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    Ferguson Tag

    A black witness who claims to have seen the killing of Mike Brown by Ferguson police officer Darren Wilson "from start to finish" and who also purports to have just completed testifying in front of the Grand Jury, has subsequently been interviewed by the local St. Louis Post-Dispatch newspaper (on condition of anonymity). Key facets of his testimony to the grand jury, as he recounts it, include:
    • Officer Wilson did not fire while Brown was moving away form him, but only when Brown turned back towards him.
    • Brown motioned with his arms out to his sides, but never raised them high.
    • Brown continued to advance on Wilson despite repeated orders to stop.
    • When Wilson fired his last rounds Brown was only ~20 feet away (those of you familiar with the Tueller drill understand the tactical implications of that distance, although this witness almost certainly did not).
    • Brown's friend and criminal cohort Dorian Johnson took off running when the first round was fired inside Wilson's police vehicle (thus casting further doubt on his testimony of later events, as if further doubt was needed).
    • He saw a struggle inside the patrol car, and saw Wilson's hat fly off.
    • A shot was heard, at which point Brown ran, followed by Wilson (thus measurements of Brown's body from Wilson's vehicle are not likely representative of the distance between the men when Wilson fired).
    • Wilson, gun drawn, shouted repeatedly at Brown to stop his flight.
    • Brown stopped, mumbled something inaudible, and began advancing on Wilson, despite Wilson having his gun in hand.
    • Wilson again ordered Brown to stop, and fired three shots.
    • Brown staggered, apparently from being struck by one or more rounds, then continued to advance on Wilson.
    • Wilson fired four more rounds, the last of which discharged as Brown was falling.

    [UPDATE: An image purporting to be a police report of this shooting event was linked in the comments. I have embedded that image below--thanks Ras.  I can not personally attest to its provenance, but it appears to be of a form I would expect of an actual police report for such an incident.] It's deja vu all over again. A St. Louis police officer working off duty for a private security company shot and killed a black man yesterday.  Protestors gathered quickly, raising concerns of more rioting, looting, and arson threats similar to those that erupted following the shooting of Mike Brown in Ferguson, MO. (h/t @nadraenzi) Fox news reports that while working private security the officer approached three men, who ran away. The officer chased one of them, and a physical struggle ensued.  Police officials report that the chased man then presented a pistol and fired three rounds at the officer before his handgun failed.  There are no reports that any of the shots struck the officer. The officer's handgun was made of more reliable stuff, and he fired 17 rounds at his attacker, mortally wounding him. The Fox article goes on to report:
    The St. Louis Post-Dispatch reported that people claiming to be relatives of the victim identified him as 18-year-old Vonderrit Myers, Jr. The teenager's mother, Syreeta Myers, told The Associated Press by phone Thursday that her son was holding a sandwich when the officer killed him Wednesday night. [ . . . ] Hours after the shooting, a crowd gathered at the scene. Some people shouted "Hands up, don't shoot" in reference to the fatal shooting in August of an unarmed black man, Michael Brown, by a white police officer. That shooting in Ferguson led to weeks of sometimes violent unrest in the St. Louis suburb. Officer Darren Wilson has not been charged in the shooting. Dotson said some in the crowd late Wednesday shouted obscenities toward officers and damaged police cars. Officers, however, "showed great restraint," he said.

    Look up irony in the dictionary, and by all rights you should find a footnote pointing to this news story from CBS re: Ferguson MO: "Ferguson residents frustrated over lack of opportunity." The story notes that the previous night was sufficiently quiet--"just eight arrests"--and that the National Guard is pulling out (meaning, productive people are being released to go back to their day jobs.) The irony arose when the reporter spoke to local Ferguson residents.  The common theme among those interviewed was outrage that local businesses--you know, the ones that had been relentlessly looted and vandalized by local residents--had not hurried to rebuild and offer jobs to local residents. Huh.  Who knew that robbing and burning local businesses might prove a disincentive to them investing and hiring in the community! Anybody remember this guy? Beer

