Supplemental: Fact-checking Lawrence regarding the shooting!

THURSDAY, AUGUST 21, 2014

Cable star’s sense of the law: Did Darren Wilson shoot at Michael Brown while Brown was trying to flee?

We don’t know the answer to that question. As the New York Times has reported, some witnesses have said that he did.

Last night, Lawrence O’Donnell savaged the Times’ front-page report, calling it “a terribly misleading, badly crafted story about witnesses to the killing of Michael Brown.”

In the passage shown below, O’Donnell described the report’s “most egregious passage”—a passage in which a witness describes Wilson shooting at Brown as he fled.

We discussed this passage in our previous post. Now that O’Donnell’s transcript is up, we can show you exactly what he said.

Lawrence’s scorn for the Times’ reporting was strong. In the highlighted passage, he states a legal opinion:
O’DONNELL (8/21/14): Then there is the most egregious passage in the New York Times article. Officer Darren Wilson’s lawyer could not have written it better. It begins with what [eyewitness] Michael Brady says he saw.

Quote, "He said he did see a police officer get out of the patrol car and start walking briskly while firing on Mr. Brown as he fled. What happened next could be what the case turns on."

What happened next? That could be what the case turns on? There’s the New York Times dismissing the first shots that the officer fired after getting out of the car as Michael Brown fled. That doesn’t matter in this New York Times account.

Law enforcement sources that Times reporters were working with tricked them into thinking that what happens after that, what happens next, is what the case turns on. Not realizing that the shots fired while Michael Brown is fleeing, those shots, that is an illegal use of deadly force. That is a crime. The police officer had no legal right to shoot at Michael Brown while he was fleeing.
O’Donnell asserted throughout the segment that the Times had been “tricked” by police sources. That’s always possible in some sense. In our view, O’Donnell seems to be getting ahead of his knowledge when he makes those statements.

At any rate, O’Donnell makes a legal claim in the highlighted passage. He says Wilson committed a crime if he fired at Brown while Brown was fleeing.

This morning, we said we suspected O’Donnell was right, although we noted that he didn’t cite any state law to that effect. We still don’t know how to judge this matter, but we’ve been directed to a post at Vox which addresses this very question.

The piece appeared last week. Among other topics, Dara Lind discussed the legality of shooting at a fleeing suspect. We’ll post the entire passage in question:
LIND (8/15/14): The legal standards governing justifiable force

In the 1980s, a pair of Supreme Court decisions set up a framework for determining when deadly force by cops is reasonable. Those decisions have governed how state laws are applied. Furthermore, many agencies simply use identical standards to the Supreme Court's for their own use-of-force policies—though some departments don't let officers use deadly force even when the Court decisions say they'd be allowed to.

Constitutionally, “police officers are allowed to shoot under two circumstances,” says Klinger. The first circumstance is “to protect their life or the life of another innocent party”—what departments call the “defense-of-life” standard. The second circumstance is to prevent a suspect from escaping, but only if the officer has probable cause to think the suspect's committed a serious violent felony.

The logic behind the second circumstance, says Klinger, comes from a Supreme Court decision called Tennessee vs. Garner. That case involved a pair of police officers who shot a 15-year-old boy as he fled from a burglary. (He'd stolen $10 and a purse from a house.) The Court ruled that cops couldn't shoot every felon who tried to escape. But, as Klinger says, “they basically say that the job of a cop is to protect people from violence, and if you've got a violent person who's fleeing, you can shoot them to stop their flight.”

Some police departments' policies only allow deadly force in the first circumstance: defense of life. Others have policies that also allow deadly force to prevent escape in certain cases, within the limits of the Supreme Court decision.
Personally, we’d prefer that police officers shoot at people as rarely as possible. We’d also prefer that Lawrence display less absolute certainty about a wide range of matters.

We don’t know if Officer Wilson shot at Brown while Brown was fleeing. If he did, would it be legal under that “second circumstance?”

We don’t know the answer to that. On a journalistic basis, assembling the facts is hard.

71 comments:

  1. If xrays, which were provided to the prosecutor recently, confirm that Brown fractured Wilson's eye socket as claimed... There's your serious violent felony.

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    Replies
    1. Don't rush to judgement on that. xrays can't confirm anything other than the socket's damage.

