Just before the Darren Wilson grand jury began deliberating, the two prosecutors in the room gave the grand jurors an unusual message: Ignore part of the Missouri law giving police officers broad power to use deadly force.
“So, the statute I gave you,” said Assistant Prosecuting Attorney Kathi Alizadeh, “if you want to fold that in half just so that, you know, don't necessarily rely on that because there is a portion of that that doesn't comply with the law.”
It’s not every day that a prosecutor tells a grand jury to ignore the state law, but there was a good reason for Alizadeh and Assistant Prosecuting Attorney Sheila Whirley to deliver the message. The Missouri law would allow police to kill an unarmed suspect fleeing a felony, even though the U.S. Supreme Court has said that is unconstitutional.
Legal experts and some state legislators say changing the state law is one of the most obvious reforms that could be put in place to address issues raised by the death of Michael Brown at the hands of Officer Wilson.
Chad Flanders, a Saint Louis University law professor, said, “There’s an important point about Missouri law which we should all agree on: The Missouri statute on law enforcement officer’s use of force needs to be changed, and now.”
Roger Goldman, emeritus professor at Saint Louis University Law School agrees. "Repeal of the obviously unconstitutional provision of the justification defense should be supported by both law enforcement officers and the civil rights and civil liberties community,” he wrote in an email.
“Police should not be told by the state they have the right to use deadly force in a situation that is in direct conflict with federal constitutional law and could result in a federal criminal prosecution for intentional violation of a suspect's fourth amendment rights. And potential victims should not be subject to the inappropriate use of deadly force."
State Sen. Jamilah Nasheed, D-St. Louis, says changing the law is one of the reforms she plans to introduce in the next session of the Missouri Legislature.
The strange moment in the grand jury came last Friday around 3 p.m. as Whirley was explaining to the grand jury the law as it should apply in deciding whether to indict Wilson. According to the transcript of the hearings, this is what transpired:
“Real quick, can I interrupt about something?” interjected Alizadeh. “Previously, in the very beginning of this process, I printed out a statute for you that was, the statute in Missouri for the use of force to affect an arrest.
“So if you all want to get those out. What we have discovered, and we have been going along with this, doing our research, is that the statute in the State of Missouri does not comply with the case law.
“....And so the statute for the use of force to affect an arrest in the state of Missouri does not comply with Missouri Supreme Court, I'm sorry United States Supreme Court cases....
“So the statute I gave you, if you want to fold that in half just so that you know don't necessarily rely on that because there is a portion of that that doesn't comply with the law.
“…I don't want you to get confused and don’t rely on that copy or that print-out of the statute that I've given you a long time ago.”
A grand juror asks, “So we’re to disregard this?”
Alizadehanswers: “It is not entirely incorrect or inaccurate, but there is something in it that’s not correct, ignore it totally.”
When a grand juror asks more questions,
Whirley chimes in, “We don’t want to get into a law class.”
Flanders says the exchange “would be an outrageous move (remember: they are telling the jurors to disregard the law and telling them to heed their own ‘spin’ on the law), if the attorneys didn’t have a good point. Their point was that Missouri’s statute about law enforcement officer’s justified use of force doesn’t fit what the U.S. Supreme Court said about using deadly force….”
The prosecutors’ last minute change in the legal instructions came four days after St. Louis Public Radio pointed out the potential problem. Michael A. Wolff, dean of the Saint Louis University Law School, said at the time that using the outmoded law originally given to the grand jury would tilt the process in Wilson’s favor because Wilson could claim to have authority to use deadly force against an unarmed fleeing felon.
Ed Magee, assistant to St. Louis County Prosecutor Bob McCulloch, said at the time that McCulloch would discuss “this issue at the press conference when the decision is announced."
He did not. Magee, when asked after the press conference if he could provide the written legal instructions that were given to the jury, said, “we released everything we could at the time.”
To understand the importance of the last minute clarification, one needs to understand the 1985 U.S. Supreme Court decision, Tennessee vs. Garner.
A 15-year-old African-American youth in Memphis was shot and killed by a white officer as he fled a burglary. The boy was unarmed and had taken a purse.
The U.S. Supreme Court ruled in a civil case that police violate the 4th Amendment by using deadly force to stop an unarmed, non-dangerous fleeing felon. It is an unreasonable seizure.
But Missouri never changed its law to conform with Tennessee vs. Garner.
The Missouri law is Section 563.046 of Missouri’s revised statutes – titled “Law enforcement officer's use of force in making an arrest.” It provides an officer with a justification defense protecting him from criminal prosecution.
The law states that an officer is justified in the use of deadly force if he or she “reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested (a) has committed or attempted to commit a felony; or (b) is attempting to escape by use of a deadly weapon; or (c) may otherwise endanger life or inflict serious physical injury unless arrested without delay.”
The problem is section (a). Contrary to Tennessee vs. Garner, that section authorizes the use of deadly force to stop an unarmed, non-dangerous fleeing felon from escaping.
Even though legal experts agree that this subsection of the law has been at odds with the U.S. Constitution for almost three decades, the language is still in state law. In fact, the new criminal code that takes effect in 2017 retains the language.
That is the language that Flanders, Goldman and Sen. Jamilah Nasheed want to change.
Even though the legislature had not changed the law, the Missouri Supreme Court adopted a new jury instruction that complies with Garner. It does not allow a police officer to claim he was entitled to shoot an unarmed fleeing felon.
But Flanders and other legal experts think that Garner and the jury instruction don’t solve the problem.
Flanders said the prosecutors in the grand jury actually were wrong to say Garner trumps the law. Garner was the constitutional standard for a civil lawsuit. Missouri does not have to criminalize all police action that is unconstitutional. So, Flanders and other lawyers believe the state law still is in effect.
If Wilson had been indicted using the Garner rule against shooting an unarmed fleeing felon, he could have challenged any conviction by relying on the Missouri law that permits an officer to shoot an unarmed suspect.
Said Flanders: “If the attorneys had to go out of their way to explain why they 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.”