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Why did a Missouri grand jury not indictOfficer Darren Wilson for killing MichaelBrown? Although others have blamed the
prosecutors or the bias of the grand jurors, the decision more likely reflects the failure of the law toproperly calibrate the permissible use of deadly forceby police officers when they attempt to arrest a sus-pect. This article explains why states should enact newlaws that better balance legitimate needs for police
safety with the rights of citizens to be free from theunjustified use of deadly force, using the Brown caseas an example.
The Killing of Michael Brown
The grand jury heard from many witnessesregarding Officer Wilson’s encounter with MichaelBrown. It is unknown which version the grand jurorsaccepted as true. Given their decision not to indict,however, it is fair to assume that they basically accept-ed Officer Wilson’s version of the encounter, whichcombined with the undisputed forensic evidence to thefollowing sequence:
First, Michael Brown stole a $15 packet of cigaril-los from a convenience store; a surveillance video ofBrown inside the store shows him grabbing a storeclerk who demanded that he pay. Officer Wilson testi-fied that he heard a police radio transmission aboutthe “stealing” while he was sitting in his parked policeTahoe SUV before he first encountered Brown and acompanion walking down the middle of the street.According to Wilson’s testimony, he instructed the twoto walk on the sidewalk, to which Brown respondedangrily. Wilson then noticed the cigarillos in Brown’sright hand and “that’s when it clicked for [Wilson]”that “these are the two from the stealing.”1
Second, after Brown disobeyed his request and con-tinued to walk in the street, Wilson backed his vehicle
B Y S T E V EN S A L K Y, J A COB S CHUMAN , AND K E I S HA N . S TAN FORD
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Lawful Use of DeadlyForce by the Police:What’s Wrong in Ferguson and Elsewhere
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Editor’s Note: The Aug. 9, 2014, killing of MichaelBrown, an unarmed black male, by a white police officer,resulted in protests across the United States that echoedimages last seen during the 1960s. Is there a way forpolice officers to protect public safety without killingunarmed suspects? Steven Salky, Jacob Schuman, andKeisha Stanford recommend that state statutes beamended to employ an “objective necessity” test in casesinvolving “deadly force” arrests.
North Charleston, S.C. — Unarmed Walter Scott is shot by policeofficer Michael Thomas Slager on April 4, 2015.
© REX Shutterstock | Newscom.com
into a position that blocked Brown fromcontinuing. According to Wilson, whenhe tried to exit his police vehicle, Brownblocked him by slamming the driver’sdoor shut and then punched himthrough the open window. At this point,Brown had, at least in Officer Wilson’smind, transformed from a jaywalker andsuspected petty thief into a felon whoassaulted a police officer.
Third, Wilson said that while he wasdefending himself with his left hand, hedrew his pistol from its holster with hisright hand. According to Wilson, Brown“immediately grabb[ed]” for theweapon.2 Wilson also testified that,although his right hand remained on thepistol, Brown was also able to grip thegun, “twist[] it and then [] dig it downinto” Wilson’s hip.3 Wilson also statedthat, at some point during the struggle,he (Wilson) discharged the weapon atleast twice. Wilson testified that hebelieved at least one bullet hit Brown,through the car door, in Brown’s hip.After firing the two shots, Wilson also“noticed blood on the back of [his(Wilson’s)] hand.”4 The forensic evi-dence confirms that Brown was shotduring the encounter at the vehicle, butonly in his right thumb. The other bulletfired by Wilson was found lodged in thedriver’s side door and did not, in fact,strike Brown.
Fourth, Brown fled after Wilsonfired his gun. Wilson then radioed forhelp, telling dispatch, “shots fired, sendme more cars”5 and exited his vehiclewith his gun drawn, chased Brown, call-ing for him to surrender and get downon the ground. According to Wilson, heknew that officers were “already in thearea for the stealing that was originallyreported,” so he thought it would take nomore than 30 seconds for backup toarrive.6 As established by the bloodstainson the road, Brown ran at least 180 feetaway from the SUV.
