In the next few weeks and months, we’ll be arguing and disagreeing over the evidence disclosed in the massive data dump from the Ferguson grand jury materials. But if you skip to the end of the grand jury transcripts, all the way in volume 24, the last 15 or so pages, there’s an important point about Missouri law we should all agree on: The Missouri statute on law enforcement officer’s use of force needs to be changed, and now.
In those final pages, the supervising attorneys themselves tell the grand jurors to disregard that law -- to take their copy of the statute and just “fold that in half.”
The point comes up unexpectedly, and not without a little drama. The two attorneys who have been in charge of running the grand jury turn to laying out the law for the grand jurors, giving them the statutes they’ll need to refer to when considering whether to charge Darren Wilson, and if so, with what. They describe what they are handing them – the statutes for murder in the first degree, murder in the second degree, involuntary manslaughter first and second degree, all accompanied by an armed criminal action charge.
The jurors also get copies of the statute for assaulting a law enforcement official, and also the statutes for first, second and third degree assault. But these aren’t going to be for charging Wilson; rather, the jurors need to consider the assault statutes because “the officer is saying he was arresting [Brown] for assaulting him.” Wilson’s defense is that he was trying to arrest Brown and he was justified in using deadly force to make that arrest. Missouri has a statute to this effect, and from reading the transcript, we know that at some point earlier on the jurors were given a copy of the statute.
But then there’s the twist. One of the attorneys (Alizadeh) interrupts the other (Whirley) and tells the jurors that, well, she wants them to get out their copies of the Missouri statute for the use of force and “fold” those “in half.” She doesn’t want the jurors to “get confused” by relying on the “copy or the print-out of the statute” that she gave them “a long time ago.” Doing research, Alizadeh and Whirley have discovered “that the statute in the State of Missouri does not comply with the case law” and so the jurors need to “disregard” it.
Instead, Alizadeh wants them to rely on something the attorneys have “come up with,” their interpretation of what the statute should say. They hand out a new statement about the use of force to affect an arrest.
This would be an outrageous move (remember: they are telling the jurors to disregard the law and telling them to heed the attorneys’ own “spin” on the law), if the prosecutors didn’t have a good point. Their point was that Missouri’s statute about a law enforcement officer’s justified use of force doesn’t fit what the U.S. Supreme Court said about using deadly force in Tennessee v. Garner -- the “case law” one of the attorneys referred to.
The Missouri statute says that a police officer can use deadly force in trying to arrest a person they suspect has committed any felony. But in the Garner case, the Supreme Court ruled that using deadly force was unreasonable when it was used in trying to stop a fleeing felon who hadn’t committed a violent felony or who wasn’t dangerous (the facts of Garner involved police shooting at a burglar trying to climb over a fence).“Where the suspect poses no immediate threat to the officer and no threat to others,” the court wrote, “the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”
Missouri’s statute as written allows police officers to use deadly force to arrest someone who is guilty, say, only of forging a check. As a matter of a state criminal prosecution of a police officer, this inconsistency doesn’t matter. There is no requirement that state law fit with the standards for a federal civil rights suit against a police officer, which is what Garner was. If the attorneys supervising the grand jury thought that Garner somehow “overrides” the state statute, they were wrong.
But that doesn’t mean that the lawyers shouldn’t have given the grand jury their revised statement of the law — whatever exactly it was (I haven’t found it in the files given to us, and we may never see it). The Garner standard is the more sensible standard. In fact, the Missouri pattern jury instructions (the instructions judges have to read if a law enforcement officer’s use of force is at issue at trial) already adopt the Garner standard. till, Missouri law stands unchanged.
Of course, it may be that Wilson’s use of deadly force was justified even under the higher, Garner standard. Garner also says that deadly force may be used “if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.” What we will be debating (and what we should be debating) is whether when Wilson shot Brown, he was shooting at a violent felon or (to quote another passage from Garner) shooting at an “unarmed, nondangerous suspect.”
Here’s what we shouldn’t be debating. If the attorneys had to go out of their way to explain why grand jurors shouldn’t be following Missouri law on the books, then we should just change the law. After all, the jurors understandably may have been confused as to why they were being asked to “just disregard” the Missouri law. (“We don’t want to get into a law class,” was the reply to one grand juror who asked about the switch.)
There’s an easy answer here, and one we should all agree on. The Missouri legislature should change the statute on law enforcement officer’s use of force to be more in line with Garner. Grand jurors shouldn’t have to be told on the fly what the proper standard is. That standard should be the law.
Chad Flanders teaches law at Saint Louis University School of Law.