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When can you legally use a gun against an unarmed person?

When can you legally use a gun against an unarmed person?

Legally, it doesn’t matter that both Mike Brown and Trayvon Martin were “unarmed” when shot to death.

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

It should also be noted that when the legal system uses the phrase “deadly force,” it is not merely referring to force than can literally cause death.  Of course, force likely to cause death qualifies, naturally.  But the law’s view of “deadly force” is broader than the phrase might suggest.  In fact, “deadly force” includes BOTH force likely to cause death, as well as force likely to cause “grave bodily harm.”

We all understand “death,” but what could possibly be meant by “grave bodily harm.”? Typically, grave bodily harm means something along the following lines:  the temporary loss of an important bodily function/organ, the permanent loss of even a minor bodily function/organ, maiming, rape, or debilitation to the point of defenselessness.

Note, also, that under the law of self-defense, NONE of these must ACTUALLY be experienced by the victim before the victim can lawfully respond.  Rather, there must be an imminent threat of one of these occurring, as perceived by a reasonable and prudent person, in the same or similar circumstances, possessing the same or similar capabilities as the defender, having the same or similar knowledge as the defender, and experiencing the same or similar mental stress as would a defender being threatened with such harm.

Proportionality of Force

One of the five elements of the law of self-defense is proportionality (the others being innocence, imminence, avoidance, and reasonableness). Proportionality governs the degree of force that a defender can lawfully use in self-defense.  In brief, the defender’s force must be proportional to the force with which he is threatened.

Again, limiting ourselves to instances of the use of deadly force in self-defense, such use of deadly force is permissible only where the defender was facing an imminent threat of deadly force.  Or, more accurately, the use of deadly force is permissible only where the defender was facing an imminent threat of death or grave bodily harm.

A gun almost always represent a threat (or, if fired, a use) of deadly force.  So in order for a defender to be lawfully permitted to “go to the gun,” they must be facing a reasonably perceived imminent threat of death or grave bodily harm against which they are defending themselves.

Does that mean that they can only go to the gun if they are faced with a gun?  Of course not.  There are myriad ways that an attacker can represent a threat of death or grave bodily harm, only one small slice of which involve the attacker using a gun.  Naturally, an attacker bringing to bear a “classical” deadly weapon such as a gun or knife would represent a threat of death or grave bodily harm.  But such a classical deadly weapon is not required.

Disparity of Force

What the law actually looks at is not whether the attacker possessed a classical weapon, but whether the attacker presented the defender with a disparity of force, such that the defender faced a reasonably perceived imminent threat of death or grave bodily harm unless the defender himself resorted to deadly force.  Again, for a defender facing a gun or knife, the disparity of force is obvious.  This disparity of force also arises, however, in many other circumstances.

Disparity of Numbers

One very common situation that gives rise to a disparity of force is where the defender is facing a disparity of numbers.  A defender faced with a single attacker of similar size and fighting ability might be legally obliged to defend himself only with non-deadly force in the absence of the attacker possessing a classical weapon.  Where the attackers are numerous, however, that disparity of numbers creates an obvious disparity of force–no man can be expected to defend himself against the simultaneous attack of numerous foes without resort to a weapon to balance the scales.

Disparity of Fighting Ability

Another very common situation that gives rise to a disparity of force is where the attacker possesses an exceptional fighting skill, at least relative to the defender.  A defender of no particular fighting skill (most of us) cannot be expected to defend themselves against a highly trained martial artists or even a street fighter, without resort to a weapon to balance the scales.

Disparity of Size/Strength

A third very common situation that gives rise to a disparity of force is where the attacker is substantially larger and more powerful than the attacker.  A 120 pound woman cannot be expected to defend herself against a 200 pound rapist without resort to a weapon to balance the scales.  Similarly, a 200 pound man cannot be expected to defend himself against a 300 pound man without similar recourse to a weapon.  It is worth noting in this context that under Olympic wrestling rules a weight difference of as little as 18 pounds is considered so profoundly unfair that wrestlers are segregated into separate weight classes, and a 100 pound weight difference spans fully five Olympic wrestling weight classes.

Disparity of Physical Fitness

Finally, it is important to recognize that a disparity of force may not be present at the start of a fight, but can come into existence over the course of the fight itself.  Imagine two men of equal size and fighting ability, such that there was no disparity of force between them.  During the fight, one man’s arm is broken.

Obviously, a disparity of force now exists that wasn’t previously present, and under such circumstances the seriously injured man might well be legally entitled to resort to a deadly weapon even if he would not have been so entitled prior to the injury.

Zimmerman’s Shooting of “Unarmed” Martin

In the case of the Zimmerman/Martin conflict, at least two of these factors were in play.  First, there was evidence that Trayvon Martin was an active participant and keen student of street fighting, to the point of having shared with friends his preferred strategy of a vicious first strike followed by a sustained attack until his victim was utterly defeated.  Thus, there existed a disparity of fighting ability.

Second, where there was arguably little disparity of force at the start of Martin’s attack up on Zimmerman, after repeated blows to the face (Zimmerman would tell police that it felt like being hit by a brick), having his head smashed repeatedly on a sidewalk, and Martin attempting to muffle Zimmerman’s cries for help by using his hands to cover Zimmerman’s mouth and nose, the two men were clearly no longer on equal footing, if they ever had been.

In addition, every successive blow to Zimmerman’s head on the sidewalk could well be the one to render him unconscious or even to induce a fatal cerebral hemorrhage or skull fracture, thus representing an imminent threat of death or grave bodily harm.  Thus, there emerged a disparity of physical fitness.

George Zimmerman

It was this combination of disparity of force factors that legally justified George Zimmerman resorting to his pistol against an “unarmed” Martin.

It should also be noted that Zimmerman told police that he only drew his pistol after he felt Martin reaching for it.  An attacker seeking to seize a defender’s gun is really no different than an attacker reaching to pick his own gun off a table–indeed, it is worse, in the sense that in the former case the defender is being simultaneously disarmed.  A defender otherwise in reasonable fear of death from the attacker need not wait until the attacker has gripped the pistol before they can defend themselves–the deadly threat is imminent when the attacker reaches for the weapon.

Finally, it should be noted that being “armed” doesn’t require a weapon, and being without a weapon doesn’t make one “unarmed.” In this case, Trayvon Martin was “armed” with his fists, his body weight astride Zimmerman, the sidewalk against which he smashed Zimmerman’s head, and one might argue the planet Earth itself.

Wilson’s Shooting of “Unarmed” Brown

A similar analysis can be applied to the shooting by Officer Darren Wilson of the “unarmed” Mike Brown.

The pro-Wilson narrative–to which we give due deference, given the presumption of innocence attached to any criminal defendant–is that Brown, along with his cohort Dorian Johnson, first attacked Wilson in his patrol car. There Wilson appears to have suffered a fracture of his orbital bone, the bone that surrounds and protects the eye. During this fight Brown also sought to seize Wilson’s service pistol. In the course of this fight the pistol discharged inside the vehicle.

Brown and Johnson distanced themselves from the vehicle by 30 feet or so.  Wilson emerged form the car, and challenged the men to stop.  Brown, either independently or in response to Wilson’s challenged, verbally challenged Wilson in return, then (as attested to by more than a dozen witnesses) lowered his head and charged back at Wilson.

It was at this point that Wilson began firing at Brown, striking him (it appears) four times in the arm, once in the eye, and once in the crown of the head.  The eye injury was certainly mortal, and likely dropped Brown in his tracks. (Note: There was no evidence of gun shot wounds to Brown’s back, contrary to claims by Dorian Johnson that Wilson had shot Brown in the back.)

Mike Brown autopsy sketch

Here we have a considerable number of the described disparity of force elements.

