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Should Darrell Wilson Be A Cop?

This is what Shaun King, a civil rights activist, claims happened when Ferguson police officer encountered Michael Brown on April 9, 2014, quoted from Daily Kos under Fair Use and edited (by me) for brevity and clarity, based on “six eyewitness accounts, confirmed audio of the fired gunshots, dozens of photos from the Aug. 9 shooting scene on Canfield Drive, visits to the crime scene by volunteers, and the publicly released autopsy results.”

12:00 PM: Mike Brown and Dorian Johnson are casually walking in the middle of Canfield Drive. … They notice a police SUV coming toward them.

12:00 PM: Officer Darren Wilson, driving past them, slows down and tells them “to get the fuck on the sidewalk.”  Brown remains silent while Dorian Johnson tells Wilson that they are just a minute away from their destination.

12:00 PM: Wilson, having passed them by, violently puts the car in reverse, screeching the tires in the street, nearly hitting Brown and Johnson, who are forced to jump out of the way, stops right next to them, and thrusts open his door. The driver’s side door only opens only a few inches because it hits Mike Brown and ricochets back into Wilson.

12:01 PM: A struggle ensues at the window of the police SUV, which causes Brown to lose his red, fitted baseball cap, found at this exact location after the shooting. Wilson immediately grabs at the neck of Brown as Brown tries to pull away, Wilson pulls his weapon, and threatens to shoot Brown. Brown’s hands remain outside of the SUV, and he uses the vehicle as leverage to pull away.  During this struggle, the first shot is fired from inside the vehicle by Wilson. It hits Brown in his chest/arm area.  Fearing for their lives, Brown and Johnson flee in different directions. Brown loses one of his flip-flops approximately 20 feet from the SUV. Johnson hides behind a black Monte Carlo.  Wilson, gun drawn, exits his SUV and prepares to fire at a fleeing Brown.

Begin Glide App Audio:

12:02:14 PM:  Wilson pursues Brown as he flees some 100-plus feet from the police vehicle.  During the pursuit, firing at the back of Brown, Wilson fires shots two (12:02:16 PM), three (12:02:16 PM), four (12:02:17 PM), five (12:02:17 PM), and six (12:02:17 PM) … [in] under three seconds, missing a fleeing Brown.

12:02:18 PM: Shot seven grazes Brown’s right forearm, at which point Brown turns around to surrender. There is a three-second pause after shot seven, as Wilson continues his pursuit of a surrendering Brown, closing the pursuit gap significantly. Brown, with his hands up, says, “Okay, okay, okay.  I’m unarmed, don’t shoot ….” Before Brown can finish his plea, Wilson begins to fire the last four shots that hit Brown.

12:02:22 PM:  In just under two seconds shots eight through eleven strike Brown …. Shots eight and nine (12:02:22 PM) strike Brown’s arm/hand while Brown’s hands are up. Brown’s hands come down and he staggers forward a few feet in the direction of Wilson.

12:02:23 PM: While falling to the ground, Brown cradles his arms close to him as Wilson fires shot ten (12:02:23 PM) into his eye and shot eleven … into the top of his head.

12:02:25 PM: Brown is dead on Canfield Drive—over 108 feet away from Wilson’s SUV.  The time from the confrontation at the SUV to Brown’s death takes just about one minute.”

http://www.dailykos.com/story/2014/10/15/1336564/-Since-St-Louis-has-decided-against-releasing-a-report-here-s-the-timeline-of-Mike-Brown-s-death?detail=email

Keep in mind this is not an official, professional, or necessarily impartial reconstruction.  It may be inaccurate; or conversely, the legal system may produce factual findings that are inaccurate (either deliberately or inadvertently).  In other words, what eventually emerges from the legal process may differ from this.