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    2. Beyond that point, it seems to be pretty well established that Brown and Wilson struggled for Wilson's gun, and that the gun discharged. Depending on the details of how that may have gone down, that too could be a serious violent felony -- possibly even including attempted murder.

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    3. Assuming that Brown beat Wilson, grabbed his gun with no provocation, you may be right, however that hinges on which testimony to believe. So by itself the injury may still not create a legal justification for Wilson shooting Brown. Instead it would depend on what happened at the beginning and whether Brown truly attempted to give up or did he 'charge' Wilson and give the officer a reason to fear for his life or the life of others. The law on shooting while fleeing needs to be looked at carefully because there are many conflicting reports on how the event began and proceeded. This Newsweek article lays out some considerations based upon these conflicting reports.

      How Strong Is the Legal Case Against Darren Wilson?

      At this point we just don't know for sure and anti/pro police bias should be set aside to await a grand jury and perhaps a trial to determine Wilson's guilt or innocence here

      Joe

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    4. Any time you have to use the word "seems," then "pretty well established" are not words a logical person uses to follow it.

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    5. The eye socket doesn't have to be fractured for the attack to be a violent felony.

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    6. The eye socket injury doesn't have to have been caused by felonious acts by Brown if the door struck the civilians and bounced back in the officer's face as has been described.
      Unless you are promoting Southern justice and acting before all facts are known.

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    7. 538: are you a prosecutor experienced in charging felonies in Missouri?

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    8. Shoving a door at a police officer is a violent act if it causes injury, intentional or not.

      If you are in a bar and you shove someone off a barstool and they fall and hit their head and die of a head injury, you will still be charged with manslaughter, because your violent act of shoving resulted in that person's death. Tragic and stupid but still a crime.

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  2. A Few Lessons Learned from Ferguson

    Parents must give kids "the talk":

    Do tell them not to steal stuff. Especially on camera.

    If you steal stuff, don't walk home down the middle of a street.

    If walking down middle of street with stolen stuff, obey cop directions to get on sidewalk rather than waiting for altercation of any kind.

    If running from bullets, try not to be 6'4" and weigh 300+!


    Police Must Give Themselves the Talk:

    If you have bought cameras for cars and officers, install immediately.

    If you patrol alone and have two "suspects" on foot, call for backup.

    If your force resembles the days when the majority of your current population was not allowed to stay in town after dark, don't assume you are viewed as "protectors."

    If one of your force kills someone, show a degree of sympathy and openness from the moment the body is lying in the street. Especially if the above condition applies.

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    1. The majority of Ferguson's current population were not alive when the sunset laws were in force.

      It seems a bit presumptuous of you to make up a set of ad hoc rules when there exists a field of police science with research on what works. I also doubt whether you appreciate the extent to which young men can terrorize residents of neighborhoods, and I think you have no idea whether police are viewed as protectors when their intervention does not result in anyone's death.

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    2. Go watch the video of Brown stealing the cigarillos and tell me how much sympathy we should feel for him, as opposed to the convenience store clerk he shoved around.

      Notice how the clerk goes out the door at the end, then rushes back in again, then waits and exits again. Why do you suppose that happened? What do you think Brown did? Now imagine Brown thinking such tactics will work on a white cop.

      My sympathy is with Wilson and his family and the citizens of Ferguson whose businesses and homes have been unsafe due to looting rioters causing mayhem in the name of "protest." They are the equivalent of the swaggering bully we see in that video.

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    3. What about all those "talks" parents have with their kids, regardless of race? If you tell your kids that everything bad that happens in the world is because of race, and that you are entitled to special treatment because of race to make up for the injustice, then you get entitlement -- like walking down the center of the street and not moving for anyone.

      The talk needed by Brown should have included:

      1. Be nice and don't hurt other people.
      2. Don't steal
      3. Don't lie
      4. Just because you're bigger doesn't mean you can push others around.
      5. If you don't get your way, don't throw a tantrum.
      6. Use your words.
      7. Don't take drugs.
      8. Don't hit.
      9. Don't grab toys from other kids (or cigarillos from adults).
      10. Don't take things that don't belong to you.
      11. If an adult asks you a question, politely answer.
      12. Don't walk in the middle of the street.
      13. Be polite to strangers, including store clerks, teachers or cops.
      14. Don't be smart-mouthed.