There was disparity of numbers, in that Wilson was initially (at least) faced by an attack by both Brown and Johnson.

There was an enormous disparity of size/strength, but during the first fight inside the patrol car when Wilson was fighting both men, but then also when Wilson was facing the imminent charging attack of the 292 pound Brown (Wilson’s own weight appears to be in the range of 200 pounds).

Mike Brown

There was also a disparity of physical fitness by the time Wilson deployed his sidearm against Brown. Having suffered a fracture of his orbital lobe it is likely that Wilson had lost considerable visual capability, was in excruciating pain, and was to at least some degree cognitively stunned by the blow. An attacker who has already dispensed such grave bodily harm and who is charging again into the fight against an officer displaying his sidearm can only reasonably be understood to intend to imminently do the same again, or much worse.  Having already struggled once for his service pistol, Wilson would know–as all police officers in such circumstances would know–that he was in a life-or-death fight.

And, as was the case in the Zimmerman trial, Brown attempting to seize Wilson’s gun is no different than if Brown had reached for a gun in his own belt–indeed, it is worse, as it would simultaneously arm Brown and disarm Wilson.

It is this combination of disparity of force factors that legally justified Darren Wilson in resorting to his pistol against an “unarmed” Brown.

–-Andrew, @LawSelfDefense

[Featured Image Source: Mail Online]


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.

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Comments

Bitterlyclinging | August 31, 2014 at 6:47 pm

The law the racial grievance mongers wish to impose is the one where the white victim must always yield, up to and including his life if necessary, to the black attacker if the whites wish is to maintain racial harmony.
Missouri Governor Jay Nixon heartily concurs. After all most of his political support comes out of the tribe to which Mr Brown belonged.

    Precisely, and, unfortunately, George Zimmerman found himself utterly unaware of this new behavioral standard which the Left seeks to impose on American society. By failing to adhere to this new Leftist code of conduct, and, despite the fact that he was a “white Hispanic” and, an Obama supporter, Zimmerman had to be prosecuted and vilified for having the temerity to actually resist the reparation beating imposed by Martin’s righteous black fists and, for daring to act in self-preservation.

MouseTheLuckyDog | August 31, 2014 at 6:54 pm

So if I am walking down the street and encounter a person with a branding iron, who grabs me and says he is going to brand me. I am not justified in pulling out my gun and shooting him?

    Gremlin1974 in reply to MouseTheLuckyDog. | August 31, 2014 at 7:50 pm

    Actually, he is threatening you with “grave bodily harm” by threatening to brand you. I also could make a good argument that a long metal pole with a weight at the end (i.e. standard cattle branding iron) could reasonable be considered to be a deadly weapon.

    But I would say a burn that leaves a determinant scar falls within the category of grave bodily harm rather nicely, because it is permanent physical disfigurement. It would be no different if someone with a razor blade said; “I’m not gonna kill you I am just gonna ugly you up.”

    Maybe. This scenario somewhat depends on the physical ability of the attacker to pull it off and the other circumstances involved. Obvious disparity between the attacker and defender might tip this one way or the other.

    Is being branded, by itself, threat of “grave bodily harm (GBH)?” Probably not, I’m sorry to say, so long as it would result in simple scarring, without loss of use of a limb or organ. That is the kind of injury where I can see a monetized settlement for injury (ignore that the Attacker may be judgment proof for the moment, as any criminal case brought against the defender most certainly would). Simple money-loss or value-loss is never sufficient to rise to a lethal response (except apparently in El Paso, Texas, where we have old, but good case-law that it’s actually OK for an Attorney to shoot a client who refused to pay).

    Now, if they’re actively trying to brand you in the face? That has a better chance of being GBH because of the sensitive tissues and organs there.

    As Gremlin noted above, the Defender might be able to make the case that the brand was an “improvised club” which could cause GBH -other- than the simple branding act if resisted by the Defender.

      MouseTheLuckyDog in reply to Chuck Skinner. | September 1, 2014 at 2:06 am

      Seems that I have more questions now.

      First. With regards to the branding. Assume the person tells you he is only going to brand you, in such a way that he is believable. What is the significance of the increased risk of infection, especially if the wound is irritating and a person picks at it while healing? What about the pain of branding?

      Imagine that the “cruciatus curse” of Harry Potter fame were to actually exist. In case you don’t know, this is a spell which causes the victim to suffer immense pain but no physical damage. Pain intense enough for it to be used as a torture device. Suppose that a person were about to use this curse on you. Would you be justified in shooting him?

      What about a person about to inject you with heroin, or other narcotic? Would you be justified in shooting them?

      What if in a neighborhood there is a serial rapist. This rapist tells his victim that he will have sex with them and let them go. Further the examinations of the victims only reveals injuries due to the rape and restraint during the rape. Assume the rapist is large and there is a very good drawing of him available.

      So now a woman encounters this man and has two options: submit to rape, or shoot him. Is she justified in shooting him.

      *Sigh*
      Thinking of way to modify the scenarios, I have come up with this one: replace the rapist with a man who drags women off. Makes them strip then takes pictures of him spanking them. Not so hard that he bruises or breaks skin. A woman encounters this serial spanker. Is she justified in shooting him?

        Cruciatus would not be GBH, and deadly force to defend against it would not be justified (except in Texas).

        Rape is GBH by definition, even if the rapist is careful to do no other damage, so deadly force would be justified in every state (and as far as I know, everywhere in the world).

          ConradCA in reply to Milhouse. | September 1, 2014 at 9:04 pm

          When a person is suffering extreme pain they are unable to defend themself against other forms of injury. So in that respect is safe for the victim to assume that they will suffer great bodily harm from that person. It’s no different than defending yourself against someone trying to use chloroform on you.

          Milhouse in reply to Milhouse. | September 1, 2014 at 10:08 pm

          No, it isn’t. You have no grounds for a reasonable belief that the wizard using cruciatus intends to harm you in any other way. That would be speculation, and the jury would be instructed not to take it into account.

      Deliberate, permanent scarring would almost certainly be deemed grave bodily harm, as it permanently damages an organ/function of the body.

      Also, a victim could reasonably conclude that an attacker willing to cause such damage and pain in such a heinous manner has no particular upper limit on the harm he is willing to cause the victim.

      –Andrew, @LawSelfDefense

    If the branding iron is hot enough to burn you, then branding you would cause permanent disfigurement. This is usually included in the term “great (or grave) bodily harm”. This in turn justifies the used of deadly force in self defense. Also, whether the branding iron is hot or not, if it is a traditional cattle branding iron, it would be a steel rod of a length of 2.5′ – 3′, with a brand on the end. This would place it into the realm of a “deadly weapon”, much the same as a steel pipe, and would be recognized as such in most jurisdictions.

    Char Char Binks in reply to MouseTheLuckyDog. | September 1, 2014 at 3:14 pm

    Branded, scorned as the one who ran
    What do you do when you’re branded, and you know you’re a man?

    Wherever you go, for the rest of your life
    You must prove, you’re a man!

    I’ll take my chances with a jury, rather than submit to being branded, thank you very much…

If only legal insurrection showed the same support for Detective Joseph Walker. Legal insurrection felt Detective Walker should’ve avoided the threat larger racist intoxicated criminal Harvey presented the night he was shot. Legal insurrection felt that Detective Joseph Walker shouldn’t have shot larger threatening intoxicated racist criminal Joseph Harvey.

    Phillep Harding in reply to m1. | August 31, 2014 at 7:10 pm

    “Ancient history”.

    Time to “Move On”.

      Interesting, how you don’t call a case that happened on February 2012 “ancient history”

      However,a case that happened 14 months after you call “ancient history” .

      More proof of the obvious hypocrisy on who is considered a threat here. Who is entitled to use deadly force here.

