“Stop or I Will Shoot;” Ferguson and Deadly Force by Officers of the Law

Update:  It turns out that the use of deadly force to stop a non-violent felon from escaping might be criminal under federal law.  So my analysis would be incomplete.  See below for details.

So I admit I had a hard time getting into this whole Ferguson mess.  After all, this whole thing started on August 9, 2014, when Mike Brown was shot to death by Officer Darren Wilson.  You know what I was doing on that day?  I was driving up to see my lawyer to prepare for my testimony that coming Tuesday.  So my mind was on other things as the community got outraged and riots started happening.  So once it was going, then I had trouble getting to the bottom.  As I said to a friend, “I’m looking for an on-ramp.”  And it took a few days to find it.

Let’s start with something really basic.  It is not conservative to blindly trust the police.  While law and order is a good thing, and indeed necessary to protect other freedoms, nothing is more conservative than to be appropriately skeptical of government.  And that guy or girl with a gun and a badge?  They’re the government.  And like any arm of the government it can be used for good or ill.  I think most cops are just trying to do the right thing.  But even the most well-intentioned can do the wrong thing.  I don’t want you to think I hate cops, either.  There just has to be an appropriate balance, where we are appropriately skeptical of power, but not actively prejudiced against it (and those who exercise government power), either.

But at the same time, I was starting to hear some bad, familiar notes.  A shooting where the facts were not known, but lots of people seemed to assume they knew who was right and who was wrong.  Profound ignorance of the law in this area.  A seeming assumption that because the shooter was white and the man shot was black that this was automatically murder.  And people saying that the case is emblematic of larger problems.

Let’s take that last point on for a moment here.  There may be an unjustifiable lack of diversity in Ferguson’s police force.  There may even be too much racism in their police force, or too much police brutality, or some unholy mix of the two.  Writing from halfway across the country I feel fundamentally unqualified to say anything about those claims.

But even if all that was true, that tells us nothing about this cop, Wilson, no more than the color of Brown’s skin tells us about his criminal record.  Even well-documented trends tell us nothing about individual cases.  And using an individual case, where the facts are uncertain, to tell us about a trend is nothing more than prejudice hidden under the mask of social consciousness.

The same goes for conservatives who start to say, “oh, this is the Trayvon Martin case all over again.”  Just because you see someone leaping to a conclusion of guilt doesn’t mean they are wrong, either.  If Wilson is guilty of murder, then what you can say is such people are “accidentally right.”

Now, first what precisely happened?  That is hard to know.  Mark Hanrahan over at Investor’s Business Times does a good job wrapping up some eyewitness accounts.

Accounts of what happened during Brown's final moments vary significantly. Most agree that there was a verbal exchange on the street followed by a scuffle between Brown and Wilson, with Brown outside the car leaning in, or being pulled in. During this exchange, Wilson's gun went off, and Brown and his friend ran. Wilson then got out of his car and fired at Brown, who stopped and turned to face the officer.

This is the part where the various witness accounts diverge and the most significant differences creep in. Some witnesses claim that Brown had his hands up and was gunned down. Wilson, and reportedly some witnesses, claim that Brown charged him, forcing him to fire.

Dorian Johnson, 22, who was with Brown at the time of the shooting was quoted in USA Today as saying that following a verbal altercation, Wilson tried to pull Brown through the window of his patrol car, a significant deviation from the officer's account.

"[Then] he says, 'I'll shoot,' a second later the gun went off and he let go [of Brown]," Johnson reportedly said, denying that Brown had tried to reach for Wilson's weapon.

Describing the moment Brown, who all accounts accept was not armed, turned to face the officer, Johnson said: "My friend started to tell the officer that he was unarmed and that he could stop shooting. Before he could get his second sentence out, the officer fired several more shots into his head and chest area. He fell dramatically into the fatal position. I did not hear once he yell freeze, stop or halt. it was just horrible to watch."

Another witness, Tiffany Mitchell, 27, said that Brown was shot while he had his hands up.

“After the shot, the kid just breaks away. The cop follows him, kept shooting, the kid’s body jerked as if he was hit. After his body jerked he turns around, puts his hands up, and the cop continues to walk up on him and continues to shoot until he goes all the way down,”

CNN reported that an account of the shooting from the officer's perspective, which was phoned into a St. Louis radio station, was consistent with the investigation's understanding of Wilson's version of events.

The account, from a woman calling herself "Josie," says that, after a verbal exchange, the officer tried to get out of his cruiser but was pushed back inside by Brown. She then alleges that Brown punched Wilson and tried to grab his gun, which subsequently went off.

According to her account, Brown and his friend then fled and were pursued by Wilson, and asked to stop. When Brown turned around, he began taunting Wilson and then charged him at full speed. Wilson then fired on Brown, killing him. The New York Times reports that, according to investigators, “some witnesses” have backed up the account, but gave no further details.

