Amid conflicting witness statements and autopsy analyses, dueling videotapes and a loud outcry for justice, there is substantial agreement about many of the facts surrounding the killing of Michael Brown.
As a St. Louis County grand jury decides whether to indict Ferguson police officer Darren Wilson, it knows this much from uncontradicted statements and reports: Wilson and Brown struggled at Wilson’s police car, and Wilson fired his gun twice, hitting Brown’s hand, which was near the gun. Brown ran from the car. At some point he turned back to face Wilson. The officer shot Brown multiple times, including two shots each to the head and chest, killing him.
Those agreed-upon facts do not provide enough information for a prosecutor or a grand jury to decide whether to charge Wilson with a state or federal crime, legal experts agree. At least two contested facts are key:
- Did Wilson fear for his life? If Brown reached for the gun and struck Wilson during the struggle at the police car, as Wilson reportedly claims, Wilson could have feared for his life and been entitled to use deadly force.
- Did Brown start back toward Wilson when he turned around and if so how fast? If Brown stopped still and raised his hands, as some witnesses say, Wilson probably would not be entitled to use deadly force.
David Rosen, a former federal prosecutor of police cases and adjunct professor at Washington University Law School, explained a prosecutor’s approach to a case like this in an interview.
“You have plenty of witnesses on both sides….so I look at: What do the forensics tell me? How many times did he fire the gun? How far away was he? What do the bullet angles mean? All I am trying to do is get to the point of whether the level of force use was justified.
"If (Brown) stops and turns and stands there, then there is no justification for shooting. If he turns and starts walking back toward (Wilson) that is a tough question…. If Brown turns and starts running back,” that would justify force.
Because the prosecutorial decision is fact-specific, Rosen says, there is no way to prejudge what action the prosecutor and grand jury should take based on the public statements and media leaks.
Stephen M. Ryals, a leading civil rights lawyer from Chesterfield, has a different view on the use of force in the final moments of the encounter. If Brown turned and was walking back toward Wilson, the officer would not be justified in using force, Ryals said. Running back may "justify force but not deadly force," he said.
Knowns
Here are the knowns based on uncontradicted statements and official reports:
At 11:48 a.m., Aug. 9, Officer Wilson responded to a call about a sick child. Wilson, 28, was in his third year with the Ferguson Police Department.
Three minutes later and a few blocks away, Michael Brown was recorded on a convenience store video taking a $48 box of Swisher Sweets Cigars from Ferguson Market. He had smoked marijuana a number of hours earlier. The video shows the suspect, apparently Brown, pushing away a clerk. Brown and his friend, Dorian Johnson, walked out of the market about 11:54 a.m. A dispatch went out over the police radio about the alleged strong-arm robbery.
Brown, 18, had less than 10 minutes to live when he walked out of the store. Officer Wilson was wrapping up his sick child call and got back in his cruiser at noon. Their paths crossed at a street that runs through the Canfield Green apartments a minute after noon.
Wilson ordered Brown and Johnson to get out of the middle of the street, even though it is not a busy thoroughfare. The young men said they were almost to their destination in the apartments. A dispute followed with Brown and Johnson close to Wilson’s cruiser door. When Wilson tried to get out, the door ran into Brown.
A struggle ensued at the police car. Wilson drew his gun and fired twice. One of the bullets hit Brown’s right thumb. Based on gunpowder residue and Brown’s blood on the gun, Brown’s hand was close to the gun when it fired.
Brown and Johnson took off from the car. Wilson got out in pursuit. Brown turned around some distance away. Wilson fired, hitting Brown twice each in the chest and head, killing him. The deadly shots entered from the front of Brown’s body, after he had turned around.
That’s where the agreement ends.
Unknowns
Did Brown reach for Wilson’s gun and attack Wilson?
Wilson reportedly says yes, but Johnson says no.
The St. Louis Post-Dispatch reported that Wilson told investigators that Brown grabbed the gun with his right hand and struck him in the face with his left, leaving bruises on his face and scratches on his neck. Wilson said the six-foot-four, 290-pound Brown was strong and forced the gun against Wilson’s hip during the struggle. That would be legally significant because it would show that Wilson feared for his life.
The Post-Dispatch also disclosed the leaked autopsy and quoted independent pathologist Judy Melinek saying the autopsy “supports the fact that this guy is reaching for the gun, if he has gunpowder particulate material in the wound.” She added, “If he has his hand near the gun when it goes off, he’s going for the officer’s gun.”
The day after the story ran, Melinek said the paper quoted her out of context. She produced an email in which she had told the paper “that Mr. Brown's hand would have been close to the barrel of the gun.” Melinek told a number of media outlets that the autopsy did not prove Brown was reaching for the gun.
Johnson, Brown’s companion, has said in public statements that Brown was pulling away and "at no point in time did they struggle over the weapon because the weapon was already drawn on us."
