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Did MO Law Allow for Deadly-Force Arrest of Mike Brown?

Did MO Law Allow for Deadly-Force Arrest of Mike Brown?

A cautionary tale on the hazards of relying on the plain-language of statutes

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.

A plain reading of this 563.046(3)(2)(a) could reasonably lead to the conclusion that Wilson was authorized to use deadly force to stop Brown’s flight, even if Brown presented no imminent threat of death or grave bodily harm, if Wilson merely had a reasonable belief that Brown was fleeing to avoid apprehension for a recently completed felony robbery:

If true, all the discussion of whether the 18-year-old, 6′ 4″ tall, 292 pound Brown represented a deadly threat at the time Wilson shot him would be moot.  Indeed, even had the since debunked claim that Wilson shot Brown in the back proven to be true, it would have been irrelevant if deadly force may be used to arrest or apprehend a fleeing felony suspect.

But can it? 563.046 seems to suggest so–and thus provides a useful example of relying upon the plain reading of a statute to understand the law.

Tennessee v. Garner, 471 U.S. 1 (1985)

As it happens, this question of whether deadly force can be used to apprehend a fleeing felony suspect has been addressed by no less than the United States Supreme Court in the 6-to-3 decision of Tennessee v. Garner, 471 U.S. 1 (1985).

Rather than attempt to briefly summarize the decision in my own words, I’ll instead provide an abridged version of the majority opinion.  (As always, I encourage the reading of the full-length of this decision at my blog,, most directly accessible by clicking the link above.)  Justice White, who authored the majority opinion, conveniently provides the ultimate holding in the first paragraph; I include the rest for additional context.

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.  [Emphasis added.]

Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a “prowler inside call.”  [ . . . ]  The fleeing suspect [Garner] . . . stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner’s face and hands. He saw no sign of a weapon, and, though not certain, was “reasonably sure” and “figured” that Garner was unarmed. He thought Garner was 17 or 18 years old and about 5′ 5″ or 5′ 7″ tall. While Garner was crouched at the base of the fence, Hymon called out “police, halt” and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture, Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.

In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary.  The incident was reviewed by the Memphis Police Firearm’s Review Board and presented to a grand jury. Neither took any action.

Garner’s father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. 1983 for asserted violations of Garner’s constitutional rights. . . . After a 3-day bench trial, the District Court entered judgment for all defendants. . . . It then concluded that Hymon’s actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner’s escape. Garner had “recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.”

[ . . . ]

The Court of Appeals reversed and remanded. It reasoned that the killing of a fleeing suspect is a “seizure” under the Fourth Amendment, and is therefore constitutional only if “reasonable.” The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes – “the facts, as found, did not justify the use of deadly force under the Fourth Amendment.”  Officers cannot resort to deadly force unless they “have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large.”

The State of Tennessee, which had intervened to defend the statute, appealed to this [the US Supreme] Court.


[Justice White continues:  T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.

[ . . . ]

[N]otwithstanding 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. . . . 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, 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 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 circumstances, the Tennessee statute would pass constitutional muster.

[ . . . ]

It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant.

[ . . . ]

Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon.

[ . . . ]

[T]he common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death. . . . Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons.

Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. And while in earlier times “the gulf between the felonies and the minor offences was broad and deep,” today the distinction is minor and often arbitrary. . . . [N]umerous misdemeanors involve conduct more dangerous than many felonies.

There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning – and harsher consequences – now than in past centuries. [Emphasis added, for reasons of personal interest.]

[ . . . ]

In short, though the common-law pedigree of Tennessee’s rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.

In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing rules in individual jurisdictions.

[T]he long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.

This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where “the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury.”  A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm. Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

[ . . . ]

The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available.

[ . . . ]

In reversing, the Court of Appeals accepted the District Court’s factual conclusions and held that “the facts, as found, did not justify the use of deadly force.”  We agree. Officer Hymon could not reasonably have believed that Garner – young, slight, and unarmed – posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. . . . [T]he fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.

The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a “property” rather than a “violent” crime. Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much.


We wish to make clear what our holding means in the context of this case. . . . The possible liability of the remaining defendants – the Police Department and the city of Memphis – hinges on Monell [ . . . ], and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did.

[ . . . ]

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

Missouri Approved Instructions–Criminal, §306.14 Settles the Matter

The Supreme Court in Tennessee v. Garner addressed, of course, a Tennessee statute of similar nature to Missouri’s §563.046, and at first glance might seem to settle the matter with regards to the use of deadly force to apprehend non-dangerous felons under even Missouri law.

