One of the key reforms, experts agree, that should grow out of the death of Michael Brown is changing Missouri’s statute giving police officers broad authority to use deadly force against unarmed suspects.
But the bills now before the Missouri Legislature could make matters worse rather than better, say legal experts. All of the bills are seriously flawed, say Saint Louis University law professors Chad Flanders and Marcia McCormick.
It’s not surprising that a cloud of confusion surrounds the reform because even leading criminal law experts can’t agree on what the prevailing law in Missouri was on August 9 when Officer Darren Wilson killed Brown on a Ferguson street.
The Missouri statute - Section 563.046 – states that a police officer can justifiably use deadly force to arrest a fleeing felon, even one unarmed.
But the U.S. Supreme Court ruled in 1985 in Tennessee vs. Garner that it is unconstitutional – an illegal seizure – for a police officer to shoot an unarmed, non-dangerous fleeing felon.
The Missouri Supreme Court paid attention and changed its jury instructions to conform with Garner, but the Missouri Legislature never changed the law.
What was the law when Wilson killed Brown?
Early in the grand jury proceedings in the Wilson case – when Wilson testified – prosecutors told the grand jury that the Missouri statute applied. In other words, an officer could use deadly force to arrest an unarmed fleeing felon.
Weeks later, during the last week that the grand jury met, St. Louis Public Radio reported that criminal law experts disagreed about whether the grand jury should be told to follow the Missouri statute or the Missouri Supreme Court’s jury instruction that complied with Garner.
After that story and on the last day before deliberations, prosecutors changed the instruction. They told grand jurors to follow the Missouri Supreme Court’s jury instructions, not the Missouri statute they had given the jurors earlier.
That change made it easier to indict Wilson because it did not permit the use of deadly force merely to arrest an unarmed felon. But the grand jury still decided not to indict.
No harm, no foul?
If the last-minute change in the instruction put Wilson at a disadvantage and he still wasn’t indicted, then what does it matter whether the change was correct?
For one thing, with the current confusion, neither police nor civilians know where things stand.
In addition, critics of St. Louis County Prosecuting Attorney Robert McCulloch say the confusion made a difference during grand jury deliberations. The transcript of the grand jury proceedings shows that grand jurors were confused when the instruction on deadly force was changed, they say.
On Friday, Nov. 21, just before the grand jury started deliberating, Assistant Prosecuting Attorney Kathi Alizadeh told grand jurors to “fold…in half” the instruction she had given them weeks earlier “so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law.”
When grand jurors persisted in asking questions, Assistant Prosecuting Attorney Sheila Whirley told the grand jurors, “We don’t want to get into a law class.”
An unnamed grand juror filed a suit last month seeking permission to speak publicly about the confusion. And the NAACP Legal Defense Fund (LDF) called for consideration of a new grand jury and special prosecutor partly because of the confusion about the instruction.
How confusing were the instructions?
In response to a Sunshine Act request by St. Louis Public Radio, McCulloch released last month five-pages of written legal instructions given the grand jurors. These written instructions were not released with the transcripts in November:
Jury Instructions by St. Louis Public Radio
The written instructions on deadly force are essentially the same as the Missouri Supreme Court instructions. In other words, they are consistent with the Garner decision and inconsistent with the Missouri statute.
In addition to the deadly force instruction, the written instructions included the laws that Wilson could have violated (murder and manslaughter); the laws Brown could have violated (assaulting an officer); and defenses Wilson could claim, such as self-defense and proper use of force.
But release of the written instructions hasn’t caused McCulloch critics to back off their criticisms. Richard Kuhns and Mae Quinn, law professors at Washington University, say that instead of just laying out the statutes, prosecutors needed to put meat on the bones so the jurors could understand the law.
“This type of skeletal instruction may be adequate for the run-of-the-mill, 15-minute presentation of a case where the prosecutor is seeking an indictment and provides the grand jury only with evidence favorable to the prosecution,” wrote Kuhns. “The weeks-long, seemingly haphazard dump of conflicting evidence on the Wilson grand jury, however, should have required more. Like typical instructions to a trial jury, the Wilson instructions should have provided a structure for the grand jury’s deliberations by explaining how the various crimes and defenses are related to each other and to the evidence.”
Quinn said the instructions “seem to be quite confusing, particularly when there has been so much evidence presented and theories of the case presented it is hard to discern how these instructions are to be meaningfully used when applied to that evidence. I’m particularly struck by the lack of explanation for burdens (and) probable cause.”