Did Brown have his hands up before he was shot?
Johnson and a number of other witnesses from the community say yes. This is partially corroborated by a white construction worker from Jefferson County who was working nearby with a co-worker. The worker’s account was, in turn, corroborated by a video from around the time of the shooting that showed one of the two construction workers putting his arms up in the air as if to emphasize what he had seen.
The Post-Dispatch leak story on the autopsy also quoted Melinek saying that the trajectory of a bullet that hit Brown in the arm shows “Brown probably was not taking a standard surrender position with arms above the shoulders and palms out when he was hit.”
But in her email to the Post-Dispatch, Melinek said the wound to the arm could occur with the arm in “multiple orientations.” The only way to tell with any certainty is a “trajectory reconstruction.” In an interview on MSNBC, Melinek said the shot to the back of Brown’s upper arm could have occurred as Brown fled and before he turned around.
Did Brown move back toward Wilson after turning around?
The Washington Post reported that sources knowledgeable about the investigation said that “blood spatter evidence shows that Brown was heading toward the officer during their face-off,” but cautioned that the “analysis of the evidence did not reveal how fast Brown was moving.”
An audiotape of an unidentified bystander recorded just after the shooting contains the comment that Brown “kept coming toward the police.” The Jefferson County worker, who otherwise supports the hands up version of the story, told the Post-Dispatch that Brown was moving toward Wilson who was backing up and firing. But the worker said that Brown was not “bum-rushing” Wilson as the officer’s supporters claimed.
The Law
Just two months before the Ferguson shooting, the U.S. Supreme Court issued the decision of Plumhoff vs. Rickard, which emphasized how much leeway police officers have in confrontations with suspects.
Police chased a car from Arkansas into Tennessee at speeds of more than 100 miles an hour. Police managed to box in the car, but the driver kept trying to escape. Officers fired 15 shots killing the driver and a passenger.
Justice Samuel Alito Jr., writing for seven members of the court, said, “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
Roger Goldman, a professor emeritus at Saint Louis University Law School, says this language could be relevant to the Ferguson inquiry, although he also points out that the court has distinguished car chases from foot chases.
Goldman notes that in federal civil rights cases like Plumhoff, the court gives police the benefit of the doubt. Alito, quoting from a previous decision, said the court takes the vantage point “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” It allows “for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”
An older Tennessee case – Tennessee vs. Garner from 1985 – also is relevant because the court concluded that police could not shoot a non-dangerous fleeing felon.
A Memphis police officer shot and killed Edward Garner, a 15-year-old African American, as he fled from a burglary. Garner wasn’t armed and had $10 from the burglary.
Tennessee, like Missouri, had laws justifying the use of deadly force to stop the escape of a fleeing felon. But the U.S. Supreme Court ruled that those laws violated the Fourth Amendment’s ban on unreasonable seizures.
Police use of deadly force is a seizure under the Fourth Amendment and has to be “reasonable” in light of all circumstances. It is unreasonable for police to use deadly force against a fleeing suspect unless the “officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others,” the court said.
But the court added that police could use deadly force to stop the escape if the suspect had threatened the life of a police officer or committed a crime threatening serious physical harm.
Was Brown dangerous?
So how might this apply to Brown? If he fought with Wilson over the gun and pressed it against Wilson’s hip, he would be considered a dangerous suspect, lawyers say.
Once he pulled away and started to flee without a gun, did he suddenly transform into a non-dangerous, unarmed fleeing felon who cannot be shot?
William A. Schroeder, an emeritus professor at Southern Illinois University, says no. “If Brown had the gun and pushed it against Wilson’s hip, or even if he went toward or after the gun, (that) was also the commission of a crime involving the threatened infliction of death or serious bodily harm, which gave Wilson the right to use deadly force to seize him,” he wrote in an email. “If Wilson had the right to use deadly force to seize Brown, I do not think that right was lost when Brown started running away whether he was 1 foot, 5 feet, 35 feet or 100 feet away.”
Rosen, the former federal prosecutor, said much the same thing. “To the extent that the law allows an officer to use deadly force to apprehend a dangerous fleeing felon, the fact that he is fleeing doesn’t help him.”
But Ryals, the civil rights lawyer, says it could be important who was the original aggressor. "Brown has a right to defend himself against an assault by a police officer," Ryals wrote in an email. "What if Brown was hit by that ... door or Wilson pushed him and Brown pushed back and then saw that Wilson was drawing his weapon? What if Brown was not trying to take the weapon but trying to prevent the officer from continuing his assaultive behavior? That purpose could be consistent with the gun being pressed to Wilson's hip -- to keep it from being brought up where it could be used to shoot Brown."
The initial stop and video
Thomas Harvey, a lawyer and head of ArchCity Defenders, says an important part of the narrative is that questionable nature of the original stop.