There are, however, some important differences between the facts in Garner and those of the Ferguson shooting that open the door for reasonable argument that perhaps Garner does not apply to the facts of the shooting of Mike Brown by Officer Darren Wilson.

For one thing, Garner involved a civil suit, not a criminal matter. In addition, Garner never considered in any substantive way any personal liability–either civil or criminal–on the part of the police officer who fired the fatal bullet into the back of Garner’s head.  The Federal District (trial) Court had dismissed the charges against the officer early on, and the Court of Appeals had affirmed that dismissal, “finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity.”

The shooting officer’s criminal liability, however, is precisely the question with which we are faced in the Ferguson shooting.

So, if we can’t rely upon a plain-language reading of Missouri statute §563.046, and reasonable arguments can be made that the Supreme Court’s Garner decision may not be on point, where are we to turn next?

Fortunately, Missouri jurisprudence helpfully arrives to bail us out–if one has access to Missouri criminal jury instructions. And that’s a big “if,” because MO does not make it’s criminal jury instructions readily available to the public.  On line access may be purchased at a cost of $250 per year, and hard copies at a cost I was unable to determine in the absence of a Missouri bar number.

The aforementioned Rober VerBruggen, in a remarkable piece of internet sleuthing, was able to find an abridged version of the  to the relevant jury instruction embedded in a July 2014 misdemeanor probable cause statement.  (Interestingly, the statement was sworn by a Detective against a Patrol Officer in his own department.  The Detective found probable cause that the Officer had committed third degree assault by inadvertently shooting a fleeing suspect with his Glock 17 pistol in the mistaken belief that he was pointing his non-lethal  Taser at the suspect. It’s worth a read.)

As it happens, the very well equipped Law of Self Defense Reference Library has in its possession the relevant sections of the Missouri Approved Instructions–Criminal (MAI-CR), Third Edition (2014).  As such, I can provide the full-length of the relevant jury instruction, MAI-CR §306.14, “Justification: Use of Force by a Law Enforcement Officer.”  (I include only the portions relevant to an officer’s use of deadly force, to fit the facts in the Ferguson shooting.) (Also, my apologies for my delay in presenting this information–I failed to carry along the LOSD Reference Library during my just-completed vacation.)



One of the issues (as to Count _____) (in this case) is whether the use of force by the defendant against [name of victim] was lawful. In this state, the use of force (including the use of deadly force) by a law enforcement officer in making an arrest or in preventing escape after arrest is lawful in certain situations.

A law enforcement officer can lawfully use force to make an arrest or to prevent escape if he is making a lawful arrest or an arrest which he reasonably believes to be lawful.  An arrest is lawful if the officer (reasonably believes that the person being arrested (has committed) (or) (is committing) a crime) (is executing an arrest warrant which he believes to be valid).

In making a lawful arrest or preventing escape after such an arrest, a law enforcement officer is entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape.

A law enforcement officer in making an arrest need not retreat or desist from his efforts because of resistance or threatened resistance by the person being arrested.

But in making an arrest or preventing escape, a law enforcement officer is not entitled to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes that the person being arrested is attempting to escape by use of a deadly weapon or that the person may endanger life or inflict serious physical injury unless arrested without delay (emphasis added).

And, even then, a law enforcement officer may use deadly force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.


On the issue of use of force by a law enforcement officer (as to Count _____), you are instructed as follows:

First, if the defendant was a law enforcement officer (making) (or) (attempting to make) a lawful arrest (or what he reasonably believed to be a lawful arrest) or [name of victim] for the crime of [name of crime] and the defendant reasonably believed that use of force was necessary to effect the arrest of to prevent the escape of [name of victim] and

Second, the defendant reasonably believed that [name of victim] (was attempting to escape by the use of a deadly weapon) (or) (would endanger life or inflict serious physical injury unless arrested without delay) [emphasis added], and the defendant reasonably believed that the use of deadly force was immediately necessary to effect the arrest of [name of victim], then the defendant’s use of force was lawful.

The state has the burden of proving beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer. Unless you find beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer against [name of victim], you must find the defendant not guilty (under Count ____).

As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

 Wilson’s Use of Deadly Force Would Be Unlawful Absent Imminent Deadly Threat 

And there we have it.  Despite the plain-language reading of §563.046 that a law enforcement can use deadly force to make an arrest when he reasonably believes the person making the arrest has committed a felony, in the aftermath of Tennessee v. Garner and subsequent changes to Missouri case law and jury instructions, the use of deadly force to make an arrest of a non-dangerous fleeing felon is not permitted under Missouri law.