    As if the situation in Ferguson, Missouri wasn't bad enough, Code Pink has decided to join the riots and protests. Code Pink infamously dressed as vaginas and paraded around the RNC in 2012. They also protested the maker of my favorite body wash, Ahava, (made in Israel), because it contains "occupied mud." More ominously, Medea Benjamin, the leader of Code Pink, just attended a gathering of anti-Israel groups, including notorious anti-Semites, in Tehran, as reported by Buzzfeed:
    A number of American and European antiwar activists and conspiracy theorists have gathered in Tehran for a conference aimed at addressing supposed Zionist control of the United States, according to Iranian press reports and the Anti-Defamation League. Code Pink chief Medea Benjamin, journalist and former Cambodian genocide denier Gareth Porter, conspiracy journalist and 9/11 truther Wayne Madsen, and PressTV contributor Kevin Barrett are all reportedly at the conference. Other reported attendees include Dieudonné M’bala M’bala, the anti-Semitic French comedian whose performances have been banned in several French jurisdictions, several Holocaust deniers, and former congressman Mark Siljander, who pleaded guilty in 2010 to being an unregistered foreign agent for an Islamic charity that the government said was connected to terrorism.
    Capitalizing on the two month anniversary of the death of Michael Brown, Code Pink is among the groups organizing a Weekend of Resistance, and is equating Ferguson to Gaza:

    A self-described "avid reader" of Legal Insurrection has asked us to address the issue of the confidentiality of Mike Brown's juvenile criminal record (if any), and whether these are likely to be released to the press and public. Disclaimer: Neither I nor Legal Insurrection knows with certainty whether Mike Brown even has a juvenile criminal record, nor (if such exists) what offenses might have been charged or adjudicated in such a record.  It appears that early internet claims that Brown's juvenile record contained a serious felony were in error. The collected information released by various government actors (or refused to be discussed, as by Brown family lawyers) can be interpreted to suggest that a juvenile record exists, but that it does not contain any serious felonies.  For purposes of the following discussion I will assume this to be the case. Make no mistake, however: our knowledge of any actual juvenile record of Mike Brown is merely speculative. With that out of the way, let's consider the laws, legal principles, and public policy that govern the confidentiality of such juvenile records in Missouri.

    US Supreme Court: First Amendment, History Require Trials Be Public

    In general, trials taking place in court rooms are public events.  In particular, the US Supreme Court has ruled that absent some compelling counter interest the press cannot be denied access to a criminal trial. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (US Supreme Court 1980).  There the Court wrote:
    The right to attend criminal trials is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.

    A report from NBC news indicates that police officers in Ferguson, Missouri are being equipped with on-body cameras in the aftermath of the shooting of Michael Brown by Officer Darren Wilson. The picture above captures an example of footage from this type of camera at the moment an equipped officer (not from Ferguson) was assaulted by a suspect, thus supporting the officer's responsive use of force against the suspect. (Video below the fold.) I first came across one of these devices when cough, cough a "friend" of mine was pulled over for speeding in New Hampshire maybe three years ago. (Yes, my "friend" was on his motorcycle at the time.) The officer approached and immediately pointed out that he was wearing the camera, and asked if it was OK for our interaction to be recorded. Naturally, I said yes. I was frankly surprised he asked---or at least went through the motions of asking---for my permission. This was NOT a major city in New Hampshire, which are tough to come by in the "Live Free or Die" state under the best of circumstances, so even small New England towns have been making use of these cameras for some years now. Today they are apparently used by over 1,000 departments, and at a cost of about $300, it seems a worthwhile investment for most ANY department. Officers are equipped with body armor to protect them against physical attacks; they ought to be similarly equipped with on-body cameras to protect against false claims of legal liability. Below follows the NBC video report.

    One of the most common laments to come out of Ferguson these last days has been that surely it was outrageous for Office Darren Wilson to use his service pistol to shoot an "unarmed" Mike Brown.  (Earlier iterations of this narrative went further in their misinformation, describing the 18-year-old 6'4" 292 pound Brown as a "kid" or "child," as well as falsely claiming that Wilson shot Brown in the back, but such misinformation falls outside the scope of this post.)  Similar arguments were made in the context of the shooting by George Zimmerman of the "unarmed" Trayvon Martin. The notion that a defender may use a firearm in self-defense only if they themselves are faced with a firearm is entertainingly naive, but has no basis in actual law, nor in common sense. In the eyes of the law a gun is not some magical talisman of power, it is merely one of perhaps an infinite number of means of exerting force.  Legally speaking the law tends to divide force into two broad buckets:  non-deadly force and deadly force.  There is some stratification in the context of non-deadly force--a poke to the chest is not the same degree of non-deadly force as a punch to the face--but really none whatever in the context of deadly force.  Deadly force is simply deadly force. For purposes of conciseness, I limit this discussion to cases in which deadly force is involved, as was the case in both Ferguson and Zimmerman.

