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.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.
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.
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 forcePersonally, 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.
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.
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.