      Generalizing these to interactions with the police seems like a no-brainer.

      Eventually we will find out why Brown graduated from Alternative High School instead of regular school. We will find out what the warrants were for that motivated him to run from the officer. We will find out he was no "gentle giant." Eventually we will find out why he was "visiting" grandparents with his friend and not living at home.

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    4. "there exists a field of police science"

      There exists a field of "political science" as well.

      There are many academic disciplines which cloak themselve in the mantle of sciene which have no business doing so.

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    5. Anti-intellectualism is alive and well.

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    6. Yes, as is stupidity, which your comment amply demonstrates.

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    7. The dramatic decline in crime is partly demographic but also due to more effective anti-crime and police methods. That is because there is a field of police science that develops and shares knowledge. To deny this is stupid.

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    8. 9:17 PM So, Mr. Brown's life is worth less than a box of cigars? Interesting. The reason you should have more sympathy for Brown than the store clerrk is that the store clerk is still alive and Brown was executed by a thug with a badge. You're pretty warped, you know that, right? And a bigoted POS.

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    9. At the time of the shooting, Brown's life was worth less than the officer's he attacked. Such is the law for reasons anyone with any moral intelligence understands.

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    10. Ah, 11:13. You should have noted the new Paradigm!

      Police Science! It's not mere Law Enforcement. It's Better than Criminology. It's SCIENCE.

      Tell me 11:13. In Police Science do they teach that the results of both good and bad police science can put the
      test subjects and the experimenters themselves in the hands of Mortuary Science? Or is that just an old wives
      tale from the days of Cops and Undertakers?

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    11. If you look at the convenience store video, Brown didn't steal a box of cigars. He stole handfuls of cigarillos which he grabbed after some exchange with the clerk. He handed the box of cigars to Johnson who then put them back on the counter as Brown stalked out of the store without paying for the cigarillos in his hands (after first scooping them up from the floor where he had dropped them). When the clerk ran after him, most likely to get payment for the cigarillos, Brown put one hand around his neck (Darth Vader style) and shoved him into a rack of merchandise and continued out of the store. When the clerk followed, Brown came back into the store aggressively backing down the clerk who hastily backed up, then turned and went out again. The clerk continued outside after him. Then we see the clerk hurriedly run back inside, wait a few seconds, then go out again, still pursuing Brown. We cannot hear anything that was said -- there is no sound on the video. The clerk puts his hand in his pocket several times. The stealing and the aggressive actions of Brown are obvious, as is the fact that he did not pay and did take cigarillos. He did not take the box of cigars. Johnson did nothing but watch and follow.

      Brown was a bully and a thief. And you say the clerk should be glad he is still alive? Why? Because it is Brown's right to take whatever he wants and to intimidate anyone who objects? Because it is the clerk's job to risk his life every time he goes to his store?

      Cops exist to protect non-violent people (like the clerk) from violent bullies like Brown. It is Brown's misfortune that he decided he didn't have to treat the cop with respect and midjudged the degree of force the cop was willing to exert to draw a line with Brown.

      Note that Johnson was not shot. A cop who was intent on murdering black kids would surely have shot the remaining witness to his actions. Or would have shot at both kids, not focused on one of them. If bigoted cops are truly able to kill black kids with impunity, why not shoot Johnson too? He ran too. He was walking in the street too. What did Brown do differently than Johnson? Instead, the cop left Johnson without a scratch to tell a self-serving story that may damage Wilson's career.

      Johnson says the cop cursed at them while telling them to get back on the sidewalk. He doesn't say the cop called them bigoted names or used the n-word. He doesn't say the cop abused them beyond trying to get them off the street. He says the cop wanted them back on the sidewalk. That doesn't sound like a bigoted cop abusing his badge. It sounds like a cop trying to communicate with a stupid kid using the kind of language many kids hear and use all the time, the kind of language a parent might use with a stubborn son to show him he means business. Brown didn't listen.

      Does Wilson have the right to tell kids they cannot walk in the street? Yes, it is part of his job description. Can the cop place his car close to the kids in the street and open his door in a way that obstructs their walking, to illustrate the danger of being in the street instead of on the sidewalk. Yes.

