There is yet another outburst of outrage propagandized into being by the racial grievance industrial complex, this time over the acquittal this past Friday of East Pittsburgh (now former) police officer Michael Rosfeld for the shooting death of Antwon Rose (in feature image, above). But for the fact that Officer Rosfeld is white and Rose is black this shooting would never have made national headlines.

The fundamental justification for Officer Rosfeld’s shooting of Rose is that of the legal doctrine of the “fleeing felon.” As is the case with many use-of-force doctrines, the fleeing felon doctrine is badly misunderstood by much of the self-defense community.


The Fleeing Felon Doctrine: Historical Context

The fleeing felon doctrine is particularly commonly misconstrued by that portion of the self-defense community that most desperately wishes use-of-force law was what they’d like it to be rather than what it actually is (a shockingly common sentiment, in my experience).

The historical application of the fleeing felon doctrine was rather straightforward: if a suspect was a felon, or reasonably believed to be a felon, and fleeing from apprehension, then deadly force may be used to effect their arrest.

Easy-peasy, right? Wrong.

The historical meaning of the fleeing felon doctrine is, indeed, correct—but only when considered in the proper historical context.

When the fleeing felon doctrine was originally developed, felonies were few and far between, they were invariably violent and life-threatening (or treasonous and King-threatening), and thus they were typically the small set of crimes that could be punished by death.

In other words, they were crimes that we today would describe as creating a substantial risk of imminent death or serious bodily injury to innocents (or to the body politic).

Non-Violent Felonies Do Not Qualify

Today, sadly, the number of felonies has grown to a figure beyond counting. Further, the vast majority of modern felonies do not create a substantial risk of imminent death or serious bodily injury to innocents.

Car theft, for example, is typically a felony, largely because of the dollar value of the item being stolen, but if no innocents are, or are likely to be, engaged in the process it is not a crime that creates a substantial risk of imminent death or serious bodily injury to innocents.

As an even more extreme example of a non-violent felony, consider that in many jurisdictions writing a bad check over a certain dollar amount constitutes a felony crime. Surely no one would argue, however, that check kiting constitutes a violent felony.

To put it another way, the fleeing felon doctrine in historical context could afford to simply say “deadly force can be used to apprehend a fleeing felon” without needing to specify that the felony in question must be a violent felony, because historically all felonies were violent felonies. Nevertheless, the “violence” facet was critical to the justification for the use of deadly force in making the apprehension.

As noted, today we’ve broadened the scope of felonies to include many crimes that are not inherently violent in nature. The fleeing felon doctrine, however, has not similarly broadened in scope—it remains limited to those felonies that are inherently violent.

US Supreme Court: Tennessee v. Garner

I’ve written frequently about the tendency to teach the seminal US Supreme Court decision of Tennessee v. Garner in an excessively broad manner, but the decision does a good job on the issue of the fleeing felon doctrine, writing:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

By the way, if you’ve never read Garner, or not lately, you can find that decision at lawofselfdefense.com/garner.

So, in our modern era, the mere fact that a fleeing suspect is reasonably believed to have committed merely a felony is not sufficient to trigger the fleeing felon doctrine such as to justify the use of deadly force to apprehend the suspect.

In order for the fleeing felon doctrine to justify the use of deadly force in apprehending a suspect in the modern era, it is additionally necessary to have a reasonable basis for believing that the suspect presents an immediate threat of deadly force harm to innocents; an excellent, reasonable basis for such a belief is that the felony that the suspect is reasonably believed to have committed is itself an act involving a threat of deadly force to innocents.

All the Facts Matter, Not Just the Propagandistic Facts

And that brings us back full circle to the shooting death of Antwon Rose and to the acquittal of Officer Rosfeld for shooting and killing Rose.

The racial grievance industrial complex has, of course, a vested interest in propagating the false racist narrative that racist white police officers, and racist white institutions generally, are killing innocent young black men without accountability. Any time there’s a use-of-force incident between a white officer and a young black male suspect in which the suspect dies, we can expect the racial grievance industrial complex to partner with the fake news media to carefully select only those facts that support their racist narrative, and to conceal any facts inconsistent with that narrative.

It is for precisely this reason that so many members of the public are genuinely shocked upon learning of acquittals in many of the most prominent of these police-use-of-force cases, such as that of Trayvon Martin (not a police shooting, but otherwise the same propaganda model), Michael Brown, Eric Garner, and virtually every other instance of police-on-suspect deadly force to make the news. Indeed, I would suggest that such cases don’t make the news on any large scale unless they contain facts suitable to this propagandistic purpose. They’re shocked because everything they’ve ever heard about the case was consistent only with a verdict of guilty.