Fifth, Brown then turned and beganto move back toward the officer. Wilsontestified that, although he instructedBrown to “get on the ground,”7 Brown“kind of [did] like a stutter step to startrunning”8 and Brown’s “left hand goes ina fist and goes to his side, his right goesunder his shirt in his waistband and hestarted running at [Wilson].”9 Wilsonnever testified that he thought Brownhad a gun and, as noted earlier, Wilsonclaimed that Brown had unsuccessfullyattempted to wrestle his revolver awayfrom him. Nonetheless, as Brown movedin Wilson’s direction, Wilson shot atBrown several times, hitting him at leastonce insofar as Wilson could tell. Wilson
testified, “I know I missed a couple ... butI know I hit him at least once because Isaw his body kind of jerk orfl[i]nched.”10
Sixth, although Brown had beenshot, he continued to charge towardWilson. After Brown again failed to fol-low Wilson’s repeated orders to get onthe ground, Wilson fired several morevolleys. Wilson testified that he did notrecall how many times he shot at Brownor if he hit Brown every time, but Wilsonknew he hit Brown at least once more“because he flinched again.”11 Accordingto the autopsy reports, Brown was hit atleast five times before Wilson fired thefatal shots. The county autopsy reportfound three bullet entry wounds inBrown’s right arm and two in his chest.
Finally, when Brown was stillapproximately 160 feet away from him,Wilson fired two more rounds into thetop of Brown’s head. Brown immediatelycollapsed. The issue as to how Brownwas postured at the moment these fatalshots were fired will presumably long bedebated by the forensic experts. Was healready collapsed onto the ground? Washe falling down toward the ground withhis head tilted forward? Or was he, asWilson testified, crouched as if movingto tackle Wilson? Regardless, the evi-dence is undisputed that the final twobullets from Wilson’s service revolver(which was empty when the encounterwas completed) entered Brown’s brainand killed him instantly.
The Grand Jury’s Decision Not to Indict
These reconstructed facts, eventaken in the light most favorable toOfficer Wilson, provided probable causefor the grand jury to find that OfficerWilson had committed a state crime inconnection with the killing of MichaelBrown. It is not disputed that Wilsonfired the shots that caused Brown’s death.And it cannot be disputed that MichaelBrown was unarmed when he was shotand killed. Based on these undisputedfacts alone, there was “probable cause,” avery low legal standard meaning “[a] rea-sonable ground to suspect that a personhas committed ... a crime,”12 for a chargeof involuntary manslaughter, at a mini-mum. In Missouri, a person commitsfirst-degree involuntary manslaughter ifhe “[r]ecklessly causes the death ofanother person,”13 and commits second-degree involuntary manslaughter “if heacts with criminal negligence to cause thedeath of any person”.14
However, in order to indict Officer
Wilson, the grand jurors were instructednot only to consider whether probablecause existed to believe he committed acrime, but also to determine whetherprobable cause existed to believe thatOfficer Wilson neither acted in self-defense nor violated Missouri lawregarding the use of deadly force inorder to arrest Brown. The grand jurorswere instructed as follows:
[You must find p]robable cause to believe that he com-mitted the offense, whichmeans that he met all the ele-ments of that offense. . . . Andyou must find probable causeto believe that Darren Wilsondid not act in lawful self-defense and you must findprobable cause to believe thatDarren Wilson did not use law-ful force in making an arrest.And only if you find thosethings, which is kind of likefinding a negative, you cannotreturn an indictment on any-thing or true bill unless youfind both of those things.Because both are completedefenses to any offense andthey both have been raised inhis, in the evidence.15
In other words, the grand jurors hadto consider whether the officer’s com-mission of a crime was justified either bythe law of self-defense and/or by the lawgoverning arrests, such that any crimecommitted was excused.