However, another witness, Michael Brady, 32, who lives on the street where the incident took place, contradicted the claim that Brown had charged at Wilson.

Speaking to Anderson Cooper, Brady described Brown as “facing the officer... he's balled up... he had his arms under his stomach and he was... going down and the officer lets off three or four shots at him." Asked by Cooper if he had seen, as the officer's account suggests, Brown running toward the officer, Brady said that he did not.

That "Josie" account comes from Dana Loesch’s radio show, which she posted on YouTube:

On Dana’s own website states that “[t]he woman said that she came by the details via Wilson’s significant other,” and she admits that pretty much none of that is verified.  As us lawyers call that, it is at best double hearsay, and I think Dana would admit that this is not entirely reliable as a result.  After all, Josie could be reporting accurately, but Wilson’s “significant other” did not report accurately to her.  Or Wilson himself might not have told his significant other the whole truth.

At the same time much of this is contradicted by what the autopsy revealed as both Hot Air and The Washington Post noted.  First, from the WaPo:

He cautioned against drawing conclusions from the autopsy. “Right now there is too little information to forensically reconstruct the shooting,” he told the Times, but added: “In my capacity as the forensic examiner for the New York State Police, I would say, ‘You’re not supposed to shoot so many times.’”

He also told the Times about Brown’s head wounds.

“This one here looks like his head was bent downward,” he said, indicating a wound at the top of Brown’s head. “It can be because he’s giving up, or because he’s charging forward at the officer.”

Baden, 80, a veteran medical examiner who has performed 20,000 autopsies, reviewed the autopsies of John F. Kennedy and Martin Luther King Jr. and hosted the HBO show “Autopsy,” said the bullets hit Brown in the front, but the absence of gunpowder showed they were not fired at close range. Baden also said nothing indicated Brown had been in an altercation. This seems to contradict the statements of Brown’s friend, Dorian Johnson, who said the officer now identified as Darren Wilson grabbed Brown’s neck with one hand and shot him with the other.

And then at Hot Air they come up with other accounts, also somewhat contradicted by the autopsy.  Oh, and if that is not confusing enough, then we have one of the guys involved in that autopsy, Shawn Parcells, pumping up his credentials.  But you will notice that Parcells is not mentioned above, but instead a “Baden” as in Michael Baden, who has rock solid credentials.  The Pathology Blawg doesn’t seem to think that this affects the ultimate results, and that may be objectively true, but I didn’t think the lab missteps in the OJ Simpson case exonerated him, either, but a jury thought differently.  Remember, we are talking about potential criminal prosecution and in that circumstance, if the defense can get the jury to throw up its hands and say, “I don’t know what happened!” the defendant wins by default.

Then we get the issue of the prior robbery/shoplifting.  I’m with Patterico on this, of course it is relevant.  First, it’s not clear if Patrick Frey knows this, but apparently(allegedly) Officer Wilson was aware of the robbery and did suspect that Brownhad committed it.  The jaywalking is evidently what first got his attention, but it was the cigars Brown allegedly stole, right in his hand, that kept his interest.

Second, it is relevant because it suggests that Brown might have had a motive to get violent when confronted with the police.  And finally, means that Brown’s family is not likely to get on the stand and say, “Mike would never hurt a fly,” because it would allow the defense to show the jury this:

None of this means that Brown’s life was forfeited, but he is simply not treated the same as a little old lady who did nothing to no one.  That’s life.

Finally, we are getting unconfirmed anonymous reports—so not very reliable—that Wilson was left by the incident badly beaten and that indeed Brown broke his eye socket:

Darren Wilson, the Ferguson, Mo., police officer whose fatal shooting of Michael Brown touched off more than a week of demonstrations, suffered severe facial injuries, including an orbital (eye socket) fracture, and was nearly beaten unconscious by Brown moments before firing his gun, a source close to the department's top brass told FoxNews.com.

All of these potential facts are significant, but they are potential facts.  We got numerous eyewitness accounts that have been untested—indeed some from twitter, which makes me particularly uneasy.  We have a “meh” autopsy, that contradicts some of those eyewitness account and provides a great deal of ambiguity.  We have this robbery situation and now these alleged injuries.

And we get crushing ignorance of the law, which is the final problem here that I can absolutely clear up.  First, it is commonly asserted that the cop could only shoot if his life was in danger.

Folks, that isn’t true for you and me and it certainly isn’t true for a cop.  From Mo. Rev. Stat. § 563.031:

1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or

(c) The aggressor is justified under some other provision of this chapter or other provision of law;

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;

(3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

(1) He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or

(3) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual claiming a justification of using protective force under this section.

3. A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining. A person does not have a duty to retreat from private property that is owned or leased by such individual.