Hazards of Relying on the Plain-Language Reading of a Statute

Hopefully this post not only addresses this previously open question in the Ferguson shooting, but also raises a caution among the kind readers about relying on the plain-language reading of a statute.

The situation encountered here, where the plain-language reading of a statute leads one to exactly the wrong understanding of the actual law, is far more common than most non-lawyers likely realize.

Statutes are best understood as the (often vaguely expressed) intent of the Legislature.  Where the rubber-meets-the-road, however, is in how those statutes are applied by the courts in real-world cases involving real-world parties and real-world fact patterns.

Finding the law in those cases (hence the term “case law”) requires either reading the relevant court decisions or–often more efficient–reading the relevant jury instructions, which are intended to be a correct blend of both the underlying statute and the applicable case law.

–-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 (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.


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As I read the MO criminal statutes, Big Mike Brown probably committed a Class 2 robbery , a Class B felony, when he shoved the store clerk during that recent convenience store heist. If he then physically assaulted Officer Wilson (breaking his ocular bone), he probably committed another violent felony, probably a Class 2 assault on a LEO, again a Class B felony. Grabbing for Wilson’s firearm would probably escalate that to attempted murder. With two probable Class B violent felonies (one of which Wilson personally witnessed – and experienced) in the last half hour or so, I think that the officer could reasonably believe that Big Mike was extremely dangerous, both to the officer, and the community. Of course, as far as we can tell so far, the bullet wounds to Brown are consistent with him advancing on (the already injured) Wilson, instead of fleeing, in the back.

    tom swift in reply to Bruce Hayden. | August 24, 2014 at 11:31 pm

    the bullet wounds to Brown are consistent with him advancing on (the already injured) Wilson

    They are also consistent with Brown facing Wilson with his hands up but moving nowhere at all.

      The top down onto the head one doesn’t fit that at all…

      Thats simply not true. The autopsy shows entry wounds on the OUTSIDE of the arms. If Brown’s arms had been raised, the inside of his arms (wrists to underarm) would have been hit instead. Try it, raise you arms over your head, notice how the outside of your arms are facing away?

      There was also one round that went through his arm into his chest. You want to explain how that can happen if your arms are raised above your head?

      TrooperJohnSmith in reply to tom swift. | August 25, 2014 at 12:52 am

      They are also consistent with Brown facing Wilson with his hands up but moving nowhere at all.

      Two things wrong with this. First, nobody will stand there with hands up while someone shoots bullets into their raised arm, in close proximity to their head. Second, he’d have to be able to turn his hands, inside out, palms outward, to expose that part of his right arm to bullets from that angle. In short, Mike Brown would have to be a combination pain-resistant Zombie and double-jointed Russian gymnast.

      But, to the Left, facts don’t matter one bit.

      Gremlin1974 in reply to tom swift. | August 25, 2014 at 2:20 am

      Actually, him having is arms raised presents a different aspect of the arm. The wounds to the arms indicate his hands were down at least below shoulder level.

    So in short we can’t assess the applicability of this law unless we know for with more certainty that the officer was indeed attacked by Mr. Brown. It obviously won’t apply if the officer “gunned down a black boy in cold blood” like certain people have argued, but that never made much sense.

    TrooperJohnSmith in reply to Bruce Hayden. | August 25, 2014 at 12:40 am

    If you’ve ever been hit in the face as hard as Officer Wilson, you are either stunned, unconscious or on the verge of losing conscious. Some people have a pronounced vasovagal response in the face of such injury, especially when under stress.

    Under such duress, Officer Wilson could (a.) have feared losing consciousness, and thus seen an advancing Mike Brown as an imminent threat; (b.) during a vasovagal episode, one gets pronounced tunnel vision, the fight/flight response turns to a core survival mode response and a sense of self-preservation could alter judgment patterns.

    In short, if Mike Brown wounds an armed man with a head blow, scrambles his senses and then advances on him aggressively, what other response is there?

      ^^^ The voice of experience. ^^^

      –Andrew, @LawSelfDefense

      DaveGinOly in reply to TrooperJohnSmith. | August 25, 2014 at 12:52 am

      As I mentioned here at another story, Massad Ayoob says “A person going for your gun is a person going for a gun.” In other words, a person asking to be shot.

