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Law of Self Defense: No Charges in Police Shooting of Stephon Clark

Law of Self Defense: No Charges in Police Shooting of Stephon Clark

Lawful Self-Defense Requires Reasonable, Not Perfect, Decisions

Ever wonder how to get yourself shot and killed by police? It’s not as difficult as you might think.

Step 1: Present yourself as a reasonably perceived imminent deadly force threat.
Step 2: Wait for loud noises, flashes.

And let’s not forget the postmortem:

Step 3: Family files multi-million dollar §1983 Federal civil suit against the police department, hoping that political pressure from the usual racial grievance industrial complex will induce the local pols to give away large sums of other people’s (taxpayers’) money.

Meet Stephon Clark, Recipient of the “Suicide by Cop” Award

We once again find all three of these key indicators of “I’d like the police to shoot me dead, please” syndrome in the case of Stephon Clark, who was shot and killed by two Sacramento, CA police officers last March 18, as reported here and elsewhere.

Clark was black (or we’d likely not have heard a word about this local crime story). Of the two officers who shot and killed him, one was white. The other? Black. (Don’t worry about that inconvenient fact, however, plenty of folks will be happy to tell you this shooting was nevertheless racist.)

From the very first moments following the shooting of Clark the available evidence has consistently, and without contradiction, shown that Clark presented himself as an imminent deadly force threat towards Officer Mercadal and Robinet, who then responded appropriately with deadly defensive force.

Because Clark merely did everything in his power to make the officers reasonably believe he was firing a gun at them, but did not actually have a gun, this event has been used relentlessly by the racial grievance industrial complex as “yet another example” of law enforcement shooting dead “an unarmed black man.”

There’s Money in Them Thar Racial-Grievance Hills

Indeed, it wouldn’t surprise me at all if the agitators pushing this hateful divisive nonsense won on both the political and the civil suit fronts, thereby increasing their local influence. If so, it can only further promote irrational hatred of law enforcement within the communities most desperately in need of protection from criminal predation. It will also have the “feature” of further impoverishing the local population generally by transferring tax money from that population to the agitators and (to a large degree) their lawyers.

There’s a lot of power and money to be acquired in this faux racial grievances game, and the folks driving it are genuine experts at their craft. Some have been fomenting these hoax racial attack narratives for decades (see Al Sharpton and Tawana Brawley, NYC 1987). Sharpton’s fraudulent Tawana Brawley hoax was ultimately exposed, but not without destroying innocent lives (in one example, literally, a suicide) in the process, while building up his own national profile as a prominent media personality.

Recent years have seen a continuing series of false “racist cops murder unarmed black man for no reason other than racism” stories, including those involving Eric Garner, Freddie Gray, Sandra Bland, Terence Crutcher, and a great many more, most of which I’ve reported on personally, right here on Legal Insurrection.

DA: No Charges Against Officers Who Shot and Killed Stephon Clark

Yesterday, Sacramento County District Attorney Anne-Marie Schubert announced that there would be no charges against the police officers over their shooting of Stephon Clark. As part of that announcement DA Schubert also released an official 61-page memorandum summarizing the extensive investigation into these events.

The memorandum (embedded below) is loaded with facts and evidence, including many photos and reference shots of both helicopter and police body camera video, and all of it leads to the only reasonable conclusion: that the officers who shot and killed Stephon Clark did so lawfully.

I do encourage you to read the entire embedded memorandum, but if you’re short on time, the summary of the findings begins on page 57, in the section labeled “LEGAL ANALYSIS.”

Although much has been made of the fact that it would turn out that Clark was not, in fact, armed with a gun, as the responding officers believed to be the case at the time they shot him, the reality is that the law does not require Clark to be actually armed in order for his shooting to be lawful. Both police and non-police acting in self-defense are permitted to act upon the reasonably perceived appearance of a threat—it matters not one bit if the threat turns out to be a fake or even absent entirely, so long as the perception of the threat was a reasonable perception.

Mistakes in self-defense decision making are permissible under the law, so long as they are reasonable mistakes.

Self-Defense Law Requires Reasonable, Not Perfect, Decision Making

The legal analysis portion of the memorandum does an excellent job of laying out the actual legal standards that apply to the defensive use of force against a reasonably perceived threat, as well as how the facts of the shooting of Stephon Clark align with those standards:

A peace officer, as well as any person, may use deadly force under circumstances where it is reasonably necessary for self-defense or defense of another. (California Penal Code sections 196, 197.) California law permits the use of deadly force if the person actually and reasonably believed he or another was in imminent danger of death or great bodily injury. It is the reasonable appearance of danger to the officer, and his honest belief in that danger, which is controlling. If an officer actually believes that deadly force is necessary and that belief is reasonable under the circumstances, the officer’s actions are lawful even if it is later determined that the danger did not actually exist.

