The cellphone videos of the July 5 confrontation that left Alton Sterling dead in the Triple S Food Mart parking lot are graphic, showing a Baton Rouge policeman kneeling on top of him open fire from point-blank range.

The clips, caught on two different phones by witnesses to Sterling's death and which run 48 and 35 seconds long, sparked several nights of protests in Baton Rouge and across the country, prompting a federal investigation into the shooting and placing the Baton Rouge Police Department under international scrutiny.

Five policing experts who reviewed the videos for The Advocate said the videos raised serious questions about the shooting, but most said it appeared unlikely that there's enough evidence to successfully bring a criminal case against Baton Rouge police officer Blane Salamoni, identified by a source as the policeman who fired the shots.

Four of the five experts expressed concerns about the apparent aggressiveness of the officers in dealing with Sterling, a CD peddler outside the shop who police were informed was armed, with the fifth stressing that not enough has been publicly released to draw any conclusions. Several also questioned why officers fired stun guns and tackled Sterling, moves that potentially put the policemen in far greater danger and left them with no ability to safely retreat.

But all said that without viewing the large amount of as-yet unreleased evidence — including 911 tapes, witness statements and several additional videos — it's impossible to draw definitive conclusions on the killing.

"There's no way to tell yet. There's so much we don't have yet," said Ronal Serpas, a Loyola University professor and former New Orleans Police Department superintendent. "We don't know what other angles are out there, what happened when they first approached him, what were the first words that were said, what were the first actions that were taken."

 

Federal officials last week refused to comment on the status of their criminal civil rights investigation or when the results of the probe that they began just days after the incident might be released. Although the August floods that ravaged the region displaced tens of thousands and focused both public attention and law enforcement resources on a new set of challenges in the Baton Rouge area, U.S. Attorney Walt Green said the floods didn't affect federal cases in the region "across the board."

When federal and state prosecutors begin to weigh the results of the FBI's investigation and decide whether to pursue criminal charges against the officers — Salamoni and Howie Lake II, who also wrestled with Sterling but isn't believed to have fired his weapon during the encounter — they'll consider a fairly narrow question, several experts said. That question would be: Did Salamoni reasonably fear for his life in the final seconds of Sterling's life?

"The question of a justified shooting comes down to that final moment," said Dennis Kenney, a professor at John Jay College of Criminal Justice in New York and a former police officer. "The benefit of the doubt in these kinds of cases generally goes to the police, and I think they'll have a very difficult time getting a conviction."

Philip Stinson, a former Ohio policeman and current professor of criminal justice at Bowling Green State University, said the legal evaluation of whether Salamoni was justified in the killing largely hinges on the movements of Sterling's right hand, obscured from view in both publicly released videos.

"If he was going for his gun, then it was a justified shooting," said Stinson, who nonetheless called the incident the result of "incredibly bad" police work. "It still raises questions as to whether it was appropriate for the officers to get themselves in that situation."

Even if another video angle appears to contradict police claims, Stinson said, it remains unlikely Salamoni or Lake would face prison time without clear-cut evidence against them.

"I don't believe the officers are going to be charged in this case because they got a call about a man with a gun, he had a gun and (the officers) used Tasers," Stinson said. "Even if there were charges to be brought, in my experience, juries are very reluctant to second-guess a police officer who's making a split-second life or death decision, especially in a street encounter with a gun."

Crucial questions about the shooting center around what happened between the officers and Sterling before the brief cellphone videos start. Triple S Food Mart owner Abdullah Muflahi, who witnessed the shooting and shot the second video, said he started recording about a minute after officers arrived. Muflahi described police as the clear aggressors and said Sterling appeared confused — repeatedly asking why the officers were approaching him — but didn't physically resist the officers.

The entire interaction was captured on the store's surveillance cameras, though that footage, as well as video from the officers' dashboard cameras, has not been publicly released. Both officers were wearing body cameras that fell off during the struggle, according to police. The footage and audio from those cameras has likewise not been released.

If the other videos showed Sterling "did nothing overtly aggressive toward police and, in the course of the struggle, made no movement toward his pocket where the gun was, that would be very damning evidence. That would create a reasonable argument that the police are aggressors," Kenney said. "It would have to be fairly clear evidence they were the aggressors and he made no movement that could be viewed as aggressive to them."

Ken Williams, a police use of force expert and former homicide detective in Massachusetts, said watching the two videos raised a number of red flags.

"Unlike most people in America, I've been involved in taking guns off of people, I've been shot at in the line of duty and I've had to shoot someone trying to take my life," said Williams, who now works as an expert witness. "Based on what's been released now, I don't like what I'm seeing."

But Williams said that unless other unreleased recordings show the officers making derogatory comments, using racial epithets or callously speaking about Sterling's shooting — which might suggest criminal intent — he said both will likely face, at most, non-criminal administrative punishment. Without very clear evidence, Williams said, a prosecution in the shooting would be extremely difficult under standards set by the U.S. Supreme Court on what constitutes unlawful police conduct.

Serpas, a longtime New Orleans police officer who also headed up the Washington State Patrol and the Nashville Police Department, said he's withholding any kind of judgment on the shooting until the full investigation is released.

Barbara Attard, a police oversight and practices consultant in California who's worked with a number of civilian oversight agencies, likewise said the videos don't offer enough information to determine if the shooting was justified. But, like a number of those interviewed for this story, Attard said the officers actions in the brief clip were alarming.

All of those interviewed beside Serpas said the videos suggest a series of bad decisions and poor tactics from the officers. The Baton Rouge Police Department and the president of the Baton Rouge police union both declined to comment on the criminal investigation. Attorneys presenting each officer declined to comment for this story, and detailed messages left for Salamoni and Lake were not returned.