Although it is not (and may neverbe) known why the grand jurors voted asthey did, it is unlikely that they conclud-ed Wilson acted in self-defense. The useof deadly force in self-defense, underMissouri law, required that OfficerWilson reasonably believed deadly forcewas “necessary to protect himself . . .against death, serious physical injury, orany forcible felony.”16 According toWilson’s own testimony, after Brownattacked him in his police vehicle, Brownfled the scene. Wilson testified that,when he looked up after firing the initialtwo shots in his vehicle, he “[saw] Brownstart to run and [Wilson] saw a cloud ofdust behind [Brown].”17 Officer Wilsonthen gave chase, with his semi-automaticrevolver drawn, and when Brown turnedback toward him, he shot at Brown atotal of 10 times, seeing Brown’s body“flinch” on multiple occasions whenmultiple bullets hit their target.18
Even accepting Officer Wilson’ssworn testimony that Brown was still
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moving in his direction, crouched as ifhe was going to tackle him (instead ofstumbling to the ground from theimpact of the previous gunshots), it isdifficult to understand how the grandjury could have concluded that Wilsonreasonably believed it was necessary tokill Brown in order to defend himself.When Wilson fired the fatal rounds,Brown was still more than half a footballfield away and Wilson knew he hadalready wounded a man who had neverdisplayed a weapon of his own. There isno doubt that Michael Brown was a bigman, standing 6 foot 4 inches andweighing approximately 285 pounds.But Officer Wilson, who held the onlygun, was also a big man, almost the sameheight as Mr. Brown and weighingapproximately 210 pounds. AlthoughOfficer Wilson undoubtedly had theright to use force to protect himself fromharm, he could lawfully use deadly forceonly if it was “necessary.” Remember, aswell, that every bullet Wilson firedwould have to meet that standard. Evenif Wilson’s use of deadly force was“objectively reasonable,” as theDepartment of Justice concluded indeciding not to indict Officer Wilson forviolating Michael Brown’s constitutionalrights, neither the bullets fired afterBrown turned back from fleeing nor the
final two bullets to the head seem “nec-essary” to protect Wilson from seriousbodily harm. Accordingly, self-defensewas an inadequate basis for the grandjury’s decision to vote against OfficerWilson’s indictment.
No, the more likely impediment tothe indictment was the instruction thegrand jury received concerning the justi-fiable use of deadly force to affect anarrest. This is where the grand jurorsprobably considered the evidence to fallshort of what they were told wasrequired to indict: that Officer Wilsonhad used unauthorized deadly force inorder to arrest Brown.
The ‘Arrest by Deadly Force’ Instruction
Missouri, like most states, has astatute authorizing law enforcementofficers to use deadly force to arrest afelon. The statute also imposes criminalpenalties for the unauthorized use ofdeadly force by the police. The statutestates, in pertinent part, that an officermaking an arrest is justified in usingdeadly force “[w]hen he or she reasonablybelieves that such use of deadly force isimmediately necessary to effect the arrestand also believes that the person to bearrested (a) [h]as committed or
attempted to commit a felony; or (b) [i]sattempting to escape by use of a deadlyweapon; or (c) [m]ay otherwise endangerlife or inflict serious physical injury unlessarrested without delay.”19
Based on Officer Wilson’stestimony, the grand jurors knew that heviewed Brown as a felon, since Brownhad assaulted him. (The grand jurorswere also told that Officer Wilsonpreviously told investigators that he wasarresting Brown because Brown hadassaulted him.)20 Thus, if the grandjurors followed the law of Missouri, theycould indict Wilson only if they foundthat it was not necessary for him to haveused deadly force to arrest Brown. Inother words, if they believed theevidence supported Wilson’s reasonablebelief that Brown had no intention tosurrender, then, under Missouri law,they could not vote to indicthim. Although there were witnesses whotestified that Brown was holding hishands up as if to surrender prior toWilson shooting him, the totality of theevidence supported Wilson’s testimonythat Brown was “charging” at Wilsonwhen he was shot dead. If the grandjurors believed Wilson’s version, thenMissouri law authorized him to usedeadly force.
As an aside, it is worth noting thatwhen the prosecutors instructed thejurors on the law to apply, theydetermined that the Missouri statute was,at least in part, unconstitutional. InTennessee v. Garner,21 the Supreme Courtruled that the use of deadly force by thepolice simply to stop a fleeing felonviolated the Fourth Amendment of theConstitution. Even though Brown wasnot fleeing when he was shot dead, theprosecutors apparently gave the grandjurors a revised version of the Missouriarrest-by-deadly-force law, which theybelieved to be more in line with Garner.Unfortunately, the revised instruction theprosecutors gave to the grand jurors doesnot appear in the transcript or othercourt files released to the public.
Should the ‘Use of Deadly Force to Arrest’ Laws Be Reformed?
