Why did the Justice Department conclude that 'Hands Up, Don't Shoot' was a myth?

Mar 24, 2015

Why did the Justice Department conclude that Michael Brown didn’t cry out “Don’t shoot” and that, if he had his hands up, it was only for a moment before he began moving back toward Ferguson police officer Darren Wilson?

Those previous widespread beliefs about what happened when Wilson killed Brown on Canfield Drive helped spark national protest. In light of the Justice Department's recent reports, those beliefs are being re-evaluated. The New York Times public editor, for instance, has joined those who recognize the problem with the original “hands up-don’t shoot” narrative.

It’s easy to see how protesters adopted -- and the media repeated -- the “hands up” mantra. The majority of eyewitnesses  - 22 - told authorities that Brown’s hands were up when he was killed.

Attorney General Eric Holder visited Ferguson Aug. 20.
Credit Office of U.S. Rep. Lacy Clay

But DOJ investigators found the accounts of all 22 witnesses to be unreliable because other parts of those witnesses’ stories conflicted with physical or forensic evidence or with the accounts of credible witnesses.

Many of these witnesses denied incontrovertible evidence that Brown reached into the police car, struck Wilson in the face, was wounded by a gunshot inside the car, fled 180 feet, suffered no wounds in the back and then moved back at Wilson immediately before the fatal shots.

In many instances, the discounted witnesses repeated what they had heard from neighbors or on the news. Some witnesses admitted they made up stories so they could be part of a big event in their community.

Brown’s companion, Dorian Johnson, and friends quickly spread the word that Wilson had killed Brown execution style. An iPad recording and videos that captured conversations among the gathering crowd document the development of the false narrative.

When Attorney General Eric Holder released the Department of Justice report and a separate report documenting Ferguson’s deeply racist and unconstitutional police and municipal court practices, he said that Ferguson residents’ experience with racist police and court practices prepared them to suspect the worst when Wilson killed the unarmed teen.

To be part of something

When confronted with the ways in which their accounts differed from evidence, many witnesses acknowledged that they had made up details they hadn’t witnessed. Eight of the 22 eventually admitted they had lied about all or part of what they had claimed to see.

Credit Jason Rosenbaum | St. Louis Public Radio

One admitted to be sitting in a flowerbed away from the shooting. Another acknowledged she hadn’t seen anything because she was smoking behind a dumpster.

Two of those who admitted lying said they just wanted “to be part” of something.

In addition to the eight who admitted lying, one woman admitted blacking out, a man admitted he may have hallucinated details and another woman broke into hysterics and was unable to give a cogent account.

Another witness had bad eyesight, another memory loss and psychiatric problems, another was fiddling with a cell phone camera and yet another was a regular protester who waited seven months before reporting anything and then admitted she was upset “Darren Wilson got away.”

The FBI concluded that this last account, by Witness 148, was fabricated in much the same way as the much publicized account of Witness 140 who had apparently invented a convoluted story to help clear Wilson. 

Most of the rest of the 22 witnesses who said Brown’s hands were up gave accounts that were so at odds with physical evidence that they were not credible. Several swore that Wilson shot Brown in the back, even though there were no wounds in the back. Several said that Brown was kneeling and Wilson killed him execution style. Other witnesses claimed to see multiple police officers at the scene and multiple police cars.

None of that was true.

Credible witnesses

Sixteen witnesses gave consistent accounts that did not contradict forensic and physical evidence.

Of the 16, 10 said they saw Brown’s hands and that he did not have them up in surrender mode, although several of these credible witnesses described some movement of the hands.

Credit Provided by the Hands Up exhibit

Of the 10 credible witnesses who saw Brown’s hands, seven said he did not have his hands up in surrender. The other three said he briefly began raising them when he turned around after fleeing, but put them down and moved quickly toward Wilson.

The three eyewitnesses who saw Brown briefly raise his arms were part of an interracial family riding in a minivan. The daughter, 26, said that “for a second” Brown began to raise his hands as though he may have considered surrendering, but then quickly “balled up in fists” in a running position and “charged” at Wilson in a “tackle run,” while Wilson backed up.

Her mother, 51, who was driving the van, said Brown’s hands went up “for a brief moment,” but when Wilson told him to “get down” Brown put his hands down “in a running position.”

Another daughter, 31, said Brown briefly put his hands up but then put them down and began stumbling toward Wilson.

The father in the family, 45, said Brown’s arms briefly “flung out” as turned back toward Wilson, but Brown “did not have his hands up” despite what the neighborhood said.

Two of the other witnesses described Brown making a different motion with his hands as he turned back toward Wilson. They were a married, African-American couple watching from a nearby second-floor balcony.

Both said Brown looked down at his hands – one of which was bleeding -- but he did not raise them in surrender. The husband said that when Brown turned he looked down at his hand and put his hands out, palms up as if asking “What the heck?” before moving “quickly” back toward Wilson.

The DOJ report noted that a number of the witnesses who said that Brown had his hands up maintained that he fell to the ground with his hands still in that position. In fact, Brown had his left arm under him, consistent with Wilson’s account that he grabbed his trousers as he rushed back at him, causing him to fear he might have a gun.

In summary, the DOJ report concluded: There are no witnesses who could testify credibly that Wilson shot Brown while Brown was clearly attempting to surrender. The accounts of the witnesses who have claimed that Brown raised his hands above his head to surrender and said “I don’t have a gun,” or “OK, OK, OK” are inconsistent with the physical evidence.”

The rumor spreads

The Justice Department’s report describes how Dorian Johnson -- Brown’s companion designated as Witness 101 -- first ran from the scene and then returned at the urging of the Brown family.

“Witness 101 made multiple statements to the media immediately following the incident that spawned the popular narrative that Wilson shot Brown execution-style as he held up his hands in surrender,” the report concluded.