      If Brown had attempted to take Wilson’s sidearm and failed, and then instead of fleeing, turned back and rushed Wilson, Wilson would have every right to presume that the rush was the first action of another attempt to seize his sidearm, and he was therefore in fear of his life.

      MouseTheLuckyDog in reply to TrooperJohnSmith. | August 25, 2014 at 2:48 am

      I’ve been hit several times in the nose in aiki-jitsu training.
      Not just taps, hard blows, but not so hard as to break your nose.
      First you “see stars”. Actually you don’t see stars. What you do see are hundreds of tiny pinpricks of light. In that first instance you are aware of nothing. You then slowly become aware of where you are but not what you are doing, like when you gop into another room to get something and forget what you wanted.

      Eventually you do become aware, but you still have a hard time focusing your thoughts. Then you encounter something else. Pain. Every injury or tweak you have had in the past few months suddenly feals like when you first got it.

      There were different types of people in our dojo. Some came to become disciplined. Some came for exercise. Some came to “achieve enlightenment”. Those people often slacked off. It didn’t matter to them if they got the technique wrong, because getting the technique right wasn’t why they were there. But there were a hard core group, that basically felt that it was important to learn to do the techniques right, to put all our energy into it. We felt that if we didn’t then whatever reason we were there for, we would not be achieving it efficiently.

      Why do I mention this? Because that hard-core group liked getting punched in the nose. We felt that if we could continue on after being hit in the nose, We could handling almost anything. To us it was a test.

      I suspect that in the end the getting hit in the eye is different, but not much different.

        Gremlin1974 in reply to MouseTheLuckyDog. | August 25, 2014 at 3:53 pm

        Excellent description of what happens and unfortunately I can say from experience that you are correct.

        Also it should be noted that by having received and recovered from those blow you would most likely fair better than someone who did not know what to expect, should it ever happen to you in a self defense situation. However, the average person or the average cop, since most of them don’t train for MMA, would have exactly the reaction you describe.

        Not a very good dojo if they taught you it was cool to intentionally let yourself get hit in the nose and if you were getting hit in the nose and still functional sounds like a bunch of noodle arm metrosexuals actually not a real dojo

      MattMusson in reply to TrooperJohnSmith. | August 25, 2014 at 9:11 am

      A shot was fired in the car. And, reality check – people get crazy after shots are fired. Brown bum rushing the police officer is an example of crazy stupid. And, it appears there are plenty of witnesses who can report that is exactly what happened.

        Bruce Hayden in reply to MattMusson. | August 25, 2014 at 12:01 pm

        I don’t think we can yet say definitively that there was a fight for the gun and if so, that a round discharged. If you can point to strong evidence of such, instead of the usual rumor, please do. Because, as. Think I suggested above, and someone below explicitly points out that probably takes the situation from the statute discussed by AB in his post to standard self-defense. I think that someone grabbing for, and fighting over, an officer’s gun is pretty close to attempted murder, and sufficient to pose an objectively reasonable threat to the officer’s life or of great bodily injury.

        My view is that a prosecutor probably shouldn’t be able to ethically indict Officer Wilson for shooting “Big Mike” Brown if there is forensic evidence that Brown tried for Wilson’s gun, that a round was discharged as a result, and the medical and autopsy evidence remains on Wilson’s side. But so far, most of what I have seen supporting the alleged fight over the gun is more rumor and maybe spin – I find the x-ray and autopsy results much more credible at this point.

Hopefully Missouri will have a smarter Grand Jury than the one here in Texas, specifically Travis County.

    platypus in reply to rabid wombat. | August 25, 2014 at 1:15 am

    Somebody should check the bank accounts of those grand jurors. Just to make sure none of ’em got suddenly wealthy.

    That Texas Grand Jury may just have elected Rick Perry President.

    –Andrew, @LawSelfDefense

      Gremlin1974 in reply to Andrew Branca. | August 25, 2014 at 6:44 pm

      So true, hence my comments elsewhere, you can never tell what a Grand Jury might come up with.

      Though I fully expect an indictment in this case, if for nothing more than political reasons.

      P.S. It does give me a warm and fuzzy feeling knowing that the “Grand Jury” in Austin has had exactly the opposite effect that they were trying to achieve.

Humphrey's Executor | August 24, 2014 at 7:56 pm

The SCOTUS in Garner noted that the fleeing felon was “young, slight, and unarmed”. What difference does it make/should it make, when he suspect is “young, massive, and unarmed”?