    Deadly Force: Force Likely to Cause Death or Grave Bodily Harm

    The riots in Ferguson may have subsided, but the legal battle brewing between protesters and city officials may rekindle racial tensions and bring the St. Louis area back into the spotlight. From the ABA Journal:
    Five protesters are suing the city of Ferguson and St. Louis County, Missouri, as well as their police chiefs, based on allegations that they were subject to excessive force and false arrest, among other things. ... Two plaintiffs, a woman and her son, 17, claim that they were wrongfully arrested for failure to disperse at a Ferguson McDonald’s restaurant, which they visited after attending an AME Church “Peace and Love rally.” Another plaintiff arrested for failure to disperse stated that after riding the bus to visit his mother, police shot him with rubber bullets as he attempted to avoid a blocked street. ... Justin Cosma, a Ferguson police officer, is also named as defendant in the case.
    Specifically, the Ferguson protesters are suing for false arrest, negligent supervision (of the police departments by the City of Ferguson and St. Louis,) intentional infliction of emotional distress, assault and battery, and two separate civil rights claims under 42 U.S.C. § 1983: deprivation of civil rights, and failure of the police department to train, supervise, and discipline its officers. The suit seeks over $40 million in damages, and plaintiffs' attorneys say that new defendants may be added at any time. This won't be the first time that police officers in Ferguson have come under fire after alleged civil rights violations. Several officers associated with the department have a history of trouble with allegations of excessive force.

    On Saturday the WaPo featured a wordy piece devoted to Darren Wilson's dysfunctional family of origin, and the racial and other problems in the police force he used to work for, difficulties that seem to have had nothing whatsoever to do with him. As William A. Jacobson has written, it's an attempt at guilt by association. That effort seems even more biased when it is contrasted with a lengthy AP article published the very next day in the Sunday WaPo that tells us what a great guy Michael Brown was. From Saturday's article about Wilson, Darren Wilson’s first job was on a troubled police force disbanded by authorities:
    ...[E]veryone leaves a record, and Darren Dean Wilson is no exception. People who know him describe him as someone who grew up in a home marked by multiple divorces and tangles with the law... Wilson has had some recent personal turmoil: Last year, he petitioned the court seeking a divorce from his wife... His parents divorced in 1989, when he was 2 or 3 years old... In 2001, when Wilson was a freshman in high school, his mother pleaded guilty to forgery and stealing. She was sentenced to five years in prison, although records suggest the court agreed to let her serve her sentence on probation.

    The shooting in Ferguson MO of robbery suspect Mike Brown by Police Officer Darren Wilson has raised a myriad of social, racial, and legal issues.  In this post I'd like to address one of the latter, specifically whether under Missouri law Wilson was authorized to use deadly force to arrest a fleeing Brown in the absence of Brown representing imminent threat of death or grave bodily harm to an innocent. (The presence of such a threat would have justified Wilson's use of deadly force under self-defense and defense of others grounds, which are outside the scope of this post.) This issue was very well addressed by Robert VerBruggen in his August 16th Real Clear Policy post entitled "Missouri's Rule on Deadly Force by Cops,"  which was brought to my attention a few days after publication, and which I encourage you to read.  I offer here a more in-depth discussion of the same issues, and reach the same conclusion.

    MRS §563.046: Law enforcement officer's use of force in making an arrest

    In this context much has been made in the press by "journalists" who have stumbled across Missouri Revised Statute §563.046 is entitled "Law enforcement officer's use of force in making an arrest."  It provides, in relevant part, that:

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

    . . .

    (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 (emphasis added); 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.

    The Washington Post has convicted Police Officer Darren Wilson, who shot Michael Brown, of guilt by association with a former troubled police force in a different town in a prior job than the one he held in Ferguson, MO, and of having parents who were in trouble with the law. Seriously. There is nothing, zero, nada, in the WaPo story linked below that shows Darren Wilson ever did anything wrong himself. In fact, to the extent his own conduct is even mentioned, it's in the context of staying out of trouble. But that does not stop WaPo from trashing Wilson by association. WaPo Darren Wilson first job troubled police department Here's an excerpt on that prior police department from Darren Wilson’s first job was on a troubled police force disbanded by authorities:
    The small city of Jennings, Mo., had a police department so troubled, and with so much tension between white officers and black residents, that the city council finally decided to disband it. Everyone in the Jennings police department was fired. New officers were brought in to create a credible department from scratch. That was three years ago. One of the officers who worked in that department, and lost his job along with everyone else, was a young man named Darren Wilson. Some of the Jennings officers reapplied for their jobs, but Wilson got a job in the police department in the nearby city of Ferguson.....

