What Citizens Don’t Understand About Police Use Of Force

The press is eagerly awaiting the Michael Brown grand jury decision, because whichever way it goes, it’ll be a good story. If Officer Darren Wilson is indicted, there’s the best trial since George Zimmerman to look forward to; and if he isn’t, there’ll be protests and maybe riots. The media makes hay either way.

Whether Wilson should be indicted and whether he will be indicted are two very different questions. And, of course, an indictment isn’t a conviction, as we saw in the Zimmerman case, where public pressure forced authorities to charge Zimmerman for shooting Trayvon Martin, but the jury acquitted him because they felt their hands were tied by Florida’s law of self-defense, even though some of the jurors later expressed that they thought Zimmerman was guilty of — well, something.

In Washington State, an ordinary citizen can use deadly force to protect himself or another person from an imminent threat of death or grave bodily harm. The exact wording of self-defense statutes varies among states, but the basic legal rule is similar in all U.S. jurisdictions. It applies to police officers the same as to citizens; they have a right to defend themselves, even when their job requires them to go looking for trouble, so to speak, and confront trouble when they encounter it.

But here’s what many citizens don’t understand: In addition to the right of self-defense, police officers also are authorized to use force, including deadly force as appropriate, to effect an arrest or prevent a felony suspect from fleeing. The theory behind this is that if the suspect gets away, he may harm someone else. Thus, if you’re a cop, you can — in theory — shoot a felony suspect in the back to prevent his escape.

This could cause big trouble in the Michael Brown case. If the grand jury returns “no bill,” it most likely will be because of this latter authority. While key facts are disputed, all sides agree Brown was unarmed, which makes self-defense less plausible as a justification for shooting him. But it doesn’t have to be self-defense for Wilson to get off. The jury could find the shooting justified on “fleeing felon” grounds. And if the grand jury returns a “true bill,” i.e. an indictment, Wilson’s defense attorneys conceivably could get a jury acquittal on “fleeing felon” grounds even if they can’t prove self-defense.

So what was the felony? Walking in the street isn’t a felony, or even a misdemeanor, it’s a petty infraction. Whether Brown shoplifted cigars from a convenience store, and was “fleeing” from this crime when Wilson accosted him on Canfield Street, doesn’t get you there, either. Even if it’s shown that Wilson received a radio call about the shoplifting incident and was looking for a suspect matching Brown’s description, shoplifting is a misdemeanor, not a felony, so Wilson couldn’t legally shoot Brown for running away from an arrest for shoplifting.

The felony is assaulting a police officer. If the grand jury believes Brown physically attacked Wilson at the patrol car, then tried to flee, the grand jury could readily conclude that Wilson shot a fleeing felon to prevent his escape. If, on the other hand, the grand jury concludes that Brown had stopped running, had turned to face Wilson with his hands up, and was trying to surrender, it would be much more likely to return an indictment. Thus, whether the grand jury indicts, or doesn’t indict, Wilson will tell you a great deal about what the grand jury thinks happened in the final seconds of the encounter. Of course, Wilson will be allowed to defend himself with the help of an experienced team of lawyers from the likes of the Hanlon Law Office or similar others.

At this point, let’s not lose sight of the fact there’s more at issue than just whether Wilson committed a crime by shooting Brown. Even if Wilson doesn’t face criminal charges, or does but is acquitted, the question will remain whether he violated his department’s use-of-force (UOF) policy; and, if he didn’t, then there’s a question of whether the Ferguson PD’s UOF policy violates federal guidelines. Under these guidelines, it’s awfully difficult to justify this police shooting of an unarmed civilian, unless you conclude that all the eyewitnesses who say Brown put his hands up are lying. These guidelines, which not only reflect legal requirements but also represent “police best practices,” are set forth on the website of the National Institute of Justice, an arm of the U.S. Department of Justice. They state,

Police enforce social order through the legitimized use of force. Use of force describes the “amount of effort required by police to compel compliance by an unwilling subject”. The levels, or continuum, of force police use include basic verbal and physical restraint, less-lethal force and lethal force. Police officers should use only the amount of force necessary to control an incident, effect an arrest, or protect themselves or others from harm or death. Police should also:

  • Ensure that those injured receive medical aid.
  • Ensure that the family of any injured person is notified.

Officers receive guidance from their individual agencies, but no universal set of rules governs when officers should use force and how much.

This means several things. First, local police departments have an obligation to (a) have a UOF policy in place, (b) train their officers in what it is, and (c) properly supervise their officers to ensure they adhere to the policy and “guidance” they’re given. Note that the federal guidelines also say cops can’t shoot someone and then leave them bleeding to death in the street; they have a duty to summon and themselves provide medical aid.

Unless the eyewitness descriptions of the Brown shooting are wildly inaccurate, it’s hard to see how this shooting could be considered reasonable under the DOJ guidelines. First of all, if the first shot stops the attacker or brings the fleeing suspect down, then additional shots at the suspect aren’t necessary. Second, it’s at least debatable whether shooting was justifiable at all, even if Brown assaulted Wilson and then fled the scene, as a foot chase and tackle — cops apprehend fleeing suspects this way in nearly every episode of the “Cops” show — should have been sufficient to effect an arrest.

So, even if Wilson isn’t indicted, or is acquitted, he should either face discipline for violating department policy, or if he didn’t violate a department policy, then DOJ should intervene (as it did in Seattle and several other cities) to compel the Ferguson PD to adopt policies in accord with the federal guidelines.

So, regardless of how you piece together the facts of this incident, somebody’s butt should end up in a wringer, because this is not the kind of policing we want in our communities.Roger Rabbit icon



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