        MarkS in reply to m1. | August 31, 2014 at 8:03 pm

        So you are of the opinion that deadly force is justified against one who drives rudely and calls you a mean name? If so, we’re either going to have a very polite society or over population solved.

          Gremlin1974 in reply to MarkS. | August 31, 2014 at 8:07 pm

          Sorry for the down vote, just hit the wrong button, it wasn’t intended.

          m1 has some obvious issues he needs to work through, please don’t be to hard on him.

          Are you saying Joseph Harvey didn’t threaten detective Walker on the night Harvey was shot?

        Gremlin1974 in reply to m1. | August 31, 2014 at 8:05 pm

        At this point I have to take a moment as a concerned human being and sincerely suggest that you seek professional help. I will keep you in my prayers, may God Bless.

        Phillep Harding in reply to m1. | August 31, 2014 at 8:43 pm

        You ignore how quickly the Democrats came out with exactly those responses. A matter of weeks, not years.

    Gremlin1974 in reply to m1. | August 31, 2014 at 7:45 pm

    Oh, give it up you race baiting lunatic.

    We probably would have shown the same support for Detective Walker had he actually been on duty, in his own jurisdiction, wounded, and previously attacked, however he wasn’t. Not that I think facts matter to you.

    I would also point out that by stating the “Legal Insurrection” felt a certain way or did a certain thing you are accusing not those of us that comment, but Professor Jacobson and the other authors of being racist, because they are Legal Insurrection, the professor more so than the others. I will give you points for courage but none for smarts.

    Either way I sincerely hope that your time here is as limited as I think it should be.

    Obvious Troll is obvious. Please do not feed the obvious Trolls. It makes them fat, and encourages them not to leave back to their spoon-fed “Daily Kos” drivel (which is becoming more and more unhinged every time I can distastefully force myself to actually look at it to discover the utter idiotic lunacy which masquerades as “intellectual thought”).

    Shane in reply to m1. | August 31, 2014 at 8:47 pm

    Andrew Branca not Legal Insurrection walked all of us through the Walker case. His interest in the case and his use of it for an example was of the 5th part of self defense … Avoidance. His commentary on that case was centered around Marylands lack of stand your ground law and how that plays out in the legal system. You can review it here: Trial Begins of Joseph Walker, NJ Cop Involved in “Road Rage” Killing

    I can’t help but note that you are in all ways enamored by race as most liberals are. You must foster, it perpetuate it, and most of all practice it to satisfy some need within you. Please take your race issues some place else, because they have no value or credence here.

    Paul in reply to m1. | September 1, 2014 at 12:31 am

    what is that vinegar smell, and what is this douche nozzle doing in a place like this?

    Mac45 in reply to m1. | September 1, 2014 at 12:01 pm

    You have to understand the blog hear. In the Walker case, the emphasis was originally on Maryland’s duty to retreat language and the fact that Walker did not continue to retreat after Harvey pulled over and approached him on foot. This tainted the mindset of most of the posters here, against the legality of Walker’s actions. However, as I pointed out, the real legal crux on the case was what constituted reason attempts to retreat from a threat. Exactly how far must a person go to attempt to avoid an confrontation forced upon them by a determined attacker? Must they retreat to their domicile, the nearest police facility, out of the state, out of the country? The jury correctly decided that Walker had made a good faith effort to escape Harvey and that when Harvey, after being warned off by the display of a deadly weapon by Walker, continued to approach him in a very threatening manner, that Walker was justified both in assuming that Harvey was intent upon seriously harming or killing him and in the use of deadly force to defend against such a potentiality.

    Char Char Binks in reply to m1. | September 1, 2014 at 3:16 pm

    Walker was found not guilty, rightly so, I think, so STFUA!

    Milhouse in reply to m1. | September 1, 2014 at 6:12 pm

    Maryland is a duty to retreat state, and on the facts as they were known before the trial it appeared that he had a safe means of retreat. If it had happened in one of the 37 stand-your-ground states, opinion here would have been different. You keep ignoring that.

    bildung in reply to m1. | September 1, 2014 at 6:27 pm

    I defended Walker far more than you did and took plenty of abuse for it.

    I’ll never side with anti-social punks who disturb the peace and threaten people. That goes to include even Jordan Davis. I predicted Dunn would not be convicted of murder because, bottom line, Davis started it. And if Corey cant get him in round two, Dunn should receive a major commutation, since he hasn’t been convicted of the underlying crime.

    But back to Walker vs. Brown: perhaps you are just as big a hypocrite as those here you condemn for that offense.

    I’ve asked you before and I’d like an answer: Will you be consistent and support Officer Wilson or are you just for the black guy no matter what?

    Lets have it.

Phillep Harding | August 31, 2014 at 7:09 pm

How does someone who is being attacked by someone near his own size know that he and his attacker are near in fighting ability? Once it’s on, well, it’s sort of late to discover what’s what.

And, even if there is no disparity in fighting ability, what about concealed weapons? Either knives or guns, stolen from one to use on the other?

I never have seen any sense in “fair fights”, the way it is classically meant. Why should I put up with someone pounding on me just to meet stupid “fair fight” standards? I don’t want to fight, never have. Better to stop the fight as fast and conveniently as possible, with as little damage to me as possible. Who cares how much some ill mannered jerk gets hurt? He started it.

Then there are weapons. As any prison guard can tell you, darned little cannot be turned into a weapon or used as a weapon part, or used to make a weapon.

    Gremlin1974 in reply to Phillep Harding. | August 31, 2014 at 8:01 pm

    You remind me of my first Martial Arts instructor. He said the definition of a fair fight was one that you just lost.

    You do bring up an interesting point. Most folks who are martial artist don’t where a Kung-Fu outfit to McDonald’s. The way I see this a being applicable is basically if someone who starts a fight likes to boast about being a “Green Beret, Ninja, and/or street fighter.

    The main way it would apply I would think is if it was someone that was known to you. Perhaps you know that John was the 1992 Army Karate Champion because John lives in the same apartment complex as you, maybe you frequent the same bar and you know that that guy Rick, has beat up several people, or maybe you know that the guy at work is a vet and you have seen the Green Beret tattoo on his arm. Obviously it would apply if you just watched someone beat down a friend and now they decided to take the rest out on you.

    I would think that the fighting ability argument is going to be something that is going to have to be explained by you from previous knowledge.

      Phillep Harding in reply to Gremlin1974. | August 31, 2014 at 8:38 pm

      You are saying a disparity of skill defense requires previous knowledge of skill levels.

      I’m saying “Why put up with impolite jerks assaulting you?”

        Gremlin1974 in reply to Phillep Harding. | August 31, 2014 at 9:21 pm

        Ohh, that is so not what I am saying. You don’t have to put up with jerks beating on you, and you can defend yourself with non-deadly force all day long, however the discussion is about using deadly force against an unarmed person which is what I was talking about.

          Phillep Harding in reply to Gremlin1974. | September 1, 2014 at 2:29 pm

          I know you don’t mean it, but I visualized someone loaded down like Don Quixote with “appropriate level of response” weapons.

          Not, to my knowledge, required anywhere in the US. Hope I’m misinterpreting what I’ve read of England/Britain/whatever.

    Speculation does not a legal defense make.

    There are many ways a defender might know of his attacker’s exceptional fighting ability. You might actually KNOW the attacker. They might TELL you as much. They might CONDUCT themselves in a manner reasonably interpreted as evincing fighting ability (e.g., a “fighting stance”).

    But if you don’t have a REASONED belief as to their exceptional fighting ability, legally it doesn’t exist. And you don’t simply get to suppose it.

    I get letters all the time from people who write that, “well, that guy coulda/mighta/maybe had a weapon.” Most of them are doing long prison sentences.

