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Was it legal for Darren Wilson to shoot Michael Brown?

F6, it looks it's not nearly as clear cut as i thought. Even the most relevant part here is quite long.

Updated by Dara Lind on August 15, 2014, 11:03 a.m. ET @DLind [e-mail]

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So what are the standards by which Wilson will be judged for killing Michael Brown? There are plenty of guidelines for use of force by police, but it often boils down to what the officer believed when the force was used — something that is notoriously difficult to quantify — regardless of how much of a threat actually existed. We talked to two experts to break down the fraught issue.


"Hands up don't shoot" has become the motto of the Ferguson protests. (Scott Olson/Getty)

How do you determine if a police officer was justified in using deadly force?

When a police officer shoots and kills someone on the job, there's a two-track investigation. That's because there are actually two different sets of standards that govern when a police officer can use deadly force.

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"if a cop murders someone, he's not just breaking the law — he's violating his employee handbook"
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One set of standards is state law, informed by a couple of Supreme Court precedents that lay out the circumstances under which law enforcement officers are justified in using lethal force on suspects.

The other set of standards is the policy of the officer's police department, which tells its employees when it is and isn't appropriate for them to use force. If a police officer were to murder someone in cold blood while on the job, he wouldn't just be breaking the law — he'd be violating his equivalent of an employee handbook.

So when a cop uses deadly force in an officer-involved shooting, there's a standard criminal investigation: detectives collect evidence and present it to the local prosecutor. The prosecutor then determines whether the shooting fits the standards in state law for permissible homicide. If it doesn't, then a crime has been committed, and the prosecutor's job becomes figuring out which crime it was and whether there's enough evidence to charge the officer with it.

But there's also an internal investigation within the cop's department to evaluate whether the incident violated their use-of-force policy. Many departments' policies are stricter than state law — but an officer can't be charged with a crime just for violating the policy. He or she can, however, be fired for it.

In Ferguson, the St. Louis County Police Department is conducting the criminal investigation. After collecting the facts, they'll then pass their report to the prosecutor, McCulloch, who'll decide whether a crime was committed.

David Klinger, a University of Missouri-St. Louis professor who studies use of force, said he assumes their report will also be the basis of the internal investigation within the Ferguson police department. After St. Louis County gives the Ferguson police the results of their investigation, Klinger says, "the Ferguson chief will either do it himself or convene a group to make a determination about whether the use of deadly force was consistent with Ferguson policy."

The FBI is also conducting an investigation into Brown's death and the events in Ferguson. But the FBI is evaluating whether or not the police violated civil-rights law — which is a different question from whether or not Wilson was justified in killing him.

The legal standards governing justifiable force



Justifiable?

In the 1980s, a pair of Supreme Court decisions set up a framework for determining when deadly force by cops is reasonable. Those decisions have governed how state laws are applied. Furthermore, many agencies simply use identical standards to the Supreme Court's for their own use-of-force policies — though some departments don't let officers use deadly force even when the Court decisions say they'd be allowed to.

Constitutionally, "police officers are allowed to shoot under two circumstances," says Klinger. The first circumstance is "to protect their life or the life of another innocent party" — what departments call the "defense-of-life" standard. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect's committed a serious violent felony.

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"cops can't shoot every felon who tries to escape"
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The logic behind the second circumstance, says Klinger, comes from a Supreme Court decision called Tennessee vs. Garner. That case involved a pair of police officers who shot a 15-year-old boy as he fled from a burglary. (He'd stolen $10 and a purse from a house.) The Court ruled that cops couldn't shoot every felon who tried to escape. But, as Klinger says, "they basically say that the job of a cop is to protect people from violence, and if you've got a violent person who's fleeing, you can shoot them to stop their flight."

Some police departments' policies only allow deadly force in the first circumstance: defense of life. Others have policies that also allow deadly force to prevent escape in certain cases, within the limits of the Supreme Court decision.

Does the convenience store robbery matter?

Shortly after releasing the documents that identified Brown as the primary suspect in a convenience-store robbery, the Ferguson Police Department clarified that Wilson had not known that Brown was a robbery suspect when he made "initial contact" with Brown and his friend Dorian Johnson. (Instead, the department says, Wilson stopped the teenagers because they were walking in the middle of the street.)

That phrasing doesn't make it clear whether or not Wilson believed Brown to be a robbery suspect when he started to shoot at him. If he did, it might then be up to the investigators and county prosecutor McCulloch to decide whether a "strong-arm robbery," as the Ferguson Police Department described the incident, counts as a violent felony. If they decide it does, that will go some way toward a legal justification for Wilson's action. On the other hand, Wilson would only be able to claim that he was justified if Brown was fleeing — which eyewitnesses say he wasn't.