After the shooting, Dorian Johnson yelled “He just killed my friend” and ran home and changed his shirt so he would not be recognizable to police. Then he went to Brown’s grandmother’s home to tell her what had happened.

Lesley McSpadden, Michael Brown's mother
Credit Jim Howard | St. Louis Public Radio

“With the encouragement of Brown’s family, Witness 101 went back out onto the street and gave an interview to the media,” the DOJ report recounts. Johnson’s account was at odds with much of the physical and forensic evidence.

Johnson later told the state grand jury that he had seen a female friend, Witness 118, standing on her balcony. Johnson and Witness 118 socialized weekly in the weeks before the shooting.

During his testimony, Johnson “acknowledged that he had discussed the incident with … Witness 118. … he was surprised that so many other witnesses came forward because Witness 118 was the only person he saw outside, and she was the only person who saw the incident from the ‘first shot to the last shot.’”

Witness 118, who denied talking to Johnson about what she had seen, was one of the eyewitnesses most often interviewed by the media, often adding details not mentioned in earlier accounts.

At first the 19-year-old said she missed the beginning of the encounter, but she later maintained she saw “the whole scenario play out” in front of her. She added new details about the confrontation at the car and said she saw Wilson shoot Brown repeatedly in the back, which was not true.

In the end the Justice Department concluded that “Witness 118 was not out on her balcony for the majority of the incident, and it is unknown at what point she actually witnessed the shootings, if at all.”

Jefferson County contractors

One of the biggest news developments was the widespread coverage of two white contractors from Jefferson County who seemed to validate the “hands up” mantra. They are Witnesses 122 and 130.

A much replayed CNN “exclusive” showed one of the contractors throwing up his hands as if repeating what he had just seen Brown do with his hands.

Chris Hayes, of MSNBC, one of the national reporters most doggedly pursuing the hands up story, replayed the video and interviewed a local reporter who had an exclusive interview with one of the contractors.

As it turns out the video was not captured “during the moments just after the shooting.” Clearly visible in the background is a police officer extending yellow tape around the scene of the shooting – showing the video was shot some time after the killing.

Child displays Hands Up pose common during Ferguson-related protests
Credit Courtesy of Chris Renteria

The video depicts another person yelling, ‘He wasn’t no threat at all,’ as Witness 122 puts his hands up and says, “He had his fucking hands in the air.”

Two people claimed to investigators to have shouted – “He wasn’t no threat at all.” The FBI found that neither had witnessed enough of the encounter to know.

Nor was Witness 122’s account accurate. He claimed that three police officers were present during the shooting and that Brown was shot by the “heavyset” one.  Wilson is not heavy-set and he was the only officer present.

The FBI also discredited other key elements of Witness 122’s account. It reported that both contractors “claimed to have witnessed bullets go through Brown and exit his back, as evidenced by his shirt ‘popping back’ and ‘stuff coming through.’ However, in his interview with federal prosecutors, Witness 122 explained that he thought that Brown was shot in the back and stumbled until he saw media reports about the autopsy commissioned by Brown’s family. After learning about that autopsy, he realized that Brown was not shot in the back and admittedly changed his account."

Both contractors eventually recanted part of their stories, acknowledging they hadn’t seen Brown fall because a corner of a building obstructed their view.

The iPad

The person who recorded the video of the contractors had started recording after the gunshots stopped, putting his iPad in a ground-level window of his basement apartment. The videos he captured show the rumors spreading. The DOJ report said:

During those conversations, bystanders discussed what transpired, although none of what was recorded was consistent with the physical evidence or credible accounts from other witnesses.

For example, one woman stated that the officer shot at Brown from inside his vehicle while the SUV was still moving and then the ‘officer stood over [Brown] and pow-pow-pow.’ Because none of these individuals actually witnessed the shooting incident and admitted so to law enforcement, federal prosecutors did not consider their inaccurate postings, tweets, media interviews, and the like when making a prosecutivedecision.”

The report described the major role that social media played in spreading the impression that many people had witnessed Brown with his hands in the air. Agents tracked down the people who seemed to claim on social media or TV that they had witnessed the shooting.

For example, one individual publicly posted a description of the shooting during a Facebook chat, explaining that Brown ‘threw his hands up in the air’ as Wilson shot him dead. A Twitter user took a screenshot of the description and ‘tweeted’ it throughout the social media site.

When the  SLCPD and the FBI interviewed the individual who made the initial post, he explained that he ‘gave a brief description of what [he] was hearing from the people that were outside’ on Canfield Drive, but he did not witness the incident itself. Similarly, another individual publicly ‘tweeted’ about the shooting as though he had just witnessed it, even though he had not.

“Likewise, another individual appeared on a television program and discussed the shooting as if he had seen it firsthand. When law enforcement interviewed him, he explained that it was ‘misconception’ that he witnessed the shooting. He spoke to the host of the show because he was asked if he wanted to talk about the shooting. In so doing, he was inaccurately portrayed as a witness.”

In its legal analysis, the DOJ summarized its conclusions: “Witness accounts suggesting that Brown was standing still with his hands raised in an unambiguous signal of surrender when Wilson shot Brown are inconsistent with the physical evidence, are otherwise not credible because of internal inconsistencies, or are not credible because of inconsistencies with other credible evidence.

“In contrast, Wilson’s account of Brown’s actions, if true, would establish that the shootings were not objectively unreasonable. ... Multiple credible witnesses corroborate virtually every material aspect of Wilson’s account and are consistent with the physical evidence.

“Not only do eyewitnesses and physical evidence corroborate Wilson’s account, but there is no credible evidence to disprove Wilson’s perception that Brown posed a threat to Wilson as Brown advanced toward him.