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    Yet another reason Lawrence O’Donnell is wrong on #Ferguson Grand Jury (@lawrence)

    Yet another reason Lawrence O’Donnell is wrong on #Ferguson Grand Jury (@lawrence)

    Tennessee v. Garner limits the use of deadly force in arresting nondangerous suspects, NOT demonstrably dangerous suspects such as Michael Brown.

    As a follow-up to our post yesterday, de-bunking Lawrence O’Donnell’s claim that a purported error on the part of prosecutors led the Ferguson Grand Jury into error, I thought it might be informative to progress that de-bunking to an even more comprehensive level.

    As noted yesterday in No, Prosecution did not Mislead #Ferguson Grand Jury into Erroneous Decision, Officer Wilson had several potential legal justifications for his use of deadly force against Michael Brown.  Among these were the justification to use deadly force in making an arrest under MO statute §563.046. Law enforcement officer’s use of force in making an arrest and, alternatively, the justification to use deadly force in self defense under MO statute §563.031. Use of force in defense of persons, the state’s self-defense statute.  Both of these statutes were presented to the Grand Jury.

    Either one of these statutes alone is more than sufficient to justify Wilson’s use of deadly force against Brown.  He did not, however, attempt to avail himself of both statutes.

    Wilson himself testified for more than four hours to the Grand Jury, in person and without legal counsel present.  during the entirety of that testimony he never–not once–argued that his use of deadly force against Brown was based on an effort to arrest Brown in general, nor based on his arrest powers under §563.046 in particular.

    To the contrary, Wilson relied explicitly and entirely on his right to use deadly force in self-defense, as allowed for by §563.031.

    Lawrence O’Donnell claims that the Ferguson Grand Jury was led into error because they were confused by prosecutors about the constitutionality of the arrest powers statute, §563.046.  His reasoning, such as it is, goes as follows:

    • §563.046 is the MO statute that allows the use of deadly force in making an arrest.
    • $563.046 was read to the Grand Jury.
    • §563.046 was rendered unconstitutional by the Supreme Court decision Tennessee v. Garner.
    • The Grand Jury therefore made its decision not to indict Wilson on the basis of an unconstitutional law.
    • The Grand Jury decision is therefore defective.

    Yesterday’s post pointed out that even if all these points were true it still would not matter because Wilson relied no on his arrest powers but on self-defense to justify his use of force against Brown. See No, Prosecution did not Mislead #Ferguson Grand Jury into Erroneous Decision. Accordingly, even if one accepts that the Grand Jury was read §563.046 in error, it simply doesn’t matter.  An error, by itself, is not meaningful in a judicial proceeding unless (at the very least) it would have affected the outcome of that proceeding. Here such is clearly not the case.

    But let’s pretend that Mr. O’Donnell does have a leg to stand on.  That, of course, requires a lot of assumptions.  For example, it requires that we assume as true:

    • That Wilson relied on his arrest powers under §563.046 to justify his use of deadly force in self-defense.
    • That Tennessee v. Garner makes unconstitutional the use of deadly force to make an arrest under any and all circumstances.
    • That as a result of the above assumption, §563.046 is unconstitutional on its face and cannot justify Wilson’s use of force.

    We know that the first point is untrue, because Wilson in fact did not rely on his arrest powers to justify his used of deadly force of Brown.  But let’s set that aside so that we may continue.

    The next assumption that requires examination is whether Tennessee v. Garner makes unconstitutional the use of deadly force to make an arrest under any and all circumstances.

    The answer to that question, as would be apparent to anyone who bothered to actually read the case, is no.  Tennessee v. Garner prohibits the use of deadly force to make an arrest only under limited circumstances–and those limited circumstances are not relevant to the facts of the Michael Brown shooting.

    Tennessee v. Garner holds that the use of deadly force to make the arrest of a non-dangerous suspect is unconstitutional.  The use of deadly force to make the arrest of a dangerous suspect, however, is explicitly not prohibited by Tennessee v. Garner.  In the words of Justice White:

    The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him.

    [W]e are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. [ . . . ] The fact is that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. [ . . . ] If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. [ . . . ] Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.

    The use of deadly force to prevent the escape of all felony suspects [both nondangerous and dangerous], whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing [nondangerous] suspects.

    It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. As applied in such [dangerous suspect] circumstances, the Tennessee statute would pass constitutional muster. (emphasis added, internal citations removed, throughout–AFB).

    The Missouri arrest powers statute that O’Donnell claims to be unconstitutionally defective, §563.046, reads in relevant part:

    3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only

    (1) When such is authorized under other sections of this chapter; or

    (2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested

    (a) Has committed or attempted to commit a felony; or

    (b) Is attempting to escape by use of a deadly weapon; or

    (c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.

    Under Tennessee v. Garner, this application of §563.046 to justify the use of deadly force in making an arrest would indeed be unconstitutional —but only if it were applied to a nondangerous suspect.

    To again quote Justice White:

    [I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harmdeadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

    Under the facts of Wilson’s shooting of Brown, Brown had in fact threatened the officer with a weapon–in this case, with Wilson’s own service pistol (a fact that is incontrovertible given the contact gun shot wound to Brown’s hand, and strongly buttressed with Wilson’s own testimony before the Grand Jury).

    Further, Brown continued to present a threat of inflicting serious bodily harm.  Having already attempted to successfully kill Officer Wilson in his efforts to avoid arrest, there was every reason to believe that Brown would continue to be willing to do so to anyone else attempting his arrest–and Wilson’s call for back-up would soon have numerous other officers making exactly such an attempt.

    Because Tennessee v. Garner prohibits the use of deadly force in making an arrest only in the case of a nondangerous suspect, and Brown was demonstrably a dangerous suspect, Tennessee v. Garner has no application to the facts of this case.

    Because Tennessee v. Garner has no application to the facts of this case, it does not serve to make the MO arrest powers statute, §563.046 unconstitutional under the facts of this case.

    Thus, §563.046 remains a constitutionally viable justification for Wilson’s use of deadly force against Brown, a dangerous suspect.

    Again, all of this is largely irrelevant, because Wilson’s testimony to the Grand Jury never relied upon his arrest powers to justify his use of deadly force against Brown. His sole justification was that of self-defense, under §563.031, and it was more than sufficient.

    As shown above, even had he relied upon his arrest powers under §563.046, however, Tennessee v. Garner would have provided no barrier to doing so effectively.

    Indeed, the only fact pattern under which Tennessee v. Garner would have prevented §563.046 (arrest powers) from providing a justification for Wilson’s use of deadly force–that Brown was a nondangerous suspect–would also have prevented §563.031 (self-defense) from providing such a justification.

    The very fact that the Grand Jury declined to indict Wilson, and the contact gun shot wound to Brown’s right hand, makes abundantly clear that this supposition is nonsensical on its face.

    –-Andrew, @LawSelfDefense


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    Comments



     
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    Midwest Rhino | November 29, 2014 at 7:24 pm

    Think Progress is out there spinning, trying to act all jurisprudency, claiming Scalia says Ferguson was done wrong … but they are just using a quote from 1992.

    … as a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

    http://thinkprogress.org/justice/2014/11/26/3597322/justice-scalia-explains-what-was-wrong-with-the-ferguson-grand-jury/

    My non-lawyer take is that while the suspect may not have “the right” to testify, the prosecutor has options. One option is not to have a grand jury at all.

    Another option is to do what he did, in order to produce “justice”, for a man the prosecutor knows should not be punished with an indictment.

    The kangaroo court indictment by Sharpton, Holder and the MSM, necessitated this grand jury, convened to give the public more confidence in his decision, with most facts released online.

    Drunk Progress basically claims the prosecutor should have used ONLY evidence that, though conflicting with forensics, would have brought an indictment. So they believe a few liars (proven dishonest by physical evidence) should be used by prosecutors to destroy innocent lives, because isn’t that how a fascist government should work?

    This reminds me of “Three Felonies a Day”, or “Show me the man and I’ll show you the crime”. But this is worse, because they are demanding a public trial based on known to be false evidence. If the ham sandwich is a white cop, it should be prosecuted as punishment, even if it’s done dishonestly.

    As I understand it, the job of a prosecutor is not to maliciously indict men he knows to be innocent.


       
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      Ragspierre in reply to Midwest Rhino. | November 29, 2014 at 7:54 pm

      No. 90-1972. Argued January 22, 1992 — Decided May 4, 1992

      Respondent Williams was indicted by a federal grand jury for alleged violations of 18 U.S.C. § 1014. On his motion, the District Court ordered the indictment dismissed without prejudice because the Government had failed to fulfill its obligation under Circuit precedent to present “substantial exculpatory evidence” to the grand jury. Following that precedent, the Court of Appeals affirmed.

      Held:

      1. The argument that the petition should be dismissed as improvidently granted because the question presented was not raised below was considered and rejected when this Court granted certiorari and is rejected again here. The Court will not review a question that was neither pressed nor passed on below, see e. g., Stevens v. Department of Treasury, 500 U. S. ___, ___, but there is no doubt that the Court of Appeals passed on the crucial issue of the prosecutor’s duty to present exculpatory evidence to the grand jury. It is appropriate to review an important issue expressly decided by a federal court where, as here, although the petitioner did not contest the issue in the case immediately at hand, it did so as a party to the recent proceeding upon which the lower courts relied for their resolution of the issue, and did not concede in the current case the correctness of that precedent. Pp. 3-9.

      2. A district court may not dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury “substantial exculpatory evidence” in its possession. Pp. 9-19.

      (a) Imposition of the Court of Appeals’ disclosure rule is not supported by the courts’ inherent “supervisory power” to formulate procedural rules not specifically required by the Constitution or the Congress. This Court’s cases relying upon that power deal strictly with the courts’ control over their own procedures, whereas the grand jury is an institution separate from the courts, over whose functioning the courts do not preside. Any power federal courts may have to fashion, on their own initiative, rules of grand jury procedure is very limited and certainly would not permit the reshaping of the grand jury institution that would be the consequence of the proposed rule here. Pp. 9-14.