      Do the kids have the right to shove the door back at the cop while arguing about whether they can walk in the street? No. That is assault, particularly if it injuries the cop. It is an aggressive act toward anyone but especially toward a figure of authority whose job it is to enforce laws. Johnson says that is what Brown did.

      Why did Wilson draw his gun as he was getting out of the car? That is what officers do, even during routine traffic stops. They draw their guns because they do not know the nature of the situation and need to be very careful. Clearly Wilson identified Brown as the instigator, the dangerous one of the pair. Johnson was essentially a bystander, just as he was during the convenience store theft. What did Brown do to be identified as the dangerous one?

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    12. Walking down the center of a street, or petty thieving, or any number of annoying acts commited by teens, can be interpreted as acts of petty self-assertion motivated by a sense of powerlessness accompanying minority status in our society. Should such actions be tolerated on that basis? They represent a misunderstanding on the part of the teens displaying them, that they are protected and can engage in such behavior without consequence. They reflect an attitude that the boundaries and rights of others do not matter, that other people do not have feelings or concerns, that others should make way for them. Entitlement is a good word for it. How did some black kids develop such a sense of entitlement?

      I think that is the racial question that needs to be debated -- not law enforcement issues or racial issues. It is too easy to just label the cop a bigot and shrug off the behavior of the teen who was shot, once again, because he was black. Where I live, white kids get shot too, when they behave in ways that threaten cops. When the teen is white there is no handy explanation such as racism to explain it. Digby blames it on tasers. I think it is a mental health issue. But maybe that is a catch-all phrase that just means some people cannot conform their behavior to the expectations of society and society (embodied in the poor slob with the badge) is more powerful than the individual. That is the price we pay for the relative peace those officers ensure the rest of the time, for most people. I do not believe black people are being singled out for extra special law enforcement. I think they are claiming rights they think white people have but that, in reality, no one has. White people know they cannot mouth off at cops and don't try to walk down the middle of the street. When they steal from convenience stores, they get reported to the police and pay fines or go to jail. Even when they are Winona Ryder.

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  3. "We’d also prefer that Lawrence display less absolute certainty about a wide range of matters."

    Me too, so you won't fall for them.

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    Replies
    1. Sarcasm doesn't become you. Go back to legal commentary.
      You are so much better qualified for that.

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  4. Don't forget where conflicting testimony occurs, tie goes to the cop at trial.

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    1. Cops are trained observers with experience in the scenarios in which crimes occur, so why not?

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    2. Sorry, but police ranks are as littered with brutal people and criminals as any other field of human endeavor. More in many cases.

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    3. Nothing in the past of this officer suggests he is such a person.

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    4. Nothing in the comment mentioned any specific officer.

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    5. The comment seems to imply that no cop's word should be trusted because some unspecified number of cops may be brutal people.

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    6. Your response "seems to imply" you read things into comments which are not there.

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    7. I think the meaning was there and it is dishonest to pretend it wasn't.

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    8. "Cops are trained observers with experience in the scenarios in which crimes occur, so why not?"
      Acutally, cops are trained liars and will say anything to save their own ass as well as that of their brothers in blue. That's been demonstrated time and again.

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    9. You seem to imply you think. That is dishonest.

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  5. What will mothers tell her children?

    Brandi Murry’s little boy just wanted a cupcake.

    Antonio Smith, her outgoing and “never quiet” 9-year-old son, called to ask his mother for the treat Wednesday afternoon.

    Murry said she was on her way home from work. And she denied her son’s request.

    But Antonio got upset, Murry said. And her 12-year-old son called at 3:45 p.m. to say Antonio had fled the family’s new apartment in the 1100 block of East 73rd Street.

    Twenty minutes later, Chicago police found Antonio behind a home in the 1200 block of East 71st Street. They said he had been shot multiple times.

    Antonio was pronounced dead at Comer Children’s Hospital at 5:13 p.m., according to the medical examiner’s office.

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    1. Please explain the point of this comment.

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    2. I suspect it was similar to the point made by Don Saluchi at the meeting of the heads of the Five Families.

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    3. I think the point is cops ain't killing innocent black youth but another group is.

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    4. He was probably shot by a cop.

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    5. No he wasn't, 11:58.