In addition, the person raising the legal defense of self-defense need not prove that their use of defensive force was lawful. To the contrary, it is the state that must disprove their claim of self-defense beyond a reasonable doubt. This is long-standing law not just in California but also in 48 other states, and it will be the law in all 50 states when Ohio adopts the same legal standard later this month.

Further, the officer need not prove that he had the right to use deadly force. Rather, it is the prosecution which must prove that the officer did not have that right. The question then becomes whether the evidence proves, beyond a reasonable doubt, that Officers Mercadal and Robinet did not have an honest, reasonable belief that they were in imminent danger of death or great bodily injury.

Given that none of the parties involved ever disputed that Clark was not, in fact, armed with a handgun at the time of his shooting, the question of fact for determining the lawfulness of that shooting is whether the officers’ admittedly mistaken perception that Clark was armed with a gun was nevertheless a reasonably mistaken perception.

Reasonableness is measured from two perspectives and must qualify under both. First, was the belief in the threat subjectively held; that is, was it a genuine and good faith belief on the part of the purported defender? Second, was that subjective belief objectively reasonable; that is, would a reasonable and prudent person in the same or similar circumstances have shared the same subjective belief?

If the answer to both those questions is in the affirmative, then the belief is a reasonable belief and sufficient to justify a use-of-force, even if that belief later turns out to be literally mistaken.

Officers’ Belief Subjectively Genuine and Held Good Faith

From the memorandum’s legal analysis (memorandum embedded below):

In this case, the officers actually believed that their lives were in imminent danger. Both officers described in their interviews to investigators that Clark presented himself in a manner causing them to believe that he was pointing a handgun at them. Officer Mercadal said that as he came around the corner into the backyard, he could see Clark with his arms extended out in front of him at chest level consistent with a shooting position. Officer Mercadal saw a metallic reflection or flash of something coming at him from Clark’s position, which he thought was a muzzle flash from a firearm, and he believed that Clark had shot at him. Officer Robinet said that as he went around the corner, he saw light reflecting off a metallic object Clark was holding in his hands in an isosceles shooting position. Officer Robinet feared the object was a firearm based on the way Clark was holding it.

Objective evidence contemporaneous to the shooting and immediately afterward demonstrates that their beliefs in the need to use deadly force were actual and honest at the time of the shooting. The BWC videos from both officers support their statements that they saw a flash of light emitting within close proximity to Clark just prior to the shooting. Furthermore, under the law, spontaneous statements made at the time of a startling event or while still in a state of surprise or shock from an incident are considered reliable and trustworthy. This is because the person making the statement would not have had the chance to reflect upon the startling event and fabricate a purposefully false statement.2

After coming around the corner into the backyard, when Clark was standing faced toward the officers, Officer Mercadal called out to Clark, “Show me your hands.” Officer Mercadal then spontaneously yelled, “Gun.” In addition, Officer Mercadal instinctively sought cover. In the STAR video, it appears that Officer Mercadal grabs Officer Robinet and helps pull him to cover. These are the actions of individuals who actually believe that they are faced with an imminent threat.

Officers’ Subjective Belief Was Also Objective, Reasonable

Again, from the memorandum’s legal analysis:

In addition to having an honest belief in imminent danger, Officers Mercadal’s and Robinet’s beliefs were reasonable under the circumstances.

Clark turned towards the officers. Clark would have seen that the officers had their guns drawn on him. Officer Mercadal yelled at Clark in a loud voice, “Show me your hands.” Officer Mercadal then yelled, “Gun” and dove for cover. Clark would have heard these words from his position and would have seen the officers retreat behind the corner of the house. Clark did not
call out to officers identifying what was in his hand or that he was not armed. Clark did not raise his hands above his head. Clark did not act in a manner showing he was submitting to their authority. Instead, Clark advanced upon their position.

Regardless of Clark’s true intentions, his actions would cause a reasonable officer under the circumstances to believe he had shifted from flight to fight. Further, the act of taking a shooting stance and advancing towards the officers would be perceived by a reasonable officer as an imminent threat. The STAR [helicopter] and BWC [body camera] videos clearly show that Clark advanced towards the officers.

