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


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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 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.