It's most likely, however, that the whole question is moot. From the Ferguson Police Department's statements on the afternoon of August 15th, it doesn't sound like Wilson even knew about the robbery at all. In that case, there's no way for him to claim that he was justified in keeping a violent felon from fleeing, because he didn't even know Brown was a suspect in a crime at all.

Wilson could instead, however, claim "defense of life" — that he feared for his life when Brown (according to his story) assaulted him in his car. In that case, the next question will be whether it was reasonable for him to be afraid of Brown.

"Objectively reasonable"


It doesn't matter if a cop is threatened; it matters if his belief that he is is reasonable. (Scott Olson/Getty)

The key to both of the legal standards -- defense-of-life and fleeing a violent felony -- is that it doesn't matter whether there is an actual threat when force is used. Instead, what matters is the officer's "objectively reasonable" belief that there is a threat.

"could a reasonable officer have believed there was a threat?"

That standard comes from the other Supreme Court case that guides use-of-force decisions: Graham v. Connor. This was a civil lawsuit brought by a man who'd survived his encounter with police officers, but who'd been treated roughly, had his face shoved into the hood of a car, and broken his foot — all while he was suffering a diabetic attack. The Court didn't rule on whether the officers' treatment of him had been justified, but it did say that the officers couldn't justify their conduct just based on whether their intentions were good. They had to demonstrate that their actions were "objectively reasonable," given the circumstances and compared to what other police officers might do.

There are plenty of cases in which an officer might be legally justified in using deadly force because he feels threatened, even though there's no threat actual threat there. Klinger gives the example of a suspect who has is carrying a realistic-looking toy gun. That example bears a resemblance to the shooting death of James Crawford .. http://cleveland.cbslocal.com/2014/08/07/family-man-shot-by-police-at-wal-mart-was-carrying-toy-rifle/ , an Ohio man who was killed by police last week while carrying a toy rifle in Wal-Mart.

Hypothetically, if the gun looked real, Klinger says, "the officer's life was not in fact in jeopardy, but that would be an appropriate use of force. Because a reasonable officer could have believed that that was a real gun." In fact, toy gun manufacturers — including the maker of the air rifle Crawford had — have started using this standard to limit their liability, putting on a warning label that tells consumers police could mistake their products for real guns.

[color=blue]"the time from a cop's decision to use deadly force to the moment he pulls the trigger: [ .. gap here .. ] two seconds"[/color]

Walter Katz, a California attorney who specializes in oversight of law enforcement agencies — particularly during use-of-force investigations — points out that it's hard to determine whether an officer's fear is reasonable because the decision to shoot is so fast.

"Officer-involved shootings happen extremely quickly. Usually, the point from where the officer believes he has to use deadly force to the point where he uses deadly force — where he pulls the trigger — is about two seconds." That can make it much harder for investigators to decide whether or not the officer was reasonable in thinking he had to shoot. (The police records indicate that three minutes after Wilson encountered Brown, Brown was dead.)

That puts a lot of weight on an officer's immediate instincts in judging who's dangerous. And those immediate instincts are where implicit bias could creep in — believing that a young black man is a threat, for example, even if he is unarmed.

But each use of deadly force does have to be evaluated separately to determine if it was justified. "The moment that you no longer present a threat, I need to stop shooting," said Klinger. According to the St. Louis County Police Department's account, Wilson fired one shot from inside the police car. But Brown was killed some 25 feet away, after several shots had been fired. To justify the shooting, Wilson would need to demonstrate that he feared for his life not just when Brown was by the car, but even after he started shooting. The officer would need to establish that, right up until the last shot was fired, he felt Brown continued to pose a threat to him whether he actually was or not.

"There's a difference between the moment you cease to be a threat and the moment I perceive that you ceased to be a threat," says Klinger. And Katz points out that if an officer has been assaulted and the suspect runs away, the officer's threat assessment is probably going to be shaped by having just been assaulted. But, Katz says, "one can't just say, 'Because I could use deadly force ten seconds ago, that means I can use deadly force again now.'"

How to tell if an investigation is thorough and objective

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Is it ever possible for cops to be objective in evaluating something a fellow officer has done? Klinger says that it is. "Police officers who are reviewing their fellows know something the average person doesn't know, and that is what it's like to be on the street and be confronted with these difficult circumstances where you have to make split-second decisions. And in that regard, the officer might be getting a break because he is being judged literally by a jury of his peers." But he says it could easily go the other way: "those other officers are in good standing to call him on his BS and go 'This is not how any reasonable officer would have behaved.'"

""when it comes to officer-involved shootings, confidence is the only currency the agency has""

Katz looks at the problem a different way. The key, he says, is whether the public has confidence that the investigation is being conducted objectively.

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That's roughly half of the article .. http://www.vox.com/2014/8/13/5994305/michael-brown-case-investigation-legal-police-kill-force-murder