University of Cincinnati police officers at scene of fatal shooting seemed to have corroborated false account given by officer Ray Tensing

Two officers who witnessed the shooting of unarmed 43-year-old Samuel DuBose in Cincinnati will not face criminal charges, despite seemingly corroborating a false claim that DuBose’s vehicle dragged officer Ray Tensing before he was fatally shot.

Samuel DuBose video appears to show two officers reinforced false account of police killing Read more

University of Cincinnati police officers Phillip Kidd and David Lindenschmidt were placed on administrative leave on Thursday after their body-camera footage of the incident was released. It shows both were behind officer Tensing at the time the shooting occurred.

In the footage both Kidd and Lindenschmidt make comments, confirming Tensing’s claim he was “dragged” by DuBose’s vehicle before the officer shot him. An incident report, written by a separate officer, and published two days after the shooting, also carries Kidd’s claims that he witnessed Tensing being dragged. This claim was later dismissed as false by Hamilton County prosecutor Joseph Deters who, after reviewing Tensing’s body camera footage, charged Tensing with murder.

On Friday, as Tensing was looking to get his job back and questions were being raised by federal officials whether false police reports could constitute obstruction of justice, Deters’ office announced that a grand jury had declined to bring any charges against the other two officers.

“Two UC officers arrived on the scene as Tensing was reaching into Mr Dubose’s car. Both officers made comments at the scene but later were interviewed in depth by Cincinnati Police Officers about what they had had witnessed,” a statement from the county prosecutor’s’ office said. “In their official interviews, neither officer said that they had seen Tensing being dragged.”

Deters said on Friday he was in full agreement with the decision.

“These officers were totally cooperative in the investigation and consistent in their statements,” he said in a statement.

He added there was “some confusion over the way the initial incident report was drafted” but added the document was “not a sworn statement by the officers” but “merely a short summary of information”.

“These officers have been truthful and honest about what happened and no charges are warranted,” said Deters.

It was unclear on Friday what charges the other officers at the scene had faced before the grand jury, which heard testimony from both Kidd and Lindenschmidt.

But Chris Bryant, a professor of law at the University of Cincinnati, said in an email they “might have been considered for indictment on obstruction of justice charges”. (The prosecutor’s office did not respond to a request for clarification.)

“In all jurisdictions, this would require some act or omission intended to interfere with the gathering of evidence,” Bryant said. “The question would be whether there is sufficient evidence that occurred here.”

According to Ohio state law, an individual may be considered for obstructing justice if they “communicate false information to any person”. In addition, “if the crime committed by the person aided is … murder” obstruction of justice is considered a third-degree felony under Ohio statute.

The decision by the prosecutor coincides with an announcement on Friday by the US Justice Department that an Alabama police officer was convicted of excessive use of force and obstructing justice.

The officer, Brett Russell, forcibly removed a “compliant and non-resisting” individual – identified by local media as Gary Wayne Hopkins – from the back of a police cruiser and “repeatedly punched and kneed” the detainee. Hopkins was then placed in leg shackles and transported by Russell to a local hospital for his injuries, the Justice Department said.

“Russell subsequently wrote and submitted a false report claiming that [Hopkins] tried to kick and head butt the officers,” the justice department said in a news release. “Further, Russell omitted from the false report any reference to the fact he had used force on [Hopkins].” The officer faces a maximum sentence of 20 years on the obstruction count.

While submitting a false police report “could” constitute obstruction of justice, Bryant said the Hamilton County prosecutor’s line of reasoning appeared to check out.

“[I] think that it makes sense for a prosecutor and a grand jury to look at all the evidence, including subsequent statements, in assessing whether an individual has acted with an intent to interfere with the gathering of evidence so as to commit the crime of obstruction,” he said.

Ric Simmons, a law professor at Ohio State University, said he’s not surprised at the lack of charges against the other officers.

“It is difficult to see what they would be charged with if they did indeed change their official story to tell the truth when the investigation was under way,” he said. “They can’t be charged with perjury, since they did not make any false sworn statements. They can’t be charged with obstructing official business, since (according to the prosecutor) they did indeed cooperate with the investigation an tell the truth during the formal investigation.”



The “best bet” would be obstruction of justice, he said, based on their initial false statements, but “that only works if they made the false statement with the purpose of hindering the discovery of a crime.”

“There is an argument that their initial statements were made with that purpose,” he said, “though I don’t think it’s a slam dunk.”

Since the officers cooperated with the formal investigation, Simmons said it’s unlikely Deters would want to present an aggressive case to the grand jury, as “it is always difficult to get police officers to testify against their fellow officers and it looks like these two did tell the truth when it really mattered.”

Meanwhile, it emerged on Friday that Tensing was seeking reinstatement on the UC police force through his union.

A representative from Tensing’s union, Thomas Fehr, told the Cincinnati Enquirer it filed a grievance on Thursday – and said the university has until 6 August to hold a hearing on the matter.

“We filed the grievance, No 1 because there was no just cause,” he told the newspaper, “and No 2 because he was not afforded his due process rights under the contract.”

The police union representative did not respond to a request for comment from the Guardian, but a spokeswoman for the university said UC had not changed course.

“The university stands by its decision to terminate Officer Ray Tensing,” UC police spokeswoman Michele Ralston wrote in an email.