Review of the Case Against Ray Tensing

When a judge declared a mistrial in the trial of former officer Ray Tensing, charged with the 2015 murder of Samuel DuBose, it prolonged the anguish of the families of both Tensing and DuBose. According to the Christian Science Monitor, “…the Hamilton County prosecutor said jurors were leaning toward a lesser conviction of voluntary manslaughter and acquittal on the murder charge, but they could not reach agreement.”

Here is the original text from the book, “In Context: Understanding Police Killings of Unarmed Civilians”.

Samuel DuBose, a 43-year-old black man, was pulled over by Officer Ray Tensing of the University of Cincinnati Police Department, as DuBose drove his car in the Cincinnati suburb of Mt. Auburn on July 19, 2015. We don’t propose that this incident was justified – it looks, in fact, terrible. But we do say the event was more complex than has been portrayed in the media. After you read this we hope you will agree that context can change perspective.

The police said Officer Tensing pulled over Mr. DuBose for failure to display a front license plate. There are many times when it is appropriate to use no-front license plate as a probable cause for a stop - after all, it is right there in the traffic code along with speeding and requirements for, say, working headlamps and tail-lamps. We will come back to this with a thought a little later.

Tensing pulled over DuBose, and politely chatted with him. Having watched the official police video, in our opinion, Tensing behaved in a professional and courteous manner throughout the stop. Tensing properly introduced himself to DuBose. After discerning that DuBose owned the vehicle, he informed DuBose that he was being stopped for failure to display a front license plate. He asked DuBose repeatedly whether he could produce his driver license.

For his part, DuBose appeared in the official police video to be avoiding the question about his license. About 40 seconds into the video, Tensing observes a bottle of what later turned out to be air freshener in a bottle marked, “Barton’s Gin” on the driver-side floor of the vehicle and requests DuBose hand it to him. Tensing asks again the direct question, “Do you have a driver license on you?” and when DuBose finally admits that he does not, Tensing asks DuBose to honestly state whether he, DuBose, is driving on a suspended license.

“OK, be straight up with me: are you suspended?” Tensing asks, and DuBose denies that he is. This is an important contextual moment. To police, when people don’t have a driver’s license with them, it is often because their license has been suspended. Furthermore, just prior to making the traffic stop, Tensing had entered the license plate of DuBose’s vehicle into his computer and learned that the owner of the vehicle’s license was suspended.

Since Tensing had already confirmed with DuBose that Dubose was the owner of the vehicle, Tensing now knew that DuBose had lied to himEhler, M., Brown, R., Mitchell, D., Nugent, W., & Batty, W. (2015, August 31). Review and Investigation of Officer Raymond M. Tensing’s Use of Deadly Force on July 19, 2015: University of Cincinnati Police Department [PDF]. Report to the Office of General Counsel, University of Cincinnati. New York: Kroll. . This is, of course, not justification for Tensing’s use of deadly force, but it is a contextual clue as to Tensing’s interpretation of DuBose’s words, and the filter through which Tensing would have likely viewed DuBose’s actions.

The incident begins to turn physical soon after this exchange. Tensing states that until he can discern Dubose’s license status and identity, he would be detained. While reaching to open the driver side door, Tensing asks DuBose to remove his seatbelt and get out of the car. DuBose prevents Tensing from opening the driver side door. In the official video at around 1:50, Tensing is seen reaching to open the door.

At 1:52 we see both Tensing’s and DuBose’s hands on the door, struggling with it. Between 1:53 and 1:54 we see a brief struggle between DuBose and Tensing, who has already drawn his pistol. At 1:55, a single gunshot rings out that presumably is Tensing shooting DuBose. We then see the camera perspective change as Tensing apparently falls backwards. We hear and then see DuBose’s vehicle driving away.

Tensing later claimed that, at the time of the shooting, he was being “dragged” by DuBose. Hamilton County prosecutor Joseph Deters said the body-camera evidence completely contradicted this account. In a blunt assessment of the officer’s conduct, Deters told the media that Tensing had “purposely killed” DuBose and that Tensing “should never have been a police officer.” The Associated Press reported, “Deters says the shooting of motorist Samuel DuBose in a ‘chicken crap’ stop over a missing front license plate was ‘asinine,’ and ‘without question a murder.’” Deters also said the university shouldn’t be in the policing business at all. The prosecutor said he thinks now-fired Officer Ray Tensing lost his temper because, “DuBose wouldn’t get out of the car.”

