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.

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.

It is interesting that the phrase “traditional common law” is used as if it represents the better choice of such matters.

Under the “traditional common law” cited–from the English common law, to be exact–it would have been entirely lawful for Officer Wilson to shoot Mike Brown in the back as many times as it took to stop or apprehend him if he reasonably suspected Brown of committing a felony. Such used to be the case in the United States, as well, until the Supreme Court decision in Tennessee v. Garner, 471 U.S. 1 (1985), after which (to my knowledge) today every police department in the country authorizes the use of deadly force only where there is an imminent threat to innocent life, and not to merely stop or apprehend a suspect.

Is Yishai Schwartz advocating that the US return to this state of the law? If the US did so, would not young black men be among the most vulnerable to such a retrograde change to the law?

[Under “traditional common law” w]e are supposed to presume guilt, and it is the shooter who must prove that his actions were justified.

Again, it is difficult to imagine a less liberal social construct than to presume guilt, and require that the defendant charged with a crime must prove his innocence before the state.

It is a testament to American jurisprudence that 49 of 50 states have decided that once a legal defense of self-defense is credibly raised by the evidence (that is, once the defendant has met his burden of production on the issue of self-defense), then self-defense effectively becomes an (inverse) element of the crime.  That is, just as the state must prove each and every element of the crime charged in order to secure a conviction, they must disprove a claim of self-defense reasonably raised by the evidence.

Note that this does not relieve the defendant of all legal burden.  He must still ensure that there is evidence in the record that supports each and every element of self-defense required by law–typically five, including: innocence, imminence, proportionality, avoidance, and reasonableness.

If there is an absence of evidence on even a SINGLE ONE of these elements, the defendant can be denied the ability to so much as utter the words “self-defense,” at trial.  One can think of the five elements of a legal defense of self-defense as the five links of a chain from which hangs the defendant’s freedom.  Should even a single one of those links break, a conviction is all but certain.

To understand why this is so, one must keep in mind also that for all practical purposes self-defense requires the defendant to effectively concede to the elements of the crime.  As an affirmative defense, self-defense requires the defendant to step forward and claim responsibility for the use of force, before he can claim justification for that same use of force.

“Yes, I fired that shot, and it killed the victim.  But I had legal justification for doing so, because I was acting in lawful self-defense.”

If the second of those sentences is lost, because the defendant is denied the legal right to argue self-defense at all, having failed on one or more of the required elements, what is left?

“Yes, I fired that shot, and it killed the victim.”

If a prosecutor can’t get a conviction off of what is essentially a complete confession, he might perhaps consider an alternative profession writing legal pieces for the New Republic.

But the hits just keep on coming:

Unless the shooter is a policeman.

And here the piece starts goes off the rails.

“Unless” compared to what? Compared to “traditional common law,” which has zero application in the MO case, as well as in 48 other states? Or, to the contrary, under the actual law relevant to the shooting of Mike Brown? Absent the distinction, the reader is left rudderless.

In addition, it is bizarre to suggest that the rules for the use of force should be the same for a sworn, trained, background-checked law enforcement officer as for a “civilian.”

For example, the police have legal duties that non-police do NOT have. A non-Law Enforcement Officer has no legal duty to intervene in a crime in progress–indeed, in 16 states the non-LEO has an affirmative legal duty to flee, if safely possible, before using force to intervene. A policeman, in contrast, has a legal duty to intervene, subject to constraints imposed by circumstances.

It is for the same reasons that the police are granted qualified immunity for their enforcement of the public laws, whereas a non-LEO is granted no such privilege.

If the rules are to be the same for both police and non-police, which goal post is to be moved? Are the law-abiding public to be allowed the same powers to use force and qualified immunity as the police enjoy? Or are the police to be reduced to the same limited powers to use force as currently possessed by the typical non-LEO? If the choice is the latter, might it not seem likely that recruiting people to act as police officers might not become considerably more difficult?

And unless the victim is a black male.

To this, I can only say, “Wow.”

I have read Missouri’s self-defense statutes thoroughly. I have read the large majority of Missouri self-defense case law with a careful eye. I have read Missouri’s self-defense jury instructions most closely of all.

If there is even a single facet of any of these sources of law governing the use of force in self-defense in Missouri that applies differently in circumstances where the victim of the use of force is a black male, I have yet to see it. (An inquiry to @YishaiSchwartz on this point has not received a response as of this writing.)

And unless the shooting happens in a state with self-defense laws like Missouri.

This remark is perhaps the most laughable.

[So laughable, in fact, that The New Republic was felt obliged to add an “Update” paragraph noting that, in fact, Missouri’s self-defense laws are not substantively different than those of 48 other states.  Despite their “Update” the sentence quoted above remains in their piece, as cited.]

Every state has its own self-defense laws, and they do, indeed, vary among the states, sometimes in important ways.

Under the “facts” as so far disclosed in the shooting of Mike Brown, however, there is simply no substantive difference between the self-defense law of Missouri and that of every other state (Ohio aside).

That is, had the same fact scenario taken place in any other state (Ohio aside) there is no reason to believe that the legal outcome would differ in any way from what would occur in Missouri.

So yes, it is hard to convict a defendant who is presumed innocent and who provides evidence supporting the elements of self-defense.  We wouldn’t want it any other way, regardless of the race of the defendant and the deceased.

–-Andrew, @LawSelfDefense

[The New Republic piece critiqued herein is also the source for the “featured picture,” above.]


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.