Two years ago tomorrow University of Cincinnati Police Officer Ray Tensing, who is white, shot and killed black motorist Sam DuBose during a traffic stop.

The stop, DuBose’ attempt to drive away while dragging Officer Tensing down the road, and the fatal shot were largely captured on Tensing’s body-cam.  Today, after trying Tensing twice and achieving only two hung juries, Prosecutor Joe Deters announced that he is not seeking to try Tensing a third time, reports WCPO news and other sources.

We first covered this story here: “Sam DuBose Shooting: Let’s Go to the Video Tape.”

In that post we did a rather detailed breakdown of the body-cam video.

The raw video can be viewed here, as well:

The same day we made that blog post here, a mere 10 days after the events occurred, Prosecutor Joe Deters announced that he had secured a murder indictment against Tensing. Tensing, naturally, claimed that he shot DuBose in self-defense.

It is worth noting once again Ohio’s unusual burden of proof on self-defense. In 49 states, where self-defense is claimed in a homicide it is the burden of the state to disprove self-defense beyond a reasonable doubt.

In Ohio, in contrast, it is the burden of the defendant to prove self-defense by a preponderance of the evidence. This obviously makes the state’s task of overcoming a claim of self-defense vastly easier in Ohio than in any other state, given the same facts. We wrote about this oddity of Ohio law here in the context of Tensing’s trial here: Arcane OH Self-Defense Law Leaves Officer at Risk of Conviction.

Despite this burden of proof advantage, Prosecutor Deters was unable to secure a conviction in either of his two murder trials of Tensing.

Having now abandoned further efforts to prosecute under state law, Deters has forwarded the case files on to the Department of Justice for their review to determine if federal civil rights charges may be warranted against Tensing.

Federal civil rights charges would normally require some substantive evidence that Tensing acted out of racial animus in an effort to deny DuBose his civil rights.  It appears, however, that the only alleged evidence of alleged racial animus is the fact that during the stop Tensing was wearing a t-shirt under his uniform with a stylized Confederate flag printed on it:

Given that there remain several entire states that incorporate some facet of the Confederate flag in their own state flag design, it seems a bit of a stretch that mere possession of a Confederate flag T-shirt is sufficient evidence of racial animus to warrant a criminal conviction.

Indeed, the jury in the first trial of Tensing was permitted to see the T-shirt in evidence, and nevertheless declined to convict him under Ohio’s burden of proof on self-defense.  At the Federal level the burden of proof on self-defense will be on the government to disprove self-defense beyond a reasonable doubt, a vastly higher standard.

It seems worth noting that although these cases of white officers who shoot young black men that fail to arrive in conviction of the officer are routinely sent to the Department of Justice for review, I can’t immediately recall any case in which even the Obama DOJ went forward with a trial, much less achieved a conviction.  If someone would like to refresh my recollection on that, I’m all ears.

–-Andrew

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.