The fatal shooting of the Mike Brown by police officer Darren Wilson has raised a hue and cry about a wide variety of social issues, among them the increasingly vitriolic nature of American race relations, the astonishing militarization of the police (or, perhaps more accurately, their equipment), and the curious (to me, at least) degree to which the rioting, looting, and arson that followed the shooting was rationalized as “wrong, but understandable.”

Ferguson Police Officer Darren Wilson

Ferguson Police Officer Darren Wilson

A Too-Familiar Misinformation Cascade

This most recent high-profile shooting has also seen the deployment of a too-familiar misinformation cascade in cases where there is a real or perceived racial element.  This misinformation cascade achieves its purpose by taking what few “facts” are typically available in the immediate aftermath of such an event, and passing them through a rhetorical filter to construct two defining narrative elements:

The pure victim: An image of the victim as an innocent, nearly saint-like, young child of such tender years as to suggest that the very notion of him committing an act of malice is preposterous.

The monstrous aggressor: An image of the shooter as an angry, hateful, racist monster with a hunger for shooting young black children dead in circumstances totally absent of legal justification.

The Misinformation Cascade in the Zimmerman/Trayvon Case

In the case of the shooting of Trayvon Martin by the “White Hispanic” George Zimmerman, these dual goals were accomplished in several ways.

For example, “the pure victim” fork of the narrative was aggressively advanced by the mainstream media widely promulgating a photo of Martin taken of him as an much younger looking child.

trayvon-martin

The reality: pictures of the 17-year-old Martin taken shortly before his death, many of them by himself, show a near 6-foot, athletic, well-muscled young man making gestures and engaging in conduct that fall well outside the bounds of “angelic.”

Trayvon Martin 17

The toxicology report also confirmed he was a user of controlled substances (THC, marijuana), with suggestions (the “fatty liver”) that there may also have been long-term abuse of other drugs. Pictures recovered from Martin’s cell-phone show him smoking (presumably marijuana).

Trayvon Martin smoking

There were also pictures on Martin’s cell phone that appear to be “selfies” of him holding a gun–the possession of which would have been illegal if only due to his age.

Trayvon Martin gun

There were also credible allegations that Martin had been recently been suspended from school for having been found with stolen property, and also bragged about fighting, and his experience landing the first blow to the nose (which is what happened to Zimmerman). This evidence never was presented to the jury, but it strongly contradicted the original narrative.

Furthermore, there was eye-witness testimony at the trial that unequivocally placed Martin astride Zimmerman, aggressively raining down blows “ground-and-pound” MMA style, with Zimmerman screaming for  help.  There was also forensic evidence of moisture on the back of Zimmerman’s jacket, consistent with him having been on his back on the ground during the course of the fight, and the forensic ballistic evidence confirming that Martin was on top of Zimmerman at the time of the shooting.

To say that the narrative of an innocent child shot for wearing a hoodie and carrying Skittles had imploded would be a gross understatement.

Similarly, “the monstrous shooter” fork of the narrative was advanced by, among other means, NBC deliberately doctoring the recording of George Zimmerman’s 911 call to police to create the impression that Zimmerman independently offered an unsolicited description of Martin’s race.  The implication was that Zimmerman used Martin’s race as the basis for concluding that Martin was “up to no good.”

The reality: Zimmerman never mentions Martin’s race to the 911 dispatcher until that dispatcher explicitly asks him, “Is he white, black, or Hispanic.” (It is this inquiry from the dispatcher that NBC edited out of the 911 recording they played numerous times in television coverage of the event.)

Those examples are only a few of dozens that illustrate the broader application of this misinformation cascade in the Zimmerman case, but time and space compel me to move on to the more recent incident.

In the end, of course, Zimmerman was acquitted of all charges.  The costs for having “won” at trial included a year-and-a-half of his life, several hundreds of thousands of dollars, his marriage, and knowing that much of the nation would forever believe the misinformation to which they had been exposed.

The Misinformation Cascade Following the Shooting of Mike Brown

In the shooting of the Mike Brown, a black 18-year-old, by the Darren Wilson, a white police officer, we see the same misinformation cascade brought into play.

It should be noted up front that this shooting has not yet been thoroughly investigated and adjudicated.