The BWC videos from both officers show a flash of light emitting within close proximity to Clark just before Officer Mercadal calls out “Gun.” These flashes of light are consistent with the officers’ descriptions of seeing light reflecting off a metallic object in Clark’s hand or a muzzle flash from a firearm. Given Clark’s positioning and an emission of light consistent with reflection from a metallic object in his hands or a muzzle flash, the officers’ belief in the need to use deadly force would be considered reasonable.

Officers’ Use-of-Force Thus Reasonable As a Matter of Law

Again from the memorandum:

Under these facts, it cannot be said that Officers Mercadal and Robinet were unreasonable in their beliefs that Clark had a gun and was about to shoot them. While it is tragic that Clark in fact was holding a cellular phone, the law judges the officers’ actions based upon the reasonable perception of the threat. The evidence proves that Officers Mercadal and Robinet acted lawfully under the circumstances.

Legal Conclusion by Sacramento District Attorney’s Office

From the memorandum:

Based on the circumstances of this incident, Officers Mercadal and Robinet had an honest and reasonable belief that they were in imminent danger of death or great bodily injury. Therefore, they acted lawfully in shooting Clark to defend themselves. Accordingly, we will take no further action in this matter.

Racial Grievance Industry Unconstrained by Facts, Law

None of this absolutely correct legal analysis applied to the undisputed facts of the shooting death of Stephon Clark will stop the grinding gears of the racial grievance industry, however. Not generally, and not even in this particular case.

In terms of cash money, Clark’s family (and, of course, their lawyers, who stand to make a huge sum if litigation is successful) continue to pursue their §1983 Federal civil suit against the Sacramento Police Department, presumably on the premise that the officers—one white, one black—who shot and killed Clark were motivated by racism rather than lawful self-defense against a reasonably perceived apparent imminent deadly force threat. Likely as not an actual final adjudication will never be reached by the Federal courts, as the city government of Sacramento may well find it more politically expedient to simply hand over a large chunk of taxpayer money to make this political problem go away.

In terms of politics, Stephon Clark’s name will undoubtedly be added to the list of other false victim’s of purported “racist police murder,” alongside Freddie Gray, Eric Garner, Sandra Bland, Terence Crutcher, and the rest of the pantheon of people who, far from being unlawfully murdered by police, were actually killed either by their own conduct and/or as a consequence of a lawful use of force.

That propaganda so often triumphs over fact in the popular consciousness of faux “police racist murders,” of course, can come as no surprise to anyone who has been following the societally toxic effects of the racial grievance industrial complex. To paraphrase Hiram Johnson, the first casualty of race war is the truth.


Attorney Andrew F. Branca
Law of Self Defense LLC

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Here’s that official memorandum released by the Sacramento District Attorney’s office yesterday, along with their public announcement in this matter:


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civil suit against the Sacramento Police Department, presumably on the premise that the officers—one white, one black—who shot and killed Clark were motivated by racism rather than lawful self-defense against a reasonably perceived apparent imminent deadly force threat.

Why is “racism” presumed here? The undisputed fact remains that the officers made an error, and a person who was not an immediate deadly threat to anybody was subsequently shot dead. Although the error isn’t sufficient to jail the officers, the damage they needlessly (even if “reasonably”) inflicted is real.

The inevitable flurry of anti-police propaganda would be unjustified, considering that it’s motivated by an honest, albeit deadly, error. But that doesn’t mean a $$$ settlement would be out of line.

    Civil liability, in this context, requires some act of negligence.

    If the officers’ conduct was reasonable, as concluded by the DA, then it wasn’t negligent.

    If there was no negligence, there is no civil liability.

    Granted, the standard for civil is lower than criminal, so the DA’s finding doesn’t control a civil adjudication.

    But so far there’s been no legal finding other than that the officers’ conduct was reasonable under the circumstances.

    Just because someone was hurt by your conduct doesn’t mean you owe them money.

    That’s not how this works. That’s not how ANY of this works.


    The officers did not make a mistake. They reacted to a perp who was looking for “suicide by cop” and acted to get what he wanted.

    ConradCA in reply to tom_swift. | March 4, 2019 at 8:25 pm

    What happened is that a criminal refused to obey the officers, acted as if he was aiming a firearm at the officers and was shot.

The diversity racket loses pace and face. Progress with a positive outlook.