4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

5. The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.

So as we see in most states, there is a sharp division between what is termed “deadly force” and ordinary force.  Now, there doesn’t seem to be much room for doubt that Wilson’s force against Brown was ultimately deadly—he’s dead after all—but it is worth looking up the definition of “deadly force” for another reason: because Brown might have used that against Wilson.  That definition can be found in Mo. Rev. Stat. § 563.011(1), which states that “Deadly force” is “physical force which the actor uses with the purpose of causing or which he or she knows to create a substantial risk of causing death or serious physical injury.”  Now previously in the Zimmerman case I dealt with Florida statutes that made the standard “great bodily harm” and showed how breaking Zimmerman’s nose was arguably already “great bodily harm” justifying deadly force under that state’s laws and that even if it wasn’t, it was well on the way to being there.  I haven’t done a similar analysis for “serious physical injury” but I recall from that research that the term is very similar if not identical.  So breaking a person’s eye socket is likely to be a serious bodily injury (if verified) and even if it wasn’t a person can reasonably fear such a serious bodily injury at that point...  if Brown was still presenting a threat.

But as you might have noticed there was a specific reference to the police which brings up a whole new world of justification* under the law.  So next we have Mo. Rev. Stat. § 563.046 (same link).

1. A law enforcement officer need not retreat or desist from efforts to effect the arrest, or from efforts to prevent the escape from custody, of a person he reasonably believes to have committed an offense because of resistance or threatened resistance of the arrestee. In addition to the use of physical force authorized under other sections of this chapter, he is, subject to the provisions of subsections 2 and 3, justified in the use of such physical force as he reasonably believes is immediately necessary to effect the arrest or to prevent the escape from custody.

2. The use of any physical force in making an arrest is not justified under this section unless the arrest is lawful or the law enforcement officer reasonably believes the arrest is lawful.

3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only

(1) When such is authorized under other sections of this chapter; or

(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested

(a) Has committed or attempted to commit a felony; or

(b) Is attempting to escape by use of a deadly weapon; or

(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.

4. The defendant shall have the burden of injecting the issue of justification under this section.

So in fact the cop doesn’t have to believe he is personally in the slightest danger at all.  He just have to believe that a person has committed or had attempted to commit a felony and that it is immediately necessary to use deadly force to stop him.  In short, the cops are sometimes allowed to shout at fleeing suspects, “Stop or I’ll shoot!” and mean it.

Now, taking a few cigars doesn’t appear to be a felony.  I mean, I don’t think a few convenience store cigars are likely to add up to being worth more than $500 as required by the relevant statute.  But that might not matter.  First, the officer is justified in using non-deadly force initially.  So believing he stole the cigars is sufficient.  And then what felony might justify using deadly force?

Well, assault in the first degree, for one, which is defined in Mo. Rev. Stat. § 565.050 as:

1. A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.

2. Assault in the first degree is a class B felony unless in the course thereof the actor inflicts serious physical injury on the victim in which case it is a class A felony.

So again if Wilson’s eye socket was broken, and that is serious bodily injury, that’s a slam dunk in terms of whether that is a felony.   And that is just the general assault statute.  There are also a number of statutes that apply to assault of a police officer and it turns out that you don’t have to cause serious physical injury for it to be an assault on a law enforcement officer under Mo. Rev. Stat. § 565.082 (in relevant part):

1. A person commits the crime of assault of a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer in the second degree if such person:

(1) Knowingly causes or attempts to cause physical injury to a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer by means of a deadly weapon or dangerous instrument;

(2) Knowingly causes or attempts to cause physical injury to a law enforcement officer, corrections officer, emergency personnel, highway worker in a construction zone or work zone, utility worker, cable worker, or probation and parole officer by means other than a deadly weapon or dangerous instrument;

So in that case, causing any physical injury or merely attempting to do so violates this statute, and that is also a felony.

Now does any of this add up to Wilson being right and the shooting justified?  No, in all frankness, we don’t know all the facts, yet.  It could be the case that Brown really did seem like he was surrendering and in that case, the shooting is not justified even if he did break Wilson’s eye socket.  And that is the critical question.

So is this wrong?  At this point, we don’t know, and the correct answer is to reserve judgment until we do know.

But unfortunately we may never know.  Via Mark Steyn:

The most basic problem is that we will never know for certain what happened. Why? Because the Ferguson cruiser did not have a camera recording the incident. That's simply not credible. "Law" "enforcement" in Ferguson apparently has at its disposal tear gas, riot gear, armored vehicles and machine guns ...but not a dashcam. That's ridiculous. I remember a few years ago when my one-man police department in New Hampshire purchased a camera for its cruiser. It's about as cheap and basic a police expense as there is.