    At The New Republic, author Yishai Schwartz argues that "Convicting Darren Wilson Will Be Basically Impossible" because of the presumption of innocence mixed with race and Missouri self-defense law :
    We may never know what actually happened during the violent encounter between teenager Michael Brown and policeman Darren Wilson. But legal judgments rarely happen with perfect knowledge and absolute certainty. In their place, we rely on presumptions and standards that guide our thinking and discipline our judgments. In general, we presume innocence. But when we know that a killing has occurred and can definitively identify who committed the act, traditional common law demanded that our presumptions shift. We are supposed to presume guilt, and it is the shooter who must prove that his actions were justified. Unless the shooter is a policeman. And unless the victim is a black male. And unless the shooting happens in a state with self-defense laws like Missouri.
    So, let's take a look, shall we?
    In general, we presume innocence.
    Indeed, in criminal prosecutions we presume innocence.  This is entirely consistent with the liberal tradition that it is “Better that 10 guilty killers go free than one person who killed in proper self-defense go to prison for a long time (or be executed)," to quote Eugene Volokh's column linked in the embedded quote above. Certainly, it is possible to imagine a criminal justice system in which one is presumed guilty. I expect that most people--particularly those who are the victims of systematic social injustice--would find such a system not to their liking. We'll get back to that later.

    The latest developments, a growing list, feel free to add more in the comments: NY Times, Missouri National Guard to Withdraw From Ferguson as Tensions Ease:
    As tensions on the streets here seemed to ease on Thursday, Gov. Jay Nixon ordered the Missouri National Guard to begin withdrawing from the city. “I greatly appreciate the men and women of the Missouri National Guard for successfully carrying out the specific, limited mission of protecting the Unified Command Center so that law enforcement officers could focus on the important work of increasing communication within the community, restoring trust, and protecting the people and property of Ferguson,” Mr. Nixon said in a statement. He said that order in the city had been largely restored and that the presence of the National Guard was no longer needed.
    Is the Trayvon case really the prototype to use? Well, maybe, if you want a prototype of a rush to judgment based on inflammatory racial accusations that had no basis in evidence: Even WaPo now is reporting on the alleged eye socket fracture to the police officer:

    Fox News is reporting that police officer Darren Wilson was severely beaten by Michael Brown during the confrontation that ended with Brown's death:
    Darren Wilson, the Ferguson, Mo., police officer whose fatal shooting of Michael Brown touched off more than a week of demonstrations, suffered severe facial injuries, including an orbital (eye socket) fracture, and was nearly beaten unconscious by Brown moments before firing his gun, a source close to the department's top brass told “The Assistant (Police) Chief took him to the hospital, his face all swollen on one side,” said the insider. “He was beaten very severely.”... The source also said the dashboard and body cameras, which might have recorded crucial evidence, had been ordered by Ferguson Police Chief Thomas Jackson, but had only recently arrived and had not yet been deployed.
    Too bad about those cameras; what poor timing. The article also says that St. Louis County police, now in charge of the investigation, have refused to confirm or deny the story. They say they will present all the evidence to a grand jury when the time comes.

    Attorney General Eric Holder is meeting with law enforcement and civil rights leaders in Ferguson, Missouri today in an attempt to ease racial tensions in the St. Louis Metro area. It's unclear, however whether Holder's presence will calm the violence, or make things more difficult for local and state law enforcement:
    Justice Department officials say the unusually aggressive federal intervention is justified by the continuing violence and apparent mishandling of the case by local officials, who have been criticized for displaying excessive force against protesters and moving too slowly to investigate the Aug. 9 shooting. But law enforcement officials and other experts could not recall another instance in which Washington pushed ahead with a federal civil rights case as it has in Ferguson, almost elbowing state officials out of the way.
    Fortunately for America, Holder also took time out of his busy schedule to get in on a selfie: Holder has also encouraged local civil rights leaders and advocates to promote a more federal-centric approach to resolving the crisis in Ferguson.
    In a sign that Holder's campaign is gaining traction in the area, a group of African American lawyers held a news conference Tuesday in front of the St. Louis County courthouse, calling on local prosecutor Robert McCulloch to recuse himself. They said the federal investigation should proceed first because McCulloch appears to be "emotionally invested in protecting law enforcement." Yet with all of Holder's determination, the reality is that state prosecutions almost always go first and that a federal civil rights case could be harder to build and win than a state case involving a charge of murder or manslaughter.