If Officer Wilson violated the law in his use of force against Brown, I will be among the first to demand that he be held accountable.  If he did not, I will be the first to demand that he be cleared of misconduct.

It should also be noted that neither Brown nor Wilson is, in real life, a pure archetype.  It seems very likely that Brown engaged in some serious criminal activity–including a robbery–but it is also undoubtedly true that there are those in his life who will recall him with love.  Similarly, Wilson appears to have been exemplary officer who had only recently been awarded a commendation–but I’m sure he would be among the first to acknowledge that he, like all of us, is not immune from making mistakes.

The only issue in the matter about which I feel strongly is that Wilson, like all of us, is entitled to the rule of law and due process.  And, as in the Zimmerman case, we are seeing again how a misinformation cascade results in the effective denial of both of those rights.

Here “the pure victim” fork of the narrative has been aggressively forwarded by the early and repetitive references to Mike Brown as a black teenager, and even as a black child (Brown family attorney hit this theme repeatedly in a press statement just yesterday), and un unarmed black child, at that.

The reality: It was only days after the event that we learn that although Mike Brown was indeed technically a “teenager,” being 18 years of age, he was far from a harmless child.

First, one is compelled to note that at 18 years of age the United States military will accept one as a recruit to be trained to kill our nation’s enemies with professional skill and efficiency. If a person is of an age to sufficiently present a lethal threat to foreign armies, he can certainly present such a threat to a lone suburban police officer.  Further, enormous numbers of young men still in their teenage years are found to have deliberately murdered other young men still in their teenage years–c.f., Chicago.  The term “teenager” is by no means synonymous with “harmless,” as anyone with common sense knows.

Second, Mike Brown was referred to in the community as “Big Mike” for good reason—he was an 18-year-old of stupendous proportions, standing well in excess of six feet tall and weighing just shy of 300 pounds.

Third, we now know that Mike was not at all unwilling to make use of his size to commit felonies against innocents, as is illustrated by the surveillance videotape that shows him committing a strong-arm robbery just minutes before he fought with and was shot by Officer Wilson.

It is notable that this videotape was released only days after the shooting, and the rioting, looting and arson that immediately followed the shooting. The damage this videotape clearly does to the “pure victim” fork of the narrative suggests why this delay might have occurred.

And what of “the monstrous shooter” fork of the narrative? In part this follows naturally from the “pure victim” fork of the narrative—after all, what possible reason can there be for shooting a “pure victim”? Invariably, however,  the effort is made to buttress this fork of the narrative further.

In this case, one such effort was to characterize not just the shooter as monstrous, but the entire police department as monstrous. The department, it was argued, had an extensive prior history of shooting young black men for no good reason and then covering up the event to escape liability for their misconduct.

The reality: The actual concrete evidence of this extensive prior history—e.g., actual convictions of police found guilty of such conduct—was scarce to the point of vanishing. The only foundation provided was allegation and speculation—both of which the media happily ran with. With this argument, then Darren Wilson becomes just the most recently active monster of a department of monsters.

Another effort to bolster the “monstrous shooter” fork was the claim that Wilson shot Brown from a considerable distance, shot him repeatedly in the back as Brown was fleeing, while Brown had his hands raised in surrender, and while Brown being entirely compliant with Wilson’s lawful instructions. Were these facts true, Wilson’s conduct would have been monstrous, indeed.

The reality: We now hear that there exists quite another side to the story. This other side recounts how Wilson had just had the fight for his life against not just Brown but also Brown’s robbery-accomplice, Dorian Johnson, as the two men forced the officer back into his car and attempted to strip him of his sidearm.  St. Louis County Police Department Chief Jon Belmar spoke to these events in a press statement this past Sunday, as shown here:  Belmar: Struggle over gun led to teen’s shooting.

It is worth noting at this point that many police officers who are killed by gunshot are shot with their own weapon that has been taken from them by assailants. Every police officer in the nation, likely in the world, is aware of this reality.

An attempt to seize an officer’s pistol is nothing short of an out-and-out declaration that you intend to slay that officer. Wilson would have been unquestionably entitled to use deadly force against both Brown and his accomplice to prevent this seizure from occurring.

Chief Belmar stated that in the struggle in the car over the gun, the weapon discharged. I can tell you from personal experience that a handgun firing in an enclosed space is very, very, very loud, to the point of being momentarily disorienting.

