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    Ferguson Tag

    One of my favorite Christmas moments is when I watch "The Grinch Who Stole Christmas" with my son. This year, I didn't have to pull out the DVD to review the story. Ferguson protesters captured its essence by surrounding  some children caroling for a Christmas tree lighting in Seattle and making them cry.
    Demonstrators marched through holiday traffic, blocked intersections and shut down light rail service to Westlake station. Some protesters moved the demonstration to the edge of the Capitol Hill neighborhood, where they clashed with police officers. Both officers and demonstrators used pepper spray, police said. Some protesters wore gas masks. Later, the city's traditional Christmas lighting ceremony at Westlake started early after protesters surrounded the area and began rallying. Police turned out in force, arresting five people and prompting the mall to close several hours early.

    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.

    There have been many false factual narratives of the Michael Brown killing, such as "hands up, don't shoot." Now there's a new false legal narrative spreading, that a prosecutorial mistake misled the Grand Jury into erroneously failing to indict Police Officer Darren Wilson. The source of the claim appears to be MSNBC's Lawrence O’Donnell. O'Donnell, who was magnificently misleading in the Trayvon Martin case, expounds on this claim in the Ferguson case with absolute moral and intellectual certainty, as he always does. The heart of O'Donnell's claim is that a legal error in presenting the law on use of force in making an arrest early in the Grand Jury proceedings somehow led the Grand Jury astray.  O'Donnell maintains that this error could have led the Grand Jury to think it was okay to shoot Michael Brown in the back as he was running away, even though the corrected law was given to the Grand Jury prior to deliberations. There are at least two major flaws in O'Donnell's argument. First, and most important, even if O'Donnell is correct that prosecutors misstated one justification for Wilson's use of deadly force (arrest powers), these same prosecutors correctly stated an alternative and independent justification for that same use of force (self-defense). Thus, even if Wilson's arrest powers were insufficient justification for his use of deadly force, his right of self-defense was more than sufficient justification for that use of deadly force. And even O'Donnell claims no error in that instruction to the Grand Jury. Second, the justification that O'Donnell claims was read to the jury in error is entirely irrelevant, as it applies only if the suspect is shot while fleeing arrest. Here, Michael Brown suffered not a single gunshot wound to the back, nor did Wilson ever claim to have shot Brown while he was fleeing in order to affect an arrest.  Instead, Wilson claims consistently that he shot Brown in self-defense, and numerous witnesses testified and the forensic evidence supports that Wilson fired only when Brown was actively advancing towards, and not while Brown was fleeing from, Wilson. As a result the legal justification that O'Donnell claims to be in error, that of arrest powers, simply has no application to this case. Now to the video: O’Donnell’s diatribe is an almost perfect example of what is commonly referred to as a “straw man” argument.

    Casey Breznick is the Editor in Chief of The Cornell Review, the conservative Cornell undergraduate journal and its blog, The Cornell Insider. Casey also writes for Legal Insurrection and previously College Insurrection. Casey has done a lot of great reporting for the Review on political events, such as the Martha Robertson campaign, "Rape Culture" protests, and also on the anti-Israel Students for Justice in Palestine protest at Ho Plaza on Cornell's campus on November 19, 2014. That Ho Plaza incident also has been reported at Legal Insurrection, based in part on Casey's work for the Review blog: On Tuesday night, November 25, Casey covered for the Review the Ithaca community vigil regarding the Michael Brown case. The vigil quickly turned into a street protest in which roads were blocked in downtown Ithaca and cars were trapped, leading to police intervention. In the Cornell Insider post about the protest, Casey recounts how two of the non-students involved in the SJP Cornell protest spotted him and tried to get him to stop filming.  One of them, kat yang-stevens, pushed her sign into Casey. Here is Casey's video: (language warning)

    Let's take a look at the classic depiction of Justice: justice She wears a blindfold. And not because it's Halloween. It's because:
    Lady Justice (Latin: Iustitia, the Roman goddess of Justice, who is equivalent to the Greek goddesses Themis and Dike) is an allegorical personification of the moral force in judicial systems. ...Lady Justice is most often depicted with a set of scales typically suspended from her right hand, upon which she measures the strengths of a case's support and opposition. She is also often seen carrying a double-edged sword in her left hand, symbolizing the power of Reason and Justice, which may be wielded either for or against any party. ...Since the 15th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents objectivity, in that justice is or should be meted out objectively, without fear or favour, regardless of identity, personal wealth, power, or weakness; blind justice and impartiality. The earliest Roman coins depicted Justitia with the sword in one hand and the scale in the other, but with her eyes uncovered. Justitia was only commonly represented as "blind" since about the end of the 15th century.
    Reason. Justice. Objectivity. Laudable and important goals.