A wide range of state laws existson the use of deadly force to make anarrest. Michigan and Alabama, forexample, still permit their police to usedeadly force if it is necessary to arrest afleeing felon, without reference to anyconsiderations related to the type offelony at issue or the danger the sus-pect poses to the officer or the public.22
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In these states, if a police officer wit-nesses even a nonviolent felony – adrug deal, a car break-in, or simply thepassing of a bad check – and can onlyapprehend the suspect by killing him,the officer is authorized to do so.
Connecticut, by contrast, limitsdeadly force to violent felonies, allowinga police officer to kill a suspect only if he“reasonably believes” it is necessary to“effect an arrest . . . of a person whom hereasonably believes has committed orattempted to commit a felony whichinvolved the infliction or threatenedinfliction of serious physical injury andif, where feasible, he has given warningof his intent to use deadly physicalforce.”23 North Carolina focuses on thethreat the suspect poses to the public,authorizing police officers to use deadlyforce only if they “reasonably believe”the suspect “is attempting to escape bymeans of a deadly weapon, or who by hisconduct or any other means indicatesthat he presents an imminent threat ofdeath or serious physical injury to othersunless apprehended without delay.”24
Washington combines both of theseapproaches but also effectively excisestheir “reasonableness” requirements,authorizing police officers to use deadlyforce against felons who either commit-ted violent crimes or who pose a threatto the public so long as they act “withoutmalice and with a good faith belief that[the use of deadly force] is justifiable.”25
The national debate stimulated bythe Michael Brown case should priori-tize achieving a better balance betweenpublic and officer safety and individualliberty than any existing state law gov-erning police use of deadly force. Suchlaws should authorize only (a) the objec-tively necessary use of deadly force, and
(b) only then to apprehend suspectedfelons who pose a significant ongoingthreat to the officer or the public.
The second half of this formulation –that deadly force be authorized only incases involving felons who pose a dangerto the public or to the arresting officer –should be uncontroversial. As the SupremeCourt observed in Garner: “Where the sus-pect poses no immediate threat to the offi-cer and no threat to others, the harmresulting from failing to apprehend himdoes not justify the use of deadly force todo so. It is no doubt unfortunate when asuspect who is in sight escapes, but the fact
that the police arrive a little late or are a lit-tle slower afoot does not always justifykilling the suspect. A police officer may notseize an unarmed, nondangerous suspectby shooting him dead.”26 In this respect, thedeadly-force rule in the Model Penal Codeis sensible. That rule provides that a policeofficer is justified in using deadly force tomake an arrest only if “the crime for whichthe arrest is made involved conductincluding the use or threatened use ofdeadly force” or “there is a substantial riskthat the person to be arrested will causedeath or serious bodily injury if his appre-hension is delayed.”27
The first half of the proposed rule –that the use of deadly force be “objectivelynecessary”– likely is more controversial. Itis, in effect, the inverse of the “good faith”rule applied in some states. While
Washington, for instance, allows policeofficers to use deadly force as long as theyhonestly believe it to be justified, andwhile Connecticut and North Carolinaauthorize deadly force so long as thepolice reasonably believe it essential tocatch the suspect, police use of deadlyforce should be excused only when it isactually necessary to make an arrest. Inother words, police officers’ subjectiveperspectives should not govern whetherthey are charged with committing acrime. Only homicides committed by thepolice that are objectively justified shouldbe considered lawful. This proposed stan-
dard would empower grand juries (andpetit juries) to determine if the officercommitted a crime, regardless of an offi-cer’s subjective belief that the use of dead-ly force was necessary.
It is worth noting that such a pro-posed limit on police officers’ ability touse deadly force to arrest would have noimpact on their right to invoke “self-defense.” The police, in other words,would still be able to argue that they“reasonably believed” that deadly forcewas necessary to protect themselves (orothers in the immediate area) fromdeath or serious bodily injury. Policingis dangerous work and the law shouldgive deference to law enforcementagents making split-second decisions toperceived threats from those seeking todo them serious bodily harm. Second,
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Only homicides committed by the police that are objectively justified
should be considered lawful.
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this formulation would have no impacton the actual charges brought againstan officer, nor the punishment the offi-cer would face if convicted. An officerwho reasonably believed deadly forcewas necessary to make an arrest wouldno longer have an “arrest” defense, butcould still face a lighter charge andreceive a lighter sentence based on hisor her subjective perspective.