I would also note that the gun could only have been discharged if the trigger had been depressed. Further, that a police officer’s holster (as any good holster) completely covers the gun’s trigger. Thus, the only way the gun could have been discharged during the struggle would have been if the pistol had already come out of the holster.

Because of the threat to police officers of being shot with their own guns, they are trained in techniques of weapon retention. One of the golden rules of weapon retention of a holstered pistol is to keep the gun in the holster. If an assailant manages to get his hand on the pistol’s grip, the officer will place his hand atop the assailant’s and push down with every ounce of strength he has to keep the pistol inside the holster.  The gun cannot fire so long as it remains within the holster.

But what if the assailant possesses, as here, considerably greater strength than the officer? Or there are multiple assailants, as here, who collectively can easily overwhelm the officer? Where the cascade of trying to keep the gun in the holster is doomed to fail because of such circumstances—in other words, the assailants are sure to eventually overpower the officer, obtain the weapon, and kill the officer with it.

In such circumstances the officer may attempt an alternative approach to “retaining” his weapon: by discharging.

This seems a likely explanation for the discharge inside Wilson’s vehicle, and the discharge seems a likely explanation for the two assailants exiting the vehicle and creating some space between themselves and the Wilson. Finally, it would also explain why Wilson might have already had his pistol in hand when he himself emerged from the car.

At that point did he simply shoot the fleeing/surrendering Brown in the back? While the evidence remains cloudy, a growing proportion of it suggests not.

First, there is just released autopsy sketch, which indicates six bullet gun-shot wounds (although a handwritten note suggests some may be exit and re-entry wounds).  All six are to the front of Mike Brown’s body, none to the rear.  This evidence is clearly inconsistent with the early narrative of Brown being shot in the back as he fled.

Mike Brown autopsy sketch

Mike Brown autopsy sketch

Second, we now have reports from an interview conducted by Dana Loesch on her radio show with a person who claims personal knowledge of the events that for some reason Mike Brown made the decision to stop distancing himself from the police car and Wilson, and instead decided to turn back charge at the officer:

He pulled up ahead of them. And then he got a call-in that there was a strong-arm robbery. And, they gave a description. And, he’s looking at them and they got something in their hands and it looks like it could be what, you know those cigars or whatever. So he goes in reverse back to them. Tries to get out of his car. They slam his door shut violently. I think he said Michael did. And, then he opened the car again. He tried to get out. He stands up.

And then Michael just bum-rushes him and shoves him back into his car. Punches him in the face and them Darren grabs for his gun. Michael grabbed for the gun. At one point he got the gun entirely turned against his hip. And he shoves it away. And the gun goes off.

Well, then Michael takes off and gets to be about 35 feet away. And, Darren’s first protocol is to pursue. So, he stands up and yells, “Freeze!” Michael and his friend turn around. And Michael taunts him… And then all the sudden he just started bumrushing him. He just started coming at him full speed. And, so he just started shooting. And, he just kept coming. And, so he really thinks he was on something.

If true, Wilson—faced with a substantially larger assailant who had only moments before demonstrated the willingness and desire to strip Wilson of his gun for the only rational purpose of killing him with it now charging at him again—would have had every legal justification to use all reasonable force, including deadly force, to stop that imminent attack.

The Misinformation Cascade, the Rule of Law, and Due Process

So in Ferguson we find ourselves with a similar initial narrative as in the Martin case.

But what if Officer Wilson, like Zimmerman, is ultimately cleared of wrong doing?

Will this have been accomplished at Zimmerman-like cost–a year or more of his life in turmoil, hundreds of thousands of dollars in legal expenses, and a world that will forever tie his name to that of a “racist executioner of a black child,” all driven not by the rule of law and due process, but of a misinformation cascade?

And Officer Wilson is far from the only victim of the current misinformation campaign.  What of the residents of Ferguson? Where similar riots have occurred in other cities, the community’s recovery has taken decades, if it was achieved at all.  What of the shop owners whose stores were looted and burned down?

Further, and more pragmatically, it is worth asking why the normal measures of the rule of law and due process will have been short-circuited in the case—just as they were in the Zimmerman case, and innumerable others. Who benefits from such blatant violation of our legal norms? And who pays the cost?

–-Andrew, @LawSelfDefense

[Featured Image source: YouTube]


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 Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.