If the St. Louis County grand jury fails to indict Officer Darren Wilson, we may have the Missouri legislature to blame.
The problem is an old statute that most people agree is unconstitutional: As it is written, the Missouri statute says that an officer is justified in his use of deadly force if he believes that it is necessary to effect the arrest of a person and the officer also believes that the person “has attempted to commit or has committed a felony.”
In a 1985 case, Tennessee v. Garner, the U.S. Supreme Court said statutes like this were unconstitutional because they permitted the use of deadly force even when the felony at issue wasn’t dangerous or violent. In theory, a police officer operating under the Missouri statue could use deadly force even if the officer believed a suspect had passed a bad check for more than $500, a class C felony in Missouri.
This kind of thing would be ridiculous, the Supreme Court said: “It is not better that all felony suspects die than that they escape,” they wrote. “The fact that the police arrive a little late or are a little slower afoot,” the court continued, “does not always justify killing the suspect.” The majority in Garner then spelled out the circumstances where deadly force would be justified: When the officer reasonably believed that the suspect posed “a threat of serious physical harm, either to the officer or to others.
Of course, it is possible that Officer Wilson believed that Michael Brown was presently dangerous, or that Brown had just violently assaulted Wilson. These beliefs (if reasonable) would make it much easier for Wilson to claim, under the U.S. Constitution, that his use of deadly force was permissible. If Wilson ends up in federal court, he would need at least some facts like these to go his way in order to win.
But as far as a Missouri prosecution of Wilson goes, he has a much easier case to make if Missouri statutes control decisions. Wilson would need to show that he reasonably believed that Brown had committed a felony (any felony) and that Brown was trying to get away. Wilson wouldn’t need any additional facts about what the felony was, or what Brown did to him. This could be a problem for the state prosecution of Wilson, because it makes it harder to show under the terms of the Missouri statute that Wilson’s use of force was unjustified.
As the leading Missouri criminal law treatise (written by a state judge) puts it, “it would seem that an officer charged with homicide could still assert the provisions [of the Missouri officer’s use of force statute] to shield himself from criminal liability, since the statute has not been amended or repealed.” It is possible that Missouri judges will creatively read the Missouri use of force statute so that it prohibits deadly force except in cases of dangerous felonies, which would allow the prosecution against Wilson to proceed. Then again, they might not.
Garner was decided nearly 30 years ago, and yet Missouri hasn’t updated its statutes to make them consistent with the Constitution. The unjustified use of force statute unfortunately isn’t an isolated case.
For example, earlier this year the Eighth Circuit ruled against a police officer who had arrested Frank Snider for shredding an American flag under Missouri statute 578.095, the flag desecration statute. Statutes just like Missouri’s had been ruled unconstitutional by the U.S. Supreme Court in 1989, in a case called Texas v. Johnson, but Missouri’s statute remained on the books about 20 years later. The statute was too much of a temptation to use for those officials in Cape Girardeau who didn’t know better, or who didn’t want to know better. Snider ultimately won money damages against the state.
Leaving bad statutes on the books has serious consequences, whether it means giving an officer an extra advantage he doesn’t have under the U.S. Constitution, or risking arrests for people doing things they are constitutionally allowed to do.
This year, Missouri passed a sweeping reform of its criminal code, to take effect in a few years. Guess what? The errors in the officer’s use of force statute remain, as does the entire flag desecration statute. Stylistic changes are made to both statutes, and gender neutral (“he or she”) language is introduced, so someone must have been looking at them. This was a missed opportunity. State legislatures not only have an obligation to make new laws; they also have an obligation to fix the old ones.
Chad Flanders is an assistant professor of law at Saint Louis University School of Law.