To the extent that there’s any agreement about the facts of Michael Brown’s shooting, it appears to be that:
- Officer Darren Wilson ordered Michael Brown and his friend out of the middle of the street
- there was some kind of struggle in or around Officer Wilson’s car
- Wilson’s gun discharged, and
- Wilson fired several more shots after Brown was some distance from the car.
Fleeing Suspects and Deadly Force
Officers are entitled to use at least some force on fleeing offenders. But the circumstances in which they can use deadly force against them are quite limited. (The United States Supreme Court has hesitated to say what, exactly, constitutes deadly force, but shooting to kill surely fits the bill. (Scott v. Harris, 550 U.S. 372 (2007).))
In Tennessee v. Garner, the U.S. Supreme Court held that an officer may use deadly force to stop an unarmed and fleeing felony suspect only where:
- such force is necessary to prevent escape, and
- the officer has probable cause to believe that the suspect poses a significant threat of serious harm to the officer or others.
Dorian Johnson, who was with Michael Brown as events unfolded, says that Wilson started the physical encounter. According to Johnson, the officer grabbed Brown by the neck from a patrol car and pulled him toward the vehicle. Brown tried to pull free; the officer fired a shot. Brown began to run away. The officer got out of his car, pursued Brown, and fired a second shot that hit the young man. Brown turned around, hands in the air. He began to plea with the officer, who shot him dead. (“What we know about Michael Brown’s shooting.”)
Witness Tiffany Mitchell says she saw Brown and the officer “tussling through the window,” with Brown trying to get away. Mitchell essentially corroborates Johnson’s account from this point on.
But a radio-show caller who claims to have Officer Wilson’s version of events says that Wilson received word of a moments-earlier strong-arm robbery. She says he got this report after he had ordered the two young men out of the middle of the street. This was just before things got physical. He was suspicious of the two young men at least in part because they appeared to have cigars, cigars being the product of the reported robbery.
The caller’s account aligns with the police’s. The authorities say that Officer Wilson tried to get out of his car, but that the physically imposing Brown pushed him back in. Then Brown assaulted the officer and tried to get hold of the officer’s weapon. (“What we know....”)
The caller takes it from there, reporting that the gun went off once during the struggle. Her account, which a “source with detailed knowledge of the investigation” confirmed as a match of Wilson’s, has Wilson then pursuing Brown and Johnson. Wilson orders the two to freeze, they turn around, and Brown taunts Wilson before running at him at full speed. Then Wilson unloads all those shots. The caller says that, according to Wilson, “ballistics will prove [Brown] wasn’t shot in the back like the other people are saying. . . .”
Justified or Not?
If you believe Johnson and Mitchell, Officer Wilson fired a shot at a fleeing Michael Brown. Brown hadn’t committed a crime against Wilson involving serious injury. If anything, he committed an offense along the lines of resisting arrest, but without using force against the officer: He was just trying to get away.
According to these two witnesses, there was no way the officer could have reasonably believed that the young man posed a significant threat of serious harm to anyone as he began to flee. Their story, if true, would mean that Wilson was never entitled to shoot at Brown—not from the car, not as Brown ran, and certainly not after Brown had surrendered.
Under the police and the caller’s rendition, Brown assaulted Wilson. Wilson knew that Brown had committed a crime involving serious injury or a threat thereof, that being either the officer assault or the earlier robbery. Even if Brown had been running away as Wilson first fired, shooting would have been the only way to stop the escape attempt. And Wilson couldn’t have feasibly warned Brown any more than he did. So, at least under a literal interpretation of Tennessee v. Garner, Wilson’s shooting once at an escaping Brown would have been justified. And all of the subsequent shots would have been in self-defense.
With news that Eric Holder is heading to Ferguson and the announcement that a Missouri grand jury is convening on Wednesday, we’ll be hearing a lot more about what happened between Darren Wilson and Michael Brown. Wilson could face parallel sets of criminal charges from the state and federal governments, not to mention civil liability.
Much of what happens will turn on when, exactly, he first shot at Michael Brown.