    The official transcript of the Ferguson Grand Jury continues to be fascinating as I chug my way past the 20% reading mark. A portion of the current eye witness testimony before me, that of Interview #4 taken on September 17 , was particularly engaging however. The reason? It shows in visceral detail some of the explicit and coordinated efforts to physically intimidate eye witnesses from speaking with law enforcement, and how genuinely frightened these efforts made those witnesses. I've reproduced the relevant section of Interview #4 below, and the entire length of that interview is embedded at the bottom of this post. (This interview did not take place before the Grand Jury itself, but rather the audio recording of the interview conducted at an earlier date was played for the Grand Jury.) There are three interviewers, whom I have labelled (as best I was able to discern from the transcript) as "Unknown," "Mr.," and "Ms.," at least one of whom is an FBI Special Agent and another of which is an attorney with the prosecutor's office.  (It is possible the "unknown" category should be assigned to some combination of "Mr." and "Ms.")  The witness is labelled as "I4."  All identities and identifying information has been redacted in the official transcript. The interview has been going on for some time when one of the persons leading the questioning interrupts the substantive discussion:

    The Ferguson protesters have proven themselves to be destructive, violent, and completely uninterested in anything having to do with "justice." Not only are they okay with this assessment---they're completely proud of it. In fact, they're beginning to look an awful lot like another "justice movement" we got to know quite well a few years back. Back in August, an enterprising writer over at Buzzfeed engaged in some solid journalism and noticed that the Ferguson protests---namely, the evolving encampments were beginning to look a little like the Occupy Wall Street protests:
    As the marches in Ferguson grow smaller, this apparently semi-permanent encampment has echoes of Occupy Wall Street and other radical encampments who sought to claim and hold territory in 2011 and 2012. “Why do we need a leader?” Alexander asked. “I’m saying everybody can be leaders.” The camp even has a few Occupy veterans who drifted in during the last week and are giving them pointers on how to deal with things like tear gas — a threat Alexander said is still present, especially as their numbers grow. A couple of miles away in downtown Ferguson, across the street from the still-under-construction police station, another group is also digging in. Unlike the protesters on W Florissant, the gathering downtown is older and includes more women than men. Many of the demonstrators leave by the middle of the night, though someone is always out and always will be until they “get some answers,” according to organizer Angela Whitman. “We come out when it’s storming and raining,” she said. “We don’t play around. We don’t care what the weather is. We’ll be out here as long as it takes.” The atmosphere downtown is almost familial, with chairs and tables spread out across the street corner. Friday night, the group had prayers and competing chants between men and women, among other things.
    In fact, Occupy is more interconnected with Ferguson than was immediately apparent when people started to organize.

    Back in the good old days, the left loved to lecture us about civility. That time is over. In the course of the last few days, at least two writers from liberal outlets have tried to justify and even advocate for the violent rioting in Ferguson. First, we have Darlena Cunha of Time:
    Ferguson: In Defense of Rioting When a police officer shoots a young, unarmed black man in the streets, then does not face indictment, anger in the community is inevitable. It’s what we do with that anger that counts. In such a case, is rioting so wrong? Riots are a necessary part of the evolution of society. Unfortunately, we do not live in a universal utopia where people have the basic human rights they deserve simply for existing, and until we get there, the legitimate frustration, sorrow and pain of the marginalized voices will boil over, spilling out into our streets. As “normal” citizens watch the events of Ferguson unfurl on their television screens and Twitter feeds, there is a lot of head shaking, finger pointing, and privileged explanation going on. We wish to seclude the incident and the people involved. To separate it from our history as a nation, to dehumanize the change agents because of their bad and sometimes violent decisions—because if we can separate the underlying racial tensions that clearly exist in our country from the looting and rioting of select individuals, we can continue to ignore the problem.
    Next up is Matt Bruenig of Gawker:

    The violence that gripped Ferguson, MO in the wake of the grand jury's decision not to indict Darren Wilson has spread to multiple cities across the US. Minneapolis Portland

    A lot of San Diegans were caught in gridlock when a group of student protesters from my alma mater, University of California - San Diego, blocked Interstate 5 just in time for morning rush hour.
    Dozens of UCSD students brought traffic to a halt on northbound Interstate 5 Wednesday morning to protest the decision of a grand jury in Ferguson, Mo., not to indict a white policeman for killing an unarmed black teenager. A crowd of an estimated 50 to 70 protesters marched onto the freeway at Nobel Drive at about 6:49 a.m., blocking the northbound lanes. They remained in the roadway for about 40 minutes until San Diego police arrived and removed them. The protesters left the freeway peacefully and began marching on surface streets. There were no immediate reports of arrests. The demonstrators, led by an unidentified man with a bullhorn, held signs objecting to the Missouri grand jury’s decision not to charge Officer Darren Wilson in the Aug. 9 shooting death of 18-year-old Michael Brown, who was unarmed but allegedly came at the officer and, at one point, tried to take his service weapon from him.