An “objective necessity” test in casesof deadly-force arrests is appropriate forseveral fundamental reasons. First, whena police officer uses deadly force toapprehend a suspect, the burden shouldfall on the officer to demonstrate thatsuch force was required. The currentstate of the law in states like Missourifails to encourage the police who arewielding the firearms to think twicebefore shooting to kill. Second, the “rea-sonable belief” approach that prevails inmost states allows officers who useunnecessary force to avoid responsibilityby focusing on their subjective perspec-tives of the victim – consider OfficerWilson’s descriptions of Brown as a“demon” and “Hulk Hogan.” This makesit too easy to avoid indictment, especial-ly in cases with racial undertones.Finally, a law enforcement officer’s abili-ty to use deadly force to make an arrestshould not only be viewed as a matter of
practical police work, but also as a reflec-tion of the fundamental relationshipbetween those authorized to protect usand the suspect legally presumed to benot guilty. Whether the state is author-ized to deprive a civilian of his right tolife should not come down to the mentalstate of one particular police officer.Instead, the government should beallowed to kill only when such killingsare actually necessary, an issue thatgrand juries (and petit juries), as directrepresentatives of the populace, are bestpositioned to determine.
Conclusion
The killing of Michael Brown andthe subsequent failure to indict OfficerDarren Wilson have sparked a nationalconversation on how to ensure that thepolice can protect public safety withoutkilling unarmed suspects. One area inwhich that conversation can be turnedto immediate, concrete action is thereform of state statutes that govern theuse of deadly force to make an arrest.
Notes1. Grand Jury Tr. Volume V, 209:2-7
Sept. 16, 2014.2. Id. at 214:21.3. Id. at 215:2-6.4. Id. at 224:19-20.5. Id. at 226:13.6. Id. at 232:5-14.7. Id. at 227:5.8. Id. at 227:9-10.9. Id. at 227:10-13.10. Id. at 228:3-5.11. Id. at 228:17-18.12. BLACK’S LAW DICTIONARY (9th ed.
2009).13. MO. REV. STAT. § 565.024.1(1).14. Id. § 565.024.3.15. Grand Jury Tr. Vol. XXIV, 140:5-18,
Nov. 21, 2014.16. MO. REV. STAT. 563.031.2(1) (empha-
sis added).17. Grand Jury Tr. Vol. V, 226-10-11.18. Id. at 228:3-18.19. MO. REV. STAT. § 563.046.3(2) (empha-
sis added).20. Grand Jury Tr. Vol. XXIV, 133:21-25.21. 471 U.S. 1 (1985).22. See ALA. CODE § 13A-3-27(b)(1);
People v. Couch, 461 N.W.2d 683 (Mich.1990).
23. CONN. GEN. STAT. ANN. § 53a-22(c)(2).24. N.C. GEN. STAT. Ann. § 15A-
401(d)(2)(b).25. WASH. REV. CODE § 9A.16.040(3).26. 471 U.S. at 11.27. See MODEL PENAL CODE § 3.07(2)
(b)(iv). n
About the AuthorsSteven Salky is a partner at Zuckerman
Spaeder LLP, wherehe represents com-panies and individ-uals in white collarcriminal cases, regu-latory agency inves-tigations, and civillitigation. He hasextensive experi-
ence representing executives in securi-ties fraud investigations and parallel classaction cases.
Steven SalkyZuckerman Spaeder LLP1800 M Street NWSuite 1000Washington, DC 20036202-778-1800
Jacob Schuman is an associate at Zuckerman Spaed-er LLP. He workswith clients on arange of criminaland civil litigationmatters, govern-ment investiga-tions, and complexbusiness disputes.
Jacob SchumanZuckerman Spaeder LLP1800 M Street NWSuite 1000Washington, DC 20036202-778-1800
Keisha N. Stanford is a former associate atZuckerman Spaed-er LLP and currentlyan associate at Jen-ner & Block LLP. She primarilyfocuses on whitecollar criminal mat-ters, governmenti nve s t i g a t i o n s ,
securities litigation, and complex com-mercial litigation.
Keisha N. StanfordJenner & Block LLP1099 New York Avenue NWSuite 900Washington, DC 20001202-639-6000Fax: 202-639-6066
McAdoo Gordon &Associates, P.C.202-293-0534www.mcadoolaw.com
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