    The good news is that there ARE concrete defensive tactics that anybody, 18 to 80, can employ that don’t leave you having to speculate about the imminent threat. AND, they enable you to articulate that reasonable fear in concrete terms to the jury–which is who you ultimately have to convince.

    –Andrew, @LawSelfDefense

      Phillep Harding in reply to Andrew Branca. | August 31, 2014 at 8:41 pm

      Yeah, I’ve got to get that book.

      If I can recall who wrote it.

      In an adrenaline filled instant of panic while being attacked just how much analytical reasoning does one expected to use?

      Danny Leong in reply to Andrew Branca. | September 1, 2014 at 5:05 pm

      I recall a case from years ago when police in California shot dead a drunk Chinese-American engineer with a boomstick. The killing was ruled justified because the officers believed the man knew martial arts. Their speculation has arisen from nothing but a ridiculous stereotype. Still it was sufficient–because they were the police. Ordinary citizen would never get away with that.

    Char Char Binks in reply to Phillep Harding. | September 1, 2014 at 4:04 pm

    If someone attacks you, or challenges you to a fight, that’s actually an assault in itself, and force could be used to defend against that, possibly deadly force, depending. It’s a rare person who will attack or threaten someone he thinks is stronger, or even as strong, as himself, and if he strikes first, the element of surprise, and the damage the first strike renders, could make for a considerable disparity in fighting ability, and could put a weaker man in STRONGER POSITION than a stronger opponent/victim. We can argue about the relative height/weight/strength/fight training of Zimmerman and Martin, but M’s ruthlessness and willingness to strike first definitely put Z at a disadvantage.

Thank you, Andrew, for an excellent article. I think you clearly made the point that an analysis of any shooting requires one to look at many factors and that one cannot simply insert some of the facts of one situation into the remaining facts of another situation and then draw the same conclusions.

Another point is that a cop must make a shoot/no shoot decision in less than a second under stress and with limited information. The attorneys and others then get to spend many hours “determining” whether the cop made the right decision. Some judge the cop immediately without any thought.

I thank God that some people want to become cops and step on to the front lines for us.

    Gremlin1974 in reply to TX-rifraph. | August 31, 2014 at 8:03 pm

    The same can be said for those civilians that use a gun in self defense, it is usually a split second decision.

    In this case the “judgement” was based on racism, since Wilson was white and Brown was black that automatically meant Wilson was wrong.

      Danny Leong in reply to Gremlin1974. | September 1, 2014 at 7:36 pm

      Civilians don’t face potentially life-threatening situations on a daily basis though. That’s an important distinction. As a society, we have to give police officers far more latitude in protecting themselves. Otherwise even low likelihood of sustaining serious injuries would balloon to near certainty over the course of a career. If my math is correct, the probability of surviving 500 99% survivable encounters is less than 1%.

        Another Ed in reply to Danny Leong. | September 2, 2014 at 1:39 am

        That probability of surviving 500 experiences of a 99% survivable event works out to be 0.66%. However, I would not volunteer to undergo one event of something that has a 1 out of 100 probability of not surviving, and neither should you or anyone else. Those are terrible odds.

        Neither Civilians nor Police face potentially life-threatening situations on a daily basis other than the fact that being alive means one day they will die. Everybody does eventually. Being a LEO is actually one of the safer occupations and the biggest danger they “statistically” face comes from their own driving. Taxi drivers, liquor store clerks and gas station attendants are much more likely to be killed “in the line of duty”.

Great article and anyone who has a carry permit is familiar with what an imminent threat is because we know in a court of law we will have to prove it if we ever shoot anyone.

However, there is an additional reason why the officer had a need to shoot this animal beyond his own self-defense. And that is for the protection of others. Here’s a guy who just robbed a store 10 minutes before, is violent, has attacked now a second person–and if the reaction of Ferguson’s looters and arsonists are any guide–would very likely have attacked someone else had he not been stopped.

The officer did everyone (except fellow law breakers) a favor by stopping Brown. Having said that, despite the fact that Brown was a felonious thug I would guess that the officer is regretful that he killed Brown, despite the fact that everyone in the hell hole called Ferguson is trying to kill him.

    Bruce Hayden in reply to AndyMartin. | September 1, 2014 at 1:29 am

    Keep this in mind. Big Mike Brown had committed a Class B felony minutes before, and committed a second one (unless it was a Class A felony – depending on how badly Wilson was injured) when he attacked Officer Wilson, causing that orbital bone fracture. That is, unless there was a fight for Wilson’s gun, and that second Class B felony is now attempted murder (interestingly, still usually a Class B felony). The latter felonies were, of course, done in the presence of Officer Wilson (since he was the victim of them), so he had more than sufficient grounds for arrest. But, the two perps seem to have ignored his lawful order (based on the commission of a felony in the officer’s presence) to stop. My memory is that the penalty for Class B felonies is 5-10, and since we have different instances, there is a chance at Brown having to have served them consecutively. And, there is a possibility that if the rumors are true that Brown had a juvenile record that included 2nd degree murder, he could have been sentenced as a repeat offender (10-20). Unlikely, but possible.

    As Andrew pointed out – even if Officer Wilson did not know about the robbery (which the theft became when Brown shoved the clerk), he absolutely knew about the felonious assaults on himself at the time that he shot Brown. He knew that Brown was violent and willing to cause death or great bodily injury on himself, and appears to have reacted accordingly.

    tirednretired in reply to AndyMartin. | September 1, 2014 at 12:35 pm

    The initial contact between the officer and the subjects (to the best of my knowledge per my research) had nothing to do with the store incident in that the two were walking in the street and he had ordered them onto the sidewalk as a public safety measure (well within his rights as an officer).

    The two refused his commands and continued, he then pulled his cruiser across their path to block their illegal behavior (note that this was for THEIR protection in that a vehicle could strike THEM and to the best of MY knowledge, he did NOT know about the robbery at the time). When he attempted to open the door to his vehicle to confront them was when they kicked it back at him and the assault occurred which led to everything else.

    I spent 20 years in USN with all of it in ONI as a field agent once I graduated the academy. I know that military and civilian are vastly different in many ways, but I can assure you of several things. 1) This officer will live and RE-live this incident for the rest of his life. 2) The decision of kill/no-kill is NEVER easy and it never gets better. 3) That same decision has to be made in a heartbeat or you are dead. 4) You are going to spend the next several months if not years being grilled about it with every wanna-be armchair agent that has never spent a single day in the field picking apart the incident report and thinking they would have done something differently.

Andrew, that was informative, thanks.
I sincerely hope that Officer Wilson has as good an attorney as you are. Poor thing, his gofundme site has been shut down because of pressure from the left.

    Gremlin1974 in reply to abrock. | September 1, 2014 at 4:10 am

    I am betting that was just from them filing something at like 4:30 on Friday so it left no choice but to shut it down because there was no time for a response.

    Milhouse in reply to abrock. | September 1, 2014 at 7:37 pm

    What are you talking about? Gofundme says they did not shut the two pages down, the fundraisers did. As their statements says

    Please note, NOBODY shut down the GoFundMe account because of any petitions floating around trying to close it and GoFundMe did not close them either. That decision was made by those closest to Officer Darren Wilson looking out for his best interest. We are doing our best daily to keep you updated (to the best of our ability) with all truths that come to us. That is our number one priority, to always be honest with our supporters.

I’m disabled and usually walk with crutch. I don’t care what the law says if I am carrying I will defend myself. in enough pain 24×7 as it is.
I’m more of a hardass than most people, someone attacks you or your property they deserve to be shot IMO.
wish the law felt that way..would be a lot less crime.