Needless escalation?

Although Supreme Court precedent largely dictates that the question of whether a shooting is justified hinges on whether the officers acted reasonably in the final seconds, most of the interviewed experts said there are at least some indications the officers escalated the situation.

"It's certainly bad police work. I think any reasonable conclusion is it was badly handled — but that's very different than criminally handled," said Kenney. "Did they needlessly put themselves in the position where they had that fear?"

Kenney said the limited video evidence didn't show Sterling resisting the officers before being Tased.

"It's not entirely clear to me why they needed a physical response to begin with," Kenney said. "From them the little that I saw, it seems like there are a lot of things that could have and should have been done differently."

Attard said the simple fact that Sterling had a handgun in his pocket didn't necessarily justify the police officers' use of force in taking him to the ground and firing stun guns, given Louisiana's permissive firearms laws. It's unclear whether Salamoni or Lake knew Sterling or that Sterling had a criminal background — a previous felony conviction barred him by law from carrying a gun — or had reason to believe the weapon was being illegally carried.

And even if Salamoni and Lake were making a proper arrest, Attard said, taking a possibly dangerous man with a weapon to the ground created a potentially deadly situation.

"Because of the limited perspective, it's hard to really draw conclusions, but the two officers rushing in on someone who supposedly had a gun, taking them to the ground while not knowing where a weapon might be — I think that's dangerous," Attard said. "I think there are some real questions to be asked, coming from a video with a limited perspective."

Sterling's body movements — shoulders largely flat on the ground, left hand unclenched — as well as the spray of blood from the gunshots both suggested he wasn't trying to fight the officers on top of him, according to Williams.

Williams also questioned whether officers needed to immediately arrest Sterling, saying their tactics in doing so departed from anything he'd seen in training.

"They've just used the Taser and now they're closing in on someone they believe to have a gun," Williams said. "You want to make sure you're neutralizing the threat but making sure you don't have to shoot this person. It makes no sense to me from a tactical standpoint to rush in, bear hug the guy and take him to the ground if you believe he has a weapon."

Stinson had a similar take.

"If they knew they had somebody reportedly with a gun, they put themselves in the danger zone being about three feet away from him," he said. "I don't know how that happened."

Other prosecutions

Looming large over any decision may be the failure this summer of criminal prosecutions in Baltimore following the death of Freddie Gray, a 25-year-old black man who died in police custody in April 2015 after being left shackled and unrestrained in the back of a police van. Baltimore State’s Attorney Marilyn J. Mosby moved swiftly amid widespread unrest over Gray's death to bring charges against six officers — only to watch those cases disintegrate. Baltimore prosecutors dropped all charges at the end of July after three of the officers were acquitted in trials before judges and a fourth's trial ended in a hung jury.

"The inability to sustain any of the charges in Baltimore is going to have a big impact on prosecutors," Kenney said.

In order to win a criminal case against police shootings, testimony from fellow police officers questioning a defendant's actions is often necessary to convince a judge or jury, said Stinson, who's studied such cases.

"What often happens when officers are charged is another officer comes forward and says it wasn't justified or they didn't perceive a threat," Stinson said.

Such was the case in the fatal shooting of 6-year-old Jeremy Mardis last November in by deputy city marshals Derrick Stafford and Norris Greenhouse Jr. A Marksville police officer, Sgt. Kenneth Parnell III, captured the shooting on his body camera. Authorities say he told investigators he never drew his weapon and "didn't fear for his life" during the encounter, which also left Jeremy's father wounded. Stafford and Greenhouse are both awaiting trial in state court on counts of second-degree murder.

About a week after the final charges in the Freddie Gray case were dropped in Baltimore, a jury convicted Wesley Cagle, a 46-year-old Baltimore police officer, of first-degree assault for shooting a wounded man in the groin. Prosecutors there said the case against Cagle rested on the testimony of two other Baltimore officers who testified against him.

Even as federal authorities continue their criminal review of the shooting, Baton Rouge police internal affairs investigators are conducting their own inquiry into whether the officers violated departmental policies or strayed from their training at any point during the encounter with Sterling.

That review potentially takes in a far broader set of considerations — beginning with decisions by dispatchers about what information to pass on to the officers and including their initial interactions with Sterling — and carries a lower bar of proof.

The police chief can mete out discipline for officers based on a lesser set of evidence than might be required to prove a crime beyond a reasonable doubt.

"If the chief feels there's evidence officers violated policies and procedures, at that point he'll make the decision to punish or terminate the officers," said Lt. Jonny Dunnam, a Baton Rouge Police Department spokesman. But Dunnam noted that the decision by the police chief can be appealed to the Civil Service Board which, in the past, has overturned firings and other punishments for some officers.

"Ultimately, he [the chief] doesn't really have the final word — civil service does," Dunnam said.

Dunnam, a former internal affairs officer, said the ongoing review will look at the entire incident — from the initial 911 call to the officers actions after the fatal shots were fired — to see whether the policemen violated department policies.

Among the evidence in the internal affairs investigation will be compelled statements from the officers involved — questioning inadmissible in a criminal case because of 5th Amendment protections against forced self-incrimination.

Under state law, internal affairs investigators have 60 days to complete their review of the shooting — though under certain circumstances, that window can be extended, as has happened in this case with the agreement of the officers, Dunnam said. He also said the chief may wait for the results of the FBI's investigation before rendering a final decision.


Follow Bryn Stole on Twitter, @BrynStole.