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  6. If you assume Wilson was a white racist and brutal person who used his position as a police officer to abuse others, then it makes sense that he might have executed Brown for no reason in cold blood, after harassing him first. If you assume Wilson was a competent officer carrying out his duties and not a brutal or sadistic person, then the events described by Johnson make no sense at all and are even unimaginable. The only way the facts can be explained under that assumption is if Brown threatened him and presented an ongoing danger that needed to be stopped. That is consistent with Wilson's actions if Wilson is assumed to be legit. If we make similar assumptions about Brown, it makes no sense that a gentle, law-abiding kid would provoke an officer into shooting him by doing nothing but complying politely (as his parents suggest). It also makes no sense that a brutal cop would pick on the largest target he could find. But it makes little sense such a kid would be walking in the street or refuse to get on the sidewalk either. It makes more sense if we assume Brown liked to exert his power himself by flouting rules and authority and did so in this situation. That makes it less likely he raised his arms and complied and was shot for it, than that he challenged the officer and created a dangerous situation that escalated into tragedy for all. So I do not believe Wilson was a brutal out-of-control cop or that Brown was an angel or just being a foolish teen. I think Brown defied Wilson, Wilson tried to assert his authority and was attacked, Brown resisted arrest and was shot. I think Wilson did his best under the circumstances. I suspect we will learn later than Brown was under the influence or a more aggressive teen than anyone has been willing to admit. Even brutal cops don't murder unarmed teens in front of witnesses at noon. That is just not a credible story, even in a racist society.

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    1. You are a person of many thoughts and beliefs.

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    2. Stop making sense. It's not progressive. In fact I think this entire comment is a microagression.

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    3. "Even brutal cops don't murder unarmed teens in front of witnesses at noon. "
      You lead a very sheltered life. They certainly do. Cops continually act with impunity because are so rarely held accountable. Wilson will get off, and the lesson will spread forth once again: kill anyone you want, you'll be fine.

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    4. The lesson will spread, "Don't attack police officers after you've committed a violent robbery"

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    5. It seems Brown was celebrating a victory lap of sorts after having just strong armed the store clerk. At some point the cop advised him to get out of the middle of the street and onto the sidewalk, Michael, having had his tough guy buzz harshed by the inconsiderate cop, somehow got close enough to land a donkey punch to the face. The cop may have fired out of anger, fear, or both. No doubt the cop had to have been dazed if not confused from the trauma of having his eye socket blasted out. This shooting probably would not have happened had Michael not foolishly punched a police officer in the face.

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    6. Well, no need to investigate further. You got it all figured out from the comfort of your mother's basement.

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  7. Well, fellas, Michael Brady, the person who supposedly "contradicts" the other witnesses, just said on O'Donnell's show that Brown was doubled over and falling to his knees as if he had been hit in the abdomen when Wilson walked toward him and fired "four or five" more shots from a distance of about 20 feet.

    Now go check the medical examiner's report.

    It would be nice to check what Brady said against the incident report, but O'Donnell also reported that there is NO INCIDENT REPORT!

    Not from Wilson, not from any officer who responded to the scene. No witnesses identified for further investigation, not reports from statements from Wilson at the scene. No incident report at all.

    Good grief!

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    1. Be patient. These things take time. Wilson has been interviewed already by both police and FBI, as have many witnesses.

      Why is everyone in such a hurry?

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    2. Thing is, he wasn't shot in he abdomen.

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    3. Emphasis added for the willfully ignorant:

      ". . . Brown was doubled over and falling to his knees AS IF he had been hit in the abdomen when Wilson walked toward him and fired "four or five" more shots from a distance of about 20 feet."

      And I'll repeat this for emphasis:

      "Now go look at the medical examiner's report."


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  8. Regardless of the merits of the NY Times reporting, the article is a mess. It jumps from a linear accounting of the shooting to random comments and then jumps back to shooting.

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  9. Digby thinks Brown was shot because he wasn't white and wearing a cowboy hat.

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    Replies
    1. 9:52 mistakes himself for a skinny bleached blonde in a short black cocktail dress.

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  10. Your Lawrence does get results!

    http://publiceditor.blogs.nytimes.com/2014/08/21/a-ferguson-story-on-conflicting-accounts-seems-to-say-trust-us/?_php=true&_type=blogs&_r=0

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