Let’s get to avoidance. Brown and Johnson had signaled their intention to retreat from the fight by attempting to flee. Wilson, although injured, chose not to avoid the confrontation but re-engaged.

In a duty to retreat state such as Maryland or Ohio this behavior could be problematic for an ordinary citizen.

A few words on why a law enforcement officer can re-engage in a deadly force encounter would be welcome.

    wilson used those magical bullets that passed the target and turned around to hit them right?
    pure bullsh*t

      sequester in reply to dmacleo. | August 31, 2014 at 9:04 pm

      I think you may be missing my point. I am not being cavil. Nor am I suggesting that this thug was shot in the back.

      There is a legal distinction between use of force by a law enforcement officer and use of force by an ordinary citizen. One of the principles of self-defense is avoidance. However law enforcement officers faced with a violent felon usually have duty not to avoid — but to go into the teeth of the tiger.

      Given the politics of Ferguson, Wilson’s act of re-engaging (let’s assume its factual for purposes of discussion) could be assumed to be a loss of innocence after the two combatants indicated they would retreat. It will only be his law enforcement officer status that protects him from politically motivated prosecutors here.

        Gremlin1974 in reply to sequester. | August 31, 2014 at 9:27 pm

        I would agree up to the point that Brown allegedly “charged” at the officer.

        redc1c4 in reply to sequester. | August 31, 2014 at 9:32 pm

        there isn’t any *credible* evidence that i am aware of that this poor little, gentle giant of a strong arm robber child was “disengaging” when he was shot.

        if you have knowledge otherwise, please share it with us.

          sequester in reply to redc1c4. | August 31, 2014 at 9:56 pm

          I fail to understand your implied state of high dudgeon. I never said it was a fact that Brown was disengaging. Here is what I said “let’s assume its factual for purposes of discussion”.

          But if you want a source let’s take Breitbart

          Josie” claimed Brown and Johnson started running away and, following protocol, Wilson pursued them while they were 35 feet ahead of him and yelled, “Freeze.” She said Brown then started taunting Wilson by saying,”Oh, what are you going to do about it? You’re not going to shoot me.”

          The purpose of the “assumption” was to discuss differences on how the principle of avoidance applies to civilians and law enforcements officers.

          I don’t understand why that is so hard to get.

          SmokeVanThorn in reply to redc1c4. | August 31, 2014 at 11:19 pm

          Here’s what else the Breitbart article reported:

          “Josie” claimed Brown and Johnson started running away and, following protocol, Wilson pursued them while they were 35 feet ahead of him and yelled, “Freeze.” She said Brown then started taunting Wilson by saying,”Oh, what are you going to do about it? You’re not going to shoot me.”

          “All of a sudden, he just started to bum rush him, he just started coming at him full speed,” the caller claimed, “And he just started shooting and he just started coming. He really thinks he was on something.”

          That is, Brown did not disengage.

          It’s hardly surprising that people push back when you construct a hypothetical based on a leftist, racebaiting meme.

          Gremlin1974 in reply to redc1c4. | August 31, 2014 at 11:40 pm

          @SmokeVanThorn

          You do bring up an interesting point. Does fleeing from the police, which is exactly what both men were doing, count as disengaging?

          Bruce Hayden in reply to redc1c4. | September 1, 2014 at 1:43 am

          The purpose of the “assumption” was to discuss differences on how the principle of avoidance applies to civilians and law enforcements officers.

          Ok, you posed a hypothetical (contrary to the evidence, but still a hypothetical). Officer Wilson was legally justified in ordering the two to stop. He had physically experienced the commission of a felonious assault on himself, and was therefore fully justified in arresting the two of them, then and there. Not sure of the standard in MO, but my memory is that the usual standard is that the arresting officer either saw a crime being committed, or had a reasonable suspicion that the person being arrested had committed such. This would fall into the first category, so no reasonable suspicion would be required.

          Which may be a long way of saying that the confrontation between the two officer and the two fleeing felons was legally justified.

          That said, despite the letter of the MO law allowing the officer to shoot fleeing felons evading arrest, the Supreme Court has apparently said differently. If they had continued to flee, they might have been temporarily safe – until the local SWAT team picked them up at gun point (you don’t go for a cop’s gun, and injure him, and then have the police forget about you).

          It would be an interesting hypothetical if Brown had just turned around and stood there, waiting to be handcuffed, and then been shot. That probably would be excessive force. But, his first step in Wilson’s direction would likely have been considered reengagement, fully justifying the use of deadly force (regardless of whether or not Wilson was a sworn LEO).

        sequester in reply to sequester. | September 1, 2014 at 9:07 am

        Thank you for answering the question. Had Brown and Johnson fled, the robbery and assault would be linked as part of an ongoing felony. Both of these two would be facing very serious charges and looking at decades in prison.

        From everything I can see so far, the shooting was entirely justified. However I am not sure that a civilian who had experienced the same battering would have been justified in all states in pursing the perpetrators and yelling freeze.

          Milhouse in reply to sequester. | September 1, 2014 at 8:15 pm

          I agree that Brown and Johnson disengaged when they fled, and that Wilson re-engaged when he decided to pursue them with a drawn gun, rather than getting out of there. Had he not been a policeman, that might have caused a problem for his subsequent claim of self-defense. But I think he would still have prevailed, because even a non-policeman would have had the right to attempt to arrest them. There was no duty of avoidance at that moment, because there was no danger. Just as Zimmerman had every right to follow Martin around the development, a non-policeman in Wilson’s place would have had the right to pursue Brown, even with a drawn gun, and attempt to arrest him for the felony he had just committed. Then, when Brown turned around and charged him, a new danger began, and he had a new right to defend himself.

    MouseTheLuckyDog in reply to sequester. | August 31, 2014 at 10:49 pm

    Wilson is a cop. He has a duty not to flee and in fact to effect an arrest. And society as a whole has invested in him a limited degree the right to use force.

    I don’t technically self-defense applies at all. THough probably a large overlap of case law.

    BrokeGopher in reply to sequester. | August 31, 2014 at 11:23 pm

    This isn’t some case of two guys with a beef. Wilson is a police officer and he has the duty to arrest the suspect. Police are allowed to use force (and yes, even pursue) to effect an arrest. It does not affect Wilson’s self-defense claim at all.

    Bruce Hayden in reply to sequester. | September 1, 2014 at 12:32 am

    Ok, the debate would have been a bit differently if Brown had actually retreated, and continued to retreat. Wilson had every right to tell them to stop – they had just committed a (Class B, maybe Class A) felony in his presence (their assault on him in the patrol car), and he had the legal right and obligation to tell them to stop. It would have been a further (lesser) crime if the two of them had continued to flee. As has been pointed out here, if Wilson had shot Brown as he ran away, it would be within the words of the MO statutes, but likely not actually legal, thanks to the U.S. Supreme Court. But that isn’t the subject of this discussion. And, there is little evidence to support the claim that Brown was fleeing at the time he was shot, and the forensic evidence (so far) supports the claim that he was reengaging (by rushing Wilson). Which gets us to Andrew’s argument.

      Milhouse in reply to Bruce Hayden. | September 1, 2014 at 8:30 pm

      I don’t agree that the fleeing felon rule would not have applied here. Brown had just committed a robbery, then sauntered down middle of the street as if he owned it, assaulted a policeman, and tried to grab his gun; it would be fair to assume that if allowed to escape he would end up hurting someone, especially if he was on something. That would satisfy Tennesse v Garner. There is no requirement that the danger foreseen from letting him escape be imminent.

    ConradCA in reply to sequester. | September 1, 2014 at 9:21 pm

    A civilian could have fought Brown and Johnson off after suffering injuries and an attempt to steal his firearm. Then he could have tried to make a citizen’s arrest on these thugs were upon Brown had turned around and charged him. The citizen would be just as justified in shooting Brown as Officer Wilson.

