After the U.S. Justice Department decided not to prosecute the two Baton Rouge police officers involved in the death of Alton Sterling, his family members and others turned their attention to state charges, citing new details of the encounter revealed by federal authorities.
Most jarring to many was that in the first few seconds of the encounter, the officer who ended up firing the fatal shots had pointed a gun at Sterling's head and said, “B****, I will shoot you in your motherf****** head" if Sterling didn’t put his hands on the hood of a car.
An attorney for the family, speaking to reporters minutes after federal officials described the circumstances of Sterling's death to his relatives, argued that the threat by Officer Blane Salamoni would help make a "phenomenal case" for state criminal charges against him, a process now in the hands of Louisiana Attorney General Jeff Landry.
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But experts interviewed by The Advocate — criminal defense attorneys, former prosecutors and legal scholars — all express doubt that such a case could be successful under state law.
Even if Salamoni's initial approach proves as aggressive as described — gun drawn followed by an expletive-laden threat to shoot if Sterling didn't comply with his order — the relatively strong self-defense provisions of Louisiana law and the deference frequently given to police officers by jurors may pose obstacles, the experts say.
And ultimately, several attorneys said the same set of facts that federal authorities said nixed civil rights charges — that video evidence didn’t prove whether Sterling was reaching for the loaded .38-caliber revolver in his right pocket at the moment Salamoni opened fire from point-blank range — also looms large for state prosecutors.
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The two main issues are whether the officers' actions provoked the situation and “whether they honestly and reasonably believed he was reaching for a gun," said Ken Levy, a criminal law professor at LSU. "It may all turn on provocation — and that's the murkiness of it."
Prem Burns, a longtime lead prosecutor in Baton Rouge who is retired, had a similar take.
"I think the two things that are going to be really important is if the gun is put to the head the way we've heard and if the officers ever saw Sterling's gun," she said.
When he announced the Justice Department was closing the 10-month investigation into the shooting without charges, Corey Amundson, the acting U.S. attorney for Baton Rouge, stressed the high burden of proof in federal criminal civil rights cases, which require a greater degree of intent than many Louisiana criminal charges.
Federal prosecutors faced convincing a jury that Salamoni didn't reasonably fear for his life when he pulled the trigger, Amundson said, noting that the officer at least twice yelled that Sterling was "going for the gun" as they struggled on the ground.
The degree to which Salamoni's decision to put his gun to Sterling's head was justified — moments not seen on widely publicized cellphone videos but at least partly captured on other, unreleased footage from that night — will play a central role in determining whether a legal case exists for murder, manslaughter, negligent homicide or other state charges, the legal experts said.
Louisiana law provides relatively robust protections for anyone using force in self-defense and makes further allowances for law enforcement officers who use force to carry out their duties, they said.
But the initial aggressor in a confrontation can't claim self-defense under state law, said Jim Boren, a veteran Baton Rouge defense attorney.
“The legal question is whether the officer's threat to kill Sterling is reasonable," Boren said. "He didn't shoot him, but he basically said, 'comply or die.' ”
The other officer, Howie Lake II, arrived at the Triple S Food Mart first that night, responding to a 911 call about a man matching Sterling's description having threatened someone with a gun in front of the shop. Lake twice ordered the tall and heavyset 37-year-old to put his hands on the hood of a car.
Sterling didn't do so, according to sources who've seen evidence in the case and spoke to The Advocate on condition of anonymity. But they also said Sterling made no overtly aggressive moves either and instead walked toward Lake while appearing confused and asking what the officer wanted. A police dispatcher had told the officers a 911 caller said Sterling had a gun in his pocket.
With his handgun drawn, Baton Rouge policeman Blane Salamoni first approached Alton Sterling…
Salamoni arrived about five seconds after Lake, coming in from Sterling's right. Drawing his gun, Salamoni made his threat just as Lake reached for Sterling's left arm, law enforcement sources said.
Salamoni's actions at least briefly had their intended effect: Sterling responded by placing his hands on the hood.
Boren and several other legal experts said a key decision will hinge on whether Salamoni's initial actions and words — which federal prosecutors and FBI agents called outrageous and unacceptable in two closed-door meetings with the Sterling family and community leaders — go far enough beyond the bounds of acceptable police tactics to be criminal.
"If Salamoni indeed threatened Mr. Sterling like the family is saying was disclosed to them, then Salamoni would be the aggressor," said Kelly Carmena, a Southern University law professor and former public defender.
The Baton Rouge Police Department doesn't have a specific policy on when officers should draw their weapons, said Sgt. L'Jean McKneely, a police spokesman. Instead, the decision on when to unholster a gun is governed by the more general use-of-force policy, which calls for officers to use "only the amount of force necessary to effect the arrest" but doesn't detail specific types of officer action.
Police officers are allowed by law to brandish or aim guns in ways regular citizens cannot, Boren said.
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Boren, who stressed that such cases revolve around the kind of specific facts and details not yet revealed in Sterling's death, called the reported account of Salamoni's actions "horrible police procedure" but said state law also tilts in favor of law enforcement officers who use deadly force.