Harvey wrote in an email that it is important to ask “why (Wilson) thinks it's a valid use of his police authority to order someone out of the street in an apartment complex … It's not a main thoroughfare and it's unlikely Brown was impeding traffic.”
But Schroeder says, “I do not think Wilson lost either the right to defend himself or the right to use deadly force simply because the initial stop was not justified (if it was not).”
If Wilson could reasonably conclude from the struggle at the car that his life was threatened, then he was justified in using deadly force, he said. Schroeder thinks the video of the alleged strong-arm robbery is relevant.
“Arguably, the robbery, and walking down the middle of the street, show Brown exhibiting an arrogant, ‘I can do whatever I want’ attitude. That state of mind is manifested in, and translates into, his being the … aggressor in the confrontation at Wilson’s car and, if Wilson makes a self-defense argument,” it should be admissible in court.
Richard Kuhns, an emeritus professor at Washington University Law School, disagrees. “Unless Wilson stopped Brown because of the robbery, the robbery has almost no relevance except to suggest that Brown was a violent person.” Police have said Wilson did not stop Brown because of the robbery but saw the box of cigars after stopping him.
Turning around
Rosen, the veteran prosecutor, says, “The real question here is when did Michael Brown turn around” and what did he do next?
People sometimes don’t understand how police are trained to use deadly force, Rosen said. “I see a lot of comment that after he shot him once or twice, why did he shoot him any more. But that is what the police are trained to do. You will continue shooting at the body mass until the threat is neutralized, the person is on the ground.”
Ryals calls this a "troubling argument." He wrote, "It suggests that police training should somehow determine the constitutional limits on police use of force. The Fourth Amendment requires that the force used be 'reasonable' and the fact that people are questioning whether it was appropriate to continue shooting suggests that the question is debatable."
Both Rosen and Schroeder think that Brown’s size – six-foot-four and 290 pounds – is relevant to this inquiry.
“Remember,” said Rosen, “Brown is big. If Michael Brown is walking toward me in a threatening manner, I might believe he could carry out his threat.”
Schroeder wrote: “If Brown turned around and moved back toward Wilson, that could re-raise the self-defense issue, if he was moving fast all the more so, and even more so if Wilson knows Brown has been hit and is still coming at him. The fact of Brown’s unusually large size is highly relevant and is rarely mentioned. Until it is clear to Wilson that Brown has submitted (possibly indicated by raising his hands), Wilson has the right to use deadly force.”
Difficulties of police prosecutions
Rosen said that sometimes federal civil rights investigations that appeared at first blush to be clear examples of excessive force turned out not to be.
In 2006, he said, he saw a video of Maplewood police beating Edmon Burns after a car chase and thought, “Holy mackerel, I’ve got a lay down case. But after a thorough investigation, we came to the conclusion that there was no crime. What looked awful and you couldn’t lose that case if you tried, by the time you get done investigating it there wasn’t even a crime.”
In another case from the 1980s, a St. Louis police officer shot a young African-American man in the back with a shotgun after the man had been trying to persuade his neighbors to stop attacking the police. “This was a budding Martin Luther King he shot, but it turned out the officer didn’t even know he had discharged the shotgun and killed him.” The officer ended up in a psychiatric ward instead of a prison, Rosen said.
That latter case illustrates why it is harder for federal prosecutors to win a criminal civil rights case. They have to demonstrate that an officer “willfully” denied a person of a civil right. That means that an officer shows “deliberate indifference” to a civil right that the officer should have known to protect.
State prosecutors also have a potential legal complication. Missouri never repealed its unconstitutional law that permits police to use deadly force to stop a fleeing felon. In fact, Chad Flanders, a professor at Saint Louis University Law School, has pointed out that the law is in the new 2017 version of the criminal code
Flanders put it this way in a recent commentary: “Wilson would need to show that he reasonably believed that Brown had committed a felony (any felony) and that Brown was trying to get away. Wilson wouldn’t need any additional facts about what the felony was, or what Brown did to him. This could be a problem for the state prosecution of Wilson, because it makes it harder to show under the terms of the Missouri statute that Wilson’s use of force was unjustified.”
Rosen doesn’t think citizens understand the role of the prosecutor. “I’m not going to bring the charge to satisfy the crowd,” he said. “I have as much of a duty to protect the suspect’s rights as the victim’s rights. If there is not a prosecutable offense, I have a constitutional duty not to bring a charge.”
Kuhns, of Washington University, thinks that prosecutors need to compensate for all of the uncertainties that play into police brutality cases of this kind. He says that the generality of the legal principles together with the “uncertainties about actually happened give the decision makers (for now the grand jurors) substantial discretion, and, of course, their own experiences and biases will inevitably affect their decisions.”
For this reason, Kuhns said, an “important question is what, if anything, the prosecutors are doing to try to compensate for those biases.”
(This story was updated at 9:35 p.m. to add comments from civil rights lawyer Stephen M. Ryals.)