Kuhns, too, thought that a glaring omission from the written instructions is what constitutes probable cause.
“Probable cause is a reasonable possibility, something less than beyond a reasonable doubt and even less than a preponderance (50 percent) of the evidence. Let’s say, just for the sake of illustration, 40 percent probability….With respect to self-defense, assume that the grand jurors were 60 percent certain that Wilson reasonably feared for his life. The grand jurors’ 40 percent belief that Wilson may not have reasonably feared for his life establishes probable cause that he did not act in self-defense.”
St. Louis Public Radio checked with McCulloch’s office to see if there was a written instruction on probable cause but has yet to receive a response.
Two former federal prosecutors in St. Louis – former U.S. Attorney Stephen Higgins and assistant U.S. Attorney David Rosen – have emphasized, though, that any confusion or mistake in the grand jury process would have to be so serious that it would be “prejudicial,” meaning that it would lead to a different outcome.
Since the change in the instruction made it easier to indict Wilson, not harder, this is a difficult standard to surmount, legal experts say.
Were the prosecutors right in the first place?
In the past few weeks, as criminal law experts have looked more closely at the instructions, a surprising consensus has emerged: The prosecutors were right in the first place. The Missouri statute allowing officers to use deadly force to capture unarmed fleeing felons was the instruction the grand jurors should have received.
This seems odd in that U.S. Supreme Court decisions trump state law. Shouldn’t Garner trump the Missouri statute? The answer is no, experts say. Garner was a civil case; the grand jury investigation of Wilson was criminal. A state doesn’t have to make all police misconduct that violates the constitution a crime.
But shouldn’t the Missouri Supreme Court jury instruction that followed Garner trump the Missouri statute? Michael Wolff, dean of Saint Louis University law school and former chief justice of the Missouri Supreme Court, says yes. But Wolff is in the minority.
Democracy and federalism
The LDF’s challenge to the grand jury instructions attracted the national attention of criminal law experts, including Stephen E. Henderson, at Oklahoma University Law School. He says the Missouri Supreme Court made a mistake when it redrafted jury instructions to comply with Garner.
“Unfortunately, a well-intentioned Missouri Supreme Court erroneously redrafted jury instructions to reflect not the state criminal law, but rather the federal Fourth Amendment. And, doubly unfortunate, the prosecutors did not catch the mistake, but instead told the grand jury to ignore the actual state law.”
“If Officer Wilson’s conduct violated the Fourth Amendment, that could be cause for a federal civil rights lawsuit or, within the boundaries defined by the federal legislature, a federal prosecution. But it is the Missouri legislature, and not its supreme court, that decides whether that behavior constitutes a state crime. Federalism incorporates the concept of dual sovereigns.”
Henderson adds, though, that the mistake is not a reason for a new grand jury. “Because the mistake was to the detriment of Officer Darren Wilson, making it harder to justify the use of deadly force, it is hardly itself cause for a second grand jury.”
The mistake may, however, be a good reason for the Missouri Legislature to change the statute to conform with Garner, Henderson adds.
In Jefferson City
Flanders and McCormick agree with Henderson that the Missouri statute trumps the jury instruction and that Missouri should change the statute.
So far legislators have submitted about half a dozen bills. But all are flawed, say Flanders and McCormick.
A bill that has attracted attention – SB 42 sponsored by Jamilah Nasheed – has the most serious flaws, they say.
“Sen. Nasheed’s bill risks being both too hard on the police and too hard on potential victims of police force,” they say.
Too hard on police because it requires officers to shout a warning and exhaust “all other reasonable means” before using deadly force – a requirement that “encourages too much second-guessing of split second decisions.”
But the bill also fails to protect suspects in some situations. The bill would permit the use of deadly force against a person who committed a misdemeanor if the officer believed he “possesses” a gun, even if he hasn’t used it.
Flanders and McCormick have their own proposal, patterned after the Model Penal Code. It would limit deadly force to when an officer reasonably believes it is “immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) has committed a crime which involved the use or threatened use of deadly force, or (b) there is a substantial risk that the person to be arrested will cause death or serious physical harm unless arrested without delay.”
“There is work to do and the imperatives both to get it right and to do it quickly, so citizens and the police know where they stand,” say Flanders and McCormick. “If we’re lucky, a clearer and better statute might prevent the next Michael Brown from happening.”