The case seems to hinge on whether Wilson reasonably feared for his life. Brown had tried to take his gun. Wilson was seriously injured and Brown had injured him. Brown was facing him when he was shot. Now what is the significance of the distance and was Brown approaching or surrendering and given his injuries could Wilson have misinterpreted Brown’s intentions?

    Bruce Hayden in reply to cwillia1. | August 25, 2014 at 1:23 pm

    This all is happening in the Show Me state. I have never lived there, but been through it a number of times, and my grandfather was born there. So, in that spirit, I would point out that there doesn’t appear to be any sort of publicly available forensic evidence backing the fight for the gun yet, so all we really have, I think, is he-says/he-says type of hearsay, unlike the x-rays and partial autopsy results. So, I think that we can (and I have) hypothesize based on an assumption that is true, but I would be wary of going further.

Assuming (and I DO NOT, btw) that the scenario where Mr. Brown decides to rush the LEO is accurate (i.e., borne out by evidence) the matter changes from the legalities Andrew capably sets out, and becomes one of “simple” (ha!) self-defense.

IF we hypothesize that our LEO opened up on Mr. Brown as he was fleeing, we have to ask if he was justified. We also have to ask if he hit Mr. Brown. Would any juror want to put an officer away if he fired after being struck by Mr. Brown, but missed?

Lots of due process yet to be processed…

    MouseTheLuckyDog in reply to Ragspierre. | August 24, 2014 at 10:28 pm

    I think most of the evidence at this points indicates that Brown was rushing toward the cop. But let us believe for a moment that Wilson did shoot Brown in the back. Was it reasonable?

    In that case: I would to say that an unarmed person attacking another person who is no immediate threat, and who is carrying a gun is one of three things:
    1) Insane.
    2) Under the influence of some sort of drug which makes him highly aggressive.
    3) Is experiencing some sort of influences which are causing him to behave in a highly unpredictable and aggressive manner.

    Such a person given Browns general physique: Big, OK fat — but football interior lineman fat — not couch potato fat; poses a significant and immediate threat to the general public.

    IOW if Wilson doesx not catch him, five minutes later he might start beating up on someone else.

    In that case I would say that Wilson would have been justified in shooting Brown in the back. Though that may be the one case where not shooting center mass makes some sense, as there is a large target where a shoot is less lethal then center mass.

      Bruce Hayden in reply to MouseTheLuckyDog. | August 25, 2014 at 1:49 pm

      A couple of things. Big Mike was big. Really big. As MTLD said, big enough (if in a lot better shape) to play interior line at a lot of colleges. That was about the size that a guy I know got his senior year to get more playing time as an offensive lineman. Of course, he was lifting like crazy, and eating a gazillion calories, and then lost maybe 50 lbs of it by graduation. I asked why a guy as charming as he didn’t have a girlfriend until second semester senior year, and the answer was his size. Until he lost that 50 lbs or so, he just scared the coeds too much to get dates.

      But I think that the alternatives presented are a bit simplistic. It appears that Big Mike had committed two violent Class B felonies in the previous 15-20 minutes, the latter involving assaulting a police officer. He was probably going away to prison for a bit, and may just have figured that his only hope was to flee, but when told to halt or freeze by a police officer with his gun aimed in his direction may have just figured that his only chance at avoiding prison was to rush the officer, possibly figuring his size would protect him (as it appeared to be doing with the body/arm shots). And, yes, the drugs in his system may have affected his reasoning there).

Midwest Rhino | August 24, 2014 at 8:26 pm

ianal, but it seems “imminent deadly threat” would be established, if it can be proven Brown wrestled over the officer’s gun, after slamming the officer back into his SUV.

But if they have the officer’s brass, and as some indicate, it is close to where Brown ended up, they only need the witnesses that saw Brown turn and come back at the officer. Maybe there is some blood splatter on pavement further back from where Brown ended up. That seems likely. And surely some Wilson DNA on Brown’s fists. Wouldn’t that show up?

As with the Trayvon case, it seems the only way (assuming the “Brown turned and came back at the officer” story) this does not return a “no bill” is if Holder and public opinion overrule facts.

All Brown’s folks have is one bullet that grazed him that could possibly have come from behind. But how could the officer miss/wound five times with Brown right in front of him with his hands up? Brown had to turn and come back at the officer.

Anyway … it will be nice to see the real evidence. I predict a no bill. News cycle is over for now, one more round later.

There is a lot of bigotry in our culture, but it isn’t where a lot of people think.