I see two main legal issues, which arise from the fact police officers (a) have the same self-defense rights all citizens do, and (b) are given authority to use force that civilians don’t enjoy, e.g. to prevent the escape of a fleeing felon.  If Shaun King’s reconstruction is accurate, Brown’s shooting doesn’t at first glance appear justified under either rationale.  But Wilson might be able to craft a defense like this:  The struggle at the patrol car put Wilson in a self-defense mode, and because assault against a police officer is a felony, Brown was a fleeing felon when he was shot.  As for whether Brown’s attempt to surrender negated this, Wilson might argue that things happened so fast he didn’t have time to react to Brown’s surrender attempt, and shooting at him after he tried to surrender was reflexive and inadvertent.  Given that grand juries, prosecutors, judges, and juries all to give cops the benefit of doubt, even working from a set of facts generally favorable to Brown, the prospects for a criminal conviction against Wilson don’t look very promising.

But whether Wilson goes to prison is almost beside the point.  If the true facts are anything like what Shaun King has pieced together, Wilson is guilty of abusive conduct even if the legal system exonerates him.  Abusing citizens is not what we pay police officers to do.  Should Wilson walk out of the courthouse a free man, he should not walk back into a stationhouse as a police officer, either in Ferguson or anywhere else.  But how can the public prevent him from serving as a police officer again?  Even if the Ferguson PD sacks him, what would prevent another department from hiring him?  In a word, go after his state license, as you would a doctor or lawyer accused of malpractice.

 

Missouri has a system for doing this.  Saint Louis University Law Professor Roger Goldman wrote in a 2001 law review article,

“According to Professor Jerold H. Israel, ‘if you want to do something about the police, the answer is not the Supreme Court … the answer is administrative regulations [or legislative remedies].’ Professor Israel noted that the Court ‘can’t cure all the problems’ and suggested that the best, albeit limited, example of non-judicial remedies is Congress’s 1994 grant of authority to the U.S. Department of Justice to bring pattern and practice suits against local police departments. The most common state legislative and administrative approach for addressing police misconduct, which is largely unknown to scholars and the public even though it has been adopted by forty-three states, involves revocation of the officer’s state certificate or license that is issued upon successful completion of state-mandated training. As opposed to termination of employment by a local department, which does not prevent the officer from being rehired by a different department, revocation of the certificate prevents the officer from continuing to serve in law enforcement in the state.” [Citations and footnotes omitted]

http://www.aele.org/revocation-slu.html

Prof. Goldman points out that revoking a Missouri peace officer license doesn’t require a criminal conviction.  In Missouri, a peace officer’s license can be revoked for “reckless disregard for the safety of the public or any person.”  (This is the current wording of the Missouri statute, which has been revised since Prof. Goldman’s article; see Missouri Revised Statutes 590.080.1(3).)

Of course, there’s the question of whether state licensing has any teeth or is just a friendly rubber-stamp for the insular police fraternity.  I can’t answer that question in the case of Missouri.  In my experience as a lawyer parsing professional misconduct and malfeasance cases, my impression is that nearly all licensing systems are less than ideal.  But they’re better than nothing, and if a cop has demonstrated the public isn’t safe with him on the street in possession of a badge and gun, challenging his licensability is at least worth a try.  Quoting from Prof. Goldman’s closing words,

“As law enforcement becomes more accepted as a profession regulated by the state, it is only a matter of time before all states will have the power to revoke the certificate or license of unfit officers, and those states that have weak revocation authority will strengthen it. It is ironic that this power already exists for virtually every other profession but not for police officers with the authority to arrest and use deadly force.”

It is a power the citizens of every state should insist their states actively exercise.

Disclaimer:  By posting this article, notwithstanding the rhetorical nature of its headline, I’m not prejudging either any prospective criminal case or any prospective license revocation case against Officer Wilson.  I’ve deliberately left the question of his culpability, if any, unanswered.  This article is only intended to discuss processes and remedies.  The ultimate disposition of the Wilson/Brown case is for courts and/or other duly constituted authorities to determine, and that determination is still pending.

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