The verdict of not guilty, however well supported by the totality of the evidence, therefore appears an outrageous injustice simply because they’ve been lied to continuously for the weeks or months leading up to the verdict.

Debunking the “Antwon Rose” Propaganda

In the case of Antwon Rose the propaganda narrative is that Officer Rosfeld shot a fleeing Rose in the back even though Rose was not a threat to either the officer or anybody else. They buttress this propaganda by noting that no gun was found on Rose’s body afterwards.

Of course, the fact that no gun was found is legally irrelevant to Officer Rosfeld’s justification. What matters is not whether Rose actually had a gun on his person, but rather whether Officer Rosfeld had a reasonable basis to believe that Rose had a gun on his person.

Similarly, it does not matter whether Rose was actually a substantial risk of deadly force harm to Officer Rosfeld or others, but rather whether Officer Rosfeld had a reasonable basis to believe that Rose was a substantial risk of deadly force harm to Officer Rosfeld or others.

In this instance the facts not widely reported are more than sufficient to support the proposition that Officer Rosfeld had a reasonable factual basis to believe both that Rose was armed and that Rose was a substantial risk of deadly force harm to Officer Rosfeld and others, in particular on the basis that the felony Rose was believed to have committed was itself an act involving a threat of deadly force to innocents.

For example, considerable effort must be applied to Google search results of “Antwon Rose” before one learns that Rose had shortly before being engaged by Officer Rosfeld been involved in a drive-by shooting in which a victim had been shot in the stomach. (The driver of the car in which Rose was riding would be convicted of that criminal shooting.) Thus, Rose had shortly before been involved in a criminal act involving the use of deadly force against another.

Further, the car in which Rose was riding had apparently received return fire, as the rear window was shot out. This would naturally make the vehicle stand out to searching law enforcement, as it stood out to Officer Rosfeld.

Officer Rosfeld, therefore, had probable cause to apprehend Rose as a suspect in the drive-by shooting, and his verbal commands to Rose to comply with that apprehension were lawful police orders. Rose refused to comply with those lawful orders and instead attempted to flee. As he fled, Officer Rosfeld perceived Rose to have a weapon in his hand.

That this perception would turn out to be mistaken is legally irrelevant, so long as the perception was reasonable under the circumstances. Given that Officer Rosfeld had good reason to believe that Rose had just been an active participant in a shooting, that Rose was refusing to comply with lawful police orders, and that Rose was fleeing lawful apprehension, and the incredibly brief time frame in which Officer Rosfeld had to make his use-of-force decision (2-3 seconds), there existed reasonable cause to believe that Rose continued to be armed, and a perception that Rose held a weapon in his hands would hardly have been unreasonable.

Under these circumstances, it is not hard to understand how a jury could conclude that Officer Rosfeld had a reasonable basis for believing that Antwon Rose qualified as a fleeing felon in the traditional sense—a felon who had just committed an act of deadly force violence, who was fleeing lawful apprehension, and continued to represent an immediate threat of deadly force violence to others (particularly to the officers seeking to apprehend him). The use of deadly force by Officer Rosfeld in seeking to apprehend Rose would thus be lawfully justified, his conduct no crime, and an acquittal the only appropriate verdict.

It is noteworthy that the jury arrived at this verdict of acquittal in a mere three hours or so. My legal experience suggests that deliberations of such brevity indicate that the verdict wasn’t even a close call.

Note that this acquittal hasn’t prevented Officer Rosfeld from having his professional and personal life largely destroyed. He’s for months been portrayed as a racist white cop who shot an unthreatening, fleeing young black man for no good reason. Indeed, that demonstrably false portrayal continues to be driven by the racial grievance industrial complex even now, as “no justice, no peace” protests continue even after the acquittal.

It’s shameful and contemptible. But then, it always is, and it nevertheless continues.

Pro-Tip: How Not To Get Shot, Killed by Police

Before we part company, I once again offer my pro-tip to everyone reading this: If you don’t want to get shot and killed by the police, do not give the police good reason to believe that you are an imminent deadly force threat to them or others.

As always, in closing, remember: You carry a gun so you’re hard to kill. Know the law so you’re hard to convict.

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

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[Featured image of Antwon Rose is a screen capture of video played on CBS Evening News program “Inside Edition” on March 25, 2019.]

 
 
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