Several things are happening here. We will not comment on (because we don’t know) whether Tensing felt his life in danger at the moment he drew his pistol and fired. That is up to a jury to decide, and we won’t second-guess what the officer was feeling in the moment. We will say that, in our professional opinions, the video isn’t anywhere near as clear-cut as the media believes it is, and we were surprised, when we watched the entire video, to see that Tensing did not appear angry, hostile, or defensive, nor did he even appear to me to be escalating the situation unnecessarily. In fact, up to the moment of the scuffle, it would appear that Tensing was being courteous, polite and reasonable. As, in fact, Mr. DuBose also was, albeit while the latter was withholding information and lying.

The scuffle, as with most incidents in which law enforcement interactions turn violent, was very fast, and its dynamics are confusing. After the gunshot, the vehicle leaped forward and continued to another point, with Tensing giving foot pursuit. No one can tell whether this was due to Mr. DuBose attempting to flee, or whether Mr. DuBose had died and his leg extended involuntarily and depressed the accelerator. Given what is visible on the video, and with the strong caveat that we were not present when the incident took place, it would not appear to have been an unreasonable belief on the part of Officer Tensing that Mr. DuBose was attempting to flee. And since Tensing ended up on the ground after the scuffle and saw the vehicle driving away, it might not be unreasonable to believe that Tensing believed DuBose tried to drag him. We are not saying that happened, just that it is conceivable that this was Tensing’s belief. It is also entirely possible that Tensing began to cover his tracks from the moment after he fired, and that what we see on the video is theater. We just don’t know.

When the vehicle crashed and stopped, Tensing and another officer approached the vehicle with what looks like apparent genuine concern for their safety, judging their manner of approach and communication. This dynamic change in conditions and foot chase could conceivably change the perceptions of a reasonable person in this situation. As we said, Tensing’s statements about, “being dragged,” could just as easily have been personal confusion as fabrication: when a situation turns from conversation to deadly force within a two-second window, many people become confused.

We don’t have any idea what really happened here, and neither do you. The video is not as clear as we would hope, and even if it were, there are elements of this incident that could not be captured by it. We could not, for example, see Officer Tensing’s facial expressions or actions until they became visible in the frame. Video is a good, but not perfect, record of an event.

There’s no doubt that the media coverage of this event and the official incident report added to the confusion. We watched on television shortly after this incident as NYPD Deputy Commissioner of Intelligence & Counter-terrorism John Miller stated flatly on The CBS Morning News that Tensing was a murderer. That Tensing is white and DuBose was black became as much a part of the media retelling of this story as the facts of the case - and by doing this, the media knitted this incident into a national narrative of issues that fully transcend those of the case at hand in a way that isn’t helpful.

Ultimately, our point in discussing this incident is to say that it is emblematic of the main reasons we began this research project: to understand better how deadly force incidents involving police and unarmed civilians unfold, and to try and determine what lessons can be learned from them to reduce their incidence in the future through policy changes and training advances.

This cuts both ways. As the prosecutor mentioned, the stop could be referred to as “chicken-crap.” However there are two things worth considering when this video is viewed through a law enforcement lens. Officer Tensing cited the lack of a front license plate as probable cause for the stop, and we have seen evidence that this was true: DuBose himself admitted that the plate was not affixed to the front of the vehicle, and DuBose pointed to an object in the glove-box that he stated was the front license plate. Officer Tensing commented correctly and not in a hostile way that the glove box was not the legally required place to display the front plate. So there is no doubt that Officer Tensing did indeed have probable cause to make this stop.

More important, though, and rarely commented upon by the media, was the fact that early in the stop, Officer Tensing discovered an opened bottle labeled as alcohol on the driver-side floor of the vehicle. What we still do not know – even after reading the critical Kroll report, which is silent on the topic - is whether officer Tensing used the pretext of the front license plate to effect the stop in an effort to investigate what he suspected was a driver under the influence of alcohol.

The media has condemned Tensing for a murder before the trial (see, e.g., here) but many facts of the case have not yet emerged. The Kroll report was largely critical of Officer Tensing’s actions and failure to de-escalate, but it did not refer to the autopsy or toxicology report of Mr. DuBose, other than to mention it was unavailable at the time of the report’s drafting by Kroll.

Ultimately, the co-authors agree that, given the evidence in the public domain, the shooting by Tensing of Samuel DuBose was an unreasonable and unjustified use of deadly force. Whether he should be charged or convicted is a separate matter. This case is just not as simple as was cast in the press.

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A Review Of The Case Against Ray Tensing - November 13, 2016 -