Ferguson, Missouri has calmed down. I’m just glad that peace has been restored for the citizens of that community and for the safety of my Brothers and Sisters in Blue.
News reports indicate that of 100+ arrests made of the looters and violent protestors, more than 30 had previous arrest records, and only seven were Ferguson residents.
What was lost in all the news coverage – matter-of-fact, I didn’t hear it uttered once during all the hours of reportage I watched, were the actual facts of the shooting and the legal aspects of police use of force.
Rush to Judgment?
Let’s see, as we examine the “core transaction” at the base of this encounter we see a police officer performing a lawful act, asking two males to get out of the street. Subsequent to that we see that this police officer was assaulted by one of the subjects within the passenger compartment of the vehicle. We don’t know if prior to this assault the officer became aware that these subjects matched the description of suspects who had just performed a robbery at a convenience store. We know the call was broadcast and that an officer on scene communicated a further description. We don’t know if Officer Darren Wilson heard those calls. We don’t know the severity of injuries suffered by Officer Wilson. He was subsequently treated for his injuries but we have yet to know the facts on the extent of those injuries. In Missouri assault against a law enforcement officer is a felony. Officer Wilson was within his rights and authority to apprehend Brown and arrest him for this assault. We know that during the assault by Michael Brown within the patrol car, Wilson’s gun was removed by him or the suspect and a shot was fired. St. Louis County Police have stated that the suspect attempted to disarm the officer. It that is in fact true, then Wilson has probable cause to believe that a violent felony has been committed involving the infliction or threatened infliction of serious bodily harm. Based on Tennessee v. Garner, if this is true, then Officer Wilson may use deadly force against Brown to bring him to justice.
Be that as it may, we know that Brown does not run away and is not shot in the back with his hands raised as his companion and another witness have claimed. He is shot six times after Officer Wilson yells “Freeze!” According to retired medical examiner Dr. Michael Baden, hired by the family to perform an autopsy, five of the wounds were non-fatal and only one wound, to the top of Brown’s head caused death. Only one of the wounds may have been incurred with Brown’s back to Officer Wilson and according to Dr. Baden this wound may have also been incurred with Brown facing Wilson.
What we don’t know is what events transpired after Brown assaulted Wilson in the patrol car and the final shot caused Brown’s death.
Was Brown stationary or did he rush toward the officer? We don’t know.
And all those talking heads on TV, don’t know either. So many have rushed to judgment on this case without solid information on what actually happened. Dr. Baden has even stated that six shots were excessive force and others have jumped on this bandwagon as well, but let’s examine the facts based on the totality of the circumstances.
Totality of the Circumstances
Michael Brown was a big man – even at 18 years old, he was 6’4” tall and 292 lbs. Officer Wilson looks nowhere near that size in the photos we’ve seen. This size difference is called “disparity of force.” Certainly a man of any size can punch or kick a police officer to death. Whether skilled or unskilled, suspects have killed officers as well as seriously injuring other officers from an empty-hand beating. These types of incidents are called, “life threatening weaponless assaults.” So the media’s notion that Brown was “an unarmed teenager” is a simplistic assessment because Brown was certainly physically capable of beating Officer Wilson unconscious or causing his death. How ferocious was Brown’s attack in the police vehicle? We don’t know.
If Michael Brown attempted to disarm Officer Wilson, then the police officer was within his legal rights to shoot Brown to stop him. A police officer cannot afford to allow a violent criminal suspect to take his handgun from him. If this attempted disarm took place then it is indicative of the violent intent of Michael Brown. Officer Wilson could reasonably assume, based on this attempted disarm, that any other police officer or citizen was at deadly risk from Brown, therefore deadly force could be used to stop him.
On a police use of force case in which I worked as an expert in similar circumstances (unarmed robbery suspect resists arrest, attempts to disarm officer and the officer responded by shooting the suspect) and was subsequently charged with felonious assault, I took a PACT timer to the range and attempted to recreate the times involved. Here’s what I was able to do:
First String: Second String:
.72 First Shot .60
.83 2nd .72
.97 3rd .83
1.08 4th .94
1.22 5th 1.06
1.33 6th 1.17
Based on research conducted by Ray Rheingans and the late Tom Hontz, the average time it takes for an adult to travel certain distances are:
Run 15 feet 1.28 Seconds
Run 20 feet 1.57 Seconds
Run 25 feet 1.79 Seconds
Run 30 feet 2.06 Seconds
So we can compare the times to fire six rounds to the time it takes a subject to run as far as 30 feet. On average reaction time is around half a second. So if Michael Brown charged Officer Wilson then it would take Wilson a half second to react and around one and one half second to fire six rounds. Michael Brown could have run 30 feet within this same two second period.
Segmentation or the Decision Point Approach
Police use of force, per the Supreme Court case Graham v. Connor, is to be objectively reasonable based on the totality of the circumstances at the moment force is used. The Supreme Court stated that “force is not to be judged in 20/20 hindsight…” Other factors to be considered are: Severity of the crime; Whether the suspect posed an immediate threat to the officer or others; Whether the suspect was actively resisting or attempting to evade arrest by flight.
Some, including the Department of Justice, wish to examine the officer’s tactics prior to the engagement. DOJ attorneys have written in their investigative report on the Portland Police Bureau (September, 2012): “Using a focused ‘decision-point’ approach (also known as segmentation) to analyze each use of force incident, we considered each point when an officer made a decision that may have an effect on subsequent events, as opposed to focusing solely on the final decision to use force. The decision-point process allows the police supervisor to conduct more intensive and comprehensive reviews of the reasonableness of a particular use of force incident and to identify and address any flawed tactical decisions and training opportunities.”
In common parlance this would be “Monday morning quarterbacking,” certainly it is the 20/20 hindsight which SCOTUS warned us not to engage in “the quiet sanctuary of a judge’s chambers.”
In one case the DOJ uses to support this “segmentation or decision point approach,” Plakas v. Drinski, the Court stated: “We do not return to the prior segments of the event and, in light of hindsight, reconsider whether the prior police decisions were correct. Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer.”
In another case the DOJ uses to support segmentation Dickerson v. McClellan, the 6th Circuit Court of Appeals stated: “Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within the constitutional limits, society praises the officer for causing.”
We don’t know all the facts and cannot at this point make a proper assessment. We can, however, state that Michael Brown was a violent subject who had just committed a felony whether this was known by the officer or not. He committed a felony assault on a police officer, may have attempted to disarm the officer and resisted arrest. He had multiple opportunities to comply with the officer’s lawful authority and failed to do so and was subsequently shot and killed.
A proper use of force investigation examining the facts will determine if that shooting was a justifiable homicide or excessive use of force and that investigation has not yet been concluded.
Kevin Davis is the author of Use of Force Investigations: A Manual for Law Enforcement published by Responder Media and available from Amazon.com and other booksellers.
Portland Police Association concerns on the DOJ investigation and recommendations:
San Jose “Independent” police auditor calls for segmentation: