Most Read
    Image 01 Image 02 Image 03

    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

    NEW! The Law of Self Defense proudly announces the launch of it’s online state-specific Law of Self Defense Webinars.  These are interactive, online versions of the authoritative 5-hour-long state-specific Law of Self Defense Seminars that we give all over the country, but from the convenience of your laptop, tablet, or smartphone, and on your own schedule.  Click over for more information on our state-specific Law of Self Defense Webinars, and get access to the ~20 minute Section 1. Introduction for free.

    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


    Donations tax deductible
    to the full extent allowed by law.


    Ragspierre | November 29, 2014 at 12:27 pm

    OK, Andrew, maybe I’m confused here, but my understanding was this…

    1. the State gave jurors copies of the old version of §563.046, pre-Garner

    2. the State THEN corrected its error, and provided the jurors with the current version of §563.046, and told them to disregard the one provided earlier.

    Even as pertains to trial jury, I think that virtually any appellate court would find this “harmless error”.

      Hey, I need something to post about TOMORROW, too! 🙂

      –Andrew, @LawSelfDefense

        JackRussellTerrierist in reply to Andrew Branca. | November 29, 2014 at 2:45 pm

        So can you post about why this ever made it to a GJ? I know Nixon was pushing for a special prosecutor in a GZ redux hail mary to get an “arress” as a result of pressure from the race-baiters for a lawsuit. But I’d like to read some informed thoughts about the process and why those poor folks had to be subjected to this and will continue to live in fear for some time.

        What steps, if any, can be taken to prevent these race-based witch-hunts? The lawyers for these people are looking for arrests to they can sue and extort settlements. Maybe we should start there – eliminate the motive for stirring up public anger for the purpose of bringing political pressure. I seriously doubt that McCulloch would have brought this piece of crap were it not for threats from Nixon, Holder and the political pressure they’re largely responsible for through Crump and his race-baiting minions.

        I’m getting real tired of seeing completely innocent people having their lives and futures ruined because of the trumped-up grievances of the “African-American Community”. Poor George Zimmerman has been bankrupted and lives in hiding. The guy that shot the drunk woman on his porch is in prison and has lost his entire life. The only ones I’ve ever heard of going on to succeed are the Duke lacrosse guys. This is getting worse all the time. Whites, Hispanics and Asians are beaten and killed in the streets by the “African-American Community” at epidemic levels now while the “African-American Community” behave like savage beasts when one of their ‘people’ meets the destiny they ordained for themselves.

        Peace officers across the country are demoralized deeply by this case. Will they now hesitate and lose their own lives for fear of being put through the same travesty perpetrated against Darren Wilson?

          I try not to lose sight of the fact that there’s a lot of good people in African-american communities who don’t want to be victimized by criminal elements within those communities and who want, on balance, law, order, and peace. These are the people Rudy Giuliani was sending policemen into black communities to serve, protect, and save from harm.

          It’s just that some days this effort gets harder.

            Gremlin1974 in reply to JBourque. | November 30, 2014 at 6:02 am

            The reason this made it to a GJ was for noting more than simple political arse covering and frankly safety. Everyone in the DA’s office and probably the Feds knew that there was no hope of an indictment, however who would want to be the one to make the decision not to proceed and then face that burning and looting lynch mob? I sure wouldn’t have.

            So they send it to the GJ and then they can say, “Hey, I tried the GJ just wouldn’t give me the indictment”.

          Char Char Binks in reply to JackRussellTerrierist. | November 30, 2014 at 5:19 pm

          Black lives matter… above all others.

      Julian in reply to Ragspierre. | November 29, 2014 at 1:45 pm

      O’Donnell had what he thought was a Perry Mason moment, that he repeated over and over again. Strange that O’Donnell didn’t mention Brown viciously attacked Wilson, just a few minutes after committing a violent felony. He probably didn’t mention Brown’s strong arm robbery because it was on video.
      Did O’Donnell come up with this meaningless nonsense on his own or did he get help from MSNBC’s crack legal department?

        I’m sure he just plain doesn’t believe that aspect of the case. In his heart (I don’t want to really say “mind”) Brown was simply fleeing, dropping to his knees when being shot from behind and finished off with a kill shot from above as he was pleading for his life, just as his mother said.

        That this flies in the face of all the forensic evidence does not seem to bother him one bit.

    txantimedia | November 29, 2014 at 1:40 pm

    Andrew, you don’t need to use the contact wound to prove Brown’s attack. His DNA was found on Officer Wilson’s trousers, shirt and GUN. Proof that he had his hand on it.

      JackRussellTerrierist in reply to txantimedia. | November 29, 2014 at 2:57 pm

      In a normal case, which this is not, technically you wouldn’t “need” it, but in any case it’s extremely helpful. It adds a lot of “weight” to Wilson’s account of Brown having a hand fully on his weapon, what Wilson says actually transpired in the vehicle, and what Wilson’s state of mind was as to Brown’s intentions when he turned and charged, more so than just a few skin cells or sweat would that could more easily be argued as transferred or fallen from Brown during the assault on Wilson.

      Gremlin1974 in reply to txantimedia. | November 30, 2014 at 6:05 am

      More evidence that your version of events is correct is never a bad thing.

        Char Char Binks in reply to Gremlin1974. | November 30, 2014 at 5:34 pm

        Generally, but in this case, as with Zimmerman, for the “left” (shorthand for all that), no amount of evidence can ever correctly lead to acquittal or a not guilty verdict, much the way Achilles can never overtake the tortoise, a la Zeno. We cannot connect the gentle giant’s previous aggressive acts, A to B to C, to show why the shooting was justified, but they have no problem flying from one letter to any other if it fits their narrative. More evidence just means more guilt, to them. Brown was robbing, or suspected of robbing a store? Brown was jaywalking? Brown punched Wilson at the SUV? Therefore Wilson “executed” Brown for robbery, or jaywalking, or punching, post hoc ergo etc., and in retaliation/retribution, not self defense.

    JackRussellTerrierist | November 29, 2014 at 2:19 pm

    O’Donnell deliberately overlooks Brown’s already demonstrated violence toward Wilson in trying to shoe-horn Garner in as the authority for his position. He doesn’t answer the question of what Wilson should have done with a 300 lb. man charging him after already having struck him violently, with superior strength, and tried to take his gun. I’d like for O’Donnell to tell us what he’d do if he was the one being rushed by Brown who had just hammered him with his fists with his body weight behind the beating. Maybe then O’Donnell would grasp the difference between violent and non-violent and what the threat of infliction of serious bodily harm looks like. From Wilson’s testimony, Brown only let up when he failed to get Wilson’s gun.

    If Garner intended what O’Donnell claims, the logical extension is that police officers would have to be unarmed, at least as to service or any other deadly weapon because it would be beyond the scope of an officer’s duty to discern the difference between violent and non-violent actions. If Brown shouldn’t have been shot under O’Donnell’s theory, then nobody should ever be shot, even if the suspect is armed because the officer can’t know for sure that the suspect intends to fire or that the suspect’s firearm is even loaded or if it’s even a real firearm in some cases, the idea being that no assumptions about what the suspect might do next is a valid criterion for the officer’s decision. If any court was to embrace O’Donnell’s theory, then an officer has to stand there and be shot at before he’s certain that the suspect is indeed violent and is eligible to be fired on, assuming the officer is not already dead or too incapacitated. Bodily attacks would not qualify. Take the beatdown. Give up your weapon. If O’Donnell’s claims about Garner are accurate, Police departments would have dissolved their departments, turned off the lights and gone home. Nobody will take that job.

    Thankfully, O’Donnell’s babblings are constrained by a tiny audience, including some lawyers, already conditioned or disposed to grasp any straw that absolves Brown and inculpates Wilson. It’s great fodder for stirring the pot.

    Midwest Rhino | November 29, 2014 at 3:04 pm

    If I’m reading correctly, Wilson would have been legally justified to shoot even a still fleeing Brown in the back, to stop the violent man (as had just been proven by assault on even a trained officer, and an attempt to control his gun, after a stealing of cigars, which Wilson surely connected with marijuana).

    But Wilson judiciously did not shoot in the back, but pursued, and only shot after Dangerous Giant Brown turned and charged. Brown perhaps decided he could not escape, but did not consider surrender an option (apparently).

    iirc, there is recording showing a pause after the first several shots, where Brown supposedly paused, the Brown resumed his charge and the shots resumed. At the last shot, Brown was pretty close to Wilson it seems (from casings), not the 20 feet or so I had heard at first. More like 4′-10′.

      Wilson testified Brown hit the street 8-10 feet from him.

      I’m unaware of any evidence that contests this claim.

      Except, I suppose, for the liars who testified that Wilson stood over Brown and fired shots down into him.

      –Andrew, @LawSelfDefense

        Ragspierre in reply to Andrew Branca. | November 29, 2014 at 3:37 pm

        Yep. Most layman have trouble with the idea that even lies are “evidence”.

        The world would be so much more simple if that were not true.

        Midwest Rhino in reply to Andrew Branca. | November 29, 2014 at 4:54 pm

        OK, thx. And that reminds me, I think Wilson said he was taking steps backwards, which would agree with casings closer to Brown (though they can roll).

        The question then, America should focusing on, considering Brown’s aggression, drugs, and his vile and violent rap (if confirmed) … is: How many lives did Officer Wilson save by getting this dangerous and unreasonable giant man off the streets?

          Ragspierre in reply to Midwest Rhino. | November 29, 2014 at 5:03 pm

          My reading of the testimony was that Wilson “back-peddled” a couple of times, trying to keep the distance between himself and the advancing Brown. This was, again to me, a pure mercy. After I started shooting, I doubt very much I’d have stopped or moved back until Brown was down.

          As to your other question, who knows? I was once a very bad boy for a time. There are lots of us who reform. Michael Brown was less lucky than I was, and I know survival was pure luck for me in several instances that were entirely my own doing.

            Creating distance is almost always a benefit to the defender–if it can be done safely.

            Distance is time, time is freedom of action, freedom of action is life.

            Just. Don’t. Trip. 🙂

            Techniques to try to avoid tripping, not sure how easy they are to remember and employ under stress. In my experience they are typically demonstrated in class then rarely repeated. Even most action shooting sports don’t much like courses of fire that involve moving backward, and when they DO require rearward motion the competitors invariably move backward at a VERY leisurely pace, the better to make their hits.

            –Andrew, @LawSelfDefense

            Midwest Rhino in reply to Ragspierre. | November 29, 2014 at 5:56 pm

            Well Brown would surely have gone to prison this time, after the point of assault on the officer (five years served?). Perhaps our prison “reform” system would have reformed this younger man, rather than introduced him to radical Islam, against all odds.

            Besides the lives saved from Brown’s own possible future violence, there is the crime and punishment message to others. So far the MSM messaging has been dominated by the Sharpton/Obama lies. But more exposed than ever is the racist blind hatred of the manipulated, who fell for the “hands up don’t shoot” baloney.

            As a national case study, this case reveals the good cop, the stupid and violent thug, and Team Obama/Holder/Sharpton inciting riots, paid instigators conspiring, and a malleable element complying. If we can only get some contrition, or O’Donnell to come out with a mea culpa, and get Branca & Jacobson on the president’s hotline, instead of Holder & Jarrett. 🙂

        amwick in reply to Andrew Branca. | November 30, 2014 at 7:59 am

        Funny/ironic/awful thing is that some of those liars also testified that they lied. And their original version of this event provided the impetus for this emotional, race based which hunt.
        Mr. JRTerrierist’s question about how to prevent this from happening again is what bothers me. I don’t see a good answer. Justice seems to have fallen way, way down this slippery slope. Just sayin’, from the outside looking in.

        Char Char Binks in reply to Andrew Branca. | November 30, 2014 at 5:40 pm

        They claim Wilson stood over Brown and shot execution style, and they also put great stock in the fact that Brown fell 148′ from the SUV, as if Wilson stayed put, or was padlocked to or surgically connected to the SUV, and thus shot and murdered him at a safe distance.

    cwillia1 | November 29, 2014 at 6:03 pm

    I just read Tennessee vs. Garner. It seems to me that had Wilson shot Brown in an effort to apprehend him. Tennessee vs. Garner would give Brown’s parents a basis on which to sue the Ferguson police department. It could also support a federal civil rights case against Wilson. But the case would not prevent Wilson from using a provision of Missouri law that conflicts with T vs. G as a defense against a murder charge. The state is not obliged to make any and every violation of a citizen’s civil rights a crime. How can the Supreme Court command a state to prosecute someone?

    This is of course a theoretical issue.

      Ragspierre in reply to cwillia1. | November 29, 2014 at 6:17 pm


      Read it again AFTER you read the current §563.046 of Missouri law.

      LEOs STILL get to shoot you while you’re beating feet if you meet certain criteria, and Brown DID. And that isn’t in just one state. Otherwise, all you’d need to do is put you back to the LEOs and outrun ’em.

        gregjgrose in reply to Ragspierre. | November 29, 2014 at 6:35 pm

        >> LEOs STILL get to shoot you while you’re beating feet …

        Rags, if I may, yeah, kinda, sorta, but really: not mostly.

        There is now less flogging in our schools than formerly, but then less is learned there; so that what the boys get at one end they lose at the other. source:

        I for one think the end of “stop or I’ll shoot” is a loss.

      However, the facts of the Wilson case get in the way.

      What I believe to be important here is that Brown had attacked Wilson as Wilson was sitting in his vehicle…. and in any country such an action is a felony. It also opens up immediately the self-defense argument and as such it would have been an injustice if Wilson was to face an indictment over the death of the thug and thief, Michael Brown.

        Char Char Binks in reply to Aussie. | November 30, 2014 at 5:46 pm

        The lunatics at the Daily Kos disagree — Brown could only be considered a “fleeing felon” if he had ever been convicted of a felony. Brown spent all of three months as an adult without ever being convicted, which is probably a first in his family.

    Leave a Comment

    Leave a Reply

    You must be logged in to post a comment.

    Notify me of followup comments via e-mail (or subscribe without commenting.)

    Font Resize
    Contrast Mode
    Send this to a friend