(Updated at 3:25 p.m., Mon., Nov. 17)
An outdated Missouri law that allows police to shoot an unarmed fleeing felon could help Officer Darren Wilson avoid an indictment and prison, legal experts say.
If St. Louis County Prosecuting Attorney Robert McCulloch advises the grand jury to follow the outdated law, he would be reducing the chances of an indictment. Wilson could be viewed as acting in line with state law when he shot unarmed Michael Brown after he began to flee.
Even if Wilson is indicted and convicted, the same law would give Wilson a strong case to get his conviction thrown out on appeal, the lawyers say.
It’s a strange nuance of law that has gotten virtually no attention in the run-up to the grand jury’s decision.
The law in question contradicts a three-decades-old U.S. Supreme Court decision, Tennessee vs. Garner, that makes it unconstitutional for police to shoot an unarmed fleeing felon. It also contradicts a Missouri jury instruction that incorporates Garner into the instructions that would be read to jurors at trial if Wilson were indicted.
But, despite those contradictions, the law survives and Wilson could use it in any criminal case.
That is the analysis of professors Chad Flanders and Roger Goldman at Saint Louis University law school. Dean Michael A. Wolff, former chief justice of the Missouri Supreme Court, agrees that the distinction between the law and the jury instruction is important.
“The big question is does the grand jury get the statute, the jury instruction, or both? I assume it would make a difference if they only gave them the statute” because that could tilt the process toward Wilson,” he said.
“McCulloch says he will release all the evidence, except witness names. But what law will be given to the grand jury? It could make a big difference, right? No one has focused on this.”
Ed Magee, a spokesman for McCulloch, said Tuesday in an email that McCulloch will "cover this issue at the press conference when the decision is announced."
Flanders noted that the distinction between the statute and the jury instruction would be less important if Wilson’s reported version of events is accurate.
“If the jury is presented with the facts that a) Wilson was aware Brown possibly committed a violent felony (second degree robbery is 'forcible stealing'), b) that there was a struggle/assault in the police car, or c) that Brown threatened violence after the incident in the car,” then all of this becomes moot. Even under the Tennessee vs. Garner decision, “Wilson has a strong case,” he said.
Peter Joy, a law professor at Washington University, said that the distinction also would be unimportant if the opposite scenario was established -- that Brown turned around and was surrendering rather than fleeing, as some witnesses have said.
“The jury’s duty would be to convict if it believed Michael Brown was surrendering at the time the fatal shots were fired and that a reasonable person in Darren Wilson’s position would have concluded that Michael Brown was surrendering,” he wrote in an email. “As a practical matter, I think that the case really comes down to whether Brown was surrendering or clearly incapacitated at the time the fatal shot or shots were fired.”
The starting point for understanding the nuance of law is a 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 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 problematic option is (a). Contrary to Tennessee vs. Garner, (a) 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.
By contrast, the Missouri jury instruction, which would be used in any state criminal trial against Wilson, explicitly recognizes Tennessee vs. Garner.
In referring to option (a), the instruction states: “This basis for the lawful use of deadly force by a law enforcement officer is not included in this instruction. See Tennessee vs. Garner…. Under that decision, the use of deadly force to effect an arrest cannot be justified by the sole ground that the arrest is for the commission of a felony, and such use of deadly force violates the fourth amendment.
“The court stated that the Tennessee statute authorizing the use of deadly force to arrest for any felony is unconstitutional insofar as it authorizes the use of deadly force against such [unarmed nondangerous] fleeing suspects.”
Relying on the instruction, a jury could convict Wilson believing he did not have the authority to shoot the unarmed Brown.
But on appeal, the state law permitting the use of force against an unarmed fleeing felon would trump the jury instruction, say Flanders and Goldman.
So, Wilson could be convicted under the jury instruction barring deadly force against an unarmed suspect and could have that conviction overturned based on the law permitting deadly force in the same circumstances.
Wolff does not agree that the statute trumps the jury instruction. “You use the (jury instruction), not the statute, if there is a conflict,” he said, adding he doubts his former colleagues on the Missouri Supreme Court would “second-guess the jury instruction they approved.”
Still, Wolff thinks it is important to determine whether the legal advice McCulloch gave the grand jury was the statute or the jury instruction because the statute would make it harder to indict.
Not everyone agrees with the SLU professors.
Steve Ryals, a civil rights lawyer who has sued police, thinks Tennessee vs. Garner should trump the state law. “I believe the Garner decision renders the portion of the Missouri statute that conflicts with it a nullity,” he wrote in an email.
If Wilson used the state law to challenge a conviction at a trial where the instruction was used, “the (state appeals) court would have no choice but to affirm the conviction based on the properly worded instruction because that conforms to the constitutional mandate of SCOTUS (Supreme Court.)…The Supreme Court's pronouncements on the constitution are truly the supreme law of the land and must be followed in the states.”
It is true that the federal Constitution trumps a conflicting state law. But Wolff, Flanders and Goldman point out that the Supreme Court ruling in Garner involved a civil lawsuit, not a criminal prosecution. So it is an oranges and apples situation.
“There's no requirement that Missouri's standard for criminal liability has to mirror the standard for a constitutional tort,” which is civil, wrote Flanders.
Wrote Goldman: “I've never seen a case where the U.S. Supreme Court has said a state must criminalize conduct which violates the U.S. Constitution.”
Flanders also said it is important to distinguish between federal and state proceedings.
“There's a state/federal distinction here,” he wrote. “Wilson couldn't use the Missouri statute in a federal civil rights suit to defend himself if he was saying he used force in response to a felony that wasn't dangerous, or that the fleeing felon didn't present any threat to himself or others… But in a state prosecution, this doesn't matter: Wilson can still use it to defend himself against a state charge.”
Flanders noted that St. Louis Circuit Judge Robert Dierker wrote in a criminal justice treatise, “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.”
Wolff added a note of common sense. "Assuming that in the 90 seconds of this encounter, Officer Wilson made reference to his encyclopedic knowledge of Missouri law and decided to shoot -- is it fair to hold that he must also know the case law?"
If the federal government were to decide that the state criminal process did not vindicate Brown’s civil rights, it could file a federal criminal case alleging that Wilson had intended to deprive Brown of his civil rights.
Federal prosecutions are often looked at as difficult to win because prosecutors have to show that the officer has the specific intent of depriving a citizen of a known civil right. This requires proof that the action was willful, in other words in reckless disregard of the right.
Goldman pointed out, however, that Wilson could not use the Missouri statute in his defense in a potential federal case.
In a federal prosecution, the issue would be “whether the officer intentionally violated the suspect's constitutional rights by shooting a fleeing felon suspected of a non-violent offense, as in Garner. In Missouri., the justification defense permits the use of deadly force to stop a fleeing felon regardless of whether he was dangerous to officers or others.
“So … it seems to me he's not guilty of homicide in state court,” Goldman wrote, “but is subject to the death penalty (where death of the suspect occurs) in federal court.”
Goldman noted that many states had changed their use of force laws after Garner. “So one possible reform from Ferguson,” wrote Goldman, “is to repeal the justification statute to conform with Garner.”