Actually, the police officers should be the ones suing and they should be suing the school system, which Clark attended, and his parents for filing to adequately teach him how to react when confronted by armed police officers, thereby resulting in emotional trauma to the officers who shot him.

It is widely known, in American society, that the proper response, when confronted by a LEO, who is pointing a firearm at you, is to put your hands up above your head and freeze in place. We all know that, or should know that. Yet, if Clark was not deliberately attempting to get police to shoot him, much as the ISIS wacko in Phoenix, then he was not adequately trained to survive in society and those, whose responsibility it was to train him, should be held accountable.

    amatuerwrangler in reply to Mac45. | March 3, 2019 at 9:53 pm

    The scenario begins well before someone gets Roscoe dropped on them.

    First, when the cops show up DO NOT RUN. When someone does that they are telling the cops that they are the one they are looking for.

    Next, when the cop says: “stop: or “hold it”, one should stop. Whether or not you get arrested is immaterial because either way you will be alive in the morning.

    If one continues to flee they have set a scenario in motion that they can no longer control. If you realize that you have erred, all you have to do is stop and put your hands in the air and wait for further instructions. Its simple, even a caveman can do it.

    This kids parents failed him catastrophically. Many, many years ago. Don’t expwct anything out of the schools.

    “…when confronted by a LEO, who is pointing a firearm at you, is to put your hands up above your head and freeze in place…”

    Actually, the other way around. Freeze, then when told to put your hands on your head, say “I’m putting my hands on my head like you asked” and *slowly* do just that. Jerking your hands in an upward direction when a police officer is facing you is not an optimal reaction.

JusticeDelivered | March 3, 2019 at 9:35 pm

The same should have been done with Trayvon Martin and Mike Brown. An example needs to mde with those who think that they can get away with violating other peoples civil rights and circumventing due process.

Incidentally, I’ve been seeing Branca’s work referenced on ASP’s site, and I think I heard it in John Murphy’s stuff- both are some awesome youtube watching.

Being something of a brawler in my younger days I an so glad that my family go rich cashing in on my multiple deaths and consequent wrongful death lawsuits.

What were those b**tards thinking, killing be all those times. I was just a sweet child who needed clothes for school. Which could only be found in someone elses’ closet. Which explains the broken window.

Wait, what?? I haven’t been killed, not even once? Racists.

This story is from 2014. It could have been from four hours ago. The mind kinda sorta collapses after a certain point.

kali is actually pretty good what with protecting defenders from legal assault. Not because of any Kali statutory action. But legal precedent, mostly from the eighteenth century and has never been overturned.

As I see it, the problem is the entire culture which sees nothing wrong in what he did, STILL! I am almost 3 times as old as Stephon and I have never had the po-po point a gun at me. Once, while driving out to climb Mt Hood with some explorer scouts, I got stopped by the state troopers at midnight after deciding to take a different route to the mountain, which required a rapid lane shift to the exit. I took that as an opportunity to teach the kids how to handle a traffic stop. Window down, license out, hands in plain sight on wheel. Sort of the opposite of Fear and Loathing. The key is to not talk yourself into more trouble. A calm police officer is a friendly police officer. Squeeky clean doesn’t hurt either.

stephon clark:
Criminal recidivist
Illicit drug user
Domestic abuser with active felony warrant.
Possibly suicidal
Active criminal (auto burglary)
Resists, delays, obstructs peace officers in the performance of their duties.
Pulls object from pocket or waistband, confronts officers in highly mobile, highly dynamic scene.
Officers have minimal time to make what could potentially be a lifesaving, self defense decision.

We used to rely on the use of reason, logic, intellect, the law and due process to investigate then litigate these incidents

Now emotional is allowed to be injected and is fostered by persons such as mayor stienberg, negating all the above.

Sacramento Police Department is actually making policy changes because of this incident. Think about that. This is an incident in which the officers acted as any reasonable officers would have, as determined by a fair an impartial investigation. If that’s the case, why are policy changes necessary?

The big change that will come of this is officers are no longer going to care if your car or unoccupied buildings is in the process of being broken into. A whole slew of property crimes will also fall into the “no chase/no pursuit” policy. The police will take a report, but active property crime is going to cease being a direct intervention police matter.

It’s like hitting the lottery. I’ve seen survivor’s interviews and noticed considerable dejection after finding out the killer(s) had no resources.

Gremlin1974 | March 4, 2019 at 2:58 am

Great article as always, Andrew. Also, impressive work by the prosecutor.