Char Char Binks | August 24, 2014 at 8:39 pm

The law doesn’t matter in the slightest to the wolf pack howling for Wilson’s blood.

I think this all comes down to whether or not Brown assaulted Wilson in his car and if he attempted to go for the officer’s weapon. I carry a weapon for a state government agency and we are trained that if someone goes for our weapon that is deadly force and we are justified in shooting them immediately. We are told that if they throw up their hands and run away unarmed the threat eases. However, if Brown did fracture Wilson’s eye socket and then turned around and charged him again I believe he was justified in using deadly force. At this point we don’t know all the facts. Either he was justified or he was not. Based on the facts we do know, I believe he was. Brown had just committed a felony, strong arm robbery. He was under the influence of marijuana. His companion already had an arrest record for theft and lying to police and has an outstanding arrest warrant on him. They were walking down the middle of a street even though there was a sidewalk. Brown was about 6’0 and weighed 300 pounds. Gentle giants don’t shove little store clerks around.

    tom swift in reply to nemesis43. | August 24, 2014 at 11:36 pm

    It’s going to be a hell of a stretch to argue successfully that Brown was a deadly threat to anybody just because he shoved somebody else around – without injuring him.

      “It’s going to be a hell of a stretch -”

      You would have to be a very dumb lawyer to argue that.

      Medical evidence that Wilson suffered trauma consistent with almost being knocked out by Brown and Johnson.

      Policy Academy testimony that they teach officers to use deadly force in self-defense to maintain control of their weapon, as most officers rendered unconscious are executed with their own firearm.

      Wilson testifying that, after almost being knocked out by Brown, after Brown attempted to grab his firearm, Brown charged him with intent to fight a second time.

      Any expert will tell you that Wilson had a legitimate fear of grevous bodily injury or death at Brown’s hands had he managed to close the distance and grapple.

      So thats now two gross errors you’ve made about this case. Its like you haven’t even followed the case.

      This is a legal blog for serious analysis of the law and how it applies to cases like this. Perhaps you would be more comfortable back at Dem Underground shouting “Koch Brothers!” and “Bush Lied”.

        platypus in reply to Fen. | August 25, 2014 at 1:20 am

        Perhaps you didn’t consider that his moniker is reversed – that he’s not very swift; in his thinking, of course.

        Just saying.

      Gremlin1974 in reply to tom swift. | August 25, 2014 at 2:26 am

      I presume that you are talking about the robbery video and of course you would be correct that would not be a reason to consider him a deadly threat. However, it could help lead to some understanding of Browns response to Wilson interacting with them. I mean it would explain why he attacked, he was trying to avoid arrest.

        MouseTheLuckyDog in reply to Gremlin1974. | August 25, 2014 at 2:55 am

        The picture I have is that Wilson was telling this guy to get out of the street, when that sort of “windy noise” came over the radio and then an announcement of “all units..” at which point Brown panicked and started punching Wilson. Of course, I could be totally wrong.

      creeper in reply to tom swift. | August 25, 2014 at 6:22 am

      You don’t consider a broken eye socket to be a serious injury?

      I’m disappointed in you, Tom. The quality of your trolling is falling off precipitously.

      Phillep Harding in reply to tom swift. | August 25, 2014 at 12:40 pm

      Oh? Is someone making that argument?

This post that I made earlier is also pertinent here, since the Feds seem to get more lenient treatment, as in no prosecution.

Let me throw out a few “what-ifs.”

1. What if the convenience store “robbery” was really just a misdemeanor shoplifting case? The reason a “strong-arm” robbery is classified as a felony is because of the dander to the victim when the property is forceably taken from his possession. Sure, MB pushed a clerk on the way out, but he had the cigs already in his possession.

2. What if serial liar Dorian Johnson actually told the truth about one issue. When the gun discharged in the cop’s SUV, Dorian stated on several occasions that MB had been shot by the first round.

3. What if the initial shot was the one that entered his arm? Or, entered his arm and lodged in his chest?

4. What if MB, as claimed by Dorian, did not strike officer Wilson?

Enough of the “what-ifs.” If Office Wilson was assaulted by the “Gentle Giant”, it’s game over for the Crump Team and Race Agitators. I don’t think there are many jurors, white or black, that would excuse the assault on the officer, regardless of the degree of injury.

From the moment the autopsy diagram was released, the entire account had to change. It was the equivalent of Monica Lewinski’s famed blue dress: The Game Changer. Notice how the media suddenly shifted their focus from Wilson to the supposed institutional racism of the Ferguson Police Department.