MouseTheLuckyDog | August 31, 2014 at 10:26 pm

Ok. THis is one that has got to be asked: remove what happened before the scene and just take it for itself. Does the scene in Indiana Jones where Indy shoot knife waving guy count as self defense?

    Gremlin1974 in reply to MouseTheLuckyDog. | August 31, 2014 at 11:41 pm

    Seriously? Are we gonna start working with movie clips now?

      MouseTheLuckyDog in reply to Gremlin1974. | September 1, 2014 at 7:46 pm

      Do you know a movie theater where the viewers did not burst out in a loud round of applause after the shot? ( Well except for one mostly empty. ) So apparently people find it acceptable behavior.

      Yet it may be illegal. You don’t find it strange that people accept a behavior but it is illegal?

      I actually am amazed at what behaviors people say they can’t engage in ( such as rushing a gun ) but are depicted over and over again in entertainment media.

    Bruce Hayden in reply to MouseTheLuckyDog. | September 1, 2014 at 12:34 am

    In my view, very likely self-defense. And, pretty dumb – bringing a knife to a gun fight.

    MouseTheLuckyDog in reply to MouseTheLuckyDog. | September 1, 2014 at 2:10 am

    Just in case anyone does not know what I am talking about:
    https://www.youtube.com/watch?v=ua_TZ84hmEA

    The Livewire in reply to MouseTheLuckyDog. | September 1, 2014 at 10:03 am

    In Indy’s case he’s not required to use proportional force. That would be akin to limiting Zimmerman to finding his own sidewalk to beat Martin with.

    In Ford’s case? He is suffering a diminished fighting ability due to his illness. It is safe to assume the other guy is an experienced fighter and shooting him is a good idea. 🙂

      Phillep Harding in reply to The Livewire. | September 1, 2014 at 2:36 pm

      Paragraph one: exactly.

      Paragraph two: “huh?” I don’t think he was portraying a character who was sick. If you mean the actor had a real life medical problem, well, that is out of context.

      Milhouse in reply to The Livewire. | September 1, 2014 at 8:34 pm

      He is required to use proportionate force, and he did so. Deadly force is deadly force, regardless of weapon. A gun is proportionate to a knife; a nuclear weapon would not have been.

A lot of information is stifled. The “graduate” had to take special “catch up courses” to earn his diploma.

On a conservative site, I saw (and it may come out), that Michael Brown had a juvenile record. A charge of 2nd degree murder (which is so far under seal). And, if true, how come his mama didn’t have to own up?

It’s a media story. Which will leave those who live in Ferguson without grocery stores. And, without the gas station that was at Quik Trip. (Quik Trip has no intention of reopening. The store was marginal at best. And once the neighborhood shifted from white to black, their profits disappeared.)

For some reason (perhaps because of all the media attention) the blacks in Ferguson think everything’s gonna be rebuilt.

Wasn’t it Watts!

While the two week “spectacle” received international attention. What some people won’t do to be on TV?

Will the juvenile record ever become public? There’s a lawsuit, now, saying that since Michael Brown is dead there’s no reason it shouldn’t be made public.

    Bruce Hayden in reply to Carol Herman. | September 1, 2014 at 12:45 am

    Carol – we don’t actually know that Brown had a juvenile record – it remains sealed. Apparently, this story comes from members of the Ferguson police department, who are likely biased in this case.

    Still, if the rumor that Carol pointed out is true, then it changes the debate a bit. Another part of the rumor is that Big Mike was a member of the Bloods. I suspect that if that if Wilson is indicted, that Brown’s juvenile records will be unsealed, because he is no longer alive, and 2nd Degree murder is the sort of thing that is relevant to the question of whether or not he was likely to cause death or serious bodily injury to Officer Wilson.

    And, for a political point of view, I would like his record to be unsealed, regardless of what is in it, and, in particular, if it is as bad as the rumor suggests. That would put many in the Black community who supported Brown in an uncomfortable position, of supporting a murderous thug who should have been serving a 20 or so year sentence, except that he was underaged when committing his offenses. And, BTW, anyone who points out that Brown had a clean record – remind him that he had just turned 18, and that anything that he had done up until then was sealed.

      MouseTheLuckyDog in reply to Bruce Hayden. | September 1, 2014 at 2:53 am

      Actually the story comes from the highly unreliable Charles Johnson, who claims it came from the police.

      Still the St Louis Post Dispatch has also filed suit. SO I wonder if they have any information.

      I just hope a judge does decide to unseal the record and everything gets cleared up one way or another.

        Bruce Hayden in reply to MouseTheLuckyDog. | September 1, 2014 at 7:21 am

        2nd degree murder would be pretty hard to cover up in the community. And, he would has to have been pretty you g not to have been tried as an adult. So, the more I think about it, the less I think that his record was that bad.

        On the flip side, punching a cop and trying to take his gun away is pretty brazen. But that robbery was pretty brazen too. And pretty dumb too – was the guy really heading off to college before that? If so, affirmative action has gotten pretty scary.

          MouseTheLuckyDog in reply to Bruce Hayden. | September 1, 2014 at 11:35 am

          Didn’t he recently move in with his grandmother? Possibly from a different community?

          I would also have to think of the circumstances of the alleged murder,
          For example if in another robbery, the store clerk instead of falling into racks of snacks, fell over a box and smashed their head?

          Also I wanted to see the records from early on, when family members started saying “no adult record”. That’s a very fishy qualifier.

          MouseTheLuckyDog in reply to Bruce Hayden. | September 1, 2014 at 11:39 am

          Oh. I forgot to point out.
          He was heading of to college, he was heading of to “air conditioning repair university”.

          Gremlin1974 in reply to Bruce Hayden. | September 1, 2014 at 3:03 pm

          I am thinking that he was more looked at as an accessory, if there is any validity to the story at all. If he was a gang member then he could have joined young and whatever the situation was, it could have been part of his “initiation”.

          Char Char Binks in reply to Bruce Hayden. | September 1, 2014 at 3:35 pm

          Maybe he started young, and the murder, if there was one, happened who-knows-how-many years ago? Anyway, the story is he was a murder suspect, not a convict.

        Phillep Harding in reply to MouseTheLuckyDog. | September 1, 2014 at 2:39 pm

        You mention an air conditioning class. Isn’t that what is being stolen for it’s copper?

        That sure lights up my “cynicism alert” light.

      Gremlin1974 in reply to Bruce Hayden. | September 1, 2014 at 4:15 am

      Surely if he was charged with Murder as a Juvenile then it would be pretty common knowledge, certainly he wasn’t actually convicted because that would be pretty well known I would think. I mean Juvenile Records aren’t that secretive are they?

To: Andrew

I saw it on the Internet. Where there’s a video clip of a man claiming “self-defense” … who shot someone knocking on his door. And, is facing a long prison sentence.

Trouble with “self-defense” is that your lawyer stinks.

Instead? The guy in the story above would have been better if he had an attorney that said “it was an accident.”

Gosh, you’re pulled out of sleep by violent knocking on your front door. (Lady is drunk, by the way.) Homeowner shot her. And, is now going to prison. “I fired by accident. The gun went off by itself.”

I feel reasonably threatened if someone breaks into my home.

What is the legal recourse there? I know castle doctrine and all of that but it didn’t really protect Wafer in his case.

Do I have to actually wait for the person to succeed in breaking in? Seems kinda heinous if you ask me.

    Bruce Hayden in reply to healthguyfsu. | September 1, 2014 at 12:49 am

    It depends. Partly on the state, and partly on the circumstances. We could come up with scenarios where the person breaking in would not constitute a sufficient danger, and we could come with scenarios when they would. There are definitely states though where breaking into occupied homes is not a good idea. (Of course, back in the Mother Country, it is routine, and even preferred, over daytime invasions, but they don’t have a 2nd Amdt).

