There have been many false factual narratives of the Michael Brown killing, such as “hands up, don’t shoot.”

Now there’s a new false legal narrative spreading, that a prosecutorial mistake misled the Grand Jury into erroneously failing to indict Police Officer Darren Wilson.

The source of the claim appears to be MSNBC’s Lawrence O’Donnell.

O’Donnell, who was magnificently misleading in the Trayvon Martin case, expounds on this claim in the Ferguson case with absolute moral and intellectual certainty, as he always does.

The heart of O’Donnell’s claim is that a legal error in presenting the law on use of force in making an arrest early in the Grand Jury proceedings somehow led the Grand Jury astray.  O’Donnell maintains that this error could have led the Grand Jury to think it was okay to shoot Michael Brown in the back as he was running away, even though the corrected law was given to the Grand Jury prior to deliberations.

There are at least two major flaws in O’Donnell’s argument.

First, and most important, even if O’Donnell is correct that prosecutors misstated one justification for Wilson’s use of deadly force (arrest powers), these same prosecutors correctly stated an alternative and independent justification for that same use of force (self-defense).

Thus, even if Wilson’s arrest powers were insufficient justification for his use of deadly force, his right of self-defense was more than sufficient justification for that use of deadly force. And even O’Donnell claims no error in that instruction to the Grand Jury.

Second, the justification that O’Donnell claims was read to the jury in error is entirely irrelevant, as it applies only if the suspect is shot while fleeing arrest.

Here, Michael Brown suffered not a single gunshot wound to the back, nor did Wilson ever claim to have shot Brown while he was fleeing in order to affect an arrest.  Instead, Wilson claims consistently that he shot Brown in self-defense, and numerous witnesses testified and the forensic evidence supports that Wilson fired only when Brown was actively advancing towards, and not while Brown was fleeing from, Wilson.

As a result the legal justification that O’Donnell claims to be in error, that of arrest powers, simply has no application to this case.

Now to the video:

O’Donnell’s diatribe is an almost perfect example of what is commonly referred to as a “straw man” argument.

In a straw man argument, one side purports to present the other side’s position, and then proceeds to ruthlessly shred that position.

The key, however, is that the position they are shredding is not, in fact, the other side’s position at all. The other side’s actual position is, in fact, too strong to be effectively attacked.

So, in a straw man argument you attribute to the other side a position that they do not actually claim, then you destroy that unclaimed position, and you declare victory.

As long, that is, as you control the debate forum

Sadly for MSNBC, their control of the debate forum continues to diminish with their ever shrinking ratings, and certainly fails to extend to this forum.

So, let’s have at O’Donnell’s straw man argument.

O’Donnell’s straw man centers on the idea that Police Office Darren Wilson’s justification for his shooting of Michael Brown is the he justified that use of deadly force on the basis of his arrest powers under Missouri law.

O’Donnell references that specific Missouri statute, §563.046. Law enforcement officer’s use of force in making an arrest.

You can read the entire full-length statute at that link (don’t even try the Missouri official site, it’s sending 404 returns, probably due to the attention inappropriately drawn its way by O’Donnell’s nonsense.), but I urge you to not bother until after you reach the end of this post.

As you’ll see, it would be a pointless exercise for our purposes.

O’Donnell then argues that this portion of §563.046 was ruled unconstitutional by the United States Supreme Court in Tennessee v. Garner, 471 US 1 (1985). Again, you can read the entire full-length of that case at that link, but don’t bother quite yet.

As you’ll see, it would be a pointless exercise for our purposes.

Let’s assume, for purposes of this blog post, that Garner does, in fact, absolutely make §563.046 unconstitutional, and that therefore it would be legal error for the Grand Jury to decline to indict Wilson on the basis of §563.046.


The core fallacy in O’Donnell’s straw man argument is the very same defect shared by all straw man arguments.  The position O’Donnell presents as being Wilson’s defense–that his use of deadly force was justified on the basis of his arrest powers–is simply irrelevant, because Wilson’s actual defense relied on a completely independent and sufficient justification.

That his use of deadly force was justified as self-defense.

At no point in Wilson’s testimony to the Grand Jury did he ever claim that he shot Brown because he was seeking to make an arrest of a fleeing suspect.  At no point in his four hours of Grand Jury testimony was the issue of deadly force arrest powers ever raised.

Not once.

Wilson’s utterly consistent testimony through four hours before the Grand Jury, without legal counsel present and at his own initiative, was that his claimed justification for the use of lethal force against Brown was that of self-defense.

As it happens, self-defense is governed not by §563.046, but by a completely different Missouri statute, §563.031. Use of force in defense of persons, the state’s self-defense statute.

The Grand Jury was also, of course, instructed on §563.031, self-defense.

Indeed, even Lawrence O’Donnell claims no error in either that self-defense statute’s reading to the Grand Jury or in that statute’s constitutionality.

Bottom line: §563.046, Law enforcement officer’s use of force in making an arrest, the very heart of O’Donnell’s straw man argument is, as are all straw men, utter irrelevant to the issues at hand.

Wilson did not need §563.046, arrest powers, did not rely upon it’s arrest power provisions, and indeed he never even mentioned them.

All Wilson needed was §563.031, self-defense, and no error is claimed there.  Period.

As for the relevance of Mr. O’Donnell and MSNBC, I’ll defer to the ratings books.

–-Andrew, @LawSelfDefense

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Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.


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