is 11 years in prison. Voluntary manslaughter can involve an act by a victim that incites a suspect to use deadly force.

An involuntary manslaughter charge would likely involve an accidental discharge of Tensing’s gun – difficult to imagine, Gallagher said, given that DuBose was shot in the head.

Fourteen years ago, a grand jury indicted Cincinnati Police Officer Stephen Roach, who shot an unarmed teen during a foot chase, on a misdemeanor charge of negligent homicide. He was later acquitted.

Stinson found 54 officers nationwide charged in line-of-duty fatal shootings between 2005 and mid-April of this year. Of those, 11 were convicted, three cases were dismissed and 22 were not convicted, he said. Eighteen cases are still pending.

Trial juries, he said “are very reluctant to second-guess an officer’s split-second, life-or-death decision.”