    Milhouse in reply to healthguyfsu. | September 1, 2014 at 8:42 pm

    It didn’t help Wafer because he undermined it by telling the police it was an accident. If he’d not told the police anything, his self-defense case might have worked.

Andrew – thanks. Excellent job.

I read most everything that he writes here for a number of reasons, one of the big ones being to keep from using deadly force when it isn’t justified. And, yes, to not say the wrong thing if I (or someone calling me as an attorney, though I claim no expertise here) is forced to use deadly force.

    Phillep Harding in reply to Bruce Hayden. | September 1, 2014 at 12:31 pm

    While “Detached reflection cannot be demanded in the presence of an uplifted knife”, detached reflection seems to be expected in the aftermath of such a confrontation.

    I don’t think most of us are that cold blooded.

I thought that the story that there are 12 witnesses who say that Brown ‘charged! Wilson turned out to be a false story that was retracted. No such witness has been on TV, but if course it would be natural for them to fear retribution. The secrecy (i.e., “non-transparency”) of the grand jury is crucially valuable in this case. However, if there is a a public trial, identity of witnesses cannot be a secret. Someone is going to have to risk his or her personal safety in order to testify in favor of Wilson.

But back to the grand jury. If there is no indictment returned, the prosecutor has promised to make the records public in the interest of transparency. What about the identity of witnesses in this case?

    One of the cellphone videos appeared to catch an eyewitness remarking that “the dude went back” or something to the effect that Brown advanced toward Wilson.

    I read somewhere that Dorian Johnson was NOT called as a witness at the Grand Jury. Now, this is interesting. Even if Dorian is a serial liar, if you were a District Attorney looking for an indictment, (rather than truth or ‘justice’), wouldn’t you want Dorian Johnson to testify that Brown had his hands up when he was shot?

      Milhouse in reply to Redneck Law. | September 1, 2014 at 8:44 pm

      Suborning perjury is a crime. And a disbarment offense.

        Richard Aubrey in reply to Milhouse. | September 2, 2014 at 7:57 am

        Milhouse. WRT suborning perjury–and withholding exculpatory evidence. You’re right. That’s why the world is full of ex-prosecutors just released from five years in jail trying to sell newspapers on the streetcorners.

Andrew, let me use your post to throw something out. You wrote:

“The pro-Wilson narrative–to which we give due deference, given the presumption of innocence attached to any criminal defendant–is that Brown, along with his cohort Dorian Johnson, first attacked Wilson in his patrol car. . . . During this fight Brown also sought to seize Wilson’s service pistol. In the course of this fight the pistol discharged inside the vehicle.”

The police department’s refusal to release any information in this case has been particularly infuriating to me. The lack of hard information or facts has allowed the void to be filled with unfounded and racially inflammatory speculation.

For example, both sides appear to agree that the officer’s weapon discharged inside the car. (Dorian Johnson said so. Many times on camera.) Most commentators then jump to the autopsy drawing and conclude, as you did, that Brown was shot outside the patrol car, with several superficial wounds in his right (dominant) arm.

Dorian Johnson (yes, I know) said that when the gun discharged, Brown removed himself from the vehicle and began to run, and was bleeding. It is possible, of course, that Johnson was correct and Brown had been shot in his right arm at that time, and possible bled onto his shirt.

Now to my point: If Brown realizes he has been shot, and becomes incensed to the point he charges the officer, is this not a valid explanation for Brown’s conduct? If so, does it help or hurt Wilson’s defense?

    “Now to my point: If Brown realizes he has been shot, and becomes incensed to the point he charges the officer, is this not a valid explanation for Brown’s conduct? If so, does it help or hurt Wilson’s defense?”

    I’m afraid I don’t really understand the question.

    There’s no particular legal need to explain Brown’s conduct in charging Wilson–all that is needed is for the jury to believe that the charge occurred, and that a reasonable and prudent person in Wilson’s position would have perceived it as an imminent threat of death or grave bodily harm.

    I suppose it might facilitate convincing the jury that the charge occurred if you can provide some apparent motive for the charge–but really, the key here is going to be eye witness testimony. If you have witnesses testifying to the charge, being also able to provide a motive for the charge really adds very little.

    If the only witness to the charge were Wilson, then being able to provide a motive for the charge would be far more probative, but I don’t believe that’s the case here.

    Assuming we have witnesses to the charge it’s very difficult to see how a conviction of Wilson would be attained, absent bizarre circumstances (e.g., Wilson continued to shoot Brown even after the threat had been clearly resolved, along the lines of Michael Dunn’s third burst of fire at the fleeing SUV).

    –Andrew, @LawSelfDefense

      To charge into the face of a deployed firearm is evidence of one of three things; extreme desperation, a depraved mind or insanity. In the case of Brown, it is unlikely that it was justified by extreme desperation, as it was possible for him to continue running and thereby probably escape. It could be insanity, either natural or chemically induced. Or it could simply have been evidence of a depraved mind and the Brown was intent upon continuing his physical attack upon Wilson. In any of the cases, given the size differential between Brown and Wilson, and the prior attack committed upon Wilson, by Brown, this is a virtual slam dunk justified shooting. Only when the situation, the evidence and common sense are completely ignored, can it be viewed as anything else.

        Char Char Binks in reply to Mac45. | September 1, 2014 at 3:46 pm

        Some people like to take chances. Maybe Brown charged at Wilson for the same reason people climb mountains, swim with sharks, or race trains to railroad crossings — he figured he could do it and come out ahead, despite risking his life.

      in the article, you wrote:
      “Brown, either independently or in response to Wilson’s challenged, verbally challenged Wilson in return, then (as attested to by more than a dozen witnesses) lowered his head and charged back at Wilson.”
      It is my understanding that the claim of “more than a dozen witnesses” has been retracted.
      In your current reply, you seem to acknowledge this, in the phrase “if Wilson is the only witness to the charge” (quoting from memory). From what I wrote in my original post just above, it seems that it is reasonable to assume that no witness is going to publicly back up Wilson’s story.

        Char Char Binks in reply to chazmcrd. | September 1, 2014 at 11:17 pm

        There could be a thousand witnesses against Wilson, but he would still be found not guilty if their testimony is unbelievable, or demonstrably false. A trial is not democratic, if it comes to a that.

    Gremlin1974 in reply to Redneck Law. | September 1, 2014 at 3:13 pm

    “The police department’s refusal to release any information in this case has been particularly infuriating to me. The lack of hard information or facts has allowed the void to be filled with unfounded and racially inflammatory speculation.”

    This not unusual for an ongoing investigation. I mean they aren’t looking for someone and need help finding the criminal. Criminal investigations are supposed to remain compartmentalized, it is only the race baiters screaming and gnashing their teeth that makes it seem otherwise in this case that makes it seem otherwise.

      Char Char Binks in reply to Gremlin1974. | September 1, 2014 at 3:47 pm

      They’re protesting against the investigation, and doing all they can to hinder it.

      I mentioned elsewhere on LI about the recent incident in Durham, NC, where a troubled teen shot himself in the back of a police car after being picked up for an outstanding warrant. (The pat-down was deemed improper.) In 48 hours, the police could have come out and said that it was the teen’s gun, he had gunshot residue on his hands, the cop’s weapon had not fired, and the officer did not have residue. Because they did not, the community activists, racial grievance mongers and your garden variety anarchists caused much property damage during their protests against “police brutality.”

If the attacker begins grabbing for your gun and/or is about to render you unconscious and you have a gun he is not unarmed. You can only assume that the attacker is going to kill you either with your gun or with his hands.