When a defendant claims self-defense, Boren said, it's a prosecutor's burden to prove beyond a reasonable doubt that the shooter didn't, in fact, kill with justification. Combined with the reluctance of many jurors to second-guess life-and-death decisions made by cops, Boren said, that makes convicting an officer in an on-duty shooting extremely difficult.
"The easiest case for a defense attorney to defend is a police officer who killed someone in the course of their duties," Boren said. "Absent extraordinary circumstances, prosecutors just don't take those cases to trial."
Burns, the longtime Baton Rouge prosecutor, said she tried a number of officers for misconduct during her career and took several shootings to a grand jury, but none of the grand juries returned an indictment against a cop for an on-duty shooting.
Burns offered a list of details she'd want to consider before making a decision on criminal charges, beginning even before the officers arrived: How long had Salamoni and Lake been working that night? What other calls had they responded to? Did they communicate before arriving in separate patrol cars? And had they ever interacted with Sterling before?
"It's huge to their mindset," Burns said. "It's going to dominate the approach they take to the man."
Although the 911 caller said Sterling had a gun in his pocket — a fact relayed to both officers — Burns said she'd want to know whether either officer actually confirmed Sterling had a weapon before they wound up in the final, fatal struggle on the pavement.
Burns noted that grand jurors aren't inclined to indict in police shooting cases.
"I think they look at society today, they know it's violent, and they also know that a lot of officers are killed in the line of duty protecting them," Burns said.
Still, she didn't rule it out in the Sterling case, noting that the particular facts — as well as the abundance of video and other evidence — may persuade a grand jury to return an indictment.
But Ralph Capitelli, a veteran defense attorney and former prosecutor in New Orleans, said he believes the Justice Department's investigative findings virtually rule out state charges against the officers. He said state authorities, like the Justice Department, will be focused on whether Salamoni had an "objectively reasonable" fear for his life when he opened fire.
"The basic reasons that the DOJ did not go forward apply equally to the state case," Capitelli said. "A negligence-type case doesn't fit the facts at all. It's undisputed that this was an intentional and not a negligent action. The government found that the officer was intentionally defending himself."
Carmena and Burns both said manslaughter would be the most likely charge if Landry's office files charges or gets an indictment from a grand jury.
"I think if you're finding that Salamoni is at fault, it's because there's 'heat of passion,' the blood is boiling, and it's from provocation — it's from what Alton Sterling is doing," Burns said.
But Carmena also said she doubts Salamoni or Lake will face criminal charges, even if the evidence can be made to fit a strictly legal case for manslaughter or another count. The reason? The state's criminal code doesn't exist in a theoretical vacuum but is interpreted through the lens of Louisiana's generally conservative and adamantly pro-police populace.
"When an officer is involved, the general mentality is he must have had a valid reason for what he did," Carmena said. "So even if the facts would otherwise result in charges for a layperson, I do not believe they will actually be brought against the two officers here."
Such decisions now fall to the attorney general. Landry's office declined comment on the case, citing its ongoing investigation.
Landry is a conservative Republican and former policeman and sheriff's deputy from St. Martin Parish. On several occasions, he has blasted the softer approach to policing advocated by the administration of former President Barack Obama — arguing, for example, that the federal consent decree intended to curb law enforcement abuses in New Orleans hamstrings officers and amounts to "hug-a-thug" policing.
Landry took over the Sterling case after East Baton Rouge Parish District Attorney Hillar Moore III removed himself, citing long-standing relationships with Salamoni's parents, who are career Baton Rouge police officers. Several black leaders initially called for Landry, too, to step aside.
But those calls appear to have faded, at least for now. State Rep. C. Denise Marcelle, a north Baton Rouge Democrat who's been a vocal supporter of the Sterling family, recently said she has confidence in Landry's ability to fairly handle the case.
The attorney general met with the Sterling family and with local lawmakers to explain the next steps in his investigation and assure them he'd do "everything in his power to expedite the process while doing a thorough investigation."
Just how long that might take remains unclear. Marcelle said Landry didn't provide a timeline for his investigation.
Once the Attorney General's Office completes the review, Landry has several options in how to proceed. If he determines neither officer broke the law during the fatal encounter, Landry simply could announce he's closing the investigation without charges. Or if he determines criminal charges may be warranted, he can file any charge short of murder directly with a bill of information.
He also could present the case to a grand jury, a process that could last for hours or weeks, depending on how much evidence the attorney general decides to show jurors during the secret proceedings.
Burns said in such a high-profile and contentious case, she almost certainly would take it to a grand jury and present a full range of evidence and witnesses. The law mandates that nine of the 12 members on the grand jury would have to vote to indict, she said.
Although prosecutors, including Burns, push back against the idea, many defense attorneys argue that prosecutors largely dictate a grand jury's ultimate decision.
Prosecutors control grand jury proceedings — deciding what evidence to present and how to explain the applicable criminal law. Defense attorneys have no right to sit in or present a case of their own.
"The grand jury is a fig leaf for prosecutors," Boren said.
But Roy Fletcher, a veteran political consultant, said using a grand jury strikes him as a fair way to handle the matter.
"It just allows the community to make a decision, at least in some sense," Fletcher said. "Those are normal, regular, everyday East Baton Rougeans there to make a decision."
Advocate staff writer Jim Mustian contributed to this story.