      (b) The Court of Appeals’ rule would neither preserve nor enhance the traditional functioning of the grand jury that the “common law” of the Fifth Amendment demands. To the contrary, requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory body that sits to assess whether there is adequate basis for bringing a criminal charge into an adjudicatory body that sits to determine guilt or innocence. Because it has always been thought sufficient for the grand jury to hear only the prosecutor’s side, and, consequently that the suspect has no right to present, and the grand jury no obligation to consider, exculpatory evidence, it would be incompatible with the traditional system to impose upon the prosecutor a legal obligation to present such evidence. Moreover, motions to quash indictments based upon the sufficiency of the evidence relied upon by the grand jury have never been allowed, and it would make little sense to abstain from reviewing the evidentiary support for the grand jury’s judgment while scrutinizing the sufficiency of the prosecutor’s presentation. Pp. 14-18.

      (c) This Court need not pursue respondent’s argument that the Court of Appeals’ rule would save valuable judicial time. If there is any advantage to the proposal, Congress is free to prescribe it. Pp. 18-19.

      899 F. 2d 898, reversed and remanded.

      Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun and O’Connor, JJ., joined, and in Parts II and III of which Thomas, J., joined.

      1. That ruling bears on Federal courts only.

      2. It is a “negative rule” (i.e., there is no DUTY for a Federal prosecutor to present exculpatory evidence, or to hear a defendant). Conversely, it announces no PROHIBITION to doing either or both.

      3. The Federal courts have little to no input into the procedural rules of Federal grand juries, as those are fashioned by Congress or the Supremes.

      4. Grand juries are charged with determining if PROBABLE CAUSE exists to bind over a person for trial on violation of a given statute. That is the scope of their inquiry, and its limit.

      But FIRST, as grand jurors, in some cases the issue of whether an act was, in fact, criminal has to be adduced. A homicide is not necessarily a crime, and a facial case of self-defense has to be met as a threshold issue before stepping another foot down the path the jurors must walk.

      What is “normal” in a grand jury setting is not compelling in a grand jury setting. It may be unusual to hear a defendant, but it is not barred, and in some cases may be extremely helpful to the process.


       
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      Ragspierre in reply to Midwest Rhino. | November 29, 2014 at 8:11 pm

      Oh, and to nutshell…

      Thunk Progressives LIED.

      They knew they LIED, which makes them (aaaaaagain…) LIARS.

      The quote by Justice Scalia has NOTHING to do with a state court in Missouri or a state grand jury.

      So…bidness as usual from the moonbattery.


     
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    rabidfox | November 29, 2014 at 7:44 pm

    “… as a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.”

    Why on earth is this considered to be reasonable. Surely the GJ should hear evidence from both sides – if nothing else to prevent the costs of a formal trial, not to mention the hell it puts the accused through.


       
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      Ragspierre in reply to rabidfox. | November 29, 2014 at 8:00 pm

      Thems the rules, fox. Or more particularly, thems the general rules for the Federal system.

      Grand juries are there but for one purpose: to determine if probable cause exists for someone accused of a given violation of a criminal statute to be bound over for trial.

      Just probable cause.


     
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    Char Char Binks | November 30, 2014 at 5:47 pm

    Stephanie Miller and her “comedian” co-hosts regurgitated this vomit on air.

    What a crock of shit… IF §563.046 was not relevant, then why was it read to the grand jury at all?? Query, if there was no potential for it to confuse the grand jury, then why make a correction at all? The prosecutors seemed to believe that their own error might lead to confusion. Indeed, the grand jury members asked for clarification as to whether the federal law trumped state law. Clearly they did not see §563.046 as irrelevant.

    Bit on the tu quoque side Andrew. As whitewashes go this piece is quite good. However, if it was so utterly irrelevant, why was it presented at all? Why did they conduct a mini-trial with no cross examination? Why do we insist on referring to what was presented as the facts? We both know well that a Grand Jury is not a trier of fact, nor are the “facts” as produced, subjected to the rigor of a trial with cross examination. Its a conflation of a term of art with common usage: a categorization error.


       
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      Ragspierre in reply to Eritt. | December 1, 2014 at 4:01 pm

      Shit must pour out your ears.

      The “target” of the grand jury inquiry is nakked as a jay-bird, legally speaking, when they appear. There is only one protection, if you have the snap, and that’s the 5th. Otherwise, there are few things the jury can’t explore, and you have NO counsel.

      So Wilson answered questions from three (I think) professional prosecutors and every juror there who wanted to ask any question they thought relevant to the case…for four hours. Without counsel, without any rehabilitating questions (it’s ALLLLLL “cross”), and without any objections.

      Your reading comprehension is shown to be…flawed…as well…

      “Again, all of this is largely irrelevant, because Wilson’s testimony to the Grand Jury never relied upon his arrest powers to justify his use of deadly force against Brown. His sole justification was that of self-defense, under §563.031, and it was more than sufficient.”

      A grand jury has ONE function: determine if there is probable cause to indict for a specific crime.

      This one heard the evidence, and decided it didn’t support an indictment.

      Suck it.


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