Mark Steyn goes on to talk several people who were saved from lying cops by dashcams.  I’m not sure I want cops having body cameras—seriously, think over your daily routine and imagine if all of it was filmed even when you do stuff that would be really embarrassing if filmed—but dashcams do seem basic, while providing some ability of a cop to not be "on camera" all the time.  And regular readers know that sometimes security cameras are vital to getting at the truth:

Finally, even if it is legal, it doesn’t follow that this is right.  Mark Steyn goes on to talk about the over-militarization of the police, and I think he makes some valid points, but wholly apart from that, you might feel that we allow cops to use deadly force when they shouldn’t.  But for the love of God, start by understanding what the rules actually are before you criticize them.  Follow my links.  Read the actual law.  And think about it both from the perspective of the shooter and the shootee.

But we are certainly not looking at a scenario of an innocent gentle giant like the character in the Blind Side.  And if he broke that cop’s eye socket, even if the cop was ultimately wrong to shoot, it is plainly not outrageous that he shot him.  Or as I said on twitter:

I think if you break a cop's eye socket in any state, you should not act surprised when you're shot @MisterPriddy @BenHowe
— Aaron Worthing (@AaronWorthing) August 19, 2014

Whether out of anger, or the lawful application of force under the law, whether legally or morally justified or not, this shooting doesn’t seem to have broader social significance, contrary to what many wish to assign.

And hopefully one way or another, justice will be done, whatever that may be.  And at this point I think anyone pretending to know what justice is, is fooling themselves.

Update: Well, it turns out my analysis is incomplete.  What can I say, I am not a criminal lawyer, and I certainly haven’t dealt with the use of force by the police.  So let’s review.  As noted above, Mo. Rev. Stat. § 563.046 states that

3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only [...]

(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested

(a) Has committed or attempted to commit a felony; or […]

This would seem to imply by statutory construction that Missouri law allows a cop to shoot a man who has committed, say, felony theft, when that person is attempting to escape.  And that statutory analysis seems solid, but in that case, he would have a new problem: the Fourth Amendment.  Thanks to Andrew Branca, frequent contributor to Legal Insurrection and all around expert on the lawful use of force, points out that the Supreme Court has weighed in on how the Fourth Amendment applies to the use of deadly force by cops to stop a fleeing suspect.  This is because an arrest is considered a “seizure” for Fourth Amendment purposes, and thus subject to its limitations.  So this is what the Supreme Court said in Tennessee v. Garner (1985):

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

Now that suggests that this rump of the statute I just quoted might actually be unconstitutional as applied.  And that phrase “as applied” is key.  Normally the courts don’t strike down laws as a whole because a particular application of them is unconstitutional.  Instead the courts simply refuse to apply it to that situation where it is unconstitutional to do so.  Thus maybe this means that this provision is rendered a dead letter, insofar as it applies to non-violent felons and a cop could be convicted of murder for intentionally shooting a non-violent felon in order to prevent escape.

That’s a reasonable interpretation, but I think it’s an incorrect one.  Typically the Supreme Court does not read the Constitution to demand that we criminalize conduct.  And in the particular situation in Garner, they were not trying to do so.  Instead they were dealing with a civil suit, and the question of whether the cop who shot a fleeing (alleged) felon was immune from suit and the Court found that he wasn’t.  That is a world of difference from saying that a cop must be subject to state prosecution as a matter of constitutional law.

But at the same time, a violation of a person’s constitutional rights by a state actor is also a federal crime.  So you could see a situation where the state law cannot convict a police officer for using deadly force to prevent the escape of a non-violent felon—because these laws are still on the books in spite of Garner—but a federal criminal prosecution would be successful.

Does that apply here?  Well, again, we don’t know enough facts to conclude it does.  If, for instance, Wilson had a cracked eye socket it seems pretty reasonable for him to believe that deadly force is justified under the Fourth Amendment.  Garner says that “[w]here the suspect poses no immediate threat to the officer and no threat to others” that deadly force is not justified, but in my hypothetical, it would seem reasonable to believe Brown posed just such a threat.

And finally it is worth noting that local policies might conflict with that as well.  Which will not necessarily make it murder under state law, but it might subject him to discipline.

All of this, however, depends utterly on the facts, and we will need to wait and see on that.

---------------------------------------

* Typically self-defense and the defense of others—even necessity (i.e. “he put a gun to my head and said if I didn’t hack a bank and steal money, he’d kill me”)—are called justification defenses.  They mean, “yes, I did it and there is nothing wrong, as far as the law is concerned, with me having done it.”  By comparison insanity is considered an “excuse,” as in, “I did it, it was wrong, but I want to be excused from the full weight of punishment because I was nuts.”  By comparison when they just don’t prove the elements, you say something to the effect of “it lost on the elements.”

---------------------------------------

My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

---------------------------------------

Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.