A former North Charleston police officer who shot and killed an unarmed man in 2015 has lost an appeal arguing that a federal judge erred by sentencing him to 20 years in prison.

The former cop, Michael Slager, sparked national outrage after a bystander captured video of Slager shooting and killing Walter Scott as Scott was running away from a traffic stop. After a state murder trial ended in a hung jury, Slager entered into a global plea agreement in which he pleaded guilty in federal court to one count of depriving Scott of his civil rights under color of law and all of the state charges were dismissed.

Under federal sentencing guidelines, when a defendant pleads guilty to depriving a person of their civil rights, their sentence is based on the sentencing guidelines for the underlying offense. Prosecutors contended that Slager should be sentenced based on an underlying offense of second-degree murder; Slager argued that the proper underlying offense was voluntary manslaughter because Scott had provoked him.

In a 2017 ruling, U.S. District Judge David Norton agreed with prosecutors that second-degree murder was the appropriate cross-reference. Norton also applied a sentence enhancement for obstructing justice based on Slager’s false statements about the shooting to the South Carolina Law Enforcement Division.

Judge James Wynn, writing for a unanimous U.S. 4th Circuit Court of Appeals panel on Jan. 8, ruled that Slager’s sentence was appropriate. Wynn wrote that Slager had contradicted himself several times regarding what happened in the moments leading up to the shooting, while the bystander who filmed the shooting and testified at Slager’s sentencing hearing provided consistent and credible testimony.

This evidence, Wynn wrote, was sufficient to prove that Slager acted with malice and should have been sentenced under second-degree murder guidelines.

Wynn said Slager testified at his state trial that he was neither “provoked” nor “angry” during his interaction with Scott, and thus a cross-reference to a voluntary manslaughter charge would not be appropriate. The panel also found that the record supported Norton’s ruling that Slager’s shifting accounts of the encounter were “contradictory,” “self-serving, evolving, and internally inconsistent.”

“The record amply supports that credibility determination,” Wynn wrote. “Each time Defendant provided a new statement about the shooting, he put forward new details materially bearing on his application of force.”

Wynn said the district court did not err by finding the eyewitness’s testimony of the shooting credible and Slager’s testimony not credible.

“The court properly inferred, from these facts, malice as required for a second-degree murder cross-reference,” Wynn wrote.

Slager’s attorney, Elizabeth Anne Franklin-Best of Charleston, could not be reached for comment, nor could the U.S. Department of Justice due to the federal government shutdown.

The 24-page decision is United States v. Slager (Lawyers Weekly No. 001-005-19). The full text of the opinion is available online at sclawyersweekly.com.

Follow Bill Cresenzo on Twitter @bcresenzosclw

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