Mr Branca, I think you’ve misread the material you presented, in a small but important way. Nothing in Garner or in the jury instruction you cited say that the threat posed by the escaping felon has to be imminent. This is unlike the rule for killing in self-defense. It is not lawful to kill someone today because you have good reason to believe that if you don’t do so he will kill you next week or next year. But Garner only restricts the fleeing felon rule by saying that the felon must pose a threat, not an imminent threat. So if Wilson had good reason to believe that Brown, if he were to escape, was likely to kill or seriously injure someone at any time in the future, he would have had the right to use deadly force to prevent his escape.

Not that this is what actually happened, of course, but we’re discussing the hypothetical in which it had.

(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.

Given the injuries sustained by the officer, this sounds like the appropriate standard at issue.

So wait, if actually *reading* the law leads directly to the wrong legal conclusion, isn’t that a Due Process violation?

If the plain language of the law leads to action that the courts generally say is unlawful, aren’t the courts themselves acting outside the law?

    Lina Inverse in reply to JWB. | August 25, 2014 at 9:57 am

    Yes, our higher court judges, conveniently picked through the Missouri Plan (so no matter how conservative the governor, the possibilities are unpalatable), have nullified large sections of our self-defense law, and I now learn one of their favorite methods, jury instructions, aren’t even easily accessible.

    We non-lawyers simply cannot depend on the laws as passed by our (currently very conservative) legislature, we’ve got to follow guides like our host’s and Vilos’ Self Defense Laws of All 50 States, and in general apply the most “conservative” principles of self-defense. E.g. duty to retreat outside your home (our courts are impossibly ambiguous on this, per the latter book).

It seems unlikely that the officer knew details about the robbery sufficient to determine that it was a felony of some degree. He would therefore have been unjustified in using deadly force to attempt to arrest Brown and Johnson for that. The situation changed when (if it’s true) Brown assaulted Wilson in his police car, inflicting bodily harm and attempting to take his gun. Brown has now clearly committed a violent felony. However, since he didn’t get the gun, the officer would not have been justified in shooting him in the back as he ran away. The situation changed again when (if it’s true) Brown turned and charged the officer. He is now a violent felon threatening bodily harm to the officer. That shooting would be justified, if I understand the law correctly.

It all depends on the forensic, medical, and witness evidence. If, as is being reported, the above stands up, then the officer shouldn’t be indicted, or if charged, should be acquitted.

    Good summary, Kate. I will have to disagree with one statement you made: ” However, since he didn’t get the gun, the officer would not have been justified in shooting him in the back as he ran away.”

    Missouri Law appears to allow an officer to use deadly force to apprehend a felon, under certain circumstances. See: 306.14 JUSTIFICATION: USE OF FORCE BY LAW ENFORCEMENT OFFICER

    The law may justify deadly force if Brown had violently assaulted the officer, then tried to escape. (Of course, this depends on proof of the assault.)

      tarheelkate in reply to Redneck Law. | August 25, 2014 at 12:03 pm

      Thanks. I thought Andrew’s post said the circumstances would NOT have justified the officer’s shooting Brown from behind as he ran away. Maybe I need to read it again?

        Marco100 in reply to tarheelkate. | August 25, 2014 at 6:01 pm

        If a 300 pound gang banger punches the police officer out and then tries to come back for more, it would be idiocy for the officer not to empty the clip until the threat is neutralized. The officer followed his training. 40 feet can be covered in a second or two.

        Milhouse in reply to tarheelkate. | August 25, 2014 at 7:11 pm

        Not if Wilson had probable cause to believe that if Brown were to escape he would pose a threat of serious harm to anyone, at any time before he could be captured. In such a case he would have been justified in shooting him, even in the back, to prevent that threat.

      tarheelkate in reply to Redneck Law. | August 25, 2014 at 12:09 pm

      From Andrew Branca’s post, above: “And there we have it. Despite the plain-language reading of §563.046 that a law enforcement can use deadly force to make an arrest when he reasonably believes the person making the arrest has committed a felony, in the aftermath of Tennessee v. Garner and subsequent changes to Missouri case law and jury instructions, the use of deadly force to make an arrest of a non-dangerous fleeing felon is not permitted under Missouri law.”

    Milhouse in reply to tarheelkate. | August 25, 2014 at 7:08 pm

    He didn’t need to know the details of the robbery. Any robbery is a felony, and a robber can be assumed to be dangerous. On the contrary, knowing the details makes it less likely that Brown was dangerous, but Wilson, not knowing the details, was entitled to assume what anyone would assume about a convenience store robbery.