The article does not deal with something that has been over-looked. The US Supreme court has ruled that a policeman can use deadly force on a fleeting felon if there is evidence that he is a danger. Of course, the assault on the officer is proof that this exists. Even if Wilson had shot Brown in the back while he was fleeing and even though he was unarmed, this would have been justifiable homicide. An article such as this should have covered that aspect.

    Gremlin1974 in reply to Alatha2. | September 1, 2014 at 3:16 pm

    Shooting someone who is fleeing isn’t going to go over well no matter the circumstances. From what I know from my LEO friends basically the only way they are gonna shoot a fleeing suspect is if he is fleeing them only to attempt to immanently harm someone else. Because even if they aren’t charged with a crime then would still probably lose their job.

      Milhouse in reply to Gremlin1974. | September 1, 2014 at 8:54 pm

      This may be how your LEO friends would behave, but it is not the law. There is no requirement that the fleeing felon be about to harm someone. Imminent harm is an element in self-defense. It is not an element in the post-Tennesee-v-Garner fleeing felon rule. All that’s required is that he is likely to harm someone at any time after his escape, before he can be captured safely.

    Milhouse in reply to Alatha2. | September 1, 2014 at 8:50 pm

    This is exactly right. Tennesee v Garner only overturned the fleeing felon rule if 1) the shooter is a policeman (or other agent of the state); 2) the felon poses no danger to anyone if he is allowed to escape.

This retired cop see’s this as a very viable cause and effect = disparity of force.
BUT the problem comes when you try to use what should be legal force.
You are attacked by a mob,use DPF and then they claim that you shot and attacked them.
Video would make a huge difference ,IF that were made.

“Brown, either independently or in response to Wilson’s challenged, verbally challenged Wilson in return, then (as attested to by more than a dozen witnesses) lowered his head and charged back at Wilson.”

What happened at this particular point of the incident seems most critical to the “self-defense” aspect of Wilson’s defense. (I’m not sure if self-defense is actually required in the case of an officer of the law.)

I’m not sure where you get the “more than a dozen witnesses” part. All I believe was reported (from anonymous sources) was that a dozen witnesses could corroborate some of Wilson’s account. I’m not sure 12 witnesses (which seems like a high number for something that happened within about 10 seconds) can corroborate the “Brown charged” part of Wilson’s story. Perhaps all they could corroborate was that Wilson’s eye was injured.

If there are 12 witnesses who can corroborate ALL of Wilson’s account, (a) the case seems open and shut, and (b) I’ll eat your hat.

Richard Aubrey | September 1, 2014 at 4:17 pm

WRT disparate fighting ability: Young guy attacks old guy. Old guy, living in the country with somewhat more rigorous landscaping requirements, is in reasonable shape for an old guy. Remembers something he learned in the Army forty-fifty years ago. Does a move/strike usually presumed to be pretty serious and, in this case, it’s lethal. Young guy has no formal training anybody can find. Is the old guy in for it?
Now, the old guy is half that age and out of the Army for ten years….
I guess the basic question is whether winning briskly, no matter how much it startles you, prima facie evidence of disproportionate fighting ability.
Prosecutor. Where did you learn the chin jab?
Def. In a James Bond book by Ian Fleming. Read it when I was in college.
Prosecutor: Were you aware the deceased couldn’t read and thus was at a serious disadvantage?

    You’ve got it backwards. The defendant having special fighting skills is not an issue. The issue is the attacker having special fighting skills; this can justify defensive force that would not otherwise be justified.

    It doesn’t matter if the attacker is “at a serious disadvantage”. This is not a game, and he should be at a serious disadvantage, the more serious the better. The only requirement is that the force used be proportionate, not to the force the attacker is using, but to the harm reasonably anticipated from his attack.

      Richard Aubrey in reply to Milhouse. | September 2, 2014 at 8:08 am

      Milhouse. I guess the question could be put this way: Is the fact that the putative old guy won so briskly, without breaking a sweat, indicative of the fact that his fighting skills were so disproportionate that the assailant couldn’t have hurt him in the first place? Hardly any difference between that and owning a gun? Suppose George Zimmerman had taken two punches from Martin, ducked the third and, say, thrown Martin with some kind of judo move and Martin had broken his neck on account of not knowing how to fall. No difference at all, imo, given how things work.
      Now, if the same were applied to Roderick Scott–aka “who?”–and Chris Cervini–aka “who?”–the results would be different, as they were.
      Suppose the Gentle Giant had been charging Wilson and Wilson faked left, moved right and tripped Brown on his way by. Brown then puts his head into a curb and dies. Would there be any effective difference? Only to the anti-gunners, who generally don’t mind cops being armed in the first place.

The only reason that the Zimmerman-Trayvon incident gained publicity is that Tyrant Obama the Liar needed help in his 2012 reelection campaign. He needed to manipulate blacks and the rest of his base into supporting his re-election campaign. Using this shooting and lies designed to make blacks angry he got them to vote for him as never before.

The same goes for the shooting in Ferguson. The democrats aren’t doing well in the 2014 election campaign so they picked this shooting to motivate their voters. Lies about the shooting have made the base angry again and ready to vote democratic just like in 2012.

You see the facts don’t matter to the progressive fascists. The only thing that matters is that they get their base riled up and voting for the election.

    Twanger in reply to ConradCA. | September 2, 2014 at 6:19 pm

    ConradCA – exactly.
    This is also why the race-baiting mouthpieces got on the first plane to the scene… it’s all about getting the votes.

I’d have to dissent just a little on disparity of force justification. Even if one is of near equal physical fitness and size as his attacker, I don’t believe the attacker has the right to force his victim into hand to hand combat. Otherwise, the non-aggressor would be put into the position of having to engage in fist fight in order to stop the attack, a fist fight that he might not come out of either alive or without grave bodily injury. I believe he has the right to use deadly force as a last resort to stop the attack.

If you have any doubt how many times your head needs to impact concrete for the result to be fatal, just ask Natasha Richardson.

Andrew – As I read this narrative and your book, I can’t help but think that there is absolutely no situation in which one can reasonably make the call that lethal self-defense is warranted, until after they have actually been physically assaulted… and furthermore it appears that it had better be by somebody bigger and meaner looking than you are, trained in deadly arts, and shouting that they are about to kill you.

I have become discouraged and fearful that I must put my life completely in jeopardy before lethal self-defense would be legally allowable.

Said another way, it appears that the only acceptable time you can shoot someone is when you are within fractions of a second of being killed. This seems to be both an imprudent and unreasonable requirement.

I KNOW that this is not exactly how the law is written, but in practice it appears that this is what the law expects.

With that preamble, I can now ask my question:

Is this what the US legal system truly expects? Do they REALLY expect a normal person who is unskilled in street fighting to play that kind of brinkmanship with their own life prior to using deadly force? Can we really expect a normal citizen who is a totally unskilled fighter to simply lay there and take their beating from a thug? How can we expect someone to only use deadly force when the fight has gotten to the point that the outcome is completely uncertain?

This is clearly what Zimmerman did. He was one head slam into the concrete away from being killed. He showed AMAZING restraint of allowing himself to be assaulted far beyond the point which I would have thought necessary to justify deadly force, and he still was crucified by the press and the court system.

So is this really the way it is, in practice?

    Char Char Binks in reply to Twanger. | September 2, 2014 at 7:29 pm

    You only have to be in reasonable fear of imminent death or great bodily harm. It helps if the other factors you mentioned are also present, and also if the person you shoot isn’t a member of the Sacred Race, unless you also are.

BIG KID
“When the cop got to the scene,
He started acting mean.
Sure, I’m eight-foot-one
And a quarter ton,
But I’m just an unarmed teen!”

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