    Darren Wilson, the Ferguson Police Officer whom a Grand Jury declined to indict over the shooting death of Micheal Brown, gave a lengthy in-person interview to George Stephanopoulos on ABC News last night. That interview is embedded at the bottom of this post. But this post is not really about Darren Wilson, at least not directly. It's about Johnson City, NY (near Binghamton), Police Officer David Smith, who was involved in a similar incident on March 31, 2014. A reader from this area (Johnson City is about 45 minutes from Ithaca) forwarded me the link, writing: "I had forgotten about this event very close to home but it seems to me that it is relevant to current events." http://www.localsyr.com/story/d/story/officer-shot-and-killed-near-binghamton-area-hospi/21718/364J-3q63EqZs8BkWb6lSw In that incident, a seemingly crazed and aggressive perpetrator managed to take Officer Smith's weapon from him, and then use it to murder Officer Smith:
    Police say a suspect shot and killed a Johnson City police officer with the officer’s own weapon on Monday morning. Officer David Smith was an 18-year veteran of the force, police said at an afternoon news conference. The suspect, 43-year-old James Clark of Greene, pulled away Smith’s weapon and shot the officer three times, according to police. Clark fired at another officer, who then shot the suspect several times. Clark was taken to a hospital and later died.
    As recounted in this video, the circumstances were remarkably similar to the initial assault on Darren Wilson by Michael Brown: Sucker punches to an officer seated in his patrol car, with the perpetrator then leaning in to try to steal the weapon:

    This post focuses on the second-half of Police Officer's testimony before the Grand Jury, during which he is responding to direct questions from both the Prosecutors present (Whirley and Alizadeh) as well as from individual Grand Jury members. This portion of the testimony also covers the relevant post-shooting events. The first half of Wilson's testimony before the Grand Jury consisted of his narrative of events, and was covered in yesterday's post here: #Ferguson Grand Jury evidence: Police Officer’s Account of Shooting. It bears mentioning again that Officer Wilson was not compelled to testify before the Grand Jury, but rather volunteered to do so.  He did so knowing he would not be permitted to be accompanied by legal counsel during his testimony. As was done in yesterday's post, below is an abridged version of the testimony, to ease reading through the material. The full-text of the testimony is embedded at the bottom of this post in the form of a PDF of the official Grand Jury transcript. One observation comes immediately to mind as I've had the opportunity to both carefully review Wilson's September 26 testimony before the Grand Jury as well as watch him recount events in his November 25 ABC News interview with George Stephanopoulos, and that is the utter consistently between the two accounts. This stands in sharp contrast to the very often wildly varying testimony of "pro-Brown" witnesses before the Grand Jury.

    One of my most haunting memories from childhood involves a group of teens from a local Michigan high school; they pounded on our front door and begged my mom to call the police. This was during the 1967 Detroit Riots, when several groups of hostile students decided to take the conflict into our small suburb. My father was away, working as a reporter for the Detroit Free Press, and his team's coverage of this event lead to a Pulitzer Prize. My mom took the students in, made the call, and comforted everyone until parents arrived to pick up the group who fled to our doorstep. A short summary of this event via PBS shows seems similar to what unfolded yesterday:
    For five days in July, Detroit, Michigan descends into chaos. An economic boom has created jobs, and urban renewal projects have built new infrastructure, but blacks have been left behind. New expressways destroy black neighborhoods, and economic opportunities are scarce for black residents. The 95% white police force, notorious for brutal and arbitrary treatment of black citizens, raids an illegal after hours club and draws an angry, frustrated crowd that quickly turns hostile. As Sunday July 23rd dawns, the growing crowd is looting and burning the city. Twelve hours into the frenzy, Governor George Romney calls in the Michigan National Guard; unprepared troops make mistakes like shooting out the street lights. Nearly 4000 people will be arrested in the first two days, and over 7000 by the third. Most are young and black. Police and guardsmen shoot at will, with some later insisting that all of their victims were armed.
    Some footage from the station, WXYZ, and covered by two of the areas best-known reporters of that era:

    Ferguson is on fire, and small businesses are suffering. Our coverage of the violence in Ferguson has included tweets and photos showing rampant vandalism and destruction of locally owned businesses; from pizza joints to beauty shops to liquor stores, proprietors have been punished for the grand jury verdict, and many shop owners are now weighing the benefits of rebuilding vs. boarding up. One of those shop owners, Natalie DuBose, has decided to pick up the pieces and keep fighting. After the grand jury verdict was read and protesters took to the streets, the front windows of Natalie's shop were smashed, and the bakery portion vandalized. Encouraged by friends and family, she created a GoFundMe donation page, and asked for help:

    After last night's protests in Ferguson boiled over, Missouri Governor Jay Nixon has tripled the National Guard presence in Ferguson in an attempt to quell the violence. From the New York Times:
    At an afternoon news conference, Mr. Nixon said that he had ordered the deployment of 2,200 National Guard soldiers to Ferguson. “Last night, criminals intent on lawlessness and destruction terrorized this community,” he said. “What they’ve gone through is unacceptable.” Earlier, Mayor James W. Knowles III of Ferguson criticized the governor for not deploying the Guard quick enough to save some of the businesses that burned. “The delay in deploying the National Guard is deeply concerning,” said Mr. Knowles, adding that he had not spoken directly to the governor since late August, despite almost nightly protests in Ferguson since. Police officers were overwhelmed by the wave of violence Monday night after the grand jury’s decision was announced. Jon Belmar, the St. Louis County police chief, said demonstrators had set fire to at least a dozen buildings in and around Ferguson, and he estimated that he had heard about 150 gunshots. None of the shots, he said, were fired by the police.
    Last night's Ustream livestream from the ground in Ferguson is still up and running:

    As promised, the transcripts of the Ferguson Grand Jury have been released to the public. That's the good news. The bad news is that the transcripts amount to 4,799 pages. That's not a typo: four thousand, seven hundred and ninety-nine pages. So, it's going to take a little time to work through and present in a useful form here. In this post I present the narrative of Police Officer Darren Wilson as he recounts to the Grand Jury his encounter with Mike Brown. I do so in abridged form, meaning that I've stripped out other people's statements to make the narrative more concise and easier to read. All of the text provided is, however, exactly as presented in the official transcript (baring, perhaps, an occasional typo here or there.) To make this more than a mere re-packaging of the official transcript, I suggest it might be a useful exercise as you read through Wilson's narrative to ask yourself whether it meets the required five elements of the law of self-defense. (Strictly speaking, just four of those elements apply, as there is no duty to retreat for a police officer in the performance of his duties.)  These four elements, then, are:
    • Innocence: Wilson must not have been the unlawful physical aggressor.
    • Imminence: Wilson must have been facing a threat that is either about to occur right now, or is in actual progress.
    • Proportionality: To be justified in the use of deadly force in self-defense Wilson must have been facing a threat of death or grave bodily harm.
    • Reasonableness:  Wilson's perceptions, decisions, and actions must have been those of a reasonable and prudent police officer in the same circumstances, with the same capabilities, possessing the same specialized knowledge, and under the same stresses of an existential fight.

    The Ferguson verdict is in: No indictment. The people who deserve the most sympathy in Ferguson are the parents of Michael Brown who lost their son. That makes them the biggest losers and I mean that in a sympathetic way. The second biggest loser in Ferguson is the liberal media which flocked to the scene and stoked racial bias. Now that the facts are in, they look like complete fools. I mean that in a non-sympathetic way. The third biggest loser in Ferguson is President Obama who made a hasty statement on the situation which opened with these words:
    First and foremost, we are a nation built on the rule of law.
    We are? Really? Watch Obama's statement below:

    Last night's grand jury verdict vindicating officer Darren Wilson in the shooting death of Michael Brown sent the people of Ferguson, Missouri into a tailspin. Even as the verdict was being read, reports began to trickle in of vandalism, looting, and violence against police officers attempting to keep the peace.
    The racially charged case in Ferguson has inflamed tensions and reignited debates over police-community relations even in cities hundreds of miles from the predominantly black St. Louis suburb. For many staging protests Monday, the shooting was personal, calling to mind other galvanizing encounters with local law enforcement. Police departments in several major cities said they were bracing for large demonstrations with the potential for the kind of violence that marred nightly protests in Ferguson after Brown's killing. Demonstrators there vandalized police cars, hugged barricades and taunted officers with expletives Monday night while police fired smoke canisters and pepper spray. Gunshots were heard on the streets.
    (added) Mark Levin notes how the lawlessness is a symptom, not the cause:
    Ferguson burns and violence has been unleashed thanks to the reckless liberal media, the lawless administration (especially Eric Holder) exploiting the shooting to smear police departments across the nation, phony civil rights demagogues, race-baiting politicians, and radical hate groups.
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