      Bruce Hayden in reply to Milhouse. | August 26, 2014 at 1:00 am

      Not just felonies, but pretty major felonies. Armed robbery is a Class A felonious in MO, an a strong arm robbery, like the one apparently committed by Big Mike Brown, is a Class B felony. What makes it robbery is the use or threat of force to effect a theft (in a dwelling – which includes businesses). So, it may have been problematic before he shoved the clerk, but shoving him to help get away appears to have turned the store heist into a (strong arm) robbery (see RSMO 569.030).

Does anyone in Ferguson MO, realize that if the gentle giant Michael Brown was willing participate in a violent attack on a police officer, Brown might very well have soon engaged in great violence against one of their neighbors?

    Midwest Rhino in reply to objection. | August 25, 2014 at 10:16 am

    Only seven arrested were from Ferguson (iirc). So it seems evident that was Sharpton/Holder/Obama’s racist “cops act stupidly” army that has been called to arms. The “festivities” might have drawn out some locals to observe the national spotlight, but trouble was bussed in intentionally.

    The black grandmothers that used to insist families attend church, don’t have the megaphones now. A majority of blacks in those neighborhoods (surely) recognize the troublemakers, but wrongly trust Democrats to solve their problems.

    As Obama makes things worse for the nation, and black communities may be hardest hit, he needs to stir up race riots to keep his stranglehold on the black vote.

Mr. Branca, hypothetically, if a Missouri officer reasonably believed he was justified in using deadly force to prevent the escape of someone who had just committed a felony because of the plain wording of statute 563.046.3(2)(a), wouldn’t he have a defense in a criminal case that he reasonably relied on the statute? Isn’t it the fault of the legislature for not updating the statute (which went into effect in 1979, and Tennessee v. Garner was decided in 1985), rather than the officer who relied on it?

    It would be nice if that were a defense and a criminal charge, but no.

    Wilson’s good-faith reliance on MRS §563.046 could potentially play a role in an assertion by him of qualified immunity, but that immunity would apply to a civil suit brought against him, not criminal charges.

    Ignorance of the law is no excuse, and all that.

    In the real world the risks of being misled in this way is really more of an issue for civilians than for police officers, because police officers get explicit training on the use-of-force.

    –Andrew, @LawSelfDefense

Henry Hawkins | August 25, 2014 at 11:23 am

All this discussion is leading nowhere. Too many variables. They need to do an investigation and establish the facts.

this is irrelevant, the Officer did not know about the robbery. We still don’t know why the kid was in the Officers car to start with or why he was fleeing the officer. The officer was rapid firing his weapon, he could have easily hit himself in the eye with it if he wasn’t holding it correctly. We don’t even know if there was a robbery. As far as I can see there was a dispute with the counter guy. In the video the clerk attacked the kid and was shoved off. That’s all you you know. I can easily see a scenario where the clerk sold him the cigars illegally and then tried to take them back. I am not sure otherwise why the clerk would have done so, clerks are trained t let thieves go and call the police.

All of this could have been avoided if the officer had worn his camera. Now we will never know what happened.


    –Andrew, @LawSelfDefense

    Gremlin1974 in reply to imfine. | August 25, 2014 at 4:01 pm

    Purely out of morbid fascination I am gonna ask if you actually have ready any of the coverage for this case and if so how you came to your rather peculiar conclusions?

    Marco100 in reply to imfine. | August 25, 2014 at 6:03 pm

    Hey Mr. Crump why are using an alias LOL?

    Milhouse in reply to imfine. | August 25, 2014 at 7:23 pm

    1. He certainly did know about the robbery.
    2. We know exactly why he was reaching into the car — to attack the officer and try to take his gun.
    3. The extraordinary accuracy of the officer’s shooting proves that he knew how to hold it.
    4. We do know there was a robbery.
    5. The officer had no camera to wear.

    Fen in reply to imfine. | August 25, 2014 at 7:45 pm

    Has to be parody. No one could be that stupid and still get their computer started up…

    Char Char Binks in reply to imfine. | September 3, 2014 at 2:41 pm

    Brown was in the SUV because Wilson was trying to arrest him by grabbing him around the neck and pulling all 292 pounds of Brown through the window into the front seat. Then he was going to drive to the police station with Brown on his lap, handcuff him, and take him to jail — SOP.